Opinion
Index No. 503418/18 MS Nos. 5 6 7
04-16-2024
LISANDRO GARCIA, Plaintiff, v. NYU LANGONE HOSPITALS, CALDWELL & WALSH BULDING CONSTRUCTION, INC., EMPIRE GENERAL CONTRACTING & PAINTING CORP., and SIGNS & DECAL CORP., Defendants. NYU LANGONE HOSPITALS, Third-Party Plaintiff, v. SIGNS & DECAL CORP., and FIVE STAR AWNINGS, INC., Third-Party Defendants.
Unpublished Opinion
PRESENT: HON. RICHARD J. MONTELIONE, Justice.
HON. RICHARD J. MONTELIONE, JUSTICE
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 107-110, 125-127, 152-155, 169
Opposing Affidavits/Answer (Affirmations) 176, 178-179, 180, 181,187
Affidavits/Affirmations in Reply 182, 189, 194
Other Papers: ___
Relief Sought
Upon the foregoing papers, plaintiff Lisandro Garcia moves for an order, pursuant to CPLR 3212, granting summary judgment in his favor on his Labor Law § 240 (1) ! cause of action as against defendant/third-party plaintiff NYU Langone Hospitals ("NYU Langone") and defendant/third-party defendant Signs & Decal Corp. ("Signs & Decal") (motion sequence number 5).
Signs & Decal cross-moves for an order, pursuant to CPLR 3212, granting summary dismissing plaintiffs complaint as against it (motion sequence number 6).
NYU Langone cross-moves for an order, pursuant to CPLR 3212, granting summary' judgment dismissing the complaint as asserted against it and granting it summary judgment on its third-party complaint against Signs & Decal and third-party defendant Fire Star Awnings, Inc. ("Five Star") (motion sequence number 7).
Although NYU Langone's notice of cross-motion states that it is seeking summary judgment on the third-party causes of action, its papers only address the contractual indemnification and breach of contract for failing to obtain insurance naming it as an additional insured against Signs & Decal and Five Star. As such, the court has only addressed those claims below.
Summary of Disposition
Plaintiffs motion (motion sequence number 5) is granted.
Signs & Decal's cross-motion (motion sequence number 6) is granted to the extent that plaintiffs common-law negligence and Labor Law §§ 200 and 241 (6) causes of action are dismissed. The cross-motion is otherwise denied.
NYU Langone's cross-motion (motion sequence number 7) is granted to the extent I that plaintiffs common-law negligence and Labor Law §§ 200 and 241 (6) causes of action are dismissed and granted to the extent that it is entitled to contractual indemnification from Signs & Decal on the third-party complaint. NYU Langone's cross-motion is otherwise denied.
Background
Plaintiff pleads causes of action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6) based on injuries he alleges he suffered as the result of an accident that occurred on January 28,2018, when he fell to the ground while working on an awning located at a NYU Langone hospital in Brooklyn. NYU Langone owns the building, which was formerly known as Lutheran Medical Center. The work at issue arose from an undated "Task Order" agreement between New 1
York University of Medicine, an administrative unit of New York University ("NYU Medicine") and Signs & Decal, in which, as part of a rebranding effort by NYU Langone, Signs & Decal agreed, pursuant to an estimate dated June 23, 2017, to remove old signs and awnings and to fabricate new signs and awnings. The Task Order expressly stated that it was governed by the preexisting "On-Call Agreement" dated April 1, 2016, between NYU Medicine and Signs & Decal. Signs & Decal, in turn, hired Five Star to perform the portion of the work relating to the manufacturing and replacement of the awning covers over preexisting aluminum frames. Plaintiff was employed as a mechanic by Five Star.
The specific work at issue on January 28, 2018 involved punch list work relating to one of the awning covers installed by Five Star. According to plaintiffs deposition testimony, he arrived at the hospital on the morning of the accident with Hugo Hernandez, who served as the onsite supervisor for the job, and a coworker who plaintiff knew as Louis. The bottom of the awning at issue ranged from 8 to 13 feet above an entrance ramp to the hospital, was 60 to 70 feet long, around 6 feet wide and 7 feet tall. Except for an opening which plaintiff used to access the interior of the awning, the bottom of the awning consisted of "egg crate" plastic panels. Plaintiff climbed up to the opening using a six-foot tall ladder, and once he was inside the awning, he stepped over the aluminum pipe frame of the awning to a small wood and aluminum platform that the prior Five Star team had left in the awning. Plaintiff stood on this small platform, which rested on top of the aluminum frame, to perform his work in fixing the awning cover from the awning's interior while Hernandez and Louis stood on ladders on the outside of the awning holding the cover in position. Plaintiff would periodically pick up and move the platform to perform his work in different areas of the awning.
