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FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------X
KEVIN McGONIGAL, REPLY
AFFIRMATION
Plaintiff,
Index No. 158327/13
-against-
Hon. Margaret Chan
NYY STEAK MANHATTAN, LLC,
PLAZA CONSTRUCTION CORP. and Return date: 10/22/19
BARING INDUSTRIES, INC.
Defendants.
-----------------------------------------------------------X
PLAZA CONSTRUCTION CORP.,
Third-Party Plaintiff, Third-Party Index No.:
595146/2014
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
-----------------------------------------------------------X
BARING INDUSTRIES, INC.,
Second-Third-Party Plaintiff, Second-Third-Party
Index No.: 595130/15
-against-
DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP.
Second-Third-Party Defendants.
-----------------------------------------------------------X
NYY STEAK MANHATTAN, LLC, & PLAZA
CONSTRUCTION LLC f/k/a PLAZA
CONSTRUCITON CORP.
Third Third-Party Plaintiffs, Third-Third Party
Index No.
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACCOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.
Third Third-Party Defendants.
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Nikolaos E. Diamantis, an attorney duly admitted to practice law before the courts
of the State of New York, affirms the following to be true under penalties of perjury pursuant to
New York Civil Practice Law and Rules § 2106:
1. I am associated with the Law Office of Tromello & Fishman, attorneys for
Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third-Third Party Defendant
BARING INDUSTRIES, INC., (hereinafter "BARING") and as such I am fully familiar with the
facts and circumstances of the within action based upon a review of the file maintained by my
office and my handling of this litigation.
2. I submit this affirmation, in reply to NYY STEAK MANHATTAN, LLC
(hereinafter "NYY") and PLAZA CONSTRUCTION CORP. (hereinafter "PLAZA") affirmation
in opposition to BARING's motion for summary judgment and in further support of BARING'S
motion for summary judgment dismissing all claims and cross-claims, and granting the BARING
summary judgment on its contractual indemnity claims against Second Third-Party Defendant
DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. (hereinafter
collectively as "DAY & NIGHT") and dismissal of Defendant/Third-Third Party Plaintiff NYY
STEAK MANHATTAN, LLC (herein after "NYY") and Defendant/Third-Party Plaintiff/Third
Third-Party Plaintiff PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCITON CORP.
(hereinafter "PLAZA") claims.
POINT I
NYY HAS FAILED TO ESTABLISH
ENTITLEMENT TO CONTRACTUAL INDEMNTIY
3. Pursuant to the Dormitory Auth v. Samson Construction Co. 30 N.Y.3d 704
(2018), the Court of Appeals held:
"[A] third party may sue as a beneficiary on a contract made for [its]
benefit. However, an intent to benefit the third party must be shown,
and, absent such intent, the third party is merely an incidental
contracts"
beneficiary with no right to enforce the particular (Port
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Chester Elec. Constr. Corp. v. Atlas, 40 N.Y.2d 652, 655, 389
N.Y.S.2d 327, 357 N.E.2d 983 [1976] [citations omitted] ). We have
previously sanctioned a third party's right to enforce a contract in two
situations: when the third party is the only one who could recover for
the breach of contract or when it is otherwise clear from the language
of the contract that there was "an intent to permit enforcement by the
party"
third (Fourth Ocean Putnam Corp. v. Interstate Wrecking Co.,
66 N.Y.2d 38, 45, 495 N.Y.S.2d 1, 485 N.E.2d 208 [1985] ).
With respect to construction contracts, we have generally required
express contractual language stating that the contracting parties
intended to benefit a third party by permitting that third party "to
another"
enforce [a promisee's] contract with (Port Chester, 40 N.Y.2d
at 656, 389 N.Y.S.2d 327, 357 N.E.2d 983). In the absence of express
language, "[s]uch third parties are generally considered mere
beneficiaries"
incidental (40 N.Y.2d at 656, 389 N.Y.S.2d 327, 357
N.E.2d 983). Emphaisis added.
4. In this case, NYY admittedly did not contract with BARING for the work at
the project. Thus, making them a third-party to PLAZA-BARING contract. Despite NYY
counsel claiming that NYY is not a third-party to the contract, clearly they are.
5. Based on the unambiguous language of the Dormitory Authority case the Court
specifically established the elements which must be met in order for a third-party beneficiary to
enforce a contract. Based on the precedent established in the Dormitory Authority case, it is
clear that NYY is an incidental beneficiary of the agreement between Plaza and Baring and lacks
the requisite authority to enforce the agreement against Baring.
6. Although NYY is named as indemnity under the PLAZA-BARING contract,
said agreement lacks one of the required elements of the Dormitory Authority case, which
requires express language giving NYY the right to enforce the terms of the agreement against
Baring. Clearly, there is no such language which is evident by NYY's failure to come forward
with the requisite language its opposition papers to your affirmant's motion.
