| March Assoc. Constr., Inc. v CMC Masonry Constr. |
| 2017 NY Slip Op 05217 [151 AD3d 1050] |
| June 28, 2017 |
| Appellate Division, Second Department |
[*1]
| March Associates Construction, Inc., et al.,Respondents, v CMC Masonry Construction et al., Defendants, and Blue RidgeConstruction, Inc., et al., Appellants. |
Hurwitz & Fine, P.C., Buffalo, NY (Steven E. Peiper of counsel), for appellants.
Pillinger Miller Tarallo, LLP, Elmsford, NY (Leslie G. Abele of counsel), forrespondents.
In an action, inter alia, for a judgment declaring that the defendants Blue Ridge Construction,Inc., Peerless Insurance Company, Netherlands Insurance Company, and Excelsior InsuranceCompany are obligated to indemnify the plaintiffs in an underlying wrongful death action entitledGrana v March Assoc. Constr., pending in the Supreme Court, Orange County, underindex No. 3765/09, the defendants Blue Ridge Construction, Inc., Peerless Insurance Company,Netherlands Insurance Company, and Excelsior Insurance Company appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Orange County (Marx, J.), dated August7, 2013, as granted that branch of the plaintiffs' motion which was for summary judgment ontheir cause of action for a judgment declaring that the plaintiffs are entitled to common-lawindemnification against the defendant Blue Ridge Construction, Inc., and reimbursement in thesum of $300,000 from the defendant Excelsior Insurance Company pursuant to an insurancepolicy issued by Excelsior Insurance Company to Blue Ridge Construction, Inc., and denied theircross motion for summary judgment for a declaration in their favor on that cause of action.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the plaintiffs' motion which was for summary judgment on their cause of action for ajudgment declaring that they were entitled to common-law indemnification from the defendantBlue Ridge Construction, Inc., and reimbursement in the sum of $300,000 from the defendantExcelsior Insurance Company pursuant to an insurance policy issued by Excelsior InsuranceCompany to Blue Ridge Construction, Inc., and substituting therefor a provision denying thatbranch of their motion; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
Lowe's Home Improvement Center (hereinafter Lowe's) entered into a contract with MarchAssociates Construction, Inc. (hereinafter March; hereinafter together the respondents), to serveas the general contractor in the building of its new store in Chester. March entered into a contractwith CMC Masonry Construction (hereinafter CMC) to perform the masonry work on theproject. In the summer of 2008, CMC dissolved and Blue Ridge Construction, Inc. (hereinafterBlue Ridge), took over its projects.
On or about October 25, 2008, Pier Grana (hereinafter the decedent) was working at theconstruction site for the new store completing some punch list items from the masonrysubcontract when he fell approximately 18 to 20 feet from an extension ladder. He suffered [*2]traumatic brain injuries which led to his death.
The decedent's wife, on behalf of his estate and individually, commenced a wrongful deathaction against the respondents, alleging violations of Labor Law §§ 200, 240(1), and 241 (6), and common-law negligence. The respondents, in turn, commenced third-partyactions against CMC and Blue Ridge seeking contractual and common-law indemnification.
Pursuant to a summary judgment motion made by the respondents, all causes of actionagainst them in the underlying wrongful death action except the statutory violation claims underLabor Law § 240 (1) were dismissed. On or about March 8, 2010, the respondentscommenced the instant action against, among others, Blue Ridge, its workers' compensationcarrier, Netherlands Insurance Company (hereinafter Netherlands), its commercial generalliability carrier, Excelsior Insurance Company (hereinafter Excelsior), and the parent company ofNetherlands and Excelsior, Peerless Insurance Company (hereinafter Peerless; hereinaftercollectively the appellants) seeking, inter alia, a judgment declaring that the defendants wereobligated to indemnify them.
The wrongful death action was ultimately settled for $1,300,000. Netherlands paid$1,000,000 towards the settlement on behalf of its insured, Blue Ridge, and the respondents paid$300,000 towards the settlement. As a condition of the settlement, in order to avoid personalexposure of Blue Ridge, the respondents were required to discontinue all third-party claimsagainst Blue Ridge. It was further stipulated that the settlement of the underlying wrongful deathaction would have "no effect whatsoever on the declaratory judgment action that is pending by[the respondents] against the entities in that action, and that action continues as it currentlystands." The settlement agreement was placed on the record before the law clerk to Justice JohnK. McGuirk on March 7, 2011.
The respondents moved, inter alia, for summary judgment on their cause of action for ajudgment declaring that they are entitled to common-law indemnification from Blue Ridge andreimbursement of the $300,000 settlement proceeds paid by them in the underlying wrongfuldeath action from Excelsior, as Blue Ridge's general liability insurance carrier. The respondentsargued, inter alia, that they were entitled to common-law indemnification from Blue Ridge andthat, since Excelsior provided general liability coverage to Blue Ridge, they were entitled toreimbursement of the $300,000 from Excelsior. The appellants opposed the motion andcross-moved for summary judgment for a declaration in their favor on that cause of action,arguing that they had no obligation to defend, indemnify, or remit any payment to therespondents for any loss or expense incurred in the underlying wrongful death action. Theappellants pointed out that Excelsior's general liability insurance policy issued to Blue Ridgecontained an exclusion for any injury sustained by an employee of Blue Ridge and maintainedthat the decedent was employed by Blue Ridge at the time he was injured. The appellants alsocontended that any claims for indemnity by the respondents were barred by the doctrine of resjudicata because, in settling the wrongful death action, it was agreed that the indemnity claimsagainst Blue Ridge were being discontinued with prejudice. In the order appealed from, theSupreme Court, inter alia, granted that branch of the motion of the respondents which was forsummary judgment on their cause of action for a judgment declaring that they are entitled tocommon-law indemnification against Blue Ridge and reimbursement in the sum of $300,000from Excelsior, and denied the appellants' cross motion for summary judgment for a declarationin their favor on that cause of action.
