Lam Pearl St. Hotel, LLC v Anthony T. Rinaldi, LLC 2025 NY Slip Op 30191(U) January 16, 2025 Supreme Court, New York County Docket Number: Index No. 159507/2021 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. [FILED: NEW YORK COUNTY CLERK 01/16/2025 12 :46 PM] INDEX NO. 159507/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 01/16/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO PART 33M Justice -----------------------------X INDEX NO. 159507/2021 LAM PEARL STREET HOTEL, LLC,ENDURANCE MOTION DATE 02/28/2024 AMERICAN INSURANCE COMPANY, AS SUBROGEE OF LAM PEARL STREET HOTEL, LLC AND REAL HOSPITALITY GROUP, LLC, 00_4_ __ MOTION SEQ. NO. _ _ _
Plaintiff,
- V- DECISION + ORDER ON ANTHONY T. RINALDI, LLC,THE RINALDI GROUP, MOTION LLC,MAIN ELECTRICAL SERVICES, INC,
Defendant. ---------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 59, 60, 61, 62, 63, 64,65, 66, 67,68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 98, 99 were read on this motion to/for PARTIAL SUMMARY JUDGMENT
Upon the foregoing documents, and after oral argument, which took place on September
10, 2024, where Glenn Mattar, Esq. appeared for Plaintiffs Lam Pearl Street Hotel, LLC ("Lam
Pearl") and Endurance American Insurance Company, as subrogee of Lam Pearl Street Hotel, LLC
and Real Hospitality Group, LLC (collectively "Plaintiffs"), Susan Mahon, Esq. appeared for
Defendants Anthony T. Rinaldi, LLC and the Rinaldi Group, LLC (collectively "Rinaldi
Defendants"), and Larry H. Lum, Esq. appeared for Defendant Main Electrical Services, Inc.
("Main Electrical"), the Rinaldi Defendants' motion for partial summary judgment dismissing
Plaintiffs negligence and gross negligence claims, and seeking summary judgment on its
crossclaims against Main Electrical for contractual indemnification and failure to procure
insurance is granted in part and denied in part.
159507/2021 LAM PEARL STREET HOTEL, LLC ET AL vs. ANTHONY T. RINALDI, LLC ET AL Page 1 of 5 Motion No. 004
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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. In this motion, the Rinaldi Defendants seek partial summary
judgment dismissing Plaintiffs' negligence and gross negligence claims. The Rinaldi Defendants
argue that since they entered a contract to perform construction services with Lam Pearl, Plaintiffs'
remedy lies solely in breach of contract. The Rinaldi Defendants also rely on an indemnification
clause in the subcontract it executed with Main Electrical to seek summary judgment on their
contractual indemnification cross claims against Main Electrical. Finally, the Rinaldi Defendants
argue that they are entitled to their failure to procure insurance claim against Main Electrical.
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
cvidentiary 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]).
B. Plaintiffs' Negligence and Gross Negligence Claims
The Rinaldi Defendants' motion seeking dismissal of Plaintiffs' negligence and gross
negligence claims is denied. The Court of Appeals has identified cases such as this one as
"borderland situations ... where the parties' relationship initially is formed by contract, but there is
159507/2021 LAM PEARL STREET HOTEL, LLC ET AL vs. ANTHONY T. RINALDI, LLC ET AL Page 2 of 5 Motion No. 004
2 of 5 [* 2] [FILED: NEW YORK COUNTY CLERK 01/16/2025 12 :46 PM] INDEX NO. 159507/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 01/16/2025
a claim that the contract was performed negligently." (Sommer v Federal Signal Corp., 79 NY2d
540,551 [1992]). The Sommer Court held that where a party seeks not the benefit of its contractual
bargain, but the recovery of damages for some "abrupt, cataclysmic occurrence" that spread out of
control, a party can assert both tort and contract claims. Here, the water damage flowed through
large parts of the building, damaging many rooms and putting elevators out of service. The water
damage was not part of a small and undetected leak, it was abrupt and cataclysmic (see also
Bellevue South Associates v HRH Construction Corp., 78 NY2d 282 [1991]; New York University
v Turner Const. Co., 206 AD3d 536 [1st Dept 2022]). Therefore, this branch of the Rinaldi
Defendants' motion is denied.
C. Contractual Indemnification and Failure to Procure Insurance
The branch of the Rinaldi Defendants' motion for summary judgment on their crossclaims
for contractual indemnification and failure to procure insurance is granted. The indemnification
clause at issue, found in the Rider to the subcontract agreement between Main Electrical and the
Rinaldi Defendants (NYSCEF Doc. 71) reads as follows:
"To the fullest extent permitted by law, the Subcontractor shall defend, indemnify and hold harmless the Owner, Anthony T. Rinaldi LLC d/b/a The Rinaldi Group and all other additional insureds .... from and against any and all claims, losses, costs, injuries, damages and expenses ... brought or assumed against any of the Indemnitees by any person or firm, arising out of or in connection with or as a result of consequence of the performance of the Work of the Subcontractor. ... but only to the extent contributed to by the acts or omissions of the Subcontractors ... ".
