Preview
FILED: NEW YORK COUNTY CLERK 09/16/2019 04:09 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 407 RECEIVED NYSCEF: 09/16/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------- -------X
KEVIN McGONIGAL, Motion Scqñêñce No. 007
Plaintiff, Index No. 158327/13
-against -
AFFIRMATION
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION IN PARTIAL
CORP. and BARING INDUSTRIES, INC., OPPOSITION
Defendants. Hon. Margaret A. Chan
__ ________________________________________-------X
PLAZA CONSTRUCTION CORP., Return Date: 9/25/19,
Third-Party Plaintiff,
-against -
TP Index No.:
BARING INDUSTRIES, INC., 595146/14
Third-Party Defendant.
------------- -------____..____------.--------- X
BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff,
-against -
Second TP Index No.:
DAY & NITE REFRIGERATION CORP. and KIMCO 595130/15
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.,
Third Third-Party Defendants.
--------------------------- --X
1 of 5
FILED: NEW YORK COUNTY CLERK 09/16/2019 04:09 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 407 RECEIVED NYSCEF: 09/16/2019
DAVID A. LORE, an attorney duly admitted to the practice of law before the Courts of the State
of New York, hereby affirms the following under the penalty of perjury and pursuant to CPLR §2106:
1. I am a member of the law firm MILBER MAKRIS PLOUSADIS & SEIDEN, LLP,
attorneys for Second Third-Party Defendants, DAY & NITE REFRIGERATION CORP. and K.I.M. CO.
REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP. (collectively referred to as "Day &
Nite"). As such, I am familiar with the facts and circumstances of this matter based upon a review of the
file maintained by this office.
2. I respectfully submit this affirmation in partial opposition to the summary judgment motion
(MSN: 007) made on behalf of Defendants/Third-Party Plaintiff/Third Third-Party Plaintiffs NYY
STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION CORP. (collectively "Plaza"), to the
extent that itseeks the dismissal of plaintiff KEVIN MCGONIGAL'S Labor Law §200 and common law
negligence claims, as well as Day & Nite's cross-claims as against Plaza for common law indemnity and
contribution.
3. Also pending on the Court's motion calendar is the summary judgment motion (MSN:
006) made on behalf of Day & Nite seeking, among other things, the dismissal pursuant to CPLR
§3211(a)(1) and §3212 of BARING INDUSTRIES, INC.'S ("Baring") Second Third-Party Complaint
and any and all claims as against Day & Nite in their entirety. The contents of those motion papers,
including the Preliminary Statement, Procedural History, Statement of Facts and Argument are adopted
in full into these opposition papers and incorporated by reference.
4. While it isthe position of Day & Nite that Baring's third-party claims must be dismissed
due to the forum selection provision in the Baring / Day & Nite contract, the possibility exists, arguendo,
that Day & Nite could be compelled to indemnify Baring in the event of a liability finding as a result of
the broad indemnity provision therein. In that event, Day & Nite would be entitled to seek relief through
its cross-claims as against Plaza, one of the actively negligent parties. As will be discussed below, since
Plaza has not demonstrated itself free from active fault, its request for the dismissal of plaintiff's claims
2
2 of 5
FILED: NEW YORK COUNTY CLERK 09/16/2019 04:09 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 407 RECEIVED NYSCEF: 09/16/2019
and Day & Nite's cross-claims must be denied. At the very least, issues of fact in connection with Plaza's
negligence mandate the denial of its motion in this regard.
5. It isof course well established law that:
"[t]he 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. Giufi·ida v. Citibank Corp., 100
N.Y.2d 72 (2003¾ Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (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
resolution."
of fact that require a trial for Alvarez, supra; Moore v. 3 Phase Equestrian
Center, Inc., 83 A.D.3d 677, 922 N.Y.S.2d 98 (2d Dept. 2011).
6. Extremely important is the basic tenet that the evidence must be viewed in the light most
favorable to Day & Nite, the party opposing Plaza's motion. Avon Elec. Supplies, Inc. v. Baywood Elec.
Corp., 200 A.D.2d 697, 607 N.Y.S.2d 356 (2d Dept. 1994).
7. Plaintiff attributes the alleged accident to three factors; Plaza was ultimately responsible
for cach one of them. These are the unbarricaded clevator pit,the piece of wood debris he tripped over,
and the allegedly poor lighting in the basement corridors of the building. Annexed to Plaza's motion as
"M"
Exhibit is the deposition transcript of George Usher, Plaza's project superintendent. Mr. Usher's
testimony, at the very least, raises issues of fact in connection with Plaza's negligence with respect to its
failure to remedy these allegedly hazardous conditions and ensure a safe work site for its subcontractors.
