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FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------- ----------------X
KEVIN McGONIGAL,
Index No. 158327/13
Plaintiff,
-against-
REPLY AFFIRMATION
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION TO ESS & VEE'S
CORP. and BARING INDUSTRIES, INC., OPPOSITION
Defendants.
--------------------------------- -----------------------------------X Hon. Margaret A. Chan,
PLAZA CONSTRUCTION CORP., J.S.C.
Motion Sequence No. 007
Third-Party Plaintiff,
-against-
Third-Party
BARING INDUSTRIES, INC., Index No. 595146/14
Third-Party Defendant.
-----------------------------------------------------------------------------X
BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff,
-against-
DAY & NITE REFRIGERATION CORP. and KIMCO Second Third-Party
REFRIGERATION CORP., Index No. 595130/15
Second Third-Party Defendants.
___ .___ _____________________________-----------------------------X
NYY STEAK MANHATTAN, LLC and PLAZA
CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION
CORP.,
Third Third-Party Plaintiffs,
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE Third Third-Party
ACOUSTICAL CONTRACTORS, INC. and BARING Index No. 595638/15
INDUSTRIES, INC.,
Third Third-Party Defendants.
________________ -----------------------------------------X
Alisa Dultz, an attorney duly admitted to practice law before the Courts of the State of
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New York, affirms the truth of the following upon information and belief and with knowledge of
the penalties for perjury:
1. I am Of Counsel to the law firm of Fabiani Cohen & Hall, LLP, attorneys for the
defendant/third third-party plaintiff NYY Steak Manhattan, LLC ("NYY Steak") and
defendant/second third-party plaintiff/third third-party plaintiff Plaza Construction LLC f/k/a
Plaza Construction Corp. ("Plaza").
2. I submit this reply affirmation in response to the affirmation in opposition of the
third-party defendant ESS & VEE ACOUSTICAL CONTRACTORS, INC. ("Ess & Vee") to
NYY Steak's and Plaza's motion for (1) summary judgment dismissing the plaintiff's Labor Law
§ 200 and common-law negligence claims; (2) summary judgment on NYY Steak's and Plaza's
third third-party claims for contractual indemnity against the third-party defendants B&G
ELECTRICAL CONTRACTORS ("B&G"), Ess & Vee, and BARING INDUSTRIES, INC.
("Baring"), or in the alternative a conditional order of contractual indemnity; (3) summary
judgment on NYY Steak's and Plaza's third third-party claims against B&G, Ess & Vee, and
attorneys'
Baring for common-law indemnity, including fees, costs and expenses/disbursements,
and contribution; (4) summary judgment dismissing all cross-claims and counterclaims asserted
by B&G, Ess & Vee, Baring and the second third-party defendants DAY & NITE
REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. ("Day & Nite"); and (5)
summary judgment on their claim against Baring for breach of its agreemeñt to procure
insurance.
3. Ess & Vee opposes NYY Steak's and Plaza's motion for summary judgment to
the extent that it seeks summary judgment dismissing the plaintiff's Labor Law § 200 and
common-law negligence claims, summary judgment on their claim for contractual indemnity
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against Ess & Vee, summary judgment on their claim for common-law indemnity against Ess &
Vee, and summary judgment dismissing Ess & Vee's counterclaims against NYY Steak and
Plaza.
Preliminary Statement
4. Ess & Vee's opposition is meritless. First, Ess & Vee has failed to refute that
NYY Steak and Plaza are entitled to summary judgment dismissing the plaintiff's Labor Law §
200 and common-law negligence claims. As an initialmatter, while Ess & Vee repeatedly lumps
"they"
NYY Steak and Plaza together, referring to them as see Ess & Vee Opp. Aff. ¶ 4 ("they
Construction,"
were actively negligent") or as a single entity "NYY Steak/Plaza see id. ¶ 11, Ess
& Vee's arguments are directed only at Plaza not NYY Steak. No proof is presented that NYY
Steak was negligent. Therefore, NYY Steak's motion for summary judgment dismissing the
plaintiff's Labor Law § 200 and common-law negligence claims against itshould be granted.
5. Contrary to Ess & Vee's arguments, the evidence proves that Plaza did not create
and lacked notice of the alleged 2 x 4 that the plaintiff claims to have tripped over as a matter of
law. Plaza's daily logs and Mr. Usher's affidavit establish that Ess & Vee is responsible for the
2 x 4 that the plaintiff claims that he tripped over, and that Plaza did not have notice of it. To
avoid the consequences of this evidence, Ess & Vee erroneously attempts to disparage Mr.
"self-serving,"
Usher's Affidavit. As detailed below, however, Mr. Usher's affidavit is not
"feigned" up,"
"cobbled nor does it "utterly contradict[]"his deposition testimony, as erroneously
claimed by Ess & Vee. See Ess & Vee Opp. Aff. ¶ 5.
6. Mr. Usher's affidavit simply sets forth what he wrote in Plaza's daily logs. The
fact that Mr. Usher could not recall the details of Ess & Vee's work as set forth in the daily logs
at his deposition, when he did not have the benefit of looking at the daily logs, in no way renders
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"contradictory"
his affidavit to his deposition testimony. Ess & Vee's argument in this regard is
ludicrous. Furthermore, Ess & Vee's attempts at avoiding Mr. Usher's averments as to what
work Ess & Vee was performing at the 2LL level before the alleged accident and on the day
thereof are particularly disingenuous given that NYY Steak and Plaza disclosed Plaza's daily
records to Ess & Vee in 2015 and that Ess & Vee had every opportunity to question Mr. Usher
regarding what he wrote in the daily logs at his deposition in 2017 but chose not to do so.
"staggering"
7. Ess & Vee's assertion that it is that Plaza claims itwas not negligent,
Ess & Vee Opp. Aff. ¶ 3, is no substitute for evidentiary proof. Notably, Ess & Vee does not
dispute that neither NYY Steak nor Plaza created or had notice of the unguarded pit or alleged
poor lighting that the plaintiff claims caused to his accident. With respect to the 2 x 4 that the
plaintiff claims to have tripped over, Ess & Vee offers only baseless verbal attacks upon Mr.
Usher's affidavit in an effort to refute the evidence which shows that the wood belonged to it and
Plaza lacked constructive notice of its alleged presence. Ess & Vee offers only speculation in
response. Ess & Vee also closes its eyes to the fact that the sheetrock in the hallway, which
irrefutably belonged to it,necessarily played a role in the happening of the alleged accident.
