Beltran v Navelus Tile, Inc.

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Beltran v Navelus Tile, Inc. 2012 NY Slip Op 30861(U) April 2, 2012 Sup Ct, NY County Docket Number: 109873/08 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME CQUBT QF THE STATE OF NEW YOR' plTEW YQRK COUNTY Index Number : 10967312008 BELTRAN, ROBERTO vs. NAWLLUS TILE SEQUENCE NUMBER : 003 SUMMARY JUDGMENT FILED NEW YOMK COUNTY CLERK'S OFFICE I [* 2] r 4 - SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOKK: IAS PART 10 _______-_____________------_--_____-__---_____-_____X ROBERTO BELTRAN and YAJAHIRA BELTRAN, Index No. : 109873/O8 S e q No.: 001,002,003 Plahtif€s, -against- Present: ludilh J. Oische. ISC NAVELUS TILE, WC., URS CORPORATION, U R S CORPORATION-NEW YORK, LIRO ENGINEERIN0 AND CONSTRUCTION MANAGEMENT, LIRO PROGRAM AND CONSIRUCTTON MANAGEMENT PE,PC and UNISYS ELECTRIC, NC., Defendants. X - - - -_ _ _ - - r_ - - _ - - - - - - - * - - _ I _ _ _ _ - l " r r _ - - - - - - - - Recilalion, as required by CPLR 3 22 19 [a] of the papers considercd in the review of this (these) motion(s): Numbered Papers Motion $a. 001 No. Navillus, URS defs' d m (3212) w/ EJF a f h n (2 parts), exhs . . . . . . . . . . . . . 1 Beltran opp wMIL af€irm, AA &d, exhs ............................ 2 Liro defs opp w/MTG affirm ....................................... 3 Navillus, URS defs' reply to Beltran w/BJW affirm ..................... 4 Nnvillus, URS dofs' reply to Liro WBJW aflEirm ....................... 5 Beltran further opp wMJL affirm ................................... 6 Navillus, URS clefs' supp & I in supportheply w/E.JF affirm, exhs ....... 7 Motion Seq. No. 002 Unisys d m (3212) w/JF affirm, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 BeItran opp w/MJL affirm,AA a d , exhs ............................ 9 . unisys reply W/JF h,~ ................... c h Beltran further opp w/MJL affirm .................................. Unisys W c r rcply w/JF affirm, exh ............................... 12 F.1 L. .Qy E. m 05 2012 Motion Seq. No.003 Liro n/ (3212) wMTG affirm, exhs .................... NEW YOHK' ' ' Navillus, URS partial opp w / B N affirm, exh .... . ~ O U N CLE~~K,S.QFFI& .~ Behanoppw/PviJLafhm,AAaffid,exhs ........................... 15 Liro reply w/MTG affirm ......................................... 16 Page 1 of 25 [* 3] Belfurther opp wMJL affirm .................................. Liro affirm further support wMTG affirm,exhs ....................... Liro further reply w/MTG a r m ................................... Other: Various stips, correspondence ............................... 17 18 19 20 ____-__r_ll________l__ HUN. JUDITH J. G I S C m , J.S.C.: In this personal injuryhcgIigencc:action, defendants NavUu Tile, h c . (Navillus), URS Corporation and URS Copration-New York (URS) move for summary judgment to dismiss the complaint and all cxoss claims against them (motion sequence number OOl), and co-defendants Liro Engineering and Construction Management and Liro Program and Construction Management PE,PC (the Liro dtkndants) and Unisys Electric, Inc. (Unisys) each submit separate motions for the same relief (motion sequence numbers 002 and 003, respectively). Issue was joined by each moving defendant and plaintiff fiIed the note of issue February 17,201 1. These timely motions are consolidated for decision herein (CPLR $ 3212; Brill Y. Civ oflvew York, 2 N.Y.3d 648 [2004]). BACKGROUND On July 27,2007, plaintiff Roberto Beltran (Beltmn), an elevator repairman employed by the nonparty New York City Housing Authority (NYCHA), was injured when he allegedly slipped and fell on water that had collected on the floor in a tempomy ingress/cgress corridor i n building # 4 (the building), which is owned by NYCHA and located a 55-04 Beach Channel t Drivc in the Town of Oceanside, County of Nassau, State of New York. See Notice of Motion (motion sequence number OOl), Fink Afhnation, 7 3. NYCHA initially hired the Liro defendants to perform certain renovation and repair work at the buildmg, and the Liro defendants thereafter entered into a joint venture with URS to complete that work See Lynch Affirmation iu I Page 2 of 25 [* 4] + A Opposition, at 2 (pages not numbered). Id. To this end, U R S and the Liro defendants worked in tandem as comtmction managers on the project, and URS hired Navillus as the general contractor. Later, U R S also hired Unisys as an elec~cal contractor. See Notice of Motion (motion sequence number OOZ), F c e h m d o n , 7 12. At his deposition on March 23,2010, Bcllran testified that he had been “dispatchedto repair an elevator” at the building. See Notice of Motion (motion sequence numbcr 00I), Exhibit C, at 58. Beltran specifically noted that his job did not include elcvator “renovation, reconstruction or modernization,’’and consisted only of maintenance and repair work. Id. at 28. Belhm stated that, sometime after 3 P.M. on the day of his accident, he and his assistant, fellow NYCHA employee Michael Angarita (Angarita), entered through the back of the building via the temporary ingresdegress corridor to go to the lobby ekvator that they were to repah, Id. at 62- 64.Beltran firrther stated that the tempomy iclgresdegress corridor had a cement floot, cinder block walls and fluorescent lights on the ceiling that were turned off at that time. Id. at 64-65. Beltran noted, however, that a fluorescent light near the front of the elevator was turned on, aad estimated that the elevator was located 10 feet to the left of the end of the darkened temporary ingresdegress corridor. Id. at 65-66.Regarding his accident, Beltran stated that he had proceeded about halfway down the corridor when his right foot slipped on wakr on the floor, and he fell backwards into Angarita. Id. at 67-68,77-79. Beltran further stated that he had acccssed the building through the tempomy ingresdegrcss corridor approximately twice before his accident, but that conditions i the corridor (Le., the lighting and the water on the floor) were not n the same on &os$ occasions. Id. a 