### Aguirre v 635 Madison Fee Prop. Owner LLC 2024 NY Slip Op 33391(U) September 26, 2024 Supreme Court, New York County Docket Number: Index No. 151111/2021 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 424 INDEX NO. 151111/2021 RECEIVED NYSCEF: 09/26/2024 

### SUPREME COURT OF THE 

### STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO Justice ---------------------------------------------------------------------X JEAN AGUIRRE, Plaintiff,-v635 MADISON FEE PROPERTY OWNER LLC,TECTONIC BUILDERS INC.,BRONXDALE ELECTRIC INC.,IRONWOOD REALTY CORPORATION, RICHEMONT NORTH AMERICA, INC.,MONTBLANC, Defendants. ---------------------------------------------------------------------------------X RICHEMONT NORTH AMERICA, INC. and MONTBLANC, Plaintiffs,

- V - TECTONIC BUILDERS INC. Defendant. 

### ---------------------------------------------------------------------------------X

TECTONIC BUILDERS INC. Plaintiff,

- V - PRACTICAL PLUMBING AND HEATING INC. Defendant. --------------------------------------------------------------------------------X PART 33M INDEX NO. 151111/2021 MOTION DATE 08/31/2024 MOTION SEQ. NO. 004
DECISION+ ORDER ON MOTION

Third-Party Index No. 154132/2021

Second Third-Party Index No. 595529/2021

The following e-filed documents, listed by NYSCEF document number (Motion 004) 197, 198, 199, 200, 201,202,203,204,205,206,207,208,209,210,211,246,251,252,253,277,278,279,282,283,284, 285,286,287,288,289,290,291,309 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Motion No. 004
1 of 5 Page 1 of5 

### [* 1]NYSCEF DOC. NO. 424 INDEX NO. 151111/2021 RECEIVED NYSCEF: 09/26/2024
Upon the foregoing documents, Defendant/Second Third-Party PlaintiffTectonic Builders Inc.'s ("Tectonic") motion for summary judgment on its claims for contractual indemnification and common law indemnification against Second Third-Party Defendant Practical Plumbing and Heating, Inc. ("Practical") is denied. 

### I. Background For a more thorough recitation ofthe facts, the reader is referred to this Court's Decision and Order onmotion sequence 003. Tectonic seeks summary judgment on its contractual indemnification and common law indemnification claims against Practical. Tectonic argues that Practical controlled PlaintiffJean Aguirre's ("Plaintiff') work which caused his accident and provided Plaintiffwith the defective ladderthat caused him to fall. Moreover, Tectonic provides a contract executed betweenTectonic and Practical. In the contract, Practical agreed to indemnify Tectonic for all liability for bodily injury resulting from the work performed pursuant to the contract. Because Tectonic argues that Plaintiffwas injured as a result ofPractical's faulty supervision and instruction ofthe Plaintiff, Tectonic argues it is entitled to indemnification pursuant to its contract. Plaintiff opposed Tectonic's motion and argues that Tectonic has failed to show that it lacked notice ofthe defective ladder and has failed to showthat it lackedthe authority to direct or control the means and methods of Plaintiffs work. Practical also opposes Tectonic's motion. Practical argues that Tectonic's witness testified that he was responsible for supervising safety on the site andholding weekly toolboxmeetingswiththevarious subcontractors. Practical argues that pursuant to Tectonic's Safety Manual, Tectonic had the responsibility to enforce all safety rules and procedures on the worksite. Moreover, there is testimony that although Tectonic was required to hold safety meetings, Practical'switness testifiedthat there were no suchmeetings held priorto

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Motion No. 004
2 of 5 Page 2 of 5 

