The following e-filed documents, listed by NYSCEF document number (Motion 002) 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 100, 103, 104, 105, 106, 107, 109, 110, 112, 114, 115, 116, 117, 119, 120 were read on this motion for SUMMARY JUDGMENT.

Pursuant to the instant motion (motion sequence no. 002), second third-party defendant Construction Realty Safety Group Inc. (CR Safety) seeks an order, pursuant to CPLR 3212, granting summary judgment in its favor, dismissing the second third-party complaint of Europa Construction Corp. (Europa) and other relief, as discussed fully below. The motion is opposed by Europa (Europa Opposition, NYSCEF Doc. No. 112), Chelsea 20th Street Development, LLC (Chelsea; Chelsea Opposition, NYSCEF Doc. No. 107), and Ryder Construction, Inc. (Ryder; Ryder Opposition, NYSCEF Doc. No. 103). For the reasons stated below, the summary judgment motion of CR Safety is granted in part and denied in part.

The following statements, derived from the affirmation in support of the motion by CR Safety's counsel, are generally undisputed unless otherwise indicated (CR Safety Affirmation; NYSCEF Doc. No. 76).

Plaintiff Juan Manuel Belecela, an employee of Europa, commenced the underlying action against Chelsea and Ryder on or about December 17, 2012 (Main Action) after he was injured, on November 28, 2012, when performing excavation work at a jobsite owned by Chelsea (CR Safety Affirmation, ¶ 14). Prior to the accident, Chelsea entered into an agreement with Ryder to perform construction management work at the site; Ryder and Europa then entered into a subcontract agreement for certain construction services (id. at ¶ 15). Ryder and CR Safety also entered into an agreement to provide site safety management services in connection with the construction project at the site (Subject Agreement; exhibit S to CR Safety Affirmation).

After the commencement of the Main Action, Chelsea started the above-captioned third-party action against Europa in 2013; thereafter, in 2014, Europa started the above-captioned second third-party action against Becker Engineering, PC (Becker) and CR Safety (CR Safety Affirmation, ¶¶ 6, 8). In response to Europa's second third-party action, CR Safety filed its answer, along with a counterclaim against Europa (id., ¶ 8). In 2017, Ryder filed cross claims against CR Safety and Becker for contractual indemnity, as well as breach of contract for failure to procure insurance (id., ¶ 9). After depositions were taken of Belecela and a Chelsea executive, a private mediation was held, and the Main Action was settled in the amount of $1.75 million in favor of Belecela (id., ¶ 10).

Pursuant to the "General Release" signed in connection with the settlement, Chelsea, Ryder and Becker (and their respective insurers) were released by Belecela, and pursuant to the "Stipulation of Discontinuance," all claims, cross claims and counterclaims, as well as third-party actions, except for the cross claims and second third-party action against CR Safety, were discontinued among the signatory parties thereto (id., ¶ 11). Even though Europa was not named in the General Release or the Stipulation of Discontinuance, it was listed in the document titled "Tender Demand for Payment" (id.).

CR Safety is not a defendant in the Main Action, but is a defendant in the second third-party action commenced by Europa, which asserts claims for contractual indemnity and breach of contract for failure to procure insurance (id., ¶ 12). Under the Stipulation of Discontinuance, Chelsea's third-party action against Europa was discontinued, but Europa's second third-party action against CR Safety remains open because, among other things, Chelsea and Ryder, as defendants in the Main Action, are pursuing their cross claims against CR Safety (id.).

In a summary judgment motion, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once this showing is made, the burden then shifts to the party opposing the motion to produce sufficient evidentiary proof to establish the existence of material issues of fact which require a trial of the action (id.). In weighing a summary judgment motion, "evidence should be analyzed in the light most favorable to the party opposing the motion" (Martin v Briggs, 235 AD2d 192, 196 [1st Dept 1997]). Where different conclusions may reasonably be drawn from the evidence, the summary judgment motion should be denied (Jaffe v Davis, 214 AD2d 330 [1st Dept 1995]). On the other [*2]hand, bare allegations or conclusory assertions are insufficient to create genuine issues of fact necessary to defeat a summary judgment motion (Zuckerman v City of New York, 49 NY2d 557 [1980]; Rotuba Extruders, Inc., v Ceppos, 46 NY2d 223, 231 [1978]).

