Maternik v Edgemere By-The-Sea Corp.

[*1] Maternik v Edgemere By-The-Sea Corp. 2008 NY Slip Op 50763(U) [19 Misc 3d 1118(A)] Decided on March 31, 2008 Supreme Court, Kings County Bunyan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2008
Supreme Court, Kings County

Grzegorz Maternik, Plaintiff,

against

Edgemere By-The-Sea Corp. and Monadnock Construction, Inc., Defendants.



18148/05

Bert A. Bunyan, J.

Upon the foregoing papers, plaintiff Grzegorz Maternik (plaintiff) moves for an order, pursuant to CPLR 3212, granting summary judgment on the issue of liability under Labor Law §§ 240 (1) and 241 (6) against defendant/third-party plaintiffs Monadnock Construction, Inc. (Monadnock) and Edgemere By-The-Sea Corp. (collectively, defendants). Defendants cross-move for summary judgment, pursuant to CPLR 3212, dismissing plaintiff's complaint insofar as asserted against them. In addition, defendants move for summary judgment, pursuant to CPLR 3212, against third-party defendant Gateway Demolition Corp. (Gateway).[FN1] [*2]

Facts and Procedural History

On November 15, 2004, plaintiff, an employee of demolition contractor Gateway, was allegedly injured while he was working on the roof of a single-story commercial building located at 40-11 Beach Channel Drive in Queens, New York (the property). According to his deposition testimony, plaintiff was stripping the top part of the roof when a portion of the roof he was standing on collapsed, and he fell approximately 16 feet to the ground inside the property. Monadnock does not dispute that plaintiff was not provided with any safety equipment to prevent his fall and that the absence of such equipment proximately caused plaintiff's injuries. Monadnock's motion to dismiss the underlying action is premised, for the most part, on its contention that it was neither an owner or a general contractor, nor an agent of either.

Ownership of the Property by the City of New York

At the time of the incident, non-party City of New York, acting through the Department of Housing Preservation & Development (the City), owned the property. The City intended to demolish the building located on the property (and the two nearby buildings located on the adjacent City-owned properties) and to build subsidized residential housing thereon (the project).

The City requested Monadnock to find a demolition subcontractor for the property. As described below, Monadnock hired Gateway as the demolition subcontractor. The City was aware that Monadnock had selected Gateway.

Edgemere's Prime Contract with Monadnock

On August 1, 2004, Monadnock contracted with Edgemere, the builder on the property, to perform the demolition and construction work on the property (the prime contract), starting August 1, 2004.[FN2] A portion of the consideration payable under the prime contract was specifically allocated to the demolition phase.[FN3]

Monadnock's Subcontract with Gateway

On July 17, 2004, Monadnock and Gateway entered into a contract for the demolition phase of the project (the subcontract).[FN4] Pursuant to the subcontract, Gateway was required to "perform work when and as directed by Monadnock." Monadnock had the authority to reject Gateway's non-conforming work. Monadnock was responsible for maintaining safety on the site [*3]pursuant to its Subcontractor Safety Disciplinary Program (SSDP), which was attached to, and expressly made part of, the subcontract.[FN5] The SSDP stated, in relevant part: "The Subcontractor Safety Disciplinary Program (SSDP) involves Monadnock and all Monadnock Subcontractors and is in effect on all jobs. The SSDP program operates as follows:This SSDP is included as part of Monadnock's subcontract. At the pre-job meeting an explanation of the program will be presented and time will be made available to answer any questions. Prior to the start of any work, Monadnock's field Superintendent will review the requirements of the SSDP with the Subcontractor's Foreman. The SSDP is a disciplinary program structured to ensure that all Subcontractors on site understand and carry out their job site safety responsibilities.All Monadnock job sites will be inspected on a regular basis by Monadnock and/or GBC Safety Services personnel.... The Subcontractor can be cited at any time by Monadnock's Field Superintendent, Safety Inspector, Project Manager, or Executives.In cases of serious, high hazard violations the Subcontractor will be instructed to stop the work involved immediately. For low hazard violations the Subcontractor will be given the opportunity to correct the violation in a reasonable amount of time, as determined by Monadnock's personnel.

* * * For the purposes of this program, a low hazard violation will be defined as one that would be considered an Other-Than-Serious' violation by OSHA. A high hazard violation will be one that is considered a Serious,' Willful' or Criminal/Willful' violation by OSHA....

