Preview
FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MICHELLE DEVITA, as Administratrix of the Estate of Index No. 158327/2013
KEVIN McGONIGAL,
Plaintiff, AFFIRMATION
IN SUPPORT OF
-against- MOTION TO VACATE,
REINSTATE AND FOR
NYY STEAK MANHATTAN, LLC, PLAZA SUMMARY JUDGMENT
CONSTRUCTION CORP. and BARING INDUSTRIES, INC.,
Defendants.
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PLAZA CONSTRUCTION CORP.,
Third-Party Plaintiff,
Third-Party Index
-against- No. 595146/2014
BARING INDUSTRIES, INC.,
Third-Party Defendant.
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BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff,
-against- Second Third-Party
Index No. 595130/2015
DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP.,
Second Third-Party Defendants.
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NYY STEAK MANHATTAN, LLC and PLAZA
CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP.,
Third Third-Party Plaintiffs,
-against- Third Third-Party Index
No. 595638/2015
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.,
Third Third-Party Defendants.
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ALLISON A. SNYDER, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms the following to be true based upon information and belief and with
knowledge of the penalties for perjury:
1. I am Of Counsel to the law firm of Fabiani Cohen & Hall, LLP, attorneys for
defendants/third third-party plaintiffs defendants NYY Steak Manhattan, LLC (“NYY Steak”) and
Plaza Construction LLC f/k/a Plaza Construction Corp. (“Plaza”) (collectively, “NYY
Steak/Plaza”). I am fully familiar with the facts and circumstances as set forth herein.
2. I submit this affirmation in support of NYY Steak and Plaza’s motion for an Order:
(i) pursuant to CPLR 2221(a) and CPLR 5015(a)(5), vacating,
modifying and reversing the portions of the Decision + Order of the
Honorable Margaret A. Chan, dated May 14, 2020 (NYSCEF Doc.
No. 506) (“May 14, 2020 Decision” 1) which dismissed the cross-
claims and third-party claims asserted by NYY Steak/Plaza as
against third-party defendant/second third-party plaintiff/third third-
party defendant Baring Industries, Inc. (“Baring”), third third-party
defendant B&G Electrical Contractors (“B&G”) and third third-
party defendant Ess & Vee Acoustical Contractors, Inc. (Ess &
Vee”) in light of the Decision and Order of the Appellate Division,
First Department, entered March 14, 2023, reversing the July 21,
2021 Decision, 2 and reinstating all cross-claims and third-party
claims asserted by NYY Steak/Plaza as against the parties in this
action including Baring, B&G and Ess & Vee; and
(ii) pursuant to CPLR 2221(a) and (e), granting leave to renew NYY
Steak/Plaza’s motion for summary judgment (motion sequence no.
7) and, upon renewal, pursuant to CPLR 3212(b), granting summary
judgment in favor of NYY Steak and Plaza: (a) as against B&G, Ess
& Vee and Baring for a conditional order of contractual
indemnification, including but not limited to reimbursement of all
attorneys’ fees, expenses, costs and disbursements incurred in the
1
The May 14, 2020 Decision addressed motion sequence nos. 003, 005, 006 and 007 and in a subsequent Amended
Decision + Order dated July 21, 2020 (NYSCEF Doc. No. 520) the plaintiff’s claims against Baring Industries, Inc.
were dismissed – the Court having inadvertently neglected to do so in its May 14, 2020 Decision. The July 21, 2020
Amended Decision + Order did not pertain to any of the claims by and between the defendants/third-party
plaintiffs/third-party defendants.
The Appellate Division’s March 14, 2023 Decision and Order addressed only that portion of the May 14, 2020
2
Decision that dismissed the plaintiff’s action. Therefore, there was reversal only with respect to the plaintiff’s claims.
The Appellate Division did not address the claims by and between the defendants/third-party plaintiffs/third-party
defendants.
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defense of the plaintiff’s claim and the enforcement of the indemnity
agreement; (b) as against Baring for breach of contract for failure to
procure insurance; and (c) dismissing all cross-claims and
counterclaims asserted as against NYY and Plaza for contractual
indemnification and/or breach of contract for failure to procure
insurance.
3. Briefly, by way of overview, in or about May of 2013 NYY Steak hired Plaza as
construction manager to build a restaurant in an existing old bank building (“the NYY Steakhouse
project”). NYY Steak and Plaza entered into a “guaranteed maximum price construction
agreement” whereby, in consideration of a fixed price, Plaza agreed to perform the work necessary
to build the restaurant. B&G was hired as the electrical contractor and provided the temporary
lighting in the basement level where the accident happened. Baring was hired to provide kitchen
equipment. Baring hired the plaintiff’s employer Day & Nite as the refrigeration subcontractor.
Ess & Vee did sheetrock work. The plaintiff’s decedent’s (“the plaintiff”) accident occurred on
September 6, 2013, at the elevator pit in the 2LL basement level at the NYY Steakhouse project.
The plaintiff started work at 7:00 a.m. and the accident occurred at 8:00 a.m. The accident
happened when, while walking backwards down a hallway which is alleged to have been dark, the
plaintiff stepped on a piece of wood which it is asserted was caused by Ess & Vee, resulting in the
plaintiff stepping/falling into an elevator pit which it is asserted was being used by B&G to store
equipment and which was uncovered.
4. The parties moved for summary judgment. In motion sequence numbers 003, 005,
006 and 007, inter alia, defendants NYY Steak, Plaza and Baring collectively sought summary
judgment dismissing the plaintiff’s Labor Law §§ 240(1), 241(6), 200 and common-law
negligence claims asserted as against them, and all defendants and third-party defendants moved
and cross-moved for summary judgment, either in favor of or dismissing all cross-claims and third-
party claims.
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5. In the underlying May 14, 2020 Decision and July 21, 2020 Decision (which
addressed only the plaintiff’s claims against Baring – see footnote 1), this Court collectively
dismissed the plaintiff’s Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims as
against NYY Steak, Plaza and Baring but did not reach a substantive determination of the portion
of NYY Steak/Plaza’s summary judgment motion pertaining to cross-claims and third-party
claims, reasoning that the dismissal of the plaintiff’s claims in the main action rendered these
cross-claims and third-party claims academic. See Decision + Order, dated May 14, 2020, annexed
as Exhibit A, p. 11 (“[i]n light of the dismissal of the main action insofar as asserted as against
defendants, the remaining claims [i.e., cross-claims and third-party claims] are dismissed as
academic. The court need not reach any remaining contentions”) (internal citations omitted).
6. By Decision and Order, entered March 14, 2023, the Appellate Division, First
Department reversed the May 14, 2020 Decision and July 21, 2020 Decision with respect to only
the plaintiff’s claims (since only the plaintiff’s claims were before the Appellate Division) and
reinstated the plaintiff’s Labor Law §§ 240(1) and 241(6) claims as against NYY Steak, Plaza and
Baring, and the plaintiff’s Labor Law § 200 and common-law negligence claims as against NYY
Steak and Plaza finding that issues of fact existed regarding NYY Steak and Plaza’s notice of the
lighting condition and uncovered elevator pit.
7. In light of the reinstatement of the plaintiff’s claims in the main action, it is
respectfully submitted that, in the interest of justice, the portions of the May 14, 2020 Decision of
this Court that dismissed NYY Steak and Plaza’s cross-claims and third-party claims as against
Baring, B&G and Ess & Vee should be vacated, reversed and modified so as to reinstate these
cross-claims and third-party claims.
8. It is also respectfully submitted that NYY Steak and Plaza should be granted leave
to renew the portions of their summary judgment motion (motion sequence no. 7) pertaining to the
cross-claims and third-party claims in this action and, upon renewal, granting summary judgment
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in favor of NYY Steak and Plaza: (a) as against B&G, Ess & Vee and Baring for a conditional
order of contractual indemnification, including but not limited to reimbursement of all attorneys’
fees, expenses, costs and disbursements incurred in the defense of the plaintiff’s claim and the
enforcement of the indemnity agreement; (b) as against Baring for breach of contract for failure to
procure insurance; and (c) dismissing all cross-claims and counterclaims asserted as against NYY
and Plaza for contractual indemnification and/or breach of contract for failure to procure
insurance 3.
9. Accordingly, NYY Steak and Plaza’s within motion should be granted in its
entirety.