7. As such, since NYY is not a third-party to the contract the PLAZA-BARING
contract and has failed to meet the requirements as established under the Dormitory Authority
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NYY claims against must be dismissed as a matter of as well as all cross-
case, Baring law,
claims against Baring.
POINT H
PLAZA WAS SOLELY NEGLIGNT FOR THE HAPPENING
OF THIS ACCIDENT NEGATING ITS CLAIMS FOR
COMMON LAW AND CONTRACTUAL INDEMNITY
8. PLAZA is falsely seeking to hide behind the alleged act of its subcontractor in
an effort to evade negligence herein. However, this nothing more than a desperate act by PLAZA
and their counsel with the submissions of a subsequent affidavit of George Usher in an effort to
create a feigned issue of fact. In an intrest of judicial economy and without belaboring the Court
with duplicative arguments, your affirmant incorporates and adopts by reference the arguments
in Ess & Vee's Affirmation in Opposition to NYY/PLAZA's Motion for Summary Judgement
by Robert J. Paliseno, Esq. dated August 19, 2019 which goes into great detail outlining the
inconsistencies between Usher's affidavit and his testimony in this case. As such, the Court
should entirely disregarding USHERS affidavit herein and not be considered in support of NYY
and PLAZA's motion for summary judgment. See Kistoo v. City of New York, 195 A.D.2d 403
(1³' (2"d
Dep't 1993), French v. Chffs Place, 125 A.D.2d 292, 508 N.Y.S.2d 577 Dep't 1986).
9. It is clear that a party seeking contractual indemnification must prove itself
free from negligence, because to the extents itsnegligence contributed to the accident, it cannot
be indemnified therefore. See Bellefleur v. Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 888
(2""
N.Y.S.2d 81 Dep't 2009).
10. In the subject case, the language in the contract between Plaza and Baring
pertaining to indemnity states as follows:
To the extent permitted by law, Subcontractor shall indemnify, defend,
save and hold harmless the Owner, the Construction Manager,
landlord, Building Management and Architect...harmless from and
against all liability, damage, loss, claims, demands and actions of any
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nature whatsoever which arise out of or are connected with or are
claimed to arise out of or be connected with:
The performance of Work the or of its Sub-
1) by Subcontractor, any
Subcontractors, any act or omission of any of the foregoing;
2) Any accident or occurrence which happens, or is alleged to have
happened, in or about the place where such Work is being performed
or in the vicinity 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 aresult of the performance of the Work; or
3) The use, misuse, erection, maintenance, operation or failure of any
machinery or equipment (including but not limited to, scaffolds,
derricks, ladders, hoists, rigging supports etc.) whether or not such
machinery or equipment was furnished, rented or loaned by the
Owner, the Construction Manager or their officers, employees, agents,
servants or others to the Subcontractor. See Exhibit "Q". General
Conditions Article 9A.
A.D.3'd
11. The case of Giangarra v. Pav-Lak Contracting, Inc., 55 869, 871,
(2""
866 N.Y.S.2d 332 Dep't, 2008) states that a party seeking indemnity must be free of
negligence and cannot be indemnified for its own negligence. In this case, there is clearly
evidence as to the affirmative negligence of third-party plaintiff Plaza, who as the general
contractor/construction manager, was charged with overall safety of the work, was responsible
for debris clean up at the site,as well as responsible for protection work at the site.
12. Pursuant to the testimony of George Usher, he was responsible for walking
the siteand visually inspecting same for construction, safety and manpower issues. (Exhibit K to
BARING's Motion for Summary Judgment at p. 39). He would perform walkthroughs of the
entire jobsite on a daily basis and perform walkthroughs with the foremen of Plaza's
subcontractors to remain advised of all construction activities. (See id at p.p. 39- 40). Plaza had
the authority to correct any dangerous conditions on site. (See id. at pp. 37-38, 41, 43 and 49).
Plaza's laborers were responsible for housekeeping and cleaning of the jobsite. (See id. at pp.
42-43 and 72). Plaza's laborers would remove construction debris from the site and were
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instructed to unsafe conditions if same were discovered.(See id. at pp. 49 and 133-
remedy 43,
134). This duty to clean and remove construction debris extended to all areas of the jobsite
including the area where the accident occurred. Emphasis added (See id. at p. 73).
13. Further, the testimony is clear that Plaza installed the barricades and other
perimeter protections around the jobsite and was responsible for protecting all openings,
barricades around the openings or wood over the openings. (See id. at pp. 54-
installing placing
55). Usher would check the site for safety issues and to ensure that safe work practices were
being followed. (See id. at pp. 27-28). After the subject pit was constructed, Plaza laid planking
over the pit using OSHA approved planks. Plaza then laid plywood planks over the underlying
planks which overlapped onto the concrete surrounding the pit. (See id. at pp. 95-96).
