Opinion
111978/08
10-28-2011
Chinua Howell, Plaintiff, v. Bethune West Associates, LLC, PLAZA CONSTRUCTION CORP., STEVEN BUNZEL, TOTAL SAFETY CONSULTING, L.L.C., ASPRO MECHANICAL CONTRACTING, INC., URBAN FOUNDATION/ENGINEERING, INC. and CB CONTRACTING CORP., Defendants.
Attorney for Plaintiff Attorney Firm Name:CHELLI & BUSH, P.C. Attorney for Bethune, Plaza, Bunzel, Total Safety, and Aspro Attorney Firm Name:LAW OFFICES OF ED GARFINKEL. Attorney for Urban Foundation Attorney Firm Name:Brown Gavalas & Fromm LLP. Attorney for Richmond Rebar Attorney Firm Name:CAMACHO MAURO MULHOLLAND LL
Attorney for Plaintiff Attorney Firm Name:CHELLI & BUSH, P.C.
Attorney for Bethune, Plaza, Bunzel, Total Safety, and Aspro Attorney Firm Name:LAW OFFICES OF ED GARFINKEL.
Attorney for Urban Foundation Attorney Firm Name:Brown Gavalas & Fromm LLP.
Attorney for Richmond Rebar Attorney Firm Name:CAMACHO MAURO MULHOLLAND LLP.
Carol R. Edmead, J.
In a case involving a bundle of brackets that fell on the head of an apprentice ironworker, defendants/third-party plaintiffs Bethune West Associates, LLC (Bethune), Plaza Construction Corp. (Plaza), and Steven Bunzel (Bunzel), along with defendants Total Safety Consulting, L.L.C. (Total Safety) and Aspro Mechanical Contracting, Inc. (Aspro) (collectively, the Bethune defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint, and all cross claims and counterclaims as against them, or alternatively, for partial summary judgment against defendant/third-party defendant Urban Foundation/Engineering LLC (Urban) for contractual indemnification (Motion Seq. No. 002). Urban moves for summary judgment dismissing the complaint and all cross claims and third-party claims as against it, and for summary judgment against third-party defendant Richmond Rebar, LLC (Richmond Rebar) on its cross claims for contractual indemnification and breach of contract for failure to procure insurance (Motion Seq. No. 003). Finally, Richmond Rebar and defendant/third-party CB Contracting Corp. (CB Contracting) move for summary judgment dismissing all claims and cross claims as against them (Motion Seq. No. 004). All of the motions are consolidated for joint disposition herein.
BACKGROUND
On October 16, 2007, plaintiff, an apprentice ironworker, was sitting down on his morning break, eating a buttered roll and a cup of noodles, when a bundle of plumbing brackets that were leaning against the fence behind him fell on his work helmet, allegedly injuring his neck (Plaintiff's March 11, 2009 Deposition, at 75-100). Plaintiff was employed by Richmond Rebar at the time, and was working on a construction project located at 469 West Street in Manhattan. Bethune owns the property and Plaza was the construction manager on the project.
DISCUSSION
"Summary judgment must be granted if the proponent makes 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,' and the opponent fails to rebut that showing" (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, if the moving party fails to make a prima facie showing, the court must deny the motion, " regardless of the sufficiency of the opposing papers'" (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008], quoting Alvarez, 68 NY2d at 324).
Initially, Urban, the excavation subcontractor, and CB
Contracting, an entity related to Richmond Rebar that did not work on the project, submit unrefuted evidence that each had no involvement in plaintiff's accident, and that they were not the general contractor or property owner on the project, or an agent of either. Moreover, the Bethune defendants submit unrefuted evidence that Bunzel, Plaza's employee, was never present on the project. Thus, plaintiff's complaint is dismissed as against Urban, CB Contracting, and Bunzel.
I. Labor Law § 240 (1)
The Bethune defendants are not entitled to dismissal of plaintiff's Labor Law § 240 (1) claim, as they fail to make a showing that plaintiff's accident was not proximately caused by a failure to provide adequate safety devices to protect against a risk arising from a significant height differential.
Labor § 240 (1) provides, in relevant part:
All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, 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.
The Court of Appeals has held that this duty to provide safety devices is nondelegable (Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]), and that absolute liability is imposed where a breach has proximately caused plaintiff's injury (Bland v Manocherian, 66 NY2d 452, 459 [1985]).
