Preview
FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 597 RECEIVED NYSCEF: 04/28/2023
EXHIBIT I
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/14/2019 08:01
04:19 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 597
462 RECEIVED NYSCEF: 04/28/2023
10/14/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------X AFFIRMATION IN
KEVIN McGONIGAL, PARTIAL
OPPOSITION
Plaintiff,
-against- Index No. 158327/13
NYY STEAK MANHATTAN, LLC, Return date: 10/25/19
PLAZA CONSTRUCTION CORP. and
BARING INDUSTRIES, INC. Hon. Margaret Chan
Defendants.
-----------------------------------------------------------X
PLAZA CONSTRUCTION CORP., Third-Party Index No.:
595146/2014
Third-Party Plaintiff,
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
-----------------------------------------------------------X
BARING INDUSTRIES, INC., Second-Third-Party
Index No.: 595130/15
Second-Third-Party Plaintiff,
-against-
DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP.
Second-Third-Party Defendants.
-----------------------------------------------------------X
NYY STEAK MANHATTAN, LLC, & PLAZA
CONSTRUCTION LLC f/k/a PLAZA
CONSTRUCITON CORP. Third-Third Party
Index No.
Third Third-Party Plaintiffs,
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACCOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.
Third Third-Party Defendants.
-----------------------------------------------------------X
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Nikolaos E. Diamantis, an attorney duly admitted to practice law before the courts of the
State of New York, affirms the following to be true under penalties of perjury pursuant to New
York Civil Practice Law and Rules § 2106:
1. I am associated with the Law Office of Tromello & Fishman, attorneys for
Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third-Third Party Defendant
BARING INDUSTRIES, INC., (hereinafter "BARING") and as such I am fully familiar with the
facts and circumstances of the within action based upon a review of the file maintained by my
office and my handling of this litigation.
2. I submit this affirmation, upon information and belief, in opposition to NYY STEAK
MANHATTAN, LLC ("NYY STEAK") and PLAZA CONSTRUCTION LLC f/k/a PLAZA
CONSTRUCTION CORP. ("PLAZA") motion for summary judgment pursuant to CPLR
3211(a)(1) and 3212.
3. Your affirmant incorporates by reference BARING's motion for summary judgement
seeking dismissal under CPRL 3211(a)(1) and 3212 which includes a dismissal of NYY and
PLAZA's claims against BARING. Said motion papers include the Statement of Facts which are
adopted by reference in an effort not to belabor the Court with duplicative materials and
arguments.
ARGUMENT
POINT I
NYY CONTRACTUAL INDEMNITY CLAIM IS WITHOUT MERIT
4. In a recent case the Dormitory Auth v. Samson Construction Co. 30 N.Y.3d 704
(2018), the Court of Appeals held:
"[A] third party may sue as a beneficiary on a contract made for [its] benefit.
However, an intent to benefit the third party must be shown, and, absent such
intent, the third party is merely an incidental beneficiary with no right to
2
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contracts"
enforce the particular (Port Chester Elec. Constr. Corp. v. Atlas, 40
N.Y.2d 652, 655, 389 N.Y.S.2d 327, 357 N.E.2d 983 [1976] [citations
omitted] ). We have previously sanctioned a third party's right to enforce a
contract in two situations: when the third party is the only one who could
recover for the breach of contract or when it is otherwise clear from the
language of the contract that there was "an intent to permit enforcement by the
party"
third (Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66
N.Y.2d 38, 45, 495 N.Y.S.2d 1, 485 N.E.2d 208 [1985] ).
With respect to construction contracts, we have generally required express
contractual language stating that the contracting parties intended to benefit a
third party by permitting that third party "to enforce [a promisee's] contract
another"
with (Port Chester, 40 N.Y.2d at 656, 389 N.Y.S.2d 327, 357 N.E.2d
983). In the absence of express language, "[s]uch third parties are generally
beneficiaries"
considered mere incidental (40 N.Y.2d at 656, 389 N.Y.S.2d
327, 357 N.E.2d 983).
5. In the Dormitory Authority case the Court specifically established the elements which
must be met in order for a third-party beneficiary to enforce a contract. Based on the precedent
established in the Dormitory Authority case, it is clear that NYY is an incidental beneficiary of
the agreement between Plaza and Baring and lacks the requisite authority to enforce the
agreement against Baring.
