Mayo v Metropolitan Opera Assn., Inc.
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Mayo v Metropolitan Opera Assn., Inc. 2011 NY Slip Op 32943(U) October 13, 2011 Sup Ct, NY County Docket Number: 115545/08 Judge: Doris Ling-Cohan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT PRESENT: OF THE STATE OF NEW YQRK - NEW YORK COUNTY D O W LING-COHAkO PART .~ zk Justice Index Number 115545/2008 MAYO, MANUEL vs METROPOLITAN OPERA ASSOCIATION 1 INOtX MOTION DATE -- MOTION SEQ. NO -_ NO ___ M O T I O N C A L NO. SEQUENCE NUMBER 006 1 SUMMARY JUDGMENT I tlhis motion &for jywlKc. \ n J Answering Affidavits Replying Affidavits Exhibits -- -, -- -. ~ ~ .. . . - - 6" 7 I' dNON-FINAL DISPOSITION Check one: FINAL DISPOSITION Check if appropriate: DO NOT POST n SUBMIT o m E R / J m G . u REFERENCE SEI'TLE ORDER /JUDG. [* 2] Indcx No.: 5901 19/09 -against- This decision disposcs ninu motions (SL'VCII niolioix and two cross motions) for, inlcr d i u , summary judgment that were submitted by various parties in the instant underlying action for personal injury/negligcnce and the third-party iiidcninity/conlribution action that follows it (motion sequcnce numhcrs 006, 007, 008, 009, 010, 01 1 and 013). HACKGROUND Although the court hricfly discussed the facts of this case in its prior decision, dated October 8,2009 (motion sequence numhcr O O l ) , the iiistant motions require a more lengthy review. With respect to thc pxrties, on September 16, 2008, plaintiff Manuel Mayo (Mayo) was injured after hlling fr-on1a 15 foot ladder in the Mctropolitan Opera House building (thc 1 [* 3] building), which is located at Lincoln Center in the County, City arid State of New York. See Notice of Motion (motion sequciicc iiuiiiber 006), Faegenburg Affirmation, 1 2. The building is 1 owned and operated, respectively, by defendants Lincoln Center for the Perfmniiig Arts, Inc. (1,incoln Center) and the Metropolitan Opera Association, Inc. (thc Met). Id., 1 3. At the time of 1 his injury, Mayo was cniploycd as a laborer by Ihird-party dcfendant Creative Finishes Litnitcd (Creative). Id., 7 2. On Septciiiber 3, 2008, the Met had cxecuted a contract (the general contract) that eiigagcd both Creative and third-parly co-defendant Strauss Painting, Inc. (Strauss), as contractors to perlorm work at the building consisting of scraping and repainting the steel carriagc rails tliat ruii aloiig tlie building s roof, and that support the carriage that is used by the 1 1 building s inechaiiical window washing systcm. fd,, 4; Exhibit B. On the same day, Strauss executed a subcontract (the subcontract) with Creative to actually pcrfonn this work. Id.; Mitchell Affirmation in Opposition to Motion (motion sequence number 007), Exhibit C. Regarding the circumstanccs of his accident, Mayo statcd that the 15-foot-tall ladder that he fell from was af fixed to a wall on the building s sixth floor, and that thc ceiling above it led out to building s roof where the aforc-mentioned carriage rails were located. Sce Notice of Motion (motion sequence number 006), Exhibit E, at 22, 29-30. Mayo also stated that the hatch above the laddcr, which opened onto the building s roof, would not close properly. I d at 33-35. Mayo speciiically stated that, in ordcr to close the hatch at the eiid of his painting shift on Septeiiiber 16, 2008, lie had to climb to the top of the ladder and pull on the hatch with both hands. Id, at 42-48. Mayo further statcd tliat, as a result of his having to use both hands to close the roof hatch, he slipped !?om the ladder s third to the top rung and fell approximately 15 leet to tlie floor below. Id. at 48-49. Mayo finally stated that he had discusscd the problcni with closing [* 4] the hatch with his co-workers on several occasions, starting from thc first day that they began work at the building. I d , at 30-38. Mayo s co-worker, Angel Rodriguez (Rodriguez), was present at the time of Mayo s injury. See Notice of Motion (motion sequence nulnber 006), Exhibit H, at 13. Kodriguez stated that the roof hatch was brokc11, and that it required two hands to close. Id. at 13, 23-28, 33-34. Rodriguez also stated that thc ladder s top rung was a mere 1 % inches from tlic cciling, and that there was a woodcn plank affixed to the wall behind the top and second to the top rungs, and that this lack of clearancc made it vcty difficult to grip either of those rungs. Id, at 30-3 1. Kodriguc7 furthcr stated that Creative gave its workers safety harncsses to use 011 the building s roof alter a scaffold had been erected there, but that the scaffold had not bccn erected, and the safety hamesses had not been supplied, at tlic time of Mayo s injury. Id. at 35-37. Kodriguez noted that he and thc othcr workers had not been supplied with safety belts to use on the ladder to the roof, and that the ladder itsell was not equipped with safcty fcaturcs. Id. at 35, 37. Finally, Rodriguez stated that he had informed supervisors for both C rcativc and the Met that the hatch door was broken and difficult to closc while standing on the ladder. Id. at 25-29. Another of Mayo s co-workcrs, I oshiCole (Cole), was also present whcn Mayo was injured. Sw Notice of Motion (motion scqucnce number 006), Exhibit J, at 33-34, 72. Cole coiifirmed that the ladder s top two rungs wcrc difficult to grip, and statcd that he himselfhad tried unsuccessfully to closc tlic roof hatch immediately before Mayo made his attcnipt to do so. Id. at 34-37. Cole also statcd that, although Creative had supplied its workers with safcty harnesses to use while working oil the bujlding s roof, thcy had 1cft these harnesses on the roof, that the ladder itself was not cquippcd with either n harncss of a safety cage, and that no one [* 5] supplicd him with a safety harness to use on the ladder. Id. at 17-1 9, 48-50, 61, Filially, Cole statcd that hc had discusscd thc difficulty in closing the hatch while standing on the laddcr with both his co-workers and with C rcativc s foreman. Id. at 28. Finally, Mayo has prcsented ai1 experi s report by eiigiiicer Richard Berkenfield (Rcrkcnficld). See Notice of Motion (motion sequence number 006), Exhibit N . Hcrkenfield concludes that the ladder was unsale because there was insufficient clearance between the top two rungs and tlic wall to allow a person ascending the laddcr to get a solid grip on those rungs, and bccause there was no cage or other safety i catiircs on the ladder. Id. at 3-5. Berkenfield also concludes that the foregoing conditions coiistitute a violation of the applicablc safety rcquirenients promulgated by the American National Standard Institute (ANS1). Id. Lincoln Cciiter was deposed on March 3, 2010 by its chiefengineer, Ronald Husch (Busch). See Noticc of Motion (motion sequence iiuinber OM), Exhibit D. Buscli stated that the building in which Mayo was injured, the ladder and tlic roof hatch, all belonged to the Met rather than to Lincoln Center. Id. at 1 1-1 2. Rusch also stated, however, that Lincoln Center paid a portion of the cost o l the scraping and repainting of the window washing systcni s steel carriage rails, because those rails ran along the roof to a portioii of the building that is under Lincoln Ccntcr s control. Id. at 1 1 . Busch acknowledged that the lnddcr that Mayo fell from was not equipped with any safety katiires. Id. at 102-103. 1 IC also acknowledged that the roof hatch was of a type that required two hands to close. Id. at 100-101. Finally, Busch noted that the particular roof hatch that Mayo was gripping at the timc of his fall was replaced on November 13,2008, shortly after Mayo s September 16, 2008 accidcnt. Id. at 62-64. Busch stated that he himself did riot recall having had any difiiculty in closing the hatch. Id. at 51-53. 4 [* 6] The Met was deposed on Decembcr 23, 2009 via its house manager, James Naples (Naples). Scc Notice of Motion (motion scqucncc numbcr 006), Exhibit C . Naples acknowledged that the Met had retaincd Strauss and Creative to perform the work that is the subject ofthis action. Jd, at 12-14. Naples also acknowledged lhat tlic laddcr that Mayo fell from did not have a safcty cage or any other safety features and that no maintcnance had ever bccn pcrfomicd on it. Id. at 34, 41-44. Naples stated, however, that thc building in which Mayo was injurcd was owned by Liiicolii Center, aiid that the Met was nicrely a tenant therein. Id. at 90-91, 127-128. To Naples knowledge, the Met had not providcd cithcr Mayo or any ofhis coworkers with any safcty cquiprnent to use on thc building s roof. ld. at 46-48. Naples also stated that he didn t inspect the accident site after Mayo s injuiy, or recall anything about the condition of the subject ladder or hatch. I d at 71-73. Strauss aiid Creative were both deposed on February 19, 201 0 via Kalph Drewes (Drcwes). who altcniately described himself as a vice prcsidcnt of both companies, and denied that he was an officer or employee of cjtlier of thcm. IC;ce Notice of Motion (motion scqucncc number 006), Exhibit (3. Kcgarding the rclationship between Strauss and Creative, Drcwcs stated that Victor Strauss is the president of the former company, and that Hillary Klein (Klein) is the president o l the latter, but that he himself was responsible [or running thc day-to-day operations of both companies. ld. at 8-1 0. llrewes admitted that he had executed the general contract with Naples of the Met on behalf of Strauss, and that Victor Strauss thcrcafter executed thc subcontract (on behalf of Stmiss) with Klein (on behalf of Creative), although his own [i.e., I As will be discussed, however, the general contract that Ilrewes executed actually names hoth Strauss and Creative as contractors. See Notice of Motion (motion sequence number 006), Exhibit B. [* 7] Drewes s] initials also appear next to Klein s signature. /d. at 13; Mitchell Affirmation in Opposition to Motion (motion sequence number 007). Exhibit E, at 13. Drewes also admitted that he had executed contracts on behalf of both Strauss and Creative on other occasions. Id. at 3 1-32; 35. Drcwcs furthcr stated that Creative did not supply any sakiy equipment at the work site, but acknowledged that Strauss did supply some equipment, consisting of hard hats, safety belts, line yards [sic],respirators [and] goggles, which it kept locked in a gang box on the building s roof. Id.; Noticc of Motion (motion sequence nuiiiber 006), Exhibit (3, at 17, 19. Ilrcwes statcd, however, that none o r that sakty equipment was either designed for use in ascending the laddcr to thc roof, and that it was kept on the roo[ because it was intended to be used only there. Id. at 27-3 I . Drcwes stated that no one had ever complained to hini about the condition of either the subject laddcr or tlic roof hatch. Id. at 21. Drcwes also stated that, subsequent to Mayo s injury, he inspected the accident site and found that the hatch opcned and closed freely. Id. at 22. The general contract that the Met executed 011 September 3,2008 named both Strauss and Creative as contractors. LSm Noticc of Motion (motion sequencc number 006), Exhibit B. However the final page was signed by Naples, on bclialf of the Met, and Drewes, on behalf of Slrauss. Id. The relevant portions of the general contract provide as follows: ARTICLE 10 - CONTRACTOR 10.1 1 To the fullest extent pennitled by law, the Contractor [Le., Strauss/Creativc] shall indemnify and hold harmless the Owncr [ i c , thc Mct] ... h 1 1 1 and against all claims, damages, losses and expenses, including but not liiiiitcd to attorneys fees, arising out of or resulting lrom thc pcrforniance of the Work, provided that any such claim, damage, loss or expense: (1 ) is attributable to bodily in-jury ..., and (2) is causcd in whole or i n part by any negligent act or mission of thu Contractor, any Subcontractor, anyone directly or indirectly 6 [* 8] employed by any of theiii ,.,, regardless of whether or not it is causcd in part by a party indemnified hereundcr. .._ In any and all claims against the Owner ... by the ciiiploycc of the Contractor, m y Subcontractor, anyone directly or indirectly employed by any of them ... thc indcninification obligation under this Paragraph 10.1 1 shall not bc limited in any way by any limitation on the amount or type of damages, compensation or bcncfits payablc by or for the Contractor or any Subcontractor undcr workers or workmen s compensation acts, disability benefits acts or other employee benefits acts. ... AII T ICLE 1 1 - SUBCONTlWCTS .,, 1 1.2 Contracts between the Contractor [i.e., StrausslCreative] and the Subcontractors [i.e., Crcativel shall (1 ) rcquirc cach Subcontractor, to the extent of the work to be performed by the Subcontractor, to be bound to the Contractor by the terms of thc Contract Documents, and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by these Documents, a s s u i i m toward the Owner ... and (2) allow to the Subcontractor the benefit of all rights, remedies and redress affordcd to thc Contractor by the Contract Ilocunicnts. ARTICI,E 17 - INSURANCE 17.1 Contractor s liability insuraucc shall bc purchased and maintained by the Contractor to protect him from claims under workers or workmen s cornpcnsation acts and other eiiiploycc benefits acts, claims for damages because orbodily injury ... which may arise out of or result from the Contractor s operations under this Contract, whcther such operations be by himself or by any Subcontractor or anyone directly or indirectly einployed by any of thcm. l his insurancc ... shall include contractual liability insurancc applicable to the Contractor s obligations under Paragraph 10.11, ... 