While "[n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)" (Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 288 [2003] [internal quotation marks and citation omitted]), the statute "is to be liberally construed" to accomplish its purpose of better protecting "work[ers] engaged in certain dangerous employments" (Sherman v Babylon Recycling Ctr., 218 AD2d 631, 631 [1st Dept 1995] [internal quotation marks and citation omitted]; see also Harris v City of New York, 83 AD3d 104, 108 [1st Dept 2011]).Although Labor Law § 240 (1) claims are typically grouped into "falling worker" and "falling object" cases, "the single decisive question is whether 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]).
In the falling object context, courts have suggested that the statute may not be implicated where an object falls a de minimis distance (see e.g. Melo v Consolidated Edison Co. of NY, 92 NY2d 909, 911 [1998]; Makarius v Port Auth. of NY and N.J., 76 AD3d 805 [1st Dept 2010]). The First Department, however, following the lead of the Court of Appeals, has stated recently, in considering whether a plaintiff has been subjected to a risk arising from a physically significant elevation differential, that "the weight of the falling object and the amount of force it was capable of generating, even over the course of a relatively short descent' must be taken into account" (Harris, 83 AD3d at 110, quoting Runner, 13 NY3d at 605).
The Court of Appeals, applying this principle just this week, held that two unsecured 10-foot plumbing pipes that fell over and hit a worker on the head, shoulder, and arm during a demolition implicated a risk arising from a significant elevation differential, as the pipes were able to generate a considerable amount of force as they fell onto the worker, who was standing up (Wilinski v 334 East 92nd Housing Development Fund Corp., —NY—-, 2011 NY Slip Op 07477, *7 [2011]). In Wilinski, the Court denied summary judgment on the issue of liability under Labor Law § 240 (1) to plaintiff and defendants, as it was unclear whether plaintiff's injury was the direct cause of defendants' failure to provide adequate safety devices (id.).
The Bethune defendants argue that plaintiff's Labor Law § 240 (1) must be dismissed because there was no elevation difference between the bundle of brackets and plaintiff, as the brackets were resting on the ground and fell over, instead of dropping from a height. Plaintiff argues that there was an elevation difference, since he was sitting on a mesh roll that was four feet off the ground and was struck by materials that were improperly "hoisted" and "secured."
Here, as in Wilinsky, the bundle of brackets, which were about 10-feet long, generated enough force during their descent to implicate a risk arising from significant height differential. The Bethune defendants fail to make a prima facie showing as to whether plaintiff's injuries were caused by something other than the absence of a safety device similar to the devices listed in the statute. As such, the branch of the Bethune defendants' motion that seeks summary judgment as to liability under Labor Law § 240 (1) is denied.
II. Labor Law § 200 and Common-Law Negligence
The Bethune defendants are entitled to dismissal of plaintiff's Labor Law § 200 and common-law negligence claims, as they did not have any notice of the dangerous condition that led to plaintiff's accident.
Labor Law § 200 is a codification of the common-law duty imposed upon an owner or contractor to provide construction workers with a safe place to work (see Comes v New York State Elec. and Gas Corp., 82 NY2d 876 [1993]). Cases under Labor Law § 200 fall into two broad categories: those involving injury caused by the manner or method by which the work is performed, and those caused by a dangerous or defective condition at the worksite (Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 556 [1st Dept 2009]).
Where the alleged failure to provide a safe workplace arises from the methods or materials used by the injured worker, "liability cannot be imposed on [a defendant] ... unless it is shown that it exercised some supervisory control over the work" (Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept 2007]).
In contrast, where the defect arises from a dangerous condition on the work site, instead of the methods or materials used by plaintiff and his employer, an owner or contractor "is liable under Labor Law § 200 when [it] created the dangerous condition causing an injury or when [it] failed to remedy a dangerous or defective condition of which [it] had actual or constructive notice" (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011] [internal quotation marks and citation omitted]; see also Minorczyk v Dormitory Auth. of the State of NY, 74 AD3d 675 [1st Dept 2010]). In the dangerous-condition context, "whether [a defendant] controlled or directed the manner of plaintiff's work is irrelevant to the Labor Law § 200 and common-law negligence claims .... " (Seda v Epstein, 72 AD3d 455, 455 [1st Dept 2010]).