14. In this case, Baring has established that they are free from negligence as they
neither had any responsibilities for debris clean up, protection work, or lighting at this site.
Further, Baring was not on site on the date of the accident, did not direct or control the plaintiff's
work, and never directed or controlled the means and method for the delivery into the worksite.
Based on the evidence in this case, itis alleged by plaintiff tripped on debris while delivering the
condenser into the basement causing him to lose his balance and fallinto an unguarded pit/hole.
It is undisputed that Plaza alone had the responsibility to clean debris form the site and was
responsible for protection work. Based on the facts, Plaza's failure to perform their contractual
responsibilities at this site was the proximate cause of plaintiff's accident.
15. Based on evidence in this case which clearly establishes Plaza's negligence,
Plaza cannot enforce the contractual indemnity agreement against Baring (either for full
contractual indemnity or conditional) and as such, Plaza claims for contractual indemnification
must be dismissed.
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POINT III
BARING IS NOT NEGLIGENT IN THE HAPPENING OF THIS ACCIDENT
16. It isundisputed that plaintiff fellwhile delivering a condenser on sitewith his
foreman Gomez. It isalleged that plaintiff tripped on debris and fell into an uncovered pit at the
location. There is no evidence that Baring either directed or controlled plaintiff's work at this
site, nor that they directed him to work in any manner, on that day. Further, Baring did not
provide him with any equipment at this site, did not direct the means and methods of the delivery
of the condenser and did not direct him to work anywhere on the jobsite that day. Thus, there
are no facts to support plaintiff's claims that the Baring caused or created any condition which is
alleged to have caused plaintiff's accident. The testimony is clear that Plaza alone was
responsible to the clean-up of debris on site, as well as protection work. If itis found that either
the debris or lack of protection was a proximate cause of plaintiff's accident, there is absolutely
no basis to support any negligence claims against Baring as the testimony is clear that Baring had
absolutely nothing to do with same, and they must be dismissed.
17. "To make out a prima facie case of negligence under New York law, itmust
be established that the defendant 1) created the condition which proximately caused the injury or
it."
2) had actual or constructive notice of the hazardous condition and failed to correct Olesky
v. AMTRAK, 1999 U.S. Dist. LEXIS 12099 (S.D.N.Y. 1999); Piacquadio v. Recine Realty
Corp., 84 N.Y.2d 967 (1994). It is incumbent upon the plaintiff to demonstrate the "identity of
the persons to whom notice of the condition was allegedly given and when and how it was
given."
Carlos v. New Rochelle Municipal Housing Authority, 262 A.D.2d 515 (2d Dep't 1999).
18. The Court of Appeals has reiterated the well-settled standard that, "[t]o
constitute constructive notice, a defect must be visible and apparent and it must exist for a
sufficient length of time prior to the accident to permit defendant's employees to discover and
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it."
remedy Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986). "To impose
liability on a defendant for...an allegedly dangerous condition..., there must be evidence that the
dangerous condition existed, and that the defendant either created the condition or had actual or
time."
constructive notice of it and failed to remedy it within a reasonable Moody v. F.W.
Woolworth Co., 288 A.D.2d 446 (2d Dep't 2001). Considering the facts of this case, Baring did
not have the requisite notice of any alleged defective condition that caused or contributed to
plaintiff's accident nor is there any evidence that Baring caused plaintiff's accident.
19. In order to recover for a defective condition, plaintiff must demonstrate that
the defendants created the defective condition or had actual or constructive notice of the
condition and a reasonable opportunity to cure the defect. See, Penn v. Fleet Bank, 12 A.D.3d
(1"
584 (2d Dep't 2004); Ramos v. HSBC Bank, 29 A.D.3d 435 Dep't 2006) (Plaintiff failed to
raise a triable issue of fact regarding actual or constructive notice of any defective condition).
20. Notice of the condition, either actual or constructive, is essential to liability.
A defendant is not liable for injuries sustained due to a defect on the premises unless the
defendant had actual or constructive notice thereof for such a reasonable period of time, that in
the exercise of reasonable care, one could have corrected it. Trujillo v. River bay Com., 153
(I"
A.D.2d 793 Dept. 1989).
21. To establish actual notice, the defendant must be aware of the dangerous or
defective condition so as to provide him or her with personal knowledge of the condition. When
there is no indication that the defendant created the dangerous condition or had actual notice of
it,the plaintiff must establish constructive notice. To constitute constructive notice of a defect,
case law clearly dictates that various elements must be established:
1) The condition must be dangerous or defective, and
2) The condition must be visible and apparent, and
3) The condition must exist for a sufficient length of time prior to the
accident to permit defendant to discover and remedy it.
