Legal Document: Joseph Itara, Tabetha Itara v. Masaryk Towers Corporation D/B/A Masaryk Towers Management, Metro Management & Development Inc., A/K/A Metro Management Devel., Inc.

On March 19, 2020 a AFFIDAVIT OR AFFIRMATION IN REPLY (Motion #003) - Affirmation of Alexandra L. Robins in Reply was filed involving a dispute between Joseph Itara, Tabetha Itara, and Masaryk Towers Corporation D B A Masaryk Towers Management, Metro Management & Development Inc., A K A Metro Management Devel., Inc., for Torts - Other (Premises Liability) in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
==========================================X Index No.: 152948/2020
JOSEPH ITARA and TABETHA ITARA,

Plaintiffs,
-against-

MASARYK TOWERS CORPORATION d/b/a REPLY AFFIRMATION
MASARYK TOWERS MANAGEMENT,

Defendant.
===========================================X
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.
===========================================X

Alexandra L. Robins, an attorney duly admitted to practice law in the Courts of the State

of New York, hereby affirms the following under the penalty of perjury:

1. I am associated with the law firm of Kaufman Dolowich Voluck LLP, attorneys for

Third-Party Defendant Centennial Elevator Industries, Inc. (“Centennial”). At the time of the

initial filing of these papers, Centennial was represented Babchik & Young, LLP, which has since

been absorbed by Kaufman Dolowich Voluck LLP [Doc 128]. I am fully familiar with the

proceedings in this case based upon the file maintained by my former and current offices. I make

this affirmation in reply to Masaryk’s opposition to Centennial’s motion to dismiss the third-party

complaint alleging causes of action for: (i) common law indemnification; (ii) contribution; (iii)

contractual indemnification; and (iv) breach of contract.

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2. Masaryk’s papers contain no opposition to Centennial’s arguments seeking

dismissal of the first and second causes of action, which are clearly barred by WCL §11. In fact,

in its opposition papers, Masaryk admits that Plaintiff was an employee of Centennial, sustained

his injuries in the course of his employment, and filed for Worker’s Compensation benefits. See

Masaryk Opp ¶21. Therefore, the first and second causes of action for common law

indemnification and contribution against Centennial should be dismissed as they are barred by

WCL §11 and, in any case, Masaryk has abandoned them. See Genovese v. Gambino, 309 A.D.

832, 833 (2d Dep’t 2021)(claims not opposed in opposition to motion for summary judgment

deemed abandoned).

3. Instead, Masaryk focuses solely on the language of the indemnity provision in the

contract between Centennial and Masaryk, and argues that because Centennial agreed to indemnify

Masaryk for “any loss,” that therefore contractual indemnity is owed here. This is a total distortion

of the contract and the concept. As explained in further detail below, the loss at issue here occurred

when a rusted stair broke off, causing Plaintiff, who was walking on it, to fall through. It simply

does not arise under an elevator maintenance contract or the scope of services or the scope of work

of the contract. Moreover, Plaintiff’s claims are for common law negligence, not for NYLL 240(1)

or some other claim imposing absolute liability, and Masaryk cannot be indemnified for its own

negligence.

I. MASARYK’S ARGUMENTS ARE INAPPLICABLE AND IRRELEVANT

4. In support of its position, Masaryk fails to address Centennial’s arguments head-

on, and instead, attempts to rebut arguments that Centennial never made and/or do not change the

analysis. These faulty arguments are: (1) that the indemnity provision at issue does not violate

General Obligations Law §5-322.1 (“GOL”), and (2) the indemnity provision is broad and not

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limited to Centennial’s negligent acts. Yet, Centennial never argued that the indemnity provision

was void, nor that the indemnity language was narrow, so Masaryk’s “opposition” refuting them

is nothing more than a straw man.

a. The GOL and Cases for Successful Risk Transfer

5. GOL §5-322.1, entitled “Agreements exempting owners and contractors from

liability for negligence void and unenforceable” states as follows:

