Preview
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019
Exhibit A
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019
NYSCEF - New York County Supreme Court
Gonfirmation Notice
This is an automated response for Supreme Court cases. The NYSCEF site has received your
electronically filed documents for the following case.
15832712013
KEVIN McGONIGAL - v. - NYY STEAK MANHATTAN, LLG et al
Assigned Judge: Margaret Ghan
Documents Received On 02t't4t2019 09:46 AM
Doc # Document Type Motion #
249 NOTICE OF CROSS-MOTION 003
Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e)
250 AFFIDAVIT OR AFFIRMATION IN SUPPORT OF CROSS-MOTION 003
Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e)
251 EXHTBTT(S) A 003
Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e)
252 EXHrBrr(S) B 003
Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e)
253 EXHTBTT(S) C 003
Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e)
254 EXHIBIT(S) D (Redacted per 202.5(e) or 206.5(e)) 003
255 EXHIBIT(S) E (Redacted per 202.5(e) or 206.5(e)) 003
Filing User
Name: Robert J Paliseno
Phone #: 212-964-7300 E-mailAddress: rpaliseno@smithmazure.com
Fax#'. Work Address: 111 JOHN ST
NEW YORK, NY 10038
E-mail Notifications
An e-mail notification regarding this filing has been sent to the following address(es) on
0211412019 09:46 AM:
AURILIA, PATRICK - auriliap@fcllp.com
DIAMANTIS, NIKOLAOS E - nikolaos.diamantis@cna.com
Hon. Milton A. Tingling, New York County Clerk and Clerk of the Supreme Court
Phone: 646-386-5956 Website: http://www.nycourts.gov/courts/1jd/supctmanh/county_clerk_operations.shtml
NYSCEF Resource Genter - EFile@nycourts.gov
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Page I of 2
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019
NYSCEF - New York County Supreme Court
Gonfirmation Notice
15832712013
KEVIN McGONIGAL -v. - NYY STEAK MANHATTAN, LLG et al
Assigned Judge: Margaret Ghan
DIAMOND, ANDREW R - adiamond@sacks-sacks.com
FULLERTON, EILEEN R - efullerton@fullertonbeck.com
HALL, THOMAS JAMES - hallt@fcllp.com
KUTNER, KENNETH J - kjkutner@pvrklaw.com
LAMBOLEY, WILLIAM CONZELMAN - wlamboley@londonfischer.com
LORE, DAVID ALEXANDER - dlore@milbermakris.com
METSON, MARC JONATHAN - mmetson@mtacc.info
PALISENO, ROBERT J - rpaliseno@smithmazure.com
SCARIA, SUSAN APRIL - sscaria@fullertonbeck.com
ZRENDA, KYLE JOSEPH - kyle.zrenda@vbpnplaw.com
NOTEr lf submitting a working copy of this filing to the court, you must include
as a notification page firmly affixed thereto a copy of this Confirmation Notice.
Hon. Milton A. Tingling, New York Gounty Clerk and Glerk of the Supreme Court
Phone: 646-386-5956 Website: http://www.nycourts.gov/courts/1jd/supctmanh/county_clerk_operations.shtml
NYSCEF Resource Genter - EFile@nycourts,gov
Phone: (646) 386-3033 Fax: (212)401-9146 Website : www. nycou rts. gov/efile
Page2 of 2
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019
SUPREME COURT OF THE STATE OF NEW YORK
COTINTY OF NEW YORK
KEVIN MCGONIGAL,
Plaintiff, NOTICE OF
-against- CROSS-MOTION
Index No. 15832712013
NYY STEAK MANHATTAN, LLC,PLAZA
CONSTRUCTION CORP. and BARING INDUSTRIES,
Hon. Margaret A. Chan, J.S.C.
INC.,
Defendants.
X
PLEASE TAKE NOTICE that upon the affirmation of Robert J. Paliseno dated
February 14,2019, and upon all the pleadings and proceedings had herein, the undersigned will
cross move this Court at Motion Submission Part, Room 130, at the Courthouse located at 60
Centre Street, New York, NY 10007, on February 22r 2019, at 9:30 o'clock in the forenoon of
that day, or as soon thereafter as counsel can be heard, for an order pursuant to CPLR 53212
granting summary judgment in favor of the third third-party defendant Ess & Vee Acoustical
Contractors, Inc.o dismissing the third third-party complaint and all cross-claims with prejudice
and granting such other, further, and different relief as the Court may deem just, proper, and
equitable.
The above-entitled action is for bodily injury.
PLEASE TAKE FURTHER NOTICE you are required to serve answering affidavits
and cross-motions seven (7) days before the return date hereof.
Dated: New York, New York
February 14,2019 Yours, etc.,
SMITH MAZURE DIRECTOR WILKINS
YOUNG & YAGERMAN, P.C.
r".;x}, {V"
ROBERT J. PALISENO
For the Firm
Attorneys for Third Third-Party Defendant
Ess & Vee Acoustical Contractors, Inc.
lllJohnStreet
New York, NY 10038
(2r2) 964-7400
Our File No. AWA-00112
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019
TO:
Fabiani Cohen & Hall, LLP
570 Lexington Avenue,4th Floor
New York, NY 10022
(2 t2) 6 4 4 - 4 420 / (2r2) 207 -8 | 82 (F)
Attorney for DefendanVThird Third-Party Plaintiff
NYY Steak Manhattan, LLC, & Plaza Construction LLCf/WaPlaza Construction Corp.,
Defendant/Third-Party PlaintifflThird Third-Party Plaintiff
Plaz a Construction Corp.
Fullerton Beck, LLP
1 West Red Oak Lane
White Plains, NY 10604
(914) 305-8634
Attorney for Third Third-Party Defendant
B&G Electrical Contractors
Law Offices of Charles J. Siegel
125 Broad Street, 7th Floor
New York, NY 10004
(212) 440-2350(866) 603-85e5 (F)
Attorney for Third-Party Defendant/Second Third-Party Plaintiff
Baring Industries, Inc.
Milber Makris Plousadis & Seiden, LLP
1000 Woodbury Road, Suite 402
Woodbury, NY I1797
(sr6) 7 t2-4000(5 1 6) 7 12-4013 (F)
Attorney for Second Third-Party Defendants
Day &Nite Refrigeration Corp. and Kimco Refrigeration Corp.
Sacks and Sacks, LLP
150 Broadway,4th Floor
New York, NY 10038
(212) e64-ss70/(212) 349-2r4r (F)
Attorney for Plaintiff
Kevin McGonigal
RIP/mn
AWA-00112/576
-2-
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
KEVIN MCGONIGAL,
Plaintiff, AFF'IRMATION IN SUPPORT
-against-
Index No. 15832712013
NYY STEAK MANHATTAN, LLC,PLAZA
CONSTRUCTION CORP. ANd BARING INDUSTRIES,
fNc.,
Hon. Margaret A. Chan, J.S.C.
Defendants.
X
Third-Party Index No.
PLAZA CONSTRUCTION CORP.,
595146/20t4
Third-Party Plaintiff,
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
X
BARING INDUSTRIES, INC.,
Second Third-Party Plaintifl
Second Third-Party Index No.
-against-
s9st30l20ts
DAY & NITE REFRIGERATION CORP., and KIMCO
REFRIGERATION CORP.,
Second Third-Party Defendants
NYY STEAK MANHATTAN, LLC &PLAZA
Third Third-Party Index No.
CONSTRUCTION LLC fIW A PLAZA CONSTRUCTION
CORP.,
Third Third-Party Plaintiffs,
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES' INC"
Third rhird-party Defendants.
X
ROBERT J. PALISENO, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the truth of the following under penalty of perjury and
pursuant to CPLR $2106:
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019
1. I am a member of the firm of Smith Mazure Director Wilkins Young &
Yagerman, P.C., attorneys for the third third-party defendant Ess & Vee Acoustical Contractors,
Inc. (hereinafter "Ess & Vee") and I am fully familiar with the facts and circumstances
surrounding the within action.
