Diaz v New Water St. Corp. 2024 NY Slip Op 33665(U) October 16, 2024 Supreme Court, New York County Docket Number: Index No. 157308/2019 Judge: Lyle E. Frank 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. 157308/2019 NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 10/16/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 157308/2019 JUAN DIAZ, 04/29/2024, MOTION DATE 04/29/2024 Plaintiff,
- V - MOTION SEQ. NO. _ _0_05_00_6_ _
NEW WATER STREET CORP., EMBLEM HEALTH SERVICES COMPANY LLC, DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X
NEW WATER STREET CORP., EMBLEM HEALTH Third-Party SERVICES COMPANY LLC Index No. 595845/2021
Plaintiff,
-against-
PJ MECHANICAL SERVICE & MAINTENANCE CORP., DELTA SHEET METAL CORP., AND
Defendant. -------------------------------------------------------------------------------- X
The following e-filed documents, listed by NYSCEF document number (Motion 005) 161, 162, 163, 164, 165,166,167,168,169,170,171,172,173,174,175,176,177,178,179,180,181,182,183,184,185, 186,187,188,189,190,191,192,193,194,195,196,197,198,199,200,201,202,203,204,206,207, 208, 211 were read on this motion to/for JUDGMENT-SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 006) 136, 137, 138, 139, 140,141,142,143,144,145,146,147,148,149,150,151,152,153,154,155,156,157,158,159, 160, 205,209,210 were read on this motion to/for JUDGMENT-SUMMARY
This action arises out of injuries allegedly sustained by plaintiff, while employed by
Delta Sheet Metal Corp. Third-party defendants, PJ Mechanical Service & Maintenance Corp.
("PJ Mechanical"), PJ Mechanical Service & Maintenance LLC ("PJ Mechanical LLC"), Delta
157308/2019 Motion No. 005 006 Page 1 of 7
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Sheet Metal Corp. ("Delta") and Delta Sheet Metal LLC ("Delta LLC") 1 move for summary
judgment, motion sequence 005, seeking dismissal of the third-party complaint in its entirety.
Third-party plaintiffs, New Water Street Corp. and Emblem Health Services Company LLC,
oppose the instant motion and separately move for summary judgment, motion sequence 006, on
its claims. For the reasons set forth below, third-party defendants' motion for summary
judgment is granted and third-party plaintiffs' motion for summary judgment is denied.
Summary Judgment Standard
It is a well-established principle that the "function of summary judgment is issue finding,
not issue determination." Assaf v Ropog Cab Corp., 153 AD2d 520, 544 [1st Dept 1989]. As
such, the proponent of a motion for summary judgment must tender sufficient evidence to show
the absence of any material issue of fact and the right to entitlement to judgment as a matter of
law. Alvarez v Prospect Hospital, 68 NY2d 320, 501 [1986]; Winegrad v New York University
Medical Center, 64 NY 2d 851 [1985]. Courts have also recognized that summary judgment is a
drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a
motion for summary judgment is entitled to all favorable inferences that can be drawn from the
evidence submitted.
Discussion
Plaintiff was employed by Delta Sheet Metal on the date of the accident. Plaintiff was
engaged in what he described as cut and cap work, which requires cutting the ductwork and then
patching it to close it up. See NYSCEF Doc. 181. Plaintiff had just finished making a cut to the
ductwork when the accident occurred. Id.
1 Neither third-party defendant PJ Mechanical LLC, nor Delta LLC, have appeared in this action, thus the motion for summary judgment against these entities is denied. See CPLR 157308/2019 Motion No. 005 006 Page 2 of 7
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Defendants/third-party plaintiffs commenced a third-party action against third-party
defendants PJ Mechanical, and Delta asserting causes of action for contribution, common law
and contractual indemnification, breach of contract for failure to procure necessary insurance,
and recovery of attorneys' fees and costs incurred in the defense of this action.
Third-party plaintiffs' main contention in support of its motion for summary judgment is
that since plaintiffs incident arose out of his work for Delta Sheet Metal, who was performing
work for PJ Mechanical, and that defendants/third-party plaintiffs were not responsible for
plaintiffs alleged injuries, they are entitled to summary judgment on their claims and dismissal
of PJ Mechanical and Delta Sheet Metal's claims against them. The Court disagrees with this
contention. Plaintiff has already sought and been granted summary judgment as to its claims
pursuant to Labor Law§ 240 (1), thus the issue of the movants' culpability has been determined.
