Preview
FILED: NEW YORK COUNTY CLERK 07/29/2019 11:11 AM INDEX NO. 158327/2013
CLERK MDEXNYSCEF:
NO. 158327/2013
[FILED: DOC. NEW
NYSCEF YORK
NO. 379 COUNTY 04 /16 /2019 04:39 PM1 RECEIVED 07/29/2019
NYSCEF DOC. NO. 273 RECEIVED NYSCEF: 04/16/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------- ---------------X
KEV1N McGONIGAL, Motion Sequence No. 003
Plaintiff, Index No. 158327/13
-against -
AFFIRMATION
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION IN OPPOSITION
CORP. and BARING INDUSTRIES, INC.,
Hon. Margaret A. Chan
Defendants.
--------------------------------------------- -------------------X
PLAZA CONSTRUCTION CORP.,
Third-Party Plaintiff,
-against - TP Index No.:
595146/14
BARING INDUSTRIES, INC.,
Third-Party Defendant.
----------- ------------------------------.------X
BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff
-against - Second TP Index No.:
595130/15
DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP.,
Second Third-Party Defendants.
----------------------------------------------X
NYY STEAK MANHATTAN, LLC & PLAZA CONSTRUCTION
LLC f/k/a PLAZA CONSTRUCTION CORP.,
Third Third-Party Plaintiffs,
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.,
Third Third-Party Defendants.
... _.. ...__. ..... _________________..._,---------------------X
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DAVID A. LORE, an attomey duly ±±:3 to practice law before the Courts of this State,
and aware of the penalties of perjury, hereby affirms the following:
1. I am a member of the law firm MILBER MAKRIS PLOUSADIS & SEIDEN, LLP,
attorneys for Second Third-Party Def=±mts- DAY & NITE REFRIGERATION CORP. and
K.I.M. CO. REFRIGERATION CORP. s/h/a KlMCO REFRIGERATION CORP. (hereinafter
collectively referred to as "Day & Nite") herein. As such, I am familiar with the facts and
circumstances of this matter based upon a review of the file -weeked by this office.
2. I respectfully submit this affirmation in opposiden to the summary judgment
motion made on behalf of Third Third-Party Defendant B&G ELECTRICAL CONTRACTORS
("B&G"). Day & Nite, as a third-party defhadant has the same rights adverse to B&G as do the
direct defend st/third-party plaintiffs- and has standing to oppose the motion on that basis. See,
CPLR §1008,
3. Numerous issues of material fact exist with respect to whether plainti ff KEVIN
McGONIGAL's alleged accident arose out of and/or was connected with B&G's work at the site,
and/or out of any act or emission of B&G. This is the triggering language in the indemity
"Q" -
provision in the B&G Trade Subcontract with Plaza Construction (see, B&G's Exhibit the
"A"
iñdesñity provisicñ is located at Article 9 of the Exhibit attached to the subcGñtract). Thus,
the :--r-y dismissal of Plaza's enñhc'üal inda==Mcation claim as against B&G is improper
and B&G's motion must be denied in this regard.
4. Additionally, issues of fact exist in connection with whdher B&G caused or created
the alleged dangerous condition(s) that phkwf claims caused his accident. As such, issues of fact
exist in connection with B&G's negligence, rendering the summary dis-dss^J of any cross-claims
asserted by any party against B&G improper. See, Astarita v. Flintlock Const. Services, LLC, 69
2
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A.D.3d 888, 893 N.Y.S.2d 615 (2d Dept. 2010). It is well settled that a subcontractor such as
B&G may be found negligent under the commen law if it caused or created a dangerous condition
which resulted in the =ccident. See, e.g., Tomyukv. JunefieldAssoc., 57 A.D.3d 518, 868 N.Y.S.2d
(1"
731 (2d Dept. 2018); DeMaria v. RBNB 20 Owner, LLC, 129 A.D.3d 623, 12 N.Y.S,3d 79
(1"
Dept. 2015); Bell v. Bengomo Realty, Inc., 36 A.D.3d 479, 829 N.Y.S.2d 42 Dept. 2007).