In the instant case, in support of its summary judgment motion seeking dismissal of Europa's second third-party complaint against CR Safety and dismissal of the cross claims, CR Safety argues that it is not liable for contractual indemnification because there is no contract between Europa and CR Safety, and it is also not liable in common-law indemnification because, among other things, Europa, Chelsea and Ryder have not shown they are free of negligence, and that they cannot maintain a claim for contribution against CR Safety because they have settled their claims with Belecela (CR Safety Affirmation, ¶¶ 38-47; citing various cases).

CR Safety further argues that any and all negligence and "site safety violation" claims are equally without merit and must be dismissed because, among other things, the "Site Safety Log" maintained by it, annexed as exhibit U to its affirmation, shows that it was not at fault in connection with the Belecela accident (id., ¶¶ 18-37; citing various cases). Therefore, CR Safety argues that its motion satisfies the standards for granting summary judgment in its favor. Notably, however, CR Safety acknowledges that if this court "determines that the instant motion is premature," then CR Safety should be allowed to renew the motion "at the completion of discovery" (id., ¶ 48).

In opposition to CR Safety's motion, Chelsea and Europa adopt, in whole or in part, Ryder's arguments made in its opposition to the motion (Chelsea Opposition, ¶ 3; Europa Opposition, ¶ 4). This decision therefore addresses first the legal and factual issues raised in the Ryder Opposition and in CR Safety's reply (CR Safety-Ryder Reply; NYSCEF Doc. No. 109).

As noted above, under the Subject Agreement between Ryder and CR Safety, Ryder asserts cross claims against CR Safety for contractual indemnification and for breach of contract due to failure to procure insurance. In opposing CR Safety's motion, Ryder cites to the Subject Agreement which states, in substance, as follows: Contractor (CR Safety) shall indemnify or hold harmless Owner (Chelsea) and Construction Manager (Ryder) from all claims arising out of the performance of work under the agreement, provided that any such claim is caused in whole or in part by any act or omission of the Contractor, or violation of any statutory duty by an indemnitee, provided that the violation is connected with Contractor's performance or lack of performance of the work under this agreement (Ryder Opposition, ¶ 20; referencing Subject Agreement at 5). Therefore, Ryder asserts that it has a valid contractual indemnification claim.

Ryder also points to the complaint filed in the Main Action, which alleges that Belecela's injuries were caused by, among other things, dangerous or unsafe conditions at the site where he worked (Ryder Opposition, ¶ 21). Ryder asserts that CR Safety was at the site daily and had "an integral role in the safety measures," including "the authority to stop the work if any unsafe or dangerous conditions were observed," as reflected in its Site Safety Log (id., ¶ 23). Ryder further points to certain entries on specific dates in the Site Safety Log to argue that they "raise issues of fact as to whether CR Safety was negligent in its acts or omissions on the site on the day of, and prior to, the subject accident which caused plaintiff's accident" (id., ¶¶ 24-28). Thus, Ryder argues that CR Safety's assertion in its motion that it was not negligent is "belied by its own job site documentation which, at the very least, creates an issue of fact sufficient to deny its motion to dismiss Ryder's claim for contractual indemnification" (id., ¶ 33).

In addition, Ryder argues that this motion for summary judgment dismissing its cross claims against CR Safety must be denied as premature because depositions and discovery that are integral to such cross claims were not conducted prior to the filing of the motion (id., ¶ 3).

In addressing the contractual indemnification cross claim, CR Safety points to the fact that no party in this action has asserted claims of negligence against CR Safety, and that not until four years after the Main Action was commenced did Ryder assert cross claims against CR Safety for contractual indemnification and breach of contract for failure to procure insurance (CR Safety-Ryder Reply, ¶ 5). CR Safety contends that this is "a strategic move [by] Ryder to force [*3]CR Safety to contribute to any settlement reached at the mediation with [Belecela]" (id.).

