SHORT FORM ORDER
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK : CIVIL TERM : PART 13
`
`PRESENT : HON. MANUEL J. MENDEZ
`Justice
`________________________________________________________________________X
`
`IN RE 91ST STREET CRANE COLLAPSE LITIGATION:
`________________________________________________________________________X
`JACK RIZZOCASIO,
`
`Plaintiff,
`
`-against—
`
`THE CITY OF NEW YORK, 1765 FIRST ASSOCIATES,
`LLC, MATTONE GROUP CONSTRUCTION CO., LTD.,
`DEMATTEIS CONSTRUCTION, LEON D. DEMATTEIS
`CONSTRUCTION CORPORATION, and NEW YORK
`
`CRANE & EQUIPMENT CORP,
`
`________________________________________________________________________X
`
`1765 FIRST ASSOCIATES, LLC,
`
`Defendants.
`
`Index No. 108088/2009
`Motion Seq. No. 007
`
`Fifth Third—Party Plaintiff,
`
`Fifth Third—Party Index No.
`590801/2013
`
`-against-
`
`SORBARA CONSTRUCTION CORP,
`
`Fifth Third-Party Defendant.
`________________________________________________________________________X
`
`AND ALL RELATED ACTIONS
`________________________________________________________________________X
`
`Upon the oral motion of the Defendant/Fifth Third-Party Plaintiff 1765 First Associates,
`
`LLC (“1765 First”) seeking that the Court: (1) vacate its prior order on Motion Sequence No.
`
`007, to the extent that the order granted 1765 First conditional contractual indemnification on its
`
`motion for summary judgment against Fifth Third—Party Defendant Sorbara Construction Corp.
`
`(“Sorbara”) and instead substitute a provision granting 1765 First
`
`full and unconditional
`
`contractual indemnification against Sorbara, based upon the law of the case as established at the
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK : CIVIL TERM : PART 13
`
`PRESENT : HON. MANUEL J. MENDEZ
`Justice
`________________________________________________________________________X
`
`IN RE 91ST STREET CRANE COLLAPSE LITIGATION:
`________________________________________________________________________X
`JACK RIZZOCASIO,
`
`Plaintiff,
`
`-against—
`
`THE CITY OF NEW YORK, 1765 FIRST ASSOCIATES,
`LLC, MATTONE GROUP CONSTRUCTION CO., LTD.,
`DEMATTEIS CONSTRUCTION, LEON D. DEMATTEIS
`CONSTRUCTION CORPORATION, and NEW YORK
`
`CRANE & EQUIPMENT CORP,
`
`________________________________________________________________________X
`
`1765 FIRST ASSOCIATES, LLC,
`
`Defendants.
`
`Index No. 108088/2009
`Motion Seq. No. 007
`
`Fifth Third—Party Plaintiff,
`
`Fifth Third—Party Index No.
`590801/2013
`
`-against-
`
`SORBARA CONSTRUCTION CORP,
`
`Fifth Third-Party Defendant.
`________________________________________________________________________X
`
`AND ALL RELATED ACTIONS
`________________________________________________________________________X
`
`Upon the oral motion of the Defendant/Fifth Third-Party Plaintiff 1765 First Associates,
`
`LLC (“1765 First”) seeking that the Court: (1) vacate its prior order on Motion Sequence No.
`
`007, to the extent that the order granted 1765 First conditional contractual indemnification on its
`
`motion for summary judgment against Fifth Third—Party Defendant Sorbara Construction Corp.
`
`(“Sorbara”) and instead substitute a provision granting 1765 First
`
`full and unconditional
`
`contractual indemnification against Sorbara, based upon the law of the case as established at the
`
`
`
`trial in the related action brought by the Estate of Donald Christopher Leo against James F.
`
`Lomma, et al. (“the Leo action”) (Index No. 117294/2008); and (2) grant 1765 First full and
`
`unconditional common—law indemnification against New York Crane & Equipment Corp. (“New
`
`York Crane”) based upon the law of the case as established by the trial and the jury’s verdict in
`
`the Leo action, and upon the arguments made in opposition to the motion by counsel for Sorbara
`
`and New York Crane, all as stated on the Record on September 22, 2015, and for the reasons
`
`stated by the Court on the Record following said oral argument on that same date (the arguments
`
`and decision on the Record being annexed to this Order), and based upon the arguments made on
`
`the record on July 8, 2015 in the Leo action, and for the reasons stated by the Court on the
`
`Record following said oral argument on that same date (the arguments and decision on the
`
`Record in the Leo action are contained in the trial transcript at 19881~19902, a copy of which is
`
`also annexed to this Order), it is hereby
`
`ORDERED, that this Court’s order dated March 7, 2014 on Motion Sequence No. 007 is
`
`vacated to the extent that it granted 1765 First conditional contractual indemnification against
`
`Sorbara; and it is further
`
`ORDERED, that 1765 First is granted full and unconditional contractual indemnification
`
`against Sorbara; and it is further
`
`ORDERED,
`
`that
`
`1765 First
`
`is
`
`granted
`
`full
`
`and
`
`unconditional
`
`common-law
`
`indemnification against New York Crane.
`
`Dated: October _, 2015
`
`ENTER:
`
`Manuel J. Mendez
`J .S .C.