Here, plaintiff's accident did not arise from the method, manner, or materials of his work, as it did not occur while he was working, but while he was on break. Moreover, there is nothing in the record to suggest that plaintiff did anything to cause the brackets to fall, or that the brackets were involved in the ironwork that plaintiff was performing. Thus, plaintiff's claim must be analyzed as a dangerous-condition claim, rather than a manner-and-method claim.
The Bethune defendants argue that the record is devoid of any evidence that they were on notice of the hazardous condition of the brackets leaning against the fence in an unstable manner. Plaintiff fails to come forward with any evidence of actual or constructive notice, instead arguing that defendants fail to meet their prima facie burden. Here, the Bethune defendants are correct that the record is devoid of any evidence of their having actual notice of the defect.
As for constructive notice, plaintiff does not submit any evidence that would indicate the length of time that the brackets were left leaning against the fence. Without an indication of how long the dangerous condition existed, plaintiff cannot establish that the Bethune defendants should have discovered it, as constructive notice "is generally found when the dangerous condition is visible and apparent, and exists for a sufficient period to afford a defendant an opportunity to discover and remedy the condition" (Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421 [1st Dept 2011]). As plaintiff fails to raise an issue of fact as to notice, the Bethune defendants are entitled to summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims as against them.
III. Labor Law § 241 (6)
The Bethune defendants are not entitled to summary judgment dismissing plaintiff's Labor Law § 241 (6) claim, as they fail to show that all of the Industrial Code provisions of which plaintiff alleges violation are either insufficiently specific or inapplicable.
Labor Law 241 (6) provides:
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.It is well settled that this statute requires owners and contractors and their agents "to provide reasonable and adequate protection and safety' for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993], quoting Labor Law § 241 [6]). This duty is nondelegable and exists even in the absence of control or supervision of the worksite (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348-349 [1998]).
In order to maintain a viable claim under Labor Law 241 (6), the plaintiff must allege a violation of a provision of the IndustrialCodethat requires compliance with concrete specifications (Misicki v Caradonna, 12 NY3d 511, 515 [2009]). As to determining whether a particular provision of the Industrial Code is applicable, the Court of Appeals recently noted that the Code "should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace" (St. Louis v Town of N. Elba, 16 NY3d 411, 416 [2011]).
Plaintiff claims that defendants failed to establish that none of following provisions of the Industrial Code are applicable: 12 NYCRR 23-1.7 (including 12 NYCRR 23-1.7 (e) (1) and (e) (2)), 23-1.8, and 23-2.1. Specifically, argues plaintiff, 12 NYCRR 23-1.7 (a) (2) and 23-1.8 (c) and 23-2.1 were violated. Plaintiff also argues that Occupational Safety and Health Administration (OSHA) regulations provide a basis for finding that an instrumentality is defective.
12 NYCRR 23-1.7 entitled "Protection from General Hazards" provides, in relevant part:
(a) Overhead hazards.
(1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection . . . . (2) Where persons are lawfully frequenting areas exposed to falling material or objects but wherein employees are not required to work or pass, such exposed areas shall be provided with barricades, fencing or the equivalent in compliance with this Part (rule) to prevent inadvertent entry into such areas.
Subsections(b) Falling hazards (involving openings into which a person may fall), (c) Drowning hazards, (d) Slipping hazards, (e) Tripping and other hazards,(f) Vertical passage, (g) Air-contaminated or oxygen deficient work areas, and (h) Corrosive substances, have no application to the facts at bar.
The First Department has held that this regulation "only applies to places normally exposed to falling material or objects. Thus, where an object unexpectedly falls on a worker in an area not normally exposed to such hazards, the regulation does not apply" (Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 271 [1st Dept 2007]). Here, the Bethune defendants argue that this regulation is inapplicable, as the area where plaintiff was injured was not exposed to falling objects, especially since there is no indication from the record that any work was being performed overhead. Plaintiff fails to rebut this showing that the bundle of brackets was an unexpected occurrence in an area where no overhead work was taking place. Thus, 12 NYCRR 23-1.7 is inapplicable and may not serve as a predicate for defendants' liability under Labor Law § 241 (6).
