Defendants, Turner Construction Company ("Turner") and SBRA, Inc., f/k/a Shepley Bulfinch, Inc. ("SBRA"), and Third-Party Defendants, Cannon Design Architecture and Engineering, P.C., d/b/a Cannon Design ("Cannon"), and Hughes Associates, Inc. ("Hughes")^[FN1] , have applied, pursuant to CPLR 2221, for leave to reargue those aspects of the decision issued by the court (Glownia, J.) on December 30, 2020 which denied, in whole/part, their respective motions for summary judgment (the "Glownia Decision").

Plaintiffs opposed Turner's and SBRA's motions, but did not oppose Cannon's or Hughes' motions.

The Hon. Joseph R. Glownia, J.S.C., retired from the bench, effective December 31, 2020, and this case was re-assigned to this court. On December 17, 2020, the court issued the Glownia Decision by electronic mail, and it provides, as follows:

Counselors:

Please be advised that this Court has received and reviewed all of your submissions with regard to the various motions for summary judgment filed herein, and with due deliberation has determined the following:

1) Oral argument is not necessary pursuant to NYCRR 202.8(d);

2) The causes of action herein sounding in Labor Law 240(1), 241(6) and 200(1) are [*2]DISMISSED.

3) All other motions for summary judgment herein, including all motions(s) for summary judgment relating to the Third-Party Complaint are DENIED, as questions of fact remain as to the negligence and/or non-negligence of the parties.

The plaintiff is directed to submit an Order which delineates with specificity all of the motion submissions herein, and which memorializes this Court's decision at (sic) set forth above. The case will be randomly reassigned to a new Judge after the Order is signed (Doc. 222).

The Glownia Decision was reduced to orders, each dated December 30, 2020, applicable to each motion (collectively, the "Glownia Orders") (Doc. 208, the Glownia Order relative to Turner; Doc. 209, the Glownia Order relative to SBRA; Doc. 210, the Glownia Order relative to Hughes; and Doc. 211, the Glownia Order relative to Cannon).

This action for personal injuries arises out of a fall at the John R. Oshei Children's Center ("Children's Hospital" or the "Facility"), located at 818 Ellicott Street in the City of Buffalo, on January 12, 2018 (the "Incident"). The following facts are undisputed:

•At all relevant times, Mr. Dentico was an employee of non-party, Kaleida Health ("Kaleida"), and his title was "Maintenance Groundskeeper," within the maintenance department at Children's Hospital. He was not involved in the construction of Children's Hospital (Doc. 45, pp. 17-19).

•Mr. Dentico's responsibilities included maintenance of the entire exterior of the Facility, which he described as "maintaining the grounds such as lawn care, such as trees, plants, pruning, snow removal, trash pickup. Running heavy equipment; that's - such as Bobcats, plow trucks. Filling the plow truck; the salter in the plow" (Id., at pp. 17-18).

•Kaleida contracted with SBRA to provide the design, architectural, and engineering services, as well as the plans and specifications to be relied upon in order to construct Children's Hospital (Doc. 49) (the "Project").

•Kaleida contracted with Turner to provide construction management services to administer, manage and construct the Project (Doc. 132; Doc. 160). Turner's work consisted of, inter alia, overseeing the construction of Children's Hospital in accordance with the design provided by SBRA, the architect retained by Kaleida (Id.).

•At the time of the Incident, Mr. Dentico was exiting a room identified by SBRA in its architectural plans as a "MECH-AHU-ROOM," an abbreviation meaning mechanical and air-handling-unit room (the "Mech/AHU Room")^[FN2] , through a door (the "Door"), to an exterior "room" identified in the same plans as a an "Areaway" (Doc. 137, ¶11).

•The Mech/AHU Room is considered a large basement space in which mechanical equipment is housed, and the Areaway is considered open building space that allows exterior air to enter the Areaway through grates (located atop the Areaway) and then pass [*3]through mechanical louvers (on the wall between the Areaway and Mech/AHU Room) into the Facility (Id., at ¶12).

