Motion for Renewal of Judgment in Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc.| Trellis.Law

On September 12, 2013 a Motion,Ex Parte was filed involving a dispute between Kevin Mcgonigal, and Baring Industries, Inc., Nyy Steak Manhattan, Llc, Plaza Construction Corp., for Tort in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 05/03/2023 03:31 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 602 RECEIVED NYSCEF: 05/03/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
MICHELLE DEVITA as Administratix of the Estate of
KEVIN MCGONIGAL, Index No. 158327/2013

Plaintiff, Hon. Margaret A. Chan, J.S.C.
-against-

NYY STEAK MANHATTAN, LLC, PLAZA
CONSTRUCTION CORP. and BARING INDUSTRIES,
INC.,

Defendants.
----------------------------------------------------------------------X
PLAZA CONSTRUCTION CORP.,
Third-Party Index No.
595146/2014
Third-Party Plaintiff,
-against-

BARING INDUSTRIES, INC.,

Third-Party Defendant.
----------------------------------------------------------------------X
BARING INDUSTRIES, INC.,
Second Third-Party Index No.
595130/2015
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 CONSTRUCTION
CORP.,

Third Third-Party Plaintiffs,

-against-

B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.,

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Third Third-Party Defendants.

----------------------------------------------------------------------X

MEMORANDUM OF LAW

Respectfully submitted,

SMITH MAZURE, P.C.
Attorneys for Third Third-Party Defendant
Ess & Vee Acoustical Contractors, Inc.
39 Broadway, 29th Floor
New York, NY 10006-3053
(212) 964-7400
Our File No. AWA-00112

Carol G. Morokoff
Of Counsel

-2-

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Plaintiff, Hon. Margaret A. Chan,
J.S.C.
-against-

NYY STEAK MANHATTAN, LLC, PLAZA
CONSTRUCTION CORP. and BARING INDUSTRIES,
INC.,

Defendants.
----------------------------------------------------------------------X
PLAZA CONSTRUCTION CORP.,
Third-Party Index No.
595146/2014
Third-Party Plaintiff,

-against-

BARING INDUSTRIES, INC.,

Third-Party Defendant.
----------------------------------------------------------------------X
BARING INDUSTRIES, INC.,

Second Third-Party Plaintiff,
Second Third-Party Index No.
595130/2015
-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 CONSTRUCTION
CORP.,

Third Third-Party Plaintiffs,

-against-

B&G ELECTRICAL CONTRACTORS, ESS & VEE

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ACOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.,

Third Third-Party Defendants.
----------------------------------------------------------------------X

This Memorandum of Law is respectfully submitted in further support of Ess & Vee

Acoustical Contractors, Inc.’s accompanying motion, which seeks an Order:

A) pursuant to CPLR 2221(d), granting Ess & Vee Acoustical Contractors, Inc.
leave to reargue its prior dismissal motion; or

B) alternatively, pursuant to CPLR 2221(e), granting Ess & Vee Acoustical
Contractors, Inc. leave to renew its prior dismissal motion; or

C) alternatively, pursuant to CPLR 5015(a)(5), vacating and/or modifying the
Court’s prior Order, entered June 25, 2020, and July 21, 2020, to address the
merits of Ess & Vee Acoustical Contractors, Inc.’s prior dismissal motion; and

D) upon reargument, or renewal, and/or vacatur/modification, granting
summary judgment pursuant to CPLR §3211(a)(1) and §3212 in favor of
Ess & Vee Acoustical Contractors, Inc., and dismissing the Third Third-Party
Complaint and any and all claims as against Ess & Vee Acoustical Contractors,
Inc. in their entirety and with prejudice; and

E) awarding such other and further relief as the Court may deem just and proper.

The Court is referred to Ess & Vee Acoustical Contractors, Inc. (hereinafter referred to as

“Ess & Vee”) counsel’s Affirmation in Support of the motion for a full recitation of the

procedural history and facts. In short, Ess & Vee’s arguments that it should not be found liable

for an injury which it did not and could not have caused should be considered and summary

judgment should be granted in its favor.

