Lara v. Tutor Perini Corp.

Lara v Tutor Perini Corp.

2025 NY Slip Op 30046(U)

January 7, 2025

Supreme Court, New York County

Docket Number: Index No. 155971/2022

Judge: James d'Auguste

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. 155971/2022

NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/07/2025

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: PART 55

---------------------------------- ·------------------X

HEATHER LARA, INDEX NO. 155971/2022

Plaintiff,

MOTION DATE 05/29/2024

- V-

MOTION SEQ. NO. 001

TUTOR PERINI CORPORATION, TUTOR PERINI

BUILDING CORP., TUTOR PERINI CIVIL, FIVE STAR

ELECRIC CORP., WDF INC., FRONTIER-KEMPER DECISION+ ORDER ON

CONSTRUCTORS, INC., AECOM, URS CORPORATION- MOTION

NEWYORK,

Defendant.

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TUTOR PERINI CORPORATION, TUTOR PERINI BUILDING Third-Party

CORP., TUTOR PERINI CIVIL, FIVE STAR ELECRIC CORP., Index No. 595298/2024

WDF INC., URS CORPORATION-NEW YORK

Plaintiffs,

-against-

MEDCOR, INC.

Defendants.

--------------------------------------------------------------------------------X

HON. JAMES D'AUGUSTE:

The following e-filed documents, listed by NYSCEF document number (Motion 001) 38, 39, 40, 41, 42,

43,44,45,46,47,48,49

were read on this motion to/for DISMISS

In this action by first-party plaintiffs to recover for damages allegedly sustained by Heather Lara

("Lara" or "First-Party Plaintiff'), third-party defendant Medcor, Inc. ("Medcor", "Movant", or "Third-

Party Defendant") moves, pursuant to CPLR 321 l(a)(l), (a)(3), and (a)(7) to dismiss the third-party

action filed against it by Tutor Perini Corporation, Tutor Perini Building Corp., Tutor Perini Civil, Five

Star Electric Corp., WDF Inc., AECOM, and URS Corporation-New York (collectively the "Tutor

Perini Defendants" or "Third-Party Plaintiffs"). Third-Party Defendant moves pursuant to Civil Practice

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Law and Rules ("CPLR") 321 l(a)(l), (3), and (7). Third-Party Plaintiffs oppose the motion. For the

reasons set forth herein, the defendants' motion is granted in part and denied in part.

On August 18, 2021, at approximately 9:45 P.M., Lara was allegedly injured in a slip-and-fall

incident that occurred at or around an MTA East Side Access construction project located underground

at or around 40 East 52nd Street in New York County (the "Project"). First-Party Plaintiff alleged that

the Metropolitan Transportation Authority ("MTA") had contracted with one or more of the Tutor Perini

Defendants to provide work, labor, services, and material at the Project, and that the Tutor Perini

Defendants had in turn contracted with Plaintiffs employer, Medcor Inc. ("Medcor"), to provide various

on-site medical services for that Project. First-Party Plaintiff alleged that she was injured while

performing medical work, labor, and/or services at the Project pursuant to her employment with Medcor.

The Tutor Perini Defendants collectively filed a Verified Answer to the Amended Complaint (NYSCEF

Doc. No. 29) and subsequently filed a Third-Party Summons and Complaint against Medcor (NYSCEF

Doc. No. 33).

In their Summons and Complaint against Medcor, Third-Party Plaintiffs alleged that the MTA

had contracted with the various Tutor Perini Defendants to perform work as contractor(s), consultant(s),

and subcontractor(s) at the Project prior to the date of First-Party Plaintiffs alleged accident. Third-

Party Plaintiffs alleged that they were enrolled in the MTA's Owner Controlled Insurance Program

(OCIP) through which the MTA furnished insurance coverage with respect to on-site activities for the

Project. Third-Party Plaintiffs also produced a Vendor Agreement (hereinafter the "Agreement")

purportedly between Medcor and another entity, Willis of New York, Inc. ("Willis"). NYSCEF Doc.

No. 36. Willis is not a party to this action. Third-Party Plaintiffs alleged that Willis had contracted with

Medcor on or before August 18, 2021, on behalf of the MT A for Medcor to provide certain occupational

health services at the Project and to obtain insurance thereof pursuant to the OCIP. Third-Party Plaintiffs

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alleged that Medcor expressly contracted to defend, indemnify, and hold harmless the MTA and the

Third-Party Plaintiffs against any and all claims, suits, damages, losses, or expenses from injuries

occurring at the Project, including the First-Party Plaintiff's alleged injury. Third-Party Plaintiffs pled

four causes of action against Medcor: ( 1) contractual indemnification, based on their interpretation of

the Agreement; (2) contribution, for Medcor's proportional share of liability for Plaintiff's alleged

injuries; (3) common law indemnification, to the extent that Plaintiff's injuries were caused by Medcor's

own negligence, wrongful or culpable conduct, or acts and/or omissions; and (4) breach of contract, for

Medcor's purported failure to obtain the insurance required by the Agreement, to name the Tutor Perini

Defendants as additional insureds, and other alleged violations.

