Opinion
159038/16
09-03-2019
Jose GAMEZ, Plaintiff, v. KEW GARDENS HILLS, LLC, A & E Real Estate Holdings, LLC, A & E Real Estate Management, Inc., and JW Development Holdings, LLC, Defendants. Kew Gardens Hills, LLC, A & E Real Estate Holdings, LLC, A & E Real Estate Management, Inc., and JW Development Holdings, LLC, Third-Party Plaintiffs, Alpine Construction & Renovation Corp., Third-Party Defendant.
Wingate, Russotti, Shapiro & Halperin, LLP, New York City (Frank J. Lombardo and David M. Schwarz of counsel) for plaintiff. Ahmuty Demers & McManus, Albertson (Marie I. Goutzounis of counsel) for defendants/third-party plaintiffs. Lewis Brisbois Bisgaard & Smith LLP (Matthew P. Cueter of counsel) for third-party defendant.
Wingate, Russotti, Shapiro & Halperin, LLP, New York City (Frank J. Lombardo and David M. Schwarz of counsel) for plaintiff.
Ahmuty Demers & McManus, Albertson (Marie I. Goutzounis of counsel) for defendants/third-party plaintiffs.
Lewis Brisbois Bisgaard & Smith LLP (Matthew P. Cueter of counsel) for third-party defendant.
Robert R. Reed, J.
Motion sequence numbers 003 and 004 are consolidated for disposition.
In this action arising out of a construction site accident, third-party defendant Alpine Construction & Renovation Corp., Inc. (Alpine) moves, pursuant to CPLR 3212, for: (1) summary judgment dismissing the complaint; and (2) summary judgment dismissing the third-party complaint (motion sequence number 003).
Defendants/third-party plaintiffs Kew Gardens Hills, LLC, A & E Real Estate Holdings, LLC, A & E Real Estate Management, Inc., and JW Development Holdings, LLC move, pursuant to CPLR 3212, for summary judgment on their third-party claims for common-law indemnification, contractual indemnification, and breach of contract for failure to procure insurance against Alpine. In addition, defendants/third-party plaintiffs seek summary judgment dismissing Alpine's counterclaims asserted against them (motion sequence number 004).
Plaintiff Jose Gamez cross-moves, pursuant to CPLR 3212, for partial summary judgment on the issue of liability under Labor Law §§ 240 (1) and 241 (6) as against defendants/third-party plaintiffs.
BACKGROUND
Plaintiff was injured on July 18, 2016 at 153-31 75th Avenue in Flushing, New York. Plaintiff alleges that he fell while scraping a window in a hallway area of the building. It is undisputed that Kew Gardens Hills, LLC was the owner of the premises. According to plaintiff, A & E Real Estate Holdings, LLC and A & E Real Estate Management, Inc. were the managing agent of the premises. Kew Gardens Hills, LLC subsequently hired JW Development Holdings, LLC as a general contractor. On July 5, 2016, JW Development Holdings, LLC hired Alpine as a subcontractor to paint the hallways at the premises. Plaintiff was an employee of Alpine on the date of his accident.
Plaintiff testified at his deposition that, in July 2016, he was employed by Alpine (NY St Cts Electronic Filing [NYSCEF] Doc No. 108, plaintiff tr at 10). Alpine remodeled apartments and hallways (id. at 11). Plaintiff did painting and plastering work, and worked in approximately 70 buildings (id. at 23). Alpine's supervisors gave him instructions as to how to perform his work (id. ). According to plaintiff, he had an accident on a Monday, either July 17, 2016 or July 18, 2016 (id. at 28). On the Thursday before his accident, his boss Tony told him that he was going to scrape and paint a hallway at 75 Flushing Avenue on the following Monday (id. at 20, 28, 29). Plaintiff had never worked in that building before (id. at 30). According to plaintiff, Alpine stored its equipment in the Bronx (id. at 21). Previously, plaintiff had used a six-foot A-frame ladder and a 25-foot ladder to perform his work with Alpine (id. at 24-25). Plaintiff also stated that Alpine had five-foot A-frame ladders that were available on the date of his accident (id. at 106, 206). Plaintiff further testified that, in the event an Alpine employee needed another ladder, "[y]ou have to call and tell them you needed a ladder and they will buy it" (id. at 106). Plaintiff also used a spatula, a hammer, a drill, and rollers and brushes to do his work (id. at 26). He described the procedure to scrape and paint the walls as follows: he covered the floor, scraped the walls, and then did some cleaning, and after that, he put plaster and compound on the wall, and, finally, he sanded and painted (id. at 30).
On the day of his accident, plaintiff scraped from the first floor to the second floor (id. at 42). He was working alone (id. ). The dimensions of the landing between the first and second floors were about two feet by two-and-a-half feet (id. at 52). Plaintiff used a ladder before he reached the landing (id. at 54). According to plaintiff, at some point, he needed to scrape the upper part of a window (id. at 55). The window was about six feet tall and two feet wide, and the window sill was about six inches deep (id. at 60). He then took the ladder back down to the first floor (id. at 54). Plaintiff explained that he would not have been able to open the ladder completely to access the upper part of the window because of the dimensions of the landing (id. at 55). Even if he had been able to open the ladder, he would not have been able to reach the top of the window; "[t]he only option [he] had was standing up on this part of the window" (id. at 56, 57). Plaintiff said of the area near the landing that it "was kind of wet around there" (id. at 58). He testified that "[i]t made a balloon. Once [they] started scraping, it gets sort of damp, wet because the windows are open and water comes through that. Also, the marble gets slippery" (id. at 58-59). Plaintiff testified that the building's residents had opened the window because of the smell of the dust and plaster (id. at 59). When plaintiff arrived that morning, the window was open about eight inches (id. at 61).
Plaintiff did half of the window while standing next to it, and then stood on the window sill in order to reach the top (id. at 62, 63). In order to stand upon the window sill, plaintiff stepped onto his compound bucket and grabbed onto the corner of the window (id. at 63). The window sill was "clean" and "smooth" (id. ). However, "[i]t was always kind of damp because it had three layers of paint" (id. ). Plaintiff wiped off the window sill with a towel before he stepped onto it (id. ). Plaintiff stated that, while he was scraping, "something came out of the scraper," "[s]and fell down" into his eyes, causing plaintiff's right foot to slip and plaintiff to fall down (id. at 66). Plaintiff hit his forehead on the wall, and his knees and hand hit the marble on the landing (id. at 69).
