Alvarado v 677 Eleventh Ave. Realty, LLC 2023 NY Slip Op 34568(U) December 27, 2023 Supreme Court, Kings County Docket Number: Index No. 503480/2021 Judge: Debra Silber 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.SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS : PART 9 X ISRAEL SACA ALVARADO , Plaintiff ,

- against 677 ELEVENTH AVENUE REALTY, LLC, 660 12TH AVENUE CONDOMINIUM, MANHATTAN LUXURY AUTOMOBILES, INC. aka and/or dba “LEXUS OF MANHATTAN” and/or “ SCION OF MANHATTAN , ” BAY RIDGE AUTO GROUP, LLC, PACE ENGINEERING P.C., REDCOM DESIGN & CONSTRUCTION CORP. a ka and/or “REDCOM CM, INC.” and CONSOLIDATED SCAFFOLD & BRIDGE INC., Defendants.

-------------------------------------------------------------------- X 677 ELEVENTH AVENUE REALTY, LLC, REDCOM DESIGN & CONSTRUCTION CORP. aka and/or “REDCOM CM, I N C.”, Third - Party - Plaintiffs,

- against MBARETE CONTRACTING CORP

. and CR SAFETY CONSTRUCTION & REALTY SAFETY GROUP INC., Third - Party - Defendant s.

___________________________________________ X DECISION/ORDER Index No. 5 03480

/202 1 Motion Seq. No. 00 3

Recitation, as required by CPLR 2219(a), of the papers considered in the review of third - party defendant CR Safety Construction & Realty Safety Group Inc. ’ s motion to dismiss the third - party complaint Papers NYSCEF Doc. Notice of Motion , Affirmations, Affidavits , and Exhibits Annexed...

....... 66

- 72 Affirmation in Opposition , Affidavits, and Exhibits Annexed.............

. ...... 74

- 76, 89

- 91 Reply Affirmation.............................................................................

........ 92 

### FILED: KINGS COUNTY CLERK 01/02/2024 10:46 AM INDEX NO. 503480/2021 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/02/2024

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### [* 1]Upon the foregoing cited papers, the Decision/Order on this application is a s

f ol lows: This is a Labor Law action commenced by plaintiff on February 11, 2021. His accident took place on December 28, 2020 at a construction site located at 677 El eventh Avenue a/k/a 660 Twelfth Avenue , New York, NY. A new four

- story car showroom was in the process of being built. Pla intiff was employed by third

- party defendant Mbarette Con tracting Corp

. He alleges he fell from a scaffold and sustained serious injur i es. The third

- party action was commenced on February 23, 2023. Movant CR Safety 1 was served with the summons and complaint by service at their offices on March 1 6, 2023 [D o c 63]. This pre - answer motion was filed on April 4, 2023. In motion sequence # 3 , third

- party defendant CR Safety moves, pre - answer, to dismiss the third

- party complaint against it, pursuant to CPLR § 3211(a )( 1) and (7) , al ong with the cross

- claims and counterclaims which have been asserted agai nst it

. These are the CPLR sections indicated in the affirmation in support. Apparently, the notice of mo tion is incorrect [ it says the motion is brought pursuant to CPLR § 3211(a )( 1) , (4), (5), and ( 10 ) ]

. After oral argument held on October 5, 2023 , the motion is denied in its entire ty. The third

- party complaint [Do c 55] asserts claims against CR Safety for negligenc e (Count VI), contribu tion (Count VII), common law indemnification (Count VIII), breach of contract to obtain i nsurance (Count IX), and contractual indemnifi cation (Count X)

. The third

- party p laintiffs are the property owner 677 ELEVENTH AVENUE REALTY, LLC ( hereafter “ 677 Eleventh ” ) and the gen eral contractor , REDCOM DESIGN &

1 The parties agreed at oral argum ent that the correct name of the third

- party defendant ( movant ) is Construction Realty Safety Group Inc. d/b/a CR Safety, and that the caption should be amended accordingly

. 

