Britez v Madison Park Owner, LLC

[*1] Britez v Madison Park Owner, LLC 2012 NY Slip Op 51586(U) Decided on August 9, 2012 Supreme Court, New York County Hagler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2012
Supreme Court, New York County

Paul Britez, Plaintiff,

against

Madison Park Owner, LLC, G Builders IV, LLC, NATIONAL INTERIORS CONTRACTING, INC., CITYWIDE INTERIORS CONTRACTORS, INC., and WALTER & SAMUELS, INC., Defendants.



112928/2008



Attorney for Plaintiff Paul Britez: Jacob Oresky & Associates PLLC, by Eileen Kaplan, Esq., 155 East 149th Street, Bronx, NY 10451, Telephone: 718-993-9999

Attorney for Defendants Madison Park Owner, LLC, Walters & Samuels, Inc., and G Builders IV, LL" target="_blank">Meridian Mgt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508, 510 (1st Dept 2010), quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). "Once the [moving party] establishes a prima facie entitlement to such relief as a matter of law, the burden shifts to the [nonmoving party] to present facts, in admissible form, demonstrating that genuine, triable issues exist precluding the grant of summary judgment." DeRosa v City of New York, 30 AD3d 323, 325 (1st Dept 2006). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." Zuckerman v City of New York, 49 NY2d 557, 562 (1980).

Plaintiff's Labor Law § 240(1) Claims

Labor Law § 240(1), known as the Scaffold Law, provides, in relevant part, as follows:

"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

Labor Law § 240(1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person." Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 (2009), quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 (1993) (emphasis in original). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners, contractors, and their agents, who are "best situated to bear that responsibility. " Ross, 81 NY2d at 500. Thus, the statute has been liberally construed to achieve its objectives. See Lombardi v Stout, 80 NY2d 290, 296 (1992). To succeed under Labor Law § 240(1), the plaintiff need only prove: (1) a violation of the statute (i.e., that the owner or contractor failed to provide adequate safety devices); and (2) that the statutory violation was a proximate cause of the injuries sustained. Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 (2003).

Liability of Owner and Construction Manager

Initially, the court notes that Madison, the owner, and G Builders, the construction manager, have not disputed that they may be liable under the statute.

Statutory Agency of National

The court turns to whether National may be liable under the Labor Law. There is no dispute that National is neither an owner nor a contractor. Thus, the issue is whether National qualifies as an agent of either Madison or G Builders. As the Court of Appeals stated in Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 (1981): [*5]

Although sections 240 and 241 now make nondelegable the duty of an owner or general contractor to conform to the requirement of those sections, the duties themselves may in fact be delegated. When the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory agent' of the owner or general contractor. Only upon obtaining the authority to supervise and control does the third party fall within the class of those having nondelegable liability as an agent' under sections 240 and 241. (citations omitted)

See also Walls v Turner Constr. Co., 4 NY3d 861, 864 (2005) ("unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law"). To hold a subcontractor liable as a statutory agent, "the subcontractor must have been delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury.' " Nascimento v Bridgehampton Constr. Corp., 86 AD3d 189, 193 (1st Dept 2011), quoting Haden v Progressive Painting Corp., 160 AD2d 319, 320 (1st Dept 1990).

Subcontractors have been found to be statutory agents of the general contractor where the subcontracts explicitly grant the subcontractor supervisory authority (see Nascimento, 86 AD3d at 193; Burke v Hilton Resorts Corp., 85 AD3d 419, 420 [1st Dept 2011]; Weber v Baccarat, Inc., 70 AD3d 487, 488 [1st Dept 2010]), or where the subcontractors actually exercised supervisory authority (Everitt v Nozkowski, 285 AD2d 442, 444 [2d Dept 2001]). Evidence that a subcontractor delegated supervision and control to another subcontractor "has been cited as forming part of the proof that the first subcontractor formerly possessed that authority, and may justify imposing Labor Law liability on the first subcontractor as a statutory agent of the general contractor." Nascimento, 86 AD3d at 193.

National argues that it neither had the authority to supervise plaintiff's work nor did it actually exercise any supervision over his work. Plaintiff argues that National qualifies as a statutory agent because it was delegated the authority to supervise and control the work by virtue of its subcontract with G Builders, and demonstrated this authority by delegating the responsibility for supervision and control to Citywide, which then hired Pecci. Plaintiff contends that he was engaged in the type of work specifically enumerated in the contract between G Builders and National. In opposing National's motion, Madison, Walters, and G Builders point out that, pursuant to the terms of the purchase order, National accepted the responsibility to perform all the drywall work and was required to provide "onsite supervision."