See, Negri v. Stop & Shop, 65 N.Y.2d 625 (1985).
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22. There is absolutely no evidence that Baring created any alleged condition.
First, Baring was not present on the site on the date of the accident. Second, Baring did not have
any responsibility for debris clean up (the evidence has established that Plaza was solely
responsible for debris clean up). Third, Baring did not store their materials in the subject pit and
did not have any protection responsibilities at this site (another responsibility for Plaza).
23. Further, PLAZA's claims that the BARING was responsible for clean-up of
"worksite"
the its are without merit. The evidence is clear that the hallway, where plaintiff's
accident occurred was approximately 20 feet away from the area where the condenser was being
installed. In fact, based on the plaintiff's own testimony, no trades were working in the location
of the hallway where plaintiff's accident occurred. In addition, BARING's clean up obligations
work"
only related to "its portion of the and BARING did not have any duty or obligation to
clean up debris made by others at the jobsite and certainly did not have any protection
responsibilities at this job site. As such, NYY and PLAZA's attempts to find negligence against
BARING must fail as there is absolutely no evidence that BARING had any responsibility over
the subject defects (i.e. uncovered opening and/or debris made by others). As a result, allclaim
relating to BARING's negligence herein are without merit and baseless and all claims for
negligence and common law indemnity must be dismissed.
POINT IV
NYY AND PLAZA'S BREACH OF CONTRACT CLAIMS ARE WITHOUT MERIT
24. NYY and Plaza allege breach of contract against Baring for failure to procure
insurance. However, insurance was purchased by Baring and exchanged with the parties during
discovery evidencing that proper insurance was secured by Baring for this project.
25. In its Response to Notice for Discovery and Inspection dated October 25,
2016, Baring policies were disclosed to all parties. A copy of said discovery response is
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"A"
attached was attached as Exhibit to your affirmant's Affirmation in Opposition to NYY and
PLAZA's motion for summary judgment. Pursuant to the discovery exchange, BARING was
afford insurance coverage by National Fire Insurance of Hartford under policy C2092169725 for
the period of 1/15/2013 - 1/15/2014 for $1 Mil per occurrence and $2 Mil in the aggregate. In
addition, a copy of BARING's umbrella policy was disclosed with limits up to $10 Mil under
policy C2092169708 also provided by National Fire Insurance of Hartford for the same policy
period.
26. Clearly there was sufficient insurance coverage to satisfy the contractual
obligation under the PLAZA contract. If it isPLAZA's argument that BARING did provide the
specific coverage as dictated under the contract, same is without consequence as the umbrella
policy contains enough limits to satisfy the obligation. Further, there is no prejudice to PLAZA.
27. As a result of the facts of this case, NYY and Plaza's breach of contract
claims must be dismissed in their entirety as Baring has fulfilled itsobligation under the contract
and actually provided more coverage than required to. As such, PLAZA motion for breach of
contract must be denied.
WHEREFORE, itis respectfully requested that the court issue an Order pursuant
to CPLR §§ 3211(a)[1], 3212 and 306-b, granting summary judgment to defendant/Third-Party
Defendant/Third-Third Party Defendant BARING INDUSTRIES, INC., dismissing all claims
and cross-claims against them, and granting summary judgment to Defendant/Third-Party
Defendant/Second Third-Party Plaintiff/Third-Third Party Defendant BARING INDUSTRIES,
INC., on its contractual indemnity claims against Second Third-Party Defendant DAY & NITE
REFRIGERATION CORP. and KIMCO REFRIGERATION CORP.; an order dismissing the
claims of Defendant/Third-Third Party Plaintiff NYY STEAK MANHATTAN, LLC and
Defendant/Third-Party Plaintiff/Third Third-Party Plaintiff PLAZA CONSTRUCTION LLC
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f/k/a PLAZA CONSTRUCITON CORP., along with such other and further relief as this Court
may deem just and proper.
Dated: Melville, New York
October 21, 2019
Nikolaos E. Di=rns
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------X
KEVIN McGONIGAL,
Plaintiff, INDEX NO.: 158327/13
-against-
NYY STEAK MANHATTAN, LLC,
PLAZA CONSTRUCTION CORP. and
BARING INDUSTRIES, INC.
Defendants.
-----------------------------------------------------------X
(AND THIRD PARTY ACTIONS)
REPLY AFFIRMATION
LAW OFFICES OF TROMELLO & FISHMAN
Attorneys for Baring Industries, Inc.
395 North Service Road
P.O. Box 9038
Melville, NY 11747
Telephone 631-577-2400
Fax 631-577-2401
Service of a copy of the within
is hereby admitted.
