Defendant and third-party plaintiff Essex Market Development LLC's ("Essex") motion for summary judgment pursuant to CPLR §3212 for common law and contractual indemnification as against defendant/third-party defendant Marangos Construction Corp. ("Marangos") is granted.

On September 18, 2008, plaintiffs Domingos Mouta and his wife Maria Jose Mouta commenced a personal injury action for injuries Domingos Mouta sustained on September 11, 2008 while performing construction work at the premises owned by Essex and located at 378-380 Union Avenue, Brooklyn, New York ("the jobsite"). Essex hired defendant/third-party [*2]plaintiff JF Contracting Corp. ("JF") as general contractor. JF hired defendant/third-party defendant Marangos as subcontractor.

Plaintiffs alleged violations of Labor Law §§200, 240, and 241. In its answer dated November 21, 2008, Essex filed cross claims against co-defendants for contribution and indemnification, and on March 6, 2009, filed a third-party action against Marangos for contribution and indemnification.



On or about December 17, 2010, plaintiffs filed a motion for summary judgment against JF and Essex. JF and Essex cross-moved for summary judgment on the issue of indemnification. On January 25, 2012, the Hon. Fernando Tapia granted plaintiffs partial summary judgment on their Labor Law §240(1) claim, and denied summary judgment for JF and Essex. On February 19, 2013, the Appellate Division, First Department affirmed the denial of Essex's motion for summary judgment without prejudice to renew upon the submission of proper papers, namely the submission of the third-party summons and complaint as to Marangos. The First Department also granted JF summary judgment against Marangos on its contractual and common law indemnity claims.

Essex asserts that the agreement between JF and Marangos required Marangos to indemnify the property owner. The indemnification clause reads in pertinent part, "[t]o the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, Contractor from and against claims, damages, losses and expenses ." Additionally, the rider to the agreement reads in pertinent part that:

All subcontractors will be required to indemnify and hold the General Contractor, (i.e. JF), Owner (i.e. ESSEX) harmless in accordance with the Hold Harmless clause of their contract . This contractor shall additionally indemnify and hold harmless to the fullest extent permitted by law, JF [sic] the owner, (i.e. ESSEX) against any and all liabilities, obligations, claims, causes of action, judgments, damages, properties, costs and expenses . (Essex's exhibit I, Rider H ¶7).

In further support, Essex submits the deposition testimonies of its project manager and Marangos' project manager. Both individuals testified that none of Essex's employees directed or controlled the work at the jobsite.

Plaintiffs oppose the instant motion and contend that Essex has failed to demonstrate any likelihood of success given that Judge Tapia has already denied Essex's motion for indemnification on the merits.

Defendant/third-party defendant Marangos argues that: 1) the indemnification language of the JF and Marangos contract was limited; 2) Essex is not entitled to summary judgment on its contractual claims due to the existence of material issues of fact relating to Essex's negligence; and 3) Essex has failed to demonstrate that plaintiff Domingos Mouta sustained a "grave injury," as defined by Workers' Compensation Law ("WCL") §11. [*3]

When faced with a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Martin v. Briggs, 235 AD2d 192 (1st Dept. 1997). The moving party carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). 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 and written admissions." C.P.L.R. §3212(b). Once the movant has made this showing, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact. Zuckerman, 49 NY2d 557. When deciding a summary judgment motion, the role of the court is to make determinations as to the existence of issues of fact, and not credibility or issue determinations. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978).

"It is well-settled that in order to find an owner or his agent liable under Labor Law §200 for defects or dangers arising from a subcontractor's methods or materials, it must be shown that the owner or agent exercised some supervisory control over the injury-producing work." Rizzuto v. L.A. Wenger Contracting Company, 91 NY2d 343, 352 (1998); Comes v. New York State Electric & Gas Corporation, 82 NY2d 876, 877 (1993).Essex, "an owner without direction, control or other supervisory authority over the work site at which plaintiff was injured," was merely vicariously liable. See Tapia v. 126 First Avenue, LLC, 282 AD2d 220 (1st Dept. 2001); Parris v. Shared Equities Company, 281 AD2d 174 (1st Dept. 2001). Here, the First Department determined that Marangos "was responsible for site safety, and was in charge of all aspects of the work at issue, including safety," and that "Marangos was responsible for the accident." Mouta v. Essex Mkt. Dev. LLC, 2013 NY Slip Op 01032 (1st Dept. 2013).Essex has established that it did not direct the work of any laborers at the jobsite, including plaintiff Domingos Mouta. Contrary to Marangos' assertions, there are no triable issues of fact as to Essex's negligence. This court finds that Essex cannot be held liable for plaintiff's injuries under common law negligence principles, as codified in Labor Law §200, and as such is entitled to full common law indemnification from Marangos.

"A party is entitled to full, contractual indemnification, provided that the intention to indemnify can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances." See Drzewinski v. Atlantic Scaffold & Ladder Company, 70 NY2d 774, 777 (1987); see also Margolin v. New York Life Ins. Co., 32 NY2d 149, 153 (1973); Torres v. Morse Diesel International Inc., 14 AD3d 401, 403 (1st Dept. 2005). The contractual provisions of the contract between JF and Marangos clearly provide that Marangos is required to indemnify and hold Essex harmless against any and all liabilities.

Accordingly, Essex's motion for summary judgment on its common law and contractual indemnification claims against Marangos is granted.

Movant is directed to serve a copy of this order with notice of entry on all parties and file [*4]proof thereof with the clerk's office.

This constitutes the decision and order of this court.

Dated: July 10, 2013

ENTER:

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J.S.C.