New York partner Ken McLellan and associate Gina Kim, won a motion for summary judgment on behalf of our client, a construction contractor, prior to depositions being held in a multi-party action involving a trip-and-fall accident. By extricating our client from the action early-on in the litigation, we were able to save our client and its carrier extensive litigation costs. In a recent decision handed down by Justice Kevin J. Kerrigan in the Supreme Court of the State of New York, Queens County, the Court rejected the Plaintiff’s attorneys’ standard, knee-jerk argument that our motion was premature. The Court reviewed our client’s detailed affidavit and documentation we submitted explaining that it did not perform any work at the location in question. We persuaded the Court to dismiss the action against our client without the need for costly and time-consuming depositions.
Our client is a construction contractor who contracted with a gas and electric utility in New York City to perform work restoring pavement and sidewalks excavated by the utility. The utility maintains a network of underground gas pipes and facilities including valve caps. Our contractor client has a blanket purchase agreement (“BPA”) with the utility to perform work requested by the utility. Our client’s BPA contains insurance procurement and indemnification provisions in the utility’s favor.
The Plaintiff claimed that she tripped in front of a specific address near the utility’s valve cap. Plaintiff’s counsel sued the utility, and the utility brought a third-party action against our contractor client based on theories of breach of contract, indemnification and negligence. The utility argued that our client worked near the accident scene, and so it was entitled to discovery before the Court considered dismissal. We submitted a detailed affidavit from the contractor’s Vice President explaining its workflow, and that the utility’s own records — an opening ticket and paving restoration order — demonstrated that our client performed restoration work near to but not directly in front of the accident location.
The utility, demanding that our client defend it, argued that the “duty to defend is greater than the duty to indemnify.” We responded that while that argument might apply to an insurer, it does not apply to our client, a private party to a contract, which is not an insurer. We relied on Bermudez v. NYCHA, 199 A.D.2d 356 (2nd Dep’t. 1993). Regarding the utility’s argument that our motion was premature, the Court cited Goldes v. The City of New York, 19 A.D.3d 448 (2nd Dep’t. 2005) in which the Appellate Division, Second Department reaffirmed the principle that “mere hope that evidence of affirmative negligence might be uncovered through the discovery process [is] insufficient to warrant denial of [a] motion for [summary judgment].”
We understand that for insurers, the only good claim is a closed claim. Here, we achieved our goal of closing this file with as little cost as possible, and as quickly as possible. Please contact us if we can help with specific questions about your case or scenario.