Since Ess & Vee has failed to show that a triable issue of fact exists as to whether NYY Steak
and Plaza were negligent, their motion for summary judgment dismissing the plaintiff's Labor
Law § 200 and common-law negligence claims should be granted.
8. Ess & Vee has also failed to refute that NYY Steak and Plaza are entitled to
of"
contractual indemnity as a matter of law. The plaintiff's claims indisputably "arise out or are
of"
"claimed to arise out the performance of Ess & Vee's work, thereby triggering its indemnity
obligation under Article 9(A)(1) of the indemnity provision.
9. The requirements of Article 9(A)(2)(b) are also met. Article 9(A)(2)(b) applies
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where the accident occurs "in or about the place where such Work is being performed or in the
vicinity thereof (b) while the Subcontractor's prooerty. eauipment . .are in or about such place
."
or the vicinity thereof . .. Plaza/Ess & Vee Subcontract, General Conditions, Art. 9(A)(2)(b)
(emphasis added), at Dultz Aff., Ex. V. The undisputed evidence that Ess & Vee's sheetrock
was leaning against the walls in the hallway that was just a couple of steps away from the
elevator pit proves, as a matter of law, that Ess & Vee's indemnity obligation is triggered under
Article 9(A)(2)(b).
10. Contrary to its assertion, NYY Steak and Plaza need not prove that the accident
occurred while Ess & Vee was performing work, as this requirement is set forth in Article
9(A)(2)(a), not Article 9(A)(2)(b), which requires only that Ess & Vee's property, equipment or
about" vicinity"
personnel be in "in or or in "the of the accident.
vicinity"
11. Ess & Vee's contention that its sheetrock was not in "the of the elevator
"Vicinity"
pit because itwas not next to itis wrong. means near to, not immediately adjacent to.
See https://www.thefreedictionary.com/vicinity (defining vicinity as "[t]he state of being near in
space or relationship; proximity: two restaurants in close vicinity). The fact that Ess & Vee's
about"
sheetrock was just a few steps away from the elevator pit establishes that it was "in or or
vicinity"
in "the of the alleged accident as provided in Article 9(A)(2)(b) thereby triggering Ess
& Vee's indemnity obligation.
12. Ess & Vee does not dispute that even if NYY Steak and Plaza are determined to
be negligent that they are entitled to partial contractual iñdemnity under the Ess & Vee
subcontract to the extent that the happening of the alleged accident was also attributable to the
negligence of Ess & Vee and B&G.
13. In view of the evidence that Ess & Vee is responsible for the 2 x 4 that the
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plaintiff tripped over and the sheet rocking that necessarily impacted how the alleged accident
occurred, NYY Steak's and Plaza's motion for sumrñary judgment on their common-law claims
for indemnification against Ess & Vee should also be granted.
14. Finally, Ess & Vee has not presented any argument in opposition to NYY Steak's
and Plaza's motion for munmy judgment motion dismissing Ess & Vee's claims against them
for breach of contract, coniinon-law indemnity and contribution. Therefore, these claims should
be dismissed.
ARGUMENT
L ESS & VEE'S ARGUMENT THAT THE COURT SHOULD
DISREGARD MR. USHER'S AFFIDAVIT IS MERITLESS
15. To refute NYY Steak's and Plaza's proof that they did not create or have notice of
the 2 x 4 that the plaintiff claims to have tripped over, Ess & Vee tries vainly to discredit Mr.
Usher's affidavit. Itsverbal attacks on Mr. Usher's affidavit have no basis in fact.
"self-serving," "manufactured,"
16. Mr. Usher's Affidavit is neither "rogue", or a
subterfuge."
"clear product of Ess & Vee Opp. Aff. ¶ 7. Mr. Usher's affidavit merely states
what Mr. Usher wrote in his daily logs, which NYY Steak and Plaza disclosed to Ess & Vee in
2-0-15 and which Ess & Vee had every opportunity to question Mr. Usher about at his deposition
on March 10. 2017.
17. For example, the daily log dated September 4, 2013, states that Ess & Vee had 5
carpenters and 1 taper on site. See Daily Log dated 9/4/13, at Dultz Aff., Ex. Z. Under the
performed"
"work heading itstates as follows: "Framing west wall, sheetrock east wall on l''.
2nd walls."
Framing [illegible] wall. Taper coat and polish 2LL outside Id.
18. Mr. Usher avers in his affidavit that the daily log dated September 4, 2013, states
that Ess & Vee had 5 carpenters and 1 tape on site. He further states that it reflects that Ess &
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Vee's taper was putting a second coat on and polishing the 2LL outside walls. See Usher Aff. ¶
Defs.'
11, at Aff., Ex. AA.
19. Each of Mr. Usher's statements in his affidavit state in similar fashion what work
Ess & Vee was performing, the date that it was performing such work and where it was
performing such work as reflected in Plaza's daily logs. See Usher Aff. ¶¶ 6-13 and Plaza's
daily logs annexed thereto, at Dultz Aff., Exs. Z, AA. Given the documentary evidence that fully
supports Mr. Usher's statements, Ess & Vee's criticisms are baseless.
20. Ess & Vee's contention that Mr. Usher's affidavit contradicts his deposition, see
Ess & Vee Opp. ¶ 5, testimony is equally meritless.
21. Contrary to Ess & Vee's argument see id., Mr. Usher's inability to remember at
his deposition when Ess & Vee was working at the 2LL level and specifically what work Ess &
Vee was performing, three and a half years before his deposition on March 10, 2017, does not
render his affidavit contradictory to his deposition, because when Mr. Usher was questioned
regarding Ess & Vee's work he did not have Plaza's daily logs before him. Ess & Vee's
argument is misleading and disingenuous.
22. For example, Ess & Vee points to Mr. Usher's deposition testimony that he
"recently,"
recalled only that Ess & Vee had performed sheet rocking work in relation to when
the accident occurred. See Ess & Vee Opp. Aff. ¶ 5 (citing Usher EBT, at P.133:17). The fact
that in his affidavit Mr. Usher states that Plaza's daily logs show that Ess & Vee was performing
sheet rocking work at the 2LL level on August 28, 2013, August 29, 2013, August 30, 2013, and
performing other types of work on September 3, 4, 5, and 6, 2013, see Usher Aff. ¶¶ 7-13, is not
contradictory because Mr. Usher did not answer the question based on the daily logs. The
question was asked based only on hisrecollection.
