Coronato v. The City of New York

2025 NY Slip Op 32167(U)

• Court: New York Supreme Court, New York County
• Decided: June 16, 2025
• Docket: Index No. 157637/2016
• Status: Unpublished

Opinion

Coronato v The City of New York 2025 NY Slip Op 32167(U) June 16, 2025 Supreme Court, New York County Docket Number: Index No. 157637/2016 Judge: Carol Sharpe 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. FILED: NEW YORK COUNTY CLERK 06/17/2025 11:04 AM INDEX NO. 157637/2016 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/17/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. CAROL SHARPE PART 52M Justice ---------X INDEX NO. 157637/2016 LORI VICTORIA CORONATO, MOTION DATE 08/02/2024 Plaintiff, MOTION SEQ. NO. 002 - V -

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, TRIUMPH DECISION + ORDER ON CONSTRUCTION CORP., B THAYER ASSOCIATES, CON MOTION EDISON,

Defendant.

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The following e-filed documents, listed by NYSCEF document number (Motion 002) 91, 92, 93, 94, 95, 96, 97, 98, 99,100,101,102,103,104,1 05,106,107,108,109,110,1 11,112,113,114,115,116,1 17, 118, 119 were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents and following oral arguments, defendant Con Edison's

motion for summary judgment is granted as to contractual indemnification and denied as to

common law indemnification. Defendant The City of New York ("The City") and plaintiff did not

file opposition.

Plaintiff, Lori Victoria Coronato, commenced this action against The City, by filing a

Summons and Complaint on September 13, 2016, alleging that on February 1, 2016, she tripped

and fell on uneven pavement in vicinity of 157 East 86th Street between Lexington and Third

Avenues, New York, New York. Issue was joined by service of The City's answer on September

26, 2016. Plaintiff subsequently filed a separate action against defendants Triumph Construction

Corp. ("Triumph"), B. Thayer Associates ("B. Thayer"), and Con Edison in Bronx County on

February 1, 2019, Index No. 21371/2019E. Issue was joined in that action by the filing of

Triumph's, B. Thayer's, and Con Edison's answers on March 1, 2019, May 15, 2019, and June 7,

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2019, respectively. By Order dated February 26, 2021, the two actions were consolidated under

Index No. 157637/2016. Pursuant to a stipulation dated April 6, 2022, the action against B. Thayer

was discontinued.

Defendant Con Edison filed the instant motion seeking summary judgment against

Triumph for contractual and common law indemnification pursuant to CPLR §3212. Triumph filed

opposition to the motion, to which Con Edison filed a reply and a supplemental affirmation in

support of the motion.

In support of its motion, Con Edison submitted, among other exhibits; plaintiffs 50-h

hearing and deposition transcripts; photographs; Triumph's records; and the contract between Con

Edison and Triumph. The contract between Con Edison and Triumph was for the period from May

15, 2013, through May 16, 2016 ("Contract"). The scope of work to be performed under the

Contract by Triumph, as a subcontractor of Con Edison, included excavations of the roadway and

"full top roadway final restoration per NYC DOT guidelines" (NYSCEF Doc. #92, ifl3). The

indemnification provision in the Contract reads, in pertinent part:

"To the fullest extent allowed by law, Contractor [Triumph] agrees to defend, indemnify and hold harmless Con Edison and its affiliates (including, but not limited to, O&R) and their respective trustees, · directors, officers, employees, agents, representatives, successors and assigns from and against all claims, damage, loss and liability, including costs and expenses, legal and otherwise, for injury to or the death of persons, or damage to property, including the property of Con Edison or O&R, and statutory or administrative fines, penalties or forfeitures resulting in whole or in part from, or connected with, the performance of the Work by Contractor any subcontractor or their respective agents, servants, employees or representatives, and including claims, loss, damage and liability arising from the partial or sole negligence of Con Edison or non-parties to the Contract (including, but not limited to, O&R) ... " (NYSCEF Doc. #100, Page 37, ,r 36)

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Con Edison contends that Triumph was the subcontractor that performed work in the area

prior to Ms. Coronato's incident, therefore, the indemnification provision of the Contract is

triggered, and Triumph should be responsible for defending and indemnifying Con Edison in this

action. Con Edison stated that in a letter it received from Triumph dated May 23, 2023, Triumph

agreed to defend Con Edison in this matter, subject to a reservation of rights in the event it is

determined the cause of action did not arise out of Triumph's work (NYSCEF Doc. #92, ,rt 8).