`
`X:\Public Word Files\9l\l77L\LEGAL\Rizzocasio Proposed Order on Indemnity, 1765 First against Sorbara and New York Crane —— 09.30.15 s,sa.docx
`
`2
`
`
`
`EXHIBIT A
`
`
`
`1....)
`
`COUNTY OF NEW YORK - CIVIL TERM - PART: 13
`-------------------------------------------------- X
`
`IN RE 915T STREET CRANE COLLAPSE LTTIGATION
`Tndex NO. 771000/2010
`__________________________________________________ x
`SIMEON A E"IS
`-
`Index No. 105221/09
`CHRIS'I‘OPHER DORAN,
`Index No. 1-10200/08
`DANIEL ODDO,
`Index No. 111625/08
`JACK RIZZOCASIO,
`Index No. 108088/09
`
`Plaintiff,
`
`vagainst—
`
`THE CITY OF NEW YORK, at al,
`
`Defendants.
`—————————————————————————————————————————————————— X
`
`PROCEEDINGS
`
`September 22, 2015
`71 Thomas Street
`
`New York, New York
`
`B E F O R E:
`
`HONORABLE MANUEL J. MENDEZ, Justice
`
`12 .
`
`y-J
`
`10
`
`11
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`2O
`
`21
`
`22
`
`23
`
`24
`
`25
`
` SUPREME COURT OF THE STATE OF NEW YORK
`
`
`
`A P P E A R A N C E S:
`
`LLP
`SACKS and SACKS
`Attorneys for Plaintiffs
`Doran, Oddo and Rizzocasio
`150 Broadway, 4th Floor
`New York, New York 10338
`BY:
`DANIEL WEIR, ESQ.
`
`PARKER WAICHMAN LLP
`Attorneys for Plaintifif Alcxis
`6 Hazbor Park Drive
`Port Washington New York 11050
`BY:
`BRETT A. ZEKOWSKI, ESQ.
`
`FABIANI COHEN & HALL LLP
`Attorneys for Defendant City or New York
`570 Lexington Avenue
`10022
`New York, New York
`BY: MICHAEL TOBIN, ESQ.
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`In)
`
`A p p e a r a n C e 8:
`
`(Continued)
`
`WILSON ELSER MOSKOWITZ EDELMAN‘& DICKER LLP
`Attorneys for Defendant New York Crane
`150 East 42nd Street
`1001?
`New York, New York
`BY:
`GLENN J. FUERTH, ESQ.
`
`LAW OFFICES OF CARTAFALSA, SLATTERY TURPEN & LENOFF
`Attorneys for Defendant Sorbara Construction Coxp.
`165 Broadway, 28th Floor
`New York, New York
`10006
`BY:
`RAYMOND F. SLATTERY, ESQ.
`
`SMITH MAZURE DIRECTOR WILKINS YOUNG &~YAGERMAN, P.C.
`Attorneys for Defendant Leon D. DeMatteis Construction
`111 John Street
`10038—3198
`New York, New York
`BY:
`MARK D. LEVI, ESQ.
`
`SHAUB AHMUTY CITRIN & SPRATT, LLP
`Appellate Counsel to Lewis Brisbois/DeMatteis
`1983 Marcus Avenue
`11042
`Lake Success, New York
`BY:
`ROBERT M. ORTIZ, ESQ,, of Counsel
`
`NICOLETTI HORNIG & SWEENEY
`Attorneye for Defendant 1765 First Associates, LLC
`Wall Street Plaza
`88 Pine Street
`10005fl1801
`New york, New York
`BY:
`BARBARA A. SHEEHAN, ESQ.
`
`GARFUNKEL WILD, P . C.
`Attorneys for Defendant Rattone Group
`111 Great Neck Road
`11021
`Great Neck, New York
`BY:
`SALVATORE PUCCIO, ESQ.
`
`Reported by:
`Vicki K. Glover
`
`Senior Court Reporter
`
`VICKI K. CLOVER, OFFICIAL COURT REPORTER
`
`
`
`
`
`
`
`
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`IO U
`
`k) 0
`
`12:25:09
`
`12:25:39
`
`12:26:31
`
`Proceedings
`
`M O R N I N G
`
`S E S S I O N
`
`THE COURT: Mr. Puccio.
`
`MR. PUCCIO: Good afternoon, your Honor,
`
`Salvatore Puccio of Garfunkel Wild for the Mattone
`
`defendants.
`
`In the matters of Boron v. Mattone Group
`
`Construction Company,
`
`izzocasio v. mattone Group
`
`Construction Company, Oddo v. Mhttone Group Construction
`
`Company, and Alexis v; Mattone Group LLC, after discussions
`
`this morning with plaintiffs' respective counsels in this
`
`matter, plaintiffs have agreed to stipulate to discontinue
`
`the actions and lawsuits and all claims against the
`
`referenced Mattone defendants with prejudice, and will
`
`follow up in writing with a formal stipulation of
`
`discontinuance which we will then file with the court.
`
`MR. WEIR: Good morning, your Honor,
`
`My name is
`
`Daniel Weir.
`
`I‘m with the law firm of Sacks and Sacks.
`
`I
`
`represent Christopher Doran, Daniel Oddo and Jack
`
`1
`
`Rizzooasio, and we consent
`
`to this dismissal‘
`
`MR. ZEKOWSKI: Brett Zekowski from Parker Waichman
`
`for the plaintiff Simeon Alexis and his wife Kathlyn Moore.
