Opinion
Nos. 155713/2018 595598/2019 595682/2019 Motion Seq. Nos. 003 004 005 006 007
04-05-2023
KENNETH FINNEGAN, Plaintiff, v. THOR EQUITIES, LLC, GENERAL GROWTH PROPERTIES, INC., RXR REALTY LLC, STRUCTURE TONE, LLC, 530 FIFTH RETAIL, LLC, and COMMODORE CONSTRUCTION CORPORATION, Defendant. STRUCTURE TONE, LLC, GENERAL GROWTH PROPERTIES, INC., 530 FIFTH RETAIL, LLC Plaintiff, v. COMMODORE CONSTRUCTION CORPORATION, MELTO METAL PRODUCTS CO., INC. Defendant. STRUCTURE TONE, LLC, GENERAL GROWTH PROPERTIES, INC., 530 FIFTH RETAIL LLC Plaintiff, v. DAL ELECTRICAL CORPORATION Defendant.
Unpublished Opinion
PRESENT: HON. FRANCIS A. KAHN, III Justice.
DECISION + ORDER ON MOTION
FRANCIS A. KAHN, III, A.J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 141, 142, 143, 144, 145, 146, 147, 195, 196 were read on this motion to/for _SUMMARY JUDGMENT (AFTER JOINDER).
The following e-filed documents, listed by NYSCEF document number (Motion 004) 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 261, 281, 301. were read on this motion to/for _JUDGMENT - SUMMARY:
The following e-filed documents, listed by NYSCEF document number (Motion 005) 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 262, 269, 270, 271, 272, 273, 274, 275, 276, 277, 299 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
The following e-filed documents, listed by NYSCEF document number (Motion 006) 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 263, 286, 287, 288, 289, 290, 291,292, 293, 294, 300 were read on this motion to/for JUDGMENT - SUMMARY_.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 264, 282, 283, 284, 285, 295, 296 were read on this motion to/for JUDGMENT - SUMMARY_. Upon the foregoing documents, the motions are determined as follows:
In this action, Plaintiff, Kenneth Finnegan, seeks to recover for injuries sustained on May 11, 2018, when he stepped in a hole while present at a construction project at 530 Fifth Avenue, New York, New York. At the time of his accident, Plaintiff was employed as a general foreman with Third-Party Defendant Meito Metal Products Co., Inc. ("Meito") and his duties included organizing Meito employees at the site, laying out the job, assisting the other workers when necessary, coordinating delivery and installation of the current load. Defendant 530 Fifth Retail LLC ("530") was an owner of the premises at issue and retained Defendant Structure Tone LLC ("Structure") as general contractor on the redevelopment project. Defendant Structure sub-contracted with Third-Party Defendants Meito, Commodore Construction Corp. ("Commodore") and Dal Electrical Corporation ("Dal") to provide trade services and supplies on the project.
Plaintiff commenced this action pleading causes of action for violation of Labor Law §§ 200, 240[ 1 ] and 241 [6]. Plaintiff also pled a common law negligence cause of action. Defendants Structure and 530 and General Growth Properties, Inc. ("Growth") answered jointly and asserted thirty-eight [38] affirmative defenses as well as crossclaims against Defendants Thor Equities LLC ("Thor") and RXR Realty LLC ("RXR") for common-law indemnification and contribution. Thor answered and pled eleven [11] affirmative defenses as well as crossclaims against RXR for common-law and contractual indemnification. Defendant RXR answered and pled eleven [11] affirmative defenses as well as a crossclaim against Thor, Growth, Structure and 530 for common-law and contractual indemnification.
The Plaintiff s claims and all crossclaims against Thor were discontinued by stipulation dated January 6, 2020 (NYSCEF Doc No 63).
Growth and Structure discontinued their crossclaims against one another by stipulation dated September 18 2019 (NYSCEF Doc No 55).
Thereafter, Growth, Structure and 530 commenced two third-party actions. The first was against Commodore and Meito wherein they pled causes of action for common-law and contractual indemnification as well as breach of contract for failure to procure insurance. Meito answered and pled twenty-three [23] affirmative defenses as well as a crossclaim against Commodore for common-law indemnification and contribution. Commodore answered and pled nine [5] affirmative defenses as well as two crossclaims against Meito for common-law indemnification, contribution and contractual indemnification. The second was against Dal which pled claims of common-law and contractual indemnification as well as breach of contract for failure to procure insurance. Dal answered and pled four [4] affirmative defenses as well as a "cross complaint" against Thor, RXR, Commodore and Meito for common-law indemnification and contribution and a "counter-complaint" against Growth, Structure and 530 for common-law indemnification and contribution.