In opposition to third-party plaintiffs' motion and in support of its motion for summary
judgment, third- party defendant, PJ Mechanical, contends that for two reasons the contractual
indemnification clause as against it fail as a matter oflaw. First, the contract between it and
Emblem does not contain the "savings language" as required by General Obligations Law § 5-
322.1 and notwithstanding that deficiency, third-party plaintiffs contend that Delta, not PJ
Mechanical, was negligent. Further, third-party defendant Delta contends that any claims
asserted against it are barred by the Worker's Compensation Law and that it was not a party to
any contract with the third-party plaintiffs.
Separately, third-party plaintiffs contend that based on its contract with PJ Mechanical, to
indemnify the movants from all liabilities that arise out of any act by PJ Mechanical, "its
employees, agents, servants, representatives or independent contractors in the performance of
Vendor's services hereunder [ ... ]" third-party defendant's Delta Sheet Metal's status as a
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subsidiary of PJ Mechanical makes them an agent pursuant to the contract, thus triggering the
indemnification clause.
In support of the argument that Delta Sheet Metal is a subsidiary of PJ Mechanical, and
thus an agent, movants cite to an email that states "It is my understanding that Delta Sheet Metal
is scheduled to be on site this weekend." See NYSCEF Doc. 159. The Court finds that this is
insufficient to establish an agency relationship between PJ Mechanical and Delta.
Claims asserted as against Delta Sheet Metal
Preliminarily, the Court notes that third-party plaintiffs and Delta Sheet Metal did not
have a contractual relationship, thus third-party plaintiffs cannot obtain contractual
indemnification from Delta Sheet Metal. Nor is it disputed that there was no contract between PJ
Mechanical and Delta, such as an agency agreement or subcontracting agreement by which third-
party plaintiffs would be entitled to indemnification.
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Diaz v New Water St. Corp. 2024 NY Slip Op 33665(U) October 16, 2024 Supreme Court, New York County Docket Number: Index No. 157308/2019 Judge: Lyle E. Frank 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. 157308/2019 NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 10/16/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 157308/2019 JUAN DIAZ, 04/29/2024, MOTION DATE 04/29/2024 Plaintiff,
- V - MOTION SEQ. NO. _ _0_05_00_6_ _
NEW WATER STREET CORP., EMBLEM HEALTH SERVICES COMPANY LLC, DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X
NEW WATER STREET CORP., EMBLEM HEALTH Third-Party SERVICES COMPANY LLC Index No. 595845/2021
Plaintiff,
-against-
PJ MECHANICAL SERVICE & MAINTENANCE CORP., DELTA SHEET METAL CORP., AND
Defendant. -------------------------------------------------------------------------------- X
The following e-filed documents, listed by NYSCEF document number (Motion 005) 161, 162, 163, 164, 165,166,167,168,169,170,171,172,173,174,175,176,177,178,179,180,181,182,183,184,185, 186,187,188,189,190,191,192,193,194,195,196,197,198,199,200,201,202,203,204,206,207, 208, 211 were read on this motion to/for JUDGMENT-SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 006) 136, 137, 138, 139, 140,141,142,143,144,145,146,147,148,149,150,151,152,153,154,155,156,157,158,159, 160, 205,209,210 were read on this motion to/for JUDGMENT-SUMMARY
This action arises out of injuries allegedly sustained by plaintiff, while employed by
Delta Sheet Metal Corp. Third-party defendants, PJ Mechanical Service & Maintenance Corp.
("PJ Mechanical"), PJ Mechanical Service & Maintenance LLC ("PJ Mechanical LLC"), Delta
157308/2019 Motion No. 005 006 Page 1 of 7
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Sheet Metal Corp. ("Delta") and Delta Sheet Metal LLC ("Delta LLC") 1 move for summary
judgment, motion sequence 005, seeking dismissal of the third-party complaint in its entirety.