2. This affirmation is made in support of the instant motion for an order pursuant to
CPLR 53212 granting summary judgment in favor of Ess & Vee, dismissing the third third-party
complaint, dismissing all cross-claims, and granting such other, further, and different relief as the
Court may deem just, proper, and equitable.
3. This is an action for damages for personal injuries on account of the alleged
negligence of the defendants. The accident arises out of an alleged incident which is claimed to
have occurred on September 6, 2013 at the premises under construction known as the New York
Yankee Steakhouse located at 7 West 5l't Street, New York, New York. The plaintiff alleges
that the accident occurred when he was caused to trip and fall into an unguarded opening at the
aforementioned premises due to construction debris and poor lighting. The plaintiff, a
steamfitter employed by Day & Nite Refrigeration alWa Kimco Refrigeration, alleges violations
of Labor Law $$ 200, 240 and 241(6) with concomitant Industrial Code allegations. The
plaintiff Kevin McGonigal does not have any direct claims against Ess & Vee. The third party
claims maintained by New York Yankee Steak Manhattan andPlaza Construction against Ess &
Vee sound in common law contribution, common law indemnification, contractual
indemnification and breach of contract for failure to procure insurance.
4. In the interest of brevity, your affirmant herein adopts and incorporates by
reference Exhibits "A" through "P" cited in the motion for summary judgment and affirmation in
support of Eileen Fullerton, Esq., dated January 22,2019. In addition to the exhibits annexed in
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B & G Electrical's motion for summary judgment, the cross-motion for summary judgment
herein annexes the following index of exhibits:
' Pleadings - Exhibit "A";
. Examination before trial transcript of Frank Cioppa dated May 24, 2017 -
Exhibit ooB";
. Trade subcontract between Plaza Construction and Ess & Vee Acoustical
Contractors - Exhibit "C";
. Ess & Vee's response to the preliminary conference order dated December 23,
2015 - Exhibit "D";
' Plaintifls verified bill of particulars dated October 20,2014 - Exhibit "E".
5. It is well settled that the standard for granting a motion for summary judgment is
that the case should be decided when there is no genuine issue to be resolved at trial. Andre v.
Pomeroy, 35 N.Y.2d 361,362 N.Y.S.2d 131. The Court must decide whether there is a factual
issue and whether that issue is genuine or substantial or is a mere allegation or speculation.
Richard v. Credit Suisse,242N.Y.346,l52 N.E. 110 (1926).
6. The plaintiff alleges that on September 6,2013, he was injured while transporting
a refrigeration unit on a dolly when he stepped on a piece of wood that caused him to lose his
balance and fall into an opening that was behind him (Exhibit "E"). New York Yankee Steak,
the lessee of the property retained Plaza Construction as the general contractor for the renovation
of an existing bank into a restaurant. Ess & Vee was retained by Plaza Construction to furnish
and install drywall, acoustics, and carpentry work (Exhibit "C"). The scope of the work for Ess
& Vee is indicated in Article I of the trade subcontract as well as Exhibit "C" to the contract
(Exhibit "C"). Article 9 of the contract between Plaza Construction and Ess & Vee contains an
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indemnification clause in which Ess & Vee agrees to indemnify, defend, and save and hold
harmless the owner, the construction manager, landlord, building, management, and architect
from any and liability, damage, loss, claims, demands, and actions of any nature whatsoever
"which arise out of or are connected with, or are claimed to arise out of or be connected with the
performance of work by the subcontractor, or any of its sub-subcontractors, any act or omission
of any of the foregoing." lnsofar as the accident did not arise out of and was not in any way
connected with the work being performed by Ess & Vee, the indemnity provision of the contract
is not triggered. Furthermore, third-party plaintiffs are not entitled to common law
indemnification or common contribution from Ess & Vee as Ess & Vee did not cause or create
the alleged condition alleged in the plaintiff s accident and was not negligent as a matter of law.
Finally, third-party plaintiff s claims for breach of contract for failure to procure insurance must
be dismissed as a matter of law as the required insurance was in fact obtained naming New York
Yankee Steak and Plaza Construction as additional insureds, as per contractual requirement.
DEPOSITION TESTIMONIES
7. On the date of the alleged accident, the plaintiff testified that he received his
o'H" page 59, lines 17-
instructions and directives from James Vespe and Julian Gomez (Exhibit
20). Plaintiff did not receive instructions or directives from anyone else. (Page 59, lines 21-22).
Jimmy, the superintendent, told the plaintiff where the condensers needed to go (Page 64, lines
4-9). Julian, the Day & Nite foreman, was giving the plaintiff direction and telling plaintiff
'owhat we were doing, where we were going, when to load it, and to bring the condenser into the
elevator. (Page 71 line 8 to page 72line 3). Plaintiff testified that his right foot struck a piece of
wood causing him to fall into the elevator pit. (Page 98 and 99).
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8. The plaintiff described the piece of wood as about "fwo to three inches in width
and maybe three or four inches long." (Exhibit "H" page 102, lines 5-9). With regard to the
piece of wood that the plaintiff tripped on, plaintiff was asked the following questions and gave
the following responses at his examination before trial:
Q: The piece of wood you tripped on, do you know how long that wood came
to be in the location where it was?
A: No,I do not.
Q: Do you know for how long a period of time it had been in the location
where it was?
Mr. Diamond: Note my objection to the form. You can answer.
A: No.
,1. ** * {.
a Do you have any knowledge in terms of the name of the company that
may have placed or left that piece of wood that was involved in your
accident?
A No, I do not.
a And the piece of wood that was involved in your accident, can you again
give a description of the dimensions of it, please?
A Yes, it was two to three inches in width, approximately two to three inches
in length, or three to four inches in length.
a Were there any other pieces of wood that you had observed in the area of
your accident, the immediate area?
A: Not that I recall.
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Q: It was just that one piece only?
A: Yes.
(Exhibit "I" page 314, line 8-18 and page 349 line I 1 to page 350 line 6).
9. Frank Cioppa, the foreman for Ess & Vee has been employed by the company for
ooB"
34 years. (Exhibit to cross-motion, page 8 line 1l-22). Mr. Cioppa worked as the foreman
for Ess & Vee at the New York Yankee Steakhouse Project. (Page 10 line 18 to page 11 line 2).
Mr. Cioppa identified Plaza Construction as the general contractor for the New York Yankee
Steakhouse job. (Page 16, lines 8-14). Ess & Vee is a drywall, sheetrock and acoustical ceilings
contractor. (Page 17, lines 13-16).
10. Ess & Vee's scope of work on this job entailed dry wall, sheetrock, and ceilings.
(Page 19, line 20-23). Ess & Vee had weekly meetings held by Mr. Cioppa at the job site but
they were only attended by Ess & Vee employees. (Page 2l line 12 to page 22line 16). Ess &
Vee delivered drywall, metal studs, insulation, and grid and tile to the job. (Page27,lines 6-16).
11. Mr. Cioppatestified that Ess & Vee performed drywall work on the first level
below ground level. (Page 30, lines 12-21). Ess & Vee did not use any wood to perform any of
its work. (Page 30 line 25 to page 31 line 3). Mr. Cioppa was shown a photograph which
depicted the elevator pit on the first basement level at the New York Yankee Steakhouse. (Page
34, lines 15-19). Ess & Vee did not do any work around the pit at the time the photograph was
taken. (Page 34,lines 20-22). Mr. Cioppa testified that Ess & Vee installed sheetrock around
the elevator after the elevator was installed. (Page 32, lines 7-13). It is uncontroverted that the
elevator was not installed on the date of the alleged accident.