Now, Defendant Dal moves (Mot Seq No 3) pursuant to CPLR §3212 for summary judgment j dismissing the second third-party complaint and to dismiss Commodore's crossclaims. Defendant Meito moves (Mot Seq No 4) pursuant to CPLR §3212 for summary judgment dismissing, as asserted against it, the first third-party complaint and all crossclaims. Plaintiff moves (Mot Seq No 5) for partial summary judgment pursuant to CPLR §3212 against Defendants on the cause of action based on Labor Law §§ 240[l]. Defendant Commodore moves (Mot Seq No 6) pursuant to CPLR §3212 for summary judgment dismissing all claims, third-party claims, and crossclaims. Defendants Growth, Structure and 530 move (Mot Seq No 7) pursuant to CPLR §3212 for summary judgment dismissing Plaintiffs complaint and on its cause of action for contractual indemnification against Meito. All the motions, in one form or another, are opposed.
"'[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]). Failure to make the requisite showing requires denial of the motion, regardless of the sufficiency of the opposition papers (see id. at 324; see also Smalls v AJI Industries. Inc., 10 N.Y.3d 733, 735 [2008]). Once a prima facie demonstration has been made, the burden shifts to the opponent to produce evidentiary proof that establishes the existence of a material issues of fact (see e.g. Giuffrida v Citibank Corp., 100 N.Y.2d 72 [2003]; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]).
I. Plaintiffs and Defendants' Growth, RXR, Structure and 530 motions for summary judgment on the Labor Law §240[ 1 ] claim.
Labor Law § 240[l] imposes "upon owners, contractors, and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work' for failure to provide workers proper protection from elevation-related hazards" (see Yaguachi v Park City 3 and 4 Apartments, Inc., 185 A.D.3d 635 [2d Dept 2020] quoting Aslam v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 135 A.D.3d 790, 791 [2d Dept 2016] quoting Barreto v Metropolitan Transp. Auth., 25 N.Y.3d 426, 433 [2015]). "The purpose of the statute is to protect workers... 'from the pronounced risks arising from construction work site elevation differentials'" (Villa v East 85th Realty, LLC, 189 A.D.3d 1661 [2d Dept 2020] quoting Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993]; Simmons v City of New York, 165 A.D.3d 725, 726-727 [2d Dept 2018]).
"[T]he fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1)" (O'Brien v Port Auth. of N.Y. &N.J, 29 N.Y.3d 27, 33 [2017]). "To prevail on a section 240 (1) claim, the plaintiff must show that the statute was violated, and that this violation was a proximate cause of his injuries" (Anderson v MSG Holdings, L.P., 146 A.D.3d 401, 402 [1st Dept 2017]).
Thus, on a motion for summary judgment, a plaintiff must proffer evidence which demonstrates, in the first instance, that necessary protection from the gravity-related risk of his construction work was not provided and/or that the safety device in use failed to provide proper protection (see e.g. Badzio v East 68th St. Tenants Corp., 200 A.D.3d 591 [1st Dept 2021]; Carpentieri v 309 Fifth Ave., LLC, 180 A.D.3d 571 [1st Dept 2020]; Camacho v Ironclad Artists Inc., 174 A.D.3d 426 [1st Dept 2019]).
As applied to the present circumstances, it has been held that the "[t]he collapse of a floor which causes a worker to fall even partially through presents an elevation-related risk notwithstanding the purely fortuitous circumstance that [a] plaintiff. . . was spared greater injuries from a higher fall or contact with the ground below" (Robertti v Chang, 227 A.D.2d 542, 543 [2d Dept 1996]). Similarly, an uncovered hole in a concrete floor which a plaintiff does not completely fall through can present a gravity-related risk (see Favaloro v Port Auth. of N.Y. &N.J, 191 A.D.3d 524, 525 [1st Dept 2021]; Carpio v Tishman Constr. Corp., 240 A.D.2d 234, 235 [1st Dept 1997]["Plaintiffs partial fall through a hole at a construction site can hardly be characterized as only tangentially related to the effects of gravity"]; see also Sunun v Klein, 188 A.D.3d 507 [1st Dept 2020]; Santos v State of New York, 169 A.D.3d 1328 [3d Dept 2019]). There is also "'no bright-line minimum height differential that determines whether an elevation hazard exists'" (Brown v 44 St. Dev., LLC, 137 A.D.3d 703, 704 [1st Dept 2016], quoting Auriemma v Biltmore Theatre, LLC, 82 A.D.3d 1, 9). However, where the size of an opening and/or the height differential does not present type of elevation-related hazard contemplated under the statute, liability will not exist (see Eliassian v G.F. Constr., Inc., 190 A.D.3d 947 [2d Dept 2021]; Sawczyszyn v New York Univ., 158 A.D.3d 510 [1st Dept 2018]; Torkel v NYU Hosps. Ctr., 63 A.D.3d 587 [1st Dept 2009]; Miller v Weeden, 1 A.D.3d 684 [2d Dept 2004]).
