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FILED: NEW YORK COUNTY CLERK 12/23/2021 05:00 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 176 RECEIVED NYSCEF: 12/23/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------X
JOSEPH ITARA and TABETHA ITARA,
Plaintiffs, Index No.: 152948/2020
-against- NOTICE OF APPEAL
MASARYK TOWERS CORPORATION d/b/a
MASARYK TOWERS MANAGEMENT,
METRO MANAGEMENT & DEVELOPMENT INC.
a/k/a METRO MANAGEMENT DEVEL., INC.,
Defendants.
---------- ¬------------------------------------------X
MASARYK TOWERS CORPORATION i/s/h/a MASARYK
TOWERS CORPORATION d/b/a MASARYK TOWERS Third-Party Index No.
MANAGEMENT, 595639/2021
Third-Party Plaintiff,
- against -
CENTENNIAL ELEVATOR INDUSTRIES, INC.,
Third-Party Defendant.
----------- -----------------------------------------------X
PLEASE TAKE NOTICE, that Defendant/Third-Party Plaintiff, MASARYK TOWERS
CORPORATION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS
MANAGEMENT (hereinafter "MASARYK") hereby appeals to the Appellate Division, First
Department from a Decision and Order, of the Hon. William Perry, J.S.C, dated December 6, 2021,
entered in the Office of the Clerk of the Supreme Court, New York County on December 6, 2021,
and served with Notice of Entry on December 6, 2021.
This appeal is taken from each and every aspect of said Decision and Order from which
Defendant MASARYK is aggrieved, including, inter alia, that part of said Decision and Order
which granted Third-Party Defendant CENTENNIAL ELEVATOR INDUSTRIES, INC.'s motion
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to dismiss the Third-Party Complaint in its entirety and awarded Third-Party Defendant costs and
disbursements.
Dated: Woodbury, New York
December 23, 2021
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
By:
Susan J. S o erg
Attorneys efen ts
MASARYK TOWER ORPORATION i/s/h/a
MASARYK TOWERS CORPORATION d/b/a
MASARYK TOWERS MANAGEMENT and
METRO MANAGEMENT & DEVELOPMENT
INC. a/k/a METRO MANAGEMENT DEVEL.,
INC.,
1000 Woodbury Road, Suite 402
Woodbury, New York 11797
(516) 712-4000
File No.: 667-19159
stromberg@milbermakris.com
TO: Brett J. Nomberg, Esq.
BRAND BRAND NOMBERG &
ROSENBAUM, LLP
Attorney for Plaintiffs
JOSEPH ITARA and TABETHA ITARA
3RD 7™
622 Avenue, Floor
New York, New York 10017
(212) 808-0448
bnombere@bbnrlaw.com
Alexandra L. Robins, Esq.
Bruce M. Young, Esq.
KAUFMAN DOLOWICH VOLUCK LLP
Attorneys for Third-Party Defendant
CENTENNIAL ELEVATOR INDUSTRIES, INC.
245 Main Street, Suite 330
White Plains, New York 10601
(914) 470-0001 x31
srobins@kdylaw.com
byoung@kdylaw.com
2
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--- - -
------X Index No.: 152948/2020
Plaintiffs,
-against-
MASARYK TOWERS CORPORATION d/b/a NOTICE OF ENTRY
MASARYK TOWERS MANAGEMENT,
Defendant.
MASARYK TOWERS CORPORATION i/s/h/a MASARYK
TOWERS CORPORATION d/b/a MASARYK TOWERS
MANAGEMENT,
Third-Party Plaintiff,
-against-
CENTENNIAL ELEVATOR INDUSTRIES, INC.,
Third-Party Defendant.
===========
PLEASE TAKE NOTICE that the within is a true copy of a Short-Form Order of the
Honorable William Perry, dated December 6, 2021, which was duly entered and filed in the Office
of the Clerk of the above-captioned Court on December 6, 2021.
Dated: White Plains, New York
December 6, 2021
KAUFMAN DOLOWICH VOLUCK, LLP
1 I
Attorneys for Centennial Elevator Industries, Inc.
245 Main Street, Suite 330
White Plains, New York 10601
Tel. (914) 470-0001 ext. 31
srobins@kdylaw.com
To: All parties by ECF
1
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SUPREME COURT OF THE STATE OF NEW YORK
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PRESENT: HON. WILLIAM PERRY PART 23
__
Justice
_________-___________________ ----X 152948/2020
INDEX NO.
I . .