EXHIBIT LIST
Exhibit A: Decision + Order of the Honorable Margaret A. Chan, dated May
14, 2020 (NYSCEF Doc. No. 506) and Amended Decision + Order
of the Honorable Margaret A. Chan, dated July 21, 2020
(NYSCEF Doc. No. 520)4
Exhibit B: Decision and Order of the Appellate Division, First Department,
dated March 14, 2023; Remittitur, dated March 29, 2023
(NYSCEF Doc. No. 543)
Exhibit C: NYY Steak/Plaza’s Summary Judgment Motion
1. Notice of Motion (NYSCEF Doc. No. 341)
2. Affirmation of Alisa Dultz, Esq. in Support of Motion
(NYSCEF Doc. No. 342)
3. Exhibits A-BB in Support of Motion (NYSCEF Doc. Nos. 343-375)
4. Memorandum of Law in Support of Motion (NYSCEF Doc. No. 376)
Exhibit D: Ess & Vee’s Opposition to NYY Steak/Plaza’s Summary
Judgment Motion
1. Affirmation of Robert J. Paliseno, Esq, in Opposition
(NYSCEF Doc. No. 384)
3
In light of the Appellate Division’s decision reinstating the plaintiff’s Labor Law § 200 and common-law negligence
claims on the ground that issues of fact existed as to NYY Steak and Plaza’s notice with respect to lighting and the
uncovered elevator pit, NYY Steak and Plaza are not seeking dismissal of any contribution or common-law indemnity
cross-claims against NYY Steak and are only seeking conditional indemnity.
4
Pursuant to CPLR 2214(c), movants incorporate by reference the Decision + Order and Amended
Decision + Order related to motion sequence nos. 003, 005 and 006 (NYSCEF Doc. Nos. 500,
504, 520).
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2. Exhibit A (NYSCEF Doc. Nos. 385)
Exhibit E: Day & Nite and Kimco’s Partial Opposition to NYY Steak/Plaza’s
Summary Judgment Motion
1. Affirmation of David A. Lore, Esq. in Partial Opposition, Affidavit of
Service (NYSCEF Doc. Nos. 407-408)
Exhibit F: Plaintiff’s Cross-Motion for Summary Judgment and Opposition to
NYY Steak/Plaza’s Summary Judgment Motion
1. Notice of Cross-Motion (NYSCEF Doc. No. 409)
2. Affirmation of Andrew R. Diamond, Esq. of Good Faith (NYSCEF
Doc. No. 410)
3. Affirmation of Andrew R. Diamond, Esq. in Support of Cross-Motion
and Opposition to NYY Steak/Plaza’s Summary Judgment Motion
(NYSCEF Doc. No. 411)
4. Memorandum of Law in Support of Motion and Affidavit of Service
(NYSCEF Doc. Nos. 412-413)
5. Exhibits 1-8 in Support of Cross-Motion (NYSCEF Doc. Nos. 414-
421)
Exhibit G: B&G’s Partial Opposition to NYY Steak/Plaza’s Summary
Judgment Motion
1. Affirmation of Eileen R. Fullerton, Esq. in Partial Opposition
(NYSCEF Doc. Nos. 449)
Exhibit H: Opposition to Plaintiff’s Cross-Motion for Summary Judgment
1. B&G: Affirmation of Eileen R. Fullerton, Esq. in Opposition
(NYSCEF Doc. No. 452)
2. Day & Nite and Kimco: Affirmation of David A. Lore, Esq. in Partial
Opposition, Affidavit of Service (NYSCEF Doc. No. 459-460)
3. NYY Steak/Plaza: Affirmation of Alisa Dultz, Esq. in Opposition to
Plaintiff’s Cross-Motion for Summary Judgment (NYSCEF Doc. No.
464), including Ex. A (NYSCEF Doc. No. 465)
Exhibit I: Baring’s Opposition to NYY Steak/Plaza’s Summary Judgment
Motion
1. Affirmation of Nikolaos E. Diamantis in Opposition (NYSCEF Doc.
No. 462)
2. Ex. A in Support of Opposition (NYSCEF Doc. No. 463)
Exhibit J: NYY Steak/Plaza’s Replies in Further Support of Summary
Judgment Motion
1. Reply Affirmation of Alisa Dultz, Esq. in Response to Plaintiff’s
Opposition (NYSCEF Doc. No. 467), including Exs. A-B (NYSCEF
Doc. Nos. 468-469)
2. Reply Affirmation of Alisa Dultz, Esq. in Response to B&G’s
Opposition (NYSCEF Doc. No. 480)
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3. Reply Affirmation of Alisa Dultz, Esq. in Response to Day & Nite and
Kimco’s Partial Opposition (NYSCEF Doc. No. 481)
4. Reply Affirmation of Alisa Dultz, Esq. in Response to Ess & Vee’s
Opposition (NYSCEF Doc. No. 482), including Ex. A (NYSCEF Doc.
No. 483)
5. Reply Affirmation of Alisa Dultz, Esq. in Response to Baring’s
Opposition (NYSCEF Doc. No. 484), including Exs. A-B (NYSCEF
Doc. Nos. 485-486)
Exhibit K: Plaintiff’s Replies on Cross-Motion for Summary Judgment
1. Reply Affirmation of Andrew R. Diamond, Esq. in Response to the
Opposition of NYY Steak/Plaza, Baring, Day & Nite, Ess & Vee and
B&G (NYSCEF Doc. No. 495), including Memorandum of Law and
Affidavit of Service (NYSCEF Doc. Nos. 496-497)
ARGUMENT
VACATING THE ORDERS DISMISSING THE CROSS-CLAIMS
AND THIRD-PARTY CLAIMS OF NYY STEAK AND PLAZA
IS WARRANTED IN THE INTEREST OF JUSTICE
10. Where, as here, the underlying basis for the dismissal of a claim has been reversed
on appeal, vacating the dismissal so as to reinstate the claim is warranted in the interest of justice.
See CPLR 5015 5(a)(5)6; see, e.g., Frank L. Ciminelli Construction Co., Inc. v. The City of Buffalo,
110 A.D.2d 1075, 1076 (4th Dept. 1985) (in action involving a third-party action for indemnity,
plaintiff appealed order dismissing the complaint for failure to prosecute and the Appellate
Division reversed; since the third-party action was dismissed when the complaint was dismissed
and defendant/third-party plaintiff did not appeal, the appellate court lacked jurisdiction to
reinstate the third-party complaint; held that defendant/third-party plaintiff may “[h]owever, move
at Special Term to vacate the dismissal pursuant to CPLR 5015(a)(5); because the foundation for
dismissal of the third-party complaint has been destroyed by our reinstatement of the complaint
herein, such motion should be granted in the interest of justice”); Feldberg v. Howard Fulton St.,
5
“Relief from judgment or order.”
“The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion
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of any interested person with such notice as the court may direct, upon the ground of: (5) reversal, modification or
vacatur of a prior judgment or order upon which it is based.”
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253 N.Y.S.2d 291, 293 (Sup. Ct., Kings Co. Oct. 27, 1964) (where the directed verdict in favor of
the defendant/third-party plaintiff was reversed, granted the defendant/third-party plaintiff’s
motion, pursuant to CPLR 5015(a)(5) to reinstate the third-party action; “[i]n the instant case, there
was a prior judgment which has been reversed. With that reversal, the foundation on which the
third-party judgment [dismissing the third-party action] had been based has been destroyed and
the vacatur of the existing third-party judgment out of plain justice is demanded… The judgment
entered herein on May 7, 1962, in so far as it pertains to the third-party action, is vacated and set
aside; and the third-party action is rejoined with the original action”), aff’d 24 A.D.2d 704 (2d
Dept. 1965).
11. On June 5, 2014, Plaza commenced a third-party action against Baring, asserting
causes of action for contractual indemnity, common-law indemnity, contribution and breach of
contract for failure to procure insurance. (Ex. F; NYSCEF Doc. Nos. 7-10). On April 27, 2015, in
their Amended Verified Answer to the Verified Amended Complaint, NYY Steak and Plaza
asserted cross-claims as against Baring for contractual indemnity, common-law indemnity,
contribution and breach of contract for failure to procure insurance. (Ex. F; NYSCEF Doc. No.
46). On September 2, 2015, NYY Steak and Plaza commenced a third third-party action against
B&G, Ess & Vee and Baring, asserting causes of action for contractual indemnity, common-law
indemnity, contribution and breach of contract for failure to procure insurance. (Ex. F; NYSCEF
Doc. Nos. 84-91).