`
`We also agree to stipulate to discontinue against
`
`the Mattone defendants.
`
`THE COURT: Okay.
`
`So I‘ll just await your
`
`stipulation of discontinuance.
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`Proceedings
`
`MR. PUCCIO:
`
`Thank you very much, your Honor.
`
`THE COURT:
`
`Thank you.
`
`(Court stands in recess.)
`
`A. F ’Y
`
`E3
`
`12 Id C)'O 10
`
`8 IS 3 S I C} N
`
`THE COURT:
`
`On the record.
`
`MR. SLATTERY: This is on Alexis.
`
`Judge, Raymond Slattery from the office of
`
`Cartafalsa, Slattery, Turpin & Lenoff for the third~party
`
`i
`
`
`
`l 2 3
`
`4
`
`S 6 7 8 9
`
`02:56:07
`
`02:56:23
`
`defendant Sorbara Construction Corporation.
`
`02:55:44
`
`02:57 :9
`
`02:57:07
`
`Judge,
`
`in consideration of $250,000 to be paid by
`
`Sorbara to plaintiff, it‘s my understanding plaintiffi will
`
`accept that money and issue a stipulation of discontinuance
`
`as to all parties in the case and a general release to
`
`Sorbara Construction,
`It's further my understanding that New York Crane,
`
`J.F. Lomma, J.F. Lomma,
`
`Inc. will agree that the settlement
`
`is reasonable and that they will waive any lS~lO8 GOL
`
`I
`
`rights to allow Sorbara to recoup from them any monies that
`
`Sorbara or Zurich would be entitled to in the event that
`
`negligent.
`
`it's also my understanding that this will resolve
`
`i
`there is a —~ tohave a finding that Sorbarawas not
`understand that we had thought that we had gotten a consent;
`
`any claims, any cross—claims by any third~party plaintiffs,
`
`any other defendants as against each other, and I
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`U1
`
`Proceedings
`
`of the other defendants to waive any attorney's fees that
`
`were associated with this. My understanding is that the
`
`defendants 1765, DeMatteis,
`
`the City, do_not have the
`
`'authority at this point, but that that will be something
`
`that I‘ll be advised of shortly, hopefully in the near
`
`future, within a week or two, and if that is waived, fine;
`
`if it‘s not,
`
`then that will become part of their claim for
`
`attorney‘s fees against Sorbara pursuant to the Court’s
`
`determination that at least DeMatteis and 1765 were
`
`entitled to contractual indemnification, as well as the
`
`City.
`
`Is that everyone's understanding?
`
`MR. SHEEHAN: That's my understanding, your Honor.
`
`MR. TOBIN: Yes.
`
`MR. LEVI: That‘s my understanding, also.
`
`MR. FUERTH:
`
`Judge, it‘s my understanding that in
`
`addition to a stipulation of discontinuance,
`
`that New York
`
`Crane, James F. Lomma, J.F. Lemma,
`Inc. all would get a
`release from the plaintiff, not just a stipulatlon of
`
`discontinuance. And in terms of Sorbara‘s right to seek
`
`reimbursement from New York Crane, James Lomma and J.F.
`
`Lemma, Inc., it will be based upon a final determination of
`
`the issues in the case, not based upon where we are right
`
`IIOVV.
`
`THE COURT: Meaning once the appeal is decided.
`
`VICKI K. CLOVER, OFFICIAL COURT REPORTER
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`26
`
`15
`
`16
`
`17
`
`18
`
`19
`
`25
`
`02:57:52
`
`02:58:12
`
`02:58:37
`
`02:59:25
`
`
`
`
`
`
`b3
`
`13
`
`14
`
`15
`
`16
`
`l7
`
`l8
`
`19
`
`20
`
`02:59:55
`
`03:00:16
`
`03:00:24
`
`Proceedings
`
`MR. FUERTH: Correct, Judge. And if there is a
`
`retrial, what happens thereafter.
`
`MR. SLATTERY:
`
`Judge,
`
`that's fine and I don't have
`
`a problem with that.
`
`The only thing is, James F. Lemma
`
`individually and J.F. Lemma,
`
`Inc. were not parties to the
`
`Simeon Alexis case.
`
`So I just want an assurance from
`
`Mr. Fuerth that in the event that we do seek that
`
`reimbursement,
`
`that there's going to be no prohibition or
`
`no objection to that he‘s fully Settled for us commencing a
`
`thirdfiparty‘aetion or a separate action for indemnity,
`
`MR. FUERTH: Well, Judge,
`
`I mean,
`
`the third—party
`
`action,
`
`I submit, Should only be as against whatever
`
`entity. And if I‘m listening to Mr. Slattery,
`
`it‘s New
`
`York Crane.
`
`MR. SLATTERY:
`
`Judge —~
`
`MR. LEVI:
`
`Can we go oft the record?
`
`MR. SLATTERY:
`
`—— you can't ask for a release for
`
`parties who are not participants in this case.
`
`MR. FUBRTH:
`
`And then I will limit my request to
`
`release for the defendant New York Crane and the
`
`Stipulation of discontinuance as against that party as
`
`well.
`
`MR. SLATTERY: That‘s fine, Judge.