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23. Similarly, while Mr. Usher testified at his deposition that he did not recall
whether anyone was working with wood at the 2LL level, see Ess & Vee Opp. Aff. ¶ 5 (citing
Usher EBT, at P.131:22-24), his affidavit stating that the daily logs show that Ess & Vee was
working with wood at the 2LL level, see Usher Aff. ¶ 8, isnot contradictory because Mr. Usher
did not answer the question based on what the daily logs stated; he based his answer solely on his
recollection.
24. For the same reason, Mr. Usher's testimony that he did not recall whether anyone
was working on the 2LL level on the day of the accident, or whether in the week leading up to
the accident any trades were working in the area of the accident, see Ess & Vee Opp. Aff. T 5,
(citing Usher EBT, at P. 136:12-14; P. 136:21-25.), does not contradict his affidavit wherein he
states that the daily logs show that Ess & Vee and B&G were working at the 2LL level in the
days leading up to and on the day of the alleged accident, see Usher Aff. ¶¶ 6-13, because Mr.
Usher did not answer the question at his based on what the daily logs stated; he based his answer
solely on his recollection.
25. Ess & Vee's assertion that "[t]here is no dispute Mr. Usher reviewed his logs
testifying"
prior to Ess & Vee Opp. Aff. ¶ 6, is false and misleading. Ess & Vee submits no
proof that Mr. Usher reviewed the daily logs before his deposition. Regardless, even if Mr.
Usher had looked at the daily logs before his deposition, the deposition transcript establishes that
when Mr. Usher was auestioned regardine Ess & Vee's work he was not looking at what he
wrote on the daily logs, and that he answered counsel's auestions based solely on his
recollection.
26. In fact, Mr. Usher's deposition transcript shows that counsel questioned Mr.
Usher solely regarding the daily log that he prepared on the day of the accident and that Mr.
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Usher provided testimony that was fully consistent with his affidavit. Counsel questioned him as
follows:
Q: Good afternoon, sir. Can you just take a look at Plaintiff's 7 that's
the daily reports? Specifically the daily report that you prepared p_n
the day of the accident.
A: Okay.
***
Q: Was Ess & Vee Acoustical noted as being on site that day?
A: Y_es.
***
Q: What work was Ess & Vee doing that day?
A: FRP which is a wall panel at 2LL. Sheetrock ceiling first floor,
sheetrock and Duro Rock walls on the first floor.
Usher EBT, at P. 67:23-P.77:22 (emphasis added), at Dultz Aff., Ex. M.
27. Contrary to Ess & Vee's argument, and fully consistent with his affidavit, Mr.
Usher states therein that on the day of the alleged accident Ess & Vee did FRP work at the 2LL
level. See Usher Aff. ¶ 13. He further avers that FRP stands for fiberglass reinforced panels. See
id.
28. Ess & Vee's counsel did not auestion Mr. Usher regarding Ess & Vee's work
performed at the construction site as set forth in the daily logs during the days prior to the alleged
accident, even though counsel had every opportunity to do so. Ess & Vee's counsel's assertion
that he did not ask Mr. Usher any follow-up questions regarding which trade subcontractors were
performing work at the 2LL level prior to and on the day of the accident because Mr. Usher
testified he did not remember, see Ess & Vee Opp. Aff. ¶ 16, is unfounded as counsel overlooks
that he had Mr. Usher's daily logs fully available to him and the opportunity to ask Mr. Usher
questions about them. Yet, he chose not to. It isentirely duplicitous for Ess & Vee to attempt to
shift to NYY Steak and Plaza the consequences of its failure to question Mr. Usher regarding
what he wrote in the daily logs at his deposition. Ess & Vee has failed to point to any evidence
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that itwas precluded from doing so and its excuse for not doing so is completely baseless.
29. For the same reason, Ess & Vee's contention that NYY Steak and Plaza are using
Mr. Usher's affidavit as means of demonstrating Ess & Vee's involvement in this action through
"backdoor,"
the Ess & Vee Opp. Aff. ¶ 15, is patently untrue. Ess & Vee had every opportunity
to question Mr. Usher regarding Plaza's daily logs at his deposition but Ess & Vee inexplicably
failed to do so.
30. The utter baselessness of Ess & Vee's argument is further demonstrated by the
fact that NYY Steak and Plaza produced Plaza's daily logs on or about December 18, 2015, more
than a year before Mr. Usher's deposition. See Response to Third Third-Party Defendant Ess &
Vee Acoustical Contractors, Inc.'s Combined Demands, ¶ 16, and Ex. H (annexed hereto as
"A"
Exhibit (without exhibits, other than the daily logs attached as Exhibit H)); see Usher EBT,
at Dultz Aff., Ex. M. It ishighly disingenuous for Ess & Vee to try to discredit NYY Steak and
Plaza for submitting proof of Ess & Vee's involvement in the alleged accident, that was
disclosed to Ess & Vee years before NYY Steak and Plaza filed their motion for summary
judgment.
31. Ess & Vee's further contention that the Court should disregard Mr. Usher's
experience"
statement in his affidavit at paragraph 8 that "in his blocking work involved use of
the type of wood that the plaintiff claims he tripped over, see Ess & Vee Opp. Aff. ¶ 9, also lacks
any merit. Ess & Vee fails to provide any legal basis for its argument that Mr. Usher's averment
is insufficient to establish that the wood involved in the plaintiff's accident belonged to
allegedly
Ess & Vee. Mr. Usher's affidavit provides convincing evidence of Ess & Vee's involvement.
32. Ess & Vee also baselessly asserts that there is no proof that the piece of wood that
the plaintiff tripped over belonged to it,because there is no proof that wood that was used for
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blocking on August 29, 2013 was the same piece of wood involved in the alleged accident. See
Ess & Vee Opp. Aff. ¶ 15. To the contrary, the evidence that just a few days before the accident,
Ess & Vee used a piece of wood that is identical to the piece of wood that the plaintiff tripped
over while working in the vicinity of the alleged accident is persuasive evidence that the wood
belonged to Ess & Vee.
33. Ess & Vee's reliance on photographs of the elevator pit to support is argument
that the 2 x 4 it used on August 29, 2013 was not 2 x 4 the plaintiff claims that he tripped over,
see Ess & Vee Opp. Aff. ¶ 15, also lacks a speck of merit. The photographs marked at the
Defts.'
plaintiff's deposition are close-ups of the elevator pit. See Aff., Ex. W. They do not
show the surrounding area.See id. Therefore, Ess & Vee's self-serving conclusions as to the
work that it was doing at or about the time of the alleged accident based on the photographs of
the elevator pit is unjustified.