Dated:
Attorney(s) for
PLEASE TAKE NOTICE
[ ]NOTICE OF ENTRY
thatthe within isa (certified)
true copy of a
entered inthe officeof the clerkof the within named court on , 20
[ ]NOTICE OF SETTLEMENT
thatan Order of which the within isa true copy willbe presented for settlementto the
Hon. one of thejudges of the within named Court, at
on , 20 , at 9:30a.m.
Dated: Melville, NY
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Preview
FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------X KEVIN McGONIGAL, REPLY AFFIRMATION Plaintiff, Index No. 158327/13 -against- Hon. Margaret Chan NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and Return date: 10/22/19 BARING INDUSTRIES, INC. Defendants. -----------------------------------------------------------X PLAZA CONSTRUCTION CORP., Third-Party Plaintiff, Third-Party Index No.: 595146/2014 -against- BARING INDUSTRIES, INC., Third-Party Defendant. -----------------------------------------------------------X BARING INDUSTRIES, INC., Second-Third-Party Plaintiff, Second-Third-Party Index No.: 595130/15 -against- DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. Second-Third-Party Defendants. -----------------------------------------------------------X NYY STEAK MANHATTAN, LLC, & PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCITON CORP. Third Third-Party Plaintiffs, Third-Third Party Index No. -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACCOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC. Third Third-Party Defendants. -----------------------------------------------------------X 1 of 12 FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 Nikolaos E. Diamantis, an attorney duly admitted to practice law before the courts of the State of New York, affirms the following to be true under penalties of perjury pursuant to New York Civil Practice Law and Rules § 2106: 1. I am associated with the Law Office of Tromello & Fishman, attorneys for Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third-Third Party Defendant BARING INDUSTRIES, INC., (hereinafter "BARING") and as such I am fully familiar with the facts and circumstances of the within action based upon a review of the file maintained by my office and my handling of this litigation. 2. I submit this affirmation, in reply to NYY STEAK MANHATTAN, LLC (hereinafter "NYY") and PLAZA CONSTRUCTION CORP. (hereinafter "PLAZA") affirmation in opposition to BARING's motion for summary judgment and in further support of BARING'S motion for summary judgment dismissing all claims and cross-claims, and granting the BARING summary judgment on its contractual indemnity claims against Second Third-Party Defendant DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. (hereinafter collectively as "DAY & NIGHT") and dismissal of Defendant/Third-Third Party Plaintiff NYY STEAK MANHATTAN, LLC (herein after "NYY") and Defendant/Third-Party Plaintiff/Third Third-Party Plaintiff PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCITON CORP. (hereinafter "PLAZA") claims. POINT I NYY HAS FAILED TO ESTABLISH ENTITLEMENT TO CONTRACTUAL INDEMNTIY 3. Pursuant to the Dormitory Auth v. Samson Construction Co. 30 N.Y.3d 704 (2018), the Court of Appeals held: "[A] third party may sue as a beneficiary on a contract made for [its] benefit. However, an intent to benefit the third party must be shown, and, absent such intent, the third party is merely an incidental contracts" beneficiary with no right to enforce the particular (Port 2 2 of 12 FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 Chester Elec. Constr. Corp. v. Atlas, 40 N.Y.2d 652, 655, 389 N.Y.S.2d 327, 357 N.E.2d 983 [1976] [citations omitted] ). We have previously sanctioned a third party's right to enforce a contract in two situations: when the third party is the only one who could recover for the breach of contract or when it is otherwise clear from the language of the contract that there was "an intent to permit enforcement by the party" third (Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 45, 495 N.Y.S.2d 1, 485 N.E.2d 208 [1985] ). With respect to construction contracts, we have generally required express contractual language stating that the contracting parties intended to benefit a third party by permitting that third party "to another" enforce [a promisee's] contract with (Port Chester, 40 N.Y.2d at 656, 389 N.Y.S.2d 327, 357 N.E.2d 983). In the absence of express language, "[s]uch third parties are generally considered mere beneficiaries" incidental (40 N.Y.2d at 656, 389 N.Y.S.2d 327, 357 N.E.2d 983). Emphaisis added. 4. In this case, NYY admittedly did not contract with BARING for the work at the project. Thus, making them a third-party to PLAZA-BARING contract. Despite NYY counsel claiming that NYY is not a third-party to the contract, clearly they are. 5. Based on the unambiguous language of the Dormitory Authority case the Court specifically established the elements which must be met in order for a third-party beneficiary to enforce a contract. Based on the precedent established in the Dormitory Authority case, it is clear that NYY is an incidental beneficiary of the agreement between Plaza and Baring and lacks the requisite authority to enforce the agreement against Baring. 