5, As discussed more fully below, B&G has not made out a prima facie case that it
did not create the elaimed dangerous condition, i.e. the uncovered and unguarded elevster pit,
which resulted in Mr. McGonigal's mishap. Moreover, the testimony of B&G's own deposition
witness establishes that, at the very least, B&G's work resulted in the pit being =paded and in
the condition that existed on the date of the accident.
6. In this regard, it is very much worth taking to heart the section of motion papers
where the appl ica ble judgment =+aAd is presented. It is of cowse well ecta blicted law
sum=y
that:
"[t]he proponent of a s -.-m-y judgñcat maticñ must make aprimafacie showing
of entitlement to judgment as a matter of law, sufficient evidence in
tendering
admissible form to demonstrate the absence of any material issues of fact. Giuffrida
v Citiban{c Corn.. 100 N.Y.2d 72 (2003); Alvarez v. Pro.rvect How 68 N.,Y_,2d
320, 324 (1986). Once this showing has been made, the burden shifts to the party
opposing the motion to produce evidentiary proof in admissible form sufficient to
resolution."
establish the existence of material issues of fact that require a trial for
Alvarez, supra; Moore v. 3 Phase Equestrian Center, Inc., 83 A.D.3d 677, 922
N.Y.S.2d 98 (2d Dept. 2011).
7. Extremely important is the basic tenet that the evidence must be viewed in the light
most favorable to Day & Nite, the party opposing B&G's motion. Avon Elec. Supplies, Inc. v.
Baywood Elec. Corp., 200 A.D.2d 697, 607 N.Y.S.2d 356 (2d Dept. 1994). When viewed in this
light, the evidence plainly demonstrates that the uncovered and unguarded elevator pit arose out
of B&G's work and storage of its equipment in the pit, and its failure to either place or replace any
cover, barricade or guard on or around the pit when B&G permnnel were not in the area.
3
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8. For the most, & Nite agrees with and incorporates B&G's recitation of the
Day
procedural history of the litigation, the relsieisleps of the parties, and its presentation of plaintiff's
claims as to how the accident occurred. It is true that plaintiff. an employee of Day & Nite, clairns
that he tripped/stumbled over a piece of wood debris as he walked backwards while ¡-u"in;; a cart
cer4 ing a refrigeration unit down a basement corridor at the subject construction site. It is also
true that nlaintiff claims that this caused him to lose his balance and fall into an uncovered and
unbarricaded elevator pit that was behind him, resü!tiñg in his alleged injuries.
9. B&G's counsel's r~1tarian of the facts in the papers is
However, moving
dea#cningly silent for what it omits. Choosing imtead to focus on seceidary issues such as the
lighting conditions, counsel fails to even mention that the reason that the pit was uncovered at the
time of the accident was due to the fact that B&G was storing ñ1ültiple items of electrical
equipment, materials and tools therein, and was performing work in the pit itself in the days
surrounding the incident.
10. Raymond Chin, B&G's foreman, testified on behalf of B&G. The transcript of his
"N."
te-stimony is annexed to B&G's motion papers as Exhibit He was shown the photographs of
"A"
the subject pit annexed hereto as Exhibit and identified it as such. (pgs. 42-43). B&G
installed temporary lighting in the vicinity of the pit. (p. 43). Visible in the pit itself are tlicusañd
foot coils of BX and MC electrical cable. (p. 47). These were used by B&G at the site to perform
its work, "pülling home runs back to the panel for the elevator ni£Isiñe room, power
including
area."
and light in this (p. 47). Mr. Chin üñanitigüGusly and expressly acknowledged that the
materials,"
materials visible in the pit were "B&G and that one of the B&G workers placed them
in the pit. (pgs. 48-49, 77).
