Aguirre v. 635 Madison Fee Prop. Owner LLC

2025 NY Slip Op 30039(U)

Opinion

Aguirre v 635 Madison Fee Prop. Owner LLC 2025 NY Slip Op 30039(U)

January 7, 2025

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.

NYSCEF DOC. NO. 435 RECEIVED NYSCEF: 01/07/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. MARY V. ROSADO PART 33M Justice

,-------------------------------------------------------X 151111/2021 INDEX NO.

JEAN AGUIRRE,

MOTION DATE 06/03/2024 Plaintiff,

MOTION SEQ. NO. 007 - V -

635 MADISON FEE PROPERTY OWNER LLC,TECTONIC BUILDERS INC.,BRONXDALE ELECTRIC INC.,IRONWOOD DECISION + ORDER ON

REAL TY CORPORATION, RICHEMONT NORTH AMERICA, INC., MONTBLANC, MOTION

Defendant.

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RICHEMONT NORTH AMERICA, INC. and MONTBLANC

Plaintiffs, Third-Party Index No. 154132/2021

- V -

TECTONIC BUILDERS INC.

Defendant.

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

Plaintiff,

-against-

PRACTICAL PLUMBING AND HEATING INC.

Defendant.

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The following e-filed documents, listed by NYSCEF document number (Motion 007) 346, 347, 348, 349, 350,351,352,353,354,355,356,357,358,359,360,361,362,363,364,365,366,367,368,369,370, 371,372,373,374,375,376,377,378,379,380,381,382,383,384,385,386,387,388,389,401,402, 403,404,405,406,407,408,411,412,413,414,415,416,417,418,419,420,421,422 were read on this motion to/for JUDGMENT - SUMMARY

Upon the foregoing documents, and after a final submission date August 12, 2024, Second Third-Party Defendant Practical Plumbing and Heating Inc.'s ("Practical") motion for summary

judgment is granted in part and denied in part. 15111112021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Page 1 of 4 Motion No. 007

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NYSCEF DOC. NO. 435 RECEIVED NYSCEF: 01/07/2025

For a more thorough recitation of the facts, the reader is referred to the Court's Decision and Order on Motion Sequence 003. Here, Practical seeks summary judgment on multiple grounds against multiple parties. 1 First, Practical seeks summary judgment dismissing all claims and crossclaims asserted against it pursuant to Workers' Compensation Law § 11. This portion of the motion is denied for the reasons stated in Motion Sequence 002. Just as in Motion Sequence 002, here there are triable issues of fact as to whether Plaintiff Jean Aguirre's ("Plaintiff'') traumatic brain injury has led to his permanent and total disability.

Second, Practical seeks summary judgment dismissing Bronxdale Electric, Inc.' s ("Bronxdale") claim for contractual indemnification as there exists no contract between the parties. This portion of the motion is granted as there is no contract between Bronxdale and Practical.

Third, Practical seeks summary judgment dismissing 635 Madison Fee Property Owner, LLC, Ironwood Realty Corporation, Richemont North America, Inc., and Montblanc's claims for contractual indemnification. This portion of the motion is denied as the Court has already found in motion sequence 002 that these parties are entitled to contractual indemnification from Practical.

Fourth, Practical seeks dismissal of Tectonic Builders Inc.'s ("Tectonic") claim for contractual indemnification. For the same reasons stated in motion sequence 004, this portion of the motion is denied. Just as in motion sequence 004, here there are triable issues of fact as to both Tectonic' sand Practical' s negligence which makes ruling on the contractual indemnification claim premature (York v Tappan Zee Constructors, LLC, 224 AD3d 527, 529 [1st Dept 2024]; Bradley

1

Second Third-Party Defendant Tectonic Builders Inc. opposes the motion based on its timeliness. However, in the interest of deciding the case on the merits, and pursuant to CPLR 2004, the Court elects to hear the motion. In any event, most if not all of the issues presented in this motion have already been litigated and decided in the parties' numerous other motions and cross-motions for summary judgment.

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Page 2 of 4 Motion No. 007

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NYSCEF DOC. NO. 435 RECEIVED NYSCEF: 01/07/2025

v NYU Langone Hospitals, 223 AD3d 509, 511-512 [1st Dept 2024]; Spielmann v 170 Broadway NYC LP, 187 AD3d 492 [1st Dept 2020]).

Finally, Practical seeks spoliation sanctions against Tectonic for its destruction of the ladder which caused Plaintiff's injury. The Court is granted broad discretion in determining spoliation sanctions, but the sanction must reflect an appropriate balancing under the circumstances (Arbor Realty funding, LLC v Herrick Feinstein LLP, 140 AD3d 607 [1st Dept 2016]). A motion court, may, in its discretion, defer to a trial court a determination of "whether or what sanction to impose" (AIG Property Casualty Co. v MTS Power Systems, 231 AD3d 591 [1st Dept 2024] quoting Butler v New York City Tr. Auth., 192 AD3d 623,624 [1st Dept 2021]).

Here, the Court denies Practical's motion for spoliation sanctions without prejudice, with leave to renew at the time of trial. The trial court, assessing the evidence and witnesses before it, is better situated to determine the relevance of the allegedly spoliated evidence, and the culpability of the allegedly spoliating party (see also Quinn v City University ofNew York, 43 AD3d 679,680 [1st Dept 2007]).

Accordingly, it is hereby, ORDERED that Second Third-Party Defendant Practical Plumbing and Heating Inc.'s motion is granted in part and denied in part; and it is further ORDERED that Second Third-Party Defendant Practical Plumbing and Heating Inc. 's motion for summary judgment dismissing Defendant Bronxdale Electric Inc. 's motion seeking dismissal of Bronxdale Electric Inc.' s motion for contractual indemnification is granted; and it is further

ORDERED that Second Third-Party Defendant Practical Plumbing and Heating Inc.'s motion for spoliation sanctions against Defendant/Third-Party Defendant/Second Third-Party

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Page 3 of 4 Motion No. 007

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NYSCEF DOC. NO. 435 RECEIVED NYSCEF: 01/07/2025

Plaintiff Tectonic Builders Inc.'s is denied, without prejudice, with leave to renew at the time of trial, and it is further

ORDERED that Second Third-Party Defendant Practical Plumbing and Heating Inc.' s motion seeking dismissal of all claims and crossclaims asserted against it pursuant to Workers ' Compensation Law § 11 is denied; and it is further ORDERED that Second Third-Party Defendant Practical Plumbing and Heating Inc. ' s motion seeking dismissal 635 Madison Fee Property Owner, LLC, Ironwood Realty Corporation, Richemont North America, Inc. , and Montblanc ' s claims for contractual indemnification is denied; and it is further

ORDERED Second Third-Party Defendant Practical Plumbing and Heating Inc.' s motion seeking dismissal of Defendant/Third-Party Defendant/Second Third-Party Plaintiff Tectonic Builders Inc. 's claim for contractual indemnification is denied; and it is further ORDERED that within ten days of entry, counsel for Second Third-Party Defendant Practical Plumbing and Heating Inc.' s 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.

1/7/2025

DATE HON. M RY 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

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Page 4 of 4 Motion No. 007

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