Third-party plaintiffs, New Water Street Corp. and Emblem Health Services Company LLC,
oppose the instant motion and separately move for summary judgment, motion sequence 006, on
its claims. For the reasons set forth below, third-party defendants' motion for summary
judgment is granted and third-party plaintiffs' motion for summary judgment is denied.
Summary Judgment Standard
It is a well-established principle that the "function of summary judgment is issue finding,
not issue determination." Assaf v Ropog Cab Corp., 153 AD2d 520, 544 [1st Dept 1989]. As
such, the proponent of a motion for summary judgment must tender sufficient evidence to show
the absence of any material issue of fact and the right to entitlement to judgment as a matter of
law. Alvarez v Prospect Hospital, 68 NY2d 320, 501 [1986]; Winegrad v New York University
Medical Center, 64 NY 2d 851 [1985]. Courts have also recognized that summary judgment is a
drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a
motion for summary judgment is entitled to all favorable inferences that can be drawn from the
evidence submitted.
Discussion
Plaintiff was employed by Delta Sheet Metal on the date of the accident. Plaintiff was
engaged in what he described as cut and cap work, which requires cutting the ductwork and then
patching it to close it up. See NYSCEF Doc. 181. Plaintiff had just finished making a cut to the
ductwork when the accident occurred. Id.
1 Neither third-party defendant PJ Mechanical LLC, nor Delta LLC, have appeared in this action, thus the motion for summary judgment against these entities is denied. See CPLR 157308/2019 Motion No. 005 006 Page 2 of 7
2 of 7 [* 2] INDEX NO. 157308/2019 NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 10/16/2024
Defendants/third-party plaintiffs commenced a third-party action against third-party
defendants PJ Mechanical, and Delta asserting causes of action for contribution, common law
and contractual indemnification, breach of contract for failure to procure necessary insurance,
and recovery of attorneys' fees and costs incurred in the defense of this action.
Third-party plaintiffs' main contention in support of its motion for summary judgment is
that since plaintiffs incident arose out of his work for Delta Sheet Metal, who was performing
work for PJ Mechanical, and that defendants/third-party plaintiffs were not responsible for
plaintiffs alleged injuries, they are entitled to summary judgment on their claims and dismissal
of PJ Mechanical and Delta Sheet Metal's claims against them. The Court disagrees with this
contention. Plaintiff has already sought and been granted summary judgment as to its claims
pursuant to Labor Law§ 240 (1), thus the issue of the movants' culpability has been determined.
In opposition to third-party plaintiffs' motion and in support of its motion for summary
judgment, third- party defendant, PJ Mechanical, contends that for two reasons the contractual
indemnification clause as against it fail as a matter oflaw. First, the contract between it and
Emblem does not contain the "savings language" as required by General Obligations Law § 5-
322.1 and notwithstanding that deficiency, third-party plaintiffs contend that Delta, not PJ
Mechanical, was negligent. Further, third-party defendant Delta contends that any claims
asserted against it are barred by the Worker's Compensation Law and that it was not a party to
any contract with the third-party plaintiffs.
Separately, third-party plaintiffs contend that based on its contract with PJ Mechanical, to
indemnify the movants from all liabilities that arise out of any act by PJ Mechanical, "its
employees, agents, servants, representatives or independent contractors in the performance of
Vendor's services hereunder [ ... ]" third-party defendant's Delta Sheet Metal's status as a
157308/2019 Motion No. 005 006 Page 3 of 7
3 of 7 [* 3] INDEX NO. 157308/2019 NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 10/16/2024
subsidiary of PJ Mechanical makes them an agent pursuant to the contract, thus triggering the
indemnification clause.
In support of the argument that Delta Sheet Metal is a subsidiary of PJ Mechanical, and
thus an agent, movants cite to an email that states "It is my understanding that Delta Sheet Metal
is scheduled to be on site this weekend." See NYSCEF Doc. 159. The Court finds that this is
insufficient to establish an agency relationship between PJ Mechanical and Delta.
Claims asserted as against Delta Sheet Metal
Preliminarily, the Court notes that third-party plaintiffs and Delta Sheet Metal did not
have a contractual relationship, thus third-party plaintiffs cannot obtain contractual
indemnification from Delta Sheet Metal. Nor is it disputed that there was no contract between PJ
Mechanical and Delta, such as an agency agreement or subcontracting agreement by which third-
party plaintiffs would be entitled to indemnification.
