NYSCEF document nos. 49-72, 82, 85, 88-102, 105, 117-118 were read in deciding this motion.

The defendants Bay Crane Service, Inc. (hereinafter BCS), Bay Crane Service of Long Island, Inc. (hereinafter BCSLI), and Bay Crane Service of New York, Inc. (hereinafter BCSNY, and hereinafter collectively with BCS and BSCLI, the Bay Crane defendants), move for summary judgment dismissing the complaints and all cross-claims insofar as asserted against them, and for summary judgment on the cross-claim of BCSNY against the defendant Philip Ross Industries, Inc. (hereinafter Philip Ross), for contractual indemnification.

On July 31, 2023, BCSNY leased a crane to Philip Ross. The crane was used that one day to install wood trusses to form the roof of a new building under construction. The crane was returned to the Bay Crane defendants' yard at the end of that day. The plaintiffs allegedly were [*2]injured in a construction accident that occurred on August 3, 2023, when the truss roof collapsed. Each of the three plaintiffs commenced separate actions, and those actions were consolidated under the above caption.

In their complaints, the plaintiffs alleged that the Bay Crane defendants created a dangerous and/or defective condition, and that they failed to properly hoist, transport and/or place the wood trusses onto the subject building under construction and were otherwise negligent. In their bill of particulars as to the Bay Crane defendants, the plaintiffs alleged, among other things, that the crane was in a dangerous and/or defective condition, that they failed to provide proper rigging equipment, and that the rigging equipment that was provided was in a dangerous and/or defective condition.

In their answers, the Bay Crane defendants asserted cross-claims against Philip Ross and the defendant ADW Construction Group Corporation (hereinafter ADW) for contribution, contractual indemnification, common-law indemnification, and breach of contract to procure insurance.

It its answers, Philip Ross asserted cross-claims against ADW and the Bay Crane defendants for common-law contribution, common-law indemnification, contractual indemnification.

In its answers, ADW, inter alia, did not assert any cross-claims against the Bay Crane defendants.

In its answers, the defendant Jericho Water District (hereinafter Jericho) did not assert any cross-claims.^[FN1]

The Bay Crane defendants move for summary judgment dismissing the complaints and all cross-claims insofar as asserted against them, and for summary judgment on the cross-claim of BCSNY against Philip Ross for contractual indemnification. In a memorandum of law submitted in support of the motion, counsel for the Bay Crane defendants contends that they cannot be liable because BCSNY was a mere lessor of the crane and did not provide an operating engineer or any other operating personnel. Counsel further contends that the contract between BCSNY and Philip Ross obligates Philip Ross to indemnify BSCNY for personal injury claims arising out of Philip Ross's operation of the crane, including attorney fees. With respect to BCS and BCSLI, counsel contends that they are not proper defendants, because they had no involvement with the leasing of the crane or the project. Lastly, counsel contends that the motion is not premature. In support of the motion, the Bay Crane defendants submit, inter alia, a copy of the agreement between BCSNY and Philip Ross, the affidavit of Marc Acierno, and the affidavit of Philip Bernardo.

The agreement between BCSNY and Philip Ross provides, in relevant part:

"1. INDEMNIFICATION — To the fullest extent permitted by law, Lessee agrees to indemnify and save Lessor, its employees and agents harmless from claims for death or [*3]injury to persons, including Lessor's employees, of loss, damage or injury to property, including the Equipment, arising in any manner out of Lessee's operation.

. . .

"3. CONDITIONS -GROUND/POWERLINES/RIGGING — . . . Lessee is required to provide any and all rigging to be used with the Equipment. If chokers, slings, straps, chains, hooks, spreaders, fittings, rope or wire, etcetera, are loaned to the Lessee by the Lessor for the Lessee's convenience, they are solely the Lessee's responsibility. Lessee assumes responsibility for any defects in any rigging, whether the property of Lessee or otherwise. Lessee assumes the responsibility for damage to any load on hook due to a failure of the rigging. Lessee assumes the responsibility for the method of rigging, and agrees that all persons involves in the rigging are qualified according to OSHA's definition 1926.1401 and are under Lessee's direct supervision and control."

In his affidavit, Acierno states that he is a sales representative for BCSNY. Acierno states that the agreement with Philip Ross was on "bare rental" agreement, pursuant to which only the crane was provided, without any operating engineer or other operating personnel. Acierno states that no BCSNY personnel or other employees were present on the site on the day of the accident or for the three days preceding the accident.

