Traub v. Basketball City N.Y. LLC

2024 NY Slip Op 32862(U)

• Court: New York Supreme Court, New York County
• Decided: August 14, 2024
• Docket: Index No. 151596/2018
• Status: Unpublished

Opinion

Traub v Basketball City N.Y. LLC 2024 NY Slip Op 32862(U) August 14, 2024 Supreme Court, New York County Docket Number: Index No. 151596/2018 Judge: James d'Auguste 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. 151596/2018 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 08/14/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. James E. d’Auguste PART 55 Justice ---------------------------------------------------------------------------------X INDEX NO. 151596/2018 MARK TRAUB, MOTION DATE 01/11/2022 Plaintiff, MOTION SEQ. NO. 006 -v- BASKETBALL CITY NEW YORK LLC, BASKETBALL CITY U.S.A. LLC, VIACOM INTERNATIONAL INC., VIACOMCBS DECISION + ORDER ON INC., NEW GAMES PRODUCTIONS, INC., MOTION Defendants. ---------------------------------------------------------------------------------X

BASKETBALL CITY NEW YORK LLC, BASKETBALL CITY Third-Party U.S.A. LLC, Index No. 595426/2019

Plaintiffs,

-against-

NEW GAMES PRODUCTION INC.,

Defendant. --------------------------------------------------------------------------------X

VIACOM INTERNATIONAL INC., VIACOMCBS INC., NEW Second Third-Party GAMES PRODUCTIONS INC., Index No. 595530/2020

PIER PRODUCTIONS & ENTERTAINMENT LLC,

Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 006) 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 268 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) .

151596/2018 TRAUB, MARK vs. BASKETBALL CITY NEW YORK LLC Page 1 of 4 Motion No. 006

1 of 4 [* 1] INDEX NO. 151596/2018 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 08/14/2024

In Motion Sequence 006, Defendant/Third-Party Defendant/Second Third-Party Plaintiff

New Games Production Inc. (“NGPI”), Defendant/Second Third-Party Plaintiff Viacom

International Inc., and Defendant/Second Third-Party Plaintiff ViacomCBS Inc. (Viacom

International and ViacomCBS collectively as “Viacom”) move for summary judgment, seeking

to dismiss the Labor Law Sections 200, 240(1), and 241 causes of action against them; NGPI

moves for summary judgment, seeking to dismiss Basketball City New York LLC and

Basketball City U.S.A’s (“BBC”) cross-claims for contribution, common-law indemnification,

contractual indemnification, and a cause of action for insurance coverage; and NGPI and Viacom

move for summary judgment against Pier Productions & Entertainment LLC (“PPE”) for

common-law and contractual indemnification. PPE opposes and cross-moves against NGPI and

Viacom to dismiss all claims against PPE. Plaintiffs and BBC also oppose the motion. The

motion is resolved as set forth below.

As an initial matter, the Court granted partial summary judgment to plaintiff as to

plaintiff’s Labor Law Section 240(1) claim in the decision and order on Motion Sequence 002

(dated November 18, 2022, NYSCEF Doc. No. 244). The Court held in abeyance any additional

claims under the Labor Law. Therefore, the branches of NGPI’s and Viacom’s motion seeking

summary judgment against plaintiff are denied.

Viacom/NGPI move to dismiss BBC’s cross-claim for insurance coverage, and PPE

cross-moves to dismiss Viacom/NGPI’s claims for breach of contract for failure to procure

insurance. PPE’s policy with Nationwide demonstrates that Viacom, NGPI, and BBC are listed

as additional insureds under PPE’s insurance policy. NYSCEF Doc. No. 216. This branch of

PPE’s cross-motion is granted. However, Viacom/NGPI have not demonstrated that BBC is

listed as an additional insured under their comprehensive general liability policy, and, instead,

151596/2018 TRAUB, MARK vs. BASKETBALL CITY NEW YORK LLC Page 2 of 4 Motion No. 006

2 of 4 [* 2] INDEX NO. 151596/2018 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 08/14/2024

states that BBC has suffered no damages because BBC is listed under PPE’s policy. NYSCEF

Doc. No. 195, at p.17. Therefore, the branch of Viacom/NGPI’s motion seeking to dismiss

BBC’s cross-claim for insurance coverage is denied.

The branch of PPE’s motion seeking to dismiss claims for common-law indemnification

against Viacom and NGPI is granted. PPE argues that they are entitled to summary judgment to

dismiss claims for common-law indemnification because Viacom’s claim is barred the Workers

Compensation Law (“WCL”). WCL Section 11 allows a third-party common-law

indemnification claim to be brought against an employer only “where the injured worker has

suffered a ‘grave injury’ or the employer has entered into a written contract to indemnify the

[party].” Flores v Lower E Side Serv Ctr, 4 NY3d 363, 365 [2005]; NYSCEF Doc. No. 225. The

parties have not presented evidence that plaintiff suffered a grave injury as defined under WCL

Section 11, and, therefore, PPE’s cross-motion for dismissal on the common-law indemnification

claim is granted. However, the Service Agreement between PPE and NGPI constitutes a written

contract with the intent to indemnify, so the branch of the motion seeking to dismiss contractual

indemnification is denied.

All remaining requests for summary judgment are denied. Factual issues remain in this

action, and, therefore, a jury will have to resolve the allocation of liability among the defendants

and related indemnification claims.

Accordingly, it is hereby,

ORDERED that Pier Productions & Entertainment LLC’s cross-motion for summary

judgment to dismiss Viacom’s and NGPI’s cross-claims for insurance coverage is granted, and it

is further,

151596/2018 TRAUB, MARK vs. BASKETBALL CITY NEW YORK LLC Page 3 of 4 Motion No. 006

3 of 4 [* 3] INDEX NO. 151596/2018 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 08/14/2024

ORDERED that Pier Productions & Entertainment LLC’s cross-motion for summary

judgment to dismiss Viacom’s and NGPI’s cross-claims for common-law indemnification is

granted, and it is further

ORDERED that all remaining requests for relief are denied.

This constitutes the decision and order of the Court.

8/14/2024 $SIG$ DATE James d’Auguste, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED GRANTED IN PART X OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

151596/2018 TRAUB, MARK vs. BASKETBALL CITY NEW YORK LLC Page 4 of 4 Motion No. 006

4 of 4 [* 4]