6. As the Plaza - agreement lacks the express as required the
Baring language, by
Dormitory Authority case, giving NYY the right to enforce the terms of the agreement against
Baring, and as NYY is not a party to the contract, NYY claims against Baring must be dismissed
as a matter of law, as well as all cross-claims against Baring.
POINT II
ISSUES OF FACT EXISTS AS TO PLAZA's NEGLIGENCE
7. The Court of Appeals has long established the law that the "right to contractual
contract"
indemnity depends upon the specific language of the and that "the promise to
indemnity should not be found unless it can be clearly implied from the language and purpose of
the entire agreement and the surrounding circumstances". See George v. Marshalls ofMA, Inc.,
3
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(2""
61 A.D.3d 925, 878 N.Y.S.2d 143 Dep't, 2009); Bellefleur v. Newark Beth Israel Med. Ctr.,
(2""
66 A.D.3d 807, 888 N.Y.S.2d 81 Dep't 2009).
8. Additionally, a party seeking contractual indemnification must prove itself free from
negligence, because to the extents its negligence contributed to the accident, it cannot be
indemnified therefore. See Bellefleur v. Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 888
(2"d
N.Y.S.2d 81 Dep't 2009).
9. In the subject case, the language in the contract between Plaza and Baring pertaining
to indemnity states as follows:
To the extent permitted by law, Subcontractor shall indemnify, defend, save
and hold harmless the Owner, the Construction Manager, landlord, Building
Management and Architect...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:
The performance of Work the or of its Sub-
1) by Subcontractor, any
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
theeof (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, the Construction
Manager or their officers, employees, agents, servants or others to the
Subcontractor. See Exhibit "Q". General Conditions Article 9A.
A.D.3'd
10. The case of Giangarra v. Pav-Lak Contracting, Inc., 55 869, 871, 866
(2"d
N.Y.S.2d 332 Dep't, 2008) states that a party seeking indemnity must be free of negligence
and cannot be indemnified for its own negligence. In this case, there is clearly evidence as to
the affirmative negligence of third-party plaintiff Plaza, who as the general
4
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contractor/construction manager, was charged with overall safety of the work, was responsible
for debris clean up at the site, as well as responsible for protection work at the site.
11. Any construction contract purporting to indemnify a party for its own negligence is
void and unenforceable. N.Y. GOL 5-322.1. To the extent the negligence of a party is the
beneficiary of an indemnification provision contributed to the accident, such party cannot be
indemnified therefore. Emphasis add. See Cava Constr. Co., Inc. v. Gealtec Remodeling Corp.,
(2"d
58 A.D.3d at 662, 871 N.Y.S.2d Dep't 2009); Reynolds v. County of Westchester, 270 A.D.2d
(2"d
at 474, 704 N.Y.S.2d 651 Dep't 2000); Kennelty v. Darling Constr., 260 A.D.2d 443, 446,
(2"d
688 N.Y.S.2d 584 Dep't 1999).
12. Clearly in this case, Baring has established that they are free from negligence as they
neither had any responsibilities for debris clean up, protection work, or lighting at this site.
Further, Baring was not on site on the date of the accident, did not direct or control the plaintiff's
work, and never directed or controlled the means and method for the delivery into the worksite.
Based on the evidence in this case, it is alleged by plaintiff tripped on debris while delivering the
condenser into the basement causing him to lose his balance and fall into an unguarded pit/hole.
It is undisputed that Plaza alone had the responsibility to clean debris form the site and was
responsible for protection work. Based on the facts, Plaza's failure to perform their
responsibilities at this site cannot be ignored, and could be found to be a proximate cause (if not
the sole cause) of this accident.
13. Based on evidence in this case which clearly paints a picture of Plaza's negligence,
Plaza would never be able to enforce the contractual indemnity agreement against Baring and as
such, Plaza claims for contractual indemnification must be denied. Further, due to PLAZA's
active negligence in this case, their claims under Labor Law 200, common law negligence and
common law indemnity my similarly be denied.