In this case, Plaintiff testified at his deposition the accident occurred at about 2:15 pm as he was standing on the ground floor of the construction site, which was comprised of a concrete slab, preparing to leave work for the day. Plaintiff averred that while he was "wrapping up a welding lead" he sidestepped into a round hole in the floor, twisted his right knee and fell to the ground. He stated that his entire foot, but no other part of his lower leg, entered the hole. He also testified that his ankle was either in the hole or at the level of the hole. Plaintiff also testified that his foot stuck in the hole, pointed down, and that he did not "think" any other part of his lower leg went into the hole. Concerning the size of the hole, Plaintiff could only state that it was large enough to fit his size 13 shoe. He also averred that the hole penetrated completely through the concrete floor and the basement floor could be seen below. Plaintiff testified at his deposition that photographs marked as defense Exhibits F, G and I depicted the hole he claims cause him to fall. Michael Sansone ("Sansone"), a site superintendent for Structure, testified that the basement floor could not be seen through the hole because there was insulation therein which was placed to stop falling debris. He identified the insulation in the above photographs as being blue in color. Patrick Cotter ("Cotter"), a foreman for Commodore, testified that the hole was six inches in size.
Contrary to the arguments of Plaintiff and Defendants Growth, RXR, Structure and 530, the testimony raises issues of fact as to whether the size and depth of the defect rendered it a gravity-related hazard within the meaning of Labor Law §240[l ] (see Payne v NSH Community Servs., Inc., 203 A.D.3d 546, 547 [1st Dept 2022]; Gallagher v Levien &Co., 12 A.D.3d 407 [1st Dept 2010]). Plaintiff testified that the hole was large enough to fit his size 13 shoe, but Cotter stated that the hole appeared to be six inches across. There is no proof to contradict Plaintiffs testimony that the hole went completely through the concrete floor, but he did not know how far below the hole the basement floor laid. Moreover, Plaintiff admitted that his foot became stuck in the hole and penetrated, at most, to his ankle. Thus, even accepting that the hole went through the floor, its size may have limited the distance a worker could fall effectively negating its overall depth. Lastly, Plaintiff claimed the photographs of the hole revealed the basement floor. Sansone contradicted that testimony and averred that the material in the hole was insulation.
II. Defendant Commodore's motion on the Labor Law §240[1] claim.
Defendant Commodore claims that unlike Defendants Growth, RXR, Structure and 530, which do not dispute the applicability of Labor Law §240(1] to them, it cannot be liable under that section as it was a subcontractor and not an agent of the general contractor or owner. "Labor Law § (240(1)] does not automatically apply to all subcontractors on a site or in the 'chain of command'" (Vargas v Peter Scalamandre &Sons, Inc., 105 A.D.3d 454, 455 [1st Dept 2013], citing Russin v Louis N. Picciano & Son, 54 N.Y.2d 311, 317-318 [1981]; see also Guevara-Ayala v. Trump Palace/Parc LLC, 205 A.D.3d 450, 451 [1st Dept 2022]). "Rather, for liability under the statute to attach to a defendant, a plaintiff must show that the defendant exercised control, either over the plaintiff, the specific work area involved or the work that gave rise to the injury" (Vargas v Peter Scalamandre &Sons, Inc., supra).
