Quick v City of New York

[*1] Quick v City of New York 2009 NY Slip Op 51409(U) [24 Misc 3d 1210(A)] Decided on June 29, 2009 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 16, 2009; it will not be published in the printed Official Reports.

Decided on June 29, 2009
Supreme Court, Kings County

Elahn Ben Israel Quick, Plaintiff,

against

City of New York, the Dormitory Authority of the State of New York, FACILITIES DEVELOPMENT CORPORATION, THE HEALTH AND MENTAL HYGIENE FACILITIES IMPROVEMENT CORPORATION, NEW YORK STATE HOUSING FINANCE AGENCY,NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, GREENPOINT MEDICAL AND MENTAL HEALTH CENTER, WOODHULL MEDICAL AND MENTAL HEALTH CENTER, BQE INDUSTRIES, INC. AND DON TODD ASSOCIATES, INC., Defendants.



BQE Industries, Inc., Third-Party Plaintiff,

against

SCAFFOLDING ONE INC. Third-Party Defendant



9064/06



The plaintiff Elahn Ben Israel Quick is represented by the Law Firm of Stefano A. Filipazzo, P.C., by Stefano A. Filipazzo, Esq., of counsel, the defendants The Dormitory Authority of the State of New York, Facilities Development Corporation and Health and Mental Hygiene Facilities Improvement Corporation are represented by Cartafalsa, Slatttery, Turpin & Lenoff by Edward White, Esq., of counsel, the defendant BQE Industries is represented by the Law Office of Wilson, Elser, Moskowitz, Edelman & Dicker, LLP., by Bryan T. Schwartz, Esq., of counsel, the defendants The City of New York, New York City Health and Hospitals Corporation, Greenpoint Medical and Mental Health Center, Woodhull Medical and Mental Health Center are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Don H. Nguyen, Esq., of counsel.

Robert J. Miller, J.

Plaintiff Elahn Ben Israel Quick (plaintiff) moves for an order, pursuant to CPLR 3212, granting summary judgment on his Labor Law § 240 (1) cause of action against defendants City of New York (the City), Dormitory Authority of the State of New York (Dormitory Authority), New York City Health and Hospitals Corporation (HHC), Woodhull Medical and Mental Health Center (Woodhull), BQE Industries, Inc. (BQE) and Don Todd Associates, Inc. (Don Todd) (collectively, defendants).

Defendant BQE cross-moves for an order, pursuant to CPLR 3212, granting it summary judgment: (1) dismissing plaintiff's complaint; (2) dismissing all common-law cross-claims and counterclaims asserted against it; (3) granting it contractual indemnification, including attorneys' fees and defense costs, against third-party defendant Scaffolding One, Inc. (Scaffolding One); and (4) in the event it is ordered to indemnify Dormitory Authority and/or Don Todd and/or Health and Mental Hygiene Facilities Improvement Corporation (FIC), then requiring Scaffolding One to indemnify and hold these entities harmless pursuant to their contractual obligations with BQE.

Defendants Dormitory Authority, Facilities Development Corporation (FDC), FIC, and Don Todd (collectively, the state defendants and Don Todd), cross-move for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint and all cross claims and third-party claims asserted against them, or, in the alternative, granting summary judgment on their cross-claims and third-party claims against the other defendants and third-party defendant Scaffolding One.

Defendants the City, HHC, HHC s/h/a Greenpoint Medical and Mental Health Center (Greenpoint), and Woodhull (collectively, the City and hospital defendants) cross-move for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint and all cross claims asserted against them.

Factual Background

The instant personal injury action arises out of an accident which occurred on November 3, 2005, wherein plaintiff allegedly fell from an elevated height where he was working to dismantle a "sidewalk bridge"[FN1] at Woodhull Medical and Mental Health Center, located at 760 Broadway in Brooklyn (Woodhull Hospital, the subject premises). The subject premises was [*2]allegedly a hospital facility owned by the City [FN2] and operated by HHC. It is undisputed that Dormitory Authority was also an owner of the subject premises [FN3] and that it entered into an agreement with BQE (the general contractor agreement), wherein BQE agreed to act as the general contractor for certain exterior renovations and repairs at the subject premises (the Woodhull project). It is further undisputed that Dormitory Authority entered into a separate agreement (the construction management agreement) with Don Todd to provide construction management services for the Woodhull project at the subject premises. Additionally, BQE also entered into a written agreement with Scaffolding One (the subcontractor agreement) to perform certain construction/renovation work for the Woodhull project, which included the furnishing, erection, and dismantling of sectional scaffolding and sidewalk sheds at the subject premises. Plaintiff was allegedly employed by Scaffolding One as a construction laborer at the time of his accident.

Plaintiff's Examination Before Trial

According to plaintiff's testimony at his examination before trial, the subject accident occurred as plaintiff was in the act of dismantling a sidewalk bridge at the subject premises. According to plaintiff, while standing upon said bridge, he took a step on the wood plank floor and fell to the ground when the planking tipped up from behind him. Plaintiff alleges that defendants failed to provide him with a safety line, safety net, or any other safety devices to protect him at the time of his accident, and also that he did not receive any training from defendants regarding the subject dismantling project. Plaintiff admitted, however, that he had performed similar dismantling work on other projects prior to the date of his accident. Furthermore, plaintiff indicated that he brought some of his own tools to the site to perform his work, but that the remaining tools he utilized were provided solely by Scaffolding One.

Upon arriving to the work site on the date of the accident, plaintiff claims that he was instructed by his Scaffolding One supervisor/foreman, Juan Cantu, to dismantle the sidewalk bridge that had previously been erected on Flushing Avenue abutting Woodhull Hospital.[FN4] The sidewalk bridge was allegedly eight to ten-feet high by eight-feet wide and consisted of a metal frame, aluminum sheets, and wooden planks. According to plaintiff, there were three "bays," or "sections," erected on the exterior of the subject premises, which encompassed approximately 24-feet of the sidewalk below. Plaintiff testified that the frame of the sidewalk bridge was [*3]comprised of metal "I-beams" placed and layered over the frame. Additionally, he stated that aluminum sheets were placed across the "I-beams," and that wooden planks were then placed abutting each other on top of the aluminum sheets. Moreover, he testified that "toe boards," which ran the opposite direction of the planks, were then placed on top of, and nailed to, the edge of the wooden planks to secure them. According to plaintiff, the toe boards were approximately two-feet wide by 10-feet in length, the same size as the wooden planks. Plaintiff testified that there were 10-20 planks on the particular portion of the sidewalk bridge that he was dismantling at the time of his accident.

To perform the job of dismantling the sidewalk bridge, plaintiff testified that he was equipped with a crow bar and a hammer, and that he stood on one bay of the elevated sidewalk bridge in order to loosen the nails from the toe boards and to remove the underlying planks, which were laid together side-by-side. In particular, plaintiff testified that the "boards are nailed together side by side, so [in order to dismantle the scaffolding] you would just take the nails and loosen them, one from the next, and pass it down." According to plaintiff, after he loosened the nails, his procedure was to hand the toe board down to Juan Cantu, who was standing below the bridge.

Plaintiff further indicated that, immediately prior to his accident, he had just loosened the nails from a toe board and was standing on top of the bridge picking up the toe board in order to pass it down to Juan Cantu below. Plaintiff testified that approximately six of the toe boards in that section had been removed, and that his procedure was to "loosen the nails, pick the plank up and pass it down." As he passed the toe board down, plaintiff testified that "[he] took one step to pass it down that the planks under me gave way." In this regard, plaintiff stated that "there was no support from the bottom, so when I stepped on it, the back came up and the bottom went down."[FN5] Plaintiff indicated that he fell to the concrete ground below the sidewalk bridge, coming [*4]into contact with a metal tool crate as he fell. According to plaintiff, Juan Cantu witnessed his accident and assisted him after he fell. Plaintiff further testified that, to his knowledge, his co-workers Paltiel Cantu, Taviel Knuckles, and Paul Everett also witnessed his accident, as they were working in an area proximate to the location where he fell.

It is undisputed that plaintiff did not report the accident to his employer, nor to any other party, until nearly one month after the alleged occurrence. During this period, plaintiff allegedly continued to perform work related to the erection, maintenance, and dismantling of scaffolding at the subject premises and at other work sites. Plaintiff notes that he subsequently sought medical attention at Woodhull Hospital on December 4, 2005 for the injuries that he allegedly sustained in the subject fall.

Deposition Testimony of Maureen Rothfuss - Dormitory Authority

According to the testimony of Dormitory Authority project manager Maureen Rothfuss (Rothfuss), Dormitory Authority was hired by HHC to manage the exterior renovation project at [*5]Woodhull Hospital beginning with the design phase. Rothfuss indicated that Dormitory Authority hired the architect and handled the bids for construction of the Woodhull project, among other things. After the project was commenced in 2001, Rothfuss became the project manager for the subject site, and remained in this role until the project was completed in November 2005. Rothfuss also stated that Dormitory Authority had a trailer at the subject premises and that she periodically conducted walk-throughs of the site to check on the progress of the work. According to Rothfuss, if she had noticed an unsafe condition at the site, she would have notified someone. At some point during the project, Rothfuss testified that she issued a "stop work" order due a problem she noticed with debris on the scaffolding that needed to be corrected, and that after Dormitory Authority was satisfied that the problem was corrected, it issued a resumption order. According to Rothfuss, on the date of the accident, her assistant project manager Ben Hernandez (Hernandez) was at the site as the Dormitory Authority representative.

Rothfuss further testified that Don Todd had a crew of people on site, including Albin Hennebergen (Hennebergen), senior project manager, and Jarren McKenney (McKenney), superintendent. Rothfuss indicated that Don Todd, as the construction manager, was responsible for handling the daily "walk-throughs" of the site, but that there were times when Hernandez also accompanied the Don Todd representative on said walk-throughs. According to Rothfuss, McKenney would "go out and inspect the site, inspect the work that was going on, do a daily head count, daily reports, what work was occurring on that day, how many men" and would list the trades that were working on site. Rothfuss also indicated that McKenney was responsible for examining for any hazardous conditions at the site. Furthermore, Rothfuss testified that Dormitory Authority was not responsible for the actual masonry work, and also that Don Todd did not have any "working" crews at the site. According to Rothfuss, BQE was responsible for developing a site safety plan, which Dormitory Authority then approved, regarding the renovation work being conducted on the Woodhull project.

Moreover, Rothfuss testified that Trevor Knight (Knight) acted as the "Woodhull project manager" for HHC, and that he was Dormitory Authority's liaison to coordinate the work scheduling related to the scaffolding at the subject premises. In addition, Rothfuss indicated that Dormitory Authority employed a "safety consultant," "Marsh Safety," to perform monthly inspections at the site. If a violation was found, Rothfuss testified that she could contact BQE to correct it, that Don Todd would oversee the process of correcting it, and that Dormitory Authority would follow-up with Don Todd to ensure that the problem was, in fact, corrected. However, according to Rothfuss, it was the responsibility of the contractor to check the scaffolding bridges before they were put into use. Rothfuss testified that Dormitory Authority, on the other hand, checked for "glaring deficiencies" regarding safety violations at the subject premises. After the scaffolding was erected, up until the time that it was dismantled, Rothfuss indicated that Scaffolding One did not perform any work on the subject sheds. According to Rothfuss, Marsh Safety had the authority to inspect the scaffolding during the period between the erecting and the dismantling of the scaffolding. Rothfuss was not aware of any Dormitory Authority representatives present during the dismantling process wherein plaintiff was injured.

Deposition Testimony of Stephen Clark - Don Todd

Stephen Clark (Clark) also testified on behalf of his employer, Don Todd, that Don [*6]Todd's responsibilities regarding the Woodhull project included coordinating with Dormitory Authority, as well as with various contractors and engineers working at the site, but not with any of the subcontractors. Clark identified himself as the "executive" for the Woodhull project. According to Clark, employees from Don Todd were on site everyday during the Woodhull project. However, Clark noted that it was the contractor that was responsible for safety at the site and for ensuring that the work performed complied with the structural engineering plan. According to Clark, Don Todd would conduct daily inspections with the site superintendent or inspectors on site, as well as with Dormitory Authority representatives. If a Don Todd representative noticed a very dangerous condition, Clark stated that the employee would likely notify the Dormitory Authority project manager. Clark also testified that BQE was responsible for conducting "progress meetings" at the subject premises.

Deposition Testimony of Kein Anderson - HHC

Furthermore, Kein Anderson (Anderson) testified on behalf of his employer, HHC, that he was the senior associate director for the Woodhull project in November 2005, and that he was responsible for managing the capital design and structure/construction management department. At the time of plaintiff's accident, Anderson testified that the subject premises was operated by HHC. Anderson described the department where he worked as a "unit" of Woodhull Hospital, and indicated that he worked out of an office on the first floor of the hospital. Anderson also stated that he was unaware of what entity actually owned the hospital building.

According to Anderson, HHC and Dormitory Authority entered into a written agreement for the "full execution of the [Woodhull] project," after the Department of Buildings cited the premises for a Local Law 10/11 violation involving unsafe brickwork. Anderson described the contract as an "umbrella" agreement, which also encompassed various other projects undertaken by Dormitory Authority on behalf of HHC. Concerning the Woodhull project, Anderson indicated that there was a separate written "work order" which was, more or less, a budget for this specific project.[FN6] Throughout the duration of the project, Anderson indicated that the City of New York would send a Department of Buildings employee to inspect conditions related to the brickwork violation, and that either Andersen or Hernandez would accompany the employee on his/her walk through the subject premises. According to Anderson, there were times when he would visit the HHC-operated sites to see how the work was progressing, but that it was the responsibility of Dormitory Authority and Don Todd to ensure that the sidewalk in question was built to code. According to Anderson, it was not his responsibility to ensure compliance with the Site Safety Plan, even though Dormitory Authority might notify him if a condition went uncorrected. Anderson also stated that Woodhull Hospital did not provide any equipment to be used for the work performed on the project, nor did Woodhull hire any contractors or subcontractors or have any "direct connection" with the contractor or subcontractors at the site.

