Preview
FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 595 RECEIVED NYSCEF: 04/28/2023
EXHIBIT G
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------X Index No.: 158327/2013
KEVIN McGONIGAL,
AFFIRMATION IN
Plaintiff, PARTIAL OPPOSITION TO
-against- NYY STEAK AND PLAZA’S
SUMMARY JUDGMENT
NYY STEAK MANHATTAN, LLC, PLAZA
CONSTRUCTION CORP. and BARING Motion Seq.: 7
INDUSTRIES, INC.,
Defendants.
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PLAZA CONSTRUCTION CORP., Third-Party
Defendant/Third-Party Plaintiff, Index No.: 595146/2014
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
---------------------------------------------------------------------------X
BARING INDUSTRIES, INC., Second Third-Party
Second Third-Party Plaintiff, Index No.: 595130/2015
-against-
DAY & NIGHT REFRIGERATION CORP. and
KIMCO REFRIGERATION CORP.,
Second Third-Party Defendants.
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NYY STEAK MANHATTAN LLC, and PLAZA Third Third-Party
CONSTRUCTION LLC f/k/a PLAZA
CONSTRUCTION CORP., Index No.: 595638/2015
Third Third-Party Plaintiffs,
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACOUSTICAL CONTRACTORS, INC. and
BARING INDUSTRIES, INC.,
Third Third-Party Defendants
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EILEEN R. FULLERTON, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the following to be true upon information and belief under
penalties of perjury:
1. I am a member of the firm of FULLERTON BECK, LLP, attorneys for third third-
party defendant, B&G ELECTRICAL CONTRACTORS (hereinafter “B&G”), and as such am
fully familiar with the facts and circumstances of the instant matter pursuant to a review of the file
maintained by this office.
2. The within affirmation is submitted in Partial Opposition to NYY STEAK
MANHATTAN, LLC (hereinafter “NYY STEAK”) and PLAZA CONSTRUCTION CORP.
(hereinafter “PLAZA”)’s Summary Judgment Motion, which seeks dismissal of Plaintiff’s Labor
Law §200 and common law negligence claims, and Summary Judgment on their third third-party
claims against B&G, ESS & VEE ACOUSTICAL CONTRACTORS, INC (hereinafter “ESS &
VEE”) and BARING INDUSTRIES, INC. (hereinafter “BARING”), and dismissing the cross-
claims and counterclaims against them. B&G is only opposing that portion of the motion seeking
indemnification and contribution from B&G.
PRELIMINARY STATEMENT
3. B&G contends that NYY STEAK and PLAZA’s motion should be denied to the
extent it seeks Summary Judgment against B&G for contractual and common law indemnification
and contribution.
4. In their motion, NYY STEAK and PLAZA argue that B&G’s contractual indemnity
obligation is triggered because Plaintiff’s accident arouse out of B&G’s work. NYY STEAK and
PLAZA put forth four unfounded arguments in support of their claim: (a) that the lighting was
allegedly inadequate; (b) that B&G was allegedly performing work in the elevator pit at or about
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the time of the accident; (c) that B&G stored materials near or where the accident occurred; and
(d) that B&G allegedly removed the protection from the pit where Plaintiff landed.
5. Plaintiff, a D&N employee, plainly testified that he tripped over a piece a wooden
debris when he was walking backwards while transporting D&N’s equipment. There is not a
scintilla of evidence showing that the lighting condition was inadequate, or that the lighting was
in any way a contributing cause of the alleged accident, never mind a proximate cause, so as to
trigger the indemnification clause of the agreement between the parties. Rather, the evidence
shows that the wooden debris, along with the way Plaintiff was instructed to transport equipment,
proximately caused his accident.
6. NYY STEAK and PLAZA rely on an improper affidavit from their witness, Mr.
Usher. Mr. Usher’s affidavit is inconsistent with his own sworn testimony, and that of Plaintiff,
and should not be considered by this Court. Rather, the testimony clearly establishes that no other
trade was performing work in the area where Plaintiff fell on the date of his accident. Furthermore,
the mere storage of materials alone, at or near the vicinity where the alleged accident occurred, is
insufficient to trigger the indemnification clause as a plain reading of the agreement indicates that
the subcontractor must also be actively performing work in or about the place where the material
was stored.
7. Since B&G was not actively performing work at the time of the accident, this
argument fails. The assumption that B&G removed the protection from the pit where Plaintiff
landed is highly speculative, and not confirmed by any admissible evidence. Indeed, in their
motion, NYY STEAK and PLAZA fails to point to any evidence in support of this claim as that
evidence does not exist and is merely their own surmise. As such, NYY STEAK and PLAZA’s
motion seeking contractual indemnification against B&G must be denied.
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8. Further, NYY STEAK and PLAZA are not entitled to common law indemnification
as NYY STEAK and PLAZA’s liability is not purely vicarious, but rather based on their own
active negligence and breach of duty. It is undisputed that PLAZA was responsible for removing
the piece of wooden debris that caused Plaintiff’s accident. As such, PLAZA was actively
negligent, and their motion seeking common law indemnification against B&G must be denied.
The record is clear that PLAZA was the general contractor and responsible for removing debris
from the job site, and in fact hired laborers to perform these duties. The Plaintiff in the present
matter alleges to have tripped and fallen over a piece of wooden debris while he was walking
backwards and unable to observe same. There is no evidence as to where the wood came from;
however, there is absolutely no dispute that it was PLAZA’s job to remove it.
9. Here the facts are clear that PLAZA is not entitled to contractual indemnification,
or common law indemnification or contribution, and as such, their motion against B&G must be
denied.
POINT I
NYY STEAK AND PLAZA’S CLAIM FOR CONTRACTUAL INDEMNIFICATION
MUST BE DISMISSED WHERE PLAINTIFF’S ACCIDENT DID NOT ARISE OUT OF
B&G’S WORK
a) The Lighting Did Not Contribute to The Happening of The Accident
10. A plain reading of the indemnification provision relied upon by NYY STEAK and
PLAZA limits B&G’s duty to indemnify for claims that arise out of or are connected to B&G’s
work. (See Article 9(A), Exhibit V annexed to PLAZA’s moving papers). NYY STEAK and
PLAZA have failed to establish prima facie entitlement to summary judgment where there is not
a scintilla of evidence that the accident arose, or was in any way related to, out of B&G’s electrical
contracted work.