National has demonstrated that it did not exercise actual supervisory authority over plaintiff's work. Plaintiff testified that, on the morning of his accident, Pecci told him to check and see where taping needed to be done. Plaintiff EBT, at 24. Aidan O'Donnell, National's foreman, testified that he was in charge of National's workers at the jobsite, that he did not supervise any of Citywide's workers, and that he did not know whether Citywide subcontracted out any of the drywall work. O'Donnell EBT, at 9, 16.

However, the court concludes that National had contractual authority to supervise and control the drywall work. The purchase order required National to "perform all Drywall, Carpentry, and Ceiling scope of work on the following floors: cellar, 1st floor, 9th floor, 12th through 20th floors and Penthouse level." Duffy Affirm. in Support, Exhibit K. The purchase order required National [*6]to "provide a listing of all proposed onsite supervision and associated management." Id. (emphasis added). In addition, the purchase order states that National was obligated to "[t]ape and [s]packle drywall walls and ceilings" and to "[p]rovide and maintain all OSHA required safety and fall protection, including all code compliant guardrails." Id. Since G Builders delegated the drywall work to National, National obtained the authority to supervise and control that work. See Russin, 54 NY2d at 317-318. It is undisputed that National was on site, and that plaintiff was performing drywall work. National's claim that it is not liable because it subsequently subcontracted out the drywall work to Citywide is without merit. "[O]nce a subcontractor qualifies as a statutory agent, it may not escape liability by . . . delegating that work to another entity." Nascimento, 86 AD3d at 195. Moreover, whether National actually supervised plaintiff is irrelevant. See Weber, 70 AD3d at 488. Therefore, National may be liable as an agent of G Builders under Labor Law § 240(1) and § 241(6).

Statutory Agency of Citywide

Citywide also moves for summary judgment dismissing plaintiff's Labor Law § 240(1) and § 241(6) claims arguing that it is not considered an owner, contractor or statutory agent under the Labor Law. Plaintiff has not opposed Citywide's motion. It is undisputed that there is no written contract between National and Citywide. In addition, there is no evidence that Citywide undertook any supervisory responsibility at the site. Plaintiff testified that he received his instructions on the date of the accident from Pecci, and did not receive any tools or equipment from Citywide. Plaintiff EBT, at 116, 122-123. Citywide's owner, Sal Fescina, testified that Pecci supervised its own workers and provided its own equipment. Fescina EBT, at 17-18. Accordingly, Citywide is entitled to dismissal of plaintiff's Labor Law §§ 240(1) and 241(6) claims. See Serpe v Eyris Prods., 243 AD2d 375, 380 (1st Dept 1997) (subcontractor was not statutory agent where it neither controlled the work area nor had the authority to insist that safety precautions be taken with regard to plaintiff's work).

Violation of Labor Law § 240(1) and Proximate Cause

Here, plaintiff has established prima facie entitlement to partial summary judgment on liability on his Labor Law § 240(1) claim. Plaintiff testified that, while he was performing taping work, the platform of the scaffold "moved," causing him to fall to the floor. Plaintiff EBT, at 52-53, 57, 135. Plaintiff testified that that "had that barrier would have been there — up there, I would not have fell backwards." Id., at 135. Thus, plaintiff has shown that the scaffold did not provide "proper protection," and that he was not given any other devices to prevent him from falling. See Vergara v SS 133 W. 21, LLC, 21 AD3d 279, 280 (1st Dept 2005) (worker who was injured in fall from scaffold was not provided with proper protection where the scaffold had no side rails, and no other protective devices were provided to prevent plaintiff from falling); Morrison v City of New York, 306 AD2d 86 (1st Dept 2003) (defendants' liability was established by the fact that the scaffold they provided to plaintiff, which admittedly had no guardrails, safety nets or lifelines, did not prevent plaintiff from falling).

Defendants assert that plaintiff was the sole proximate cause of his injuries, relying on the job site incident report, which states that "Mr. Britez attempted to move forward on the scaffold with the wheels in the unlocked position. As he attempted to move forward he lost his balance and stepped off the scaffold and fell between the scaffold and the wall." Duffy Affirm. in Support, [*7]Exhibit M. Assuming that the job site incident report constitutes admissible evidence, there is no evidence that plaintiff misused the scaffold or failed to use an adequate, available safety device. In addition, the job site incident report stated that "[t]he direct/indirect/basic cause of this accident was improper & damaged bakers scaffold platform.' " Kaplan Affirm. in Support, Exhibit B. The daily field report dated January 15, 2008 also indicated that the plywood platform on the baker's scaffold was defective. In any event, plaintiff's injuries are at least partially attributable to the absence of a guardrail or other protective device on the scaffold and that the wooden platform of the scaffold was defective.

