Cotroneo v. Van Wagner Sign Erectors, LLC

Cotroneo v Van Wagner Sign Erectors, LLC 2024 NY Slip Op 30811(U) March 13, 2024 Supreme Court, New York County Docket Number: Index No. 162038/2015 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

INDEX NO. 162038/2015 NYSCEF DOC. NO. 492 RECEIVED NYSCEF: 03/13/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO PART 33M Justke _____________ ._ .. -. .. Te---------------------------------------------•••• o.n -----X 162038/2015 INDEX NO. COSMO COTRONEO.

MOTION DATE 05/04/2023 Plaintiff, MOTION SEQ. NO. _ __.:0:.=0-=.9_ _ - V - VAN WAGNER SIGN ERECTORS. LLC. NIK/A OUTFRONT MEDIA SIGN ERECTORS. LLC., VAN WAGNER ELECTRICAL AND MAINTENANCE, LLC. N/KJA OUTFRONT MEDIA ELECTRICAL AND MAINTENANCE.

LLC., VAN WAGNER COMMUNICATIONS, LLC. N/K/A DECISION + ORDER ON OUTFRONT MEDIA Vi/V COMMUNICATIONS, L LC., MOTION VORNADO REAL TY TRUST. VORNADO OFFICE.

INC .. VORNADO SlGN. LLC,ONE PENN PLAZA LLC .• Defendant.

CROSS MANAGEMENT CORP. To ird-Pa rty Index No. 595393/2016 Plaintiff, -against- NEAD ELECTRlC OF NEW JERSEY. INC. Defendant. -------·- -~· - - - OT- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · ~ - - - -~-.---------------X

VAN WAGNER SIGN ERECTORS, LLC N/KJA OUTFRONT Second Third-Party MEDIA SIGN ERECTORS, LlC. Index No. 59550412019 Plaintiff, -against- NEAD ELECTRlC OF NEW JERSEY, tNC.

Defendant. ---------------------------· ·-· •• ·~~-~------------------------------ --- -~- •• X VORNADO REALTY TRUST, VORNADO OFFICE, INC., Third Third-Party VORNADO SIGN, LLC, ONE PENN PLAZA LLC Index No. 596052/2020 Plaintiff, -against-

162038-/2015 COTRONEO, COSIYIO v:s. OUTFRONT MEDIA SIGN ERECTORS Page 1 of g Motion No. 009

[* 1] 1 of 9 INDEX NO. 162038/2015 NYSCEF DOC. NO. 492 RECEIVED NYSCEF: 03/13/2024

NEAD ELECTRIC, INC, NEAD ELECTRIC OF NEW JERSEY, INC. Defendant. -------------------------------~·~-----------------------------.--••r.- X

The followmg e-filed documents, listed by NYSCEF document number {Motion 009) 433, 434, 435, 436, 437,438,439,440,441,442,443,444. 445,446,447,448,449,450.451, 452,453,454,455.456,457.

458,459,460,461,462,463,464,465,466,467,468,469,470,471.472, 473,474,475,476,477,478.

479,480.481. 482,483,484 485,486,487,488.489, 490 were read on this motion to/for JUDGMENT-SUMMARY:..__ __ Upon 1hc foregoing documents, ·11tird-Party Defendants/Second Third-Party Defendants/Third Third-Party Oefcndants Nead Electric, rnc. and Nead Electric, Inc. i/s/h/a Nead Electric of K e\v J~rsey, Jnc.' s ( co!lccti vely "l\ cad") motion for an Order granting l\ cad summary judgmtnt dismissing the Third-Party (~YSCEf Doc. 444), Second Third-Puny (NYSCIT Doc. 445) Third Third-Party (NYSCFF Due. 446) claims, cross-daims. and counter- d aim~ asserted against it is denied.

I. Backgrou ntl Plaintiff Cosmo Cotroneo ("'Plaintiff") cmmnenced this action fol' alleged injury sustained on or about February 14, 2013 1 \Vhile working as. an electrician for Nead at a construction project located al 4.10 Seventh Avenue in Manhattan {the ·•Premises" or I.he "Site'') ov,,ned an<l managed by Dcfcndants!Third Third-Party Plaintiffs Vomudo Realty Trust and One Penn Plaza, LLC (NYSCEF Ooc. 466 at ii 4).

