ASTRAKAN v. Northeast and Metro Marine Inc., Defendant. (2020)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about April 16, 2019, which, to the extent appealed from as limited by the briefs, denied defendant B & H Engineering P.C.'s (B & H) motion for summary judgment dismissing the common-law negligence and Labor Law §§ 200, 240(1), and 241(6) claims as against it, and denied defendants City of New York and New York City Department of Transportation's (City) cross claims against it, and denied the City's motion for summary judgment dismissing the complaint and all cross claims against it and on its common-law and contractual indemnification cross claims against B & H, unanimously modified, on the law, to grant B & H's motion except as to the City's cross claim against it for contractual indemnification to the extent not barred by the anti-subrogation rule, and to grant the City's motion as to the complaint and cross claims against it, and otherwise affirmed, without costs.

Supreme Court improvidently exercised its discretion in denying the City's motion for summary judgment as untimely because it was made more than 60 days after the note of issue was filed, in violation of the court's part rules.  In fact, at the time of the filing of the note of issue, and for more than 60 days thereafter, the case was assigned to a different part (see Gomez v. Penmark Realty Corp., 50 A.D.3d 607, 857 N.Y.S.2d 94 [1st Dept. 2008] ), and the City showed that it had complied with the rules of the part to which the case had originally been assigned.

Plaintiff, a bridge inspector, was injured while performing an inspection of a City bridge, pursuant to a contract providing for periodic bridge inspections to determine any necessary future repairs.  Upon consideration of the contract and the work performed by plaintiff, it is clear that he was not engaged in an activity within the ambit of Labor Law § 240(1) or 241(6) at the time of his accident (see Martinez v. City of New York, 93 N.Y.2d 322, 326, 690 N.Y.S.2d 524, 712 N.E.2d 689 [1999];  Bosse v. City of Hornell, 197 A.D.2d 893, 894, 602 N.Y.S.2d 294 [4th Dept. 1993];  Shpizel v. Reo Realty & Constr. Co., 288 A.D.2d 291, 733 N.Y.S.2d 196 [2d Dept. 2001];  Russ v. State of New York, 267 A.D.2d 833, 834, 699 N.Y.S.2d 822 [3d Dept. 1999] ).

Neither the City nor B & H can be held liable for plaintiff‘s injuries under Labor Law § 200 or the common law, because plaintiff's accident arose from the means and methods by which he gained access to his work, and neither the City nor B & H controlled those means and methods (see Mitchell v. New York Univ., 12 A.D.3d 200, 784 N.Y.S.2d 104 [1st Dept. 2004] ).  Plaintiff does not contest that his Longshore and Harbor Workers' Compensation Act and Jones Act claims against the City must be dismissed.

The City's cross claim against B & H for breach of contract for failure to procure insurance must be dismissed because B & H procured an insurance policy naming the City as an additional insured.  To the extent of such coverage, the City and B & H's remaining cross claims against each other are barred by the anti-subrogation rule (see Cuzzi v. Brook Shopping Ctr., 287 A.D.2d 403, 403–404, 731 N.Y.S.2d 717 [1st Dept. 2001] ).  In any event, their cross claims against each other, as well as defendants North East Marine and Metro Marine's cross claims against the City, for common-law indemnification and contribution must be dismissed because neither the City nor B & H was negligent (see Higgins v. TST 375 Hudson, L.L.C., 179 A.D.3d 508, 511, 119 N.Y.S.3d 80 [1st Dept. 2020] ).  To the extent B & H asserts a contractual indemnification claim against the City, the claim must be dismissed because, as B & H acknowledges, there was no contract between them.  However, neither side is entitled to summary judgment on the City's claim for contractual indemnification against B & H based on a provision in the City's permit requirements, because the record does not establish whether, to the extent not barred by the anti-subrogation rule, B & H's permit requires it to indemnify the City.