Rohles v Metropolitan Transp. Auth.

2024 NY Slip Op 30566(U)

February 23, 2024

Supreme Court, New York County

Docket Number: Index No. 157185/2019

Judge: David B. Cohen

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.
157185/2019 ROHLES, GREG vs. METROPOLITAN TRANSPORTATION

Motion No. 004

Page 1 of 5

The following e-filed documents, listed by NYSCEF document number (Motion 004) 116, 117, 118, 120, 

121, 122, 123, 124, 125, 126, 127, 128, 129

were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER .

In this Labor Law action, third-party defendant Rebar Steel Corp. moves, pursuant to 

CPLR 2221(d), for leave to reargue defendants’ motion for summary judgment on the issue of 

contractual indemnification (Seq. 003) and, upon reargument, for denial of defendants’ underlying 

motion.

I. Factual and Procedural Background

As set forth in this Court’s June 7, 2023 order (NYSCEF Doc No. 111), this action arises 

from an incident in March 2019 in which plaintiff was allegedly injured after being struck by an 

excavation machine while working at a construction site in Manhattan. Plaintiff commenced this 

action against defendants asserting claims for common-law negligence and violations of Labor 

Law §§ 200, 240(1), and 241(6). Following joinder of issue, defendants commenced a third-party 

action against Rebar Steel asserting claims of, among other things, contractual indemnification. 

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. DAVID B. COHEN PART 58

Justice 

---------------------------------------------------------------------------------X INDEX NO. 157185/2019

 MOTION SEQ. NO. 004

DECISION + ORDER ON 

MOTION

GREG ROHLES,

 Plaintiff, 

- v -

METROPOLITAN TRANSPORTATION AUTHORITY, THE 

NEW YORK CITY TRANSIT AUTHORITY, 

METROPOLITAN TRANSPORTATION AUTHORITY 

(CAPITAL CONSTRUCTION COMPANY), and JUDLAU 

CONTRACTING/TC ELECTRIC, A JOINT VENTURE,

 Defendants. 

---------------------------------------------------------------------------------X

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NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 02/23/2024

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Motion No. 004

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After the completion of discovery and the filing of a note of issue, plaintiff discontinued his Labor 

Law § 240(1) claims against defendants.

Defendants then moved for summary judgment on the issue of contractual indemnification 

against Rebar Steel, which Rebar Steel opposed. While that motion was pending, plaintiff 

discontinued his Labor Law § 200 and common-law negligence claims against defendants 

Metropolitan Transit Authority, The New York City Transit Authority, and Metropolitan Transit 

Authority (Capital Construction Company) (collectively, the MTA defendants); leaving the Labor 

Law § 200 and common-law negligence claims against defendant Judlau Contracting/TC Electric, 

A Joint Venture (Judlau), intact (Doc Nos. 109-110).

By decision and order entered June 7, 2023, defendants’ motion was granted after it was 

determined that they were entitled to unconditional contractual indemnification (NYSCEF Doc 

No. 111). In reaching that determination, this Court indicated that plaintiff’s decision to 

discontinue his claims of common-law negligence and violations of Labor Law §§ 200 and 240(1)

meant that the only question remaining was whether defendants were entitled to full, unconditional 

contractual indemnification because they could only be found vicariously liable pursuant to Labor 

Law § 241(6). Rebar Steel now moves for leave to reargue the motion for partial summary 

judgment and, upon reargument, for an order denying the motion with respect to Judlau (Doc No. 

116), which defendants oppose (Doc No. 121).

II. Legal Analysis and Conclusions

Rebar Steel contends that it is entitled to reargument because this Court overlooked facts 

in granting Judlau unconditional contractual indemnification when it misread the stipulation 

discontinuing plaintiff’s common-law negligence and Labor Law § 200 claims against the MTA 

defendants to also apply to Judlau, causing this Court to incorrectly conclude that Judlau was 

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Motion No. 004

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entitled to unconditional contractual indemnification because it could not be held directly liable.1 

In opposition, defendants maintain, among other things, that no facts were overlooked in deciding 

to grant their motion. Alternatively, they argue that if reargument is granted, they are still entitled 

to conditional contractual indemnification.

“A motion for reargument, addressed to the discretion of the court, is designed to afford a 

party an opportunity to establish that the court overlooked or misapprehended the relevant facts, 

or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit 

the unsuccessful party to argue once again the very questions previously decided” (Foley v Roche, 

68 AD2d 558, 567 [1st Dept 1979] [citations omitted]; accord Mangine v Keller, 182 AD2d 476, 

477 [1st Dept 1992]).

Here, Rebar Steel demonstrates that this Court overlooked a critical fact in deciding the 

underlying motion. The stipulation discontinuing plaintiff’s claims of common-law negligence 

and violations of Labor Law § 200 did not apply to all defendants, just the MTA defendants. Thus, 

the common-law negligence and Labor Law § 200 claims as against Judlau were not discontinued, 

and it was incorrect to conclude that Judlau could only be found vicariously liable under Labor 

Law § 241(6). Therefore, Rebar Steel is granted leave to reargue Judlau’s motion for summary 

judgment on the issue of contractual indemnification.

Upon reargument, Judlau is only entitled to conditional contractual indemnification. As 

discussed in the June 2023 order, the subcontract between Judlau and Rebar Steel included a broad 

indemnification provision requiring Rebar Steel to indemnify Judlau against claims “resulting 

from, arising out of[,] or occurring in connection with” Rebar Steel’s work providing and installing 

rebar. That provision was triggered by plaintiff’s injuries, which occurred while he was searching 

1

 Rebar Steel does not argue that the portion of the decision granting the MTA defendants unconditional 

contractual indemnification was improper, it only argues that the portion pertaining to Judlau was incorrect.

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Motion No. 004

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for rebar. Therefore, until a determination can be made regarding any purported negligence, Judlau 

is entitled to conditional summary judgment on its contractual indemnification claim against Rebar 

Steel (see Madkins v 22 Little W. 12th St., LLC, 191 AD3d 434, 436 [1st Dept 2021] [granting 

conditional summary judgment on contractual indemnification, “subject to a determination 

whether [defendant] was negligent,” because broad indemnification provision triggered by 

plaintiff’s injuries]; Aramburu v Midtown W. B, LLC, 126 AD3d 498, 501 [1st Dept 2015] 

[similar]).

Accordingly, it is hereby:

ORDERED that the motion by third-party defendant Rebar Steel Corp. for leave to reargue 

is granted; and it is further

ORDERED that, upon reargument, the motion by defendant Judlau Contracting/TC 

Electric, A Joint Venture, for summary judgment on the issue of contractual indemnification is 

conditionally granted to the extent that Rebar Steel Corp. will be required to indemnify Judlau 

Contracting/TC Electric, A Joint Venture, to the extent that Rebar Steel Corp. may be found 

negligent; and it is further

ORDERED that counsel for the moving parties shall serve a copy of this order with 

notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the 

General Clerk’s Office (60 Centre Street, Room 119); and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General 

Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on 

Courthouse and County Clerk Procedures for Electronically Filed Case (accessible at the “EFiling” page on the court’s website at the address www.nycourts.gov/supctmanh); and it is further

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Motion No. 004

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ORDERED that the parties shall appear for a trial scheduling/settlement conference in 

person at 71 Thomas Street, Room 305, on March 27, 2024, at 10:00 a.m.

2/23/2024

DATE DAVID B. COHEN, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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