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Poalacin v. Mall Props., Inc.

Supreme Court of New York, Second Department

November 15, 2017

Nelson Poalacin, appellant,
v.
Mall Properties, Inc., et al., defendants second/third third-party plaintiffs- respondents, Weather Champions, Ltd., defendant third-party plaintiff-respondent; APCO Insulation Co., Inc., et al., third-party/third third-party defendant-respondent, et al., second third-party defendant. (Appeal No. 1) Nelson Poalacin, appellant-respondent, Mall Properties, Inc., et al., defendants second/third third-party plaintiffs-respondents-appellants, Weather Champions, Ltd., defendant third-party plaintiff-respondent-appellant; APCO Insulation Co., Inc., third-party/third third-party defendant- respondent-appellant; Harleysville Insurance, second third-party defendant-respondent-appellant. (Appeal No. 2) Nelson Poalacin, appellant, Mall Properties, Inc., et al., defendants, Weather Champions, Ltd., respondent (and third-party actions). (Appeal No. 3) Greenberg Law P.C., New York, NY (Joshua Annenberg of counsel), for Nelson Index No. 700446/12

          Poalacin, appellant in Appeal Nos. 1 and 3 and appellant-respondent in Appeal No. 2.

          Farber Brocks & Zane, LLP, Garden City, NY (Tracy L. Frankel of counsel), for Mall Properties, Inc., KMO-361 Realty Associates, LLC, the Gap, Inc., and James Hunt Construction, defendants second/third third-party plaintiffs-respondents in Appeal No. 1 and defendants second/third third-party plaintiffs-respondents-appellants in Appeal No. 2.

          Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Patrick J. Lawless of counsel), for Weather Champions, Ltd., defendant third-party plaintiff-respondent in Appeal No. 1, defendant third-party plaintiff-respondent-appellant in Appeal No. 2, and respondent in Appeal No. 3.

          Perry, Van Etten, Rozanski & Primavera, LLP, Melville, NY (Elizabeth Gelfand Kastner of counsel), for APCO Insulation Co., Inc., third-party/third third-party defendant-respondent in Appeal No. 1 and third-party/third third-party defendant-respondent-appellant in Appeal No. 2.

          Milber Makris Plousadis & Seiden, LLP, Woodbury, NY (Lorin A. Donnelly of counsel), for Harleysville Insurance, second third-party defendant-respondent-appellant in Appeal No. 2.

          MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS-RADIX, FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         Appeals and cross appeals from three orders of the Supreme Court, Queens County (Allan B. Weiss, J.), dated October 1, 2014, January 23, 2015, and August 5, 2015, respectively. The plaintiff appeals from the order dated October 1, 2014, which denied his motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The plaintiff appeals from so much of the order dated January 23, 2015, as granted that branch of the motion of Mall Properties, Inc., KMO-361 Realty Associates, LLC, the Gap, Inc., and James Hunt Construction which was for summary judgment dismissing the complaint insofar as asserted against them. Mall Properties, Inc., KMO-361 Realty Associates, LLC, the Gap, Inc., and James Hunt Construction cross-appeal from so much of the order dated January 23, 2015, as (1) denied, as academic, those branches of their motion which were for summary judgment on their cross claims for contractual and common-law indemnification against Weather Champions, Ltd., (2) denied, as academic, that branch of their motion which was for summary judgment on their third-party cause of action against APCO Insulation Co., Inc., for common-law indemnification, (3) granted that branch of their motion which was for summary judgment on their third-party complaint against Harleysville Insurance only to the extent of declaring that Harleysville Insurance has a duty to defend James Hunt Construction and otherwise denied that branch of their motion, and (4) granted that branch of the cross motion of Harleysville Insurance which was for summary judgment dismissing the second third-party complaint and for a declaration in favor of Harleysville Insurance to the extent of declaring (a) that Harleysville Insurance had no duty to defend or indemnify Mall Properties, Inc., KMO-361 Realty Associates, LLC, or the Gap, Inc., and (b) that Harleysville Insurance had no duty to indemnify James Hunt Construction. Weather Champions, Ltd., separately cross-appeals from so much of the order dated January 23, 2015, as denied that branch of its separate motion which was for summary judgment on its third-party cause of action against APCO Insulation Co., Inc., for contractual indemnification. APCO Insulation Co., Inc., separately cross-appeals from so much of the order dated January 23, 2015, as made certain findings of fact and conclusions of law. Harleysville Insurance separately cross-appeals from so much of the order dated January 23, 2015, as (1) granted that branch of the motion of Mall Properties, Inc., KMO-361 Realty Associates, LLC, the Gap, Inc., and James Hunt Construction which was for summary judgment on the third-party complaint asserted against it to the extent of declaring that it has a duty to defend James Hunt Construction, and (2) denied that branch of its cross motion which was for summary judgment declaring that the policy of insurance issued by it was excess to a policy of insurance issued by the nonparty Netherlands Insurance Company. The plaintiff appeals from the order dated August 5, 2015, which granted the motion of Weather Champions, Ltd., for summary judgment dismissing the complaint insofar as asserted against it.