12. This Court’s May 14, 2020 Decision dismissing NYY Steak and Plaza’s cross-
claims and third-party claims against B&G, Ess & Vee and Baring as academic was predicated
upon its dismissal of the plaintiff’s Labor Law and common-law negligence claims as against NYY
Steak, Plaza and Baring in the main action. See Ex. A, Decision + Order, dated May 14, 2020, p.
11 (“[i]n light of the dismissal of the main action insofar as asserted as against defendants, the
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remaining claims [i.e., cross-claims and third-party claims] are dismissed as academic. The court
need not reach any remaining contentions”) (internal citations omitted).
13. In its Decision reinstating the plaintiff’s Labor Law §§ 240(1) and 241(6) claims
against NYY Steak, Plaza and Baring, and the Labor Law § 200 and common-law negligence
claims as against NYY Steak and Plaza, the First Department held that there were issues of fact
that precluded dismissal of these claims as a matter of law based upon evidence which implicates
the (“arising out of”) indemnity and contractual (procuring insurance) obligations of Baring, B&G
and Ess & Vee to NYY Steak and Plaza. See Ex. B (“First Department Decision”).
14. One, the First Department held that there was an issue of fact as to the applicability
of Labor Law § 240(1) based on the testimony of the plaintiff’s decedent that he “tripped on a
piece of wood in an allegedly poorly lit passageway and fell into an elevator pit he described as
two and three feet deep. The pit was covered by a planking and plywood cover after it was poured,
but at some point the cover was removed and some trades on site stored materials and equipment
in it.”
15. Two, the First Department held that there were issues of fact with respect to the
applicability Labor Law § 241(6), predicated on alleged violations of Industrial Code §§ 23-1.7(e)
and 23-1.30, based on the testimony of the plaintiff’s decedent that “he tripped over debris in a
passageway” and “that he had difficulty seeing behind him as he dragged the dolly… and that he
did not see the debris or the pit before his accident.”
16. Three, the First Department held that there were issues of fact on the Labor Law §
200 and common-law negligence claims whether NYY Steak (as lessee of the premises) and Plaza
(as the construction manager on the Project) “were on notice that the illumination at the site was
insufficient” and the uncovered pit was “clearly observable, as other trades had placed equipment
and materials in it.”
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17. In light of the First Department’s reinstatement of the plaintiff’s Labor Law §§
240(1) and 241(6) claims against NYY Steak, Plaza and Baring, and the Labor Law § 200 and
common-law negligence claims as against NYY Steak and Plaza (Ex. B), the foundation for the
dismissal of NYY Steak and Plaza’s cross-claims and third-party claims has been “destroyed.”
Therefore, in the interest of justice, NYY Steak and Plaza’s cross-claims and third-party claims
should be reinstated.
18. Accordingly, it is respectfully submitted that the portions of the Decision +
Order/Amended Decision + Order dismissing NYY Steak and Plaza’s cross-claims and third-party
claims as against Baring, Day & Nite, B&G, Kimco and Ess & Vee should be vacated and these
cross-claims and third-party claims should be reinstated. Espinosa v. Azure Holdings II, LP, 58
A.D.3d 287, 293-294 (1st Dept. 2008) (“Finally, because we are reinstating certain of plaintiff's
claims, we necessarily reinstate the cross claims and the third-party complaint. The IAS court
denied as moot all portions of defendants' cross motions relating to indemnification and should
now have an opportunity to consider those issues… Accordingly, the order of Supreme
Court…which…granted defendants' motion and cross motions for summary judgment dismissing
the complaint and all crossclaims, and dismissed the third-party complaint, should be modified, on
the law, to the extent of denying defendants summary judgment dismissing the causes of action
under Labor Law § 240(1), Labor Law § 200, and common-law negligence, such causes of action
reinstated, all cross claims and the third-party complaint reinstated”); Paz v. Trump Plaza Hotel
And Casino, 43 A.D.3d 805, 806 (1st Dept. 2007) (previously dismissed and re-commenced claims
permitted to proceed forward: “The court properly denied Otis's motion. The previous dismissal
of Trump's third-party complaint against Otis was not on the merits. Rather, it was in light of the
dismissal of plaintiff's complaint, and Trump's claims against Otis for indemnification and
contribution were never addressed”).
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LEAVE TO RENEW THE PORTION OF NYY STEAK AND PLAZA’S
SUMMARY JUDGMENT MOTION PERTAINING TO THE
CROSS-CLAIMS AND THIRD-PARTY CLAIMS IS WARRANTED
19. Pursuant to CPLR 2221(a), (e), a motion for leave to renew a prior motion is the
appropriate vehicle for seeking relief from a prior order where there are no facts that would change
the prior determination, including where the circumstances in CPLR 5015 apply 7. Cf. Washington
Mutual Bank, FA v. Itzkowitz, 47 A.D.3d 923, 923 (2d Dept. 2008) (denied motion for leave to
renew because “[t]he appellants do not allege any of the circumstances set forth in CPLR 5015”);
accord Glicksman v. Board of Education/Central school Board of Comseqogue Union Free School
District, 278 A.D.2d 364, 366 (2d Dept. 2000).
20. On July 22, 2019, NYY Steak and Plaza filed a timely motion for summary
judgment (motion sequence no. 7), seeking relief on, inter alia, its cross-claims and third-party
claims as against B&G, Ess & Vee and Baring for contractual indemnification and as against
Baring for breach of contract for failure to procure insurance, and dismissal of cross-claims and
counterclaims asserted as against it for common-law indemnification, contractual indemnification
and/or breach of contract for failure to procure insurance. NYY Steak/Plaza’s summary judgment
motion, which was opposed by the parties, was fully briefed when it was submitted for
consideration by this Court.
21. The Appellate Division’s reinstatement of the plaintiff’s Labor Law §§ 240(1) and
241(6) claims against NYY Steak, Plaza and Baring, and the Labor Law § 200 and common-law
negligence claims as against NYY Steak and Plaza constitutes new facts, i.e., circumstances under
CPLR 5015(a)(5), that would change the prior determination of this Court. The Appellate
Divisions’ decision may also be considered a “change in the law” for purposes of CPLR Rule
2221(e)(2). See Spierer v. Bloomingdale’s, 59 A.D.3d 267, 267-68 (1st Dept. 2009) (“Renewal
CPLR Rule 2221(e)(2) states that a motion for leave to renew “shall be based upon new facts not offered on the prior
7
motion that would change the prior determination or shall demonstrate that there has been a change in the law that
would change the prior determination.”
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was warranted because dismissal of the action against Bloomingdale's constituted a change in the
law (CPLR 2221[e][2] ) – i.e., a new pronouncement of the law governing this case”); see also
Cioffi v. Target Corporation, 150 A.D.3d 665, 667 (2d Dept. 2017).
22. Inasmuch as this Court did not render a substantive decision on the portion of NYY
Steak/Plaza’s motion for summary judgment on their cross-claims and third-party claims and the
cross-claims asserted as against NYY Steak and Plaza, it is respectfully submitted that NYY Steak
and Plaza should be granted leave to renew this portion of its summary judgment motion.
NYY STEAK AND PLAZA ARE ENTITLED TO SUMMARY JUDGMENT
23. Inasmuch as NYY Steak and Plaza seek renewal of their fully-briefed motion, NYY
Steak and Plaza adopt and incorporate all of the facts and arguments raised in support of their
entitlement to summary judgment as if fully stated herein. (See Exhibit C annexed hereto;
NYSCEF Doc. Nos. 341-376 and Exhibit J annexed hereto). In the interest of judicial economy,
NYY Steak and Plaza will briefly address their grounds for relief in light of the First Department
decision.
NYY Steak And Plaza Are Entitled To A
Conditional Order Of Contractual Indemnification
As Against Baring, B&G And Ess & Vee
24. NYY Steak and Plaza are presently entitled to a conditional order of contractual
indemnification from Baring, B&G and Ess & Vee as a matter of law.