However, a contractor "may nonetheless become responsible if [they have] been delegated the authority and duties of a general contractor, or if [they function] as an agent of the owner of the premises" (see Rodriguez v JMB Architecture, LLC, 82 A.D.3d 949 [2d Dept 2011]; see also Walls v Turner Constr. Co., 4 N.Y.3d 861 [2005]; Johnsen v City of New York, 149 A.D.3d 822 [2d Dept 2017]). A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a Plaintiff is injured (see Labor Law §§ 200, 241[6]; Russin v Picciano &Son, 54 N.Y.2d 311, 318 [1981]). "The determinative factor is whether the defendant had the right to exercise control over the work, not whether it actually exercised that right" (Santos v Condo 124 LLC., 161 A.D.3d 650, 653 [1st Dept 2018]; see also Barreto v Metro. Transp. Auth., 25 N.Y.3d 426, 434 [2015]).
As the movant, it was incumbent upon Commodore to demonstrate in the first instance that it was neither a contractor nor agent within the meaning of the statute (see Zaher v Shopwell, Inc., 18 A.D.3d 339 [1st Dept 2005]; Garcia v Pepsico, Inc., 303 A.D.2d 227 [1st Dept 2003]; Pest v Beeper Connection Paging, Inc., 302 A.D.2d 249 [1st Dept 2003]). In support of the motion, Commodore established it lacked the right to ensure that safety protocol was followed at the work site in general. The deposition testimony of Plaintiff, Commodore, Structure and Meito showed that Plaintiff was supervised by and took direction only from Meito personnel. As such, Commodore established prima facie that it was not a contractor or statutory agent of Structure or the owner on the project (see generally Fischetto v LB 745 LLC, York, 43 A.D.3d 810 [1st Dept 2007]).
In opposition, Plaintiff raised in issue of fact as to whether Commodore had been delegated the responsibility to correct the condition at issue (see Vargas v Peter Scalamandre & Sons, Inc., 105 A.D.3d 454 [1st Dept 2013]; Moore v URS Corp., 209 A.D.3d 438 [1st Dept 2022]). Cotter testified that it was Commodore's responsibility to cover holes, including ones as small as four inches, that existed in its work areas. Cotter acknowledged that Tenant Space B in the northeast corner of the project, the area where the incident occurred, was part of Commodore's work area and that if he had come across a hole like the one depicted in the photographs marked at the parties' depositions, he would have covered it with plywood. To the extent Cotter denied or claimed ignorance as to whether covering the subject hole was Commodore's responsibility, it does not nullify his earlier statements. That the subcontract between Structure and Commodore may fail include an express responsibility to remedy conditions like the hole at issue does not absolve Commodore as a matter of law. Indeed, there are multiple general responsibilities listed under the scope of work that could encompass such a task (eg. Comply with all Structure Tone site safety drawings and guidelines; Adhere to building rules and regulations). Under its "Terms and Conditions", Commodore was to perform "the Work ... in a first class manner consistent with the construction practices prevailing in the area. Further, that section states that Structure's j "Corporate Safety Health and Environmental Policies" are incorporated by reference.
To establish liability on a Labor Law §241 [6], a claimant must demonstrate that their injuries were proximately caused by a violation of the Industrial Code applicable to the situation (see Reyes v Astoria 31st Street Developers, LLC, 190 A.D.3d 872 [2d Dept 2021]; Ortega v Roman Catholic Diocese of Brooklyn, N. Y, 178 A.D.3d 940 [2d Dept 2019]; Melchor v Singh, 90 A.D.3d 866, 870 [2d Dept 2011]; see also Misicki v Caradonna, 12 N.Y.3d 511,515 [2009]). Each section of the Industrial Code relied upon by a claimant must be a "concrete specification" "mandating a distinct standard of conduct" and "not merely a restatement of common-law principles" (see Becerra v Promenade Apartments Inc., 126 A.D.3d 557, 558 [1st Dept 2015], quoting Misicki v Caradonna, supra and Ross v Curtis-Palmer Hydro- Elec. Co., supra; see also Alberto v DiSano Demolition Co., Inc., 194 A.D.3d 607 [1st Dept 2021]). ]
Although comparative fault is a viable defense to a Labor Law §241 [6] cause of action (see Drago v TYCTA, 227 A.D.2d 372 [2d Dept 1996]), a claimant is not required to demonstrate freedom from comparative fault on a motion for summary judgment (see Ortega v Roman Catholic Diocese of Brooklyn, N. Y., supra; see also Rodriguez v City of New York, 31 N.Y.2d 312, 313 [2018]).
To be entitled to summary judgment, Defendant is required to show that all the sections pled by Plaintiff were not concrete, inapplicable or did not cause his injuries (see generally Spencer v Term Fulton Realty Corp., 183 A.D.3d 441,442 [1st Dept 2020]; Armental v 401 Park Ave. S. Assoc., LLC, 182 A.D.3d 405, 407 [1st Dept 2020]).
