Aguirre v. 635 Madison Fee Prop. Owner LLC

2024 NY Slip Op 33393(U)

• Court: New York Supreme Court, New York County
• Decided: September 26, 2024
• Docket: Index No. 151111/2021
• Status: Unpublished

Opinion

Aguirre v 635 Madison Fee Prop. Owner LLC 2024 NY Slip Op 33393(U) September 26, 2024 Supreme Court, New York County Docket Number: Index No. 151111/2021 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 151111/2021 NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 09/27/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARYV. ROSADO PART 33M Justice ---------------------------------------------------------------------------------X INDEX NO. 151111/2021 JEAN AGUIRRE, MOTION DATE 08/31/2024 Plaintiff, MOTION SEQ. NO. 002 - V -

635 MADISON FEE PROPERTY OWNER LLC,TECTONIC BUILDERS INC.,BRONXDALE ELECTRIC DECISION + ORDER ON INC.,IRONWOOD REALTY CORPORATION, RICHEMONT NORTH AMERICA, INC.,MONTBLANC, MOTION

Defendant. ---------------------------------------------------------------------------------X RICHEMONT NORTH AMERICA, INC. and MONTBLANC

Plaintiffs, Third-Party Index No. 154132/2021 -v-

TECTONIC BUILDERS INC.

Defendant. ---------------------------------------------------------------------------------X

TECTONIC BUILDERS INC. Second Third-Party Index No. 595529/2021 Plaintiff,

-v- PRACTICAL PLUMBING AND HEATING INC.

Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 108, 109, 110, 111, 112,113,114,115,116,117,118,119,120,121,122,123,124,125,126,127,128,129,130,131,132, 133,134,135,136,137,138,139, 140,141,142,143, 144,145,146,147,148,149,150,151,152,244, 254,255,256,257,258,259,260,270,271,272,273,274,275,276,292,293,294,295,296,297,298, 308 were read on this motion to/for JUDGMENT-SUMMARY

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Upon the foregoing documents, Defendants 635 Madison Fee Property Owner LLC ("635

Madison"), Ironwood Realty Corporation ("Ironwood"), Richemont North America, Inc.

("Richemont"), and Montblanc' s (collectively "Movants") motion seek summary judgment

dismissing Plaintiffs Complaint is denied as moot. 1 Movants' request for summary judgment on

their contractual indemnification claim against Tectonic Builders, Inc. ("Tectonic") and Practical

Plumbing and Heating Inc. ("Practical") is granted. Movants' request for summary judgment on

their claims for common law indemnification against Bronxdale Electric Inc. is denied as moot. 2

Movants' request for spoliation sanctions against Tectonic is denied.

I. Background

For a more thorough recitation of the facts, the reader is referred to the Court's Decision

and Order on Motion Sequence 003. For purposes of this motion, the Movants seek contractual

indemnification and common law indemnification from Tectonic, and Practical. Movants also seek

spoliation sanctions against Tectonic.

Movants argue they are entitled to contractual indemnification from Tectonic because their

negligence is purely vicarious in nature, arising solely from a statutory violation. Movants cite to

the indemnification provision in the contract executed between Montblanc and Tectonic in support

of their motion. Movants also argue they are entitled to common law indemnification against

Practical as Plaintiffs injury was not caused by any negligence on Movants' part, but rather as a

result of Practical's failure to supervise and to direct Plaintiff. They further seek discovery

sanctions against Tectonic due to Tectonic's destruction of the ladder involved in Plaintiffs

1 The reader is referred to this Court's Decision and Order on Motion Sequence 003, where Plaintiff was granted summary judgment on his Labor Law§ 240(1) claim. 2 The reader is referred to this Court's Decision and Order on Motion Sequence 005, where all claims against Bronxdale were dismissed. For the sake of brevity, the Court omits Movants' request for relief against Plaintiff and Bronxdale from this Decision and Order. 151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Page 2 of 8 Motion No. 002

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accident. They seek a wide range of sanctions ranging from striking Tectonic's Answer, to a

finding ofliability against Tectonic, or requesting an adverse inference charge against Tectonic at

the time of trial.

Tectonic opposes and argues that indemnification should be sought against Practical, not

Tectonic. Tectonic argues that Practical was the negligent party, not Tectonic. Further, Tectonic

argues that spoliation sanctions are inappropriate as the destruction of the ladder occurred out of

safety concerns and not to destroy willfully evidence. Moreover, Tectonic asserts that the parties'

ability to prove their claims or defenses were not fatally compromised by the destruction of the

ladder. Practical in turn opposes and points the finger at Tectonic. Practical argues there can be no

common law indemnification against it because there is no evidence that Practical was negligent.