* * * A sample of possible safety violations are listed below....

* * * 8. For each employee working at elevations greater than 6 feet without proper fall protection. (Excluding structural steel erection and work on ladders and scaffolds.)"[*4]

The subcontract required indemnification of Monadnock by Gateway and further required Gateway to provide Monadnock with certificates of insurance naming Monadnock, among others, as an additional insured under Gateway's policies (other than Gateway's workers' compensation policy), inclusive of a $2 million combined single limit comprehensive general liability policy.

Commencement of this Action

By summons and verified complaint, dated June 10, 2005, plaintiff brought the instant action against Edgemere and Monadnock alleging common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). In his supplemental verified bill of particulars, dated March 2, 2007, plaintiff alleged violations of New York Labor Law §§ 200, 240 (1), and 241 (6), and 12 NYCRR 23-1.5 (a); 1.7 (b) and (d); 1.16; 1.17; 1.24 (a) and (b); and 3.3 (b), (c), (e), (k), and (l).

Edgemere and Monadnock, in turn, commenced a third-party action against Gateway for contribution and indemnification, and for an alleged failure to obtain the insurance coverage required under the subcontract. Gateway answered and asserted counterclaims for contribution and indemnification.

On March 2, 2007, plaintiff filed a note of issue. On April 26, 2007, defendants served a motion for summary judgment in the third-party action. On April 30, 2007, plaintiff served a motion for partial summary judgment on the issue of defendants' liability under Labor Law §§ 240 (1) and 241 (6) in the underlying action. On June 22, 2007, defendants served their cross-motion for summary judgment.[FN6]

Discussion

Summary Judgment Standard

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

Plaintiff's Labor Law Claims Against Monadnock

Plaintiff's motion for partial summary judgment on the issue of Monadnock's liability under Labor Law §§ 240 (1) and 241 (6) is premised on the undisputed fact that his fall was proximately caused by the lack of requisite protective equipment. In opposition to plaintiff's motion, and in support of its cross-motion for summary judgment, Monadnock asserts that it is not subject to liability under Labor Law §§ 240 (1) and 241 (6) because it was neither an owner or general [*5]contractor, nor a statutory agent of either.

Labor Law § 240 (1)

Liability for violations of Labor Law § 240 (1) may be imposed on owners, contractors, and agents. Statutory agency conferring liability under the Labor Law is the "supervisory control and authority over the work being done when the plaintiff is injured" (see Walls v Turner Constr. Co., 4 NY3d 861, 863 [2005]). The key to the supervisory control is " the right to insist that proper safety practices [are] followed'" (see Titus v Kirst Constr., Inc., 43 AD2d 1324, 1325 [2007], citing Nowak v Smith & Mahoney, 110 AD2d 288, 290 [1985]; see also Ogden v City of Hudson Indus. Dev. Agency, 277 AD2d 794, 795 [2000]).

Here, plaintiff has made a prima facie showing that Monadnock acted as the City's statutory agent under Labor Law § 240 (1). At the City's request, Monadnock hired plaintiff's employer, Gateway, to perform the demolition. There was no general contractor on the project during the demolition stage. Monadnock assumed the duty of overseeing the safety at the demolition site pursuant to its Subcontractor Safety Disciplinary Program and of conducting regular inspections of the work site by its personnel and/or by the personnel of its safety firm (GBC Safety Services). Monadnock had a contractual right to fine Gateway or stop Gateway's unsafe work practices, including a failure to provide safety equipment to Gateway's employees working at elevations greater than six feet (ladders and scaffolds excepted).[FN7] Moreover, Monadnock reserved itself the right to direct Gateway's work, to require Gateway to perform work on any area at different times and/or intervals, including portions out of sequence, to omit temporarily any portion of the work and later fill in such portions when directed, and to provide carting for debris removal.

In opposition to plaintiff's motion, Monadnock alleges that during the demolition phase, it did not exercise actual control over the safety of the work site, conducted no safety inspections, and had no field superintendent present at the work site. Monadnock further states that it had no control, supervision, or direction over the injury-producing activity. However, "it is the right to control the work that is significant, not the actual exercise or nonexercise of control" (see Nowak, 110 AD2d at 290). Monadnock had a contractual right to direct the work, to inspect the work site, to sanction Gateway for unsafe work practices, and to stop Gateway's work if a high hazard violation was found. Therefore, Monadnock possessed "the ability to supervise and control the activity which brought about the injury" (see Aversano v JWH Contracting, LLC, 37 AD3d 745, 746 [2007] [*6][citations omitted]).