17.2 The Owner shall hc responsihlc for purchasing and maintaining his own liability insurance and, at his option, may maintain such iiisurance as will protect him against claims which may arise from operations under the Contract. EXHIBIT D - INSURANCE REQUIREMEN I S a. Workman s Compensation Irisuraiice covering contractor s cniployees niccting all statutoiy rcquiremcnts prcscri bed in New York State. b. Owners and contractors protective liability Insurance with a combined singlc limit of $5,OOO,OOO,OO. Liability should add [thc Met] as an additional insured and should include contractual liability and completed operations coverage. Comprehensive General Liability. Combined coverage for property and C. 7 [* 9] bodily iiijuiy with a miriiniuni single limit of $5,000,000.0O (Limits m y be met with an Umbrella Policy. ). Contractor will supply [the Met] with a Hold I larniless and indemnify d. them against any and all claims arising froni tlicir work relative to this agrecmciit. Id.; Exhibit B. As previously mentioned, the subcontract was also cxccutcd on Scptetn bcr 3, 2008 by Victor Strauss on behalfol Strauss as thc contractor, and Klein, on behalf of Creative as the Scc ~ubcontractor. ~ Mitchell Afiirmation in Opposition to Motion (motion scqucncc nunibcr 007j, Exhibit C. The relevant portions of the subcontract providc as follows: Article 1 - lhe Subcontract Documents 1.1 The Subcontract Documents consist ol ( 1) this Agreement; (2) the Prime Contract [i.e., the gcncral contract] ...between the Owner and Contractor and the other Contract Documents enunicratcd therein ...;(3) other documents listed in Article 16 of this Agrccment; and (4) Modiiications to this Subcontract issued after execution of this Agreement. Article 4 - Subcontractor ... 4.6 - Indemnification 4.6.1 To thc fullcst cxtent perniitted by law, the Subcontractor [Le., Creative] shall indcninify and hold harmless the Owner [Le., the Met] and/or the Contractor [Le., Strauss] and cmployces of either ofthem from and against claims, damages, losscs and expenses, including but not limited to attorney s fccs, arising out of or resulting froni pcrforrnmce of [Creative s] Work, provided that such claim, damage, loss or expense is attributable to bodily injury ... caused in whole or in part by negligent acts or omissions of [Creative] ... anyone directly or indircctly employed by them ... regardless of whether or not such claim, damage, or loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridgc or othcrwise reduce othcr rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph 4.6. 4.6.2 In claims against any person or entity indemnified under this Paragraph 4.6 by an eniployee of [Creative] _ _ . indcniiiification obligation under this thc 2 The subcontract also designates the Met as thc owner. See Mitchell Ailirmation in Opposition to Motion (motion scqucncc number 007), Exhibit C. 8 [* 10] paragraph 4 . 6 shall not be limited by a limitation on amount or type ofdamages, compensation or bcncfits payable by or lor [Creative] under Workers or Workmen s Uompensation acts or othcr criiployec benefit acts. _.. 4.6.4 [Creative] waives all rights against [Strauss], [thc Mct] ... and their agents, o i k e r s , directors and crnployees lor the recovery of damages to the extent that thesc damages arc covered by Commercial Gcncral I .iability IJmbrclla Liability, business auto liability or workers compensation and employer s 1 iability maintained pcr insurance requirements stated above. Ridcr A - Gcneral Requirements and Checklist Your scope of work is all work of your trade ( Work ) called for to be performed in accordance with Contract Documents, including but not limited to the lollowing ._. 5. Providc al I specified insurance coverage. Provide all additional insureds as required. Provide all hold harnilcss clauses tls required. Attaclmmit - Subcontractors Safety Requirement [Creative] ackiiowlcdgcs that it understands the sakty requirements set forth herein, aiid shall implement and enforcc thc following safety requirements throughout its stay on this pro-ject: ... S) C) D) M) [C reativc] shall submit to [Strauss] prior to the start of work a Job Specific Safety Program which outlines thc scopc of work involved with their operation, any special equipmcnt that will be utilized, potential safety that may be encountered during the course of exposures to the workers ._. the operation and an outline and description of controls that [Creativc] will implemciit aiid enlo orceto control these exposures to ensure the safety of the workers and public. [Creative] in addition to adhcririg to thcir own Job Speciiic Safety Program shall also adherc to the [Strauss] Job Specific Safcty Program and the safcty direction of the Straws Sakty Director, Project Manager and Project Superintendent. [C rcativcj shall be solely responsible lor the salety of its employees. Nothing in this document or the contract shall be construed to reduce in any way that responsibility of [Creative] or to create any duty or responsibility o l [Strauss] to providc or ciiforcc safety rcquircnients for [Creative] _.. [Creative] shall agree to hold harmless and to indemnify [the Mct], Engineer/architect and [Strauss] from and on account of any lawsuits, darnages and out-of-pockct loss, including costs and rcasoiiablc attorney fees i n rclation to any safety violation by reason o l any acts or omissions by 9 [* 11] [Creative], or any acts or oiiiissioiis ol [Creative s] officers, directors, employees, agents or consultants. Id. On November 5 , 2008, Creative obtained a general commercial liability insurance policy (the GCL policy) from third-party dekndant Nova Casualty Company (Nova). See Notice of Motion (motion scquciicc iiuinber 006), Exhibit D. I he additional cnsurcd cndorscmcnt to the GCL policy named both thc Met and Strauss as additional insureds for purposcs of policy coverage. Id.; Exhibit E. That endorsenicnt spccifically provides that: A. Section I1 - Who Is An Insured is anicndcd to includc as an insured any ... organization for whom you are performing operations when you and such ... organization have agreed in writing i n a contract or agrccrnent that such ... organization bc added as an additional insured on your policy. Such ... organization is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured. A[n] ... organimtion s status as an insurcd undcr this eiidorsenieiit ends when your operations for that insured are completed. Id. The commercial gcncral liability coverage form portion of the GCL policy provides, in pertinent part, as follows: Section 1 - Exclusioiis 1. Insuring Agreeinelit ... a. Bodily in.juiy ... will be deemed to have beeii known to havc occurred at the earliest time when any insured [i.e., the Met] ... or any employee authorized by you to give or receive notice of an occurrence or claim: (1) reports all, or any part, of the bodily injury ... to LIS or aiiy other insurer; (2) receives a written or verbal demand or claim for dainages because of the bodily injury ...; or beconics awarc by aiiy othcr means that (3) bodily injury has occurred .._. Scctjoii 1V - Commercial General Liability Conditions ... 10 [* 12] 2. Duties in the Evcnt of an Occurrence, Ofl ense, Claim or Suit. a. You must see tu it that wc arc notified as soon as practicable of an occurrence or an offcnsc which niay result in a claim. 1 0 thc extent possible, notice should include: (1) How, when and whcrc tlic occurrcnce or offciise took place; (2) I hc names and addresses of any in; ured persons and wilnesses; a i d (3) The nature and location of any injury or dainagc arising out ol the occurrence or olyense. Id. Creative sent thc Mct a ceiqificate of insurance that plainly states that cerlilicate holder [the See Met] and Strauss Painting are iricluded as additional insured~.~ Mitchell Affirmation in Reply, Exhibit F. Aftcr Mayo cominenced the instant action, the Met alleges that it received copies of the summons and complaint from the New York Secretary of State on Noveinber 26, 2008, and from Mayo s counsel on Dccember 4, 2008. ,See Notice olMotion (motion sequence number OlO), Exhibits C , I-!. Tlic Met further alleges that, on December 5 , 2008, its general j counsel sent a letter to Strauss and Creative at their shared office demanding indemnification from those parties, and that thc general counsel sent a second letter containing the same demand on December I 1 , 2008. Id,; Exhibits I, J. The Met next alleges that its general counsel forwarded copies of that corrcspondence to the Met s insurance broker, who, in turn, forwarded it to the Met s own insurance carricr, I ravelers Insurance Company (Travelers). Id.; Mitchell Affirniation, 7 21. The Met alleges that its insurance carrier sent a third demand letter to Slrauss, Creative aiid Nova on Dcccnibcr 29, 2008. Id.; Exhibit L. Finally, the Met presents a copy of a letter from Nova to thc Mct s iiisuraiice carrier (Travelers), dated January 28, 2009, that stated that Nova disclaimed coverage on the ground that the Met breached the notice provision of the GCI, policy by failing to reporl the occurrencc of Mayo s accident in a timely fashion. kf,;Exhibit M. l hc [* 13] Met also notes that Nova never directly sent il a disclaimer letter (disclaimer was scnt only to the Met s iiisurance carrier, Travelers). Id.; Mitchell Affirmation, 7 24. Mayo commenced this action on November 19, 2008 by serving a sunimons and complaint that sets forth caiises of action for: 1) coInnion-Iaw negligence; 2) violation of 1,abor Law 5 200; 3) violation of Labor L,aw tj 240 (1 ); 4) violation of 1,nhor Law lj 241 (6); 5 ) violation of Industrial Code $5 23-1.5,23-1.7 and 23-1 2 1 ; and 6) loss of corisortiurn (on behalfol co-plaintiff Isabel Mayo). Sw Notice olMotion (motion sequence number 006) Exhibit N. Defendants filed timely answers. /d I hercaftcr, thc Met cominciiccd its third-party action on February 6, 2009, by serving a summons and complaint that set forth causes of action for: 1 ) common-law indemnification (against Strauss and Creative); 2) contractual indcmnification (against Strauss and Crcativc); 3) brcacli of contract (against Strauss and Creativc); and 4) breach of contract (against Nova). fd. l h e third-party defendants served their respective answers and, thereafter, Strauss served an amended answer that inciudcd a cross-complaint against Creative that sets forth claims for: 1 ) contractual indemnification; 2) common-law indemnification; and 3) court costs and attorney s fees. S w Noticc of Motion (motion scquencc number 009), Exhibit F. In a decision dated October 8,2009, this court granted the third-party defendants motion fur partial suininary judgment to the extent of dismissing the Met s iirst c;tuse ol action for common-law indemnification as against Creative only (motion sequciicc number 00 I). See Notice of Motion (motion sequence number 007), Exhibit L). Now before the court is Mayo s motion for partial summaryjudgment on the issue of liability on his third causc of action (violation of Labor l a w 240[1]), the Met and Lincoln s crossmotion for sunirnary judgment dismissing the complaint, as well as five other motions and a 12 [* 14] cross-motion for suminary judgment with respect to the third-party complaint, and a motion to aiiiend Creativc s third-party answer; nine (9) motions in total. DISCUSSION When seeking summaiy jiidgment, the moving party bears thc burden of proving, by compctent, admissible evidence, that no inaterial and triable issues of fxt exist. S ec e.g. Winegrrtd v New York llniv. Mcd. Ctr., 64 .NY2d 85 1 (1 985); Sokolnw~, Duncrud, Mercadiiicr & C m-rerasLLP v Lcrchcr, 299 AD2d 64 (1st Dept 2002). Oncc this showing has been made, the burden shifts to the party opposing thc motion to produce evidentiary proof, in admissible form, sufficient to establish thc existence of inaterial issucs o l h c t which require a trial of the action. See e.8. Zzick~rmcrn Cily of New York, 49 NY2d 557 (1 980); Pemherlon v Nt w Z ork City Yi., I) Auth., 304 AD2d 340 (1 Dept 2003). Fur-thcr, it is well settled that on a motion i or suniinary judgment, the construction of an unambiguous contract is a question of law for the court to pass on, and ... circunistaiices extrinsic to the agreement or varying interpretations of the contract provisions will not be considered, where ... the intention of the parties can bc gathered from the instrument itself. M~7ysck& Murnn, h7c. v S G. Warburg & Co., h