Castillo v 281 Broadway Assoc.

[*1] Castillo v 281 Broadway Assoc. 2017 NY Slip Op 51042(U) Decided on August 9, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 9, 2017
Supreme Court, Kings County

Yester Castillo and Gloria Castillo, Plaintiffs,

against

281 Broadway Associates, 281 Broadway Holdings LLC, Chambers Company LLC, the John Buck Company, Seasons Industrial Contracting, Site Safety LLC and Pavarini McGovern LLC, Defendants.



281 Broadway Holdings, LLC and John Buck Company, Third-Party Plaintiffs,

against

Hunter Atlantic, Inc. Third-Party Defendant.



12984/09



Attorneys for Plaintiffs

Gorayeb & Associates, P.C.

100 William Street

New York, New York 10038

(212) 267-9222

Attorneys for Defendant Seasons Industrial Contracting

Corp. i/s/h/a Seasons Industrial Contracting

David Persky, Esq.

The Law Offices of Leon R. Kowalski 12 Metrotech Center, 28th Floor

Brooklyn, New York 11201

(718) 250-1100

Attorneys for Defendants 281 Broadway Associates and

281 Broadway Holdings LLC and John Buck Company

Litchfield Cavo LLP

125 Maiden Lane — Rm 16AB

New York, New York 10038-3202

(212) 267-0011

Attorney for Defendant Site Safety LLC

Cartafalsa, Slattery, Turpin & Lenoff

One Liberty Plaza

165 Broadway, 28th Floor

New York, New York 10006

(212) 225-7700

Attorneys for Defendant Pavarini McGovern LLC

Barry McTiernan & Moore

Two Rector Street

New York, New York 10006

(212) 313-3600
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the defendant Site Safety, LLC (hereinafter Site Safety) filed on December 5, 2016, under motion sequence number twelve, for an order (1) pursuant to CPLR 3212 granting summary judgment to Site Safety and to dismiss the plaintiff's complaint asserting causes of actions for violations of the New York Labor Law section 200, 241 (6) and 240 (1)[FN1] and all cross claims.[FN2]

-Notice of motion

-Affirmation in support

-Exhibits A-H

Affirmation in partial opposition by 281 Broadway Associates and the John BuckCompany

Affirmation in opposition

Exhibit 1-9

Reply Affirmation

Exhibit A

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the defendant 281 Broadway Holding, LLC i/s/h/a 281 Broadway Association and The John Buck Company (hereinafter the 281 Broadway defendants) filed on December 13, 2016, under motion sequence number thirteen, for an order (1) pursuant to CPLR 3212 granting it summary judgment dismissing the plaintiffs complaint asserting causes of actions for violations of the New York Labor Law section 200, 241 (6) and 240 (1) and to dismiss the main complaint and all cross claims.[FN3]

Notice of motion

-Affirmation in support

-Exhibits A-L

Affirmation in opposition

Exhibit 1-9

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the defendant Pavarini McGovern, LLC (hereinafter Pavarini) filed on December 19, 2016, under motion sequence number fourteen, for an order (1) pursuant to CPLR 3212 granting summary judgment to Pavarini dismissing the plaintiffs causes of actions for violations of the New York Labor Law section 200, 241 (6) and 240 (1) and dismissing the complaint and (2) granting the cross claims for contractual indemnification, legal fees and costs from the defendant 281 Broadway Holdings.

Notice of motion

-Affirmation in support

-Exhibits A-L

Affirmation in partial opposition

Affirmation in opposition

Exhibit 1-9

Reply

Recitation in accordance with CPLR 2219 (a) of the papers considered on the cross motion of the defendant Seasons Industrial Contracting Corp. i/s/h/a Seasons Industrial Contracting (hereinafter Seasons) filed on January 6, 2017, under motion sequence number fifteen, for an order (1) pursuant to CPLR 3212 granting summary judgment to Seasons dismissing the plaintiffs cause of actions for violations of the New York Labor Law section 200, 241 (6) and 240 (1) and all cross claims.

Notice of motion

-Affirmation in support

-Exhibits A-E

Affirmation in partial opposition

Affirmation in opposition

Exhibit 1-9

Reply

BACKGROUND

On May 28, 2009, Yester Castillo (hereinafter the injured plaintiff) and Gloria Castillo, his wife, commenced the instant action for damages for personal injuries and derivative claims[FN4] by filing a summons and complaint with the Kings County Clerk's Office (the main action). On August 31, 2009, the plaintiffs filed a supplemental summons and amended verified complaint. By answer dated October 21, 2009, the 281 Broadway defendants joined issue by answer with cross claims. By answer dated November 2, 2009, the Seasons defendants joined issue by answer with cross claims. On July 19, 2010, a separate action was commenced against Pavarini. By order dated January 3, 2011, the two actions were consolidated. By answer dated November 2, 2009, Pavarini defendants joined issue by answer with cross claims.[FN5] A note of issue was filed on October 11, 2016.