Ocfcndant/Sec:onJ Third•Party Plaintiff Outfront Media Sign Erectors~ LLC f/kla Van Wagm:r Sign Erectors, I.LC (·Outfront"_) was retained hy Vornado to perfom1 work to convert a

: The nriginal Ctunplaint and Dill of Particu!ars st:rvcd by Pbcntiff aHcgcd that the date of the accident was February 17, 20 l 3. Ddt:ndants disputed this date, noting that it was .i Siinclay (NYSCEF lJ-oc. 397, ,- J 6), Ry OrJer Jatcd January :?3, 2019, tilis Court directed PlaintitTto file an Amended Summons and Complaint with the wrrcc{ed date n r Lhe ace id(:m ( NYSC FF Doc. ! 77). The date was determ incd to he February 14, 20 D based on timc sheet records [Jf Plaimiff's employ~r (>JYSCFF Doc 3 77).

1620381~-015 COTRONE;:0, COSMO 11s. OUTFRONT MEDIA $IGI\I ERECTORS Page 2 of9 Motion No, 009

2 of 9 [* 2] INDEX NO. 162038/2015 NYSCEF DOC. NO. 492 RECEIVED NYSCEF: 03/13/2024 vinyJ, "static" rooftop sign to a digital advertising sign (N YSCLF Doc. 466 at 1 4). Outfro11t suhsequenlly retained Nead to pcrfonn electrical power in~tul lalion for the sign (Id.). Plaintiff and his workers were ta~kcd with ''Joading tools and equipment into the 'foreman's helper' gang box, which v.·ould then serve as a 'boat' to be hoisted hy a crane ... lo the roof' (NYSCEF Doc. 46 at ii 7).

Plaintiff alleges that on Fchruary 17, 20 t 3, he sustained severe and permanent injurtcs due to a <ldedive and (fongerous gang box (NYSCEF Doc. 440 at,.- 71). Spcc:iticully, Plaintiff alJeges th at on the sidewalk at or near the Premises, he was struck by the lid of a "foreman) s hcl per'° gang box whtk in the l:ourse or his employment with Nead (~ YSC I~F Doc. 466 at .- ! 0).

Plaintiff commenced the underlying action on November 20, 2015, by filing a Summons and Complaint asserting rnrnmon law negligence, and violations or I ,abor I .aw Secl1ons 200, 240, and 241 ( 6) agaJnst Defendants Vornado Realty Trust (Vornado"). One Penn Plaza, LLC, Outfront, Tom Recknwald Construction. Inc, North Shore J\con Sign Co., Tne., and Cross Jvfonagcmcnt Corp ('·Defendants") (>J"YSCFF Doc. 440). 2 Defendant/Third-Party Plaintiff Cross Management Corp. filed a Third-Party Sllmmons und Complaint against Nead dated VJay 19, 2016 (NYSCEF Doc. 444).· 1 Thereafter, Outfront Wed a Second Third-Party Summons and Complaint agains.t Nead dated June 12, 2019, us5erting crmses of action for common law and contrn~tual im.lemnificHtion, and contribution and breach of contract (N"YSCEF Doc. 445). Subsequently, Dcfcndants./Third Third-Party Plaintiffs Vornado Realty Trust, Vornado Office, inc., Vornado Sign. I.LC anJ One Penn Plaza, I.LC (collectively "Third

INDEX NO. 162038/20l5 NYSCEF DOC. NO. 492 RECEIVED NYSCEF: 03/13/2024

Third-Party Plaintiffs~·) filed a Third-Party Summons and V~rified Third~Party Complaint (NYSCEF Doc. 446) usserting causes of action for contractual indemnity, common la\v indemnity, comribu.lion and breach of wntract against Nead.