Here, the indemnification clause is clear and not void as against public policy. Therefore,
it must be enforced according to its terms. The Rinaldi Defendants are entitled to a summary
judgment on their contractual indemnification claims, conditioned on an apportionment of
negligence against Main Electric by the fact finder at the time of trial (Matias v New Yorker Hotel
Management Co., Inc., 201 AD3d 592 [1st Dept 2022]; Herrero v 2146 Nostrand Ave. Associates,
159507/2021 LAM PEARL STREET HOTEL, LLC ET AL vs. ANTHONY T. RINALDI, LLC ET AL Page 3 of 5 Motion No. 004
[* 3] 3 of 5 [FILED: NEW YORK COUNTY CLERK 01/16/2025 12 :46 PM] INDEX NO. 159507/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 01/16/2025
LLC, 193 AD3d 421 [1st Dept 2021]). Whether the Rinaldi Defendants may also be found
negligent does not preclude granting them conditional contractual indemnification since the
indemnification clause only requires indemnification to the extent Main Electrical is found
negligent.
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Lam Pearl St. Hotel, LLC v Anthony T. Rinaldi, LLC 2025 NY Slip Op 30191(U) January 16, 2025 Supreme Court, New York County Docket Number: Index No. 159507/2021 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. [FILED: NEW YORK COUNTY CLERK 01/16/2025 12 :46 PM] INDEX NO. 159507/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 01/16/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO PART 33M Justice -----------------------------X INDEX NO. 159507/2021 LAM PEARL STREET HOTEL, LLC,ENDURANCE MOTION DATE 02/28/2024 AMERICAN INSURANCE COMPANY, AS SUBROGEE OF LAM PEARL STREET HOTEL, LLC AND REAL HOSPITALITY GROUP, LLC, 00_4_ __ MOTION SEQ. NO. _ _ _
Plaintiff,
- V- DECISION + ORDER ON ANTHONY T. RINALDI, LLC,THE RINALDI GROUP, MOTION LLC,MAIN ELECTRICAL SERVICES, INC,
Defendant. ---------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 59, 60, 61, 62, 63, 64,65, 66, 67,68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 98, 99 were read on this motion to/for PARTIAL SUMMARY JUDGMENT
Upon the foregoing documents, and after oral argument, which took place on September
10, 2024, where Glenn Mattar, Esq. appeared for Plaintiffs Lam Pearl Street Hotel, LLC ("Lam
Pearl") and Endurance American Insurance Company, as subrogee of Lam Pearl Street Hotel, LLC
and Real Hospitality Group, LLC (collectively "Plaintiffs"), Susan Mahon, Esq. appeared for
Defendants Anthony T. Rinaldi, LLC and the Rinaldi Group, LLC (collectively "Rinaldi
Defendants"), and Larry H. Lum, Esq. appeared for Defendant Main Electrical Services, Inc.
("Main Electrical"), the Rinaldi Defendants' motion for partial summary judgment dismissing
Plaintiffs negligence and gross negligence claims, and seeking summary judgment on its
crossclaims against Main Electrical for contractual indemnification and failure to procure
insurance is granted in part and denied in part.
159507/2021 LAM PEARL STREET HOTEL, LLC ET AL vs. ANTHONY T. RINALDI, LLC ET AL Page 1 of 5 Motion No. 004
1 of 5 [* 1] [FILED: NEW YORK COUNTY CLERK 01/16/2025 12 :46 PM] INDEX NO. 159507/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 01/16/2025
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. In this motion, the Rinaldi Defendants seek partial summary
judgment dismissing Plaintiffs' negligence and gross negligence claims. The Rinaldi Defendants
argue that since they entered a contract to perform construction services with Lam Pearl, Plaintiffs'
remedy lies solely in breach of contract. The Rinaldi Defendants also rely on an indemnification
clause in the subcontract it executed with Main Electrical to seek summary judgment on their
contractual indemnification cross claims against Main Electrical. Finally, the Rinaldi Defendants
argue that they are entitled to their failure to procure insurance claim against Main Electrical.
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
cvidentiary 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]).
