ADAM MARIAN GINTER, Respondent, v FLUSHING TERRACE, LLC, et al., Defendants/Third-Party Plaintiffs/Third Third-Party Plaintiffs-Appellants, and M & V CONCRETE CONTRACTING CORP., Defendant/Second Third-Party Plaintiff-Respondent, et al., Defendant. S & J INDUSTRIAL CORP., Third-Party Defendant-Respondent; TEDDY BOSKO BUILDERS, LLC, Second Third-Party Defendant/Third Third-Party Defendant-Respondent.
Supreme Court, Appellate Division, Second Department, New York
121 A.D.3d 840, 995 N.Y.S.2d 94
In an action to recover damages for personal injuries, the defendants/third-party plaintiffs/third third-party plaintiffs Flushing Terrace, LLC, and Criterion Development Group, LLC, appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Strauss, J.), dated March 22, 2012, as (a) denied those branches of their cross motion which were for summary judgment dismissing the
Ordered that the appeal from so much of the order as granted that branch of the cross motion of M & V Concrete Contracting Corp. which was for summary judgment dismissing the complaint insofar as asserted against it is dismissed, as the appellants are not aggrieved by that portion of the order (see
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the motion of S & J Industrial Corp. which were for summary judgment dismissing the causes of action asserted against it in the third-party complaint for contractual indemnification and alleging breach of contract, and substituting therefor a provision denying those branches of its motion, (2) by deleting the provision thereof granting those branches of the cross motion of M & V Concrete Contracting Corp. which were for summary judgment
Ordered that one bill of costs is awarded to Flushing Terrace, LLC, and Criterion Development Group, LLC, payable by the third-party defendant, S & J Industrial Corp., and the defendant/second third-party plaintiff, M & V Concrete Contracting Corp.
While working on a construction project, Janusz Ginter (hereinafter the decedent) allegedly sustained injuries when an object fell from one of the upper floors of a building under construction and struck him in the head, neck, and shoulder. At the time of the accident, he was walking in an alleyway on the ground level of the project to shut off a water connection, as directed by his on-site supervisor. The decedent commenced this action against, among others, the owner of the building, Flushing Terrace, LLC (hereinafter Flushing), the general contractor, Criterion Development Group, LLC (hereinafter Criterion), and the concrete subcontractor, M & V Concrete Contracting Corp. (hereinafter M & V) seeking to recover damages pursuant to, inter alia,
The Supreme Court properly denied those branches of the Flushing defendants’ cross motion which were for summary judgment dismissing, insofar as asserted against them, the cause of action alleging a violation of
However, the Supreme Court should have granted those branches of the Flushing defendants’ cross motion which were
Further, the Supreme Court erred in granting those branches of S & J‘s motion and M & V‘s cross motion which were for summary judgment dismissing the respective breach of contract causes of action asserted against them by the Flushing defendants, which were based on their alleged failure to procure insurance. S & J and M & V each failed to submit evidence demonstrating, prima facie, that they had complied with the insurance provision of the applicable subcontracts, which required them to procure insurance (see Simon v Granite Bldg. 2, LLC, 114 AD3d 749 [2014]; Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738 [2003]). However, the court correctly denied those branches of the Flushing defendants’ cross motion which were for summary judgment on the issue of liability on the breach of contract cause of action asserted against S & J and M & V. A party seeking summary judgment based on an alleged failure to procure insurance naming that party as an additional insured must demonstrate that a contract provision required that such insurance be procured and that the provision was not complied with (see Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738 [2003]; McGill v Polytechnic Univ., 235 AD2d 400 [1997]). The Flushing defendants failed to present evidence showing that either S & J or M & V failed to comply with the provision in their respective subcontracts requiring them to obtain insurance naming the Flushing defendants as additional insureds and, thus, failed to establish their entitlement to judgment as a matter of law in connection with this issue (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; cf. Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738 [2003]).
The Supreme Court erred in granting those branches of M &
Additionally, the Supreme Court erred in granting that branch of S & J‘s motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification asserted against it by the Flushing defendants. S & J‘s submissions revealed the existence of triable issues of fact as to whether S & J‘s negligence contributed to the accident, specifically whether, for purposes of determining liability for contractual indemnification, the decedent‘s failure to wear a hard hat can be imputed to S & J, his employer (see Mercado v Caithness Long Is. LLC, 104 AD3d 576, 577 [2013]).
We note that the decedent did not cross-appeal from those portions of the order that were adverse to him, and we decline the plaintiff‘s request to search the record and award him summary judgment on the issue of liability on the causes of action against the Flushing defendants alleging violations of
The Flushing defendants’ remaining contentions are without merit.
Skelos, J.P., Dillon, Roman and Maltese, JJ., concur.