ARGUMENT

POINT I

Renewal or Reargument Should Be
Granted to Ess & Vee

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Ess & Vee seeks leave from this Court pursuant to CPLR §2221 to reargue and/or renew

its prior summary judgment motion which sought the dismissal of NYY Steak Manhattan, LLC

and Plaza Construction LLC f/k/a Plaza Construction Corp.’s third-party action. Upon re-

argument/renewal, Ess & Vee respectfully requests an Order granting its prior motion,

dismissing NYY Steak Manhattan, LLC and Plaza Construction LLC f/k/a Plaza Construction

Corp.’s third-party action and all claims as against Ess & Vee in their entirety.

CPLR 2221(d) states “A motion for leave to reargue (1) shall be identified specifically as

such; and (2) shall be based upon matters of fact or law allegedly overlooked or misapprehended

by the court in determining the prior motion.”

In the instant case, no claim is made that the court misapprehended matters of fact or law

– it simply didn’t get to them. Upon deciding the direct claims, the Court stated “In light of the

dismissal of the main action insofar as asserted against defendants the remaining claims are

dismissed as academic [internal citations omitted]. The court need not reach any remaining

contentions.” (See NYSCEF Doc. 500, page 11.)

At this point, however, the Appellate Court having reinstated the main action (see

NYSCEF Doc. 543), it is time for the Court to consider what it “overlooked” before, to wit: the

merits of Ess & Vee’s claim.

Similarly, CPLR 2221(e) allows for “A motion for leave to renew” which “1. shall be

identified specifically as such;” and “2. shall be based upon new facts not offered on the prior

motion that would change the prior determination or shall demonstrate that there has been a

change in the law that would change the prior determination…”

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Ess & Vee submits that the decision of the Appellate Court constitutes “a change in the

law that would change the prior determination…” Whereas previously there was no need to

decide the merits of Ess & Vee’s motion, since the resurrection of plaintiff’s direct claims, the

need now exists.

With respect to the initial requirement of CPLR 2221, identifying the motion as one to

renew or reargue (a combination of the two is allowed by CPLR 2221(f)), Ess & Vee submits

that it has done so in its Notice of Motion hereto.

POINT II

Relief From The Court’s June 24, 2020/July 21, 2020
Orders May Also Be Granted to Ess & Vee Via CPLR 5015(a)(5)

Pursuant to CPLR Rule 5015, Relief from judgment or order. (a) On motion. The

court which rendered a judgment or order may relieve a party from it upon such terms as may be

just, on motion of any interested person with such notice as the court may direct, upon the

ground of (5) reversal, modification or vacatur of a prior judgment or order upon which it is

based.”

Given that the prior Order did not decide Ess & Vee’s motion for summary judgment,

but was reversed on appeal, Ess & Vee should now be relieved from that omission and its motion

ought to be decided.

POINT III

UPON RE-ARGUMENT/RENEWAL THE THIRD PARTY
PLAINTIFFS’ CLAIM FOR BREACH OF CONTRACT FOR
FAILURE TO PROCURE INSURANCE MUST BE DISMISSIED
AS A MATTER OF LAW AS INSURANCE WAS IN FACT PURCHASED
FOR THE BENEFIT OF NYY STEAK AND PLAZA CONSTRUCTION

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A. Summary Judgment and Documentary Evidence Standards

It is well settled that the proponent of a summary judgment motion must make a prima

facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in

admissible form to demonstrate the absence of any material issues of fact. See, CPLR §3212;

Giuffrida v. Citibank Corp., 100 N.Y.2d 72 (2003); Alvarez v. Prospect Hosp., 68 N.Y.2d 320

(1986). Once this showing has been made, the burden shifts to the party opposing the motion to

produce evidentiary proof in admissible form sufficient to establish the existence of material

issues of fact that require a trial for resolution. Alvarez, supra, Moore v. 3 Phase Equestrian

Center, Inc., 83 A.D.3d 677, 922 N.Y.S.2d 98, 100 (2d Dept. 2011).

B. Ess & Vee Has Provided Such Proof

The third third-party summons and complaint alleges a breach of agreement to secure

liability insurance inuring to the benefit of New York Yankee Steak and Plaza Construction. Ess

& Vee’s response to the preliminary conference order is filed as NYSCEF Doc. 254. Exhibit

“A” to the response to the preliminary conference order contains the Allied World Assurance

Company insurance policy.