Medcor filed a pre-Answer Notice of Motion to Dismiss the Third-Party Complaint (NYSCEF

Doc. No. 38) seeking dismissal of all claims with prejudice pursuant to CPLR 321 l(a)(l), 321 l(a)(3),

and 321 l(a)(7); for costs and sanctions against the Third-Party Plaintiffs for filing a frivolous and

legally meritless litigation pursuant to 22 NYCRR 1301.1 and CPLR 8303-A; and for such other,

further, and different relief as the Court deems just and proper. Movant also filed the following papers in

support of this motion: a Memorandum of Law in Support (NYSCEF Doc. No. 39); an Affidavit by

Medcor's Chief Operating Officer Bennet W. Petersen (NYSCEF Doc. No. 40); a functionally identical

copy of the Agreement produced by the Third-Party Plaintiff (NYSCEF Doc. No. 41); a copy of

Medcor's incident report concerning Plaintiff's alleged accident (NYSCEF Doc. No. 42); and an

Attorney Affidavit in Support of their motion (NYSCEF Doc. No. 43). Defendants/Third-Party Plaintiffs

subsequently filed an Affirmation in Opposition to Medcor's Motion (NYSCEF Doc. No. 47) and

Medcor then filed an Affirmation in Reply on May 24, 2024 (NYSCEF Doc. No. 49).

CPLR 3211 provides, in relevant part, that "a party may move for judgment dismissing one or

more causes of action asserted against him on the ground that: 1. A defense is founded upon

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documentary evidence; or ... 2. The party asserting the cause of action has not legal capacity to sue; or

... 7. the pleading fails to state a cause of action". "In the posture of [a] CPLR 3211 motion to dismiss,

our task is to determine whether plaintiffs' pleadings state a cause of action. The motion must be denied

if from the pleadings' four comers factual allegations are discerned which taken together manifest any

cause of action cognizable at law." 51 I West 232nd Owners Corp. v. Jenn(fer Realty Co., 98 N.Y.2d

144, 151-52 (N.Y. 2002), citing Polonetsky v. Better Homes Depot, Inc., 97 N.Y.2d 46, 55 (N.Y. 2001).

On a motion to dismiss pursuant to any provision of CPLR § 3211, the court must accept all facts as

alleged in the complaint as true and grant the plaintiff the benefit of every possible favorable inference,

and limit itself to determine only whether the facts as alleged fit any cognizable legal theory. Leon v.

Martinez, 84 N.Y.2d 83, 87-88 (N.Y. 1994); see also Monroe v. Monroe, 50 N.Y.2d 481,484 (N.Y.

1980). Requests to deny a motion to dismiss in order to complete discovery and obtain sufficient

evidence necessary to make specific factual allegations should be rejected by the Court. See Chappo &

Co. v. Jon Geophysical Corp., 83 A.D.3d 499, 500 (N.Y. App. Div. 1st Dept. 2011), citing Devore v.

Pfizer, 58 A.D.3d 138, 144 (N.Y. App. Div. 1st Dept. 2008) ("Plaintiffs will not be allowed to use

pretrial discovery as a fishing expedition when they cannot set forth a reliable factual basis for what

amounts to, at best, mere suspicions").

To prevail on a motion to dismiss brought under CPLR § 321 l(a)(l), the "documentary evidence

submitted [must] conclusively establish[] a defense to the asserted claims as a matter of law." Spoleta

Consruction, LLC v. Aspen Insurance UK Ltd., 27 N.Y.3d 933, 935 (N.Y. 2016); see also Beal Sav.

Bankv. Sommer, 8 N.Y.3d 318,324 (N.Y. 2007) (affirming on appeal from the First Department); Leon

v. Martinez, 84 N.Y.2d at 88; Goshen v Mutual Life Ins. Co. ofN Y, 98 N.Y.2d 314,326 (N.Y. 2002).

"A motion to dismiss pursuant to CPLR 3211 (a)(l) will be granted only if the 'documentary evidence

resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim'." JA. Lee

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Elec., Inc. v. City of NY, 990 N.Y.S.2d 223,225 (N.Y. App. Div. 2nd Dept. 2014), citing Fontanetta v.

John Doe, 73 A.D.3d 78, 83-84 (N.Y. App. Div. 2nd Dept. 2010) (quoting Fortis Financial Services,

LLC v. Fimat Futures USA, Inc., 290 A.D.2d 383 (N.Y. App. Div. 1st Dept. 2002). A plaintiffs bare-

bones or conclusory allegations will not survive a motion to dismiss. Farage v. Associated Ins. Mgmt.