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11. At the time of the accident, Plaintiff was transporting a six-feet tall, three feet wide
condenser on a dolly (Exhibit J, p. 69). While transporting the condenser Plaintiff was walking
backwards when he tripped over a piece of wood causing him to fall backwards and landing in an
uncovered pit (Exhibit J, pp. 72, 81, 93, 99, 127, 129, and 130). It is clear from Plaintiff’s testimony
that his accident was caused solely by the debris left in the area by another trade (debris that
PLAZA was responsible for removing) and by the method in which Plaintiff, a D&E worker, was
transporting materials into the job site, i.e. while walking backwards. Whether the lighting was
inadequate, which is hereby denied, is irrelevant here as Plaintiff was unable to see where he was
going because he was walking backwards when he tripped on a piece of wooden debris that
PLAZA failed to remove.
12. Further, there is no evidence that the lighting was inadequate, much less that B&G
had any actual or constructive notice of any claim of inadequate lighting. It is undisputed that B&G
installed temporary lighting at the project, as testified by Mr. Chin (Exhibit P, p. 43) and Mr. Usher
(Exhibit M, p. 140). It was conceded by PLAZA that B&G installed temporary lighting in the area
of the elevator pit where Plaintiff’s alleged accident occurred (Exhibit M, p. 140). It was also
conceded by PLAZA that Mr. Usher found the lighting to be adequate (Exhibit M, p. 140). It is
further undisputed that neither B&G nor PLAZA ever receive complaints about the lighting
conditions in the area where plaintiff fell at any time prior to, or after his accident (See Exhibit P,
pp. 24-25 and Exhibit M, p. 146).
13. NYY STEAK and PLAZA have failed to establish prima facie entitlement to
summary judgment as they have provided no evidence that the lighting was inadequate, that B&G
breached a duty of reasonable care, or that the lighting condition was the proximate cause of the
accident. Rather, NYY STEAK and PLAZA have relied exclusively on testimony that merely
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describes the lighting condition in the area and speculate that Plaintiff “linked” the lighting
condition to the happening of the accident without explaining how the lighting contributed to the
accident.
14. The First Department caselaw is consistent in holding that mere words describing
lighting conditions as “poor” or “dark” are insufficient to establish that the lighting was statutorily
inadequate. For example, in Cahill v Triborough Bridge & Tunnel, 31 AD3d 347 (1st Dept. 2006),
the Court held that plaintiff’s vague testimony that the lighting was “poor” and the basement where
he fell was “dark” was insufficient to create an inference that the amount of lighting fell below the
specific statutory standard. In Daniel v. 384 Bridge St. LLC, 2016 N.Y. Misc. LEXIS 2971 (Sup.
Ct., New York County, 2013), the Court found plaintiff’s testimony that the area was “dark” or “a
little dark”, and that the lighting “was poor that morning” and that the job had “a lighting problem”
were mere conclusory allegations insufficient to create an inference that the amount of lighting fell
below the specific statutory standard.
15. The Court in Daniel found that plaintiff’s own testimony that temporary lighting
was installed in the area was contradictory with his testimony that there was a lighting problem at
the jobsite. (See also Carty v. Port Auth. of N.Y. & N.J., 32 A.D.3d 732 [1st Dept. 2006], Herman
v St. John's Episcopal Hosp., 242 AD2d 316, [2nd Dept. 1997]). Here, as in Daniel, while the
plaintiff described the lighting in the area as “wasn’t very good down there” (Usher) he was clear
that his accident occurred because he tripped over a piece of debris, which he did not observe
because he was walking backwards at the time of his accident.
16. Furthermore, PLAZA’s witness, Mr. Usher, conceded he found the lighting to be
adequate (Exhibit M, p. 140) and never requested additional lighting in this area. It is further
undisputed that neither B&G nor PLAZA ever received complaints about the lighting conditions
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on this project (See Exhibit P, pp. 24-25 and Exhibit M, p. 146). As such, the argument that the
lighting in any way contributed to the accident is without support and is contradictory to the
testimony of Plaintiff and PLAZA.
17. Even if the lighting was inadequate, which is hereby denied, it was the wooden
debris what caused the Plaintiff to fall, and the Plaintiff’s inability to see the wood was strictly the
result of his walking backwards at the time of the accident, not the lighting.
18. NYY STEAK and PLAZA’s reliance on Robbins v. Goldman Sachs Headquarters,
LLC 102 A.D.3d 414 (1st Dept. 2013) is misplaced. In Robbins, unlike the case at bar, the plaintiff
was moving a form covering an opening that he was not aware of, and due to broken lighting, he
was unable to see the markings warning of the opening beneath the form. (See Robbins v. Goldman
Sachs Headquarters, LLC, 33 Misc. 3d 1216(A) (Sup. Ct., New York County, 2011). Unlike the
present matter where there was no broken lighting, and Plaintiff was admittedly aware of the
elevator pit; however, what he was not aware of was the wood debris that PLAZA and their
laborers failed to remove.
19. Despite NYY STEAK and PLAZA’s best efforts, they cannot change the facts of
this case with all the speculation and self-serving affidavits in the world. The facts are clear that
the Plaintiff tripped and fell on debris that they were responsible for removing. The proximate
cause of the accident was not the lighting, but the debris that was left in the area, which Plaintiff
would have been in a position to observe had he not been walking backwards.
20. Sarmiento v. C&E Assoc., 40 A.D.3d 524 (1st Dept. 2004) is on point here. In
Sarmiento, plaintiff testified he fell on water on a staircase, while also claiming and submitting an
affidavit from an expert engineer that the lighting in the area was inadequate. The Court found that
whether the lighting was adequate was irrelevant as the water, and not the lighting, was the
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proximate cause of plaintiff’s accident. Here, as in Sarmiento, whether the lighting was adequate
or not is irrelevant. Plaintiff’s accident was caused by debris left in the area, which Plaintiff was
unable to observe due to the fact that he was walking backwards. In Sarmiento, the plaintiff used
an expert to support his claim about insufficient lighting, and still the Court found that the
adequacy of the lighting was not the cause of the accident but rather the water he slipped on. In
the present matter, NYY STEAK and PLAZA do not even have an expert to support their
allegations that the light (which they approved) was somehow inadequate, making their arguments
even less persuasive than the plaintiff in Sarmiento.
21. NYY STEAK and PLAZA have merely pointed to testimony describing a condition
in the area and not that the lighting condition was the proximate cause of the accident, which is a
necessary element to establish liability against B&G. See Dorman v. 19-20 Indus. City Assocs.,
Inc., 4 Misc. 3d 1007(A) (Sup. Ct., Kings County, 2000).