c . , 284 AD2d 203, 204 ( 1 st Dcpt 2001), quoting Lcrkc Conslr. & Deviic lopmcnt I, orp. v City uJ New Yurk, 21 1 AD2d 514, 5 15 (1 Dept 1995). Now, after careiul considcration, the court disposes of the instant motions and cross motions as hllows. I. Plaintiffs Motion for Partial Suniniary J u d ~ m e n011 the Complaint (motion sequence t number OOG) In his motion, Mayo requests partial summary judgment on the issue of liability o n his third cause of action for violation ofl.abor 1,aw $ 240 (1). In responsc, the Met and Lincoln 13 [* 15] Center cross-move for summary judgment to dismiss the entire complaint. For purposcs of clarity, the court will dispose of Mayo s motion iirst and defendants cross-motion sccond. With respcct to Mayo s third cause of action, Labor Law Cj 240 (1) provides, in pertinent part, that: All contractors and owiiers and their agents, .,, in the erection, demolition, repairing, altering, painting, clcniiing o r pointing of a building or structure shall lurnish or crect, o r c a w c to bc furnishcd or erectcd for tlie performalice olsuch labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, a i d other devices which shall bc so constructcd, placed and operated as to givc proper protection to a person so employed. Thc Court of Appeals holds that the hazards contemplated by the statute are those rclated to the effects of gravity wherc protective devices are called for either because of a difference between the elevation level of the requircd work and a lower level or a difference between thc elevation lcvel wherc the workcr is positioiied and the higher lcvel of the rnatcrials or load bcing hoisted or secured. Rocovii.1~ C onso7Iidutt.J Edisori C u., 78 NY2d 509, 514 (1 991). This statutc exists v solcly I or the henelit of workers and operatcs to placc the ultimate responsibility for safcty violations o n owners and contractors, not the workers. Sunu/uss v Cnnsolidu/ed Investing Co., Inc., 10 NY3d 333, 342 (2008). A plaintiff is requircd to show that the statute was violated and that tlie violation proximately caused his injury. C aizill v Trihnrwgh Bridge and Tunnel Azrlhority, 4 NY3d 3 5 , 39 (2004). Herc, Mayo argues that his accident falls squarcly within the purview of Labor Law 5 240 ( I ) becausc there is sufficient evidence of both a violation and causation. ,See Notice of Motion (motion scquence number O O h ) , Faegen burg Aflirmation, 17 22-35. With respect to thc foniier element, Mayo notes that the Appcllate Division, First Department, has long recognized that iixed-wall ladders are spcciiically included within h e statute s coverage. Spittlri v C l ~ w a l 14 [* 16] Ilolels, 247 AD2d 297, 299 ( l S tDcpt 1998), d i n g Opwa v New York C iy Huus. Au/h., 226 AD2d 3 10, 3 I 1 ( I T t I k p t 1996). 1Icre, there is no doubt that Mayo had to ascend a Gxed-wall ladder at the building in order to perform his scraping and painting work on the roof abovc it. Nevertheless, in thcir cross-motion, defendants raisc three arguments in support of their contention that Mayo has failed to establish that the condition 0 1 the ladder viulatcd Labor Law 8 240 (1). Defciidants firs1 cite to the decision of the Appellate Ilivision, Second Department, in 0 DonoRhue 1 NL WYork C ily School C onstr-.Aulh. ( 1 AD3d 333 [2d Dept 2003]), in which the plaintiff, while ascending a ladder arfixed to the wall, fcll a h being struck in thc head by a hatch that fell and closcd o n him while he was atteiiipting to pass through it. The Second Department ovcrturned the trial court s ruling and disrnisscd the plaintiffs Labor Law 5 240 ( I ) claim on the ground that thc hatch did not constitute a lalling object against which the statute was designed to alford protection. I d at 335. Deleendants argue that the 0 Donoghzw holding niandatcs the dismissal of Mayo s claim bccause the hatch at issuc in this action is, similarly, not a safcty device within the meaning of Labor Law 5 240 (1). Scc Notice ofCross Motion (motion sequciice number OOS), Berkowitz Affirmation, 1 23. 1 Mayo replies that this holding is both i actually inapposite and bad law. See Mot. Seq. No. 006, Faegenburg Al firmation in Opposition and I<cply, 71 26-27. The court agrees that the within case is distinguishable. Mayo docs not contcnd that the instant liatch fell on him, but only that he fcll while trying In close it. Also, although Mayo s moving papers occasionally dcscribe the hatch as dekctive, he has Iievcr advanccd an argument tlial thc hatch s purported defects (such as the hatch fell on him) caused his irijuries, but has, instead, maintained that the condition of the Indu cr [* 17] violated the statute bccause it lacked safety Ieatures, and that this was the proximate cause of his iiijurics. Thus, the court agrees that 0 Doi.toghzieis inapposile, since it applies to both a diffcrcnt hctual scenario - i.c., a killing hatch - and a diffcrcnt elevation-related risk - Le., a worker positioned below a load bcing hoisted above him. Mayo also argues that 0 Dnnoghue is 110 longcr good law because it has bccn overruled by the C oiirt of Appcals decision in Runner NCWYork Slack Exchange, h a . I) ( 1 3 NY3d 599 [20091). ,See Mot. Seq. No. 006, Faegenburg Affirmation in Opposition and Reply, 7 26. I hisdoes not appear to be entirely accuratc; however, the court need not address Mayo s contention since 0 llonoghue is not controlling under the within facts. Defendants next cite the Second Department s recciit decision in Wcdker 17 Cily ofNew York (72 AD3d 936 [2d Ucpt 2010]), in wliich tht: plaintiff, while ascending a fixcd-wall ladder froin a subterranean sewer, fell ai ter an inflatable support dcvice that he had placed in the sewer burst and caused him to lose his grip. The court upheld the tiial court s dismissal of the plaintiffs Labor Law (j 240 (1) claim on the ground that the laddcr itself was a proper safety device[] ... entirely sound and in placc. Id. at 937. Defendants arguc that the instant laddcr is, similarly, not defective. See Notice of Cross Motion (motion sequence tiumber OOS), Berkowitz Affirmation, 7 24. Mayo replies that the ladder that he [ell from did violate the statute bccause its top two rungs were unusablc (due to inadequate clearance between those rungs and the wall to which thc ladder was affixed), and because the ladder lacked a safety cage or other safety dcvice. See Mot. Seq. No. 006, Faegenburg A f h n a t i o n in Opposilion and licply, 17 25, 27-28. Mayo citcs to HcrkenGeld s cngineer s report to suppoi-t his argumenl. Id. at 27. Mayo also cites to thc [* 18] Appellate Division, First Department s, decision in Mcnnis v Cornmul 380, fnc. (54 AD3d 641 [ I Dept ZOOS]), in which the Court upheld the trial court s finding orliability pursuant to Labor Law 5 240 ( I ) where the fixcd-wall ladder that the plaintiff fell from had water regularly sprayed onto it h m cooling towers localed above a roof hatch, and thus rendering it periodically slippery. Mayo further citcs the First Department s decision in Priestly v Mui7tcfiore Med. Ctr./Kinskin Med, C , k (1 0 AU3d 493, 494 11st Dept 20041) in which the Court reversed the trial court s dismissal of the plaintiffs Labor Law $ 240 ( I ) claim because the ladder thal he fkll from while ascending a rooftop watcr cooling tower wobblcd and swayed, ... was only two k e t widc and lacked sidc rails lor gripping, and ... there was a slippery substance on the very narrow, round rungs. The Court concluded that the coiidition of the ladder establishcs that his injuries wcre & at least partially attributablc to defendant s I ailure to take statutorily mandated safety measures to protect him from risks arising from an elevation diffcrential, and thus that grounds fbr the imposition olliability pursuant to Labor Law $ 240 (1) wcre established [internal citation ornittcd]. Id. at 494. Mayo concludes that, like these two ladders, the ladder that he fell from violated Labor Law $ 240 (1 because the lack of clearancc on its top two rungs rendered it permanently hazardous, and bccause it lacked a safety device to protect against that hazard. See Mot. Seq. No. 006, Faegenburg Arfirniation in Opposition and Reply, 7 28. Defendants reply papers object - improperly - to the timeliness of Mayo s submission of Berkenfield s rcport, but otherwise merely rcstate their original argument.3 ,%e Mot. Seq. No. 006, Berkowitz Affirmation 3 Creativc also submitted opposition papers to Mayo s motion, in which Strauss joincd, wherein thcy argued that the subject ladder was not a device within the mcaning of Labor Law 5 240 (1)- S M Mot. Seq. No. 006, Dachs Affirmation in Opposition, 77 13-14; Mot. Seq. No. 006, Janowitz Afh lrmationin Opposition, 7 2, However, tlic court has already rejectcd 7 this contcntiori on the strength of the First Department s holding in Spileri 1 (- hatwafHotels (247 17 [* 19] in Keply, 117 5-1 6. Altcr consideration, the court discoillits deferidants reliance ori the Second Department s decision in Wolkcr. 17 ( ily oj NV cw Ynrk (72 AD3d 936, supru). That decision is clearly factually inappositc, since the plaintiff therein fell from the ladder in question when he was startled by a11 exploding rubbcr support dcvicc. No similar situation is allegcd to exist here. Moreover, defcndants are incorrect to assert that tlie statutc irnposcs on Mayo tlie burden of proving that the subjcct laddcr was defcctivc. Labor Law $ 2 4 0 ( I ) rcqirires a claimant to cstablish that a ladder was not so constructed., placed and operated as tu give proper protection to a person so employed. 1 1Mmtalvo 1 v J. Petrocclli Const., Inc. (8 AD3d 173, 175 [ I Dept 2004J), tlie Appellate Division, First Department, ilatly held that: [Plaintii f was] not required to show that the ladder on which he was standing was dcfective (Orelluno v 29 Eust 3 7th Strtet Reulty Chrp., 292 AD2d 289,290-291, [ l I k p t 20021) ... It is sufficient [or purposes of liability undcr section 240 (1) that adequate safety devices to prevcnt the ladder i rom slipping or to protect plaintiff from falling were absent (Orellano v 29 Emt 3 7th Street Real1.y Ckrp., 292 AD2d at 29 1; sec also I h s i l v n v A J C-oontr. Co., 262 AD2d 21 4 1St Dept 19991; Schultze v 585 W 214th St. Owners Cbrp., 228 AD2d 3 8 1 11ct Dept 19961). of Thus, the court rejects defendants argument regarding the alleged ~ioti-~ defectiveness the ladder. Thelaw allows Mayo to establish a violation of L,abor Law 4 240 (1 1 if he can demonstrate that hc was exposed to a elevation-related hazard because the subjcct ladder was not i properly placed (i.e., affixed to the wall in such a way that its top rungs were unusable), and no adequate safety dcviccs were provided to him. liere, Mayo s factual evidence regarding the puiyortcdly hazardous condition of the ladder AD2d at 299) that fixed-wall ladders CIW dcviccs within the statute s coverage. 18 [* 20] that he fell from (i.c., the deposition testimony regarding the inability to use the top rungs of the ladder closcst to the roof hatch, and the expert s rcpcii-t that such constitutcs a violation of the ANSJ safety rcquircments) is compelling. The court notes that defendants have not presented any similar factual evidence to reliitc Mayo s contention that the laddcr w;~s hazardous and/or not properly placed . Thc court hrther notcs t h t in PI-icslly v Montofiore Med C:tr./Eimtein Mcd C rr (10 AD3d 493, szym), the First Department did indeed reinstate the plaintifl s Labor Law 5 240 (1) claiiii based on evidence of the subject ladder s condition that establishes that [plaintiffs] injuries wcre at lcast partially atlri butable to dcfendant s hilure to take statutorily mandated safety nicasures to protect him f i m i risks arising from an elevation difl ercntial. Id. at 494-95. Similarly, hel-c, Mayo s injuries were at least partially attributable to defendants failurc to providc him with a ladder or other safcty device so constructed, placcd lor] operated as to give proper protection to a person cmployed at a job that involvcd a risk caused by an elevation differcntial. Labor Law 240 (1). 1 lad all of the ladder s rungs becn usable, or had tkc ladder been equipped with a safety cagc, it may havc been constructed to providc against such a risk; had it been provided with a tie off, it may have becn operated to provide against said risk; howcver, it is not disputed that i t was not. fhcl-dore,the court concludes that Mayo has indeed established that thc construclion/placelJient, or iiiadcqiiacy of safety devices of the subject ladder, violated Labor Law $ 240 (11, Defendants filial argument is that any purported defects in thc hatch and/or ladder were not a proxiinate cause of this accidcnt. Sce Notice ol Cross Motion (motion sequence number 008), Herkowitz Affirmation, 71 25-29. 