12. Mr. Cioppa testified that the laborers on site that were tasked with cleaning up
were employed by Plaza Construction. (Page 43, lines 5-13). Mr. Cioppa observed the laborers
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cleaning up construction material. (Page 44, lines 4-12). The Ess & Vee crew did not do any
work with respect to either creating the elevator pit or protecting it after it came into existence.
(Page 51, lines 7-1 l). Ess & Vee was not hired to do any protection work for floor openings on
the jobsite. (Page 54, lines 17-24). Mr. Cioppa does not recall storing any of Ess & Vee's
materials in the elevator pit allegedly involved in the plaintiff s accident. (Page 56, lines 18-21).
13. Mr. Cioppa testified that George Usher, the superintendent for Plaza, was in
charge of the site. (Page 57,lines 12-24). If Mr. Cioppa had any safety concerns, Mr. Usher
would be the person that he would bring them to. (Page 57, lines l7-2I). Mr. Cioppa observed
thePlaza laborers performing cleanup and moving debris on the site. (Page 58, lines 5-16). As
will be seen from the testimony of the other parties, Ess & Vee did not cause or create the
alleged debris condition involved in the plaintiffs accident, had no duty to perform
housekeeping or clean up on the job, and had no duty to provide protection work, to wit,
protecting, covering, or banicading floor openings on the jobsite. These tasks were performed
by the general contractor's laborers on thejobsite.
14. George Usher, Jr., was employed as a superintendent for Plaza Construction on
the date of the alleged accident. He was employed as the superintendent for a period of 16 years
as of the date that he testified. (Exhibit "K" page 8, line 20 to page 10, line 8). Plaza was hired
to build a restaurant in an existing old bank based upon drawings provided by the architect.
(Page 23,lines 4-10). In addition to himself Mr. Usher testified thatPlaza would employ two,
occasionally three laborers on the jobsite. (Page 41, line 24 to page 42,line 21). The function of
the laborers was to maintain housekeeping, clean, and perform minor demolition. (Page 42,line
24 to page 43, line 5). If Mr. Usher saw an unsafe condition, he would tell the laborers to place
wood or plylvood protection over a hole. (Page 43, lines 6-12). Construction work such as
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installing barricades around holes or openings, placing wood over holes or openings was done by
thePlaza labor force. (Page 54, lines 21 to page 55, line 2). There was no separate contractor
that was hired to do protection work. (Page 54, lines 15-20).
15. Mr. Usher testified that Ess & Vee carpenters did not have any contractual
responsibility for protection work. (Exhibit "K" page 63, lines 12-20 andPage 64,line21-25).
16. Specifically, Mr. Usher testified that after the elevator pit came into existence,
Plaza planked it over and covered it with plywood. (Exhibit "K" page 95, lines 11-17). There
were OSHA planks with plywood on top of the pit. (Page 95, lines 18-24). Mr. Usher did not
recall anyone working with wood attheLL2level. (Page 133, lines22-24). If there was debris
in the conidor at that level it was the responsibility of Plazato clean it up. (Page 133, lines 25 to
page l34,line 4). Following the plaintiff s accident, when Mr. Usher went to the elevator pit
that the plaintiff had fallen into, he did not observe any other trades working in the area. (Page
138, lines 12-20).
17. Chris Wolske was employed as the project manager for Baring Industries on the
date of the alleged accident. (Exhibit "L" page 8 line 15 to page 9, linier 5). Mr. Wolske
testified that the Plazalaborers were responsible for debris removal. (Page 58, lines 15-23). Mr.
Wolske was not familiar with a company named Ess & Vee Acoustical and never had any
dealings with them. (Page 105, lines 19-24). Mr. Wolske had no knowledge as to what the
lighting conditions or the condition of the floor was at the LL2 level at the time of the accident.
(Page 106, lines 9-19).
18. James Vespe was the construction manager for Day & Nite on the date of the
o'M" page 9, lines 4-9 and page 10, lines 1l-17). As
alleged accident. (Exhibit a construction
manager his duties were to price jobs and lay out the jobs to the Day & Nite foreman. (Page 12,
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lines 23 to page 13, line 2). Day & Nite had two workers for this job, Julian Gomez and Kevin
McGonigal. (Page 21, lines 5-11). Mr. Vespe would give the plaintiff and Mr. Gomez their job
description each day. (Page 21,line 24 to page 22 line?). Mr. Vespe was onsite on the day of
the accident. (Page 27, lines 6-9). Day & Nite received the evaporators for the walk-in
refrigerators on that date. (Page 27,lines 10-18). Mr. Vespe testified that the laborers on the site
were responsible for the removal of construction debris in work areas and passageways which
could create tripping hazards. (Page 68, lines 5-15). If Mr. Vespe had a complaint with regards
to debris he would have brought that to Plaza Construction so that the laborers could clean it.
(PageTl,lines 8-12).
19. Julian Gomez was employed as a foreman by Day & Nite in September 2013.
(Exhibit "P" page 11, lines 16-18). On the date of the accident Day & Nite was receiving
evaporator coils and condensing units. (Page 30, lines 13-16). At the time of the accident Mr.
Gomez was pushing and the plaintiff was pulling the evaporator coil. (Page 51, lines 7-10). The
plaintiff was facing Mr. Gomez and back pedaling at the time of the accident. (Page 51, lines
11-17). While Mr. Gomez was facing the plaintiff, the plaintiff fell into the elevator pit. (Page
55 lines 24topage 56line 12).
20. Raymond Chin was the B&G Electrical foreman for the New York State Yankee
Steak jobsite. (Exhibit "N" page 13, lines 6-11). His job duties were to supervise, coordinate
with the general contractor, and coordinate with trades. He would also lay out work every day
for his electricians. (Page 13, lines 12-19). B&G was retained by Plaza to provide temporary
lighting and electricity as well as a fire alarm system. (Exhibit "N" page 16 and 20). Mr. Chin
was shown defendant's Exhibit A-1 which shows the elevator pit involved in the plaintiffs
alleged accident. Mr. Chin testified that to 15,000 foot coils of BX and other B&G materials in
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the pit. (Page 47, lines 9 to page 48 line 5). Mr. Chin understood Mr. Usher to be the
superintendent on the job who would be the one to rectify unsafe conditions. (Page 63, lines 4-
18). Mr. Chin was not familiar with Ess & Vee Acoustical Contractors. (Page 85, lines 13-16).
He did not recall seeing the carpenters work on any of the basement levels on September 6,
2013. (Page 86, lines 16-18). He only observed the carpenters working on the first floor dining
room on that date. (Page 86, lines 5-15).
THE THIRD PARTY PLAINTIFFS' CLAIM FOR BREACH OF CONTRACT
F'OR FAILURE TO PROCURE INSURANCE MUST BE DISMISSIED AS A
MATTER OF LAW AS INSURANCE WAS IN FACT PURCHASED FOR THE
BENEFIT OF NYY STEAK AI\D PLAZA CONSTRUCTION.
21. 'The third third-party summons and complaint alleges a breach of agreement to
secure liability insurance inuring to the benefit of New York Yankee Steak and Plaza
Construction. Ess & Vee's response to the preliminary conference order is annexed herein as
Exhibit "D." Exhibit "A" to the response to the preliminary conference order contains the Allied
World Assurance Company insurance policy. At the outseto the certificate of liability insurance
issued to Ess & Vee Acoustical names New York Yankee Steak 7 West 51't Street, New York,
andPlaza Construction Corporation as additional insureds. The additional insured endorsement
of the policy also names Plaza Construction Corporation, 1065 Avenue of the Americas, New
York, New York and New York Yankee Steak Manhattan, LLC clo Hard Rock Cafe
International USA, 6100 Old Park Lane, Orlando, Florida, as insureds under the policy. The
additional insured endorsement also indicates that owners, lessees, or contractors are additional
o'as
insureds required by written contract". Policy number 5050-0309 provides coverage for the
period between February 28, 2013 through February 28, 2014 with limits of $1,000,000 per
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occunence and a $2,000,000 general aggregate. Umbrella/excess liability coverage is afforded
by RLI Insurance in the amount of $20,000,000 per occurrence.