22. The First Department caselaw is consistent, and longstanding, in holding that mere
words describing lighting conditions as “poor” or “dark” are insufficient to establish that the
lighting was statutorily inadequate. For example, in Cahill v Triborough Bridge & Tunnel, 31
AD3d 347 (1st Dept. 2006), the Court held that plaintiff’s vague testimony that the lighting was
“poor” and the basement where he fell was “dark” was insufficient to create an inference that the
amount of lighting fell below the specific statutory standard. In Daniel v. 384 Bridge St. LLC,
2016 N.Y. Misc. LEXIS 2971 (Sup. Ct., New York County, 2013), the Court found plaintiff’s
testimony that the area was “dark” or “a little dark”, and that the lighting “was poor that morning”
and that the job had “a lighting problem” were mere conclusory allegations insufficient to create
an inference that the amount of lighting fell below the specific statutory standard.
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23. The only conclusion that can be drawn from the testimony of all parties is that
Plaintiff fell as a result of a wooden debris left on the floor, which he was unable to see because
his work required him to walk backwards preventing him from observing the dangerous condition
in his path. A condition that was neither created by B&G, nor their responsibility to remedy.
24. The fact is, the area where the alleged accident occurred, was sufficiently lighted,
lighting which was approved by PLAZA, and there was never any complaint made to B&G or
PLAZA about insufficient or inadequate lighting, which completely voids any arguments by the
parties that the lighting somehow caused the accident or arose out of B&G’s work.
b) B&G Was Not Working In The Area Where The Accident Occurred
25. It is undisputed that no other trades were working with D&N, or in the same area,
while Plaintiff and his co-worker were transporting the condenser through the basement on the day
of the accident. Plaintiff specifically testified the following:
Q. Was there any other noise in the basement other than the sound of
moving the condenser?
A. No.
Q. You didn’t hear anyone else working in the basement area?
A. No
Q. After you had turned onto the second hallway, did you see anyone other
than Julian?
A. No
Q. Did you hear anyone?
A. No.
(Exhibit J, p. 103, L 2-14)
Q. Did you see anybody working in the basement at the time of your
accident?
A. No.
(Exhibit K, p. 287, L 10-12)
26. The Affidavit by Mr. Usher attached to NYY STEAK and PLAZA’s motion has no
probative value, contradicts his own sworn testimony, and that of Plaintiff, it is self-serving and
should not be considered by this Court. Kistoo v. City of New York, 195 A.D. 2d 403 (1st Dept.
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1993). While the Usher affidavit references work being performed by B&G on the day of the
accident, same does not indicate at what time was the work performed, or if the work was
performed prior to or subsequent to the Plaintiff’s accident. The 2LL level was a large area with
various rooms and hallways (Exhibit P, p. 27-28) Mr. Usher’s affidavit fails to address the fact
that other trades were also listed in the daily logs as working on 2LL on the day before the accident,
and the day of the accident. Additionally, plaintiff’s testimony corroborates that B&G was not
working in the same area where he was moving the condenser as he testified that no other workers
were in the area where his accident occurred, and along the route he was moving the condenser.
(Exhibit J, p. 103, L 2-14; Exhibit K p. 287, L 10-12)
27. The affidavit further contradicts Mr. Usher’s testimony at his deposition, wherein
he testified he had no knowledge as to who was working in the basement level (Exhibit M, p. 314).
Mr. Usher specifically testified the following:
Q. Do you recall anybody else working on that 2LL level on the day of the
accident?
A. No.
Q. Following Mr. McGonigal’s accident when you had went to the pit where
Mr. McGonigal had fallen into, did you observe any other trades working
in that area?
A. Not that I remember, no.
(Exhibit M, p. 138, l. 12-20)
28. Affidavits specifically created to establish a false question of fact to avoid a motion
for summary judgment, that raise no more than a feigned issue of fact in an attempt to create an
issue of credibility as to the testimony of the witness or to establish a prima facie case are to be
ignored by the courts. Kistoo v. City of New York, 195 A.D. 2d 403 (1st Dept. 1993); Joe v. Orbit
Industries, 269 A.D. 2d 121 (1st Dept. 2000); Breland v. Flushing YMCA, 245 A.D. 2d 410 (2nd
Dept. 1997). As such, this Court should disregard Mr. Usher’s affidavit as it not only contradicts
his own testimony, but the Plaintiff’s as well.
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29. B&G was not performing work in or near where Plaintiff fell, and this is confirmed
by all parties’ testimony that there was no one working in the basement when Plaintiff’s accident
occurred.
c) B&G storage of material
30. In their motion, NYY STEAK and PLAZA have taken Article 9(A)(2) out of
context to claim that the storage of materials somehow triggers the indemnification clause. The
complete clause reads as follows:
“To the extent permitted by law, Subcontractor shall indemnify, defend, save and
hold the Owner, the Construction Manager, Landlord, Building, Management and
Architect (excluding with respect to the Architect, claims arising out of (i) the
preparation or approval of maps, drawings, opinions, reports, survey, Change
Orders, designs or specifications, or (ii) the giving of or the failure to give
directions or instructions by the Architect, his agent or employees, provided such
giving or failure to give is the primary cause of the injury or damage), their
respective partners, officers, employees and anyone else acting for or on behalf of
any of them (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 ore connected with, or ore claimed to arise out of or be
connected with:
1. The performance of Work by the Subcontractor, or any of its Sub-
Subcontractors, any act or omission of any of the foregoing;
2. Any accident or occurrence which happens, or is alleged to have
happened, in or about the place where 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 material agreement, 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 (including, but not limited to, scaffolds, derricks, ladders,
hoists, rigging supports, etc.) whether or not such machinery or equipment was
furnished, rented or loaned by the Owner or the Construction Manager or their
officers, employees, agents, servants or others, to the Subcontractor.”
(See Exhibit V, emphasis added)
31. A plain reading of the clause clearly indicates that the storage of material alone, at
or in the vicinity of the area where the alleged accident occurred, is insufficient to trigger the
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indemnification clause. Rather, work must be actively performed by the subcontractor
contemporaneously to the happening of the accident.
32. As explained above, it is undisputed that no work was being performed in the
location where plaintiff claims to have fallen. More importantly, the stored material was not the
proximate cause of the accident, and in fact did not even contribute to the occurrence. The accident
did not arise out of the stored materials. Plaintiff did not even come in contact with the stored
materials. (Exhibit K, p. 77)
33. The fact that materials were being stored in the pit is in no way related to Plaintiff’s
accident and the argument that somehow this triggers the indemnification obligation is absurd and
wholly without merit.
34. It is clear that Plaintiff’s accident was caused by the debris left in the area, which
PLAZA was responsible for removing. The storage of materials did not cause the plaintiff to fall,
they were merely in the same room as plaintiff when he fell. To find that this somehow obligates
B&G to indemnify PLAZA would be against the weight of the evidence and the General
Obligations Law (discussed more fully below). The facts are clear that the plaintiff fell on wooden
debris that PLAZA cannot attribute to B&G, and debris that PLAZA was admittedly responsible
for remedying, and they are making every attempt to shift liability to B&G and any other party
they can point the finger at, in a clear effort to distract the court from their own negligent omission
in failing to clear debris at the job site.
d) The Record Is Devoid Of Any Evidence That B&G Uncovered The Pit
35. In distorted fashion, NYY STEAK and PLAZA speculate that B&G uncovered the
pit (and failed to replace the protective cover) only because B&G’s equipment was in the pit. This
argument has no merit and is yet another attempt to distract the court from the facts of this case.
