Crotty v City of New York

2024 NY Slip Op 31751(U)

May 21, 2024

Supreme Court, New York County

Docket Number: Index No. 151467/2016

Judge: Lyle E. Frank

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.
151467/2016 CROTTY, WILLIAM vs. CITY OF NEW YORK

Motion No. 012

Page 1 of 6

The following e-filed documents, listed by NYSCEF document number (Motion 012) 357, 358, 359, 360, 

361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 379, 391, 395, 400, 424, 429

were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .

Background 

This action arises from an incident that occurred on January 5, 2015, at Madison Square 

Park, New York, NY. The incident occurred during construction involving the demolition of a 

Shake Shack and buildout for a new building. The location was owned by Defendant The City of 

New York (“The City”) and licensed to Custard’s First Stand d/b/a Shake Shack (“Shake 

Shack”) pursuant to a licensing agreement. Defendant/third-party plaintiff Trinity Building and 

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. LYLE E. FRANK PART 11M

Justice 

---------------------------------------------------------------------------------X INDEX NO. 151467/2016

 MOTION DATE 05/09/2023

 MOTION SEQ. NO. 012

DECISION + ORDER ON 

MOTION

WILLIAM CROTTY,

 Plaintiff, 

- v -

THE CITY OF NEW YORK, THE NEW YORK CITY DEPT. 

OF PARKS AND RECREATION, TRINITY BUILDING AND 

CONSTRUCTION MANAGEMENT CORP.,

 Defendant. 

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

TRINITY BUILDING AND CONSTRUCTION MANAGEMENT 

CORP. 

 Plaintiff,

 -againstHAYWARD BAKER, INC., KINGS CAPITAL CONSTRUCTION 

GROUP, INC.

 Defendant.

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

 

 Third-Party

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Construction Management Corp. (“Trinity”) was retained by Shake Shack as the construction 

manager and general contractor. Trinity retained third-party defendant Kings Capital 

Construction Group, Inc. (“Kings”) to perform excavation work. Kings retained third-party 

defendant Hayward Baker Inc. (“Hayward”) to perform drilling and pile installation on the 

project site. Plaintiff was an employee of Hayward. On the incident date, Kevin Hawkins, also an 

employee of Hayward, was operating a drill-rig on the project site. Plaintiff, as foreman, was 

responsible for directing Hawkins in navigating the drill-rig. While directing Hawkins, plaintiff 

was standing on a grate which covered a window opening to the basement below. As plaintiff 

stood on the grate, the track of the drill-rig struck a piece of slate causing the grate to collapse 

and plaintiff to fall thirteen feet into the basement below. 

Subsequently, plaintiff filed a Summons and Complaint on February 23, 2016, alleging 

common law negligence as well as a violation of Labor Law §240(1), §241(6) and §200 against 

defendants The City and Trinity. In this motion, third-party defendant Kings seeks an order

dismissing Trinity’s third-party complaint as against Kings, dismissing Hayward’s cross claim 

against it for common law indemnification and/or contribution, dismissing the City’s crossclaims

against it for indemnification and/or contribution, and if the Court does not dismiss Trinity’s 

third-party complaint in its entirety, seeks an Order granting Kings contractual indemnification 

against Hayward. 

Standard of Review 

It is a well-established principle that the "function of summary judgment is issue finding, 

not issue determination." Assaf v Ropog Cab Corp., 153 AD2d 520, 544 (1st Dept 1989). As 

such, the proponent of a motion for summary judgment must tender sufficient evidence to show 

the absence of any material issue of fact and the right to entitlement to judgment as a matter of 

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law.  Alvarez v Prospect Hospital, 68 NY2d 320, 501 [1986]; Winegrad v New York University 

Medical Center, 64 NY 2d 851 [1985]. Courts have also recognized that summary judgment is a 

drastic remedy that deprives a litigant of his or her day in court.  Therefore, the party opposing a 

motion for summary judgment is entitled to all favorable inferences that can be drawn from the 

evidence submitted.

