Statement Pursuant to CPLR § 2219

This motion brought by Third-Party Defendant Ferrara Bros., LLC ("Ferrara"), for an Order pursuant to CPLR § 3212 granting summary judgment dismissing all causes of action asserted against it in the Third-Party Complaints of Third-Party Plaintiff Posillico, Inc. ("Posillico"), was submitted for determination on April 17, 2025. Oral argument was heard on June 10, 2025.

The Court considered the following papers in connection with this motion:

1. Notice of Motion dated March 16, 2025, Affirmation of George S. Kolbe, Esq., Statement of Undisputed Material Facts, and Exhibits;

2. Memorandum of Law in Support of Motion for Summary Judgment by Ferrara;

3. Memorandum of Law in Opposition submitted by Posillico, Inc.;

4. Affirmation of Counsel in Opposition and attached Exhibits.

This action arises from a construction-site accident that occurred on November 2, 2020, at the Con Edison substation located at 311 Virginia Avenue, Staten Island, New York. On that date, Plaintiff David Russell, an employee of Ferrara, arrived at the site to deliver concrete for use in pouring moats around substation transformers. The general contractor for the project was Posillico.

At approximately 9:30 a.m., during the first pour of the day, Plaintiff was standing approximately 10 feet from the hopper of the Posillico concrete pump, operating his truck's chute via remote control at the instruction of Posillico's pump operator. The pump operator had [*2]instructed Plaintiff to pause the pour. While awaiting further instruction, Plaintiff was struck in the face by an eruption of concrete slurry from the pump hose.

Multiple witnesses, including Con Edison Chief Construction Inspector Maksim Gorodnitskiy, Posillico Supervisor John Tufano, and Plaintiff himself, testified that they observed no visible debris coming from Ferrara's truck during the initial pour. A grate atop the pump hopper was in place to prevent large debris from entering the hopper.

Subsequent to the accident, Posillico documented three items of debris allegedly recovered at the site: a metal can, a piece of rebar, and a plastic bottle. The precise location where this debris was found is disputed and unclear.

Ferrara moved for summary judgment, asserting that there is no evidence its conduct caused the accident and that, in any event, Workers' Compensation Law § 11 bars common-law indemnification and contribution. It further contends that no contractual indemnity or insurance procurement obligation applies, asserting that no enforceable contract exists.

In opposition, Posillico concedes that the First and Second Causes of Action for common-law indemnity and contribution should be dismissed. However, it argues that the Third and Fourth Causes of Action (contractual indemnification and breach of insurance procurement obligations) must proceed, as a signed contract containing such clauses is in the record (NY St Cts Filing [NYSCEF] Doc No. 117). Posillico also contends that triable issues of fact exist as to causation, citing debris evidence, witness testimony concerning the pump's unusual operation, and statements by Plaintiff regarding debris in slurry.

It is well settled that summary judgment is a drastic remedy that should be granted only when the movant establishes, as a matter of law, the absence of any genuine issue of material fact. (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once the movant meets this burden, the opposing party must submit evidence in admissible form sufficient to raise a triable issue of fact. Conclusory assertions, conjecture, or speculation are insufficient to defeat summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Ferrara moves to dismiss the First and Second Causes of Action pursuant to Workers' Compensation Law § 11, which bars claims for indemnification or contribution against an employer absent proof of a "grave injury" or a written contract expressly agreeing to indemnify. Here, Plaintiff's injuries—while significant—do not meet the statutory definition of "grave injury." Posillico concedes this point.

Accordingly, summary judgment is granted dismissing the First and Second Causes of Action.

Ferrara argues that no enforceable contract between it and Posillico exists, relying in part on discovery responses wherein Posillico stated that it possessed no such agreement. However, in opposition, Posillico submits a document (NY St Cts Filing [NYSCEF] Doc No. 117), which appears facially executed by Ferrara and contains both an indemnification provision and an insurance procurement clause.

The indemnification clause broadly requires Ferrara to indemnify Posillico "to the fullest extent permitted by law" for claims arising from the supply, transportation, or delivery of defective materials, or arising from Ferrara's negligent acts or omissions.

Although Ferrara argues that such a clause is not triggered under the facts presented here, this is a disputed question. The record contains competing evidence as to whether debris entered the pump system via the concrete supplied by Ferrara.

Posillico points to the following items raising triable issues of fact:

• Photographs of debris allegedly recovered post-incident (metal can, rebar, plastic bottle);

• Testimony of John Tufano that debris was "transported from the truck to the site";

• Plaintiff's text messages referencing debris in slurry;

• Maksim Gorodnitskiy's testimony describing unusual pressure behavior of the pump consistent with a blockage.

While Ferrara emphasizes that no witness affirmatively observed debris entering the hopper, and that the grate was in place, these facts go to the weight of the evidence and credibility—matters not resolvable on summary judgment.

Similarly, the insurance procurement clause is contained within the same Supplier Agreement. Whether Ferrara complied with its obligations under this clause also presents triable issues of fact in light of the record and the ambiguity regarding which entities were named additional insureds and whether coverage was triggered.

Finally, the Court rejects Ferrara's argument that an expert affidavit was required from Posillico to raise a triable issue. The record, including witness testimony and physical evidence, is sufficient at this stage to raise material questions of fact on causation and contractual obligations.

Accordingly, it is hereby:

ORDERED that Ferrara's motion for summary judgment is GRANTED IN PART and DENIED IN PART; and it is further

ORDERED that the First Cause of Action (Common-Law Indemnification) and the Second Cause of Action (Contribution) asserted against Ferrara by Posillico are hereby DISMISSED; and it is further

ORDERED that the motion is otherwise DENIED as to the Third Cause of Action (Contractual Indemnification) and Fourth Cause of Action (Breach of Contract to Procure Insurance), as triable issues of fact exist precluding summary judgment on those claims.

This constitutes the Decision and Order of the Court.