A covenant, promise, agreement or understanding in, or in connection with or
collateral to a contract or agreement relative to the construction, alteration, repair
or maintenance of a building, structure, appurtenances and appliances including
moving, demolition and excavating connected therewith, purporting to indemnify
or hold harmless the promisee against liability for damage arising out of bodily
injury to persons or damage to property contributed to, caused by or resulting from
the negligence of the promisee, his agents or employees, or indemnitee, whether
such negligence be in whole or in part, is against public policy and is void and
unenforceable; provided that this section shall not affect the validity of any
insurance contract, workers' compensation agreement or other agreement issued by
an admitted insurer. This subdivision shall not preclude a promisee requiring
indemnification for damages arising out of bodily injury to persons or damage to
property caused by or resulting from the negligence of a party other than the
promisee, whether or not the promisor is partially negligent.

6. As such, the GOL voids an agreement that purports to obligate a contractor under

a maintenance contract for the owner’s negligence. And here, the only negligence is that of the

owner, whose representative acknowledged at his deposition that: (a) Masaryk maintained the

stairs at issue; (b) Masaryk never asked Centennial to maintain the stairs at issue during the life of

the agreement; and (c) Masaryk made the post-accident repairs.

7. Here, the indemnity provision reads:

The Contractor hereby agrees, to the fullest extent permitted by law, to assume the
entire responsibility and liability for the defense of and to pay and indemnify the
Owner, their agent and employees against any loss, cost expense, liability or
damage and will hold each of them harmless from and pay any loss, cost, expense,
liability or damage . . . which the Owner incurs because of sickness, injury to or
death of any person· or on account of damage to or destruction of property,
including loss of use thereof, or any other claim arising out of, in connection with,

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or as a consequence of the performance of the services or the furnishing of the
equipment and supplies and/or any acts or omissions of the Contractor or any of its
officers, directors, employees, agents, subcontractors, or anyone directly or
indirectly employed by the Contractor for whom it may be liable as it relates to the
scope of this contract.

Exhibit I P4.02A (emphasis supplied).

8. The provision on its face makes clear that indemnity applies to the acts or omissions

of the contractor within the scope of the contract, which is for elevator maintenance. That would

include injuries that arise from Centennial’s work on the elevators, not Masaryk’s work in

maintaining its own property.

9. Despite this clear language, Masaryk argues that this provision requires indemnity

because it does not violate the GOL as it contains the limiting language “to the fullest extent

permitted by law.” As interesting as that notion is, this case is not a referendum on what limiting

language is enough to remove an indemnity provision from the proscriptive ambit of the GOL, and

that line of argument is therefore a red herring here. What Centennial actually argued was that,

as a matter of contract construction, the provision at issue should not be read in a way that rendered

the entire provision void, and Masaryk’s interpretation renders the provision void.

10. Masaryk identifies, though without any analysis, several cases where parties to a

construction or maintenance contract lawfully and successfully accomplish risk transfer via broad

contractual indemnity provisions irrespective of the indemnitor’s negligence, and on this basis,

Masaryk claims that it is not required to demonstrate Centennial’s negligence to trigger the

indemnity provision here. However, in all of the cases cited, there exist two conditions that are

absent here: (i) a mechanism of pure vicarious liability, and (ii) an allegation of negligence on the

part of the indemnitor or a third-party.

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11. Specifically, all of the cases cited by Masaryk arise under NYLL §240(1), which

imposes upon a property owner strict liability for falls from heights, or NYLL §241(6), which

imposes upon a property owner vicarious liability for certain construction accidents. In those

cases, the quintessential “pass through” without reference to negligence, the property owner can

rightly look to an applicable contractual indemnification provision from a contractor, to pass

through its liability because the owner is not at fault, and whether or not the contractor is at fault

is not relevant. If the contractor to whom the risk was transferred is actually at fault, then the

transfer stops there. If the contractor is not at fault, but, for example, one of its subcontractors is

at fault, then it is up to the contractor to transfer, if he can, the liability to the subcontractor that

was transferred to him by the owner, and so on. See Karkowski v. 1407 Broadway Real Estate,

LLC, 160 A.D.3d 82, 88 (1st Dep’t 2015)(first-party complaint against vicariously-only liable

property owner arose under NYLL §241(6), and third-party complaint for contractual indemnity

arose pursuant to a contract between a landlord and commercial tenant, which is not a contract for

construction or maintenance and thus is not limited by the GOL); Keena v. Gucci Shops, Inc., 300

A.D.2d 82, 82 (1st Dep't 2002)(complaint against non-negligent property owner arose under

NYLL §240(1), and plaintiff fell from a plank he laid as a makeshift walkway).