4
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11. Mr. Chin did not know when these materials were placed in the pit. (p. 48). They
most."
would have been kept in the pit "until the task was finished...maybe one day, two days the
(pgs. 48-49). Mr. Chin admitted that B&G performed work in the pit, including pulliñg "home
it."
runs for power and Egh±g for the elevator room and the room next to (p. 53). He could not
recall if this work was being performed on the day of the alleged accident. (p. 53).
"protection" "openiñg,"
12. Mr. Chin testified that if B&G removed from an it would
replace that protection when work in that area was completed, for safety purposes. (pgs. 60-61).
B&G did not ask for permission to place their materials in the subject pit. (pgs. 61-62).
13, A copy of the deposition transcript of George Usher is annexed to B&G's motion
"K."
papers as Exhibit Mr. Usher was Plaza Construction's superintendent for the project, (pgs.
9, 16-17). He corifirmed that there were instances onsite when suheent-ders removed barricades
protecting holes in order to perform their work. (p. 53). Under such circummaces, the
subcontractor, including B&G, was contractually required to replace the guard or barricade at the
completion of the work. (pgs. 53-55, 148). Mr. Usher also confirmed that B&G performed work
light."
within the aubject elevator pit in the form of "outlet and pit (p. 94). B&G also stored their
materials in the pit. (p. 154), Mr. Usher testified that when the pit had first been created, at least
one month prior to the accident date, Plaza workers had covered it with plenking and plywood.
(pgs. 93-95).
14. No reference is made in B&G's motion papers to the photographs disessed above,
which were taken in the m-nN after the accidcat occurred. Nor is there any mention of the
undisputed and admined fact that B&G was storing its materials in the pit, and, according to Mr.
Chin's tedimony, actively working in the pit itself and the immediate vicinity in the day or two
preceding the accident. When viewing the evidence in a light most favorable to Day & Nite, as
the Court must, it is entirely possible ifnot highly likely that B&G removed any cover or barricade
5
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that previously pmtected the pit in order to perform its work and store its materials and eq£pront
therein. Obvióüsly, ñothing was done by the B&G workers to safeguard the pit once they left the
area and before the alleged accident occurred. Certainly, no evidence to the contrary was
submitted in support of B&G's motion.
15. Uncentroverted evidence was edduced during discovery in the form of express
ad-lociana B&G's foremañ that B&G caused or created the dangerous condition
by likely
complained of by plaintiff, i.e. the uncovered and unbarricaded elevator pit. At the very least,
issues offact exist in this regard requiring the denial ofB&G's motion. In its motion papers, B&G
did not address this aspect ofthe claim, and did not proffer any evidence demane=±g the absence
of any triable issues of fact. B&G did not submit any evidence that it had no role in the uncovering
of the pit and/or that it properly safeguarded the area while its work was either actively taking
place or done for the day. At the very least, B&G could have cemm±cated with Plaza
Construction regarding same. No evidence in this regard was submitted.
16. "A subcontractor 'may be held liable for negligence where the work it performed
created the condition that caused the alainsf's injury even if it did not possess any authority to
area.'"
supervise and control the plaintiff's work or work Simon v. Granite Bldg. 2, LLC, 114
A.D.3d 749, 980 N.Y.S.2d 489 (2d Dept 2014), quoting Poracki v. St. Mary's R.C Church, 82
A.D.3d 1192, 920 N.Y.S.2d 233 (2d Dept. 2011). "An award of summary judgment in favor of a
subcontactor on a ngHgance claim is irnproper 'where the evidence raise[s] a triable issue of fact
as to whether [the subcontractor's] employee created an unreseñable risk of harm that was the
injuries."'
proximate cause of the injured plaintiff's Id , quoting Ericksoñ v. Cross Ready Mix,
Inc., 75 A.D.3d 519, 906 N.Y.S.2d 284 (2d Dept. 2010).