"safety" 7-
8. Mr. Usher testified that Plaza was required to provide at the site. (p. 26, lines
11). In September, 2013, when plaintiff's accident occurred, Mr. Usher's practice was to walk the entire
day"
site "all and make visual inspections of what was occurring, for the purposes of "construction, safety
manpower."
and (p. 39, lines 2-4). He had stop work authority in the event of a dangerous work practice
or condition. (p. 41, lines 13-23). Plaza also had two to three laborers and a shop steward on site. (p.42,
laborers'
lines 5-8). The duties consisted of cleaning and housekeeping, including the removal of debris,
care" hole."
and "taking of unsafe conditions, "such as a (p. 43, lines 2-16). Plaza was responsible for
cleaning up any debris in the area of the accident. (pgs. 133-134).
3
3 of 5
FILED: NEW YORK COUNTY CLERK 09/16/2019 04:09 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 407 RECEIVED NYSCEF: 09/16/2019
9. Any safeguarding of holes or floor openings was done by the labor force for Plaza. (pgs.
54-55). If any such safeguarding such as barricades was removed by a subcontractor in order to perform
work, that subcontractor was required to replace it. (p. 55, lines 3-5). The removal of such protection was
one of the things that Mr. Usher looked for as he performed his walk-throughs. (p. 55, lines 6-9).
10. As for the elevator pit involved in the accident, Mr. Usher testified that when the pit had
first been created, at least one month prior to the accident date, Plaza workers had covered itwith planking
and plywood. (pgs. 93-95). Other than the planking and the plywood, no safeguards were present with
respect to the pit. (p. 98, lines 9-21). When Mr. Usher arrived at the scene of the accident approximately
20 minutes after itoccurred, the pit was uncovered and equipment was being stored inside of it. (pgs.
123-124).
11. Mr. Usher's admissions establish that Plaza was responsible for remedying the specific
conditions that plaintiff claims caused his accident. This is particularly so with respect to the unbarricaded
pit and the wooden debris over which plaintiff tripped. Plaza has not made out a prima facie case in its
motion papers that itwas not, at the very least, on constructive notice of these conditions as no evidence
was submitted as to when the subject basement corridors were last inspected or even visited by Plaza
personnel prior to the accident. The most Plaza can proffer in this regard is Mr. Usher's testimony that
the lasttime he walked by the area where the accident occurred was the day before, or some indeterminate
time even before that. (p. 97, lines 8-15). This is obviously meaningless and states nothing.
condition"
12. Under the "dangerous prong of Labor Law §200, a contractor such as Plaza may
be held liable ifit either created the condition or had actual or constructive notice of it. Cappabianca v.
(1"
Skanska USA Bldg. Inc., 99 A.D.3d 139, 950 N.Y.S.2d 35 Dept. 2012). Plaza's failure to establish,
prima facie, that itlacked constructive notice of the various dangerous conditions claimed by plaintiff
mandate the denial of its motion in this regard. White v. Village of Port Chester, 92 A.D.3d 872, 940
N.Y.S.2d 94 (2d Dept. 2012). To demonstrate that itlacked constructive notice of the claimed dangerous
conditions (i.e.the wood debris, the uncovered pit), Plaza was required to submit evidence of the cleaning
4
4 of 5
FILED: NEW YORK COUNTY CLERK 09/16/2019 04:09 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 407 RECEIVED NYSCEF: 09/16/2019
schedule for the work site or when the site had last been inspected before the accident. Pereira v. New
(18t
School, 148 A.D.3d 410, 48 N.Y.S.3d 391 Dept. 2017). Plaza has not submitted any such evidence.
13. As a result, and when viewing the evidence in a light most favorable to Day & Nite, as the
Court must, at the very least issues of fact exist in connection with Plaza's active negligence. This not
only mandates the denial of Plaza's request for summary judgment on plaintiff's Labor Law §200 and
common law negligence claims, itmandates the denial of Plaza's request for the dismissal of Day & Nite's
79th (1st
cross-claims. Canty v. 133 East Street, LLC, 167 A.D.3d 548, 91 N.Y.S.3d 98 Dept. 2018); Weitz
v. Anzek Const. Corp., 65 A.D.3d 678, 885 N.Y.S.2d 314 (2d Dept. 2009).
WHEREFORE, itis respectfully requested that the Court issue an Order: A) denying Plaza's
motion to the extent itseeks the dismissal of plaintiff's Labor Law §200 and common law negligence
claims, B) denying Plaza's motion to the extent it seeks the dismissal of Day & Nite's cross-claims, and
C) awarding such other and further relief as the Court deems just and proper.