In his affidavit, Bernardo states that he is the Vice President and Secretary of the Bay Crane defendants. Bernardo states that the subject agreement was a "bare rental lease" and that no employees or personnel of the Bay Crane defendants were present on the subject construction site on the date of the accident or the three days prior. Bernardo also states that BCS, BCSLI, and BCSNY are separate corporations, and BCS and BCSLI are not parties to the agreement.

The plaintiffs oppose the Bay Crane defendants' motion. In an attorney affirmation in opposition to the motion, counsel for the plaintiffs contends that the motion is premature. Counsel also asserts that an OSHA investigation demonstrates that the rigging on the crane was in a defective condition, which was a proximate cause of the accident. Counsel further contends that, in the plaintiffs' bill of particulars, they alleged that the rigging of the crane was defective, which was not addressed in the affidavits of Acierno or Bernardo. Submitted with the plaintiffs' opposition papers is an OSHA investigation report. This report provides, among other things, that on the day the crane was being used, workers interviewed stated that they remembered a truss slipping from rigging of the crane and falling six to eight feet to the scaffold below.

Philip Ross also opposes the Bay Crane defendants' motion. In an attorney affirmation in opposition, counsel for Philip Ross contends that the motion is premature because no depositions have taken place, and specifically, the parties have not had an opportunity to depose the individuals whose affidavits were submitted in support of the motion. Counsel further contends that, in any event, the plaintiff failed to meet its prima facie burden, because the affidavits of Acierno and Bernardo, wherein those individuals stated that no employee was present on the project, they do not have any personal knowledge of what occurred. Counsel also asserts that the indemnification provision only requires Philip Ross to indemnify BCSNY for any liabilities arising out of Philip Ross's operation of the crane, and here, there has been no discovery regarding the operation of the crane.

ADW also opposes the Bay Crane defendants' motion. In an attorney affirmation in opposition, counsel for ADW asserts that no documents have been exchanged to demonstrate that the crane was in good repair, properly inspected, and did not otherwise malfunction. [*4]Counsel also notes that the affidavits submitted in support of the motion are not based on personal knowledge of individuals who used the cranes at the time of the accident, inspected it, were involved in the project, or were ever present at the scene. Counsel contends that the motion should also be denied as premature, as no depositions have taken place and discovery is in its infancy.

Jericho also opposes the Bay Crane defendants' motion. In an attorney affirmation in opposition, counsel for Jericho contends that the motion is premature because the preliminary conference order has not been complied with and because party and non-party depositions have not been conducted and there is a voluminous amount of outstanding discovery.

In an attorney affirmation in reply, counsel for the Bay Crane defendants contends that there is no evidence that the Bay Crane defendants had anything to do with causing the accident. Counsel reiterates the contention that no personnel of the Bay Crane defendants were present at the site on the date of the accident or the three days prior. Counsel emphasizes that the crane was used on July 31, 2023, only, and was returned to the Bay Crane defendants' yard at the end of that day. Counsel also notes that, pursuant to the agreement, the Bay Crane defendants did not supply any rigging equipment or rigging personnel. Counsel contends that the opponents of the motion have not shown that the motion is premature because they have not identified what information is in the exclusive control of the Bay Crane defendants that would raise a triable issue of fact. Attached as an exhibit to the Bay Crane defendants' reply papers is another affidavit of Bernardo. In this affidavit, Bernardo states that no rigging equipment was provided to Philip Ross pursuant to the agreement; only the crane was provided.

Initially, since the Bay Crane defendants' motion does not seek relief against ADW or Jericho, and neither of those defendants asserted cross-claims against the Bay Crane defendants, ADW and Jericho do not have standing to oppose this motion (see Pianin v Altorki, 2022 NY Misc LEXIS 37682, *22 [Sup Ct, New York County 2022]; see also Augustine v Halcyon Constr. Corp., 71 Misc 3d 715, 716-717 [Sup Ct, Bronx County 2021]; see generally Mixon v TBV, Inc., 76 AD3d 144, 152 [2d Dept 2010]). Accordingly, their opposition papers have not been considered.