6. Although NYY is named as indemnity under the PLAZA-BARING contract, said agreement lacks one of the required elements of the Dormitory Authority case, which requires express language giving NYY the right to enforce the terms of the agreement against Baring. Clearly, there is no such language which is evident by NYY's failure to come forward with the requisite language its opposition papers to your affirmant's motion. 7. As such, since NYY is not a third-party to the contract the PLAZA-BARING contract and has failed to meet the requirements as established under the Dormitory Authority 3 3 of 12 FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 NYY claims against must be dismissed as a matter of as well as all cross- case, Baring law, claims against Baring. POINT H PLAZA WAS SOLELY NEGLIGNT FOR THE HAPPENING OF THIS ACCIDENT NEGATING ITS CLAIMS FOR COMMON LAW AND CONTRACTUAL INDEMNITY 8. PLAZA is falsely seeking to hide behind the alleged act of its subcontractor in an effort to evade negligence herein. However, this nothing more than a desperate act by PLAZA and their counsel with the submissions of a subsequent affidavit of George Usher in an effort to create a feigned issue of fact. In an intrest of judicial economy and without belaboring the Court with duplicative arguments, your affirmant incorporates and adopts by reference the arguments in Ess & Vee's Affirmation in Opposition to NYY/PLAZA's Motion for Summary Judgement by Robert J. Paliseno, Esq. dated August 19, 2019 which goes into great detail outlining the inconsistencies between Usher's affidavit and his testimony in this case. As such, the Court should entirely disregarding USHERS affidavit herein and not be considered in support of NYY and PLAZA's motion for summary judgment. See Kistoo v. City of New York, 195 A.D.2d 403 (1³' (2"d Dep't 1993), French v. Chffs Place, 125 A.D.2d 292, 508 N.Y.S.2d 577 Dep't 1986). 9. It is clear that a party seeking contractual indemnification must prove itself free from negligence, because to the extents itsnegligence contributed to the accident, it cannot be indemnified therefore. See Bellefleur v. Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 888 (2"" N.Y.S.2d 81 Dep't 2009). 10. In the subject case, the language in the contract between Plaza and Baring pertaining to indemnity states as follows: To the extent permitted by law, Subcontractor shall indemnify, defend, save and hold harmless the Owner, the Construction Manager, landlord, Building Management and Architect...harmless from and against all liability, damage, loss, claims, demands and actions of any 4 4 of 12 FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 nature whatsoever which arise out of or are connected with or are claimed to arise out of or be connected with: The performance of Work the or of its Sub- 1) by Subcontractor, any Subcontractors, any act or omission of any of the foregoing; 2) Any accident or occurrence which happens, or is alleged to have happened, in or about the place where such Work is being performed or in the vicinity 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 aresult of the performance of the Work; or 3) The use, misuse, erection, maintenance, operation or failure of any machinery or equipment (including but not limited to, scaffolds, derricks, ladders, hoists, rigging supports etc.) whether or not such machinery or equipment was furnished, rented or loaned by the Owner, the Construction Manager or their officers, employees, agents, servants or others to the Subcontractor. See Exhibit "Q". General Conditions Article 9A. A.D.3'd 11. The case of Giangarra v. Pav-Lak Contracting, Inc., 55 869, 871, (2"" 866 N.Y.S.2d 332 Dep't, 2008) states that a party seeking indemnity must be free of negligence and cannot be indemnified for its own negligence. In this case, there is clearly evidence as to the affirmative negligence of third-party plaintiff Plaza, who as the general contractor/construction manager, was charged with overall safety of the work, was responsible for debris clean up at the site,as well as responsible for protection work at the site. 12. Pursuant to the testimony of George Usher, he was responsible for walking the siteand visually inspecting same for construction, safety and manpower issues. (Exhibit K to BARING's Motion for Summary Judgment at p. 39). He would perform walkthroughs of the entire jobsite on a daily basis and perform walkthroughs with the foremen of Plaza's subcontractors to remain advised of all construction activities. (See id at p.p. 39- 40). Plaza had the authority to correct any dangerous conditions on site. (See id. at pp. 37-38, 41, 43 and 49). Plaza's laborers were responsible for housekeeping and cleaning of the jobsite. (See id. at pp. 42-43 and 72). Plaza's laborers would remove construction debris from the site and were 5 5 of 12 FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 instructed to unsafe conditions if same were discovered.(See id. at pp. 49 and 133- remedy 43, 134). This duty to clean and remove construction debris extended to all areas of the jobsite including the area where the accident occurred. Emphasis added (See id. at p. 73). 13. Further, the testimony is clear that Plaza installed the barricades and other perimeter protections around the jobsite and was responsible for protecting all openings, barricades around the openings or wood over the openings. (See id. at pp. 54- installing placing 55). Usher would check the site for safety issues and to ensure that safe work practices were being followed. (See id. at pp. 27-28). After the subject pit was constructed, Plaza laid planking over the pit using OSHA approved planks. Plaza then laid plywood planks over the underlying planks which overlapped onto the concrete surrounding the pit. (See id. at pp. 95-96). 