Dated: Woodbury, NY
September 16, 2019
avid A. LoRe, Esq.
5
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 09/16/2019 04:09 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 407 RECEIVED NYSCEF: 09/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------- -------X KEVIN McGONIGAL, Motion Scqñêñce No. 007 Plaintiff, Index No. 158327/13 -against - AFFIRMATION NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION IN PARTIAL CORP. and BARING INDUSTRIES, INC., OPPOSITION Defendants. Hon. Margaret A. Chan __ ________________________________________-------X PLAZA CONSTRUCTION CORP., Return Date: 9/25/19, Third-Party Plaintiff, -against - TP Index No.: BARING INDUSTRIES, INC., 595146/14 Third-Party Defendant. ------------- -------____..____------.--------- X BARING INDUSTRIES, INC., Second Third-Party Plaintiff, -against - Second TP Index No.: DAY & NITE REFRIGERATION CORP. and KIMCO 595130/15 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., Third Third-Party Defendants. --------------------------- --X 1 of 5 FILED: NEW YORK COUNTY CLERK 09/16/2019 04:09 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 407 RECEIVED NYSCEF: 09/16/2019 DAVID A. LORE, an attorney duly admitted to the practice of law before the Courts of the State of New York, hereby affirms the following under the penalty of perjury and pursuant to CPLR §2106: 1. I am a member of the law firm MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, attorneys for Second Third-Party Defendants, DAY & NITE REFRIGERATION CORP. and K.I.M. CO. REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP. (collectively referred to as "Day & Nite"). As such, I am familiar with the facts and circumstances of this matter based upon a review of the file maintained by this office. 2. I respectfully submit this affirmation in partial opposition to the summary judgment motion (MSN: 007) made on behalf of Defendants/Third-Party Plaintiff/Third Third-Party Plaintiffs NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION CORP. (collectively "Plaza"), to the extent that itseeks the dismissal of plaintiff KEVIN MCGONIGAL'S Labor Law §200 and common law negligence claims, as well as Day & Nite's cross-claims as against Plaza for common law indemnity and contribution. 3. Also pending on the Court's motion calendar is the summary judgment motion (MSN: 006) made on behalf of Day & Nite seeking, among other things, the dismissal pursuant to CPLR §3211(a)(1) and §3212 of BARING INDUSTRIES, INC.'S ("Baring") Second Third-Party Complaint and any and all claims as against Day & Nite in their entirety. The contents of those motion papers, including the Preliminary Statement, Procedural History, Statement of Facts and Argument are adopted in full into these opposition papers and incorporated by reference. 4. While it isthe position of Day & Nite that Baring's third-party claims must be dismissed due to the forum selection provision in the Baring / Day & Nite contract, the possibility exists, arguendo, that Day & Nite could be compelled to indemnify Baring in the event of a liability finding as a result of the broad indemnity provision therein. In that event, Day & Nite would be entitled to seek relief through its cross-claims as against Plaza, one of the actively negligent parties. As will be discussed below, since Plaza has not demonstrated itself free from active fault, its request for the dismissal of plaintiff's claims 2 2 of 5 FILED: NEW YORK COUNTY CLERK 09/16/2019 04:09 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 407 RECEIVED NYSCEF: 09/16/2019 and Day & Nite's cross-claims must be denied. At the very least, issues of fact in connection with Plaza's negligence mandate the denial of its motion in this regard. 5. It isof course well established law that: "[t]he 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. Giufi·ida v. Citibank Corp., 100 N.Y.2d 72 (2003¾ Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (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 resolution." of fact that require a trial for Alvarez, supra; Moore v. 3 Phase Equestrian Center, Inc., 83 A.D.3d 677, 922 N.Y.S.2d 98 (2d Dept. 2011). 6. Extremely important is the basic tenet that the evidence must be viewed in the light most favorable to Day & Nite, the party opposing Plaza's motion. Avon Elec. Supplies, Inc. v. Baywood Elec. Corp., 200 A.D.2d 697, 607 N.Y.S.2d 356 (2d Dept. 1994). 