•The Mech/AHU Room and Areaway were part of the Facility's mechanical system. One of the purposes of the Mech/AHU Room, and the sole purpose of the Areaway was to allow fresh air to enter the Facility form the outside. The Mech/AHU Room and Areaway were not located along a path of ingress/egress to/from the Facility (i.e., the path individuals would need to travel in the event they sought to enter/exit the Facility).

•Leading up to the Incident, both Mr. Dentico and a co-worker, Dennis Rott, went on a break from work, intending to walk to outside of the Facility, through the Door between the Mech/AHU Room and the Areaway. (Doc. 45, p. 41). Mr. Dentico intended to exit the Facility through the Areaway, despite that the Areaway does not provide a means of ingress or egress.

•Mr. Dentico approached the Door, opened it outward and, as he stepped forward, he fell due to a change in elevation between the Mech/AHU Room and the Areaway. He fell a distance in excess of three (3) feet to a concrete floor below (the "Elevation Differential"), sustaining fractures of his ankle, heel and foot (Doc. 45, pp. 51-54; see also, photographs of the Mech/AHU Room, Door, and Areaway at Doc. 127).

•The approved design plans did not require a stair, ladder, or railing to transition from the Mech/AHU Room to the Areaway.

•The Areaway was intentionally designed to be subgrade and three (3) feet below the bottom of the louvers located on the exterior of the Mech/AHU Room, in order to allow air to enter and exit the Mech/AHU Room via the Areaway (Doc. 118, pp 36-39).

•There were no notices or warnings of any kind on, or around the Mech/AHU Room side of the Door to alert anyone to the Elevation Differential on the other side of the Door.

•The Door was installed with push bar hardware, permitting the Door to open outward to the Areaway, with no locking mechanism. The Door also has a small window in the upper corner, but the glass is coated with a film treatment, which limits vision to nothing more than incoming, exterior natural light (Doc. 45, p. 43).

•At the time of the Incident, there was no stair or ladder on the Areaway side of the door, and Mr. Dentico contends that he was injured because he was caused to fall due to the Elevation Differential, which was unknown to him (Doc. 45, pp. 41-43; 90-91). During construction, temporary stairs were placed on the Areaway side of the Door (the "Temporary Stairs"), but they were removed prior to the completion of construction in that section of the Facility. The exact date the Temporary Stairs were removed is unknown (Doc. 46, pp. 58-59; Doc. 57, ¶19).

•Children's Hospital is owned by Kaleida, and none of the Movants possess an ownership interest in Children's Hospital.

•Turner's principal work at Children's Hospital was completed in August 2017; its punch list items were completed by October 2017; and final change-order items were completed (and all Turner employees vacated the Facility) by March 2018 (Docs. 50-52; Doc. 73, pp-60-63). All work associated with the Mech/AHU Room, Door, and Areaway was completed by October 2017.

•On or about August 24, 2017, Uma Ramanathan, the Project's principal architect and a [*4]representative of SBRA, signed the "Certificate of Substantial Completion" for the Project which provides, in relevant part, as follows:

The work performed under this Contract has been reviewed and found, to the Architect's best knowledge, information and belief, to be substantially complete. Substantial Completion is the stage in the progress of the Work when the Work or designated portion is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use . . . (Doc. 36, ¶59; Doc. 50).

•On August 24, 2017, Ms. Ramanathan also sent a letter to the New York State Department of Health ("NYSDOH") entitled, "Completed Construction Certification Letter For Architects and Engineers" in which she certified, in relevant part, that

the completed structure is designed and constructed in accordance with the programmatic requirements for the referenced construction project, in accordance with design development drawings, and in accordance with any project definitions, modifications, and or revisions approved or required by the New York State Department of Health [and] . . . [t]he aforementioned construction project has been designed and constructed in compliance with all applicable local, state and federal codes, statutes, and regulations . . . (Doc. 51).