Deposition Testimony of Pankus Kumar - BQE

Additionally, Pankas Kumar (Kumar), president of BQE, testified on behalf of BQE that [*7]it hired third-party defendant Scaffolding One pursuant to a written subcontractor agreement, to install, maintain and dismantle pipe scaffolding and sidewalk sheds at the subject premises, and also to obtain all permits associated with this work. Kumar testified that, throughout the duration of the project, Dormitory Authority and its "safety unit" would conduct periodic inspections of the site with Scaffolding One. Kumar stated that BQE was sometimes present during these inspections, but that BQE was not responsible for the inspection or safety of the sheds. When the construction work at the site was completed, Kumar indicated that BQE was responsible for calling Scaffolding One to dismantle the scaffolding. According to Kumar, there were no BQE employees at the subject premises during the dismantling process during which plaintiff was allegedly injured. Kumar also stated that no accident report was created for the incident, as it was never reported to BQE. He indicated that he had never observed any problems with the subject sheds, nor was he aware of any complaints regarding the condition of the sidewalk bridge.

Deposition Testimony of Offer Noach - Scaffolding One

Offer Noach (Noach), president of Scaffolding One, testified that Scaffolding One owned the scaffolding and sheds erected at the subject premises, and that Scaffolding One was hired by BQE to erect and dismantle said scaffolding for the Woodhull project. According to Noach, Scaffolding One hired an outside engineering firm, "Sharif & Medina," to prepare and obtain the necessary permits for the project and to perform necessary inspections. According to Noach, Dormitory Authority also performed inspections of the subject scaffolding. In this regard, Noach stated that Dormitory Authority approved a safety plan for the site created by BQE, and that Dormitory Authority checked the scaffolding after it was erected at the subject premises.

Site Safety Plan

The "Site Safety Plan" submitted by defendants, which was allegedly created by BQE and approved by Dormitory Authority, states that, at the subject premises, "guardrails must be installed on scaffolding systems and must include toe boards and mid and top rails." In addition, the plan indicates that all contractors were responsible for making sure the scaffold was not overloaded. Further, the document states that the subject scaffolding was to be inspected at least once a week, usually by an engineer hired by the contractor or subcontractor. Finally, the plan also states that the scaffolding was required to be "fully netted at all elevation[s]," and that safety netting would be present from the ground to the roof deck.

Procedural Background

A notice of claim was allegedly filed and served upon the City on or about December 15, 2005, and plaintiff subsequently appeared for a hearing under oath pursuant to General Municipal Law 50-h on March 8, 2006. Plaintiff thereafter commenced the instant action by summons and complaint on or about March 22, 2006 against defendants the City of New York, Dormitory Authority, FDC, FIC, New York State Housing Finance Agency, HHC, Greenpoint, Woodhull, BQE and Don Todd, alleging violations of Labor Law §§ 200, 240 (1) and 241 (6), as well as common-law negligence.

The City and hospital defendants joined issue by interposing an answer on or about June 22, 2006. Similarly, the state defendants joined issue by serving an answer on or about May 31, 2006. The attorneys of record for the aforementioned defendants thereafter additionally appeared on behalf of defendant Don Todd, and it also joined issue by interposing an answer on or about [*8]May 31, 2006. In addition, BQE joined issue by interposing an answer on or about June 6, 2006.

Furthermore, defendant/third-party plaintiff BQE instituted a third-party complaint against third-party defendant Scaffolding One on July 13, 2006, seeking common-law and contractual indemnity in connection with the subject occurrence. BQE asserted the above claim for indemnity pursuant to the subcontractor agreement dated February 2, 2004, wherein BQE retained Scaffolding One to act as the subcontractor at the subject premises. Scaffolding One answered the third-party complaint on or about September 8, 2006.

On or about September 30, 2008, plaintiff filed a note of issue certifying that all discovery was complete in the within action.Finally, on or about October 29, 2008, the state defendants and Don Todd asserted "Cross-Claims" for indemnification against third-party defendant Scaffolding One.

The Parties' Contentions - Plaintiff's Labor Law § 240 (1) Claim

Plaintiff's Motion for Partial Summary Judgment

In his motion for partial summary judgment on the issue of liability regarding his section § 240 (1) cause of action, plaintiff alleges, among other things, that:

(1) the state defendants and the City and hospital defendants were the owners and commercial tenants of the subject premises, which was undergoing renovations, including pointing (a covered activity), and that BQE and Don Todd were the general contractor and agent of the owner for purposes of the Labor Law, thus making all defendants responsible parties;

(2) the subject premises was a multi-story hospital facility, not a one or two-family home;

(3) plaintiff was injured when he fell from an elevated height approximately eight feet from a sidewalk bridge/scaffold being dismantled (a covered activity);

(4) plaintiff was not provided any of the enumerated safety devices by defendants, nor by his employer Scaffolding One; and

(5) the absence of one or more statutorily mandated safety devices, such as safety lines, safety nets and/or a safety harness were a proximate cause of his accident.

In particular, plaintiff argues that the state defendants and Don Todd and the City and hospital defendants should be considered a "single unit" for the purposes of determining liability to plaintiff, since the evidence shows that these entities are absolutely liable under Labor Law § 240 (1). In this regard, plaintiff avers that the term "owner" under the statute has been construed to include not only property owners but, under certain circumstances, also those who have an interest in the property, including lessees. Moreover, plaintiff argues that a general contractor and a statutory agent of the owner are strictly liable under Section 240 (1) for a construction worker's injuries which are proximately caused by a dereliction of duty. According to plaintiff, several "virtually identical" cases from the Appellate Division, Second Department support the conclusion that "the City's ownership of the property makes it liable for violations of Labor Law § 241 (6) which occur on its property regardless of whether it remained or controlled the contractor."[FN7] Moreover, plaintiff argues that "[a] lessee in possession is deemed an owner' or agent' of the owner within the meaning of the statute and will also be cast in liability for any [*9]accident resulting from a violation of the non-delegable duties which [Labor Law § 240 (1)] imposes." Plaintiff further notes that the Appellate Division, Second Department has recently held that, with respect to safety concerns in particular, where the construction manager assumes the owner's responsibility to demand compliance with applicable safety requirements and to stop the work upon detecting any unsafe practice or condition, the construction manager is designated a statutory agent of the owner for the purposes of Labor Law §§ 240 (1) and 241 (6).[FN8]

Plaintiff further argues that controlling precedent also dictates that "pointing" is an enumerated activity for the purposes of Section 240 (1), bringing his claim under the ambit of the statute. Moreover, plaintiff alleges that where, as here, safety devices were not provided that would have prevented a plaintiff's injuries, and where the record demonstrates that the failure to provide such safety devices was a proximate cause of the plaintiff's injuries, the "sole proximate cause" defense should be removed from consideration and summary judgment should be granted to the injured worker. In addition, plaintiff alleges that the fact that plaintiff was dismantling the sidewalk bridge/scaffold at the time of his accident does not bar his recovery pursuant to Section 240 (1), since plaintiff could only perform his work while standing on the platform. According to plaintiff, the evidence shows that the scaffold from which plaintiff fell was inadequate in and of itself to protect him against hazards encountered while dismantling that same scaffold.[FN9] Under the circumstances, plaintiff alleges that he has demonstrated a prima facie entitlement to summary judgment against on the issue of liability pursuant to Labor Law § 240 (1).

BQE's Opposition to Plaintiff's Motion/BQE's Cross Motion Regarding Labor Law § 240 (1)

In opposition to plaintiff's motion and in support of that branch of its cross motion for summary judgment which seeks dismissal of plaintiff's Section 240 (1) claim, BQE alleges that plaintiff is not entitled to summary judgment since he fails to offer credible evidence that his accident actually occurred. Further, even assuming that plaintiff's accident did happen as he describes, BQE contends that there are issues of fact as to whether plaintiff's actions were the sole proximate cause of his injuries.

BQE first cites plaintiff's testimony, that his accident occurred after he had removed nails from the planks securing the sidewalk bridge, in support of its argument that plaintiff caused his own accident. BQE further alleges that plaintiff returned to work approximately an hour after his accident, and that he never reported the accident and continued coming to work until December 4, 2005,when he sought medical treatment for his injuries. BQE argues that there are clear issues as to plaintiff's credibility that preclude the granting of summary judgment, especially since his accident was not confirmed by any witnesses or corroborated by any of the employees allegedly [*10]working with him at the time of the occurrence.

In addition, BQE avers that it is entitled to summary judgment on plaintiff's Labor Law § 240 (1) cause of action since there is no evidence that the subject scaffold was defective or that it malfunctioned in any way,[FN10] and because plaintiff's action in removing the nails which were securing the wooden floor was the sole proximate cause of his injuries. BQE also claims that it is undisputed that the scaffold involved in plaintiff's accident was owned by Scaffolding One and that Scaffolding One retained an engineering firm to inspect the scaffolding and sidewalk sheds that it erected and maintained, making Scaffolding One responsible for any alleged dangerous condition.

Moreover, BQE notes that plaintiff did not fall from a height due to the absence or inadequacy of a safety device, but, rather, because he stepped on a plank after removing the nails that held the flooring together. Consequently, BQE contends that plaintiffs Section 240 (1) cause of action against it must be dismissed, on the grounds that plaintiff's own actions were the sole proximate cause of his accident.

The State Defendants and Don Todd's Opposition to Plaintiff's Motion/

Cross Motion Regarding Labor Law § 240 (1)

The state defendants and Don Todd also cross-move for summary judgment dismissing plaintiff's Section 240 (1) cause of action on the grounds that they are not liable for plaintiff's injuries since there is no statutory violation, and because plaintiff's actions were the sole proximate cause of his accident and injuries.

The City and Hospital Defendants' Opposition to Plaintiff's Motion/

Cross Motion Regarding Labor Law § 240 (1)

Additionally, the City and hospital defendants adopt, in essence, the same arguments set forth by defendants above regarding the dismissal of plaintiff's Section 240 (1) cause of action. According to the City and hospital defendants, if their motion for summary judgment as to plaintiff's Section 240 (1) claim is denied, then plaintiff's motion for partial summary judgment must also be denied, since a question of fact exists as to whether plaintiff was the sole proximate cause of his accident.

Scaffolding One's Opposition to Plaintiff's Motion/

Support of Defendants' Cross Motions Regarding Labor Law § 240 (1)

Third-party defendant Scaffolding One adopts, in essence, the same arguments offered by BQE in opposition to plaintiff's motion for partial summary judgment on his Labor Law § 240 (1) cause of action. In addition, Scaffolding One further adopts those arguments set forth by defendants in support of their respective cross motions to dismiss plaintiff's Section 240 (1) claims asserted against them.

Plaintiff's Opposition to the Instant Cross Motions/

Further Support of Motion Regarding Labor Law § 240 (1) [*11]

In opposition to defendants' arguments that plaintiff was the sole proximate cause of his accident, and in further support of his motion, plaintiff notes that he expressly testified that he removed the nails "one plank at a time," and that he then lifted and passed that single plank from which he had removed the nails down, while standing on the adjacent planks. Plaintiff submits an affidavit in opposition to defendants' cross motions wherein he alleges, among other things, that he was standing on the adjacent 8th and 9th planks from which the nails had not yet been removed, holding the seventh plank (from which he had just removed the nails), when the 8th and 9th planks he was standing upon gave way. Plaintiff also states, in the aforementioned affidavit, that:

"the nails in the planks that gave way were not the proper size and length, and/or were not driven full length into these planks. Were a sufficient number of the double headed or screw-type nails normally used in the construction of scaffolds properly driven into these planks, the planks could not have given way under only my weight. Thus the failure of the deck scaffold to support my weight, caused by the failure of the person or persons who had constructed the scaffold to properly use a sufficient number of nails of the proper size and length, were a proximate cause of my fall."

Furthermore, plaintiff notes that he had never worked on the subject scaffold prior to the date of his accident, that he was not involved in erecting it, and that he did not know who was responsible for putting it up. Since plaintiff had "nothing whatsoever to do with [the scaffold's] improper construction," he avers that he cannot be found to be the sole proximate cause of his accident.

In addition, plaintiff alleges that, according to controlling precedent, "upon the submission of an affidavit or other evidence indicating that a safety device such as a scaffold was defective, or violated provisions of the Industrial Code, or that certain safety devices were not provided that would have prevented his injuries, . . . the failure to provide said safety devices was a proximate cause of the plaintiff's injuries sufficient to remove the sole proximate cause' defense." According to plaintiff, defendants also fail to raise a triable issue of fact as to whether he was the sole proximate cause of his injury under the holding in Blake.

Moreover, plaintiff avers that the only proper conclusion that can be reached on the evidence presented is that the scaffold from which decedent fell was inadequate in and of itself to protect plaintiff against hazards encountered while dismantling that same scaffold, and that defendants failed to provide him with additional safety devices in order to satisfy the duties imposed by Labor Law § 240 (1). According to plaintiff, had any safety devices been provided to him, he would not have fallen, thus establishing the lack of safety devices as the proximate cause of his accident.