12. As this case does not allege any law under which the property owner is absolutely-

or vicariously-only liable, and there exist no third parties who could be negligent, the kind of risk

transfer accomplished in the cases cited is not possible here.

b. A Broad Indemnity Provision Does Not Cause an Indemnitor to Be Liable
for Losses Not Contemplated by the Contract

13. Next, Masaryk argues that the words “ ‘arising out of,’ as used in the subject

indemnification provision, “have broad significance, and are ordinarily understood to mean

originating from, incident to, or having connection with,” referencing Urbina v. 26 Cr St. Assoc.,

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LLC, 46 A.D.3d 268, 273 (1st Dep't 2007). Centennial never argued to the contrary, and the section

of Urbina cited is only helpful to Centennial.

14. In that section, the Urbina Court is citing Brown v Two Exch. Plaza Partners, 146

A.D.2d 129 (1989), affd 76 N.Y.2d 172 (1990), which held that a subcontractor that built a scaffold

was not responsible for its unexplained collapse one week after the owner took acceptance of it.

For, to make the subcontractor liable “without any showing of a particular act or omission in the

performance of such work causally related to the accident, would be to make [the subcontractor]

a virtual insurer of the scaffold . . . responsible for an unexplained collapse of the scaffold at a time

when it had no control over its use or responsibility for its maintenance.” Id. As such, the case

here is far more obvious than Brown, as Centennial did not even maintain or repair the stairs, let

alone build them, but rather, they were a permanent fixture of Masaryk’s building, and the sole

means of access to the elevator motor room.

15. In any case, Masaryk claims that “a contractual indemnification provision which

applies to claims ‘arising out of or in consequence’ is broad enough to apply where plaintiff was

injured while performing the services of the contractor at the time of the accident” and cites Hurley

v. Best Buy Stores, L.P., 57 A.D.3d 239, 239 (1st Dep't 2008). In Hurley, the plaintiff was injured

while performing electrical work on a project for his employer, an electrical contractor, so this

case adds nothing to the analysis, since here, Plaintiff did not injure himself working on the

elevators, nor do any other cases Masaryk cites which appear to concern traditional, appropriate

application of indemnity clauses where the plaintiffs fell from heights or were actually injured by

construction or maintenance work. See Balbuena v New York Stock Exch., Inc., 49 AD3d 374, 376

(1st Dep't 2008)(arising under NYLL §240(1), plaintiff was working on a partially dismantled

scaffold, and the language at issue promised indemnity by the scaffold builder for claims that arose

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out of the work of dismantling the scaffold); Lesisz v. Salvation Army, 40 A.D.3d 1050 (2d Dep't

2007)(arising under NYLL §240(1) and §241(6), plaintiff fell while standing on a ladder doing

work on the roof, and his employer/the indemnitor was contracted to fix the roof).

16. As this claim against Masaryk does not arise based upon Masaryk’s vicarious-only

liability under the NYLL (or any other law), if Masaryk is held liable for Plaintiff’s injuries, it will

necessarily be because Masaryk itself and Masaryk alone was negligent, precluding Masaryk from

obtaining contractual indemnity under this maintenance contract.

II. The Language and Breadth of the Indemnity Provision

17. As to Masaryk’ second argument, that the language of the provision is broad and

not limited to Centennial’s negligent acts, that is also true, but also unhelpful to Masaryk. For, a

“court will not find a duty to indemnify unless a contract manifests a clear and unmistakable intent

to indemnify for particular liabilities.” Millenium Holdings v. Glidden Co., 146 A.D. 539, 545 (1st

Dep’t 2017). “The indemnity obligation will be strictly construed, and additional obligations may

not be imposed beyond the explicit and unambiguous terms of the agreement.” Id.