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There is not a scintilla of evidence to show B&G uncovered the pit in the first place to go as far as
to conclude that B&G had a duty to replace the cover. More importantly, whether the pit was
covered, or uncovered, would not have prevented the plaintiff from tripping over debris on the job
site that PLAZA failed to remove.
36. There is absolutely no evidence to suggest that the pit was covered when B&G
placed its equipment in the pit. There is absolutely no evidence to suggest that B&G uncovered
the pit. In fact, Mr. Chin testified that if B&G removed protection from an opening it would replace
that protection (Exhibit P, p. 60), and assuming the contrary is rank speculation.
37. Rank speculation, by NYY STEAK and PLAZA, is no substitute for evidentiary
proof in admissible form. See Tungsupong v. Bronx-Lebanon Hospital Center, 213 AD2d 236 (1st
Dept 1995). This argument is nothing more than mere surmise, suspicion and speculation
insufficient to establish prima facie entitlement to Summary Judgment.
38. Furthermore, the uncovered pit was not the proximate cause of the accident, but
rather the wooden debris that Plaintiff tripped over. The pit was merely where the Plaintiff landed,
and not what caused him to fall, as made clear by plaintiff’s very own testimony.
39. As such, NYY STEAK and PLAZA’s motion for contractual indemnification must
be denied where Plaintiff’s accident did not arise out of B&G’s contracted work or was in any way
related to it.
POINT II
NYY STEAK AND PLAZA’S COMMON LAW INDEMNIFICATION CLAIM MUST BE
DISMISSED WHERE NYY STEAK AND PLAZA WERE ACTIVELY NEGLIGENT
40. Common law indemnification is available to a party who is found vicariously liable
without any actual fault; a party who has participated in the wrongdoing is not entitled to
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indemnity. See 110 Cent. Park S. Corp. v. 112 Cent. Park S., LLC, 90 N.Y.S.2d 681 (Sup. Ct.,
New York County 2013). Here, NYY STEAK and PLAZA have failed to establish that they are
free from any negligence and have also failed to establish that B&G is negligent to any degree for
Plaintiff’s alleged accident.
41. “Indemnity involves an attempt to shift the entire loss from one who is compelled
to pay for a loss, without regard to his own fault, to another party who should more properly bear
responsibility for that loss because it was the actual wrongdoer.” See Trustees of Columbia Univ.
v. Mitchell/Giurgola Assocs., 109 A.D.2d 449, 451, 492 N.Y.S.2d 371 (1st Dept. 1985). As stated
by the Court of Appeals, it must be shown that the “negligence was the cause of the event which
produced the harm sustained by the one who brings the complaint.” Sheehan v. City of New York,
40 N.Y.2d 496, 501, 387 N.Y.S.2d 92, 95 (1976). Here, it was the negligence of PLAZA which
caused the event which produced the harm to Plaintiff, as he tripped over debris that PLAZA failed
to remove. There is no dispute that PLAZA and their laborers were responsible for clearing all
debris at the job site and based on plaintiff’s testimony it was clear that they were negligent in
carrying out this duty.
42. The testimony is abundantly clear that Plaintiff fell because he tripped over wooden
debris that PLAZA’s laborers failed to clean, a condition that was throughout the basement, as
confirmed by Plaintiff’s testimony about the basement:
Q. Well, when you say “lumps and bumps”, were there holes in the
concrete flooring or something else?
A. I believe there were yes, and there was debris, you know. We
would move stuff out of the way as we went.
(Exhibit J, p. 85, l. 8-13)
Q. What type of debris did you see in the hallway at the time?
A. I think it was like wood, probably sheetrock.
(Exhibit J, p. 85, l. 19-22)
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43. It was the negligence of PLAZA which caused the event producing the harm to
Plaintiff, as he tripped over debris that PLAZA failed to remove when it had the duty to do so, as
confirmed by PLAZA’s own testimony:
Q. If there was debris in the corridor at 2LL level, who was responsible to
clean that up?
A. Plaza Construction.
(Exhibit M, p. 133, l. 25 and p. 134, l. 2-4)
44. Any argument that PLAZA was only “vicariously” liable would be without merit
and contrary to the admissible evidence. Therefore, NYY STEAK and PLAZA’s common law
indemnification and contribution claims must be dismissed as a matter of law. The testimony of
PLAZA unequivocally demonstrates that PLAZA had the sole responsibility to maintain the
premises as the general contractor, and in fact had laborers on site performing debris removal.
Furthermore, it was also PLAZA’s responsibility to ensure that the site was safe, and to that end
Usher (on behalf of Plaza) walked the site daily looking for unsafe conditions. Clearly, given that
Plaintiff tripped over construction debris, which was not caused by B&G, PLAZA can hardly
contend that they are free of negligence, or that B&G owes them common law indemnification
and contribution for a condition that was caused by another contractor and for which they had no
duty to remedy.
45. Therefore, NYY STEAK and PLAZA’s motion for summary judgment on their
common law indemnification and contribution claims must be denied in their entirety.
CONCLUSION
46. NYY STEAK and PLAZA repeatedly try to distract the Court from the true issue
in this case, i.e. their failure to keep the job site free and clear of debris. They attempt to blame the
lighting, which is an unfounded allegation, given that the Plaintiff tripped over debris left by one
of their contractors. They attempt to submit an affidavit, suggesting that B&G was working in the
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area, though said affidavit completely contradicts the witnesses’ prior testimony. They further
attempt to suggest that B&G uncovered the pit, when there is no evidence that B&G uncovered
the pit and the open pit did not cause the accident. NYY STEAK and PLAZA completely ignoring
the undisputed fact that the Plaintiff did not fall because of the pit, but rather landed there. Plaintiff
tripped and fell over a piece of wood debris, and fell backwards landing in the elevator pit.
Regardless of whether the pit was covered or not, the plaintiff still would have tripped and fallen
over the wood debris, and as such, the pit has nothing to do with the cause of this accident, which
is PLAZA’s sole failure to carry out their duties in maintaining the job site in a safe and reasonable
manner.
