In the matter of Malan v. QPS 23-10 Development LLC et al., Index Number 14193/2015 in New York Supreme Court King County, Plaintiff, an employee of a separate entity, Alpha/Omega Concrete Corp., alleged that he was injured in a fall from a height of about 7-to-8 feet from wooden boxes that were part of the assembly of forms for concrete work.

Defendant QPS Developer had entered into a contract with non-party contractor New Millennium Structures LLC, in which New Millennium was hired to furnish and install concrete and related materials for the project. QPS Developer later assigned its rights under the Original Contract to QPS Development, which owned the site on the date of Plaintiff’s accident. New Millennium left the project, and the company that issued its surety bond entered into a Surety Takeover Agreement. That surety bond company then entered into a Short-Term Interim Agreement with Alpha/Omega Building, and then later entered into the Completion Contract with Alpha/Omega Concrete, in which Alpha/Omega Concrete agreed to continue the work begun by New Millennium and Alpha/Omega Building.

Multiple summary judgment motions were filed. Plaintiff moved for summary judgment on his Labor Law § 240(1) case against owner QPS Development, which motion was granted (and corresponding cross-motion to dismiss that cause of action was denied).

MMG moved for summary judgment on behalf of our client Alpha/Omega Building for dismissal of the third-party claims and all other claims against it, and Owner Defendant/Third-Party Plaintiff QPS Development crossed moved on its claim for contractual indemnification against Alpha/Omega Building. MMG’s motion papers marshalled proof in evidentiary form showing, beyond any genuine question of fact, (1) that Alpha/Omega Building had left the project prior to the accident, and (2) that Alpha/Omega Building was and is a separate entity from Alpha/Omega Concrete; did not share common ownership, officers, principals, managers or employees with Alpha/Omega Concrete; and was not liable under any cognizable theory for any liability of Alpha/Omega Concrete. Accordingly, the Court granted MMG’s motion for summary judgment and denied the owner’s cross-motion.