As cited in the bill of particulars, Plaintiff relies on alleged violations of 12 NYCRR §§23-1.5, 23-1.7, 23-2.1, 23-1.30, 23-2.2, 23-2.5, and 23-2.6 and Article 26 of OSHA. However, in opposition to Defendant Commodore's motion, Plaintiff only offers arguments in support of sections 23-1.7[b][ 1 ][i] and [e][l] and [2], Both are sufficiently specific to be actionable (see Rizzuto v L.A. Wenger Contracting Co., Inc., supra; Licata v AB Green Gansevoort, LLC, 158 A.D.3d 487, 489 [1st Dept 2018]).' By failing to raise any argument in support of the other sections, Plaintiff abandoned reliance on same (see Murphy v Schimenti Constr. Co., LLC, 204 A.D.3d 573 [1st Dept 2022]; Digirolomo v 160 Madison Ave LLC, 294 A.D.3d 640 [1st Dept 2021]; Kempisty v 246 Spring St., LLC, 92 A.D.3d 474 [1st Dept 2012]).
Plaintiffs reliance on section 23-1,7[b][l] [i] is misplaced as that section applies to "openings deep enough for a person to fall all the way through" Favaloro v Port Auth. of N.Y. & N.J., supra; Messina v City of New York, 300 A.D.2d 121, 123 [ 1st Dept 2002]).
Industrial Code section 23-1.7[e], titled "Tripping and other hazards" provides that:
[1] Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed covered.
[2] Working areas. The parts of floors, platforms, and similar areas j where persons work or pass shall be kept free from accumulations i of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.
Section 23-1.7[e][l] is applicable only to passageways, but the Industrial Code does not contain a definition of that term (Prevost v One City Block LLC, 155 A.D.3d 531, 535 [1st Dept 2017]). Courts have "'interpreted the term to mean a defined walkway or pathway used to traverse between discrete areas as opposed to an open area'" (id., quoting Steiger v LP Ciminelli, Inc., 104 A.D.3d 1246, 1250 [4thDept 2013]). The Appellate Division, First Department has further observed that "[a] 'passageway' is commonly defined and understood to be 'a typically long narrow way connecting parts of a building' and synonyms include the words corridor or hallway (Quigley v Port Auth. of N.Y.&N.J., 168 A.D.3d 65, 67 [1st Dept 2018], citing Merriam-Webster Online Thesaurus, passageway [https://www.merriam-webster.com/thesaurus/passageway]). Plaintiff testified that that incident occurred in his work area which he described as "a pretty big room" that was "fairly large". As described, the incident location was an open area rather than passageway which renders this section inapplicable (see Lenard v. 1251 Ams. Assocs., 241 A.D.2d 391, 392 [1st Dept 1997]).
Section 23-1.7[e][2] is broader and apples to "parts of floors, platforms, and similar areas where persons work or pass" and it is apparent that the area where Plaintiff qualifies as a working area. However, this section is ultimately inapplicable as there is no testimony that Plaintiffs accident was caused by "dirt and debris", "scattered tools", "materials" or "sharp projections" (see Cappabianca v Skanska USA Bldg. Inc., 99 A.D.3d 139, 147 [1st Dept 2012]; Rodriguez v BCRE 230 Riverdale, LLC, 91 A.D.3d 933, 935 [2d Dept 2012]; cf. Licata v AB Green Gansevoort, LLC, 158 A.D.3d 487, 489 [1st Dept 2018]).
Labor Law §200 and Common Law Negligence
Defendants also seek to dismiss Plaintiffs Labor Law §200 and common-law negligence claims. Labor Law §200 is a codification of the common-law duty of landowners and general contractors, as well as their agents, to provide a safe place to work (see Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d at 352). "A claim for common-law negligence may lie even though there is no Labor Law § 200 liability" (Mullins v Ctr. Line Studios, 194 A.D.3d 421, 422 [1st Dept 2021]). "Claims for personal injury under the statute and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed" (Cappabianca v Skanska USA Bldg. Inc., supra at 143-144 [1st Dept 2012]). Although "[t]hese two categories should be viewed in the disjunctive" (Ortega v Puccia, 57 A.D.3d 54 [2d Dept 2008]), meaning that cases ordinarily fall into one category or another, this principle is not absolute as overlapping conditions frequently arise (see e.g. Cackett v Gladden Props., LLC, 183 A.D.3d 419, 420-421 [1st Dept 2020]; Mitchell v Caton on the Park, LLC, 167 A.D.3d 865, 867 [2d Dept 2018]). Here, the condition at issue, a hole in the concrete floor of the premises that, by most accounts, should have been covered, presents a seeming combination of the above (see Favaloro v Port Auth. of N.Y.&N.J, supra; Cackett v Gladden Props., LLC, supra).