`
`Then there'e
`
`03:00:37
`
`no prohibition tor Zurich or Sorbara seeking indemnity from
`
`J.F. Lemma,
`
`Inc. and James F. Lemma individually for their
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`Proceedings
`
`proportionate share as it was decided in the Leo case,
`
`assuming the Appellate Division doesn't upset or do
`
`anything to reverse that. Because I would have six years
`
`from the éay we make a payment to commence an indemnity
`
`action against any other parties.
`
`MR. FUERTH: Under the statute of limitations.
`
`But the only issue I have is that neithex J.F. Lemma,
`
`Inc.
`
`nor James Lemma individually are parties to the Alexis
`
`case.
`
`MR. SLATTERY: And I understand that, Judge, but
`
`an indemnity claim is not contingent upon those parties
`
`being part of the direct action.
`
`If there's someone else
`
`who could have been found responsible,
`
`then I’m entitled to
`
`either have brought
`
`them in as a third party, or if I
`
`settle the case,
`
`to commence an indemnity action against
`
`them, and that‘s where I am with James F. Lemma and J,F.
`
`Lomma,
`
`Inc.
`
`THE COURT: Yeah,
`
`that's correct.
`
`MR. FUERTH: Well,
`
`then, Judge, if you find that
`
`to be correct,
`
`then over my objection,
`
`I guess,
`
`that will
`
`be part of the record,
`
`then,
`
`THE COURT:
`
`Sure, sure.
`
`MR. ZEKOWSKI: Brett Zekowski for Parker Waichman
`
`for the Alexis plaintiffs,
`
`So it‘s my understanding,
`
`just to make sure we‘re
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`03:01:00
`
`03:01:20
`
`03:01:35
`
`03:01:51
`
`03:02:04
`
`
`
`
`
`
`
`CD
`
`clear on this,
`
`in my case,
`
`the Alexis case, Lemma was not
`
`Proceedings
`
`sued individually.
`
`MR. FUERTH: Correct.
`
`MR. ZEKOWSKI:
`
`It was merely New York Crane.
`
`MR. FUERTH: Correct.
`
`MR. ZEKOWSKI:
`
`So in your request for a
`
`stipulation of discontinuance -_ a releage, it‘s just as to
`
`New York Crane.
`
`MR. FUERTH: Correct.
`
`MR. ZEKOWSKI: Okay.
`
`MR. FUERTH: Yes. And a stipulation of
`
`discontinuance.
`
`MR. ZEKOWSKI: Fair enough. That‘s fine.
`
`MR. FUERTH: Yes.
`
`MR. ZEKOWSKI: Also, I understand defendants agree
`
`that within receipt of duly executed releases and
`
`stipulations of discontinuance, pursuant to the CPLR they
`
`will make a payment within 21 days, correct?
`
`MR. SLATTERY; Absolutely.
`
`MR, FUERTH: That is Sorbara and/or Zurich making
`
`'that payment.
`
`MR. SLATTERY:
`
`Um~hmm.
`
`MR. ZEKOWSKI:
`
`Thank you.
`
`THE COURT:
`
`So stipulated?
`
`MR. ZEKOWSKI:
`
`SO Stipulated.
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`03:02:13
`
`03:02:22
`
`03:02:27
`
`03:02:62
`
`03:02:69
`
`
`
`
`
`
`
`03:02:55
`
`03:03:57
`
`03:04:23.
`
`03:04:44
`
`{\J
`
`10
`
`ll
`
`12
`
`l3
`
`14
`
`15
`
`
`Proceedings
`
`MR. FUERTH:
`
`So stipulated.
`
`MR. SLATTERY:
`
`So stipulated,
`
`THE COURT: Fine.
`
`The next one is Doran?
`
`MR. WEIR: Yes, your Honor.
`
`THE COURT: Okay. Let's go on the record on this
`
`one.
`
`MR. SLATTERY:
`
`Raymond F. Slattery for Cartafalsa,
`
`Slattery, Turpin & Lenoff, attorneys for third»party
`
`defendant Sorbara Construction Corporation.
`
`Judge, as in the Simeon Alexis case, Sorbara has
`
`agreed to settle this case with the plaintiff in the amount
`
`of $500,000.
`
`It's my understanding that the action against
`
`the defendants 1765 and the City of New York and Leon D.
`
`DeMatteis Construction Corporation was settled previously
`
`in the amount of $500,000 by the firm of Baxter & Smith.
`
`The entire settlement was for $1 million. Due to
`
`complications that i don't need to put on the record,
`
`the
`
`payment made by Dematteis on behalf of 1765 themselves and
`
`the City was made. That money is being held in escrow and
`
`Sorbara is now in a position to pay the $500,000 that it
`
`had indicated it would pay in settlement of this claim by
`
`the plaintiff and all croee~c1aims,
`
`third~party claims and
`
`all Claims between the defendants whatsoever.
`
`Again,
`
`this settlement is contingent on a number
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`03:05:01
`
`03:05:19
`
`03:05:45
`
`03:06:04
`
`
`
`
`
`l4
`
`15
`
`l6
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`25
`
`26
`
`10
`
`Proceedings
`
`of things:
`
`1. That
`
`the firm of Baxter & Smith, who
`
`represented DeMatteis in that case, agree to discontinue
`
`any claims, cross~olaims or seek any reimbureement or
`
`reallocation of any of the monies they paid from Sorbara
`
`and Zurich;
`
`2. That
`
`the New York Crane defendants, New York
`
`Crane, and if J.F. Lemma and J.F. Lomma, Inc. are in that
`
`case,
`
`that they agree that the settlement is reasonable and
`
`that they agree to waive their GOL 15»108 numbers claims to
`
`oppose any continuation of a third«party claim or a
`
`commencement of a claim for common law indemnity against
`
`them in light of this settlement.