Regarding defendants' arguments that plaintiff is not entitled to summary judgment because he failed to proffer the affidavit of witness co-worker Jean Cantu, or make a contemporaneous accident report, plaintiff avers that these arguments are legally insufficient to prevent the grant of summary judgment. In this regard, plaintiff alleges that his accident was witnessed by his supervisor, Jean Cantu, as well as his co-workers Everett, Knuckles, and Paltiel Cantu. According to plaintiff, as these men were all employees of third-party defendant Scaffolding One and, therefore, were witnesses under the control of Scaffolding One, their [*12]testimony could have been obtained to controvert plaintiff's account of the accident. Plaintiff also argues that the mere fact that an accident may be unwitnessed does not preclude summary judgment. Moreover, plaintiff contends that the mere fact that he was dismantling the sidewalk bridge at the time of his accident in no way bars his recovery pursuant to Labor Law §§ 240 (1).

BQE's Reply to Plaintiff's Opposition Regarding Labor Law § 240 (1)

In reply, BQE alleges that plaintiff's Labor Law § 240 (1) claim must be dismissed and that his affidavit offered in opposition should be ignored, since plaintiff offers feigned issues of fact and mere assertions, rather than relying on facts in evidence. Specifically, BQE avers that while plaintiff's testimony is clear that he caused his own accident by removing the nails from the boards on which he was standing, his opposition and related affidavit suggest that he now appears to blame the accident on the insufficiency of the nails and the strength of the boards. BQE reiterates its reliance on Blake to the effect that the evidence establishes as a matter of law that the alleged accident occurred as a result of the manner and method in which plaintiff was performing his work, rather than as a result of any demonstrated defect in the subject sidewalk shed. According to BQE, plaintiff's testimony makes clear that he had removed the nails that supported the planks on which he was standing, which rendered the flooring unstable. Additionally, BQE asserts that the court should not consider plaintiff's affidavit submitted in opposition since it contradicts his prior sworn testimony.

Even assuming that plaintiff had not removed the nails from the planks on which he stood, prior to stepping on them, BQE alleges that plaintiff's contentions are nonetheless insufficient as they rely on mere speculation that the planks were incapable of bearing his weight. In this regard, BQE notes that, although plaintiff claims that the boards collapsed underneath him, he admitted that the boards did not break or crack, and he also specifically testified that there was no support from the bottom, so that when he stepped on the plank, the back came up and the bottom went down. BQE argues that plaintiff's affidavit contradicts his above testimony, in that he now claims that he was standing on the 8th and 9th planks which had not had any nails removed, when these planks gave way as he was handing the 7th plank to his co-worker. BQE asserts that plaintiff now inappropriately argues, for the first time, that the nails in the 8th and 9th planks were not the right size nor fully driven into the planks, which caused the sidewalk shed to collapse under him.

The State Defendants and Don Todd's Reply to Plaintiff's Opposition Regarding Section 240 (1)

In reply, the state defendants and Don Todd also submit that plaintiff's actions were the sole proximate cause of his accident. In particular, these defendants argue that, according to plaintiff's own testimony, his accident occurred as he was lifting up one of the planks he had just loosened, when he stepped onto an unsecured plank which tipped up from the back and caused plaintiff to fall to the ground below. Similar to BQE's assertions above, the state defendants and Don Todd also argue that plaintiff's affidavit should be disregarded as self-serving and irrelevant.

Scaffolding One's Reply to Plaintiff's Opposition Regarding Labor Law § 240 (1)Scaffolding One also offers an affirmation in reply to plaintiff's opposition and in support of the instant cross motions, wherein it argues that, "[i]n an attempt to justify the plaintiff's [*13]position that he was not the sole proximate cause of his accident, plaintiff and his counsel judiciously selected only small portions of the beginning of his deposition testimony rather than accurately reflecting the very specific portions of the latter stages of his deposition testimony which clearly and unequivocally establish that he was the sole proximate cause of his accident."

Discussion - Labor Law § 240 (1)

Summary Judgment Standard

It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to summary judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish material issues of fact which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Resolution of the Instant Motion and Cross Motions Regarding Labor Law § 240 (1)

As articulated above, plaintiff moves for summary judgment on the issue of liability pursuant to Labor Law § 240 (1). Plaintiff contends that: defendants are the owners, contractors and "agents" of the owners for the purposes of the section 240 (1) claim; that he was injured when the sidewalk bridge underneath him collapsed; that he was not provided with any safety devices to prevent his fall; and that such failure was a proximate cause of his injuries. Defendants also cross-move for summary judgment seeking dismissal of plaintiff's Labor Law § 240 (1) cause of action. These movants argue that they cannot be held liable under the statute because, among other things, plaintiff's accident was caused by his own actions, rather than by a lack of adequate safety devices.

Known as the "scaffold law," Labor Law § 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."

Labor Law § 240 (1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] [italics omitted]). Thus, in order to find liability under Section 240 (1), the risks to the plaintiff cannot be ordinary construction hazards, but rather must be due to "the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). In order to accomplish this goal, the statute places the responsibility for safety practices and devices on owners and general contractors and their agents who "are best situated to bear that responsibility" (Ross, 81 NY2d at 500; see also Blake v Neighborhood Hous. Servs. of New York City, Inc., 1 NY3d 280 [2003]; Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520 [1985]). Moreover, "the duty imposed by Labor Law § 240 (1) is nondelegable and . . . an owner or contractor who breaches that duty may be [*14]held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross, 81 NY2d at 500; see also Haimes v New York Tel. Co., 46 NY2d 132, 136-137 [1978]), and the statute is to be construed as liberally as possible in order to accomplish its protective goals (see Blake, 1 NY3d at 284-285; Martinez v City of New York, 93 NY2d 322, 326 [1999]). Thus, Labor Law § 240 (1) is implicated in elevation-related accidents, specifically "situations in which a worker is exposed to the risk of falling from an elevated worksite or being hit by an object falling" (see Thompson v Ludovico, 246 AD2d 642, 643 [1998], citing Rocovich v Consolidated Edison Co., 167 AD2d 524 [1990], affd 78 NY2d 509 [1991]; see also Ross, 81 NY2d at 501).

Additionally, comparative negligence is not a defense against a Labor Law § 240 (1) claim (see Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]; Smith v Yonkers Contracting Co., Inc., 238 AD2d 501 [1997]). However, to prevail on a claim under Labor Law § 240 (1), a plaintiff must establish an elevation related-injury and that a violation of the statute was a proximate cause of his or her injuries (see Sprague v Peckham Materials Corp., 240 AD2d 392, 393 [1997]; see also Rocovich, 78 NY2d at 514; Bland, 66 NY2d at 460; Bahrman v Holtsville Fire Dist., 270 AD2d 438 [2000]; Skalko v Marshall's, Inc., 229 AD2d 569 [1996). Proximate cause is established where a "defendant's act or failure to act as the statute requires" was a substantial cause of the events which produced the plaintiff's injuries (Gordon v Eastern Railway Supply, Inc., 82 NY2d 555, 561-562 [1993]; Rodriguez v Forest City Jay Street Associates, 234 AD2d 68, 69 [1996]; Ekere v Airmont Industrial Park, 249 AD2d 104, 105 [1998]). Although any purported contributory or comparative negligence of the plaintiff is not a defense in an action brought under the statute (see Zimmer, 65 NY2d at 521), a Labor Law § 240 (1) cause of action will not stand where the plaintiff's own conduct was the sole proximate cause of his or her injuries (see Tweedy v Roman Catholic Church of Our Lady of Victory, 232 AD2d 630 [1996]; see also Blake, 1 NY3d at 289). Additionally, it is well-settled that a plaintiff cannot prevail on a motion for summary judgment on the issue of liability under Labor Law § 240 (1) if there is any view of the evidence which would permit a finding that the defendant's violation of that section might not have been a proximate cause of the plaintiff's accident (see Zimmer, 65 NY2d at 524).

Furthermore, the sole proximate cause defense generally applies where a plaintiff misused a safety device, removed a safety device, failed to use an available safety device that would have prevented the accident, or knowingly chose to use an inadequate device despite the availability of an adequate device (see e.g. Robinson v East Med. Ctr., LP, 6 NY3d 550, 555 [2006] [plaintiff's choice to use inadequate ladder, despite proper ladders readily available at site, was sole proximate cause of accident]; Blake, 1 NY3d at 291 [plaintiff's misuse of ladder was sole proximate cause of accident]; Letterese v State of New York, 33 AD3d 593, 593-594 [2006] [plaintiff's decision to use inadequate ladder despite availability of adequate ladders on site was sole proximate cause of accident]; Negron v City of New York, 22 AD3d 546, 547 [2005] [plaintiff's failure to have himself re-tied off was sole proximate cause of accident]; Plass v Solotoff, 5 AD3d 365, 367 [2004] [plaintiff's unilateral determination to use only one plank instead of the three available was sole proximate cause of accident], lv denied 2 NY3d 705 [2004]).

1. Elevation Related Risk

Initially, it is clear that plaintiff's fall involved an elevation-related risk warranting the [*15]protections of the statute (see Gordon, 82 NY2d at 560-562). To that effect, plaintiff was undisputedly engaged in work that exposed him to the elevation-related risk of falling from the surface of the sidewalk bridge to the ground eight feet below.

2. Owners, Contractors and Agents

Plaintiff next argues that all of the defendants are responsible parties under section 240 (1) and, thus, that they are strictly liable under the statute. It is well settled that Labor Law § 240 (1) imposes liability upon commercial property owners regardless of whether the owner contracted for the work or benefitted from it (see Gordon v Eastern Ry. Supply, Inc., 82 NY2d 555, 560 [1993]). The City and Dormitory Authority, as the admitted owners of the subject commercial building, are absolutely liable under the statute.

Labor Law § 240 (1) also applies to general contractors, based upon their overall responsibility for the construction, demolition or repair. Pursuant to the general contractor agreement, BQE was expressly designated as the general contractor for the Woodhull project, a fact which BQE admits in response to plaintiff's motion. Therefore, BQE also falls within the scope of Labor Law § 240 (1) liability.

Moreover, where it is undisputed that a party is neither the owner or the general contractor under Labor Law § 240 (1), liability will attach against it under this statute "only if it is evinced that it was a statutory agent' of the owner or general contractor" (D'Amico v New York Racing Assoc., 203 AD2d 509, 511 [1994], citing Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]). An agent's liability depends upon the extent and level of its involvement in the construction, demolition, or repair. Such involvement must consist of the authority to direct, supervise and control the work being performed by a plaintiff (see Russin, 54 NY2d 311at 318). "The key criterion in ascertaining Labor Law § 240 (1) liability is not whether the party charged with the violation actually exercised control over the work, but rather whether he or she has the right to do so" (Corona v Metropolitan 298-308 Assocs., Inc., 281 AD2d 447, 448 [2001][internal quotation marks and citation omitted]).

Here, a review of the record reveals that construction manager Don Todd did not have the responsibility to coordinate with subcontractors, nor the authority to supervise plaintiff's work. In this regard, Clark specifically testified that Don Todd did not coordinate the work of Scaffolding One, nor did it inspect or maintain the subject scaffolding. Plaintiff fails to controvert the foregoing testimony in his examination before trial, nor do the depositions proffered on behalf of the other defendants contradict Clark's claims. Accordingly, the court finds that Don Todd was not an "agent" of the owner or the general contractor within the meaning of Labor Law § 240 (1) and, thus, that it was not responsible for the alleged defective condition of the subject sidewalk shed. Consequently, that branch of plaintiff's motion which seeks summary judgment on its Labor Law § 240 (1) claim as against Don Todd is denied, and that branch of the state defendants and Don Todd's cross motion seeking to dismiss plaintiff's Labor Law § 240 (1) claim as against Don Todd, on the ground that it was not an "agent" within the meaning of the Labor Law, is granted.

However, as to the remaining state defendants (FDC and FIC), the record is unclear with respect to the involvement, if any, of these entities with Dormitory Authority and the Woodhull project. Although the state defendants deny that FDC and FIC are "owners" under the statute, no further information is given to refute plaintiff's claim that these entities are, indeed, owners of the [*16]subject premises. The state defendants failed to submit an affidavit or any testimony from an individual with personal knowledge of the corporate identity and ownership status of these entities. Since issues of fact remain, those branches of the state defendants' cross motion which seek to dismiss plaintiff's Labor Law § 240 (1) claim insofar as asserted against FDC and FIC are denied.

Similarly, the record contains conflicting evidence regarding the ownership status of the remaining hospital defendants in relation to the subject premises. On the record before the court, it remains unclear whether HHC, Greenpoint or Woodhull were an "owners" or "agents" under the statute. Anderson, who testified on behalf of the HHC defendants, stated that he was unaware if HHC owned the subject premises. Further, HHC admitted to operating the subject premises and to hiring Dormitory Authority to execute the Woodhull project. Dormitory Authority, in turn, identified itself as the owner and lessor of the subject premises. Plaintiff alleges that HHC was the "commercial tenant," or "lessee in possession," of the subject premises. As there are outstanding issues of fact related to the status of the hospital defendants, the court is unable to make a determination as to their respective liability. Accordingly, that branch of plaintiff's motion which seeks summary judgment on the issue of Labor Law § 240 (1) liability as against HHC, Greenpoint and Woodhull is denied, and the City and hospital defendant's cross motion for summary judgment which seeks dismissal of plaintiff's Labor Law § 240 (1) claim asserted against HHC, Greenpoint and Woodhull is also denied.