22. Contrary to the allegations contained in the third third-party complaint, a policy
was indeed taken out with Allied World which on its face would provide coverage to the third
party plaintiffs. As such, coverage was procured for third third-party plaintiffs. To the extent
that it is believed that Allied should be providing coverage and is acting contrary to its policy
provisions, then third third-party plaintiffs should seek such coverage against Allied through the
means of a declaratory judgment action. As insurance was in fact purchased for the benefit of
third third-party plaintiffs, the claim for breach of contract for failure to procure insurance must
be dismissed as a matter of law.
NEW YORK YANKEE STEAK AI\D PLAZA CONSTRUCTION'S CLAIM FOR
CONTRACTUAL INDEMNIFICATION MUST BE DISMISSED
23. Third third-party plaintiffs New York Yankee Steak and Plaza Construction
contend that they are entitled to contractual indemnification from Ess & Vee Acoustical. The
trade subcontact between Plaza Construction and Ess & Vee (Exhibit "C") contains an
indemnification and insurance provision at Article 9.1 Article 9(A) states:
"To the extent permitted by law, subcontractor shall indemniff, defend,
save and hold the owner, the construction manager, landlord, building,
management and architect ... their respective partners, officers, employees
and any one else acting for or on behalf of any of them harmless from and
against all liability, damages, loss, claims, demands, and actions of any
nature whatsoever which arise out of or are connected with, or are claimed
to arise out ofor be connected:
1. the perforunance of work by the subcontractor, or any of its sub-
subcontractors, any act or omission of any of the foregoing:
2. any accident or occurrence which happens, or is alleged to have
happened, in or about the place where work is being performed or in the
vicinity thereof (a) while the subcontractor is performing the work, either
directly or indirectly through a subcontractor or material agreement, or (b)
while any of the subcontractor's property, equipment or personnel are in
t
The insurance requirements are specifically enumerated in Exhibit "E" to the subcontract.
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019
or about such place or the vicinity thereof by reason of or as a result of the
performance of the work."
A plain reading of the indemnification provision relied upon by the third third-party
plaintiffs expressly limits Ess & Vee's duty to indemnifu to claims that arise out or that are
connected with Ess & Vee's work. The contract also states that the indemnity provision shall not
be construed to indemnify Plaza or New York Yankee Steak for its own negligence. (Exhibit
"C," Article 9(C) wherein it states: "the provisions of the indemnity provided for herein shall not
be construed to indemniff any indemnitee for its own negligence if not permitted by law....").
24. It is manifest that the accident did not arise out of any act, occurrence, omission
or negligence of Ess & Vee. As conceded by Mr. Usher at his examination before trial, Plaza
installed barricades and other perimeter protections around the jobsite and was responsible for
protecting all openings such as the floor opening/elevator pit where the accident allegedly
occurred. Plazawas responsible forthe protection work on the jobsite and had installed OSHA
planks with plywood on top to protect the opening. The testimony of all parties in this matter
has confirmed that Plaza employed the laborers who were responsible for maintenance,
housekeeping, and cleaning the jobsite which would include removal of construction debris
created by any trade.
25. Ess & Vee as the carpentry, drywall, and acoustical ceiling subcontractor was not
responsible for housekeeping, cleaning or debris removal at the jobsite. Moreover importantly,
Mr. Cioppa testified that Ess & Vee did not work with wood. Rather, they worked with
sheetrock, drywall, insulation, and metal studs. There is no evidence that the piece of wood that
the plaintiff claims to have tripped on while back pedaling was created by Ess & Vee. Ess &
Vee had no duty to protect the elevator pit that the plaintiff claims to have stepped into.
Furthermore, to the extent that the plaintiff claims that illumination was responsible for his
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019
accident, Ess & Vee as the drywall and acoustical ceiling subcontractor had no duty to provide
power or temporary lighting. The power or temporary lighting, according to the testimony of
Mr. Chin, was provided by B&G Electrical.
26. The indemnity provision in Article 9 of the trade subcontract between Ess & Vee
andPlaza Construction is triggered only where the claim arose out of or was in connection with
the work being performed by Ess & Vee. Clearly, that is not the case here. The record is bereft
of any evidence that sheetrock and ceiling installation work performed by Ess & Vee caused or
contributed to the plaintifls alleged accident. Ess & Vee did not create the wooden debris, was
not responsible for the provision of temporary lighting, and did not perform any protection work,
to wit, provision of banicades, floor coverings, or planking to protect from the elevator pit
involved in the accident. Based upon the foregoing, New York Yankee Steak and Plaza
Construction are not entitled to contractual indemnification from Ess & Vee as the accident
unequivocally did not arise out of their work.
27. It is worthy of mention that third third-party plaintiffs would not be entitled to
indemnification against Ess & Vee based upon the provisions of General Obligations Law $5-
322.t.
28. An indemnification provision that purports to indemnify an indemnitee for their
negligence is void under the General Obligations Law $5-322.1. Brown v. Two Exchanqe Plaza
Partners, 76 N.Y.2d 172,556, N.Y.S.2d 991; Itri Brick and Concrete v. Aetna Casualty Insurety,
89 N.Y.2d 786,658 N.Y.S.2d 903.
29. Mr. Usher acknowledged that Plazawas required to provide safety at the jobsite.
(Page26,line 7-11). It was the exclusive duty of the Plazalaborers to provide housekeeping,
and to rectify unsafe conditions. (Page 43). Mr. Usher would check to make sure that when
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019
work was complete that the protection was put back. (Page 55, lines 18- 2l). No one else was
tasked with the duty of protection work at the New York Yankee Steakhouse. (Page 95 line 1l
to page 96 line 6;page 127 lines 7-18; page 130 lines lL-22; and page l32,line 8-11). Third
third-party defendants are not entitled to contractual indemnification as a matter of law and as
such this cause of action should be dismissed.
THIRD THIRD-PARTY ' CI,AIMS X'OR COMMON I,AW
CONTRIBUTION AI\D II\DEMNIFICATION MUST BE DISMISSED
AS A MATTER OF LAW
30. To establish a claim for common-law indemnification, "the one seeking an
indemnity must prove not only that it was not guilty of any negligence beyond statutory liability
but must also prove that the proposed indemnitor was guilty of some negligence that conhibuted
to the causation of the accident." (Perri v. Gilbert Johnson. Ltd., 14 A.D.3d 681, 684-685,
quoting Correia v. Professional Data Manasement,259 A.D.2d 60,65; Priestly v. Montefiore
Medical Centqr/Einstein Medical Center, 10 A.D.3d 493,495. It is well settled that an owner
who is only vicariously liable under the Labor Law may obtain full indemnification from the
party wholly at fault. Chapel v. Mitchell, 84 N.Y.2d 345,347.
31. Based upon the evidence in the record,Plaza has failed to establish that it is free
from any negligence but more importantly has failed to establish that Ess & Vee is negligent to
any degree for contributing to the plaintiff s alleged accident. ln the instant matter, the record is
completely devoid of any evidence of act of negligence on the part of Ess & Vee that would
entitle third third-party plaintiffs to common law indemnification or contribution. Moreover,
there is not a scintilla of evidence to establish that Ess & Vee created the conditions that caused
the plaintiff s accident, i.e., wooden debris, an unguarded opening, or insufficient illumination.
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019
32. Indemnity involves an attempt to shift the entire loss from one who is compelled
to pay for a loss without regard to his own fault, to another party who should more properly bear
responsibility for that loss because it was the actual wrongdoer. Trustees of Columbia
Universitvv.Mitchell/GiurgolaAssociates,l09 A.D.2d449,492N.Y.S.Zd371. Baseduponthe
foregoing, the third third-party claims for common law indemnification and common law
contribution should be dismissed as a matter of law.