The amended complaint, bill of particulars and deposition transcripts of the injured plaintiff allege the following salient and undisputed facts. On January 13, 2009, the date of the accident, the injured plaintiff was employed by third-party defendant Hunter Atlantic, Inc. as a laborer to work at a property located at 57 Reade Street a/k/a 279 Broadway, New York, New York (hereinafter the premises). At that time, 281 Broadway Association owned the premises.[FN6] 281 Broadway Association hired John Buck Company to be the project developer; Site Safety to be the safety manager; and Pavarini as a consultant for the foundation aspect of the project.

The amended verified complaint and deposition transcript of the injured plaintiff alleged that on the date of the accident he was instructed to work an area that was being excavated. He was standing approximately ten feet from an excavator that was being operated by a co-worker when the excavator moved a container which contained a spring. The spring flew up and hit the plaintiff causing him to sustain personal injuries. The container and spring were part of an elevator that had been left at the property after the demolition of the building.

The injured plaintiff has alleged that the defendants violated Labor Law §§ 200 and 241 (6) specifically 22 NYCRR§§ 23-3.3 (c) and 23-4.2 (k).[FN7]

LAW AND APPLICATION

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 [*2]absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]).

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 1062 [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, 68 NY2d at 324).

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 Fur 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]).

"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]; citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).

Timeliness of Seasons' cross motion for summary judgement

Seasons has cross moved pursuant to CPLR 3212 for an order granting summary judgement in its favor on the issue of liability and dismissing all causes of action asserted against it. Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, the defendants were required to make their motions for summary judgment no later than sixty days after the filing of the note of issue, unless they obtained leave of the court on good cause shown (Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6; CPLR 3212 [a]; Goldin v New York and Presbyterian Hosp., 112 AD3d 578, 579 [2nd Dept 2013]; Dallal v Kantrowitz, Goldhamer & Graifman, P.C., 48 AD3d 508 [2nd Dept 2008] citing Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]; Pierre v Feldman, 41 AD3d 454, 455 [2nd Dept 2007]; Breiding v Giladi, 15 AD3d 435 [2nd Dept 2005]).

A motion is "made" when the notice of motion is served (Steisel v Golden Reef Diner, 67 AD3d 670, 670 [2nd Dept 2009] citing Rivera v Glen Oaks Village Owners, Inc., 29 AD3d 560, 561 [2nd Dept 2006]). It is undisputed that the note of issue was filed on October 11, 2016 and that the motion was made on January 5, 2017, twenty four days late. Season did not seek leave to make a late summary judgment motion or demonstrate good cause for the delay (see CPLR 3212 [a]; Brill, 2 NY3d 648). Therefore, the motion is untimely.

At oral argument, Seasons contended that its motion, although untimely, may be properly considered because it is based on nearly identical grounds as the timely motions of its co-defendants. An untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment is made on nearly identical grounds (Das v Sun Wah Restaurant, 99 AD3d 752, 754 [2nd Dept 2012]).

Seasons' motion is based on its specific factual claim that it did not exercise supervisory control over the work. Since their argument rests on the separate factual assertion it is not "nearly identical" to the timely summary judgment motion of any of its co-defendants (see Sheng [*3]Hai Tong v K & K 7619, Inc. 144 AD3d 997, 890 [2nd Dept 2016]). Accordingly, the cross motion is denied as untimely. The remaining summary judgment motions are by Site Safety, the 281 Broadway defendants and Pavarini (hereinafter jointly referred to as the moving defendants).

Labor Law § 241 (6)

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]).

In the instant matter the plaintiff asserts that the Industrial Code violations 12 NYCRR 23-3.3 (c) and 23-4.2 (k) were violated by the defendants. The moving defendants seek to dismiss those causes of action as inapplicable to the instant action.

12 NYCRR 23-3.3 (c) provides:

During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.

This regulation requires continuing inspections against hazards which are created by the progress of the demolition work itself rather than inspections of how demolition would be performed (Campoverde v Bruckner Plaza Assocs., L.P., 50 AD3d 836, 837 [2nd Dept 2008] citing Monroe v City of New York, 67 AD2d 89, 100 [2nd Dept 1979]). The section is specific enough to create a duty, however, it is inapplicable to the instant matter. The hazard which injured plaintiff, was actual performance of demolition work, not structural instability caused by progress of demolition (Id.). Accordingly, this section is not applicable to the instant action. The cause of action alleging violations of 12 NYCRR 23-3.3(c) are dismissed.