Anthony Marcellino (Marcellino), Alpine's vice president, testified that the company does plastering, painting, and apartment renovations (NYSCEF Doc No. 113, Marcellino tr at 7, 8). Alpine had a contract to perform plastering, painting, and renovations at the Kew Gardens Hills location, which contained approximately 100 buildings (id. at 24, 25, 26). Marcellino testified that Alpine employees were provided with, among other things, stepladders and extension poles (id. at 17). A scraper could be attached to an extension pole; "[t]hey could makeshift it" (id. at 72). Each employee had an extension pole (id. at 73). Alpine had two-foot, five-foot, and six-foot extension poles (id. at 20). When Alpine employees requested tools, they were delivered "[w]ithin a day or so" (id. at 20-21). Alpine employees also had step stools (id. at 54). Alpine also had four-foot, five-foot, and six-foot A-frame ladders (id. at 56, 92-93). According to Marcellino, the three-step step stools would have been able to open completely on the landing (id. at 71). Marcellino arrived at the building right after plaintiff had his accident (id. at 39). Marcellino did not observe any wetness in the area (id. at 58). Marcellino was told that plaintiff was standing on a five-gallon compound bucket when he slipped and fell (id. at 52-53). Marcellino testified that the storage room was in one of the basements of the complex (id. at 53). However, he stated that "it could have been changed from location to location because sometimes you were two, three blocks away" (id. ).
Louis Cutri (Cutri) testified that he was a senior project manager employed by A & E Real Estate Management, Inc. (NYSCEF Doc No. 110, Cutri tr at 7). A & E Real Estate Management, Inc. oversaw and managed the properties for the owners (id. at 9). He did not have any dealings with Alpine (id. at 19). A & E Real Estate Management, Inc. did not provide any equipment for the project (id. at 21).
Nicholas Vlantes (Vlantes), a property manager employed by A & E Real Estate Management, Inc., testified that he oversaw the maintenance of the Kew Gardens Hills complex location (NYSCEF Doc No. 112, Vlantes tr at 7). He supervised handymen who plastered and painted apartments, but not the common areas of the building (id. at 9).
Vlantes avers that he measured the landing near where plaintiff fell, and that the landing is approximately three feet by three feet or 36.5 inches side-to-side and 37 inches deep (NYSCEF Doc No. 200, Vlantes aff, ¶ 6). According to Vlantes, the landing has not changed since July 2016 (id. , ¶ 4).
Sunaj Asanov (Asanov), JW Development Holdings, LLC's construction manager, testified that JW Development Holdings, LLC selected the paint color, but Alpine provided ladders, paint brushes, and materials for the work (NYSCEF Doc No. 111, Asanov tr at 27, 31, 41-42). Asanov did walkthroughs on the project to check the building's condition (id. at 41-42).
A C-2 report dated July 18, 2016 states that plaintiff "slipped on step and hit leg on banister" (NYSCEF Doc No. 209, Goutzounis affirmation in opposition, exhibit B at 7).
An incident investigation report dated July 18, 2016, which was completed by Joy Talavera, indicates that "Mr. Gamez used compound bucket as a stepping stool to perform plaster work to window wall area, stepped down and missed step and fell down stairs approx. 15? and hit leg on banister" (id. at 11). The report further states that "Mr. Gamez used bucket instead of step stool because he didn't get the step stool from storage room" (id. ).
A Queens Hospital Center emergency room record dated July 18, 2016 states that:
"37 y.o. M denies any pmhx, presents to the ER s/p fall from a ladder, states that he was up 2-3 steps up the ladder, tripped on step and fell on the right lower extremity. Denies any numbness, tingling, weakness. Denies any chest pain, shortness of breath, palpitations. Denies any head trauma /falls, dizziness or loss of consciousness" (NYSCEF Doc No. 211, Goutzounis affirmation in opposition, exhibit D at 3).
Plaintiff's complaint asserts four causes of action against defendants, seeking recovery for common-law negligence and for violations of Labor Law §§ 200, 240, and 241, and 241-a.
Defendants brought a third-party action against Alpine, seeking: (1) contractual indemnification; (2) common-law indemnification; (3) contribution; and (4) damages for failure to procure insurance. Defendants/third-party plaintiffs seek attorneys' fees and costs incurred in defending the action from Alpine.
In its answer to the third-party complaint, Alpine asserted the following three counterclaims against defendants/third-party plaintiffs: (1) contractual indemnification; (2) common-law indemnification and/or contribution; and (3) breach of contract for failure to obtain adequate insurance.
DISCUSSION
It is well settled that "[t]he proponent of summary judgment must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law" ( Ryan v Trustees of Columbia Univ. in the City of NY, Inc. , 96 AD3d 551, 553 [1st Dept 2012] [internal quotation marks and citation omitted] ). "Thus, the movant bears the burden to dispel any question of fact that would preclude summary judgment" (id. ). "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" ( Giuffrida v Citibank Corp. , 100 NY2d 72, 81 [2003] ). The court's function on a motion for summary judgment is "issue-finding, rather than issue-determination" ( Sillman v Twentieth Century-Fox Film Corp. , 3 NY2d 395, 404 [1957], rearg denied 3 NY3d 941 [1957] [internal quotation marks and citation omitted] ).
A. Timeliness of Plaintiff's Cross Motion for Partial Summary Judgment
Plaintiff cross-moves for partial summary judgment under Labor Law §§ 240 (1) and 241 (6). In response to plaintiff's cross motion, defendants/third-party plaintiffs and Alpine argue that the cross motion should not be considered because it is untimely.
In reply, plaintiff argues that he has good cause for the delay in filing his cross motion. According to plaintiff, Alpine was directed to produce one of plaintiff's coworkers, Erol Melendez, for deposition by December 12, 2018. However, Alpine did not advise plaintiff that Melendez was no longer employed by Alpine until December 7, 2018.
The preliminary conference order directed that motions for summary judgment were to be made within 60 days after the filing of the note of issue (NYSCEF Doc No. 17). Plaintiff filed the note of issue on March 21, 2018 (NYSCEF Doc No. 45). Subsequently, the court so-ordered a stipulation extending the time for making summary judgment motions until July 27, 2018 (NYSCEF Doc No. 94). Plaintiff made his cross motion for partial summary judgment on August 30, 2018 (NYSCEF Doc No. 157), over a month after the court-imposed deadline. Thus, plaintiff's cross motion is untimely.