Where the accident is a consequence of a defective condition on a premises "'a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice'" (Mendoza v Highpoint Assoc., IX, LLC, 83 A.D.3d 1, 9 [1st Dept 2011], citing ] Chowdhury v Rodriguez, 57 A.D.3d 121, 128 [2d Dept 2008]). "A contractor may be liable in commonlaw negligence and under Labor Law § 200 in cases involving an allegedly dangerous premises condition 'only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it'" (Doto v Astoria Energy II, LLC, 129 A.D.3d 660 [2d Dept 2015], citing Martinez v City of New York, 73 A.D.3d 993, 998 [2d Dept 2010]; see also Urban v No. 5 Times Sq. Dev., LLC, 62 A.D.3d 553, 556 [1st Dept 2009]). "Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work" (Cappabianca v Skanska USA Bldg. Inc., supra at 144; see also Prevost v One City Block LLC, supra [1st Dept 2017]). "A claim for common-law negligence may lie even though there is no Labor Law § 200 liability" (Mullins v Ctr. Line Studios, 194 A.D.3d 421, 422 [1st Dept 2021]). "'[A] subcontractor . . . may be held liable for negligence where the work it performed created the condition that caused the plaintiffs injury even if it did not possess any authority to supervise and control the plaintiffs work or work area'" (Poracki v St. Mary's Roman Catholic Church, 82 A.D.3d 1192, 1195 [2d Dept 2011], citing Tabickman v Batchelder St. Condominiums by the Bay, LLC, 52 A.D.3d 593, 594).
Here, there are issues of fact whether the accident was caused by a dangerous condition at the site (the exposed hole and Defendants' Growth, Structure and 530 notice thereof), the alleged means and methods of Commodore's work in allegedly failing to cover same, or a combination of these two, which precludes dismissal of Plaintiff s Labor Law §200 and common-law negligence causes of action (see Favaloro v Port Auth. of N.Y.&N.J., supra; Cackett v Gladden Props., LLC, supra).
Indemnification/Contribution and Insurance
I. Common-Law Indemnification
A claim for common-law indemnity can only be sustained by a non-negligent party whose liability is purely vicarious (see Broyhill Furniture Indus., Inc. v Hudson Furniture Galleries, LLC, 61 A.D.3d 554, 556 [1st Dept 2009]). Contribution is an apportionment of rights among wrongdoers who share responsibility for an injury (see CPLR §1401; Garrett v Holiday Inns, Inc., 58 N.Y.2d 253, 258 [1983]). Therefore, a prima facie case for dismissal of the indemnification and contribution claims requires the moving party to establish it was not negligent or that the claims are otherwise inviable as a matter of law (see Higgins v TST 375 Hudson, L.L.C., 179 A.D.3d 508, 511 [1st Dept 2020]; CONRAIL v Hunts Point Terminal Produce Coop. Ass'n, 11 A.D.3d 341, 342 [1st Dept 2004]).
Based on the foregoing deposition testimony, the branches of the motions for dismissal of the claims for common-law indemnification against Growth, Structure, 530 and Commodore fail since they have not demonstrated they were absent negligence as a matter of law (see eg Hammer v ACC Constr. Corp., 193 A.D.3d 455 [1st Dept 2021]).
Dal's motion for summary judgment dismissing the common-law indemnification and contribution claims of Growth, Structure and 530 was supported by the deposition testimony of Plaintiff and Sansone, an employee of Structure. Salvatore D'Alessio ("D' Alessio"), an employee of Dal Electrical, testified that Dal was retained to perform, among other things, installation of permanent and temporary lighting at the project. D'Alessio averred that was unaware who created the hole at issue nor of any complaints concerning lighting at the project, including the temporary installations. Plaintiff acknowledged that he had no trouble with the lighting conditions in the area just before his accident.