5
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POINT III
NYY AND PLAZA'S BREACH OF CONTRACT CLAIMS ARE WITHOUT MERIT
14. NYY and Plaza allege breach of contract against Baring for failure to procure
insurance. However, insurance was purchased by Baring and exchanged with the parties during
discovery evidencing that proper insurance was secured by Baring for this project.
15. In its Response to Notice for Discovery and Inspection dated October 25, 2016,
Baring policies were disclosed to all parties. A copy of said discovery response is attached
herewith as Exhibit "A". Pursuant to the 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 a
addition,
copy of BARING's umbrella policy was disclosed with limits up to $10 Mil policy
C2092169708 also provided by National Fire Insurance of Hartford for the same policy period.
16. Clearly there was sufficient insurance coverage to satisfy the contractual obligation
under the PLAZA contract. If it is PLAZA's argument that BARING did provide the specific
coverage as dictated under the contract, same is without consequence as the umbrella policy
contains enough limits to satisfy the obligation. Further, there is no prejudice to PLAZA As a
result of the facts of this case, NYY and Plaza's breach of contract claims must be dismissed in
their entirety as Baring has fulfilled its obligation under the contract and actually provided more
coverage than required to. As such, PLAZA motion for breach of contract must be denied.
WHEREFORE, it is respectfully requested that this Court deny the relief requested in
6
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Aefenda=+ NYY and PLAZA's motion for an Order pursuant to CPLR 3212 for
judgmcñt, along with such other and further relief as this Court may deem just and proper.
Dated: Melville, New York
October 14, 2019
Nikolaos E. Diamantis
7
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
-------------------------------------------------------------------X
GIULIO PISANO,
Plaintiff,
-against-
NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CITY OF NEW YORK,
HAKS ENGINEERS, P.C., HAKS ENGINEERS AND LAND SURVEYORS, P.C., AND
HAKS ENGINEERS, ARCHITECHTS AND LAND SURVEYORS, P.C.,
Defendants.
------------------------------------------------------------------X
NEW YORK CITY DEPARTMENT OF
TRANSPORTATION and CITY OF NEW YORK,
Third-Party Plaintiff,
-against-
CONTI OF NEW YORK, LLC,
Third-Party Defendants.
------------------------------------------------------------------X
_________ ___________________________________________________
AFFIR,ATION IN OPPOSITION
___________________________________________________________________
LAW OFFICES OF TROMELLO & FISHMAN
Attorney for Defendants
HAKS ENGINEERS, P.C., HAKS ENGINEERS AND LAND SURVEYORS, P.C. AND
HAKS ENGINEERS, ARCHITECTS AND LAND SURVEYORS, P.C.
P.O. Box 9038
Melville, NY 11747
(631) 577-2400
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EXHIBIT A
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/14/2019 08:01
04:19 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 597
463 RECEIVED NYSCEF: 04/28/2023
10/14/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------X Index No. 158327/13
KEVIN McGONIGAL,
Plaintiff,
RESPONE TO NOTICE
-against- FOR DISCOVERY AND
INSPECTION
NYY STEAK MANHATTAN, LLC,
PLAZA CONSTRUCTION CORP. and
BARING INDUSTRIES, INC.
Defendants.
-----------------------------------------------------------X
PLAZA CONSTRUCTION CORP.,
Third-Party Plaintiff, Third-Party Index No.:
595146/2014
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
-----------------------------------------------------------X
BARING INDUSTRIES, INC.,
Second-Third-Party Plaintiff,
Second-Third-Party
-against- Index No.: 595130/2015
DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP.
Second-Third-Party Defendants.
-----------------------------------------------------------X
NYY STEAK MANHATTAN LLC, & PLAZA
CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION
CORP.,
Third-Third-Party Plaintiff,
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACOUSTICAL CONTRACTORS, INC. and
BARING INDUSTRIES, INC.,
Third-Third-Party Defendants.