On May 4, 2023) Nead brought the instant motion for fill ()rJcr gn.mting Nead summary judgment dismissing the Third-Purly. Second Third-Party and Third lhird-Parly claims. cross- claims and counter claims asserted against it {NYSCEP Doc. 433). Outfrcmt filed an Ailim1alion in Opposition w NcaJ's motion dated Ju!y 24, 2023 (); YSCEF Doc. 470). Plaintjff suhminc-J an Affirmation in Opposition to Nead's motion dated July 28, 2023 (NYSCEF Orn:. 475). Third Third-Party Plainti lls submitted an Affirmation in Opposition 10 Nea<l" ~ motion on Augu:'il 1 I, 2023 (~YSCEf Doc. 488). 4 II. l)jsrns~itm A. Standard Summary judgment is a drastic remedy. to be granted only where the movtng party has tendered sufficient cvidem::e to demonstrate the absence of any material issues of fact.') ( Vega v Resrani ComJ. Corp., 18 ~Y3d 499, 503 [2012]). The moving party's ..burden is a heavy one and on u motion for summary judgment, facts must be vi~,ved in the light most favorable to the non- moving party." (],,cob.sen v New fork City Health and 1lnsp.v. Corp., 22 NY3d 824, 833 12014D- Once this showing is made, the burden shifts to the pm1y opposing the mntion to produce cvidcntiary proof, in admissible form, suflicient to establish the exi.'jtence of material issues of fact which require a trial. (See e.g . :Lucker man v City of New York. 49 ~Y~J 557, 562 [ I 980]; Pembenon r New York City Tr. Aurh, 304 AD2u 140, 342 [1st Dept 20031). Mere conclusions of

INDEX NO. 162038/2015 NYSCEF DOC. NO. 492 RECEIVED NYSCEF: 03/13/2024 law or fact arc insufficient to defeal a motion for summary judgment (see Bunco Popular ;Vorth Am. v Vicrory Taxi }vfgt., Inc., 1 NY3J 38 l 12004.1), B. Nc_ad's M.Qt[on for Summm}' Judgment It is. v.-ell t"stahlishcd that Workers· Compensution f.a.\v ("\'1/CL") ~ 11 i.prohibits lhir<l- party indemnification or contribution daims against employers, exci::pl \vhcre the employee sustained a 'grave injury.' or the clajm is ~based upon a provision in a written contract enlercd into prior to the accident or O'.:currcnce by which the employer had expressly agreed to contribution to or indemnification of the daimant or person as::;,erting the cause of action" (Rodriguez v .N&.\' B1dg.

Contrs., inc .• 5 KY3d 427. 430 [2005]).

1. No Written Contract Containing a Valid Contractual Indemnity Provision Exists :-.Jcad appeals to \VCL § 11 in support of its argument that, as the Plaintiff's cmploycl', aH daims. again-;t it must be dismissed because 110 valid and cnforceabk contractual indemnity pmvision exists (NYSCEF Doc. 434 at p. 14). At the outset. Outfront argues in opposition that Nead has failed to meet its prima facie burden for summary judgment by failing to proffer admi'lsiblc evidc-ncc to suppon ib daim that no contractual agrei;:mcnt including an indemn1ty provision exists (l\YSCEF Doc. 470 at p. 3). Specific(11ly, Outfrnnt contends that Nead has failed lo demons1ratc. through admissible evidence, that Nead· s Proposal for \l,/mk (the ''Proposal'') ().l"YSCEF Doc. 457) is a full and complete copy or the proposal between the parties (NYSCLJ<' Due. 470 at ~i 11).

The Court of Appeul s has held that "l\v]hcther the parties did in fact have such an agreement involves a tv,m-1Mrt inquiry. First, we consider \vhether the parties entered into a \vri Lten contract containing an indemnl ty provision apphcable to the site or job where the injury giving

16:203812015 COTRONEO, COSMO vs. OUTf'RONT MEDIA SIGN ERECTORS Page 5 of 9 Motion No. 009

Here, the deposition testimony of Andrew II.o]tzer (NYSCEF Doc. 455), the Vice President of Design and T cchno logy for Outfront, estahlished that Mr. Hull/er acknowledged that the Proposal was sent to him in the regular cour~ of business and that when he received the Proposal [n the regular course of business, he reviewed it with Eli Zamek, of Vornado, and was told to proceed (NYSCEF Dm:. 455, pp. 62: l48; l 59}(/Jank ofA.merica, /1/ar. Ass 'n v Brannon~ 156 A.D3d l [ l st Dt:pl 201 71 rrecords admis:-1ihlc rl if the r~cipient can estabhsh .. ' that the records provided by the maker \verc incorporated into the recipient's O\Vn r~cords or routinely relied upon by 1hc re~i pi en t in its business" J.