Although plaintiff testified that the awning was covered underneath, it was Hernandez, in his deposition testimony, who described the covering as "egg crate" plastic.
The accident occurred after plaintiff had finished his work for the day and while he was planning to hand the small platform down to his coworker Louis. Before he had even picked up the platform, plaintiff stepped onto a portion of the aluminum pipe frame, which broke under his weight, causing plaintiff, along with a piece of the pipe frame and I some of the plastic egg crate covering, to fall approximately 13 feet onto the entrance ramp below the awning. Plaintiff, who stated he was five feet, seven inches tall and weighed 150 pounds at the time, asserted that he and his coworkers generally walked on the aluminum frames when they performed their awning work. In view of the plastic egg crate panels under the majority of the awning, plaintiff stated that they could not perform the work using a ladder. Plaintiff also asserted that he and his Five Star coworkers only wore safety harnesses when they were working at a greater height than the awning at issue or when the site owner required the use of a harness.
Hernandez, in his deposition testimony, stated that, while Five Star kept safety harnesses on the truck, they only needed to be used at heights over 20 feet, and that the awning here was not high enough to require the use of a harness. In addition, Hernandez stated that the aluminum frame/pipes were strong enough for the workers to stand on while replacing the covers, that this was how he had performed such work throughout his career, and that this was how Five Star workers had performed their work at that location prior to the day of the accident. Hernandez, who had worked on that awning for five days before the date of the accident, identified no dangerous or hazardous conditions with the awning prior to the accident. While he did not observe plaintiffs fall, Hernandez asserts that he heard the fall and immediately thereafter saw plaintiff lying on the ground with pieces of the egg crate covering and aluminum pipe lying on the ground next to him. Although Hernandez stated that the egg crate cover would not support the weight of a worker, he averred that the aluminum piece lying on the ground next to the plaintiff would generally support a worker's weight and not be a cause of concern to the contrary Hernandez, however, also responded "no", when asked, "Did a part of the awning fail that shouldn't have failed and that contributed to the accident?" (Hernandez, deposition at 101, Ins 14-17).
Hernandez said "Nope" when asked, "Was [that aluminum piece that broke and fell to the ground] one of those parts that you talked about before that you knew not to stand on because it wouldn't support your weight?" (Hernandez, deposition at 143, Ins 24-25,144, Ins 2-4).
Turning first to plaintiffs Labor Law § 240 (1) cause of action, that section imposes absolute liability on owners and contractors or their agents when they fail to protect workers employed on a construction site from injuries proximately caused by risks associated with falling from a height or those associated with falling objects (see Wilinski v 334 E. 92nd Housing Dev. Fund Corp., 18 N.Y.3d 1, 7 [2011]; Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268 [2001]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]). Here, plaintiffs work inside the awning, while standing on the awning framework, subjected him to an elevation risk within the meaning of I section 240 (1) (see Johnson v Small Mall, LLC, 79 A.D.3d 1240, 1241-42 [3d Dept 2010] [fall through floor joists to floor below]; Becker v ADN Design Corp., 51 A.D.3d 834, 836 [2d Dept 2008] [plaintiff fell through gap between attic floor joists]) and plaintiff has demonstrated his prima facie entitlement to summary judgment through his deposition testimony and that of Hernandez that demonstrating that plaintiff was not provided with adequate safety devices in violation of section 240 (1) (see Mogrovejo v HG Hous. Dev. Fund Co., Inc., 207 A.D.3d 457, 460 [2d Dept 2022]; Lazo v New York State Thruway Auth., 204 A.D.3d 774, 776 [2d Dept 2022]; see also Martinez v Kingston 541, LLC, 210 A.D.3d 556, 556-557 [1st Dept 2022]; Johnson v Small Mall, LLC, 79 A.D.3d 1240, 1241-42 [3d Dept 2010]; Traver v Valente Homes, Inc., 20 A.D.3d 856, 857 [3d Dept 2005]).