To show that the plaintiff was the sole proximate cause of an injury, the defendant must establish that "plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured.' " Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 10 (1st Dept 2011), quoting Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 (2004). However, "if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it." Blake, 1 NY3d at 290. In the instant case, since the lack of a safety railing on the scaffold was a proximate cause of the injury, plaintiff can not be the "sole proximate cause" of his injury as a matter of law.

Thus, even if plaintiff failed to lock the wheels of the scaffold and did not descend from the scaffold in order to move it, plaintiff's actions would not be the sole proximate cause of his injuries. See Crespo v Triad, Inc., 294 AD2d 145, 147 (1st Dept 2002) (painter's failure to use locking wheel devices on scaffold and movement on scaffold were not determinative on his section 240(1) claim since contributory negligence is not a defense); Lawrence v Forest City Ratner Cos., 268 AD2d 380, 380-381 (1st Dept 2000) (even if plaintiff failed to lock the wheels of the scaffold, it could not be said that he was the sole proximate cause of his accident); Vanriel v Weissman Real Estate, 262 AD2d 56 (1st Dept 1999) (plaintiff's failure to activate locking device for scaffold wheels was not the sole proximate cause of accident).

Moreover, although defendants point out that plaintiff initially testified that he fell against the wall, but later changed his mind (Plaintiff EBT, at 63-64), these minor inconsistencies do not warrant denial of plaintiff's motion. Plaintiff is not required to prove the precise reason for his fall. See Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 291 (1st Dept 2002) (possible discrepancies as to plaintiff's description of how or why he fell off the scaffold were irrelevant since there was no dispute that his injuries were caused by his fall from the scaffold); Laquidara v HRH Constr. Corp., 283 AD2d 169 (1st Dept 2001) (where there was no question that plaintiff's injuries were at least partially attributable to the defendants' failure to provide guardrails, safety netting or other proper protection, "(t)he precise manner in which plaintiff's fall occurred is immaterial").

Accordingly, plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1) is granted against Madison, the owner, and G Builders, the construction manager, and National, the drywall subcontractor. The branch of Madison, Walters, and G Builders's cross-motion seeking dismissal of plaintiff's Labor Law § 240(1) claim is denied. The branch of National's cross-motion for dismissal of plaintiff's Labor Law § 240(1) claim is denied. The branch of Citywide's motion for dismissal of plaintiff's Labor Law § 240(1) claim is granted.

Plaintiff's Labor Law § 240(1) Claims [*8]

Labor Law § 241(6) provides, in relevant part, as follows:

All contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavation in connection therewith, shall comply with the following requirements:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."

Thus, Labor Law § 241(6) requires owners, contractors, and their agents to "provide reasonable and adequate protection and safety" for workers performing the inherently dangerous activities of construction, excavation, and demolition work. To recover under Labor Law § 241(6), the plaintiff must plead and prove the violation of a specific and applicable Industrial Code provision, and show that the violation was a proximate cause of the accident. Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348, 349 (1998); Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 271 (1st Dept 2007), lv denied 10 NY3d 710 (2008).

In their cross-motion, Madison, Walters, and G Builders move for summary judgment dismissing plaintiff's Labor Law § 241(6) claim arguing that plaintiff has failed to plead a specific or applicable section of the Industrial Code.[FN3] However, Madison, Walters, and G Builders do not address 12 NYCRR 23-5.18 (b) in their cross-motion.

In opposition to the cross-motions, plaintiff relies on one Industrial Code provision, 12 NYCRR 23-5.18 (b), which states that "Safety railings required. The platform of every manually- propelled mobile scaffold shall be provided with a safety railing constructed and installed in compliance with this Part (rule)." Plaintiff asserts that this section was violated because the record indicates that the scaffold did not have any guardrails.

Madison, Walters, and G Builders do not address plaintiff's Labor Law § 241(6) cause of action in reply. As indicated above, the court has held that National qualifies as a statutory agent of G Builders. Thus, National may be liable under Labor Law § 241(6). In addition, Citywide has shown that it is not a statutory agent.

Section 23-5.18 has been held to be sufficiently specific to result in liability pursuant to Labor Law § 241(6). See Moran v 200 Varick St. Assoc., LLC, 80 AD3d 581, 583 (2d Dept 2011), lv dismissed 17 NY3d 756 (2011); Ritzer v 6 E. 43rd St. Corp., 57 AD3d 412, 413 (1st Dept 2008); Vergara, 21 AD3d at 281). It is undisputed that the scaffold lacked any safety railings. As discussed above, defendants' failure to provide a safety railing was a proximate cause of plaintiff's injury. [*9]Defendants have failed to raise an issue of fact. Upon a search of the record, the court grants plaintiff partial summary judgment on the issue of liability under Labor Law § 241(6) based upon a violation of 12 NYCRR 23-5.18 (b) as against Madison, G Builders, and National. See CPLR § 3212(b), Practice Commentary 3212:23 (court is empowered to search record to award summary judgment to non-moving party, if appropriate). See also Merritt Hill Vineyards, Inc. v Windy Heights Vineyard, Inc., 61 NY2d 106, 110 (1984); Oringer v Rotkin, 162 AD2d 113, 114 (1st Dept 1990).