JOSEPH ITARA, TABETHA ITARA,
MOTION DATE 11/10/2021
Plaintiff
MOTION SEQ. NO. 003 004
MASARYK TOWERS CORPORATION D/B/A MASARYK
TOWERS MANAGEMENT, METRO MANAGEMENT &
+ ORDER
DECISION ON
DEVELOPMENT INC.,A/K/A METRO MANAGEMENT
MOTION
DEVEL., INC., .
Defendant.
___________-------------------------- --X
MASARYK TOWERS CORPORATION D/B/A MASARYK Third-Party
TOWERS MANAGEMENT Index No. 595639/2021
Plaintiff,
-against-
CENTENNIAL ELEVATOR INDUSTRIES, INC.
Defendant.
-------___-__-___-____ -----------X
The foliuwing e-filed documents, listed by NYSCEF docurñent number (Motion 003) 74, 75, 76, 77, 78,
79, 80, 81, 82, 83, 84, 85, 88, 117, 118, 119, 120, 121, 122, 123, 124 125, 129, 130, 131, 132
were read on this motion to/for DISMISS
The following e-filed documents, listed by NYSCEF document number (Motion 004) 90, 91, 92, 93, 94,
95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 133,
139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159,
161, 162, 163, 164
were read on this motion to/for STRIKE PLEADINGS
Plaintiff Joseph Itara ("Plaintiff"), an elevator meclianic, alleges that he was on a
walking
staircase owned by Defendant Masaryk Towers Corporation when.a single
("Masaryk") step
collapsed, causing him to fall through the staircase and to suffer injuries as a result. Masaryk
. .
152948/2020 ITARA, JOSEPH vs. MASARYK TOWERS CORPORATION Page 1 of 11
Motion No. 003 004
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commeñced a third-party action against Plaintiff's employer, Centennial Elevator Industries
("Centennial").
In motion sequence 003, Centennial moves to dismiss the third-party complaint in its
entirety, on the grounds that it fails to state a claim and that a total defense is founded upon
documentary evidence. Plaintiff has submitted an affirmation in support of Centennial's motion.
In motion sequence 004, Plaintiff moves, pursuant to CPLR 3126, to strike Masary.k's
answer for willfully providing false discovery wayvisses, violating court orders, and commcñcing
a frivolous third-party action, which Plaintiff alleges was intended to obstruct and delay discovery.
In the alternative, Plaintiff requests that Masaryk's thirteenth affirmative defense of failing to sue
an indispensable party be stricken. Plaintiff also moves, pursuant to-CPLR 1010, to dismiss the
third-party action, or in the alternative, for.severance. Masaryk cross-moves, pursuant to 22
NYCRR 130-1.1, for costs and sanctions, arguing that Plaintiff's motion is frivolous. The motions
have been fully submitted and are consolidated for disposition.
Background
Pursuant to a contract dated December 13, 2001 (NYSCEF Doc No. 83, Contract),
Cer·tennial agreed to provide elevator maintenance services to Masaryk for 16 elevators located
within six buildings owned by Masaryk, including 65 Columbia Street, New York, NY (the
"building"). Plaintiff was an employee of Centennial and worked as an elevator mechanic.
Plaintiff alleges that on August 13, 2019, as he was a staircase located on the
walking up
roof of the building to access the elevator motor room to perform maiñtenañce, one of the metal
steps collapsed and him serious injury. (NYSCEF Doc No. at ¶¶ 14-
fell, causing 1, Complaiñt,
17.) Plaintiff commcñced this action on March 19, 2020, setting forth one cause of action for
152948/2020 ITARA, JOSEPH vs. MASARYK TOWERS CORPORATION Page 2 of 11
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negligeñce, while Co-Plaintiff Tabetha Itara, Plaintiff's spouse, sets forth one cause of action for
loss of consortium.
Centennial's motion sequence 003 to_dismiss the third-narty complain_t
Masaryk filed the third-party complaint against Centennial on July 16, 2021, setting forth
the following causes of action: 1) coz±nnen law indemnification; 2) contribution; 3) contractual
indemnification; and 4) breach of the contractual provision to procure appropriate ifisurance.
(NYSCEF Doc No. 17, 3PC.)
