Preview
FILED: NEW YORK COUNTY CLERK 06/26/2020
07/19/2019 02:49
11:32 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 515
322 RECEIVED NYSCEF: 06/26/2020
07/19/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------X Index No. 158327/13
KEVIN McGONIGAL,
Plaintiff, NOTICE OF MOTIOP
-against-
NYY STEAK MANHATTAN, LLC,
PLAZA CONSTRUCTION CORP. and
BARING INDUSTRIES, INC.
Defendants.
------_____------------------------------------------------X
Third-Party Index No.:
PLAZA CONSTRUCTION CORP.,
595146/2014
Third-Party PlaintitT,
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
____________-------------------.....------ ---------X
BARING INDUSTRIES, INC., Second-Third-Party
Index No.: 595130/15
Second-Third-Party PlaintitT,
-against-
DAY & NITE REFRIGERATION CORP. and KlMCO
REFRIGERATION CORP.
Second-Third-Party Defendants.
__________----------..-----........---------..---------------X
NYY STEAK MANHATTAN, LLC, & PLAZA CONSTRUCTION
LLC f/k/a PLAZA
CONSTRUCITON CORP.
Third-Third Party
Index No.
Third Third-Party Plaintiffs,
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACCOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.
Third Third-Party Defendants.
----.._______--.--------------------...___.----------------X
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PLEASE TAKE NOTICE, that upon the annexed affinnation of NIKOLAOS E.
DIAMANTIS, ESQ., dated July 18, 2018, and the exhibits annexed hereto, and upon all the
pleadings and proceedings heretofore had herein, a motion will be made before this Court at the
Supreme Court, New York County, located at IAS Motion Support Part, Room 130 of the
22"
Courthouse, located at 60 Centre Street, New York on day of August, 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 §§ 3211(a)[1], 3212 and 306-b, granting summary judgment to defendant/Third-Party
Defendant/Third-Third Party Defendant BARING INDUSTRIES, INC., dismissing all claims
and cross-claims against them, and granting summary judgment to Defendant/Third-Party
Defendant/Second Third-Party Plaintiff/Third-Third Party Defendant BARING INDUSTRIES,
INC., on its contractual indemnity claims against Second Third-Party Defendant DAY & NITE
REFRIGERATION CORP. and KIMCO REFRIGERATION CORP.; an order dismissing the
claims of Defendant/Third-Third Party Plaintiff NYY STEAK MANHATTAN, LLC and
Defendant/Third-Party Plaintiff/Third Third-Party Plaintiff PLAZA CONSTRUCTION LLC
f/k/a PLAZA CONSTRUCITON CORP., along with such other and further relief as this Court
may deem just and proper.
2
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NYSCEF DOC. NO. 515
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PLEASE TAKE FURTHER NOTICE, that answering affidavits, if any, are to be served
no later than seven (7) days prior to the return date of the motion pursuant to CPLR §2214(b).
Dated: Melville, New York
July 11, 2019
Yours, etc.,
Law Offices of
TROMELLO & FISHMAN
Attorneys for Defendant/Third-Party Defendant/
Second Third-Party Plaintiff/Third Third-Party Defendant
BARING INDUSTRIES, INC.
395 North Service Road, Suite 410
P.O. Box 9038
Melville, New York 11747
(212) 440-2318
By:
N1KOLAOS E. DIAMANTIS
To:
FABIANI COHEN & HALL, LLP
Attorneys for Defendant/Third Third Party Plaintiff
NYY STEAK MANHATTAN, LLC
And Defendant/Third Party Plaintiff/Third Third Party Plaintiff
PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP
570 Lexington Avenue, 4th Floor
New York, NY 10022
212-644-4420
VIA NYSCEF
SACKS AND SACKS, LLP
Attorney for Plaintiff
150 Broadway, 4th Floor
New York, NY 10038
212 964-5570
VIA NYSCEF
3
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NYSCEF DOC. NO. 515
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MILBER MAKRIS PLOUSADIS & SElDEN, LLP
Attorneys for Second Third Party Defendants
DAY & NITE REFRIGERATION CORP. and K.I.M. CO. REFRIGERATION CORP.
s/h/a KlMCO REFRIGERATION CORP.
