ADDITIONAL CASES Tutor Perini Company, Tutor Perini Constructing Corp., Tutor Perini Civil, 5 Star Elecric Corp., WDF Inc., URS Company-New York Plaintiffs v. Medcor, Inc. Defendants; Third-Occasion 595298/2024 The next e-filed paperwork, listed by NYSCEF doc quantity (Movement 001) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 had been learn on this movement to/for DISMISS. DECISION + ORDER ON MOTION On this motion by first-party plaintiffs to get better for damages allegedly sustained by Heather Lara (“Lara” or “First-Occasion Plaintiff”), third-party defendant Medcor, Inc. (“Medcor”, “Movant”, or “Third-Occasion Defendant”) strikes, pursuant to CPLR 3211(a)(1), (a)(3), and (a)(7) to dismiss the third-party motion filed towards it by Tutor Perini Company, Tutor Perini Constructing Corp., Tutor Perini Civil, 5 Star Electrical Corp., WDF Inc., AECOM, and URS Company-New York (collectively the “Tutor Perini Defendants” or “Third-Occasion Plaintiffs”). Third-Occasion Defendant strikes pursuant to Civil Apply Regulation and Guidelines (“CPLR”) 3211(a)(1), (3), and (7). Third-Occasion Plaintiffs oppose the movement. For the explanations set forth herein, the defendants’ movement is granted partially and denied partially. On August 18, 2021, at roughly 9:45 P.M., Lara was allegedly injured in a slip-and-fall incident that occurred at or round an MTA East Facet Entry development undertaking situated underground at or round 40 East 52nd Road in New York County (the “Undertaking”). First-Occasion Plaintiff alleged that the Metropolitan Transportation Authority (“MTA”) had contracted with a number of of the Tutor Perini Defendants to offer work, labor, providers, and materials on the Undertaking, and that the Tutor Perini Defendants had in flip contracted with Plaintiff’s employer, Medcor Inc. (“Medcor”), to offer numerous on-site medical providers for that Undertaking. First-Occasion Plaintiff alleged that she was injured whereas performing medical work, labor, and/or providers on the Undertaking pursuant to her employment with Medcor. The Tutor Perini Defendants collectively filed a Verified Reply to the Amended Criticism (NYSCEF Doc. No. 29) and subsequently filed a Third-Occasion Summons and Criticism towards Medcor (NYSCEF Doc. No. 33). Of their Summons and Criticism towards Medcor, Third-Occasion Plaintiffs alleged that the MTA had contracted with the varied Tutor Perini Defendants to carry out work as contractor(s), advisor(s), and subcontractor(s) on the Undertaking previous to the date of First-Occasion Plaintiff’s alleged accident. Third-Occasion Plaintiffs alleged that they had been enrolled within the MTA’s Proprietor Managed Insurance coverage Program (OCIP) by way of which the MTA furnished insurance coverage protection with respect to on-site actions for the Undertaking. Third-Occasion Plaintiffs additionally produced a Vendor Settlement (hereinafter the “Settlement”) purportedly between Medcor and one other entity, Willis of New York, Inc. (“Willis”). NYSCEF Doc. No. 36. Willis is just not a celebration to this motion. Third-Occasion Plaintiffs alleged that Willis had contracted with Medcor on or earlier than August 18, 2021, on behalf of the MTA for Medcor to offer sure occupational well being providers on the Undertaking and to acquire insurance coverage thereof pursuant to the OCIP. Third-Occasion Plaintiffs alleged that Medcor expressly contracted to defend, indemnify, and maintain innocent the MTA and the Third-Occasion Plaintiffs towards any and all claims, fits, damages, losses, or bills from accidents occurring on the Undertaking, together with the First-Occasion Plaintiff’s alleged harm. Third-Occasion Plaintiffs pled 4 causes of motion towards Medcor: (1) contractual indemnification, primarily based on their interpretation of the Settlement; (2) contribution, for Medcor’s proportional share of legal responsibility for Plaintiff’s alleged accidents; (3) widespread regulation indemnification, to the extent that Plaintiff’s accidents had been attributable to Medcor’s personal negligence, wrongful or culpable conduct, or acts and/or omissions; and (4) breach of contract, for Medcor’s purported failure to acquire the insurance coverage required by the Settlement, to call the Tutor Perini Defendants as further insureds, and different alleged violations. Medcor filed a pre-Reply Discover of Movement to Dismiss the Third-Occasion Criticism (NYSCEF Doc. No. 38) searching for dismissal of all claims with prejudice pursuant to CPLR 3211(a)(1), 3211(a)(3), and 3211(a)(7); for prices and sanctions towards the Third-Occasion Plaintiffs for submitting a frivolous and legally meritless litigation pursuant to 22 NYCRR 1301.1 and CPLR 8303-A; and for such different, additional, and totally different reduction because the Court docket deems simply and correct. Movant additionally filed the next papers in help of this movement: a Memorandum of Regulation in Help (NYSCEF Doc. No. 39); an Affidavit by Medcor’s Chief Working Officer Bennet W. Petersen (NYSCEF Doc. No. 40); a functionally equivalent copy of the Settlement produced by the Third-Occasion Plaintiff (NYSCEF Doc. No. 41); a duplicate of Medcor’s incident report regarding Plaintiff’s alleged accident (NYSCEF Doc. No. 42); and an Lawyer Affidavit in Help of their movement (NYSCEF Doc. No. 43). Defendants/Third-Occasion Plaintiffs subsequently filed an Affirmation in Opposition to Medcor’s Movement (NYSCEF Doc. No. 47) and Medcor then filed an Affirmation in Reply on Might 24, 2024 (NYSCEF Doc. No. 49). CPLR 3211 supplies, in related half, that “a celebration might transfer for judgment dismissing a number of causes of motion asserted towards him on the bottom that: 1. A protection is based upon documentary proof; or…2. The celebration asserting the reason for motion has not authorized capability to sue; or…7. the pleading fails to state a reason behind motion”. “Within the posture of [a] CPLR 3211 movement to dismiss, our activity is to find out whether or not plaintiffs’ pleadings state a reason behind motion. The movement have to be denied if from the pleadings’ 4 corners factual allegations are discerned which taken collectively manifest any reason behind motion cognizable at regulation.” 511 West 232nd House owners Corp. v. Jennifer Realty Co., 98 N.Y.second 144, 151-52 (N.Y. 2002), citing Polonetsky v. Higher Properties Depot, Inc., 97 N.Y.second 46, 55 (N.Y. 2001). On a movement to dismiss pursuant to any provision of CPLR §3211, the courtroom should settle for all information as alleged within the grievance as true and grant the plaintiff the good thing about each doable favorable inference, and restrict itself to find out solely whether or not the information as alleged match any cognizable authorized principle. Leon v. Martinez, 84 N.Y.second 83, 87-88 (N.Y. 1994); see additionally Monroe v. Monroe, 50 N.Y.second 481, 484 (N.Y. 1980). Requests to disclaim a movement to dismiss in an effort to full discovery and procure enough proof essential to make particular factual allegations ought to be rejected by the Court docket. See Chappo & Co. v. Ion Geophysical Corp., 83 A.D.3d 499, 500 (N.Y. App. Div. 1st Dept. 2011), citing Devore v. Pfizer, 58 A.D.3d 138, 144 (N.Y. App. Div. 1st Dept. 2008) (“Plaintiff’s won’t be allowed to make use of pretrial discovery as a fishing expedition after they can not set forth a dependable factual foundation for what quantities to, at finest, mere suspicions”). To prevail on a movement to dismiss introduced underneath CPLR §3211(a)(1), the “documentary proof submitted [must] conclusively set up[] a protection to the asserted claims as a matter of regulation.” Spoleta Development, LLC v. Aspen Insurance coverage UK Ltd., 27 N.Y.3d 933, 935 (N.Y. 2016); see additionally Beal Sav. Financial institution v. Sommer, 8 N.Y.3d 318, 324 (N.Y. 2007) (affirming on enchantment from the First Division); Leon v. Martinez, 84 N.Y.second at 88; Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.second 314, 326 (N.Y. 2002). “A movement to dismiss pursuant to CPLR 3211(a)(1) will probably be granted provided that the ‘documentary proof resolves all factual points as a matter of regulation, and conclusively disposes of the plaintiff’s declare’.” J.A. Lee Elec., Inc. v. Metropolis of N.Y., 990 N.Y.S.second 223, 225 (N.Y. App. Div. 2nd Dept. 2014), citing Fontanetta v. John Doe, 73 A.D.3d 78, 83-84 (N.Y. App. Div. 2nd Dept. 2010) (quoting Fortis Monetary Companies, LLC v. Fimat Futures USA, Inc., 290 A.D.second 383 (N.Y. App. Div. 1st Dept. 2002). A plaintiff’s bare-bones or conclusory allegations won’t survive a movement to dismiss. Farage v. Related Ins. Mgmt. Corp., 2024 N.Y. Slip Op. 5875 (N.Y. 2024) (discovering that plaintiff made “patently conclusory” allegations and didn’t allege enough, particular information to boost a query