Keys v City of New Yor k

2023 NY Slip Op 34565(U)

December 27, 2023

Supreme Court, New York County

Docket Number: Index No. 156867/2018

Judge: Richard Latin

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.**156867/2018 KEYS, KEVIN vs. CITY OF NEW YORK**
**Motion No. 008 Page**  **1 of**  **5** The following e

- filed documents, l isted by NYSCEF document number (Motion 008) 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 360, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382

were read on this motion to/for JUDGMENT

– SUMMARY

. 

### SUPREME **COURT OF THE STATE OF NEW YORK**
**NEW YORK COUNTY** 

**PRESENT: HON. RICHARD LATIN**  **PART 46M** 

**Justice**

----------------------------------------------------------------- -- -------------- X **INDEX NO.** 156867/2018

**MOTION DATE** 09/22/2023

**MOTION SEQ. NO.** 008

**DECISION + ORDER ON**
**MOTION** KEVIN KEYS,

Plaintiff,

- v

-

THE CITY OF NEW YORK, VOLUNTEERS OF AMERICA

GREATER NEW YORK, INC.,DEPARTMENT OF HOMELESS SERVICES, RICHARDS PLUMBING AND HEATING CO.,

Defendant.

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

RICHARDS PLUMBING AND HEATING CO.

Plaintiff,

- against

RVS CONSTRUCTION CORP

Defendant.

-------------------------------------------------------------------------------- X Third

- Party
Index No. 595045/2019

THE CITY OF NEW YORK

Plaintiff,

- against

RVS CONSTRUCTION CORP

Defendant.

-------------------------------------------------------------------------------- X Second Third

- Party
Index No. 595770/2021

INDEX NO. 156867/2018

NYSCEF DOC. NO. 390 RECEIVED NYSCEF: 01/02/2024

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### [* 1]**156867/2018 KEYS, KEVIN vs. CITY OF NEW YORK**
**Motion No. 008 Page**  **2 of**  **5** Upon the foregoing documents, it is ordered that defendants/third

- party plaintiff Richards

Plumbing and Heating Co. (“Richards”) and defendant/second third

- party plaintiff City of New

York’s motion for summary judgment is determined as follows:

Plaintiff commenced this action to recover for injuries stemming from an incident where

he fell into an unprotected, uncovered, and unsecur ed portion of a trench where he was working

as a laborer on a construction site located at 22 E. 119 th Street, New York, New York on January

16, 2018. With this motion Richards and the City of New York seek summary judgment on their

contractual indemnifica tion claims against third

- party defendant RVS Construction Corp.

(“RVS”).

The proponent of a summary judgment motion has the burden of submitting

evidence in admissible form demonstrating the absence of any triable issues of fact and

establishing entitlement to judgment as a matter of law ( see Giuffrida v Citibank Corp.

,

100 NY2d 72 [2003]; see also Alvarez v Prospect Hosp.

, 68 NY2d 320 [1986]). Only

when the movant satisfies its prima facie burden will the burden shift to the opponent “to

lay bare his or her proof and demonstrate the existence of triable issues of fact” (

Alvarez

, 68 NY2d at 324; see also Zuckerman v City of New York

, 49 NY2d 557

[1980]).

“A party is entitled to full contractual indemnification provided that the ‘intention to

indemnify can be clearly implied from the language and purposes of the entire agreement and the

surrounding facts and circumstances’” ( Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d

774, 777 [1987], quoting Margolin v New York Life Ins. Co

., 32 NY2d 149, 153 [1973]; see

also Tonking v Port Auth. of N.Y. & N.J ., 3 NY3d 486, 490 [2004]). A construction contract is

unenforceable and void against public policy where it seeks to indemnify a promisee against INDEX NO. 156867/2018

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### [* 2]**15 6867/2018 KEYS, KEVIN vs. CITY OF NEW YORK** 
**Motion No. 008 Page 3 of 5**  liability resulting from the promisee’s own negligence (General Obligations Law § 5-322.1[1]).

Ho wever, an indemnification provision that permits indemnification “to the fullest extent

pe rmitted by law” contains savings language that would allow a construction manager to receive

pa rtial and proportionate indemnification for its contractors’ negligence, even where the

c onstruction manager may have also been negligent ( see Brooks v Judlau Contracting, Inc. , 11

NY 3d 204 [2008]; Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co. , 89 NY2d 786 [1997];

Gu zman v 170 West End Ave. Associates , 115 AD3d 462 [1st Dept 2014]).

The subject contract and indemnity agreement contain two separate indemnification

clauses which each run in favor of the movants and state as follows:

To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, Contractor . . . from and against claims, damages, losses, and expenses, including but not limited to attorney’s fees, arising out of or resulting from performance of the Subcontractor’s Work under this Subcontract, provided that any such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Subcontractor, the Subconctractor’s Sub-subcontractors anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce other rights obligations of indemnity; which would otherwise exist as to a party or person described in this Section 4.6.

To the fullest extent permitted by law, Subcontractor shall defend, indemnify, and hold harmless Richards Plumbing & Heating Co., Inc, RPH Properties LLC, Project Owner, Contractor, Architect and consults, agents and employees of any of them individually or collectively from and against all claims, damages, liabilities, losses and expenses. This includes but not limited to attorneys’ fees arising out of or in any way connected with the performance or lack of performance of the work under the agreement and/or any change orders or additions to the work included in the agreement, provided that any such claim, damage, liability, loss or expense is attributable INDEX NO. 156867/2018

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### [* 3]**156867/2018 KEYS, KEVIN vs. CITY OF NEW YORK**
**Motion No. 008 Page**  **4 of**  **5** to bodily injury, sickness, disease or death or physical injury to tangibl e property including loss of use of that property, or loss of use of tangible property that is not physically injured, and caused in whole or in party by any actual or alleged:

Act or omission of the Subcontractor or anyone directly or indirectly
retained or engaged by it or anyone for whose acts it may be liable;

o r Violation of any statutory duty, regulation, ordinance, rule or obligation by an Indemnitee provided that all the violation arises out of is in any way connected with the Subcontractor’s perfo rmance or lack of performance of the work under the agreement.

Here, it is clear that the parties intended for RVS to indemnify Richards and the City

of New York. To the extent that an ambiguity exists between the two provisions, it will be

construed in favor of the non

- drafter, RVS ( see Lai Ling Cheng v Modansky Leasing Co. , 73

NY2d 454 [1989] ). Thus, RVS need only indemnify movants for its negligent acts or

omissions.

In support of the motion, movants submit, inter alia, the expert affidavit of Robert J

.

Monaco, P.E., professional civil engineer. In forming his opinion, Monaco reviewed the

deposition transcripts and discovery exchanged. Monaco ultimately opined with a reasonable

degree of engineering certainty that the plaintiff was solely supervised, di rected, and controlled

at the worksite by his employer RVS, that RVS was responsible for site safety since they dug

the trench, and that the accident was caused by plaintiff’s lack of supervision, direction, and

proper control.

In opposition to the motion, RVS fails to attempt to rebut the expert affidavit or allege that

any entity other than RVS controlled or supervise plaintiff or was responsible for ensuring that the

trench was secured. Instead, RVS argues based on prior testi mony that it was Richards who had

inappropriately opened the trench in contravention of their agreement, as they had on four or five

other known occasions. Thus, inasmuch as RVS raised a triable issue of fact as to whether Richards INDEX NO. 156867/2018

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