72. Finally, Beltran stated that he filled out an incident report t for NYCHA on July 30,2007, on which he wrotc that he “slipped on water back into my partner Page 3 of 25 [* 5] injuring right Achjlles.” Id. at 83-91; Exhibit I. Angarita was deposed on February 14,20 11, at which time he conlimed Bcltsan’s tcstimony, and dso stated that he had observed a leaky hose affixed to the roof of the tempmy iugresdegress corridor immediately after Beltran’s accident. See Notice of Motion (motion sequence n u m k UOl), Exhibit D,at 33-35. Angarita also stated that, on the several previous occasions that he had bcm in the corridor, he had not seen any water on the floor. Id. at 33-24. The building’s former superintendent, ex-NYCHA empIoyoe Armando Acevedo (Accvcdo), was also deposed on September 15,2011, and initially stated that NYCHA had the sole responsibility for mainknancc of the tempomy ingresdegress corridor, and for sweeping and mopping it each morning on a daily basis. See Fink Supplemental Aflirmation i Support of n Motion (motion sequenco number OOl), Exhibit €3, at 29-3 1. Later,however, Acevedo appeared to contradict himself by stating that the constnrction crews working i the building were n responsible for cleaning up after themselves. Id. at 100. Acevedo also stated that he had examined the temporary ingmsdegress corridor imm-ly W Beltran’s accident, and had observed a hose suspended h m the ceiling leaking water onto the floor, which, he opined, had been run through the ceiling by Navilluv from the faucct i the building’strash compactor room n on the first floor. Td. at 38,40.Acevedo admitted having seen such hoses used in this way on prior occasions. Id. at 55-58. Acevedo denied, however, that the lights were off in the temporary hgresdegms corridor, and averred instead that the lighting was sufficient. Id. at 103, 108-111. Bellrnn asserts lhcrt Acevedo’s doposition testimony varied materially from the statements that he made in an aflidavit, dated February 17,2001, that: Page 4 of 25 [* 6] There were three cornpanios working on the renovation project. [The Lim defendants and WRS] were the construction managers and [Navillus] was the gencral contractor who was actually performing the work on the lobby renovations. This work involved tiling the walls and floors. It also involved plaster work on the ceiling. These companies used water to do their work. @avillus] was the company doing the tiling work, and they were the company that strung the hose through the ceiling i the building. INavillus] n connected their hoses t a faucet i the trash compactor room o n located on the ground floor of the building. When I investigated the lobby of the building where [Beltran’s] accident occurred, I saw the hose being used by [the Liro defendants, URS and Navillus]. The hose wns sttung through the ceiling in the hallway.... 1also saw walcr leaking from the hose and onto the hallway floor. The leak created the puddle which caused peltran’s] accident. It was the responsibility ofthe construction crew, and not the members of the NYCHA maintenance crew, to clean up &r Ihe consiruction crews and their work. Since the construction crcw created the puddle, it was their responsibility to clean it up. Id.; Exhibit D. Navillus was deposed on August 24,2010via its project manager, Mark Kelly (Kelly), who stated that job site safety was Navillus’s responsibility. See Notice of Motion (motion sequencc number OOl), Exhibit E, at 8-9. Kelly also statcd that, while the work a the building t wm ongoing, Navillus had not designated different portions ofthe building as being the sole responsibility of either URS or the Liro defendants. Id. at 49-50, Kelly denied having seen a hose a f f ~ ~ eto the ceiling of the temporary ingmdegress corridor, denied that Navillus had d placed any hoses there, and averred that “there would be no reason for us to be in the egress corridor ... that work had already been completed and was signed off.’? Id. a 5941. Regarding t who was mponsiblc for cleanup of the puddle, Kelly stated that: “I don’t know. Ifthe guy had made a mistake, he made a mi.stakq but I don’t see - he would, obviously, have to clean up after Paga5of 25 [* 7] himself. It is the right thing to do.” Id. at 62. However, thc court notes that the March 2005 general contracting agreement between URS and Navillus (the Navillus contract) incorporates the earlier construction management agreement tbat NYCHA had entered into with URS and the Liro defendants (the URS/l,iro contract), and that the latter contract provides, in pertinent part, as 12.1.2 During the performance of the Work and up to the date of Final Acceptance, the Contractor [Le., Navillus andor Unisys] must take all xeasonable precautions t protect the persons and o property of the CM [Construction Manager; i.e., URS and the Liro defendants], NYCHA and of others from damage, loss or injury resulting from its or its subcontractors’ operations under the Contract, or caused directly or indirectly by the acts, omissions or lack of good faith of the Conbctor or its subcontracton, their officers, employees or agents, except such property as others may themselves be under legal duty to protect. Id.; Exhibit L. URS was also deposed on August 24,2010 via its associate project manager, Edward Mazar (Mazar), who stated that URS was both a “construction manager’’ for the work at the building, and also performed masonry and electrical work there. See Notice of Motion (motion sequence number 00l), Exhibit F, at 12-13. Mazar furlher averred that he himself had never observed any water i the tempomy ingmslegress corridor, and that NYCHA was responsible n for cleaning and maintenance of the corridor’s floor, Id. at 33-34,35-36. Upon questioning, ,&lazar cladfled that cleanup was initially the contractors’ responsibility, but that, after work had been complctd on a given portion of the building and control thereof was ceded back to NYCHA for the use of its tenants, responsibility for cleanup reverted to NYCHA, as well. Id. at 35-36,56-57. The