18. In this case, there is no arguable intent by Centennial to indemnify Masaryk for all

kinds of losses under the sun - - only the foreseeable losses associated with the express

maintenance obligations undertaken in performing elevator maintenance. If, for example, Plaintiff

had been discriminated against or even assaulted by an employee of Masaryk while on the roof on

his way to the elevator room, such claims, even though they be alleged to occur “while” Plaintiff

was working as an elevator mechanic, are not foreseeable consequences of elevator maintenance,

and are therefore not bargained-for risks thereof. Surely Masaryk cannot claim that it would have

tendered a claim for discrimination or assault to Centennial, pointing to the indemnity provision

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in the elevator maintenance contract. There is simply no clear and unmistakable intent to

indemnify Masaryk for the particular liability at issue here.

19. Centennial never claimed that this was due to narrow language. Broad language in

an indemnity provision makes the provision more widely applicable within the context of the

contract, but does not change the context of the contract itself. Such an application defies contract

law as well as fundamental fairness, because a person falling on Masaryk’s property from a rusty

stair breaking off on the roof is not a foreseeable risk of elevator maintenance, is not reflected in

the price of services, and thus, is not a bargained-for risk.

20. In any case, for the reasons cited in Section I, above, no indemnity language, no

matter how broad, can act like an insurance policy by calling for indemnity regardless of the

indemnitee’s negligence; the GOL carve out only allows for indemnity regardless of the

indemnitor’s negligence, which is not at issue in this case.

III. All the AI Coverage Contemplated by the Maintenance Contract was Obtained

21. The rejection of Masaryk’s tender by Centennial’s carrier is not surprising. This

claim did not trigger the provision for contractual indemnity any more than it triggered premises

liability insurance coverage, and rejection of a claim as not covered is not proof that proper

coverage was not obtained. Here, it is clear that Centennial’s GL carrier rejected coverage for the

same reason that Centennial refused contractual indemnity: this accident is not even arguably

contemplated by the terms of the contract and corresponding policy.

IV. Summary Judgment

22. While the absence of a triable question of fact is not necessary to establish

Centennial’s entitlement to dismissal, nevertheless, after paper discovery and the depositions of

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the Plaintiffs and Masaryk’s witnesses, there is no triable issue of fact and Centennial is entitled

to judgment as a matter of law on the third-party complaint.

23. After this motion was made, but before Masaryk’s opposition papers were due,

Plaintiff and his wife, and Masaryk’s employee, Maximo Vazquez, the premises superintendent,

all sat for depositions. Plaintiff of course testified that Centennial had no responsibility for the

stairs, never cleaned inspected or maintained them, was never asked to, and did not repair the stairs

after the accident. He also testified that those were the stairs provided by the building to access to

the motor room, and there was no other way into or out of the motor room except for those stairs.

See Transcript of Pltf’s EBT, September 21, 2021, p. 188 14-18, annexed hereto as Exhibit K.

24. Then, at Masaryk’s deposition, the transcript of which is annexed to Plaintiff’s

affirmation support of this motion at Doc 125, Mr. Vazquez, Masaryk’s building Superintendent,

testified that he alone was responsible for the maintenance and safety of the staircase, at all times

in the last 23 years, and before and after the accident, and that only Masaryk employees remedied

the dangerous condition thereafter:

Q Do you know if anyone in the last 23 years has been responsible for
maintaining that exterior stairways that lead to the elevator control room for any of
those six buildings?
A I'm responsible for the maintenance.
P. 13, 13-18.
Q Did you yourself have any responsibility to maintain any of these stairways
on the rooftop leading to the elevator control room?
A Yes.
Q Are you the only person or is there anyone else?
A I'm the only person.
P. 17, 6-13.
Q Since you've been working at Masaryk Towers since 1993, have you or
anyone, to your knowledge, ever applied any rust inhibitor, rust paint and then paint
to any of these six exterior stairways leading to the control room?
A I have.
Q When was the last time?
A Right after the accident.
Pp. 29, 23-25; 30, 2-7.