Plaintiff's Labor Law § 200 and Common-Law Negligence Claims

Plaintiff has also asserted causes of action pursuant to Labor Law § 200 and common-law negligence. Defendants Madison, Walters, G Builders and National separately, all cross-move to dismiss those causes of action.

Labor Law § 200 provides as follows:

All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.

Labor Law § 200 is a codification of the common-law duty imposed on owners and general contractors to maintain a safe work site. Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 (1993). "[A]n implicit precondition to this duty is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition.' " Rizzuto, 91 NY2d at 352, quoting Russin, 54 NY2d at 317. Where the injury arises out of the means or methods of the work, the plaintiff must establish that the owner or contractor exercised supervision or control over the activity giving rise to the injury. See Thompson v BFP 300 Madison II, LLC, 95 AD3d 543 (1st Dept 2012); Geonie v OD & P NY Ltd., 50 AD3d 444, 445 (1st Dept 2008); Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 (1st Dept 2007); Cahill v Triborough Bridge & Tunnel Auth., 31 AD3d 347, 350 (1st Dept 2006). "General supervisory authority is insufficient to constitute supervisory control; it must be demonstrated that the [defendant] controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed." Hughes, 40 AD3d at 306.

There are two distinct standards applicable to Labor Law § 200 cases, depending upon whether the accident is the result of a dangerous condition, or whether the accident is the result of the means and methods used by the contractor to perform its work. See, e.g., McLeod v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 41 AD3d 796 (2d Dept 2007).

When the accident arises from a dangerous condition, to sustain a cause of action for violation of Labor Law § 200, the injured worker must demonstrate that the defendant had actual or constructive knowledge of the unsafe condition that caused the accident and, under such theory, the defendant's supervision and control over the work being performed is irrelevant. See Murphy v Columbia Univ., 4 AD3d 200 (1st Dept 2004). Conversely, if the accident arises from the means and methods employed to perform the work, the injured worker must evidence that the defendant [*10]exercised supervisory control over the injury-producing work. Comes, 82 NY2d 876; McFadden v Lee, 62 AD3d 966 (2d Dept 2009). General supervision over the job site is insufficient to render an owner or general contractor liable under Labor Law § 200. Cahill, 31 AD3d 347.

Here, defendants assert, and plaintiff does not dispute, that his injury stems from the means and methods of his work. Plaintiff testified that, on the date of his accident, Christian Pecci told him to check and see where taping work needed to be done. Plaintiff EBT, at 24, 116-117. Norman Silver, the managing agent for Walters, testified that he was on site three or four times per week to check the progress of the work. Silver EBT, at 6-8, 19-22, 25-26. Silver testified that if he observed any unsafe conditions he would report them to G Builders. Silver EBT, at 21. George Figliolia of G Builders testified that he walked the job site, and that the subcontractors supervised their own work and provided their own equipment including scaffolds and fall protection equipment. Figliolia EBT, at 21-24, 77, 101. Sal Fescina of Citywide also testified that Pecci supervised its own workers. Fescina EBT, at 17-18. Monitoring and oversight of the timing and quality of the work are not enough to impose liability under section 200 or the common law. Paz v City of New York, 85 AD3d 519 (1st Dept 2011); Kagan v BFP One Liberty Plaza, 62 AD3d 531, 532 (1st Dept), lv denied 13 NY3d 713 (2009); Dalanna v City of New York, 308 AD2d 400 (1st Dept 2003). Furthermore, a general duty to ensure compliance with safety regulations and the authority to stop work for safety reasons are also insufficient to impose liability. Dalanna, 308 AD2d at 400; Buccini v 1568 Broadway Assoc., 250 AD2d 466, 468-469 (1st Dept 1998).

Furthermore, plaintiff has failed to present any evidence that Madison, Walters, G Builders, or National had either actual or constructive notice of the allegedly dangerous condition of the scaffold that caused the accident. Regarding Citywide, as was previously found, it had no responsibility or duty to plaintiff regarding the condition of the scaffold and, therefore, cannot be held liable under Labor Law § 200.