Specifically, as argued by the parties, NYCRR 23-1.7 (e), entitled "Tripping and other hazards," provides:
(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any
other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.
(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.
The Bethune defendants are correct that this regulation is inapplicable on its face, as plaintiff did not trip (see generally Booth v Seven World Trade Co., L.P., 82 AD3d 499, 501 [1st Dept 2011]). Thus, NYCRR 23-1.7 (e) cannot serve as a predicate for defendants' liability under Labor Law § 241 (6).
12 NYCRR 23-1.8, entitled "Personal Protective Equipmentis likewise inapplicable. Specifically, 12 NYCRR 23-1.8 (c) (1), entitled "Head protection," provides that:
Subsections (a) "Eye protection" (regarding operations which may endanger the eyes), (b) "Respirators" (where a respirator is required to be provided), and (d) "Cleanliness of personal protective equipment" (requiring equipment to be kept clean and in good repair) are clearly inapplicable.
Every person required to work or pass within any area where there is a danger of being struck by falling objects or materials or where the hazard of head bumping exists shall be provided with and shall be required to wear an approved safety hat . . . .
The Bethune defendants argue that this regulation is inapplicable, as plaintiff was not injured in an area where there was a danger of being struck by falling objects. Plaintiff does not make any specific arguments regarding this provision, except to state that it was violated. Not only are the Bethune defendants correct that no overhead work was being done in the area where plaintiff was injured, but plaintiff testified that he was wearing a protective helmet at the time of his accident (Plaintiff's March 11, 2009 Deposition, at 75). Thus, 12 NYCRR 23-1.8 (c) (1) may not serve as a predicate for liability under Labor Law § 241 (6).
Finally, plaintiff argues that defendants violated 12 NYCRR 23-2.1 by improperly storing the bundle of brackets that fell on him. 12 NYCRR 23-2.1 (a) (1), entitled "Storage of material or equipment," provides that:
All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstructSection 23-2.1 (a)(2) provides that
any passageway, walkway, stairway or other thoroughfare.
Material and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold. Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge.
However, section 23-2.1 (b), entitled "Disposal of debris," "does not sufficiently set forth a specific standard of conduct as opposed to a general reiteration of common-law principles' for its violation to qualify as a predicate for a Labor Law § 241(6) cause of action" (Quinlan v City of New York, 293 AD2d 262, 739 NYS2d 706 [1st Dept 2002]).
"[T]he provisions of 12 NYCRR 23—2.1 (a) contain specifications sufficiently concrete to sustain a Labor Law § 241 (6) claim" (Aragona v State of New York, 74 AD3d 1260, 1261-1262 [2nd Dept 2010]).
Defendants failed to establish that such sections are inapplicable to the matter at hand.
While claims alleging violation of this regulation that involve stored equipment or materials that cause a worker to trip and fall are not viable if the accident did not take place in a "passageway, walkway, stairway or other thoroughfare" (see e.g. Militello v 45 W. 36th St. Realty Corp., 15 AD3d 158 [1st Dept 2005]), claims involving unstably stored equipment or materials that fall and strike a worker are viable even if the accident takes place in an open area (see e.g. Castillo v 3440 LLC, 46 AD3d 382, 383 [1st Dept 2007]).
The Bethune defendants argue only that 12 NYCRR 23-2.1 is inapplicable here because it was found inapplicable in Mikcova v Alps Mech., Inc., 34 AD3d 769 [2d Dept 2006]). However, Mikcova involved "metal barriers which were part of a 10- to 12-foot scaffold standing on the ground next to plaintiff," rather than equipment or materials that were being stored (34 AD3d at 770). Thus, Mikcova is inapposite and the Bethune defendants fail to make a prima facie showing that 12 NYCRR 23-2.1 (a) (1) is inapplicable. As such, the branch of the Bethune defendants' motion that seeks dismissal of plaintiff's Labor Law § 241 (6) is denied.
IV. Indemnification and Contribution
A. Claims Against Urban
The Bethune defendants are not entitled to summary judgment for contractual indemnification against Urban, as Urban's work on the project had no causal connection to plaintiff's accident. Moreover, since Urban was not at fault for plaintiff's accident, it is entitled to dismissal of all third-party and cross claims for common-law indemnification and contribution.