Plaintiff has failed to establish any good cause for the delay in making his cross motion for partial summary judgment (see Miceli v State Farm Mut. Auto. Ins. Co. , 3 NY3d 725, 726-727 [2004] ; Brill v City of New York , 2 NY3d 648, 652 [2004] [" ‘good cause’ in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion — a satisfactory explanation for the untimeliness ..."] ). Plaintiff does not provide any explanation in his moving papers as to why his cross motion is untimely. "No excuse at all, or a perfunctory excuse, cannot be ‘good cause’ " ( Brill , 2 NY3d at 652 ). In any event, plaintiff does not explain why his coworker's testimony was necessary to support his cross motion.
"Although a court may decide an untimely cross motion, it is limited in its search of the record to those issues or causes of action ‘nearly identical’ to those raised by the opposing party's timely motion" ( Guallpa v Leon D. DeMatteis Constr. Corp. , 121 AD3d 416, 419 [1st Dept 2014], quoting Filannino v Triborough Bridge & Tunnel Auth. , 34 AD3d 280, 281 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007] ; see also Maggio v 24 W. 57 APF, LLC , 134 AD3d 621, 628 [1st Dept 2015] ). "An otherwise untimely cross motion may be made and adjudicated because a court, in the course of deciding the timely motion, may search the record and grant summary judgment to any party without the necessity of a cross motion" ( Filannino , 34 AD3d at 281 ). Here, the court may consider the entirety of plaintiff's cross motion, since it addresses the same issues and causes of action as Alpine's timely motion for summary judgment. Indeed, Alpine moved for summary judgment dismissing plaintiff's Labor Law §§ 241 (6), 240 (1), 200 and common-law negligence claims.
B. Labor Law § 240 (1)
Alpine argues that plaintiff's Labor Law § 240 (1) cause of action should be dismissed, because he was the sole proximate cause of his accident. According to Alpine, plaintiff chose not to use the ladder and step stools that it provided for plaintiff to perform his work. In addition, Alpine contends that plaintiff's work was not elevation-related. In this regard, Alpine maintains that plaintiff could have performed his work while standing on the landing using extension poles.
To support its position, Alpine submits an affidavit from George H. Pfreundschuh, P.E. (Pfreundschuh), who states, based upon his review of the record, that "plaintiff had available to him ladder(s) or a step stool(s) that would have provided proper protection for him to perform his work safely" (NYSCEF Doc No. 148, Pfreundschuh aff, ¶ 10). Pfreundschuh bases his opinion on Marcellino's testimony that Alpine workers had step stools and four-foot and five-foot stepladders (A-frame ladders) available to them if needed and that those ladders were kept in a storage room at the Kew Gardens Hills work site (id. ). Pfreundschuh states that four-foot and five-foot A-frame ladders could have been set up properly on the subject landing, and that plaintiff could have used such equipment to perform his work (id. ). In particular, Pfreundschuh notes, plaintiff testified that a five-foot ladder, when opened, had a two-foot span from the front to the rear, which was less than the dimensions of the landing (id. ). In addition, Pfreundschuh indicates that plaintiff could have reached up with a bent arm while standing on an appropriate step stool or ladder that fit on the landing directly in front of the window sill (id. , ¶ 11).
Plaintiff argues, in opposition to Alpine's motion, and in support of his cross motion, that he is entitled to judgment as a matter of law under section 240 (1) because he fell from the window sill because he did not have appropriate safety devices. As argued by plaintiff, the window sill was not an adequate safety device. Plaintiff further contends that Pfreundschuh's affidavit should not be considered, because it is speculative and conclusory. Additionally, plaintiff argues, his actions were not the sole proximate cause of his accident, since step stools and extension poles were not readily available. According to plaintiff, there is no evidence that defendants ever possessed an appropriate safety device.
In opposing plaintiff's cross motion, defendants/third-party plaintiffs argue that the following issues of fact preclude summary judgment to plaintiff: (1) how the accident occurred, in light of Alpine's accident report and the emergency room record; (2) whether plaintiff was required to work at an elevation, given Marcellino's testimony that plaintiff could have performed his work with extension poles; (3) whether any foreign substances were involved in the accident; and (4) whether plaintiff had an available ladder that fit on the landing.
Labor Law § 240 (1), commonly known as the Scaffold Law, provides, in relevant part, as follows:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect or cause, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
Labor Law § 240(1) "imposes absolute liability on building owners and contractors whose failure to ‘provide proper protection to workers employed on a construction site’ proximately causes injury to a worker" ( Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. , 18 NY3d 1, 7 [2011], quoting Misseritti v Mark IV Constr. Co. , 86 NY2d 487, 490 [1995] ). "[I]n order to recover under section 240 (1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury" ( Barreto v Metropolitan Transp. Auth. , 25 NY3d 426, 433 [2015], rearg denied 25 NY3d 1211 [2015] ).
"[T]he protections of Labor Law § 240 (1) ‘do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ " ( Nicometi v Vineyards of Fredonia, LLC , 25 NY3d 90, 97 [2015], rearg denied 25 NY3d 1195 [2015], quoting Ross v Curtis—Palmer Hydro—Elec. Co. , 81 NY2d 494, 501 [1993] ). "Liability under Labor Law § 240 (1) depends on whether the injured worker's ‘task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against’ " ( Salazar v Novalex Contr. Corp. , 18 NY3d 134, 139 [2011], quoting Broggy v Rockefeller Group, Inc. , 8 NY3d 675, 681 [2007] ).
"The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured. It is because of the special hazards in having to work in these circumstances ... that the Legislature has seen fit to give the worker the exceptional protection that section 240 (1) provides"
( Toefer v Long Is. R.R. , 4 NY3d 399, 407 [2005] [internal quotation marks and citation omitted] ). "The single decisive question in determining whether Labor Law § 240 (1) is applicable is whether the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" ( Runner v New York Stock Exch., Inc. , 13 NY3d 599, 603 [2009] ).