Thus, plaintiff has made a prima facie showing that Monadnock was a statutory agent of the owner (the City), while Monadnock has failed to raise an issue of fact in opposition (see Ewing v ADF Constr. Corp., 16 AD3d 1085 [2005] [defendant was liable under Labor Law § 240 (1) because it "was responsible for coordinating and supervising the . . . project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors' and thus acted as a general contractor"] [citations omitted]). In the alternative, Monadnock may be considered to be a statutory agent of Edgemere as an "owner" of the property. The term "owner" is not limited to the titleholder and "encompass[es] a person who has an interest in the property and who fulfill[s] the role of owner by contracting to have work performed for his benefit" (see Kane v Coundorous, 293 Ad2d 309, 311 [2002] [citation omitted]). Edgemere had access to the property and, more importantly, hired Monadnock to perform demolition of the property and the construction of the project. Edgemere, therefore, may be considered an owner of the property for purposes of Labor Law§§ 240 (1) and 241 (6), and Monadnock may be characterized as its agent.

Accordingly, plaintiff is entitled to partial summary judgment on the question of Monadnock's liability under Labor Law § 240 (1). As such, Monadnock's cross-motion for summary judgment to the extent it seeks dismissal of plaintiff's Labor Law § 240 (1) claim is denied.

Labor Law § 241 (6)

Plaintiff and Monadnock have moved and cross-moved, respectively, for summary judgment on the issue of liability under Labor Law § 241 (6). In his reply, plaintiff offers an affidavit of his expert, Michael Joye, a professional engineer licensed in the State of New York, concerning the alleged violations of safety provisions incorporated in Rule 23 of the Industrial Code (12 NYCRR Part 23).[FN8]

Liability under Labor Law § 241 (6) is also imposed on "[a]ll contractors and owners and their agents." Thus, Monadnock, which the court has found liable under Labor Law § 240 (1), may also be liable under Labor Law § 241 (6) if "a specific and concrete provision of the Industrial Code was violated and ... the violation proximately caused [plaintiff's] ... injuries" (see Rosado v Briarwoods Farm, 19 AD3d 396, 399 [2005] [citations omitted]). A contractor or owner is vicariously liable under Labor Law § 241 (6) without regard to its fault and without regard as to whether or not it had actual or constructive notice of same (see Rizzuto v Wenger Contr. Co., 91 NY2d 343, 352 [1998]).

Here, plaintiff alleges in his bill of particulars violations of Sections 1.5 (a); 1.7 (b) and (d); 1.16; 1.17; 1.24 (a) and (b); and 3.3 (b), (c), (e), (k), and (l) of the Industrial Code.[FN9] The court dismisses those alleged violations which are based on the following provisions of the Industrial [*7]Code:[FN10]

(1) Section 1.5 (a), which is entitled "[h]ealth and safety protection required," is a general safety regulation and may not serve as a basis for a Labor Law § 241 (6) claim (see Ross v Curtis-Palmer Hydro Electric Co., 81 NY2d 494, 505 [1993]).

(2) Sections 1.7 (b) and (d), which relate to falling hazards and slipping hazards, are inapplicable. Plaintiff testified that there were no openings on the roof at the time he fell, and there is no evidence that plaintiff slipped.

(3) Section 1.16, which sets standards related to safety belts, harnesses, tail lines, and lifelines, and Section 1.17, which sets standards related to life nets, are inapplicable because plaintiff was not provided with any such devices (see Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616 [2008]; Luckern v Lyonsdale Energy Ltd. Partnership, 281 AD2d 884, 887 [2001]).

(4) Sections 1.24 (a) and (b), which require, with respect to "any roof having a slope steeper than one in four inches," the use of roofing brackets, or, in the case of a high and steep roof more than 20 feet above ground, a scaffold, are inapplicable. Plaintiff testified that the roof was flat and that he fell approximately 16 feet to the ground. In his moving papers and in the reply affidavit of his expert, plaintiff has offered no evidence to the contrary.