33. For the reasons stated above, all cross-claims asserted against Ess & Vee
Acoustical must be dismissed as a matter of law. None of the testimony by any party to date has
inculpated Ess & Vee. Furthermore, with the exception of Plaza Construction, none of the
parties in this action entered into a written agreement with Ess & Vee. The cross-claims asserted
by the parties against Ess & Vee for contribution and indemnification are conclusory allegations
of negligence which are devoid of any evidence to demonstrate that Ess & Vee caused or
cont
Preview
FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 Exhibit A FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 NYSCEF - New York County Supreme Court Gonfirmation Notice This is an automated response for Supreme Court cases. The NYSCEF site has received your electronically filed documents for the following case. 15832712013 KEVIN McGONIGAL - v. - NYY STEAK MANHATTAN, LLG et al Assigned Judge: Margaret Ghan Documents Received On 02t't4t2019 09:46 AM Doc # Document Type Motion # 249 NOTICE OF CROSS-MOTION 003 Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e) 250 AFFIDAVIT OR AFFIRMATION IN SUPPORT OF CROSS-MOTION 003 Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e) 251 EXHTBTT(S) A 003 Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e) 252 EXHrBrr(S) B 003 Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e) 253 EXHTBTT(S) C 003 Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e) 254 EXHIBIT(S) D (Redacted per 202.5(e) or 206.5(e)) 003 255 EXHIBIT(S) E (Redacted per 202.5(e) or 206.5(e)) 003 Filing User Name: Robert J Paliseno Phone #: 212-964-7300 E-mailAddress: rpaliseno@smithmazure.com Fax#'. Work Address: 111 JOHN ST NEW YORK, NY 10038 E-mail Notifications An e-mail notification regarding this filing has been sent to the following address(es) on 0211412019 09:46 AM: AURILIA, PATRICK - auriliap@fcllp.com DIAMANTIS, NIKOLAOS E - nikolaos.diamantis@cna.com Hon. Milton A. Tingling, New York County Clerk and Clerk of the Supreme Court Phone: 646-386-5956 Website: http://www.nycourts.gov/courts/1jd/supctmanh/county_clerk_operations.shtml NYSCEF Resource Genter - EFile@nycourts.gov Phone: (646) 386-3033 Fax: (212)401-9146 Website : www. nycourts. gov/efile Page I of 2 FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 NYSCEF - New York County Supreme Court Gonfirmation Notice 15832712013 KEVIN McGONIGAL -v. - NYY STEAK MANHATTAN, LLG et al Assigned Judge: Margaret Ghan DIAMOND, ANDREW R - adiamond@sacks-sacks.com FULLERTON, EILEEN R - efullerton@fullertonbeck.com HALL, THOMAS JAMES - hallt@fcllp.com KUTNER, KENNETH J - kjkutner@pvrklaw.com LAMBOLEY, WILLIAM CONZELMAN - wlamboley@londonfischer.com LORE, DAVID ALEXANDER - dlore@milbermakris.com METSON, MARC JONATHAN - mmetson@mtacc.info PALISENO, ROBERT J - rpaliseno@smithmazure.com SCARIA, SUSAN APRIL - sscaria@fullertonbeck.com ZRENDA, KYLE JOSEPH - kyle.zrenda@vbpnplaw.com NOTEr lf submitting a working copy of this filing to the court, you must include as a notification page firmly affixed thereto a copy of this Confirmation Notice. Hon. Milton A. Tingling, New York Gounty Clerk and Glerk of the Supreme Court Phone: 646-386-5956 Website: http://www.nycourts.gov/courts/1jd/supctmanh/county_clerk_operations.shtml NYSCEF Resource Genter - EFile@nycourts,gov Phone: (646) 386-3033 Fax: (212)401-9146 Website : www. nycou rts. gov/efile Page2 of 2 FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 SUPREME COURT OF THE STATE OF NEW YORK COTINTY OF NEW YORK KEVIN MCGONIGAL, Plaintiff, NOTICE OF -against- CROSS-MOTION Index No. 15832712013 NYY STEAK MANHATTAN, LLC,PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, Hon. Margaret A. Chan, J.S.C. INC., Defendants. X PLEASE TAKE NOTICE that upon the affirmation of Robert J. Paliseno dated February 14,2019, and upon all the pleadings and proceedings had herein, the undersigned will cross move this Court at Motion Submission Part, Room 130, at the Courthouse located at 60 Centre Street, New York, NY 10007, on February 22r 2019, at 9:30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order pursuant to CPLR 53212 granting summary judgment in favor of the third third-party defendant Ess & Vee Acoustical Contractors, Inc.o dismissing the third third-party complaint and all cross-claims with prejudice and granting such other, further, and different relief as the Court may deem just, proper, and equitable. The above-entitled action is for bodily injury. PLEASE TAKE FURTHER NOTICE you are required to serve answering affidavits and cross-motions seven (7) days before the return date hereof. Dated: New York, New York February 14,2019 Yours, etc., SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C. r".;x}, {V" ROBERT J. PALISENO For the Firm Attorneys for Third Third-Party Defendant Ess & Vee Acoustical Contractors, Inc. lllJohnStreet New York, NY 10038 (2r2) 964-7400 Our File No. AWA-00112 FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 TO: Fabiani Cohen & Hall, LLP 570 Lexington Avenue,4th Floor New York, NY 10022 (2 t2) 6 4 4 - 4 420 / (2r2) 207 -8 | 82 (F) Attorney for DefendanVThird Third-Party Plaintiff NYY Steak Manhattan, LLC, & Plaza Construction LLCf/WaPlaza Construction Corp., Defendant/Third-Party PlaintifflThird Third-Party Plaintiff Plaz a Construction Corp. Fullerton Beck, LLP 1 West Red Oak Lane White Plains, NY 10604 (914) 305-8634 Attorney for Third Third-Party Defendant B&G Electrical Contractors Law Offices of Charles J. Siegel 125 Broad Street, 7th Floor New York, NY 10004 (212) 440-2350(866) 603-85e5 (F) Attorney for Third-Party Defendant/Second Third-Party Plaintiff Baring Industries, Inc. Milber Makris Plousadis & Seiden, LLP 1000 Woodbury Road, Suite 402 Woodbury, NY I1797 (sr6) 7 t2-4000(5 1 6) 7 12-4013 (F) Attorney for Second Third-Party Defendants Day &Nite Refrigeration Corp. and Kimco Refrigeration Corp. Sacks and Sacks, LLP 150 Broadway,4th Floor New York, NY 10038 (212) e64-ss70/(212) 349-2r4r (F) Attorney for Plaintiff Kevin McGonigal RIP/mn AWA-00112/576 -2- FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X KEVIN MCGONIGAL, Plaintiff, AFF'IRMATION IN SUPPORT -against- Index No. 15832712013 NYY STEAK MANHATTAN, LLC,PLAZA CONSTRUCTION CORP. ANd BARING INDUSTRIES, fNc., Hon. Margaret A. Chan, J.S.C. Defendants. X Third-Party Index No. PLAZA CONSTRUCTION CORP., 595146/20t4 Third-Party Plaintiff, -against- BARING INDUSTRIES, INC., Third-Party Defendant. X BARING INDUSTRIES, INC., Second Third-Party Plaintifl Second Third-Party Index No. -against- s9st30l20ts DAY & NITE REFRIGERATION CORP., and KIMCO REFRIGERATION CORP., Second Third-Party Defendants NYY STEAK MANHATTAN, LLC &PLAZA Third Third-Party Index No. CONSTRUCTION LLC fIW A PLAZA CONSTRUCTION CORP., Third Third-Party Plaintiffs, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES' INC" Third rhird-party Defendants. X ROBERT J. PALISENO, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following under penalty of perjury and pursuant to CPLR $2106: FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 1. I am a member of the firm of Smith Mazure Director Wilkins Young & Yagerman, P.C., attorneys for the third third-party defendant Ess & Vee Acoustical Contractors, Inc. (hereinafter "Ess & Vee") and I am fully familiar with the facts and circumstances surrounding the within action. 2. This affirmation is made in support of the instant motion for an order pursuant to CPLR 53212 granting summary judgment in favor of Ess & Vee, dismissing the third third-party complaint, dismissing all cross-claims, and granting such other, further, and different relief as the Court may deem just, proper, and equitable. 3. This is an action for damages for personal injuries on account of the alleged negligence of the defendants. The accident arises out of an alleged incident which is claimed to have occurred on September 6, 2013 at the premises under construction known as the New York Yankee Steakhouse located at 7 West 5l't Street, New York, New York. The plaintiff alleges that the accident occurred when he was caused to trip and fall into an unguarded opening at the aforementioned premises due to construction debris and poor lighting. The plaintiff, a steamfitter employed by Day & Nite Refrigeration alWa Kimco Refrigeration, alleges violations of Labor Law $$ 200, 240 and 241(6) with concomitant Industrial Code allegations. The plaintiff Kevin McGonigal does not have any direct claims against Ess & Vee. The third party claims maintained by New York Yankee Steak Manhattan andPlaza Construction against Ess & Vee sound in common law contribution, common law indemnification, contractual indemnification and breach of contract for failure to procure insurance. 