"Liability under section 240 (1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff's own negligence is the sole proximate cause of his injury"
( Gallagher v New York Post , 14 NY3d 83, 88 [2010], citing Cahill v Triborough Bridge & Tunnel Auth. , 4 NY3d 35, 39-40 [2004] ; see e.g. Gallagher , 14 NY3d at 88 [ironworker was not the sole proximate cause of his accident where there was no evidence in the record that he knew where to find other safety devices or that he was expected to use them]; Robinson v East Med. Ctr., LP , 6 NY3d 550, 555 [2006] [plaintiff's choice to use a six-foot ladder that he knew was too short for the work and standing on ladder's top cap were the sole proximate cause of his accident]; Montgomery v Federal Express Corp. , 4 NY3d 805, 806 [2005] [plaintiff was sole proximate cause of his accident where he stood on an inverted bucket; "since ladders were readily available, plaintiff's ‘normal and logical response’ should have been to go get one"]; Cahill , 4 NY3d at 40 [a jury could have concluded that worker was the sole proximate cause of his accident when he was injured while climbing without a safety line, where safety lines had been made available to him and he had been instructed to use them several weeks before the accident] ).
The First Department has held that a worker "is expected, as a normal and logical response, to obtain a safety device himself" when the worker "knows exactly" where it is located, and "there is a practice of obtaining the safety device himself because it is easily done" ( Auriemma v Biltmore Theatre, LLC , 82 AD3d 1, 10-11 [1st Dept 2011] [internal quotation marks omitted]; accord DaSilva v Everest Scaffolding, Inc. , 136 AD3d 423, 424 [1st Dept 2016] ; Cherry v Time Warner, Inc. , 66 AD3d 233, 238-239 [1st Dept 2009] ). However, "[t]he mere presence of [safety devices] somewhere at the worksite does not establish ‘proper protection’ " ( Zimmer v Chemung County Performing Arts , 65 NY2d 513, 524 [1985], rearg denied 65 NY2d 1054 [1985] ).
1. Whether Defendants/Third-Party Plaintiffs Are Responsible Parties Under the Labor Law
As a preliminary matter, the court notes that defendants/third-party plaintiffs admitted in their answer that Kew Gardens Hills, LLC was the owner of the premises (NYSCEF Doc No. 120, answer, ¶ 6). In addition, defendants/third-party plaintiffs admitted that JW Development Holdings, LLC was the general contractor on the project (id. , ¶ 11). Thus, these defendants may be held liable under Labor Law.
Plaintiff, though, has not demonstrated that A & E Real Estate Holdings, LLC or A & E Real Estate Management, Inc. may be held liable under section 240 (1). A managing agent may be held liable under the statute as an agent (see Fox v Brozman-Archer Realty Servs. , 266 AD2d 97, 98 [1st Dept 1999] ). Plaintiff makes no arguments as to how A & E Real Estate Holdings, LLC or A & E Estate Management, Inc. may be held liable under the statute. Moreover, plaintiff has not submitted the management contract.
2. Statutory Violation and Proximate Cause
Here, plaintiff testified that he had to scrape the top part of the window (NYSCEF Doc No. 161 at 55-56). He did not use the ladder that he had been using because he would not have been able to open the ladder completely, and because he could not reach the top of the window (id. ). Thus, plaintiff has demonstrated that he was not provided adequate safety devices, and that the lack of such devices was a proximate cause of his accident (see Peters v Kissling Interests, Inc. , 63 AD3d 1519, 1520 [4th Dept 2009], lv denied 13 NY3d 903 [2009] [plaintiff was injured while standing on window sill attempting to remove window trim with pry bar; "plaintiff met his burden of establishing that the lack of an appropriate safety device to protect him ‘from harm directly flowing from the application of the force of gravity " was the proximate cause of his injuries as a matter of law"] [internal quotation marks and citation omitted] ).
Contrary to Alpine's and defendants/third-party plaintiffs' contention, plaintiff was subjected to "an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against" ( Broggy , 8 NY3d at 681 ). As previously noted, plaintiff testified that he was required to scrape the hallway, and had to reach the upper part of a window (NYSCEF Doc No. 108 at 55). He stated that he could not use the ladder that he had because it did not fit on the landing and because he could not reach the top of the window (id. at 55-57). Although Alpine and defendants/third-party plaintiffs contend that Alpine employees had extension poles, and that plaintiff could have scraped from the landing, an extension pole is not a safety device of the kind enumerated in the statute. In any event, plaintiff testified that he tried attaching the scraper to the extension pole, but it did not work (id. at 198).
Moreover, Alpine and defendants/third-party plaintiffs have failed to demonstrate that plaintiff was the sole proximate cause of his accident. Alpine and defendants/third-party plaintiffs argue that there were five-foot ladders and step stools on the site. However, as noted above, plaintiff was not given an adequate safety device, and thus could not have been the sole proximate cause of his accident. Additionally, Alpine and defendants/third-party plaintiffs have not pointed to any evidence indicating that plaintiff knew that he was expected or instructed to use those ladders or step stools to scrape the window (see Dwyer v Central Park Studios, Inc. , 98 AD3d 882, 884 [1st Dept 2012] ["Even if other ladders were available at the job site, there was no showing that plaintiff was expected, or instructed, to use those ladders and for no good reason chose not to do so"]; Torres v Our Townhouse, LLC , 91 AD3d 549, 549 [1st Dept 2012] [even if ladder might have been in chassis under truck at the work site, worker was not sole proximate cause of his accident where there was no evidence presented that he knew where the ladder was or that he knew that he was expected to use it and for no good reason chose not to do so] ). Furthermore, Alpine has not demonstrated that there was a "practice" of workers obtaining ladders themselves because it was "easily done," even if plaintiff knew where the ladders were located (see Auriemma , 82 AD3d at 11 ["The defendants have not asserted, nor is there any evidence in the record, that the plaintiff either knew where a ladder was located or that it was his habit to get one for himself "] [emphasis supplied] ).
The court must next consider whether defendants/third-party plaintiffs have raised an issue of fact sufficient to defeat plaintiff's motion. "Where credible evidence reveals differing versions of the accident, one under which defendants would be liable and another under which they would not, questions of fact exist making summary judgment inappropriate" ( Ellerbe v Port Auth. of NY & N.J. , 91 AD3d 441, 442 [1st Dept 2012] ).
Defendants/third-party plaintiffs rely on the accident report, which indicates that plaintiff "used compound bucket as a stepping stool to perform plaster work to window wall area, stepped down and missed step, [fell] down stairs approx. 15? and hit leg on banister" (NYSCEF Doc No. 209). Marcellino testified that his office manager, who filled out the report, obtained this information from plaintiff's coworker, Mateo, and that neither Marcellino nor Mateo witnessed the accident (NYSCEF Doc No. 136 at 85-87). Therefore, the portions of Alpine's accident report stating that plaintiff "used compound bucket as a stepping stool [and] stepped down and missed step" are not in admissible form (see Matter of Leon RR , 48 NY2d 117, 122 [1979] ; Acevedo v Williams Scotsman, Inc. , 116 AD3d 416, 417 [1st Dept 2014] ; cf. Buckley v J.A. Jones/GMO , 38 AD3d 461, 462-463 [1st Dept 2007] ).
