Musso v 1251 Ams. Assoc., II, L.P.

[*1] Musso v 1251 Ams. Assoc., II, L.P. 2016 NY Slip Op 50007(U) Decided on January 6, 2016 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 6, 2016
Supreme Court, Kings County

Peter Musso, Plaintiff(s),

against

1251 Americas Associates, II, L.P., LLOYDS TSB BANK PLC, ARAGON CONSTRUCTION COMPANY, INC., FINEST PAINTING & DECORATING INC. and CUSHMAN & WAKEFIELD, INC., Defendant(s). CUSHMAN & WAKEFIELD, INC., Third-party Plaintiff(s), POLO ELECTRIC CORP., Third-party Defendant(s). 1251 AMERICAS ASSOCIATES, II, L.P., LLOYDS TSB BANK PLC, ARAGON CONSTRUCTION COMPANY, INC., Second-Third-party Plaintiff(s), ESS & VEE ACOUSTICAL CONTRACTORS, INC., Second-Third-party Defendant(s). FINEST PAINTING & DECORATING INC., Third-Third-party Plaintiff(s), ESS & VEE ACOUSTICAL CONTRACTORS, INC., Third-Third-party Defendant(s). ESS & VEE ACOUSTICAL CONTRACTORS, INC., Fourth-Third-party Plaintiff(s), BELLO CONSTRUCTION, INC., Fourth-Third-party Defendant(s). 1251 AMERICAS ASSOCIATES, II, L.P., LLOYDS TSB BANK PLC, ARAGON CONSTRUCTION COMPANY, INC., Fifth-Third-party Plaintiff(s), BELLO CONSTRUCTION, INC., Fifth-Third-party Defendant(s). FINEST PAINTING & DECORATING INC., Sixth-Third-party Plaintiff(s), BELLO CONSTRUCTION, INC., Sixth-Third-party Defendant(s).



3436/11



Attorney for Plaintiff

William Schwitzer & Associates, PC

112 Madison Avenue

New York, New York 10016

(212) 683-3800

Attorneys for Defendants/Second and Fifth Third-Party Plaintiffs

William G. Kelly, Esq.

Goldbery Segalla LLP

11 Martin Avenue

White Plains, NY 10606-1934

(914) 798-5475

Attorneys for Fourth/Fifth and Sixth Third-Party Defendant

Armienti, Debellis, Guglielmo & Rhoden

170 Old Country Road, Suite 607

Mineola, New York 11501-4313

(516) 877-1202

Attorneys for Defendant/Third and Sixth Third-Party Plaintiff Morris, Duffy, Alonso & Faley

2 Rector Street

New York, New York 10006

(212) 766-1888

Attorneys for Defendants/First/Second and Fifth Third-Party Plaintiffs

Law Offices of Edward Garfinkel

12 Metrotech Center, 28th Floor

Brooklyn, New York 11201

(718) 250-1100

Attorneys for Second/Third-Party Defendant and Fourth-Party Plaintiff

Sclar Adler LLP

120 West 45th Street Suite 605

New York, New York 10036-4062

(646) 494-2363
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of defendant/third third-party plaintiff/sixth third-party plaintiff Finest Painting & Decorating, Inc., filed on May 29, 2015, under motion sequence number seventeen for an order (1) pursuant to CPLR 3212 granting summary judgment dismissing the complaint and directing judgment in [*2]favor of Finest Painting & Decorating, Inc. or in the alternative (2) pursuant to CPLR granting summary judgment in favor of Finest Painting & Decorating, Inc. against 1251 Americas Associates, II, L.P., Aragon Construction Company Inc., Ess & Vee Acoustical Contractors, Inc., and Bello Construction, Inc., on its cross claims and third-party claims.

- Notice of Motion

- Affirmation in Support

- Memorandum of Law

- Exhibits A - T

- Affirmation in Opposition of Bello Construction, Inc.

- Affirmation in partial opposition of Ess & Vee Acoustical Contractors, Inc.

- Affirmation in Opposition of Plaintiff

- Reply Affirmation of Finest Painting & Decorating, Inc.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of the fourth, fifth and sixth third-party defendant Bello Construction Inc., filed on June 3, 2015, under motion sequence number nineteen, for an order (1) pursuant to CPLR 3212 granting summary judgment in its favor and dismissing the fourth-party, amended fifth-party and sixth party summonses and complaints of Ess & Vee Acoustical Contractors, Inc., 1251 Americas Associates, II, L.P., Lloyds TSB Bank PLC, Aragon Construction Company, Inc., and Finest Painting & Decorating, Inc. and (2) pursuant to CPLR 3212 granting summary judgment and dismissal of cross claims asserted against Bello Construction Inc.