Plaintiff has also submitted an affidavit from a certified site safety manager who avers that the defendants failed to provide adequate safety devices to perform the subject work. Assuming that defendants are correct that this affidavit may not be considered because it is conclusory, plaintiff still makes out his prima facie showing based on his own deposition testimony and that of Hernandez (see McCallister v 200 Park, L.P., 92 A.D.3d 927, 928-929 [2d Dept 2012]; see also Rubio v New York Proton Mgt., LLC, 192 A.D.3d 438, 439 [1st Dept 2021]).
Contrary to NYU Langone's contentions, the fact that the awning frame was part of the preexisting permanent structure does not preclude the applicability of Labor Law § 240 (1) under these facts since plaintiff was using the frame as the functional equivalent of a scaffold to perform his work and its failure is, in and of itself, sufficient to satisfy plaintiffs prima facie burden (see Gomez v City of New York, 63 A.D.3d 511, 512 [1st Dept 2009]; De Jara v 44-14 Newtown Rd. Apt, Corp., 307 A.D.3d 948, 949-950 [2d Dept 2003]). Moreover, even if the awning frame is not considered the functional equivalent of a scaffold (see Johnson, 79 A.D.3d at 1241-1242; Yost v Quartararo, 64 A.D.3d 1073, 1074 [3d Dept 2009]), plaintiffs instant proof is sufficient to demonstrate defendants' liability. In this respect, plaintiffs work, while standing on the frame, exposed him to an elevation risk, and he was not provided (or required to use) any safety devices in the performance of this work (see Johnson, 79 A.D.3d at 1242; see also see Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 524 [1985]; Mogrovejo, 207 A.D.3d at 460; Vetrano v J. Kokolakis Contr., Inc., 100 A.D.3d 984, 985-986 [2d Dept 2012]; Henry v Eleventh Ave., L.P., 87 A.D.3d 523, 524 [2d Dept 2011]; Romero v John's Fruits & Vegetables, Inc., 23 A.D.3d 364, 365 [2d Dept 2005]). Further, under such an analysis, given the absence of any adequate safety devices for plaintiffs elevated work, the fact that it may or may not have been foreseeable that the awning frame piece would collapse is not a bar to a liability finding here (see Mogrovejo, 207 A.D.3d at 460; Johnson, 79 A.D.3d at 1241-1242; Yost, 64 A.D.3d at 1074-1075; cf Carrillo v Circle Manor Apts., 131 A.D.3d 662, 662-663 [2d Dept 2015], Iv denied 27 N.Y.3d 906 [2016]).
Hernandez's testimony, contrary to Signs &Decal's assertions, does not demonstrate a factual issue with respect to how the accident occurred or otherwise demonstrate a material issue of fact with respect to plaintiffs credibility. Indeed, although Hernandez did not observe plaintiff fall, his testimony that the aluminum piece lying on the ground next to plaintiff following the accident, was an appropriate platform on which to stand supports plaintiffs version of the events. Further, even if Hernandez's testimony that a failure of the awning frame was not a cause of the accident could be seen as raising an issue of fact regarding the collapse, it fails to demonstrate that the absence of section 240 devices was not a cause of the accident. Finally, in this respect, Hernandez's testimony that plaintiff was not using a plywood platform is irrelevant since plaintiffs testimony shows that the platform described therein by plaintiff had nothing to do with how the accident occurred.
Under the circumstances here, defendants have also failed to demonstrate that there are factual issues as to whether plaintiffs actions were the sole proximate cause of his accident. Namely, plaintiffs testimony, and that of Hernandez, demonstrate that, even if safety harnesses were deemed readily available, plaintiff wras not expected to use them at the height at which he was working. Similarly, plaintiff cannot be faulted for standing on the awning framework as this is how Five Star employees typically performed their awning work in general and at the NYU Langone jobsite. Moreover, plaintiff could only have performed his work from a ladder or scaffold if Five Star had removed the egg crate panels to allow access to the interior of the awning. In view of these facts showing that plaintiff was not instructed to use any particular safety devices and/or was acting at the direction, or with at least the tacit approval, of his onsite supervisor in how he performed his work, plaintiffs actions cannot be deemed the sole proximate cause of the accident (see Gallagher v New York Post, 14 N.Y.3d 83, 88-89 [2010]; Mushkudiani v Racanelli Constr. Group, Inc., 219 A.D.3d 613, 615 [2d Dept 2023]; Zholanji v 52 Wooster Holdings, LLC, 188 A.D.3d 1300, 1302 [2d Dept 2020]; Doto v Astoria Energy II, LLC, 129 A.D.3d 660, 662 [2d Dept 2015]; Murray v Arts Ctr. & Theater of Schenectady, Inc., 77 A.D.3d 1155, 1156-1157 [3d Dept 2010]; see also Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 34 N.Y.3d 1166, 1167-1168 [2020]). The court further finds that the conclusory assertions of NYU Langone's safety I consultant are insufficient to demonstrate the existence of a factual issue (see Cutaia v Board Managers of the 160/170 Varick St. Condominium, 38 N.Y.3d 1037, 1039 [2021]). Defendants have thus failed to demonstrate a factual issue as to whether Labor Law § 240 (1) was violated.