Defendants/third-party plaintiffs also point out that the emergency room record indicates that plaintiff fell from a ladder. "Hearsay entries regarding the cause of an injury contained in a medical record come into evidence under the business records exception if they are germane to the treatment or diagnosis of plaintiff's injuries" ( Benavides v City of New York , 115 AD3d 518, 519 [1st Dept 2014] ). "Alternatively, the entry may be admissible as an admission, but only if there is evidence that connects the party to the entry" (id. ). Here, the statement in the emergency room record that plaintiff tripped on a step of a ladder and fell from the ladder is not germane to diagnosis or treatment (NYSCEF Doc No. 211). Moreover, defendants/third-party plaintiffs have not offered any evidence connecting plaintiff to the statements in the record. While hearsay may in some instances be sufficient to defeat summary judgment, hearsay is the only evidence submitted in opposition (see O'Halloran v City of New York , 78 AD3d 536, 537 [1st Dept 2010] ), and defendants/third-party plaintiffs do not provide an acceptable excuse for failing to submit evidence in admissible form (see Stankowski v Kim , 286 AD2d 282, 283 [1st Dept 2001], lv dismissed 97 NY2d 677 [2001] ; Shapiro v Butler , 273 AD2d 657, 660 [3d Dept 2000] ).
Therefore, the branch of plaintiff's cross motion for partial summary judgment under Labor Law § 240 (1) is granted as against Kew Gardens Hills, LLC and JW Development Holdings, LLC. The branch of Alpine's motion for summary judgment dismissing this cause of action is denied.
C. Labor Law § 241 (6)
Labor Law § 241 (6) provides as follows:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
* * *
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."
Labor Law § 241 (6) "imposes a nondelegable duty of reasonable care upon owners and contractors ‘to provide reasonable and adequate protection and safety’ " to construction workers ( Rizzuto v L.A. Wenger Constr. Co. , 91 NY2d 343, 348 [1998] ). To recover under Labor Law § 241 (6), a plaintiff must plead and prove the violation of a concrete provision of the New York State Industrial Code, containing "specific, positive commands," rather than a provision reiterating common-law safety standards ( Ross , 81 NY2d at 503 ). In addition to establishing the violation of a specific and applicable regulation, the plaintiff must also show that the violation was a proximate cause of the accident ( Cappabianca v Skanska USA Bldg. Inc. , 99 AD3d 139, 146 [1st Dept 2012] ).
Plaintiff's verified bill of particulars alleges violations of the following Industrial Code provisions: 12 NYCRR 23-1.5 (c) ; 12 NYCRR 23-1.7 (d), (e), and (f); 12 NYCRR 23-1.32 ; 12 NYCRR 23-2.1 (g) ; 12 NYCRR 23-2.5 (a) (1) ; and 12 NYCRR 23-2.7 (a), (b), (c), (d), and (e) (NYSCEF Doc No. 107, verified bill of particulars, ¶¶ 27-30).
Alpine moves for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim, arguing that plaintiff has failed to identify a specific or applicable provision of the Industrial Code. In response to Alpine's motion, and in support of his cross motion, plaintiff only relies on sections 23-1.7 (d) and 23-1.7 (e) (2). Thus, plaintiff has abandoned reliance on the remaining provisions cited in the bill of particulars (see Cardenas v One State St. LLC , 68 AD3d 436, 438 [1st Dept 2009] ; see also Kempisty v 246 Spring St., LLC , 92 AD3d 474, 475 [1st Dept 2012] ). Therefore, the court shall only consider sections 23-1.7 (d) and 23-1.7 (e) (2). ( 12 NYCRR 23-1.7 [d] )
Section 23-1.7 (d), entitled "Slipping hazards," provides that:
"Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing" ( 12 NYCRR 23-1.7 [d] ).
Alpine argues that section 23-1.7 (d) does not apply because plaintiff did not slip on anything, and, in fact, wiped off the window sill before he fell. In addition, Alpine relies on Pfreundschuh's affidavit, which indicates that the surface of the window sill provided adequate traction for plaintiff to do his work (NYSCEF Doc No. 148, ¶ 9). Moreover, Pfreundschuh states that there is no evidence that falling "popcorn" and paint chips significantly affected plaintiff's traction on the window sill (id. ).
Plaintiff moves for partial summary judgment under Labor Law § 241 (6) based upon a violation of section 23-1.7 (d). Plaintiff points out that his right foot slipped, causing him to fall on top of the compound container.
The Court of Appeals has held that " 12 NYCRR 23-1.7 (d) mandates a distinct standard of conduct" ( Rizzuto , 91 NY2d at 351 ).
In this case, it is uncontested that the window sill constitutes a "platform" or "other elevated working surface." Plaintiff testified that, while he was standing on the window sill, "[s]and fell down" into his eyes, and that his "right foot slipped" (NYSCEF Doc No. 108 at 66). He also testified that the window sill was "always kind of damp because it had three layers of paint" (id. at 63). In light of plaintiff's testimony, there are questions of fact as to whether plaintiff's foot slipped because of the wet or damp condition of the window sill. Thus, there are issues of fact as to whether section 23-1.7 (d) was violated, and was a proximate cause of plaintiff's accident (see Cappabianca , 99 AD3d at 147 ["the record raises an issue whether the water on the floor caused Cappabianca to slip and fall"] ). ( 12 NYCRR 23-1.7 [e] [2] )
Section 23-1.7 (e) governs "Tripping and other hazards." Section 23-1.7 (e) (2) provides that "(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed" ( 12 NYCRR 23-1.7 [e] [2] ).
Alpine contends that section 23-1.7 (e) is inapplicable, since plaintiff did not trip on anything. Alpine also points out that plaintiff specifically testified that he wiped off the window sill.
For his part, plaintiff maintains that this provision requires platforms where persons work to be kept free from accumulations of dirt and debris.
The First Department has held that section 23-1.7 (e) (2) is sufficiently specific to support a Labor Law § 241 (6) claim ( Licata v AB Green Gansevoort, LLC , 158 AD3d 487, 489 [1st Dept 2018] ; see also Smith v McClier Corp. , 22 AD3d 369, 370 [1st Dept 2005] ).
