This is an action to recover compensatory damages on behalf of decedent's estate arising from fatal injuries allegedly incurred by decedent while employed at a construction site on Staten Island. The Complaint alleges that decedent was killed when the walls of the trench in which he was working collapsed due to the willful and/or negligent failure of the defendants to properly shore them.

By Order rendered from the bench on July 20, 2005 following oral argument, this Court [*2](Mega, J.) granted the motion of defendant City of New York to convert its cross claims against defendants Formica Corporation, Kenneth Formica and William Formica to third-party claims for indemnification.

By Decision and Order dated August 17, 2005, Justice Mega (1) denied the motion of the City of New York for summary judgment dismissing the Complaint as to defendants City of New York, New York City Department of Transportation, New York City Department of Environmental Protection, and New York City Building Department (hereinafter the "City"); (2) denied plaintiff's cross motion to strike the City's Reply Affirmation; (3) granted the cross motions for summary judgment of defendant Flag Container Services, Inc., defendant Tristar Mortgage Corp and defendants Formica Corporation, Kenneth Formica and William Formica; (4) denied as moot plaintiff's cross motion to strike the respective Answers of defendant Flag Container Corp, and the Formica defendants; and (5) ordered that the Complaint and all extant cross claims asserted against defendants Flag Container Services, Inc., Tristar Mortgage Corp., Formica Construction, Inc., Kenneth Formica, and William Formica be severed and dismissed.

By Decision and Order entered February 24, 2006, Justice Mega subsequently denied defendant City of New York's motion for leave to renew and reargue its prior motion for summary judgment, and granted plaintiff's cross motion for summary judgment on the issue of liability as against the City.

Third-party defendants, Formica Corporation, Kenneth Formica and William Formica, now move in Motion No. 972 for leave to "reargue and renew" both the City's and the plaintiff's prior motions for summary judgment. In Motion No. 1583, plaintiffs cross move for an order "denying defendant Formica's application." In Motion No. 2059, defendant/third-party plaintiff City of New York cross moves for summary judgment on its third-party claims for indemnification against the Formica defendants.

Motion No. 972

As the Appellate Division, First Department observed in Foley v. Roche (68 AD2d 558, 567 [1979]) :

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.

Here, defendant seeks reargument on the ground that the Court "was led to overlook the fact that Formica, not the City, owned the site." In so arguing, defense counsel fails to note that [*3]in dismissing the Complaint as against the Formica defendants in its August 17, 2005 Decision and Order, the Court acknowledged that Formica was an owner of the project site and therefore the Workers' Compensation Law shielded them from direct liability to plaintiff. Indeed, this fact was raised by the City of New York in both its original motion and in its motion for reargument. Thus, it cannot form the basis for yet another reargument motion.

Rather, the Formica defendants' motion for reargument is precisely the type of application that the long-established guiding principle set forth in Foley was intended to deter. Under no reading of the Court's prior Decisions and Orders can it be said that the Court "overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." To the contrary, defendant is attempting "to argue once again the very questions previously decided" (68 AD2d at 567).

Equally without merit is so much of the motion as seeks leave to renew. In seeking such leave, the Formica defendants argue that, "None of the facts Formica now submits have been previously submitted to this Court." That alone, however, is not a proper basis for renewal pursuant to CPLR 2221. Rather, an application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court at the time (see Inzerillo v. City of New York, 287 AD2d 599, 600 [2nd Dept 2001]). Here, in seeking renewal, the new facts upon which the Formica defendants seek to rely are contained in the affidavit of a worker who purports to raise a question of fact as to the situs of the accident. However, movants have failed to show that the information proffered by this worker was unknown to them at the time the prior motion was made. In fact, any such claim would be belied by movants' acknowledgment that third-party defendant Kenneth Formica, who has pleaded guilty to criminally negligent homicide in connection with the death of plaintiff's decedent, was at the scene of the accident at all relevant times. To that

extent, the new affidavit presents no new facts and merely repeats that which the movants knew at the time. Such cumulative evidence cannot form a basis for renewal.

Therefore, the motion (No. 972) of defendants Formica Corporation, Kenneth Formica and William Formica is denied in its entirety.

Motion No. 1583

Plaintiff's motion for an order "denying" the Formica defendants' motion also is denied. No such motion lies under the CPLR. Moreover, to the extent that the predicate motion by the Formica defendants is herein denied, plaintiff's motion is moot.