court notes, however, that the URS/Liro contract does not appear to confain Page 6 of 25 [* 8] any provision validating this assertion. Id.; Exhibit L. The Liro defendants were deposed on December 2,20 10 via their project superintendent, Jamcs Kannel ( h m e l ) , who stated &at the Liro defendants were a “construction manager’’ for the work at the building, and also performed roof rcplacernent, apartment renovation and lobby renovation work there. See Notice af Motion (motion sequence number 00l), Exhibit G, at 1517. However, KarmeI also alIeged that the L h defendants were not responsible for any of the work that was done i the building’s lobby, and asserted that URS was solcly responsible for n overseeing and inspectingNavillus’s work in the lobby. Id. at 24-26. h e 1 also reiterated Mazar’s understanding thaG once a contractor had completed its work on a portion of the building, and rehuned that portion to NYCHA’s control, the contractor was no longer responsible for cleanup in that area. I.. 3t 62; 75-76. K m e I referred to a “substantial completionpunch list” that he assertedNYCHA had signed as proof that it had accepted control over and responsibility for the temporary ingrcsdcgess corridor. Id. at 34-38. However, the court notes that neither NYCHA (l3eltraa’semployer),h e Liro deEndmts, or any of the other codefendants herein, has provided a copy of this purported document. h e 1 further stated that he was aware that Navillus’s workers occasionally ran a hose to a spigot in the temporary ingresdegress corridor i order to obtain water that they needed to mix concrete, but averred that n he had never seen them doing so himself Id. at 6549. Unisys was deposed on February 14,201 1 via its project manager, Diane Rubel (Rubel), who stated that Unisys was responsible for installing the temporary lighting in the temporary hgmdegtess corridor pursuant to a 2005 contract that it executed with NYCHA, and not Page 7 of 25 [* 9] pursuant t thc later electrical conrracthg agreement that Unisys entered into with Navillus. See o Notice of Motion (motion sequenm number OOl), Exhibit H at 15-17. She stated that the lights , were controlled by a switch that was not l o c d i the conidor, and that Unisys had never n received any complaints about the lights. Id. at 48,55. Rube1 also stated that she was unaware whether or not NYCHA was responsible for prfonning cleaning and maintenance work in the temporary ingresdegress corridor. Id. at 49-51 . The court notes, however, that the electrical contracting agreement thnt Unisys submitted along with is moving papers was actually executed t by Unisys and URS - not NaviIlus - and h i t it incorporates the entire LIRSLiro contract by reference, including subparagraph 12.1.2, set forth mpra. See Notice of Motion (motion sequence number OOZ), Exhibit N. Beltrm initially commenced this action on July 27,2008, and eventually filed a third amended complaint that sets forth one cause of action for negligence on behalf of himself, and one cause of d o n far loss of consorthm on behalf of his wife, Yajahira Beltran. See Notice of Motion (motion sequence number 0011, Exhibit A. That complaint spccifies that Beltran bases his claim on principles of common-law negligence andor defendants’ purported violations of Labor Law $4 200 andor 241 (6). Id., 7 25. Navillus and URS filed ajoint answer to the third mended complaint on May 24,201 0 that includes afFirmative defenses and cross claims for: 1) contribution; 2) common-law indemnification; 3) contractual indemnification; and 4) breach of contract. Id.; Exhibit B. The Liro defendam filed their answer on April 7,2009, they also and set forth affirmative defenses and cross claims for: I) coxltractual indemnification, and 2) breach of contract. See Notice of Motion (motion sequence number 003), Exhibit B. Unisys claims to Page 8 of 25 [* 10] have filed its answer on July 8,2010, although it hm not annexed a copy ofthat answer to its moving papers, and it is unclear what, if any, cross claims Unisys has raised herein. See Notice of Motion (mution sequence number 002), Fee& Affirmation, 7 7. Now before the court are defendants’ three motions for summary judgment to dismiss Beltran’s complaint, as well as m y cross claims (motion sequence numbers 001,002 and 003). DISCUSSION When seeking mmmary judgment, the moving party bears thc burden of proving, by competent, admissible evidence, that no material and triable issues of fact exist. See e.g. Winegrad v New York Univ. Med Clr., 64 NY2d 851 (1985); SoRolow, Dunaud Mercadier & Currerm Y Lacher, 299 An2d 64 (1st Dept 2002). Once this showing has been made, the burden shifls to the pasty opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a t r i a l of the action. See e.g. Zuckeman Y City ofNew Yurk, 49 NY2d 557 (1 9 0 ;Pemberion v New York City fi, 8) A u h , 304 An2d 340 (1 * Dept 2003). After mefid consideration, the court h d s that all t r e he motions should be granted i part and denied in part. For reasons of brevity, and in order to n avoid needless repetition, the court will discuss the parties’ respective arguments together rather than treating cnch motion separately, except where individual discussion is necessary. I their motion, Navillus and URS first argue that so much of Beltran’B negligence claim n as is based on a purported violation of Labor Law $241 (9must be dismissed, because Beltrtln was not engaged i activities protected by that statute at thc time he WELS injured.