3. Proximate Cause

In attempting to demonstrate his prima facie entitlement to summary judgment, plaintiff also alleges that his injuries were proximately caused by defendants' statutory violation. Plaintiff correctly states that he can establish entitlement to partial summary judgment by presenting evidence that no safety devices were provided (see e.g. Wallace v Stonehenge Group, Ltd., 1 AD3d 589, 590 [2003]; Bland v Manocherian, 66 NY2d 452, 459 [1985]; Zimmer, 65 NY2d at 524). In support of his motion for partial summary judgment, plaintiff has submitted, among other things, his deposition testimony, wherein he asserted that no safety devices (i.e, safety netting, safety lines) had been placed around the elevated work area to prevent him from falling. Such testimony satisfies plaintiff's burden of establishing, prima facie, that the absence of a safety device was the proximate cause of his claimed injuries (see e.g. Kaminski v Carlyle One, 51 AD3d 473 [2008] [plaintiff was injured when he attempted to realign a side panel of the sidewalk bridge he and his coworkers were constructing and the panel gave way and fell to the ground, taking him with it; defendant's failure to provide plaintiff with any safety device to protect him against the risk of a fall created by his need to lean over the side of the bridge to nail in the side panels leads to liability under Section 240 (1)]; see also Felker v Corning Inc., 90 NY2d 219, 224 [1997]).

Moreover, plaintiff has presented admissible evidence demonstrating that his injuries were caused when the allegedly unsecured planking upon which he was standing collapsed (see Cangialosi v Gotham Construction Co., LLC, 22 Misc 3d 189 [2008] [where a stringer that was part of the floor construction shifted, the rule that a collapse of a work site is prima facie violation of a Labor Law § 240 (1) violation applied to the stringer assembly involved in the accident]; see also Becerra v City of New York, 261 AD2d 188 [1999] [where unsecured plywood boards supporting plaintiff four stories above ground level served, conceptually and [*17]functionally, as an elevated work platform or scaffold, the collapse of the boards constituted a prima facie violation of Labor Law § 240 (1)]). In Cangialosi, where the plaintiff testified that he was required to work on stringers to create the floor, the Supreme Court, Kings County, explained that "the stringer assembly was part of the place to work'" in that it was necessary, or at least contemplated, that plaintiffs . . . would stand or walk on the stringers to do their jobs" (22 Misc 3d at 196, citing Kennedy v McKay, 86 AD2d 597, 598 [1982]). As applicable here, "where the uncontroverted evidence establishes that the safety device collapsed, slipped, or otherwise failed to support him or her, the plaintiff demonstrates a prima facie entitlement to partial summary judgment under Labor Law § 240(1)" (Ball v Cascade Tissue Group-New York, Inc., 36 AD3d 1187 [2007]).

Here, plaintiff stood upon the allegedly unsecured wooden planks of the sidewalk bridge after removing nails from a toe board, while in the process of dismantling the subject scaffolding. Even though defendants claim that plaintiff's removal of the nails caused the planks to become unstable and eventually collapse, there is uncontroverted evidence that plaintiff's actions were necessary and foreseeable under the circumstances. The record demonstrates that plaintiff was instructed to dismantle the scaffolding, that the accepted procedure was to remove all of the guards and toe boards prior to removing the planks upon which plaintiff was standing, and that the subject sidewalk bridge was partially dismantled at the time of plaintiff's accident. In this regard, plaintiff testified that he both kneeled and then stood upon the wooden planks in order to remove the nails from the adjacent toe board which supported the planks, prior to handing down the toe board to a worker below. Under the circumstances, and considering plaintiff's testimony as to how the sidewalk bridge was constructed,[FN11] it was foreseeable that plaintiff would step on unsecured planks in the process of his dismantling work. Here, the planks served as an elevated work platform that required additional safety devices to protect plaintiff who was working and walking upon said planks during the dismantling of the scaffolding floor. Therefore, the alleged collapse of the sidewalk bridge serves to further support plaintiff's entitlement to summary judgment on his section 240 (1) cause of action.

As noted above, plaintiff has established his prima facie entitlement to summary judgment on the issue of liability concerning his Labor Law § 240(1) cause of action by demonstrating both the absence of any safety devices to protect him from the hazards flowing from an elevated work site (see e.g. Goldbach v Erie County Induc. Dev. Agency, 142 AD2d 948 [1988][where a worker fell from a scaffold, no safety devices were provided and the mere presence of scaffolding was insufficient to satisfy Section 240 (1)]), and the collapse of the elevated work site itself. Accordingly, the burden shifts to defendants to present admissible evidence raising a triable issue of fact regarding their liability under Labor Law § 240 (1) (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In response to plaintiff's prima facie showing, defendants fail to raise an issue of fact to defeat plaintiff's motion. Moreover, the court finds that defendants' argument that plaintiff was the sole proximate cause of the accident is unavailing. Generally speaking, issues of fact as to [*18]whether a plaintiff was the sole proximate cause of an accident arise when there is evidence that the plaintiff deliberately misused a safety device (see Weininger v Hagedorn & Co., 91 NY2d 958 [1998] [plaintiff stepped on the cross-bar of an A-frame ladder]; see also Guite v Cooke Bros. of Brockport, Inc., 178 Misc 2d 948 [1998][while standing on top rung of ladder, plaintiff "jumped" ladder along side of house in order to reposition himself]), or when the plaintiff otherwise engaged in "gratuitous and unnecessary" or "extraordinary" conduct (see Beharry v Public Stor., Inc., 36 AD3d 574 [2007] [where plaintiff stepped on metal decking serving as an intermediate platform between two floors, plaintiff's conduct was not the sole cause of his injuries because he was neither engaged in unforeseeable reckless activities nor did he misuse a safety device which was provided to him]; see also Dasilva v A.J. Contr. Co., 262 AD2d 214 [1999]; see also George v State of New York, 251 AD2d 541, 542 [1998]).

As explained by the Court of Appeals in Blake, the fact that contributory negligence is not a Labor Law § 240 (1) defense does not warrant the imposition of an insurer's form of liability and, even when a worker is not "recalcitrant," without a violation of the section, there can be no liability (1 NY3d 280 at 291, 292). The Court of Appeals further noted that "it is conceptually impossible for a statutory violation (which serves as a proximate cause of a plaintiff's injury), to occupy the same ground as a plaintiff's sole proximate cause of the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation" (Blake at 292-293). Moreover, "regardless of the precise manner in which the accident occurred, a defendant is not absolved from liability where . . . a plaintiff's injuries are at least partially attributable to the defendant's failure to provide proper protection as mandated by the statute" (Cammon v City of New York, 21 AD3d 196, 201 [2005]).

In the instant case, defendants' evidence is insufficient to demonstrate that plaintiff misused a safety device or otherwise engaged in gratuitous and unnecessary conduct (see Beharry v Public Stor., Inc., 36 AD3d at 574). Defendants' claim that plaintiff knowingly stepped on a piece of planking that was unsecured is insufficient to establish that plaintiff's actions were the sole proximate cause of the accident (compare Robinson v East. Med. Ctr. LP, 6 NY3d 550 [2006][plaintiff's own negligent actions in choosing a ladder he knew was too short for the work to be accomplished, and then standing on the ladder's top cap in order to reach the work, were, as a matter of law, the sole proximate cause of his injuries]; compare also Blake, 1 NY3d at 280[where plaintiff's accident happened not because the ladder malfunctioned or was defective or improperly placed, but solely because of plaintiff's own negligence in the way he used it (he failed to lock the extension clips)]; see also Gittleson v Cool Wind Ventilation Corp., 46 AD3d 855 [2007]; compare also Montgomery v Federal Express Corp., 4 NY3d 805 [2005][rather than get an available ladder, plaintiff chose to use a bucket to get up, and then to jump down from his work area; plaintiff's actions were the sole proximate cause of his injury]).

It is also clear that plaintiff's act in stepping on an unsecured piece of planking was not so "extraordinary" or "gratuitous" that it should absolve defendants from liability (compare George, 251 AD2d at 542 [where plaintiff could not recover under Labor Law § 240 (1) since his "gratuitous and unnecessary second jump [from a beam to aid a co-worker] was the sole and superceding proximate cause of his injuries,"]). While plaintiff may have acted negligently in stepping on the unsecured planking, his actions under the circumstances were not wholly [*19]irrational given his testimony that he was performing his dismantling work according to proper procedure and that he necessarily had to work upon the planking in order to perform his work. In any event, any alleged contributory negligence attributable to plaintiff in stepping on the unsecured planking in order to perform the dismantling of the sidewalk bridge is immaterial, because the statutory violation is established as a proximate cause of his injury. Given the nature of plaintiff's dismantling work and the condition of the work site on the day of the accident, his act of stepping on the unsecured planking was foreseeable and was not of such extraordinary nature so as to constitute an intervening act (see Kyle v City of New York, 268 AD2d 192, 196 [2000], lv denied 97 NY2d 608 [2002]).

Velasco v Green-wood Cemetery (8 AD3d 88 [2004]), although factually distinguishable, is applicable here. In Velasco, the plaintiff sustained injuries after falling from a ladder; the defendants argued that the ladder was not defective, and also that the only cause of the accident was the plaintiff's own negligence in helping to set up the ladder in soil and then using it even though he knew that his co-worker was not holding it. The court held that the defendants' argument "overlooked plaintiff's evidence that no safety devices were provided to protect him in the event the ladder slipped" (Velasco, 8 AD3d at 89). Given an unsecured ladder and no other safety devices, the court held that the plaintiff was not solely to blame for his injuries. The court further noted that "[p]laintiff's use of the ladder without his co-worker present [to secure it] amounted, at most, to comparative negligence, which is not a defense to a section 240(1) claim" (Velasco, at 89). Such reasoning is applicable to the facts of the instant case in that plaintiff's actions, even if negligent, were not the sole proximate cause of his accident.

Additionally, the fact that plaintiff was dismantling the subject scaffold at the time of the accident does not relieve defendants of the obligation to provide proper safety devices to protect him from working at an elevated height. In a similar case, involving a plaintiff who fell 30 feet to the ground through the floor of a scaffold he was dismantling (after removing a section of the plywood scaffold flooring), the court held that "[t]he only proper conclusion that can be reached on the evidence presented is that the scaffold from which decedent fell was inadequate in and of itself to protect decedent against hazards encountered while dismantling that same scaffold [citation omitted]. Defendant had to provide decedent with additional safety devices in order to satisfy its duty within the meaning of Labor Law § 240 (1)" (Pritchard v Murray Walter, Inc., 157 AD2d 1012, 1013 [1990]; see also Conway v New York State Teachers' Retirement Sys., 141 AD2d 957, 958-959; see also Lightfoot v State, 245 AD2d 488, 489 [1997][finding that Labor Law § 240 (1) was violated when a plaintiff was injured while adjusting a scaffold because the "scaffold was inadequate in and of itself to protect [him] against hazards encountered while [adjusting] that same scaffold," and additional safety devices were necessary to satisfy Labor Law § 240 (1)]. Here, plaintiff was subject to the particular elevation-related construction risk that section 240 (1) was designed to cover, and accordingly, he was entitled to its protections even when dismantling the subject scaffolding where he was required to work.

Finally, the court finds further grounds for the granting of plaintiff's motion in that defendants "merely criticize plaintiff's account as unwitnessed and unsubstantiated by independent sources" (Evans v Syracuse Model Neighborhood Corp., 53 AD3d 1135, 1137 [2008], quoting Niles v Shue Roofing Co., 219 AD2d 785, 785 [1995]), rather than submit admissible evidence to defeat plaintiff's motion. Although defendants challenge plaintiff's [*20]version of the accident, they fail to submit any evidence which specifically contradicts the facts as alleged by plaintiff. Defendants have offered only speculation as to whether plaintiff's accident actually occurred, by pointing to the fact that plaintiff did not immediately seek medical attention or report the accident, and also that plaintiff did not submit an affidavit from a corroborating witness. Such speculation is insufficient to raise a triable issue of fact under the circumstances (see generally Morgan v New York Telephone, 220 AD2d 728 [1995]). In this regard, it is also well settled that a moving defendant may not meet this burden "merely by pointing out gaps in the plaintiffs's case" (Totten v Cumberland Farms, Inc., 57 AD3d 653, 654 [2008]). Thus, with respect to the issue of defendants' liability under Labor Law § 240 (1), a successful moving defendant must do more than point to a lack of evidence regarding the circumstances surrounding the accident.

In sum, the record conclusively establishes a Labor Law § 240(1) violation on the part of certain defendants, that the absence of a safety device was a proximate cause of the accident, and that plaintiff's actions were not the sole proximate cause of the accident. It is undisputed that the City, Dormitory Authority and BQE were the owners and general contractor of the subject premises and, therefore, plaintiff has established that they are each liable under section 240 (1); accordingly, the court grants plaintiff's motion for summary judgment regarding section 240 (1) insofar as asserted against these defendants, and denies it as to the remaining defendants. Additionally, that branch of the state defendants and Don Todd's cross motion which seeks summary judgment dismissing plaintiff's Labor Law § 240 (1) claim is granted insofar as it is asserted against Don Todd, and is denied as to the remaining state defendants. Moreover, that branch of the City and hospital defendants' cross motion which seeks dismissal of plaintiff's Labor Law § 240 (1) claim is denied. Finally, that branch of BQE's cross motion which seeks to dismiss plaintiff's section 240 (1) claim is denied.

The Parties' Contentions - Plaintiff'sLabor Law § 241 (6) Claim

As a threshold matter, the court notes that while plaintiff stated various Industrial Code violations as predicates for his Labor Law § 241 (6) claim in his bill of particulars, he abandons all but 12 NYCRR §§ 23-1.11 (c), 1.18 (b)(1) and 5.1 (c)(1) in his subsequent opposition papers. As a result, the court will treat the remaining sections as withdrawn by plaintiff and will not consider them herein.