- Notice of Motion

- Affidavit in support

- Exhibits A-DD

- Affirmation in opposition by Finest Painting & Decorating, Inc.

- Affirmation in opposition of Plaintiff

- Affirmation in partial opposition of Ess & Vee Acoustical Contractors, Inc.

- Reply of Bello Construction Inc.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of the second/third-party defendant and fourth-party plaintiff Ess & Vee Acoustical Contractors, Inc. filed on June 29, 2015, under motion sequence number twenty, for an order moves for (1) an extension of time to file a summary judgment [*3]motion;[FN1] (2) pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff's complaint and directing Judgment in favor of Ess & Vee Acoustical Contractors, Inc. on the issue of liability or in the alternative; (3) pursuant to CPLR 3212 directing judgment in favor of Ess & Vee Acoustical Contractors, Inc. against 1251 Americas Associates II, L.P., Aragon Construction Company, Inc., Finest Painting & Decorating Inc., Lloyds TSB Bank PLC, Cushman & Wakefield, Inc., and Bello Construction, Inc.

- Notice of Motion- Memorandum of Law- Affirmation in support- Exhibits A-U- Affirmation in opposition by Finest Painting & Decorating, Inc.- Affirmation in opposition by Bello Construction, Inc.- Affirmation in Opposition of Plaintiff- Reply Affirmation of Ess & Vee Acoustical Contractors, Inc.

BACKGROUND

Plaintiff, Peter Musso (hereinafter plaintiff or Musso) commenced two separate actions for damages for personal injuries arising out of an accident which occurred on March 3, 2008. The first action was commenced against defendants/second and fifth third-party plaintiffs 1251 Americas Associates II, L.P. (hereinafter 1251 Americas), Lloyds TSB Bank PLC (hereinafter Lloyds), and Aragon Construction Company, Inc (hereinafter Aragon) and defendant/sixth third-party plaintiff Finest Painting & Decorating Inc. (hereinafter Finest Painting). The second action was commenced against defendant/first/second and fifth third-party plaintiff Cushman & Wakefield, Inc. (hereinafter Cushman). By order dated September 23, 2011, both actions were consolidated into a single action bearing Kings County Index Number 3436/2011. On or about November 11, 2009, issue was joined by answer with cross-claims by 1251 Americas, Lloyds and Aragon. On or about December 29, 2009, issue was joined by Finest Painting. On or about April 4, 2011, issue was joined by answer with cross claims by Cushman.

The complaint bearing index number 16857/2008 which names 1251 [*4]Americas, Lloyds, Aragon and Finest sets forth fifty-nine allegations of fact in support of two causes of action. The first cause of action alleges general negligence. The second causes of action alleges that the defendants violated Labor Law §§ 200, 240 (1) and 241(6). The complaint bearing index number 16857/2008 asserts two causes of action against Cushman and Wakefield. The first cause of action is for general negligence and the second alleges violations of Labor Law §§ 200, 240 (1) and 241 (6).

A review of the consolidated complaint, third-party complaint and amplified by the bill of particulars allege that on March 3, 2008, plaintiff suffered injuries when he slipped and fell on a liquid while descending from a ladder. At the time of the incident plaintiff was performing construction work at 1251 Avenue of the Americas, New York, New York (hereinafter the premises) as an employee of Polo Electric Corp., (hereinafter Polo).

The plaintiff's complaint and third-party complaints allege that during the relevant time period the premises was owned by 1251 Americas; Lloyds was a tenant of the premises; Cushman was the managing agent of the premises; Aragon was the general contractor at the premises. Finest Painting was a subcontractor that performed painting work at the premises. ESS and VEE Acoustical Contractors, Inc. (hereinafter Ess & Vee) was a subcontractor that performed sheet rock work at the premises. Bello Construction, Inc. (hereinafter Bello) was a subcontractor that performed taping work.

On or about October 5, 2012, Cushman commenced a third-party action against Polo. Polo has not answered or otherwise appeared in this action to date.