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### [* 2]CONSTRUCTION CORP. aka and/or “REDCOM CM, INC. (hereafter “ Red com ” ) . The

third

- party complaint , as relevant to movant , avers that Redcom contra cted with CR Safety

on or about August 11, 2015

. A copy of the contract , the complaint states, is annexed to the third

- party co mplaint as Exhibit C. It is alleged in the complaint that the contra ct provides in Paragraph 11 that CR Safety shall defend and in demnify the third

- party plaintiffs. Redcom CM Inc. is a co rporation organized in Delaware and authorized to do business in NY, according to the NYS Dept. of State ’s website. It has no prior names, and no assumed names. There is nothing o n the NY web site with regard to the other Re dcom entity , Redcom Design & C o nstruction . The answe r states that it is filed on behalf of Redcom C M I nc

. , “ incorrectly sued as Redcom Design & Construction Corp . aka and/or dba R edcom CM, I nc

. ” Thus, only Redcom CM Inc. has answered the co mplaint. It is not known if plaintiff was intend ing to sue two corporations or one. To make matters more confusing, Redcom Design & Construction LLC (not Corp.) is a limited liability company organized in New Jersey, according to th e NJ website : https://www.njportal.com/DOR/BusinessNameSearch/Search/BusinessName

. The general contractor, according to the NYC Dept. of B uilding s ’ on - line “ v irtual job folder ” , was Redcom Design & Construction, an entity with a New Jersey address that has not been served a nd has not answered the complaint. Th is is the entity that would have had the insurance , one would think

. But the insurance certificate filed with the NYC Dept of B uildings states that Redcom CM Inc. is the insured, and the submittal form is signed by John Malabre , who also signed documents filed with the Building s Dept. for Redcom Design & Construction. 

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### [* 3]Doc 56 indicates that Redcom CM Inc. w as the con struction manager hired by the

owner. Doc 58 is a proposal sent to Redcom CM I n c. by CR Safety. It is clear that Redcom Design & Construction is a different entity than Redcom CM I n c. One is a New Jersey LLC, and one is a Delaware corporation authorized to do business in NY. To the extent that counsel for Redcom CM Inc. th inks that he is answering the complaint and asserting third

- party claims o n behalf of Redcom Design & Const ru ction, LLC in addition to Redcom CM I n c ., he is incorrect. Those papers all need to be corrected, as does the caption

. None of these issues relate to the instant motion , however

. The court will proceed under the assump tion that counsel for Redcom , who is also the attorney for the property
owner, thinks he represents one entity, and that the caption is incorrect. As it appears that John Malabre is the princip al of both entities, one can only hope that counsel is going
to amend whatever has to be amended so it is clear that he represents both entities

. When a complaint says “ and/or ” it mean s that there might be two entities. H e re, it seems th ere are in fact two entities. Movant ’ s counsel argues in the affirmation in support of the motion that the third

party complaint should be dismissed pursuant to CPLR § 3211(a) (1) [documentary evidence] and (7) [failing to state a cause of action]

. In her affirmation in support, counsel states th at regardless of the applicable statute of limitations , the cont ract provide s for a

one - year stat ute of limitations, and as such, this action is barred. This argument for dismissal may a lso be viewed as being based upon CPLR § 3211(a)(5) [statute of limitations] , which section is listed in the notice of motion

. More specifically, movant claims that the statute of limitations to be imposed is not the period set forth in the CPLR, but a shortened statute provided for in the written contract between the parties

. 

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### [* 4]Movan t’s counsel also avers that the complaint should be dismissed for failing to

state a claim for which relief may be granted. Specifically, defendant’s counsel argues that CPLR §3211(a)(7) applies because the contract ’ s time bar means the third

- party

co mplaint fails to state a cognizable cause of action. Th us, in her analysis, this branch of the motion , under CPLR § 3211(a)(7) , is also based on the statute of limitations in the
contract. Movant also provides an affidavit from the principal of CR Safety, Matthew Caruso. He puts forth an explanation that has nothing to do with the statute o f lim itations , and
states : CR Safety was contracted by Redcom, to perform site safety services pursuant to the New York City Building Code. On or about August 11, 2015 a proposal for these services was sent by CR Safety to Tim Grom of Redcom, a copy of which is an nexed hereto as Exhibit A (the “Proposal’”). The Proposal incorporated not only the rate sheet for the services, but also CR Safety’s terms and conditions. This Proposal is relied upon by Third

- Party Plaintiff in this action. See Third

- Party Complaint Exhi bit C. Pursuant to the Proposal, CR Safety’s sole responsibility on this jobsite was to Provide a License d Site Safety Manager for this project for the purposes of identifying hazards, and non

compliant conditions that violate the standards of OSHA CFR 926 , Chapter 33 of the New York City Building Code and FDNY rules and regulations. These inspections will involve visual observations, photographs, and a written narrative report that will be delivered within one business day. CR Safety provided these reports in the form of daily Site Safety Logs. A sampling of the Site Safety Logs are annexed hereto