More importantly, Plaintiff averred that he was side-stepping and not looking in the direction he was moving just prior to stepping in the hole. As such, Dal demonstrated that it was not negligent, and that the adequacy of the lighting was not a proximate cause of Plaintiff s accident. The testimony also demonstrated that Dal neither had general control over the work site nor control over Plaintiff s work such that Labor Law §200 was inapplicable to Dal (see Rodriguez v JMB Architecture, LLC, 82 A.D.3d 949 [2d Dept 2011]; Bell v Bengomo Realty, Inc., 36 A.D.3d 479, 481 [1st Dept 2007]; Ryder v Mount Loretto Nursing Home Inc., 290 A.D.2d 892 [3rd Dept 2002]). Also absent was the existence of a common-law duty owed to Plaintiff by Dal (see Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 140 [2002]).
In opposition, Growth, Structure and 530 failed to raise an issue of fact. Plaintiffs testimony that he was ''not sure" if illumination caused his fall is, at best, speculation which, in any event, is negated by his admission that he was not looking where he was going (see Branham v Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931 [2007]; Knickerbocker v Ulster Performing Arts Ctr., 74 A.D.3d 1526 [3d Dept 2010]; see also Goldberg v Village of Mount Kisco, 125 A.D.3d 929 [2d Dept 2015] [Plaintiff cannot resort to speculation as to the cause of a fall]). Plaintiffs other testimony that he "sometimes" had problems seeing where he was going did not specifically refer to the time and place of the accident.
Meito argues, pursuant to Workers' Compensation Law §11, that the common law indemnification and contribution claims are not viable since it was Plaintiffs employer, and he did not sustain a grave injury. Meito demonstrated that, within the narrow definition of the Workers' Compensation Law, Plaintiff did not sustain a "grave injury" (see Castro v United Container Machinery Group, 96 N.Y.2d 398 [2001]; Clarke v Empire General Contracting &Painting Corp., 189 A.D.3d 611, 612-613 [1st Dept 2020] citing Rubeis v Aqua Club, Inc., 3 N.Y.3d 408, 417 [2004]). In opposition, no party countered this argument.
II. Contractual Indemnification
A claim for contractual indemnification claim is dependent upon the specific language of the contract (see Ging v F. J. Sciame Constr. Co., Inc., 193 A.D.3d 415, 418 [1st Dept 2021]; Anderson v United Parcel Service, 194 A.D.3d 675, 678 [2d Dept 2021]). "The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances" (George v Marshalls of MA, Inc., 61 A.D.3d 925, 930 [2d Dept 2009]; see also Wai Cheung v 48 Tenants' Corp., 192 A.D.3d 503 [1st Dept 2021]). Further, absent a legal duty to indemnify, an agreement containing that obligation must be strictly construed so as not to create an unintended responsibility (see eg Tanking v Port Auth., 3 N.Y.3d 486, 490 [2004]).
Section 11.2 of the terms and conditions of the three contracts between Structure and subcontractors Dal, Meito and Commodore reads, in pertinent part, as follows:
To the fullest extent by Law, Subcontractor will Indemnity and hold harmless Structure Tone, LLC, the owner of the project, the owner of the property where the job/project is located, and all parties required to be indemnified by the prime contract entered into by Structure Tone, LLC in connection with the job/project work, and any of their trustees, officers, members, directors, agents, affiliates, parents, subsidiaries, and servants and employees form and against any and all claims, suits, liens, judgments, damages, losses and expenses including reasonable legal fees and costs arising in whole or in part and in any manner from the act, omissions, breach or default of Subcontractor, sub-subcontractors.
its officers, directors, agents, employees and Subcontractors in connection with the performance of any work by subcontractor, its employees and sub-subcontractors pursuant to this Subcontract/Purchase Order or a related Proceed Order. Subcontractor will defend and bear all costs of defending any action or proceeding brought against Structure Tone, LLC, and or Owner, their officers, directors, agents and employees, arising in whole or in part out of any such acts, omission, breach or defaults.
The above contract language obligated these subcontractors to indemnify the covered parties not simply in the case of their negligence, but far more broadly for acts "arising out of or resulting from any work and caused in whole or in part by any act or omission of Subcontractor" (see Licata v AB Green Gansevoort, LLC, 158 A.D.3d 487, 490-491 [1st Dept 2018]).
Since Dal demonstrated, based upon the findings supra, Plaintiffs accident was entirely unrelated to its actions, the claim for contractual indemnification against it fails (see DeGidio v City of New York, 176 A.D.3d 452, 454 [ 1st Dept 2019]).