1000 Woodbury Road, Suite 402
Woodbury, NY 11797
516-712-4000
File No. 532.11347
VIA NYSCEF
B&G ELECTRICAL CONTRACTORS
Third Third Party Defendant
7100 New Horizons Boulevard
North Amityville, NY 11701
VIA REGULAR MAIL
ESS & VEE ACOUSTICAL CONTRACTORS, INC.
Third Third Party Defendant
23-30 50 Avenue
Long Island City, NY 11101
VIA REGULARMAIL
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------X index No. 158327/l3
KEVIN McGONIGAL,
PlaintifT, AFFIRMATION IN
SUPPORT
-against-
NYY STEAK MANHATTAN, LLC,
PLAZA CONSTRUCTION CORP. and
BARING INDUSTRIES, INC.
Defendants.
____.....-------_.---...________......---_.--____--...-----X
PLAZA CONSTRUCTION CORP.,
Third-Party Index No.:
595146/2014
Third-Party Plaintiff,
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
___--..------.....---.....__..........--__--..--------------X
BARING INDUSTRIES, INC.,
Second-Third-Party
Second-Third-Party Plaintiff, Index No.: 595130/I5
-against-
DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP.
Second-Third-Party Defendants.
..____.--...___..---.......__.-__.....__-__----------------X
NYY STEAK MANHATTAN, LLC, & PLAZA CONSTRUCTION
LLC f/k/a PLAZA
CONSTRUCITON CORP.
Third-Third Party
Third Third-Party Plaintiffs,
Index No.
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACCOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.
Third Third-Party Defendants.
------------.....--..--.--.....--______--...._______-------X
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NYSCEF DOC. NO. 515
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NIKOLAOS E. DIAMANTIS, an attorney duly admitted to practice law before the courts
of the State of New York, affirms the following to be true under penalties of perjury pursuant to
New York Civil Practice Law and Rules § 2106:
1. I am associated with the Law Office of Tromello & Fishman, attorneys for
Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third-Third Party Defendant
BARING INDUSTRIES, INC., (hereinafter "BARING") and as such I am fully familiar with the
facts and circumstances of the within action based upon a review of the file maintained by my
office and my handling of this litigation.
2. I submit this affirmation, upon infonnation and belief, in support of the
BARING'S motion for summary judgment dismissing all claims and cross-claims, and granting
the BARING summary judgment on its contractual indemnity claims against Second Third-Party
Defendant DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP.
(hereinafter collectively as "DAY & NIGHT") and dismissal of Defendant/Third-Third Party
Plaintiff NYY STEAK MANHATTAN, LLC (herein after "NYY") and Defendant/Third-Party
Plaintiff/Third Third-Party Plaintiff PLAZA CONSTRUCTION LLC f/k/a PLAZA
CONSTRUCITON CORP. (hereinafter "PLAZA") claims.
NATURE OF ACTION
3. This action arises from a when plaintiff, a union steamfitter for & was
Day Night,
injured while delivering a refrigeration unit into the construction project when he allegedly
tripped over wood debris causing him to lose his balance and fall into an opening/pit which was
behind in the path that he was that morning.
taking
2
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4. This project was for the renovation of the New York Yankees Steakhouse,
Defendant NYY Steak Manhattan, LLC was the tenant at this location and Plaza Construction,
LLC was the construction manager for the renovations of an existing bank at said location into
the restaurant. B&G Electrical Contractors was hired by Plaza as the electrical subcontractor for
this project. Ess & Vee Acoustical Contractors, Inc. was hired by Plaza as the carpentry
subcontractors. Baring Industries, Inc. was hired by Plaza as the kitchen subcontractor at this
site. Baring contracted with Day & Night to perform the installation of the refrigeration
equipment for the restaurant.
5. As a result of this incident, plaintiff seeks monetary damages from the NYY,
PLAZA and BARING contending that all defendants are statutorily liable pursuant to Labor Law
§§ 240(1), 24l(6) and 200, as well as by the doctrine of common law negligence for his injuries.