(5) Section 3.3 (b), which applies to the demolition of walls and partitions, is inapplicable because plaintiff was demolishing a roof.[FN11]

(6) Section 3.3 (c), which provides for inspections to detect hazards from weakened or deteriorated floors or walls or from loosened material, is inapplicable based on the facts of this case. Plaintiff testified that, at first, he cut with a power saw and, subsequently, used a crow bar and a hammer to separate or loosen pieces of the roof and that he stored the resulting debris on top of the roof. The record does not reflect whether any inspections of plaintiff's work place were conducted. However, Section 3.3 (c) does not address the situation where, as here, the danger was present before the demolition work began (see Monroe v City of New York, 67 AD2d 89, 100 [1979]). In this case, according to plaintiff's expert, "the structure being demolished was in poor condition with water-damaged sheetrock readily visible in the structure's interior...." Accordingly, plaintiff has not stated a Labor Law § 241 (6) cause of action under Section 3.3 (c).

(7) Section 3.3 (k), which prohibits storage of materials on a floor, except "when such floor is of such strength as to safely support the load to be imposed," is inapplicable. Plaintiff stored the [*8]debris on the roof, not on a floor.

The court, however, does not dismiss plaintiff's Labor Law § 241 (6) cause of action under Sections 3.3(e) and (l). Section 3.3(e) sets forth three methods that may be employed during demolition work for the manual removal of debris, brick or other materials - chutes, buckets or hoists, and openings in the floor or other structure - none of which were made available to plaintiff. Section 3.3 (e) is sufficiently specific to support a cause of action under Labor Law § 241 (6) (see Jackson v Williamsville Cent. School Dist., 229 AD2d 985, 986 [1996]). The removal of the roof constitutes "demolition by hand" inasmuch as it is "work incidental to or associated with the ... partial dismantling or razing of a building" (see 12 NYCRR 23-1.4 [b] [16]). Thus, there is an issue of fact as to whether Monadnock violated this section.

Section 3.3 (l) requires safe flooring when working above ground level in a demolition project (see Harris v Rochester Gas & Elec. Corp., 11 AD3d 1032, 1033 [2004]). Although plaintiff was working above ground level, he was actually standing on the structure that was being demolished. Plaintiff testified that the roof was in poor condition. Thus, there is an issue of fact as to whether Monadnock violated this section.

In summary, although plaintiff's allegations that Monadnock violated 12 NYCRR 23-3.3 (e) and (l) are sufficient to defeat Monadnock's motion for summary judgment on plaintiff's Labor Law § 241 (6) cause of action, they are insufficient to demonstrate that plaintiff is entitled to summary judgment against Monadnock under this statute. It is well settled that comparative negligence is a valid defense to a Labor Law § 241 (6) claim (see Rizzuto, 91 NY2d at 350). Here, plaintiff himself made cuts to the roof which may have weakened the structure, which plaintiff testified had already been weakened by moisture. Plaintiff also stacked the debris on top of the roof after making the cuts. Under the circumstances, there is an issue of fact as to whether plaintiff's own negligence contributed to the accident. Accordingly, Monadnock's cross- motion for summary judgment with respect to plaintiff's Labor Law § 241 (6) claim is granted to the extent that plaintiff relies on 12 NYCRR 23-1.5 (a), 1.7 (b) and (d), 1.16, 1.17, 1.24 (a) and (b), and 3.3 (b), (c), and (k), and is denied to the extent that plaintiff relies on 12 NYCRR 23-3.3(e) and (l). That branch of plaintiff's motion which seeks summary judgment against Monadnock under Labor Law § 241 (6) is denied.

Monadnock's Claims Against Gateway

Monadnock seeks summary judgment against Gateway for contractual defense and indemnification and for breach of the subcontract for failure to obtain liability insurance.

Contractual Defense and Indemnification

Monadnock argues that it is entitled to summary judgment on its contractual rights to defense and indemnification by Gateway based upon the plain meaning of the contract and the indemnification agreement. In this regard, Monadnock argues that it was not negligent "in any way concerning the plaintiff's alleged accident." Specifically, Monadnock asserts that it did not supervise plaintiff's work, and that the evidence demonstrates that plaintiff sustained his injuries while employed by Gateway. Monadnock also contends that Gateway was responsible in whole or in part for any alleged negligence that may have occurred at the time of plaintiff's accident since plaintiff's activities were directed and controlled by Gateway, and at the time of plaintiff's alleged accident, plaintiff was working as an employee of Gateway to complete the work that Monadnock had contracted with Gateway to complete. In opposition, Gateway contends that there is an issue of fact as to whether or not Monadnock was negligent, thereby foreclosing its right to the indemnification. Specifically, Gateway argues that Monadnock is not entitled to indemnification [*9]because Monadnock was negligent"in failing to enforce various provisions of the safety program which they [Monadnock] took an affirmative duty to enforce in the [sub]contract." Moreover, although Gateway does not argue that it was not negligent, Gateway nevertheless asserts that "there are issues of fact as to the negligence of Gateway and the facts surrounding the plaintiff's accident which require a trier of fact to decide this issue."