BQE's Cross Motion Regarding Labor Law § 241 (6)

BQE cross-moves for summary judgment seeking dismissal of plaintiff's Labor Law § 241 (6) claim on the grounds that the deposition testimony submitted does not give rise to an Industrial Code section that has been held to be concrete or specific in nature and/or because the Industrial Code sections alleged by plaintiff in his bill of particulars are inapplicable to the instant facts. Specifically, BQE alleges that 12 NYCRR § 23-5.1 (c)(1),[FN12] is a general provision and, thus, that it is an insufficient predicate for plaintiff's Labor Law § 241 (6) claim. Moreover, [*21]BQE argues that 12 NYCRR § 23-1.11(c)[FN13] is inapplicable to the instant facts and, thus, insufficient to support plaintiff's Labor Law § 241 (6) claim, since there is no evidence that any of the nails in the scaffolding were deficient or improperly used. Rather, BQE alleges that plaintiff himself removed the nails, causing the planks to become unstable.

The State Defendants and Don Todd's Cross Motion Regarding Labor Law § 241 (6)

The state defendants and Don Todd also cross-move for summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action, on the grounds that the sections alleged by plaintiff are either too general to support a Labor Law § 241 (6) claim, or are inapplicable to the facts. In this regard, these defendants claim that 12 NYCRR § 23-5.1 is not specific, since it pertains to the general responsibility of an employer to provide a safe workplace. Additionally, they argues that section 23-1.11 (c) is inapplicable because there is no claim that the nails or lumber failed, and also that section 23-1.18 (b)(1)[FN14] is inapplicable since plaintiff was not injured while under the shed from an object falling from above the shed.

The City and Hospital Defendants' Cross Motion Regarding Labor Law § 241 (6)

Furthermore, the City and hospital defendants argue that, absent proof that the Industrial Code was violated, no cause of action lies under the provisions of Labor Law § 241 (6). In this regard, these defendants contend that 12 NYCRR §§ 1.11; 1.18; and 5.1, which plaintiff proffers as statutory predicates for his Section 241 (6) cause of action, are not supported by the evidence.

Specifically, the City and hospital defendants argue that 12 NYCRR § 23-1.11 (c) is inapplicable, since there is no evidence that the nails or lumber which were part of the construction of the sidewalk bridge were in a defective condition or improperly installed at the time of plaintiff's accident. According to the aforementioned defendants, plaintiff fails to allege any facts that would support a violation of this section. Rather, they aver that plaintiff testified that he was in the process of pulling out the nails and disassembling the wooden planks at the time of his accident.

Additionally, the City and hospital defendants contend that section 23-1.18 (b)(1) is inapplicable on the grounds that there is no allegation that any of the planks upon which plaintiff was standing actually "broke." They also note that plaintiff testified that the back side of the plank lifted and the front side went down, which allegedly propelled plaintiff over the edge of the sidewalk shed.

Furthermore, the City and hospital defendants allege that plaintiff's claim predicated upon the violation of section 23-5.1 (c)(1) must also be dismissed for reasons already articulated defendants above.

[*22]Plaintiff's Opposition to the Instant Cross Motions Regarding Labor Law § 241 (6)

In opposition, plaintiff alleges that the condition of the scaffold was, indeed, defective, in that it violated Industrial Code sections 23-1.18 (b)(1), 23-1.11 (c), and 23-5.1 (c)(1). As such, plaintiff contends that he cannot be the sole proximate cause of his injuries. With respect to the aforementioned Industrial Code violations, plaintiff alleges that the planks on the deck of the scaffold from which the nails had not yet been removed gave way, causing him to fall. According to plaintiff, the Industrial Code was violated in that the deck of the scaffold clearly did not hold his weight. In this regard, plaintiff notes that his weight was far less than either the required 300 pounds (section 23-1.18[b][1]), or four times his own weight (section 23-5.1 [c][1]). Plaintiff also alleges, as set forth in his affidavit submitted in opposition, that the nails in the planks that gave way were not the proper size and length and/or were not driven fully into the planks.

In addition, contrary to defendants' arguments, plaintiff avers that binding precedent has established that section 23-1.18 (b)(1) is sufficient to support a Labor Law § 241 (6) claim, where, as here, a worker fell from a sidewalk bridge. According to plaintiff, this directly refutes the contention of defendants that the provision only applies to passersby. Further, plaintiff argues that the Appellate Division, Second Department, has also held that sections 23-1.11 (a) and 23-5.1 (b), (c)(1) and (c)(2) are sufficiently specific and applicable to the instant facts.

BQE's Reply to Plaintiff's Opposition Regarding Labor Law § 241 (6)

In reply, BQE alleges plaintiff's Section 241 (6) cause of action must be dismissed since he cannot identify the specific defect that allegedly caused his accident. BQE contends therefore, that the fact-finder would be forced to determine the proximate cause of his accident based on mere speculation. Moreover, BQE argues that 12 NYCRR § 23-1.11 (c) is inapplicable, since there is no evidence that the lumber on which plaintiff was standing was unsound, or that it contained any of the enumerated defects which could have impaired the strength of the lumber for the purpose for which it was to be used. In addition, BQE argues that there is no indication that the dimensions of the wood boards were anything but nominal in size or that plaintiff had any difficulty lifting and moving the wood planks. Furthermore, BQE insists that there is no evidence that the nails were in any way defective. In this regard, BQE argues that plaintiff's affidavit which addresses the insufficiency of the nails used, is contradictory to his prior testimony and is "simply a red herring."

In addition, regarding 12 NYCRR § 23-1.18, BQE argues that plaintiff again attempts to circumvent his deposition testimony, by offering speculative statements in his affidavit that the planks were incapable of bearing his load. In this regard, BQE alleges that, even assuming that the section is applicable, the fact that plaintiff fails to attest as to his weight in his affidavit means that there is no evidence as to whether his weight exceeded the bearing requirements.

Finally, BQE also contends that 12 NYCRR § 23-5.1 is too general to support a section 241 (6) claim and that it is otherwise inapplicable, since there is no evidence to indicate that the subject shed was not "constructed as to bear four times the maximum weight required to be dependent therefore or placed thereon when in use." Moreover, BQE avers that, since the shed was in the process of being dismantled, it was not "in use" at the time of the alleged accident.

The State Defendants and Don Todd's Reply to Plaintiff's Opposition Regarding Section 241 (6)[*23]

In reply, the state defendants and Don Todd adopt, in essence, the same arguments as BQE above. Specifically, they argue that section 1.11 is inapplicable as there is no claim that the nails or the lumber failed (other than in plaintiff's inadmissible affidavit); that section 1.18 is inapplicable since plaintiff was not injured while under the shed from an object falling from above the shed; and that section 5.1 is inapplicable since plaintiff was not injured while the shed was in use but rather while he was dismantling it, therefore rendering the weight support issue as moot.

Discussion - Labor Law § 241 (6)

The court finds that defendants are entitled to summary judgment granting those branches of their respective cross motions for summary judgment which seek dismissal of plaintiff's Labor Law § 241 (6) claim. In so holding, the court recognizes that Labor Law §241 (6) provides in pertinent part that:

"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 persons employed therein or lawfully frequenting such places."

Labor Law § 241 (6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a non-delegable duty upon owners, general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (see Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-502 [1993]). "To support a cause of action under Labor Law § 241 (6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident" (Rivera v Santos, 35 AD3d 700, 702 [2006], citing Ross, 81 NY2d at 502).[FN15]

1. Plaintiff's Affidavit Offered in Opposition

Preliminarily, the court notes that it will not consider plaintiff's affidavit submitted in opposition to defendants' cross motions. To the extent plaintiff now alleges that the nails in the subject scaffolding were defective and that the scaffolding was not properly constructed so as to support his weight, plaintiff's affidavit raises arguments that were not specifically alleged at his deposition, nor addressed in his motion for summary judgment or other prior pleadings (see generally Lupinsky v Windham Construction Corp., 298 AD2d 317 [2002]; Nieves v ISS Cleaning Services Group, Inc., 284 AD2d 441 [2001]; Wright v South Nassau Communities Hospital, 254 AD2d 277 [1998]). While plaintiff's affidavit is not flagrantly contradictory to his prior testimony, the court finds that the affidavit is nonetheless improper, as it introduces a new theory of liability for the first time in opposition to defendants' motion for summary judgment [*24](see Pinn v Baker's Variety, 32 AD3d 463 [2006]; see also Yaeger v UCC Constructors, Inc., 281 AD2d 990 [2001]). As previously articulated, plaintiff testified that the subject planking was not supported, as it should have been, by a metal "I-beam" underneath the toe board, and that, after the toe board was removed, the planking tipped up from behind him, causing him to fall. Plaintiff made no remarks as to the sufficiency of the nails in the toe boards, nor did he claim that the planking was overloaded or that it was strained under his weight. Therefore, the court will not consider plaintiff's affidavit submitted in opposition, as it improperly asserts a new theory of liability concerning the defective nature of the subject scaffolding.

2. Owners, Contractors and Agents

As will be discussed in further detail below, the court finds that defendants have demonstrated a prima facie entitlement to summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action on the grounds that the Industrial Code provisions cited by plaintiff are inapplicable to the instant facts. As such, the court need not reach the usual threshold determination of whether any of the defendants are subject to the provisions of Labor Law § 241 (6) as "owners," "general contractors" or "agents."

3. Industrial Code Provisions Cited by Plaintiff

Regarding the applicability of the Industrial Code provisions cited by plaintiff., 12 NYCRR § 23-1.11(c), which pertains to lumber and nail fastenings, is sufficiently specific to support a Labor Law § 241 (6) cause of action (see Skudlarek v Bethlehem Steel Corp., 251 AD2d 973 [1998]). However, inasmuch as plaintiff does not allege, other than in his affidavit offered in opposition, that the nails in the subject scaffolding were defective, this provision is inapplicable to the instant facts. As this court has already determined that plaintiff's affidavit will not be considered on the instant motion, plaintiff has not raised any triable issues of fact in response to defendants' prima facie showing that section 23-1.11(c) is inapplicable. As such, those branches of defendants' cross motions which seek dismissal of plaintiff's Labor Law § 241 (6) claim predicated on the alleged violation of 12 NYCRR § 23-1.11 (c) are granted.

Additionally, the court finds that, although section 23-1.18 (b)(1) is sufficiently specific to support a Labor Law § 241 (6) violation (see generally Debowski v City of New York, 3 Misc 3d 1109 (A) [2004]), it is nevertheless inapplicable to the facts of the instant case, since plaintiff does not allege that his accident was the result of the subject planking "breaking" under his weight. As previously stated, plaintiff alleges that the back of the plank upon which he was standing tipped up, causing him to fall forward from the sidewalk bridge to the ground below. As the above provision specifically refers to overloading which causes the scaffolding to "break," it is not applicable here. Accordingly, those branches of defendants' cross motions for summary judgment which seek dismissal of plaintiff's Labor Law § 241 (6) cause of action as predicated on the alleged violation of 12 NYCRR § 23-1.18 (b)(1) are granted.

Next, the court notes that section 23-5.1 (c)(1) is sufficiently specific to support a Labor Law § 241 (6) claim (see Tomyuk v Junefield Assn., 57 AD3d 518, 521 [2008]; see also O'Conner v Spencer (1997) Inv. Ltd. Partnership, 2 AD3d 513, 515 [2003]). However, as with the provisions stated above, defendants have nonetheless met their burden of showing that section 23-5.1 (c)(1) is inapplicable to the instant facts. As defendants correctly note, other than in his affidavit offered in opposition, plaintiff does not specifically allege that the sidewalk bridge was overloaded or that it was incapable of supporting his weight. In fact, plaintiff fails to [*25]offer any evidence as to the status of his weight at the time of the accident. Plaintiff's allegations are focused on the absence of metal "I-beams" below the toe boards, rather than on the scaffolding being overloaded. Accordingly, those branches of defendants' cross motions seeking dismissal of plaintiff's Labor Law § 241 (6) claim as predicated on the violation of section 5.1 (c)(1) are granted.

The Parties Contentions - Plaintiff's Labor Law § 200 and Common-Law Negligence Claims

BQE's Cross Motion Regarding Labor Law § 200 and Common-Law Negligence

In support of its cross motion , BQE argues that, at the time of plaintiff's accident, plaintiff was an employee of Scaffolding One, and also that he was solely under the direction and control of Scaffolding One. As such, BQE alleges that plaintiff's Labor Law § 200 and common-law negligence claims asserted against it must be dismissed since plaintiff cannot establish a legal duty flowing from BQE to plaintiff. In this regard, BQE notes that plaintiff admittedly received all of his daily work instructions at the subject site from his Scaffolding One supervisor Jaun Cantu. BQE avers that there is no evidence that it had any notice of any particular condition existing at the job site that was either unsafe or improper with respect to the subject sidewalk shed. BQE also cites Kumar's testimony to the effect that BQE was no longer on site when the subject sidewalk bridge was being dismantled, and that there was no discussion or direction as to procedure of dismantling the bridge from BQE. BQE insists that Scaffolding One employees were solely responsible for the sidewalk sheds at the subject premises.

Additionally, according to BQE, in order for plaintiff to establish proximate cause, he must first establish that a duty existed that was breached. Since BQE argues that plaintiff cannot establish that BQE owed him a duty to provide a safe workplace, it also argues that proximate cause cannot be established. Moreover, BQE avers that plaintiff's common-law negligence claim must be dismissed as a matter of law because BQE's alleged acts or omissions were not the proximate cause of plaintiff's accident. In this regard, BQE notes that there has been no showing that BQE or its employees were in any way involved in the activities plaintiff was performing at the time of his accident and, therefore, that plaintiff cannot establish that BQE's alleged negligence was a substantial cause of the event which produced his injury.

The State Defendants and Don Todd's Cross Motion Regarding Labor Law § 200

and Common-Law Negligence

Moreover, the state defendants and Don Todd contend that plaintiff's section 200 and common-law negligence causes of action must be dismissed since theydid not control plaintiff or his work, nor did they have notice of the condition that allegedly caused plaintiff's accident.

