Cotroneo v Van Wagner Sign Erectors, LLC

2024 NY Slip Op 30811(U)

March 13, 2024

Supreme Court, New York County

Docket Number: Index No. 162038/2015

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. 492 

INDEX NO. 162038/2015 

RECEIVED NYSCEF: 03/13/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON.MARYV.ROSADO 

Justke 

_____________ ._ .. -. .. Te---------------------------------------------•••• o.n -----X 

COSMO COTRONEO. 

Plaintiff, 

- V -

VAN WAGNER SIGN ERECTORS. LLC. NIK/A OUTFRONT 

MEDIA SIGN ERECTORS. LLC., VAN WAGNER 

ELECTRICAL AND MAINTENANCE, LLC. N/KJA 

OUTFRONT MEDIA ELECTRICAL AND MAINTENANCE. 

LLC., VAN WAGNER COMMUNICATIONS, LLC. N/K/A 

OUTFRONT MEDIA Vi/V COMMUNICATIONS, L LC., 

VORNADO REAL TY TRUST. VORNADO OFFICE. 

INC .. VORNADO SlGN. LLC,ONE PENN PLAZA LLC .• 

Defendant. 

CROSS MANAGEMENT CORP. 

Plaintiff, 

-againstNEAD ELECTRlC OF NEW JERSEY. INC. 

Defendant. 

-------·- -~· - -- OT- -------------------------------------·~----~-.---------------X 

VAN WAGNER SIGN ERECTORS, LLC N/KJA OUTFRONT 

MEDIA SIGN ERECTORS, LlC. 

Plaintiff, 

-againstNEAD ELECTRlC OF NEW JERSEY, tNC. 

Defendant. 

---------------------------· ·-· •• ·~~-~----------------------------------~-•• X 

VORNADO REALTY TRUST, VORNADO OFFICE, INC., 

VORNADO SIGN, LLC, ONE PENN PLAZA LLC 

Plaintiff, 

-against162038-/2015 COTRONEO, COSIYIO v:s. OUTFRONT MEDIA SIGN ERECTORS 

Motion No. 009 

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PART 33M 

INDEX NO. 

MOTION DATE 

162038/2015 

05/04/2023 

MOTION SEQ. NO. __ _.:0:.=0-=.9 __ 

DECISION + ORDER ON 

MOTION 

To ird-Pa rty 

Index No. 595393/2016 

Second Third-Party 

Index No. 59550412019 

Third Third-Party 

Index No. 596052/2020 

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NYSCEF DOC. NO. 492 

NEAD ELECTRIC, INC, NEAD ELECTRIC OF NEW JERSEY, 

INC. 

Defendant. 

-------------------------------~·~-----------------------------.--••r.-X 

INDEX NO. 162038/2015 

RECEIVED NYSCEF: 03/13/2024 

The followmg e-filed documents, listed by NYSCEF document number {Motion 009) 433, 434, 435, 436, 

437,438,439,440,441,442,443,444. 445,446,447,448,449,450.451, 452,453,454,455.456,457. 

458,459,460,461,462,463,464,465,466,467,468,469,470,471.472, 473,474,475,476,477,478. 

479,480.481. 482,483,484 485,486,487,488.489, 490 

were read on this motion to/for JUDGMENT-SUMMARY:.._ __ _ 

Upon 1hc foregoing documents, ·11tird-Party Defendants/Second Third-Party 

Defendants/Third Third-Party Oefcndants Nead Electric, rnc. and Nead Electric, Inc. i/s/h/a 

Nead Electric of K e\v J~rsey, J nc.' s ( co!lccti vely "l\ cad") motion for an Order granting l\ cad 

summary judgmtnt dismissing the Third-Party (~YSCEf Doc. 444), Second Third-Puny 

(NYSCIT Doc. 445) Third Third-Party (NYSCFF Due. 446) claims, cross-daims. and counterd aim~ asserted against it is denied. 

I. Backgrou ntl 

Plaintiff Cosmo Cotroneo ("'Plaintiff") cmmnenced this action fol' alleged injury sustained 

on or about February 14, 2013 1 \Vhile working as. an electrician for Nead at a construction project 

located al 4.10 Seventh Avenue in Manhattan {the ·•Premises" or I.he "Site'') ov,,ned an<l managed 

by Dcfcndants!Third Third-Party Plaintiffs Vomudo Realty Trust and One Penn Plaza, LLC 

(NYSCEF Ooc. 466 at ii 4). 