B. Plaintiffs' Negligence and Gross Negligence Claims
The Rinaldi Defendants' motion seeking dismissal of Plaintiffs' negligence and gross
negligence claims is denied. The Court of Appeals has identified cases such as this one as
"borderland situations ... where the parties' relationship initially is formed by contract, but there is
159507/2021 LAM PEARL STREET HOTEL, LLC ET AL vs. ANTHONY T. RINALDI, LLC ET AL Page 2 of 5 Motion No. 004
2 of 5 [* 2] [FILED: NEW YORK COUNTY CLERK 01/16/2025 12 :46 PM] INDEX NO. 159507/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 01/16/2025
a claim that the contract was performed negligently." (Sommer v Federal Signal Corp., 79 NY2d
540,551 [1992]). The Sommer Court held that where a party seeks not the benefit of its contractual
bargain, but the recovery of damages for some "abrupt, cataclysmic occurrence" that spread out of
control, a party can assert both tort and contract claims. Here, the water damage flowed through
large parts of the building, damaging many rooms and putting elevators out of service. The water
damage was not part of a small and undetected leak, it was abrupt and cataclysmic (see also
Bellevue South Associates v HRH Construction Corp., 78 NY2d 282 [1991]; New York University
v Turner Const. Co., 206 AD3d 536 [1st Dept 2022]). Therefore, this branch of the Rinaldi
Defendants' motion is denied.
C. Contractual Indemnification and Failure to Procure Insurance
The branch of the Rinaldi Defendants' motion for summary judgment on their crossclaims
for contractual indemnification and failure to procure insurance is granted. The indemnification
clause at issue, found in the Rider to the subcontract agreement between Main Electrical and the
Rinaldi Defendants (NYSCEF Doc. 71) reads as follows:
"To the fullest extent permitted by law, the Subcontractor shall defend, indemnify and hold harmless the Owner, Anthony T. Rinaldi LLC d/b/a The Rinaldi Group and all other additional insureds .... from and against any and all claims, losses, costs, injuries, damages and expenses ... brought or assumed against any of the Indemnitees by any person or firm, arising out of or in connection with or as a result of consequence of the performance of the Work of the Subcontractor. ... but only to the extent contributed to by the acts or omissions of the Subcontractors ... ".
Here, the indemnification clause is clear and not void as against public policy. Therefore,
it must be enforced according to its terms. The Rinaldi Defendants are entitled to a summary
judgment on their contractual indemnification claims, conditioned on an apportionment of
negligence against Main Electric by the fact finder at the time of trial (Matias v New Yorker Hotel
Management Co., Inc., 201 AD3d 592 [1st Dept 2022]; Herrero v 2146 Nostrand Ave. Associates,
159507/2021 LAM PEARL STREET HOTEL, LLC ET AL vs. ANTHONY T. RINALDI, LLC ET AL Page 3 of 5 Motion No. 004
[* 3] 3 of 5 [FILED: NEW YORK COUNTY CLERK 01/16/2025 12 :46 PM] INDEX NO. 159507/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 01/16/2025
LLC, 193 AD3d 421 [1st Dept 2021]). Whether the Rinaldi Defendants may also be found
negligent does not preclude granting them conditional contractual indemnification since the
indemnification clause only requires indemnification to the extent Main Electrical is found
negligent.
The breach of contract for failure to procure insurance claim is likewise granted. It is
undisputed that pursuant to the subcontractor agreement, Main Electrical was required to procure
sufficient insurance to cover any loss that may arise in connection with Main Electrical's work at
the Building (NYSCEF Doc. 71). The work explicitly included plumbing, sprinkler, and standpipe
work. Nonetheless, Main Electrical obtained a policy with a fire suppression system exclusion,
which according to Main Electrical's carrier, excludes coverage for water damage flowing from a
fire sprinkler (NYSCEF Doc. 78). Because Main Electrical was contractually obligated to ensure
it was insured against risks associated with its plumbing and sprinkler work but obtained a liability
policy with a fire suppression system exclusion, it breached its contractual obligations to procure
adequate insurance. That Main Electrical relied on a broker to procure insurance and was not aware
of issues with the scope of coverage until its insurer disclaimed coverage may give rise to a cause
of action against the broker but does not raise an issue of fact as to whether it satisfied its
contractual obligations. Simply put, obtaining a liability policy with a fire suppression system
exclusion to guard against risks, including water damage, associated with conducting work on
building fire sprinklers, does not meet a subcontractor's obligation to procure and maintain
adequate insurance.
Accordingly, it is hereby,
ORDERED that the Rinaldi Defendants' motion for summary judgment is granted in part
and denied in part; and it is further
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ORDERED that the Rinaldi Defendants' motion for summary judgment seeking dismissal
of Plaintiffs' negligence and gross negligence claims is denied; and it is further
ORDERED that the Rinaldi Defendants are granted summary judgment on their contractual
indemnification crossclaim against Defendant Main Electrical, conditioned on a finding of
negligence against Main Electrical; and it is further
ORDERED that the Rinaldi Defendants are granted summary judgment on their cross
claim for breach of contract for failure to procure insurance against Defendant Main Electrical,
with damages to be determined at the time of trial; and it is further
ORDERED that within ten days of entry, counsel for the Rinaldi Defendants 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.
1/16/2025 DATE ARY V. ROSADO, J.S.C.
CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION
GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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