The opinion
De Paz v LEMX Corp.
2025 NY Slip Op 30194(U)
January 16, 2025
Supreme Court, New York County
Docket Number: Index No. 160251/2020
Judge: Mary V. Rosado
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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publication.
[FILED: NEW YORK COUNTY CLERK 01/17/2025 10:41 AM] INDEX NO. 160251/2020
NYSCEF DOC. NO. 170 RECEIVED NYSCEF: 01/17/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M
Justice
-----------------------------------------------------------------------------X INDEX NO. 160251/2020
JOEL DE PAZ,
MOTION DATE 06/07/2024
Plaintiff,
MOTION SEQ. NO. 004
-v-
LEMX CORP., 30 EAST 85TH STREET COMPANY,
LLC,WALLACK MANAGEMENT, CO., INC.,THE BOARD
OF MANAGERS OF THE 30 EAST 85TH STREET DECISION+ ORDER ON
CONDOMINIUM, THE 30 EAST 85TH STREET MOTION
CONDOMINIUM,
Defendant.
------------------------------------------------------------------------------X
LEMXCORP. Third-Party
Index No. 595888/2021
Plaintiff,
-against-
PHOENIKS INC.
Defendant.
--------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 129, 130, 131 132, 1
133,134,135, 136, 137,138,139,140,141,142,143,144,149,156, 157,158,159,160,162,166, 167,
168
were read on this motion to/for JUDGMENT-SUMMARY
Upon the foregoing documents, and after a final submission date of September 19, 2024,
Defendants 30 East 85th Street Company, LLC, Wallack Management Co., Inc., The Board of
Managers of the 30 East 85h Street Condominium, and The 30 East 85th Street Condominium's
("Building Defendants") motion for summary judgment on their contractual and common law
indemnification, contribution, and breach of contract for failure to procure insurance claims
against Defendant/Third-Party Plaintiff LEMX Corp. ("LEMX") is denied.
16025112020 JOEL DE PAZ, vs. LEMX CORP., ET AL Page 1 of 4
Motion No. 004
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[FILED: NEW YORK COUNTY CLERK 01/17/2025 10:41 AM] INDEX NO. 160251/2020
NYSCEF DOC. NO. 170 RECEIVED NYSCEF: 01/17/2025
L Background
For a more thorough recitation of the facts, the reader is referred to this Court's Decision
and Order on Motion Sequence 003. For purposes of this motion, the Building Defendants seek
summary judgment on their crossclaims asserted against LEMX. The Building Defendants argue
there is no evidence that they were actively engaged in any of the work which caused Plaintiffs
accident or that they were affirmatively negligent. The Building Defendants further argue that they
are entitled to summary judgment on their breach of contract for failure to procure insurance claims
because LEMX's subcontractor, Phoeniks Inc., allegedly did not insure the Building Defendants.
In opposition, LEMX argues that there are issues of fact regarding who has access and control to
the electrical power which makes any determination regarding indemnification premature.
Moreover, LEMX argues that it procured the requisite insurance.
II. Discussion
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Based on the record before this Court, there are triable issues of fact as to both the Building
Defendants' and LEMX's negligence which makes ruling on the common-law and contractual
indemnification claims premature (York v Tappan Zee Constructors, LLC, 224 AD3d 527, 529
160251/2020 JOEL DE PAZ, vs. LEMX CORP., ET AL Page 2 of 4
Motion No. 004
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[FILED: NEW YORK COUNTY CLERK 01/17/2025 10:41 AM] INDEX NO. 160251/2020
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[1st Dept 2024]; Bradley v NYU Langone Hospitals, 223 AD3d 509, 511-512 [1st Dept 2024]).
Amongst other things, it is not clear who had access to the premises' power supply and could
ensure it was turned off, which could have prevented Plaintiffs electrocution. Further, it is not
clear if it was ever turned off, or if it was turned off, if someone negligently turned the power back
on while Plaintiff worked. These are issues of fact which make any grant of indemnification
premature. For the same reason, the Building Defendants' motion for summary judgment on their
contribution crossclaim is denied.
Finally, the Building Defendants' motion for summary judgment on their failure to procure
insurance claim is denied. A party moving for summary judgment on its claim for failure to procure
insurance must show correspondence from the insurer of the party against whom summary
judgment is sought indicating that the moving party was not named as an insured on any policies
issued (Dorset v 285 Madison Owner LLC, 214 AD3d 402 [1st Dept 2023]). Herc, the Building
Defendants failed to annex to their motion in chief any insurance policy that did not name them as
an additional insured, let alone correspondence denying coverage (Ruland v 130 FG, LLC, 181
AD3d 441 [1st Dept 2020] [deficiencies in summary judgment motion cannot be remedied through
evidence introduced for first time on reply]). The only correspondence introduced is from the
defaulted Third-Party Defendant Phoeniks' insurer. Therefore, this branch of the Building
Defendants' motion is also denied.
Accordingly, it is hereby,
ORDERED that 30 East 85th Street Company, LLC, Wallack Management Co., Inc., The
Board of Managers of the 30 East 85h Street Condominium, and The 30 East 85th Street
Condominium's motion for summary judgment on their contractual and common law
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Motion No. 004
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[FILED: NEW YORK COUNTY CLERK 01/17/2025 10:41 AM] INDEX NO. 160251/2020
NYSCEF DOC. NO. 170 RECEIVED NYSCEF: 01/17/2025
indemnification, contribution, and breach of contract for failure to procure insurance claims
against Defendant/Third-Party Plaintiff LEMX Corp. is denied; and it is further
ORDERED that within ten days of entry, counsel for Defendant/Third-Party Plaintiff
LEMX Corp. shall serve a copy of this Decision and Order, with notice of entry, on all parties via
NYSCEF.
This constitutes the Decision and Order of the Court.
1/16/2025
DATE H N. MARY V. ROSADO, J.S.C.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION : SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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Motion No. 004
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