. Exhibit B to Mr. Caruso ’ s affidavit is a cover letter to Redcom CM Inc. , dated 8/11/15, transmitting a propos al. It has signature lines for Mr. Caruso, and for “ client ” but is not signed by anyone . It is identical to Document 58 annexed to the third

- party complaint. That document is not signed by an yone either. T h e provision in the “ contract ” states, in i ts entirety, as follows: 

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### [* 5]9

. LIMITATION OF LIABILITY

–

a) CRSG 2 and the Client have discussed the risks, rewards and benefits of the project and the services to be provided by CRSG and the fees charged for such services. CRSG and Client acknowledge that the benefits vary disproportionately between t hem and the risks have been allocated such that the Client agrees that CRSG's liability, if any, for damages resulting from a breach of contract, breach of warranty, strict product liability, error, omission, or other professional negligence will be limite d to an amount equal to the lesser of $25,000 or CRSG's fee. b) Client agrees and acknowledges that CRSG is not responsible for correcting any unsafe conditions or building violations and that CRSG's sole liability for damages, if any, will be limited as s tated in paragraph 9 (a) above. CRSG, its agents and employees, shall not be liable for any loss of profits or any claim or demand against Client by any other party. In no event shall CRSG be liable for special, consequential, or exemplary damages. In no ev ent shall CRSG be liable for any delay damages. This provision shall supersede any other provision in this Agreement tha t may be deemed inconsistent with it. No action, regardless of form, arising out of the service under this Agreement may be brought by the Client mor e than one (1) year after the act or omission giving rise to a cause of action has occurred. ” Counsel for the third

- party p laintiff s opposes the motion [Doc 74] and essentially argues that the motion is premature as discovery has barely started, and stat es that “ [t] he documents submitted by CR Safety in support of its pre

- answer motion fail to resolve all factual and legal issues as a matter of law, including, but not limited to, the date upon which Third

- Party Plaintiffs’ claims against CR Safety accrue , the extent of CR Safet y’s

common - law duties to Third

- Party Plaintiffs and Plaintiff, as well as CR Safety’s contractual requirement to defend, indemnify and hold harmless Third

- Party Plaintiffs ” [Doc 74 ¶ 5]. He continues “ In support of the motion, CR Safety submitted a ‘ Proposal ’ for site sa fety management services, as well as its general terms and conditions. There has been no discovery conducted as to whether the Proposal evolved into, or became a part

2 CR Safety 

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### [* 6]of, the full agreement entered into by CR Safety and whether these documents constitute

t he full and complete terms and provisions agreed upon by the parties in connection with CR Safety’s work and services at the Project. As discussed below, the submitted documents are inconclusive

. . . [and] contractual ambiguities and discrepancies are to be resolved in favor of Third

- Party Plaintiffs at the pleadings stage ” [ id. ¶ 10]. Counsel continues to explain that the plainti ff claims he fell from a defective scaffold, and it wa s wit hin CR Saf ety ’ s responsibilities to inspect the scaffolds. As is specifically addressed to the statute of limi tations argument, counsel for the owner and general cont ract or avers that the statute of limitations for their causes of action against movant do not begin to accrue until they are determined to be respons ible, by virtue of either a finding of liability (here, the imposition of vicarious liability by the Labor Law ) or by a payment or settlement , and that movant ’ s claim that it begin s to acc rue on the date of the plaintiff ’ s accident is incorrect. Counsel cites numerous cases for this position

. He also asserts that “ The clause(s) relied upon by CR Safety are located in a limitatio n of damages provision pertaining to alleged professional negligence, breach of warranty, strict product liability, error or omission and other professional negligence claims. Thus, there is an issue of fact of whether the time limitations provision in the Contract is even applicable ” [ id. ¶ 22 ]

. Finally , the third

- party plaintiffs assert that their claims are not only based on the
contract , but include other causes of action , and that e ven if the proposal was the only
contract and the limited statut e of limitations app lies, the one

- year period has not yet started to run. Counsel for defendant Consolidated Scaffold & Bri dge Inc. also opposes the 

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### [* 7]motion , claiming it is premature . This defendant has asserted cross

- claims agains t the

movant. He wants to depose Mr . Car uso of CR Safety and conduct other discovery

. D iscussion The court will ignore for the moment the fact that the movant wants to dismiss the action by enfo r c ing the “ contract ” and the third

