| Flynn v 835 6th Ave. Master L.P. |
| 2013 NY Slip Op 04889 [107 AD3d 614] |
| June 27, 2013 |
| Appellate Division, First Department |
| Douglas Flynn, Appellant-Respondent, v 835 6thAvenue Master L.P. et al., Respondents-Appellants. 835 6th Avenue Master L.P. et al.,Third-Party Plaintiffs-Respondents-Appellants, v Century-Maxim Construction Corp. etal., Third-Party Defendants-Respondents. Century-Maxim Construction Corp., SecondThird-Party Plaintiff-Respondent, v Rebar Lathing Corp., Second Third-PartyDefendant-Respondent/Third Third-Party Defendant-Respondent. 835 6th AvenueMaster L.P. et al., Third Third-Party Plaintiffs-Respondents-Appellants. |
—[*1] Marshall Dennehey Warner Coleman & Goggin, P.C., New York (John T. Cofresi ofcounsel), for respondents-appellants. [*2]Milber, Makris, Plousadis & Seiden, LLP,Woodbury (Lorin A. Donnelly of counsel), for Century-Maxim Construction Corp.,respondent. Camacho Mauro Mulholland, LLP, New York (Peter J. LoPalo of counsel), forSpieler & Ricca Electrical Co., Inc., respondent. Newman Myers Kreines Gross Harris, P.C., New York (Olivia M. Gross andAdrienne Yaron of counsel), for Rebar Lathing Corp., respondent.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered July 3, 2012,which, to the extent appealed from as limited by the briefs, granted plaintiff's crossmotion for leave to amend his bill of particulars, granted defendants', third-partydefendants', and second and third third-party defendants' motions for summary judgmentdismissing plaintiff's Labor Law § 241 (6) claim, and denied defendants' motionfor summary judgment on their contractual indemnification claims against third-partydefendants Century-Maxim Construction Corp. and Spieler & Ricca Electrical Co., Inc.(Spieler), unanimously modified, on the law, to grant defendants' motion for summaryjudgment on their contractual indemnification claims against Century-Maxim andSpieler, and otherwise affirmed, without costs.
The court properly permitted plaintiff to amend the bill of particulars, since noprejudice accrued from plaintiff's late invocation of violations of 12 NYCRR 23-1.7 (e)(2) and 23-2.1 (a) (1), and the claims entailed no new factual allegations or theories ofliability (see Burton v CWEquities, LLC, 97 AD3d 462, 463 [1st Dept 2012]; Latchuk v Port Auth. of N.Y. &N.J., 71 AD3d 560, 560-561 [1st Dept 2010]).
The court also properly granted summary judgment dismissing plaintiff's section 241(6) claim, amendment notwithstanding. Plaintiff's testimony showed that the rebar thatallegedly caused him to fall was in the process of being installed and thus integral to theongoing work, defeating his claim of a violation of 12 NYCRR 23-1.7 (e) (2) (see Burkoski v Structure Tone,Inc., 40 AD3d 378, 383 [1st Dept 2007]). Moreover, given plaintiff's vague andinconsistent testimony concerning the condition of the stacked rebar, his claim that theaccident was caused by the rebar being stored in an unstable manner in violation of 12NYCRR 23-2.1 (a) (1) is based on mere speculation (compare Castillo v 3440 LLC, 46 AD3d 382, 383 [1stDept 2007]).
However, pursuant to their contracts with Century-Maxim and Spieler, defendantsare entitled to the costs and attorneys' fees incurred by them in defense of this action. Theclauses at issue provide for indemnification, including costs and fees arising from "anyact or omission," and do not require proof of negligence to be enforced (Matter ofNew York City Asbestos Litig., [*3]41 AD3d 299,302 [1st Dept 2007]). Moreover, the record does not contain any evidence thatdefendants were negligent (seeAlarcon v UCAN White Plains Hous. Dev. Fund Corp., 100 AD3d 431, 432[1st Dept 2012]). Concur—Gonzalez, P.J., Renwick, DeGrasse, Manzanet-Danielsand Feinman, JJ. [Prior Case History: 2012 NY Slip Op 31739(U).]