7. Plaintiff attributes the alleged accident to three factors; Plaza was ultimately responsible for cach one of them. These are the unbarricaded clevator pit,the piece of wood debris he tripped over, and the allegedly poor lighting in the basement corridors of the building. Annexed to Plaza's motion as "M" Exhibit is the deposition transcript of George Usher, Plaza's project superintendent. Mr. Usher's testimony, at the very least, raises issues of fact in connection with Plaza's negligence with respect to its failure to remedy these allegedly hazardous conditions and ensure a safe work site for its subcontractors. "safety" 7- 8. Mr. Usher testified that Plaza was required to provide at the site. (p. 26, lines 11). In September, 2013, when plaintiff's accident occurred, Mr. Usher's practice was to walk the entire day" site "all and make visual inspections of what was occurring, for the purposes of "construction, safety manpower." and (p. 39, lines 2-4). He had stop work authority in the event of a dangerous work practice or condition. (p. 41, lines 13-23). Plaza also had two to three laborers and a shop steward on site. (p.42, laborers' lines 5-8). The duties consisted of cleaning and housekeeping, including the removal of debris, care" hole." and "taking of unsafe conditions, "such as a (p. 43, lines 2-16). Plaza was responsible for cleaning up any debris in the area of the accident. (pgs. 133-134). 3 3 of 5 FILED: NEW YORK COUNTY CLERK 09/16/2019 04:09 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 407 RECEIVED NYSCEF: 09/16/2019 9. Any safeguarding of holes or floor openings was done by the labor force for Plaza. (pgs. 54-55). If any such safeguarding such as barricades was removed by a subcontractor in order to perform work, that subcontractor was required to replace it. (p. 55, lines 3-5). The removal of such protection was one of the things that Mr. Usher looked for as he performed his walk-throughs. (p. 55, lines 6-9). 10. As for the elevator pit involved in the accident, Mr. Usher testified that when the pit had first been created, at least one month prior to the accident date, Plaza workers had covered itwith planking and plywood. (pgs. 93-95). Other than the planking and the plywood, no safeguards were present with respect to the pit. (p. 98, lines 9-21). When Mr. Usher arrived at the scene of the accident approximately 20 minutes after itoccurred, the pit was uncovered and equipment was being stored inside of it. (pgs. 123-124). 11. Mr. Usher's admissions establish that Plaza was responsible for remedying the specific conditions that plaintiff claims caused his accident. This is particularly so with respect to the unbarricaded pit and the wooden debris over which plaintiff tripped. Plaza has not made out a prima facie case in its motion papers that itwas not, at the very least, on constructive notice of these conditions as no evidence was submitted as to when the subject basement corridors were last inspected or even visited by Plaza personnel prior to the accident. The most Plaza can proffer in this regard is Mr. Usher's testimony that the lasttime he walked by the area where the accident occurred was the day before, or some indeterminate time even before that. (p. 97, lines 8-15). This is obviously meaningless and states nothing. condition" 12. Under the "dangerous prong of Labor Law §200, a contractor such as Plaza may be held liable ifit either created the condition or had actual or constructive notice of it. Cappabianca v. (1" Skanska USA Bldg. Inc., 99 A.D.3d 139, 950 N.Y.S.2d 35 Dept. 2012). Plaza's failure to establish, prima facie, that itlacked constructive notice of the various dangerous conditions claimed by plaintiff mandate the denial of its motion in this regard. White v. Village of Port Chester, 92 A.D.3d 872, 940 N.Y.S.2d 94 (2d Dept. 2012). To demonstrate that itlacked constructive notice of the claimed dangerous conditions (i.e.the wood debris, the uncovered pit), Plaza was required to submit evidence of the cleaning 4 4 of 5 FILED: NEW YORK COUNTY CLERK 09/16/2019 04:09 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 407 RECEIVED NYSCEF: 09/16/2019 schedule for the work site or when the site had last been inspected before the accident. Pereira v. New (18t School, 148 A.D.3d 410, 48 N.Y.S.3d 391 Dept. 2017). Plaza has not submitted any such evidence. 13. As a result, and when viewing the evidence in a light most favorable to Day & Nite, as the Court must, at the very least issues of fact exist in connection with Plaza's active negligence. This not only mandates the denial of Plaza's request for summary judgment on plaintiff's Labor Law §200 and common law negligence claims, itmandates the denial of Plaza's request for the dismissal of Day & Nite's 79th (1st cross-claims. Canty v. 133 East Street, LLC, 167 A.D.3d 548, 91 N.Y.S.3d 98 Dept. 2018); Weitz v. Anzek Const. Corp., 65 A.D.3d 678, 885 N.Y.S.2d 314 (2d Dept. 2009). WHEREFORE, itis respectfully requested that the Court issue an Order: A) denying Plaza's motion to the extent itseeks the dismissal of plaintiff's Labor Law §200 and common law negligence claims, B) denying Plaza's motion to the extent it seeks the dismissal of Day & Nite's cross-claims, and C) awarding such other and further relief as the Court deems just and proper. Dated: Woodbury, NY September 16, 2019 avid A. LoRe, Esq. 5 5 of 5