The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Plaintiff Alberto Gabriel Hernandez brings this diversity action against GPSDC (New York), Inc., Old Navy, Inc. and The Gap, Inc. (collectively, "the GAP"); Advanced Handling Systems, Inc. ("Advanced Handling"); Pacific Westeel Racking, Inc. ("Pacific"); and Falcon Steel Co. ("Falcon"). Hernandez alleges that the defendants' negligence and their violations of New York's Labor Law caused him to fall at a construction site and sustain serious injuries. On March 9, 2006, this Court ruled as a matter of law that the defendants (other than Falcon, which never answered Hernandez's complaint) violated New York Labor Law §§ 240(1) and 241(6), though we found a genuine issue of fact as to whether Hernandez's own actions were the sole cause of his injuries.
Pacific, the GAP and Advanced Handling (hereinafter, the "proposed indemnitees") subsequently filed third-party complaints against Falcon seeking contribution and common law indemnification. Falcon now moves for summary judgment, pursuant to Fed. R. Civ. P. 56, to dismiss the third-party complaints and all other claims against Falcon in this action. The proposed indemnitees oppose Falcon's motion, and Pacific has cross-moved for summary judgment seeking an order of common law indemnification against Falcon for any verdict or judgment Hernandez obtains against Pacific in excess of one million dollars. As set forth below, both motions are denied, except that any claims for contribution against Falcon are dismissed.
Hernandez was injured on May 14, 2002, while installing a storage unit called a "pick module" at a distribution facility owned by the GAP and located in Fishkill, New York. See Hernandez v. GPSDC (New York) Inc., 2006 WL 563308, at *3-4 (S.D.N.Y. Mar. 9, 2006). Previously, the GAP had hired Advanced Handling to coordinate the construction and installation of the pick module, and Advanced Handling subcontracted the job to Pacific. See id. at *1.
On April 23, 2002, representatives from Pacific and Falcon had signed a contract for "the unloading, installing of [the module] extension and modification, dismantling of selective racking and other." See Proposal, dated Apr. 23, 2002 (attached as Ex. K to Declaration of John Sandercock in Support of Falcon's Motion for Summary Judgment Dismissing the Third-Party Complaints, filed Aug. 17, 2007 (Docket # 128) ("Sandercock Decl.") and as Ex. F to Declaration of Steven I. Lewbel in Support of the Cross-Motion of Third-Party Plaintiff Pacific Westeel Racking Inc. for Summary Judgment Against Third-Party Defendant Falcon Steel Structures, Inc. (attached to Notice of Cross-Motion of Third-Party Plaintiff Pacific Westeel Racking Inc. for Summary Judgment Against Third-Party Defendant Falcon Steel Structures, Inc., filed Sept. 10, 2007 (Docket # 135) ("Notice of Cross-Motion")) ("Lewbel Decl.")) ("Pacific-Falcon Contract"), at 1. The contract does not contain an indemnification provision.
In the contract, Falcon agreed to "provide equipment, supervision and . . . labor" for the pick module project. Id. at 1. Falcon, however, separately made arrangements with Coast-to-Coast ("Coast") to perform work at the site -- the nature of which, as described further below, is not clear from the record. There is no written contract between Falcon and Coast in the record, though there was testimony that Falcon and Coast agreed that while Falcon would sign the contract with Pacific, Coast would perform the work under that contract. See Deposition of Michael Kares, dated Jan. 31, 2005 (attached as Ex. J to Lewbel Decl.) ("Kares Dep."), at 26-28; see Rule 56.1 Statement, filed Sept. 10, 2007 (Docket # 138) ( "Pacific 56.1(a)"), ¶ 15. There was also testimony that Pacific and Coast had signed a contract, see Kares Dep. at 10-11, but none was produced.
After Falcon was brought into this case, the Court dismissed the causes of action Hernandez alleged under common law negligence and New York Labor Law § 200; ruled that the defendants had violated New York Labor Law §§ 240(1) and 241(6); and ruled that there was a genuine issue of fact as to whether Hernandez's own actions were the sole cause of his injuries. See Hernandez, 2006 WL 563308, at *21. Thereafter, Pacific, the GAP and Advanced Handling each filed third-party complaints against Falcon alleging causes of action for common-law indemnity and contribution. See Third-Party Complaint, filed Dec. 26, 2006 (Docket # 110) ("Pacific Compl."), ¶¶ 21, 24, 28; Third-Party Complaint, filed Jan. 5, 2007 (Docket # 113) ("Advanced Handling Compl."), ¶¶ 21, 24, 28; Second Third-Party Complaint, filed Jan. 11, 2007 (Docket # 114) ("GAP Compl."), ¶¶ 16, 19. Falcon has filed the instant motion for summary judgment seeking to dismiss of all claims against it by the proposed indemnitees, and Pacific has cross-moved for summary judgment seeking an order requiring Falcon to indemnify it.*fn1
A. Summary Judgment Standard
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether a genuine issue of material fact exists, the evidence of the non- movant "is to be believed," and the court must draw all "justifiable" or "reasonable" inferences in favor of the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); accord Curry v. City of Syracuse, 316 F.3d 324, 333 (2d Cir. 2003) ("[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment. If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper") (citation omitted). "'[A]ll that is required [from a nonmoving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" McCellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)).
Nonetheless, the nonmoving party cannot defeat summary judgment by a factual argument based on "conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the nonmoving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48); accord Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (summary judgment "is appropriate ...