‘ See Notice of n ’ The other two set3 of defendants also join i this argument. See Notice of Motion n (modon sequence number OOZ), Feehan Affmmtion, 7 25; Notice of Motion (motion sequence Page9of 25 [* 11] Motion (motion sequence number OOl), Fink Afiirmation, 4246. Defendants cite the decision of the Appellate Division, First Department, in Peluso v 69 Tiernam Owners C u p . (301 AD2d 360 [lSt Dept 20031) to illustrate the longstanding rule that routine repair work on an elevator, as opposed to “construction, excavation or demolition” work in the building that the elevator occupies, is not a covered activity within the meaning ofLabor Law 4 241 (6). Here, Beltran stated in his deposition testimony that he had bbcn “dispatched to repair an elevator”at the building, and that his job consisted only of elevator maintenance and repair work, not construction andlor installation. See Notice of Motion (motion sequence numbcr OOl), Exhibit C,at 28,58. Finally, B e l m does not oppose defendants’ argument anywhere in his responsive papers. Therefore, the court deems that he has conceded the argument, and finds that so much of Baltmn’s complaint as is based on defendants’ purported violation of Labor LAW 0 241 (6) should be dismissed. Accordingly, the court grants so much of cnch of the instant motions as seeks such relief. Navillus and U R S next argue that so much of Beltran’s negligence cIaim as is based on principles ofcommon-law negligence and/or a purported violation of Labor Law 4 200 must also be dismissed, because they neither clirectcd nor controUed his work, andlor because they lacked actual or constructivenotice of the wet condition i thc temporary hpsdegms corridor that n allegedly caused his injuries? See Notice of Motion (motion sequence number OOl), Fink number 003), Mmorandum or Law, at 2-5 (pages not numbered). 2 Unisys again j o b in NaviUu’s and U R S ’ s dismissal arguments. See Notice of motion (motion sequmce number 002), Feehan Affirmation, fl21-24,26. The Liro defendants raise separate arguments, however, which will be discussed infiu. Page 10 of 25 [* 12] I # A b t i o n , lfl47-52. As will be discussed, this two-part argumtnt actually involves separate legal issues that must be addressed individually. The Appellate Division, Second Department, has observed that: Labor Law 3 200 (1) is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work ... Cases involving Labor Law 6 200 falI into two broad categories: namely, those where workem me h j w d as a result of dangerous or defective premises conditions at a work site, and those involving the manner i which the work is n performed. These two categories shodd be viewed i the disjunctive. n Where n premisescondition is nt issue, property owners may be held liable for a violation of Labor Law 8 200 if the owner either created the dangerous condition that caused the accident or had actual or constructivenotice of the dangerous condition that caused the accident. By conkas< whcn the manner of work is at issue, “no liability will attach ta the owner solely because b e or she] may have had notice of the allegedly unsafe manner i which work was performed.” Rather, when a claim arises out of n alleged defccts or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law $200 unless it is shown that the party to be c h g c d had the authority to supervise or mntrol the performance of the work [internal citations omitted]. (Ortega v Puccia, 57 AD3d 54,61 (2d Dept 2008); also Makarius v. Port Authoriw of New York and New Jersey, 76 A.D.3d 805 [lU Dept 20103 app wdn 15 N.Y.3d 951 [2010]). H r ,Navillw ee and URS argue that Beltran cannot establish Liability under either of the foregoing theories. First, with respect to ‘ h a ~ n e of work,” NaviIIus and URS argue that they did not r supervise or control Bellran i the performance of his job duties, because the teTaporary n ingress/cgress corridor was under NYCHA’s exclusive control at the time Beltran was injurod.’ See Notice of Motion (motion sequence number OOI), Fink Affirmation, T[1[ 4748. They cite the Unisys joins in this portion of Navillus’s and URS’s argument,as do the Liro defendants. See Notice of Motion (motion scqucnce number 002), Feehan AfT~mtion, 9; 7 Notice of Motion (motion sequence number 009,Memorandum of Law, at 5-12(pages not numbered). Page 11 of 25 [* 13] L 0 Court of Appeals decision i Rizzuto v L.A. Wenger Conk Co. (91 NY2d 343,352 [1998]) for n the general rule that “an implicit precondition to [determining that a duty of care exists] is that the party to be charged with that obligation ‘have the authority to control the activity bringing about the injury to enable it to nvoid o correct a unsafe condition [internal citation omitted].”’ r n Navillus and URS then refer to the deposition testimony of Kelly, Mazer, Karmel and Rubel, which - they assert - establishes that work on the temporary ingresdcgress corridor had been “completed,” &or “sipcd off on,”and the area transferred to NYCHA’s exclusivc control. See Notice of Motion (motion sequence number OOl), Fink Afhmation, 7 48. Beltran responds that neither the deposition testimony, nor any of the extant documentary evidence, establish= either of these points, and argues that it is actually unclear whether NYCHA had formally “signed off on” or accepted exclusive control of the temporary ingadegress corridor, or whether work i that corridor had,i fact, been completed. See Lynch Affirmation i n n n Opposition, at 13-15 (pages not numbered). Beltran also notes that the corridor still had tempormy partition walls and temporary lighting at the time of his accident, which, he asserts, i s evidence that work on the corridor had not been completed. Id. Navillus and URS reply that “all defendants ... unequivocally testified that,at the time of the incident, control over the subject ingrcss/egress [corridor] was turned over to NYCHA.” See Weisburd Reply Afimation, 17. In a second round of opposition papers, Beltran further argues that Acevedo’s deposition tcslimony and his February 17,200 1 affidavit both establish that contractors’ workers were responsible for cleaning up after themselves in the temporary ingresdegress corridor. See Lynch Af€irmationin Further Opposition at 2-3 (pages not numbered). Navillus and URS reply that Acevedo’s Page 12 of 25 [* 14] 1 c deposition testimony on this p i n t actually contradicts his February 17,2001 affidavit, and argue that the court should reject that deposition testimony as a “feigned issue of fact.” See Fink Supplemental Minnalion i Support, f l l 6 - 1 8 . However, upon review, the court fm& that all