The Bethune defendants contend that they are entitled to partial summary judgment on their contractual indemnification claims against Urban, the excavation contractor.
The contract between Plaza, the construction manager, and Urban provides, in relevant part:
A. To the extent permitted by law, Subcontractor [Urban] shall indemnify, defend, save and hold harmless the Owner [Bethune], the Construction Manager [Plaza], Landlord, Building, Management, and Architect .... harmless from and against all liability, damage, loss, claims, demands and actions of any nature whatsoever which arise out of or be connected with: 1. The performance of Work by the Subcontractor [Urban], or any of its Subcontractors, any act or omission of any of the foregoing; 2. Any accident or occurrence which happens, or is alleged to have happened, in or about the place where such Work is alleged to have happened, in or about the place where such Work is being performed or in the vicinity thereof (a) while the Subcontractor [Urban] is performing the Work, either directly or indirectly through a Subcontractor or material agreement or (b) while any of the Subcontracotor's property, equipment or personnel are in or about such place or the vicinity thereof by reason of or as a result of the performance of Work; or 3. The use, misuse, erection, maintenance, operation or failure of any machinery or equipment (including but not limited to, scaffolds, derricks, ladders, hoists, rigging supports, etc.) whether or not such machinery or equipment was furnished, rented or loaned by the Owner [Bethune] or the Construction Manager [Plaza] or their officers, employees, agents, servants or others, to the Subcontractor [Urban]. B. Without limiting the generality of the foregoing, such defense and indemnity includes all liability, damages, loss, claims, demands and actions on account of personal injury, death or property loss to any Indemnitee . . . .(Plaza/Urban Agreement, Exhibit A, General Conditions, Article 9, A-B).
In opposition to the Bethune defendants' motion, and in support of dismissing all claims against it, Urban argues that plaintiff's accident did not arise out of its work on the project.
In order for a claim to "arise out" of a party's work, there must be a showing that "a particular act or omission in the performance of such work was causally related to the accident"(Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 273 [1st Dept 2007] [internal quotation marks and citation omitted]).
Here, the Bethune defendants suggest no causal relation linking Urban's work to plaintiff's accident, nor do they contend that any of Urban's equipment was involved in the accident. Moreover, the accident did not arise out of the work of Urban's subcontractor, Richmond Rebar, plaintiff's employer, as the accident took place while plaintiff was on a break and seated outside the building, away from the rebar work he had been performing inside the building (Plaintiff's Deposition, at 47-48).
While the indemnification provision in the Plaza-Urban agreement is broadly written, it is not triggered where, as here, Urban has no causal connection to the accident (see Pepe v Center for Jewish History, Inc., 59 AD3d 277, 278 [1st Dept 2009] ["[t]he connection between plaintiff's accident and (the work done by defendant) is too tenuous to trigger the indemnification clause"]). Thus, the Bethune defendants fail to establish entitlement to contractual indemnification from Urban.
Moreover, Urban established its entitlement to dismissal of the Bethune defendants' third-party claims for contractual indemnification. Additionally, Urban established entitlement to dismissal of any third-party or cross claims for common-law indemnification and contribution.
Generally, common-law indemnification requires one party that is "actively at fault in bringing about the injury" to indemnify another party that "is held responsible solely by operation of law because of [its] relation to the actual wrongdoer" (McCarthy v Turner Constr., Inc., 17 NY3d 369, 375 [2011] [internal quotation marks and citation omitted]). Contribution, alternatively, "is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person" (Godoy v Abamaster of Miami, 302 AD2d 57, 61 [2nd Dept 2003] [internal quotation marks and citation omitted]; see also Crespo v HRH Const. Corp., 24 Misc 3d 1246(A) [Sup Ct, New York County 2009]).
Here, as the record shows that Urban had no fault in plaintiff's accident, all third-party claims and cross claims against it for common-law indemnification, and contribution are dismissed.
B. Claims Against Richmond Rebar
Urban is not entitled to summary judgment against Richmond Rebar on its contractual indemnification claim against Richmond
Rebar, as no negligence on Richmond Rebar's part caused plaintiff's accident. For the same reason, Richmond Rebar is entitled to dismissal of all third-party and cross claims for indemnification and contribution as against it.