A motion to reargue is based upon matters of fact or law overlooked and misapprehended by the court (CPLR 2221). Where, as here, the trial judge who decided the underlying motion is not available, the motion may be made before another judge (Sparks v. Essex Homes of WNY, Inc., 20 AD3d 905 [4th Dept 2005]).

To obtain summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law (Ferluck AJ v. Goldman Sachs & Co., 12 NY3d 316, 320 [2009]). This requires sufficient evidence to shift the burden to the opposing party to produce evidentiary proof sufficient to establish the existence of genuine issues of material fact (Id at 320). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (Gilbert Frank Corp. v. Fed. Ins. Co., 70 NY2d 966, 967 [1988] [citation omitted]).

Moreover, factual issues raised by the opposing party must be genuine, as opposed to speculative (Trahwen LLC v. Ming 99 Cent City No.7, Inc., 106 AD3d 1467, 1468 [4th Dept 2013]).

If a motion is denied in part, the court "shall, if practicable, ascertain what facts are not in dispute or are not incontrovertible. It shall thereupon make an order specifying such facts and they shall be deemed established for all purposes in the action" (CPLR 3212[g]). The Glownia Decision, however, did not identify any factual issues, or the reasoning behind its determinations.

As the Project's architect, SBRA contends that its design complied with the applicable standard of care, and that Mr. Dentico was not a foreseen or reasonably foreseeable user of the Mech/AHU Room and Areaway where the Incident occurred. SBRA further contends there were no foreseen or reasonably foreseeable users of the Mech/AHU Room and Areaway except those persons trained to be there, on rare occasions, to maintain the mechanical system, and which did not include Mr. Dentico.

SBRA relies on the well settled standard for the imposition of liability on an architect, as stated in the comments to 2:153 of the New York Pattern Jury Instructions ("NY PJI"), as follows:

The architect's duty of professional care extends to the client, and to those members of a limited class whose reliance on the architect's service was, or at least should have been, specifically foreseen, Gordon v. Holt, 65 AD2d 344 [4th Dept 1979]; see, White v. Guarente, 43 NY2d 356 [1977] (NY PJI 2:153, Malpractice - Architect).

However, this standard is not applicable to this matter, because it relates to professional malpractice claims where the dispute is limited to economic loss (see Gordon and White above).

With respect to claims for personal injuries, an architect is responsible in "simple negligence" for failing to exercise the ordinary skill of his/her profession that results in an unsafe structure and injures someone lawfully on the premises (Clemens v Benzinger, 211 AD 586, 587 [*6][4th Dept 1925]; see also, Richards v. Passarelli, 77 AD3d 905, 909 [2d Dept 2010] [architect must "use[ ] the degree of care in design that a reasonably prudent architect would use to avoid an unreasonable risk of harm to anyone likely to be exposed to the danger"]).

SBRA contends that Plaintiffs' claims against it must be dismissed, because Mr. Dentico's entry into the Areaway was neither foreseen by SBRA, nor foreseeable. It is undisputed that the Door to the Areaway was located in a rear portion of the basement Mech/AHU Room, and that accessing them (both the Door and the Areaway) required stepping up into a hatchway door of a ventilating duct (located in the Mech/AHU Room), and then stepping up and out of it (see rendering at Doc. 256). Multiple professionals reviewed the design and construction of the Mech/AHU Room and Areaway, including the City and the NYSDOH. No one ever suggested that a stairway should be added to the Areaway side of the Door, because none of them foresaw that anybody would enter the Areaway other than the person trained to clear its drain or remove debris entering from the grate (which did not include Mr. Dentico).

The Areaway is open air, but covered by a grate. Foreign objects entering the Areaway through the grate would need to be removed on occasion. In addition, the Areaway includes a floor drain that must be maintained. Assuming that such drain needed to be checked on a limited basis (such as annually), a maintenance person designated to maintain the Areaway and drain would proceed through the Door to the Areaway. SBRA contends that such maintenance person was trained to use a ladder to step out of the Mech/AHU Room and down into the Areaway, and vice-versa.