Contrary to the assertions of Outfronl, Mr. Holtzer' s te~tirnony dcmonsm1tes personal knowledge of the proposal which is the ba<:,is of the contractual relationship hetwecn movam and Outfrom and v.--hich, significantly, contained no ind~mnity provision. Accordingly, N~ud has established prima .facte thut there \Vas no v.Titten contract enten~<l into prior to the accident by which it had expressly agreed to contribution or indemnification. Nor have third-party plaintiffs ;(;ubmittcd any evjdcncc of a written imk:mnity agreement be11,vccn the partje~.

As there is no dispute that Nead was not retained pursuant to any formal \vritten contract, all third-pany indemnification or contribution claims aguinsl Nead are prohihitcd by WCL § 1 l, except \Vhcrc the employee sustained a i.grnve injury." u. Mate1ial Questions of Fact Remain Regarding Whether P!ainli ff Sustui ned a Gm\\; lnjurv Pursuant rn WCL § l l It is well established that, with respect to WCL § 1 I, it is "the burden of the party seeking summ...1.ry judgment to show, by competenL adrnjssiblc evidence, that the plaintiffs. inj urics \Vere not •grave'" (Altonen ii Toyota idotor Credit Corp., 32 AD.1<l 342. 343 [l st Dept 2006t).

Herc, Outfron l, Plaintiff and Third Thi rd~ Party P1ai n tiffs arg uc that N ea<l failed to dem onst ra tc its entitlement Lo judgment as a matter of law as there is a triable issue of fact \vhether Plaintiffs claimed traumatic brain injury constituks a grave injury under WCL § 11. WCL § 11 states that grave injury shall meun only one or more or the following:: ID lcath, permanenl and total loss of use or amputation or an ann. leg~ hand or foot, loss of muhiple fingers. loss of muhiple toes. paraplegia or quad rip kgia, total and perrnant:!nt blindness, total and pem1am::nt deafness, Joss of nose. loss of ear, permanent and severe facial Ji:'iCigurcmcnt, loss of an index finger or an acquired injury to the brain nlused by a.n external ph)'sica) force resuJting in permanent totaJ disahiJity fcmphasi~ a<ldcd_l.

The Court of Appeals ha:,; held that 'Toe Le~l \VC adopt for permanent total disability under section 11 is one or unemployability in any c.:apucity (Rubeis v Aqua Club Inc., 3 NY:ld 408. 417 [2004]) [emphasis in odgimd].

In suppon of its position that Plaintiff did not suffer a grave injury a-. a result of the Accident, !\'cad submial'.<l Plaintiff's workern' compensation record~ which sho,v Lhai Plaintiffs first post-acl'.idcnt MRI of the bruin, taken on June 27, 2014 (over a year after the accident), wa~ normal (NYSCEF Doc. 463 ). A subsequent T\-HU of Plainti rr s hrain taken on August 21, 2015 stales that the results of Plainti rr s MRI were -~normal'' (NYSCEF Doc. 464). f urthcr, Keurological exams perfomJed hy Dr. Amit Klrnneja on November 24, 2016, and Jamiary 27, 2016 showed Plaintiffs mental status intact (NYSCEF Doc. 463 al p, I 2t his motor syst~ms normal (Id. al p. 13), and ambulal1on with a normal gait (Id). Dr. Khaneja state:'i in his report that it is his professional opinion that "Mr. Cotroneo is capable of working with restrictions to be placed on no lifting over l 5 pounds"' (Id. at p. 14). Additionally. I\ cad submille<l the Supplemental Report of ncmopsychologist David M. Erlanger, Ph.D., 1\BPP. which stated that "there was no evidence that the reported [February 17, 2023] incident had affected Mr. Cotroneo's abihty to perforn1 work