In reply, Movants argue that the New York City Department of Buildings has already found

that Tectonic failed to maintain safe operations. Therefore, they argue Tectonic's argument that it

was not negligent and therefore indemnification claims against it must fail is without merit.

Movants also rejected Practical's late opposition.

II. Discussion

A. Standard

"Summary judgment is a drastic remedy, to be granted only where the moving party has

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v

Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and

on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).

Once this showing is made, the burden shifts to the party opposing the motion to produce

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evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact

which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Where a party is only vicariously liable and is otherwise free of negligence, that party is

entitled to unconditional contractual indemnification (Herrero v 2146 Nostrand Avenue

Associates, LLC, 193 AD3d 421 [1st Dept 2021]; Higgins v TST 375 Hudson, LLC, 179 AD3d

508, 511 [1st Dept 2020]).

B. Indemnification from Tectonic

The Movants are granted contractual indemnification from Tectonic. Tectonic agreed to:

"indemnify, defend, and hold harmless the Owner, Landlord, and their respective agents, affiliates and employees from and against any and all claims ... arising out of or resulting from: (i) performance of the Work, but only to the extent caused by the negligent acts, omissions or willful misconduct of [Tectonic], a Subcontractor, any directly or indirectly employed by them or anyone for whose acts they may be liable ... ".

The "Owner" is defined as Montblanc and Richemont. The landlord, pursuant to the

sublease agreement, is Ironwood Realty Corporation (NYSCEF Doc. 136). 635 Madison, which

owns the land upon which the leased building sits, can be considered an affiliate or the Owner(s)

and Landlord. Further, it is undisputed that Plaintiff was injured while performing plumbing work

on behalf of Tectonic's subcontractor, Practical. The indemnification clause is broad in that it

requires indemnification for the negligent acts of both Tectonic and its subcontractors. Therefore,

Tectonic's argument that it was not negligent, only Practical, does not preclude trigger of the

indemnification clause. In any event, the New York City Department of Buildings found that

Tectonic failed to maintain a safe work environment. Moreover, it is undisputed that Tectonic's

Subcontractor instructed Plaintiff to climb an unsecured ladder which ultimately collapsed and

caused him to fall. Therefore, Plaintiff was injured as a result of Tectonic and Practical's

negligence.

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Further, the undisputed evidence shows that Movants are free from any active negligence

aside from statutory liability. The undisputed testimony of Gene Younace establishes that the

Movants performed no construction work at the worksite; had no role supervising the worksite;

did not select any subcontractors or supply equipment, and delegated responsibility for safety and

instruction to Tectonic (NYSCEF Doc. 138). Thus, the Movants are entitled to contractual

indemnification from Tectonic (Higgins v TST 375 Hudson, LLC, 179 AD3d 508 [1st Dept 2020];

Britez v Madison Park Owner, LLC, 106 AD3d 531 [1st Dept 2013]).

C. Indemnification from Practical

The Movants' motion seeking common law indemnification from Practical is denied.

Practical is Plaintiffs employer and is therefore protected from third-party claims for contribution

or indemnity unless the employee suffered a grave injury (Rubeis v Aqua Club Inc., 3 NY3d 408

[2004]). While Plaintiff does allege a traumatic brain injury, which may give rise to a grave injury

for purposes of circumventing the Workers' Compensation Law, the Court of Appeals has found

that a brain injury only constitutes a "grave injury" if it results in "permanent total disability" (id.).

This means the evidence must establish that the worker is no longer employable in any capacity.

There has been no vocational expert testimony provided in support of Movants' application and

therefore triable issues of fact remain as to whether Plaintiff is no longer employable as a result of

his brain injury. Therefore, summary judgment on Movants' common law indemnification claims

against Practical is denied.

However, Movants are entitled to their asserted claim for contractual indemnification

against Practical. The agreement between Practical and Tectonic states that Practical:

"shall indemnify and hold harmless the owner and contractor, and agents and employees of any of them from and against claims, damages, losses and expenses .... arising out of or resulting from performance of the Work under this Subcontract, provided that such claim, damage, loss or expense is attributable to

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bodily injury, sickness, disease or death ... but only to the extent caused in whole or in part by negligent acts or omissions of the Subcontractor."