6. Via its second third-party action against Day & Night, Baring seeks contractual
indemnification from Day & Night as the evidence has established that Day & Night's contract
with Baring requires it to defend and indemnify Baring for claims that occur as a result of their
work. In this case, the plaintitTwas an employee for Day & Night and under the applicable
contract, Day & Night is required to defend and indemnify Baring herein.
SUMMARY OF ARGUMENT
7. Baring's motion for dismissal of plaintiff's complaint and all cross-
summary
claims against it must be granted as a matter of law as the evidence has established that Baring
was neither the owner, general contractor or an owner's agent at the project and did not control
the means and methods of the work plaintiff was at the time of his accident.
performing Thus,
"agent"
Baring cannot be found to be an under the Labor Law. In there has been
addition,
absolutely no evidence that Baring would be liable under Labor Law 200 as lacked the
they
3
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requisite direction and control over plaintiff's work and there is no evidence that Baring was
otherwise negligent in the happening of this accident.
8. Further, the work plaintiff was perfonning on the date of his accident did not
expose him to a gravity related risk and thus Labor Law 240(1) should not apply. In addition,
plaintiff has failed to establish applicable Industrial Code violations under Labor Law 241(6)
which would similarly not apply in this case.
9. Baring motion for summary judgment against Day & Night for contractual
indemnification should also be granted since the evidence has clearly established that plaintiff
was an employee of Day & Night on the date of this incident and Baring is entitled to contractual
indemnity based on the relevant purchase order for this project.
PROCEDURAL HISTORY
10. Plaintiff commenced an action by the service of a Summons and Verified
ST
Compliant against NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51 STREET, LLC and
PLAZA CONSTRUCTION on September 12, 2013. A copy of the Summons and Verified
Complaint is annexed hereto as Exhibit "A". In sum, Plaintiff asserts that on September 6,
2013, Plaintiff was allegedly injured while furnishing and installing kitchen equipment for the
51"
NY Yankees Steak Manhattan project located at 7 West Street, New York, New York 10020.
11. Issue was joined through the interposition of a Verified Answer Defendant
by
NYY STEAK on October 14, 2013, and a Verified Answer by Defendant PLAZA on November
8, 2013, annexed hereto collectively as Exhibit "B".
12. On or about June 5, 2014, Defendant, PLAZA filed a Third Summons and
Party
Complaint against BARING INDUSTRIES, INC., (hereinafter as "BARING"). On or about
September 12, 2014, BARING interposed its Verified Answer to the Third Party Complaint. A
4
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copy of the Third Party Complaint and BARING's Verified Answer are annexed hereto
collectively as Exhibit "C".
13. On or about February 12, 2015, Plaintiff filed a Supplemental Summons and
Complaint naming NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and
BARING. NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION CORP. filed its
Amended Answer on or about April 27, 2015, annexed hereto as Exhibit "D".
14. On or about February 24, 2015, Defendant BARING filed a Second-Third Party
Summons and Complaint against DAY & NITE. DAY & NITE filed its Amended Answer on or
about May 12, 2015. A copy of the Second Third Party Complaint and DAY & NITE's Verified
Answer are annexed hereto collectively as Exhibit"E".
15. On or about September 2, 2015, Defendants NYY STEAK MANHATTAN, LLC
and PLAZA CONSTRUCTION CORP. filed a Third-Third Party Summons and Complaint
against B&G ELECTRICAL CONTRACTORS (hereinafter as "B&G"), ESS & VEE
ACOUSTICAL CONTRACTORS, INC. (hereinafter as "ESS") and BARING. B&G filed its
Verified Answer on or about October 27, 2015; ESS filed its Answer on or about November 4,
2015; and BARING filed its Answer on July 11, 2019. A copy of the Third Third-Party
Summons and Complaint and Verified Answers are annexed hereto collectively as Exhibit "F".
16. On May 21, 2019, plaintiff filed Note of Issue and Certificate of Readiness.
"G"
Annexed hereto as Exhibit is a copy of the Note of Issue filed in this case. Thus, the within
motion is timely and appropriate.
17. Plaintiff appeared for an Examination before Trial on November 9, 2016. A copy
of his transcript is annexed hereto as Exhibit "H". Plaintiff was deposed again on November
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14, 2016, a copy of which is annexed hereto as Exhibit "I". Plaintiff was again deposed on
April 12, 2018, a copy of which is annexed hereto as Exhibit "J".