n of these arguments are misplaced. As the Appellaie Division, First Department, has frequently observed, where a M o r Law 5 200 claim is based on alleged defects or dangers arising horn a contractor’s methods or materials, liability cannot be imposed unless it is shown that a owner or gcneral contactor n exercised some supervisory control over the work. See e.g. McGar~y CVP I LLC, 55 AD3d Y 441 (1‘ Dept 2008);Hughes v TfshmanConstr. Corp., 40 AD3d 305 (1” Dept 207). Here, however, all of defendants’ arguments are centered on the claim that they did not have any control over the work site (k, temporary ingresdegress corridor) where Bcltran was injured. the Thus, all of their arguments miss the point. There is no evidence in either Bcltran’s or defendants’ deposition testimony that any of the defendants herein possessed the right to supervise or control Belaan in the manna i which he performed his elevator repair duties. n Because such evidence does not exist, the court finds that defendants’ “means and method” arguments are inapposite. Instead, it is clear that defendants’ potential liability to Beltman herein pursuant to Labor Law 8 200 tums solely upon a “dangerous or defective premises conditiorf’ analysis, which the court will review next. hi the portion of their motion devoted to this analysis, Navillus and URS f i s t argue that Beltran’s claim should bc dismissed on the ground that they had “neither actuaI nor constructive Page 13 of 25 [* 15] notice of the alleged defects (water on the floor and lack of light).’“ See Notice of Motion (motion sequence number 0011, Fink Affirmation, fl49-52. With mpect to the former (i-e., actual notice), Navillus and URS note that all of thc witncsscs that were deposed herein specifically denied having had actual notice of either water on the floor, or broken lights on the ceiling, in the temporary i n ~ s s / c l p w s corridor at the t m of Beltran’s accident. Id., 1 50; ie Exhibits E at 59-61, F at 33-36, G at 65-69, H nt 48. Beltran raises two arguments in opposition to this assertion. Beltran first responds lhat “defendants’ [actual] notice can be inferred because they created the dangerous and unsafe condition[s] i the corridor.” See Lynch Affirmation in n Opposition, at 15 @ages not numbered). The court again fmds that this argument is misplaced. To reiterate, “[w]here a premises condition is at issue, property owners may be held liable for a violation of Labor Law $200if the owner either created the dangerous condition that caused the accident or had actual or constnrctive notice of the dangerous condition t & caused the accident h [emphasis added].” Ortega v Pucciu, 57 AD3d at 61. Proof that a defendant created a dangerous or defective condition does not give rise to an inference of actual notice; it simply constitutes proof that the defendant created the dangerow or defective condition, which is itself suflicient evidence to impose liability under Labor Law 6 200 pursuant to a “dangerous or defective premises condition” analysis. Here, however, Beltran’s only proof that defendants created the subject conditions are his conclusory, unsupported assertions that “it is undisputed that the Although UDjsys joins i with this portion of Navillus’s and URS’s motion, it also n presents its own arguments on the issue of notice, as do the Liro defendants. Those arguments will bc discussed infra. Page 14 of 25 [* 16] defendankq were performing work i tbe lobby of [the] building and that this work required the n use of water,” and that he, Angarita and Acevedo had all observed a leaky hose in the temporary ingresdegress corridor on prior occasions and knew that Navillus, URS andor the Liro de1endaats were responsible for placing it there. See Lynch Affmnation in Opposition, at 15 Cpages not numbered). This is simpIy not borne out by the deposition testimony. Kelly, Mazar and K m e l all testified that they were either unaware of the usc of such hoses or had not seen any hoses at the sitc of Beltran’s accident. See Notice of Motion (motion sequence number OOl), Exhibits E at 59-61, F at 33-36, G at 65-69. “hus, the evidence reveals a disputed issue of fact on the issue of who created the dangerouddefective water leak condition that caused Beltran’s injury. With respect to the other allegedly dangerouddefectivc condition {ie., inadequate lighting), Beltran raisw no argument as to how IJnisys might bave caused the purprted problem, and Unisys denies that the lights were in any way defective. See Notice of Motion (motion sequence number 002), Feehan Affirmation, 7 24. Therefore, the court rejects, as unsupported, Beltran’s claims that t h e defendants created either of the two allegedly dangerous/defective conditions in the temporary ingresdegress corridor. Beltran next argues for the application of the d e , enunciated by the Appellate Division, Fourth Department, in its non-labor Law decision in Wellsr v CoZZeges of the Seneca (217 AD2d 280,285 [4* Dept 1995]),that, “if the defendant has a duty to conduct rcasonabIe inspectiom, the issue of actual or constructive notice is irrelevant." See Lynch m t i o n in Opposition, at 16- 17 (pages not numbered). However,Beltran’s supporting assertion, that “each ofthe defendants admitted that they were, at least i part, responsible for site safety,” is not n Page 15 of 25 [* 17] I. “ 0 helpful to his argument, because - as was previously observed - each of those defendantshas also disputed hat they were responsible for inspecting or cleaning the temporary irtgresdegress corridor where Beltran was injured FuTther, Beltran has not identified any conQactual provisions that delineate each defendants’ site inspection,maintenance and cleaning responsibilities. Finally, Beltran does not state how this argument applies to Unisys, which compIetely denied any responsibility for inspecting or maintaining the lights that it had installed. See Notice of Motion (motion sequcnce number 002), Feeban Affirmation,7 24. Therefore, the court also rejects this argument as unsupported- Accordingly, the