### [* 2]NYSCEF DOC. NO. 424 INDEX NO. 151111/2021 RECEIVED NYSCEF: 09/26/2024
Plaintiffs accident. Practical also argues that Tectonic has not and cannot prove which ladder Plaintiffwas using at the time ofhis accident, or who the owner ofthat ladder was, since Tectonic destroyed the ladder onthe day ofthe incident. Practical argues atthe very leastTectonic'smotion shouldbe denied as it should notbe rewarded for destroying the ladder. In reply, Tectonic argues that even ifit exercised some control overthe worksite, the level ofcontrol exercised is insufficient to give rise to liability. It further argues there can be no real argument that it had notice over any defective condition because the undisputed testimony shows that the ladder appeared free ofdefects priorto the Plaintiffascending it. II. Discussion "Summaryjudgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence ofany material issues offact." (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is aheavy one and
on a motion for summaryjudgment, facts must be viewed in the light most favorable to the nonmoving party." (Jacobsen vNew York City Health andHasps. Corp., 22 NY3d 824, 833 [2014]). Once this showing is made, the burden shifts to the party opposing the motion to produce evidentiaryproof, in admissible form, sufficientto establishthe existence ofmaterial issues offact which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Although a general contractor may be held absolutely liable for a breach ofLabor Law §240(1), this does not obviate the right ofa general contractor to seek full indemnification from the party who is responsible for the accident (McCarthy v Turner Const., Inc., 17 NY3d 369 [2011]). To show entitlement to common-law indemnification, a party must show (I) that it has been held vicariously liable without proofofany negligence or actual supervision on its part, and (2) that the proposed indemnitor was either negligent or exercised actual supervision or control

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Motion No. 004
3 of 5 Page 3 of 5 

### [* 3]NYSCEF DOC. NO. 424 INDEX NO. 151111/2021 RECEIVED NYSCEF: 09/26/2024

over the injury-producing work (Naughton v City of New York, 94 AD3d 1 [1st Dept 2012]). "However, where atriable issue offact existsregarding the indemnitee'snegligence, a conditional order of summary judgment for contractual indemnification must be denied as premature" (Spielmann v 170BroadwayNYCLP, 187 AD3d 492,494 [1st Dept 2020]). Here, there are issues of fact as to Tectonic's negligence which preclude awarding summary judgment on its claims for indemnification. Tectonic's witness, Joseph Latona ("Mr. Latona") admittedthathe had authority to control the manner and method ofsubcontractors' work (NYSCEF Doc. 176:6-15). He testified that he walked around the worksite to ensure subcontractors were adhering to safety rules (id at 127:15-20). He testified that he conducted toolbox safety talks (id at 152-153). It was Mr. Latona's decision to destroy ultimately the ladder whichcausedPlaintiffsaccident(id. at 194). AlthoughMr. Latonatestifiedthathe was notpresent atthe time ofthe accident, PeterConstantakis, Plaintiff's supervisor, testified thatMr. Latonawas sitting at his desk in the same room where Plaintiff fell (id. at 75:5-7). Although Mr. Latona testified he knew someone should have been holding the ladder while Plaintiff used it, Peter testified that he was talking with Mr. Latona while Plaintiffused the ladder, creating an issue of fact as to whether Mr. Latonaknew or shouldhave known Plaintiffwas using an unsecured ladder (id. at 139). Giventhese issues offact and conflictingtestimony, granting Tectonic summaryjudgment
onitsclaimsfor commonlawindemnificationandcontractualindemnificationwouldbepremature (York v Tappan Zee Constructors, LLC, 224 AD3d 527, 529 [1st Dept 2024]; Bradley v NYU Langone Hospitals, 223 AD3d 509, 511-512 [1st Dept 2024]; Spielmann v 170 Broadway NYC LP, 187 AD3d 492 [1st Dept 2020] [where atriable issue offact exists regarding the indemnitee's

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Motion No. 004
4 of 5 Page 4 of 5 

### [* 4]NYSCEF DOC. NO. 424 INDEX NO. 151111/2021 RECEIVED NYSCEF: 09/26/2024 negligence, a conditional order of summary judgment for contractual indemnification must be denied as premature]). Accordingly, it is hereby, ORDERED that Defendant/Second Third-Party PlaintiffTectonic Builders Inc.'s motion for summary judgment on its claims for contractual indemnification and common law indemnification against Second Third-Party Defendant Practical Plumbing and Heating, Inc. is denied; and 

### it is further ORDEREDthat within tendays ofentry, counsel for Practical Plumbing and Heating, Inc. shall serve a copy ofthis Decision and Order, with notice ofentry, on all parties via NYSCEF. This constitutes the Decision and Order ofthe Court.

9126/2024

DATE CHECK ONE:

APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED SETTLE ORDER 

# Q DENIED

INCLUDES TRANSFER/REASSIGN

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY Motion No. 004
5 of 5 HJQN. MARY V. ROSADO, J.S.C.

x NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

## □ OTHER

### □ REFERENCE

Page 5 of5 

### [* 5]