14. In this case, Baring has established that they are free from negligence as they neither had any responsibilities for debris clean up, protection work, or lighting at this site. Further, Baring was not on site on the date of the accident, did not direct or control the plaintiff's work, and never directed or controlled the means and method for the delivery into the worksite. Based on the evidence in this case, itis alleged by plaintiff tripped on debris while delivering the condenser into the basement causing him to lose his balance and fallinto an unguarded pit/hole. It is undisputed that Plaza alone had the responsibility to clean debris form the site and was responsible for protection work. Based on the facts, Plaza's failure to perform their contractual responsibilities at this site was the proximate cause of plaintiff's accident. 15. Based on evidence in this case which clearly establishes Plaza's negligence, Plaza cannot enforce the contractual indemnity agreement against Baring (either for full contractual indemnity or conditional) and as such, Plaza claims for contractual indemnification must be dismissed. 6 6 of 12 FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 POINT III BARING IS NOT NEGLIGENT IN THE HAPPENING OF THIS ACCIDENT 16. It isundisputed that plaintiff fellwhile delivering a condenser on sitewith his foreman Gomez. It isalleged that plaintiff tripped on debris and fell into an uncovered pit at the location. There is no evidence that Baring either directed or controlled plaintiff's work at this site, nor that they directed him to work in any manner, on that day. Further, Baring did not provide him with any equipment at this site, did not direct the means and methods of the delivery of the condenser and did not direct him to work anywhere on the jobsite that day. Thus, there are no facts to support plaintiff's claims that the Baring caused or created any condition which is alleged to have caused plaintiff's accident. The testimony is clear that Plaza alone was responsible to the clean-up of debris on site, as well as protection work. If itis found that either the debris or lack of protection was a proximate cause of plaintiff's accident, there is absolutely no basis to support any negligence claims against Baring as the testimony is clear that Baring had absolutely nothing to do with same, and they must be dismissed. 17. "To make out a prima facie case of negligence under New York law, itmust be established that the defendant 1) created the condition which proximately caused the injury or it." 2) had actual or constructive notice of the hazardous condition and failed to correct Olesky v. AMTRAK, 1999 U.S. Dist. LEXIS 12099 (S.D.N.Y. 1999); Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967 (1994). It is incumbent upon the plaintiff to demonstrate the "identity of the persons to whom notice of the condition was allegedly given and when and how it was given." Carlos v. New Rochelle Municipal Housing Authority, 262 A.D.2d 515 (2d Dep't 1999). 18. The Court of Appeals has reiterated the well-settled standard that, "[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and 7 7 of 12 FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 it." remedy Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986). "To impose liability on a defendant for...an allegedly dangerous condition..., there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or time." constructive notice of it and failed to remedy it within a reasonable Moody v. F.W. Woolworth Co., 288 A.D.2d 446 (2d Dep't 2001). Considering the facts of this case, Baring did not have the requisite notice of any alleged defective condition that caused or contributed to plaintiff's accident nor is there any evidence that Baring caused plaintiff's accident. 19. In order to recover for a defective condition, plaintiff must demonstrate that the defendants created the defective condition or had actual or constructive notice of the condition and a reasonable opportunity to cure the defect. See, Penn v. Fleet Bank, 12 A.D.3d (1" 584 (2d Dep't 2004); Ramos v. HSBC Bank, 29 A.D.3d 435 Dep't 2006) (Plaintiff failed to raise a triable issue of fact regarding actual or constructive notice of any defective condition). 20. Notice of the condition, either actual or constructive, is essential to liability. A defendant is not liable for injuries sustained due to a defect on the premises unless the defendant had actual or constructive notice thereof for such a reasonable period of time, that in the exercise of reasonable care, one could have corrected it. Trujillo v. River bay Com., 153 (I" A.D.2d 793 Dept. 1989). 21. To establish actual notice, the defendant must be aware of the dangerous or defective condition so as to provide him or her with personal knowledge of the condition. When there is no indication that the defendant created the dangerous condition or had actual notice of it,the plaintiff must establish constructive notice. To constitute constructive notice of a defect, case law clearly dictates that various elements must be established: 1) The condition must be dangerous or defective, and 2) The condition must be visible and apparent, and 3) The condition must exist for a sufficient length of time prior to the accident to permit defendant to discover and remedy it. See, Negri v. Stop & Shop, 65 N.Y.2d 625 (1985). 