47. As such, NYY STEAK and PLAZA have failed to establish prima facie entitlement
to Summary Judgment where there is not a scintilla of evidence that the accident arose out of
B&G’s work or was in any way related to B&G’s work. It is clear that PLAZA breached its duty
and negligently allowed debris to remain in the project creating a dangerous condition that
proximately caused Plaintiff’s accident. As such, NYY STEAK and PLAZA’s motion should be
denied Summary Judgment against B&G on any and all claims asserted, and in fact their claims
against B&G should be dismissed in their entirety.
Dated: White Plains, New York
September 18, 2019
_______________________________
Eileen R. Fullerton
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Preview
FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 RECEIVED NYSCEF: 04/28/2023 EXHIBIT G FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------X Index No.: 158327/2013 KEVIN McGONIGAL, AFFIRMATION IN Plaintiff, PARTIAL OPPOSITION TO -against- NYY STEAK AND PLAZA’S SUMMARY JUDGMENT NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING Motion Seq.: 7 INDUSTRIES, INC., Defendants. ---------------------------------------------------------------------------X PLAZA CONSTRUCTION CORP., Third-Party Defendant/Third-Party Plaintiff, Index No.: 595146/2014 -against- BARING INDUSTRIES, INC., Third-Party Defendant. ---------------------------------------------------------------------------X BARING INDUSTRIES, INC., Second Third-Party Second Third-Party Plaintiff, Index No.: 595130/2015 -against- DAY & NIGHT REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., Second Third-Party Defendants. ----------------------------------------------------------------------------X NYY STEAK MANHATTAN LLC, and PLAZA Third Third-Party CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., Index No.: 595638/2015 Third Third-Party Plaintiffs, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., Third Third-Party Defendants --------------------------------------------------------------------------X 1 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 EILEEN R. FULLERTON, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true upon information and belief under penalties of perjury: 1. I am a member of the firm of FULLERTON BECK, LLP, attorneys for third third- party defendant, B&G ELECTRICAL CONTRACTORS (hereinafter “B&G”), and as such am fully familiar with the facts and circumstances of the instant matter pursuant to a review of the file maintained by this office. 2. The within affirmation is submitted in Partial Opposition to NYY STEAK MANHATTAN, LLC (hereinafter “NYY STEAK”) and PLAZA CONSTRUCTION CORP. (hereinafter “PLAZA”)’s Summary Judgment Motion, which seeks dismissal of Plaintiff’s Labor Law §200 and common law negligence claims, and Summary Judgment on their third third-party claims against B&G, ESS & VEE ACOUSTICAL CONTRACTORS, INC (hereinafter “ESS & VEE”) and BARING INDUSTRIES, INC. (hereinafter “BARING”), and dismissing the cross- claims and counterclaims against them. B&G is only opposing that portion of the motion seeking indemnification and contribution from B&G. PRELIMINARY STATEMENT 3. B&G contends that NYY STEAK and PLAZA’s motion should be denied to the extent it seeks Summary Judgment against B&G for contractual and common law indemnification and contribution. 4. In their motion, NYY STEAK and PLAZA argue that B&G’s contractual indemnity obligation is triggered because Plaintiff’s accident arouse out of B&G’s work. NYY STEAK and PLAZA put forth four unfounded arguments in support of their claim: (a) that the lighting was allegedly inadequate; (b) that B&G was allegedly performing work in the elevator pit at or about 2 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 the time of the accident; (c) that B&G stored materials near or where the accident occurred; and (d) that B&G allegedly removed the protection from the pit where Plaintiff landed. 5. Plaintiff, a D&N employee, plainly testified that he tripped over a piece a wooden debris when he was walking backwards while transporting D&N’s equipment. There is not a scintilla of evidence showing that the lighting condition was inadequate, or that the lighting was in any way a contributing cause of the alleged accident, never mind a proximate cause, so as to trigger the indemnification clause of the agreement between the parties. Rather, the evidence shows that the wooden debris, along with the way Plaintiff was instructed to transport equipment, proximately caused his accident. 6. NYY STEAK and PLAZA rely on an improper affidavit from their witness, Mr. Usher. Mr. Usher’s affidavit is inconsistent with his own sworn testimony, and that of Plaintiff, and should not be considered by this Court. Rather, the testimony clearly establishes that no other trade was performing work in the area where Plaintiff fell on the date of his accident. Furthermore, the mere storage of materials alone, at or near the vicinity where the alleged accident occurred, is insufficient to trigger the indemnification clause as a plain reading of the agreement indicates that the subcontractor must also be actively performing work in or about the place where the material was stored. 7. Since B&G was not actively performing work at the time of the accident, this argument fails. The assumption that B&G removed the protection from the pit where Plaintiff landed is highly speculative, and not confirmed by any admissible evidence. Indeed, in their motion, NYY STEAK and PLAZA fails to point to any evidence in support of this claim as that evidence does not exist and is merely their own surmise. As such, NYY STEAK and PLAZA’s motion seeking contractual indemnification against B&G must be denied. 3 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 8. Further, NYY STEAK and PLAZA are not entitled to common law indemnification as NYY STEAK and PLAZA’s liability is not purely vicarious, but rather based on their own active negligence and breach of duty. It is undisputed that PLAZA was responsible for removing the piece of wooden debris that caused Plaintiff’s accident. As such, PLAZA was actively negligent, and their motion seeking common law indemnification against B&G must be denied. The record is clear that PLAZA was the general contractor and responsible for removing debris from the job site, and in fact hired laborers to perform these duties. The Plaintiff in the present matter alleges to have tripped and fallen over a piece of wooden debris while he was walking backwards and unable to observe same. There is no evidence as to where the wood came from; however, there is absolutely no dispute that it was PLAZA’s job to remove it. 9. Here the facts are clear that PLAZA is not entitled to contractual indemnification, or common law indemnification or contribution, and as such, their motion against B&G must be denied. POINT I NYY STEAK AND PLAZA’S CLAIM FOR CONTRACTUAL INDEMNIFICATION MUST BE DISMISSED WHERE PLAINTIFF’S ACCIDENT DID NOT ARISE OUT OF B&G’S WORK a) The Lighting Did Not Contribute to The Happening of The Accident 10. A plain reading of the indemnification provision relied upon by NYY STEAK and PLAZA limits B&G’s duty to indemnify for claims that arise out of or are connected to B&G’s work. (See Article 9(A), Exhibit V annexed to PLAZA’s moving papers). NYY STEAK and PLAZA have failed to establish prima facie entitlement to summary judgment where there is not a scintilla of evidence that the accident arose, or was in any way related to, out of B&G’s electrical contracted work. 4 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 11. At the time of the accident, Plaintiff was transporting a six-feet tall, three feet wide condenser on a dolly (Exhibit J, p. 69). While transporting the condenser Plaintiff was walking backwards when he tripped over a piece of wood causing him to fall backwards and landing in an uncovered pit (Exhibit J, pp. 72, 81, 93, 99, 127, 129, and 130). It is clear from Plaintiff’s testimony that his accident was caused solely by the debris left in the area by another trade (debris that PLAZA was responsible for removing) and by the method in which Plaintiff, a D&E worker, was transporting materials into the job site, i.e. while walking backwards. Whether the lighting was inadequate, which is hereby denied, is irrelevant here as Plaintiff was unable to see where he was going because he was walking backwards when he tripped on a piece of wooden debris that PLAZA failed to remove. 