In this Labor Law action, third-party defendant A.P.A. Restoration Corp. ("APA") moves pursuant to CPLR § 3212 to dismiss the common law indemnification and contribution claims in the third-party complaint asserted against APA.

Factual and Procedural Background

On May 30, 2003, Emanuel African Methodist Episcopal Church of New York Annual Conference Church ("Emanuel Church") entered into a contract with Maloy Restoration Corp. [*2]("Maloy") for Maloy to perform certain exterior renovation work.

On September 5, 2003, American Empire issued a Commercial General Liability Insurance policy, identifying APA as the Named Insured, and covering the period of July 11, 2003 to July 11, 2004.^[FN1] A Certificate of Insurance related to such policy stated that the "Certificate holder is listed as additional insured" and identified Emanuel Church as the "Certificate Holder." The Certificate of Insurance, however, was issued on May 3, 2004, after plaintiff's accident.^[FN2]

Almost a year later, on April 21, 2004, plaintiff Maciej Wasyl ("plaintiff") was struck in the head by a scaffold while working for Maloy ^[FN3] pursuant to Emanuel Church's contract with Maloy.

Nine days later, on April 30, 2004, Emanuel Church entered into a separate contract with APA, for APA to begin renovation work by May 15, 2004. A Certificate of Workers' Compensation Insurance, dated May 3, 2004 was issued to APA, naming Emanuel Church as the certificate holder and covered a period beginning April 16, 2004, before the date of plaintiff's accident.

Plaintiff commenced this action against Emanuel Church, Emanuel A.M.E. Church, Emanuel African Methodist Episcopal Church, New York Landmarks Conservancy, Inc., and Upper Manhattan Empowerment Zone Development Corporation to recover damages for injuries he sustained from the accident. In turn, Emanuel Church commenced a third-party action against APA and Maloy for common law indemnification and/or contribution, and contractual indemnification against American Empire Surplus Lines ("American Empire") for insurance coverage under a policy that American Empire allegedly issued to APA. Maloy defaulted in answering the third-party complaint.^[FN4]

In his Complaint (¶11), Amended Complaint (¶15), and Second Amended Complaint (¶21), plaintiff alleges that he was employed by Maloy at the time of his accident. During the course of this litigation, plaintiff's counsel sent a letter to American Empire inquiring as to any defense and/or indemnity coverage for, inter alia, Emanuel A.M.E. Church. In his letter, plaintiff's counsel begins with the statement that his office represents "Maciej Wasyl, an employee of sub-contractor Maloy Restoration. . . ." Plaintiff later testified at his deposition that he was working for "Maloy Corporation" on the day of the accident. Plaintiff further testified that he never worked for APA or ever heard of APA, and was paid by cash by "Mike Maloy Restoration."^[FN5] Plaintiff further testified that he never received any equipment from APA at the [*3]job site.^[FN6] As a result of the accident, plaintiff received Workers' Compensation from the State Insurance Fund. The Workers' Compensation Board's Proposed Decision identifies "Malloy Restoration" as the "Employer."

By Decision/Order dated August 28, 2006, this Court dismissed the third-party complaint as against American Empire, and dismissed the second cause of action in the third-party complaint for contractual indemnification as against APA. The Court, however, declined to dismiss the first and third causes of action against APA for common law indemnification and contribution. The Court found that dismissal of such claims was premature "at this juncture." The Court continued:

The third-party complaint states that plaintiff was an employee of APA at the time of the accident. APA fails to sufficiently refute this claim.

And, APA's Certificate of Workers' Compensation Insurance although dated after the date of the incident dated May 3, 2004 it covers the period inclusive of the date of plaintiff's accident April 16, 2004 to April 16, 2005. As such, APA sought and obtained Workers' Compensation insurance for the Church project before plaintiff's accident.