A "party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (see Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987] [citation omitted]). The parties rely upon a clause in the subcontract which provides, in relevant part: "To the fullest extent permitted by law, the Subcontractor [Gateway] shall indemnify and hold harmless ... the Contractor [Monadnock] ... from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Subcontractor's Work under this Subcontract ... but only to the extent caused by the negligent acts or omissions of the Subcontractor, the Subcontractor's Sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder...."

(emphasis added).

General Obligations Law § 5-322.1 [1][FN12] prohibits enforcement of a contractual indemnification clause where the party seeking indemnification was negligent (see Brown v Two Exch. Plaza Partners, 76 NY2d 172, 178 [1990]). As long as an owner or general contractor is not negligent, however, the statute does not bar a party from receiving contractual indemnification, even if the clause is broadly worded to include indemnification for the indemnitee's own negligence (see Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 795, n.5 [1997]; Delaney v Spiegel Assocs., 225 AD2d 1102, 1104 [1996]). In this case, liability was imposed on Monadnock solely because of the absolute liability provisions of Labor Law § 240 (1). Without a finding of negligence on the part of Monadnock, the prohibition of General Obligations Law § 5-322.1, against indemnifying a contractor for its own negligence is inapplicable (see Brown, 76 NY2d at 179).

Here, Monadnock has made a prima facie showing that it was not negligent since it has demonstrated that it did not supervise or control plaintiff's work, nor was it present on the work site when the accident occurred. However, Monadnock has failed to demonstrate its entitlement to summary judgment. In this regard, to be entitled to indemnification pursuant to the contractual provision cited above, Gateway must be found to be negligent. In its motion, Monadnock asserts, without elaborating, that "[s]ince this incident clearly arose out of Gateway's work, Gateway is obligated to defend and indemnify defendants [Monadnock]." As such, Monadnock has failed to establish in its moving papers that plaintiff's incident arose out of Gateway's negligence. [*10]Accordingly, Monadnock's request for contractual defense and indemnification is denied under the "well-established principle that the failure of a proponent of a motion for summary judgment to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion regardless of the sufficiency of the opposing papers" (see Winegrad, 64 NY2d at 851).

Breach of Contract for Failure to Obtain Insurance

Monadnock contends that, pursuant to the terms of the subcontract, Gateway was required to procure comprehensive general liability insurance naming Monadnock as an additional insured, and that it failed to do so. In its opposition to Monadnock's motion, Gateway included a Certificate of Liability Insurance, which reflected that, at the time of plaintiff's incident, Gateway maintained a commercial general liability insurance policy in the amount of $1 million per occurrence and $2 million in the aggregate and that Gateway named Monadnock as an additional insured on Gateway's insurance policies.

Here, the subcontract required that Gateway procure insurance naming Monadnock as an additional insured. Gateway established that it, in fact, procured the requisite insurance on behalf of Monadnock. Given the court's ruling on the issue of indemnity, Gateway need not "step into the shoes of its carrier and provide defense and indemnity to all defendants," as Monadnock's contends. Accordingly, that branch of Monadnock's motion seeking summary judgment on its breach of contract claim for failure to procure insurance is denied.

Summary

In summary, the court rules as follows:

(1) that branch of plaintiff's motion for summary judgment under Labor Law § 240 (1) is granted;

(2) that branch of Monadnock's cross-motion for summary judgment with respect to plaintiff's Labor Law § 240 (1) claim is denied;

(3) that branch of plaintiff's motion for summary judgment under Labor Law § 241 (6) is denied;

(4) that branch of Monadnock's cross motion for summary judgment with respect to plaintiff's Labor Law § 241 (6) claim is granted to the extent that plaintiff relies on 12 NYCRR 23-1.5 (a); 1.7 (b) and (d); 1.16; 1.17; 1.24 (a) and (b); and 3.3 (b), (c), and (k); and is otherwise denied; and

(5) Monadnock's motion for summary judgment seeking contractual indemnification and damages for breach of contract to procure insurance is denied.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:By consent order, dated November 14, 2007, plaintiff stipulated to the dismissal, with prejudice, of his underlying action against Edgemere By-The-Sea Corp. (Edgemere) which, in turn, stipulated to the dismissal, with prejudice, of its third-party action against Gateway. Thus, those branches of the motions and cross- motion seeking relief against, or by, Edgemere are rendered moot and will not be addressed.