25. Plaza’s trade subcontracts with Baring, B&G and Ess & Vee each contain a broad
indemnity provision which obligates them to defend and indemnify NYY Steak and Plaza for any
claims that “arise out of” their work (or their sub-subcontractors’ work) on the Project, including
claims which occur in the vicinity of their property and/or equipment (or their sub-subcontractor’s
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property and/or equipment) required for the performance of their subcontracted work. (See Ex. C-
2, ¶¶ 29-47 and referenced exhibits; Ex. C-4, pp. 11-27). 8
8
Plaza entered into trade subcontracts with Baring, B&G and Ess & Vee, each of which contain
the same General Conditions, including Article 9 (“Indemnification and Insurance”), which
provides, in relevant part, as follows:
A. To the extent permitted by law, Subcontractor [Baring, B&G, or Ess & Vee] shall
indemnify, defend, save and hold the Owner [NYY Steak], the Construction
Manager [Plaza]… (herein collectively called “Indemnitees”) harmless from and
against all 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:
1. The performance of Work by the Subcontractor [Baring, B&G, or Ess &
Vee], or any of its 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 such 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 (b) while any of the
Subcontractor’s property, equipment or personnel are in or about such place
or the vicinity thereof by reason of or as a result of the performance of the
Work; or
3. The use, misuse, erection, maintenance, operation or failure of any
machinery or equipment…
C. In the event more than one Subcontractor is connected with an accident or
occurrence covered by this indemnification, then all of such Subcontractors shall
be jointly and severally responsible to the indemnitees for indemnification and the
ultimate responsibility among such indemnifying Subcontractors for the loss and
expense of any such indemnification shall be settled by separate proceedings and
without jeopardy to any Indemnitee. The provisions of the indemnity provided for
herein shall not be construed to indemnify any Indemnitee for its own negligence
if not permitted by law or to eliminate or reduce any other indemnification or right
which Owner, Construction Manager, Landlord, Building, Management… has by
law…
E. Notwithstanding the above, wherever there is a provision in the applicable law
governing this Contract making void and unenforceable any such indemnification
of an Indemnitee hereunder where such Indemnitee is negligent or at fault, in whole
or in part, then and in any event such indemnification shall apply only to the extent
permitted by such applicable law but nothing herein set forth shall be deemed to
preclude the indemnification of an Indemnitee hereunder from any of the foregoing
damages caused by, arising out of, resulting from, or occurring in connection with
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26. It is clear from the First Department Decision that the plaintiff’s claims in this
action trigger the contractual defense and indemnity obligations of Baring, B&G and Ess & Vee
to NYY Steak and Plaza as the plaintiff’s alleged accident arose out of the contracted for work of
Baring, B&G and Ess & Vee.
27. Plaza subcontracted with Baring to install food service equipment on the Project,
including the refrigeration unit the plaintiff’s decedent was transporting at the time of the accident,
i.e., work that Baring sub-subcontracted to his employer, Day & Nite. (See Ex. C-2, ¶¶ 29-33, 62-
79 and referenced exhibits; Ex. C-4, pp. 25-27; Ex. J-5). Therefore, the accident necessarily arose
out of Baring’s work which it subcontracted to Day & Nite.
28. B&G, Plaza’s electrical subcontractor, was obligated to install and maintain
temporary lighting in the “entire [Project] space” and it furnished the temporary lighting in the
vicinity of the elevator pit that was allegedly insufficient; it stored its materials in the elevator pit
and there is record evidence that it removed and did not replace the temporary cover over the
elevator pit because, at the time of the alleged accident, it was working in the vicinity of the
elevator pit and using materials that were stored there. (See Ex. C-2, ¶¶ 37-54, 84-90 and
referenced exhibits; Ex. C-4, pp. 5-19; Ex. J-2). Therefore, the accident necessarily arose out of
B&G’s contracted for work.
29. Ess & Vee, Plaza’s carpentry subcontractor, stored sheetrock in a hallway in the
vicinity of the elevator pit, which is the “debris” (piece of wood) the plaintiff allegedly encountered
immediately prior to his alleged fall. (See Ex. C-2, ¶¶ 34-36, 91-99 and referenced exhibits; Ex.
C-4, pp. 19-25; Ex. J-4).
the negligence or any other fault of a party other than the Indemnitee, whether or
not the Indemnitee is partially negligent or at fault.
See Plaza-Baring Subcontract, Ex. S to NYY Steak/Plaza’s underlying motion, Ex. A General
Conditions, Article 9, pp. 12-14(NYSECF Doc. No. 361) (emphasis added).
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30. The indemnity provision in the trade subcontracts expressly contemplates full and
partial indemnification, so the NYY Steak and Plaza do not need to wait for apportionment of
fault. See, e.g., Plaza-Baring Subcontract, Ex. S to NYY Steak/Plaza’s underlying motion, Ex. A
General Conditions, Article 9(E), pp. 13-14 (NYSECF Doc. No. 361).
31. Accordingly, NYY Steak and Plaza are presently entitled to summary judgment in
their favor for a conditional order of contractual indemnification as against B&G, Ess & Vee and
Baring, including but not limited to reimbursement of all attorneys’ fees, expenses, costs and
disbursements incurred in the defense of the plaintiff’s claim and the enforcement of the indemnity
agreement.
NYY Steak And Plaza Are Entitled To Summary Judgment
Claim Against Baring For Breach Of
Contract For Failure To Procure Insurance
32. Baring breached its contractual obligations to NYY Steak and Plaza by failing to
obtain the agreed-upon insurance coverage. Pursuant to its trade subcontract with Plaza, Baring
was obligated to obtain commercial general liability (CGL) insurance with a combined single limit
for personal injury of at least $2,000,000 per occurrence and $4,000,000 in the aggregate; Baring,
however, obtained a CGL policy with a combined single limit for personal injury of $1,000,000
per occurrence and $2,000,000 in the aggregate. (See Ex. C-2, ¶¶ 112-113 and referenced exhibits;
Ex. C-4, p. 30). As discussed in NYY Steak/Plaza’s reply in support of its motion, Baring concedes
that it did not obtain the requisite primary insurance coverage. 9 (See Ex. J-5 [NYSCEF Doc. No.
484], ¶ 42).
9
In its opposition, Baring concedes that it “was afford[ed] [primary] insurance coverage by
National Fire Insurance of Hartford under policy C2092160725 for the period of 1/15/2013 –
1/15/2014 for $1 Mil per occurrence and $2 Mil in the aggregate.” (See Ex. I-1 [NYSCEF Doc.
No. 462], ¶ 15).e discovery exchange, BARING was afford insurance
coverage by National Fire Insurance of Hartford under policy C2092169725 for the period of
1/15/2013 - 1/15/2014 for $1 Mil per occurrence and $2 Mil in the aggregate. In
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33. NYY Steak and Plaza are therefore entitled to judgment as a matter of law on their
third-party breach of contract claims as against Baring, including but not limited to damages for
the premiums NYY Steak and Plaza paid for their own insurance, the amount NYY Steak and
Plaza paid toward any deductible and other out-of-pocket costs, and any increase in future
insurance premiums.
Any Cross-Claims And Counterclaims
Asserted As Against NYY Steak And/Or Plaza
For Contractual Indemnification And/Or
Breach Of Contract Should Be Dismissed
34. Any cross-claims and counterclaims asserted by Baring, Day & Nite, B&G, Kimco
and Ess & Vee as against NYY Steak and/or Plaza for contractual indemnification and/or breach
of contract for failure to procure insurance fail as a matter of law and should be dismissed.
35. Specifically, in their answers to the Third Third-Party Complaint, Baring, Day &
Nite, B&G, Kimco and Ess & Vee assert cross-claims and counterclaims for, inter alia, breach of
contract for failure to procure insurance, breach of warranty and contractual contribution. (See
Ex. C-4, pp. 29-30). The record evidence demonstrates that there is no contract/are no contracts
obligating NYY Steak and/or Plaza to indemnify and/or procure insurance for Baring, Day & Nite,
B&G, Kimco and/or Ess & Vee.
36. Accordingly, NYY Steak and Plaza’s motion for summary judgment dismissing
any cross-claims and counterclaims asserted as against it for contractual indemnification and/or
breach of contract should be dismissed.