As to the breach of contract cross claim, CR Safety contends that it has obtained the requisite insurance policy, as evidenced by the policy annexed to its reply as an exhibit (id.; NYSCEF Doc. No. 110, exhibit A). CR Safety also contends that, if the court "explores the negligence aspect of the case," the only role it had in the construction project was its "contractual obligation to perform site safety management which involved inspecting and reporting to Ryder any hazards as required by Chapter 23 of the New York City Building Code," and that it had performed such obligations (id., ¶ 7; listing the obligations required under the Building Code).

CR Safety further contends that its Site Safety Log proves that it "performed its duties as site safety manager by logging the unsafe conditions and notifying Ryder" (id., ¶ 9-10; citing Martinez v 342 Prop., LLC, 89 AD3d 468 [1st Dept. 2011] [granting summary judgment in favor of defendant site safety manager even where manager had the authority to stop work that was being performed in an unsafe manner and did stop work for safety reasons, appellate court held that this was insufficient to impose liability upon manager under Labor Law for alleged common law negligence]). Apparently, CR Safety cites to Martinez so as to distinguish the ruling relied on by Ryder in Marquez v L & M Dev. Partners, Inc. (141 AD3d 694 [2d Dept 2016]) (Ryder Opposition at 10 [Second Department, in Marquez, denied the summary judgment motion of defendant site safety consultant to dismiss a contractual indemnification claim against it where evidence existed that the consultant might have breached its contractual obligation]).

Even assuming that the law stated in Martinez is more applicable to this action, CR Safety fails to oppose or address Ryder's assertion that certain entries on specific dates in the Site Safety Log raise issues of fact regarding whether CR Safety was negligent in its acts or omissions at the jobsite, which allegedly caused or contributed to Belecela's injuries. Further, while the second third-party action by Europa may be dismissed (as it is undisputed that Europa does not have a contract with CR Safety to support Europa's contractual indemnification claim, as discussed below), Ryder's cross claims against CR Safety should not be summarily dismissed at this juncture because there are disputed issues of fact as to whether CR Safety was negligent in the performance of its duties (Martin, 235 AD2d at 196 [evidence should be analyzed in the light most favorable to the party opposing the summary judgment motion]).

Moreover, even though it is true that the "negligence aspect of this case" was not raised in Ryder's cross claims, as pointed out by CR Safety, it was CR Safety who initially raised the defense that it "cannot be held liable for negligence" (CR Safety Affirmation, ¶¶ 18 - 32). Therefore, it is improper to dismiss the contractual indemnity claim at this stage of the litigation. Also, because CR Safety raises in its reply the defense that it has procured the requisite insurance, without affording a chance for Ryder to address or examine same, it is improper to dismiss the breach of contract for failure to procure insurance cross claim at this time.

Furthermore, while contending that the "prematurity" issue raised by Ryder is a "red herring," CR Safety alleges that Ryder failed to mention that Ryder had adjourned depositions "on more than one occasion when CR Safety was ready willing and able to proceed" (CR Safety-Ryder Reply, ¶¶ 3, 10. Such contention is raised by CR Safety in an attempt to counter Ryder's argument that this motion is filed to delay discovery. However, as conceded in the CR Safety Affirmation, because discovery has not been conducted by Ryder, the instant motion seeking dismissal of Ryder's cross claims against CR Safety is premature. Accordingly, the instant motion seeking summary judgment dismissing Ryder's cross claims is denied.

As owner of the jobsite property, Chelsea asserts that it is the third-party beneficiary and an indemnitee identified in the Subject Agreement between Ryder and CR Safety (Chelsea Opposition, ¶ 4). Adopting and incorporating the arguments of the Ryder Opposition in their entirety, Chelsea also argues that the instant motion seeking summary judgment dismissing its cross claims against CR Safety must be denied (id., ¶ 7). The only additional point Chelsea raises is that CR Safety failed to authenticate the Site Safety Log as a business record pursuant to CPLR 4518 (a), and, thus, the Site Safety Log cannot be used as evidentiary proof in support of the [*4]instant motion (id., ¶ 6).