`
`It's also my understanding that all the parties
`
`were going to discontinue any claims for attorney's fees
`
`against us.
`
`I understand that that‘s being held in
`
`abeyanoe right now. That in the event that those Claims
`
`cannot be waived by DeMatteis, 1765,
`
`the City,
`
`that those
`
`will become part of, ultimately,
`
`the claime that they have
`
`to seek attorney's fees, and that will be handled in
`
`another forum at this point. And we would ask that we get
`
`stipulations of discontinuance and general releases as to
`
`Sorbara, 1765, DeMatteis and the City of New York, and all
`
`the direct defendants in the case.
`
`MR. WEIR: Your Honor, Daniel Weir, Sacks and
`
`VICKI K. CLOVER, OFFICIAL COURT REPORTER
`
`
`
`03:06:37
`
`03:06:55
`
`E0
`
`LU
`
`U1
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`03:07:07
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`03:07:16
`
`03:07:28
`
`
`
`
`
`
`m“
`
`0
`Sa ke.
`
`Proceedings
`
`It‘s my understanding there’s $500,000 being held
`
`in an escrow account that was previously paid to the firm
`
`on behalf of certain defendants. _This would make up the
`
`whole amount,
`
`the entirety of $1 million, which was the
`
`agreed upon amount at the mediation, and we are comfortable
`
`with that and we agree to that amount.
`
`we underetand that
`
`it's subject to Baxter & Smith agreeing to Mr, Slattery‘s
`requirements.
`So until that moment, we oan't give out any
`
`releases or do anything until we hear from Baxter & Smith,
`
`I would imagine‘
`
`THE COURT:
`
`How soon do you think you'll have that
`
`information?
`
`MR. SLATTERY:
`
`Judge, I'll be in contact with them
`
`tomorrow and I don‘t really foresee a problem with it.
`
`Hopefully, by the end of the week I'll get that, and as
`
`soon as I do I'll let Mr. Weir know.
`
`THE COURT: Okay.
`
`MR. FUERTH: And again, your Honor, Glenn Fuerth
`
`for Wilson.Elser on behalf of the New York Crane
`
`defendants.
`
`There will be releases and stipulations of
`
`discontinuance as against New York Crane, which is the only
`
`named defendant. There is no objection to the
`
`reasonableness of the settlement and there is no objection
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`"14'4
`
`Proceedings
`
`to the waiver of the GOL 105 clause. However, again,
`
`I do
`
`not consent to Sorbara being able to bring an action
`
`against J.F. Lomma,
`
`Inc. or James Lemma individually, but
`
`as the Court has indicated,
`
`irrespective of my objection
`
`the Court will permit that to proceed.
`
`And again, with respect to both,
`
`just to make sure
`
`the record is clear, Alexis and Doran,
`
`that the New York
`
`Crane defendants preserve their rights to proceed or to
`
`defend against Sorbara with respect to any allocation up
`
`until the point where there's a final adjudication of the
`
`claim.
`
`THE COURT: Correct. Mr. Tobin?
`
`MR. TOBIN: Michael Tobin, Fabiani Cohen & Hall
`
`for the City ofi New York.
`
`I just wanted to correct the record.
`
`Judge,
`
`the City did not settle this case, was not
`
`part of the settlement for this case, but rather‘sought
`
`dismissal through a motion which was granted.
`
`THE COURT: Okay.
`
`MR. SLATTERY:
`
`Judge,
`
`I stand corrected.
`
`The
`
`remainder oi my Statement applies.
`
`It they agree to waive
`
`their attorney's fees, fine.
`
`If not,
`
`then that will
`
`proceed forward in another action with the determination of
`
`whether we are or we‘re not bound to pay them attorney‘s
`
`fees being decided in another jurisdiction in another
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`
`03:07:53
`
`03:08:15
`
`03:08:34
`
`03:08:54
`
`03:09:08
`
`
`
`Proceedings
`
`venue.
`
`MR.
`
`'l‘OBIN: Agreed.
`
`THE COURT: Did everybody put on their consent
`
`to
`
`the settlement on this?
`
`MR. LEVI: Off the record, your Honor.
`
`(Discussion off the record.)
`
`THE COURT:
`
`On the record.
`
`MR. SLATTERY:
`
`Since Ms. Sheehan and Mr. Levi‘s
`
`
`
`N 9
`
`4
`
`03:09:49
`
`03:10:26
`
`firms were not involved in the Doran case,
`
`I‘m assuming
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`
`03:10:42
`
`03:10:57
`
`03:11:09
`
`there are no outstanding attorney's fees that will be
`
`sought
`
`to be recouped from Sorbara since yon guys were not
`
`the attorneys on those cases.
`
`MR. SHEEHAN:
`
`And I don’t know that, Judge,
`
`because I contacted my office and there‘s some nominal
`
`amount attributable to Daren.
`
`I'm not sure what
`
`the
`
`genesis of that is. But that‘s why I‘m not, at this point,
`
`able to make that representation. And I certainly haven't
`
`explored it myself, personally. I mean, obviOusly it seems
`
`like there Shouldn‘t be anything, but I don‘t know that for
`
`a fact, Judge.