Thus, while an appropriate maintenance person would be expected to enter the Areaway via the Door, Mr. Dentico was not so trained, and his job duties while employed at Kaleida did not include maintaining the Areaway, or otherwise require him to enter the Areaway or access the Door. Plaintiff's claims to the contrary constitute an inaccurate depiction of Mr. Dentico's job duties, and the type of "expressions of hope or unsubstantiated allegations or assertions [that] are insufficient" to defeat summary judgment (Gilbert Frank Corp., 70 NY2d at 967).

Foreseeability is a question of fact, to be determined by the jury (Sanchez v. State, 288 AD2d 647 [3d Dept 2001; see also, NY PJI 2:12 - Foreseeability, Generally). However, before a jury is permitted to reach this question, the court must first determine whether the defendant owed a duty to the injured plaintiff (Ingenito v. Rosen, 187 AD2d 487, 487-488 [2d Dept 1992]).In order to recover damages for negligence, it must be shown that the defendant owes a duty of care to the plaintiff. Whether a duty exists is for the court to decide. Foreseeability of injury does not determine the existence of a duty. It is the responsibility of the courts to fix the bounds of duty, where logic, science, and policy all play an important role. Foreseeability is used to determine the scope of duty, only after it has been determined that there is a duty (Id.). (emphasis added).

Mr. Dentico had no reason to ever access the Door, or to be in the Areaway. As an exterior groundskeeper, his duties were limited to maintaining the exterior of the Facility, such as, inter alia, lawn maintenance, tree pruning, and snow removal; none of which required him to be in the Areaway. His use of the Areaway at the time of the Incident (while on a break with a coworker seeking to exit the Facility via the Areaway, which was impossible) was outside the scope of his employment with Kaleida at Children's Hospital. Accordingly, SBRA owed no duty to him and the issue of foreseeability is never reached.

Mr. Dentico's use of the Areaway was also unforeseeable, because the route from the Mech/AHU Room through the Door to the Areaway was not a path of egress. The Areaway was not designed as a means of egress from the Facility, because it is fully enclosed, below grade, and offering no means of entering or exiting the Facility.

Accordingly, based upon "logic, science, and policy," SBRA owed no duty to Mr. Dentico, meaning that the question of foreseeability never arose (see Ingenito, 187 AD2d at 487-488).

SBRA relies on Richards, supra, in which the Second Department reversed the trial court's order denying the architect's motion for summary judgment, holding that the architect established its prima facie entitlement to judgment as a matter of law by demonstrating that it was not negligent in the design of the subject parking lot. The architect's site plan provided for a six-inch "curb reveal" and detectable warning surfaces between the parking lot and the sidewalk. The architect's plan also included arrows depicting the general direction of traffic flow. The architect established that it used the degree of care in design that a reasonably prudent architect would use to avoid an unreasonable risk of harm to "anyone likely to be exposed to the danger" (Richards, 77 AD3d at 909).

The court agrees with SBRA that Mr. Dentico was not someone "likely to be exposed to the danger," if any, created by the absence of stairs on the Areaway side of the Door.

In Hughes, the court relied on Richards in holding that "an architect who prepares plans and specifications is under a duty to use that degree of care that would have been exercised by a reasonably prudent architect to make the envisioned site or structure reasonably safe for intended users" (Hughes, 5 Misc 3d at 1024(A) *2) (emphasis added). Mr. Dentico was not an "intended user[ ]" of the Areaway.

Whether a particular building code or administrative code provision applies to a project is a question of law for the court to determine (Buchholz v. Trump 767 Fifth Avenue, LLC, 4 AD3d 178 [1st Dept 2004], aff'd 5 NY3d 1 [2004]).

Mr. Dentico contends that SBRA's design violated the New York State Building and Fire Code (the "State Code") by failing to include, inter alia, permanent stairs and railings on the Areaway side of the Door.