Urban argues that it is entitled to contractual indemnification from Richmond Rebar pursuant to a purchase order dated August 6, 2007. Urban submits a copy of the purchase order signed only by Urban that contains the following indemnification provision:
[Richmond Rebar] agrees to indemnify, defend and save harmless the indemnitees from and against all losses, claims, costs (including court and attorneys fees), demand, payments, suits, actions, recoveries and judgments of every nature and description brought or recoverable against it or them by reason of any act or omission of the contractor, his agents of any negligence or carelessness(Unsigned Urban/Richmond Rebar Purchase Order, at 2).
Since the record shows that plaintiff's accident did not occur as a result of any negligence on the part of Richmond Rebar, this indemnification provision was never triggered. As such, Urban is not entitled to partial summary judgment as to liability on its contractual indemnification claim against Richmond Rebar. Moreover, since it was not negligent, all third-party and cross claims against Richmond Rebar for indemnification and contribution are dismissed.
V. Failure to Procure Insurance
Urban is entitled to dismissal of the Bethune defendants breach of contract for failure to procure insurance claim, as Urban procured insurance on their behalf.
"A party seeking summary judgment based on an alleged failure to procure insurance naming that party as an additional insured must demonstrate that a contract provision required that such insurance be procured and that the provision was not complied with" (DiBuono v Abbey, LLC, 83 AD3d 650, 652 [2d Dept 2011]).
As Urban submits a certificate of liability insurance listing the Bethune defendants as additional insureds, the Bethune defendants' third-party claim for breach of contract for failure to procure insurance is not viable (see Chunn v New York City Hous. Auth., 83 AD3d 416, 417 [1st Dept 2011] [dismissing claim where the subject insurance policy listed the claimant as an additional insured]). As such, and as the court is dismissing the other third-party claims against Urban, the third-party complaint must be dismissed as against Urban.
Urban is not entitled to summary judgment against Richmond Rebar in its failure to procure insurance claim. Urban submits a purchase order, but it is not signed by Richmond Rebar, and, thus, is not fully executed. As such, Urban's claim for breach of contract for failure to procure insurance is not viable. Consequently, the branch of Richmond Rebar's motion seeking dismissal of such claim must be granted. As there are no remaining claims or cross claims against Richmond Rebar, and there are no viable claims or cross claims as against CB Contracting, as it had no connection to the project, their joint motion to dismiss all claims and cross claims as against them is granted.
CONCLUSION
Based on the foregoing, it is
ORDERED that the motion of defendants/third-party plaintiffs Bethune West Associates, LLC, Plaza Construction Corp., Steven Bunzel, and defendants Total Safety Consulting, L.L.C., and Aspro Mechanical Contracting, Inc. (Motion Seq. No. 002), is decided as follows:
•the branch seeking dismissal of all claims and cross claims as against defendant/third-party plaintiff Steven Bunzel is granted with costs and disbursements to said defendant as taxed by the Clerk upon the submission of an appropriate bill of costs;
•the branch seeking dismissal of plaintiff's Labor Law § 200 and common-law negligence claims is granted;
•the branches seeking dismissal of plaintiff's claims under Labor Law §§ 240 (1) and 241 (6) are denied;
•the branch seeking summary judgment as against defendant/third-party defendant Urban Foundation/Engineering LLC on the issue of contractual indemnification is denied; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly and that the action is severed and continued against the remaining defendants; and it is further
ORDERED that defendant/third-party defendant Urban Foundation/Engineering LLC's motion (Motion Seq. No. 003) is decided as follows:
•the branch seeking summary judgment dismissing all claims and cross claims as against it is granted with costs and disbursements to said defendant as taxed by the Clerk upon the submission of an appropriate bill of costs
•the branch seeking summary judgment on its cross claims for indemnification and breach of contract for failure to procure insurance against third-party defendant Richmond Rebar, LLC is denied; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly and that the action is severed and continued against the remaining defendants; and it is further
ORDERED that the motion of third-party defendant Richmond Rebar, LLC and defendant/third-party defendant CB Contracting Corp. seeking summary judgment dismissing all claims and cross claims as against them is granted with costs and disbursements to said defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly and that the action is severed and continued against the remaining defendants.
ENTER:
Hon. CAROL R. EDMEAD, J.S.C.