`
`MR. SLATTERY: And then, Judge, my position is
`
`with respect
`
`to that,
`
`if they're not the counsel for their
`
`respective parties in that case,
`
`I can't be responsible for
`
`attorney's fees, but that can be decided at another time in
`
`another venue.
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`
`
`03:11:95
`
`03:12:06
`
`03:12:26
`
`03:12:53
`
`14
`
`Proceedings
`
`THE COURT: Okay.
`
`MR. SLATTERY: One other thing, Judge.
`
`We are also attempting to resolve the case of
`
`Rizzocasio. We have a demand from plaintifif‘s counsel of
`$500,000, plus a waiver of the Workers‘ Compensation lien.
`
`I have been trying to get
`
`in touch with the Workers‘
`
`Compensation carrier. I've been unsuccessful, She's out
`
`today.
`
`I will continue to try and speak with her and see if
`
`We cannot resolve that.
`
`I hope to have an answer to that
`
`in the next day or two, and if we can,
`
`that case should be
`
`resolved also within the next week.
`
`There‘s also another case, Judge, Oddo. We‘re
`
`trying to resolve that. But what I had asked the Court
`
`to
`
`do, and what counsel has done for us so far,
`
`is,
`
`there is a
`
`claim by DeMatteis, 1765 and the City of New York that they
`
`are entitled to reimbursement of attorney's tees based on
`
`the Court‘s finding of common law and contractual
`
`indemnification as those apply to the different cases.
`
`In
`
`the event that we are responsible to pay those back, what
`
`I‘m asking is that we get from those respective firms,
`
`including Lewis Brisbois and Shaub Ahmuty, any monies that
`
`they are claiming that they are entitled to as a result of
`
`attorney's fees and work and fees that they've done on any
`
`remaining cases,
`
`including the ones that we've settled.
`
`Once I have those numbers, Zurich will be in a position to
`
`VICKI K. CLOVER, OFFICIAL COURT REPORTER
`
`
`
`B)
`
`
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`03:13:14
`
`03:13:34
`
`03:13:58
`
`Proceedings
`
`try and negotiate those with them, what‘s fair, what‘s
`
`reasonable, what they'll cover, what
`
`they won't; but I say
`
`that, Judge,
`
`so that we can have more progress in trying to
`
`reeolve the remainder of these cases. Without knowing what
`
`those numbers are,
`
`I don't know what‘s lefit on the policies
`
`to settle a case like Oddo for $3 million.
`
`If I have those
`
`numbers and settlements can be effectuated within what‘s
`
`remaining on those with those being the outside numbers,
`
`then we can resolve those cases under the same terms and
`conditions that we resolved these today. Because if I have
`
`those numbers and whatever is left can satisfy the cases,
`
`then I can do that.
`
`If it turns out that DeMatteis, 1765
`
`and the City are correct and Zurich owes that money
`
`separate and apart from the general liability policy
`
`limits, all that does is provide more money to make more
`
`money available to satisfy any cases that remain. But I
`
`need to have those numbers so that I know, at least, what
`
`my outside limits are to determine what‘s remaining on the
`
`03:l&:12
`
`policy.
`
`THE COURT:
`
`So you‘re going to provide those
`
`numbers to Mr. Slattery?
`
`MR. LEVI: Yes.
`
`24
`
`h) L”
`
`b.) Ch
`
`THE COURT:
`
`How soon can you do that?
`
`I
`
`understand it‘s not going to be tomorrow or the day after,
`
`but ——
`
`VICKI K. GLOVER, OFFICXAL COURT REPORTER
`
`
`
`16
`
`Proceedings
`
`MR. LEVI: No,
`
`it‘s going to take a little bit of
`
`doing, your Honor.
`
`THE COURT:
`
`Two weeks?
`
`MR. LEVI:
`
`I would hope so.
`
`I would hope so.
`
`It‘s a matter of, unfortunately, breaking it down in a
`
`different way than it‘s broken down and, unfortunately,
`
`I
`
`believe it's going to have to be done by hand.
`
`THE COURT:
`
`I hear you. Okay. Try to get that
`
`information ~~
`
`MR‘ LEVI:
`
`I‘ll speak to my computer people and
`
`see what
`
`they can do, but I‘ve spoken to QBE and I‘ve
`
`spoken to my billing department, and when I ask them to
`
`break it down to just,
`
`for instance, Leo, it comes up as
`
`zero because no matter what, even though it‘s entered on
`
`Leo, when it gets billed, it gets billed on the master
`
`file, and that's how —~
`
`THE COURT:
`
`So you have to go line by line?
`
`MR. LEVI:
`
`~— that‘s how the insurance carrier
`
`
`
`wanted it.
`
`THE COURT: You‘re going to have to go line by
`
`line?
`
`MR. LEVI:
`
`I've done some of it, your Honor.
`
`This really shouldn‘t be on the record.
`
`THE COURT:
`
`So, we have a conference on the Elst.
`
`MR. SLATTERY: YES.
`
`VICKI K. CLOVER, OFFICIAL COURT REPORTER
`
`03:14:43
`
`03:15:20
`
`03:15:04
`
`
`
`
`
`
`b)
`
`b)
`
`1%
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`03:15:40
`
`03:15:50
`
`03:16:0é
`
`17
`
`Proceedings
`
`MR. LEVI: Of October.