         ORDERED that the cross appeal by APCO Insulation Co., Inc., from the order dated January 23, 2015, is dismissed, as it is not aggrieved by the portion of that order cross-appealed from (see CPLR 5511; Mixon v TBV, Inc., 76 A.D.3d 144); and it is further, ORDERED that the order dated October 1, 2014, is reversed, on the law, and the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) is granted; and it is further, ORDERED that the order dated January 23, 2015, is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of Mall Properties, Inc., KMO-361 Realty Associates, LLC, the Gap, Inc., and James Hunt Construction which was for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying that branch of their motion, (2) by deleting the provision thereof denying, as academic, those branches of the motion of Mall Properties, Inc., KMO-361 Realty Associates, LLC, the Gap, Inc., and James Hunt Construction which were for summary judgment on their cross claims for contractual and common-law indemnification against Weather Champions, Ltd., and on their third-party cause of action against APCO Insulation Co., Inc., for common-law indemnification, and substituting therefor a provision denying those branches of the motion on the merits, (3) by deleting the provision thereof granting that branch of the motion of Mall Properties, Inc., KMO-361 Realty Associates, LLC, the Gap, Inc., and James Hunt Construction which was for summary judgment on their third-party complaint against Harleysville Insurance to the extent of declaring that Harleysville Insurance has a duty to defend James Hunt Construction, and substituting therefor a provision denying that branch of their motion, (4) by deleting the provision thereof granting that branch of the cross motion of Harleysville Insurance which was for summary judgment to the extent of declaring that it had no duty to indemnify Mall Properties, Inc., KMO-361 Realty Associates, LLC, the Gap, Inc., or James Hunt Construction, and substituting therefor a provision denying that branch of its cross motion, and (5) by deleting the provision thereof denying that branch of the cross motion of Harleysville Insurance which was for summary judgment declaring that the policy of insurance issued by it was excess to the policy of insurance issued by the nonparty Netherlands Insurance Company, and substituting therefor a provision granting that branch of its cross motion; as so modified, the order is affirmed insofar as cross-appealed from; and it is further, ORDERED that the order dated August 5, 2015, is reversed, on the law, and the motion of Weather Champions, Ltd., for summary judgment dismissing the complaint insofar as asserted against it is denied; and it is further, ORDERED that the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment making declarations in accordance herewith; and it is further, ORDERED that one bill of costs is awarded to the plaintiff, payable by Mall Properties, Inc., KMO-361 Realty Associates, LLC, the Gap, Inc., James Hunt Construction, and Weather Champions, Ltd., appearing separately and filing separate briefs, and one bill of costs is awarded to Harleysville Insurance, payable by Mall Properties, Inc., KMO-361 Realty Associates, LLC, the Gap, Inc., and James Hunt Construction.

         On November 26, 2011, the plaintiff was working at a retail property that was being refurbished. The property was owned and managed by Mall Properties, Inc. and KMO-361 Realty Associates, LLC, respectively, and leased by the Gap, Inc. James Hunt Construction (hereinafter James Hunt) served as the general contractor for the project. James Hunt hired Weather Champions, Ltd. (hereinafter Weather Champions), to install heating, ventilation, and air conditioning systems. Weather Champions, in turn, hired APCO Insulation Co., Inc. (hereinafter APCO), the plaintiff's employer, to insulate the HVAC duct work.

         The plaintiff allegedly sustained injuries when, in the course of performing duct work at the construction site, he fell off a ladder that was not stable. At his deposition, the plaintiff testified that as he applied tape to one of the ducts, he felt the ladder shake, and he lost his balance and fell to the ground. The plaintiff commenced this action against (1) Mall Properties, Inc., (2) KMO-361 Realty Associates, LLC, (3) the Gap, Inc., (4) James Hunt, and (5) Weather Champions. The first cause of action alleged common-law negligence and a violation of Labor Law § 200. The second cause of action alleged a violation of Labor Law § 240(1). The third cause of action alleged a violation of Labor Law § 241(6).

         In their respective answers, Mall Properties, Inc., KMO-361 Realty Associates, LLC, the Gap, Inc., and James Hunt (hereinafter collectively the Mall defendants) asserted cross claims against Weather Champions for contractual and common-law indemnification.

         Weather Champions commenced a third-party action against APCO, asserting causes of action to recover for contractual and common-law indemnification. It also asserted a breach of contract cause of action, alleging that APCO failed to procure insurance as required in a "Blanket Subcontractor Agreement."

         The Mall defendants commenced a third-party action against APCO. As relevant here, the Mall defendants alleged that they were entitled to common-law indemnification from APCO.

         In addition, the Mall defendants commenced a third-party action against Harleysville Insurance (hereinafter Harleysville), which had issued an insurance policy to Weather Champions. The Mall defendants sought a judgment declaring that Harleysville was required to "defend, indemnify and afford ...


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