Ocfcndant/Sec:onJ Third•Party Plaintiff Outfront Media Sign Erectors~ LLC f/kla Van 

Wagm:r Sign Erectors, I.LC (·Outfront"_) was retained hy Vornado to perfom1 work to convert a 

: The nriginal Ctunplaint and Dill of Particu!ars st:rvcd by Pbcntiff aHcgcd that the date of the accident was February 

17, 20 l 3. Ddt:ndants disputed this date, noting that it was .i Siinclay (NYSCEF lJ-oc. 397, ,- J 6), Ry OrJer Jatcd 

January :?3, 2019, tilis Court directed PlaintitTto file an Amended Summons and Complaint with the wrrcc{ed date 

n r L he ace id(:m ( N YSC FF Doc. ! 77). The date was determ incd to he February 14, 20 D based on t imc sheet records 

[Jf Plaimiff's employ~r (>JYSCFF Doc 3 77). 

1620381~-015 COTRONE;:0, COSMO 11s. OUTFRONT MEDIA $IGI\I ERECTORS 

Motion No, 009 

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vinyJ, "static" rooftop sign to a digital advertising sign (N YSCLF Doc. 466 at 1 4 ). Outfro11t 

suhsequenlly retained Nead to pcrfonn electrical power in~tul lalion for the sign (Id.). Plaintiff and 

his workers were ta~kcd with ''Joading tools and equipment into the 'foreman's helper' gang box, 

which v.·ould then serve as a 'boat' to be hoisted hy a crane ... lo the roof' (NYSCEF Doc. 46 at ii 

7). 

Plaintiff alleges that on Fchruary 17, 20 t 3, he sustained severe and permanent injurtcs due 

to a <ldedive and (fongerous gang box (NYSCEF Doc. 440 at,.- 71). Spcc:iticully, Plaintiff alJeges 

th at on the sidewalk at or near the Premises, he was struck by the lid of a "foreman) s hcl per'° gang 

box whtk in the l:ourse or his employment with Nead (~ YSC I ~F Doc. 466 at .- ! 0). 

Plaintiff commenced the underlying action on November 20, 2015, by filing a Summons 

and Complaint asserting rnrnmon law negligence, and violations or I ,abor I .aw Secl1ons 200, 240, 

and 241 ( 6) agaJnst Defendants Vornado Realty Trust (Vornado"). One Penn Plaza, LLC, 

Outfront, Tom Recknwald Construction. Inc, North Shore J\con Sign Co., Tne., and Cross 

Jvfonagcmcnt Corp ('·Defendants") (>J"YSCFF Doc. 440). 2 

Defendant/Third-Party Plaintiff Cross Management Corp. filed a Third-Party Sllmmons 

und Complaint against Nead dated VJay 19, 2016 (NYSCEF Doc. 444).·1 Thereafter, Outfront Wed 

a Second Third-Party Summons and Complaint agains.t Nead dated June 12, 2019, us5erting crmses 

of action for common law and contrn~tual im.lemnificHtion, and contribution and breach of contract 

(N"YSCEF Doc. 445). Subsequently, Dcfcndants./Third Third-Party Plaintiffs Vornado Realty 

Trust, Vornado Office, inc., Vornado Sign. I.LC anJ One Penn Plaza, I.LC (collectively "Third 

2 Oefcndants Tom Reucnwakl ::inJ North Sh(m.: Neon Sign were prev[ous.ly dismissed from this mallL:r via lhc 

Decision ~nd Or(lcr nr the Ccnirt. dmcd January 23, :2U l 9 C<YSO~i-: Doc. 4:,:;:}. 3 l)cf(:nJuntilhird-Pany rlaintiff Cross .\.1<1nage-me-nt Corp. wat. vulunlari!y discontinued from thi~ matter per 

stipubtinn of discontinmrnce dmcd f\.-fay ~4, ~O 19 (;-.JYSCFF Dr11:. 439") and th~rdor~ Cross Management's initial 

Thi rd- Party Complaint against Nead is rt tl dcrcd m Oo[ 11nJ i~ di sm i sscd by operatLOll (If law, 

162038{2{115 COTRONE::O, COSMO vs. OUTFRONT MEDIA SIGN ERECTORS 

Motion No. 009 

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Third-Party Plaintiffs~·) filed a Third-Party Summons and V~rified Third~Party Complaint 

(NYSCEF Doc. 446) usserting causes of action for contractual indemnity, common la\v indemnity, 

comribu.lion and breach of wntract against Nead. 