8 8 of 12 FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 22. There is absolutely no evidence that Baring created any alleged condition. First, Baring was not present on the site on the date of the accident. Second, Baring did not have any responsibility for debris clean up (the evidence has established that Plaza was solely responsible for debris clean up). Third, Baring did not store their materials in the subject pit and did not have any protection responsibilities at this site (another responsibility for Plaza). 23. Further, PLAZA's claims that the BARING was responsible for clean-up of "worksite" the its are without merit. The evidence is clear that the hallway, where plaintiff's accident occurred was approximately 20 feet away from the area where the condenser was being installed. In fact, based on the plaintiff's own testimony, no trades were working in the location of the hallway where plaintiff's accident occurred. In addition, BARING's clean up obligations work" only related to "its portion of the and BARING did not have any duty or obligation to clean up debris made by others at the jobsite and certainly did not have any protection responsibilities at this job site. As such, NYY and PLAZA's attempts to find negligence against BARING must fail as there is absolutely no evidence that BARING had any responsibility over the subject defects (i.e. uncovered opening and/or debris made by others). As a result, allclaim relating to BARING's negligence herein are without merit and baseless and all claims for negligence and common law indemnity must be dismissed. POINT IV NYY AND PLAZA'S BREACH OF CONTRACT CLAIMS ARE WITHOUT MERIT 24. NYY and Plaza allege breach of contract against Baring for failure to procure insurance. However, insurance was purchased by Baring and exchanged with the parties during discovery evidencing that proper insurance was secured by Baring for this project. 25. In its Response to Notice for Discovery and Inspection dated October 25, 2016, Baring policies were disclosed to all parties. A copy of said discovery response is 9 9 of 12 FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 "A" attached was attached as Exhibit to your affirmant's Affirmation in Opposition to NYY and PLAZA's motion for summary judgment. Pursuant to the discovery exchange, BARING was afford insurance coverage by National Fire Insurance of Hartford under policy C2092169725 for the period of 1/15/2013 - 1/15/2014 for $1 Mil per occurrence and $2 Mil in the aggregate. In addition, a copy of BARING's umbrella policy was disclosed with limits up to $10 Mil under policy C2092169708 also provided by National Fire Insurance of Hartford for the same policy period. 26. Clearly there was sufficient insurance coverage to satisfy the contractual obligation under the PLAZA contract. If it isPLAZA's argument that BARING did provide the specific coverage as dictated under the contract, same is without consequence as the umbrella policy contains enough limits to satisfy the obligation. Further, there is no prejudice to PLAZA. 27. As a result of the facts of this case, NYY and Plaza's breach of contract claims must be dismissed in their entirety as Baring has fulfilled itsobligation under the contract and actually provided more coverage than required to. As such, PLAZA motion for breach of contract must be denied. WHEREFORE, itis respectfully requested that the court issue an Order pursuant to CPLR §§ 3211(a)[1], 3212 and 306-b, granting summary judgment to defendant/Third-Party Defendant/Third-Third Party Defendant BARING INDUSTRIES, INC., dismissing all claims and cross-claims against them, and granting summary judgment to Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third-Third Party Defendant BARING INDUSTRIES, INC., on its contractual indemnity claims against Second Third-Party Defendant DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP.; an order dismissing the claims of Defendant/Third-Third Party Plaintiff NYY STEAK MANHATTAN, LLC and Defendant/Third-Party Plaintiff/Third Third-Party Plaintiff PLAZA CONSTRUCTION LLC 10 10 of 12 FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 f/k/a PLAZA CONSTRUCITON CORP., along with such other and further relief as this Court may deem just and proper. Dated: Melville, New York October 21, 2019 Nikolaos E. Di=rns 11 11 of 12 FILED: NEW YORK COUNTY CLERK 10/21/2019 01:17 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 475 RECEIVED NYSCEF: 10/21/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------X KEVIN McGONIGAL, Plaintiff, INDEX NO.: 158327/13 -against- NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC. Defendants. -----------------------------------------------------------X (AND THIRD PARTY ACTIONS) REPLY AFFIRMATION LAW OFFICES OF TROMELLO & FISHMAN Attorneys for Baring Industries, Inc. 395 North Service Road P.O. Box 9038 Melville, NY 11747 Telephone 631-577-2400 Fax 631-577-2401 Service of a copy of the within is hereby admitted. Dated: Attorney(s) for PLEASE TAKE NOTICE [ ]NOTICE OF ENTRY thatthe within isa (certified) true copy of a entered inthe officeof the clerkof the within named court on , 20 [ ]NOTICE OF SETTLEMENT thatan Order of which the within isa true copy willbe presented for settlementto the Hon. one of thejudges of the within named Court, at on , 20 , at 9:30a.m. Dated: Melville, NY 12 of 12