State Code section 1004.1 (and its accompanying Table at 1004.1.1) applies to spaces occupied by persons, and identifies such spaces as, inter alia, an "Airport terminal," "Bowling centers," "Dormitories," and ""Kitchens, commercial." The only space identified in Table 1004.1.1 that arguably applies to this matter is "Accessory storage areas, mechanical equipment room."

SBRA contends that §1004.1 does not apply to this matter, because the Areaway is not a "room" within the meaning of the section, nor does it include any mechanical equipment.

The parties' respective experts disagree as to how the Mech/AHU Room and Areaway should be characterized, for purposes of the application of §1004.1. Plaintiffs' expert, Kenneth W. Pearl, considers both the Mech/AHU Room and the Areaway to be "mechanical rooms or mechanical spaces within the building since the primary function of both room spaces are to house and serve the functional needs of mechanical equipment and processes" (Doc. No. 137, ¶12).

SBRA's expert, Wade Johnson, agrees with Mr. Pearl that the Mech/AHU Room constitutes a space covered by §1004.1 and Table 1004.1.1. (i.e., a "Mechanical room"). However, he does not consider the Areaway to be covered by §1004.1, because,

it is clearly outside the building with no water-shedding roof, is not heated or temperature controlled and is open to the sky and weather

above. . . . It is no more a room than a standard flat rooftop, with drains that need annual cleaning by means of a portable ladder or through an adjacent window. Neither the Areaway nor the suggested rooftop would be assigned an occupancy, because they are not "rooms," and therefore do not require a means of egress (Doc. 198, ¶7).

The State Code allows the "code official" to ultimately opine as to the occupancy to be given to any space not on the list (Id., at ¶8). The Areaway was shown on the architectural drawings filed with the City Building Department, and upon final review and acceptance of such plans, the City Building Department did not contemplate any occupancy in the Areaway (Id.).

The Court finds that, based on the intended use of the Mech/AHU Room and the Areaway, State Code §1004.1 and Table 1004.1.1 apply to the Mech/AHU Room, but not to the Areaway; where Mr. Dentico actually fell.

Plaintiffs' remaining contentions are without merit, and SBRA's motion for summary judgment should have been granted.

Premises Liability

It is undisputed that Turner did not own or occupy Children's Hospital, leaving potential liability predicated solely on whether Turner controlled or made a special use of the Facility.

Mr. Dentico was not engaged in the construction process, nor was he an employee of Turner. He was not injured at a location where construction work was ongoing. Rather, Children's Hospital opened to the public in October 2017. As of the date of the Incident in January 2018, Turner's work at the Facility was limited to "closing out the job," which included the completion of paperwork related to warranties and as—built drawings, and there was one (1) Turner employee working on the outside of the Facility to address a condensation problem (Doc. 73, pp. 62-63). None of such work had anything to do with the Mech/AHU Room or the Areaway, where the Incident occurred. Indeed, Mr. Dentico testified that there was no construction work being performed in the area of the Facility where the Incident occurred. (Doc. 45, p. 95). Accordingly, as of the date of the Incident, Turner neither controlled, nor made special use of, the Facility. Instead, by the date of the Incident, Turner had turned the Facility over to Kaleida (the Facility's owner), in connection with the final Certificate of Occupancy that the City issued in October 2017.

As these terms reveal, Turner was obligated to provide a safe working environment not

For these same reasons, the OSHA regulations upon which Plaintiffs rely are inapplicable. OSHA governs the relationship and duties between employers and employees, and 29 CFR 1926 relates to safety during construction; Mr. Dentico was never a Turner employee and his work as a groundskeeper for Kaleida was not related to construction.

In light of the foregoing, Plaintiffs' premises liability claims are unfounded, because Turner neither owned, controlled, nor made a special use of the Mech/AHU Room, the Door, or the Areaway at the Facility at the time of the Incident.

Privity

Mr. Dentico was not in privity with Turner, and Plaintiffs ignore section 17.4 of the Turner Contract, which provides, as follows:

No provision of the Contract shall in any way inure to the benefit of any third party, including the public at-large, so as to constitute any such person a third party beneficiary of the Contract or of any one or more of the provisions hereof or otherwise give rise to any cause of action in any person not a Party hereto (Doc. 160, Part B, p. 18, §17.4).