In support of dismissal, APA offers the affidavit of its president [Alex Anagnostidis ("Mr. Anagnostidis")] stating that APA and Maloy Restoration Corp. are separate and distinct entities. Further, APA supplies documentary evidence from the NYS Department of State indicating that the presidents of APA and Maloy are different. What APA fails to provide is documentary evidence that Michael Maloy ["Mr. Maloy"] was not the secretary of APA. Further, there is no affidavit from Michael Maloy or explanation from APA's president as to why the APA contract with the church was signed by Michael Maloy, as Secretary to APA.^[FN7]

Zennon Grzebyk ("Zennon"), the co-owner of Maloy at the time of plaintiff's accident subsequently executed an affidavit, wherein he stated that Malloy and APA "had different offices, different addresses, different phone numbers and different employees" and that Maloy and APA had absolutely no relationship with each other on April 21, 2004. Zennon further stated that APA had absolutely no involvement with any aspect of the renovation work being performed at Emanuel Church prior to April 30, 2004, and that APA did not participate in, direct, control, supervise or contribute in any way to any work being performed by Maloy at Emanuel Church prior to April 30, 2004.

Based on the Workers' Compensation records, plaintiff's counsel's correspondence, and the affidavit of Zennon, APA moved for leave to renew its cross motion to dismiss the first and third causes of action in that third-party complaint.

By order dated January 18, 2007, the Court granted leave to renew, but adhered to its earlier determination and denied dismissal of the first and third causes of action. The Court stated:

Even assuming such new information establishes that plaintiff was employed by Maloy, such information fails to establish, as a matter of law, that APA bore no relation to the [*4]construction work being performed at the time of plaintiff's accident. As stated in the Court's earlier opinion, APA's Workers' Compensation policy "covers the period inclusive of the date of plaintiff's accident" and APA failed to provide "documentary evidence that Michael Maloy was not the secretary of APA." Nor did APA supply an "affidavit from Michael Maloy or explanation from APA's president as to why the APA contract with the Church was signed by Michael Maloy, as Secretary to APA."

Thereafter, Mr. Anagnostidis (APA's President) testified at a deposition, stating that he never worked with or communicated with Mr. Maloy in connection with Mr. Maloy's work for "his own company," and that he told Mr. Maloy to finish "whatever business" he had with Maloy before coming to work at APA as a salesperson.^[FN8] Further, APA and Maloy were two separate entities. Mr. Anagnostidis also stated that he did not know that Mr. Maloy had contracted with Emanuel Church for work, before hiring him, and did not know Maloy had done work at Emanuel Church before APA's work at Emanuel Church prior to this lawsuit.^[FN9]

Motion

APA argues that it owed no duty to the plaintiff or the third-party plaintiff, and as such, it was not negligent and its actions were not the proximate cause of the accident. Based on the evidence noted above, APA contends that plaintiff was employed by Maloy at the time of his accident, and that Malloy and APA are two separate, distinct and unrelated entities. Further, APA did not perform, or bear any relation to, the construction work being performed prior to or at the time of plaintiff's accident. APA did not even enter into a contract to perform work at Emanuel Church until nine days after plaintiff's accident. APA did not participate in, direct, control, supervise or contribute in any way to any work being performed by Maloy at Emanuel Church. Therefore, APA is entitled to summary judgment dismissing Emanuel Church's remaining common law claims of indemnification and contribution against APA.

Opposition

In opposition, Emanuel Church argues that APA's instant motion relies upon the same "evidence" previously committed to the Court, as well as the deposition of its president, Mr. Anagnostidis. Emanuel Church contends that such deposition testimony raises even more material issues of fact concerning APA's relationship to Maloy that most certainly warrants the denial of its summary judgment motion. Mr. Anagnostidis admitted at his deposition that he knew Mr. Maloy signed APA's contract with Emanuel Church as "Secretary of APA" in order to further his work for APA as salesman in order to get jobs. When asked how Mr. Maloy came up with that title, Mr. Anagnostidis replied, ". . . he would tell customers that he was a secretary just to further enhance his chances of getting into a bidding process."^[FN10] Emanuel Church also contends APA hired Mr. Maloy in either January or February 2004, that Mr. Anagnostidis had [*5]spoken with both Mr. Maloy and his prior partner "Kuba," and knew that Mr. Malloy's prior business was a "mess," with unfinished projects. And, plaintiff's accident occurred nearly three months after Maloy started working full-time as an employee of APA. Moreover, documents produced in the litigation reflect that the work that Maloy had been retained to perform for Emanuel Church in 2003, was the very same work that he had solicited for APA as its "Secretary." Thus, it is undisputed that at the time of plaintiff's accident on April 21, 2004, Mr. Maloy was a full-time salaried employee of APA, who was soliciting work from Emanuel Church on behalf of APA.