13efcndants cite the Court of Appeals ruling in C ahill v Triborough Bridge u77d Tzinnel Authol-ity (4 NY3d 3 5 , szpra) thal whcre a plaintifl s own actions [* 21] arc the sole proxiinatc cause of the accident, there can be no liability under 1,abor Law $ 240 (1). Id. at 39. Defendants refer to Drewcs s deposition testimony that Strauss had supplied safety equipment at the building, that Mayo chose not to use that equipment, and assert that, therefore, the sole proximate cause of this accident was the actions of the plaintiff.. Mol. Seq. No. 008, Berkowitz Afi-innation, 1 27. Creative joins in this a r g u ~ n c n i See Mol. Scq. No. 006, Dachs 1 ,~ Affirmation in Opposition, 77 7- 10. Mayo rcspoiids that it was thc absence of necessary safety features such as a safety cage .._or other safety device [that was] the proxirnatc cause of [his] fall. ,Yet. Mot. Scq. No. 006, Faegenburg Ai finnation in Opposition and Reply, 7 29. Mayo cites a quantity of Appcllale Division, First Department, precedent that evidence of a defcndant contractor s fiilurc to provide safety devices warrants a finding of absolute liability under Labor Law 5 240 (1 j. See r.g Rouinnczuk v Mc/ropolitnn Ins. and A n m i @ Co., 72 AD3d 592 (1 st Dcpt 2010); Kiizer v 6 E m t 43rd Sirtlet Cory., 57 AD3d 41 2 (1 Dept 2008); Ranieri v Holt Constr. Cory., 33 AD3d 425 (ISt Jlepl 2006); .Peraha ~ A r n e r i c m ~ and TcI. Co,, 29 AD3d 493 (1 7kl. Dept 2006); Ben Gtii Zhzi v G i m t River Holding, LLC, 16 AD3d 185 (1 Dept 2005). Dcfendants reply papcrs restate thcir original argumcnl, and reassert the contention that ibr whatevcr reason, as [Mayo] came down the ladder ... he did iiot iise any of the safety equipment that was available to him. See Mot. Seq. No. 006, Berkowitz Affiimation in Reply, 7 20. After reviewing the record, defendants proximate causation argumcnt is rejected. Drewes s deposition testimony did no/ indicate that there was safely equipment available i or Mayo to use while ascending thc ladder to the building s roof. It stated that the extant safety 4 As previously mentiorid, Strauss joins in Creative s arguments without submitting any of.its own. ,Scr Mot. Scq. No. 006, Janowitz Affirmation in Opposition, 7 2. 20 [* 22] equipment was kcpt in a locked gang box OJI the performing work on the roof. of Motion (motion sequence number 006), Exhibit G, at ,See Notice roof and was intended to be used only while 17, 19, 27-3 1. Indeed, Drcwes speciikdly stated that lie did not know of any sakty equipment that was capable of being used 011 tlic subjcct ladder, and opined that such equipment was unnecessary. Id. This is, of-course, mere speculation, as is defendants implication that, had he been truly concerned, Mayo could have returned to tlic roof, somehow obtain a key, open the gang box, lake13 a safcty hanicss out, aid used it, whilc closing the hatch when he descended thc ladder at the end of his shifi. Such speculation caimot substitute lor defendants statutory duty to provide Mayo with a ladder so constructed, placed arid operated as lo give proper protection while he was eiitcring and exiling his work place. Labor Law 240 (1). Furlher, even if it were factually supported, defendants characterization would at best descri be an act of comparative negligence, which is not a defense under Labor Law 5 240 (1). See e.g ficono v Rnckefkller Cenler North, Inc., 68 AD3d 425 (1 J k p t 2009); Aponte v City of N e w York, 55 AD3d 485 (1 St Dcpt ZOOS); Ernish 17 Civ o f N m York, 2 AD3d 256 (lStDcpt 2003). Accordingly, having established both a statutory violation and proximate causation, Mayo is entitled to partial summary judgment on his third cause of action on the issue of liability, with the issue of damages being reserved for trial, and that the branch of defendants cross motion that seeks surnrnqjudgmcnt to dismiss said cause of action is dcnied. 11. Defendants Cross Motion for Suminary Judnmcnt on the Complaint As previously mentioned, the balance of defendants cross motion requests summary judgment to dismiss the entire complaint. The court notes that defendants cross inotion makes no mention of Mayo s sixth cause of action (for loss of consortium), and that Mayo s opposition 31 [* 23] papers itre dcvoid of any argument to support his Poiu-th and fii th ctliises of action (which allege violation of Labor 1,aw S; 241 (6) and various provisions of the Industrial Code, rcspectively). The loss of consortium claim is entirely dcpendent on Mayo s succcss in establishing any of his other claims. Since the court has already grantcd partial swiimary judgment on Mayo s third cause of action, the loss of consurtium claiiii remains viable, and there arc no grounds upon which lo dismiss it. With rcspect to Mayo s fburth and fifth causes of action, it appears that his opposition papers are devoid of any argument against defendants request that tlicy be dismissed. Therefore, the court dcems that Mayo has abandoned tlicse claims. Accordingly, defcndants cross-motion is dcriied with rcspect to Mayo s sixth cause of action, and grailtcd with respect to Mayo s fourth and iiftli C ~ U S C S action. of The court now turns its attention to Mayo s first and second causes of action which respectively allege common-law negligcnce and violation of Labor JAW $ 200. In Urtegu v / uccicI (57 AD3d 54, 61 [2d Dept 2008]), the Appellate I)ivisioii, Second Department, cogently summarized the law goveriiing Labor J.,aw $ 200 as follows: Labor Law fi 200 (1) is a codification of h e common-law duty of an owner or general contractor to provide workers with a safe place to work .,. Cases involving Labor Law 5 200 fall into two broad categories: namely, those wherc workcrs are injured as a result of dangerous or defective premises conditions at a work site, and those involving the rnarmcr in which the work is performed. These two categories should bc viewcd in the disjunctive. Where a preniises condition is at issue, property owners may bc held liable for a violation of Labor Law $ 200 if the owiicr eithcr created the dangerous coiidition that caused thc accident or had actual or constructive notice of thc dangerous condition that caused tlie accident. Hy contrast, when the manner of work is at issuc, no liability will attach to solely hccausc [he or she] niay have had notice of the allegedly unsafc the ow~ier rnanrier in which work was perlbnned. J<athcr, when a claiiii ariscs out of alleged 22 [* 24] dcikcts or daiigers in the methods or inaterials of the work, recovery against the owner or gcneral contractor cannot be had under Labor Law 5 200 unless it is shown that tlic party to be churgcd had the authority to supervise or control the performance of the work [intcrnal citations omitted]. Here, defendants argue that Mayo s first and second causes oi action should be dismissed bccause they did not supervise or control his work. &e Notice of Cross Motion (motion sequencc 1 number OOS), Herkowitz Affirmation, 17 42-5 I . Mayo concedcs this point, but responds that dcfcndaiits entire argument is misplaced, because his claims rest on a theory of hazardous premises conditions rather than on the c i~ieaiis manner of his work. Sce Mot. Scq. No. 006, and Faegenburg Affirmation in Opposition and Reply, 77 38-47. Mayo argues that, pursuant to this theory, hc need only demonstrate that dcfendants caused, or had actual or constructive notice of, thc allegcdly hazardous condition of the ladder that he fcll from. Id. Mayo s lcgal analysis of this poiiit is correct. ,See Ortcgu v Pzrccirx, 57 AD3d at 61, siipra. Therefore, the court re-iects defendants contentions, as Mayo s causes ol action should be analyzcd as daiigerous condition claims. As it is a dangerous condition claim, Mayo next appropriately argues that there are factual issues as to whether dcfendants had actual or constructive notice of the allegedly hazardous condition which prccludcs that granting of suinniary judgment in defcndants favor. As to actual notice, Mayo clainis that he and his co-workers Rodriguez and Cole, testified at their depositions that they had complained to Creative s supervisor and/or Met employees about the difficulty in closing the hatch whilc standing on top or the ladder. Set. Mot. Scq. No. 006 Faegenburg, Affirmation in Opposition and Rcply, 7 47; Nolice of Motion (motion sequence number OOB), Exhibit E, at 30-38; Exhibit J I, at 25-29; Exhibit I, at 28. Mayo notes that he and liis co-workers began making thcse complaints on the day they started work - thrce days before 23 [* 25] corrective action to be taken. Mayo argues that defendants 11ad at least three days notice of the problem with the specific ladder and hatch at issuc hercin as a rcsult d h i s , Rodriguez s and Cole s complaints on the day that they slarted work. &SileMot. Seq. No.006, Faegenburg Affiniiatioii in Opposition and Reply, 1 47 ? he condition complained of - i.c., a ladder whose top two rungs were unusablc due to iiisuflkicnt space betwcen them and tlic wall, and which lacked a safety cagc or other device - is not evanescent, and would appear to have existed for a period of much longer than three days. It is also evident that the closing mechanism of the hatch remained unrepaired for a period of longer than three days, siiicc Busch s deposition testimony refers on several occasions to photographs taken oftlic hatch before and after it was rcplaccd on November 13,2008, that demonstrate that it wds, in fact, damaged al the lime ol Mayo s iiijury.s See Notice of Motioii (motion sequence number 006), Exhibit D. Contrary to defcndants arguments, there is no cvidcnce to contradict this. Both Husch and Naples simply stated that they did not know when they were asked if they had any knowledge of thc conditions complained of, altlioirgh both also admit to having bcen at the accident site at oiic tiinc or another. This evidence is somc proof that the subject ladder reiiiaiiied in a potentially dangerous condition, and the hatch in ai unrepaired condition, for a sufficient period of time, to raise a question of fact as to whether defcndants either did in fact notice that tlic ladder needed to bc replaced or equipped with a safcty fcature, or were iicgligent in The court herc notes that, uiilike Mayo s Labor Law 5 240 ( I ) claim, which is based solely on tlic adequacy of the ladder, the statutory language of I,abor Law 4 200 does not restrict claims thereunder to certain c~iiiineratcd dcviccs (and much less to concepts of c;onii~io~~-law ncgligcnce). Thcreforc, ihc condition ol tlie hatch is iiot iirelevant to Mayo s lirst and second causes of action. 5 25 [* 26] 435 (1 l k p t 2009) (existcnce ofha7ardous condition was presumed where ice had rcniaincd on the sub-ject premises so long that [defcndant] is presumed to have scen it, or to have been negligent in failing to see it ), quoting Wullcrcc v Good.\tein Mmugemtlnt, LLCI, 48 AJIU 3 IC), 3 1 9 (1 Dept 2008). 1)efendaiits nonetheless contend that tlierc is 11o proof tliat anyone from the Met or Lincoln Center closcd the hatch during the days leading up to this accidcnt, and thus, there was no opportunity to discover the allegcd unsafc condition. See Mot. Seq. No. 006, Rerbowitz Al lirmation in Reply, 1 30. However, thc allegcd absence of cvideiice that defendants employees 1 actually inspected thc subject work site prior to Mayo s fall, does tint dispel the issue of fact regarding whether or not thcy were ncgligent in failing to do so. Therc is also no crediblc evidence hcfore the court to suggest that defcndmts did not have an opporlunity to discovcr the existcnce of any potentially dangerous conditions in the part of thcir prcmises where Mayo was iii~jured.IJiider these circumstances, the court agrees with plaintiffs argument that there is a i issuc of h c t cxists as to whether dei cndants had actual andor constructive notice of the allegedly dangerous conditions at the subject worksite. J herefore,the court rejects defendants arguments that Mayo has failed to establish neccssary elcnients ofhis claims under Labor Law 9 200 and principles of common-law negligence. Accordingly, dcferidmts cross-motion is denied with rcspect to Mayo s first <andsecond causes of action. 111. Crcative s Motion fm Suniinaiy Judgment ti, Dismiss thc Third-Partv Complaint rnlotion ScqUeIlce numbcr 007) As previously mcntiuned, the Mct s third-parly complaint sets i orth causes of action for 26 [* 27] contractual indemnification and breach of contract against Sti-auss and Creative,6 and for brcach of contract against Nova. l S w Noticc of Motion (motion sequence nirmber 007), Exhibit A. In its motion, Creative raises scvcral arguiiiciits to support its request ior sunimary judgment to dismiss the claims as against itself. First, with respecl to thc contractual indemnification claim, Creative argues that, bccause no negligence on Creative s part caused or contributed to [Mayo s] injuries, there is no basis ... for the imposition or liability against Creativc based upon the ... indemnity agreement in [the contract]. Soe Notice of Motion (motion sequence number 0 7 , Dachs Affirmation, 7 2. 