12. Further, there is no evidence that the lighting was inadequate, much less that B&G had any actual or constructive notice of any claim of inadequate lighting. It is undisputed that B&G installed temporary lighting at the project, as testified by Mr. Chin (Exhibit P, p. 43) and Mr. Usher (Exhibit M, p. 140). It was conceded by PLAZA that B&G installed temporary lighting in the area of the elevator pit where Plaintiff’s alleged accident occurred (Exhibit M, p. 140). It was also conceded by PLAZA that Mr. Usher found the lighting to be adequate (Exhibit M, p. 140). It is further undisputed that neither B&G nor PLAZA ever receive complaints about the lighting conditions in the area where plaintiff fell at any time prior to, or after his accident (See Exhibit P, pp. 24-25 and Exhibit M, p. 146). 13. NYY STEAK and PLAZA have failed to establish prima facie entitlement to summary judgment as they have provided no evidence that the lighting was inadequate, that B&G breached a duty of reasonable care, or that the lighting condition was the proximate cause of the accident. Rather, NYY STEAK and PLAZA have relied exclusively on testimony that merely 5 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 describes the lighting condition in the area and speculate that Plaintiff “linked” the lighting condition to the happening of the accident without explaining how the lighting contributed to the accident. 14. The First Department caselaw is consistent in holding that mere words describing lighting conditions as “poor” or “dark” are insufficient to establish that the lighting was statutorily inadequate. For example, in Cahill v Triborough Bridge & Tunnel, 31 AD3d 347 (1st Dept. 2006), the Court held that plaintiff’s vague testimony that the lighting was “poor” and the basement where he fell was “dark” was insufficient to create an inference that the amount of lighting fell below the specific statutory standard. In Daniel v. 384 Bridge St. LLC, 2016 N.Y. Misc. LEXIS 2971 (Sup. Ct., New York County, 2013), the Court found plaintiff’s testimony that the area was “dark” or “a little dark”, and that the lighting “was poor that morning” and that the job had “a lighting problem” were mere conclusory allegations insufficient to create an inference that the amount of lighting fell below the specific statutory standard. 15. The Court in Daniel found that plaintiff’s own testimony that temporary lighting was installed in the area was contradictory with his testimony that there was a lighting problem at the jobsite. (See also Carty v. Port Auth. of N.Y. & N.J., 32 A.D.3d 732 [1st Dept. 2006], Herman v St. John's Episcopal Hosp., 242 AD2d 316, [2nd Dept. 1997]). Here, as in Daniel, while the plaintiff described the lighting in the area as “wasn’t very good down there” (Usher) he was clear that his accident occurred because he tripped over a piece of debris, which he did not observe because he was walking backwards at the time of his accident. 16. Furthermore, PLAZA’s witness, Mr. Usher, conceded he found the lighting to be adequate (Exhibit M, p. 140) and never requested additional lighting in this area. It is further undisputed that neither B&G nor PLAZA ever received complaints about the lighting conditions 6 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 on this project (See Exhibit P, pp. 24-25 and Exhibit M, p. 146). As such, the argument that the lighting in any way contributed to the accident is without support and is contradictory to the testimony of Plaintiff and PLAZA. 17. Even if the lighting was inadequate, which is hereby denied, it was the wooden debris what caused the Plaintiff to fall, and the Plaintiff’s inability to see the wood was strictly the result of his walking backwards at the time of the accident, not the lighting. 18. NYY STEAK and PLAZA’s reliance on Robbins v. Goldman Sachs Headquarters, LLC 102 A.D.3d 414 (1st Dept. 2013) is misplaced. In Robbins, unlike the case at bar, the plaintiff was moving a form covering an opening that he was not aware of, and due to broken lighting, he was unable to see the markings warning of the opening beneath the form. (See Robbins v. Goldman Sachs Headquarters, LLC, 33 Misc. 3d 1216(A) (Sup. Ct., New York County, 2011). Unlike the present matter where there was no broken lighting, and Plaintiff was admittedly aware of the elevator pit; however, what he was not aware of was the wood debris that PLAZA and their laborers failed to remove. 19. Despite NYY STEAK and PLAZA’s best efforts, they cannot change the facts of this case with all the speculation and self-serving affidavits in the world. The facts are clear that the Plaintiff tripped and fell on debris that they were responsible for removing. The proximate cause of the accident was not the lighting, but the debris that was left in the area, which Plaintiff would have been in a position to observe had he not been walking backwards. 20. Sarmiento v. C&E Assoc., 40 A.D.3d 524 (1st Dept. 2004) is on point here. In Sarmiento, plaintiff testified he fell on water on a staircase, while also claiming and submitting an affidavit from an expert engineer that the lighting in the area was inadequate. The Court found that whether the lighting was adequate was irrelevant as the water, and not the lighting, was the 7 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 proximate cause of plaintiff’s accident. Here, as in Sarmiento, whether the lighting was adequate or not is irrelevant. Plaintiff’s accident was caused by debris left in the area, which Plaintiff was unable to observe due to the fact that he was walking backwards. In Sarmiento, the plaintiff used an expert to support his claim about insufficient lighting, and still the Court found that the adequacy of the lighting was not the cause of the accident but rather the water he slipped on. In the present matter, NYY STEAK and PLAZA do not even have an expert to support their allegations that the light (which they approved) was somehow inadequate, making their arguments even less persuasive than the plaintiff in Sarmiento. 21. NYY STEAK and PLAZA have merely pointed to testimony describing a condition in the area and not that the lighting condition was the proximate cause of the accident, which is a necessary element to establish liability against B&G. See Dorman v. 19-20 Indus. City Assocs., Inc., 4 Misc. 3d 1007(A) (Sup. Ct., Kings County, 2000). 22. The First Department caselaw is consistent, and longstanding, in holding that mere words describing lighting conditions as “poor” or “dark” are insufficient to establish that the lighting was statutorily inadequate. For example, in Cahill v Triborough Bridge & Tunnel, 31 AD3d 347 (1st Dept. 2006), the Court held that plaintiff’s vague testimony that the lighting was “poor” and the basement where he fell was “dark” was insufficient to create an inference that the amount of lighting fell below the specific statutory standard. In Daniel v. 384 Bridge St. LLC, 2016 N.Y. Misc. LEXIS 2971 (Sup. Ct., New York County, 2013), the Court found plaintiff’s testimony that the area was “dark” or “a little dark”, and that the lighting “was poor that morning” and that the job had “a lighting problem” were mere conclusory allegations insufficient to create an inference that the amount of lighting fell below the specific statutory standard. 