Centennial moves to dismiss, arguing that it fails to state a cause of action and that a total
defense is based upon documentary evidence. (NYSCEF Doc No. 75, Centennial's Memo.) First,
Centennial argues that Masaryk's claims for coñtribution and common law indemnification must
be dismissed because they are barred by Worker's Compensation Law § 11 and because there is
no underlying tort liability as to Centennial. (Id. at ¶¶ 23-30.) Second, Centeññial argues that the
claim for contractual indemñification must be dismissed because the contract only obligates
Centeññial to indeñ)nify Masaryk for losses incurred due to Centennial's acts within the scope of
the contract, rather than losses arising from dangerous coñditions on Masaryk's property; and that
Masaryk's interpretation of the contract would result in a violation of General Obligations Law §
5-322.1[1], which renders unenforceable any maintenance agreement wherein a promisor
purportedly agrees to indemnify a promisee for losses caused by the promisee's own negligence.
(Id. at ¶¶ 31-36.) Third, Centennial argues that the cause of action for breach of contract must be
dismissed because Centennial complied with the insurance requirements cóñtained within the
contract. (Id. at ¶¶ 37-39.) Finally, it argues that the third-party complaint is frivolous and seeks
attorneys'
fees and expenses. (Id. at ¶¶ 40-43.)
152948/2020 ITARA, JOSEPH vs. MASARYK TOWERS 6 of 19
BOBEORATION Page 3 of 11
Motion No. 003 004
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In opposition, Masaryk argues that Plaintiff sustained his injuries "in coññection with, or
Centennial,"
as a consequence of the performance of his services as an employee of and thus the
contract entitles Masaryk to indemnification. (NYSCEF Doc No. 117, Opposition, at ¶ 21.)
Moreover, Masaryk argues that "it is.not necessary that plaintiff himself be actively engaged in
the type of work covered by the indemnity contract in order for such injury to fall within [the]
provision."
worded indemnification (Id. at ¶ 26, citing cases.) Further, Masaryk argues
broadly
that dismissal is premature, and that further discovery is needed. (Id. at ¶ 29.)
Plaintiff submitted an affirmation in support of Centennial's motion (NYSCEF Doc No.
124, Pl.'s Memo), along with th^e September 28, 2021 deposition transcript of Maximo Vasquez,
the superintendeñt of all six buildings owned by Masaryk, who testified that he has been "the only
person"
responsible for the maintenance of the staircase at issue in this case for the past 23 years,
not Cêñteññial. (NYSCEF Doc No. 125, Vazquez Transcript, at 13:13-17:13.) Vasquez also
testified that Metro Managemêñt and Development Corporation ("Metro") was the mañâging agent
of the property at the time of the accident. (Id. at 10:05.)
After the parties stipulated to. add Metro as a Defendant, Plaintiff filed a supplemental
summons and coñiplaint on No.vember 30,. 2021. (NYStEF Doc No. 116, Am. Cmplt.)
Discussion
. . On a pre-answer motion to dismiss a complaint for failure to state a cause of action,
pursuant to CPLR 3211 [a] [7], "the court should accept as true the facts alleged.in the complaint,
accord plaintiff the benefit of every possible inference, and only determine whether the facts, as
theory."
alleged, fit within any cognizable legal (Frank v DaimlerChrysler Corp., 292 AD2d 118,
121 [1st Dept 2002].)'However, "factual allegations that do not state a viable cause of action, that
consist of bare legal conclusipns, or that are iñherêñtly incredible or clearly 'contradicted by
152948/2020 ITARA, JOSEPH vs. MASARYK TOWERS 7
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consideration."
documentary evidence are not entitled to sµch (Skillgames, LLC v Brody, 1 AD3d
247, 250 [1st Dept 2003].)