At the outset, the certificate of liability insurance issued to Ess & Vee names New York

Yankee Steak 7 West 51st Street, New York, and Plaza Construction Corporation as additional

insureds. The additional insured endorsement of the policy also names Plaza Construction

Corporation, 1065 Avenue of the Americas, New York, New York and New York Yankee Steak

Manhattan, LLC c/o Hard Rock Café International USA, 6100 Old Park Lane, Orlando, Florida,

as insureds under the policy. The additional insured endorsement also indicates that owners,

lessees, or contractors are additional insureds “as required by written contract”. Policy number

5050-0309 provides coverage for the period between February 28, 2013 through February 28,

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2014 with limits of $1,000,000 per occurrence and a $2,000,000 general aggregate.

Umbrella/excess liability coverage is afforded by RLI Insurance in the amount of $20,000,000

per occurrence.

Thus, contrary to the allegations contained in the third third-party complaint, a policy was

indeed taken out with Allied World which on its face would provide coverage to the third party

plaintiffs. As such, coverage was procured for third third-party plaintiffs. To the extent third

third-party plaintiffs claim Allied should be providing coverage and is acting contrary to its

policy provisions, then third third-party plaintiffs’ remedy was to seek such coverage against

Allied through the means of a declaratory judgment action. As insurance was in fact purchased

for the benefit of third third-party plaintiffs, the claim for breach of contract for failure to procure

insurance must be dismissed as a matter of law.

POINT IV

NEW YORK YANKEE STEAK AND PLAZA CONSTRUCTION’S
CLAIM FOR CONTRACTUAL INDEMNIFICATION MUST BE DISMISSED

Third third-party plaintiffs New York Yankee Steak and Plaza Construction contend that

they are entitled to contractual indemnification from Ess & Vee. The trade subcontract between

Plaza Construction and Ess & Vee (NYSCEF Doc. 253) contains an indemnification and

insurance provision at Article 9.1 Article 9(A) states:

“To the extent permitted by law, subcontractor shall indemnify, defend,
save and hold the owner, the construction manager, landlord, building,
management and architect … their respective partners, officers, employees
and any one else acting for or on behalf of any of them harmless from and
against all liability, damages, 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:
1. the performance of work by the subcontractor, or any of its sub-
subcontractors, any act or omission of any of the foregoing:

1
The insurance requirements are specifically enumerated in Exhibit “E” to the subcontract.

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2. any accident or occurrence which happens, or is alleged to have
happened, in or about the place where 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.”

A plain reading of the indemnification provision relied upon by the third third-party

plaintiffs expressly limit Ess & Vee’s duty to indemnify to claims that arise out or that are

connected with Ess & Vee’s work. The contract also states that the indemnity provision shall not

be construed to indemnify Plaza or New York Yankee Steak for its own negligence. (NYSCEF

Doc. 253, Article 9(C) wherein it states: “the provisions of the indemnity provided for herein

shall not be construed to indemnify any indemnitee for its own negligence if not permitted by

law….”).

It is manifest that the accident did not arise out of any act, occurrence, omission or

negligence of Ess & Vee. As conceded by Plaza Construction’s own witness, George Usher, Jr.,

at his examination before trial, Plaza installed barricades and other perimeter protections around

the jobsite and was responsible for protecting all openings such as the floor opening/elevator pit

where the accident allegedly occurred. Plaza was responsible for the protection work on the

jobsite and had installed OSHA planks with plywood on top to protect the opening. The

testimony of all parties in this matter has confirmed that Plaza employed the laborers who were

responsible for maintenance, housekeeping, and cleaning the jobsite which would include

removal of construction debris created by any trade.

Ess & Vee, as the carpentry, drywall, and acoustical ceiling subcontractor, was not

responsible for housekeeping, cleaning or debris removal at the jobsite. Moreover importantly,

Ess & Vee’s foreman, Frank. Cioppa testified that Ess & Vee did not work with wood. Rather,

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they worked with sheetrock, drywall, insulation, and metal studs. There is no evidence that the

piece of wood that the plaintiff claims to have tripped on while back pedaling was created by Ess

& Vee. Ess & Vee had no duty to protect the elevator pit that the plaintiff claims to have stepped

into. Furthermore, to the extent that the plaintiff claims that illumination was responsible for his

accident, Ess & Vee as the drywall and acoustical ceiling subcontractor had no duty to provide

power or temporary lighting. The power or temporary lighting, according to the testimony of B

& G’s foreman, Raymond Chin, was provided by B&G Electrical.