-----------------------------------------------------------X
Defendant/second third party plaintiff BARING INDUSTRIES, INC., by and through its
attorneys, The Law Offices of Charles J. Siegel and in response to defendant NYY
Preview
FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 597 RECEIVED NYSCEF: 04/28/2023 EXHIBIT I FILED: NEW YORK COUNTY CLERK 04/28/2023 10/14/2019 08:01 04:19 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 597 462 RECEIVED NYSCEF: 04/28/2023 10/14/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------X AFFIRMATION IN KEVIN McGONIGAL, PARTIAL OPPOSITION Plaintiff, -against- Index No. 158327/13 NYY STEAK MANHATTAN, LLC, Return date: 10/25/19 PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC. Hon. Margaret Chan Defendants. -----------------------------------------------------------X PLAZA CONSTRUCTION CORP., Third-Party Index No.: 595146/2014 Third-Party Plaintiff, -against- BARING INDUSTRIES, INC., Third-Party Defendant. -----------------------------------------------------------X BARING INDUSTRIES, INC., Second-Third-Party Index No.: 595130/15 Second-Third-Party Plaintiff, -against- DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. Second-Third-Party Defendants. -----------------------------------------------------------X NYY STEAK MANHATTAN, LLC, & PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCITON CORP. Third-Third Party Index No. Third Third-Party Plaintiffs, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACCOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC. Third Third-Party Defendants. -----------------------------------------------------------X 1 of 8 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/14/2019 08:01 04:19 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 597 462 RECEIVED NYSCEF: 04/28/2023 10/14/2019 Nikolaos E. Diamantis, an attorney duly admitted to practice law before the courts of the State of New York, affirms the following to be true under penalties of perjury pursuant to New York Civil Practice Law and Rules § 2106: 1. I am associated with the Law Office of Tromello & Fishman, attorneys for Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third-Third Party Defendant BARING INDUSTRIES, INC., (hereinafter "BARING") and as such I am fully familiar with the facts and circumstances of the within action based upon a review of the file maintained by my office and my handling of this litigation. 2. I submit this affirmation, upon information and belief, in opposition to NYY STEAK MANHATTAN, LLC ("NYY STEAK") and PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP. ("PLAZA") motion for summary judgment pursuant to CPLR 3211(a)(1) and 3212. 3. Your affirmant incorporates by reference BARING's motion for summary judgement seeking dismissal under CPRL 3211(a)(1) and 3212 which includes a dismissal of NYY and PLAZA's claims against BARING. Said motion papers include the Statement of Facts which are adopted by reference in an effort not to belabor the Court with duplicative materials and arguments. ARGUMENT POINT I NYY CONTRACTUAL INDEMNITY CLAIM IS WITHOUT MERIT 4. In a recent case the Dormitory Auth v. Samson Construction Co. 30 N.Y.3d 704 (2018), the Court of Appeals held: "[A] third party may sue as a beneficiary on a contract made for [its] benefit. However, an intent to benefit the third party must be shown, and, absent such intent, the third party is merely an incidental beneficiary with no right to 2 2 of 8 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/14/2019 08:01 04:19 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 597 462 RECEIVED NYSCEF: 04/28/2023 10/14/2019 contracts" enforce the particular (Port Chester Elec. Constr. Corp. v. Atlas, 40 N.Y.2d 652, 655, 389 N.Y.S.2d 327, 357 N.E.2d 983 [1976] [citations omitted] ). We have previously sanctioned a third party's right to enforce a contract in two situations: when the third party is the only one who could recover for the breach of contract or when it is otherwise clear from the language of the contract that there was "an intent to permit enforcement by the party" third (Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 45, 495 N.Y.S.2d 1, 485 N.E.2d 208 [1985] ). With respect to construction contracts, we have generally required express contractual language stating that the contracting parties intended to benefit a third party by permitting that third party "to enforce [a promisee's] contract another" with (Port Chester, 40 N.Y.2d at 656, 389 N.Y.S.2d 327, 357 N.E.2d 983). In the absence of express language, "[s]uch third parties are generally beneficiaries" considered mere incidental (40 N.Y.2d at 656, 389 N.Y.S.2d 327, 357 N.E.2d 983). 