ZAYED v. NEW YORK CITY DEPARTMENT OF DESIGN AND CONSTRUCTION (2023)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered February 9, 2022, which denied Iron Bridge Constructors, Inc.’s motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

Iron Bridge failed to sustain its prima facie burden of demonstrating entitlement to judgment as a matter of law.  Plaintiff testified that he was hit by a gate that was improperly secured and blowing in the wind as he was leaving the trailer occupied by Iron Bridge on the work site where he was employed by a subcontractor.  While the identity of the person who unlocked the gate and failed to secure it properly on the date of the accident was unknown, there was testimony from third-party plaintiff Schiavone Construction Co., LLC's project manager and safety site manager and Iron Bridge's project manager indicating that an Iron Bridge foreman that met with plaintiff that day had keys to the gate and sometimes opened it in the morning.  Contrary to Iron Bridge's assertion, it was Iron Bridge's burden to show that the accident did not arise out of its work in order to obtain summary judgment on its contractual indemnification claim (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]), which it failed to do.

Iron Bridge also failed to demonstrate that there was no issue of fact concerning its negligence and that Schiavone was guilty of some negligence that contributed to the cause of the accident in order to obtain summary judgment dismissing Schiavone's common-law indemnification claim (see Lexington Ins. Co. v. Kiska Dev. Group LLC, 182 A.D.3d 462, 464, 122 N.Y.S.3d 590 [1st Dept. 2020]).  Moreover, since there remain questions of fact concerning Iron Bridge's negligence, dismissal of Schiavone's contribution claim and cause of action for failure to procure insurance were also unwarranted.

We have considered Iron Bridge's remaining arguments and find them unavailing.