Corp., 2024 N.Y. Slip Op. 5875 (N.Y. 2024) (finding that plaintiff made "patently conclusory"

allegations and failed to allege sufficient, specific facts to raise a question of fact sufficient to survive

the motion to dismiss); Hefter v. Elderserve Health, Inc., No. 2013-09706, 2 (N.Y. App. Div. 2nd Dept.

2015) ("Here, the plaintiffs bare and conclusory allegation in the complaint ... which was unsupported

by any detail allegations ... is insufficient").

"To qualify as 'documentary,' the paper's content must be '"essentially undeniable and ... ,

assuming the verity of [the paper] and the validity of its execution, will itself support the ground on

which the motion is based. (Neither the affidavit nor the deposition can ordinarily qualify under such a

test)". Amsterdam Hospitality Group, LLC v. Marshall-Alan Associates, Inc., 992 N.Y.S.2d 2, 4 (N.Y.

App. Div. 1st Dept. 2014) (quoting David D. Siegel, Practice Commentaries, McKinney's Cons Laws of

N. Y., Book 78, CPLR C3211: 10 at 22). As a general rule, affidavits are not documentary evidence

within the scope of CPLR § 321 l(a). See, e.g. Fontanetta v. John Doe, 73 A.D.3d at 87, citing

Tsimerman v. Janoff, 40 A.D.3d 242 (N.Y. App. Div. 1st Dept. 2007) ("These affidavits, which do no

more than assert the inaccuracy of plaintiffs' allegations, may not be considered, in the context of a

motion to dismiss, for the purpose of determining whether there is evidentiary support for the

complaint"); Art & Fashion Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d 436 (1st Dept, 2014)

(citing same). "While affidavits may be considered ... they are generally intended to remedy pleading

defects and not to offer evidentiary support for properly pleaded claims." Nonnon v. City ofNew York, 9

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N.Y.3d 825, 827 (N.Y. 2007), citing Rovella v Orofino Realty Co., 40 N.Y.2d 633, 635-636 (N.Y.

1979).

"According to well-established rules of contract interpretation, when parties set down their

agreement in a clear, complete document, their writing should as a rule be enforced according to its

terms." Ashwood Capital, Inc. v. OTG Management, Inc., 948 N.Y.S.2d 292,297 (N.Y. App. Div. 1st

Dept. 2012), citing WWW Assocs v. Giancontieri, 77 N.Y.2D 157, 162 (N.Y. 1990). In cases where

commercial contracts are negotiated at arm's length by sophisticated businesspeople, "courts should be

extremely reluctant to interpret an agreement as impliedly stating something which the parties have

neglected to specifically include." Ashwood Capital, Inc., 948 N.Y.S.2d at 297, citing Vermont Teddy

Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470,475 (N.Y. 2004). "Construction of an unambiguous

contract is a matter of law, and the intention of the parties may be gathered from the four comers of the

instrument and should be enforced according to its terms." Beal Sav. Bank v. Sommer, 8 N.Y.2d at 324

(internal citations omitted). "The best evidence of what parties to a written agreement intend is what

they say in their writing." Slamow v. Del Col, 79 B.Y.2d 1016, 1018 (N.Y. 1992). "Unambiguous

contracts that can be interpreted only in one manner may be the basis for a dismissal pursuant to CPLR

321 l(a)(l)." Farage v. Associated Ins. Mgmt. Corp., 2024 N.Y. Slip Op. 5875 (N.Y. 2024), quoting

Goldman v. Metropolitan Ufe, 5 N.Y.3d 561, 571 (N.Y. 2005) (holding that the Appellate Division

properly held that the contracts could only be interpreted to grant dismissal).

When raising questions of standing under CPLR § 3211 (a)(3 ), the burden is on the movant to

establish, prima facie, the plaintiffs lack of standing as a matter of law. Wilmington Sav. Fund Soc '.Y v.

Matamoro, 200 A.D.3d 79, 90 (N. Y. App. Div. 2nd Dept. 2021 ); see also Brunner v. Estate c~f Lax, 13 7

A.D.3d 553 (N.Y. App. Div. 1st Dept. 2016). "To defeat a defendant's motion to dismiss, the plaintiff

has no burden of establishing its standing as a matter of law, but must merely raise a question of fact as

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to the issue." Wilmington Sav. Fund Soc'y v. Matamoro, 200 A.D.3d 79, 90 (N.Y. App. Div. 1st Dept.

2021). "A non-party to a contract governed by New York law lacks standing to enforce the agreement in

the absence of terms that 'clearly evidence an intent to permit enforcement by the third party' in

question." Rynasko v. NY Univ., 63 F.4th 186, 194 (2d Cir. 2023) (directly addressing New York law),

citing Premium Mortg. Corp. v. Equifax, Inc., 583 F.3d 103, 108 (2d Cir. 2009) (quoting Fourth Ocean

Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 45, [1985]).