A contractor not in privity with a plaintiff may only be held liable if one (1) of the following three (3) criteria are met: (I) where the contracting party, in failing to exercise reasonable care in the performance of contractual duties, launches a force or instrument of harm; (ii) where the plaintiff detrimentally relies on the continuing performance of the contractor's duty; or (iii) where the contracting party has entirely displaced the other contracting party's duty to maintain the premises safely (Espinal v. Melville Snow Contractors, 98 NY2d 136 [2002]).

As demonstrated above, Plaintiffs are unable to satisfy the second and third criteria, because Mr. Dentico had no involvement in the construction of the Facility; Turner was not the owner of the Facility and had turned it over to Kaleida prior to the Incident; and construction in the area of the Incident had been completed prior to the Incident.

Plaintiff contends that Turner's failure to install stairs on the Areaway side of the Door violated the first criteria of Espinal by launching a force or instrument of harm. However, while stairs were present during construction for the benefit of the construction workers, the approved design plans prepared by SBRA intended for the stairs to be temporary and to be removed prior to the completion of construction. Indeed, Ms. Park (an SBRA architect) testified that, had she observed stairs on the Areaway side of the Door upon completion of construction, she would have ordered that they be removed (Doc. 53, pp. 62-63). Thus, Turner's failure to take the affirmative action of installing stairs where none were required by the design plans governing its work may not serve as a basis for liability against it (Santos v. Deanco Servs., Inc., 142 AD3d 137 [2d Dept 2016]).

Plaintiffs' remaining contentions are without merit.

Hughes seeks dismissal of SBRA's third-party claims against it for contribution and indemnification (common law and contractual). Having determined that SBRA is entitled to summary judgment, the third-party claims against Hughes are necessarily dismissed, and therefore the court need not consider Hughes' motion. However, the court has done so in order to provide the parties with a complete record.

The consulting agreement between SBRA and Hughes is set forth in the "Agreement between Architect and Consultant," undated (the "Hughes' Contract") (Doc. 186). The "Terms and Conditions" thereof are set forth at Attachment C, which provides as follows at paragraph 9:

The Consultant hereby agrees to indemnify, defend and hold harmless the Architect (in any mediation, arbitration or court proceeding, as applicable) from and against all claims, causes of action, suits, losses, damages, liabilities, costs and expenses arising out of the Consultant's Services hereunder, to the extent that the same arise out of or result from the negligent acts, errors, or omissions of the Consultant, or breaches by the Consultant of its obligations hereunder or (with respect to the Consultant's duty to defend) are claimed to be the result thereof.

SBRA contracted with Hughes to provide "Fire/Life Safety, and Accessibility Code" consulting services relative to the construction of the Facility (Doc. 186, Attachment B).

"Fire protection" code consulting refers to code requirements applicable to fire protection systems, such as regarding approved devices, equipment, and systems (or combinations of systems) used to detect a fire, activate an alarm, extinguish or control a fire, and control or manage smoke and products of a fire or any combination thereof (Doc. 84, ¶12). "Accessibility" code consulting refers to the code requirements applicable to the ready access and usage of buildings (or portions of buildings) by individuals with disabilities (Id., at ¶14). Accordingly, the "fire protection" and "accessibility" code consulting services provided by Hughes are irrelevant to this action.

"Life safety" code consulting refers to the code requirements applicable to safety to life from fire. Such consultation includes those construction, protection, and occupancy features [*8]necessary to minimize danger to life from the effects of a fire (such as smoke, heat, and toxic gases created during a fire). Life Safety code consulting relates to the design of egress facilities to allow occupants to promptly escape from a building. Such consultation also involves consulting on protective features and systems, building services, operating features, maintenance activities, and other provisions in order to help achieve additional safeguards to provide adequate egress time or protection for people exposed to fire (Id., at ¶13).