On May 4, 2023) Nead brought the instant motion for fill ()rJcr gn.mting Nead summary 

judgment dismissing the Third-Purly. Second Third-Party and Third lhird-Parly claims. crossclaims and counter claims asserted against it {NYSCEP Doc. 433). Outfrcmt filed an Ailim1alion 

in Opposition w NcaJ's motion dated Ju!y 24, 2023 (); YSCEF Doc. 470). Plaintjff suhminc-J an 

Affirmation in Opposition to Nead's motion dated July 28, 2023 (NYSCEF Orn:. 475). Third 

Third-Party Plainti lls submitted an Affirmation in Opposition 10 Nea<l" ~ motion on Augu:'il 1 I, 

2023 (~YSCEf Doc. 488).4 

II. l)jsrns~itm 

A. Standard 

Summary judgment is a drastic remedy. to be granted only where the movtng party has 

tendered sufficient cvidem::e to demonstrate the absence of any material issues of fact.') ( Vega v 

Resrani ComJ. Corp., 18 ~Y3d 499, 503 [2012]). The moving party's .. burden is a heavy one and 

on u motion for summary judgment, facts must be vi~,ved in the light most favorable to the nonmoving party." (],,cob.sen v New fork City Health and 1 lnsp.v. Corp., 22 NY3d 824, 833 12014 DOnce this showing is made, the burden shifts to the pm1y opposing the mntion to produce 

cvidcntiary proof, in admissible form, suflicient to establish the exi.'jtence of material issues of fact 

which require a trial. (See e.g .. :Lucker man v City of New York. 49 ~Y~J 5 57, 562 [ I 980]; 

Pembenon r New York City Tr. Aurh, 304 AD2u 140, 342 [1st Dept 20031). Mere conclusions of 

1 While it 15 noted that Third-Party Plaintiffs. submitted their opposition three day~ before the return date, rather 

th,m scv('n days as required by CPLR Rule 2214{b}, the Court, in its discretion, elect~ to con:s:ider Third-Party 

Pia tnti ff's o ppo sjti on, 

162038/2015 COTFIONEO, COSMO vs. 01.JTFfWNT ME:DIA SIGN ERECTORS 

Motion No. 009 

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law or fact arc insufficient to defeal a motion for summary judgment (see Bunco Popular ;Vorth 

Am. v Vicrory Taxi }vfgt., Inc., 1 NY3J 38 l 12004.1), 

B. Nc_ad's M.Qt[on for Summm}' Judgment 

It is. v.-ell t"stahlishcd that Workers· Compensution f.a.\v ("\'1/CL") ~ 11 i.prohibits lhir<lparty indemnification or contribution daims against employers, exci::pl \vhcre the employee 

sustained a 'grave injury.' or the clajm is ~based upon a provision in a written contract enlercd into 

prior to the accident or O'.:currcnce by which the employer had expressly agreed to contribution to 

or indemnification of the daimant or person as::;,erting the cause of action" (Rodriguez v .N&.\' B1dg. 

Contrs., inc .• 5 KY3d 427. 430 [2005]). 

1. No Written Contract Containing a Valid Contractual Indemnity 

Provision Exists 

:-.Jcad appeals to \VCL § 11 in support of its argument that, as the Plaintiff's cmploycl', aH 

daims. again-;t it must be dismissed because 110 valid and cnforceabk contractual indemnity 

pmvision exists (NYSCEF Doc. 434 at p. 14). At the outset. Outfront argues in opposition that 

Nead has failed to meet its prima facie burden for summary judgment by failing to proffer 

admi'lsiblc evidc-ncc to suppon ib daim that no contractual agrei;:mcnt including an indemn1ty 

provision exists (l\YSCEF Doc. 470 at p. 3). Specific(11ly, Outfrnnt contends that Nead has failed 

lo demons1ratc. through admissible evidence, that Nead· s Proposal for \l,/mk (the ''Proposal'') 

().l"YSCEF Doc. 457) is a full and complete copy or the proposal between the parties (NYSCLJ<' 

Due. 470 at ~i 11). 

The Court of Appeul s has held that "l\v]hcther the parties did in fact have such an 

agreement involves a tv,m-1Mrt inquiry. First, we consider \vhether the parties entered into a \vri Lten 

contract containing an indemnl ty provision apphcable to the site or job where the injury giving 

16:203812015 COTRONEO, COSMO vs. OUTf'RONT MEDIA SIGN ERECTORS 

Motion No. 009 

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rise to the indemnity claim took place. Second, if so, \Ve examine whether the indemnity provision 

was su ffi ci ent I y particular to meet the rcq ui rem en ts of sect ion 11" (Rodriguez at 4 3 2). 

