Aguirre v 635 Madison Fee Prop. Owner LLC 2024 NY Slip Op 33391(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. 424 RECEIVED NYSCEF: 09/26/2024
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. 004 -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
Defendants. ---------------------------------------------------------------------------------X
RICHEMONT NORTH AMERICA, INC. and MONTBLANC, Third-Party Index No. 154132/2021
Plaintiffs,
- 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 004) 197, 198, 199, 200, 201,202,203,204,205,206,207,208,209,210,211,246,251,252,253,277,278,279,282,283,284, 285,286,287,288,289,290,291,309 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Page 1 of 5 Motion No. 004
[* 1] 1 of 5 INDEX NO. 151111/2021 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 09/26/2024
Upon the foregoing documents, Defendant/Second Third-Party Plaintiff Tectonic Builders
Inc. 's ("Tectonic") motion for summary judgment on its claims for contractual indemnification
and common law indemnification against Second Third-Party Defendant Practical Plumbing and
Heating, Inc. ("Practical") is denied.
I. Background
For a more thorough recitation of the facts, the reader is referred to this Court's Decision
and Order on motion sequence 003.
Tectonic seeks summary judgment on its contractual indemnification and common law
indemnification claims against Practical. Tectonic argues that Practical controlled Plaintiff Jean
Aguirre's ("Plaintiff') work which caused his accident and provided Plaintiff with the defective
ladder that caused him to fall. Moreover, Tectonic provides a contract executed between Tectonic
and Practical. In the contract, Practical agreed to indemnify Tectonic for all liability for bodily
injury resulting from the work performed pursuant to the contract. Because Tectonic argues that
Plaintiff was injured as a result of Practical's faulty supervision and instruction of the Plaintiff,
Tectonic argues it is entitled to indemnification pursuant to its contract.
Plaintiff opposed Tectonic's motion and argues that Tectonic has failed to show that it
lacked notice of the defective ladder and has failed to show that it lacked the authority to direct or
control the means and methods of Plaintiffs work. Practical also opposes Tectonic's motion.
Practical argues that Tectonic's witness testified that he was responsible for supervising safety on
the site and holding weekly toolbox meetings with the various subcontractors. Practical argues that
pursuant to Tectonic's Safety Manual, Tectonic had the responsibility to enforce all safety rules
and procedures on the worksite. Moreover, there is testimony that although Tectonic was required
to hold safety meetings, Practical' s witness testified that there were no such meetings held prior to
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Plaintiffs accident. Practical also argues that Tectonic has not and cannot prove which ladder
Plaintiff was using at the time of his accident, or who the owner of that ladder was, since Tectonic
destroyed the ladder on the day of the incident. Practical argues at the very least Tectonic's motion
should be denied as it should not be rewarded for destroying the ladder.
In reply, Tectonic argues that even if it exercised some control over the worksite, the level
of control exercised is insufficient to give rise to liability. It further argues there can be no real
argument that it had notice over any defective condition because the undisputed testimony shows
that the ladder appeared free of defects prior to the Plaintiff ascending it.
II. Discussion
"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
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]).
Although a general contractor may be held absolutely liable for a breach of Labor Law
§ 240(1 ), this does not obviate the right of a general contractor to seek full indemnification from
the party who is responsible for the accident (McCarthy v Turner Const., Inc., 17 NY3d 369
[2011]). To show entitlement to common-law indemnification, a party must show (I) that it has
been held vicariously liable without proof of any negligence or actual supervision on its part, and
(2) that the proposed indemnitor was either negligent or exercised actual supervision or control
151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Page 3 of 5 Motion No. 004
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over the injury-producing work (Naughton v City of New York, 94 AD3d 1 [1st Dept 2012]).
"However, where a triable issue of fact exists regarding the indemnitee's negligence, a conditional
order of summary judgment for contractual indemnification must be denied as premature"
(Spielmann v 170 Broadway NYC LP, 187 AD3d 492,494 [1st Dept 2020]).
Here, there are issues of fact as to Tectonic's negligence which preclude awarding
summary judgment on its claims for indemnification. Tectonic's witness, Joseph Latona ("Mr.
Latona") admitted that he had authority to control the manner and method of subcontractors' work
(NYSCEF Doc. 176:6-15). He testified that he walked around the worksite to ensure
subcontractors were adhering to safety rules (id at 127:15-20). He testified that he conducted
toolbox safety talks (id at 152-153). It was Mr. Latona's decision to destroy ultimately the ladder
which caused Plaintiffs accident (id. at 194). Although Mr. Latona testified that he was not present
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Aguirre v 635 Madison Fee Prop. Owner LLC 2024 NY Slip Op 33391(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. 424 RECEIVED NYSCEF: 09/26/2024
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. 004 -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
Defendants. ---------------------------------------------------------------------------------X
RICHEMONT NORTH AMERICA, INC. and MONTBLANC, Third-Party Index No. 154132/2021
Plaintiffs,
- 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 004) 197, 198, 199, 200, 201,202,203,204,205,206,207,208,209,210,211,246,251,252,253,277,278,279,282,283,284, 285,286,287,288,289,290,291,309 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Page 1 of 5 Motion No. 004
[* 1] 1 of 5 INDEX NO. 151111/2021 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 09/26/2024
Upon the foregoing documents, Defendant/Second Third-Party Plaintiff Tectonic Builders
Inc. 's ("Tectonic") motion for summary judgment on its claims for contractual indemnification
and common law indemnification against Second Third-Party Defendant Practical Plumbing and
Heating, Inc. ("Practical") is denied.