of truth enough to outlive the movement to dismiss); Hefter v. Elderserve Well being, Inc., No. 2013-09706, 2 (N.Y. App. Div. 2nd Dept. 2015) (“Right here, the plaintiff’s naked and conclusory allegation within the grievance…which was unsupported by any element allegations…is inadequate”). “To qualify as ‘documentary,’ the paper’s content material have to be “‘primarily plain and…, assuming the verity of [the paper] and the validity of its execution, will itself help the bottom on which the movement is predicated. (Neither the affidavit nor the deposition can ordinarily qualify underneath such a take a look at)”. Amsterdam Hospitality Group, LLC v. Marshall-Alan Associates, Inc., 992 N.Y.S.second 2, 4 (N.Y. App. Div. 1st Dept. 2014) (quoting David D. Siegel, Apply Commentaries, McKinney’s Cons Legal guidelines of N.Y., E-book 7B, CPLR C3211:10 at 22). As a basic rule, affidavits usually are not documentary proof inside the scope of CPLR §3211(a). See, e.g. Fontanetta v. John Doe, 73 A.D.3d at 87, citing Tsimerman v. Janoff, 40 A.D.3d 242 (N.Y. App. Div. 1st Dept. 2007) (“These affidavits, which do not more than assert the inaccuracy of plaintiffs’ allegations, is probably not thought of, within the context of a movement to dismiss, for the aim of figuring out whether or not there’s evidentiary help for the grievance”); Artwork & Style Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d 436 (1st Dept, 2014) (citing similar). “Whereas affidavits could also be thought of…they’re usually supposed to treatment pleading defects and to not provide evidentiary help for correctly pleaded claims.” Nonnon v. Metropolis of New York, 9 N.Y.3d 825, 827 (N.Y. 2007), citing Rovello v. Orofino Realty Co., 40 N.Y.second 633, 635-636 (N.Y. 1979). “In accordance with well-established guidelines of contract interpretation, when events set down their settlement in a transparent, full doc, their writing ought to as a rule be enforced in keeping with its phrases.” Ashwood Capital, Inc. v. OTG Administration, Inc., 948 N.Y.S.second 292, 297 (N.Y. App. Div. 1st Dept. 2012), citing W.W.W. Assocs v. Giancontieri, 77 N.Y.2D 157, 162 (N.Y. 1990). In instances the place industrial contracts are negotiated at arm’s size by refined businesspeople, “courts ought to be extraordinarily reluctant to interpret an settlement as impliedly stating one thing which the events have uncared for to particularly embody.” Ashwood Capital, Inc., 948 N.Y.S.second at 297, citing Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475 (N.Y. 2004). “Development of an unambiguous contract is a matter of regulation, and the intention of the events could also be gathered from the 4 corners of the instrument and ought to be enforced in keeping with its phrases.” Beal Sav. Financial institution v. Sommer, 8 N.Y.second at 324 (inner citations omitted). “The perfect proof of what events to a written settlement intend is what they are saying of their writing.” Slamow v. Del Col, 79 B.Y.second 1016, 1018 (N.Y. 1992). “Unambiguous contracts that may be interpreted solely in a single method would be the foundation for a dismissal pursuant to CPLR 3211(a)(1).” Farage v. Related Ins. Mgmt. Corp., 2024 N.Y. Slip Op. 5875 (N.Y. 2024), quoting Goldman v. Metropolitan Life, 5 N.Y.3d 561, 571 (N.Y. 2005) (holding that the Appellate Division correctly held that the contracts might solely be interpreted to grant dismissal). When elevating questions of standing underneath CPLR §3211(a)(3), the burden is on the movant to determine, prima facie, the plaintiff’s lack of standing as a matter of regulation. Wilmington Sav. Fund Soc’y v. Matamoro, 200 A.D.3d 79, 90 (N.Y. App. Div. 2nd Dept. 2021); see additionally Brunner v. Property of Lax, 137 A.D.3d 553 (N.Y. App. Div. 1st Dept. 2016). “To defeat a defendant’s movement to dismiss, the plaintiff has no burden of creating its standing as a matter of regulation, however should merely elevate a query of truth as to the difficulty.” Wilmington Sav. Fund Soc’y v. Matamoro, 200 A.D.3d 79, 90 (N.Y. App. Div. 1st Dept. 2021). “A non-party to a contract ruled by New York regulation lacks standing to implement the settlement within the absence of phrases that ‘clearly proof an intent to allow enforcement by the third celebration’ in query.” Rynasko v. N.Y. Univ., 63 F.4th 186, 194 (second Cir. 2023) (immediately addressing New York regulation), citing Premium Mortg. Corp. v. Equifax, Inc., 