On or about December 17, 2012, 1251 Americas, Lloyds and Aragon commenced a second third-party action against second/third third-party defendant and fourth third-party plaintiff Ess & Vee. On or about March 1, 2013, Ess & Vee interposed an answer with counter claims to the second third-party complaint.

On or about April 18, 2013, Finest Painting commenced a third third-party action against Ess & Vee. On or about May 3, 2013, Ess & Vee interposed an answer with counter claim to the third third-party complaint.

On or about April 11, 2013, Ess & Vee commenced a fourth third-party action against fourth/fifth and sixth third-party defendant Bello. On or about July 30, 2013, Bello interposed an answer with a counterclaim to the fourth third-party complaint.

On or about June 12, 2013, 1251 Americas, Lloyds and Aragon commenced a fifth third-party action against Bello. On or about September 4, 2013, Bello interposed an answer with a counter claim to the fifth/third-party complaint.

On or about August 21, 2013, Finest Painting commenced a sixth third-party action against Bello. On or about October 15, 2013, Bello interposed an answer with a counterclaim to the sixth third-party complaint.

On or about September 10, 2013, 1251 Americas, Lloyds and Aragon amended the second third-party summons and complaint to add Cushman as a named second third-party plaintiff. On or about October 28, 2013, Ess & Vee interposed an answer with counterclaims to the amended second third-party complaint.

On or about September 10, 2013, 1251 Americas, Lloyds and Aragon amended the fifth third-party summons and complaint to add Bello as a named fifth third-party plaintiff. On or about March 24, 2014, Bello interposed an answer with a counterclaim to the amended fifth third-party complaint.

By notice of motion dated June 29, 2015, 1251 Americas, Lloyds, Aragon and Cushman moved for summary judgment against the plaintiff to dismiss the complaint in their favor on the cause of action for contractual and common law indemnification as against Ess & Vee and Bello, under motion sequence number eighteen. The three instant motions, motion sequence numbers seventeen, nineteen, and twenty, as well as motion sequence eighteen were orally argued on October 2, 2015.

By order dated October 2, 2015, the Court partially resolved the motions as follows: Plaintiff withdrew the claims under Labor Law § 240 (1) and all of the Labor Law §241 (6) claims except for 22 NYCRR 23-1.7., as to all defendants. 1251 Americas, Lloyds, Aragon and Cushman's motion to dismiss the Labor Law §§ 200 and 241 (6) under 22 NYCRR 23-1.7 and common law claims was denied for failure to make a prima facie showing. 1251 Americas, Lloyds, Aragon and Cushman's motion for contractual and common law indemnification was denied. Motion sequence seventeen, nineteen and twenty were reserved for decision.

LAW AND APPLICATION

Summary Judgment

Ess & Vee's summary judgment motion to dismiss the main complaint

As a preliminary matter the Court will address the procedural aspect of Ess & Vee's motion which seeks summary judgment dismissing the plaintiff's complaint pursuant to CPLR 3212. Ess & Vee is not a direct defendant in the plaintiff's complaint. Accordingly, there are no direct allegations of fact or causes of action in the complaint against Ess & Vee. As the burden on a summary judgement motion is to eliminate triable issues of fact regarding the allegations of liability made by the plaintiff in the pleadings, the motion by Ess & Vee begs the question as to whether a third-party may move to dismiss the original complaint.

CPLR 1008 provides that a non-direct defendant may move to dismiss the main complaint. In fact, CPLR 1008 confers on a third-party defendant "any defenses which the third-party plaintiff has to the plaintiff's claim." In other words, the third-party defendant may seek to avoid third-party liability to the defendant by defeating the plaintiff's claim against the defendant. He may interpose defenses available to the main defendant even if the latter has waived such defenses, either intentionally or inadvertently. The one exception are jurisdictional defenses which must be raised by the individual defendant (see Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 1008). Accordingly, Ess & Vee may move to dismiss the plaintiff's complaint even though the plaintiff has not asserted any claims directly against [*5]Ess & Vee. Ess & Vee's burden is to make a prima facie showing that all direct defendants, who are bringing third-party actions against Ess & Vee, must have plaintiff's direct claims against them dismissed.

In the instant matter all of the movants seek summary judgment. Ess & Vee seeks summary judgment dismissing the plaintiff's complaint. Finest Painting seeks summary judgment dismissing the plaintiff's complaint and in its favor on the third-party complaints which seek indemnification. Bello seeks summary judgement to dismiss the third-party complaints of Ess & Vee, 1251 Americas, Lloyds, Aragon and Finest Painting.It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72, 790 NE2d 772 [2003]). The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings (Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d at 324). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]).

