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, l isted 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 Ma rch 2019 in which plaintiff was allegedly injured after being struck by an excavation machine while working at a const ruction site in Manhattan. Plaintiff commenced this action against defendants asserting claims for common

- law negligence and violations o f Labor Law §§ 200, 240(1), and 241(6). Following joinder of issue, defendants commenced a third

- party action against Reba r 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, Def endant s

.

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Motion No. 004 Page 2 of 5 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 T ransit Authority, and Metropolitan Transit Authority (Capital Construction Company) (collectively, the MTA def endants) ; 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 o f 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 no w 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 misrea d the stipulation discontinuing plaintiff’s common

- law negligence and Labor Law § 200 clai ms against the MTA defendants to also apply to Judlau, causing this Court to incorrectly conclude that Judlau was INDEX NO. 157185/2019 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 02/23/2024

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Motion No. 004 Page 3 of 5 entitled to unconditional contractual indemnification because it could not be held directly liable. 1 In opposition, defendants maintain, amo ng 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 disc retion 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 unsuccess ful 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 overlook ed 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,
th e common
- law negligence an d 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” R ebar 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 incorrec t

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Motion No. 004 Page 4 of 5 for rebar. Therefore, until a determination can be made regarding any purported negligence , Judlau
is entitled t o 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 Ju dlau 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
Ge neral 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 “E

Filing” page on the court’s website at the address www.nycourts.gov/supctmanh ); and it is fu rther INDEX NO. 157185/2019 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 02/23/2024

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Motion No. 004 Page 5 of 5 ORDERED that the parties shall appear for a trial scheduling/settlement conference in person at 71 Thomas Street, Room 305, on M a r c h 2 7 , 2 0 2 4 , at 10:00 a.m.

2/ 2 3 /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 INDEX NO. 157185/2019 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 02/23/2024

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