Plaintiff, a painter employed by Bond, was injured while painting the ceiling on the fifth floor of the Owners' premises, which was subleased to Poppe Tyson by Bozell. Poppe Tyson engaged Triad to act as construction manager for the interior renovation of the fifth floor, and entered into a separate contract with Bond for the painting of various portions of the fifth floor. Plaintiff was injured when he fell off a scaffold that was not equipped with safety railings. The complaint alleges violations of Labor Law §§ 200, 240(1)and 241(6), and is brought against the Owners, Bozell, Poppe Tyson and Triad.

Given the terms of Triad's agreement with Poppe Tyson and the deposition testimony of Triad's project manager that he was on the job full-time to supervise and manage the subtrades, there are triable issues of fact as to whether Triad had sufficient authority and responsibility over the project to be held liable for the alleged Labor Law violations.

Summary judgment in favor of plaintiff on the issue of Poppe Tyson's liability under Labor Law § 200 was also properly denied, there being issues of fact as to the extent of Poppe Tyson's control over plaintiff's work.

Summary judgment in favor of plaintiff on the issue of defendants' liability under Labor Law § 240(1) was properly granted as against the Owners, as the owners of the fee (see, Coleman v. City of New York, 91 N.Y.2d 821, 822-823), and Poppe Tyson, as a lessee who fulfilled the role of owner by contracting for the work (see, Rottkamp v. American Ref-Fuel Co., 251 A.D.2d 644, 645). The section 240(1) claim was properly dismissed as to Bozell, since it was "an out-of-possession lessee of the property who neither contracted for nor supervised the work that brought about the injury, and had no authority to exercise any control over the specific work area that gave rise to plaintiff's injuries" (Saaverda v. East Fordham Rd. Real Estate Corp., 233 A.D.2d 125).

There is no merit to the Owners' and Poppe Tyson's claims that factual issues with respect to proximate cause preclude summary judgment in favor of plaintiff on the section 240(1) claims. Proximate cause is established as a matter of law by the undisputed fact that plaintiff fell off a scaffold without guardrails that would have prevented his fall (see, Boss v. Integral Constr. Corp., 249 A.D.2d 214), and the "precise manner in which plaintiff's fall occurred is immaterial" (Laquidara v. HRH Constr. Corp., 283 A.D.2d 169). The claims concerning plaintiff's failure to use the locking wheel devices and his movement of the scaffold while standing on it are not determinative, since contributory negligence is not a defense (see, Vanriel v. Weissman Real Estate, 262 A.D.2d 56). Defendants also fail to raise an issue of fact with respect to their recalcitrant worker defense, where they fail to adduce any evidence that plaintiff refused to obey an order to utilize safety devices immediately available to him. The evidence that there was a safety device somewhere on the job site, and that plaintiff failed to heed a general instruction given at some point in the past, does not suffice (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562-563; Balthazar v. Full Circle Constr. Corp., 268 A.D.2d 96, 99; Powers v. Del Zotto Son Bldrs., 266 A.D.2d 668).

The IAS court's holding that Bozell is liable under Labor Law § 241(6) is inconsistent with the holding that Bozell is not an owner within the meaning of Labor Law § 240(1), and is erroneous. While a fee owner may be held vicariously liable under section 241(6) regardless of whether it controlled the work being performed on its property or benefitted therefrom (see, Coleman v. City of New York, supra), a party, such as Bozell, who is not the fee owner, but an out-of-possession sublandlord who neither contracted for nor benefitted from the work, and who had no authority to exercise any control over the site of the work, cannot be held liable under section 241(6) (see, Saaverda v. East Fordham Road Real Estate Corp., supra; Grindley v. Town of Eastchester, 213 A.D.2d 448; Bardouille v. Structure-Tone, 282 A.D.2d 635, 637). Accordingly, Bozell is entitled to summary judgment dismissing the section 241(6) claim. Since that claim is the only claim remaining against Bozell, we modify to dismiss the complaint as against it.

We also modify to deny plaintiff summary judgment on the issue of the remaining defendants' liability under section 241(6), there being factual issues as to whether the scaffold from which plaintiff fell was at least seven feet high such as would support a violation of Industrial Code (12 NYCRR) § 23-5.1(j)(1).

Summary judgment was properly denied Poppe Tyson on its contractual indemnification claim against Bond, there being issues of fact as to Poppe Tyson's active negligence (see, Correia v. Professional Data Mgt., 259 A.D.2d 60, 64; Buccini v. 1568 Broadway Assocs., 250 A.D.2d 466, 468). However, on a search of the record, summary judgment should have been granted to Bond on the Owners' common-law indemnification claim as there is nothing in the record to support any claim that plaintiff suffered a grave injury within the meaning of Workers' Compensation Law § 11.

The Owners were properly granted partial summary judgment on their cross-claim against Bozell for breach of contract for failure to procure insurance where the lease between them required each to procure insurance naming the other as an additional insured, and, in response to the motion, Bozell failed to tender an insurance policy. The same cross-claim by the Owners against Poppe Tyson was properly dismissed where the sublease between Bozell and Poppe Tyson did not require the latter to name the Owners as additional insureds (see, American Home Assur. Co. v. Mainco Contr. Corp., 204 A.D.2d 500). However, the IAS court erroneously denied Bozell's and Poppe Tyson's motion to amend their answer so as to assert against the Owners a cross-claim for breach of contract to procure insurance on the ground that the movants had not submitted any evidentiary proof to show that the Owners breached such duty. Leave to amend should be freely granted and, absent any showing of prejudice by the Owners, the motion should have been granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.