A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated For Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

As a preliminary matter, Finest Painting, Ess & Vee and Bello all assert that the plaintiff did not know what he slipped on and, accordingly, the complaint should be dismissed because it is based on speculation. In support of this argument plaintiff's deposition testimony was submitted. As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense" (see Mennerich v Esposito, 4 AD3d 399 [2nd Dept 2004]). An exception to the general rule is when the plaintiff is unable to identify the cause of his fall. In such a case, plaintiff's inability to identify the cause of the fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be [*6]based on speculation (DeForte v Greenwood Cemetery, 2014 NY Slip Op 00958 [2nd Dept 2014]; DiLorenzo v S.I.J. Realty Co., LLC, NYS2d, 2014 WL 943024 [2nd Dept 2014] citing Deputron v. A & J Tours, Inc., 106 AD3d 944, 945 [2nd Dept 2013]; Izaguirre v New York City Tr. Auth., 106 AD3d 878 [2nd Dept 2013]; Racines v Lebowitz, 105 AD3d 934 [2nd Dept 2013]; Patrick v Costco Wholesale Corp., 77 AD3d 810 [2nd Dept 2010]). Plaintiff's testimony does not support Finest Painting, Ess & Vee and Bello's argument that plaintiff does not know what he fell on or that he is speculating as to the cause of his fall.

Labor Law § 241 (6) specifically 22 NYCRR 23-1.7 (d)

In the instant action the plaintiff alleges that there was a dangerous condition that caused his accident, specifically, water on the floor. He does not claim he was provided a dangerous or defective means of work. Plaintiff's alleges that section 23-1.7 (d) of the Industrial Code, which prohibits owners and employers from letting workers use "a floor, ... scaffold, platform or other elevated working surface which is in a slippery condition" and requires that water and other "foreign substance[s]" which may cause slippery footing be removed or covered was violated (see Cappabianca v Skanska USA Building, 99 AD3d 139 [1st Dept 2012]).

Section 241 (6) of the Labor Law imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (Combs v New York State Electric & Gas Corp., 82 NY2d 876 [1993]). Labor Law § 241 (6) requires owners and contractors to provide "reasonable and adequate protection and safety" for workers and to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. To establish liability pursuant to Labor Law § 241 (6), plaintiff must plead and prove that a specific violation of the Industrial Code was the proximate cause of his accident (Ross v Curtis-Palmer Hydro Electric Co., 81 NY2d 494 [1993]).

In those instances when Labor Law § 241 (6) applies, the duty to comply with the Commissioner's safety rules, which are set out in the Industrial Code (12 NYCRR), is nondelegable (Misicki v Caradonna, 12 NY3d 511, 515 [2009]). "To support a claim under Labor Law § 241 (6) ... the particular Industrial Code provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles" (Id.). A breach of a duty imposed by a rule in the Code is merely some evidence for the fact finder to consider on the question of a defendant's negligence (Id.). Labor Law § 241 (6) is, in a sense, a hybrid, since it reiterates the general common-law standard of care and then contemplates the establishment of specific detailed rules through the Labor Commissioner's rule-making authority (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]).

To come within the special class for whose benefit absolute liability is imposed, a plaintiff must demonstrate he was both permitted or suffered to work on a [*7]building or structure and that he was hired by someone, be it owner, contractor or their agent (Abbatiello v Lancaster Associates, 3 NY3d 46-51 [2004]; see also Whelen v Warwick Valley Civic & Social Club, 47 NY2d 970 [1979]).

Labor Law § 200

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 (see Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2nd Dept 2000]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Ortega v Puccia, 57 AD3d 54, 61[2nd Dept 2008]). "These two categories should be viewed in the disjunctive" (Id.).

"Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" (Id.; see also Reyes v Arco Wentworth Management Corp., 83 AD3d 47, 51 [2nd Dept 2011]).

"A contractor on a construction site will be liable for an injury caused by a dangerous condition on the site where it created the condition, or where, with sufficient control over the conditions on the site, the contractor failed to remedy the dangerous condition, or to prevent the injured worker's exposure to it, within a reasonable time after the contractor had actual or constructive notice of the condition" (see Nankervis v Long Is. Univ., 78 AD3d 799 [2nd Dept 2010]).