18. On March 10, 2017, PLAZA CONSTRUCTION CORP. produced George E.
Usher, Jr. for examination before trial. A copy of which is annexed hereto as Exhibit "K".
19. On May 3, 2017, Chris Wolske appeared for an Examination before Trial on
behalf of Defendant, BARING. A copy of which is annexed hereto as Exhibit "L".
20. On May 4, 2017, James Vespe appeared for an Examination before Trial on
behalf of Second Third Party Defendant DAY & NITE REFRIGERATION CORP. A copy of
which is annexed hereto as Exhibit "M".
21. On May 8, 2017, Raymond Chin appeared for an Examination before Trial on
behalf of Third Third Party Defendant B&G. A copy of which is annexed hereto as Exhibit
"N".
22. On May 24, 2017, Frank Cioppa appeared for an Examination before Trial on
behalf of Third Third Party Defendant ESS. A copy of which is annexed hereto as Exhibit "O".
23. On June 5, 2018, Julian Gomez, appeared for an Examination before Trial on
behalf of Second Third Party Defendant, DAY & NITE REFRIGERATION CORP. A copy of
which is annexed hereto as Exhibit "P".
24. There has been no prior application by BARING for the relief sought herein.
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STATEMENT OF FACTS
Testimony of Plaintiff, Kevin McGonigal
25. Plaintiff is a member of Local 638 Steamfitter's union. (Exhibit H, p. 14)
Plaintiff began working for D&N in August of 2013, two or three weeks before the subject
accident occurred. (Exhibit H, p.34)
26.
Preview
FILED: NEW YORK COUNTY CLERK 06/26/2020 07/19/2019 02:49 11:32 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 515 322 RECEIVED NYSCEF: 06/26/2020 07/19/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------X Index No. 158327/13 KEVIN McGONIGAL, Plaintiff, NOTICE OF MOTIOP -against- NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC. Defendants. ------_____------------------------------------------------X Third-Party Index No.: PLAZA CONSTRUCTION CORP., 595146/2014 Third-Party PlaintitT, -against- BARING INDUSTRIES, INC., Third-Party Defendant. ____________-------------------.....------ ---------X BARING INDUSTRIES, INC., Second-Third-Party Index No.: 595130/15 Second-Third-Party PlaintitT, -against- DAY & NITE REFRIGERATION CORP. and KlMCO REFRIGERATION CORP. Second-Third-Party Defendants. __________----------..-----........---------..---------------X NYY STEAK MANHATTAN, LLC, & PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCITON CORP. Third-Third Party Index No. Third Third-Party Plaintiffs, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACCOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC. Third Third-Party Defendants. ----.._______--.--------------------...___.----------------X 1 of 44 FILED: NEW YORK COUNTY CLERK 06/26/2020 07/19/2019 02:49 11:32 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 515 322 RECEIVED NYSCEF: 06/26/2020 07/19/2019 PLEASE TAKE NOTICE, that upon the annexed affinnation of NIKOLAOS E. DIAMANTIS, ESQ., dated July 18, 2018, and the exhibits annexed hereto, and upon all the pleadings and proceedings heretofore had herein, a motion will be made before this Court at the Supreme Court, New York County, located at IAS Motion Support Part, Room 130 of the 22" Courthouse, located at 60 Centre Street, New York on day of August, 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 §§ 3211(a)[1], 3212 and 306-b, granting summary judgment to defendant/Third-Party Defendant/Third-Third Party Defendant BARING INDUSTRIES, INC., dismissing all claims and cross-claims against them, and granting summary judgment to Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third-Third Party Defendant BARING INDUSTRIES, INC., on its contractual indemnity claims against Second Third-Party Defendant DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP.; an order dismissing the claims of Defendant/Third-Third Party Plaintiff NYY STEAK MANHATTAN, LLC and Defendant/Third-Party Plaintiff/Third Third-Party Plaintiff PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCITON CORP., along with such other and further relief as this Court may deem just and proper. 