The court further rejects Signs & Decal's assertion that it is not a proper Labor Law § 240 (l) defendant. As the entity that contracted to perform the awning replacement work and by later subcontracting this work to Five Star, Signs & Decal had the authority to supervise and control Five Star's work, even if it did not exercise such authority, and as such, it acted as NYU Langone's statutory agent with respect to the awning work (see Mogrovejo, 207 A.D.3d at 461; White v 31-0 I Steinway LLC, 165 A.D.3d 449, 452-453 [ 1st Dept 2018]; Mitchell v T. McElligott, Inc., 152 A.D.3d 928, 930-931 [3d Dept 2017]; Gallagher v Resnick, 107 A.D.3d 942, 945 [2d Dept 2013); Inga v EBS N. Hills, LLC, 69 A.D.3d 568, 569-570 [2d Dept 2010]; Timmons v Linx Contr. Corp., 49 A.D.3d 382, 382 [1st Dept 2008]). The court notes that NYU Langone, which conceded that it owned the premises at issue in its answer, has made no argument that it cannot be held liable under Labor Law § 240 (1) as an owner (see Gordon v Eastern Ry. Supply, 82 N.Y.2d 555, 559-560 [1993]; Jara v Costco Wholesale Corp., 178 A.D.3d 687, 690 [2d Dept 2019]).
Accordingly, plaintiff is entitled to partial summary judgment in his favor with respect to liability on his Labor Law § 240 (1) cause of action and that the portions of defendants' cross-motions seeking dismissal of the section 240 (1) cause of action must be denied.
Labor Law §241 (6)With respect to plaintiffs Labor Law § 241 (6) cause of action, defendants have demonstrated, prima facie, that Industrial Code (12 NYCRR) §§ 23-1.5, et seq.; 23-1.7 (b), (d), (e); 23-1.21, 23-5.1, 23-5.2, 23-5.3, and 23-5.18 either fail to state a specific standard or are inapplicable to the facts here. Notably, in this respect, section 23-1.5 is primarily too general to support a Labor Law claim or is inapplicable to the facts in this case, plaintiff was not faced with a hazardous opening within the meaning of section 23-1.7 (b) (see Gillis v Brown, 133 A.D.3d 1374, 1376 [4th Dept 2016]; Bisram v Long Is. Jewish Hosp., 116 A.D.3d 475, 476-477 [1st Dept 2014]; Forschner v Jucca Co., 63 A.D.3d 996, 999 [2d Dept 2009]), sections 23-1.7 (d) and (e) are inapplicable because plaintiff did not slip or trip, section 23-1.21 is inapplicable because plaintiff did not fall from a ladder, and sections 23-5.1, 23-5.2, 23-5.3, and 23-5.18 are inapplicable because the frame of the awning is not a scaffold within the meaning of the Industrial Code (Johnson, 79 A.D.3d at 1241; 12 NYCRR 23-1.4 [b] [45]). Plaintiff, who failed to address the section 241 (6) cause of action in his opposition papers, has abandoned reliance on the Industrial Code sections alleged in the bill of particulars (see Debennedetto v Chetrit, 190 A.D.3d 933, 936 [2d Dept 2021]). Defendants are thus entitled to summary judgment dismissing the Labor Law § 241 (6) cause of action.