"[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or ... [a] contractor [ ] cannot be had ... unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" (see Ortega v Puccia, 57 AD3d 54, 61 [2nd Dept 2010]). The determinative factor on the issue of control is not whether a [defendant] furnishes equipment but whether he has control of the work being done and the authority to insist that proper safety practices be followed" (Eldoh v Astoria Generating Co., L.P., 81 AD3d 871, 875 [2nd Dept 2011] [quoting Everitt v Nozkowski, 285 AD2d 442, 443-444 [2nd Dept 2001]).

When an accident is alleged to involve defects in both the premises and methods and materials used at the work site, the property owner or contractor is "obligated to address the proof applicable to both liability standards" (see Reyes v Arco Wentworth Management Corp., 83 AD3d 47, 52 [2nd Dept 2011]). A construction manager of the work on the subject premise, may be held liable for a violation of Labor Law § 200 if it created the condition, or where, with sufficient control over the conditions on the site, it failed to remedy the dangerous condition, or to prevent the injured worker's exposure to it, within a reasonable time after it had actual or constructive notice of the condition (see Nankervis v Long Is. Univ., 78 AD3d 799 [2nd Dept 2010]).

[*8]Finest Painting's motion for summary judgment under Labor Law § 200

In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party (Stukas v Streiter, 83 AD3d 180 [2nd Dept 2011]). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Id.).

Finest Painting is a direct defendant and was a subcontractor on the premises. It moves for summary judgment asserting that it neither caused nor created the dangerous condition. In support of the motion the movant has submitted, among other things, five deposition transcripts of five individuals, namely Musso, Todd Vaccaro (hereinafter Vaccaro), Ralph Santarelli (hereinafter Santarelli), Vincent Liguori (hereinafter Liguori) and Gregory Calvello (hereinafter Calvello). Vaccaro was the plaintiff's supervisor and an employee of Polo. Santarelli was an employee of Aragon. Liguori was the principal of Finest Painting. Calvello was an employee of ESS and VEE.

Plaintiff testified that he worked for Polo as an electrician and arrived at the premises on the morning of the accident. Before he began working he saw that the floor was covered with plastic sheets and there was paint debris on the floor. He did not see any water on the floor prior to ascending the ladder. He was in the room approximately forty-five minutes working in the ceiling prior to the accident occurring. As the plaintiff was descending the ladder and reached the ground his right foot slipped on the ground causing him to fall and sustain injuries.

Santarelli testified that he put the plastic on the floor and that no painters were working at the premises. He did not see any paint brushes at or around the site of the accident. He saw a laborer engaged in "taping" on the Friday before the accident occurred and that the taper has a bucket of water with him at that time. He also testified that a taper was there the day before the accident. He testified that there were no other trades at the premises on the date of the accident.

Liguori was not present at the site of the accident and testified upon review of his business records. He testified that based on the business records he concluded that no painting had been performed after February 15, 2008, approximately, two weeks prior to the plaintiff's accident. He also testified that the painters did not work on weekends.

Vaccaro testified that he told a painter to clean up the debris that was on the floor. He also testified that the debris included empty paint cans, paint cans full of water and brushes.

Even assuming that Ligouri's testimony meets the burden to establish that it did not cause the condition and, therefore, shifting the burden to raise a triable issue of fact (Alvarez v Prospect Hospital, 68 NY2d 320—324 [1986]). Vaccaro's testimony raises a triable issue. Finest Painting did not remove all material issues of fact as to whether it was present on the site on the date of the accident nor whether it caused the defect that the plaintiff slipped on. Accordingly, Finest Painting's motion to dismiss the Labor Law § [*9]200 claim is denied.

Finest Painting's Motion for Summary Judgment under Labor Law § 241 (6)

Finest Painting also moves for summary judgment under Labor Law §241 (6) alleging that Finest Painting neither supervised or controlled the plaintiff and accordingly should not be liable under Labor Law § 241 (6).

It is axiomatic that the statutory duties imposed by Labor Law § 241 (6) place ultimate responsibility for safety practices on owners of the worksite and general contractors (Bopp v A.M. Rizzo Electrical Contractors, Inc, 19 AD3d 348 [2nd Dept 2005] citing Russin v Picciano & Son, 54 NY2d 311, 317). It is undisputed that Finest Painting was neither an owner nor a general contractor. Accordingly, in order to prevail on a summary judgment motion it must also establish that it was not a statutory agent of the owner or general contractor (Id., see also Sabato v New York Life Ins. Co., 259 AD2d 535 [2nd Dept 1999]). Finest Painting has submitted the deposition testimony of Liguori and the contract between Finest Painting and Aragon. The deposition transcript and the contract establish that Finest Painting was not an agent of Aragon and accordingly may not be held liable under Labor Law § 241 (6).