Dismissal pursuant to CPLR 3211 (a) (1) is warranted only if the documentary evidence
allegations"
submitted "utterly refutes plaintiff s factual (Goshen v Mutual Life Ins. Co. of NY, 98
NY2d 314, 326 [2002]; see also Greenapple v Capital
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FILED: NEW YORK COUNTY CLERK 12/23/2021 05:00 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 176 RECEIVED NYSCEF: 12/23/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------X JOSEPH ITARA and TABETHA ITARA, Plaintiffs, Index No.: 152948/2020 -against- NOTICE OF APPEAL MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, METRO MANAGEMENT & DEVELOPMENT INC. a/k/a METRO MANAGEMENT DEVEL., INC., Defendants. ---------- ¬------------------------------------------X MASARYK TOWERS CORPORATION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS Third-Party Index No. MANAGEMENT, 595639/2021 Third-Party Plaintiff, - against - CENTENNIAL ELEVATOR INDUSTRIES, INC., Third-Party Defendant. ----------- -----------------------------------------------X PLEASE TAKE NOTICE, that Defendant/Third-Party Plaintiff, MASARYK TOWERS CORPORATION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT (hereinafter "MASARYK") hereby appeals to the Appellate Division, First Department from a Decision and Order, of the Hon. William Perry, J.S.C, dated December 6, 2021, entered in the Office of the Clerk of the Supreme Court, New York County on December 6, 2021, and served with Notice of Entry on December 6, 2021. This appeal is taken from each and every aspect of said Decision and Order from which Defendant MASARYK is aggrieved, including, inter alia, that part of said Decision and Order which granted Third-Party Defendant CENTENNIAL ELEVATOR INDUSTRIES, INC.'s motion 1 of 19 FILED: NEW YORK COUNTY CLERK 12/23/2021 05:00 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 176 RECEIVED NYSCEF: 12/23/2021 to dismiss the Third-Party Complaint in its entirety and awarded Third-Party Defendant costs and disbursements. Dated: Woodbury, New York December 23, 2021 MILBER MAKRIS PLOUSADIS & SEIDEN, LLP By: Susan J. S o erg Attorneys efen ts MASARYK TOWER ORPORATION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT and METRO MANAGEMENT & DEVELOPMENT INC. a/k/a METRO MANAGEMENT DEVEL., INC., 1000 Woodbury Road, Suite 402 Woodbury, New York 11797 (516) 712-4000 File No.: 667-19159 stromberg@milbermakris.com TO: Brett J. Nomberg, Esq. BRAND BRAND NOMBERG & ROSENBAUM, LLP Attorney for Plaintiffs JOSEPH ITARA and TABETHA ITARA 3RD 7™ 622 Avenue, Floor New York, New York 10017 (212) 808-0448 bnombere@bbnrlaw.com Alexandra L. Robins, Esq. Bruce M. Young, Esq. KAUFMAN DOLOWICH VOLUCK LLP Attorneys for Third-Party Defendant CENTENNIAL ELEVATOR INDUSTRIES, INC. 245 Main Street, Suite 330 White Plains, New York 10601 (914) 470-0001 x31 srobins@kdylaw.com byoung@kdylaw.com 2 2 of 19 FILED:: NEW [F ILED NEW YORK YORK COUNTY COUNTY CLERK CLERK 12/23/2021 12/0672021 05:00 05:29 PM P1 INDEX INDEX NO. NO. 152948/2020 152948/2020 NYSCEF NYSCEF DOC. DOC. NO. NO. 176 170 RECEIVED RECEIVED NYSCEF: 12/23/2021 NYSCEF: 12/06/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --- - - ------X Index No.: 152948/2020 Plaintiffs, -against- MASARYK TOWERS CORPORATION d/b/a NOTICE OF ENTRY MASARYK TOWERS MANAGEMENT, Defendant. MASARYK TOWERS CORPORATION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, Third-Party Plaintiff, -against- CENTENNIAL ELEVATOR INDUSTRIES, INC., Third-Party Defendant. =========== PLEASE TAKE NOTICE that the within is a true copy of a Short-Form Order of the Honorable William Perry, dated December 6, 2021, which was duly entered and filed in the Office of the Clerk of the above-captioned Court on December 6, 2021. Dated: White Plains, New York December 6, 2021 KAUFMAN DOLOWICH VOLUCK, LLP 1 I Attorneys for Centennial Elevator Industries, Inc. 245 Main Street, Suite 330 White Plains, New York 10601 Tel. (914) 470-0001 ext. 31 srobins@kdylaw.com To: All parties by ECF 1 1 of 3 of 12 19 FILED: NEW |r .i.Lau. man YORK ivut ev0nn COUNTY CLERK ca.;RK 12/23/2021 J.2/ Ub/2U21 05:00 05:29 PM PM INDEX NO. 152948/2020 152948/2"o25 NYSCEF NYSCEF DOC. DOC. NO. NO. 176 180 RECEIVED RECEIVED 12/06/2021 NYSCEF: 12/23/2021 NYSCEF: . . SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. WILLIAM PERRY PART 23 __ Justice _________-___________________ ----X 152948/2020 INDEX NO. I . . JOSEPH ITARA, TABETHA ITARA, MOTION DATE 11/10/2021 Plaintiff MOTION SEQ. NO. 003 004 MASARYK TOWERS CORPORATION D/B/A MASARYK TOWERS MANAGEMENT, METRO MANAGEMENT & + ORDER DECISION ON DEVELOPMENT INC.,A/K/A METRO MANAGEMENT MOTION DEVEL., INC., . Defendant. ___________-------------------------- --X MASARYK TOWERS CORPORATION D/B/A MASARYK Third-Party TOWERS MANAGEMENT Index No. 595639/2021 Plaintiff, -against- CENTENNIAL ELEVATOR INDUSTRIES, INC. Defendant. -------___-__-___-____ -----------X The foliuwing e-filed documents, listed by NYSCEF docurñent number (Motion 003) 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 88, 117, 118, 119, 120, 121, 122, 123, 124 125, 129, 130, 131, 132 were read on this motion to/for DISMISS The following e-filed documents, listed by NYSCEF document number (Motion 004) 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 133, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 161, 162, 163, 164 were read on this motion to/for STRIKE PLEADINGS Plaintiff Joseph Itara ("Plaintiff"), an elevator meclianic, alleges that he was on a walking staircase owned by Defendant Masaryk Towers Corporation when.a single ("Masaryk") step collapsed, causing him to fall through the staircase and to suffer injuries as a result. Masaryk . . 152948/2020 ITARA, JOSEPH vs. MASARYK TOWERS CORPORATION Page 1 of 11 Motion No. 003 004 4 of 19 FILED FILED:: NEW YORK NEW YORK COUNTY COUNTY CLERK CLERK 12/23/2021 12/06/2021 05:00 05: 29 PM PNd INDEX INDEX NO. NO. 152948/2020 152948/2020 NYSCEF NYSCEF DOC. DOC. NO. 176 NO. 180 RECEIVED RECEIVED NYSCEF: NYSCEF: 12/23/2021 12/06/2021 . commeñced a third-party action against Plaintiff's employer, Centennial Elevator Industries ("Centennial"). In motion sequence 003, Centennial moves to dismiss the third-party complaint in its entirety, on the grounds that it fails to state a claim and that a total defense is founded upon documentary evidence. Plaintiff has submitted an affirmation in support of Centennial's motion. In motion sequence 004, Plaintiff moves, pursuant to CPLR 3126, to strike Masary.k's answer for willfully providing false discovery wayvisses, violating court orders, and commcñcing a frivolous third-party action, which Plaintiff alleges was intended to obstruct and delay discovery. In the alternative, Plaintiff requests that Masaryk's thirteenth affirmative defense of failing to sue an indispensable party be stricken. Plaintiff also moves, pursuant to-CPLR 1010, to dismiss the third-party action, or in the alternative, for.severance. Masaryk cross-moves, pursuant to 22 NYCRR 130-1.1, for costs and sanctions, arguing that Plaintiff's motion is frivolous. The motions have been fully submitted and are consolidated for disposition. Background Pursuant to a contract dated December 13, 2001 (NYSCEF Doc No. 83, Contract), Cer·tennial agreed to provide elevator maintenance services to Masaryk for 16 elevators located within six buildings owned by Masaryk, including 65 Columbia Street, New York, NY (the "building"). Plaintiff was an employee of Centennial and worked as an elevator mechanic. Plaintiff alleges that on August 13, 2019, as he was a staircase located on the walking up roof of the building to access the elevator motor room to perform maiñtenañce, one of the metal steps collapsed and him serious injury. (NYSCEF Doc No. at ¶¶ 14- fell, causing 1, Complaiñt, 17.) Plaintiff commcñced this action on March 19, 2020, setting forth one cause of action for 152948/2020 ITARA, JOSEPH vs. MASARYK TOWERS CORPORATION Page 2 of 11 MotionNo.003004 25 of of 12 19 FILED: F ILED : NEW YORK NEW YORK COUNTY COUNTY CLERK CLERK 12/23/2021 12 / 06/2021 05:00 05 : 29 PM INDEX INDEX NO. NO. 152948/2020 152948/2020 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 176 160 . . RECEIVED RECEIVED NYSCEF: NYSCEF: 12/23/2021 12/06/2021 negligeñce, while Co-Plaintiff Tabetha Itara, Plaintiff's spouse, sets forth one cause of action for loss of consortium. Centennial's motion sequence 003 to_dismiss the third-narty complain_t Masaryk filed the third-party complaint against Centennial on July 16, 2021, setting forth the following causes of action: 1) coz±nnen law indemnification; 2) contribution; 3) contractual indemnification; and 4) breach of the contractual provision to procure appropriate ifisurance. (NYSCEF Doc No. 17, 