6
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17. B&G has failed to make out a prima facie that the alleged accident did not
showing
arise out of their work or that it was not negligent in n~mantion with same. Issues of fact exist in
connection with all ofthe foregoiñg. B&G's request for the dismiccal ofthe ne-e±=r±nal
indemnity
claim must therefore be den.ied. Even if, argucñdo, the Court can±des that B&G has made a
prima facie demonstation in this egard, in opposition Day & Nite has raised material issues of
fact through Mr. Chin and Mr. Usher's depoa:œ B&G's negligence and -
testimony regarding
connecdon to the conditions resulting in the accident.
18. Finally, since B&G failed to establish, prima facie, that they were free from fault
in the of the are not entitled to a j-dgment the cross-
happeniñg accident, they sy diomiccing
claims asserted againct them the other defendantc and defendants. Astarita, supra.
by third-party
WHEREFORE, it is respectfully requested that the Court deny B&G's motion in its
entirety, and award such other and further relief as the Court deems just and proper.
Dated: Woodbury, NY
April 16, 2019
David A. LoRe, Esq.
7
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Preview
FILED: NEW YORK COUNTY CLERK 07/29/2019 11:11 AM INDEX NO. 158327/2013 CLERK MDEXNYSCEF: NO. 158327/2013 [FILED: DOC. NEW NYSCEF YORK NO. 379 COUNTY 04 /16 /2019 04:39 PM1 RECEIVED 07/29/2019 NYSCEF DOC. NO. 273 RECEIVED NYSCEF: 04/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------- ---------------X KEV1N McGONIGAL, Motion Sequence No. 003 Plaintiff, Index No. 158327/13 -against - AFFIRMATION NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION IN OPPOSITION CORP. and BARING INDUSTRIES, INC., Hon. Margaret A. Chan Defendants. --------------------------------------------- -------------------X PLAZA CONSTRUCTION CORP., Third-Party Plaintiff, -against - TP Index No.: 595146/14 BARING INDUSTRIES, INC., Third-Party Defendant. ----------- ------------------------------.------X BARING INDUSTRIES, INC., Second Third-Party Plaintiff -against - Second TP Index No.: 595130/15 DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., Second Third-Party Defendants. ----------------------------------------------X NYY STEAK MANHATTAN, LLC & PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., Third Third-Party Plaintiffs, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., Third Third-Party Defendants. ... _.. ...__. ..... _________________..._,---------------------X 1 of 7 FILED: NEW YORK COUNTY CLERK 07/29/2019 11:11 AM INDEX NO. 158327/2013 ™DEX NO. 158327/2013 FILED: DOC. NEW NYSCEF YORK NO. 379 COUNTY CLERK 0 4 /16 / 2019 04 : 39 PM) RECEIVED NYSCEF: 07/29/2019 NYSCEF DOC. NO. 273 RECEIVED NYSCEF: 04/16/2019 DAVID A. LORE, an attomey duly ±±:3 to practice law before the Courts of this State, and aware of the penalties of perjury, hereby affirms the following: 1. I am a member of the law firm MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, attorneys for Second Third-Party Def=±mts- DAY & NITE REFRIGERATION CORP. and K.I.M. CO. REFRIGERATION CORP. s/h/a KlMCO REFRIGERATION CORP. (hereinafter collectively referred to as "Day & Nite") herein. As such, I am familiar with the facts and circumstances of this matter based upon a review of the file -weeked by this office. 