Since defendants Madison, Walters, G Builders, National, or Citywide did not supervise the work being done by the plaintiff, plaintiff has failed to present any evidence that these defendants had actual or constructive knowledge of the alleged dangerous condition of the scaffold, and given that plaintiff has not opposed dismissal of his Labor Law § 200 and common-law negligence causes of action, this Court grants defendants' motions for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action.

Madison, Walters, and G Builders' Cross-Claims for Indemnification and Failure to Procure Insurance

Contractual Indemnification

Madison, Walters, and G Builders move for contractual indemnification from National pursuant to the indemnification clause in the Master Agreement between G Builders and National. Section 1.1 of the Master Agreement provides as follows:

To the fullest extent permitted by law, Subcontractor or his sub-tier Subcontractor(s) (collectively "Indemnitors") shall defend, indemnify and hold harmless the following persons and entities (the "Indemnitees"): Contractor, Owner (which term includes Contractor's client and owner of the land, leasehold and/or building in and upon which the Subcontract is performed) and Contractor's and Owner's respective owners, licensees, affiliates, parents, [*11]subsidiaries, directors, officers, trustees, employees, lenders, agents and representatives of such owners, affiliates, licensors, licensees, parents and subsidiaries . . . . Such indemnity shall be from and against all claims, damages, losses and expenses, including, but not limited to, reasonable attorneys' fees, arising out of or resulting from the performance of the Work, including but not limited to, any such claims, damages, losses and expenses attributable to bodily injury, sickness, disease or death, or injury to or destruction of tangible property, including the loss of use resulting therefrom, provided such claim, damage, loss or expense is caused in whole or in part by any act or omission of this Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder (provided, however, that this clause shall not act to assign liability to any party in excess of its proportionate share of negligence).

(Emphasis added) Duffy Affirm. in Support, Exhibit L.

In seeking contractual indemnification, Madison, Walters, and G Builders argue that National clearly intended to indemnify them for any liability arising from a situation such as this case. Madison, Walters, and G Builders seek all attorneys' fees, costs, and disbursements in defending this action from National.

In opposing the motion, National argues first that the movants have failed to sufficiently authenticate the Master Agreement. National contends that, in response to a notice to admit, it denied that the Master Agreement was executed by a National employee with proper authority. Duffy Affirm. in Support, Exhibit K. Second, National maintains that the indemnification provision is vague and ambiguous as to the exact identities of the proposed indemnitees. Specifically, National points out that: (1) the general contract lists Walters as the owner, (2) Madison is not mentioned as a proposed indemnitee in any of the contracts, and (3) the movants are not specifically named in the indemnification provision. Third, National contends that the Master Agreement requires an "act or omission of the Subcontractor" to trigger indemnity, and that none of the parties has presented any evidence of any active negligence by National. National further argues that the evidence shows that Madison, Walters, and G Builders were actively negligent — these defendants allegedly supervised, directed, and controlled the work and were directly involved with issues of site safety.

In reply, Madison, Walters, and G Builders argue that the Master Agreement was sufficiently authenticated by an affidavit from Isaac Stareshefsky, annexed to their moving papers. Madison, Walters, and G Builders further contend that the indemnification provision does not require a finding of negligence to trigger indemnification.

"A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances.' " Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 (1987), quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153 (1973). Moreover, "a contract assuming [the duty to indemnify] . . . must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed." Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 (1989). It is well established that " [i]n contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of the statutory liability. Whether or not the proposed indemnitor was negligent is a non-issue and irrelevant.' " De La Rosa v Philip Morris Mgt. Corp., 303 AD2d 190, 193 (1st Dept 2003), [*12]quoting Correia v Professional Data Mgt., 259 AD2d 60, 65 (1st Dept 1999).

Initially, contrary to National's contention, Madison, Walters, and G Builders have sufficiently authenticated the Master Agreement. See First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 (1st Dept 1992); see also Prince, Richardson on Evidence § 9-101 (Farrell 11th ed). Isaac Stareshefsky, the chief financial officer employed by G Builders, states that the executed Master Agreement is a true and correct copy of the executed agreement between G Builders and National. Stareshefsky Aff., ¶ 6.

"[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms." Greenfield v Philles Records, 98 NY2d 562, 569 (2002). Whether or not an agreement is ambiguous is an issue of law for the court. W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 (1990). The proper inquiry in determining whether an agreement is ambiguous is whether the agreement is reasonably susceptible to more than one interpretation (Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]; Chiusano v Chiusano, 55 AD3d 425 [1st Dept 2008]), and should be determined "by looking within the four corners of the document," not to outside sources (Kass v Kass, 91 NY2d 554, 566 [1998]).