A CPLR 321 l(a)(7) motion may be used to "dispose of an action in which the plaintiff identified

a cognizable cause of action but failed to assert a material allegation necessary to support the cause of

action." Basis Yield Alpha Fund v. Goldman Sachs Grp., Inc., 980 N.Y.S.2d 21, 26 (N.Y. App. Div. 1st

Dept. 2014), citing Rovella v. Orofino Realty Co., 40 N.Y.2d 633, 635-636 (N.Y. 1976); see also Board

of Managers of Fairways at N Hills Condominiums v. Fairways at N Hills, 150 A.D.2d 32 (N.Y. App.

Div. 2nd Dept. 1989). As with CPLR 321 l(a)(l), the Court must "accept the facts as alleged in the

complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine

only whether the facts as alleged fit within any cognizable legal theory." Connaughton v. Chipotle

Mexican Grill, Inc., 29 N.Y.3d 137, 141 (N.Y. 2017), citing Leon v. Martinez, 84 N.Y.2d at 87-88. "At

the same time, however, allegations consisting of bare legal conclusions ... are not entitled to any such

consideration." Id., citing Simkin v. Blank, 19 N.Y.3d 46, 52 (N.Y. 2012); see also lkezi v. 82nd St.

Academics, 221 A.D.3d 986, 988 (N.Y. App. Div. 2nd Dept. 2023) (Affirming dismissal where "bare

and conclusory allegations failed to identify any specific misrepresentation of material present fact made

by any defendant"). On a motion brought under this subsection, the court ultimately must determine

whether the pleading party has a cause of action based on the facts alleged, and not whether they have

stated one. Leon v. Martinez, 84 N.Y.2d at 88, citing Rovella v. Orofino Realty Co., 40 N.Y.2d 633, 635-

636 (N.Y. 1976); see also Sokol v. Leader, 74 A.D.3d 1180 (2d Dept 2010). As such, dismissal under

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CPLR § 321 l(a)(7) is warranted only if the plaintiff "failed to assert facts in support of an element of the

claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable

right of recovery." Audthan LLC v. Nick & Duke, LLC, 2024 N.Y. Slip Op. 2223, (N.Y. 2024), citing

Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141 (2017).

As a threshold matter, Third-Party Plaintiffs argued that the motion to dismiss is premature, as

no depositions had been held and they "have yet to uncover the facts and circumstances leading up to or

contributing to Lara's incident." (NYSCEF Doc. No. 47 iJlO).

Third-Party Plaintiffs further argued that they are "entitled to examine whether MEDCOR's professional

negligence, errors or omissions including its supervision or lack thereof of its employee occasioned

Lara's incident." Id. Third-Party Plaintiffs rely primarily on a Second Department Appellate Division

case to support their argument that the instant motion should be denied because they are entitled to

discovery (NYSCEF Doc. No. 47,r 17). James v. Aircraft Serv. Intl Group, 84 AD.3d 1026, 1027 (2d

Dept, 2011) (affirming "under the circumstances of this case" an order denying a motion for summary

judgment to dismiss until after completion of discovery pursuant to CPLR 3212[fJ). However, the

circumstances of the James case can be distinguished from the instant matter: the motion before this

Court was formally made as a motion to dismiss pursuant to CPLR 3211, not a motion for summary

judgment pursuant to CPLR 3212 (NYSCEF Doc. No. 38).

While the Court must "determine only whether the facts as alleged fit within any cognizable

legal theory" when adjudicating a CPLR 3211 motion, per Leon v. Martinez, 784 N.Y.2d at 87-88, a

CPLR 3212 motion for summary judgment "seeks a determination that there are no material issues of

fact for trial" and "assumes a complete evidentiary record." Nonnon v. City of New York, 9 N.Y.3d 825,

827 (N.Y. 2007) (refusing to convert motion where plaintiffs suggest that "they have not had the

opportunity to submit all of their evidence relevant to a determination of causation"). A court may

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convert a CPLR 3211 motion to a CPLR 3212 motion "after adequate notice to the parties," (CPLR

3212[c]), but such conversion is inappropriate "where a motion for summary judgment would be

premature" due to an incomplete factual record. Russo v. Crisona, 219 A.D.3d 920, 921 (N. Y. App. Div.

2nd Dept. 2023), citing Menche v. CDx Diagnostics, Inc., 199 A.D.3d 678; see also CPLR 3212(f).