Accordingly, the "life safety" code consulting services provided by Hughes are also irrelevant to this action, because it is undisputed that the path Mr. Dentico traveled to access the Door and ultimately enter the Areaway was not a means of egress.

With respect to relevant life safety issues, Hughes provided consulting services to

To invoke apportionment by contribution under CPLR article 14, SBRA must show that Hughes had a role in causing or augmenting the injury for which contribution is sought (Raquet v. Braun, 90 NY2d 177 [1997]). SBRA is unable to make such a showing, because there is no evidence that Hughes was retained to provide any services with respect to the Incident's location. There was nothing that Hughes did (or was responsible for doing) with respect to such location. Hughes did not provide any input to SBRA about how to design the Mech/AHU Room or Areaway.

In addition, there is no dispute that the Incident did not occur along a path of egress.

SBRA's claim for common law indemnification fails, because a predicate for such claim is vicarious liability without actual fault on the part of SBRA (Dreyfus v. MPCC Corp., 124 AD3d 830, 830 [2d Dept 2015] ["a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine" of common law indemnification]). Plaintiffs' claims against SBRA are not vicarious liability claims that may serve as the basis of a common law indemnification claim. Rather, Plaintiffs' claims against SBRA are based on SBRA's own alleged negligence.

With respect to contractual indemnification, the operative language of the applicable Terms and Conditions provides, as follows:

The Consultant hereby agrees to indemnify . . . the Architect . . . from and against all claims . . . from the negligent acts, errors, or omissions of the Consultant, or breaches by the Consultant of its obligations hereunder or (with respect to the Consultant's duty to defend) are claimed to be the result thereof (emphasis added) (Doc. 186, Attachment C, ¶9).

Clearly, this language applies, and is limited to negligent acts or omissions committed by Hughes. Plaintiffs, however, have presented no proof in admissible form that Hughes committed any wrongful act or omission that caused, or contributed to the Incident.

Cannon seeks dismissal of SBRA's third-party claims against it for contribution and indemnification (common law and contractual). Having determined that SBRA is entitled to summary judgment, the third-party claims against Cannon are necessarily dismissed, and [*9]therefore the court need not consider Cannon's motion. However, the court has done so in order to provide the parties with a complete record.

The consulting agreement between SBRA and Cannon is set forth in the "Agreement between Architect and Consultant," dated June 6, 2013 (the "Cannon Contract") (Doc. 193). The "Terms and Conditions" thereof are set forth at Attachment C, which provides as follows at paragraph 9:

The Consultant hereby agrees to indemnify, and hold harmless the Architect (in any mediation, arbitration or court proceeding, as applicable) from and against all claims, causes of action, suits, losses, damages, liabilities, costs and expenses arising out of the Consultant's Services hereunder, to the extent that the same arise out of or result from the negligent acts, errors, or omissions of the Consultant, or breaches by the Consultant of its obligations.

Cannon served as SBRA's mechanical, electrical, plumbing, and Fire Protection engineering consultant in connection with the construction of Children's Hospital (Doc. 109, ¶1). SBRA's Amended Bill of Particulars to Cannon, dated November 4, 2020, states, in relevant part, that "[w]hile SBRA denies plaintiff's allegations of negligence, if it is determined that SBRA is liable to plaintiff, then any such liability arose in whole or in part due to the negligence, culpable conduct or other breach of duty of Cannon (Id.).

SBRA's claims against Cannon focus on the Door, its hardware, the Elevation Differential, and the absence of stairs on the Areaway side of the Door. However, Cannon's scope of work did not include design or consultant duties relative to the location of the Incident.

SBRA architects Park and Ramanathan both testified that SBRA's design intentionally included the Elevation Differential, without stairs on the Areaway side of the Door (Doc. 112, pp. 25-26, 46; Doc. 115, pp. 22-24). The Areaway was intentionally designed to be subgrade and three (3) feet below the bottom of the louvers to allow outside air to enter and exit the Mech/AHU Room via the Areaway (Doc. 118, pp 36-39).