`
`THE COURT: Let‘s try to have that information in
`
`by then.
`
`MR. LEVI: Yes, your Honor.
`MR. SLATTERY:
`If they get it to us sooner and
`
`they can negotiate, Zurich and they can negotiate,
`
`I will
`
`make every effort to resolve those cases before the Elst.
`
`THE COURT: Okay.
`
`MR. SLATTERY:
`
`If I know what
`
`the outside
`
`parameters are and I know what‘s left, it's easier to try
`
`and resolve cases.
`
`MR. WEIR: Your Honor, one of the reasons it might
`
`be expeditious to do it before the next conference is
`
`because we have just put into abeyance a whole bunch of
`
`medical exams of my client because we're trying to get this
`
`thing done.
`
`THE COURT:
`
`I understand.
`
`MR. LEVI: Well,
`
`that‘s —— can we go off the
`
`03:16:15
`
`record?
`
`THE COURT:
`
`Go off the record.
`
`(Discussion off the record.)
`
`THE COURT: Let‘s go back on the record.
`
`Mr. Ortiz.
`
`03:17:10
`
`MR. ORTIZ: Good afternoon, your Honor.
`
`As we‘ve discussed on previous occasions on the
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`B)
`
`
`
`
`
`
`03:17:29
`
`03:17:55
`
`03:18:14
`
`03:18:29
`
`03:15:55
`
`Proceedings
`
`record when we appeared, as you will recall,
`
`the Court
`
`issued two orders, separate orders,
`
`in Oddo and Rizzocasio
`
`granting DeMatteis' motion for summary judgment against
`Sorbara, but only to the extent of awarding conditional
`
`summary judgment on third-party claims for contractual
`
`indemnification.
`
`in the Oddo case, it was Motion Sequence
`
`010, and the order is dated,
`
`I believe, March 6, 2014; and
`
`in the Rizzocasio case it was Motion Sequence 008, and it
`
`was also of the same date, March 6, 2014. Again, both
`
`granted DeMatteis summary judgment against Sorbara, but
`
`only to the extent of awarding conditional summary judgment
`
`on the third—party claims for contractual
`
`indemnification
`
`against Sorbara.
`
`As you know, during the Leo and Khrtaj cases we
`
`argued in our directed verdict motion against Sorbara
`
`for —* it was actually common law and contractual
`
`indemnification.
`
`Common law _,
`
`MR. SLATTERY:
`
`Leo.
`
`MR. ORTIZi
`
`In Leo.
`
`I‘m sorry.
`
`In the Leo action, after the settlement of the
`
`Kurtaj case, we argued for a directed verdict against
`
`Sorbara based on common lee and contractual, and the Court
`
`granted both of those branches of our motion for a directed
`
`verdict against Sorbara.
`
`Subsequent
`
`to the decision on the
`
`record I appeared in court with an order, which the Court
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`
`
`
`19
`
`20
`
`22
`
`23
`
`24
`
`26
`
`12
`
`l3
`
`14
`
`15
`
`l6
`
`17
`
`18
`
`03:19:05
`
`03:19:24
`
`03:19:43
`
`03:20:00
`
`03:20:14
`
`Proceedings
`
`signed, granting us that relief. Because the law oi the
`
`case is as such, as we‘ve just described, and these are the
`
`same facts and the same accident, we have discussed with
`
`you beiore, and we‘ve requested,
`
`that rather than require
`
`us to make a motion to reergue or renew based on the
`
`findings at the full trial which would encompass submitting
`
`over 5,000 pages of exhibits from the prior motion
`
`sequence,'that you instead vacate these two orders that
`
`we‘ve just identified and issue new orders granting
`
`DeMatteis unconditional.
`
`So that would be total
`
`indemnification under the contract, contractual
`
`indemnification, as against Sorbara. This would obviate
`
`the need of having to make those motions, it would be in
`
`the interest of judicial economy, and party and court
`
`resources would be saved if that process would be allowed,
`
`and that would also moot
`
`the appeals that are pending in
`
`the First Depattment in Oddo and Rizzocasio, which are
`
`joined,
`
`they're in one record, which My. Slattery and I
`
`have put over to November so that we could effectuate what
`we're asking to be done here;
`I think that would be the
`
`best way to handle it.
`
`If Rizzocasio does settle in the
`
`next week, fine, but we still needed it in the Oddo case.
`
`Our application would be _- I‘ve spoken to
`
`Mr. Slattery in the past about this.
`
`He was, at least, not
`
`adveree to it.
`
`So we would ask the Court to take that step
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`20
`
`Proceedings
`
`and grant the application.
`
`MR. SHEEHAN:
`
`I would join in that, Judge,
`
`obviously.
`
`In those two cases,
`
`Oddo and Rizzocasio,
`
`the
`
`Court granted conditional
`
`indemnification by my client
`
`against Sorbara as well.
`
`THE COURT:
`
`Is it on the same motion sequence or a
`
`different one?
`
`MR. SHEEHAN:
`
`No.
`
`I'm hoping that I have it on
`
`my chart here which motion sequence.
`
`It‘s not
`
`the same,
`
`but ww
`
`Mr. Levi?
`
`THE COURT:
`
`It's not
`
`the same.
`
`MR. SHEEHAN:
`
`#— I need to find it.