CONCLUSION
37. On the basis of the foregoing, it is respectfully requested that this Court vacate the
portions of the May 14, 2020 Decision that dismissed NYY Steak and Plaza’s cross-claims and
third-party claims as against Baring, B&G and Ess & Vee and reinstate all cross-claims and third-
party claims. It is also respectfully submitted that NYY Steak and Plaza should be granted leave
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to renew the portions of their summary judgment motion (motion sequence no. 7) pertaining to the
cross-claims and third-party claims in this action and, upon renewal, granting summary judgment
in favor of NYY St
Preview
FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------------------X MICHELLE DEVITA, as Administratrix of the Estate of Index No. 158327/2013 KEVIN McGONIGAL, Plaintiff, AFFIRMATION IN SUPPORT OF -against- MOTION TO VACATE, REINSTATE AND FOR NYY STEAK MANHATTAN, LLC, PLAZA SUMMARY JUDGMENT CONSTRUCTION CORP. and BARING INDUSTRIES, INC., Defendants. --------------------------------------------------------------------------------X PLAZA CONSTRUCTION CORP., Third-Party Plaintiff, Third-Party Index -against- No. 595146/2014 BARING INDUSTRIES, INC., Third-Party Defendant. --------------------------------------------------------------------------------X BARING INDUSTRIES, INC., Second Third-Party Plaintiff, -against- Second Third-Party Index No. 595130/2015 DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., Second Third-Party Defendants. --------------------------------------------------------------------------------X NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., Third Third-Party Plaintiffs, -against- Third Third-Party Index No. 595638/2015 B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., Third Third-Party Defendants. --------------------------------------------------------------------------------X 1 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 ALLISON A. SNYDER, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true based upon information and belief and with knowledge of the penalties for perjury: 1. I am Of Counsel to the law firm of Fabiani Cohen & Hall, LLP, attorneys for defendants/third third-party plaintiffs defendants NYY Steak Manhattan, LLC (“NYY Steak”) and Plaza Construction LLC f/k/a Plaza Construction Corp. (“Plaza”) (collectively, “NYY Steak/Plaza”). I am fully familiar with the facts and circumstances as set forth herein. 2. I submit this affirmation in support of NYY Steak and Plaza’s motion for an Order: (i) pursuant to CPLR 2221(a) and CPLR 5015(a)(5), vacating, modifying and reversing the portions of the Decision + Order of the Honorable Margaret A. Chan, dated May 14, 2020 (NYSCEF Doc. No. 506) (“May 14, 2020 Decision” 1) which dismissed the cross- claims and third-party claims asserted by NYY Steak/Plaza as against third-party defendant/second third-party plaintiff/third third- party defendant Baring Industries, Inc. (“Baring”), third third-party defendant B&G Electrical Contractors (“B&G”) and third third- party defendant Ess & Vee Acoustical Contractors, Inc. (Ess & Vee”) in light of the Decision and Order of the Appellate Division, First Department, entered March 14, 2023, reversing the July 21, 2021 Decision, 2 and reinstating all cross-claims and third-party claims asserted by NYY Steak/Plaza as against the parties in this action including Baring, B&G and Ess & Vee; and (ii) pursuant to CPLR 2221(a) and (e), granting leave to renew NYY Steak/Plaza’s motion for summary judgment (motion sequence no. 7) and, upon renewal, pursuant to CPLR 3212(b), granting summary judgment in favor of NYY Steak and Plaza: (a) as against B&G, Ess & Vee and Baring for a conditional order of contractual indemnification, including but not limited to reimbursement of all attorneys’ fees, expenses, costs and disbursements incurred in the 1 The May 14, 2020 Decision addressed motion sequence nos. 003, 005, 006 and 007 and in a subsequent Amended Decision + Order dated July 21, 2020 (NYSCEF Doc. No. 520) the plaintiff’s claims against Baring Industries, Inc. were dismissed – the Court having inadvertently neglected to do so in its May 14, 2020 Decision. The July 21, 2020 Amended Decision + Order did not pertain to any of the claims by and between the defendants/third-party plaintiffs/third-party defendants. The Appellate Division’s March 14, 2023 Decision and Order addressed only that portion of the May 14, 2020 2 Decision that dismissed the plaintiff’s action. Therefore, there was reversal only with respect to the plaintiff’s claims. The Appellate Division did not address the claims by and between the defendants/third-party plaintiffs/third-party defendants. [2813823/1] 2 2 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 defense of the plaintiff’s claim and the enforcement of the indemnity agreement; (b) as against Baring for breach of contract for failure to procure insurance; and (c) dismissing all cross-claims and counterclaims asserted as against NYY and Plaza for contractual indemnification and/or breach of contract for failure to procure insurance. 3. Briefly, by way of overview, in or about May of 2013 NYY Steak hired Plaza as construction manager to build a restaurant in an existing old bank building (“the NYY Steakhouse project”). NYY Steak and Plaza entered into a “guaranteed maximum price construction agreement” whereby, in consideration of a fixed price, Plaza agreed to perform the work necessary to build the restaurant. B&G was hired as the electrical contractor and provided the temporary lighting in the basement level where the accident happened. Baring was hired to provide kitchen equipment. Baring hired the plaintiff’s employer Day & Nite as the refrigeration subcontractor. Ess & Vee did sheetrock work. The plaintiff’s decedent’s (“the plaintiff”) accident occurred on September 6, 2013, at the elevator pit in the 2LL basement level at the NYY Steakhouse project. The plaintiff started work at 7:00 a.m. and the accident occurred at 8:00 a.m. The accident happened when, while walking backwards down a hallway which is alleged to have been dark, the plaintiff stepped on a piece of wood which it is asserted was caused by Ess & Vee, resulting in the plaintiff stepping/falling into an elevator pit which it is asserted was being used by B&G to store equipment and which was uncovered. 4. The parties moved for summary judgment. In motion sequence numbers 003, 005, 006 and 007, inter alia, defendants NYY Steak, Plaza and Baring collectively sought summary judgment dismissing the plaintiff’s Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims asserted as against them, and all defendants and third-party defendants moved and cross-moved for summary judgment, either in favor of or dismissing all cross-claims and third- party claims. [2813823/1] 3 3 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 5. In the underlying May 14, 2020 Decision and July 21, 2020 Decision (which addressed only the plaintiff’s claims against Baring – see footnote 1), this Court collectively dismissed the plaintiff’s Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims as against NYY Steak, Plaza and Baring but did not reach a substantive determination of the portion of NYY Steak/Plaza’s summary judgment motion pertaining to cross-claims and third-party claims, reasoning that the dismissal of the plaintiff’s claims in the main action rendered these cross-claims and third-party claims academic. See Decision + Order, dated May 14, 2020, annexed as Exhibit A, p. 11 (“[i]n light of the dismissal of the main action insofar as asserted as against defendants, the remaining claims [i.e., cross-claims and third-party claims] are dismissed as academic. The court need not reach any remaining contentions”) (internal citations omitted). 6. By Decision and Order, entered March 14, 2023, the Appellate Division, First Department reversed the May 14, 2020 Decision and July 21, 2020 Decision with respect to only the plaintiff’s claims (since only the plaintiff’s claims were before the Appellate Division) and reinstated the plaintiff’s Labor Law §§ 240(1) and 241(6) claims as against NYY Steak, Plaza and Baring, and the plaintiff’s Labor Law § 200 and common-law negligence claims as against NYY Steak and Plaza finding that issues of fact existed regarding NYY Steak and Plaza’s notice of the lighting condition and uncovered elevator pit. 7. In light of the reinstatement of the plaintiff’s claims in the main action, it is respectfully submitted that, in the interest of justice, the portions of the May 14, 2020 Decision of this Court that dismissed NYY Steak and Plaza’s cross-claims and third-party claims as against Baring, B&G and Ess & Vee should be vacated, reversed and modified so as to reinstate these cross-claims and third-party claims. 