I. Background
For a more thorough recitation of the facts, the reader is referred to this Court's Decision
and Order on motion sequence 003.
Tectonic seeks summary judgment on its contractual indemnification and common law
indemnification claims against Practical. Tectonic argues that Practical controlled Plaintiff Jean
Aguirre's ("Plaintiff') work which caused his accident and provided Plaintiff with the defective
ladder that caused him to fall. Moreover, Tectonic provides a contract executed between Tectonic
and Practical. In the contract, Practical agreed to indemnify Tectonic for all liability for bodily
injury resulting from the work performed pursuant to the contract. Because Tectonic argues that
Plaintiff was injured as a result of Practical's faulty supervision and instruction of the Plaintiff,
Tectonic argues it is entitled to indemnification pursuant to its contract.
Plaintiff opposed Tectonic's motion and argues that Tectonic has failed to show that it
lacked notice of the defective ladder and has failed to show that it lacked the authority to direct or
control the means and methods of Plaintiffs work. Practical also opposes Tectonic's motion.
Practical argues that Tectonic's witness testified that he was responsible for supervising safety on
the site and holding weekly toolbox meetings with the various subcontractors. Practical argues that
pursuant to Tectonic's Safety Manual, Tectonic had the responsibility to enforce all safety rules
and procedures on the worksite. Moreover, there is testimony that although Tectonic was required
to hold safety meetings, Practical' s witness testified that there were no such meetings held prior to
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Plaintiffs accident. Practical also argues that Tectonic has not and cannot prove which ladder
Plaintiff was using at the time of his accident, or who the owner of that ladder was, since Tectonic
destroyed the ladder on the day of the incident. Practical argues at the very least Tectonic's motion
should be denied as it should not be rewarded for destroying the ladder.
In reply, Tectonic argues that even if it exercised some control over the worksite, the level
of control exercised is insufficient to give rise to liability. It further argues there can be no real
argument that it had notice over any defective condition because the undisputed testimony shows
that the ladder appeared free of defects prior to the Plaintiff ascending it.
II. Discussion
"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
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]).
Although a general contractor may be held absolutely liable for a breach of Labor Law
§ 240(1 ), this does not obviate the right of a general contractor to seek full indemnification from
the party who is responsible for the accident (McCarthy v Turner Const., Inc., 17 NY3d 369
[2011]). To show entitlement to common-law indemnification, a party must show (I) that it has
been held vicariously liable without proof of any negligence or actual supervision on its part, and
(2) that the proposed indemnitor was either negligent or exercised actual supervision or control
151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Page 3 of 5 Motion No. 004
3 of 5 [* 3] INDEX NO. 151111/2021 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 09/26/2024
over the injury-producing work (Naughton v City of New York, 94 AD3d 1 [1st Dept 2012]).
"However, where a triable issue of fact exists regarding the indemnitee's negligence, a conditional
order of summary judgment for contractual indemnification must be denied as premature"
(Spielmann v 170 Broadway NYC LP, 187 AD3d 492,494 [1st Dept 2020]).
Here, there are issues of fact as to Tectonic's negligence which preclude awarding
summary judgment on its claims for indemnification. Tectonic's witness, Joseph Latona ("Mr.
Latona") admitted that he had authority to control the manner and method of subcontractors' work
(NYSCEF Doc. 176:6-15). He testified that he walked around the worksite to ensure
subcontractors were adhering to safety rules (id at 127:15-20). He testified that he conducted
toolbox safety talks (id at 152-153). It was Mr. Latona's decision to destroy ultimately the ladder
which caused Plaintiffs accident (id. at 194). Although Mr. Latona testified that he was not present
at the time of the accident, Peter Constantakis, Plaintiff's supervisor, testified that Mr. Latona was
sitting at his desk in the same room where Plaintiff fell (id. at 75:5-7). Although Mr. Latona
testified he knew someone should have been holding the ladder while Plaintiff used it, Peter
testified that he was talking with Mr. Latona while Plaintiff used the ladder, creating an issue of
fact as to whether Mr. Latona knew or should have known Plaintiff was using an unsecured ladder
(id. at 139).
Given these issues of fact and conflicting testimony, granting Tectonic summary judgment
on its claims for common law indemnification and contractual indemnification would be premature
(York v Tappan Zee Constructors, LLC, 224 AD3d 527, 529 [1st Dept 2024]; Bradley v NYU
Langone Hospitals, 223 AD3d 509, 511-512 [1st Dept 2024]; Spielmann v 170 Broadway NYC
LP, 187 AD3d 492 [1st Dept 2020] [where a triable issue of fact exists regarding the indemnitee's
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negligence, a conditional order of summary judgment for contractual indemnification must be
denied as premature]).
Accordingly, it is hereby,
ORDERED that Defendant/Second Third-Party Plaintiff Tectonic Builders Inc. 's motion
for summary judgment on its claims for contractual indemnification and common law
indemnification against Second Third-Party Defendant Practical Plumbing and Heating, Inc. is
denied; and it is further
ORDERED that within ten days of entry, counsel for Practical Plumbing and Heating, Inc.
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.
9126/2024 DATE HJQN. MARY V. ROSADO, J.S.C.
CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION
GRANTED Q DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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