To reiterate, the indemnity provision in Article 9 of the trade subcontract between Ess &

Vee and Plaza Construction is triggered only where the claim arose out of or was in connection

with the work being performed by Ess & Vee. Clearly, that is not the case here. The record is

bereft of any evidence that sheetrock and ceiling installation work performed by Ess & Vee

caused or contributed to the plaintiff’s alleged accident. Ess & Vee did not create the wooden

debris, was not responsible for the provision of temporary lighting, and did not perform any

protection work, to wit, provision of barricades, floor coverings, or planking to protect from the

elevator pit involved in the accident, and was not responsible for cleaning up any debris which

existed. Based upon the foregoing, New York Yankee Steak and Plaza Construction are not

entitled to contractual indemnification from Ess & Vee as the accident unequivocally did not

arise out of its work.

It is worthy of mention that third third-party plaintiffs would not be entitled to

indemnification against Ess & Vee based upon the provisions of General Obligations Law §5-

322.1. An indemnification provision that purports to indemnify an indemnitee for their

negligence is void under the General Obligations Law §5-322.1. Brown v. Two Exchange Plaza

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Partners, 76 N.Y.2d 172, 556, N.Y.S.2d 991; Itri Brick and Concrete v. Aetna Casualty Insurety,

89 N.Y.2d 786, 658 N.Y.S.2d 903.

Mr. Usher acknowledged that Plaza was required to provide safety at the jobsite

(NYSCEF Doc. 230 Page 26, line 7-11). It was the exclusive duty of the Plaza laborers to

provide housekeeping, and to rectify unsafe conditions (NYSCEF Doc. 230 Page 43). Mr.

Usher would check to make sure that when work was complete that the protection was put back

(NYSCEF Doc. 230 Page 55, lines 18- 21). No one else was tasked with the duty of protection

work at the New York Yankee Steakhouse (NYSCEF Doc. 230 Page 95 line 11 to page 96 line

6; page 127 lines 7-18; page 130 lines 11-22; and page 132, line 8-11). Third third-party

defendants are not entitled to contractual indemnification as a matter of law and as such this

cause of action should be dismissed.

POINT V

THIRD THIRD-PARTY PLAINTIFFS’ CLAIMS FOR COMMON LAW
CONTRIBUTION AND INDEMNIFICATION MUST BE DISMISSED
AS A MATTER OF LAW

To establish a claim for common-law indemnification, “[T]he one seeking an indemnity

must prove not only that it was not guilty of any negligence beyond statutory liability but must

also prove that the proposed indemnitor was guilty of some negligence that contributed to the

causation of the accident.” (Perri v. Gilbert Johnson, Ltd., 14 A.D.3d 681, 684-685, quoting

Correia v. Professional Data Management, 259 A.D.2d 60, 65; Priestly v. Montefiore Medical

Center/Einstein Medical Center, 10 A.D.3d 493, 495. It is well settled that an owner who is only

vicariously liable under the Labor Law may obtain full indemnification from the party wholly at

fault. Chapel v. Mitchell, 84 N.Y.2d 345, 347.

Based upon the evidence in the record, Plaza has failed to establish that it is free from any

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Negligence. More importantly, it has failed to establish that Ess & Vee is negligent to any degree

for contributing to the plaintiff’s alleged accident. In the instant matter, the record is completely

devoid of any evidence of act of negligence on the part of Ess & Vee that would entitle third

third-party plaintiffs to common law indemnification or contribution. Moreover, there is not a

scintilla of evidence to establish that Ess & Vee created the conditions that caused the plaintiff’s

accident, i.e., wooden debris, an unguarded opening, or insufficient illumination.

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. Trustees of Columbia

University v. Mitchell/Giurgola Associates, 109 A.D.2d 449, 492 N.Y.S.2d 371. Based upon the

foregoing, the third third-party claims for common law indemnification and common law

contribution should be dismissed as a matter of law.

CONCLUSION

For the reasons stated above, all cross-claims asserted against Ess & Vee must be

dismissed as a matter of law. None of the testimony by any party to date has demonstrated

liability by Ess & Vee. Furthermore, with the exception of Plaza Construction, none of the

parties in this action entered into a written agreement with Ess & Vee. The cross-claims asserted

by the parties against Ess & Vee for contribution and indemnification are conclusory allegations

of negligence which are devoid of any evidence to demonstrate that Ess & Vee caused or

contributed to the alleged dangerous condition at the New York Yankee Steakhouse project or

the happening of the plaintiff’s accident.