2. I respectfully submit this affirmation in opposiden to the summary judgment motion made on behalf of Third Third-Party Defendant B&G ELECTRICAL CONTRACTORS ("B&G"). Day & Nite, as a third-party defhadant has the same rights adverse to B&G as do the direct defend st/third-party plaintiffs- and has standing to oppose the motion on that basis. See, CPLR §1008, 3. Numerous issues of material fact exist with respect to whether plainti ff KEVIN McGONIGAL's alleged accident arose out of and/or was connected with B&G's work at the site, and/or out of any act or emission of B&G. This is the triggering language in the indemity "Q" - provision in the B&G Trade Subcontract with Plaza Construction (see, B&G's Exhibit the "A" iñdesñity provisicñ is located at Article 9 of the Exhibit attached to the subcGñtract). Thus, the :--r-y dismissal of Plaza's enñhc'üal inda==Mcation claim as against B&G is improper and B&G's motion must be denied in this regard. 4. Additionally, issues of fact exist in connection with whdher B&G caused or created the alleged dangerous condition(s) that phkwf claims caused his accident. As such, issues of fact exist in connection with B&G's negligence, rendering the summary dis-dss^J of any cross-claims asserted by any party against B&G improper. See, Astarita v. Flintlock Const. Services, LLC, 69 2 2 of 7 FILED: NEW YORK COUNTY CLERK 07/29/2019 11:11 AM INDEX NO. 158327/2013 CLERK No. INDEX 15 8327/2013 [FILED DOC. NYSCEF : NEW YORK NO. 379 COUNTY 04 /16 / 2 019 04 : 39 PM1 RECEIVED NYSCEF: 07/29/2019 NYSCEF DOC. NO. 273 RECEIVED NYSCEF: 04 /16 /2019 A.D.3d 888, 893 N.Y.S.2d 615 (2d Dept. 2010). It is well settled that a subcontractor such as B&G may be found negligent under the commen law if it caused or created a dangerous condition which resulted in the =ccident. See, e.g., Tomyukv. JunefieldAssoc., 57 A.D.3d 518, 868 N.Y.S.2d (1" 731 (2d Dept. 2018); DeMaria v. RBNB 20 Owner, LLC, 129 A.D.3d 623, 12 N.Y.S,3d 79 (1" Dept. 2015); Bell v. Bengomo Realty, Inc., 36 A.D.3d 479, 829 N.Y.S.2d 42 Dept. 2007). 5, As discussed more fully below, B&G has not made out a prima facie case that it did not create the elaimed dangerous condition, i.e. the uncovered and unguarded elevster pit, which resulted in Mr. McGonigal's mishap. Moreover, the testimony of B&G's own deposition witness establishes that, at the very least, B&G's work resulted in the pit being =paded and in the condition that existed on the date of the accident. 6. In this regard, it is very much worth taking to heart the section of motion papers where the appl ica ble judgment =+aAd is presented. It is of cowse well ecta blicted law sum=y that: "[t]he proponent of a s -.-m-y judgñcat maticñ must make aprimafacie showing of entitlement to judgment as a matter of law, sufficient evidence in tendering admissible form to demonstrate the absence of any material issues of fact. Giuffrida v Citiban{c Corn.. 100 N.Y.2d 72 (2003); Alvarez v. Pro.rvect How 68 N.,Y_,2d 320, 324 (1986). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to resolution." establish the existence of material issues of fact that require a trial for Alvarez, supra; Moore v. 3 Phase Equestrian Center, Inc., 83 A.D.3d 677, 922 N.Y.S.2d 98 (2d Dept. 2011). 7. Extremely important is the basic tenet that the evidence must be viewed in the light most favorable to Day & Nite, the party opposing B&G's motion. Avon Elec. Supplies, Inc. v. Baywood Elec. Corp., 200 A.D.2d 697, 607 N.Y.S.2d 356 (2d Dept. 1994). When viewed in this light, the evidence plainly demonstrates that the uncovered and unguarded elevator pit arose out of B&G's work and storage of its equipment in the pit, and its failure to either place or replace any cover, barricade or guard on or around the pit when B&G permnnel were not in the area. 3 3 of 7 FILED: NEW YORK COUNTY CLERK 07/29/2019 11:11 AM INDEX NO. 158327/2013 HDEXNYSCEF: NO. 158327/2013 fFILED: DOC. NEW NYSCEF YORK NO. 379 COUNTY CLERK 0 4 / 16 /2 019 04 : 39 PMI RECEIVED 07/29/2019 NYSCEF DOC. NO. 273 RECEIVED NYSCEF. 