4. In the interest of brevity, your affirmant herein adopts and incorporates by reference Exhibits "A" through "P" cited in the motion for summary judgment and affirmation in support of Eileen Fullerton, Esq., dated January 22,2019. In addition to the exhibits annexed in FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 B & G Electrical's motion for summary judgment, the cross-motion for summary judgment herein annexes the following index of exhibits: ' Pleadings - Exhibit "A"; . Examination before trial transcript of Frank Cioppa dated May 24, 2017 - Exhibit ooB"; . Trade subcontract between Plaza Construction and Ess & Vee Acoustical Contractors - Exhibit "C"; . Ess & Vee's response to the preliminary conference order dated December 23, 2015 - Exhibit "D"; ' Plaintifls verified bill of particulars dated October 20,2014 - Exhibit "E". 5. It is well settled that the standard for granting a motion for summary judgment is that the case should be decided when there is no genuine issue to be resolved at trial. Andre v. Pomeroy, 35 N.Y.2d 361,362 N.Y.S.2d 131. The Court must decide whether there is a factual issue and whether that issue is genuine or substantial or is a mere allegation or speculation. Richard v. Credit Suisse,242N.Y.346,l52 N.E. 110 (1926). 6. The plaintiff alleges that on September 6,2013, he was injured while transporting a refrigeration unit on a dolly when he stepped on a piece of wood that caused him to lose his balance and fall into an opening that was behind him (Exhibit "E"). New York Yankee Steak, the lessee of the property retained Plaza Construction as the general contractor for the renovation of an existing bank into a restaurant. Ess & Vee was retained by Plaza Construction to furnish and install drywall, acoustics, and carpentry work (Exhibit "C"). The scope of the work for Ess & Vee is indicated in Article I of the trade subcontract as well as Exhibit "C" to the contract (Exhibit "C"). Article 9 of the contract between Plaza Construction and Ess & Vee contains an FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 indemnification clause in which Ess & Vee agrees to indemnify, defend, and save and hold harmless the owner, the construction manager, landlord, building, management, and architect from any and liability, damage, loss, claims, demands, and actions of any nature whatsoever "which arise out of or are connected with, or are claimed to arise out of or be connected with the performance of work by the subcontractor, or any of its sub-subcontractors, any act or omission of any of the foregoing." lnsofar as the accident did not arise out of and was not in any way connected with the work being performed by Ess & Vee, the indemnity provision of the contract is not triggered. Furthermore, third-party plaintiffs are not entitled to common law indemnification or common contribution from Ess & Vee as Ess & Vee did not cause or create the alleged condition alleged in the plaintiff s accident and was not negligent as a matter of law. Finally, third-party plaintiff s claims for breach of contract for failure to procure insurance must be dismissed as a matter of law as the required insurance was in fact obtained naming New York Yankee Steak and Plaza Construction as additional insureds, as per contractual requirement. DEPOSITION TESTIMONIES 7. On the date of the alleged accident, the plaintiff testified that he received his o'H" page 59, lines 17- instructions and directives from James Vespe and Julian Gomez (Exhibit 20). Plaintiff did not receive instructions or directives from anyone else. (Page 59, lines 21-22). Jimmy, the superintendent, told the plaintiff where the condensers needed to go (Page 64, lines 4-9). Julian, the Day & Nite foreman, was giving the plaintiff direction and telling plaintiff 'owhat we were doing, where we were going, when to load it, and to bring the condenser into the elevator. (Page 71 line 8 to page 72line 3). Plaintiff testified that his right foot struck a piece of wood causing him to fall into the elevator pit. (Page 98 and 99). FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 8. The plaintiff described the piece of wood as about "fwo to three inches in width and maybe three or four inches long." (Exhibit "H" page 102, lines 5-9). With regard to the piece of wood that the plaintiff tripped on, plaintiff was asked the following questions and gave the following responses at his examination before trial: Q: The piece of wood you tripped on, do you know how long that wood came to be in the location where it was? A: No,I do not. Q: Do you know for how long a period of time it had been in the location where it was? Mr. Diamond: Note my objection to the form. You can answer. A: No. ,1. ** * {. a Do you have any knowledge in terms of the name of the company that may have placed or left that piece of wood that was involved in your accident? A No, I do not. a And the piece of wood that was involved in your accident, can you again give a description of the dimensions of it, please? A Yes, it was two to three inches in width, approximately two to three inches in length, or three to four inches in length. a Were there any other pieces of wood that you had observed in the area of your accident, the immediate area? A: Not that I recall. FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 Q: It was just that one piece only? A: Yes. (Exhibit "I" page 314, line 8-18 and page 349 line I 1 to page 350 line 6). 9. Frank Cioppa, the foreman for Ess & Vee has been employed by the company for ooB" 34 years. (Exhibit to cross-motion, page 8 line 1l-22). Mr. Cioppa worked as the foreman for Ess & Vee at the New York Yankee Steakhouse Project. (Page 10 line 18 to page 11 line 2). Mr. Cioppa identified Plaza Construction as the general contractor for the New York Yankee Steakhouse job. (Page 16, lines 8-14). Ess & Vee is a drywall, sheetrock and acoustical ceilings contractor. (Page 17, lines 13-16). 10. Ess & Vee's scope of work on this job entailed dry wall, sheetrock, and ceilings. (Page 19, line 20-23). Ess & Vee had weekly meetings held by Mr. Cioppa at the job site but they were only attended by Ess & Vee employees. (Page 2l line 12 to page 22line 16). Ess & Vee delivered drywall, metal studs, insulation, and grid and tile to the job. (Page27,lines 6-16). 11. Mr. Cioppatestified that Ess & Vee performed drywall work on the first level below ground level. (Page 30, lines 12-21). Ess & Vee did not use any wood to perform any of its work. (Page 30 line 25 to page 31 line 3). Mr. Cioppa was shown a photograph which depicted the elevator pit on the first basement level at the New York Yankee Steakhouse. (Page 34, lines 15-19). Ess & Vee did not do any work around the pit at the time the photograph was taken. (Page 34,lines 20-22). Mr. Cioppa testified that Ess & Vee installed sheetrock around the elevator after the elevator was installed. (Page 32, lines 7-13). It is uncontroverted that the elevator was not installed on the date of the alleged accident. 12. Mr. Cioppa testified that the laborers on site that were tasked with cleaning up were employed by Plaza Construction. (Page 43, lines 5-13). Mr. Cioppa observed the laborers FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 cleaning up construction material. (Page 44, lines 4-12). The Ess & Vee crew did not do any work with respect to either creating the elevator pit or protecting it after it came into existence. (Page 51, lines 7-1 l). Ess & Vee was not hired to do any protection work for floor openings on the jobsite. (Page 54, lines 17-24). Mr. Cioppa does not recall storing any of Ess & Vee's materials in the elevator pit allegedly involved in the plaintiff s accident. (Page 56, lines 18-21). 