The court finds that the Master Agreement is clear and unambiguous. The Master Agreement requires National to indemnify "[G Builders], Owner (which term includes Contractor's client and owner of the land, leasehold and/or building in and upon which the Subcontract is performed) . . . and Owner's respective . . . agents . . . from and against all claims, damages, losses and expenses, including but not limited to reasonable attorneys' fees . . . arising out of or resulting from the performance of the Work . . . provided such claim . . . is caused in whole or in part by any act or omission of this Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts any of them may be liable." Duffy Affirm. in Support, Exhibit L. Although National argues that the general contract lists Walters as the owner, this evidence is outside the four corners of the Master Agreement. In addition, there is no genuine dispute that Madison is the owner of the building, that G Builders is the construction manager that hired National, and that Walters is the managing agent of the building.

As discussed above, Madison, Walters, and G Builders have demonstrated that they were not negligent. Moreover, the plain language of the Master Agreement does not require negligence to trigger indemnification. See Matter of New York City Asbestos Litig., 41 AD3d 299, 302 (1st Dept 2007). It is also undisputed that plaintiff's accident arose out of the performance of the subcontracted drywall work, and that National's sub-subcontractor, Pecci, directed plaintiff to perform taping work on the date of his accident. Plaintiff EBT, at 24. Thus, plaintiff's accident "ar[ose] out of or result[ed] from the performance of the Work" and was "caused in whole or in part by an[] act or omission" of "anyone directly or indirectly employed by [National]." Duffy Affirm. in Support, Exhibit L. Accordingly, Madison, Walters, and G Builders are entitled to contractual indemnification, including reasonable attorneys' fees, from National. See Simone v Liebherr Cranes, Inc., 90 AD3d 1019 (2d Dept 2011) (indemnification clause required subcontractor to hold harmless and defend contractor "from and against all claims, damages, losses and expenses including but not limited to attorneys' fees arising out of or resulting from the performance of the agreement, provided any such claim, damage, loss or expense is (a) attributable to bodily injury . . . and (b) is caused in whole or in part by any act or omission of the Subcontractor or anyone directly or indirectly employed by it"; subcontractor was required to indemnify contractor where the action arose out of [*13]the performance of the contract and acts or omissions of persons or entities directly or indirectly employed by subcontractor); Tapia v Mario Genovesi & Sons, Inc., 72 AD3d 800, 802 (2d Dept 2010) (indemnification clause required subcontractor to indemnify general contractor for all claims "arising out of . . . the performance of the work, provided that any such claim . . . [was] caused in whole or in part by any neglect, act or omission by the subcontractor, any sub-tier contractor or any one directly or indirectly employed by him or anyone for whose acts he may be liable"; subcontractor was required to indemnify general contractor where plaintiff's accident arose out of the subcontracted work, and subcontractor's sub-tier contractor directed plaintiff to build inadequate scaffold).

Claim of Failure to Procure Insurance

Madison, Walters, and G Builders move for summary judgment on their claim that National failed to procure insurance for all of the defendants, as required by the Master Agreement. Madison, Walters, and G Builders also maintain that National failed to comply with section 2.4 of the Master Agreement.

In opposition, National again argues that the movants failed to authenticate the Master Agreement. National contends that section 2.4 of the Master Agreement only requires certificates of insurance to be provided, but does not mention what entities are to be named as additional insureds. National argues that it purchased all appropriate insurance as evidenced by the additional insured endorsement in its commercial general liability policy issued by Scottsdale Insurance Company for the period April 13, 2007 through April 13, 2008. Cheng Affirm. in Partial Opposition, Exhibit A. National further maintains that, even if the movants could establish a breach of contract, their damages would be limited to the costs of purchasing substitute insurance and other out-of-pocket costs.

As indicated above, Madison, Walters, and G Builders sufficiently authenticated the Master Agreement. Section 2.1 of the Master Agreement, entitled Insurance Requirements, provides that:

Subcontractor and each its lower tier subcontractors shall purchase and maintain the types of insurance with the coverage and limits specified, all as set forth in Exhibits A and A-1, and shall keep same in full force and effect during the performance of the Work, and with respect to Products/Completed Operations liability, for three years after completion of work.

Duffy Affirm. in Support, Exhibit L. Section 2.4 provides that:

Should the Subcontractor engage a sub-subcontractor, the same conditions applicable to the Subcontractor shall apply to each sub-subcontractor of every tier. Such sub-subcontractor insurance certificate shall be forwarded to the Contractor by the Subcontractor with an indication of the relationship of the insured to the Contractor or Subcontractor.