Judicial conversion of a CPLR 3211 motion into a CPLR 3212 motion is only appropriate where the

parties are "put on notice of their obligation to make a complete record and to come forward with any

evidence that could possibly be considered." See Nonnon, 9 N.Y.3d at 827; see also Russo v. Crisona,

219 A.D.3D at 921-922.

The Court recognizes that many arguments made by both parties relied on the conflation of

CPLR 3211 and CPLR 3212. For example, the Third-Party Defendant relied on Espinal v. Melville Snow

Contractors, Inc., 98 N.Y.2d 136 (N.Y. 2002) to argue that the claim for contractual indemnification

must be dismissed (NYSCEF Doc. No. 39) and Third-Party Plaintiff cited numerous cases arguing

specifically against a grant of summary judgment (NYSCEF Doc. No. 471il 13-16). Nevertheless, the

pre-Answer motion was initially filed under CPLR § 3211 and, as Third-Party Plaintiffs repeatedly

argue, no discovery has been exchanged. Based on these factors the Court will not sua sponte convert

the instant motion to a summary judgment one. The Court will thereby limit its analysis to CPLR § 3211

and consider only whether the Third-Party Plaintiff properly pled its claims against Third-Party

Defendant.

Movant produced a copy of an Affidavit signed by Bennet W. Petersen, Chief Operating Officer

of Medcor, Inc. (NYSCEF Doc. No. 40). As Affidavits are not considered "documentary evidence"

within the scope of a CPLR § 321 l(a) motion to dismiss, the Court will not consider it at length beyond

its purpose as a vehicle to introduce documentary evidence to the Court for the purposes of this motion:

On a motion, the only possible way that documentary evidence can be submitted to the court is

by way of affidavit. Thus, an affidavit from an individual, even if the person has no personal

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knowledge of the facts, may properly serve as the vehicle for the submission of acceptable

attachments which provide evidentiary proof in admissible form, like documentary evidence. In

such situations, the affidavit itself is not considered evidence; it merely serves as a vehicle to

introduce documentary evidence to the court. Basis Yield Alpha Fund v. Goldman Sachs Grp.,

Inc., 980 N.Y.S.2d 21, 27 n.4 (N.Y. App. Div. 2014).

Both the Third-Party Plaintiffs and the Third-Party Defendant produced functionally identical copies of

the Agreement between Medcor and Willis. (NYSCEF Doc. Nos. 36, 41 ). Both parties asserted that the

Agreement as presented was in effect as of the time of Plaintiffs alleged injuries. (NYSCEF Doc. No.

33 ~24; NYSCEF Doc. No. 43 ~9-10). As such, the Court will accept for the purposes ofthis Motion

that the Agreement before it was in effect and will proceed with interpreting the plain text to determine

the intent of the parties involved.

Among other provisions, the Agreement identifies Medcor's role and scope of work at ~2, Role

of "Vendor", which states that the Agreement is for Medcor to "provide the services and maintain the

fees" that were outlined in a previous document and identified "as described on Schedule A herein." The

Agreement further contains a clause titled Indemnification at if7, which states in most relevant part:

Notwithstanding anything to the contrary herein, The "Vendor" shall defend, indemnify and hold

harmless Willis of New York, Inc. ("Willis"), the Metropolitan Transportation Authority

("Client") ... and all other parties involved in the East Side Access Project, and their respective

officers, agents and employees from any claim, suits, loss or liability by reason of any damage to

property or bodily injury of death to any person, whatsoever, arising out of or in connection with

"Vendor's" breach of this contract except damages arising from the negligence of "Willis", the

"Client" and other parties to the Project.

"Vendor", shall further defend, indemnify and hold harmless "Willis", "Client" ... and other

parties involved in the Project and their respective officers, agents and employees from and

against any and all claims, suits, loss, cost and liabilities of every description brought against any

of them or suffered by any of them and arising out of any professional negligence or errors, or

omissions of the "Vendor", pertaining to services by the "Vendor" performed pursuant to this

Contract.

The Agreement also contains an Insurance clause at ~8, which states that Medcor is obligated "[a]t its

sole cost and expense" to "procure and maintain during the entire period of work covered hereunder"

Workers' Compensation insurance, Commercial General Liability, Property Damage Liability, and

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Malpractice/Errors and Omission Protection. That clause specifies that these insurances "must be written

in a form and written by an insurer satisfactory to Willis" and that Medcor "shall furnish evidence to

Willis" of those coverages. Neither this section nor any other section of the Agreement addresses

naming any entity as an "additional insured". Further, the Agreement further states in a "General" clause

at in 1 that "This Agreement may not be changed or modified except in writing signed by both parties"

and that "This Agreement replaces and supersedes all previous agreements, written or oral, which may

have existed between the parties. It constitutes the full agreement of the parties." Finally, a Schedule

"A" is affixed to the Agreement which identifies the scope of Medcor's work, which specifies inter alia

that Medcor is responsible for "for the life of the project" a variety of services (subsection 4), as well as

the following item: "e. Support project management with occupational safety as requested." There is

also an annexed Vendor Agreement Extension which expands the scope of Medcor's contracted-for

medical and related services to the Grand Central Station location at which First-Party Plaintiff was

allegedly injured.