The City and Hospital Defendants' Cross Motion Regarding Labor Law § 200

and Common-Law Negligence

The City and hospital defendants also move for dismissal of plaintiff's Labor Law § 200 and common-law negligence claims, on the grounds that they did not control plaintiff or his work, nor did they have notice of the condition that allegedly caused plaintiff's accident. The City and hospital defendants cite the deposition testimony of Anderson, to the effect that HHC contracted with Dormitory Authority to undertake "full execution of the [Woodhull] project from planning and design through the procurement of the contract [with BQE], management of [*26]the contract, administration of the contract, and completion and handover of the contract."

The City and hospital defendants aver that, by plaintiff's own admission, he received no direction or control with regard to the disassembly of the sidewalk bridge from anyone except employees of Scaffolding One. Moreover, these defendants contend that, as per Anderson's testimony, at no time during the assembly or disassembly of the sidewalk bridge did Anderson or any other employee of HHC perform any inspections of said bridge. They also cite Anderson's testimony to the effect that Knight, HHC's project manager, would only go to the site "from time to time to look at the progress of the work, to get a sense of whether or not it was progressing in accordance with the schedule that was established." In this regard, the City and hospital defendants argue that, notwithstanding HHC checking on the progress of the work and receiving "status reports," there is no evidence that any of the City and hospital defendants directed, supervised or controlled the materials, means or methods by which the sidewalk bridge was constructed or disassembled. According to the aforementioned defendants, general supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200.

BQE and the State Defendants/Don Todd's Affidavits Offered

in Further Support of their Cross Motions

BQE first notes that plaintiff fails to oppose, and therefore concedes, the inapplicability of his Labor Law § 200 and common-law negligence claims.In this regard, BQE reiterates that plaintiff's work was controlled by his employer Scaffolding One and, specifically, his supervisor Jean Cantu. Moreover, BQE maintains that it had no notice of any defect with the subject sidewalk shed. As such, BQE argues that plaintiff's Section 200 and common-law negligence causes of action asserted against it should be dismissed.

The state defendants and Don Todd offer identical arguments to those offered by BQE above regarding the dismissal of plaintiff's Section 200 and common-law negligence causes of action.

Discussion- Labor Law § 200 and Common-Law Negligence

Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those who exercise control or supervision over the methods that plaintiff employs in his work, or to those who have actual or constructive notice of, or are otherwise responsible for an unsafe condition that causes an accident (Aranda v Park East Constr., 4 AD3d 315 [2004]; Akins v Baker, 247 AD2d 562, 563 [1998]).

Initially, the court notes that plaintiff fails to oppose those branches of defendant's motion which seek summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims. In any event, defendants have established their entitlement to summary judgment dismissing the Labor Law § 200 and common-law negligence claims asserted against them.

Indeed, it is uncontroverted that defendants did not exercise any actual control over plaintiff's work. Upon review of the deposition testimony and documentary evidence submitted by the parties, the court finds that there is no evidence that defendants directly supervised plaintiff's work, or that they provided plaintiff with direction or equipment to perform his job. In [*27]this regard, it is well-established that an owner or general contractor's "general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under common law negligence and under Labor Law § 200" (Natale v City of New York, 33 AD3d 772, 773 [2006] quoting Dos Santos v STV Engrs., Inc., 8 AD3d 223, 224 [2004], lv denied 2 NY3d 702 [2004] [other internal citations omitted]; see also Dennis v City of New York, 304 AD2d 611, 612 [2003] ["retention of the right to generally supervise the work, to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations, does not amount to the supervision and control of the work site necessary to impose liability on an owner or general contractor pursuant to Labor Law § 200"] [internal citations omitted]). Further, the "authority to review safety at the site is insufficient if there is no evidence that the defendant actually controlled the manner in which the work was performed" (Garlow v Chappaqqua Cent. School Dist., 38 AD3d 712, 713 [2007] quoting Perri v Gilbert Johnson Enterprises, Ltd., 14 AD3d 681, 683 [2005] [internal citation omitted]). Plaintiff testified that he never took any direct instruction from anyone other than his supervising foreman from Scaffolding One at the subject premises. Therefore, even if defendants may have had overall responsibility for the safety of the work done by the contractors, and generally supervised and coordinated the work site, such duty to supervise and enforce general safety standards is insufficient to raise a question of fact as to defendants' negligence.

Defendants have also established that they did not create the dangerous condition since the sidewalk bridge was installed and dismantled solely by third-party defendant Scaffolding One. Moreover, the deposition testimony submitted also demonstrates that defendants did not have notice that the scaffold platform was secured in an unsafe manner or that it was otherwise defective. In particular, defendants have shown that they did not have actual notice of the alleged dangerous condition of the sidewalk bridge, since the deposition testimony submitted by the parties reflects that defendants never received any relevant complaints prior to the accident. Additionally, defendants have established that they cannot be charged with constructive notice since the evidence demonstrates that defendants did not have control over the dangerous condition involved here. In this regard, the evidence reflects that Scaffolding One was solely responsible for dismantling the subject sidewalk bridge at the time of plaintiff's accident. In response to defendants' prima facie showing, plaintiff has failed to raise any triable issues of fact as to defendants' negligence.

Accordingly, those branches of defendant's cross motions which seek summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims are granted.

The Parties' Contentions - BQE's Cross Motion for Indemnification

Regarding its claims for contractual indemnification, BQE notes that, pursuant to its February 2, 2004 agreement with third-party defendant Scaffolding One,[FN16] subcontractor Scaffolding One had the following responsibilities:1. "Subcontractor's Work"

(a) Perform all work and shall furnish all supervision, labor, materials, plant hoisting, Pipe scaffolding, Side walk bridge, tools equipment, supplies and all other things necessary for [*28]the construction and completion of the work.

(b) In respect of work covered by this Subcontract, and except as expressly modified herein, Subcontractor shall have all rights which contractor has under the Contract Documents, and Subcontractor shall assume all obligations, risks and responsibilities which Contractor has assumed towards Owner in the Contract Documents.

Furthermore, according to BQE, the subject contract also contained the following indemnification provision:

3. "Subcontractor's Liability"

a) Subcontractor hereby assumes the entire responsibility and liability for all work, supervision, labor and materials provided hereunder whether or not erected in place, and for all plant, scaffolding, tools equipment, supplies and other things provided by Subcontractor until final acceptance of the work by Owner . . .

c) "Indemnification"

To the fullest extent permitted by law, the Subcontractor shall indemnify, hold harmless and defend the contractor, Owner and all of the agents, directors and employees from and against all claims, damages, demands, losses, expenses, causes of action, suits of other liabilities, (including damage, demand, loss or expense attributable to bodily injury, personal injury, sickness, disease or death, or to injury ro or destruction to tangible property, including the loss of use resulting there from, to the extent caused in whole or in part by a party indemnified hereunder . . .

4. "Subcontractor's Insurance

Prior to commencing the work, Subcontractor shall procure, with Contractor and Owner as additional insured parties, and thereafter maintain at its' own expenses until final acceptance of work.

As for its claims for contractual indemnification against Scaffolding One, BQE alleges that the indemnification provision is clear and unambiguous, in that it explicitly evidences Scaffolding One's promise to indemnify it as the "Contractor," Dormitory Authority as the "Owner,"and also all of the "agents,"in the event of an injury arising out of, or resulting from, the work. Moreover, BQE contends that there is no evidence that it was negligent or that it directed, controlled, or supervised the manner in which plaintiff performed his work. Thus, BQE argues that it is entitled to a defense and full contractual indemnification from Scaffolding One in connection with the instant action and the attorneys' fees it expended in defense of the action.

Finally, BQE argues that, in the event the court decides that it is required to defend and indemnify Dormitory Authority, FDC, FIC, and/or Don Todd in connection with the subject incident, that these defendants are entitled to a defense and indemnification from Scaffolding One based on the clear and unambiguous language of the above subcontract agreement between BQE and Scaffolding One.

The State Defendants and Don Todd's Opposition to BQE's Cross Motion for Indemnification

In opposition to that branch of BQE's cross motion which seeks dismissal of the state defendants and Don Todd's cross claims against it, the state defendants and Don Todd argue that [*29]BQE is not entitled to dismissal of said claims because BQE owes them both indemnity and insurance coverage.

Scaffolding One's Opposition to BQE's Cross Motion for Indemnification

Scaffolding One also opposes that branch of BQE's cross motion which seeks indemnification against it. In particular, to the extent that BQE seeks contribution and/or indemnification from it on common-law grounds, Scaffolding One alleges that "it would appear that there can be no dispute that because Scaffolding One, Inc. is the Plaintiff's employer and Plaintiff did not sustain a grave injury within the meaning of Workers' Compensation Law § 11, that no common-law right of indemnification or contribution lies with BQE as against Scaffolding One, Inc.." With respect to BQE's claims regarding contractual indemnification pursuant to the subcontract agreement between BQE and Scaffolding One, Scaffolding One argues that, because the indemnification provision in said agreement provides for, among other things, the "broad indemnification by Scaffolding One, Inc. for any negligence by BQE and others," that it is void based upon General Obligations Law § 5322.1.[FN17] Since Scaffolding One contends that it is undisputed that the above indemnification provision includes indemnification for negligent acts caused by BQE and/or Dormitory Authority, it argues that this court must follow the Court of Appeals' ruling in Itiri Brick, and confirm the invalidity of the indemnification provision herein as required by section 5-322.1.

Additionally, Scaffolding One notes that, in accordance with the contract requirements in the subcontract agreement, it obtained liability insurance for the subject project as evidenced by the Certificate of Insurance annexed to its opposition. In this regard, Scaffolding One avers that, "[u]nfortunately, and despite the best efforts of counsel for both Scaffolding One, Inc. and BQE Industries to reverse the initial determination by the insurer to deny defense and indemnification for this claim, the insurance company has not changed its position. At this time, neither Scaffolding One, Inc. nor BQE has commenced a declaratory judgment action with regard to these insurance coverage issues."

Finally, according to Scaffolding One, neither plaintiff, nor any of the other defendants, has established clear and convincing evidence of any negligence on its part. Scaffolding One also argues that neither BQE, nor the state defendants/Don Todd, have proffered sufficient undisputed facts that it violated any provisions of the Labor Law, or that it violated any [*30]provisions of the Industrial Code related to the erection or dismantling of the subject sidewalk shed. As such, Scaffolding One insists that the indemnification clause in the subcontract agreement is void pursuant to section 5-322.1 and, therefore, that it is not required to indemnify any of the defendants regarding the subject incident.

BQE's Reply to Scaffolding One's Opposition

In reply to Scaffolding One's opposition, BQE maintains that it is entitled to both common-law and contractual indemnification from Scaffolding One. Since BQE avers that its liability in the instant case, if any, will arise pursuant to the strict liability imposed by Labor Law § 240 (1), it alleges that it is free from any negligence apart from statutory liability and is, therefore, entitled to contractual indemnification from Scaffolding One. Moreover, BQE argues that the subject indemnification provision is immune from successful challenge in that it begins with the qualifying language "to the fullest extent permitted by law." Notwithstanding the enforceability of the subject provision, BQE also argues that, in opposition, Scaffolding One failed to allege that BQE was in any way negligent in the happening of plaintiff's accident. BQE maintains that Scaffolding One, as plaintiff's employer, is the party which was actively negligent here. Since BQE claims that it was not involved with plaintiff's work, it alleges that it is entitled to contractual indemnification, including attorneys' fees and defense costs, from Scaffolding One. According to BQE, the issue of active negligence on the part of Scaffolding One is irrelevant to its obligation to indemnify the defendants. Finally, in the event that the court determines that BQE is required to defend and indemnify Dormitory Authority, FDC, FIC, and/or Don Todd, BQE maintains that these entities are entitled to defense and indemnification from Scaffolding One based on the clear language of the subcontract agreement.

Discussion

BQE's Cross Motion for ContractualIndemnification Against Scaffolding One

Contractual indemnification is generally decided as a matter of law pursuant to the terms of the contract, after the trier of fact determines culpability. "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]). A party seeking contractual indemnification only has to establish that it is free from any negligence and that its liability is solely vicarious arising from the non-delegable duty imposed by the Labor Law (see Rey v Ridamaset, LLC, 19 Misc 3d 1114(A), *2 [2008]).

BQE met its initial burden of demonstrating its entitlement to contractual indemnification by introducing the subcontract agreement, which includes an express indemnification clause in its favor. Given that plaintiff was supervised solely by Scaffolding One and that Scaffolding One owned the scaffold plaintiff was using, BQE reasons that Scaffolding One is bound to indemnify it for any liability it faces in the instant lawsuit pursuant to the indemnification clause in the subcontract agreement. Notably, this court has already dismissed plaintiff's negligence claims against BQE. Since it has also been determined that plaintiff's injury arose out of, or resulted from, plaintiff's performance of its work as an employee of subcontractor Scaffolding One, BQE has established that it is entitled to contractual indemnification against Scaffolding One.

In response, given the fact that General Obligations Law § 5-322.1 prohibits contractual indemnification where the promisee was responsible for the accident, Scaffolding One reasons [*31]that BQE is not entitled to contractual indemnification. In this regard, it is true that General Obligations Law § 5-322.1 "prohibits enforcement of a contractual indemnification clause if the party seeking indemnification was negligent, or had the authority to supervise, direct or control the work that caused the injury" (Naranjo v Star Corrugated Box Co., 11 AD3d 436, 438 [2004]). However, an owner or contractor's retention of general supervisory authority, presence at a work site, authority to enforce safety standards, or coordination of the work are insufficient to establish the type of control and supervision which precludes enforcement of an indemnification agreement (Biance v Columbia Washington Ventures, 12 AD3d 926 [2004]; Reilly v Newireen Assocs., 303 AD2d 214, 221 [2003]). Rather, the owner or general contractor must have actual authority to direct and control the methods used in carrying out the work that caused the accident.