3PC.) Centennial moves to dismiss, arguing that it fails to state a cause of action and that a total defense is based upon documentary evidence. (NYSCEF Doc No. 75, Centennial's Memo.) First, Centennial argues that Masaryk's claims for coñtribution and common law indemnification must be dismissed because they are barred by Worker's Compensation Law § 11 and because there is no underlying tort liability as to Centennial. (Id. at ¶¶ 23-30.) Second, Centeññial argues that the claim for contractual indemñification must be dismissed because the contract only obligates Centeññial to indeñ)nify Masaryk for losses incurred due to Centennial's acts within the scope of the contract, rather than losses arising from dangerous coñditions on Masaryk's property; and that Masaryk's interpretation of the contract would result in a violation of General Obligations Law § 5-322.1[1], which renders unenforceable any maintenance agreement wherein a promisor purportedly agrees to indemnify a promisee for losses caused by the promisee's own negligence. (Id. at ¶¶ 31-36.) Third, Centennial argues that the cause of action for breach of contract must be dismissed because Centennial complied with the insurance requirements cóñtained within the contract. (Id. at ¶¶ 37-39.) Finally, it argues that the third-party complaint is frivolous and seeks attorneys' fees and expenses. (Id. at ¶¶ 40-43.) 152948/2020 ITARA, JOSEPH vs. MASARYK TOWERS 6 of 19 BOBEORATION Page 3 of 11 Motion No. 003 004 FILED:: NEW IF ILED NEW YORK YORK COUNTY COUNTY CLERK CLERK 12/23/2021 12/O 6/2021 05:00 05 : 29 PM INDEX IND EX NO. NO. 152948/2020 1529 4 8/ 2 0 2 0 PNG NYSCEF NYSCEF DOC. DOC. NO. NO. 176 160 . RECEIVED RECEIVED NYSCEF: ÑYSCEF: 12/23/2021 12/06/2021 In opposition, Masaryk argues that Plaintiff sustained his injuries "in coññection with, or Centennial," as a consequence of the performance of his services as an employee of and thus the contract entitles Masaryk to indemnification. (NYSCEF Doc No. 117, Opposition, at ¶ 21.) Moreover, Masaryk argues that "it is.not necessary that plaintiff himself be actively engaged in the type of work covered by the indemnity contract in order for such injury to fall within [the] provision." worded indemnification (Id. at ¶ 26, citing cases.) Further, Masaryk argues broadly that dismissal is premature, and that further discovery is needed. (Id. at ¶ 29.) Plaintiff submitted an affirmation in support of Centennial's motion (NYSCEF Doc No. 124, Pl.'s Memo), along with th^e September 28, 2021 deposition transcript of Maximo Vasquez, the superintendeñt of all six buildings owned by Masaryk, who testified that he has been "the only person" responsible for the maintenance of the staircase at issue in this case for the past 23 years, not Cêñteññial. (NYSCEF Doc No. 125, Vazquez Transcript, at 13:13-17:13.) Vasquez also testified that Metro Managemêñt and Development Corporation ("Metro") was the mañâging agent of the property at the time of the accident. (Id. at 10:05.) After the parties stipulated to. add Metro as a Defendant, Plaintiff filed a supplemental summons and coñiplaint on No.vember 30,. 2021. (NYStEF Doc No. 116, Am. Cmplt.) Discussion . . On a pre-answer motion to dismiss a complaint for failure to state a cause of action, pursuant to CPLR 3211 [a] [7], "the court should accept as true the facts alleged.in the complaint, accord plaintiff the benefit of every possible inference, and only determine whether the facts, as theory." alleged, fit within any cognizable legal (Frank v DaimlerChrysler Corp., 292 AD2d 118, 121 [1st Dept 2002].)'However, "factual allegations that do not state a viable cause of action, that consist of bare legal conclusipns, or that are iñherêñtly incredible or clearly 'contradicted by 152948/2020 ITARA, JOSEPH vs. MASARYK TOWERS 7 SOBEOiltATION of 19 Page 4 of 11 Motion No. 003 004 FILED: NEW YORK COUNTY CLERK 12/23/2021 05:00 PM INDEX NO. 152948/2020 NYSCEF NYSCEF DOC. DOC. NO. NO. 176 160 RECEIVED RECEIVED NYSCEF: NYSCEF: 12/23/2021 12/06/2021 consideration." documentary evidence are not entitled to sµch (Skillgames, LLC v Brody, 1 AD3d 247, 250 [1st Dept 2003].) Dismissal pursuant to CPLR 3211 (a) (1) is warranted only if the documentary evidence allegations" submitted "utterly refutes plaintiff s factual (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; see also Greenapple v Capital