8 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 23. The only conclusion that can be drawn from the testimony of all parties is that Plaintiff fell as a result of a wooden debris left on the floor, which he was unable to see because his work required him to walk backwards preventing him from observing the dangerous condition in his path. A condition that was neither created by B&G, nor their responsibility to remedy. 24. The fact is, the area where the alleged accident occurred, was sufficiently lighted, lighting which was approved by PLAZA, and there was never any complaint made to B&G or PLAZA about insufficient or inadequate lighting, which completely voids any arguments by the parties that the lighting somehow caused the accident or arose out of B&G’s work. b) B&G Was Not Working In The Area Where The Accident Occurred 25. It is undisputed that no other trades were working with D&N, or in the same area, while Plaintiff and his co-worker were transporting the condenser through the basement on the day of the accident. Plaintiff specifically testified the following: Q. Was there any other noise in the basement other than the sound of moving the condenser? A. No. Q. You didn’t hear anyone else working in the basement area? A. No Q. After you had turned onto the second hallway, did you see anyone other than Julian? A. No Q. Did you hear anyone? A. No. (Exhibit J, p. 103, L 2-14) Q. Did you see anybody working in the basement at the time of your accident? A. No. (Exhibit K, p. 287, L 10-12) 26. The Affidavit by Mr. Usher attached to NYY STEAK and PLAZA’s motion has no probative value, contradicts his own sworn testimony, and that of Plaintiff, it is self-serving and should not be considered by this Court. Kistoo v. City of New York, 195 A.D. 2d 403 (1st Dept. 9 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 1993). While the Usher affidavit references work being performed by B&G on the day of the accident, same does not indicate at what time was the work performed, or if the work was performed prior to or subsequent to the Plaintiff’s accident. The 2LL level was a large area with various rooms and hallways (Exhibit P, p. 27-28) Mr. Usher’s affidavit fails to address the fact that other trades were also listed in the daily logs as working on 2LL on the day before the accident, and the day of the accident. Additionally, plaintiff’s testimony corroborates that B&G was not working in the same area where he was moving the condenser as he testified that no other workers were in the area where his accident occurred, and along the route he was moving the condenser. (Exhibit J, p. 103, L 2-14; Exhibit K p. 287, L 10-12) 27. The affidavit further contradicts Mr. Usher’s testimony at his deposition, wherein he testified he had no knowledge as to who was working in the basement level (Exhibit M, p. 314). Mr. Usher specifically testified the following: Q. Do you recall anybody else working on that 2LL level on the day of the accident? A. No. Q. Following Mr. McGonigal’s accident when you had went to the pit where Mr. McGonigal had fallen into, did you observe any other trades working in that area? A. Not that I remember, no. (Exhibit M, p. 138, l. 12-20) 28. Affidavits specifically created to establish a false question of fact to avoid a motion for summary judgment, that raise no more than a feigned issue of fact in an attempt to create an issue of credibility as to the testimony of the witness or to establish a prima facie case are to be ignored by the courts. Kistoo v. City of New York, 195 A.D. 2d 403 (1st Dept. 1993); Joe v. Orbit Industries, 269 A.D. 2d 121 (1st Dept. 2000); Breland v. Flushing YMCA, 245 A.D. 2d 410 (2nd Dept. 1997). As such, this Court should disregard Mr. Usher’s affidavit as it not only contradicts his own testimony, but the Plaintiff’s as well. 10 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 29. B&G was not performing work in or near where Plaintiff fell, and this is confirmed by all parties’ testimony that there was no one working in the basement when Plaintiff’s accident occurred. c) B&G storage of material 30. In their motion, NYY STEAK and PLAZA have taken Article 9(A)(2) out of context to claim that the storage of materials somehow triggers the indemnification clause. The complete clause reads as follows: “To the extent permitted by law, Subcontractor shall indemnify, defend, save and hold the Owner, the Construction Manager, Landlord, Building, Management and Architect (excluding with respect to the Architect, claims arising out of (i) the preparation or approval of maps, drawings, opinions, reports, survey, Change Orders, designs or specifications, or (ii) the giving of or the failure to give directions or instructions by the Architect, his agent or employees, provided such giving or failure to give is the primary cause of the injury or damage), their respective partners, officers, employees and anyone else acting for or on behalf of any of them (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 ore connected with, or ore claimed to arise out of or be connected with: 1. The performance of Work by the Subcontractor, or any of its Sub- Subcontractors, any act or omission of any of the foregoing; 2. Any accident or occurrence which happens, or is alleged to have happened, in or about the place where 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 material agreement, 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 (including, but not limited to, scaffolds, derricks, ladders, hoists, rigging supports, etc.) whether or not such machinery or equipment was furnished, rented or loaned by the Owner or the Construction Manager or their officers, employees, agents, servants or others, to the Subcontractor.” (See Exhibit V, emphasis added) 31. A plain reading of the clause clearly indicates that the storage of material alone, at or in the vicinity of the area where the alleged accident occurred, is insufficient to trigger the 11 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 indemnification clause. Rather, work must be actively performed by the subcontractor contemporaneously to the happening of the accident. 32. As explained above, it is undisputed that no work was being performed in the location where plaintiff claims to have fallen. More importantly, the stored material was not the proximate cause of the accident, and in fact did not even contribute to the occurrence. The accident did not arise out of the stored materials. Plaintiff did not even come in contact with the stored materials. (Exhibit K, p. 77) 33. The fact that materials were being stored in the pit is in no way related to Plaintiff’s accident and the argument that somehow this triggers the indemnification obligation is absurd and wholly without merit. 