13. Mr. Cioppa testified that George Usher, the superintendent for Plaza, was in charge of the site. (Page 57,lines 12-24). If Mr. Cioppa had any safety concerns, Mr. Usher would be the person that he would bring them to. (Page 57, lines l7-2I). Mr. Cioppa observed thePlaza laborers performing cleanup and moving debris on the site. (Page 58, lines 5-16). As will be seen from the testimony of the other parties, Ess & Vee did not cause or create the alleged debris condition involved in the plaintiffs accident, had no duty to perform housekeeping or clean up on the job, and had no duty to provide protection work, to wit, protecting, covering, or banicading floor openings on the jobsite. These tasks were performed by the general contractor's laborers on thejobsite. 14. George Usher, Jr., was employed as a superintendent for Plaza Construction on the date of the alleged accident. He was employed as the superintendent for a period of 16 years as of the date that he testified. (Exhibit "K" page 8, line 20 to page 10, line 8). Plaza was hired to build a restaurant in an existing old bank based upon drawings provided by the architect. (Page 23,lines 4-10). In addition to himself Mr. Usher testified thatPlaza would employ two, occasionally three laborers on the jobsite. (Page 41, line 24 to page 42,line 21). The function of the laborers was to maintain housekeeping, clean, and perform minor demolition. (Page 42,line 24 to page 43, line 5). If Mr. Usher saw an unsafe condition, he would tell the laborers to place wood or plylvood protection over a hole. (Page 43, lines 6-12). Construction work such as FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 installing barricades around holes or openings, placing wood over holes or openings was done by thePlaza labor force. (Page 54, lines 21 to page 55, line 2). There was no separate contractor that was hired to do protection work. (Page 54, lines 15-20). 15. Mr. Usher testified that Ess & Vee carpenters did not have any contractual responsibility for protection work. (Exhibit "K" page 63, lines 12-20 andPage 64,line21-25). 16. Specifically, Mr. Usher testified that after the elevator pit came into existence, Plaza planked it over and covered it with plywood. (Exhibit "K" page 95, lines 11-17). There were OSHA planks with plywood on top of the pit. (Page 95, lines 18-24). Mr. Usher did not recall anyone working with wood attheLL2level. (Page 133, lines22-24). If there was debris in the conidor at that level it was the responsibility of Plazato clean it up. (Page 133, lines 25 to page l34,line 4). Following the plaintiff s accident, when Mr. Usher went to the elevator pit that the plaintiff had fallen into, he did not observe any other trades working in the area. (Page 138, lines 12-20). 17. Chris Wolske was employed as the project manager for Baring Industries on the date of the alleged accident. (Exhibit "L" page 8 line 15 to page 9, linier 5). Mr. Wolske testified that the Plazalaborers were responsible for debris removal. (Page 58, lines 15-23). Mr. Wolske was not familiar with a company named Ess & Vee Acoustical and never had any dealings with them. (Page 105, lines 19-24). Mr. Wolske had no knowledge as to what the lighting conditions or the condition of the floor was at the LL2 level at the time of the accident. (Page 106, lines 9-19). 18. James Vespe was the construction manager for Day & Nite on the date of the o'M" page 9, lines 4-9 and page 10, lines 1l-17). As alleged accident. (Exhibit a construction manager his duties were to price jobs and lay out the jobs to the Day & Nite foreman. (Page 12, FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 lines 23 to page 13, line 2). Day & Nite had two workers for this job, Julian Gomez and Kevin McGonigal. (Page 21, lines 5-11). Mr. Vespe would give the plaintiff and Mr. Gomez their job description each day. (Page 21,line 24 to page 22 line?). Mr. Vespe was onsite on the day of the accident. (Page 27, lines 6-9). Day & Nite received the evaporators for the walk-in refrigerators on that date. (Page 27,lines 10-18). Mr. Vespe testified that the laborers on the site were responsible for the removal of construction debris in work areas and passageways which could create tripping hazards. (Page 68, lines 5-15). If Mr. Vespe had a complaint with regards to debris he would have brought that to Plaza Construction so that the laborers could clean it. (PageTl,lines 8-12). 19. Julian Gomez was employed as a foreman by Day & Nite in September 2013. (Exhibit "P" page 11, lines 16-18). On the date of the accident Day & Nite was receiving evaporator coils and condensing units. (Page 30, lines 13-16). At the time of the accident Mr. Gomez was pushing and the plaintiff was pulling the evaporator coil. (Page 51, lines 7-10). The plaintiff was facing Mr. Gomez and back pedaling at the time of the accident. (Page 51, lines 11-17). While Mr. Gomez was facing the plaintiff, the plaintiff fell into the elevator pit. (Page 55 lines 24topage 56line 12). 20. Raymond Chin was the B&G Electrical foreman for the New York State Yankee Steak jobsite. (Exhibit "N" page 13, lines 6-11). His job duties were to supervise, coordinate with the general contractor, and coordinate with trades. He would also lay out work every day for his electricians. (Page 13, lines 12-19). B&G was retained by Plaza to provide temporary lighting and electricity as well as a fire alarm system. (Exhibit "N" page 16 and 20). Mr. Chin was shown defendant's Exhibit A-1 which shows the elevator pit involved in the plaintiffs alleged accident. Mr. Chin testified that to 15,000 foot coils of BX and other B&G materials in FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 the pit. (Page 47, lines 9 to page 48 line 5). Mr. Chin understood Mr. Usher to be the superintendent on the job who would be the one to rectify unsafe conditions. (Page 63, lines 4- 18). Mr. Chin was not familiar with Ess & Vee Acoustical Contractors. (Page 85, lines 13-16). He did not recall seeing the carpenters work on any of the basement levels on September 6, 2013. (Page 86, lines 16-18). He only observed the carpenters working on the first floor dining room on that date. (Page 86, lines 5-15). THE THIRD PARTY PLAINTIFFS' CLAIM FOR BREACH OF CONTRACT F'OR FAILURE TO PROCURE INSURANCE MUST BE DISMISSIED AS A MATTER OF LAW AS INSURANCE WAS IN FACT PURCHASED FOR THE BENEFIT OF NYY STEAK AI\D PLAZA CONSTRUCTION. 21. 'The third third-party summons and complaint alleges a breach of agreement to secure liability insurance inuring to the benefit of New York Yankee Steak and Plaza Construction. Ess & Vee's response to the preliminary conference order is annexed herein as Exhibit "D." Exhibit "A" to the response to the preliminary conference order contains the Allied World Assurance Company insurance policy. At the outseto the certificate of liability insurance issued to Ess & Vee Acoustical names New York Yankee Steak 7 West 51't Street, New York, andPlaza Construction Corporation as additional insureds. The additional insured endorsement of the policy also names Plaza Construction Corporation, 1065 Avenue of the Americas, New York, New York and New York Yankee Steak Manhattan, LLC clo Hard Rock Cafe International USA, 6100 Old Park Lane, Orlando, Florida, as insureds under the policy. The additional insured endorsement also indicates that owners, lessees, or contractors are additional o'as insureds required by written contract". Policy number 5050-0309 provides coverage for the period between February 28, 2013 through February 28, 2014 with limits of $1,000,000 per FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 occunence and a $2,000,000 general aggregate. Umbrella/excess liability coverage is afforded by RLI Insurance in the amount of $20,000,000 per occurrence. 