Emanuel Church also points to conflicting testimony given by Mr. Anagnostidis, APA's Vice-President, Narsisco Queiruga ("Mr. Queiruga"), concerning which of the two was responsible for the paperwork associated with APA's involvement in the Emanuel Church construction project. Mr. Anagnostidis and Mr. Queiruga also gave conflicting testimony as to who, besides Mr. Maloy, was on-site at the Emanuel Church in connection with APA's work. While Mr. Anagnostidis testified that Mr. Queiruga, who "runs all the projects" had been at the Emanuel Church worksite, Mr. Queiruga testified that although he went there, APA did not perform any work for Emanuel Church, but instead subcontracted out APA's work to "JPR Restoration."^[FN11] Yet, the May 30, 2004 invoice from APA in connection with the work does not reflect that such work was "subcontracted" out to JPR Restoration. Furthermore, the Certificate of Workers' Compensation Insurance issued by the New York State Insurance Fund for APA's work for Emanuel Church reflects that the "period covered" started on April 16, 2004, which was before plaintiff's accident.

Emanuel Church argues that APA certainly "bore a relation to" the "work at the Church prior to or at the time of plaintiff's accident." APA's full-time employee, Mr. Maloy, was at Emanuel Church directing plaintiff's activities and soliciting work for APA from Emanuel Church, while acting as APA's Corporate Secretary. While APA would now like to absolve itself from any responsibility over Maloy's actions at Emanuel Church on the date of plaintiff's accident, the fact remains that plaintiff's accident occurred months after APA hired Mr. Maloy as a full-time employee, with APA's specific knowledge of the "messes" resulting from Mr. Maloy's failed company, Maloy Restoration Corp. The evidence concerning Mr. Maloy's exclusive work for APA at the time of plaintiff's accident, and the conflicting testimony as to the scope of the work, the scope of Mr. Maloy's authority, and the scope of APA's supervision of Mr. Maloy, raise issues of fact that warrant the denial of APA's latest motion.

Reply

All of the issues raised by Emanuel Church failed to refute the undisputed facts that (1) APA did not perform any work at Emanuel Church prior to or on the date of plaintiff's accident; (2) the contract between APA and Emanuel Church was not signed until nine days after plaintiff's accident; and (3) APA was not even present at Emanuel Church until at least two weeks after the contract was signed and more than three weeks after the accident. Emanuel Church's assertion that Mr. Maloy was at Emanuel Church directing plaintiff's activities, is unfounded and unsupported by the evidence. Nothing in the record indicates that Mr. Maloy ever directed plaintiff's activities, and certainly not on behalf of APA. [*6]

Also, new evidence, i.e., Mr. Queiruga's deposition testimony, indicates that he supervised APA's work in the field, and that employees of APA were not doing any work at Emanuel Church as it was subcontracted out to JPR Restoration. Mr. Queiruga further stated that neither APA nor JPR did any work at Emanuel Church on or before plaintiff's accident, that neither he nor APA ever supervised any workers at Emanuel Church on or before April 21, 2004, and that plaintiff was never an employee of APA.

Additional evidence, i.e., the deposition testimony of another Maloy employee that had worked at Emanuel Church prior to the date of plaintiff's accident, Adam Wrona, indicates that no one from APA was at the Emanuel Church jobsite on the date of plaintiff's accident.^[FN12] According to Mr. Wrona, neither he nor plaintiff ever worked for APA, that no one from APA ever directed or supervised the work that he or plaintiff was doing, and that Jakob Malec, an employee of Maloy, was supervising his and plaintiff's work at Emanuel Church.