34. Ess & Vee also improperly speculates that the piece of wood could have been
dunnage or itcould have been from the protective covering for the elevator pit. See Ess & Vee's
Opp. Aff. ¶ 15. Its wild speculation is insufficient to refute Mr. Usher's affidavit which supports
the conclusion that Ess & Vee used the wood for blocking work. See Usher Aff. ¶ 8. Ess &
Vee's provides no basis whatsoever for itshypotheticals that the 2 x 4 was dunnage or it was part
of the elevator pit's protective cover and somehow became detached from it.Ess & Vee's
imaginative theories are insufficient to refute Mr. Usher's statements in his affidavit that are
based on his personal knowledge and experience.
35. Ess & Vee has woefully failed to back up its baseless criticisms of Mr. Usher's
affidavit with facts. Moreover, Plaza's daily logs which NYY Steak and Plaza produced to Ess
& Vee years ago and the irrefutable fact that Ess & Vee had every opportunity to question Mr.
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Usher regarding Plaza's daily logs at his deposition but chose not to do so render its criticisms of
Mr. Usher's affidavit particularly misguided.
IL ESS & VEE HAS FAILED TO SHOW THAT A TRIABLE ISSUE OF FACT
EXISTS AS TO WHETHER NYY STEAK AND PLAZA WERE NEGLIGENT
36. Ess & Vee's opposition to the NYY Steak's and Plaza's motion for summary
judgment dismissing the plaintiff's Labor Law § 200 and common-law negligence claims against
them is baseless. As an initial matter, all of Ess & Vee's arguments are directed at Plaza, not
NYY Steak. See Ess & Vee Opp. Aff. ¶¶ 9, 26. Since Ess & Vee has failed to oppose NYY
Steak's motion for summary judgment, the plaintiff's Labor Law § 200 and common-law
negligence claims against itshould be dismissed.
37. With respect to Plaza, Ess & Vee asserts that Plaza has failed to establish that it
did not create or have notice of the inadequate lighting that the plaintiff claims caused his
accident. See Ess & Vee Opp. ¶¶ 3, 8. However, neither in paragraphs 3 or 8 of its opposition
nor anywhere else in its opposition does Ess & Vee point to any evidence refuting Plaza's proof
on its motion for summary judgment that B&G was responsible for the lighting at the 2LL level,
and that Plaza did not have notice that the lighting was inadequate. Therefore, for the reasons
stated in Plaza's moving papers, it was not negligent as a matter of law with respect to the
Defs.'
plaintiff's claim that the lighting was inadequate. See Chin EBT, at P.43:1-16, at Aff., Ex.
Defs.'
P; Usher EBT, at P. 140:20-25, P.146:15-21; P.147:8-10; at Aff., Ex. P; see NYY Steak's
and Plaza's Mem. of Law, at 10.
38. Therefore, Ess & Vee's argument that Plaza was negligent with respect to the
alleged inadequate lighting is meritless.
39. The only basis for Ess & Vee's opposition is its contention that Plaza was
negligent in failing to remove the piece of wood that the plaintiff claims to have tripped over.
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See Ess & Vee Opp. Aff. 1 9. Its argument that Plaza had constructive notice of the alleged
condition however is based on itserroneous self-serving assumptions.
40. Ess & Vee acknowledges that as established by Plaza's daily logs on August 29,
2013, Ess & Vee performed work at the 2LL level that involved 2 x 4's and plywood. See Usher
Defs.'
Aff. ¶ 8, Daily Log dated 8/29/13, at Aff., Exs. Z, AA. Ess & Vee argues that Plaza had
constructive notice of the alleged dangerous condition because the wood was present since
August 29, 2013.See Ess & Vee Opp. Aff. ¶ 9. Ess & Vee's argument is incorrect because it
ignores that Ess & Vee was stillworking at the 2LL level on August 30, September 3, September
September and September 2013. See Usher Aff. Logs dated 8/30/13-
4, 5, 6, ¶¶ 9-13, Daily
Defs.'
9/6/13, at Aff., Exs. Z, AA. Since Ess & Vee was actively working in the area of the
accident, Plaza did not have a reasonable opportunity of discovering the 2 x 4 prior to the alleged
accident, even if itexisted. Mr. Usher testified that when he went to the accident location he did
not see any form of wooden debris. See id. P.150:13-17. Mr. Gomez, plaintiff's foreman who
was working with the plaintiff at the time of the alleged accident also testified that after it
occurred he did not see anything on the ground where the plaintiff fell. See Gomez EBT, at
Defs.'
P.63:15-18, at Aff., Ex. R.
41. Furthermore, Ess & Vee ignores Mr. Usher's testimony that the last time he
inspected the 2LL level was the day before the accident or sometime prior thereto. See Usher
EBT, at P. 97:11-15. Mr. Usher did not go to the elevator pit on September 6, 2013, until after
the alleged accident which the plaintiff claims occurred at 8:00 a.m. See Usher at P.103:1-
EBT,
25;P123:11-12. These facts show that Plaza did not have constructive notice of the alleged
debris because the alleged accident occurred after Mr. Usher last inspected the area. See, e.g.,
Rivers v. 2160 Realty Co.. LLC, 4 N.Y.3d 837, 838 (2005) (where plaintiff tripped on a beer
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bottle while descending steps at 5:00 a.m., defendant did not have constructive notice of the
alleged dangerous condition because "no evidence was offered indicating that the landlord was
notified of the debris that night or that the bottle was present for a sufficient period of time that
defendant's employees had an opportunity to discover and remedy the problem").
42. Thus, Ess & Vee has failed to refute that NYY Steak and Plaza were not negligent
as a matter of law. Therefore, the plaintiff's Labor Law § 200 and common-law negligence
claims against NYY Steak and Plaza should be dismissed.
HL ESS & VEE HAS FAILED TO REFUTE THAT ITS INDEMNITY OBLIGATION
IS TRIGGERED UNDER ARTICLE 9(A)(1) OF THE CONTltACT
43. Ess & Vee's indemnity obligation is triggered under several different provisions
of the contract, any one of which is sufficient to establish that it isobligated to indemnify NYY
Steak and Plaza as a matter of law. First, Ess & Vee's indemnity obligation is triggered under
Article 9(A)(1) of the indemnity provision which requires Ess & Vee to indemnify NYY Steak
of" with"
and Plaza for claims which "arise out of . .. or claimed to arise out or "be connect the
Defs.'
performance of itswork. See Ess & Vee Subcontract, at Art. 9(A)(1), at Aff., Ex. V.
44. The evidence that the 2 x 4 belonged to Ess & Vee and that the plaintiff claims he
tripped over the 2 x 4 triggers Ess & Vee's indemnity obligation. Therefore, Ess & Vee is
obligated to indemnify NYY Steak and Plaza as a matter of law.