583 F.3d 103, 108 (second Cir. 2009) (quoting Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.second 38, 45, [1985]). A CPLR 3211(a)(7) movement could also be used to “get rid of an motion during which the plaintiff recognized a cognizable reason behind motion however failed to claim a cloth allegation essential to help the reason for motion.” Foundation Yield Alpha Fund v. Goldman Sachs Grp., Inc., 980 N.Y.S.second 21, 26 (N.Y. App. Div. 1st Dept. 2014), citing Rovello v. Orofino Realty Co., 40 N.Y.second 633, 635-636 (N.Y. 1976); see additionally Board of Managers of Fairways at N. Hills Condominiums v. Fairways at N. Hills, 150 A.D.second 32 (N.Y. App. Div. 2nd Dept. 1989). As with CPLR 3211(a)(1), the Court docket should “settle for the information as alleged within the grievance as true, accord plaintiff[ ] the good thing about each doable favorable inference, and decide solely whether or not the information as alleged match inside any cognizable authorized principle.” Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141 (N.Y. 2017), citing Leon v. Martinez, 84 N.Y.second at 87-88. “On the similar time, nonetheless, allegations consisting of naked authorized conclusions…usually are not entitled to any such consideration.” Id., citing Simkin v. Clean, 19 N.Y.3d 46, 52 (N.Y. 2012); see additionally Ikezi v. 82nd St. Teachers, 221 A.D.3d 986, 988 (N.Y. App. Div. 2nd Dept. 2023) (Affirming dismissal the place “naked and conclusory allegations didn’t establish any particular misrepresentation of fabric current truth made by any defendant”). On a movement introduced underneath this subsection, the courtroom finally should decide whether or not the pleading celebration has a reason behind motion primarily based on the information alleged, and never whether or not they have said one. Leon v. Martinez, 84 N.Y.second at 88, citing Rovello v. Orofino Realty Co., 40 N.Y.second 633, 635-636 (N.Y. 1976); see additionally Sokol v. Chief, 74 A.D.3d 1180 (second Dept 2010). As such, dismissal underneath CPLR §3211(a)(7) is warranted provided that the plaintiff “failed to claim information in help of a component of the declare, or if the factual allegations and inferences to be drawn from them don’t enable for an enforceable proper of restoration.” Audthan LLC v. Nick & Duke, LLC, 2024 N.Y. Slip Op. 2223, (N.Y. 2024), citing Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141 (2017). As a threshold matter, Third-Occasion Plaintiffs argued that the movement to dismiss is untimely, as no depositions had been held they usually “have but to uncover the information and circumstances main as much as or contributing to Lara’s incident.” (NYSCEF Doc. No. 47 10). Third-Occasion Plaintiffs additional argued that they’re “entitled to look at whether or not MEDCOR’s skilled negligence, errors or omissions together with its supervision or lack thereof of its worker occasioned Lara’s incident.” Id. Third-Occasion Plaintiffs rely totally on a Second Division Appellate Division case to help their argument that the moment movement ought to be denied as a result of they’re entitled to discovery (NYSCEF Doc. No. 47 17). James v. Plane Serv. Intl Group, 84 AD.3d 1026, 1027 (second Dept, 2011) (affirming “underneath the circumstances of this case” an order denying a movement for abstract judgment to dismiss till after completion of discovery pursuant to CPLR 3212[f]). Nonetheless, the circumstances of the James case may be distinguished from the moment matter: the movement earlier than this Court docket was formally made as a movement to dismiss pursuant to CPLR 3211, not a movement for abstract judgment pursuant to CPLR 3212 (NYSCEF Doc. No. 38). Whereas the Court docket should “decide solely whether or not the information as alleged match inside any cognizable authorized principle” when adjudicating a CPLR 3211 movement, per Leon v. Martinez, 784 N.Y.second at 87-88, a CPLR 3212 movement for abstract judgment “seeks a willpower that there aren’t any materials problems with truth for trial” and “assumes a whole evidentiary document.” Nonnon v. Metropolis of New York, 9 N.Y.3d 825, 827 (N.Y. 2007) (refusing to transform movement the place plaintiffs counsel that “they haven’t had the chance to submit all of their proof related to a willpower of causation”). A courtroom might convert a CPLR 3211 movement to a CPLR 3212 movement “after satisfactory discover to the events,” (CPLR 