2 2 of 44 FILED: NEW YORK COUNTY CLERK 06/26/2020 07/19/2019 02:49 11:32 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 515 322 RECEIVED NYSCEF: 06/26/2020 07/19/2019 PLEASE TAKE FURTHER NOTICE, that answering affidavits, if any, are to be served no later than seven (7) days prior to the return date of the motion pursuant to CPLR §2214(b). Dated: Melville, New York July 11, 2019 Yours, etc., Law Offices of TROMELLO & FISHMAN Attorneys for Defendant/Third-Party Defendant/ Second Third-Party Plaintiff/Third Third-Party Defendant BARING INDUSTRIES, INC. 395 North Service Road, Suite 410 P.O. Box 9038 Melville, New York 11747 (212) 440-2318 By: N1KOLAOS E. DIAMANTIS To: FABIANI COHEN & HALL, LLP Attorneys for Defendant/Third Third Party Plaintiff NYY STEAK MANHATTAN, LLC And Defendant/Third Party Plaintiff/Third Third Party Plaintiff PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP 570 Lexington Avenue, 4th Floor New York, NY 10022 212-644-4420 VIA NYSCEF SACKS AND SACKS, LLP Attorney for Plaintiff 150 Broadway, 4th Floor New York, NY 10038 212 964-5570 VIA NYSCEF 3 3 of 44 FILED: NEW YORK COUNTY CLERK 06/26/2020 07/19/2019 02:49 11:32 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 515 322 RECEIVED NYSCEF: 06/26/2020 07/19/2019 MILBER MAKRIS PLOUSADIS & SElDEN, LLP Attorneys for Second Third Party Defendants DAY & NITE REFRIGERATION CORP. and K.I.M. CO. REFRIGERATION CORP. s/h/a KlMCO REFRIGERATION CORP. 1000 Woodbury Road, Suite 402 Woodbury, NY 11797 516-712-4000 File No. 532.11347 VIA NYSCEF B&G ELECTRICAL CONTRACTORS Third Third Party Defendant 7100 New Horizons Boulevard North Amityville, NY 11701 VIA REGULAR MAIL ESS & VEE ACOUSTICAL CONTRACTORS, INC. Third Third Party Defendant 23-30 50 Avenue Long Island City, NY 11101 VIA REGULARMAIL 4 of 44 FILED: NEW YORK COUNTY CLERK 06/26/2020 07/19/2019 02:49 11:32 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 515 322 RECEIVED NYSCEF: 06/26/2020 07/19/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------X index No. 158327/l3 KEVIN McGONIGAL, PlaintifT, AFFIRMATION IN SUPPORT -against- NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC. Defendants. ____.....-------_.---...________......---_.--____--...-----X PLAZA CONSTRUCTION CORP., Third-Party Index No.: 595146/2014 Third-Party Plaintiff, -against- BARING INDUSTRIES, INC., Third-Party Defendant. ___--..------.....---.....__..........--__--..--------------X BARING INDUSTRIES, INC., Second-Third-Party Second-Third-Party Plaintiff, Index No.: 595130/I5 -against- DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. Second-Third-Party Defendants. ..____.--...___..---.......__.-__.....__-__----------------X NYY STEAK MANHATTAN, LLC, & PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCITON CORP. Third-Third Party Third Third-Party Plaintiffs, Index No. -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACCOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC. Third Third-Party Defendants. ------------.....--..--.--.....--______--...._______-------X 5 of 44 FILED: NEW YORK COUNTY CLERK 06/26/2020 07/19/2019 02:49 11:32 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 515 322 RECEIVED NYSCEF: 06/26/2020 07/19/2019 NIKOLAOS E. DIAMANTIS, an attorney duly admitted to practice law before the courts of the State of New York, affirms the following to be true under penalties of perjury pursuant to New York Civil Practice Law and Rules § 2106: 1. I am associated with the Law Office of Tromello & Fishman, attorneys for Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third-Third Party Defendant BARING INDUSTRIES, INC., (hereinafter "BARING") and as such I am fully familiar with the facts and circumstances of the within action based upon a review of the file maintained by my office and my handling of this litigation. 