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FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------- ----------------X KEVIN McGONIGAL, Index No. 158327/13 Plaintiff, -against- REPLY AFFIRMATION NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION TO ESS & VEE'S CORP. and BARING INDUSTRIES, INC., OPPOSITION Defendants. --------------------------------- -----------------------------------X Hon. Margaret A. Chan, PLAZA CONSTRUCTION CORP., J.S.C. Motion Sequence No. 007 Third-Party Plaintiff, -against- Third-Party BARING INDUSTRIES, INC., Index No. 595146/14 Third-Party Defendant. -----------------------------------------------------------------------------X BARING INDUSTRIES, INC., Second Third-Party Plaintiff, -against- DAY & NITE REFRIGERATION CORP. and KIMCO Second Third-Party REFRIGERATION CORP., Index No. 595130/15 Second Third-Party Defendants. ___ .___ _____________________________-----------------------------X NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., Third Third-Party Plaintiffs, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE Third Third-Party ACOUSTICAL CONTRACTORS, INC. and BARING Index No. 595638/15 INDUSTRIES, INC., Third Third-Party Defendants. ________________ -----------------------------------------X Alisa Dultz, an attorney duly admitted to practice law before the Courts of the State of [1763131/1] 1 1 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 New York, affirms the truth of the following upon information and belief and with knowledge of the penalties for perjury: 1. I am Of Counsel to the law firm of Fabiani Cohen & Hall, LLP, attorneys for the defendant/third third-party plaintiff NYY Steak Manhattan, LLC ("NYY Steak") and defendant/second third-party plaintiff/third third-party plaintiff Plaza Construction LLC f/k/a Plaza Construction Corp. ("Plaza"). 2. I submit this reply affirmation in response to the affirmation in opposition of the third-party defendant ESS & VEE ACOUSTICAL CONTRACTORS, INC. ("Ess & Vee") to NYY Steak's and Plaza's motion for (1) summary judgment dismissing the plaintiff's Labor Law § 200 and common-law negligence claims; (2) summary judgment on NYY Steak's and Plaza's third third-party claims for contractual indemnity against the third-party defendants B&G ELECTRICAL CONTRACTORS ("B&G"), Ess & Vee, and BARING INDUSTRIES, INC. ("Baring"), or in the alternative a conditional order of contractual indemnity; (3) summary judgment on NYY Steak's and Plaza's third third-party claims against B&G, Ess & Vee, and attorneys' Baring for common-law indemnity, including fees, costs and expenses/disbursements, and contribution; (4) summary judgment dismissing all cross-claims and counterclaims asserted by B&G, Ess & Vee, Baring and the second third-party defendants DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. ("Day & Nite"); and (5) summary judgment on their claim against Baring for breach of its agreemeñt to procure insurance. 3. Ess & Vee opposes NYY Steak's and Plaza's motion for summary judgment to the extent that it seeks summary judgment dismissing the plaintiff's Labor Law § 200 and common-law negligence claims, summary judgment on their claim for contractual indemnity [1763131/1] 2 2 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 against Ess & Vee, summary judgment on their claim for common-law indemnity against Ess & Vee, and summary judgment dismissing Ess & Vee's counterclaims against NYY Steak and Plaza. Preliminary Statement 4. Ess & Vee's opposition is meritless. First, Ess & Vee has failed to refute that NYY Steak and Plaza are entitled to summary judgment dismissing the plaintiff's Labor Law § 200 and common-law negligence claims. As an initialmatter, while Ess & Vee repeatedly lumps "they" NYY Steak and Plaza together, referring to them as see Ess & Vee Opp. Aff. ¶ 4 ("they Construction," were actively negligent") or as a single entity "NYY Steak/Plaza see id. ¶ 11, Ess & Vee's arguments are directed only at Plaza not NYY Steak. No proof is presented that NYY Steak was negligent. Therefore, NYY Steak's motion for summary judgment dismissing the plaintiff's Labor Law § 200 and common-law negligence claims against itshould be granted. 5. Contrary to Ess & Vee's arguments, the evidence proves that Plaza did not create and lacked notice of the alleged 2 x 4 that the plaintiff claims to have tripped over as a matter of law. Plaza's daily logs and Mr. Usher's affidavit establish that Ess & Vee is responsible for the 2 x 4 that the plaintiff claims that he tripped over, and that Plaza did not have notice of it. To avoid the consequences of this evidence, Ess & Vee erroneously attempts to disparage Mr. "self-serving," Usher's Affidavit. As detailed below, however, Mr. Usher's affidavit is not "feigned" up," "cobbled nor does it "utterly contradict[]"his deposition testimony, as erroneously claimed by Ess & Vee. See Ess & Vee Opp. Aff. ¶ 5. 6. Mr. Usher's affidavit simply sets forth what he wrote in Plaza's daily logs. The fact that Mr. Usher could not recall the details of Ess & Vee's work as set forth in the daily logs at his deposition, when he did not have the benefit of looking at the daily logs, in no way renders [1763131/1] 3 3 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 "contradictory" his affidavit to his deposition testimony. Ess & Vee's argument in this regard is ludicrous. Furthermore, Ess & Vee's attempts at avoiding Mr. Usher's averments as to what work Ess & Vee was performing at the 2LL level before the alleged accident and on the day thereof are particularly disingenuous given that NYY Steak and Plaza disclosed Plaza's daily records to Ess & Vee in 2015 and that Ess & Vee had every opportunity to question Mr. Usher regarding what he wrote in the daily logs at his deposition in 2017 but chose not to do so. "staggering" 7. Ess & Vee's assertion that it is that Plaza claims itwas not negligent, Ess & Vee Opp. Aff. ¶ 3, is no substitute for evidentiary proof. Notably, Ess & Vee does not dispute that neither NYY Steak nor Plaza created or had notice of the unguarded pit or alleged poor lighting that the plaintiff claims caused to his accident. With respect to the 2 x 4 that the plaintiff claims to have tripped over, Ess & Vee offers only baseless verbal attacks upon Mr. Usher's affidavit in an effort to refute the evidence which shows that the wood belonged to it and Plaza lacked constructive notice of its alleged presence. Ess & Vee offers only speculation in response. Ess & Vee also closes its eyes to the fact that the sheetrock in the hallway, which irrefutably belonged to it,necessarily played a role in the happening of the alleged accident. Since Ess & Vee has failed to show that a triable issue of fact exists as to whether NYY Steak and Plaza were negligent, their motion for summary judgment dismissing the plaintiff's Labor Law § 200 and common-law negligence claims should be granted. 