In opposition to Finest Paining's prima facie showing the plaintiff has failed to raise a triable issue of fact. Accordingly, the Labor Law § 241 (6) claims are dismissed as to Finest Painting.

Ess & Vee's motion for summary judgment

There are no direct claims of the plaintiff against Ess & Vee. As discussed above, Ess & Vee may move to dismiss the main complaint pursuant to CPLR 1008. It is already established that an issue of fact remains as to the Labor Law § 200 claims in relation to Finest Painting. Also, 1251 Americas, Lloyds and Aragon's motion for summary judgment was denied based on triable issues of fact. Lastly, Ess & Vee has not advanced any arguments different than the direct defendants. As Ess & Vee failed to meet its burden, the Court need not review the sufficiency of the opposition papers (Chiara v Dernago, 70 AD3d 74 [2nd Dept 2010], citing Mannix v Lisi's Towing Serv., Inc., 67 AD3d 977 [2nd Dept 2009]; Smith v Quicci, 62 AD3d 858 [2nd Dept 2009]). Ess & Vee's motion to dismiss the plaintiff's complaint is denied.

Common Law Indemnification

The predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee (Rehberger v Garguilo & Orzechowski, LLP, 988 NYS2d 70 [2nd Dept 2014] citing Konsky v Escada Hair Salon, Inc., 113 AD3d 656, 658, [2nd Dept 2014]). "In order to establish their claim for common-law indemnification, the party seeking common law indemnification is required to prove not only that they were not negligent, but also that the proposed indemnitor was responsible for negligence that contributed to the accident ..." (Benedetto v Carrera Realty Corp., 32 AD3d 874, 875 [2nd Dept 2006]).

[*10]Finest Painting's motion for summary judgment on the common law indemnification

Finest Painting has moved for summary judgment on its third-party complaint seeking common law indemnification against Ess & Vee. However, as discussed herein, Finest Painting has failed to demonstrate that they are not negligent in causing plaintiff's accident as a matter of law, their cross claim for common-law indemnification and contribution against Ess & Vee is premature (Martinez v City of New York, 73 AD3d 993, 901[2nd Dept 2010] citing Nasuro v PI Assoc., LLC, 49 AD3d 829 [2nd Dept 2008]).

Contractual Indemnification

The right to contractual indemnification depends upon the specific language of the contract (Martinez v City of New York, 73 AD3d 993 [2nd Dept 2010] citing George v Marshalls of MA, Inc., 61 AD3d 925, 930 [2nd Dept 2009]). It is well established that when a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed (Hooper Assocs. v AGS Computers, 74 NY2d 487, 491 [1981]). "[A] party who has been held liable to an injured worker solely on the basis of the statutory liability imposed by Labor Law § 240 (1), without any fault on its part, is entitled to recover under a contract of indemnity" (Bermejo v New York City Health and Hospitals Corp., 119 AD3d 500 [2nd Dept 2014]). Further, parties may agree to an indemnification clause that is not limited to claims arising out of the negligence of a party (see Simone v Liebherr Cranes, Inc., 90 AD3d 1019 [2nd Dept 2011]; Tobio v Boston Props., Inc., 54 AD3d 1022, 1024 [2nd Dept 2008]).

"[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Tarpey v Kolanu Partners, 68 AD3d 1099 [2nd Dept 2009] citing Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2nd Dept 2009]; see General Obligations Law § 5—322.1; Hirsch v Blake Hous., LLC, 65 AD3d 570, 571 [2nd Dept 2009]).