0) Creative cites tlic portion of the coiltract s indemnity clause that provides that the signatories will indemiiify the Met against any claiins for injuries that arc: caused in whole or in part by any negligent act of the Contractor, any Subcontractor, anyone directly or indircctly employed by any of them ..., regardless o ¬ whether or not it is caused in part by a party indemnified hereunder. See Noticc of Motion (motion sequence number 007), Exhibit C, at 5 . Creative then argues that plaintiffs action is based wholly and solely on [the Met s] negligence in maintaining its property, particularly the overhead roof. hatch, and that Mayo s accident did not involve any equipment furnished lo hirn by Crcative. See Notice of Motion (motion sequence numbcr 007), Klein Ai lidavit, 7 5. In response, the Met argues that there is a question of ficl as to whether or not Creative was negligcnt, both because Creative had safety responsibility, and becausc Mayo b I heMet s first cause of action against Strauss and Creative for colmnoll-law indemnificalioii was disinisscd in the courl s earlicr decision, dated October 8, 2009. Src Notice of Motion (motion sequence ilurllber 007), Exhibit D. 7 As will be discussed, Strauss submitled its own, separate motion to dismiss the third-parly complaint (motion sequence number 008). 27 I [* 28] had removed his safety equipment immediately prior to his accident. See Mot. Seq. No. 007, Mitchell Affiriiiation in Opposition, 1 1 9.8 The Met notes that, pursuant to the Subcontractor 1 Safety Requirernent attachment to the subcontract, Crcative was required to furnish Strauss with a .job specilk safety program, and to be solely responsible li,r the safely of its employees. Id., 1151 20-24. The Met further notes that, despite these requircnients, Mayo had reiiiovcd his sakty harness before the accident. Id., 7 25. The Met then argues that it can be reasonably inferred that Creative ...or its employees were negligent in soinc degree. Id., 7 26. Creative responds only that the Met has not subinittcd one scintilla of evidencc that Creative was in any way negligent. %e Daclis Affirmation in Opposition to Cross Motion (motion scquence number 007), 1 9 . The Met s reply papers restate its original argument. See Mot. Seq. No. 007, Milchell Affirmation in Reply, 17 29-3 1. The court notes that neither party has cited any casc law to support its respective 1 arguments. In order to sustain any claim for contractual indemniiication against Crealive, the Met would iirst have to prove some quantum ofnegligence on Creative s part. See e.g. Knight v City q f N e w I ork, 225 AD2d 355 (1 Dcpt 1996). Regarding this burden, the Appellate Division, First Dcpartnient, has articulated tlic general rule as follows: It is possible to establish both iicgligence and causation through circumstantial evidence, but to do so a plainti[[ must show frlcls and conditions from which the negligence of. the defendant, and causation of the accident by that negligence, may be reasonably inferred. The plaintiff nccd not exclude every other possible cause R The Met s opposition papers to Creative's motion also include a cross motion for partial summary judgment on thc third-parly complaint as against Strauss and Creative. The court notes that the Met submitted a separate ~iiotion summnry judgment on the third-party for complaint as against Nova (motion scqLience number 0 10). While it would have been preferable to dispose of all of the Met s daims togcthcr, reasons of continuity i~iakc best to nierely it dispose of these motions within their respective motion sequences. 28 [* 29] ol the accident, but must ofl er proof that causes other than dekndanl s iiegligencc arc sufficiently remotc or technical to allow a jury to base ils verdict on logical inkrences to be drawn l rorn the evidence, rather than speculation [inlemal citations omitted]. b-eder v Tower Air, Im, 12 AD3d 190, 191 (1 Dept 2004). I-lowcvcr, here, on the within motion for summary judgnicnt by Creative, Creative has the burden to cstablish that it was free froiii iiegligencc, os CI niatcer oj lclw. In opposition, the Met has presented the subcontract, wliose Subcontractor Safcty Requircmcnt attachmcnt rcquired Creative to be solely responsiblc for the sakty of its employees. See Mitchell Affirniation in Opposition, Exhibit C. l liiscontractual language speaks for itsell in that it creates a dirty ol care. Also beforc the court is Drewes s deposition testimony that Creative kept the work site safety equipment in a locked gang box on the building s roof and instructcd its crnployccs to use it only while on the roof. Id.; Exhibits D, E. It is reasonablc that ajury may infcr ncgligence from this as such safcty equipment inight have prevented Mayo s fall, which Mayo clainis lic liad no access to at the tinic of his injuries. Thus, tlic Met s circumstantial cvidcnce niay also be sufficient to establish the proximate causation elcrnent of its negligence allegation against Crealive. Therefore, the court rejects Creative s arguineiit that there is iio evidence that Crcativc was in any way negligent ; upon the within submissions, Creative failed to eslablish that it was not ncgligcnt, us u mullw o f l a ~ . The court now tirnis its attention to tlic two contractual provisioiis upon which the Met s contractual indemnity claim against Creative is based. With respect to the geiicral contract, Creative argues that the Met s contractual iiideimification claim should be dismissed because Crcativc was not a party to the gcncr-a1 contract, a s it was oiily bctween the Met and Straws. Sce Notice of Motion (motion sequence number 007), Dachs Affiniiation, 7 2. Creative specifically 29 [* 30] argues that although Creative s iiaiiic appears as a contractor on the iirst page o r the [gcneral contract, it] ... was sigricd only by ...Drewcs, who executed the [gencral contract] on behalfof Strauss only. Id.; Klein Aflidavit, 1 3. Creative then cites the Appellate Division, First 1 Department s decision in Mrriihirltirii R e d htrr1r Eyuilies C h i p lL17 v Piiie Lqtrily NY, Jnc. (27 AD3d 323, 323 [ 1 I k p t 20061) which rciterated the gcncral rulc that nonparties lo an agreement arc not bound tliercby. See Duclis Aftirniation in Opposition to Cross Motion (motion scquence number 007), 7 7. The Met replics by citing the Coui-t of Appeals dccisioii in Flores v Lower Eiist Side iS.m~icc Center, h c . (4 NY3d 363, 368 120051, r.cargztmci~t denied 5 NY3d 746 [ZOOS]) that stated another general rule that an unsigned contract may be enforceable, provided there is objcctive evidence establishing that the partics intended to be bound. ,Six Mitchell Affmialion in Reply, 7 16. Creative argucs that there is no such evidence. ,See Daclis Affirmation in Opposition to Cross Motion (motion sequence number O07), 7 7. Aftcr rcview, however, thc court disagrees in that, bascd upon Flares, as cxplained below, tlicre are liictual issues as to whether Creative should be bound to the general contract. In Flor-rs,the defcndant/property owner engaged a general contractor, which tliercafter engagcd the plaintiff s cniployer as a subcontractor. Following a dispute, the general contractor quit, and thc plaintii i s eiiiploycr assumed tlic rolc of general contractor, although it never cxewted a scparak i uimal contract with the clefcndant/owncr. M e r the plainliff was injured, he coinrneiiccd a negligence suit against the defcndantluwner, which, in turn, commenced a contractual indemniiication suit againsl [he plaintifYs employer. The plaintilrs crnployer moved to dismiss tlje third-party suit, claiming that there was no signed contract bctween it and the 30 [* 31] deIendant/owncr. The Court of Appeals rejected h i s argument, based upon evidence including: 1 ) that the plaintiffs employer conceded that it had cntcrcd into an agrccnicnt with the defendant/owner; 2) that the plaintil f s employer did not assert that tlicrc was no meeting of the minds betwccn the two parties; 3) that the plainti ¬f s ctiiployer did not claim that it declined to sign the contract because there were ongoing ricgotiations; and 4) that the plaintifl s employcr pcrfornicd the work and accepted the paytiicnt that were speciiicd in the contract. Hcrc, the Met first points out that, in her affidavit, Creative s prcsident Klein acknowledges a contract in effcct at the time of [ Mayo s] accident, which she describes as an agreement between [tlic Met] and StrausslCreative. See Mitchell Aflirniation in Reply, 7 10; Exhibit B. The Met next points out that Drewes testified that hc was a vice president of Creative, and had thc authority to run tlie day-to-day operations of Crcative, including executing contracts on Clrcativc s behalf. Id., 7 13. The Met also points out that Ilrcwes subinittcd certificates of insurance to it ~ri.011i Creative in accordance with the tcrnis of the general contract, but did not submit any iiisurance on bclialf of Strauss. Id,, 77 19-25; Exhibit C. Finally, the Met points out that Clrcative performed all of tlie obligations set ibrth in thc general contract. Id., 7 26. The court notes that Crcativc has never argued that thew was no meeting of the minds or any unresolved negotiations bctwecn it and the Met. Thus, it appears that all of the criteria that swayed the Court of Appeals in Flores are also present in this case. Tlic one point of departure is that, here, Crcativc executed a colllelllporallc~JL~s subcontract cm tlie same day h a t Drcwes signed the general contract naming Creative as a contractor. I Iowcver, this iiiay or niay not be a meaningl ul distinciion. It appears that the motivation h e x may have been mcrely lor convenience. Drewes cxccutcd thc general contract with Naples or the Mct and then, having 31 [* 32] secured it, returiicd with it to thc oi ficcs that Strauss and Creative shared so that Victor Strauss and Klein could execute Ihc subcontract. I his is insilfficient to overcome the evidence that the Met has presented that Crcative, via Drcwes, inteiided to bc bound by Illc tenus of the gcnernl contract, and lhcreaftcr acled to perform that contract. There is certainly no argument before the court that rlrewcs lackcd eithcr actual or apparent au~hority bind Crcativc. Thcreh-e, thc court to rejects Creative s dismissal argument with respect to the Met s contractual indemniticatioii claim as is based o ~the gcneral contract, as thcre arc factual issues as to whether Creative is bound i under such contract. With respect lo the subcontract, the Met argucs against dismissal of its claim because the subcontract contains an indemnification provision and bccausc Creativc was a party to said subcontract. Sw Mitchell Ailirniation in Opposition to Motion (motion sequence number 007) 5[ 10. Creativc s papers do not contest either point. It is clcar that, although thc Met itself was not a party to thc subcontract, that such contract s indernniiication provision plainly requires Creative to indemnify the Owner [ix., the Met] against employee accidents such as Mayo s. Id.; Exhibit C. I herefore,the court rejects Creative s dismissal argument with respect to the Met s contractual indemnihation claim, based iipori the subcontract, Next, Creative argues that the Met s contractual iiidcmiiity claim should be dismissed because the third-party plaintiff is not the same entity as the party that signcd thc general contract, and that the Met, therefore, has no riglil to seek to enlorce thc terms of that contract. Sw Noticc of Motion (motion sequencc number 007), Dachs Affirmation, T[ 2. Creative specifically argucs 9 Drewcs could not recall whethcr Klein had, in fact, executed the subcontract on Septeniber 3, 2008, o r whcther lie had initialed it on her bchalf and then delivcred it to her to sign at home at a latcr datc. 32 [* 33] that, although tlic general contract denoniinatcs an entity known as Mctropolitan Opera Lincoln Center as the owner, Crcative s own scarch of the records of thc New York State Ikpartment of State, Division of Coiprations, indicates that no such corporatc entity exists. ,See Notice of Motion (motion scquencc number 007), Klein Affidavit, 7 6. This is a specious argument ;is Crcative s counsel acknowledgcd the crislence 01. a primc contract bctween Strauss and the Mcl. Sce Dachs Affirmation in Opposition, 7 9. I hewords Mctropolitan Opcra and Lincoln Clcnter, which appear on sepuruk lines on the cover page of thc general contract, cannot rcasonably be read to indicate the existeiicc of a singlc corporate entity, but should merely be read to indicate the obvious: that the corporation named on the first line (Le,, Metropolitan Opera ) has its address at the location specilled on thc sccond line (i.e., Lincoln Center ), with the city, state and zip code specified on the third line. Therefore, the court rtjccts Crcative s third dismissal argument rts meritless. Accordingly, the court concludes that Crcative lias hilcd to bcar its burden ofproving that it is entitled to suminary judgment dismissing the Met s contractual indemnity claini against it. Next, Crcative argues that the Met s breach of contract claini should be dismissed becausc Creative did, in fact, obtain the insurance specified in the subcontract. See