8. Ess & Vee has also failed to refute that NYY Steak and Plaza are entitled to of" contractual indemnity as a matter of law. The plaintiff's claims indisputably "arise out or are of" "claimed to arise out the performance of Ess & Vee's work, thereby triggering its indemnity obligation under Article 9(A)(1) of the indemnity provision. 9. The requirements of Article 9(A)(2)(b) are also met. Article 9(A)(2)(b) applies [1763131/1] 4 4 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 where the accident occurs "in or about the place where such Work is being performed or in the vicinity thereof (b) while the Subcontractor's prooerty. eauipment . .are in or about such place ." or the vicinity thereof . .. Plaza/Ess & Vee Subcontract, General Conditions, Art. 9(A)(2)(b) (emphasis added), at Dultz Aff., Ex. V. The undisputed evidence that Ess & Vee's sheetrock was leaning against the walls in the hallway that was just a couple of steps away from the elevator pit proves, as a matter of law, that Ess & Vee's indemnity obligation is triggered under Article 9(A)(2)(b). 10. Contrary to its assertion, NYY Steak and Plaza need not prove that the accident occurred while Ess & Vee was performing work, as this requirement is set forth in Article 9(A)(2)(a), not Article 9(A)(2)(b), which requires only that Ess & Vee's property, equipment or about" vicinity" personnel be in "in or or in "the of the accident. vicinity" 11. Ess & Vee's contention that its sheetrock was not in "the of the elevator "Vicinity" pit because itwas not next to itis wrong. means near to, not immediately adjacent to. See https://www.thefreedictionary.com/vicinity (defining vicinity as "[t]he state of being near in space or relationship; proximity: two restaurants in close vicinity). The fact that Ess & Vee's about" sheetrock was just a few steps away from the elevator pit establishes that it was "in or or vicinity" in "the of the alleged accident as provided in Article 9(A)(2)(b) thereby triggering Ess & Vee's indemnity obligation. 12. Ess & Vee does not dispute that even if NYY Steak and Plaza are determined to be negligent that they are entitled to partial contractual iñdemnity under the Ess & Vee subcontract to the extent that the happening of the alleged accident was also attributable to the negligence of Ess & Vee and B&G. 13. In view of the evidence that Ess & Vee is responsible for the 2 x 4 that the [1763131/1] 5 5 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 plaintiff tripped over and the sheet rocking that necessarily impacted how the alleged accident occurred, NYY Steak's and Plaza's motion for sumrñary judgment on their common-law claims for indemnification against Ess & Vee should also be granted. 14. Finally, Ess & Vee has not presented any argument in opposition to NYY Steak's and Plaza's motion for munmy judgment motion dismissing Ess & Vee's claims against them for breach of contract, coniinon-law indemnity and contribution. Therefore, these claims should be dismissed. ARGUMENT L ESS & VEE'S ARGUMENT THAT THE COURT SHOULD DISREGARD MR. USHER'S AFFIDAVIT IS MERITLESS 15. To refute NYY Steak's and Plaza's proof that they did not create or have notice of the 2 x 4 that the plaintiff claims to have tripped over, Ess & Vee tries vainly to discredit Mr. Usher's affidavit. Itsverbal attacks on Mr. Usher's affidavit have no basis in fact. "self-serving," "manufactured," 16. Mr. Usher's Affidavit is neither "rogue", or a subterfuge." "clear product of Ess & Vee Opp. Aff. ¶ 7. Mr. Usher's affidavit merely states what Mr. Usher wrote in his daily logs, which NYY Steak and Plaza disclosed to Ess & Vee in 2-0-15 and which Ess & Vee had every opportunity to question Mr. Usher about at his deposition on March 10. 2017. 17. For example, the daily log dated September 4, 2013, states that Ess & Vee had 5 carpenters and 1 taper on site. See Daily Log dated 9/4/13, at Dultz Aff., Ex. Z. Under the performed" "work heading itstates as follows: "Framing west wall, sheetrock east wall on l''. 2nd walls." Framing [illegible] wall. Taper coat and polish 2LL outside Id. 18. Mr. Usher avers in his affidavit that the daily log dated September 4, 2013, states that Ess & Vee had 5 carpenters and 1 tape on site. He further states that it reflects that Ess & [1763131/1] 6 6 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 Vee's taper was putting a second coat on and polishing the 2LL outside walls. See Usher Aff. ¶ Defs.' 11, at Aff., Ex. AA. 19. Each of Mr. Usher's statements in his affidavit state in similar fashion what work Ess & Vee was performing, the date that it was performing such work and where it was performing such work as reflected in Plaza's daily logs. See Usher Aff. ¶¶ 6-13 and Plaza's daily logs annexed thereto, at Dultz Aff., Exs. Z, AA. Given the documentary evidence that fully supports Mr. Usher's statements, Ess & Vee's criticisms are baseless. 20. Ess & Vee's contention that Mr. Usher's affidavit contradicts his deposition, see Ess & Vee Opp. ¶ 5, testimony is equally meritless. 21. Contrary to Ess & Vee's argument see id., Mr. Usher's inability to remember at his deposition when Ess & Vee was working at the 2LL level and specifically what work Ess & Vee was performing, three and a half years before his deposition on March 10, 2017, does not render his affidavit contradictory to his deposition, because when Mr. Usher was questioned regarding Ess & Vee's work he did not have Plaza's daily logs before him. Ess & Vee's argument is misleading and disingenuous. 22. For example, Ess & Vee points to Mr. Usher's deposition testimony that he "recently," recalled only that Ess & Vee had performed sheet rocking work in relation to when the accident occurred. See Ess & Vee Opp. Aff. ¶ 5 (citing Usher EBT, at P.133:17). The fact that in his affidavit Mr. Usher states that Plaza's daily logs show that Ess & Vee was performing sheet rocking work at the 2LL level on August 28, 2013, August 29, 2013, August 30, 2013, and performing other types of work on September 3, 4, 5, and 6, 2013, see Usher Aff. ¶¶ 7-13, is not contradictory because Mr. Usher did not answer the question based on the daily logs. The question was asked based only on hisrecollection. [1763131/1] 7 7 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 23. Similarly, while Mr. Usher testified at his deposition that he did not recall whether anyone was working with wood at the 2LL level, see Ess & Vee Opp. Aff. ¶ 5 (citing Usher EBT, at P.131:22-24), his affidavit stating that the daily logs show that Ess & Vee was working with wood at the 2LL level, see Usher Aff. ¶ 8, isnot contradictory because Mr. Usher did not answer the question based on what the daily logs stated; he based his answer solely on his recollection. 