2. I submit this affirmation, upon infonnation and belief, in support of the BARING'S motion for summary judgment dismissing all claims and cross-claims, and granting the BARING summary judgment on its contractual indemnity claims against Second Third-Party Defendant DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. (hereinafter collectively as "DAY & NIGHT") and dismissal of Defendant/Third-Third Party Plaintiff NYY STEAK MANHATTAN, LLC (herein after "NYY") and Defendant/Third-Party Plaintiff/Third Third-Party Plaintiff PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCITON CORP. (hereinafter "PLAZA") claims. NATURE OF ACTION 3. This action arises from a when plaintiff, a union steamfitter for & was Day Night, injured while delivering a refrigeration unit into the construction project when he allegedly tripped over wood debris causing him to lose his balance and fall into an opening/pit which was behind in the path that he was that morning. taking 2 6 of 44 FILED: NEW YORK COUNTY CLERK 06/26/2020 07/19/2019 02:49 11:32 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 515 322 RECEIVED NYSCEF: 06/26/2020 07/19/2019 4. This project was for the renovation of the New York Yankees Steakhouse, Defendant NYY Steak Manhattan, LLC was the tenant at this location and Plaza Construction, LLC was the construction manager for the renovations of an existing bank at said location into the restaurant. B&G Electrical Contractors was hired by Plaza as the electrical subcontractor for this project. Ess & Vee Acoustical Contractors, Inc. was hired by Plaza as the carpentry subcontractors. Baring Industries, Inc. was hired by Plaza as the kitchen subcontractor at this site. Baring contracted with Day & Night to perform the installation of the refrigeration equipment for the restaurant. 5. As a result of this incident, plaintiff seeks monetary damages from the NYY, PLAZA and BARING contending that all defendants are statutorily liable pursuant to Labor Law §§ 240(1), 24l(6) and 200, as well as by the doctrine of common law negligence for his injuries. 6. Via its second third-party action against Day & Night, Baring seeks contractual indemnification from Day & Night as the evidence has established that Day & Night's contract with Baring requires it to defend and indemnify Baring for claims that occur as a result of their work. In this case, the plaintitTwas an employee for Day & Night and under the applicable contract, Day & Night is required to defend and indemnify Baring herein. SUMMARY OF ARGUMENT 7. Baring's motion for dismissal of plaintiff's complaint and all cross- summary claims against it must be granted as a matter of law as the evidence has established that Baring was neither the owner, general contractor or an owner's agent at the project and did not control the means and methods of the work plaintiff was at the time of his accident. performing Thus, "agent" Baring cannot be found to be an under the Labor Law. In there has been addition, absolutely no evidence that Baring would be liable under Labor Law 200 as lacked the they 3 7 of 44 FILED: NEW YORK COUNTY CLERK 06/26/2020 07/19/2019 02:49 11:32 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 515 322 RECEIVED NYSCEF: 06/26/2020 07/19/2019 requisite direction and control over plaintiff's work and there is no evidence that Baring was otherwise negligent in the happening of this accident. 8. Further, the work plaintiff was perfonning on the date of his accident did not expose him to a gravity related risk and thus Labor Law 240(1) should not apply. In addition, plaintiff has failed to establish applicable Industrial Code violations under Labor Law 241(6) which would similarly not apply in this case. 9. Baring motion for summary judgment against Day & Night for contractual indemnification should also be granted since the evidence has clearly established that plaintiff was an employee of Day & Night on the date of this incident and Baring is entitled to contractual indemnity based on the relevant purchase order for this project. PROCEDURAL HISTORY 10. Plaintiff commenced an action by the service of a Summons and Verified ST Compliant against NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51 STREET, LLC and PLAZA CONSTRUCTION on September 12, 2013. A copy of the Summons and Verified Complaint is annexed hereto as Exhibit "A". In sum, Plaintiff asserts that on September 6, 2013, Plaintiff was allegedly injured while furnishing and installing kitchen equipment for the 51" NY Yankees Steak Manhattan project located at 7 West Street, New York, New York 10020. 