It is clear that the accident was not caused by any negligence on BQE's part. BQE did not own the sidewalk bridge, nor did it have any notice of a defect in the scaffold. Furthermore, although BQE retained general supervisory authority over the work at the building, the deposition testimony reveals that BQE did not retain the type of supervision and control over plaintiff's work that would preclude it from enforcing the applicable indemnification clause. Indeed, it is clear that BQE never exercised any actual control over plaintiff's work. Moreover, to the extent that the subject indemnification provision purports to indemnify BQE for its own negligence, it has been held that such an agreement does not violate General Obligations Law if it authorizes indemnification "to the fullest extent permitted by law," as the subject agreement does here (see Lesisz v Salvation Army, 40 AD3d 1050 [2007]; see also Balladares v Southgate Owners Corp., 40 AD3d 667 [2007]). Furthermore, an indemnification clause that purports to indemnify a party for its own negligence may be enforced where the party to be indemnified is found to be free of any negligence and its liability is merely imputed or vicarious" (Lesisz, 40 AD3d at 1051 [internal citations omitted]). Accordingly, BQE is entitled to contractual indemnification against Scaffolding One. That branch of BQE's cross motion which seeks summary judgment with respect to its claims for contractual indemnification against Scaffolding One is granted.

BQE's Cross Motion for Common-Law Indemnification Against Scaffolding One

Moreover, one whose liability is solely vicarious arising by operation of law, may seek common-law indemnification from those who are at fault (see Rey, 19 Misc 3d at *1). A party seeking summary judgment on the issue of common-law indemnity "must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident" (Correia v Professional Data Mgmt., Inc., 259 AD2d 60, 65 [1980]). To obtain common-law indemnification from Scaffolding One, BQE has the burden to submit proof of Scaffolding One's actual negligence that contributed to the accident, or that Scaffolding One had the authority to direct, supervise and control the work giving rise to the injury (see Rey at *1; see also Hernandez v Two E. End Ave. Apt. Corp., 271 AD2d 570, 571 [2000] ["A subcontractor may be obligated to indemnify under the common law . . . where it had the authority to direct, supervise and control the work giving rise to the injury"). BQE has already demonstrated, prima facie, that it is not liable to plaintiff. In addition, it is undisputed that plaintiff was a Scaffolding One employee. Thus, Scaffolding One had the authority to direct, supervise and control the work [*32]giving rise to plaintiff's accident. Scaffolding One's actual negligence is immaterial under the circumstances (Hernandez, 271 AD2d at 571). BQE has thus demonstrated its initial entitlement to summary judgment as a matter of law with respect to its common-law indemnification cause of action against Scaffolding One.

However, in opposition to BQE's motion, Scaffolding One claims that BQE's common-law indemnification claims are barred by Workers' Compensation Law § 11, since plaintiff did not sustain a "grave injury" within the meaning of that statute (see Jarvis v Crotana Assoc., LLC, 14 AD3d 423 [2005]).[FN18] BQE fails to respond to plaintiff's opposition regarding the application of the Workers' Compensation Law here. As such, BQE appears to concede that the above defense is applicable, especially in light of the fact that it is undisputed that Scaffolding One was plaintiff's employer at the time of his accident. Upon review of the evidence, the court finds merit to Scaffolding One's claims regarding the application of the Workers' Compensation defense.[FN19] Accordingly, insofar as BQE seeks summary judgment on its claim for common-law indemnification against Scaffolding One, its cross motion is denied.

The Parties' Contentions - The State Defendants and Don Todd's Cross Motion

for Summary Judgment on their Claims for Indemnification

In their memorandum of law in support of their cross motion for summary judgment dismissing plaintiff's complaint, the state defendants and Don Todd argue that, if the court does not grant dismissal of the complaint, they are alternatively entitled to contractual and common-law indemnification against the other defendants. The state defendants and Don Todd aver that a violation of the Labor Law statute is not the equivalent of negligence, and, therefore, that such a violation does not give rise to an inference of negligence which would support liability. According to the state defendants and Don Todd, pursuant to the terms of both the contractor agreement between Dormitory Authority and BQE, and the subcontractor agreement between BQE and Scaffolding One, the state defendants and Don Todd are entitled to contractual indemnification against the other defendants. The state defendants and Don Todd further argue that a common-law duty to indemnify exists irrespective of any express contractual agreement the parties may have had. Since they argue there has been no showing that they were actively negligent, the state defendants and Don Todd allege that they are also entitled to common-law indemnification against BQE. Additionally, the state defendants and Don Todd argue that, based on the recent Court of Appeals ruling in Brooks, even if negligence is found with respect to any of them, "[the negligence] would still pass through to BQE and Scaffolding One on partial indemnity grounds. [*33]

Finally, the state defendants and Don Todd contend that BQE and Scaffolding One are liable to them for breach of contract for failure to procure insurance on behalf of Dormitory Authority. The state defendants and Don Todd cite the decision of the Court of Appeals in Pecker Iron Works of New York v Travelers Insurance (99 NYS2d 391 [2003]), to the effect that when a contractor engages a subcontractor, and the subcontractor agrees in writing to name the contractor as an additional insured, the subcontractor's policy provides primary coverage for the loss.

Scaffolding One's Opposition to the State Defendants/Don Todd's Cross Motion

Regarding their Cross Claims for Indemnification

In opposition to that branch of the state defendants and Don Todd's cross motion which seeks summary judgment against Scaffolding One, Scaffolding One argues that, rather than commence a separate third-party action to assert direct claims against it, these defendants inappropriately seek summary judgment based on "cross-claims" they attempted to serve against Scaffolding One on October 29, 2008, two and one-half years after the commencement of the within action. In this regard, Scaffolding One avers that, pursuant to its letter dated November 3, 2008, it rejected the state defendants and Don Todd's cross claims as untimely and in violation of CPLR 3019. In addition, according to Scaffolding One, the state defendants and Don Todd's attempt to create a direct cause of action against it was subsequent to the filing of the Note of Issue and Certificate of Readiness on September 30, 2008. As a result, Scaffolding One alleges that these defendants lack standing to move for summary judgment on any cross claims against it in the within action.

Additionally, to the extent the state defendants and Don Todd's cross claims seeks contribution and/or common-law indemnification against Scaffolding One, Scaffolding One contends that plaintiff did not sustain a "grave injury" pursuant to Workers' Compensation §11. Therefore, Scaffolding One maintains that no common-law right of indemnification or contribution lies with these defendants as against it as a third-party defendant.

Similar to the reasoning it applied above in opposition to BQE's motion, Scaffolding One also argues that the subject indemnification provision is void pursuant to General Obligations Law § 5-322.1.

BQE's Opposition to the State Defendants and Don Todd's Cross Motion for Indemnification

BQE also opposes that branch of the state defendants and Don Todd's cross motion which seeks contractual and/or common-law indemnity as against BQE. According to BQE, not all of these defendants are entitled to indemnification pursuant to the subject contractual provision. Since only the owner and the construction manager are mentioned in the agreement, BQE contends that the motion seeking indemnity on behalf of FDC and FIC should be denied inasmuch as these parties are not beneficiaries of the underlying agreement.

With respect to Dormitory Authority and its purported agent Don Todd, BQE avers that their cross motion must be denied since the subject indemnification provision violates General Obligations Law § 5-322.1. In this regard, BQE contends that the agreement does not contain any language that directly limits Dormitory Authority's potential liability, such as the phrase "to the fullest extent permitted by law." BQE also notes that the subject agreement specifically [*34]states that indemnification shall be granted in favor of Dormitory Authority regardless of whether Dormitory Authority is negligent in the happening of the accident. Moreover, BQE argues that Dormitory Authority fails to cite to any evidence or testimony indicating that BQE was in any way negligent, nor that it provided plaintiff with defective equipment.

The State Defendants and Don Todd's Reply to Scaffolding One and BQE's Opposition

In reply, the state defendants and Don Todd contend that neither BQE nor Scaffolding One oppose them on their breach of contract for failure to procure insurance cause of action and, as such, BQE and Scaffolding One must pay the costs of the premiums that Dormitory Authority incurred in its purchase of insurance policies, as well as the costs in defending the instant matter.

Discussion

The State Defendants and Don Todd's Cross Claims for Indemnification

Against BQE and Scaffolding One

Preliminarily, the court notes that the subject indemnification agreement refers to only Dormitory Authority and Don Todd and, as such, the agreement has no relevance to the remaining state defendants (see generally Baginski v Queen Grand Realty, LLC., 21 Misc 3d 1110 (A) [2008][the "language of the parties is not clear enough to enforce an obligation to indemnify unnamed entities, and the court will not rewrite the contract and supply a specific obligation the parties themselves did not spell out. If the parties intended to cover a tenant or lessee, as a potential indemnitee, they had only to say so unambiguously"]). Accordingly, that branch of the state defendants and Don Todd's cross motion which seeks summary judgment on the cross claims of FDC and FIC for contractual indemnification as against defendants is denied.

Additionally, since this court has already determined that Don Todd is not a statutory "agent" of the owner, and because Don Todd is not identified as an "Agent" in the terms of the agreement, the above indemnification provision is not applicable to Don Todd. As such, that branch of the state defendants and Don Todd's motion which seeks summary judgment on Don Todd's cross claims for contractual indemnification against defendants is also denied.

With respect to Dormitory Authority's remaining claims for contractual indemnification against BQE, Dormitory Authority has established its initial entitlement to summary judgment on said claim by submitting the general contractor agreement which includes an indemnification clause in its favor.The following provisions of the general contractor agreement are applicable:

Section 4.01 - "Contractor's Obligations"[FN20]

A. The Contractor shall, in a good workmanlike manner, perform all the Work required by the Contract within the time specified in the Contract.

B. The Contractor shall Furnish, erect, maintain, and remove such construction plant and such temporary Work as may be required for the performance of its Work. The Contractor shall be responsible for the safety, efficiency and adequacy of the Contractor's plant, appliances and methods. The Contractor shall comply with all the terms of the Contract, and shall do, carry on, and complete the entire Work to the satisfaction of the Owner. [*35]

Section 12.01 - "Subcontracting:"

A. The Contractor may utilize the services of Subcontractors.

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C. The Contractor shall be fully responsible for the Work, acts and omissions of Subcontractors, and of persons either directly or indirectly employed by Subcontractors. The Contractor shall be responsible for all guarantees and warranties provided by Subcontractors.

D. The Contractor shall cause appropriate provisions to be inserted in all subcontracts relative to the Work to bind Subcontractors to the Contractor by the terms of the Contract insofar as applicable to the work of Subcontractors.

Section 14.05, "Risks Assumed by the Contractor," states that:

A. 3. The Contractor assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatsoever . . . to all persons, whether employees of the Contractor or otherwise . . . caused by, resulting from, arising out of, or occurring in connection with the execution of the Work. If any person shall make said claim for any damage or injury, . . . or any breach of any statutory duty or obligation on the part of the Owner, the Client, the Owner's Representative, Construction Manager, servants and employees, the Contractor shall assume the defense and pay on behalf of the Owner, the Client, the Owner's Representative, Construction Manager, servants and employees, any and all loss, expense, damage or injury that the Owner, the Client, the Owner's Representative, Construction Manager, servants and employees, may sustain as the result of any claim, provided however, the Contractor shall not be obligated to indemnify the Owner, the Client, the Owner's Representative, Construction Manager, servants and employees for their own negligence, if any. The Contractor agrees to assume, and pay on behalf of the Owner, the Client, the Owner's Representative, Construction Manager, servants and employees, the defense of any action which may be brought against the Owner, the Client, the Owner's Representative, Construction Manager, servants and employees...

The above contractor agreement also provides that the contractor and each subcontractor shall provide a General Commercial Liability endorsement naming Dormitory Authority as an insured.1. Contractual Indemnification Against BQE

Since the above agreement placed the ultimate responsibility for the work performed at the subject premises on BQE, regardless of whether the work is performed by a subcontractor, and since the subject accident arose out of the work contemplated under the agreement, the indemnification provision is applicable herein. In addition, to the extent that the above indemnification agreement purports to indemnify Dormitory Authority for its own negligence, the court notes that the following language, "however, the Contractor shall not be obligated to indemnify the Owner, the Client, the Owner's Representative, Construction Manager, servants and employeesfor their own negligence, if any," operates to save the subject clause from being barred by the General Obligations Law. Furthermore, an indemnification clause that purports to indemnify a party for its own negligence may nonetheless be enforced where the party to be indemnified is found to be free of any negligence and its liability is merely imputed or vicarious" [*36](Lesisz, 40 AD3d at 1051 [internal citations omitted]). This court has already determined that Dormitory Authority was not negligent in the happening of plaintiff's accident. In this regard, it is true that General Obligations Law § 5-322.1 "prohibits enforcement of a contractual indemnification clause if the party seeking indemnification was negligent, or had the authority to supervise, direct or control the work that caused the injury" (Naranjo v Star Corrugated Box Co., 11 AD3d 436, 438 [2004]). However, an owner or contractor's retention of general supervisory authority, presence at a work site, authority to enforce safety standards, or coordination of the work are insufficient to establish the type of control and supervision which precludes enforcement of an indemnification agreement (Biance, 12 AD3d 926; Reilly v Newireen Assocs., 303 AD2d 214, 221 [2003]). Rather, the owner or general contractor must have actual authority to direct and control the methods used in carrying out the work that caused the accident.In this regard, it is clear that Dormitory Authority did not own the sidewalk bridge, nor did it have any notice of any defect in the scaffold. Furthermore, although Dormitory Authority retained general supervisory authority over the work at the building, the deposition testimony reveals that Dormitory Authority did not retain the type of supervision and control over plaintiff's dismantling work that would preclude it from enforcing the applicable indemnification clause. Indeed, it is clear that Dormitory Authority never exercised any actual control over plaintiff's work. Accordingly, Dormitory Authority has established its entitlement to contractual indemnification as against BQE, and the court grants that branch of the state defendants and Don Todd's cross motion for summary judgment with respect to Dormitory Authority's cross claim against BQE.