24. For the same reason, Mr. Usher's testimony that he did not recall whether anyone was working on the 2LL level on the day of the accident, or whether in the week leading up to the accident any trades were working in the area of the accident, see Ess & Vee Opp. Aff. T 5, (citing Usher EBT, at P. 136:12-14; P. 136:21-25.), does not contradict his affidavit wherein he states that the daily logs show that Ess & Vee and B&G were working at the 2LL level in the days leading up to and on the day of the alleged accident, see Usher Aff. ¶¶ 6-13, because Mr. Usher did not answer the question at his based on what the daily logs stated; he based his answer solely on his recollection. 25. Ess & Vee's assertion that "[t]here is no dispute Mr. Usher reviewed his logs testifying" prior to Ess & Vee Opp. Aff. ¶ 6, is false and misleading. Ess & Vee submits no proof that Mr. Usher reviewed the daily logs before his deposition. Regardless, even if Mr. Usher had looked at the daily logs before his deposition, the deposition transcript establishes that when Mr. Usher was auestioned regardine Ess & Vee's work he was not looking at what he wrote on the daily logs, and that he answered counsel's auestions based solely on his recollection. 26. In fact, Mr. Usher's deposition transcript shows that counsel questioned Mr. Usher solely regarding the daily log that he prepared on the day of the accident and that Mr. [1763131/1] 8 8 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 Usher provided testimony that was fully consistent with his affidavit. Counsel questioned him as follows: Q: Good afternoon, sir. Can you just take a look at Plaintiff's 7 that's the daily reports? Specifically the daily report that you prepared p_n the day of the accident. A: Okay. *** Q: Was Ess & Vee Acoustical noted as being on site that day? A: Y_es. *** Q: What work was Ess & Vee doing that day? A: FRP which is a wall panel at 2LL. Sheetrock ceiling first floor, sheetrock and Duro Rock walls on the first floor. Usher EBT, at P. 67:23-P.77:22 (emphasis added), at Dultz Aff., Ex. M. 27. Contrary to Ess & Vee's argument, and fully consistent with his affidavit, Mr. Usher states therein that on the day of the alleged accident Ess & Vee did FRP work at the 2LL level. See Usher Aff. ¶ 13. He further avers that FRP stands for fiberglass reinforced panels. See id. 28. Ess & Vee's counsel did not auestion Mr. Usher regarding Ess & Vee's work performed at the construction site as set forth in the daily logs during the days prior to the alleged accident, even though counsel had every opportunity to do so. Ess & Vee's counsel's assertion that he did not ask Mr. Usher any follow-up questions regarding which trade subcontractors were performing work at the 2LL level prior to and on the day of the accident because Mr. Usher testified he did not remember, see Ess & Vee Opp. Aff. ¶ 16, is unfounded as counsel overlooks that he had Mr. Usher's daily logs fully available to him and the opportunity to ask Mr. Usher questions about them. Yet, he chose not to. It isentirely duplicitous for Ess & Vee to attempt to shift to NYY Steak and Plaza the consequences of its failure to question Mr. Usher regarding what he wrote in the daily logs at his deposition. Ess & Vee has failed to point to any evidence [1763131/1] 9 9 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 that itwas precluded from doing so and its excuse for not doing so is completely baseless. 29. For the same reason, Ess & Vee's contention that NYY Steak and Plaza are using Mr. Usher's affidavit as means of demonstrating Ess & Vee's involvement in this action through "backdoor," the Ess & Vee Opp. Aff. ¶ 15, is patently untrue. Ess & Vee had every opportunity to question Mr. Usher regarding Plaza's daily logs at his deposition but Ess & Vee inexplicably failed to do so. 30. The utter baselessness of Ess & Vee's argument is further demonstrated by the fact that NYY Steak and Plaza produced Plaza's daily logs on or about December 18, 2015, more than a year before Mr. Usher's deposition. See Response to Third Third-Party Defendant Ess & Vee Acoustical Contractors, Inc.'s Combined Demands, ¶ 16, and Ex. H (annexed hereto as "A" Exhibit (without exhibits, other than the daily logs attached as Exhibit H)); see Usher EBT, at Dultz Aff., Ex. M. It ishighly disingenuous for Ess & Vee to try to discredit NYY Steak and Plaza for submitting proof of Ess & Vee's involvement in the alleged accident, that was disclosed to Ess & Vee years before NYY Steak and Plaza filed their motion for summary judgment. 31. Ess & Vee's further contention that the Court should disregard Mr. Usher's experience" statement in his affidavit at paragraph 8 that "in his blocking work involved use of the type of wood that the plaintiff claims he tripped over, see Ess & Vee Opp. Aff. ¶ 9, also lacks any merit. Ess & Vee fails to provide any legal basis for its argument that Mr. Usher's averment is insufficient to establish that the wood involved in the plaintiff's accident belonged to allegedly Ess & Vee. Mr. Usher's affidavit provides convincing evidence of Ess & Vee's involvement. 32. Ess & Vee also baselessly asserts that there is no proof that the piece of wood that the plaintiff tripped over belonged to it,because there is no proof that wood that was used for [1763131/1] 10 10 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 blocking on August 29, 2013 was the same piece of wood involved in the alleged accident. See Ess & Vee Opp. Aff. ¶ 15. To the contrary, the evidence that just a few days before the accident, Ess & Vee used a piece of wood that is identical to the piece of wood that the plaintiff tripped over while working in the vicinity of the alleged accident is persuasive evidence that the wood belonged to Ess & Vee. 33. Ess & Vee's reliance on photographs of the elevator pit to support is argument that the 2 x 4 it used on August 29, 2013 was not 2 x 4 the plaintiff claims that he tripped over, see Ess & Vee Opp. Aff. ¶ 15, also lacks a speck of merit. The photographs marked at the Defts.' plaintiff's deposition are close-ups of the elevator pit. See Aff., Ex. W. They do not show the surrounding area.See id. Therefore, Ess & Vee's self-serving conclusions as to the work that it was doing at or about the time of the alleged accident based on the photographs of the elevator pit is unjustified. 