- part y plain tiffs do not want to enforce it , or at leas t, not yet . As odd as this is, it has no bearing on the outcome of this motion.
T he sole basis for the motion is the claim that the contract , which has not been signed by anyone, is enfor ceable, and as such, the third

- party action is time barred as against CR Saf e ty because the contract contains a one

- year st atute of limi tations. The court finds that the contract is not enforceable with out either signatures or testimony ratifying it . Furthe r, even if it the court found it to be enforceable, the provision relied on does not address all of the causes of action in the third

- party complaint , and in add ition, the only possible interpretation of the one

- year clause , which states that it is one year

“ after the act or omission giving rise to a cause of action has occurred ” is that the one year has not started yet. Or at least, not with regard to the c ause of action for contractual i ndemnifi cation

. “ Indemnification claims generally do not accrue for the purpose of the Statute of Limitations until the party seeking indemnification has made payment to the injured person. This principle stems from the nature of indemnification claims and does not vary ac cording to the breach of duty for which indemnification is sought ” ( McDermott v New York

, 50 NY2d 211, 216 [1980])

. If the co n tract represents a meeting of the minds, it is hard to reconcile the above paragraph 9 , which seems to describe the limitation of C R Safety ’ s professional liability
exposure to a one - year sta tute of limitations from the accrual of the cause of action and a 

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### [* 8]damages cap of $25,000 , with the indemnification paragraph in the same document ,

which states , in relevant part [ ¶ 11 Indemnity]:

“ It is further understood and a greed, that to the fullest extent permitted by law, CRSG shall indemnify and hold harmless the Client, Client's consultants, agents and employees, from and against claims, damages, losses, and expenses, including but not limited to attorney's fees, arising out of or resulting from the performance of CRSG 's work or provision of services under this Contract, provided that any such claim, damage, loss or expense is attributable to bodily injury or death, or to injury to or destruction of tangible property, on ly to the extent caused by the negligent acts or omissions of CRSG or anyone employed by CRSG. ” Further, the paragraph in be tween the two clauses quoted abo ve is one called “ 10. Waiver of Claim

. ” It is not mentioned by any of the attorneys in the motion papers. It
states , in its entirety: Client ag re es that CRSG is not liable to Client for an y claims, damages or liabilities arising out of unsafe conditions or b uilding code violations. Client agrees to indemnify, defend, and hold CRSG harmless from any and all claims, suits, losses, liabilities and damages inc l u ding but not limited to claims, su its, losses, liabil i ties and damages resulting from personal injury, wrongful death, property damage, contractual damages, federal , state, and local governmental fines and penalties and reasonable attorney's fees arising out of unsafe conditions or building code violations. ” The court cannot make heads or tails out of what was int en ded in this “ contract. ” Lucki ly, it is not signed and without any testimony to authen ticate it , it cannot be enforced. Therefore, third

- party CR Safety ’ s motion to dismiss the third

- party complaint based on the ter ms of this contract cann ot be granted at this time

. Accordingly, it is ORDERED that the motion is denied in its entirety , and m ovant CR Safety shall answer the third

- party complaint within 30 days of service upon its attorneys of this order with notice of entry , wh ich answer shall be served via electronic filing on NYSCEF and shall be deemed served upon filing on all appearing parties

. The 

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### [* 9]only non

- appearing party is 660 12 th Avenue Condominium, w hich was not proper ly

named as a party defendant

. A condominium is an unincorporated association, and pursuant to General As sociations Law § 13, an action against the condominium association should properly “be maintained against the president or treasurer of such an association[.]” At this juncture, if plaintiff want s to include this defendant in th e action, plaintiff must move to am end the complaint to correctly name this party, and to ob tain time to serve it. Otherwise, this action has be en abandoned with regard to this defendant.
I t is further ORDERED that the caption of the third

- party action is amended to reflect the correct name of the third

- party defendant CR Safety , as follows:

-------------------------------------------------------------------- X 677 ELEVENTH AVENUE REALTY, LLC, REDCOM DESIGN & CONSTRUCTION CORP. aka and/or “REDCOM CM, I N C.”, Third - Party - Plaintiffs,

- against MBARETE CONTRACTING CORP

. and CONSTRUCTION REALTY SAFETY GROUP INC. d/b/a CR SAFETY , Third - Party - Defendant s.

___________________________________________ X This constitute s the d ecision and o rder of the c ourt. Date d: December 2 7 , 2023 E N T E R :

Hon. Debra Silber, J.S.C. 

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### [* 10]