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Q Why do you keep the rust off, for what purpose? Is it aesthetics or something
else?
A Maintenance.
Q Why does the rust need to be cleared or taken off, for what purpose?
A To maintain the stairs.
Q Is it to maintain the stairs in a safe condition or something else?
A Maintain in a safe condition.
P. 37, 13-21.
Q If somebody were to make a complaint about the stairways being unsafe, who
would that complaint go to back in August of 2019?
A It would go to me.
Q Anyone else?
A No.
P. 46, 6-11.
Q You testified previously that you had one of your guys that was a welder fix the
step; is that correct?
A Yes.
Q What was his name?
A Miguelito Mota.
Q Did anybody help him?
A Mariano Torres.
Q Miguelito Mota and Mariano Torres, are they both employees of Masaryk and/or
Metro?
A Yes.
Pp. 91, 17-24; 92, 9-11.

25. As Masaryk admits that Masaryk alone and no other person or party is responsible

for the condition of the stairs on which Plaintiff fell, its argument in its opposition papers that

dismissal and/or summary judgment is premature is puzzling. Specifically, Masaryk has expressed

that it should have the deposition of Centennial’s former employee, Gary Granderson, because

“notice” was given to him that there was rust on the stairs. Even if this were true, such rust would

have been as observable to Masaryk as it was to him, and because Masaryk owns and manages the

premises, and Granderson was an employee of Centennial, anything Granderson knows would just

be something that he knows; Centennial cannot be “on notice” in any legal sense of a dangerous

condition on someone else’s property, nor can his knowledge serve to extend Centennial’s

obligations under the contract.

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26. In any case, as demonstrated above, Masaryk’s premises superintendent gave the

obvious testimony that establishes that he alone was the one on actual and constructive notice of

rust on the stairs.

V. Addendum to Reply: Masaryk’s Improper Reply

27. Moments before Centennial filed these papers, Masaryk filed an improper

“Affirmation in Opposition to Motion” which was entitled “Affirmation in Opposition to

Plaintiff’s Affirmation in Support of Third-Party Defendant’s Motion Pursuant to CPLR §3211(a)

and §3211(c).” An affirmation in opposition to a non-moving party’s answering papers is a reply,

and Masaryk does not get to reply on Centennial’s motion when it already submitted opposition

last week. These papers are an improper sur-reply, and should be disregarded and not included on

this record, pursuant to the Court’s rules: “Timely interposition of all papers in accordance with

the CPLR is required, as the Court will not consider the merits of any papers, including opposition,

cross-moving or reply, which appear to have been interposed in an untimely or otherwise

inappropriate manner. The CPLR does not provide for sur-reply papers; the Court will not read

sur-reply papers.”

28. The reply contains new caselaw that was not included in Masaryk’s opposition

papers. Nevertheless, Masaryk’s arguments remain meritless, and the cases it cites remain

inapposite: Greco v. Archdiocese of N.Y., 268 A.D.2d 300, 301-302 (1st Dep’t 2000) arises under

NYLL §240(1), and the property owner in that case was not even able to prevail on summary

judgment because there was a question of fact as to a third-party’s liability for a ladder. Similarly

in Velez v. Tishman Foley Partners, 245 A.D.2d 155, 156 (1st Dep’t 1997) the Court made clear

that contractual indemnity may be appropriate “where an entity is held strictly liable based solely

on its status as owner of the premises pursuant to Labor Law § 240(1), as is here the case.”

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Furthermore, the Court found that the property owner “is entitled to recover [under the contract]

irrespective of whether or not the indemnitor [] was negligent.” This case, nor any other cited by

Masaryk, or any other that Centennial could find, stands for the proposition that an indemnity

provision can be so broadly worded as to make it applicable whether or not the indemnitee was

negligent. As described ad nauseum at this point, such indemnification of an indemnitee in a

maintenance contract is simply not permitted under New York Law.

VI. Sanctions

29. Centennial has unjustly incurred considerable expenses in having to defend this

frivolous action. After filing its initial moving papers on this pre-answer motion, Centennial

attended three party depositions that had been unfortunately scheduled prior to the commencement

of the third-party action, and which were not able to be adjourned.