Further, as Mr. Anagnostidis testified, APA's Workers' Compensation policy for the 2004-2005 year just happened to have been renewed five days before plaintiff's accident, and does not evidence any connection to the construction work being performed prior to or at the time of plaintiff accident. Thus, the evidence conclusively shows that APA did not perform, or bear any relation, to the work being performed prior to or at the time of plaintiff's accident.

APA also contends that the fact that Mr. Maloy worked for both APA and Maloy does not make them one entity but rather establishes that Mr. Maloy had two jobs. That Mr. Maloy may have been an officer of APA is of no importance. The New York State Department of State records indicate that Maloy was created in July 2000, that Mr. Maloy was its Chief Executive Officer, and that the principle office for service of process was located in Brooklyn, New York. Meanwhile, the New York Department of State records for APA indicates that APA was created in 1996, that its Chief Executive Officer is Mr. Anagnostidis, and it principle office is located in Astoria, New York. Moreover, Mr. Maloy's W-2s and employment records indicate that he had no ownership interest in APA. Although Mr. Anagnostidis knew of Mr. Maloy's prior business, Maloy, he did not know that Mr. Maloy, through that prior business, had previously contracted with Emanuel Church for work prior to hiring Mr. Maloy as an APA employee. And, the conflicting testimony of Mr. Queiruga and Mr. Anagnostidis regarding paperwork, Mr. Queiruga's attendance at the worksite after APA started work, and APA's subcontract with JPR is irrelevant; the evidence demonstrates that Mr. Maloy's scope of work and responsibility on behalf of APA was that of a salesman, whether he used the title of secretary to advance his salesman activities or not.

Analysis

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR § 3212[b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Wright v National Amusements, Inc., 2003 NY Slip Op. 51390(U) [Sup Ct New York County, Oct. 21, 2003]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by [*7]advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002] [defendant not entitled to summary judgment where he failed to produce admissible evidence demonstrating that no triable issue of fact exists as to whether plaintiff would have been successful in the underlying negligence action]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212[b]). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra ; Prudential Securities Inc. v Rovello, 262 AD2d 172[1st Dept 1999]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR §3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman v City of New York, supra , 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]).

At the outset, the Court notes that the evidence, i.e., the verified complaint and deposition testimony of the plaintiff indicates that plaintiff was employed by Maloy at the time of his accident. While the unverified third-party complaint, signed by counsel for Emanuel Church, alleges in paragraph 46 that plaintiff was "in the employ" by APA, paragraphs 16 and 18 of the same third-party complaint, allege that "MALOY was the employer of the plaintiff" and that "Plaintiff was hired by MALOY, general contractor, to perform certain construction and restoration work . . . ." Such internally conflicting pleading, signed by counsel, is insufficient to overcome the facts in the verified complaints, and testimony of the plaintiff, that he was employed by Maloy at the time of his accident.

Furthermore, APA has established, as a matter of law, that it bore no relation to the construction work being performed at the time of plaintiff's accident so as to warrant dismissal of Emanuel Church's common law indemnification and contribution claims.

"To establish a claim for 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" or "had the authority to direct, supervise, and control the work giving rise to the injury" (Reilly v S. DiGiacomo & Son, Inc., 261 AD2d 318, 690 NYS2d 424 [1st Dept 1999]; Pepe v Center for Jewish History, Inc., 19 Misc 3d 1130 [Sup Ct New York 2008] citing Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685 [2d Dept 2005], quoting Correia v Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]; Priestly v Montefiore Med. Ctr./Einstein Med. Ctr., 10 AD3d 493, 495 [1st Dept 2004]). Thus, in order to prevail on its motion, APA must establish that Emanuel Church was guilty of some negligence beyond the statutory liability, or that APA is not guilty of any negligence that contributed to plaintiff's [*8]accident.

As to Emanuel Church's claim for contribution, contribution "is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person [internal quotations and citations omitted]" (Godoy v Abamaster of Miami, Inc., 302 AD2d 57, 61-62 [2d Dept 2003]).