8. It is also respectfully submitted that NYY Steak and Plaza should be granted leave to renew the portions of their summary judgment motion (motion sequence no. 7) pertaining to the cross-claims and third-party claims in this action and, upon renewal, granting summary judgment [2813823/1] 4 4 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 in favor of NYY Steak and Plaza: (a) as against B&G, Ess & Vee and Baring for a conditional order of contractual indemnification, including but not limited to reimbursement of all attorneys’ fees, expenses, costs and disbursements incurred in the defense of the plaintiff’s claim and the enforcement of the indemnity agreement; (b) as against Baring for breach of contract for failure to procure insurance; and (c) dismissing all cross-claims and counterclaims asserted as against NYY and Plaza for contractual indemnification and/or breach of contract for failure to procure insurance 3. 9. Accordingly, NYY Steak and Plaza’s within motion should be granted in its entirety. EXHIBIT LIST Exhibit A: Decision + Order of the Honorable Margaret A. Chan, dated May 14, 2020 (NYSCEF Doc. No. 506) and Amended Decision + Order of the Honorable Margaret A. Chan, dated July 21, 2020 (NYSCEF Doc. No. 520)4 Exhibit B: Decision and Order of the Appellate Division, First Department, dated March 14, 2023; Remittitur, dated March 29, 2023 (NYSCEF Doc. No. 543) Exhibit C: NYY Steak/Plaza’s Summary Judgment Motion 1. Notice of Motion (NYSCEF Doc. No. 341) 2. Affirmation of Alisa Dultz, Esq. in Support of Motion (NYSCEF Doc. No. 342) 3. Exhibits A-BB in Support of Motion (NYSCEF Doc. Nos. 343-375) 4. Memorandum of Law in Support of Motion (NYSCEF Doc. No. 376) Exhibit D: Ess & Vee’s Opposition to NYY Steak/Plaza’s Summary Judgment Motion 1. Affirmation of Robert J. Paliseno, Esq, in Opposition (NYSCEF Doc. No. 384) 3 In light of the Appellate Division’s decision reinstating the plaintiff’s Labor Law § 200 and common-law negligence claims on the ground that issues of fact existed as to NYY Steak and Plaza’s notice with respect to lighting and the uncovered elevator pit, NYY Steak and Plaza are not seeking dismissal of any contribution or common-law indemnity cross-claims against NYY Steak and are only seeking conditional indemnity. 4 Pursuant to CPLR 2214(c), movants incorporate by reference the Decision + Order and Amended Decision + Order related to motion sequence nos. 003, 005 and 006 (NYSCEF Doc. Nos. 500, 504, 520). [2813823/1] 5 5 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 2. Exhibit A (NYSCEF Doc. Nos. 385) Exhibit E: Day & Nite and Kimco’s Partial Opposition to NYY Steak/Plaza’s Summary Judgment Motion 1. Affirmation of David A. Lore, Esq. in Partial Opposition, Affidavit of Service (NYSCEF Doc. Nos. 407-408) Exhibit F: Plaintiff’s Cross-Motion for Summary Judgment and Opposition to NYY Steak/Plaza’s Summary Judgment Motion 1. Notice of Cross-Motion (NYSCEF Doc. No. 409) 2. Affirmation of Andrew R. Diamond, Esq. of Good Faith (NYSCEF Doc. No. 410) 3. Affirmation of Andrew R. Diamond, Esq. in Support of Cross-Motion and Opposition to NYY Steak/Plaza’s Summary Judgment Motion (NYSCEF Doc. No. 411) 4. Memorandum of Law in Support of Motion and Affidavit of Service (NYSCEF Doc. Nos. 412-413) 5. Exhibits 1-8 in Support of Cross-Motion (NYSCEF Doc. Nos. 414- 421) Exhibit G: B&G’s Partial Opposition to NYY Steak/Plaza’s Summary Judgment Motion 1. Affirmation of Eileen R. Fullerton, Esq. in Partial Opposition (NYSCEF Doc. Nos. 449) Exhibit H: Opposition to Plaintiff’s Cross-Motion for Summary Judgment 1. B&G: Affirmation of Eileen R. Fullerton, Esq. in Opposition (NYSCEF Doc. No. 452) 2. Day & Nite and Kimco: Affirmation of David A. Lore, Esq. in Partial Opposition, Affidavit of Service (NYSCEF Doc. No. 459-460) 3. NYY Steak/Plaza: Affirmation of Alisa Dultz, Esq. in Opposition to Plaintiff’s Cross-Motion for Summary Judgment (NYSCEF Doc. No. 464), including Ex. A (NYSCEF Doc. No. 465) Exhibit I: Baring’s Opposition to NYY Steak/Plaza’s Summary Judgment Motion 1. Affirmation of Nikolaos E. Diamantis in Opposition (NYSCEF Doc. No. 462) 2. Ex. A in Support of Opposition (NYSCEF Doc. No. 463) Exhibit J: NYY Steak/Plaza’s Replies in Further Support of Summary Judgment Motion 1. Reply Affirmation of Alisa Dultz, Esq. in Response to Plaintiff’s Opposition (NYSCEF Doc. No. 467), including Exs. A-B (NYSCEF Doc. Nos. 468-469) 2. Reply Affirmation of Alisa Dultz, Esq. in Response to B&G’s Opposition (NYSCEF Doc. No. 480) [2813823/1] 6 6 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 3. Reply Affirmation of Alisa Dultz, Esq. in Response to Day & Nite and Kimco’s Partial Opposition (NYSCEF Doc. No. 481) 4. Reply Affirmation of Alisa Dultz, Esq. in Response to Ess & Vee’s Opposition (NYSCEF Doc. No. 482), including Ex. A (NYSCEF Doc. No. 483) 5. Reply Affirmation of Alisa Dultz, Esq. in Response to Baring’s Opposition (NYSCEF Doc. No. 484), including Exs. A-B (NYSCEF Doc. Nos. 485-486) Exhibit K: Plaintiff’s Replies on Cross-Motion for Summary Judgment 1. Reply Affirmation of Andrew R. Diamond, Esq. in Response to the Opposition of NYY Steak/Plaza, Baring, Day & Nite, Ess & Vee and B&G (NYSCEF Doc. No. 495), including Memorandum of Law and Affidavit of Service (NYSCEF Doc. Nos. 496-497) ARGUMENT VACATING THE ORDERS DISMISSING THE CROSS-CLAIMS AND THIRD-PARTY CLAIMS OF NYY STEAK AND PLAZA IS WARRANTED IN THE INTEREST OF JUSTICE 10. Where, as here, the underlying basis for the dismissal of a claim has been reversed on appeal, vacating the dismissal so as to reinstate the claim is warranted in the interest of justice. See CPLR 5015 5(a)(5)6; see, e.g., Frank L. Ciminelli Construction Co., Inc. v. The City of Buffalo, 110 A.D.2d 1075, 1076 (4th Dept. 1985) (in action involving a third-party action for indemnity, plaintiff appealed order dismissing the complaint for failure to prosecute and the Appellate Division reversed; since the third-party action was dismissed when the complaint was dismissed and defendant/third-party plaintiff did not appeal, the appellate court lacked jurisdiction to reinstate the third-party complaint; held that defendant/third-party plaintiff may “[h]owever, move at Special Term to vacate the dismissal pursuant to CPLR 5015(a)(5); because the foundation for dismissal of the third-party complaint has been destroyed by our reinstatement of the complaint herein, such motion should be granted in the interest of justice”); Feldberg v. Howard Fulton St., 5 “Relief from judgment or order.” “The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion 6 of any interested person with such notice as the court may direct, upon the ground of: (5) reversal, modification or vacatur of a prior judgment or order upon which it is based.” [2813823/1] 7 7 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 253 N.Y.S.2d 291, 293 (Sup. Ct., Kings Co. Oct. 27, 1964) (where the directed verdict in favor of the defendant/third-party plaintiff was reversed, granted the defendant/third-party plaintiff’s motion, pursuant to CPLR 5015(a)(5) to reinstate the third-party action; “[i]n the instant case, there was a prior judgment which has been reversed. With that reversal, the foundation on which the third-party judgment [dismissing the third-party action] had been based has been destroyed and the vacatur of the existing third-party judgment out of plain justice is demanded… The judgment entered herein on May 7, 1962, in so far as it pertains to the third-party action, is vacated and set aside; and the third-party action is rejoined with the original action”), aff’d 24 A.D.2d 704 (2d Dept. 1965). 11. On June 5, 2014, Plaza commenced a third-party action against Baring, asserting causes of action for contractual indemnity, common-law indemnity, contribution and breach of contract for failure to procure insurance. (Ex. F; NYSCEF Doc. Nos. 7-10). On April 27, 2015, in their Amended Verified Answer to the Verified Amended Complaint, NYY Steak and Plaza asserted cross-claims as against Baring for contractual indemnity, common-law indemnity, contribution and breach of contract for failure to procure insurance. (Ex. F; NYSCEF Doc. No. 46). On September 2, 2015, NYY Steak and Plaza commenced a third third-party action against B&G, Ess & Vee and Baring, asserting causes of action for contractual indemnity, common-law indemnity, contribution and breach of contract for failure to procure insurance. (Ex. F; NYSCEF Doc. Nos. 84-91). 