Court Dismisses Plaintiff’s Labor Law §200 and Common Law Negligence Claims as to Owner and Awards Owner Summary Judgment Against Plaintiff’s Employer on its Breach of Contract and Contractual Indemnity Claims in Construction Accident Case

In a decision dated April 26, 2021, the Honorable Lucindo Suarez of Bronx County Supreme Court granted our client EIB Flatbush LLC’s (“EIB”) motion for summary judgment, seeking (i) dismissal of the plaintiff’s Labor Law §200 and common law negligence claims against it, (ii) judgment as against Blink Holdings, Inc. d/b/a Blink Fitness (“Blink”) for contractual indemnity, inclusive of attorneys’ fees, costs and expenses, (iii) judgment as against Blink for breach of contract for the failure to make its self-insured retention available to EIB, (iv) judgment as against Blink for breach of contract for the failure to procure insurance and (v) for dismissal of all cross-claims and counter-claims against EIB. The plaintiff, an employee of third-party defendant, Atlantic State Development (“ASD”), was injured while supervising the unloading of a shipment of vinyl tiles to be used in connection with the fit out of the Blink gym located at 833 Flatbush Avenue. EIB was the owner of the premises and it leased the entire second floor and a portion of the first floor to Blink. Blink retained ASD to act as the general contractor in connection with the renovation of its leasehold. Pursuant to the terms of the lease, Blink was required to indemnify EIB for any claims “arising, directly or indirectly, out of from or on account of any occurrence in, at, upon or from the Demised Premises or occasioned wholly or in part through the use and occupancy of the Demised Premises by [Blink].” Blink contended that because the accident occurred in the street, where the truck making the delivery had parked, its indemnification obligations were not triggered. We argued that Blink’s interpretation of the indemnification provision was overly narrow and that, pursuant to the terms of the lease, EIB was entitled to indemnification because at the time of the accident the plaintiff was working on the build out of Blink’s leasehold for which Blink had been retained by contract. Therefore, the alleged accident clearly “arose out of” and was “occasioned by” Blink’s use and occupancy of the premises, thereby triggering its indemnity obligations. In terms of EIB’s breach of contract claim against Blink, we argued that Blink breached its obligations under the lease both because it refused to make its $250,000 self-insured retention available to EIB and because it obtained $1 million in commercial general liability coverage and $25 million in excess coverage as opposed to the $5 million in commercial general liability coverage required by the lease. The Court agreed with the arguments set forth in our motion dismissing the plaintiff’s Labor Law §200 and common law negligence claims against EIB, granting judgment in EIB’s favor on its breach of contract claim against Blink and awarding it unconditional contractual indemnity, inclusive of attorney’s fees, costs and expenses from Blink.

Nicholas Uzzilia v. Jo-Tone Carpet, Inc. et al., Index No. 23858/2016E (Sup. Ct. Bronx Co. Apr. 16, 2021)

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This post was written by Sander Rothchild