3212[c]), however such conversion is inappropriate “the place a movement for abstract judgment can be untimely” as a consequence of an incomplete factual document. Russo v. Crisona, 219 A.D.3d 920, 921 (N.Y. App. Div. 2nd Dept. 2023), citing Menche v. CDx Diagnostics, Inc., 199 A.D.3d 678; see additionally CPLR 3212(f). Judicial conversion of a CPLR 3211 movement right into a CPLR 3212 movement is just acceptable the place the events are “placed on discover of their obligation to make a whole document and to come back ahead with any proof that might probably be thought of.” See Nonnon, 9 N.Y.3d at 827; see additionally Russo v. Crisona, 219 A.D.3D at 921-922. The Court docket acknowledges that many arguments made by each events relied on the conflation of CPLR 3211 and CPLR 3212. For instance, the Third-Occasion Defendant relied on Espinal v. Melville Snow Contractors, Inc., 98 N.Y.second 136 (N.Y. 2002) to argue that the declare for contractual indemnification have to be dismissed (NYSCEF Doc. No. 39) and Third-Occasion Plaintiff cited quite a few instances arguing particularly towards a grant of abstract judgment (NYSCEF Doc. No. 47
13-16). Nonetheless, the pre-Reply movement was initially filed underneath CPLR §3211 and, as Third-Occasion Plaintiffs repeatedly argue, no discovery has been exchanged. Based mostly on these components the Court docket won’t sua sponte convert the moment movement to a abstract judgment one. The Court docket will thereby restrict its evaluation to CPLR §3211 and contemplate solely whether or not the Third-Occasion Plaintiff correctly pled its claims towards Third-Occasion Defendant. Movant produced a duplicate of an Affidavit signed by Bennet W. Petersen, Chief Working Officer of Medcor, Inc. (NYSCEF Doc. No. 40). As Affidavits usually are not thought of “documentary proof” inside the scope of a CPLR §3211(a) movement to dismiss, the Court docket won’t contemplate it at size past its function as a automobile to introduce documentary proof to the Court docket for the needs of this movement: On a movement, the one doable manner that documentary proof may be submitted to the courtroom is by the use of affidavit. Thus, an affidavit from a person, even when the particular person has no private data of the information, might correctly function the automobile for the submission of acceptable attachments which give evidentiary proof in admissible kind, like documentary proof. In such conditions, the affidavit itself is just not thought of proof; it merely serves as a automobile to introduce documentary proof to the courtroom. Foundation Yield Alpha Fund v. Goldman Sachs Grp., Inc., 980 N.Y.S.second 21, 27 n.4 (N.Y. App. Div. 2014). Each the Third-Occasion Plaintiffs and the Third-Occasion Defendant produced functionally equivalent copies of the Settlement between Medcor and Willis. (NYSCEF Doc. Nos. 36, 41). Each events asserted that the Settlement as introduced was in impact as of the time of Plaintiff’s alleged accidents. (NYSCEF Doc. No. 33 24; NYSCEF Doc. No. 43 9-10). As such, the Court docket will settle for for the needs of this Movement that the Settlement earlier than it was in impact and can proceed with deciphering the plain textual content to find out the intent of the events concerned. Amongst different provisions, the Settlement identifies Medcor’s function and scope of labor at 2, Position of “Vendor”, which states that the Settlement is for Medcor to “present the providers and preserve the charges” that had been outlined in a earlier doc and recognized “as described on Schedule A herein.” The Settlement additional accommodates a clause titled Indemnification at 7, which states in most related half: However something on the contrary herein, The “Vendor” shall defend, indemnify and maintain innocent Willis of New York, Inc. (“Willis”), the Metropolitan Transportation Authority (“Shopper”)…and all different events concerned within the East Facet Entry Undertaking, and their respective officers, brokers and staff from any declare, fits, loss or legal responsibility by cause of any harm to property or bodily harm of dying to any particular person, in any respect, arising out of or in reference to “Vendor’s” breach of this contract besides damages arising from the negligence of “Willis”, the “Shopper” and different events to the Undertaking. “Vendor”, shall additional defend, indemnify and maintain innocent “Willis”, “Shopper”…and