12. This Court’s May 14, 2020 Decision dismissing NYY Steak and Plaza’s cross- claims and third-party claims against B&G, Ess & Vee and Baring as academic was predicated upon its dismissal of the plaintiff’s Labor Law and common-law negligence claims as against NYY Steak, Plaza and Baring in the main action. See Ex. A, Decision + Order, dated May 14, 2020, p. 11 (“[i]n light of the dismissal of the main action insofar as asserted as against defendants, the [2813823/1] 8 8 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 remaining claims [i.e., cross-claims and third-party claims] are dismissed as academic. The court need not reach any remaining contentions”) (internal citations omitted). 13. In its Decision reinstating the plaintiff’s Labor Law §§ 240(1) and 241(6) claims against NYY Steak, Plaza and Baring, and the Labor Law § 200 and common-law negligence claims as against NYY Steak and Plaza, the First Department held that there were issues of fact that precluded dismissal of these claims as a matter of law based upon evidence which implicates the (“arising out of”) indemnity and contractual (procuring insurance) obligations of Baring, B&G and Ess & Vee to NYY Steak and Plaza. See Ex. B (“First Department Decision”). 14. One, the First Department held that there was an issue of fact as to the applicability of Labor Law § 240(1) based on the testimony of the plaintiff’s decedent that he “tripped on a piece of wood in an allegedly poorly lit passageway and fell into an elevator pit he described as two and three feet deep. The pit was covered by a planking and plywood cover after it was poured, but at some point the cover was removed and some trades on site stored materials and equipment in it.” 15. Two, the First Department held that there were issues of fact with respect to the applicability Labor Law § 241(6), predicated on alleged violations of Industrial Code §§ 23-1.7(e) and 23-1.30, based on the testimony of the plaintiff’s decedent that “he tripped over debris in a passageway” and “that he had difficulty seeing behind him as he dragged the dolly… and that he did not see the debris or the pit before his accident.” 16. Three, the First Department held that there were issues of fact on the Labor Law § 200 and common-law negligence claims whether NYY Steak (as lessee of the premises) and Plaza (as the construction manager on the Project) “were on notice that the illumination at the site was insufficient” and the uncovered pit was “clearly observable, as other trades had placed equipment and materials in it.” [2813823/1] 9 9 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 17. In light of the First Department’s reinstatement of the plaintiff’s Labor Law §§ 240(1) and 241(6) claims against NYY Steak, Plaza and Baring, and the Labor Law § 200 and common-law negligence claims as against NYY Steak and Plaza (Ex. B), the foundation for the dismissal of NYY Steak and Plaza’s cross-claims and third-party claims has been “destroyed.” Therefore, in the interest of justice, NYY Steak and Plaza’s cross-claims and third-party claims should be reinstated. 18. Accordingly, it is respectfully submitted that the portions of the Decision + Order/Amended Decision + Order dismissing NYY Steak and Plaza’s cross-claims and third-party claims as against Baring, Day & Nite, B&G, Kimco and Ess & Vee should be vacated and these cross-claims and third-party claims should be reinstated. Espinosa v. Azure Holdings II, LP, 58 A.D.3d 287, 293-294 (1st Dept. 2008) (“Finally, because we are reinstating certain of plaintiff's claims, we necessarily reinstate the cross claims and the third-party complaint. The IAS court denied as moot all portions of defendants' cross motions relating to indemnification and should now have an opportunity to consider those issues… Accordingly, the order of Supreme Court…which…granted defendants' motion and cross motions for summary judgment dismissing the complaint and all crossclaims, and dismissed the third-party complaint, should be modified, on the law, to the extent of denying defendants summary judgment dismissing the causes of action under Labor Law § 240(1), Labor Law § 200, and common-law negligence, such causes of action reinstated, all cross claims and the third-party complaint reinstated”); Paz v. Trump Plaza Hotel And Casino, 43 A.D.3d 805, 806 (1st Dept. 2007) (previously dismissed and re-commenced claims permitted to proceed forward: “The court properly denied Otis's motion. The previous dismissal of Trump's third-party complaint against Otis was not on the merits. Rather, it was in light of the dismissal of plaintiff's complaint, and Trump's claims against Otis for indemnification and contribution were never addressed”). [2813823/1] 10 10 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 LEAVE TO RENEW THE PORTION OF NYY STEAK AND PLAZA’S SUMMARY JUDGMENT MOTION PERTAINING TO THE CROSS-CLAIMS AND THIRD-PARTY CLAIMS IS WARRANTED 19. Pursuant to CPLR 2221(a), (e), a motion for leave to renew a prior motion is the appropriate vehicle for seeking relief from a prior order where there are no facts that would change the prior determination, including where the circumstances in CPLR 5015 apply 7. Cf. Washington Mutual Bank, FA v. Itzkowitz, 47 A.D.3d 923, 923 (2d Dept. 2008) (denied motion for leave to renew because “[t]he appellants do not allege any of the circumstances set forth in CPLR 5015”); accord Glicksman v. Board of Education/Central school Board of Comseqogue Union Free School District, 278 A.D.2d 364, 366 (2d Dept. 2000). 20. On July 22, 2019, NYY Steak and Plaza filed a timely motion for summary judgment (motion sequence no. 7), seeking relief on, inter alia, its cross-claims and third-party claims as against B&G, Ess & Vee and Baring for contractual indemnification and as against Baring for breach of contract for failure to procure insurance, and dismissal of cross-claims and counterclaims asserted as against it for common-law indemnification, contractual indemnification and/or breach of contract for failure to procure insurance. NYY Steak/Plaza’s summary judgment motion, which was opposed by the parties, was fully briefed when it was submitted for consideration by this Court. 21. The Appellate Division’s reinstatement of the plaintiff’s Labor Law §§ 240(1) and 241(6) claims against NYY Steak, Plaza and Baring, and the Labor Law § 200 and common-law negligence claims as against NYY Steak and Plaza constitutes new facts, i.e., circumstances under CPLR 5015(a)(5), that would change the prior determination of this Court. The Appellate Divisions’ decision may also be considered a “change in the law” for purposes of CPLR Rule 2221(e)(2). See Spierer v. Bloomingdale’s, 59 A.D.3d 267, 267-68 (1st Dept. 2009) (“Renewal CPLR Rule 2221(e)(2) states that a motion for leave to renew “shall be based upon new facts not offered on the prior 7 motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination.” [2813823/1] 11 11 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 was warranted because dismissal of the action against Bloomingdale's constituted a change in the law (CPLR 2221[e][2] ) – i.e., a new pronouncement of the law governing this case”); see also Cioffi v. Target Corporation, 150 A.D.3d 665, 667 (2d Dept. 2017). 22. Inasmuch as this Court did not render a substantive decision on the portion of NYY Steak/Plaza’s motion for summary judgment on their cross-claims and third-party claims and the cross-claims asserted as against NYY Steak and Plaza, it is respectfully submitted that NYY Steak and Plaza should be granted leave to renew this portion of its summary judgment motion. NYY STEAK AND PLAZA ARE ENTITLED TO SUMMARY JUDGMENT 23. Inasmuch as NYY Steak and Plaza seek renewal of their fully-briefed motion, NYY Steak and Plaza adopt and incorporate all of the facts and arguments raised in support of their entitlement to summary judgment as if fully stated herein. (See Exhibit C annexed hereto; NYSCEF Doc. Nos. 341-376 and Exhibit J annexed hereto). In the interest of judicial economy, NYY Steak and Plaza will briefly address their grounds for relief in light of the First Department decision. NYY Steak And Plaza Are Entitled To A Conditional Order Of Contractual Indemnification As Against Baring, B&G And Ess & Vee 24. NYY Steak and Plaza are presently entitled to a conditional order of contractual indemnification from Baring, B&G and Ess & Vee as a matter of law. 25. Plaza’s trade subcontracts with Baring, B&G and Ess & Vee each contain a broad indemnity provision which obligates them to defend and indemnify NYY Steak and Plaza for any claims that “arise out of” their work (or their sub-subcontractors’ work) on the Project, including claims which occur in the vicinity of their property and/or equipment (or their sub-subcontractor’s [2813823/1] 12 12 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 property and/or equipment) required for the performance of their subcontracted work. (See Ex. C- 2, ¶¶ 29-47 and referenced exhibits; Ex. C-4, pp. 11-27). 