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Manhattan and Bronx Surface Transit Authority (MABSTOA)….cont

JCI’s contention that there are issues of fact as to the MTA defendants’ negligence is unpersuasive. Although JCI contends that the MTA defendants had the authority to stop work, the authority to stop work for safety reasons is insufficient to raise a triable issue of fact as to a defendant’s supervision and control of the work. While JCI points out that MTA representatives were present in the fan plant at the time the conduit was being hoisted, monitoring and oversight of the timing and quality of the work, mere presence on the job site, and a general duty to ensure compliance with safety regulations, are insufficient to impose liability in common-law negligence. Moreover, liability does not attach to an owner where it has notice of the unsafe manner in which the work is being performed. Thus, the City is entitled to contractual indemnification, including attorneys’ fees, from JCI.

The MTA defendants also seek common-law indemnification from JCI. As noted previously, the City has been held vicariously liable under Labor Law § 240 (1), and there is no evidence of negligence on its part. In addition, it is undisputed that JCI actually supervised and controlled his work on the date of his injury. JCI also does not dispute that JF suffered a grave injury. Accordingly, the City is also entitled to common-law indemnification from JCI.

The MTA defendants also seek summary judgment dismissing the complaint as to MABSTOA. JF has not opposed this branch of the motion. MABSTOA was created pursuant to Public Authorities Law § 1203-a (2). Pursuant to Public Authorities Law § 1203-a (1), MABSTOA was not given the authority to construct, reconstruct, improve, maintain and operate any transit facility. The MTA defendants submit an affidavit from Kothari, which states that MABSTOA is a subsidiary of NYCTA whose sole area of responsibility is the operation of certain bus lines in Manhattan and the Bronx; it had no involvement in this project. Therefore, the complaint is dismissed as against MABSTOA.

Accordingly, it is hereby ORDERED that the motion (sequence number 005) of plaintiff JF for partial summary judgment is granted on the issue of liability under Labor Law § 240 (1) as against defendant City of New York, and the motion is otherwise denied; and it is further ORDERED that the motion of defendant/second third-party plaintiff FS Electric Corp. is granted as follows: (1) the complaint is dismissed as against FS Electric Corp., sued herein as defendant FS Contracting Co., (2) third-party defendant JCI’s cross claims for common-law indemnification and contribution are dismissed against defendant/second third-party plaintiff FS Electric Corp., (3) the cross claims of defendants/third-party plaintiffs The City of New York, MTA/New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, and MTA Capital Construction Company as against FS Electric Corp. are converted into third-party claims, and (4) the caption is amended to delete second third-party defendant NEI from the caption, and the motion is otherwise denied; and it is further ORDERED that the motion of third-party defendant JCI for leave to amend its answer to the third-party complaint to assert cross claims for contractual indemnification and failure to procure injury insurance against FS Electric Corp. is granted, and the proposed amended verified answer annexed to the moving papers shall be deemed served upon service of a copy of this order with notice of entry; and it is further ORDERED that the motion of second third-party defendant EEI Electric, Inc. for summary judgment is denied; and it is further ORDERED that the cross motion of defendant/second third-party defendant FS Electric Corp. for conditional contractual indemnification against second third-party defendant EEI Electric, Inc. is denied; and it is further ORDERED that the motion of defendants/third-party plaintiffs The City of New York, MTA/New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, and MTA Capital Construction Company is granted as follows: (1) the complaint is severed and dismissed as against defendant Manhattan and Bronx Surface Transit Operating Authority, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to judgment in favor of defendant Manhattan and Bronx Surface Transit Operating Authority accordingly; (2) defendant/third-party plaintiff City of New York is granted summary judgment as to liability in its favor on its claims for contractual indemnification and common-law indemnification, including reasonable attorneys’ and medical fees, against third-party defendant JCI, and the motion is otherwise denied.

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