In opposition, Triumph argues that while the indemnification provision in the Contract is

clear and unambiguous that it must indemnify Con Edison if a claim arises in whole or in part

from, or connected with, Triumph's work, even if there is some negligence on Con Edison's part,

Con Edison has failed to prove that the trench in the roadway where Ms. Coronato alleges she

injured herself was a defect caused by or connected with Triumph's work.

In support of its opposition, Triumph submitted, among other documents, The City's

records and transcript of its witness, and Triumph's records and the transcript of its witness. John

McCann testified that he is a supervisor for Triumph Construction and that the paperwork shows

that Triumph did three jobs for Con Edison in the area until June 12, 2015. He testified that there

was excavation and a final restoration of a trench measuring 50 feet long and 3 feet wide. Triumph

would lay the asphalt, and the paving contractor would finish by sealing and all the things to finish

the job. Mr. Mccann could not tell from records and photographs where Triumph performed its

work relative to the place of the accident.

The City's records, which included photographs, and the testimony of the witness, David

Dorce, a record searcher and testifier employed by the New York City Department of

Transportation ("DOT"), established that a complaint was made via a 311 call about an area in the

vicinity of East 86th Street between Lexington and Third Avenues that was lower than the roadway

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surface after it was repaved. Mr. Dorce also testified regarding violations that were issued at the

jobsite. The City's records showed that in March of 2015 Con Edison received a violation for

barricades left on the sidewalk in front of 151 East 86th Street that were marked "SMC," and that

The City was made aware of a defect in the road in the same area as the incident in December

2024, and subsequently repaired and repaved a 90-foot trench in February of 2016, after the

plaintiffs accident. Triumph contends that the summary judgment motion must be denied as The

City would not have remedied the defect caused by a subcontractor or other entity, and that without

clear evidence as to who performed the work that caused plaintiffs alleged injuries, the

indemnification provision in the contract has not been triggered.

"The proponent of a motion for summary judgment must demonstrate that there are no

material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-

Stephenson v. Waisman, 39 A.D.3d 303,306, 833 N.Y.S.2d 89 (1 st Dept. 2007), citing Winegrad

v. New York Univ. Med. Center, 64 N.Y.2d 851,853,487 N.Y.S.2d 316,476 N.E.2d 642 (1985).

"Failure to make such prima facie showing requires a denial of the motion, regardless of the

sufficiency of the opposing papers." Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 501 N.E.2d

572, 508 N.Y.S.2d 923 (1986). If the proponent makes the required prima facie showing, the

burden then shifts to the opposing party, who must proffer evidence in admissible form

establishing that an issue of fact exists warranting a trial. CPLR §3212(b); Zuckerman v. City of

New York, 49 N.Y.2d 557 (1980); Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 733 N.E.2d

203, 711 N.Y.S.2d 131 (2000).

"It is well established that summary judgment may not be granted whenever the pleadings

raise clear, well-defined and genuine issues." Falk v. Goodman, 7 N.Y.2d 87, 89, 163 N.E.2d 871,

195 N. Y.S.2d 645 (1959). Upon a motion for summary judgment, the role of the court is issue

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finding, not issue determination. Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 965 N.E.2d 240,

942 N.Y.S.2d 13 (2012); Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 144

N.E.2d 387, 165 N.Y.S.2d 498 (1957); Esteve v. Abad, 271 A.D. 725, 727, 68 N.Y.S.2d 322 (1s t

Dept. 194 7). The motion should be denied where different conclusions can reasonably be drawn

from the evidence. Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 593 N.E.2d 1365, 583

N. Y.S.2d 957 (1992). All of the evidence must be viewed in the light most favorable to the party

opposing the motion, and all reasonable inferences must be resolved in that party's favor. Udoh v.