Contribution

A cause of action for contribution requires that the culpable parties must be subject to liability for damages for the same personal injury (Nassau Roofing & Sheet Metal v Facilities Development Corporation, 71 NY2d 599 [1988]). The parties need not be liable under the same theories or whether the party whom contribution is sought is allegedly responsible for the injury as a "concurrent, successive, independent, alternative or even intentional tort-feasor" (Id.). Contribution is not founded upon, nor does it necessarily arise from, contract, and only a ratable or proportional reimbursement is sought (McDermott v City of New York, 50 NY2d 211[1980]; McFall v Compagnie Maritime Belge S.A., 304 NY 314 [1952]; Fox v County of Nassau, 183 AD2d 746 [2nd Dept 1992]). Where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy" (Fox v [*11]County of Nassau, 183 AD2d 746 [2nd Dept 1992]). Similarly, a claim for apportionment exists when two or more tortfeasors combine to cause an injury, the resulting loss is to be split among them according to their comparative degrees of fault (Dole v Dow Chem. Co., 30 NY2d 143 [1972]). Conversely, common-law indemnity requires vicarious liability without actual fault on the part of the proposed indemnitee. (Rehberger v Garguilo & Orzechowski, LLP, 118 AD3d 767 [2nd Dept 2014]). Common law indemnification requires that only one party, the indemnitor be at fault in the causing of the accident. Accordingly, it is impossible to simultaneously be entitled to common law indemnification and also be entitled to contribution and apportionment

Bello's motion for summary judgment on the third-party actions

Bello moves for summary judgment dismissing the fourth-party, amended fifth- party and sixth-party summonses and complaints of Ess & Vee, 1251 America, Lloyds, Aragon, and Finest Painting. The causes of action asserted by 1251 Americas , Lloyds , Aragon and Ess & Vee against Bello sound in contractual indemnification, failure to procure insurance and contribution. The causes of action asserted by Finest Painting are for contractual and common law indemnification and contribution.

In support of the motion Bello submits, among other things, the deposition transcript of Gustavo Bello (hereinafter G. Bello). G. Bello testified that his company performs "taping" work, however, he does not recollect performing any work at the premises. He admitted that Ess & Vee hired Bello to do taping and spackling work which involves prepping the sheetrock for the painters. He remembered signing a document similar to the unsigned indemnification contract produced at his deposition by Ess & Vee. G. Bello's testimony does not set forth a prima facie entitlement to summary judgment.

In support of the dismissal of the causes of action sounding in contractual indemnification and the failure to procure insurance Bello's arguments point to the failure of Ess & Vee, 1251 Americas Associates, Lloyds, and Aragon to prove the existence of a contract requiring additional insurance and indemnification. He does not affirmatively assert that there was no contract with any other of the third-party plaintiffs. In fact, Bello testified that he was not sure what document he signed. A movant on a summary judgment motion may not simply point to alleged deficiencies in the plaintiff's proof (Daries v Haym Solomon Home for the Aged, 4 AD3d 447 [2nd Dept 2004], see Cincotta v City of New York, 292 AD2d 558). Bello also asserts that regardless of whether there was a contract requiring it to obtain insurance, that it in fact procured insurance and therefore is not in breach. Bello has failed to establish the existence of a contract nor its terms. Accordingly, Bello has failed to establish that it was not in breach of contractual terms.

Bello also seeks dismissal of the common law indemnification and contribution claims. Bello has failed to establish that it is free from negligence and that the parties seeking common law indemnification are negligent. Accordingly, the motion is denied.

[*12]CONCLUSION

Finest Painting's motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint is denied.

Finest Painting's motion for an order pursuant to CPLR 3212 granting summary judgment in favor of Finest Painting against 1251 Americas, Aragon, Ess & Vee, and Bello, on its cross claims and third-party claims is denied.

Bello's motion for an order pursuant to CPLR 3212 granting summary judgment in its favor and dismissing the fourth-party, amended fifth-party and sixth-party summonses and complaints of Ess & Vee, 1251 Americas, Lloyds, Aragon, and Finest Painting is denied.

Bello's motion for an order pursuant to CPLR 3212 granting summary judgment in its favor and dismissing the cross claims is denied.

Ess & Vee's motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff's complaint is denied.

The foregoing constitutes the decision and order of this Court.

Enter:J.S.C. Footnotes

Footnote 1:By order dated October 2, 2010, the Court granted the portion of Ess & Vee's motion which sought an extension of time to bring a summary judgment motion only as to the plaintiff's complaint. Accordingly, the portion of Ess & Vee's motion seeking pursuant to CPLR 3212 directing judgment in favor of Ess & Vee against 1251 Americas Associates II, L.P., Aragon Construction Company, Inc., Finest Painting & Decorating Inc., Lloyds TSB Bank PLC, Cushman & Wakefield, Inc., and Bello Construction, Inc. is denied as untimely and will not be analyzed.