5. In the Dormitory Authority case the Court specifically established the elements which must be met in order for a third-party beneficiary to enforce a contract. Based on the precedent established in the Dormitory Authority case, it is clear that NYY is an incidental beneficiary of the agreement between Plaza and Baring and lacks the requisite authority to enforce the agreement against Baring. 6. As the Plaza - agreement lacks the express as required the Baring language, by Dormitory Authority case, giving NYY the right to enforce the terms of the agreement against Baring, and as NYY is not a party to the contract, NYY claims against Baring must be dismissed as a matter of law, as well as all cross-claims against Baring. POINT II ISSUES OF FACT EXISTS AS TO PLAZA's NEGLIGENCE 7. The Court of Appeals has long established the law that the "right to contractual contract" indemnity depends upon the specific language of the and that "the promise to indemnity should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances". See George v. Marshalls ofMA, Inc., 3 3 of 8 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/14/2019 08:01 04:19 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 597 462 RECEIVED NYSCEF: 04/28/2023 10/14/2019 (2"" 61 A.D.3d 925, 878 N.Y.S.2d 143 Dep't, 2009); Bellefleur v. Newark Beth Israel Med. Ctr., (2"" 66 A.D.3d 807, 888 N.Y.S.2d 81 Dep't 2009). 8. Additionally, a party seeking contractual indemnification must prove itself free from negligence, because to the extents its negligence contributed to the accident, it cannot be indemnified therefore. See Bellefleur v. Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 888 (2"d N.Y.S.2d 81 Dep't 2009). 9. In the subject case, the language in the contract between Plaza and Baring pertaining to indemnity states as follows: To the extent permitted by law, Subcontractor shall indemnify, defend, save and hold harmless the Owner, the Construction Manager, landlord, Building Management and Architect...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: The performance of Work the or of its Sub- 1) by Subcontractor, any 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 theeof (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, the Construction Manager or their officers, employees, agents, servants or others to the Subcontractor. See Exhibit "Q". General Conditions Article 9A. A.D.3'd 10. The case of Giangarra v. Pav-Lak Contracting, Inc., 55 869, 871, 866 (2"d N.Y.S.2d 332 Dep't, 2008) states that a party seeking indemnity must be free of negligence and cannot be indemnified for its own negligence. In this case, there is clearly evidence as to the affirmative negligence of third-party plaintiff Plaza, who as the general 4 4 of 8 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/14/2019 08:01 04:19 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 597 462 RECEIVED NYSCEF: 04/28/2023 10/14/2019 contractor/construction manager, was charged with overall safety of the work, was responsible for debris clean up at the site, as well as responsible for protection work at the site. 11. Any construction contract purporting to indemnify a party for its own negligence is void and unenforceable. N.Y. GOL 5-322.1. To the extent the negligence of a party is the beneficiary of an indemnification provision contributed to the accident, such party cannot be indemnified therefore. Emphasis add. See Cava Constr. Co., Inc. v. Gealtec Remodeling Corp., (2"d 58 A.D.3d at 662, 871 N.Y.S.2d Dep't 2009); Reynolds v. County of Westchester, 270 A.D.2d (2"d at 474, 704 N.Y.S.2d 651 Dep't 2000); Kennelty v. Darling Constr., 260 A.D.2d 443, 446, (2"d 688 N.Y.S.2d 584 Dep't 1999). 12. Clearly in this case, Baring has established that they are free from negligence as they neither had any responsibilities for debris clean up, protection work, or lighting at this site. Further, Baring was not on site on the date of the accident, did not direct or control the plaintiff's work, and never directed or controlled the means and method for the delivery into the worksite. Based on the evidence in this case, it is alleged by plaintiff tripped on debris while delivering the condenser into the basement causing him to lose his balance and fall into an unguarded pit/hole. It is undisputed that Plaza alone had the responsibility to clean debris form the site and was responsible for protection work. Based on the facts, Plaza's failure to perform their responsibilities at this site cannot be ignored, and could be found to be a proximate cause (if not the sole cause) of this accident. 13. Based on evidence in this case which clearly paints a picture of Plaza's negligence, Plaza would never be able to enforce the contractual indemnity agreement against Baring and as such, Plaza claims for contractual indemnification must be denied. Further, due to PLAZA's active negligence in this case, their claims under Labor Law 200, common law negligence and common law indemnity my similarly be denied. 