04/16/2019 8. For the most, & Nite agrees with and incorporates B&G's recitation of the Day procedural history of the litigation, the relsieisleps of the parties, and its presentation of plaintiff's claims as to how the accident occurred. It is true that plaintiff. an employee of Day & Nite, clairns that he tripped/stumbled over a piece of wood debris as he walked backwards while ¡-u"in;; a cart cer4 ing a refrigeration unit down a basement corridor at the subject construction site. It is also true that nlaintiff claims that this caused him to lose his balance and fall into an uncovered and unbarricaded elevator pit that was behind him, resü!tiñg in his alleged injuries. 9. B&G's counsel's r~1tarian of the facts in the papers is However, moving dea#cningly silent for what it omits. Choosing imtead to focus on seceidary issues such as the lighting conditions, counsel fails to even mention that the reason that the pit was uncovered at the time of the accident was due to the fact that B&G was storing ñ1ültiple items of electrical equipment, materials and tools therein, and was performing work in the pit itself in the days surrounding the incident. 10. Raymond Chin, B&G's foreman, testified on behalf of B&G. The transcript of his "N." te-stimony is annexed to B&G's motion papers as Exhibit He was shown the photographs of "A" the subject pit annexed hereto as Exhibit and identified it as such. (pgs. 42-43). B&G installed temporary lighting in the vicinity of the pit. (p. 43). Visible in the pit itself are tlicusañd foot coils of BX and MC electrical cable. (p. 47). These were used by B&G at the site to perform its work, "pülling home runs back to the panel for the elevator ni£Isiñe room, power including area." and light in this (p. 47). Mr. Chin üñanitigüGusly and expressly acknowledged that the materials," materials visible in the pit were "B&G and that one of the B&G workers placed them in the pit. (pgs. 48-49, 77). 4 4 Of 7 FILED: NEW YORK COUNTY CLERK 07/29/2019 11:11 AM INDEX NO. 158327/2013 CLERK INDEKNYSCEF: NO. 158327/2013 [FILED: DOC. NEW NYSCEF YORK NO. 379 COUNTY 04 /16 /2019 04 :39 PM1 RECEIVED 07/29/2019 NYSCEF DOC. NO. 273 RECEIVED NYSCEF: 04/16/2019 11. Mr. Chin did not know when these materials were placed in the pit. (p. 48). They most." would have been kept in the pit "until the task was finished...maybe one day, two days the (pgs. 48-49). Mr. Chin admitted that B&G performed work in the pit, including pulliñg "home it." runs for power and Egh±g for the elevator room and the room next to (p. 53). He could not recall if this work was being performed on the day of the alleged accident. (p. 53). "protection" "openiñg," 12. Mr. Chin testified that if B&G removed from an it would replace that protection when work in that area was completed, for safety purposes. (pgs. 60-61). B&G did not ask for permission to place their materials in the subject pit. (pgs. 61-62). 13, A copy of the deposition transcript of George Usher is annexed to B&G's motion "K." papers as Exhibit Mr. Usher was Plaza Construction's superintendent for the project, (pgs. 9, 16-17). He corifirmed that there were instances onsite when suheent-ders removed barricades protecting holes in order to perform their work. (p. 53). Under such circummaces, the subcontractor, including B&G, was contractually required to replace the guard or barricade at the completion of the work. (pgs. 53-55, 148). Mr. Usher also confirmed that B&G performed work light." within the aubject elevator pit in the form of "outlet and pit (p. 94). B&G also stored their materials in the pit. (p. 154), Mr. Usher testified that when the pit had first been created, at least one month prior to the accident date, Plaza workers had covered it with plenking and plywood. (pgs. 93-95). 