In reply to the Chelsea Opposition (CR Safety-Chelsea Reply; NYSCEF Doc. No. 116), CR Safety does not dispute or challenge Chelsea's assertion that it is a beneficiary of the Subject Agreement and an indemnitee thereunder. Indeed, CR Safety merely incorporates almost all of the contentions it made in the CR Safety-Ryder Reply in response to the Chelsea Opposition (id., ¶¶ 3-9). As a procedural issue, responding to Chelsea's assertion that the Site Safety Log was not authenticated, CR Safety attaches an affidavit by its owner, Matthew Caruso, authenticating the Log and attaching it as exhibit A to the CR Safety-Chelsea Reply (NYSCEF Doc. No. 117). However, authenticating the Site Safety Log is insufficient to overcome the substantive issues raised in the Chelsea Opposition.

Therefore, for the reasons stated above in connection with the factual and legal issues raised in the Ryder Opposition, the instant motion seeking summary judgment dismissal of Chelsea's cross claims against CR Safety is denied.

Adopting the Ryder Opposition's argument that the motion should be denied because it is premature, Europa asserts that it "has yet to participate in any depositions related to this matter," and that depositions of CR Safety and Ryder are "essential to fully and effectively litigating this remaining action" (Europa Opposition, ¶ 4). Europa also asserts that that the motion should be denied "on the merits" because, under the terms of the Subject Agreement, CR Safety is required to indemnify "Ryder and its agents from any claims arising out of the work at the subject location to the fullest extent of the law" (id., ¶ 5; emphasis added by Europa). Notably, while admitting that it "did not directly contract" with CR Safety, Europa nonetheless argues, without citing any caselaw in support of its legal position, that under the Subject Agreement, CR Safety "is obligated to indemnify Europa for any harmful conduct based on Europa's relationship as a subcontractor of Ryder" (id.)

In reply to the Europa Opposition (CR Safety-Europa Reply; NYSCEF Doc. No. 119), besides refuting the conclusory statement that Europa (as a subcontractor) is "an agent" of Ryder, CR Safety also argues that Europa is not entitled to contractual indemnity for its own employee's negligence, which "runs contrary to the General Obligations Law" (CR Safety-Europa Reply, ¶ 3). More specifically, CR Safety asserts that, pursuant to the subcontract between Ryder and Europa, a copy of which is annexed as exhibit A to the CR Safety-Europa Reply (NYSCEF Doc. No. 120), "Europa was also to employ a site safety coordinator that was supposed to [be] present on site at all time during the construction," and, therefore, "Europa had its own obligation to ensure that its employees performed their work in a safe manner" (id., ¶ 3).

As noted above, it is indisputable that Europa does not have a contract with CR Safety. Thus, Europa's unilateral assertion that, despite the lack of a contractual relationship, it is "an agent" of Ryder under the Subject Agreement, and may assert a contractual indemnity claim against CR Safety in its second third-party complaint, is legally untenable. This legal insufficiency in turn undermines Europa's argument that CR Safety's motion is premature because Europa has not had an opportunity to obtain necessary factual discovery.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that the branch of CR Safety's motion seeking summary judgment under CPLR 3212 dismissing Europa's second third-party complaint against it is granted, and the second third-party complaint is dismissed in its entirety with costs and disbursements as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of CR Safety; and it is further

ORDERED that the action is severed and continued as to Chelsea and Ryder's cross claims against CR Safety; and it is further

ORDERED that the branch of CR Safety's motion seeking summary judgment under CPLR 3212 dismissing Ryder's cross claims against it is denied; and it is further

ORDERED that the branch of CR Safety's motion seeking summary judgment under CPLR 3212 dismissing Chelsea's cross claims against it is denied; and it is further

ORDERED that counsel for CR Safety shall serve a copy of this order with notice of its entry on all parties and on the County Clerk and the General Clerk; and it is further

ORDERED that counsel for CR Safety may serve notice of entry by mail or by overnight delivery service; and it is further

ORDERED that counsel for CR Safety shall e-file a copy of its notice of entry (and the accompanying affidavit(s) of service) on NYSCEF as soon as filing in pending nonessential matters is again permitted by order of Chief Administrative Judge Lawrence Marks;

ORDERED that the parties shall confer and prepare a joint request for a status conference with this court, as set forth in the Remote Conference Protocol available on this court's website, http://ww2.nycourts.gov/courts/1jd/supctmanh/index.shtml.