Here, the deposition testimony of Andrew II.o]tzer (NYSCEF Doc. 455), the Vice President 

of Design and T cchno logy for Outfront, estahlished that Mr. Hull/er acknowledged that the 

Proposal was sent to him in the regular cour~ of business and that when he received the Proposal 

[n the regular course of business, he reviewed it with Eli Zamek, of Vornado, and was told to 

proceed (NYSCEF Dm:. 455, pp. 62: l48; l 59}(/Jank ofA.merica, /1/ar. Ass 'n v Brannon~ 156 A.D3d 

l [ l st Dt:pl 201 71 r records admis:-1ihlc rl if the r~cipient can estabhsh .. ' that the records provided 

by the maker \verc incorporated into the recipient's O\Vn r~cords or routinely relied upon by 1hc 

re~i pi en t in its business" J. 

Contrary to the assertions of Outfronl, Mr. Holtzer' s te~tirnony dcmonsm1tes personal 

knowledge of the proposal which is the ba<:,is of the contractual relationship hetwecn movam and 

Outfrom and v.--hich, significantly, contained no ind~mnity provision. Accordingly, N~ud has 

established prima .facte thut there \Vas no v.Titten contract enten~<l into prior to the accident by 

which it had expressly agreed to contribution or indemnification. Nor have third-party plaintiffs 

;(;ubmittcd any evjdcncc of a written imk:mnity agreement be11,vccn the partje~. 

As there is no dispute that Nead was not retained pursuant to any formal \vritten contract, 

all third-pany indemnification or contribution claims aguinsl Nead are prohihitcd by WCL § 1 l, 

except \Vhcrc the employee sustained a i.grnve injury." 

u. Mate1ial Questions of Fact Remain Regarding Whether P!ainli ff 

Sustui ned a Gm\\; lnjurv Pursuant rn WCL § l l 

It is well established that, with respect to WCL § 1 I, it is "the burden of the party seeking 

summ...1.ry judgment to show, by competenL adrnjssiblc evidence, that the plaintiffs. inj urics \Vere 

not •grave'" (Altonen ii Toyota idotor Credit Corp., 32 AD.1<l 342. 343 [l st Dept 2006t). 

1 S2038f2 Q 15 COTRO NEC, COSMO Y s.. OU TFRO NT MEDIA SIGN ERECT ORS 

Motion No. 009 

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Herc, Outfron l, Plaintiff and Third Thi rd~ Party P 1 ai n tiffs arg uc that N ea<l failed to dem onst ra tc its 

entitlement Lo judgment as a matter of law as there is a triable issue of fact \vhether Plaintiffs 

claimed traumatic brain injury constituks a grave injury under WCL § 11. WCL § 11 states that 

grave injury shall meun only one or more or the following:: 

ID lcath, permanenl and total loss of use or amputation or an ann. 

leg~ hand or foot, loss of muhiple fingers. loss of muhiple toes. 

paraplegia or quad rip kgia, total and perrnant:!nt blindness, total and 

pem1am::nt deafness, Joss of nose. loss of ear, permanent and severe 

facial Ji:'iCigurcmcnt, loss of an index finger or an acquired injury 

to the brain nlused by a.n external ph)'sica) force resuJting in 

permanent totaJ disahiJity f cmphasi~ a<ldcd_l. 

The Court of Appeals ha:,; held that 'Toe Le~l \VC adopt for permanent total disability under 

section 11 is one or unemployability in any c.:apucity (Rubeis v Aqua Club Inc., 3 NY:ld 408. 417 

[2004]) [ emphasis in odgimd]. 

In suppon of its position that Plaintiff did not suffer a grave injury a-. a result of the 

Accident, !\'cad submial'.<l Plaintiff's workern' compensation record~ which sho,v Lhai Plaintiffs 

first post-acl'.idcnt MRI of the bruin, taken on June 27, 2014 (over a year after the accident), wa~ 

normal (NYSCEF Doc. 463 ). A subsequent T\-HU of Plainti rr s hrain taken on August 21, 2015 

stales that the results of Plainti rr s MRI were -~normal'' (NYSCEF Doc. 464). f urthcr, Keurological 

exams perfomJed hy Dr. Amit Klrnneja on November 24, 2016, and Jamiary 27, 2016 showed 

Plaintiffs mental status intact (NYSCEF Doc. 463 al p, I 2t his motor syst~ms normal (Id. al p. 