Plaintiff also alleges violations of 12 NYCRR 23-4.2 (k), which provides:

Persons shall not be suffered or permitted to work in any area where they may be struck [*4]or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment.

This provision sets forth detailed requirements regarding the bracing and shoring of trenches and, as such, are sufficiently specific to support a claim under Labor Law § 241 (6) (Ferreira v Vill. of Kings Point, 68 AD3d 1048, 1051 [2nd Dept 2009] see Garcia v Silver Oak USA, 298 AD2d 555 [2nd Dept 2002]). Furthermore, the subsection applies to persons working in any area where they may be struck or endangered by any excavation equipment (Ferreira v City of New York, 85 AD3d 1103, 1106 [2nd Dept 2011]; 12 NYCRR 23-4.2 [k]).

All of the moving defendants seek to dismiss the cause of action asserting violations of 12 NYCRR 23-4.2 (k) on the premise that it is inapplicable to the instant matter. The moving defendants assert that this provision is meant to apply to workers that are injured due to an improper securing of an area that is being excavated. However, the provision is not that limited (see Ferreira, 85 AD3d 1103). The defendants have not met the burden establishing that the provisions are inapplicable to the instant action. Accordingly, the summary judgment motions are denied, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

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 [*5]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]). In the instant matter, the plaintiff's claims fall under a dangerous work site rather defect in the manner or methods of performing the work.

Site Safety, LLC

In the instant action Site Safety moves for summary judgment to dismiss the main complaint based on the premise that it was an independent contractor and did not breach any duty owed to the plaintiff.

Site Safety was retained by 281 Holdings LLC[FN8] pursuant to a contract to provide certain safety management for the construction project. Site Safety submitted, among other things, the deposition transcripts of Peter Amato (hereinafter Amato) and Michael Mazzella (hereinafter Mazella) and a contract dated May 7, 2007. Amato is the majority owner of Site Safety. Mazella was employed as site safety manager for Site Safety on the date of the plaintiff's accident.

Amato testified that Site Safety was retained for a limited purpose of site safety management in accordance with the building code and specifically subchapter 19 of the building code and chapter 26 of the RCNY and did not include safety management or supervision in regard to the industrial code. He further testified that Site Safety did not have authority to stop work on the project. Mazella testified that he had no knowledge that there was an elevator structure or equipment buried on the project site. The elevator structure that was uncovered was not something that would have been in the drawings he was provided. Site Safety has established that it was not an owner or general contractor that exercised control over the work place and that it is not liable under Labor Law § 200. Accordingly, the burden switches to the plaintiff to raise a triable issue of fact (see Alvarez ,68 NY2d 320).

The plaintiff has failed to raise a triable issue of fact. In opposition to the motion papers the plaintiff has conceded that Site Safety was not an owner, general contractor or agent. The argument that plaintiff asserts is that Site Safety was negligent in its performance of the contractual obligations to the 281 Broadway defendants in that there were general safety violations.

There are only three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care, and thus, be potentially liable in tort to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (see Espinal v [*6]Melville Snow Contractors, Inc., 98 NY2d 136 [2002]). The plaintiff has not alleged any of the exceptions to the general rule that a contracting party does not have a duty to a third party. Accordingly, the plaintiff has failed to raise a triable issue of fact.

281 Broadway Defendants

The 281 Broadway defendants seek summary judgment to dismiss the plaintiff's complaint. In support of the motion the 281 Broadway defendants submit, among other things, the deposition transcript of John Jendras (hereinafter Jendras), an employee of The John Buck Company. Jendas testified to the following salient points. The John Buck company is in the business of real estate management and development. Jendas was not present on the premises on the date of the accident. He was the project manager in May of 2009. Prior to Jendas acting as project manager an individual named Jeffrey Clark was the project manager. The John Buck Company was retained by 281 Broadway Holdings LLC "presumably [pursuant to] a development agreement."

In order for a defendant to prevail on a summary judgment motion pursuant to Labor Law § 200 it must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition" (Navarro v City of New York, 75 AD3d 590 [2nd Dept 2010][internal citations omitted]). The 281 Broadway defendants have not met their burden. The deposition transcript of Jendras establishes that he was not present on the premise. However, he specifically mentions other individuals that may have been present on the site on or about the date of the accident. Furthermore, Jendras does not establish that the 281 Broadway defendants didn't have the obligation to be present at the premises. Furthermore, neither Jendras nor any other witness establishes that the presence of the elevator shaft is not something that would be expected or accounted for in building and demolition plans.