As to the common law indemnification claims as against the Delta Sheet Metal third-
party defendants, these claims must also fail. It is undisputed that Delta Sheet Metal was
plaintiffs employer, thus any direct claims or third-party claims as against Delta are barred by
the Workers' Compensation Law. As it pertains to claims made by third parties the Workers'
Compensation Law provides
"An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a 'grave injury."'
Workers' Compensation Law§ 11.
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Here, plaintiff has not made any allegation that he suffered a grave injury, nor has the
third-party plaintiffs submitted "competent medical evidence" of a grave injury, thus any causes
of action asserted by third-party plaintiffs fail as a matter of law. Accordingly, the third-party
complaint is dismissed in its entirety as to third-party defendants Delta Sheet Metal Corp.
Claims asserted as against PJ Mechanical
Third-party plaintiffs' assert that the contract between Emblem Health and PJ
Mechanical, entitle both third-party plaintiffs to contractual indemnification. First, third-party
plaintiff New Water was not a party to the contract, nor was it named at all in the contract, either
by name or implication as the owner. Based on that reason alone, third-party plaintiff New
Water's claims of contractual indemnification are dismissed.
Third-party plaintiffs allege, in a conclusory fashion, that Delta was performing work
pursuant to the agreement between PJ Mechanical and Emblem Health. Third-party plaintiffs'
fail to cite to any support for that contention. Third-party plaintiffs do not specify what portion
of its contract with PJ Mechanical govern the work being performed by plaintiff. Other than
citing the indemnification language of the contract, third-party plaintiffs do not establish that the
contract between it and PJ Mechanical includes the services that were being performed by Delta
Sheet Metal through its employee, the plaintiff.
In opposition to third-party plaintiffs' motion and in support of its motion, PJ Mechanical
contends that its contract is for the maintenance of the HVAC system and not the work that was
being done by Delta, removal of ductwork. Further, PJ Mechanical contends that pursuant to
General Obligations Law § 5-322.1 the indemnity clause in the contract is void since Emblem
cannot establish that it was free from any negligence. Third-party plaintiffs' do not oppose this
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legal argument, rather they contend, contrary to the law of the case, that there can be no
negligence attributed to them, this argument must fail.
The Court finds that movants have failed to establish that it is entitled to contractual
indemnification from the third-party defendant PJ Mechanical. The plain language of the
contract, specifically the portion entitled "Scope of Work" does not include cutting or capping
ductwork, and is plainly for the inspection, maintenance, and incidental repairs of the HVAC
system, not related to the construction taking place at the time of plaintiffs accident. Moreover,
as to the common law indemnification claims, it is undisputed that PJ Mechanical was not on site
at the time of the plaintiffs accident. Although the conclusory allegation that plaintiffs accident
arose out of PJ Mechanical's work, third-party plaintiffs have failed to submit any admissible
evidence to support that allegation.
As there is no contract governing the work Delta was performing, there can be no viable
claim for a breach of contract for a failure to procure insurance. Accordingly, those claims are
dismissed. As to the counterclaims asserted by the third-party defendants, those claims are
dismissed as a matter oflaw as a result of the dismissal of the third-party complaint.
Accordingly, it is hereby
ADJUDGED that third-party plaintiffs' motion for summary judgment, motion sequence
006, is denied in its entirety; and it is further
ORDERED that the third-party defendants', PJ Mechanical Service & Maintenance Corp.
and Delta Sheet Metal Corp, motion for summary judgment is granted in its entirety and the
third-party complaint is dismissed in its entirety as against those third-party defendants; and it is
further
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ORDERED that pursuant to CPLR § 3215 (c) the third-party complaint is dismissed as
against PJ Mechanical Service & Maintenance LLC, and Delta Sheet Metal LLC; and it is further
ORDERED that the third-party action is severed, and the action shall continue under the
original index number; and it is further
ORDERED that the Clerk is directed to enter judgment according!
10/16/2024 DATE LYLE E. FRANK, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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