Notice of Motion (motion sequcnce iiuniber 007), Klcin Affidavit, 7 8. Creative has prescnted a copy of a general commcrcial liability additional insured cndorsenient that, it claims, added the Met to the coverage of the policy that Creative obtained from Nova. Id.; Exhibit F. The Met respods that this is insuf ficicnt, because thc general cuntrrtct and h e subcontract each required Creative to obtain three separale types of insurance: 1) a workman s compcnsation insurance policy; 2) an owners and contractors protective liability insurance policy; and 3) a coniprchensive general 33 [* 34] liability insurancc policy. ,See Mitchell Ailhiation in Opposition, 7 28. I he Met asserts that Crcativc failed to obtain an owners and contractors protcclive liability insurance policy, and that the cndor-serncnt that Crcativc prcsentcd with its motion merely riiodilicd the coniprchensivc gcneral liability iiisiirmce policy that it did obtain. Id., 771 3 1-35. Crcativc rcsponds that thc Met has provided iio infornmtion to dcmonslratc lhat such cl policy would have provided any different, additional or ... applicable covcragc than that which was providcd by the liability policies that Crcalivc did obtain. S ~ Mol. Seq. No. 007, Dachs Affinilation in Opposition, (rT 6. P The Met replies that Creative s argument, that thc coverage provided by an owners and contractors protective liability insurance policy would have been un~iecessarily duplicative, is belied by the fads of this case, bccausc Nova is attcnipting to decline coverage to the Met undcr the comprehensive general liability insurance policy. See Mot. Seq. No. 007, Mitchell Affirmation in Reply, 7 27. The court agrces with the Met 011this issuc. The proponcnt of ; brcach of contract claim must plcad the existencc and terms of a valid, 1 binding contract, its breach, and rcsulting damages. See Gordnrz v Llino De Laurentiis Corp., L J . ~ 141 AD2d 435 (1 Dcpt 19x8). Further, it is well settled that on a motion for summary judgment, the construction of an unambiguous contract is a question of law for the court to pass on, and ... circunistances cxtrinsic to thc agrcemenl or varying interpretations of the contract provisions will not be considcred, where .._the intcntion of the parties can be gatliered from the inslruineiit itself."' hluysck & M o m n , IIZC. S G. Wurhurg & 170 , Inc., 284 AD2d 203, 204 (1 v Dept 2001), quoting Lrrkt. C- on.vfr. D c v r l o p e n t C orp. v C iQ qf New York, 21 1 AD2d 514, 515 & (1 I k p t 1995). Here, Exhibit 13 to the gcneral contract and Rider A t o the subcontract both plainly contain provisions that required thu signing party to obtain an owners and contraGtors 34 [* 35] protective liability insurance policy. Crcativc admits that it failed to do so. Further, Creative fails to supporl its contcntion lhat it was not required to obtain the specified insurance with any legal argument whatsocver. Thus, the Met has dernonstrated both thc existence of a valid contract and Creative s breach thereof. Altlmugli the Met has not prcsentcd any evidence on the elenxiit of damages, it is not yct required to do so. Therefore, at this juncture, the Met has sufficiently supported its breach of contract claim. Accordingly,Creative has failed to bcar its burden of proving that it is cntitled to summary judgmcnt dimissing the Met s breach of contract claim. As a result, the portion of Creative s motion which seeks summary judgment to dismiss the rcmairiing causes of. action i n Ihe third-party complaint as against is denied. The Met s Cross-Motion for Partial Scunrnary Jud~ment the Third-Party Complaint on IV. I heMet s cross-motion seeks parlid suinmary judgment on its third-party claims against Strauss and Creative. The fjfirstof these is tlic Met s cause of action for common-law indemnification against Strauss. I hecourt s October 8,2009 decision granted sunimaryjudgnient dismissing this claim against Creative, but allowcd it to stand as against Strauss on the groiiiid that, in the absence of any subcontracting agrcement between Strauss aiid Crcative, furlher cxploration of Strauss s duties and responsibilities vis-&vis Mayo was necessary beforc detenniiiiiig whether the Met s claim against Strauss could survive sutriiiiary judgment. See Notice of Motion (motion sequence number 007), Exhibit D. Now, the parties have produced tlic missing subcontract. , S ~ x Noticc of C ross Motion (iiiotim seqiieiice number 007), Exhibit I). As the Appellatc Division, First Department, explained in Edge Mmzupwzent C onszdting, . I m Hlm7k (25 AD3d,364, 367 I 1 Dept 20061j, [c]omiiion-law indcmnification is predicated IJ 3s [* 36] on vicarious liability without actual iiult, uhicli necessitates that a parly who has itself actually participated to solile degree in the wrongdoing cannot receivc the bcnefit of the doctrine [internal citations omittcd]. Herc, tlic Met argues h a t thc record is clear that [thc Met] did not create the alleged condition that caused the accident, and that [the Met] did not liavc actual or constructive notice of said alleged condilion. Sre Notice of Motion (motion sequence number 007), Mitchell AfKriiiation, 17 35-48. Strauss responds thal the sole and only allegation of negligcnce in this case is that the accident occurred by reason 01 the dcfective condition ol thc Met s premiscs. See Janowitz AfXniiation in Opposition, 7 4. Strauss also allcgcs that it took no part in the work bcing perforiiicd by plaintiff; .._[had] ... no Strauss employee ... present a t the work site, ... did not of supcrvise, dircct or control C reative s employecs, ... [that 1 iio~ie Strauss equipment was being used at the time of the accident. Jd., 1 3. In its reply papers, the Met nicrely alleges that 1 [c]learly, the accident arises out of the work of both Crcative and Strauss. ,See Mitclicll Affirmation in Kcply, 7 35. I hecouit, however, docs riot helicve that things are nearly as clear as either party would have it. 01 particular relevance, the deposition testimony licrein indicates that the ladder and roof hatch may have been in the condition that Mayo found them on the day of his injury for some lime beforehand. Thus, as prcviously discussed, that evidence is sufficient to raise an issuc of iact as to whether tlic Met had actual and/or constructive knowlcdge ui thrtt purportedly hrzzudous condition so as to rendei it negligcnt. Sliould the triers 01flct find the Met negligent, then the Met would, indeed, bc barred from seeking common-law indemnification from Strauss, as a matter ollaw. I%(~L. Mmirgcmciil ~ onsiil~iiig, v Blunk, 25 AJ13d at 367. However, since no lric such finding has ye( been made, it would be prcmature to cither grant or dismiss tlic Met s claim [* 37] for coiiii-noii-l:iw indemnification against Strauss at this juncture. l l~creibre, Met s cross the motion is denied with respect to its lirst third-party causc of action. The Met iicst seeks siriiimary .judgment oii its claims for contractual indenznification against Strauss and Clrcalive. The Met correctly notes that the court s Clctober 8, 2009 decision indicated that the indemnity clausc of the geiicral contract did not violate General Obligations Law $ 5-322.1 (1), and thcref ore, such is now law of the case. See Noticc of Cross Motion (motion sequence number 0071, Mitchell Affirmation, 7 7, Rccaiise tlic subcontract s indcmnity clause is idcntically worded, such indemnity clause also does not violate General Obligations Law 5 5-322.1 ( I ) . Howevcr, this does not end the inquiry. Pursuant to well settled New York State law, an indemnitor caniiot enforcc an indemniflcation provision against an indemnitee unless it dcmonstrate[s] its own lieedorn from negligeiicc. See Cuevas v <-lilyqf New Ynrk, 32 AD3d 372, 374 ( I Dept 2006). J Icre, the Met allcges that Strauss and Creative are responsible for any negligence on tlic part of the plaintiff. See Noticc of Cross Motion (motion sequence number OO7), Mitchell Affiniiation, 7 SO. As noted earlicr, however, Strauss rcsponds that the sole and only allegation of negligence in this case is that the accident occurred by reason of the defcctive condition of the Met s premises. See Janowitz AfXrniation in Opposition, 1 43. Crcative 1 ampliljes this argument by alleging that the sole and only allegation ofnegligcnce in this case is directed to thc Met for its failure to maintain the roof hatch in a reasonable (sic) sale condition. SLY Dachs Affirmatioii in (Ipposition, 1 9 (motion sequence number 007). I n its reply papers, the 1 Met merely reasserts that the accideiil arises out of the work of both Creative and Strauss. See Mitchell Affii-niation in Reply, 1 35, (motion scquence numbcr 007). The court has already notcd 1 that there arc issues of [act as to whelher tlic Met and/or J,incoln Center were ricgligent in their 37 [* 38] maintenance o r the portion ol the building &here Mayo was injurcd. Thus, the court niust re<ject thc Mct s allegation that it is free of negligence as a matter ol law, and thcreibre, the Mct s request for suiiimary judgnicnt on its second thil-d-pity caiise 01 action for contractual indernniiication claims agiiinst Straws and C reative is deiiicd. Finally, the Met sccks suniinary judgnicnt on its clainis for breach of contract against Straws and Creative, alleging that neither third-party defendant obtaind an owners and contractors protective liability insurancc policy, as was rcquircd by the temmis of both Exhibit D to the general contract and Rider A to the subcontract. Sce Notice of Cross Motion (motion sequence number 007), Mitchell All3-niation, 1 56-58. In response, Strairss joins in the argirment 1 initially set forth in Crcativc s opposition papers that denies the Met s claim on the ground that adding the Met and Lincoln Ccnter a s additional insureds 011 the corniiiercial general liability insurance policy rendered it unnecessary to a1so obtain an owncrs a i d contractors protective liability iiisuraiice policy, sincc tlic coverage afforded by such ; policy would be duplicativc. Sec. 1 Jaiiowitz Afflrination in Opposition, 1 4; Dachs Affirmation in Opposition, 7 6. As previously 1 noted, the Met replies that thc third-party defendants argument is belied by the hcts of this case, because Nova is attempting to decline coverage to the Met under the comprehensive gerieral liability iiisurance policy. S w Mitchell Allhiation in Reply, 7 27. I hecourt has already rcjcctcd, as unsupported at law, the argirinent advanced by both Straws and Creative, and has dctcniiincd that the Mct has established every eleiiisnt of its brcach of contract claim apart lrom thc clcriicnt of damages. Therefore, the court now also determines that the Met should have partial summary judgnicnt against Straws and C realive 011 its third third-party causc of action l or brcach of contract on the issue oi liability only, witl! the issue of darnages - if any - to be [* 39] delermined at trial. Accordingly, thc court grants the Mct s cross motion, in part, with respect to the Met s third third-party caiise of action lor breach of conlract on tlic issue of liability only, but is otherwisc denied. V. Strauss s Motion i or Suniniarv JudEnient to 1)isiniss the l hird-Party Complaint (motion suyuencc number 008) Like Creativc, Strauss moves for sumiiiaiy judgmcnt to dismiss the third-party complaint as against it (motion sequence numbcr 008). At this juncture, what remains of the third-party complaint vis-&vis Strauss arc the Met s claims for contractual indemnification and breach of contract. With respect to the contraclual indemnification claim, Strauss argues for disrnissal on the ground that the evidciice shows the abscnce of iiegligence on the part of either Crcative or Slrauss. See Notice of Motion (motion sequence number 008), Strauss Affidavit, 7 5 . However, the courl has already rejected this contention, as tlic evidence is unclear as to uny party s negligence at this juncturc. Therefore, Strauss motion is denied with respect to the second cause of action (contractual indemnification) in the Met s third-party complaint. As to the Met s claiiii against Strauss for breach of tlic general contract by failing to obtain an owners and contractors protectivc liability insurmcc policy, the court has already rejected Strauss s argument that iiaiiiing the Met ;is an addi lioiial ii~sur~d on geiiersl commercial the liability policy discharged it from this responsibility. The court has also already detcrniined that the Met is entitled 10 parlial summary judgment on this claim. Therefore, Strauss s motion is denied with rcspect to the third cause of action (brcach of conlract) in the Met s third-party 39 [* 40] complaint. Accordingly, Strauss s motion is denied in its entirety. ~ I VI. Strauss s Motion for the Entry of a Ikfault Judgnicnt on its Cross Complaint (motion scquenct: numbcr 009) Strauss also moves separately for the entry of a deiiult judgment against Creative on the cross claims set forlh in Strauss s cross complaint (motion sequciice number 009). CPI,R 3215 cntitles Strauss to this rclicf. However, Strauss specifjcally requcsts a conditional summary I j udgmcnt 011 its contractual and common-law indemnification claims against Crcative on the groimd that the only thcory upon which [the Met] may recover against Strauss is that Strauss is vicariously liablc for Creativc s negligence. ,See Notice of Motion (motion sequence number 009), Janowitx Alliriiiation, 1 3. Creative did not submit any opposition to this motion. T1x Met 1 however, did oppose, indicating that it takes no position Creative, but 011 the issues between Strauss and ... opposcs any arrgumcnt ... reflecting on Strauss arid Crcative s obligations to the Met, bccause those arguments are improperly raiscd here. See Mitchell Mlyrmation in Opposition, 7 7. The court agrees. In G c(7rge17 Mnrshnl2.s of MA, Inc. (6 1 AD3d 93 1, 932 [2d Dept2009]), the Appellatc I)ivisioii, Second Department, observed that: A court may rendcr a conditional judgment on the issue of indemnity pending determination of the primary action in ordcr that the indemnitee may obtain the earlicst possible deterniination as to the extent to which hc or she may expect to be rcirii bursed providcd that there are no issues of f k t coiiceminp the indemnitee s aclive ncgligence. 