Discussion 

I. Indemnification

a. Trinity and Kings 

On or about October 14, 2014, Trinity and Kings entered into a contract for construction 

services for the subject project. The Trinity and Kings Contract provides, 

“to the fullest extent permitted by applicable law, Subcontractor agrees to defend, 

indemnify and hold harmless Owner, to the Architect/Engineer, Contractor and anyone 

else required by the Contract Documents, from and against any and all claims, damages 

or loss (including attorney's fees) arising out of or resulting from any work of and caused 

in whole or in part by any negligent act or omission of Subcontractor or those 

employed by it, or working under those employed by it at any level, regardless of 

whether or not caused in part by a party indemnified here under.” (emphasis added)

Trinity argues that Kings’ contractual obligations are triggered by its own negligence 

and/or the negligence of those “working under” Kings. The Court agrees. Kings argues that the 

indemnification provision only applies to employees of Kings, and as Hayward was a 

subcontractor, the provision is inapplicable to the actions of Hayward and its employees. The 

Court finds this argument unavailing and controverted by the plain language of the contract 

language. The explicit contract language states that the indemnification provision applies to 

those “employed” by the subcontractor, but also, “working under those employed by it.” At a 

minimum, there is a question of fact as to whether Hayward falls within the latter. Moreover, 

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there remains an outstanding question of fact as to Hayward’s negligence, and thus the 

applicability of this provision. 

b. Kings and Hayward

The Court finds Kings has established its prima facie entitlement to dismissal of 

Hayward’s cross claim for common law indemnification. To establish common-law 

indemnification, “the one seeking indemnity must prove not only that it was not guilty of any 

negligence beyond the statutory liability but must also prove that the proposed indemnitor was 

guilty of some negligence that contributed to the causation of the accident for which the 

indemnitee was held liable to the injured party by virtue of some obligation imposed by law, 

such as the nondelegable duty imposed by Labor Law § 240(1).” Correia v. Professional Data

Mgmt., Inc., 259 A.D.2d 60 (1st Dept 1999).

Kings offers that the record provides uncontroverted proof that Kings was not negligent 

with respect to Plaintiff’s accident as it did not supervise or control plaintiff’s work and was not 

present on the project site at the time of plaintiff’s accident. Moreover, Kings contends that 

Hayward has failed to establish it was not negligent, and thus cannot withstand a claim against 

Kings for common law indemnification. The Court agrees. Even in the light most favorable to 

Hayward, Hayward’s claim for common law indemnification by Kings fails. This is further 

supported by Hayward’s failure to meaningly oppose this aspect of Kings’ motion. 

Furthermore, the Court finds Kings is entitled to contractual indemnification from 

Hayward, pursuant to the parties’ subcontract. The subcontract between Kings and Hayward 

reads, 

“to the fullest extent permitted by law, Subcontractor, and any/all of its subsubcontractors, shall defend, indemnify and hold harmless Contractor, Owner, 

Owner’s lender, and Owner’s other contractors and architect and such other parties 

identified in Exhibit “C”, and all of their officers, directors, partners, representatives, 

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agents, and employees (hereinafter, the “indemnitees”) from and against all claims, suits, 

expenses (including but not limited to reasonable attorneys’ fees both defending against 

any third-party claims, recovering amounts due hereunder and enforcing this indemnity), 

damages losses, liens judgments and liabilities (collectively, “indemnifiable damages”) 

related to, or arising in whole or in part, in any manner, from, or in connection with: (a) a 

breach of this subcontract by Subcontractor or any sub-subcontractor working under 

Subcontractor, or any their officers, directors, partners, representatives, agents, 

employees or sub-subcontractors, or (ii) any of the Work; or (c) a claim by any third 

party arising out of the Work; provided, however, that such indemnification shall not 

apply to indemnify any party to the extent of Indemnifiable Damages directly causes by 

such party’s own negligence or willful misconduct...” (emphasis added)

The contract provides that Hayward “shall” indemnify Kings from and against all claims, 

suits, and expenses including defending against third-party claims that arise out of “the work.”

Here, it is undisputed that plaintiff, while working for Hayward, was performing the work 

pursuant to the contract at the time of the accident. The record reflects that Kings was not present 

at the time of the accident nor involved in the supervision or control of the plaintiff. Moreover, 

Hayward has failed to offer any evidence or arguments in dispute of this. Therefore, the Court 

finds Kings is entitled to contractual indemnification from Hayward. 

c. Kings and The City 

Lastly, Kings seeks an order dismissing The City’s crossclaims against it. The City has 

failed to substantively oppose. The Court finds that dismissal of The City’s cross claims against 

Kings is warranted. 

Accordingly, it is hereby, 

ORDERED that Hayward’s cross claim for common law indemnification against Kings is 

dismissed; and it is further 

ORDERED that Kings’ motion for summary judgment on its crossclaim for contractual 

indemnification against Hayward is granted; and it is further

ORDERED that The City’s cross claims against Kings are dismissed.

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5/21/2024

DATE LYLE E. FRANK, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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