34. Ess & Vee also improperly speculates that the piece of wood could have been dunnage or itcould have been from the protective covering for the elevator pit. See Ess & Vee's Opp. Aff. ¶ 15. Its wild speculation is insufficient to refute Mr. Usher's affidavit which supports the conclusion that Ess & Vee used the wood for blocking work. See Usher Aff. ¶ 8. Ess & Vee's provides no basis whatsoever for itshypotheticals that the 2 x 4 was dunnage or it was part of the elevator pit's protective cover and somehow became detached from it.Ess & Vee's imaginative theories are insufficient to refute Mr. Usher's statements in his affidavit that are based on his personal knowledge and experience. 35. Ess & Vee has woefully failed to back up its baseless criticisms of Mr. Usher's affidavit with facts. Moreover, Plaza's daily logs which NYY Steak and Plaza produced to Ess & Vee years ago and the irrefutable fact that Ess & Vee had every opportunity to question Mr. [1763131/1] 11 11 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 Usher regarding Plaza's daily logs at his deposition but chose not to do so render its criticisms of Mr. Usher's affidavit particularly misguided. IL ESS & VEE HAS FAILED TO SHOW THAT A TRIABLE ISSUE OF FACT EXISTS AS TO WHETHER NYY STEAK AND PLAZA WERE NEGLIGENT 36. Ess & Vee's opposition to the NYY Steak's and Plaza's motion for summary judgment dismissing the plaintiff's Labor Law § 200 and common-law negligence claims against them is baseless. As an initial matter, all of Ess & Vee's arguments are directed at Plaza, not NYY Steak. See Ess & Vee Opp. Aff. ¶¶ 9, 26. Since Ess & Vee has failed to oppose NYY Steak's motion for summary judgment, the plaintiff's Labor Law § 200 and common-law negligence claims against itshould be dismissed. 37. With respect to Plaza, Ess & Vee asserts that Plaza has failed to establish that it did not create or have notice of the inadequate lighting that the plaintiff claims caused his accident. See Ess & Vee Opp. ¶¶ 3, 8. However, neither in paragraphs 3 or 8 of its opposition nor anywhere else in its opposition does Ess & Vee point to any evidence refuting Plaza's proof on its motion for summary judgment that B&G was responsible for the lighting at the 2LL level, and that Plaza did not have notice that the lighting was inadequate. Therefore, for the reasons stated in Plaza's moving papers, it was not negligent as a matter of law with respect to the Defs.' plaintiff's claim that the lighting was inadequate. See Chin EBT, at P.43:1-16, at Aff., Ex. Defs.' P; Usher EBT, at P. 140:20-25, P.146:15-21; P.147:8-10; at Aff., Ex. P; see NYY Steak's and Plaza's Mem. of Law, at 10. 38. Therefore, Ess & Vee's argument that Plaza was negligent with respect to the alleged inadequate lighting is meritless. 39. The only basis for Ess & Vee's opposition is its contention that Plaza was negligent in failing to remove the piece of wood that the plaintiff claims to have tripped over. [1763131/1] 12 12 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 See Ess & Vee Opp. Aff. 1 9. Its argument that Plaza had constructive notice of the alleged condition however is based on itserroneous self-serving assumptions. 40. Ess & Vee acknowledges that as established by Plaza's daily logs on August 29, 2013, Ess & Vee performed work at the 2LL level that involved 2 x 4's and plywood. See Usher Defs.' Aff. ¶ 8, Daily Log dated 8/29/13, at Aff., Exs. Z, AA. Ess & Vee argues that Plaza had constructive notice of the alleged dangerous condition because the wood was present since August 29, 2013.See Ess & Vee Opp. Aff. ¶ 9. Ess & Vee's argument is incorrect because it ignores that Ess & Vee was stillworking at the 2LL level on August 30, September 3, September September and September 2013. See Usher Aff. Logs dated 8/30/13- 4, 5, 6, ¶¶ 9-13, Daily Defs.' 9/6/13, at Aff., Exs. Z, AA. Since Ess & Vee was actively working in the area of the accident, Plaza did not have a reasonable opportunity of discovering the 2 x 4 prior to the alleged accident, even if itexisted. Mr. Usher testified that when he went to the accident location he did not see any form of wooden debris. See id. P.150:13-17. Mr. Gomez, plaintiff's foreman who was working with the plaintiff at the time of the alleged accident also testified that after it occurred he did not see anything on the ground where the plaintiff fell. See Gomez EBT, at Defs.' P.63:15-18, at Aff., Ex. R. 41. Furthermore, Ess & Vee ignores Mr. Usher's testimony that the last time he inspected the 2LL level was the day before the accident or sometime prior thereto. See Usher EBT, at P. 97:11-15. Mr. Usher did not go to the elevator pit on September 6, 2013, until after the alleged accident which the plaintiff claims occurred at 8:00 a.m. See Usher at P.103:1- EBT, 25;P123:11-12. These facts show that Plaza did not have constructive notice of the alleged debris because the alleged accident occurred after Mr. Usher last inspected the area. See, e.g., Rivers v. 2160 Realty Co.. LLC, 4 N.Y.3d 837, 838 (2005) (where plaintiff tripped on a beer [1763131/1] 13 13 of 23 FILED: NEW YORK COUNTY CLERK 10/21/2019 08:44 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 482 RECEIVED NYSCEF: 10/21/2019 bottle while descending steps at 5:00 a.m., defendant did not have constructive notice of the alleged dangerous condition because "no evidence was offered indicating that the landlord was notified of the debris that night or that the bottle was present for a sufficient period of time that defendant's employees had an opportunity to discover and remedy the problem"). 42. Thus, Ess & Vee has failed to refute that NYY Steak and Plaza were not negligent as a matter of law. Therefore, the plaintiff's Labor Law § 200 and common-law negligence claims against NYY Steak and Plaza should be dismissed. HL ESS & VEE HAS FAILED TO REFUTE THAT ITS INDEMNITY OBLIGATION IS TRIGGERED UNDER ARTICLE 9(A)(1) OF THE CONTltACT 43. Ess & Vee's indemnity obligation is triggered under several different provisions of the contract, any one of which is sufficient to establish that it isobligated to indemnify NYY Steak and Plaza as a matter of law. First, Ess & Vee's indemnity obligation is triggered under Article 9(A)(1) of the indemnity provision which requires Ess & Vee to indemnify NYY Steak of" with" and Plaza for claims which "arise out of . .. or claimed to arise out or "be connect the Defs.' performance of itswork. See Ess & Vee Subcontract, at Art. 9(A)(1), at Aff., Ex. V. 44. The evidence that the 2 x 4 belonged to Ess & Vee and that the plaintiff claims he tripped over the 2 x 4 triggers Ess & Vee's indemnity obligation. Therefore, Ess & Vee is obligated to indemnify NYY Steak and Plaza as a matter of law.