`
`THE COURT:
`
`And DeMatteis the Same thing,
`
`MR. LEVI:
`
`He's speaking for DeMatteis.
`
`THE COURT:
`
`He‘s speaking for DeMatteis.
`
`MR. ORTEZ;
`
`Yes, sir.
`
`THE COURT:
`
`And Mr. Tobin,
`
`the same thing?
`
`MR. TOBIN:
`
`Judge, we make the same application
`
`with respect to all the cages as I did at the conference a
`
`month ago;
`
`that the City is seeking just contractual
`
`indemnity based on the same contractual clause and contract
`
`that DeMatteis and 1765 have been granted contractual
`
`indemnity.
`
`PDQ.
`
`SPUEEHiPdV:
`
`Judge,
`
`in the Oddo case,
`
`our motion
`
`VICKI K.
`
`GLOVER,
`
`OFFICIAL COURT REPORTER
`
`53:20:30
`
`03:20:97
`
`03:21:11
`
`
`
`22
`
`14
`
`15
`
`16
`
`17
`
`18'
`
`l9
`
`20
`
`21
`
`
`
`
`
`03:21:3l
`
`03:21:45
`
`03:22:49
`
`Proceedings
`by 1765 First was Motion Sequence 011, and then in
`
`Rizzocasio it was Motion Sequence 007.
`
`THE COURT;
`
`00?.
`
`MR. SHEEHAN: Yes.
`
`21
`
`1.
`g
`
`THE COURT: Okay. 007, 008, 010 and 011.
`
`All right. Mr. Slattery, do you wish to be heard?
`
`MR. SLATTERY:
`
`Judge, although I‘m not
`
`philosophicaliy opposed to that, and I underetand that this
`
`will ultimately be a determination the Court makes,
`
`just
`
`for the record I‘m opposing the application. But
`
`in the
`
`event that the Court grants that application, since at the
`
`time of trial the Court has found, or the jury found that
`
`Sorbara was not negligent, we would ask that the common law
`indemnity that the Court granted us following the verdict
`
`in Leo and Kurtaj be granted against New York Crane, J.F.
`
`Lemma,
`
`Inc. and James Lomma individually so that if we have
`
`to pay those entities, we're entitled to get it back from
`
`the entities that were actually found liable.
`
`THE COURT: Mr. Fuerth?
`
`MR. FUERTH: Again, your Honor, it would be based
`
`upon a final adjudication, but I don't see the need for
`
`there to be additional motion papers on that.
`
`THE COURT:
`
`I agree. And the Court, based on what
`
`has been the law of the case,
`
`is going to grant contractual
`
`indemnification to the City of New York, Leon D. DeMatteis
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`03:23:24
`
`5
`
`03:23:37
`
`3,0
`
`11
`
`13
`
`14
`
`12
`03:24 :09
`
`03:23:48
`
`3.5
`
`03:23 :59
`
`Proceedings
`
`and 1765 on the Oddo and Rizzocasio cases, and will grant
`
`Sorbara common law indemnity on these cases as against New
`
`York Crane, J.F.
`
`Lomma,
`
`Inc. and J.F. Lomma individually.
`
`MR. LEVI :
`
`One more thing; We would ask also that
`
`we be granted common law indemnity against New York Crane
`
`defendants.
`
`MR. ORTIZ:
`
`Yes,
`
`in both Oddo and Rizzocasio as
`
`well.
`
`granted.
`
`THE COURT:
`
`In both Oddo and Rizzocasio. That‘s
`
`And Mr. Tobin?
`
`MR. TOBIN:
`
`Judge, given what you‘ve just said,
`
`that should obviate the need for the City to make a motion
`
`in the 16 other cases with respect to contractual indemnity
`
`on Sorbara.
`
`MR. SLATTERY:
`
`Judge, I would just ask, before the
`
`Court rules on that,
`
`to
`
`hold that in abeyance.
`
`Let me
`
`speak with Mr. Tobin because some of the cases were
`
`different.
`
`I don‘t know what
`
`the nuances were of all of
`
`those cases.
`
`MR. TOBIN:
`
`That's fine.
`
`MR. SLATTERY:
`
`While I think he may be correct,
`
`I
`
`just don't want
`
`the Court
`
`to rule and then I‘m going to
`
`have to make motions on 15 or 20 cases to vacate that order
`
`in the event that it is incorrect.
`
`So I would just ask the
`
`VICKI K. GLOVER, OFFICIAL COURT REPORTER
`
`
`
`03:24:28
`
`03:24:45
`
`
`
`Proceedings
`
`Court
`
`to withhold or reserve decision on that application.
`
`THE COURT: Okay.
`
`So on these two cases submit an
`
`order to the Court for the granting of the unconditional
`
`contractual indemnity veISUs Sorbara and the common law
`
`indemnity versus the New York Crane defendants, okay?
`
`So DeMatteis, 1765 and the City to submit that
`
`order to the Court.
`
`MR. ORTEZ:
`
`Do you want it in one order or do you
`
`want ~~ it can‘t be because it‘s all different motions.
`
`THE COURT:
`
`It's different motions‘
`
`MR. ORTIZ:
`
`Just an order.
`
`THE COURT: Yeah, because the decision on Motion
`
`Sequence 007, 008, 010 and 011 is vacated and then this is
`
`the new decision.
`
`MR. ORTIZ:
`
`So yo
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