5 5 of 8 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/14/2019 08:01 04:19 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 597 462 RECEIVED NYSCEF: 04/28/2023 10/14/2019 POINT III NYY AND PLAZA'S BREACH OF CONTRACT CLAIMS ARE WITHOUT MERIT 14. NYY and Plaza allege breach of contract against Baring for failure to procure insurance. However, insurance was purchased by Baring and exchanged with the parties during discovery evidencing that proper insurance was secured by Baring for this project. 15. In its Response to Notice for Discovery and Inspection dated October 25, 2016, Baring policies were disclosed to all parties. A copy of said discovery response is attached herewith as Exhibit "A". Pursuant to the 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 a addition, copy of BARING's umbrella policy was disclosed with limits up to $10 Mil policy C2092169708 also provided by National Fire Insurance of Hartford for the same policy period. 16. Clearly there was sufficient insurance coverage to satisfy the contractual obligation under the PLAZA contract. If it is PLAZA's argument that BARING did provide the specific coverage as dictated under the contract, same is without consequence as the umbrella policy contains enough limits to satisfy the obligation. Further, there is no prejudice to PLAZA As a result of the facts of this case, NYY and Plaza's breach of contract claims must be dismissed in their entirety as Baring has fulfilled its obligation under the contract and actually provided more coverage than required to. As such, PLAZA motion for breach of contract must be denied. WHEREFORE, it is respectfully requested that this Court deny the relief requested in 6 6 of 8 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/14/2019 08:01 04:19 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 597 462 RECEIVED NYSCEF: 04/28/2023 10/14/2019 Aefenda=+ NYY and PLAZA's motion for an Order pursuant to CPLR 3212 for judgmcñt, along with such other and further relief as this Court may deem just and proper. Dated: Melville, New York October 14, 2019 Nikolaos E. Diamantis 7 7 of 8 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/14/2019 08:01 04:19 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 597 462 RECEIVED NYSCEF: 04/28/2023 10/14/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND -------------------------------------------------------------------X GIULIO PISANO, Plaintiff, -against- NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CITY OF NEW YORK, HAKS ENGINEERS, P.C., HAKS ENGINEERS AND LAND SURVEYORS, P.C., AND HAKS ENGINEERS, ARCHITECHTS AND LAND SURVEYORS, P.C., Defendants. ------------------------------------------------------------------X NEW YORK CITY DEPARTMENT OF TRANSPORTATION and CITY OF NEW YORK, Third-Party Plaintiff, -against- CONTI OF NEW YORK, LLC, Third-Party Defendants. ------------------------------------------------------------------X _________ ___________________________________________________ AFFIR,ATION IN OPPOSITION ___________________________________________________________________ LAW OFFICES OF TROMELLO & FISHMAN Attorney for Defendants HAKS ENGINEERS, P.C., HAKS ENGINEERS AND LAND SURVEYORS, P.C. AND HAKS ENGINEERS, ARCHITECTS AND LAND SURVEYORS, P.C. P.O. Box 9038 Melville, NY 11747 (631) 577-2400 8 of 8 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/14/2019 08:01 04:19 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 597 463 RECEIVED NYSCEF: 04/28/2023 10/14/2019 EXHIBIT A FILED: NEW YORK COUNTY CLERK 04/28/2023 10/14/2019 08:01 04:19 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 597 463 RECEIVED NYSCEF: 04/28/2023 10/14/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------X Index No. 158327/13 KEVIN McGONIGAL, Plaintiff, RESPONE TO NOTICE -against- FOR DISCOVERY AND INSPECTION NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC. Defendants. -----------------------------------------------------------X PLAZA CONSTRUCTION CORP., Third-Party Plaintiff, Third-Party Index No.: 595146/2014 -against- BARING INDUSTRIES, INC., Third-Party Defendant. -----------------------------------------------------------X BARING INDUSTRIES, INC., Second-Third-Party Plaintiff, Second-Third-Party -against- Index No.: 595130/2015 DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. Second-Third-Party Defendants. -----------------------------------------------------------X NYY STEAK MANHATTAN LLC, & PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., Third-Third-Party Plaintiff, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., Third-Third-Party Defendants. -----------------------------------------------------------X Defendant/second third party plaintiff BARING INDUSTRIES, INC., by and through its attorneys, The Law Offices of Charles J. Siegel and in response to defendant NYY