Duffy Affirm. in Support, Exhibit L. Exhibit A, entitled Insurance Requirements, states as follows:

Contractor, Owner, their affiliates, subsidiaries, officers, directors and employees, and all other parties required of the Contractor, shall be included as insureds on the CGL, using ISO Additional Insured Endorsement CG 20 10 11 85 or an endorsement providing equivalent coverage to the additional insureds. This insurance for the additional insureds shall be as broad as the coverage provided for the named insured subcontractor. It shall apply as Primary Insurance before any other insurance or self-insurance, including any deductible, maintained by, or provided to, the [*14]additional insured.

Duffy Affirm. in Support, Exhibit L.

National provides a commercial general liability policy issued by Scottsdale Insurance Company for the period April 13, 2007 through April 13, 2008. Cheng Affirm. in Partial Opposition, Exhibit A. The policy contains a blanket additional insured endorsement, which provides:

With respect to this endorsement, Section II- WHO IS AN INSURED is amended to include as an additional insured any person or organization whom you are required to add as an additional insured on this policy under a written contract, written agreement or written permit which must be:

a.Currently in effect or becoming effective during the term of the policy; and

b.Executed prior to the "bodily injury," "property damage," or "personal and advertising injury."

The insurance provided to these additional insureds is limited as follows:

1.That person or organization is an additional insured only with respect to liability for "bodily injury," "property damage," or "personal and advertising injury" caused, in whole or in part, by:

a.Your acts or omissions; or

b.The acts or omissions of those acting on your behalf"

Duffy Affirm. in Support, Exhibit L.

Here, National did not breach the insurance procurement provision. National purchased an insurance policy with a blanket additional insured endorsement for contractually designated insureds. See Perez v Morse Diesel Intl., Inc., 10 AD3d 497, 498 (1st Dept 2004). Moreover, section 2.4 of the Master Agreement only requires that certificates of insurance be provided. Accordingly, National is entitled to dismissal of the breach of contract claim. Id.

National and Citywide's Claims for Indemnification and Contribution

National moves for common-law indemnification against Citywide, arguing that Citywide was working on the twelfth floor and that it supervised and directed plaintiff's work.[FN4]

Common-law indemnification "permits one who has been compelled to pay for the wrong [*15]of another to recover from the wrongdoer the damages it paid to the injured party." 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80 (1st Dept 1999). "To be entitled to common-law indemnification, a party must show (1) that it has been held vicariously liable without proof of any negligence or supervision on its part; and (2) that the proposed indemnitor was either negligent or exercised actual supervision or control over the injury-producing work." Naughton v City of New York, 94 AD3d 1, 10 (1st Dept 2012), citing McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378 (2011).

Here, as previously indicated, there is no evidence that Citywide was negligent or actually supervised plaintiff's work on the date of his accident. Plaintiff testified that Pecci told him to go through the floors and see where taping needed to be done on the date of his accident. Plaintiff EBT, at 24. Additionally, Citywide's owner, Sal Fescina, testified that he did not supervise Pecci's workers or provide any equipment to its workers. Fescina EBT, at 17-18. Therefore, National is not entitled to common-law indemnification from Citywide.

National and Citywide also move for default judgments against Pecci, a limited liability company. Pecci has not opposed the motions and, in fact, has not interposed an answer nor even appeared in this lawsuit.

An application for a default judgment is governed by CPLR § 3215, which requires (1) proof of service of the summons, including a complaint or CPLR 305 (b) notice, (2) proof of the claim, and (3) proof of the default. CPLR § 3215(f); see also Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71 (2003).

Limited Liability Company Law § 303 governs service of process on limited liability companies, as follows:

(a) Service of process on the secretary of state as agent of a domestic limited liability company or authorized foreign limited liability company shall be made by personally delivering to and leaving with the secretary of state or his or her deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such limited liability company shall be complete when the secretary of state is so served. The secretary of state shall promptly send one of such copies by certified mail, return receipt requested, to such limited liability company at the post office address on file in the department of state specified for that purpose. (b) Nothing in this section shall limit or affect the right to serve any process required or permitted by law to be served upon a limited liability company in any other manner now or hereafter permitted by law or applicable rules of procedure."

Here, National provides a copy of its third-party complaint as well as affidavits of service on Pecci through the Secretary of State. Cheng Affirm. in Support, Exhibits J and K. National also submits an affidavit of service indicating that its motion was served on Pecci. A review of Citywide's original motion for entry of a default judgment against Pecci reveals that Citywide submitted an affidavit of service of the second third-party complaint on Pecci through the Secretary of State. Turkel Affirm. in Support, Exhibit B. Citywide also submits an affidavit of service indicating that its present motion was served on Pecci. National and Citywide's affirmations indicate that Pecci did not answer the third-party complaints or otherwise move. Cheng Affirm. in Support, [*16]¶ 23; Turkel Affirm. in Support, ¶ 4.