2. Common-Law Indemnification Against BQE

Moreover, with respect to the state defendants and Don Todd's claims for common-law indemnification against BQE, the court finds that they are not entitled to summary judgment since, in order to establish a claim for common-law indemnification the "one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident" (see Correia v Professional Data Mgt., 259 AD2d 60, 65 [1999]) or "in the absence of any negligence that the proposed indemnitor "had the authority to direct, supervise, and control the work giving rise to the injury" (Hernandez, 303 AD2d at 557). Since this court has already determined that BQE was not negligent and that it did not have the requisite control necessary for indemnification, that branch of the state defendants and Don Todd's cross motion which seeks common-law indemnification as against BQE is denied.

3. Contractual Indemnification Against Scaffolding One

As a threshold matter, contrary to Scaffolding One's contentions, the court has determined that the state defendants and Don Todd's "cross claim" may be considered here. In this regard, the court notes that:

"[i]n a multi-defendant action, each defendant need not separately commence a third-party action against the third-party defendant. Once one of the defendants joins a third-party defendant, the third-party defendant is a party to the entire action and is subject to cross-claims by the other defendants [see CPLR 3019(b) (proper subjects of cross-claims)]."(Barr, Altman, Lipshie, Gerstman, Stern, New York Civil Practice Before Trial, § 14:646, "Cross-Claims by Other Defendants" [2006]). [*37]

Additionally, with respect to the timeliness of the cross claim, the court notes that, generally, "courts are reluctant to dismiss third-party claims, but they will do so if it appears that a delay in commencing the action might adversely affect the parties, discovery, or trial." As there is no apparent prejudice to Scaffolding One here, and because there does not appear to be a need for additional discovery related to the cross claim, the court will consider that branch of the state defendants and Don Todd's cross motion which seeks indemnity as against third-party defendant Scaffolding One.

It appears that the state defendants and Don Todd are seeking a declaration regarding the "pass-through" liability allegedly owed to them by Scaffolding One, pursuant to the terms of the respective contracts between Scaffolding One and BQE, as well as between Dormitory Authority and BQE. However, as the state defendants and Don Todd had no direct contractual relationship with Scaffolding One, any indemnification it could receive from Scaffolding One would be subject to a prior finding of liability on the part of Scaffolding One. Inasmuch as there has been no such affirmative finding of negligence on the part of Scaffolding One, and in the absence of a direct indemnification relationship between the state defendants/Don Todd and Scaffolding One, that branch of the state defendants and Don Todd's cross motion for summary judgment which seeks contractual indemnification against Scaffolding One is denied.

4. Common-Law Indemnification Against Scaffolding One

In addition, for reasons already articulated above with respect to BQE's request for common-law indemnification against Scaffolding One, the state defendants and Don Todd's cross claims for common-law indemnification asserted against Scaffolding One are also barred by Workers' Compensation Law § 11. Accordingly, that branch of the state defendants and Don Todd's cross motion which seeks common-law indemnification against Scaffolding One is denied.

5. Breach of Contract for Failure to Procure Insurance Against BQE and Scaffolding One

Finally, inasmuch as the state defendants and Don Todd contend that BQE and Scaffolding One are liable to them for breach of contract for failure to procure insurance on behalf of Dormitory Authority, the court notes that Scaffolding One submits a copy of the Certificate of Insurance which reflects that Scaffolding One has named BQE as an insured on its liability policy. The subject policy of insurance was in effect on the date of the accident. Therefore, it cannot be argued that either party breached a contract to procure such insurance on behalf of Dormitory Authority. Since any further determination regarding Dormitory Authority's right to be indemnified by Scaffolding One through its agreement with BQE is dependent upon an affirmative finding of negligence on the part of Scaffolding One, that branch of the state defendants and Don Todd's motion for summary judgment on their breach of contract claim related to the failure to procure insurance is denied.

Conclusion

In sum, the court rules as follows:

(1) Plaintiff's motion for summary judgment on the issue of liability pursuant to Labor Law § 240 (1) is granted with respect to the City, Dormitory Authority and BQE, and is denied as against the remaining defendants. [*38]

(2) That branch of BQE's cross motion for summary judgment seeking dismissal of plaintiff's Labor Law § 240 (1) claim is denied. Those branches of BQE's cross motion for summary judgment seeking dismissal of plaintiff's Labor Law §§ 241 (6) and 200, as well as common-law negligence claims are granted. Moreover, that branch of BQE's cross motion which seeks contractual indemnification as against Scaffolding One is granted, and that branch of BQE's cross motion which seeks common-law indemnification as against Scaffolding One is denied.

(3) That branch of the state defendants and Don Todd's cross motion for summary judgment seeking dismissal of plaintiff's Labor Law § 240 (1) claim is granted with respect to Don Todd, and is denied as to the remaining defendants. Those branches of the state defendants and Don Todd's cross motion for summary judgment seeking dismissal of plaintiff's Labor Law §§ 241 (6) and 200, as well as common-law negligence claims, are granted. Moreover, that branch of the state defendants and Don Todd's cross motion which seeks contractual indemnification as against BQE is granted with respect to Dormitory Authority's claims against BQE, and is denied as to FDC, FIC and Don Todd's claims for contractual indemnification against BQE. Additionally, that branch of the state defendants and Don Todd's cross motion which seeks common-law indemnification as against BQE is denied. Additionally, those branches of the state defendants and Don Todd's cross motion which seek contractual and common-law indemnification on their cross claims against Scaffolding One are denied. Furthermore, those branches of the state defendant and Don Todd's cross motion as against BQE and Scaffolding One for breach of contract to procure insurance are denied.

(4) Finally, that branch of the City and hospital defendants' cross motion which seeks summary judgment dismissing plaintiff's Labor Law § 240 (1) claim is denied. Additionally, those branches of the City and hospital defendants' cross motion for summary judgment seeking dismissal of plaintiff's Labor Law §§ 241 (6) and 200, as well as common-law negligence claims, are granted.

The foregoing constitutes the decision and order of this court.

E N T E R,

________________

J. S. C.

Robert J. Miller Footnotes

Footnote 1:The parties also refer to the subject structure interchangeably as a "sidewalk shed" and a "scaffold."

Footnote 2:In the City and hospital defendants' Answer to plaintiff's complaint, the City admits that it is a municipal corporation which owns the subject premises.

Footnote 3:In the state defendants and Don Todd's Response to plaintiff's Notice to Admit in the within action, Dormitory Authority admits that it is the owner and lessor of the subject premises and that it maintained and controlled the subject premises at the time of plaintiff's accident. However, in the same Response, the state defendants and Don Todd deny that either FIC or FDC is an owner or lessor of the subject premises.

Footnote 4:Plaintiff also testified that, prior to his accident,"Paul," whom he identified as a BQE foreman, told Juan Cantu that the workers should switch from dismantling an area of "Mass Climber" scaffolding to dismantling the subject sidewalk bridge.

Footnote 5:Specifically, plaintiff testified that the dismantling procedure began with removing the nails from all of the guards (or the protective barrier ) running the length of the bridge and then removing said guards. According to plaintiff, this was followed by removing the nails from all of the toe boards and passing them down, removing the planks one by one, then removing the metal sheets, the I-beams and the steel legs. Plaintiff testified that when he got to one of the toe boards: "I loosened the nails successfully. I picked the toe boards up. I took one step and I stepped on one of the planks and that gave way and that's when I fell." In addition, plaintiff testified as follows:

Q: Was there an I-beam located directly under the area where the toe board was located, at the edge of the sidewalk bridge?

A: That's a big problem. There wasn't.

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Q: Do you recall, as you sit here today, what, if anything, you noticed about the sidewalk bridge that might have been out of the ordinary?

A: I noticed . . . the planks being pulled out too much, and there was no support under.

Q: Under the edge of the planks?

A: Yes.

Q: Where the toe boards were?

A: Yes.

* * *

Q: So in addition to your noticing the location of the I-beam and the planks were hanging too far over, it was brought to your attention by Juan and Paltiel before you started to work?

A: Yes it was.

Q: Do you recall how much of the planks were overhanging the outer-most I-beam?

A: Not to be exact. I know it was too much from past experience.

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Q: Had you ever seen a sidewalk bridge erected in this way, where the planks hung over the outer-most edge of the I-beams more than six inches?

A: Never.

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Q: On the date that your accident happened, when you were arrived at the scene and saw that the I-beams were improperly placed, did you speak to Juan about that?

A: Yes. We all spoke together about it.

Q: Can you tell me the sum and substance of that conversation?

A: If I am not mistaken, it was me, Juan and Paltiel who observed the situation and we were the scaffold experts. They advised me to take precautions in doing it, if I am not mistaken.

Q: Could you have fixed the placement of the I-beams before beginning to dismantle the sidewalk bridge?

A: No.

Q: Why?

A: Because the I-beams . . . lay on two beams and the I-beams they could only go so far. If you move an I-beam it's moving to the ground. It's going to fall. So there is no adjusting. Once the bridge is up, it's up.

Footnote 6:In this regard, Anderson testified that, normally, when a project is identified, HHC would request that Dormitory Authority put together a scope of the work proposal which was then generated into a form of work order that was received and approved by the HHC board of directors.

Footnote 7:Specifically, plaintiff cites the decision of the Appellate Division, Second Department in Romero v J & S Simcha, Inc., (39 AD3d 838, 839 [2007]).

Footnote 8:Plaintiff cites Lodato v Greyhawk North America, LLC, (39 AD3d 491, 492-493 [2007]).

Footnote 9:In this regard, plaintiff notes that, in Kyle v City of New York, 268 AD2d 192, 197 [2002], the Appellate Division, First Department ruled that "[i]t would be illogical for the Legislature to have enacted a statute affirmatively requiring safe scaffolding and other devices for the protection of workers while denying similar protection to the very same (and other) workers when they erect and demolish such devices," particularly where, as here, plaintiff "could only perform this work while standing on the platform, as no alternative scaffolding was provided."

Footnote 10:BQE cites Blake v Neighborhood Housing Services of New York City, Inc., (1 NY3d 280 [2003]), as precedent for its argument that plaintiff's Labor Law § 240 (1) claim must fail, since plaintiff cannot establish that the alleged safety device malfunctioned during its use or that is was otherwise defective.

Footnote 11:Plaintiff testified that the planks comprising the floor were not secured by nails themselves, but, rather, that toe boards were attached and nailed to the edge of the planks in the opposite direction in order secure the flooring.

Footnote 12:Industrial Code 12 NYCRR § 23-5.1 (c)(1), "Scaffold structure," provides, in pertinent part, "Except where otherwise specifically provided in this Subpart, all scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon when in use. (See Labor Law 240, Subdivision 3) Such maximum weight shall be construed to mean the sum of both dead and live loads."

Footnote 13:That provision provides, in relevant part, "All nails shall be driven full length and shall be of the proper size, type, length and number to provide the required strength at all joints. Only double-headed or screw-type nails shall be used in the construction of scaffolds."

Footnote 14:Industrial Code 12 NYCRR § 23-1.18 (b)(1), "Sidewalk shed construction," pertinently provides that, "the deck and supporting structure of every sidewalk shed shall be constructed to sustain a live load of at least 150 pounds per square foot without breaking, and if material is to be stored thereon such deck and supporting structure shall be constructed to sustain a live load of not less than 300 pounds per square foot without breaking."

Footnote 15:The rules governing liability under Labor Law §240 (1) and 241 (6) differ in at least two material respects. Contributory and comparative negligence are valid defenses to claims asserted under the latter section, while section 240 (1) claims are not subject to those defenses. Furthermore, a breach of Labor Law § 240 (1) leads to absolute liability, while a breach of a duty imposed by a regulation promulgated under section 241 (6) is merely some evidence of negligence (see Ross, 81 NY2d at 502).

Footnote 16:In said agreement entered into between BQE and Scaffolding One, Dormitory Authority is identified as the "Owner," BQE is referred to as the "Contractor," and Scaffolding One is identified as the "Subcontractor."

Footnote 17:Scaffolding One cites the Court of Appeals recent decision in Brooks v Judlau Contracting, Inc., (11 NY3d 204 [2008]), in support of its contention that the subject indemnification provision is void. According to Scaffolding One, the Brooks case "limits a subcontractor's responsibility to indemnify its general contractor only to those acts attributable, if any, to the subcontractor and not for any acts of negligence ultimately found to have been caused by either the general contractor, or any other party referred to in the contract." Moreover, Scaffolding One argues that the Court of Appeals qualified its holding in Brooks so as to conclude that the statute does permit a partially negligent general contractor to seek contractual indemnification from its subcontractor, as long as the indemnification provision does not purport to indemnify the contractor for its own negligence. Scaffolding One also cites the holding of the Court of Appeals in Itiri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., (89 NY2d 786 [1997]), in further support of its above contentions.

Footnote 18:The statute defines a grave injury as "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."

Footnote 19:Plaintiff's injuries include, among other things, multiple herniations and a knee injury, none of which are "grave," as that term is defined in the statute.

Footnote 20:The contractor agreement was entered into between Dormitory Authority, as the "Owner,"

and BQE, as the "Contractor."