Finally, Movant produced a document purporting to be the Medcor Incident Report for First-

Party Plaintiff's alleged injury. (NYSCEF Doc. No. 42). The Incident Report identifies First-Party

Plaintiff by name and contains other redacted Personally Identifying Information. Therein, First-Party

Plaintiff's injury is described as having been caused by a "Slip/Fall/Trip" occurring at 21 :45 ET on

August 18, 2021. The Incident Report does not state where the alleged incident occurred. No witnesses

were identified. The Incident Report is noted to have been printed on August 18, 2021, at 23:50 CST.

The Incident Report does not bear a signature nor name the individual who completed the report. In

most relevant part, the Incident Report states that the First-Party Plaintiff "alleged about 2 hours and 40

minutes ago she was walking to the safety office underground on uneven ground when she lost her

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balance and fell." The Incident Report continues to describe First-Party Plaintiffs alleged injuries and

the immediate medical consequences thereof.

Third-Party Plaintiffs plead a cause of action against Third-Party Defendant Medcor for

contractual indemnification. The Third-Party Complaint alleged that "any and all damages and/or

injuries sustained by [First-Party] Plaintiff were caused by the recklessness, carelessness, negligence or

other culpability of MEDCOR, and/or their agents, servants, and/or employees in the supervision and

control of their worksite and/or employees contributing thereto" (NYSCEF Doc. No. 33 if34) and that

"[First-Party] Plaintiffs damages, if any, resulted from and/or arose out of MEDCO R's performance of

the work that is the subject of the MEDCOR contract." (Id. at if35). Third-Party Defendant argued that

Medcor's indemnification obligations under the Agreement could have only been triggered by either a

breach of contract or by professional negligence by Medcor. Movant alleged that no such breach nor

negligence occurred and, relying on the Petersen Affidavit, argued that no breach of contract nor

professional negligence could have contributed to First-Party Plaintiffs injury, because Medcor's scope

of work did not include any responsibility for the construction or maintenance of the area in which First-

Party Plaintiff allegedly fell. (NYSCEF Doc. Nos. 39 p.7-8, 40 ,rip 5-17).

"A contract to indemnify against liability is breached the moment the liability is imposed and a

cause of action arises because of the fact of the breach." 755 Seventh Ave. Corp. v. Carroll, 266 N.Y.

157, 161 (N.Y. 1935). Contractual indemnification provisions must be read narrowly by the Court. See

Cahn v. Ward Trucking, Inc., 101 A.D.3d 458,459 (N.Y. App. Div. 1st Dept. 2012) ("a properly strict

reading of the indemnity clause bars a finding" where indemnity was limited on its face to losses arising

from the use of defendant's materials and equipment). "It is well-settled that to establish a claim of

negligence, a plaintiff must prove: a duty owed to the plaintiff by the defendant, a breach of that duty,

and injury proximately resulting therefrom." The Moore Charitable Found. v. PJT Partners, 40 N.Y.3d

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150, 156 (N.Y. 2023), citing Pasternack v. Laboratory Corp. ofAm. Holdings, 27 N.Y.3d 817, 825

(N.Y. 2016). "[A]bsent a duty running directly to the injured person there can be no liability in damages,

however careless the conduct or foreseeable the harm ... courts first must determine whether defendants

owed a duty to plaintiffs." Id. at 160-161.

Based on the documentary evidence before the Court and giving Third-Party Plaintiffs'

allegations the benefit of every possible inference, it appears that Medcor and Willis did enter into a

contract which identified the Tutor Perini Defendants as third-party beneficiaries. Specifically, the

Indemnification clause specifies that Medcor will defend, indemnify, and hold harmless "all other

parties involved in the East Side Access Project, and their respective officers, agents and employees."

The Third-Party Plaintiffs allege that they are parties involved in the East Side Access Project and are

thus included in this provision. As such, it is this Court's opinion that Movant's arguments that the claim

for contractual indemnification must be dismissed pursuant to CPLR § 321 l(a)(3) on the grounds that

Third-Party Plaintiffs lack standing must be rejected.

It is also clear to the Court that the Indemnification clause is specifically limited to matters

"arising out of or in connection with [Medcor's] breach of this contract" and to matters "arising out of

any professional negligence or errors, or omissions of [Medcor] pertaining to services by [Medcor]

performed pursuant to this contract. As such, according to the Court's plain reading of the Agreement,

Medcor did consent to indemnify the Tutor Perini Defendants for all injuries, costs, and damages arising

strictly from either Medcor' s own breach of the Agreement or from any professional negligence, acts or

omissions by Medcor pertaining to Medcor's obligations under that Agreement.