1Jere, howevcr-, the cvurt has already observed at several juncturcs that thcre are open and uiircsolved issues of fact as to the negligence - if any - of all ofthe parties to these actions. Undcr these circumstances, wliilc Strauss is ccrtainly erititlcd to the entry of a def ault judgment on its cross complaint against C rcative,,Strauss is not entitlcd t o the conditional summary judgmcnt that 40 [* 41] it requcsts in its motion. Accordingly, Straws mution is granted solely lo the extent of granting a judgment of default in Strams favor against Creative as to liability on Straws cross complaint, but tlic issue of damages - if any - should be dctermiried at the trial of this action. VI1 and VIII. l he Met s Motion for Partial Summa.ry .ludmient on the Third-Party Complaint as to Nova (motion scquence nun1 ber 0 lo), and Nova s Motion for Suinniarv Judgmcnt to Dismiss the Third-Party Clomplaint (motion sequence number 01 I ) The Met has submitted a second motion for partial summary judgment on its last thirdparty causc of action, which alleges brcach of contract by Nova. See Notice of Motion (motion scquence number 0 lo), Exhi bit 0 , I T 36-44. Nova iiioves separately for suiiimary judgment to dismiss this cause of action (motion sequencc number 01 1). Both parties request a declaratory judgment in their motions, although the third-party complaint fails to assert such a cause of action. Declaratory judgment is a discretionary remedy which may be granted as to thc rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. CPLR 3001; .see 0.g. Jenkins v State qf New York, Div. of Hous. und C. ommuni@ R C ~ M J 264 ,AD2d 68 1 ( I st Dept 1999). I heCourt of Appeals has long recognized C~ that it is an appropriate remedy in matters that relate to the construction of insurance policics or whether an insurance ~;ompany obligated to dcfend a pcncling negligence :xiion in which thc is assured is a party. Prushker v IJ.S Gmranlec c o., 1 NY2d 584, 592 (1956). However, New York law also holds h a t declaratory relief is inappropriate where an adequate remedy is providcd by a cause of action for brcach of contract. Sw c.g. .lrmics 11 Alderlorz Dock Yards, 256 NY 298 41 [* 42] (193 1); Applt XecotvJs, Irzc. I) Cqiiid I-kcords, 137 A I M 50 ( I t Dept 1988);Arthur Yozu?g& To. v Fleischn?uii, 85 A I E d 571 (1 Dept 1981). This is clcarly not such a case. Kather, it rncrely appears that the Met mis-pled its fourth cause of action as one [or breach of contract, when its intention wax to obtain a declaration oI the tcrins oi tliat contract. Sincc no party objects and, significantly, as Nova also requests a declaration, rather than asserling that there was no brcach, in the interest ofjustice and judicial cconomy, thc court will overlook the dcfcct in thc third-party pleadings aiid assess tlic p a r k s rcspective rcquests fbr declaratory relief. Tlx Me1 first asserts h a t Nova must dcfend it in, and indemnify jt against, Mayo s negligence action because the GCL policy covcrs all damages iiicurred by an iiisured due to allegatioiis of bodily injury. See Notice of Motion (motion sequence number 010), Mitchell Affirmation, 77 28-34, 1 l hc Met specifically refcrs to the definitions of tlic terms bodily injury and LCoccurrence are set I ortli in the GCJ, policy, and to the portion of the additional insured that endorsement that extcnds coverage to liability for injuries to third partics with respect to liability arising out of [Creativ s] onguing operatioils pcrforrned for [the Met]. Id. The Met then argues that Mayo suffcred an occurtence of bodily injury as a result of Creative s ongoing operations pcrformed for the Met. Id. The Mct concludcs that Nova is obliged to defend and indemnify it i n Mayo s suit by the foregoing ternis of the GCL policy. The court agrees that the contractual language is clear and speaks for itself, Indeed, Nova docs not contest any of the Met s assertions, but, instcad, raises tlitee argcinicnts ;is to why the Mct is not entitled to the declaration it secks. First, Nova argues that tlic Met did not contract directly with Crcative, and therefore does not qualify as a,n additional insured under I h e GC L policy. Sor Gil I AiGimation in Opposition, 1 7 [* 43] 7-22 (motion seq. 110. 0 10). Nova cites the portion of the GCL policy s additional insured endorseiiicnt that provides that: Who Is An Insured is amended to include as an insured aiiy ... organization for wliorn you [i.c., Creative] are performing operations when you and such ... organization have crgrcod in writing in a confract or agrcerncnl that such ... organimtion be added as an additioiial insured on your policy [emphasis addcdl. ,See Notice of Motion (motion sequericc iiiriiibcr OlO), Exhibit E. Nova then asscrts that the Met did not executc any contract with Creative, but only with Straws (i,e., the gencral contract), which then later contracted with Creative (ix.,the subcontract). SPCGill Affirmation in Opposition, 1 14. Nova concludes that the Met s hilure to contract with Creative means that it carmot be deemed an additional insured under the terriis ofthe GCL policy. fd.,7 16. Nova cites the Appellate Division, First Department s, dccision in Linrrrcllo v Cily CJnivcrsity qfh ew York (6 AD3d 192 11 Dept 20041) to support its contention that the absence of a written contract is fatal to the Met s assertion of status as an additional insured. A number of other First Department cases have, indeed, reached such ; conclusion. See e.g. Illinois N d . Ins. r o . v American 1 Allernative Inx Gorp., 58 AD3d 537 ( 15 Dept 2009); Nicofru Group, L L C v American S ufity Inden?. Co., 48 AD3d 253 (1 Dept 2008); Kodless P r o p ~ i e sL.P.v Wcstchesler Fire Ins. Clo., , 40 AD3d 253 (1 Dcpt 2007), upped denied 9 NY3d 8 15 (2007). However, the court has already determined that there is suflicicntly strong evidence of a dircct contractual relationship between v thc Met and C reative, pursualit to the Court oi Appcals holding in FI(II PS Lower Eusl Side Servicc ( enter, h c . (4 NY3d 363, siipi-u). Therefore, the coud rejccts Nova s first opposition argument, as jt has already indicated above that the Met is an additional insured of Creative. Nova next contends that the Met s Ihrcc-month dclay in rcporting Mayo s accident to it and demaiiding coveragc rendered the Met s notice iintiniely under Scction IV ( ) (a) ol the GCL 3 43 [* 44] policy s L C c o ~ i ~ ~ i ~ e r c i a l I iability covcrage Ibrm, which required the Met to furnish such general notice as soon as practicable. See Gill Affiiiiiation in Opposition, 17 36-48. Nova has prcscntcd certain docuiiientary evidence (in the form of accident reporls filled out contcmporaneously by the Mct s employecs) and deposition testimony (by Naples and by claims administrator Vancssa Scrudato) that indicate that the Met was, in fact, aware oi Mayo s accidcnt on the day that it happened (i-c., 011 September 16, 2008). Id., 71 23-35; Exhibits A-D. 1 The Mct does not dispute such evidcnce/testimony, but instead rcsponds that Section I (1) (d) of the GCL policy s commercial general liability coverage roriii provides that the Met or any einployee aut1iori;rcd by [the Met] to give or rcceive notice will only be deemed to know of the existence of an o c c u ~ ~ e ~ i of bodily iri.jury in three circumstaiiccs: ce (1) on the date when the Met or any or its authorized employees reports such information to Nova or any other insurer; (2) on the date whcn the Met or any of its authoriLed einployces reccives a written or verbal dcmand or claim for damages becausc of said bodily injury; or (3) on thc date when thc Met or any of its authorized cmployecs becomes awarc by any other means that bodily injury has occurred. See Mitchcll Reply Affirmation, 77 4-1 2 (motion seq. no. 010); Exhibit A. The Met then avers that its only employees that are authorized to give or reccive notice are thc rnembcrs oi its legal dcpartrtieiit, arid that they did not leain of Mayo s accident mtil December of 2008, when they rcceived a copy of the S L I ~ I I I I I ~arid coniplainl li.om Mayo s counsel, Id., 77 13-14. Nova takes I~S the position that this is a self serving intcrprelalion of the policy, and irrelevant, because the law imputcs any contemporaneous knowledgc of the accidcnt by an agent (ix., any Met employee) to the principal (i.e., the Mct). The court agrees. In l arumoicnt fns. C o. v Rosedde GLii.dcns, h c . (293 AD2d 235, 239 [ 1 Dcpt 2 0 ] , the 02) Appellate Division, First Ijepartiiicnt, observcd that: 44 [* 45] The obligation to give notice as soon as practicable of an occurrence that may result in a claini is iucasured by tliu yardslick ofreasonablencss. It has generally beeii held that a failure to give notice may be excused when ai1 insured, acting as a rcasonablc and prudent person, bclieves that he is riot liablc for thc accidcnt. It is clear from this principle that, in assessing the timcliness of the notice given, thc courts have not turned over to the insured, or its agents, the cxcliisivc responsibility for dcterminating when a11 accident is likely to give rise to a liability claim. Here, Nova is correct to note that, if tht: couit were to accept tlic Met s position that only certain authorized employees were capable of recciving or giving notice of an accident such as Mayo s, then thc Met would be able to evade conipliancc with any insurance policy s notice provisions by shielding such employees from receiving such notice except at a time of the Met s choosing. See Gill Affirmation in Opposition, 77 34-35 (motion seq. no. 0 10). This would contravene the logic nl.ro f cxpressed by the Appellate Division, in Parmuwit 1n.v. C o. (siiprci). S L J ~ Tower Ins. C o. o New York v. 171trsson Heigh/.r, L K , 82 AJI3d 632 (I Dept 20 1 I )(knowledge of occurrencc obtained by an agent iniputed to principal). Thus, the court rejects the Met s argument regarding authorized employees . Consequently, the court also rcjccts Mayo s rcading of the GCL policy s notice provision. As indicatcd, New York law holds that, where an insurance policy specifies that an insured must givc notice of a potentially covercd claim as sooil as practicable, a court assessing the timeliness of such notice must determine whether the interval between thc occurrence and the notice was reasonable in light of the facts and circumstances of thc case. See e.g. (;relit Canal Realty Cwp. v Sunccu Ins. C o., h c . , S NY3d 742 (ZOOS). Although what is reasonable is ordinarily left for determination at trial, whcrc there is no exciise for thc delay and mitigating circunistaiiccs are absent, the issuc may be disposed of as a matter of law in advmcc of trial . 