Although Alpine contends that plaintiff did not trip, the First Department has recently determined that "[w]hether the accident is characterized as a slip and fall or trip and fall is not dispositive as to the applicability of that regulation" ( Lois v Flintlock Constr. Servs., LLC , 137 AD3d 446, 447-448 [1st Dept 2016] ; but see Velasquez v 795 Columbus LLC , 103 AD3d 541, 541 [1st Dept 2013] ). However, plaintiff's accident did not involve dirt, debris, scattered tools or sharp projections (see Harasim v Eljin Constr. of N.Y, Inc. , 106 AD3d 642, 643 [1st Dept 2013] ). Accordingly, section 23-1.7 (e) (2) does not apply.
Thus, plaintiff has a valid Labor Law § 241 (6) claim to the extent that it is based on a violation of 12 NYCRR 23-1.7 (d).
D. Labor Law § 200 and Common-Law Negligence
Alpine moves for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims, arguing that defendants/third-party plaintiffs did not direct or control plaintiff's work. Defendants/third-party plaintiffs also contend, in their own motion, that they did not supervise plaintiff's work, and did not have notice of any dangerous condition.
In response, plaintiff argues that his accident arose out of a dangerous condition on the premises. Plaintiff contends that he slipped and fell because the window sill was wet after the window was left open. Plaintiff testified that the window was closed before he left on the Thursday before his accident but was open when he returned on the day that his accident occurred.
Labor Law § 200 (1) provides as follows:
"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section."
Liability under Labor Law § 200 "generally falls into two broad categories: instances involving the manner in which the work is performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site" ( Abelleira v City of New York , 120 AD3d 1163, 1164 [2d Dept 2014] ). "These two categories should be viewed in the disjunctive" ( Ortega v Puccia , 57 AD3d 54, 61 [2d Dept 2008] ).
Where the worker is injured as a result of the manner in which the work is performed, "the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work" ( Cappabianca , 99 AD3d at 144 ; see also Foley v Consolidated Edison Co. of NY, Inc. , 84 AD3d 476, 477 [1st Dept 2011] ).
By contrast, where the worker's injury stems from a dangerous or defective premises condition, "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 AD3d 1, 9 [1st Dept 2011] [internal quotation marks and citation omitted] ). Similarly, a general contractor may be liable under section 200 and the common law if it had "control over the work site and knew or should have known of the unsafe condition that allegedly brought about plaintiff's injury" ( Gallagher v Levien & Co. , 72 AD3d 407, 409 [1st Dept 2010] ).
Here, to the extent that plaintiff's accident arose out of the absence of safe and proper equipment, Alpine has demonstrated that defendants/third-party plaintiffs did not supervise or control plaintiff's work. Plaintiff testified that he received his instructions from Alpine's owner (NYSCEF Doc No. 108 at 29). Alpine provided the equipment for the project (NYSCEF Doc No. 110 at 21; NYSCEF Doc No. 111 at 41-42).
However, contrary to Alpine's assertion, plaintiff also alleges that his accident arose from a dangerous premises condition. Plaintiff's verified bill of particulars alleges that defendants/third-party plaintiffs, among other things, "[f]ailed and omitted to keep the work areas free of debris, water or other accumulated liquids and other materials" (NYSCEF Doc No. 107, ¶¶ 15-16). Plaintiff testified that "it was not raining, but the windows were open. When it rained, the wetness or damp would stick on there, all paint" (NYSCEF Doc No. 108 at 59). Therefore, Alpine has failed to demonstrate entitlement to summary judgment dismissing plaintiffs' section 200 and common-law negligence claims against defendants/third-party plaintiffs (see Ryan , 96 AD3d at 553 ). Although defendants/third-party plaintiffs argue that they did not have notice of any dangerous condition, they have failed to show that they did not have notice of any wet or damp condition in the hallway where plaintiff fell, since they have not submitted any evidence when the area was last inspected prior to the accident (see Quigley v Port Auth. of NY & N.J. , 168 AD3d 65, 68 [1st Dept 2018] ; Ladignon v Lower Manhattan Dev. Corp. , 128 AD3d 534, 535 [1st Dept 2015] ).
Therefore, the branch of Alpine's motion seeking dismissal of plaintiff's Labor Law § 200 and common-law negligence claims against defendants/third-party plaintiffs is denied.
E. Defendants/Third-Party Plaintiffs' Common-Law Indemnification Claim Against Alpine
Defendants/third-party plaintiffs move for common-law indemnification against Alpine, plaintiff's employer. Defendants/third-party plaintiffs argue that they were not negligent, and that they did not supervise, direct or control Alpine's work. According to defendants/third-party plaintiffs, Alpine supervised plaintiff's work and provided him with safety equipment. In response, Alpine contends that plaintiff has received workers' compensation benefits.
" Workers' Compensation Law § 11 prohibits third-party indemnification or contribution claims against employers, except where the employee sustained a ‘grave injury,’ or the claim is ‘based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered’ " ( Rodrigues v N & S Bldg. Contrs. , Inc., 5 NY3d 427, 429-430 [2005] ).
Workers' Compensation Law § 11 provides that:
"[a]n employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a ‘grave injury.’ "
A "grave injury" is defined as:
"only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability" (id. ).
"The grave injuries listed are deliberately both narrowly and completely described . The list is exhaustive, not illustrative; it is not intended to be extended absent further legislative action" ( Castro v United Container Mach. Group , 96 NY2d 398, 402 [2001] [internal quotation marks and citation omitted] ).
Plaintiff's verified bill of particulars alleges that he injured his right leg and ankle, right knee, right hand and left forearm, and lumbar spine (NYSCEF Doc No. 122, ¶ 5). None of these injuries qualify as a "grave injury" (see Marshall v Arias , 12 AD3d 423, 424 [2d Dept 2004] ). Therefore, defendants/third-party plaintiffs are not entitled to common-law indemnification from Alpine. Accordingly, the branch of defendants/third-party plaintiffs' motion seeking common-law indemnification from Alpine is denied.