14. No reference is made in B&G's motion papers to the photographs disessed above, which were taken in the m-nN after the accidcat occurred. Nor is there any mention of the undisputed and admined fact that B&G was storing its materials in the pit, and, according to Mr. Chin's tedimony, actively working in the pit itself and the immediate vicinity in the day or two preceding the accident. When viewing the evidence in a light most favorable to Day & Nite, as the Court must, it is entirely possible ifnot highly likely that B&G removed any cover or barricade 5 5 of 7 FILED: NEW YORK COUNTY CLERK 07/29/2019 11:11 AM INDEX NO. 158327/2013 CLERK No. 158327/2013 INDEXNYSCEF: IFILED: DOC. NEW NYSCEF YORK NO. 379 COUNTY 04/16/2019 04:39 PM| RECEIVED 07/29/2019 NYSCE F DOC. NO. 273 RECEIVED NYSCEF: 04/16/2019 that previously pmtected the pit in order to perform its work and store its materials and eq£pront therein. Obvióüsly, ñothing was done by the B&G workers to safeguard the pit once they left the area and before the alleged accident occurred. Certainly, no evidence to the contrary was submitted in support of B&G's motion. 15. Uncentroverted evidence was edduced during discovery in the form of express ad-lociana B&G's foremañ that B&G caused or created the dangerous condition by likely complained of by plaintiff, i.e. the uncovered and unbarricaded elevator pit. At the very least, issues offact exist in this regard requiring the denial ofB&G's motion. In its motion papers, B&G did not address this aspect ofthe claim, and did not proffer any evidence demane=±g the absence of any triable issues of fact. B&G did not submit any evidence that it had no role in the uncovering of the pit and/or that it properly safeguarded the area while its work was either actively taking place or done for the day. At the very least, B&G could have cemm±cated with Plaza Construction regarding same. No evidence in this regard was submitted. 16. "A subcontractor 'may be held liable for negligence where the work it performed created the condition that caused the alainsf's injury even if it did not possess any authority to area.'" supervise and control the plaintiff's work or work Simon v. Granite Bldg. 2, LLC, 114 A.D.3d 749, 980 N.Y.S.2d 489 (2d Dept 2014), quoting Poracki v. St. Mary's R.C Church, 82 A.D.3d 1192, 920 N.Y.S.2d 233 (2d Dept. 2011). "An award of summary judgment in favor of a subcontactor on a ngHgance claim is irnproper 'where the evidence raise[s] a triable issue of fact as to whether [the subcontractor's] employee created an unreseñable risk of harm that was the injuries."' proximate cause of the injured plaintiff's Id , quoting Ericksoñ v. Cross Ready Mix, Inc., 75 A.D.3d 519, 906 N.Y.S.2d 284 (2d Dept. 2010). 6 6 of 7 FILED: NEW YORK COUNTY CLERK 07/29/2019 11:11 AM INDEX NO. 158327/2013 158327/2013 INDEXNYSCEF: NO. [ÈILED: DOC. NEW NYSCEF YORK NO. 379 COUNTY CLERK 04 /16 /2019 04 :39 PM RECEIVED 07/29/2019 NYSCEF DOC. NO. 273 RECEIVED NYSCEF: 04/16/2019 17. B&G has failed to make out a prima facie that the alleged accident did not showing arise out of their work or that it was not negligent in n~mantion with same. Issues of fact exist in connection with all ofthe foregoiñg. B&G's request for the dismiccal ofthe ne-e±=r±nal indemnity claim must therefore be den.ied. Even if, argucñdo, the Court can±des that B&G has made a prima facie demonstation in this egard, in opposition Day & Nite has raised material issues of fact through Mr. Chin and Mr. Usher's depoa:œ B&G's negligence and - testimony regarding connecdon to the conditions resulting in the accident. 18. Finally, since B&G failed to establish, prima facie, that they were free from fault in the of the are not entitled to a j-dgment the cross- happeniñg accident, they sy diomiccing claims asserted againct them the other defendantc and defendants. Astarita, supra. by third-party WHEREFORE, it is respectfully requested that the Court deny B&G's motion in its entirety, and award such other and further relief as the Court deems just and proper. Dated: Woodbury, NY April 16, 2019 David A. LoRe, Esq. 7 7 of 7