As such, the Court must grant Medcor's motion to dismiss this claim under CPLR § 321 l(a)(l)

and 321 l(a)(7). Third-Party Plaintiffs made only bare and conclusory allegations that Medcor

committed some form of professional negligence "in the supervision and control of their worksite and/or

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employees" and that First-Party Plaintiff's alleged injuries "resulted from and/or arose out of Medcor's

performance of the work that is the subject of the MEDCOR contract." They failed in their pleading or

in their motion papers to allege any facts as to what acts or omissions Medcor may have committed

which could have conceivably drawn a line from a duty of Medcor to the First-Party Plaintiff's injuries.

A mere appeal to a theoretical "supervision or lack thereof of its employee" which may have

"occasioned" First-Party Plaintiff's alleged injuries is bare, indicative of a fishing expedition, and

inadequate to support a claim that Medcor committed professional negligence within the context of the

documentary evidence before the Court. The Court is convinced by Movant's argument that the

Agreement text precludes that possibility, as Schedule A of the Agreement limited Medcor's scope of

work to various medical services and related activities. 1

Third-Party Plaintiff also argued, in effect, that there may have been verbal or nonverbal

agreements which postdate and therefore supercede the contract (that there are "ebbs and flows" that

"cannot be found in contracts", which arise as contractors on a construction site "work together and

against one another on issues of access, materials, timing," and "need to be fleshed out and explored in

depositions" also fails for the same reason. (NYSCEF Doc. No. 4 7 117). Moreover, that latter argument

is particularly unavailing, as the Agreement before the Court explicitly precludes contractual liability for

any such non-verbal understandings (Agreement section 11 1i]b, c). As a matter of strict contractual

interpretation there is no mechanism for any worksite "ebbs and flows" that "cannot be found in

contracts" to impact the meaning or applicability of this Agreement.

1

The Court does recognize that the Agreement includes within Medcor's scope of work the directive to "Support project

management with occupational safety as requested." However, the Court's role when ruling on a CPLR 3211 motion to

dismiss is to "determine only whether the facts as alleged fit within any cognizable legal theory", and not to speculate

potential factual allegations on Plaintiffs' behalf. Leon v. Martinez, 784 N.Y.2d at 87-88, et seq. As Third-Party Plaintiffs

failed to make any specific factual allegations with which the Court may grant the benefit of every possible inference, the

Court does not see fit to deny a motion to dismiss on the basis of this provision alone.

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"To sustain a third-party cause of action for contribution, a third-party plaintiff is required to

show that the third-party defendant owed it a duty of reasonable care independent of its contractual

obligations, or that a duty was owed to the plaintiffs as injured parties and that a breach of that duty

contributed to the alleged injuries". Guerra v. St. Catherine of Sienna, 79 A.D.3d 808, 809 [2d Dept

2010]).

"A party seeking contribution must show that the third-party defendant from whom contribution

is sought owes a duty either to him or to the injured party and that a breach of this duty has contributed

to the alleged injuries." Red v. Lam Platt St. Hotel, 19-cv-4992 (LJL), 13-14 (S.D.N.Y. Apr. 28, 2022),

citing Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 509 N.Y.S.2d 177, 178 (3d Dep't

1986) ajfd 523 N.E.2d 803 (N.Y. 1988); see also Morris v. Home Depot USA, 59 N.Y.S.3d 92, 95 (2d

Dep't 2017); see also Garrett v. Holiday Inns, Inc., 447 N.E.2d 717, 721 (N.Y. 1983) ("If an

independent obligation can be found on the part of a concurrent wrongdoer to prevent foreseeable harm,

he should be held responsible for the portion of the damage attributable to his negligence, despite the

fact that the duty violated was not one owing directly to the injured person."); O'Gara v. Alacci, 887

N.Y.S.2d 106, 109 (2d Dep't 2009) ("[I]t has been recognized that a party's liability for contribution can

also flow from a breach of an independent duty owed to the defendant, provided that the breach of this

duty played a part in causing or augmenting the injury for which the defendant seeks contribution.").

In its Third-Party Complaint, Third-Party Plaintiffs made conclusory allegations that "the facts

and conditions set forth in those [First-Party Plaintiffs] allegations were brought about in whole or in

party by the negligence, wrongful or culpable conduct, acts, and/or omissions" of Third-Party

Defendant. (NYSCEF Doc. No. 33 if38). In their Affirmation in Opposition, Third-Party Plaintiffs

likewise did not make specific allegations of fact as to what Third-Party Plaintiffs acts or omissions

were or what duty the Third-Party Defendant may have breached thereby. As such, the Court grants the

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motion to dismiss pursuant to CPLR 321 l(a)(7). The Court hereby declines to address the arguments

concerning Workers Compensation Law § 11.

Third-Party Plaintiff pleaded a cause of action for common-law indemnification and asserted

again that "the facts and conditions set forth in [First-Party Plaintiffs] allegations were brought about by

the negligence, wrongful or culpable conduct, acts and/or omissions" of Third-Party Defendant and that

any recovery by First-Party Plaintiff"would be caused by operation of law and without any negligence

or culpable conduct on the part of Defendants/Third-Party Plaintiffs." (NYSCEF Doc. No. 33 i!41.