APA's motion rests on the claim that it was not negligent in any way for plaintiff's injuries.

It is uncontested that plaintiff's accident occurred on April 21, 2004.

Discovery is now complete and the record demonstrates that APA was not present at the worksite prior to April 30, 2004 and that APA did not supervise, direct or control the manner of the work being performed by the plaintiff.

Zennon, Mr. Maloy's former partner in Maloy, stated that APA "had absolutely no involvement with any aspect of the renovation work being performed at" Emanuel Church prior to April 30, 2004, and that APA "did not participate in, direct, control, supervise or contribute in any way" to the work being performed by Maloy prior to April 30, 2004. The deposition of APA's President, Mr. Anagnostidis indicates that APA's work at Emanuel Church started on May 13, 2004, and his affidavit indicates that APA did not do any work at Emanuel Church prior to April 21, 2004. Plaintiff testified that he never heard of APA, did not know what APA was, and never received anything or any equipment from APA for the work he was performing at Emanuel Church. Plaintiff (and Wrona) testified that a Maloy employee supervised the work plaintiff was performing at Emanuel Church. Therefore, the evidence fails to establish any negligence on the part of APA that contributed to plaintiff's accident, or that APA had the authority to direct, supervise, and control the work giving rise to plaintiff's injury.

The only purported evidence of APA's involvement at the worksite at the time of plaintiff's accident is the Workers' Compensation policy, which covers the period in question, and evidence indicating that Mr. Maloy was a "Secretary" of APA prior to APA's contract with Emanuel Church, while plaintiff was working on the date of the accident.

The Certificate of Workers' Compensation Insurance issued by the New York State Insurance Fund for APA's work for Emanuel Church reflects that the "period covered" started on April 16, 2004, which was before plaintiff's accident. However, Mr. Anagnostidis explained that APA's annual Workers' Compensation policy coverage period is from April 16, 2004 through April 16, 2005, because "That's when our policy starts."^[FN13] In fact, the application for the policy was made and procured on May 3, 2004.^[FN14] Thus, APA's coverage of Workers' Compensation in existence at the time of plaintiff's accident, is insufficient to establish that APA was performing any work under its April 30, 2004 contract prior to April 30, 2004.

The Court further notes that in November and December 2003, Mr. Maloy contacted and met with Mr. Anagnostidis, seeking a job because he and his partner "was going out of [*9]business."^[FN15] According to Mr. Anagnostidis, Mr. Maloy "came in again after the new year" to start work. Mr. Anagnostidis was not sure whether "it was January or February."^[FN16] The "employee earnings record" for Mr. Maloy submitted by APA indicate that Mr. Maloy was paid for the week ending March 30, 2004. And, the testimony of Mr. Anagnostidis indicates that Mr. Maloy was not an officer of APA, but signed APA's contract with Emanuel Church as "secretary" to promote his job as salesman.

However, evidence of Mr. Maloy's role as "secretary" of APA and his employment with APA prior to the date of plaintiff's accident, is insufficient to raise an issue as whether APA was present at the worksite at or before the time of plaintiff's accident. Such evidence fails to establish that the work being performed at Emanuel Church by plaintiff was pursuant APA's April 30, 2004 contract with Emanuel Church.

Based on the now complete record before the Court, there is no evidence indicating that plaintiff's injuries were the result of any negligence on the part of APA. Therefore, the common law indemnification and contribution claims lack merit. Having established entitlement to dismissal of the remaining common law indemnification and contribution claims in the third-party complaint asserted against APA, APA's motion is granted.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion by third-party defendant APA Restoration Corp. pursuant to CPLR § 3212 to dismiss the common law indemnification and contribution claims in the third-party complaint asserted against APA is granted, and such common law indemnification and contribution claims are hereby dismissed; and it is further

ORDERED that third-party defendant APA Restoration Corp. shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court.

Dated: September 2, 2008________________________________________

Hon. Carol Robinson Edmead, J.S.C.