The indemnification clause at issue is clear that an owner is entitled to indemnification.

63 5 Madison owns the land on which the premises is located, and the unconverted deposition

testimony is that Ironwood owns the building (NYSCEF Doc. 146 at 17:2-8). Thus, 635 Madison

and Ironwood may be considered "owners" under the applicable indemnification clause.

Moreover, the AIA agreement defines Montblanc, a division of Richemont North America, Inc. as

the "Owner" and Tectonic as the "Contractor." (NYSCEF Doc. 319). The indemnification clause

in the subcontract is a product of the AIA agreement executed between Montblanc and Tectonic.

Therefore, Montblanc and Richemont, which are defined as "Owners" in the AIA agreement, are

also covered by the Practical' s indemnification clause.

Further, it is undisputed that Plaintiff was, at least in part, injured as a result of Practical' s

negligence. Despite Practical being aware of the site safety regulations stating that any unsecured

step ladder required an individual to hold the ladder while another laborer ascended it, Practical's

witness testified he did not think he had to hold the ladder for Plaintiff. Specifically, Plaintiffs

supervisor testified that he did not believe the task he gave Plaintiff was a two-person job and

admitted that he walked away as Plaintiff began to ascend the ladder (see NYSCEF Doc. 177 at

202:2-11 ["that's embarrassing to ask for help as a mechanic for a pipe that already has its supports

up there"]). Plaintiffs supervisor likewise testified he was only fifteen feet away from Plaintiff at

the time of his accident and that rather than assisting Plaintiff he was speaking with Mr. Latona,

the supervisor from Tectonic. Meanwhile, the undisputed evidence shows that the Movants had no

involvement at the worksite aside from owning or leasing the property where the accident

occurred. Therefore, the Movants are also entitled to contractual indemnification from Practical.

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Because there remain issues of fact as to the allocation of negligence between Practical and

Tectonic, the grant of contractual indemnification against these two parties is conditional upon

allocation of negligence between Practical and Tectonic (see, e.g. Lemache v Elk Manhasset LLC,

222 AD3d 591,593 [1st Dept 2023]; Locke v URS Architecture & Engineering-New York, P.C.,

202 AD3d 505 [1st Dept 2022]; Roddy v Nederlander Producing Co. of America, Inc., 44 AD3d

556 [1st Dept 2007]). Because the apportionment of negligence has yet to be determined, the

apportionment ofresponsibility for Movants' attorneys' fees and defenses costs is denied without

prejudice as premature, with leave to renew upon a finding and apportionment of negligence

amongst Practical and Tectonic.

D. Spoliation Sanctions

Because Movants are granted conditional summary judgment on their claims for

contractual indemnification against Tectonic, their request for spoliation sanctions in the form of

an adverse inference charge or precluding Tectonic from contesting liability is moot. While

Movants also seek striking Tectonic's Answer, that is the most extreme spoliation sanction and

while the Court in no way condones Tectonic's destruction of the ladder, given the multiple

witnesses who were deposed and Movants' success on their motion, the destruction of the ladder

was not so prejudicial to warrant striking a pleading.

Accordingly, it is hereby,

ORDERED that 635 Madison Fee Property Owner LLC, Ironwood Realty Corporation,

Richemont North America, Inc., and Montblanc's motion seeking summary judgment on their

contractual indemnification claims against Tectonic Builders, Inc. ("Tectonic") and Practical

Plumbing and Heating Inc. ("Practical") is granted conditionally subject to an apportionment of

fault between Tectonic and Practical; and it is further

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ORDERED 635 Madison Fee Property Owner LLC, Ironwood Realty Corporation,

Richemont North America, Inc., and Montblanc's motion seeking spoliation sanctions against

Tectonic is denied; and it is further

ORDERED 635 Madison Fee Property Owner LLC, Ironwood Realty Corporation,

Richemont North America, Inc., and Montblanc's motion seeking dismissal of Plaintiffs

Complaint is denied as moot pursuant to this Court's Decision and Order on Motion Sequence

003; and it is further .

ORDERED 635 Madison Fee Property Owner LLC, Ironwood Realty Corporation,

Richemont North America, Inc., and Montblanc's motion seeking common law indemnification

from Bronxdale Electric Inc. is denied as moot pursuant to this Court's Decision and Order on

Motion Sequence 005; and it is further

ORDERED that within ten days of entry, counsel for Movants shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF.

This constitutes the Decision and Order of the Court.

9/26/2024 DATE HON. MARY V. ROSADO, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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