Common-law indemnification may only be imposed against parties who are either actively at

fault or who exercised actual supervision over the work which gave rise to the alleged injury. McCarthy

v. Turner Constr., Inc., 17 NY3d 369, 929 NYS2d 556 [2011]. Where the record shows that a party was

not actively at fault in bringing about the plaintiffs injury, claims for common-law indemnification

must be dismissed. Cahn v. Ward Trucking, Inc., 101 A.D.3d 458, (N.Y. App. Div. 1st Dept. 2012),

citing McCarthy v. Turner Constr., Inc., 17 N.Y.3d at 375. A cause of action for common-law

indemnification requires a finding of a "grave injury" within the meaning of Workers' Compensation

Law ("WCL") § 11. Mcglinchey v. Vassar Coll., 88 A.D.3d 626,627 (N.Y. App. Div. 1st Dept. 2011),

citing Castro v. United Container Mach. Group, 96 N.Y.2d 398, 401-402 (N.Y. 2001).

The Court grants the motion to dismiss this claim pursuant to CPLR 321 l(a)(l) and (a)(7).

Third-Party Plaintiffs' allegations are bare and conclusory, and so cannot be sustained. As the

evidentiary submissions before the Court demonstrate that the First-Party Plaintiff was allegedly injured

due to dangerous or defective condition at the Project, and that the Third-Party Defendant did have a

contractual obligation under the Agreement to supervise or control the area in which the First-Party

Plaintiff may have been injured, Movant is entitled to dismissal. The Court is convinced by Third-Party

Defendant's argument that the Agreement as written does not include any duties which could have

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included "supervision over the work which gave rise to the alleged injury," since there was no

contractual obligation for Medcor to supervise any work being done in the areas wherein First-Party

Plaintiff was allegedly injured. Consequently, this Court declines to reach the question of whether First-

Party Plaintiff had suffered a "grave injury" within the meaning of Workers' Compensation Law § 11.

Third-Party Plaintiff pleaded a fourth cause of action for breach of contract and asserted that the

Agreement obligated Medcor to name the Tutor Perini Defendants as additional insured on its required

insurance policies (NYSCEF Doc. No. 33 ,45). Third-Party Plaintiff also alleged that Third-Party

Defendant "failed to obtained [sic] the required insurance coverage, failed to name the correct parties as

additional insureds, failed to have its policy provide that it is primary to any coverage maintained by

Defendants/Third-Party Plaintiffs or any additional insureds, failed to submit certificates of insurance to

Defendants/Third-Party Plaintiffs prior to the commencement of its work, and/or failed to notify its

insurance carrier(s) of Plaintiffs alleged accident." (NYSCEF Doc. No. 33 ,46). Movant argued that it

did procure the contracted-for insurance and that the claims involved did not arise out of Medcor's

work, and that Third-Party Plaintiffs other allegations in this claim were not based in the Agreement.

After review of the Agreement and giving Third-Party Plaintiffs' allegations the benefit of every

possible inference, the Court must grant_Movant's motion to dismiss this cause of action.

"The elements of a breach of contract claim arc ( 1) the existence of a contract, (2) the plaintiffs

performance, (3) the defendant's breach, and (4) resulting damages." Alloy Advisory, LLC v. 503 W

33RD St. Assocs., 2021 N.Y. Slip Op. 3520, (N.Y. App. Div. 2021) A third-party may sue for breach of

contract only if they arc an intended beneficiary and only if the contracting parties' intent to benefit the

third-party is apparent from the face of the contract. LaSalle National Bank v. Ernst Young, 285 A.D.2d

101, 108 (N.Y. App. Div. 1st Dept. 2001).

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It is undisputed that the Agreement before the Court constituted a contract. As articulated above,

it is the Court's opinion that the Third-Party Plaintiffs are among the intended third-party beneficiaries

of the Agreement and therefore have the presumptive right to sue for an alleged breach. However, the

Agreement as presented does not contain any provisions with which the Third-Party Plaintiff could

justify a cause of action for breach based on the facts alleged. Pursuant to the Agreement, Medcor was

not obligated to identify any entity as an additional insured on any of its insurance policies. To the

extent that Medcor was obligated to furnish Willis Certificates of Insurance or other evidence of its

insurance, this obligation does not extend to the Tutor Perini Defendants as outlined within the four

corners of the Agreement. Moreover, the Court is here convinced by Movant's argument that there is no

nexus between any potential breach of this Agreement and the Third-Party Plaintiffs potential liability

to First-Party Plaintiff.

The Court declines to deem the Third-Party Complaint frivolous and so denies Movant's request

for attorneys' costs and fees, and for sanctions.

This constitutes the decision and order of the Court.

1/7/2025

DATE James d'Auguste, J.S.C.

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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