Preview
FILED: KINGS COUNTY CLERK 07/08/2022 11:35 AM INDEX NO. 17132/2014
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/08/2022
LBBS File No: 44837-170
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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MARIA BABAYAN,
Index No.: 17132/2014
Plaintiff,
AFFIRMATION IN
-against- PARTIAL OPPOSITION TO
DEFENDAT V.N.A.
THE CITY OF NEW YORK, VERIZON NEW YORK UTILITY CONTRACTING
INC., CONSOLIDATED EDISON, INC. and V.N.A. CO., INC.’S CROSS-
UTILITY CONTRACTING CO., INC., MOTION
Defendants.
MOTION SEQ. 10
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KATIE LEE WRIGHT, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following under the penalties of perjury:
1. I am associated with the law firm of Lewis, Brisbois, Bisgaard & Smith, LLP,
attorneys for Defendants VERIZON NEW YORK INC. (hereinafter referred to as “VZNY”), in
the above-captioned action, and as such, I am fully familiar with the facts set forth herein based
upon my participation in the defense of this matter and based upon my review of the litigation file
maintained by our office.
2. I submit this Affirmation on behalf of VZNY, in Partial Opposition to Co-
Defendant V.N.A. UTILITY CONTRACTING, INC.’s (hereinafter referred to as “VNA”) Cross-
Motion dated February 7, 2022, for Summary Judgment, for an Order:
(a) Pursuant to C.P.L.R. § 3212 granting summary judgment in favor of VNA against
Plaintiff, dismissing Plaintiff’s Complaint and any and all cross-claims asserted against
VNA with prejudice; and
(b) Such other and further relief as this Court deems just and proper.
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3. VZNY does not oppose the portion of VNA’s Cross-Motion which seeks summary
judgment, VZNY only opposes the portion of VNA’s Cross-Motion that seeks dismissal of the
cross-claims of VZNY against VNA in the event VZNY’s motion for summary judgment is denied.
IF VZNY’S MOTION FOR SUMMARY JUDGMENT IS DENIED, VNA’S CROSS-
MOTION FOR SUMMARY JUDGMENT MUST NOT BE GRANTED ONLY
WITH RESPECT TO VZNY’S CROSS-CLAIMS AS VNA IS REQUIRED TO
INDEMNIFY VZNY FOR ANY JUDGMENTS RELATED TO THIS ACTION IF
IT IS FOUND THAT VZNY IS INVOLVED
4. By their cross-motion for summary judgment, co-defendant VNA argues for
summary judgment on the same grounds that VZNY argues for summary judgment- no duty was
owed to plaintiff. In the interest of judicial economy, VZNY will not repeat the arguments made
in its motion for summary judgment dated May 19, 2021 (motion sequence #9- presently returnable
July 20, 2022). Additionally, VZNY only opposes the portion of VNA’s cross -motion which
argues that VNA cannot be liable to VZNY for “any contribution and indemnification” and
requesting dismissal of all cross-claims. See VNA’s Aff. in Support of Cross-motion for Summary
Judgment ¶48.
5. At the time of plaintiff’s alleged accident an Agreement for Construction Services
(hereinafter “Agreement”) existed between VZNY and VNA. As set forth in the Agreement, VNA
is required to indemnify Verizon, and under Article 21.0 of the Agreement, VNA is required to
defend, indemnify, and hold harmless Verizon for any claims in connection with the work VNA
performed. Specifically, Section 21.1 provides:
Supplier shall defend, indemnify and hold harmless Verizon, its
parents, subsidiaries and Affiliates, and its and their respective
directors, officers, partners, members, employees, agents, successors
and assigns (“Indemnified Parties”) from and against any claims,
demands, lawsuits, damages, liabilities, loss, costs or expenses
(including, but not limited to, reasonable fees and disbursements of
counsel and court costs), judgments, settlements and penalties of every
kind (“Claims”), that may be made: (a) by anyone for injuries
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(including death) to persons or damage to property, including theft,
resulting in whole or in part from the acts or omissions of Supplier or
those persons furnished by Supplier, including its subcontractors (if
any); (b) by persons furnished by Supplier and its subcontractors (if any)
under Worker's Compensation or similar acts; (c) by anyone in connection
with or based upon Services (including products furnished hereunder)
provided by Supplier and its subcontractors, if any, or contemplated by this
Agreement, including Claims regarding the adequacy of any disclosures,
instructions or warnings related to any such Services; and (d) under any
laws (as defined in Section 11) or otherwise arising out of or in connection
with the performance by Supplier contemplated by this Agreement or any
information obtained in connection with such performance. The foregoing
indemnification shall apply whether Supplier or an Indemnified Party
defends such Claim and whether the Claim arises or is alleged to arise
out of the sole acts or omissions of the Supplier (and/or any
subcontractor of Supplier) or out of the concurrent acts or omissions of
Supplier (and/or any subcontractor of Supplier) and any Indemnified
Parties. Supplier further agrees to bind its subcontractors, if any, to
similarly indemnify, hold harmless, and defend the Indemnified
Parties. (Emphasis added.)