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WHEREFORE, it is respectfully requested that the Court grant the instant motion

in its entirety and issue an Order:

A) pursuant to CPLR §2221(d), granting Ess & Vee Acoustical Contractors, Inc.
leave to reargue its prior dismissal motion; or

B) alternatively, pursuant to CPLR §2221(e), granting Ess & Vee Acoustical
Contractors, Inc. leave to renew its prior dismissal motion; or

C) alternatively, pursuant to CPLR §5015(a)(5), vacating and/or modifying the
Court’s prior Order, entered June 25, 2020, and July 21, 2020, to address the
merits of Ess & Vee Acoustical Contractors, Inc.’s prior dismissal motion; and

E) awarding such other and further relief as the Court may deem just and proper.

Respectfully submitted,

SMITH MAZURE, P.C.
Attorneys for Third Third-Party Defendant
Ess & Vee Acoustical Contractors, Inc.
39 Broadway, 29th Floor
New York, NY 10006-3053
(212) 964-7400
Our File No. AWA-00112

Carol G. Morokoff
Of Counsel

1021

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WORD COUNT CERTIFICATION PURSUANT TO UNIFORM
COURT RULE §202.8-b(c)

I certify that the total number of words in this Memorandum of Law, exclusive of the

caption and signature block, is 2820. The document therefore complies with the word count limit

as set forth in Uniform Court Rule §202.8-b(c).

Dated: New York, New York
May 3, 2023

Yours, etc.,
SMITH MAZURE, P.C.

CAROL G. MOROKOFF
For the Firm
Attorneys for Third Third-Party Defendant
Ess & Vee Acoustical Contractors, Inc.
39 Broadway, 29th Floor
New York, NY 10006-3053
(212) 964-7400
Our File No. AWA-00112

CGM/nmo
1021

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Case Info

Judge

Margaret Pui Yee Chan Track Judge’s New Case

Case No.

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Document Filed Date

May 03, 2023

Case Filing Date

September 12, 2013

County

Parties

AURILIA, PATRICK Attorney for the Defendant
AURILIA, PATRICK Attorney for the Defendants
BARING INDUSTRIES, INC. Defendant
DIAMOND, ANDREW R Attorney for the Plaintiff
DULTZ, ALISA Attorney for the Defendants
HALL, THOMAS JAMES Attorney for the Defendant
Kevin Mcgonigal Plaintiff
LAMBOLEY, WILLIAM CONZELMAN Attorney for the Defendants
NYY STEAK MANHATTAN, LLC Defendant
PIROG, JONATHAN P Attorney for the Defendants
PLAZA CONSTRUCTION CORP. Defendant
PODELL, REED MICHAEL Attorney for the Defendant
POLLAK, KEVIN B Attorney for the Defendant
sacks and sacks, llp Non Party
SINGER, SCOTT NEIL Attorneys for Plaintiffs
SINGER, SCOTT NEIL Attorney for the Plaintiff
SNYDER, ALLISON ANN Attorney for the Defendant
NIKOLAOS DIAMANTIS Attorneys for Defendants
DAVID LORENSON Attorney
EILEEN FULLERTON Attorney
Peter Connors Attorney
JASON ANTIN Attorney
ALLEN LIGHT Attorney
RALPH DIAMOND Attorney
JAMES O'CONNOR Attorney
CAROL MOROKOFF Attorneys for Defendants
ANDREW ROSS Attorney
SUSAN SCARIA Attorneys for Defendants
SUSAN COLOTTI Attorney
KENNETH KUTNER Attorneys for Defendants
KYLE ZRENDA Attorney
JAMES CONNORS Attorneys for Defendants
ROBERT PALISENO Attorney
WILLIAM GOODBODY Attorney
ANTIGONE TZAKIS Attorneys for Defendants
DAVID LORETTO Attorney
ROBERT JUN Attorney
DAVID AGAY Attorney
VICTORIA RONEMUS Attorneys for Defendants
EDWARD GUARDARO Attorneys for Defendants
David LoRe Attorney

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Motion,Ex Parte: Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc.

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