Common-Law Negligence and Labor Law § 200
Defendants have also demonstrated their prima facie entitlement to dismissal of the common-law negligence and Labor Law § 200 causes of action. Defendants, through the testimony of their own witnesses and through the testimony of plaintiff and Hernandez, have demonstrated that they did not supervise or control Five Stars' work on the project, and thus shown that they cannot be held liable under a means and methods theory of liability under the common-law negligence and Labor Law § 200 causes of action (see Wilson v Bergon Constr. Corp., 219 A.D.3d 1380, 1383 [2d Dept 2023]; Kefaloukis v Mayer, 197 A.D.3d 470, 471 [2d Dept 2021]; Lopez v Edge 11211, LLC, 150 A.D.3d 1214, 1215-1216 [2d Dept 2017]; Przyborowski v A&M Cook, LLC, 120 A.D.3d 651, 652-653 [2d Dept 2014]). Additionally, Signs &Decal may not be held liable under a premises condition theory of liability under common-law negligence and section 200 since it did not have control of the work site (see Vita v New York Law Sch., 163 A.D.3d 605, 607 [2d Dept 2018]). Further, since there is no suggestion that either defendant caused or created a dangerous condition, that the awning frame was unsafe for its intended use of supporting the awning (see Gasper v Ford Motor Co., 13 N.Y.2d 104, 110-111 [1963]; Jones v Radio City Music Hall Corp., 38 A.D.2d 909, 909-910 [1st Dept 1972], affd on the opinion below 31 N.Y.2d 790 [1972]; Borshowsky v B. Altman & Co., 280 A.D. 599, 601-602 [1st Dept 1952], affd 306 NY 798 [1954]), or that the accident did not arise from a risk inherent in working on the elevated awning (see Bodtman v Living Manor Love, Inc., 105 A.D.3d 434, 435 [1st Dept 2013]; Annicaro v Corporate Suites, Inc., 98 A.D.3d 542, 544 [2d Dept 2012]; Monahan v New York City Dept, of Educ., 47 A.D.3d 690, 691-692 [2d Dept 2008]; Bombero v NAB Constr. Corp., 10 A.D.3d 170, 171-172 [1st Dept 2004]), both defendants have also demonstrated that they may not be held liable under a dangerous condition theory of liability. As plaintiff has failed to identify any evidentiary facts demonstrating an issue of fact in this regard, defendants are entitled to summary judgment dismissing the common-law negligence and section 200 causes of action.
Plaintiff's argument that NYU Langone did not establish its prima facie showing in this respect because it did not present any evidence regarding when it had last inspected the awning fails in light of Hernandez's deposition testimony that Five Star had been working on that awning for five days prior to the accident and he did not observe any issues with the awning in that time period.
Indemnification and Insurance Issues
Turning to NY Langone's contractual indemnification claim against Signs & Decal, the aforementioned On-Call Agreement, dated April 1, 2016, between NYU Medicine and Signs & Decal specifically provides that Signs &Decal, "shall assume entire responsibility and liability for any and all losses, damages or injuries of any kind or nature whatever (including death resulting therefrom) to all persons, whether employees of the Signage Contractor or the Owner or otherwise . . . caused by, resulting from, arising out of or occurring in connection with the Work." The On-Call Agreement also provides that Signs & Decal agrees to assume the defense of the "Owner," and shall pay all costs and expenses, including attorneys' fees, and further notes that references to "Owner" includes (in addition to NYU Medicine) and inure to the benefit of "NYU Hospitals Center, NYU Langone Health System, New York University, New York University Medical Center Condominium and their respective officers, employees, agents, representatives, doctors, patients and students." (On-Call Agreement § 15), NYU Langone, which, in view of the dismissal of the common-law negligence and Labor Law § 200 causes of action, has demonstrated that it was not negligent, has demonstrated its prima facie entitlement to contractual indemnification since the record also shows that plaintiffs injury' arose out of the work NYU Medicine contracted Signs &Decal to perform in the Task Order (see Mogrovejo, 207 A.D.3d at 463; De Souza v Empire Tr. Mix, Inc., 155 A.D.3d 605, 605-606 [2d Dept 2017]; Muevecela v 117 Kent Ave., LLC, 129 A.D.3d 797, 798 [2d Dept 2015]; Tobio v Boston Props., Inc., 54 A.D.3d 1022, 1024 [2d Dept 2008]; Scott v 122 East 42 St., LLC, 34 Mise 3d 133 [A], 2012 NY Slip Op 50358, *10-11 [U] [Sup Ct, Queens County 2012]). Contrary to Signs & Decal's argument, the fact that it was not hired to assess the adequacy of the preexisting awning frame in no way demonstrates that plaintiffs accident did not arise out of the awning cover replacement work it contracted to perform.