See Exhibit P, §21.1, annexed to VZNY’s moving papers for summary judgment.
5. Accordingly, based on the clear contractual language, VNA has the contractual duty
to indemnify VZNY. In the event that this court grants any portion of VNA’s cross-motion for
summary judgment, but denies VZNY’s motion for summary judgment, VZNY’s cross-claims
against VNA must not be dismissed as VNA has the contractual duty to indemnify VZNY for any
judgments related to this action if it is found the plaintiff’s incident was somehow related to
VZNY.
6. In conclusion, Defendants respectfully request that in the event that this Honorable
Court denies VZNY’s Motion for Summary Judgment that this Honorable Court does not dismiss
VZNY’s cross-claims against VNA.
WHEREFORE, based upon the foregoing, it is respectfully requested that (a) in the event
that this Honorable Court denies VZNY’s Motion for Summary Judgment that the Honorable
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Court does not dismiss VZNY’s cross-claims against VNA; and (b) such other and further relief
as this Court deems just and proper.
Dated: New York, New York
July 8, 2022
______Katie Lee Wright____
Katie Lee Wright
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Preview
FILED: KINGS COUNTY CLERK 07/08/2022 11:35 AM INDEX NO. 17132/2014 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/08/2022 LBBS File No: 44837-170 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------x MARIA BABAYAN, Index No.: 17132/2014 Plaintiff, AFFIRMATION IN -against- PARTIAL OPPOSITION TO DEFENDAT V.N.A. THE CITY OF NEW YORK, VERIZON NEW YORK UTILITY CONTRACTING INC., CONSOLIDATED EDISON, INC. and V.N.A. CO., INC.’S CROSS- UTILITY CONTRACTING CO., INC., MOTION Defendants. MOTION SEQ. 10 ----------------------------------------------------------------x KATIE LEE WRIGHT, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am associated with the law firm of Lewis, Brisbois, Bisgaard & Smith, LLP, attorneys for Defendants VERIZON NEW YORK INC. (hereinafter referred to as “VZNY”), in the above-captioned action, and as such, I am fully familiar with the facts set forth herein based upon my participation in the defense of this matter and based upon my review of the litigation file maintained by our office. 2. I submit this Affirmation on behalf of VZNY, in Partial Opposition to Co- Defendant V.N.A. UTILITY CONTRACTING, INC.’s (hereinafter referred to as “VNA”) Cross- Motion dated February 7, 2022, for Summary Judgment, for an Order: (a) Pursuant to C.P.L.R. § 3212 granting summary judgment in favor of VNA against Plaintiff, dismissing Plaintiff’s Complaint and any and all cross-claims asserted against VNA with prejudice; and (b) Such other and further relief as this Court deems just and proper. 4859-2295-9911.1 1 of 4 FILED: KINGS COUNTY CLERK 07/08/2022 11:35 AM INDEX NO. 17132/2014 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/08/2022 3. VZNY does not oppose the portion of VNA’s Cross-Motion which seeks summary judgment, VZNY only opposes the portion of VNA’s Cross-Motion that seeks dismissal of the cross-claims of VZNY against VNA in the event VZNY’s motion for summary judgment is denied. IF VZNY’S MOTION FOR SUMMARY JUDGMENT IS DENIED, VNA’S CROSS- MOTION FOR SUMMARY JUDGMENT MUST NOT BE GRANTED ONLY WITH RESPECT TO VZNY’S CROSS-CLAIMS AS VNA IS REQUIRED TO INDEMNIFY VZNY FOR ANY JUDGMENTS RELATED TO THIS ACTION IF IT IS FOUND THAT VZNY IS INVOLVED 4. By their cross-motion for summary judgment, co-defendant VNA argues for summary judgment on the same grounds that VZNY argues for summary judgment- no duty was owed to plaintiff. In the interest of judicial economy, VZNY will not repeat the arguments made in its motion for summary judgment dated May 19, 2021 (motion sequence #9- presently returnable July 20, 2022). Additionally, VZNY only opposes the portion of VNA’s cross -motion which argues that VNA cannot be liable to VZNY for “any contribution and indemnification” and requesting dismissal of all cross-claims. See VNA’s Aff. in Support of Cross-motion for Summary Judgment ¶48. 