Footnote 2:Some time prior to the date of plaintiff's incident, Edgemere, as builder, had entered into an agreement with the City to have access to the site for preliminary work.

Footnote 3:As stated above, the City requested Monadnock to perform the demolition, although it was nominally Edgemere which contracted with Monadnock.

Footnote 4:The full title of the subcontract is AIA Document A401-1997, Standard Form of Agreement Between Contractor and Subcontractor, dated as of July 17, 2004. Although the prime contract was executed two weeks after the execution of the subcontract, it is clear that the subcontract was intended to fulfill Monadnock's obligations to Edgemere under the prime contract with respect to the demolition phase.

Footnote 5:Ben Scannella, a project manager for Monadnock, testified in his pre-trial deposition that the SSDP was utilized for new construction work only and that SSDP would not have been in effect at the time of plaintiff's incident. He further testified that he had never seen the SSDP. Mr. Scannella's deposition testimony fails to raise a material issue of fact because each page of the SSDP was initialed by both Monadnock and Gateway, and the SSDP recited that it applied to "all Monadnock Subcontractors" and was "in effect on all jobs." Moreover, Mr. Scannella first arrived at the work site on March 31, 2005, which was after the project had passed from the demolition phase into the construction phase.

Footnote 6:Pursuant to Rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County, a summary judgment motion must be made within sixty days after a note of issue has been filed. While Monadnock's motion for summary judgment in the underlying action was served more than 60 days after the note of issue had been filed, Monadnock may rely on the timeliness of plaintiff's initial motion (see Gaines v Shell-Mar Foods, Inc., 21 AD2d 986 [2005]; Maciejewski v 975 Park Ave. Corp., 10 Misc 3d 1079 [A], 2005 NY Slip Op 52258 [U] [2005]). Accordingly, the court considers Monadnock's cross- motion for summary judgment in the underlying action to be timely.

Footnote 7:Section 1926.501(b)(1) of the OSHA regulations, 29 CFR Part 1926 (safety and health regulations for construction), Subpart M (fall protection), states:

"Unprotected sides and edges. Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems."

The OSHA may consider a breach of this regulation to be a "serious violation" (see Fabi Const. Co., Inc. v Secretary of Labor, 370 F3d 29, 38 [D.C. Cir. 2004]). Under the SSDP, a "serious violation" constituted a "high hazard violation" (within the meaning of the SSDP) and permitted Monadnock to stop Gateway's work.

Footnote 8:Monadnock contends that the court should disregard the affidavit because it was submitted with plaintiff's reply papers and not with plaintiff's original moving papers. In the exercise of its discretion, however, the court will consider the affidavit because it is directly responsive to the argument made in Monadnock's opposition papers (see Whale Telecom Ltd. v Qualcomm Inc., 41 AD3d 348 [2007]).

Footnote 9:Plaintiff has not abandoned these claims because his memorandum of law in support of his motion for summary judgment addresses all of these sections.

Footnote 10:The court will not consider any alleged violation of 12 NYCRR 23-3.3 (j) which is set forth for the first time in plaintiff's reply affidavit. "The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion" (see Dannasch v Bifulco, 184 AD2d 415, 417 [1992] [citations omitted]).

Footnote 11:While Section 3.3 (b) (3) refers to "other parts of any building," thus not limiting it to walls and partitions, it states that such structures "shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration." Plaintiff has offered no evidence that his fall was due to "wind pressure or vibration" (see German v City of New York, 14 Misc 3d 1204 [A], 2006 NY Slip Op 52406 [U] [2006])

Footnote 12:This statute provides, in pertinent part, that an agreement "purporting to indemnify or hold harmless the promisee against liability for damage ... contributed to, caused by or resulting from the negligence of the promisee ... whether such negligence be in whole or in part, is against public policy and is void and unenforceable...." (General Obligations Law § 5-322.1 [1]).