Cannon had no responsibility to provide the architectural design of the site of the Incident. Cannon's duty to SBRA was limited to advising SBRA that its design of the Mech/AHU Room and Areaway must conform to all applicable guidelines (which it satisfied). Cannon, however, had no responsibility for how SBRA implemented such guidelines. As such, Cannon's scope of responsibility did not include what, if any steps or stairs should be included at the site of the Incident, the type of door/hardware to be used between the Mech/AHU Room and the Areaway, or whether any signage should be placed on the Door. For these reasons, the third-party claims against Cannon should be dismissed (Hewitt v. Liverpool Central School District, 134 AD3d 1507[4th Dept, 2015]).

SBRA also contends that Cannon breached the "Cooperation Clause" of the Cannon Contract at paragraph 7 of the Terms and Conditions thereof, which states, in relevant part, as follows:

In the event of any claim, potential claim or allegations (the "Claim") asserted or threatened against the Architect and involving, in whole or in part, the Consultant Services, the Consultant agrees, upon the Architect' request, to (a) work cooperatively and jointly with the Architect in the defense of the Claim; (b) provide adequate support and assistance in the investigation and defense of the Claim; (c) retain, at the Consultant's [*10]expense, any experts or consultants reasonably required to assist in the defense of the portion of the Claim relating to the Consultant Services; and (d) participate with the Architect in any negotiation, or mediation relating to the potential resolution of the Claim.

On March 23, 2018, Plaintiffs commenced this action against SBRA and Turner (Doc. 1). On March 3, 2020, SBRA commenced a third-party action against Cannon and Hughes (Doc. 25).

SBRA never sought to invoke the Cooperation Clause prior to commencing the third-party action. Rather, on March 2, 2020 (the day before it commenced the third-party action), SBRA's counsel left a brief voice mail message with Donall O'Carroll, Esq., Cannon's General Counsel, informing Mr. O'Carroll that he represented SBRA; that SBRA intended to commence a third-party action against Cannon; and requesting that Mr. O'Carroll return his call (Doc. 124, ¶9; Doc. 268).

Mr. O'Carroll returned that call on March 2, 2020, and was able to speak to counsel, at which time he first learned of this action. Counsel informed Mr. O'Carroll that the trial was scheduled to commence in September 2020 and the court had directed SBRA to commence a third-party action, if any, prior to a conference scheduled for March 16, 2020 (Doc. 124, at ¶10). The following day, SBRA commenced the third-party action against Cannon (and Hughes).

Under these circumstances, Cannon did not breach the Cooperation Clause.

In light of the foregoing, it is hereby

ORDERED, that SBRA's motion seeking leave to reargue the Glownia Decision (Doc. 222) and Glownia Order (Doc. 209) is granted and, upon reargument, SBRA is granted summary judgment, dismissing all claims and cross-claims against it; and it is further

ORDERED, that, having granted summary judgment to SBRA, the third-party action and all of SBRA's third-party claims against Hughes and Cannon are hereby dismissed; and it is further

ORDERED, that Turner's motion seeking leave to reargue the Glownia Decision (Doc. 222) and Glownia Order (Doc. 208) is granted and, upon reargument, Turner is granted summary judgment, dismissing all claims and cross-claims against it; and it is further

ORDERED, that Hughes' motion seeking leave to reargue the Glownia Decision (Doc. 222) and Glownia Order (Doc. 210) is denied, as moot, in light of the Second Ordered paragraph above. However, in the event the court had reached the merits of Hughes' motion, it would have granted reargument and summary judgment; and it is further

ORDERED, that Cannon's motion seeking leave to reargue the Glownia Decision (Doc. 222) and Glownia Order (Doc. 211) is denied, as moot, in light of the Second Ordered paragraph above. However, in the event the court had reached the merits of Cannon's motion, it would have granted reargument and summary judgment.

This constitutes the Decision and Order of this court. Submission of an order by the parties is not necessary. The delivery of a copy of this Decision and Order by this court shall not constitute notice of entry.