The respondents failed to establish their prima facie entitlement to judgment as a matter oflaw on their claim for common-law indemnification against Blue Ridge since they failed toeliminate all triable issues of fact as to the decedent's employment status as of the time of hisaccident. In support of their motion, the respondents submitted the appellants' answer, verified bycounsel, in which they denied knowledge and information sufficient to form a belief as to thetruth of the allegation in the complaint as to whether the decedent was injured during the courseof his employment with Blue Ridge and asserted as their eighth affirmative defense, also uponinformation and belief, that the decedent was not acting as an employee of Blue Ridge at the timehe sustained injury. They also submitted the appellants' verified bill of particulars in which theappellants asserted, upon information and belief, that the decedent was acting as an independentcontractor at the time of the incident resulting in his death and was utilizing his own tools. While"[f]acts admitted by a party's pleadings constitute formal judicial admissions," and "[f]ormaljudicial admissions are conclusive of the facts admitted in the action in which they are made"(Zegarowicz v Ripatti, 77 [*3]AD3d 650, 653 [2010]), thelanguage of the appellants' answer and bill of particulars, verified by counsel and made "uponinformation and belief" did not constitute judicial admissions (see Hollinden v City of New York, 109AD3d 584, 585 [2013]; see alsoSound Communications, Inc. v Rack & Roll, Inc., 88 AD3d 523, 524 [2011];cf. Jack C. Hirsch, Inc. v Town of N. Hempstead, 177 AD2d 683 [1991]). Moreover, therespondents also submitted, in support of their motion, a transcript of the decedent's son'sdeposition in the underlying wrongful death action, during which the decedent's son testified thatthe decedent was a Blue Ridge employee, and the Peerless claims file which repeatedly identifiedthe decedent as Blue Ridge's employee and indicated that the decedent's estate received workers'compensation benefits under Blue Ridge's workers' compensation policy. Consequently, theSupreme Court should have denied that branch of the respondents' motion which was forsummary judgment on their cause of action for a judgment declaring that they are entitled tocommon-law indemnification against Blue Ridge and reimbursement in the sum of $300,000from Excelsior, as Blue Ridge's general liability insurance carrier.
However, the Supreme Court properly denied the appellants' cross motion for summaryjudgment for a declaration in their favor on that cause of action. On their cross motion, theappellants failed to establish their prima facie entitlement to judgment as a matter of law.Contrary to the appellants' contention, the March 7, 2011, stipulation of settlement of theunderlying wrongful death action did not bar the respondents' common-law indemnificationcause of action insofar as asserted against them. Based upon the plain language of the stipulationof settlement, the respondents agreed to discontinue with prejudice only the third-party claimsagainst Blue Ridge asserted in the underlying wrongful death action, and Blue Ridge agreed thatthe settlement of the underlying wrongful death action would have "no effect whatsoever" on theinstant declaratory judgment action, which would proceed against all parties (see generally Stein v Stein, 130 AD3d604 [2015]; Matter of Hanlon vHanlon, 62 AD3d 702 [2009]; Linsalato v Giuttari, 59 AD3d 682 [2009]). "Parties are free to charttheir own procedural course by stipulation" (Palmieri v Town of Babylon, 87 AD3d 625, 626 [2011]). "[I]nfashioning the basis upon which a particular controversy will be resolved, [the parties] 'maystipulate away statutory, and even constitutional rights' " (1420 Concourse Corp. vCruz, 135 AD2d 371, 372 [1987], quoting Mitchell v New York Hosp., 61 NY2d208, 214 [1984]; see Goldberger vEisner, 90 AD3d 835 [2011]). Therefore, the appellants' standing and res judicatadefenses may not be used to avoid the consequences of the stipulation (see generally Watts vSwiss Bank Corp., 27 NY2d 270, 277 [1970]; Matter of State of New York v Seaport Manor A.C.F., 19 AD3d609 [2005]).
Moreover, on their cross motion, the appellants also failed to eliminate all triable issues offact as to the decedent's employment status as of the time of his accident. The appellants arguedthat there was no coverage under the commercial general liability policy issued to Blue Ridgesince the respondents' common-law indemnity claim arose from an injury sustained by its insuredBlue Ridge's employee, the decedent. However, in support of their cross motion, the appellantssubmitted a copy of Blue Ridge's verified third-party answer to the second third-party complaintin the underlying wrongful death action in which Blue Ridge denied that the decedent was itsemployee. "An admission in a pleading in one action is admissible against the pleader in anothersuit, provided that it can be shown that the facts were alleged with the pleader's knowledge orunder his direction" (Jack C. Hirsch, Inc. v Town of N. Hempstead, 177 AD2d at684).
Further, the appellants failed to eliminate all triable issues of fact as to whether Blue Ridgewas negligent. A violation of a safety regulation may be considered as some evidence ofnegligence (see Bauer v Female Academy of Sacred Heart, 97 NY2d 445, 453 [2002]; Cruz v Long Is. R.R. Co., 22 AD3d451 [2005]). Here, in support of their motion, the respondents submitted the appellants'claims files, which demonstrated that violations were issued against Blue Ridge under OSHA bythe Department of Labor in connection with the decedent's accident, which serves as evidence ofBlue Ridge's negligence, and that Blue Ridge sent the decedent to the work site with the ladderand did not provide another employee to assist the decedent with the work. In support of its crossmotion, the appellants did not present any evidence to contradict this evidence.
The appellants' remaining contentions are either improperly raised for the first time on appealor without merit. Hall, J.P., Austin, Sgroi and LaSalle, JJ., concur.