Signs & Decal's primary argument in opposing NYU Langone's cross-motion is that NYU Langone Hospitals is not specifically identified as one of the NYU entities entitled to indemnification under NYU Medicine's On-Call Agreement with Signs & Decal. Signs & Decal may be technically correct that NYU Langone Hospitals is not specifically identified in the On-Call Agreement (see Valesquez v Mosdos Meharam Brisk of Tashnad, 189 A.D.3d 1655, 1657 [2d Dept 2020]; Benitez v Church of St. Valentine Williamsbridge N.Y, 171 A.D.3d 593, 594 (1st Dept 2019]) and that NYU Langone's counsel's assertion, in the initial moving papers, that NYU Hospitals Centers, an entity specifically identified in the On-Call Agreement, became NYU Langone Hospital as the result of a name change, is not supported by evidentiary proof (see Zuckerman v City of New York, 49 N.Y.2d 557, 563 [1980]), Nevertheless, the very sign and awning work at issue related to the name change, and NYU Langone, in reply, has submitted copies of Department of State, Division of Corporations filings that conclusively show that NYU Langone Hospitals is simply a name change from NYU 1
Hospitals Center. This court further finds that the name change, in and of itself, does not constitute a basis to deny indemnification and that the absence of successors and assigns language in the contract is irrelevant with respect to a name change (see Rothstein v Provident Life & Cas. Ins. Co., 177 A.D.2d 93, 95-96 [1st Dept 1992], Iv denied 80 N.Y.2d 752 [1992]; see also Welsh v Perfect Renovation, Corp., 129 A.D.3d 708, 710 [2d Dept 2015]; Matter of Harmon v Ivy Walk Inc., 48 A.D.3d 344, 346-347 [1st Dept 2008], Iv denied 11 N.Y.3d 702 [2008]; State of N.Y. v International Fid. Ins. Co., 152 A.D.2d 77, 80-81 [3d Dept 1989]). Under these circumstances and in the absence of any serious dispute as to the subject name change, the portion of NYU Langone's cross-motion for summary judgment on its contractual indemnification claim against Signs & Decal is granted.
Although these copies are uncertified, the same information is also shown on the Department of State's website. As such, this court takes judicial notice of the fact of the name change based on the Department of State's records (see Lin vBanko, 219 A.D.3d 1510, 1512 [2d Dept 2023]; Maisto v State of New York, 154 A.D.3d 1248, 1251 n4 [3d Dept 2017); Matter of LaSonde v Seabrook, 89 A.D.3d 132, 137 n8 [1st Dept 2011], Iv denied 18 N.Y.3d 911 [2012]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 A.D.3d 13, 19-21 [2d Dept 2009]).
With respect to NYU Langone's insurance procurement claim against Signs & Decal, the On-Call Agreement requires Signs & Decal to obtain a general liability policy that names, among other entities, NYU Hospitals Center as an additional insured. For the reasons discussed with respect to the indemnification claim, this court finds that NYU I
Langone has demonstrated that it is the same entity as NYU Hospitals Center, and thus, that Signs & Decal's insurance policies must cover it as an additional insured.