15203812015 COTRONEO, COSMO vs, OUTFRONT ME.DIA SIGN ERECTORS P.ige 7 of'!3 Motion No. 009

[* 7] 7 of 9 INDEX NO. 162038/2015 NYSCEF DOC. NO. 492 RECEIVED NYSCEF: 03/13/2024 tasks on a full-time basis" (NYSCEF Doc. 459 at p. 20). l\cad also provided u report of Rehabititation Specialist. Jost:ph Pessalano, who conducted a vocational assessment of Plaintiff on April 20, 2021, and identified essential job functions for several positions appropriate for Plaintiff in the field of electronic:-; engineering with the average salary ranging from $37,860 to $78,730 (NYSCEF Doc. 460).

However, the report of Dr. Richard S'.:huster ()iYSCEF Doc. 41 St a vocationaJ psychologist who evaluated Plaintiff on July 9, 20 l 9 com:luded that "f a]t this point continued chronic unemployment can be expected. The combination of IPlaintiffs] ph:ysicaJ limitations, elderly work status. psychological ramifications. ncurohchavimal/"executivc·• dysfunction, etc. combine to foster such a sjgnificant imp~Jiment that even functioning in daily life remains negatively impacted" (1\YSCFF Doc. 478 at p. 33-34). Furthn, the Affidavit of neurologist Ur.

Allen Pcrd, who has treated Plaintiff since June 24, 2014, slates that Plaintiff is "sigriificantly di sub led at present and cannot return to work in any capacity, particular]y because of his traumatic brain injury, anxiety, depression and memory lo.:;;(;," and that Plaintiffs symptoms ··were cau'ied by the work-related accident and injuries he suffered" (NYSCFF Doc. 478 at pp. 33-34).

In light of the conflicting testimony in lhe record, the Court finds th.at questions of material fact remain regarding whether Plaintiff suffered a grave injury as defined hy WCI. §11. As such, ~ead's motion for summary judgment is denied.

Accordingly, it is hereby, ORDERED thal Third-Party Dcfcndants/Scnm<l Third-Pany Defendants/ll1ird Third- Party Defendants l\cad Electric, Inc. and Nead Electric, Inc. 's motion for summary _judgment is denied; and it is further

1620381201 ~ COTRONEO, COSMO\/~. OUTFRQNT M;EDIA SIGN ERECTORS Page a of 9 Motlon No. M9

[* 8] 8 of 9 INDEX NO. 162038/2015 NYSCEF DOC. NO. 492 RECEIVED NYSCEF: 03/13/2024

OR DEF · D that lJcfcndantfThfrd-Party Plaintiff Cro Managernenl Corp. Third-Party ,omplaint is dismissed as moot; and it is further ORD ,RED that on or before Apri l 16, 2024, the remaining parti1..;s are directed to submit a proposed 'taru Conference Order to the Court ia e-mail to , FC-Part33-CJcrktaln:ycourt. .gov.

If the parties are nab le to agrt":e to a proposed tams Confer nee Order, the parties are dire tcd to appear for an in-person starus o nl -rence v,rith lhe Court in Room 442; 60 Cenlre Street, on April 17. 2024 at 9:30 a.m.: and it is further ORDERED tha t within ten (10) day. of entry, coun el for Movant sha1l serve a copy of this Decision and Order with notice of enlry upon all parties to thi. at:tion; and it is further ORDERED thaL the C lerk of the Court is directed lo enter judgment accordingly.

Th is con ·ti tutes the Decision and Order of the Court.

311312024 DATE HON . ARY V. ROSADO, J .S.C.

~ CHECK ONE: CASE DISPOS 0 NON-Fl NAL 0IS POSITION GRANTED 0 CE IED GRAN TED IN PART □ 0 11-IER APPLICATION; SETTLE 0:R0 R SUBMIT ORO R CH ECK IF APPROPR:IA Jle:: INCLUDES TR.ANS Fl:;R/Rl:ASSI GN FI0UCIARV APPOINTMENT □ REFEIRE:NCE

1s:zo:,a12015 COTRONEO, COSMO vs. OUTFRONT MIEDIA SIGN ER.ECTOR$ P,19 e 9 of 9 Motion N10. 009

[* 9] 9 of 9