F. Defendants/Third-Party Plaintiffs' Contractual Indemnification Claim Against Alpine
Defendants/third-party plaintiffs also move for contractual indemnification from Alpine, based upon the indemnification provision contained in Schedule II to Alpine's subcontract, which provides as follows:
"Indemnification and Hold Harmless
(a) To the fullest extent permitted by law Subcontractor agrees and shall cause its subcontractors to agree, to indemnify, defend and hold harmless General Contractor, the party engaging General Contractor, General Contractor's managing agent and their respective affiliates, principals, partners, members, stockholders, offices, directors, agents, employees, servants, successors and assigns, and specifically those entities and persons listed on Schedule II-A hereto (hereinafter collectively referred to as ‘General Contractor Parties’) from and against any and all liabilities, claims, demands, losses, obligations, fines, liens, penalties, actions, judgments, damages, costs, charges and expenses (including, without limitation, reasonable attorneys' fees) (collectively, ‘Claims’) in connection with and/or arising from or out of the following (‘Indemnified Matters’):
(i) any negligent, willful or wrongful act resulting in bodily injury (including death), personal injury or property damage, by Subcontractor, Subcontractor's sub-contractors, their respective officers, employees, servants, agents, suppliers, invitees, successors and assigns (hereinafter collectively referred to as ‘Subcontractor Parties’);
(ii) the Work or any breach of this Agreement or infringement of any copyright, patent or other intellectual property right, by any Subcontractor Party; or
(iii) any failure to comply with any laws or regulations affecting the Work (as defined in this Agreement)" (NYSCEF Doc No. 139, Goutzounis affirmation in support, exhibit U).
Defendants/third-party plaintiffs argue that Alpine was required to provide its employees with equipment. In addition, defendants/third-party plaintiffs maintain that Alpine supervised its employees' work, and was in control of the means and methods of plaintiff's work. Moreover, defendants/third-party plaintiffs contend that they did not supervise plaintiff's work, and did not have any notice of any defective condition. Alternatively, defendants/third-party plaintiffs request conditional indemnification from Alpine.
In opposition, Alpine contends that: (1) Kew Gardens, LLC is not entitled to contractual indemnification because it was specifically excluded from the indemnification provision; (2) defendants/third-party plaintiffs are not entitled to contractual indemnification from Alpine, since they cannot be indemnified for their own negligence; and (3) plaintiff was the sole proximate cause of his accident.
"A party is entitled to full contractual indemnification provided that the ‘intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances’ " ( Drzewinski v Atlantic Scaffold & Ladder Co., Inc. , 70 NY2d 774, 777 [1987], quoting Margolin v New York Life Ins. Co. , 32 NY2d 149, 153 [1973] ). "When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" ( Hooper Assoc. v AGS Computers , 74 NY2d 487, 491 [1989] ).
Although Alpine contends that Kew Gardens, LLC does not qualify as an indemnitee, the indemnification provision requires Alpine to indemnify, defend and hold harmless "the party engaging General Contractor" (NYSCEF Doc No. 139 at 7). Alpine's subcontract specifically states that "WHEREAS, Kew Gardens Hills, LLC (‘Owner’) is the owner of that certain parcel of real property known as and by the street address 153-31 75th Avenue (Building No.47), Queens, New York 11367 (the ‘Premises’ on which is constructed an apartment building)" and that "WHEREAS, Owner has engaged General Contractor to perform certain construction, alteration or repair work in the Premises" (id. at 1). Thus, Alpine's subcontract evinces a clear intention to indemnify Kew Gardens Hills, LLC.
Pursuant to General Obligations Law § 5-322.1, a clause in a construction contract which purports to indemnify a party for its own negligence is against public policy and is void and unenforceable ( Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co. , 89 NY2d 786, 795 [1997], rearg denied 90 NY2d 1008 [1997] ). Nevertheless, an indemnification agreement that authorizes partial indemnification "to the fullest extent permitted by law" is enforceable ( Brooks v Judlau Contr., Inc. , 11 NY3d 204, 210 [2008] ; Dutton v Pankow Bldrs. , 296 AD2d 321, 322 [1st Dept 2002], lv denied 99 NY2d 511 [2003] ). Moreover, even if the indemnification provision does not contain this savings language, the provision may still be enforced where the party to be indemnified is found to be free of any negligence ( Brown v Two Exch. Plaza Partners , 76 NY2d 172, 179 [1990] ).
"In contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of the statutory liability. Whether or not the proposed indemnitor was negligent is a non-issue and irrelevant" ( Correia v Professional Data Mgt. , 259 AD2d 60, 65 [1st Dept 1999] ). The First Department has ruled that, even where there are issues of fact as to the indemnitee's active negligence, an award of conditional indemnification is warranted where the indemnification provision does not violate the General Obligations Law (see Burton v CW Equities, LLC , 97 AD3d 462, 463 [1st Dept 2012] ["Notwithstanding the above-discussed issues of fact as to its negligence on its part, CW Equities should have been granted summary judgment on its claim for indemnification, since the indemnification provision at issue does not require T.F.N. to indemnify C.W. Equities for C.W. Equities' own negligence"] ).
Here, Alpine is required to indemnify "the party engaging General Contractor" (Kew Gardens Hills, LLC) and "the General Contractor Parties" (JW Development Holdings, LLC, A & E Real Estate Management, LLC, and A & E Real Estate Holdings, LLC) for "all liabilities ... in connection with and/or arising out of the Work" (NYSCEF Doc No. 139 at 7). It is undisputed that plaintiff was Alpine's employee, and that he was injured in the course of his employment with Alpine. Thus, the indemnification provision is triggered (see Fuger v Amsterdam House for Continuing Care Retirement Community, Inc. , 117 AD3d 649, 650 [1st Dept 2014] [indemnification provision requiring subcontractor to indemnify general contractor for any personal injury claims "arising out of, relative to, or resulting from the performance of the Work and/or [subcontractor's] operations under this Agreement" was triggered by this action in which plaintiff, a subcontractor's employee, sought damages for injuries he sustained while performing subcontractor's work] ). However, defendants/third-party plaintiffs have failed to establish their freedom from negligence. As noted above, there are issues of fact as to whether defendants/third-party plaintiffs had actual or constructive notice of the damp or wet condition on the window sill. The indemnification provision at issue does not violate the General Obligations Law, since it contains recognized savings language (see Brooks , 11 NY3d at 210 ). Consequently, defendants/third-party plaintiffs are entitled to conditional summary judgment on their claim for contractual indemnification against Alpine.
G. Defendants/Third-Party Plaintiffs' Failure to Procure Insurance Claim Against Alpine
Defendants/third-party plaintiffs also move for summary judgment on their breach of contract claim against Alpine. Defendants/third-party plaintiffs argue that Alpine did not obtain the insurance coverage required by its contract. Specifically, defendants/third-party plaintiffs contend that Alpine purchased a policy with a $1,000,000 limit, and not for the required $3,000,000 per occurrence limit and $5,000,000 general aggregate limit (NYSCEF Doc No. 133, exhibit A).