different events concerned within the Undertaking and their respective officers, brokers and staff from and towards any and all claims, fits, loss, price and liabilities of each description introduced towards any of them or suffered by any of them and arising out of any skilled negligence or errors, or omissions of the “Vendor”, pertaining to providers by the “Vendor” carried out pursuant to this Contract. The Settlement additionally accommodates an Insurance coverage clause at 8, which states that Medcor is obligated “[a]t its sole price and expense” to “procure and preserve throughout your complete interval of labor coated hereunder” Employees’ Compensation insurance coverage, Business Basic Legal responsibility, Property Harm Legal responsibility, and Malpractice/Errors and Omission Safety. That clause specifies that these insurances “have to be written in a kind and written by an insurer passable to Willis” and that Medcor “shall furnish proof to Willis” of these coverages. Neither this part nor every other part of the Settlement addresses naming any entity as an “further insured”. Additional, the Settlement additional states in a “Basic” clause at 11 that “This Settlement is probably not modified or modified besides in writing signed by each events” and that “This Settlement replaces and supersedes all earlier agreements, written or oral, which can have existed between the events. It constitutes the complete settlement of the events.” Lastly, a Schedule “A” is affixed to the Settlement which identifies the scope of Medcor’s work, which specifies inter alia that Medcor is chargeable for “for the lifetime of the undertaking” a wide range of providers (subsection 4), in addition to the next merchandise: “e. Help undertaking administration with occupational security as requested.” There may be additionally an annexed Vendor Settlement Extension which expands the scope of Medcor’s contracted-for medical and associated providers to the Grand Central Station location at which First-Occasion Plaintiff was allegedly injured. Lastly, Movant produced a doc purporting to be the Medcor Incident Report for First-Occasion Plaintiff’s alleged harm. (NYSCEF Doc. No. 42). The Incident Report identifies First-Occasion Plaintiff by title and accommodates different redacted Personally Figuring out Data. Therein, First-Occasion Plaintiff’s harm is described as having been attributable to a “Slip/Fall/Journey” occurring at 21:45 ET on August 18, 2021. The Incident Report doesn’t state the place the alleged incident occurred. No witnesses had been recognized. The Incident Report is famous to have been printed on August 18, 2021, at 23:50 CST. The Incident Report doesn’t bear a signature nor title the person who accomplished the report. In most related half, the Incident Report states that the First-Occasion Plaintiff “alleged about 2 hours and 40 minutes in the past she was strolling to the security workplace underground on uneven floor when she misplaced her stability and fell.” The Incident Report continues to explain First-Occasion Plaintiff’s alleged accidents and the fast medical penalties thereof. Third-Occasion Plaintiffs plead a reason behind motion towards Third-Occasion Defendant Medcor for contractual indemnification. The Third-Occasion Criticism alleged that “any and all damages and/or accidents sustained by [First-Party] Plaintiff had been attributable to the recklessness, carelessness, negligence or different culpability of MEDCOR, and/or their brokers, servants, and/or staff within the supervision and management of their worksite and/or staff contributing thereto” (NYSCEF Doc. No. 33 34) and that “[First-Party] Plaintiff’s damages, if any, resulted from and/or arose out of MEDCOR’s efficiency of the work that’s the topic of the MEDCOR contract.” (Id. at 35). Third-Occasion Defendant argued that Medcor’s indemnification obligations underneath the Settlement might have solely been triggered by both a breach of contract or by skilled negligence by Medcor. Movant alleged that no such breach nor negligence occurred and, counting on the Petersen Affidavit, argued that no breach of contract nor skilled negligence might have contributed to First-Occasion Plaintiff’s harm, as a result of Medcor’s scope of labor didn’t embody any accountability for the development or upkeep of the realm during which First-Occasion Plaintiff allegedly fell. (NYSCEF Doc. Nos. 39 p.7-8, 40