11. Issue was joined through the interposition of a Verified Answer Defendant by NYY STEAK on October 14, 2013, and a Verified Answer by Defendant PLAZA on November 8, 2013, annexed hereto collectively as Exhibit "B". 12. On or about June 5, 2014, Defendant, PLAZA filed a Third Summons and Party Complaint against BARING INDUSTRIES, INC., (hereinafter as "BARING"). On or about September 12, 2014, BARING interposed its Verified Answer to the Third Party Complaint. A 4 8 of 44 FILED: NEW YORK COUNTY CLERK 06/26/2020 07/19/2019 02:49 11:32 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 515 322 RECEIVED NYSCEF: 06/26/2020 07/19/2019 copy of the Third Party Complaint and BARING's Verified Answer are annexed hereto collectively as Exhibit "C". 13. On or about February 12, 2015, Plaintiff filed a Supplemental Summons and Complaint naming NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING. NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION CORP. filed its Amended Answer on or about April 27, 2015, annexed hereto as Exhibit "D". 14. On or about February 24, 2015, Defendant BARING filed a Second-Third Party Summons and Complaint against DAY & NITE. DAY & NITE filed its Amended Answer on or about May 12, 2015. A copy of the Second Third Party Complaint and DAY & NITE's Verified Answer are annexed hereto collectively as Exhibit"E". 15. On or about September 2, 2015, Defendants NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION CORP. filed a Third-Third Party Summons and Complaint against B&G ELECTRICAL CONTRACTORS (hereinafter as "B&G"), ESS & VEE ACOUSTICAL CONTRACTORS, INC. (hereinafter as "ESS") and BARING. B&G filed its Verified Answer on or about October 27, 2015; ESS filed its Answer on or about November 4, 2015; and BARING filed its Answer on July 11, 2019. A copy of the Third Third-Party Summons and Complaint and Verified Answers are annexed hereto collectively as Exhibit "F". 16. On May 21, 2019, plaintiff filed Note of Issue and Certificate of Readiness. "G" Annexed hereto as Exhibit is a copy of the Note of Issue filed in this case. Thus, the within motion is timely and appropriate. 17. Plaintiff appeared for an Examination before Trial on November 9, 2016. A copy of his transcript is annexed hereto as Exhibit "H". Plaintiff was deposed again on November 5 9 of 44 FILED: NEW YORK COUNTY CLERK 06/26/2020 07/19/2019 02:49 11:32 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 515 322 RECEIVED NYSCEF: 06/26/2020 07/19/2019 14, 2016, a copy of which is annexed hereto as Exhibit "I". Plaintiff was again deposed on April 12, 2018, a copy of which is annexed hereto as Exhibit "J". 18. On March 10, 2017, PLAZA CONSTRUCTION CORP. produced George E. Usher, Jr. for examination before trial. A copy of which is annexed hereto as Exhibit "K". 19. On May 3, 2017, Chris Wolske appeared for an Examination before Trial on behalf of Defendant, BARING. A copy of which is annexed hereto as Exhibit "L". 20. On May 4, 2017, James Vespe appeared for an Examination before Trial on behalf of Second Third Party Defendant DAY & NITE REFRIGERATION CORP. A copy of which is annexed hereto as Exhibit "M". 21. On May 8, 2017, Raymond Chin appeared for an Examination before Trial on behalf of Third Third Party Defendant B&G. A copy of which is annexed hereto as Exhibit "N". 22. On May 24, 2017, Frank Cioppa appeared for an Examination before Trial on behalf of Third Third Party Defendant ESS. A copy of which is annexed hereto as Exhibit "O". 23. On June 5, 2018, Julian Gomez, appeared for an Examination before Trial on behalf of Second Third Party Defendant, DAY & NITE REFRIGERATION CORP. A copy of which is annexed hereto as Exhibit "P". 24. There has been no prior application by BARING for the relief sought herein. 6 10 of 44 FILED: NEW YORK COUNTY CLERK 06/26/2020 07/19/2019 02:49 11:32 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 515 322 RECEIVED NYSCEF: 06/26/2020 07/19/2019 STATEMENT OF FACTS Testimony of Plaintiff, Kevin McGonigal 25. Plaintiff is a member of Local 638 Steamfitter's union. (Exhibit H, p. 14) Plaintiff began working for D&N in August of 2013, two or three weeks before the subject accident occurred. (Exhibit H, p.34) 26.