34. It is clear that Plaintiff’s accident was caused by the debris left in the area, which PLAZA was responsible for removing. The storage of materials did not cause the plaintiff to fall, they were merely in the same room as plaintiff when he fell. To find that this somehow obligates B&G to indemnify PLAZA would be against the weight of the evidence and the General Obligations Law (discussed more fully below). The facts are clear that the plaintiff fell on wooden debris that PLAZA cannot attribute to B&G, and debris that PLAZA was admittedly responsible for remedying, and they are making every attempt to shift liability to B&G and any other party they can point the finger at, in a clear effort to distract the court from their own negligent omission in failing to clear debris at the job site. d) The Record Is Devoid Of Any Evidence That B&G Uncovered The Pit 35. In distorted fashion, NYY STEAK and PLAZA speculate that B&G uncovered the pit (and failed to replace the protective cover) only because B&G’s equipment was in the pit. This argument has no merit and is yet another attempt to distract the court from the facts of this case. 12 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 There is not a scintilla of evidence to show B&G uncovered the pit in the first place to go as far as to conclude that B&G had a duty to replace the cover. More importantly, whether the pit was covered, or uncovered, would not have prevented the plaintiff from tripping over debris on the job site that PLAZA failed to remove. 36. There is absolutely no evidence to suggest that the pit was covered when B&G placed its equipment in the pit. There is absolutely no evidence to suggest that B&G uncovered the pit. In fact, Mr. Chin testified that if B&G removed protection from an opening it would replace that protection (Exhibit P, p. 60), and assuming the contrary is rank speculation. 37. Rank speculation, by NYY STEAK and PLAZA, is no substitute for evidentiary proof in admissible form. See Tungsupong v. Bronx-Lebanon Hospital Center, 213 AD2d 236 (1st Dept 1995). This argument is nothing more than mere surmise, suspicion and speculation insufficient to establish prima facie entitlement to Summary Judgment. 38. Furthermore, the uncovered pit was not the proximate cause of the accident, but rather the wooden debris that Plaintiff tripped over. The pit was merely where the Plaintiff landed, and not what caused him to fall, as made clear by plaintiff’s very own testimony. 39. As such, NYY STEAK and PLAZA’s motion for contractual indemnification must be denied where Plaintiff’s accident did not arise out of B&G’s contracted work or was in any way related to it. POINT II NYY STEAK AND PLAZA’S COMMON LAW INDEMNIFICATION CLAIM MUST BE DISMISSED WHERE NYY STEAK AND PLAZA WERE ACTIVELY NEGLIGENT 40. Common law indemnification is available to a party who is found vicariously liable without any actual fault; a party who has participated in the wrongdoing is not entitled to 13 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 indemnity. See 110 Cent. Park S. Corp. v. 112 Cent. Park S., LLC, 90 N.Y.S.2d 681 (Sup. Ct., New York County 2013). Here, NYY STEAK and PLAZA have failed to establish that they are free from any negligence and have also failed to establish that B&G is negligent to any degree for Plaintiff’s alleged accident. 41. “Indemnity involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another party who should more properly bear responsibility for that loss because it was the actual wrongdoer.” See Trustees of Columbia Univ. v. Mitchell/Giurgola Assocs., 109 A.D.2d 449, 451, 492 N.Y.S.2d 371 (1st Dept. 1985). As stated by the Court of Appeals, it must be shown that the “negligence was the cause of the event which produced the harm sustained by the one who brings the complaint.” Sheehan v. City of New York, 40 N.Y.2d 496, 501, 387 N.Y.S.2d 92, 95 (1976). Here, it was the negligence of PLAZA which caused the event which produced the harm to Plaintiff, as he tripped over debris that PLAZA failed to remove. There is no dispute that PLAZA and their laborers were responsible for clearing all debris at the job site and based on plaintiff’s testimony it was clear that they were negligent in carrying out this duty. 42. The testimony is abundantly clear that Plaintiff fell because he tripped over wooden debris that PLAZA’s laborers failed to clean, a condition that was throughout the basement, as confirmed by Plaintiff’s testimony about the basement: Q. Well, when you say “lumps and bumps”, were there holes in the concrete flooring or something else? A. I believe there were yes, and there was debris, you know. We would move stuff out of the way as we went. (Exhibit J, p. 85, l. 8-13) Q. What type of debris did you see in the hallway at the time? A. I think it was like wood, probably sheetrock. (Exhibit J, p. 85, l. 19-22) 14 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 43. It was the negligence of PLAZA which caused the event producing the harm to Plaintiff, as he tripped over debris that PLAZA failed to remove when it had the duty to do so, as confirmed by PLAZA’s own testimony: Q. If there was debris in the corridor at 2LL level, who was responsible to clean that up? A. Plaza Construction. (Exhibit M, p. 133, l. 25 and p. 134, l. 2-4) 44. Any argument that PLAZA was only “vicariously” liable would be without merit and contrary to the admissible evidence. Therefore, NYY STEAK and PLAZA’s common law indemnification and contribution claims must be dismissed as a matter of law. The testimony of PLAZA unequivocally demonstrates that PLAZA had the sole responsibility to maintain the premises as the general contractor, and in fact had laborers on site performing debris removal. Furthermore, it was also PLAZA’s responsibility to ensure that the site was safe, and to that end Usher (on behalf of Plaza) walked the site daily looking for unsafe conditions. Clearly, given that Plaintiff tripped over construction debris, which was not caused by B&G, PLAZA can hardly contend that they are free of negligence, or that B&G owes them common law indemnification and contribution for a condition that was caused by another contractor and for which they had no duty to remedy. 45. Therefore, NYY STEAK and PLAZA’s motion for summary judgment on their common law indemnification and contribution claims must be denied in their entirety. CONCLUSION 46. NYY STEAK and PLAZA repeatedly try to distract the Court from the true issue in this case, i.e. their failure to keep the job site free and clear of debris. They attempt to blame the lighting, which is an unfounded allegation, given that the Plaintiff tripped over debris left by one of their contractors. They attempt to submit an affidavit, suggesting that B&G was working in the 15 of 16 FILED: NEW YORK COUNTY CLERK 04/28/2023 09/18/2019 08:01 09:30 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 595 449 RECEIVED NYSCEF: 04/28/2023 09/18/2019 area, though said affidavit completely contradicts the witnesses’ prior testimony. They further attempt to suggest that B&G uncovered the pit, when there is no evidence that B&G uncovered the pit and the open pit did not cause the accident. NYY STEAK and PLAZA completely ignoring the undisputed fact that the Plaintiff did not fall because of the pit, but rather landed there. Plaintiff tripped and fell over a piece of wood debris, and fell backwards landing in the elevator pit. Regardless of whether the pit was covered or not, the plaintiff still would have tripped and fallen over the wood debris, and as such, the pit has nothing to do with the cause of this accident, which is PLAZA’s sole failure to carry out their duties in maintaining the job site in a safe and reasonable manner. 47. As such, NYY STEAK and PLAZA have failed to establish prima facie entitlement to Summary Judgment where there is not a scintilla of evidence that the accident arose out of B&G’s work or was in any way related to B&G’s work. It is clear that PLAZA breached its duty and negligently allowed debris to remain in the project creating a dangerous condition that proximately caused Plaintiff’s accident. As such, NYY STEAK and PLAZA’s motion should be denied Summary Judgment against B&G on any and all claims asserted, and in fact their claims against B&G should be dismissed in their entirety. Dated: White Plains, New York September 18, 2019 _______________________________ Eileen R. Fullerton 16 of 16