court finds that defendant, havc adequately demonstrated that they lacked actual notice of the subject conditions. With respect to the issue of constructive notice, NavilIus and URS argue that “there is no evidence that the water on the floor of the ingradegrass corridor existed for an amount of time s&icicnt t provide cor~~&~ctive o notice.” See Notice of Motion (motion sequence number OOl), Fink Affirmation, 7 5 1. Beltran responds that his and h g a r i t a ’ s deposition testimony, that the leak fiom the hose was slow, and the puddle in the corridor was large, permit the conclusion to be drawn that %e drip must have remained undiscovered for a significant period of h e . ” See Lynch AEfirmation i Opposition, at 17-18 @ages not numbered). Upon consideration, the court n finds for Beltran for reasons set forth below. The law is claar that, i order to constitute constructive notice, a defect must be visible n and apparent, and must exist for a sufficient length of time prior to a plaintiff‘s accident to permit a defendant’s employees to discover and remedy it. Gordon Y American Museum o Nafurul f History, 67 NY2d 836,837 (1986). Fwtkr, a general awareness that a dangerous condition may Page 16 of 25 [* 18] be present is legally insufficient to charge a defendant with constructive notice. Id. at 837. Ha, as prcviously mentioned, there is deposition testimony from Acevvedo and Kame1 stating that, on previous occasiom, contractors had run a hose from the trash compactor room located i the n temporary ingresdtlycss corridor to other work sites in the building. See Fink Supplemental Affirmation i Support and Reply, Exhibit €3 (Acevedo deposition), at 55-58; Notice of Motion n (motion sequence number OOl), Exhibit G, at 65-69.This would tend to support Beltran’s contention, thnt the water that leaked from the hose onto the corridor iloor was an “ongoing and recurring dangerous condition.” Also, although neither Navillus nor UKS is the building’s landlord, section 12.1.2 of the contract &tween NYCHA and URs/Liro (which was incorporated into the subsequent contract between URS and Navillus) imposed a duty of care on Navillus and URS “during the perfumance ofthe Work and up to the date of Final Accept~nce,” which duty was equivalent to that of a landlord. See Notice of Motion (motion sequence number OOl), Exhibit L. Thus, i thc absence of any cogent argument to the contrary, the court rejects n Navillus’s and URS’s assertions and fmds that Beltran’s claim against them for violation of principles of common-law negligenceLahr Law cj 200 may proceed on the theory of CnnStruCtivenotice. In its motion, Unisys argues that Beltmn has presented no evidence of either how long the lights i the temporary ingresdegress corridor were out prior t his accident, or that Uxlisys ever n o received any prior complaints about the condition of the tights. &e Notice of Motion (motion sequence number O Z , E’eehan Affirmation, 24. Beltran does not respond to this argument i O) n his opposition p a p a . For its part, the court notes that Rubel testified that the lights were Page 17 of 25 [* 19] Liro defendants or the apesnenl between U R S and the Lira defendants. This claim is also at odds with the deposition testimony of Kelly, who denicd that different portions of the building had been assigned as the exclusive responsibilityof either URS o the Liro defendants. See r Notice of Motion (motion sequence number 003), Exhibits J, K, L (Kelly deposition tmnmipt), at 49-50. Thus, the court rcjccts the Liro defendants’ contentions, and finds that the evidence at hand presents m issue of fact with respect to which of the defendants - if any - was responsible for using the hose that caused the water leak i the tempomry ingresdegress corridor. n As a final matter, the Liro defendants argue that Beltran’s common-law negligencdlabor Law 5 200 claim should be dismissal because he was not injured at a ‘*work site,” as the statute rcquires, but in the temporary ingresdegress corridor (adjacent to the work site) that had been turned over ta NYCHA. See Notice of Motion (motion sequence number 003), Memorandum of Law, at 4-5 @ages not numbered). However, there are also open questions of fact as to whether work had been completed in the corridor, and whethcr NYCHA had accepted control over the corridor. Certainly, defendants have Mdto produce: the “substantial completion punch list” e that Karmel rcferred to i his deposition testimony as proof that NYCHA had accepted the n corridor prior to the “final acceptance datc” of the work. Therefore, there is no factual basis for the Liro defendants’ “work site” argument, and the court rejects it. I conclusion, the court dmies so much of alI three of the instant motions as seeks to n dismiss thc portion af Belttan’s common-law negIigenceLabor Law $200 claim that is based on a theory uf constructive notice. In the balance of the three instant motions, the parties seck dismissal of the various Page 19 of 25 [* 20] controlled by a switch that ws located outside of the corridor. See Notice of Motion (motion a sequence number OOl), Exhibit H, at 55. From this,the court concludes that it is impossible to decide with any certainty either why the lights were out, how long they were out prior to Beltran’s accident or who might have turned t e out. Therefore, the court cannot h d that the hm allegedly inadequate lighting in the temporary ingresdegress corridor was an “ongoing and rccurring dangerous condition.” However, at this juncture, this issue of fact does not mandate dismissal of Beltran’s common-law negligenmhbor Law 5 200 claim against Unisys on the theory of constructive notice. That determination will be made at trial after prcscntation of all the evidence. I the portion of their motion addressing the “constructive notice” is.we, the Lira n defendants argue that the deposition testimony shows that they never received any complaints about water in the temporary ingresdegress corridor, and that “there is no evidence of how long the water condition pasisted.” See Notice of Motion (motion sequence number 003), Memorandum of Law, at 20 (pages not nmbcred). The court rejects these arguments, since it has already found that thc water lcak was, by nature, a %ngoing and recurring dangerous n condition.’’ Thcrefore, the court concomitantly fmds that Belkan may proceed with his common- law ncgligence/I,abor Law $200 claim against the Liro defendants on the theory of constructive notice. The bulk of the Liro defendants’ motion is devoted to the argument that they owed Beltm no duty of care because they were not responsible for performing any work i the n temporary ingresdegress corridor, and were only cuntracted to perform lobby renovations. ‘I’his claim is not, however, supported by the terms of either the contract between NYCHA and the Page 18 of 25 [* 21] Liro defendants or the agreement between U R S and the Liro defendants. This claim is also at odds wt the deposition testimony of Kelly, who denied that diffcrent portions of the building ih had been assigned as the exclusive rwponsibility of either U R S or the Liro defendants. See Notice of Motion (motion sequence number 003), Exhibits J, K, L (Kelly deposition M p t ) , at 49-50. Thus,the court rejects the Liro defendants’ contentions, and finds that the evidence at hand p s e n l s an issue of fact with respect to which of the defendants - if any - was responsible for using the hose that caused the water leak in the tempomry ingresdegress corridor. As a final matter, the Liro defendants argue that Beltran’s common-law negligencdabor Law Q 200 claim should be dismissed because he was not iujured at a ‘%work site,” as the statute requires, but in the temporary ingresdegress corridor (adjacent to the work site) that had been turned over to NYC€€A. See Notice of Motion (motion sequence number 003), Memorandum of Law, at 4-5 @ages m nutnbcred). However, there are also open questions of fact as to whether t work had been completed in thc corridor, and whcther NYCHA had accepted control over the corridor. Certainly, dcfendants h a w failed to produce the “substantial completion punch Est” that Karmel referred to in his deposition testimony as proof that NYCHA had accepted the corridor prior to the “final a c q t a n c c datc” of the work. Therefore, there is no factual basis for the Liro d e f m h t s ’ “work site” argument7and the court rejcctq it. In conclusion, the court denies so much of all t h e e of the instant motions as seeks to dismiss the portion of Beltran’s common-law negligence/LaborLaw 9 200 claim that is based on a theory of consh-uctive notice. I the balance of the three instant rnotiom, the parties seek dismissal of the various n Page 19 of 25 [* 22] counterclaims and cross claims tbat th0y have asserted agninst each other. As previously mentioned, Navillus’s and URS’s joint answer sets forth cross claims for: 1) contribution; 2) common-law indemnification; 3) contmtuaI indemnification; and 4) breach of contract; while the Liro defendants’ answer includes cross claims for: 1) contractual iadcrnnification, and 2) breach of contract. See Notice of Motion (motion sequence number OOl), Exhibit B; Notice of Motion (motion sequence number 003), Exhibit B. As was also preGously mentioned, Unisys has rlot submitted a copy ofits answer, so it is unclear whether Udsys has asserted any cross claims herein. However, Unisys’s moving papcrs are devoid of any argument as to why my putative cross claims should survive. Therefore, as an initial matter, the court finds that my such cross claim by Unisys should be dismissed on default. With respect to the other co-defendants’ breach of contract claims, the respective parties assmt that their codefendants Gomnitkd such breaches by failing to obtain contractually required insurancepolicies. Id. In their moving papers, Navillus and URS and Unisys have each presented copics of the policies that they purportedly failed to obtain. See Notice o f Motion (motion sequence number OOl), Exhibit L; Notice of Motion (motion scqucnct number 0 2 . 0) Thc Lixo defendants, however, have failed not. Therefore, as mother initial matter, the court also frnds that the Liro defendants’ cross claim for breach of contrnct should be dismissed, and that NaviIlus’s and URS’s cross claim for the same relief should not be dismissed. With respect to the contractual indemnificationcross claims herein, all of the co- defendtrnts seek dismissal on the ground that Beltran’s work, i.e., elcvator repair, did not “arise out of’ or c‘occuri connection with” any of the activities that they agreed t indemnify against. n u Pagt20of 25 [* 23] All co-defendants specifically refer to section 13.3.1 of the contract between URS and Navillus, entitled “hdemdficatiori,” which states i relevant part as follows: n Ifthe persons or property of the CM [ConstructionManaget, ix., URS or thc Liro defendants], NYCHA or o k r s sustains loss, damage or injury as a result of the operations of the Contractor [Le., Navilh~s] and/or its subcontractors in the performance of the contract ... the Contractor shall indemnify, defend and hold harmless the CM,NYCHA ... and heir O ~ ~ W C Y , agents, employees, representatives, affiliates,parents and subsidiaries, to the Eullcst extent permissible by law, from any and all claims, demands, causes uf action, damages, costs, expenses, lossm or liabilities, in Lw or i equiv, of every kind and nature whatsoever (including, a n but not limited to, reasonable attomcy’s fees and expenses, and claims made by any employees or agents of .,_ NYCHA) arising out of or occurring i connection with Contractor’s perfonname of the n work ... See Notice of Motion (motion sequence number OOl), Exhibit L. Unisys notes that its contract with URS contains an identically worded provision. See Notice of Motion (motion q u e n c c number OOZ), Exhibit N. The court notes that Article 10 of the contract betwem URS and the Lira defendants also contains an indemnification provision that provides that: A, URS shall defend, indemtlify and hold harmless Liro and its