In response, Alpine argues that there are issues of fact as to whether defendants/third-party plaintiffs waived certain insurance requirements in its subcontract. According to Alpine, defendants/third-party plaintiffs have not submitted any evidence that it breached the subcontract. Further, Alpine asserts that defendants/third-party plaintiffs cannot demonstrate any damages as a result of Alpine's obtaining a $1,000,000 policy as opposed to a $3,000,000 policy.
It is well established that an agreement to procure insurance is distinct from an agreement to indemnify (see Kinney v Lisk Co. , 76 NY2d 215, 218 [1990] ). Where there is a breach of an agreement to procure insurance, the breaching party is responsible for all "resulting damages, including the liability [of the general contractor and the site owner] to [the] plaintiff" ( Kennelty v Darlind Constr. , 260 AD2d 443, 445 [2d Dept 1999] [internal quotation marks and citation omitted] ). However, where the promisee has its own insurance coverage, recovery for breach of a contract to procure insurance is limited to the promisee's out-of-pocket expenses in obtaining and maintaining such insurance, i.e., the premiums and any additional costs incurred such as deductibles, co-payments, and increased future premiums ( Inchaustegui v 666 5th Ave. Ltd. Partnership , 96 NY2d 111, 114 [2001] ; Cucinotta v City of New York , 68 AD3d 682, 684 [1st Dept 2009] ).
Schedule II to Alpine's subcontract contains the following provision concerning insurance:
"Insurance
(a) In addition to any requirements set forth in this Agreement, Subcontractor shall secure and keep in full force and effect and shall cause its subcontractors to secure and keep in full force and effect, until the Work is finally completed and Subcontractor and all subcontractors have left the premises and removed all of their property therefrom, the following insurance coverage at Subcontractor's sole cost and expense. Such insurance shall be primary, notwithstanding any other insurance that might be in effect for any General Contractor Party:
(i) commercial general liability insurance, including contractual liability (to specifically include coverage for the indemnification clause in Section 1(a)(i) relating to bodily injury, death or property damage), products and completed operations liability (including ‘X’, ‘C’ and ‘U’ coverage), broad form property damage, personal and advertising injury liability, all written on an occurrence form, with combined bodily injury and property damage limits of liability of no less than $3,000,000 per occurrence, $5,000,000 per project general aggregate, $5,000,000 personal and advertising injury and $5,000,000 products and completed operations liability with an aggregate limit per project. The policy should be written on form CG 00 01 12 07 or its equivalent and shall not include any exclusions or limitations other than those incorporated in the standard ISO form" (NYSCEF Doc No. 139, Goutzounis affirmation in support, exhibit U at 7-8).
Alpine obtained a commercial general liability insurance policy with an each occurrence limit of $1,000,000 and general aggregate limit of $2,000,000 (NYSCEF Doc No. 133, exhibit A). Thus, Alpine breached its subcontract because it "failed to procure the specific coverage required under the insurance provisions" of its subcontract with JW Development Holdings, LLC ( Lima v NAB Constr. Corp. , 59 AD3d 395, 397 [2d Dept 2009] ).
While Alpine argues that defendants/third-party plaintiffs waived insurance provisions in Alpine's subcontract, Alpine's subcontract provides that "[t]his Contract can only be changed by an agreement signed by both the General Contractor and the Subcontractor. No variations, alterations, deviations, deletions or extra work can be made unless both the General Contractor and the Subcontractor specifically agree in writing" (NYSCEF Doc No. 139 at 2). Alpine has not submitted any evidence that the insurance provisions in Alpine's subcontract were modified in writing.
"Because insurance procurement clauses are entirely independent of indemnification provisions, the determination with respect to liability for the contract breach need not await a final determination as to the underlying liability for personal injury" ( Spencer v B.A. Painting Co., B & F Abramowitz , 224 AD2d 307, 307 [1st Dept 1996] [citation omitted] ). Therefore, defendants/third-party plaintiffs are entitled to summary judgment on the issue of liability on their breach of contract claim against Alpine. However, the measure of damages cannot be determined on these motions, since it is unclear whether defendants/third-party plaintiffs have their own insurance policy (see Cucinotta , 68 AD3d at 685 ).
H. Alpine's Counterclaims Against Defendants/Third-Party Plaintiffs
Defendants/third-party plaintiffs move for summary judgment dismissing Alpine's counterclaims for breach of contract and contractual indemnification asserted against them. Alpine has not identified any contract requiring defendants/third-party plaintiffs to indemnify Alpine or procure insurance for its benefit. Therefore, these counterclaims are dismissed.
However, defendants/third-party plaintiffs have not demonstrated that Alpine's counterclaims for common-law indemnification and contribution have no merit (see Ryan , 96 AD3d at 553 ). As noted above, there are issues of fact as to defendants/third-party plaintiffs' negligence.
CONCLUSION
Accordingly, it is
ORDERED that the motion (sequence number 003) of third-party defendant Alpine Construction & Renovation, Inc. for summary judgment is granted to the extent of dismissing plaintiff's Labor Law § 241 (6) claim except as to the alleged violation of 12 NYCRR 23-1.7 (d), and is otherwise denied; and it is further
ORDERED that the motion (sequence number 004) of defendants/third-party plaintiffs Kew Gardens Hills, LLC, A & E Real Estate Holdings, LLC, A & E Real Estate Management, Inc., and JW Development Holdings, LLC for summary judgment is granted to the extent of:
(1) granting defendants/third-party plaintiffs conditional summary judgment on their contractual indemnification claim against third-party defendant Alpine Construction & Renovation Corp., Inc.;
(2) granting defendants/third-party plaintiffs summary judgment as to liability on their failure to procure insurance claim against third-party defendant Alpine Construction & Renovation Corp., Inc.; and
(3) granting summary judgment dismissing the counterclaims asserted by third-party defendant Alpine Construction & Renovation Corp., Inc. for contractual indemnification and breach of contract, and is otherwise denied;
And it is further
ORDERED that the cross motion of plaintiff Jose Gamez for partial summary judgment is granted on the issue of liability under Labor Law § 240 (1) as against defendants Kew Gardens Hills, LLC and JW Development Holdings, LLC, and is otherwise denied.