Inwood Gardens, Inc., 70 A.D.3d 563, 897 N.Y.S.2d 12 (1 st Dept. 2010). Issues of credibility are

to be resolved at trial, not by summary judgment. Castillo v. New York City Tr. Auth., 69 A.D.3d

487, 891 N.Y.S.2d 645 (1s t Dept. 2010).

For a summary judgment motion to be denied, the non-moving party must provide evidence

showing that triable issues of fact exist. Such evidence must be convincing and reliable, and cannot

be speculation, conjecture or conclusory. See, Mal/ad Constr. Corp. v. Cty. Fed. Sav. & Loan

Ass'n, 32 N.Y.2d 285, 344 N.Y.S.2d 925, 929, 298 N.E.2d 96 (1973); Freedman v. Chem. Constr.

Corp., 43 N.Y.2d 260,264,401 N.Y.S.2d 176,179,372 N.E.2d 12,14 (1977)("[I]t is elementary

that conclusory assertions will not defeat summary judgment. The opponent of a properly made

summary judgment motion must present evidentiary facts sufficient to raise a triable issue of

fact ... "). If there are no material triable issues of fact, summary judgment must be granted. See,

Sillman, 3 N. Y.2d at 404.

Succeeding on a summary judgment motion for contractual indemnification is dependent

upon the specific language in the contract, which should be clear and unambiguous as to the intent

of the parties. "The promise [to indemnify] should not be found unless it can be clearly implied

from the language and purpose of the entire agreement and the surrounding circumstances ... "

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N.E.2d 903, 905 (1989). The contractual language "must be strictly construed to avoid reading

into it a duty which the parties did not intend to be assumed." Id. at 491. "Where a person is under

no legal duty to indemnify, his contract assuming that obligation must be strictly construed."

Levine v. Shell Oil Co., 28 N.Y.2d 205,211,321 N.Y.S.2d 81,269 N.E.2d 799 (1971). "When the

intent is clear, an indemnification agreement will be enforced even if it provides indemnity for

one's own or a third party's negligence." Bradley v. Earl B. Feiden, Inc., 8 N.Y.3d 265, 275, 64

N.E.2d 600, 832 N.Y.S.2d 470, (2007). Here, Con Edison established that the indemnification

language in the Contract clearly stated the intention of the parties, which is that Triumph will

indemnify Con Edison from any action arising out of the work performed by Triumph under the

contract, whether Con Edison's negligence contributed to plaintiffs injuries or not. Triumph has

not met its burden to provide sufficient evidence to show that the contract language is ambiguous,

or that the language does not reflect the intent of the parties.

"To be entitled to common-law indemnification, a party must show: (1) 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 over

the injury-producing work." Naughton v. City of NY, 94 A.D.3d 1, 6, 940 N.Y.S.2d 21, 25 (1 st

Dept. 2012). "[I]n the case of common-law indemnification, the one seeking indemnity must prove

not only that it was not guilty of any negligence beyond the statutory liability but must also prove

that the proposed indemnitor was guilty of some negligence that contributed to the causation of

the accident for which the indemnitee was held liable to the injured party by virtue of some

obligation imposed by law ... " Correia v. Prof! Data Mgmt., Inc., 259 A.D.2d 60, 65, 693

N.Y.S.2d 596, 600 (Pt Dept. 1999). See also, Ramirez v. A/mah, LLC, 169 A.D.3d 508, 94

N.Y.S.3d 38 (1 st Dept. 2011). Here, Con Edison is not entitled to common-law indemnification as

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it failed to establish that Triumph was negligent in its performance of the work under the Contract

and that such negligence was the proximate cause of plaintiff's injury. Furthermore, Triumph

raised several triable issues of material fact, including whether another contractor worked in the

area after they did.

Accordingly, it is hereby:

ORDERED, that Con Edison's motion for summary judgment is granted in part, in that

Triumph is contractually obligated to indemnify Con Edison in this matter; and it is further

ORDERED, that the branch of Con Edison's motion for summary judgment for common

law indemnification is denied.

This constitutes the Decision and Order of the Court.

ENTER:

June 16, 2025 DATE

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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