officers, cmployecs, agents and representativcs from and against any and all claims, demands, suits, dnmags, costs, expenses and fees which are or may be asserted against Liro and which arise solely out of the negligent acts or omissions of W and its contractors (of all tiers) that perform services under this agreement. Such defense and indemnification shall not apply in any such instancc and to the extent caused by the negligeacc or misconduct of Liro, or is officers, employees, agents or representatives. t R. Liro shall defend, indand hold harmless URS and its officm, employees, agents end representatives from and against any and all claims, demands, suits, damages, costs, expenses and fms which are or may be awrted against URS and which arise solely out of the negligent acts or omissions of Liro and its contmctors (of all tiers) that perform services under this agreement. Such defense and indemnification shall not appIy i n Page 21 of 25 [* 24] a “tool or material supplied by or needed by defendant to perform its work,” and the holding of Pepe v Centerfor Jewish Hisiury, Inc, would be distinguishsd on the facts. At this juncture, however, it is not possible to determine wt snality if either Navillua or URS was makrng use of ih the hose. Iherefore, an open issue of fact exists that makes it impropcr for the court to grant Navillus’s and UKS’s request for summary judgment at this juncture. Unisys adopts the legal argumcnts that Navillus and URS advanccd i their motion. See n Notice of Motion (motion sequence number OOZ), Feehan Aflknation, 8 27-28. As a fmtd 1 matter, it is evident that U i y - a electrical and lighting contractur - could not have been using nss n the hose that dripped the water that Beltran slipped on. IIowever, as was previously discussed, an open issue of fact exists as to the exact cause ofthe apparent lack of lighting in the temporary ingresdegess corridor (which Beltran alleges contributed to his injury). Because Unisys was most certainly the lighting and electrical contractor at the building, it is clear that the lights in the corridor were a ‘Vml or material supplied by or needed by defendant to perform its work.” Thus, the holding ofPepe v Centerfor Jewish History, Inc. would be distinguished on the facts i n Unisys’s case as well, and it could not avail itself of the “not arising out of rule” enunciated therein. Therefore, the court finds that it would be improper to dismiss the indemnification cross claims against Unisys at this juncture, also. In their motion, the Liro defendants devote a great deal of space to the factual argument that Navillus’s tile work was the only possible activity in the vicinity of Beltran’s accident that rcquked the use of water. See Notice of Motion (motion sequence number 003), Memorandum of Law, at 16-20 @ages not numbered). However, despite the Liro defendants’ argumcnts to the Page 23 of 25 [* 25] contrary, the deposition testimony is inconclusive. There are unresolved issuw of fact about the nature and extent of the Liro defendants’ work in the vicinity of the temporary ingresdegress corridor. For example, at differentjunctures of his testimony, Karmel both admitted and denied that the Liro defendants were performing renovation work in the building’s lobby (where the elevator that Beltran was going to repair was located), and he never stated what that work consisted of. See Notice of Motion (motionsequence number OOl), Exhibit G (Karmel transcript), at 15-26. Further, despite the Liro dofcndants’ mischaracterization of his testimony, Beltran did not identify Navillus as the entity respqnsibla for running the hose that leaked the water into the temporary ingresdegress corridor. Instead, Beltran stated that he did not know which contractor was responsibk for thc hose. Id.; Exhibit C (lkltcau transcript), at 93. Beltran also stated that there was tile work being performed in the building’s lobby which was, apparently, an area where the Lim defendants were performing work. Id. at 93-95. Therefore, the court rejects the Liro defendants’ factual argument, and consequentlyfinds t a ,at this ht juncture, they are also foreclosed from relying on the holding of P e p v Centerfur Jayish IIistuq Inc. to claim that Beltran’s injuries did not “arise out of’ or “in connection with” their work. DECISION ACCORDINQLY,for the foregoing reasons, it is hereby ORDIXED that the motion, pursuant to CPLR 3212, of defendants Navillus Tile, hc., URS Corporation and URS Corporation-New York (motion sequence number 001) is granted solely to the extent of dismissing so much of the complaint as is based on a purported violation Page 24 of 25 [* 26] of Labor Law 9 24 1 (6),and Ihe moss r;laims assexled against said defendants for breach of contract, but is otherwise denied i accordance with the fmdings set forth in this decision; and it n is further ORDERED that the motion, pursuant t CPLR 3212, of defendant IJnisys Electric, Tnc. o (motion sequence number 002) is granted solely to the extent of dismissing so much of the complaint as is based on a purported violation of Labor Law 5 241 (6), and the cross claims assorted against said defendant for breach of contract, but is otherwise denied i accordance with n the findings set forth i this decision; and it is M e r n ORDEED that the motion, pursuant to CPLR 3212, of defendants Liro Enamring and Construction Management and Liro Program and Construction Management PE, PC (motion sequence numlxr 003)is granted solely to the extent of dismissing so much of tho complaint as is based on a purported violation of Labor Law 5 241 () but is otherwise denied in accordance 6, with the findings set forth in this decision; and it is further ORDERED that this case is ready Tor trial after tha upcoming mediation; nnd it is further ORDERED that plaintiff shall setve a copy of this decision on the Mediator and on the Office of Trid Support so the case can be scheduled; and it is further ORDEED that the balance of this a d o n shall continue. Dated: New York, New York April 2,2012 ENTER: Page 25 of 25