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Crave Foods Inc. v. Rapetti Rigging Services Inc.

Supreme Court, New York County

November 26, 2013

Crave Foods Inc. D/B/A CRAVE CEVICHE RESTAURANT, Plaintiff,
v.
Rapetti Rigging Services Inc., EAST 51st STREET DEVELOPMENT COMPANY, LLC, RELIANCE CONSTRUCTION GROUP, RCG GROUP, INC., JOY CONTRACTORS, NEW YORK CRANE & EQUIPMENT, STROH ENGINEERING SERVICES, P.C., NEW YORK CITY DEPARTMENT OF BUILDINGS, THE CITY OF NEW YORK, JAMES DELAYO, EDWARD MARQUETTE, AND MICHAEL CARBONE, Defendants.

Unpublished Opinion

Daniel Franklin for East 51st Street O'MELVENY & MYERS LLP

Glenn J. Fuerth for New York Crane Wilson, Elser, Moskowitz, Edelman & Dicker

ROBERT D MARTIN for Favelle Favco KRAL, CLERKIN, REDMOND, RYAN, PERRY & VAN ETTEN LLP

RICHARD A HARRIS for Brady Marine LAW OFFICES OF Andrea G. Sawyers

Howard Klar and Cindy Yu for RCG Gallo Vitucci & Klar

DAVID S SMITH for Greater New York Mutual Insurance GWERTZMAN LEFKOWITZ & BURMAN

HARTLEY T BERNSTEIN for Plaintiff Richard Solomon Bernstein Cherney LLP

ROBERT E GODOSKY for Plaintiff John D. LaGreco GODOSKY & GENTILE P.C.

ROBERT C SHEPS for Everest Reinsurance Company SHEPS LAW GROUP, P.C.

Carol Robinson Edmead, J.

In this multi-party litigation, defendant East 51st Street Development Company, LLC ("East 51st Street") moves for partial summary judgment against its co-defendants Reliance Construction Group d/b/a RCG Group, Inc. ("RCG") and Joy Contractors ("Joy") for contractual indemnification.

Factual Background

This action arises from the March 15, 2008 crane collapse accident during the construction of a high-rise building in Manhattan, which caused seven fatalities, serious injuries to many individuals, and multi-million dollars in property damage. The accident allegedly occurred when, during the process of jumping (extending the height of) the crane, the slings supporting the collar and tie-beams broke, causing the collar to fall and the crane to collapse.

In support of its motion for indemnification, East 51st Street, the owner of the construction site, argues that it was merely a passive developer in the construction project and that discovery thus far fails to demonstrate any negligence on its part for the accident. Thus, in light of this Court's previous determination that the indemnification provisions of RCG's and Joy's contracts were triggered, East 51st Street contends that summary judgment is warranted.

According to James Kennelly ("Kennelly"), one of East 51st Street's principals, East 51st Street engaged RCG as construction manager for the project in March 2007 pursuant to an "Early Start Construction Management Agreement" ("ESCMA"). [1]

In July 2007, RCG retained Joy pursuant to a contract for "Excavation, Rock Removal, Sheeting and Shoring, Underpinning, Dewatering, Rock Anchors, Foundation and Rebar Work" (the "Initial Joy Contract") to complete the work previously started but not completed by third-party defendant Civetta Cousins JV LLC (which was hired by East 51st Street's previous construction manager KBF). Although East 51st Street co-signed the Initial Joy Contract, RCG was allegedly responsible for supervising Joy's work at the site.

East 51st Street and RCG then entered into the "Construction Management Agreement" ("Initial CMA") in August 2007 to expand RCG's role at the site.

Thereafter in October 2007, RCG and Joy entered into a "Trade Contract" for Joy to provide labor and supervision necessary to erect the superstructure at the site.

In the Fall of 2007, Joy hired defendant Stroh Engineering Services, P.C. ("Stroh") to draft engineering plans for a tower crane at the site. East 51st Street contends that Stroh designed the tower crane installation such that the base of the crane was to rest on top of steel beams without being secured to those beams or to the ground. In connection with obtaining permits for the crane at the site, Joy and Stroh submitted the plan to RCG, and RCG approved the plan. Stroh also submitted the plans to the New York City Department of Buildings ("DOB"), which approved the plans.

Joy also hired third-party defendant C.S. Mechanical & Equipment Corporation ("CS Mechanical") to fabricate the tie-beams and steel dunnage called for by Stroh's design. The tie-beams secured the crane's tower section to the superstructure and the dunnage was located under the crane ...


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