30. At the conclusion of the deposition of Masaryk’s employee, the superintendent who

testified to the obvious truth that he and his team alone are responsible for the safe condition of

the stairs, and that he and his team alone rewelded the stair the day following the accident,

Centennial advised Masaryk that in light of the law laid out in its moving papers, and the Worker’s

Compensation and General Obligations Laws, and the testimony of Mr. Vazquez, which foreclosed

any possibility that Centennial was responsible for the condition of the stairs, that Centennial

would withdraw its motion if Masaryk would discontinue the frivolous third-party complaint

before Centennial incurred any further costs and attorneys’ fees.

31. Counsel for Centennial further explained that she was not comfortable moving for

sanctions against Masaryk, with whom Centennial does business, or against its attorneys, a well-

respected defense firm. The undersigned asked Masaryk’s counsel to think about it, and instead

of submitting opposition the following week, submit a notice of discontinuance. Masaryk did not

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do this, but submitted opposition, and thereafter advised that it intended to take Centennial’s

deposition, perhaps before this motion was decided, if such a decision took too long.

32. “In considering whether specific conduct is frivolous, courts are required to

examine “whether or not the conduct was continued when its lack of legal or factual basis was

apparent [or] should have been apparent.” 22 NYCRR 130–1.1(c). To the extent that there could

have been any argument that the third-party complaint was not frivolous when it was filed - - which

it was because no facts have since surfaced that Masaryk did not already know - - there can be no

doubt as to its status now.

33. At his deposition, Plaintiff established conclusively that he did not sustain and was

not in danger of sustaining a grave injury. He also established that, as the Centennial route

mechanic for Masaryk’s property, he never did nor was asked to maintain the stairs in question,

that he maintains no stairs for any building anywhere, and that Centennial is exclusively in the

elevator business. At that time, Masaryk was required to at least withdraw its claims for

contribution and common law indemnity, which would have been staring Masaryk in the face as

“completely without merit in law and [un] supported by a reasonable argument for an extension,

modification or reversal of existing law.” 22 NYCRR 130–1.1(c)(1). Instead, Masaryk tacitly

abandoned these claims by failing to address them in its opposition, which seems pointless. In any

case, drafting a third-party complaint which clearly goes out of its way to dance around mentioning

that the third-party defendant is the plaintiff’s employer, simply to attempt to make tort claims

viable on their face, demonstrates that Masaryk was not confused about the facts and not confused

about the law at any time.

34. Finally, whatever reasonable argument could have previously been made for the

viability of the claims pursuant to contract, such reasonable basis certainly evaporated with the

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testimony of Masaryk’s own building superintendent. Despite being offered a chance not only to

cut its losses but be off the hook completely, Masaryk doubled down - - yet again - - stating only

that it did not agree with Centennial’s interpretation of the law and that it would let the Court

decide.

35. Therefore, Centennial emphasizes its applications for costs, fees and expenses,

including attorneys’ fees, and sanctions, and requests a hearing, at which time it will be prepared

to submit proof of such expenditures.

36. This Affirmation is under 7,000 words.

Dated: White Plains, New York
October 11, 2021
______________________________
Alexandra L. Robins

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Document Filed Date

October 11, 2021

Case Filing Date

March 19, 2020

County

Parties

Joseph Itara Plaintiff
MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT Defendant
METRO MANAGEMENT & DEVELOPMENT INC., a/k/a METRO MANAGEMENT DEVEL., INC. Defendant
NOMBERG, BRETT JARROD Attorney for the Plaintiff
PENTOLA, MICHAEL J Attorney for the Defendant
STROMBERG, SUSAN J. Attorney for the Defendant
Tabetha Itara Plaintiff
BRUCE YOUNG Attorneys for Defendants
SUSAN MILLER Attorneys for Plaintiffs
ALEXANDRA ROBINS Attorneys for Defendants

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Document for Joseph Itara, Tabetha Itara v. Masaryk Towers Corporation D/B/A Masaryk Towers Management, Metro Management & Development Inc., A/K/A Metro Management Devel., Inc.

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