13), and ambulal1on with a normal gait (Id). Dr. Khaneja state:'i in his report that it is his 

professional opinion that "Mr. Cotroneo is capable of working with restrictions to be placed on no 

lifting over l 5 pounds"' (Id. at p. 14). Additionally. I\ cad submille<l the Supplemental Report of 

ncmopsychologist David M. Erlanger, Ph.D., 1\BPP. which stated that "there was no evidence that 

the reported [February 17, 2023] incident had affected Mr. Cotroneo's abihty to perforn1 work 

15203812015 COTRONEO, COSMO vs, OUTFRONT ME.DIA SIGN ERECTORS 

Motion No. 009 

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tasks on a full-time basis" (NYSCEF Doc. 459 at p. 20). l\cad also provided u report of 

Rehabititation Specialist. Jost:ph Pessalano, who conducted a vocational assessment of Plaintiff 

on April 20, 2021, and identified essential job functions for several positions appropriate for 

Plaintiff in the field of electronic:-; engineering with the average salary ranging from $37,860 to 

$78,730 (NYSCEF Doc. 460). 

However, the report of Dr. Richard S'.:huster ()iYSCEF Doc. 41 St a vocationaJ 

psychologist who evaluated Plaintiff on July 9, 20 l 9 com:luded that "f a]t this point continued 

chronic unemployment can be expected. The combination of I Plaintiffs] ph:ysicaJ limitations, 

elderly work status. psychological ramifications. ncurohchavimal/"executivc·• dysfunction, etc. 

combine to foster such a sjgnificant imp~Jiment that even functioning in daily life remains 

negatively impacted" (1\YSCFF Doc. 478 at p. 33-34). Furthn, the Affidavit of neurologist Ur. 

Allen Pcrd, who has treated Plaintiff since June 24, 2014, slates that Plaintiff is "sigriificantly 

di sub led at present and cannot return to work in any capacity, particular]y because of his traumatic 

brain injury, anxiety, depression and memory lo.:;;(;," and that Plaintiffs symptoms ··were cau'ied 

by the work-related accident and injuries he suffered" (NYSCFF Doc. 478 at pp. 33-34). 

In light of the conflicting testimony in lhe record, the Court finds th.at questions of material 

fact remain regarding whether Plaintiff suffered a grave injury as defined hy WCI. § 11. As such, 

~ead's motion for summary judgment is denied. 

Accordingly, it is hereby, 

ORDERED thal Third-Party Dcfcndants/Scnm<l Third-Pany Defendants/ll1ird ThirdParty Defendants l\cad Electric, Inc. and Nead Electric, Inc. 's motion for summary _judgment is 

denied; and it is further 

1620381201 ~ COTRONEO, COSMO\/~. OUTFRQNT M;EDIA SIGN ERECTORS 

Motlon No. M9 

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NYSCEF DOC. NO. 492 RECEIVED NYSCEF: 03/13/2024 

OR DEF · D that lJcfcndantfThfrd-Party Plaintiff Cro Managernenl Corp. Third-Party 

,omplaint is dismissed as moot; and it is further 

ORD ,RED that on or before April 16, 2024, the remaining parti1..;s are directed to submit 

a proposed 'taru Conference Order to the Court ia e-mail to , FC-Part33-CJcrktaln:ycourt. .gov. 

If the parties are nab le to agrt":e to a proposed tams Confer nee Order, the parties are dire tcd to 

appear for an in-person starus onl -rence v,rith lhe Court in Room 442; 60 Cenlre Street, on April 

17. 2024 at 9:30 a.m.: and it is further 

ORDERED tha t within ten (10) day. of entry, coun el for Movant sha1l serve a copy of 

this Decision and Order with notice of enlry upon all parties to thi. at:tion; and it is further 

ORDERED thaL the Clerk of the Court is directed lo enter judgment accordingly. 

This con ·ti tutes the Decision and Order of the Court. 

311312024 

DATE HON. ARY V. ROSADO, J .S.C. 

CHECK ONE: 

APPLICATION; 

CH ECK IF APPROPR:IA Jle:: ~ CASE DISPOS 0 

GRANTED 0 CE IED 

SETTLE 0:R0 R 

INCLUDES TR.ANS Fl:;R/Rl:ASSI GN 

NON-Fl NAL 0IS POSITION 

GRAN TED IN PART 

SUBMIT ORO R 

FI0UCIARV APPOINTMENT 

1s:zo:,a12015 COTRONEO, COSMO vs. OUTFRONT MIEDIA SIGN ER.ECTOR$ 

Motion N10. 009 

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□ 0 11-IER 

□ REFEIRE:NCE 

P,19e 9 of 9 

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