As indicated earlier, National and Citywide have established that they were not negligent and the evidence shows that plaintiff was supervised by Pecci, his employer. Plaintiff EBT, at 24. Thus National and Citywide have now established their prima facie entitlement to common-law indemnification and/or contribution. While, as Justice Goodman had previously noted, neither National nor Citywide established in their motions that the Workmers' Compensation § 11 bar does not apply, a recent First Department decision held that, for an employer to receive the benefit of that statute, it must be pled as an affirmative defense, the movants have no burden to disprove a defense which has never been raised, and the Court may not, sua sponte, take judicial notice of a defense which has not been raised. De Oleo v Charis Christian Ministries, Inc., 94 AD3d 541, 542 (1st Dept 2012). Accordingly, National and Citywide are entitled to default judgments on their third-party claims for common-law indemnification against Pecci.

CONCLUSION

Accordingly, it is

ORDERED that the motion (sequence number 007) of plaintiff Paul Britez for partial summary judgment on the issue of liability under Labor Law § 240(1) is granted as against defendants Madison Park Owner, LLC, G Builders IV, LLC, and National Interior Contracting, Inc. s/h/a National Interiors Contracting, Inc.; and it is further

ORDERED that plaintiff is awarded partial summary judgment on the issue of liability under Labor Law § 241(6) based upon a violation of 12 NYCRR 23-5.18 (b) as against defendants Madison Park Owner, LLC, G Builders IV, LLC, and National Interior Contracting, Inc. s/h/a National Interiors Contracting, Inc.; and it is further

ORDERED that the motion (sequence number 008) of defendant/second third-party plaintiff Citywide Interiors Contractors, Inc. is granted and the complaint is severed and dismissed as against said defendant with costs and disbursements as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment in favor of said defendant; and it is further

ORDERED that defendant/second third-party plaintiff Citywide Interiors Contractors, Inc. is also granted a default judgment on any of its second third-party claims which still exist against second third-party defendant Pecci Construction, LLC; and it is further

ORDERED that the cross-motion of defendants Madison Park Owner, LLC, G Builders IV, LLC, and Walters & Samuels, Inc. for summary judgment is granted to the extent of (1) granting Madison Park Owner, LLC, Walters & Samuels, Inc. and G Builders IV, LLC contractual indemnification against defendant National Interior Contracting, Inc. s/h/a National Interiors Contracting, Inc., (2) dismissing plaintiff's Labor Law § 200 and common-law negligence claims, and (3) the remaining branches of the cross-motion are otherwise denied; and it is further

ORDERED that the cross-motion of defendant National Interior Contracting, Inc. s/h/a National Interiors Contracting, Inc. is granted to the extent of(1) dismissing plaintiff's Labor Law § 200 and common-law negligence claims, and(2) granting a default judgment on its third-party claim for common-law indemnification against third-party defendant Pecci Construction, LLC, and (3) the remainder of the cross-motion is otherwise denied; and it is further

ORDERED that the cross-claim of defendants Madison Park Owner, LLC, Walters & Samuels, Inc., and G Builders IV, LLC, for failure to procure insurance against National Interior [*17]Contracting, Inc. s/h/a National Interiors Contracting, Inc. is dismissed.

The foregoing constitutes the decision and order of this Court. Courtesy copies of this decision and order are being provided to counsel for the parties.

ENTER:

Dated:August 9, 2012

New York, New YorkHon. Shlomo S. Hagler, J.S.C. Footnotes

Footnote 1:Plaintiff was deposed on January 26, 2010 and on April 29, 2010. The court cites to plaintiff's January 26, 2010 deposition.

Footnote 2:The job site incident report states that "[t]he direct/indirect/basic cause of this accident was improper & damaged bakers scaffold platform.' " Kaplan Affirm. in Support, Exhibit B.

Footnote 3:Plaintiff's bill of particulars alleges that defendants violated the following sections of the Industrial Code: 12 NYCRR 23-1.2; 12 NYCRR 23-1.3; 12 NYCRR 23-1.4; 12 NYCRR 23-1.5; 12 NYCRR 23-1.7; 12 NYCRR 23-1.16; 12 NYCRR 23-1.17; 12 NYCRR 23-1.21; 12 NYCRR 23-1.22; 12 NYCRR 23-5.3; 12 NYCRR 23-5.10; 12 NYCRR 23-5.18; and 12 NYCRR 23-9.6 (Verified Bill of Particulars, ¶ 6).

Footnote 4:Citywide also seeks an order, in the event that its motion seeking dismissal of plaintiff's claims is denied, dismissing Madison, G Builders, and National's common-law indemnification claims. Since Citywide's motion is granted, the court need not consider this branch of Citywide's motion.