Motion No. 2059

In general, "Where more than one party might be responsible for an accident, summary judgment granting indemnification against one party is improper" (Barabash v. Farmingdale Union Free School Dist, 250 AD2d 794,794 [2nd Dept 1998]). Under the circumstances of this [*4]case, however, the City of New York has established its entitlement to judgment as a matter of law on its third-party complaint, and, accordingly, summary judgment on its claim for indemnification is appropriate.

"Common law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious" (Taeschner v. M & M Restorations, 295 AD2d 598, 600 [2nd Dept 2002], citing Charles v. Eisenberg, 250 AD2d 801 [2nd Dept 1998]). In establishing its claim for common-law indemnification, the City has demonstrated that its liability was vicarious and that the proposed indemnitors, the Formica defendants, were responsible for the negligence that caused the accident. As noted, third-party defendant Kenneth Formica has pleaded guilty to criminally negligent homicide in connection with the death of plaintiff's decedent (People v. Formica, Indictment No. 320-05 [Supreme Court Richmond Co]). As conceded by Formica's defense counsel in the criminal action:^[FN1]

In this case, two workers, John Pacci and Lorenzo Pavia were sent into a trench to connect a sewer line from the defendant's project to the New York City sewer line. Defendant dug the trench with an excavator. He was the owner and on-site supervisor of the project. The trench was 40 feet long and six feet wide and 15 feet deep at one end and 12 feet deep at the other. while Pacci and Pavia were in the trench, the walls collapsed. Pacci was injured. Pavia died.

Construction regulations clearly call for shoring when an excavation is deeper that five feet. Here there was no shoring or support for the walls of the trench. . . . .

Mr. Formica admitted to the OSHA inspectors [that] he knew of the five-foot rule, but couldn't account for his failure to shore up a trench deeper than five feet.

In addition, in pleading guilty to criminally negligent homicide, third-party defendant Kenneth Formica personally acknowledged both his negligence and its causation of decedent's injuries. The allocution is consistent with his prior statement to OSHA, dated February 12, 2004, in which he also acknowledged the "bad decision" that resulted in decedent's death (see Plaintiff's undated Reply Affirmation, Exhibit C).

Moreover, contrary to the Formica defendants' present contention, the indemnification provision in the contract between themselves and the City is enforceable. As noted in the prior Decision and Order of this Court dated February 24, 2006, the City's liability was purely statutory, arising from its vicarious liability for the acts of the Formica defendants. Therefore, Section 11 of the Workers' Compensation Law does not shield the Formica defendants from providing indemnification to the City. By its terms, Section 11 does not apply to claims [*5]involving "grave injury." It cannot be denied that the injuries sustained by plaintiff's intestate qualify as "grave" within the meaning of that section (see e.g. Majewski v. Broadalbin-Perth Cent. School Dist, 91 NY2d 577, 582 [1998]). Because the accident falls within the scope of the indemnification clause of the contract, the City of New York is entitled to summary judgment on its third-party claim for indemnification (see e.g. Rivera v. Urban Health Plan, Inc., 9 AD3d 322, 323 [1st Dept 2004]).

Accordingly, it is

ORDERED that the motion (No. 972) of third-party defendants Formica Corporation, Kenneth Formica and William Formica for leave to renew and or reargue the motion by defendant/third-party plaintiff City of New York for summary judgment dismissing the complaint is denied; and it is further

ORDERED that plaintiff's cross motion (No. 1583) for an order "denying" the motion for leave to renew or reargue" is denied; and it is further

ORDERED that the City of New York's cross motion (No. 2069) for partial summary judgment on the third-party complaint for indemnification is granted; and it is further

ORDERED that the Clerk shall enter judgment accordingly.

Dated: April 11, 2007

HON. THOMAS P. ALIOTTA, J.S.C.

WINGATE, RUSSOTTI & SHAPIRO, LLP

420 LEXINGTON AVENUE

NEW YORK, NY 10170

CORPORATION COUNSEL OF THE

CITY OF NEW YORK

ATT: JENNIFER M. MARCUS, ESQ.

60 BAY STREET

STATEN ISLAND, NY 10301

JOHN Z. MARANGOS, ESQ.

1134A HYLAN BOULEVARD

STATEN ISLAND, NY 10305

RUSSO, SCAMARDELLA & D'AMATO [*6]

1010 FOREST AVENUE

STATEN ISLAND, NY 10310