45 [* 46] Tower 1n.s. (. o. qf Ncw York 11. Classon //eights, LLC , 82 AD3d at 634. Courts have fouiid even rclatively short periods to be unreasonable as a matter of law. Hw!fijrdAcc. & Indenz. Co. v. CNA Ins. Cos., 99 AD2d 3 10, 3 13 ( 1 Dept 1984). Herc, as previously mentioned, Nova has prcsentcd undisputed docunientary evidencc and testimony that show that the Met was aware or Mayo s accident irnmcdialely after it happened i.e., on Septcmber 16, 2008. Scc Gill Affirmation in Opposition, Exhibits A-l) (motion seq. no. 01 0). The Met s own cvideiicc shows thrtt its insurancc carricr sent demand lettcrs to Strauss and Crcative 017 I3ecember 5 and 11, 2008, and thereafter to Strauss, Creative and Nova on Deccrnber 29, 2008. See Notice of Motion (motion scquence number 01 l), Exhibits I, J, 1,. The Met s only explanalion for this thrce-month delay is the rejected contention that its legal department was not aware of Mayo s accident until December of2008. This statement appears to be erroncous, however, since thc Met s own submissions include ; copy of Mayo s summons and complaint that I it claims to have reccived from the New York State Secretary of State in November of 2008. See Notice of Motion (motion sequence numbcr 01 l), Exhibit G. Siiicc the Met lias not argued that its delay was excused because it liad a reasonable belief lhat no claim would bc asserted against it as a result of Mayo s accident, in the abscnce of such argumenl, thc courl is justilied in delemiining that the Met s three-month dclrty in notifying Nova about Mayo s accident was unreasonable as a matter of law. S e e e g. 2130 Williamsbridge Ckrp. v Irilcrs/uio Indcrn. Co., 55 A133d 371, 372 ( 1 Ft Dcpt 20011) ( Evun relatively shod periods of unexcused delay arc unreasoiiable as a niatler of law. ). As such, the court determines that thc Met s three (3) month dclay in notifying Nova of Mayo s accident, was untimely, as a matter of law. SLY JLnvncx Ltd 17. Htrrliizg~on C o 63 AD3d 5.54 (1 Dcpt 2009)(two month delay Ins. ~ 46 [* 47] unreasonable as a iiiatter of law); Y o i r I~m~w l ( o-Op C ity v. Guideone Micttral Ins. Co., 52 AD2d 245 (1 9t Dept 2008 (unexcuscd 40 day delay unrmsonablc as a iiiattcr of law). The Mei argues, however, that Nova s late noticc disclaiincr was invalid and untimcly and tllcdol-c, Nova may not deny it coverage. l hcMet argucs that Nova never sent it a disclaimer, but only scnt the disclaimer to its insurance carrier. ,See Mitchell Reply Ai hiiation, 77 19-47. The Met then argues that such scrvice violates Insurance Law tj 3420 (d) . Id. Nova replies its late iiotice disclaiiiicr was valid and tiincly since case law indicates that service of a disclaimer on an insurance crtrricr is valid. Sce Gill Aflirniation in Opposition, 911 49- 54. Relying on the case of Excelsior Ins. Clo. v , Anlrcttcr Contracting Corp., 262 AD2d 124 (1 Dept 1999) Nova maintains that where the insured s (the Met s) own liability insurance carrier (here, Travelers) tenders the claim on the insured s behalf, Ncw York has allowed an insurer to validly disclaim coverage by scnding the disclaimer to thc liability insurance company rcpreseiiting thc insured s intercst (here, Travelers). According to thc court in Excelsior, lhc [ilailure to serve a formal notice on the noniinal party in intcrest, does not render ineffective the denial of coverage, where the party who received the notice had undcrtaken to protect the nominal party s rights and was expected to forward it to the nominal party . Id. at 128. The purpose of [Insurance JAW $1 342@(d)was 10 protect the insured, the injured pcrson, and any other iiiterestcd 10 Thereasonableness of the Icngth ofthis delay is govcmed by Insurance Law $ 3420 (d), which provides that: If under a liability policy issued or delivcred in this state, an insurer shall disclaim liability or deny coverage lor deal11 or bodily iii-jury arising out o f a motor vehicle accident or any othcr type ofaccident occurring within this state, it shall give written notice as soon as is rcasoiiahly possible of such disclaimer olliability or dcnial ofcoveragc t o the insured and the injured person or any other claimant. 47 [* 48] party who has a real stake in the outcome, from being prcjudiced by a belatcd denial 01 coverage[,] [i]t was not intended to be a technical trap that would allow interested parties to obtain morc than tlie coverage contracted for under the policy. Id. at 127. Hcre, Travclers, thc Met s jiisurer, tendercd the claim on behalf of its insured and uiidcrtook to protect thc Met s rights with respect to the Mayo action, and in essencc, shill coverage away from tlic Trnvelul-s policy to the Nova policy. Th~is, consistent with the abovc, the disclaimer notice sent to Travclers is valid. Moreovcr, the court notes that thc Met does iiot argue that by scndiiig thc late notice disclaimer lo its insurance carrier, Travelcrs, the Met was prejudiced. Thus, the couri rejects the Met s argument that Nova s late notice disclaimer was invalid because it was sent to the Met s insurance carrier. The court further rejects the Met s argument that tlie late rioticc disclaimer was untimely. The evidence iiidicatcs that Nova served a disclaimer notice 011 Travelers on January 28,2009, after Travclcrs tendered a claim on 13ccember 29,2008. SLY Notice of Motion (Seq IO>, Exhs. I, K, L, M. Nova maintains that it did not actually receive thc claim until January 6, 2009. In New York, courts have generally accepted disclaimcrs issued within 30 days, when insurers make prompt, good faith effoits to investigate claiiiis bef ore disclaiming. See Public S L TV. 1~~~s.. Mu/. rn. v Hclrlen Horns. Assoc., 7 A133d 421 (1 Dept 2004j(holding an insurer s 27-37 day delay in disclaiiniiig aftcr completion of its iiivcstigation was reasonable as a matter of law); Struclure Zbne v. Bzcrges.s Stcel Pi-ods l- orp., 249 AD2d 144 (1 Dcpt 1998)(holding that a disclaimer of duty to defend or iriciertinify givcii 38 days aiier insured s late notice was riot unrcasonablcj; Silk v. City of New York, 203 AD2d 103 ( I si Dept I994)(a delay of 1 month was reasonable). I hus, herc, Nova s disclaiiner which was sent within 22-30 days, was reasonabl,e, as a matter of law. 48 [* 49] Thus, based upon tlic above, although the coiirt has indicated that tlic Met is, indeed, an additional insurcd of Nova iinder the terms of the GCII, policy, that porlion of 1hc Met s motion which secks a declaration that Nova is obligatcd to dcfend arid indemnify it in tllc Mayo s suit is dcnied; that portion of Nova s motion which sceks a dcclaration that it is not obligated to defend or iiidcmniiji the Met in Mayo s personal injury/negligence action is granted. The seco~id branch of Nova s motion s e c k a ckclaratory judgnient that it is not obligated to defend or iiidemnily Creative in Mayo s personal injury/negligence action. Id. at 23-28. Nova argues that, like thc Met, Crcative violated the GCL policy s notice provision by waiting over thrce rnontlis to serve Nova with notice ofMayo s accidcnt and/or claim. Id. at 23-24. Creative responds that Drewes notified Ckentive s own insurance broker conteinporaneously with the occurrence of Mayo s accident, and argues that this act satisfies the subject notice provision. See Dachs Af iirmation in Opposition, 1 6. Nova replies that this is iiicnrrect as a iiiatter of law. SCL 1 Gill Reply Affirmation, 77 56-48. Nova is corrcct. I heAppcllnte Division, First Department, plainly holds that notice to a party s insurance broker does no/ constitute notice to a party s insurer. See c.g. Jiivenex Lid. v Hurlingtczn Ins. Co., 63 AD3d 554 ( I Dcpt ZOOS). Therefore, the court rejects Creative s argument, as, like the Met, Creative violatcd the GCI policy s notice provision. Creative nonetlicless argues that despite admittedly lcarning of Mayo s accident on the day it occiirred, it had a reasonable belie[ that it would not be held liable lor such accident. See Dachs Affirrnatioii in Opposition, Aftiniiatjon, 7 10-18. Nova vigorously contcsts this point. SLY Gill Reply 77 59-79. 49 [* 50] While Crcative argucs that it had a reasonable belief that it would not bc held liable for Mayo s accidcnt since Mayo was Crcative s employee receiving Workers Compensation t1icrcfor.e pr*ecludingany additional liability on Crcative s part, this argument has been consistently rcjected by the Appellatc Division, First Department. See Ncrlior7ul Union Fire 1n.s. (3). qfPitt.shur-gh, I u, 86 AD3d 425 (1 Dcpt 201 l)(insured s bclief that Workers Compcnsation was thc hjured s cxclusive remedy was not reasonable as a rnattcr o r law); Mucro Enierprises, h d . v. ABE Ins. Gorp., 43 AD3d 728 (1 I k p t 2007). Further, the Drewcs Ai lidavit that it relies upon in further support is riot relcvant lo the issues betwccn Nova and Creative. T ~ L I as, Crcative S failcd to raise an issue of fact as to the reasonableness of its bclief in liability, this Court detcrmines, as a riiatter of law, that Creative s delay in reporting Mayo s accident to Nova for over thrcc months, violated the tcrnms of the Nova policy. S C E e.g. 2130 Williamshridge Curp. v Interstrxte Iiid~vn. Co., 55 AD3d at 372 (1 I k p t 2008); ,Jz,ivcnex t t d v. Biirlington Ins. Co., 63 AD3d 554 (1 Dept 2009)(two month dclay unreasonable as a riiatter of law); You17g Israel Cu-Up C ily v. Guideone Mutual Ins. ( 0. 52 AD2d 245 (1 I Dept 2008 (unexcused 40 day delay unreasonable as a inattcr of law). Nova s motion for a declaration that it is not obligated to del end or indemnify Creative in Mayo s personal injury action is thercfore granted. IX. C:reativu s Motion for Leave to Amend (motion sequence number 01 3 ) The final motion currently before the court is Creative s request for leave, pursuant CI LR 3025, io amend its third-party answer to assert a cross complaint against Nova with causes of action for contractual and common-law indemnification. S N Notice of Motion (motion scquence nunibcr 01 3). 50 [* 51] it is well cstablished that leave to amcnd a pleading shall be fiecly granted absent prejudicc or surprise rcsulting froni the delay, unless thc proposed pleading hils to state a cause of action ... or is pdpahly insulficicnt as a matter of law. l h v i s cE Buvi~, P.C. v hlor.son, 286 AD2d 584, 585 ( 1 9t Dept 2001 ). Here, however, as Crcalive s proposcd iiideiiinity claims lack merit, since, as cxplained ahovc they arc vitiated, as a matter of law, by Creative s hilure to abide by the notice provision of tlic GC L policy, C realive s motion to amend is denicd. DECISION AC C ORDINGI,Y, for the foregoing reasons it is hcreby ORDERED that the motion, pursuant to C PLR 3212, olplaintif f Manuel Mayo (motion sequence number 006) is granted solely to thc cxtent of awarding said plairitifTpartia1 summary -judgment on the issue of liability on tlic third causc of action in tlic amended coiiiplaint (lor violation oi Labor 1,aw $ 240 11 I), with the issue of-the calculation oldamages rcserved for the trial of this action; and it is further ORDERED that the motion, pursuant to CPLR 32 12, of third-party defendant Creative Finishes 1,imited (motion sequelice nuniber 007) is denied; and it is further OKDERED that the cross motion, pcrrsuant to CPLR 32 12, of the defcndanthhird-party plaintiff Mctropolitan Opcra Association, h c . (motion sequelice nuin ber 007) is graiitcd solely to tht: extent of awarding said dereiidantittiird-party plaintifl summary judgrneiit dismissing the fourth and Gfth causes 01 action in plaintiff Manuel Mayo x amended complaint (in the action bearing Index Nuiiihcr 1 1 5545/08), as well as partial summary judgment against third-pafly dcfcndants Straws Painting, Inc. and Creative 1:inislies Limited oil the issue of liability only on [* 52] the third cause of action set forth in the third-party complaint (in the action bearing Index Number 5901 19/09), with the issue of damages to bc determined at the trial of said action, but is otlicrwise denicd; and it is further OlIT>ERt<llthat the motion, pursuant to CPLR 32 12, of third-party dekndant Strauss Painting, Inc. (rnotion scquence nuiiibcr 008) is dcnjcd; and it is furthcr OKIIERED that the cross motion, pursuant to CPLR 3212, of defendants Lincoln Center for the Perforniing Arts, Inc. arid the Metropolitail Opera Association, Inc. (motion sequcnce number 008) is granted solely to tlie extent of granting said defendants partial suminary .judgment to sever and dismiss thc fourth and fifth causes of action of the complaint in the action bearing Index Number 115545/08, but is othcrwise denied; and it is fiirlher ORDERED that the motion, pursuant to CPI,II 3215, of third-party defcndant Strauss Painting, Jiic. for the entry of a d e h l t judgment on its cross complaint against third-paiv defcndant Creative Finishes I .imited (motion sequence iiumber 009) is granted solely to the cxtent that said third-party dei'endant is fourid liable to movant on the causes of action set forth in said cross complaint, with tlie issue of damages to he dctermiiied at the trial of thc third-party action bearing liidex Nuiiiber 590 1 19/09; and it is further OKDERED that tlic motion, pursuant to CPLR 32 12, of the third-parly plaintiff Metropolitan Opera Association, Iiic. (motion scquence number 01 0) is denied; and it is further OIIDERED that the motion, pursuant to C P l ,I< 3212, of third-party defcndant Nova Casualty Company (motion sequence number 01 1) is granled to the extciit that it is ORDERED AII.I(JDGED and DECLARED that Nova is not obligated to defend or iiidcniiiily thc Mct or Creative in Mayo's personal injury action; and it is lirrtlicr 52 [* 53] I ORDERED that the molioii, pursuant to CPLK 3025 to amend, of third-party defendant Creatjvc Firiishes Limitcd (motion sequcnce number 01 3 ) is denicd; and it is further ORDIXED that within -30 days ofeiitly of this order, plaintiffs shall serve a copy upon all parties with nuticc of entry. ORDERED that llie balancc of these actions sliall coiitinue. Dated: New York, Ncw York October 13,2011 J:\Summary ludGment\Mayo\seveIl motions 2 cross motions.reM/Tite,wpd 53
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