Meito's assertion that Plaintiffs fall did not arise out of or result from his work is without merit as; "that obligation was triggered by the claim of plaintiff, an employee of [Meito], for damages for injuries he sustained while performing [Meito's] work" (see Paulino v Bradhurst Assoc., LLC, 144 A.D.3d 430, 431 [1st Dept 2016]; see also Quiroz v New York Presbyt./Columbia Univ. Med. Ctr., 202 A.D.3d 555 [1st Dept 2022]; Cackett v Gladden Props., LLC, 183 A.D.3d 419 [1st Dept 2020]; Rudnitsky v Macy's Real Estate, LLC, 189 A.D.3d 490 [1st Dept 2020]). Nevertheless, since Growth, Structure and 530 have not demonstrated their freedom from negligence nor that any of these Defendants could not be the sole proximate cause of the accident, compete or conditional summary judgment on their claims for contractual indemnification is not appropriate (see Pawlicki v 200 Park, L.P., 199 A.D.3d 578, 579 [1stDept 2021; Pardo v Bialystoker Ctr. & Bikur Cholim, Inc., 10 A.D.3d 298 [1st Dept 2007]).
Commodore, based upon the Court's findings supra, has not demonstrated Plaintiffs accident did not arise out of its failure to cover the hole at issue or that it was not obligated to perform that task. As such, the branch of its motion for summary judgment dismissing the claims against it for contractual indemnification fail. With respect to the crossclaims of Commodore against Meito for contractual indemnification, the record reveals no applicable indemnification provision and Commodore proffered no opposition to this branch of Meito's motion (see eg Rivera v 203 Chestnut Realty Corp., 173 A.D.3d 1085, 1087 [2nd Dept 2019]).
III. Breach of Contract for Failure to Procure Insurance
To be entitled to dismissal of Growth, Structure and 530's claims for failure to procure insurance, Commodore, Meito and Dal were required to demonstrate, prima facie, that the requisite insurance in accordance with their contracts was obtained (see eg Georges v Resorts World Casino New York City, 189 A.D.3d 1549, 1551 [2d Dept 2020]; Perez v Morse Diesel Inti., Inc., 10 A.D.3d 497, 498 [1st Dept 2004]). Defendants Commodore and Meito demonstrated that they obtained the requisite insurance and Growth, Structure and 530 failed to address same in their opposition. Accordingly, these claims against Commodore and Meito were abandoned (see Norris v Innovative Health Sys., Inc., 184 A.D.3d 471,473 [1st Dept 2020]). Concerning Dal, it demonstrated its prima facie case with production of a certificate of insurance and copy of the insurance policy it obtained (see Benedetto v Hyatt Corp., 203 A.D.3d 505 [1st Dept 2022]). The that the carrier declined Growth and 530's tender does not raise an issue of fact (see Arner v RREEF Am., L.L.C., 121 A.D.3d 450 [1st Dept 2014]; Garcia v A&P, 231 A.D.2d 401 [1st Dept 1996]). Accordingly, it is
ORDERED that the motion (MS# 5) by Plaintiff for summary judgment on his Labor Law §240[l] claim is denied, and it is
ORDERED that the branch of the motion by Defendants Growth, Structure and 530 (MS# 7) and Defendant Commodore (MS # 6) for summary judgment dismissing Plaintiffs Labor Law §240[1], §200 and common-law negligence claims are denied, and it is further
ORDERED that the Plaintiffs cause of action pursuant to Labor Law §241 [6] is dismissed as against all Defendants, and it is
ORDERED that the branches of the motions for dismissal of the claims for common-law indemnification against Growth, Structure, 530 and Commodore are denied, and it is
ORDERED that the branches of the motions by Defendant Dal (MS# 3) and Defendant Meito (MS# 4) to dismiss the common-law indemnification and contribution claims against them are granted, and it is
ORDERED that that the branch of the motions by Defendants Meito and Commodore to dismiss the contractual indemnification claims of Growth, Structure and 530 are denied, and it is
ORDERED that the branch of the motion by Defendants Dal to dismiss the contractual indemnification claims of Growth, Structure and 530 is granted, and it is
ORDERED that the branch of the motions by Defendant Meito to dismiss the contractual indemnification claim of Commodore is granted, and it is
ORDERED that the branches of the motions of Defendants Commodore, Meito and Dal to dismiss the claims for breach of contract for failure to procure insurance are granted.