5. At the time of plaintiff’s alleged accident an Agreement for Construction Services (hereinafter “Agreement”) existed between VZNY and VNA. As set forth in the Agreement, VNA is required to indemnify Verizon, and under Article 21.0 of the Agreement, VNA is required to defend, indemnify, and hold harmless Verizon for any claims in connection with the work VNA performed. Specifically, Section 21.1 provides: Supplier shall defend, indemnify and hold harmless Verizon, its parents, subsidiaries and Affiliates, and its and their respective directors, officers, partners, members, employees, agents, successors and assigns (“Indemnified Parties”) from and against any claims, demands, lawsuits, damages, liabilities, loss, costs or expenses (including, but not limited to, reasonable fees and disbursements of counsel and court costs), judgments, settlements and penalties of every kind (“Claims”), that may be made: (a) by anyone for injuries 4859-2295-9911.1 2 of 4 FILED: KINGS COUNTY CLERK 07/08/2022 11:35 AM INDEX NO. 17132/2014 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/08/2022 (including death) to persons or damage to property, including theft, resulting in whole or in part from the acts or omissions of Supplier or those persons furnished by Supplier, including its subcontractors (if any); (b) by persons furnished by Supplier and its subcontractors (if any) under Worker's Compensation or similar acts; (c) by anyone in connection with or based upon Services (including products furnished hereunder) provided by Supplier and its subcontractors, if any, or contemplated by this Agreement, including Claims regarding the adequacy of any disclosures, instructions or warnings related to any such Services; and (d) under any laws (as defined in Section 11) or otherwise arising out of or in connection with the performance by Supplier contemplated by this Agreement or any information obtained in connection with such performance. The foregoing indemnification shall apply whether Supplier or an Indemnified Party defends such Claim and whether the Claim arises or is alleged to arise out of the sole acts or omissions of the Supplier (and/or any subcontractor of Supplier) or out of the concurrent acts or omissions of Supplier (and/or any subcontractor of Supplier) and any Indemnified Parties. Supplier further agrees to bind its subcontractors, if any, to similarly indemnify, hold harmless, and defend the Indemnified Parties. (Emphasis added.) See Exhibit P, §21.1, annexed to VZNY’s moving papers for summary judgment. 5. Accordingly, based on the clear contractual language, VNA has the contractual duty to indemnify VZNY. In the event that this court grants any portion of VNA’s cross-motion for summary judgment, but denies VZNY’s motion for summary judgment, VZNY’s cross-claims against VNA must not be dismissed as VNA has the contractual duty to indemnify VZNY for any judgments related to this action if it is found the plaintiff’s incident was somehow related to VZNY. 6. In conclusion, Defendants respectfully request that in the event that this Honorable Court denies VZNY’s Motion for Summary Judgment that this Honorable Court does not dismiss VZNY’s cross-claims against VNA. WHEREFORE, based upon the foregoing, it is respectfully requested that (a) in the event that this Honorable Court denies VZNY’s Motion for Summary Judgment that the Honorable 4859-2295-9911.1 3 of 4 FILED: KINGS COUNTY CLERK 07/08/2022 11:35 AM INDEX NO. 17132/2014 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/08/2022 Court does not dismiss VZNY’s cross-claims against VNA; and (b) such other and further relief as this Court deems just and proper. Dated: New York, New York July 8, 2022 ______Katie Lee Wright____ Katie Lee Wright 4859-2295-9911.1 4 of 4