22. Contrary to the allegations contained in the third third-party complaint, a policy was indeed taken out with Allied World which on its face would provide coverage to the third party plaintiffs. As such, coverage was procured for third third-party plaintiffs. To the extent that it is believed that Allied should be providing coverage and is acting contrary to its policy provisions, then third third-party plaintiffs should seek such coverage against Allied through the means of a declaratory judgment action. As insurance was in fact purchased for the benefit of third third-party plaintiffs, the claim for breach of contract for failure to procure insurance must be dismissed as a matter of law. NEW YORK YANKEE STEAK AI\D PLAZA CONSTRUCTION'S CLAIM FOR CONTRACTUAL INDEMNIFICATION MUST BE DISMISSED 23. Third third-party plaintiffs New York Yankee Steak and Plaza Construction contend that they are entitled to contractual indemnification from Ess & Vee Acoustical. The trade subcontact between Plaza Construction and Ess & Vee (Exhibit "C") contains an indemnification and insurance provision at Article 9.1 Article 9(A) states: "To the extent permitted by law, subcontractor shall indemniff, defend, save and hold the owner, the construction manager, landlord, building, management and architect ... their respective partners, officers, employees and any one else acting for or on behalf of any of them harmless from and against all liability, damages, loss, claims, demands, and actions of any nature whatsoever which arise out of or are connected with, or are claimed to arise out ofor be connected: 1. the perforunance of work by the subcontractor, or any of its sub- subcontractors, any act or omission of any of the foregoing: 2. any accident or occurrence which happens, or is alleged to have happened, in or about the place where work is being performed or in the vicinity thereof (a) while the subcontractor is performing the work, either directly or indirectly through a subcontractor or material agreement, or (b) while any of the subcontractor's property, equipment or personnel are in t The insurance requirements are specifically enumerated in Exhibit "E" to the subcontract. FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 or about such place or the vicinity thereof by reason of or as a result of the performance of the work." A plain reading of the indemnification provision relied upon by the third third-party plaintiffs expressly limits Ess & Vee's duty to indemnifu to claims that arise out or that are connected with Ess & Vee's work. The contract also states that the indemnity provision shall not be construed to indemnify Plaza or New York Yankee Steak for its own negligence. (Exhibit "C," Article 9(C) wherein it states: "the provisions of the indemnity provided for herein shall not be construed to indemniff any indemnitee for its own negligence if not permitted by law...."). 24. It is manifest that the accident did not arise out of any act, occurrence, omission or negligence of Ess & Vee. As conceded by Mr. Usher at his examination before trial, Plaza installed barricades and other perimeter protections around the jobsite and was responsible for protecting all openings such as the floor opening/elevator pit where the accident allegedly occurred. Plazawas responsible forthe protection work on the jobsite and had installed OSHA planks with plywood on top to protect the opening. The testimony of all parties in this matter has confirmed that Plaza employed the laborers who were responsible for maintenance, housekeeping, and cleaning the jobsite which would include removal of construction debris created by any trade. 25. Ess & Vee as the carpentry, drywall, and acoustical ceiling subcontractor was not responsible for housekeeping, cleaning or debris removal at the jobsite. Moreover importantly, Mr. Cioppa testified that Ess & Vee did not work with wood. Rather, they worked with sheetrock, drywall, insulation, and metal studs. There is no evidence that the piece of wood that the plaintiff claims to have tripped on while back pedaling was created by Ess & Vee. Ess & Vee had no duty to protect the elevator pit that the plaintiff claims to have stepped into. Furthermore, to the extent that the plaintiff claims that illumination was responsible for his FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 accident, Ess & Vee as the drywall and acoustical ceiling subcontractor had no duty to provide power or temporary lighting. The power or temporary lighting, according to the testimony of Mr. Chin, was provided by B&G Electrical. 26. The indemnity provision in Article 9 of the trade subcontract between Ess & Vee andPlaza Construction is triggered only where the claim arose out of or was in connection with the work being performed by Ess & Vee. Clearly, that is not the case here. The record is bereft of any evidence that sheetrock and ceiling installation work performed by Ess & Vee caused or contributed to the plaintifls alleged accident. Ess & Vee did not create the wooden debris, was not responsible for the provision of temporary lighting, and did not perform any protection work, to wit, provision of banicades, floor coverings, or planking to protect from the elevator pit involved in the accident. Based upon the foregoing, New York Yankee Steak and Plaza Construction are not entitled to contractual indemnification from Ess & Vee as the accident unequivocally did not arise out of their work. 27. It is worthy of mention that third third-party plaintiffs would not be entitled to indemnification against Ess & Vee based upon the provisions of General Obligations Law $5- 322.t. 28. An indemnification provision that purports to indemnify an indemnitee for their negligence is void under the General Obligations Law $5-322.1. Brown v. Two Exchanqe Plaza Partners, 76 N.Y.2d 172,556, N.Y.S.2d 991; Itri Brick and Concrete v. Aetna Casualty Insurety, 89 N.Y.2d 786,658 N.Y.S.2d 903. 29. Mr. Usher acknowledged that Plazawas required to provide safety at the jobsite. (Page26,line 7-11). It was the exclusive duty of the Plazalaborers to provide housekeeping, and to rectify unsafe conditions. (Page 43). Mr. Usher would check to make sure that when FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 work was complete that the protection was put back. (Page 55, lines 18- 2l). No one else was tasked with the duty of protection work at the New York Yankee Steakhouse. (Page 95 line 1l to page 96 line 6;page 127 lines 7-18; page 130 lines lL-22; and page l32,line 8-11). Third third-party defendants are not entitled to contractual indemnification as a matter of law and as such this cause of action should be dismissed. THIRD THIRD-PARTY ' CI,AIMS X'OR COMMON I,AW CONTRIBUTION AI\D II\DEMNIFICATION MUST BE DISMISSED AS A MATTER OF LAW 30. To establish a claim for common-law indemnification, "the one seeking an indemnity must prove not only that it was not guilty of any negligence beyond statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that conhibuted to the causation of the accident." (Perri v. Gilbert Johnson. Ltd., 14 A.D.3d 681, 684-685, quoting Correia v. Professional Data Manasement,259 A.D.2d 60,65; Priestly v. Montefiore Medical Centqr/Einstein Medical Center, 10 A.D.3d 493,495. It is well settled that an owner who is only vicariously liable under the Labor Law may obtain full indemnification from the party wholly at fault. Chapel v. Mitchell, 84 N.Y.2d 345,347. 31. Based upon the evidence in the record,Plaza has failed to establish that it is free from any negligence but more importantly has failed to establish that Ess & Vee is negligent to any degree for contributing to the plaintiff s alleged accident. ln the instant matter, the record is completely devoid of any evidence of act of negligence on the part of Ess & Vee that would entitle third third-party plaintiffs to common law indemnification or contribution. Moreover, there is not a scintilla of evidence to establish that Ess & Vee created the conditions that caused the plaintiff s accident, i.e., wooden debris, an unguarded opening, or insufficient illumination. FILED: NEW YORK COUNTY CLERK 08/19/2019 02:43 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 08/19/2019 32. Indemnity involves an attempt to shift the entire loss from one who is compelled to pay for a loss without regard to his own fault, to another party who should more properly bear responsibility for that loss because it was the actual wrongdoer. Trustees of Columbia Universitvv.Mitchell/GiurgolaAssociates,l09 A.D.2d449,492N.Y.S.Zd371. Baseduponthe foregoing, the third third-party claims for common law indemnification and common law contribution should be dismissed as a matter of law. 33. For the reasons stated above, all cross-claims asserted against Ess & Vee Acoustical must be dismissed as a matter of law. None of the testimony by any party to date has inculpated Ess & Vee. Furthermore, with the exception of Plaza Construction, none of the parties in this action entered into a written agreement with Ess & Vee. The cross-claims asserted by the parties against Ess & Vee for contribution and indemnification are conclusory allegations of negligence which are devoid of any evidence to demonstrate that Ess & Vee caused or cont