The court, however, also finds that NYU Langone has failed its prima facie burden of demonstrating that Signs & Decal did not obtain the insurance coverage required by the On-Call Agreement. Notably, the only evidence it has submitted in support of its assertion is a letter from Signs & Decal's insurer, dated October 11, 2018, in which the insurer, relying on language in the On-Call Agreement's indemnification provision stating that NYU Langone would not be entitled to indemnification based on its own exclusive negligence, denied the tender. Here, the insurer's reliance on the On-Call Agreement's indemnification provisions would appear to be irrelevant to an insurer's obligation to defend and indemnify an additional insured (see Kinney v Lisk Co., Inc., 76 N.Y.2d 215, 218 [1990]). If the policy obtained by Signs & Decal tied the insurer's obligation to defend and indemnify to Signs & Decal's indemnification obligations or contained other such limitations, a disclaimer or tender denial on such grounds might demonstrate that Signs & Decal failed to obtain appropriate coverage (see Roldan v New York Univ., 81 A.D.3d 625, 629 [2d Dept 201 I]; Bachrow v Turner Constr. Corp., 46 A.D.3d 388. 388 [1st Dept 2007]; Clapper v County of Albany, 188 A.D.2d 774, 775-776 [3d Dept 1992]). The letter here, however, does not directly do so and, as such, it is insufficient to demonstrate that Signs &Decal failed to obtain the appropriate insurance coverage (see Perez v Morse Diesel Inti., Inti., Inc., 10 A.D.3d 497, 498 [1st Dept 2004]; KMO-36I Realty Assoc, v Podbielski, 254 A.D.2d 43, 44 [1st Dept 1998]; Garcia v Great All. & Pac. Tea Co., 231 A.D.2d 401, 402 [1st Dept 1996]; see also Dorset v 285 Madison Owner LLC, 214 A.D.3d 402, 404 [1st Dept 2023]; Binasco v Break-Away Demolition Corp., 256 A.D.2d 373, 375 [2d Dept 1998]). To the extent that NYU Langone may be aggrieved by the actions of Signs & Decal's insurer in denying its tender, its remedy would be to bring a declaratory judgment action directly against the insurer (see Garcia, 231 A.D.2d at 402).
Turning to NYU Langone's contractual indemnification claim against Five Star, NYU Langone has submitted a copy of Signs &Decal's purchase order agreement with Five Star and a copy of a certificate of insurance that indicates that NYU Hospitals Center is an additional insured under Five Star's policy based on a blanket additional insured endorsement. The purchase order agreement, however, contains no indemnification provision, and the certificate of insurance is not proof of an agreement to indemnify (see Chong Fu Huang v 57-63 Greene Realty, LLC, 174 A.D.3d 777, 778 [2d Dept 2019]; see also Kinney, 16 N.Y.2d at 218). In the absence of proof of an indemnification agreement, NYU Langone has failed to demonstrate its prima facie entitlement to contractual indemnification from Five Star (see Betancur v Lincoln Ctr. for the Performing Arts, Inc., 101 A.D.3d 429, 430 [1st Dept 2012]; McNamee Constr. Corp. v City of New Rochelle, 29 A.D.3d 544, 545 [2d Dept 2006]).
With respect to the insurance procurement claim, the purchase order agreement likewise contains no insurance procurement requirements. Although the certificate of insurance may constitute some evidence of an agreement by Five Star to name NYU Langone as an additional insured (see Wasek v New York City Health & Hosps. Corp., 123 A.D.3d 493, 494 [1st Dept 2014]), in the absence of any other evidence of such an agreement, this court finds that NYU Langone has failed to demonstrate the absence of a factual issue with respect to the existence of such an agreement.
Given that NYU Langone has failed its prima facie burden on its contractual indemnification and insurance procurement claims against Five Star, its cross-motion must be denied notwithstanding Five Star's failure to submit opposition to NYU Langone's cross-motion (see Caliber Home Loans, Inc. v Squaw, 190 A.D.3d 926, 927-928 [2d Dept 2021]; Exit Empire Realty v Zileiian, 137 A.D.3d 742, 743 [2d Dept 2016]).
Summary
Based on the foregoing, it is
ORDERED that plaintiffs motion seeking partial summary judgment on the issue of liability on his Labor Lawr § 240 (1) cause of action against NYU Langone and Signs &Decal is granted (motion sequence number 5); and it is further
ORDERED that Signs &Decal's cross-motion seeking summary judgment dismissing plaintiffs complaint as against it is granted to the extent that plaintiffs common-law negligence and Labor Law §§ 200 and 241 (6) causes of action are dismissed. The motion is otherwise denied (motion sequence number 6); and it is further
ORDERED that NYU Langone's cross-motion seeking (1) summary judgment dismissing plaintiff's complaint as against it is granted to the extent that plaintiffs common-law negligence and Labor Law §§ 200 and 241 (6) causes of action are dismissed, and (2) summary judgment on its third-party complaint is granted only to the extent that it is entitled to contractual indemnification from Signs & Decal. NYU Langone's motion is otherwise denied (motion sequence number 7).
In addition, in view of the stipulations discontinuing the action as against defendant Caldwell & Walsh Building Construction, Inc., (NYSCEF Doc No. 69) and defendant Empire General Contracting &Painting Corp. (NYSCEF Doc No. 53), it is
ORDERED that the caption is amended to read as follows:
This constitutes the decision and order of the court.