Next, with respect to that branch of the Bay Crane defendants' motion which is for summary judgment dismissing the complaint and all cross-claims insofar as asserted against BCS and BCSLI, the Bay Crane defendants established their prima facie entitlement to judgment as a matter of law through the affidavit of Bernardo and the agreement, which established that those entities were not parties to the agreement. In opposition, the plaintiffs and Philip Ross demonstrated that this branch of the Bay Crane defendants' motion is premature. "[A] party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant. Mere hope or speculation about what evidence would be revealed in the discovery process in insufficient to defeat the motion for summary judgment" (Cappiello v City of Glen Cove, 232 AD3d 844, 846 [2d Dept 2024] [citation and internal quotation marks omitted]). Here, discovery might lead to relevant evidence regarding whether any personnel of any Bay Crane entity was present at the site, and whether BCS and BSCLI had any involvement with the subject crane. At this early stage of litigation, [*5]such evidence is exclusively within the knowledge and control of the Bay Crane defendants. Under these circumstances, that branch of the Bay Crane defendants' motion which is for summary judgment dismissing the complaint and all cross-claims insofar as asserted against BCS and BCSLI must be denied, with leave to renew upon the completion of discovery (see generally Knowles v 21-43 27th St., LLC, 224 AD3d 737, 737 [2d Dept 2024]; Malaspina v Westchester Med. Ctr. Health Care Corp., 23 AD3d 941, 943 [2d Dept 2024]).

With respect to that branch of the Bay Crane defendants' motion which is for summary judgment dismissing the complaint and all cross-claims insofar as asserted against BCSNY, the "prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" (Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2d Dept 2010]). "[A]s a general rule, a party does not meet its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense. Only if the movant meets that standard does the burden then shift to the party opposing summary judgment to tender evidence, in a form admissible at trial, sufficient to raise a triable issue of fact" (C.M. v West Babylon Union Free Sch. Dist., 231 AD3d 809, 810 [2d Dept 2024] [citation and internal quotation marks omitted]). Here, the Bay Crane defendants failed to establish BCSNY's prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross-claims insofar as asserted against it, as the Bay Crane defendants did not address the specific allegations in the plaintiff's bill of particulars that the crane was in a dangerous and/or defective condition (see Costen v Cohen, 124 AD3d 819, 819 [2d Dept 2015]; Garcin v Graham, 2020 NY Slip Op 34968[U], *4-5 [Sup Ct, Westchester County 2020]). Accordingly, this branch of the Bay Crane defendants' motion which is for summary judgment dismissing the complaint and all cross-claims insofar as asserted against BCSNY must be denied, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Since this branch of the Bay Crane defendants' motion is denied on the merits, and not on the ground that it is premature, the denial is without leave to renew upon the completion of discovery (cf. Knowles v 21-43 27th St., LLC, 224 AD3d 737, 737 [2d Dept 2024]; Malaspina v Westchester Med. Ctr. Health Care Corp., 23 AD3d 941, 943 [2d Dept 2024]).

The Bay Crane defendants also failed to establish the prima facie entitlement of BCSNY to judgment as a matter of law on its cross-claim against Philip Ross for contractual indemnification. The indemnification provision of the agreement requires Philip Ross to indemnify BCSNY for claims arising out of Philip Ross's operation of the crane. Here, the Bay Crane defendants failed to establish, prima facie, that the accident arose out of Philip Ross's operation of the crane. Accordingly, this branch of the Bay Crane defendants' motion must be denied, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Since this branch of the Bay Crane defendants' motion is denied on the merits, and not on the ground that it is premature, the denial is without leave to renew upon the completion of discovery (cf. Knowles v 21-43 27th St., LLC, 224 AD3d 737, 737 [2d Dept 2024]; Malaspina v Westchester Med. Ctr. Health Care Corp., 23 AD3d 941, 943 [2d Dept 2024]).

Based on the foregoing, it is hereby

ORDERED that the branch of the Bay Crane defendants' motion which is for summary judgment dismissing the complaint and all cross-claims insofar as asserted against the defendants BCS and BCSLI is DENIED, WITH LEAVE TO RENEW UPON THE COMPLETION OF DISCOVERY; and it is further,

ORDERED that the branch of the Bay Crane defendants' motion which is for summary judgment dismissing the complaint and all cross-claims insofar as asserted against the defendant BCSNY is DENIED; and it is further,

ORDERED that the branch of the Bay Crane defendants' motion which is for summary judgment on BCSNY's cross-claim against Philip Ross for contractual indemnification is DENIED.

Any request for relief not specifically granted herein is DENIED.

The parties' remaining contentions have been considered and do not warrant discussion.

This shall constitute the decision and order of this Court.