The 281 Broadway defendants have failed to meet their prima facie burden. Accordingly, the summary judgment motion is denied, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Pavarini

Pavarini moves pursuant to CPLR 3212 for an order dismissing the main complaint and in its favor on its contractual indemnification cross claim against 281 Broadway. It is undisputed that Pavarini was the general contractor for the project.

In support of its motion, Pavarini submits, among other things, the deposition transcripts of the plaintiff and Jendras and a contract dated November 27, 2006, entered into between Pavarini and 281 Broadway. Pavarini does not submit a deposition transcript nor affidavit of a witness on behalf of Pavarini.

Pavarini asserts that it cannot be held responsible because the plaintiff has failed to establish that it did not maintain any control or direction over plaintiff's work. It points to the plaintiff's testimony in which Castillo stated that he took direction from his supervisor at Hunter-Atlantic and had very limited interaction with the other trades. The knowledge of a laborer as to the chain of command at a work site is insufficient proof that an entity lacked supervision or control over that plaintiff. It is the moving party's burden to establish through its witnesses with personal knowledge that it did not have authority to control the work. Pavarini simply points to the plaintiff's failure to prove at this stage in the litigation that it controlled and supervised the [*7]project. 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 merit of its claim or defense (Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [4th Dept 1992]). Accordingly, Pavarini has failed to meet its summary judgment burden regardless of the adequacy of the plaintiff's submissions (see Winegrad, 64 NY2d 851).

Summary Judgment Seeking Indemnification

Pavarini seeks summary judgment granting it 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]). 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]).

In the instant matter, Pavarini has submitted the contract between it and 281 Broadway. The contract contains an indemnification provision. However, as discussed herein, Pavarini has failed to demonstrate that they are not negligent in causing plaintiff's accident as a matter of law, their cross claim for indemnification 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]). Accordingly, the motion is denied as premature.

CONCLUSION

Site Safety, LLC's motion for an order pursuant to CPLR 3212 granting summary judgment to Site Safety and to dismiss the plaintiff's complaint asserting causes of actions for violations of the New York Labor Law section 200 and 241 (6) is granted.

The defendants 281 Broadway Holding, LLC individually i/s/h/a 281 Broadway Association and The John Buck Company motion for an order pursuant to CPLR 3212 granting it summary judgment dismissing the plaintiffs complaint asserting causes of actions for violations of the New York Labor Law section 200 and 240 (1) is denied.

Pavarini McGovern, LLC's motion for an order pursuant to CPLR 3212 granting summary judgment to it and dismissing the plaintiffs causes of action for violations of the New York Labor Law sections 200 and 241 (6) is denied.

Pavarini McGovern, LLC's motion for summary judgement granting its cross claim against 281 Broadway Holdings for contractual indemnification is denied.

Seasons Industrial Contracting Corp. i/s/h/a Seasons Industrial Contracting motion for an order pursuant to CPLR 3212 granting summary judgment to Seasons and dismissing the plaintiffs cause of action for violations of the New York Labor Law section 200, 241 (6) and 240 [*8](1) and all cross claims is denied as untimely.

The foregoing constitutes the decision and order of this Court.

Dated: August 9, 2017

Hon Francois A. Rivera

J.S.C. Footnotes

Footnote 1: On March 24, 2017, at oral argument the plaintiffs withdrew the Labor Law 240(1) causes of action. Accordingly those causes of action will not be analyzed herein.

Footnote 2: Although the notice of motion seeks to dismiss the cross-claims, the motion papers do not include any reference to cross claims. Accordingly, the Court will overlook the request as a mere irregularity.

Footnote 3:Although the notice of motion seeks to dismiss the cross-claims, the motion papers do not include any reference to cross claims. Accordingly, the Court will overlook the request as a mere irregularity.

Footnote 4:By stipulation dated October 9, 2014, Gloria Castillo's claims were discontinued.

Footnote 5:All the defendants' cross claims assert causes of action for indemnification and contribution.

Footnote 6: Ownership of the premises is undisputed.

Footnote 7: In the bill of particulars the plaintiff had alleged several additional violations of specific industrial codes. However, the plaintiff has withdrawn all of those claims except for the two specified above.

Footnote 8: The 281 Broadway Associates defendants acknowledged that the contract was entered into by them and that the contract contained a scriver's error in that the name of the entity was incorrectly listed as 281 Holdings LLC.