8 8 Plaza entered into trade subcontracts with Baring, B&G and Ess & Vee, each of which contain the same General Conditions, including Article 9 (“Indemnification and Insurance”), which provides, in relevant part, as follows: A. To the extent permitted by law, Subcontractor [Baring, B&G, or Ess & Vee] shall indemnify, defend, save and hold the Owner [NYY Steak], the Construction Manager [Plaza]… (herein collectively called “Indemnitees”) harmless from and against all 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: 1. The performance of Work by the Subcontractor [Baring, B&G, or Ess & Vee], or any of its 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 such 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 (b) while any of the Subcontractor’s property, equipment or personnel are in or about such place or the vicinity thereof by reason of or as a result of the performance of the Work; or 3. The use, misuse, erection, maintenance, operation or failure of any machinery or equipment… C. In the event more than one Subcontractor is connected with an accident or occurrence covered by this indemnification, then all of such Subcontractors shall be jointly and severally responsible to the indemnitees for indemnification and the ultimate responsibility among such indemnifying Subcontractors for the loss and expense of any such indemnification shall be settled by separate proceedings and without jeopardy to any Indemnitee. The provisions of the indemnity provided for herein shall not be construed to indemnify any Indemnitee for its own negligence if not permitted by law or to eliminate or reduce any other indemnification or right which Owner, Construction Manager, Landlord, Building, Management… has by law… E. Notwithstanding the above, wherever there is a provision in the applicable law governing this Contract making void and unenforceable any such indemnification of an Indemnitee hereunder where such Indemnitee is negligent or at fault, in whole or in part, then and in any event such indemnification shall apply only to the extent permitted by such applicable law but nothing herein set forth shall be deemed to preclude the indemnification of an Indemnitee hereunder from any of the foregoing damages caused by, arising out of, resulting from, or occurring in connection with [2813823/1] 13 13 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 26. It is clear from the First Department Decision that the plaintiff’s claims in this action trigger the contractual defense and indemnity obligations of Baring, B&G and Ess & Vee to NYY Steak and Plaza as the plaintiff’s alleged accident arose out of the contracted for work of Baring, B&G and Ess & Vee. 27. Plaza subcontracted with Baring to install food service equipment on the Project, including the refrigeration unit the plaintiff’s decedent was transporting at the time of the accident, i.e., work that Baring sub-subcontracted to his employer, Day & Nite. (See Ex. C-2, ¶¶ 29-33, 62- 79 and referenced exhibits; Ex. C-4, pp. 25-27; Ex. J-5). Therefore, the accident necessarily arose out of Baring’s work which it subcontracted to Day & Nite. 28. B&G, Plaza’s electrical subcontractor, was obligated to install and maintain temporary lighting in the “entire [Project] space” and it furnished the temporary lighting in the vicinity of the elevator pit that was allegedly insufficient; it stored its materials in the elevator pit and there is record evidence that it removed and did not replace the temporary cover over the elevator pit because, at the time of the alleged accident, it was working in the vicinity of the elevator pit and using materials that were stored there. (See Ex. C-2, ¶¶ 37-54, 84-90 and referenced exhibits; Ex. C-4, pp. 5-19; Ex. J-2). Therefore, the accident necessarily arose out of B&G’s contracted for work. 29. Ess & Vee, Plaza’s carpentry subcontractor, stored sheetrock in a hallway in the vicinity of the elevator pit, which is the “debris” (piece of wood) the plaintiff allegedly encountered immediately prior to his alleged fall. (See Ex. C-2, ¶¶ 34-36, 91-99 and referenced exhibits; Ex. C-4, pp. 19-25; Ex. J-4). the negligence or any other fault of a party other than the Indemnitee, whether or not the Indemnitee is partially negligent or at fault. See Plaza-Baring Subcontract, Ex. S to NYY Steak/Plaza’s underlying motion, Ex. A General Conditions, Article 9, pp. 12-14(NYSECF Doc. No. 361) (emphasis added). [2813823/1] 14 14 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 30. The indemnity provision in the trade subcontracts expressly contemplates full and partial indemnification, so the NYY Steak and Plaza do not need to wait for apportionment of fault. See, e.g., Plaza-Baring Subcontract, Ex. S to NYY Steak/Plaza’s underlying motion, Ex. A General Conditions, Article 9(E), pp. 13-14 (NYSECF Doc. No. 361). 31. Accordingly, NYY Steak and Plaza are presently entitled to summary judgment in their favor for a conditional order of contractual indemnification as against B&G, Ess & Vee and Baring, including but not limited to reimbursement of all attorneys’ fees, expenses, costs and disbursements incurred in the defense of the plaintiff’s claim and the enforcement of the indemnity agreement. NYY Steak And Plaza Are Entitled To Summary Judgment Claim Against Baring For Breach Of Contract For Failure To Procure Insurance 32. Baring breached its contractual obligations to NYY Steak and Plaza by failing to obtain the agreed-upon insurance coverage. Pursuant to its trade subcontract with Plaza, Baring was obligated to obtain commercial general liability (CGL) insurance with a combined single limit for personal injury of at least $2,000,000 per occurrence and $4,000,000 in the aggregate; Baring, however, obtained a CGL policy with a combined single limit for personal injury of $1,000,000 per occurrence and $2,000,000 in the aggregate. (See Ex. C-2, ¶¶ 112-113 and referenced exhibits; Ex. C-4, p. 30). As discussed in NYY Steak/Plaza’s reply in support of its motion, Baring concedes that it did not obtain the requisite primary insurance coverage. 9 (See Ex. J-5 [NYSCEF Doc. No. 484], ¶ 42). 9 In its opposition, Baring concedes that it “was afford[ed] [primary] insurance coverage by National Fire Insurance of Hartford under policy C2092160725 for the period of 1/15/2013 – 1/15/2014 for $1 Mil per occurrence and $2 Mil in the aggregate.” (See Ex. I-1 [NYSCEF Doc. No. 462], ¶ 15).e discovery exchange, BARING was afford insurance coverage by National Fire Insurance of Hartford under policy C2092169725 for the period of 1/15/2013 - 1/15/2014 for $1 Mil per occurrence and $2 Mil in the aggregate. In [2813823/1] 15 15 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 33. NYY Steak and Plaza are therefore entitled to judgment as a matter of law on their third-party breach of contract claims as against Baring, including but not limited to damages for the premiums NYY Steak and Plaza paid for their own insurance, the amount NYY Steak and Plaza paid toward any deductible and other out-of-pocket costs, and any increase in future insurance premiums. Any Cross-Claims And Counterclaims Asserted As Against NYY Steak And/Or Plaza For Contractual Indemnification And/Or Breach Of Contract Should Be Dismissed 34. Any cross-claims and counterclaims asserted by Baring, Day & Nite, B&G, Kimco and Ess & Vee as against NYY Steak and/or Plaza for contractual indemnification and/or breach of contract for failure to procure insurance fail as a matter of law and should be dismissed. 35. Specifically, in their answers to the Third Third-Party Complaint, Baring, Day & Nite, B&G, Kimco and Ess & Vee assert cross-claims and counterclaims for, inter alia, breach of contract for failure to procure insurance, breach of warranty and contractual contribution. (See Ex. C-4, pp. 29-30). The record evidence demonstrates that there is no contract/are no contracts obligating NYY Steak and/or Plaza to indemnify and/or procure insurance for Baring, Day & Nite, B&G, Kimco and/or Ess & Vee. 36. Accordingly, NYY Steak and Plaza’s motion for summary judgment dismissing any cross-claims and counterclaims asserted as against it for contractual indemnification and/or breach of contract should be dismissed. CONCLUSION 37. On the basis of the foregoing, it is respectfully requested that this Court vacate the portions of the May 14, 2020 Decision that dismissed NYY Steak and Plaza’s cross-claims and third-party claims as against Baring, B&G and Ess & Vee and reinstate all cross-claims and third- party claims. It is also respectfully submitted that NYY Steak and Plaza should be granted leave [2813823/1] 16 16 of 18 FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 04/28/2023 to renew the portions of their summary judgment motion (motion sequence no. 7) pertaining to the cross-claims and third-party claims in this action and, upon renewal, granting summary judgment in favor of NYY St