Smith v Hudson City Sav. Bank

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Smith v Hudson City Sav. Bank 2013 NY Slip Op 32186(U) September 9, 2013 Sup Ct, Suffolk County Docket Number: 08-27296 Judge: Daniel Martin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 08-27296 12-01393OT CAL NO. SUPREME, COURT - S l A T E OF NEW YORK I.A.S. PART 9 - SUFFOLK COUNTY PRESENT: 12- I 8- 12 (#OO 1 - #004) 1-1 5-13 (#005) 4-23-13 # 004 - MotD Mot. Seq. # 001 - MG # 005 - MotD # 002 - MotD # 003 - MotD MOTION DATE MOTION DATE ADJ. DATE I ion. . DANIEL MARTIN Justice of the Supreme Court X BURTON SMITH and KATHLEEN SMITH, Plaintiffs, - against - HUDSON CITY SAVINGS BANK, J-IAMPTONS PONQUOGUE LLC, SANDPEBBLE: BUILDERS, WC., and GJC ASSOCIATES, WILLIAM F. FARRELL, ESQ. Attorney for Plaintiff Kathleen Smith 2 14 Roanoke Avenue Riverhead, New York 1 190 1 THOMAS G. NOLAN, ESQ. Attorney for Plaintiff Burton Smith One Union Square, POB 826 Aquebogue, New York 1 193 1 Defendants. MAMPTONS PONQUOGUE LLC, First Third-party Plaintiff, PEREZ & VARVARO Attorneys for Hudson City Savings Bank 333 Earle Ovington Building, P.O. Box 9372 Uniondale, New York 11553 - against SANDPEB13LE BUILDERS, INC., First Third-party Defendant. HUDSON CITY SAVTNGS BANK, Second Third-party. Plaintiff, - MARGARET G. KLEIN & ASSOCIATES Attorneys for Hamptons Poiiquogue LLC 200 Madison Avenue New York, New York 10016 McGAW, ALVENTOSA & ZAJAC Attorneys for Sandpebble Builders, Inc Two Jericho Plaza, Suite 300 Jericho, New York 11753 against - G.JC AS SOC I A'TES, Second Third-party Defendant. TROMELLO MCDONNELL & KEHOE Attorneys for GJC Associates P.O. Box 9038 Melville, New York 11747 [* 2] MITCHELL SILBERBERG & KNUPP, LLP Attorneys for Godsell Contractors, Inc. 12 East 49th Street, 30th Floor New York, New York 10017-1028 GJC ASSOCIATES. Third Third-party Plaintiff, - against - GODSELL CON I RACTORS, INC., Third Third-party :Defendant. ! Upon the following papers numbered I to 1 - 126 read on these motions for summaw i u d m e n t ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 39 ; Notice of Cross Motion and supporting papers (002) 40 - 79; (003) 8 0 82; (004) 83 - 85; (005) 86 - 88 ; Answering Affidavits and supporting papers 89 - 97; 98 - 103; 104 - 105; 106 - 107; 108 1 0 Replying Affidavits and supporting papers 1 1 1 - 112; 113 - 114; 115 - 116; 117 - 118; 119 - 120; 121 - 122; 123 - 126 ; 1; Other ;( m t ) it is, ORDERED that the motion (001) by defendant Hamptons Ponquogue, LLC, for, inter alia, summary judgment dismissing the complaint and cross claims against it is granted; and it is ORDERED that the cross motim (002) by defendant Hudson City Savings Bank for, inter alia, summary judgment dismissing the complaint and cross claims against it is granted to the extent that the causes of action alleging violations of :,abor Law§§ 240(1) and 241(6) are dismissed, and is otherwise denied; and it is ORDERED that the cross motim (003) by defendant GJC Associates for summary judgment dismissing the causes of action against it based on Labor Law§§ 240(1) and 241(6) is granted; and it is ORDERED that the cross motim (004) by defendant Sandpebble Builders, Inc. for, inter alia, summary judgment dismissing the complaint and cross claims against it is granted to the extent that the causes of action alleging violations of Labor Law§§ 240(1) and 241(6) are dismissed, and is otherwise denied; and it is ORDERED that the cross motion (005) by defendant Godsell Contractors, Inc. for, inter alia, summary judgment dismissing the complaint and cross claims against it is granted to the extent that the causes of action alleging violations of Labor Law§§ 240( 1) and 241 (6) are dismissed, and is otherwise den i ed . Plaintiff Burton Smith commenced this action to recover damages for personal injuries allegedly sustained on October 16, 2007, when he fell while servicing an I-IVAC unit in the attic of defendant I Iudson City Savings Bank ( Hudson City ) located at 18 Montauk Highway, Nampton Bays, New York. The premises was owned by defendant Hamptons Ponquogue, LLC ( Hamptons LLC ), and leased by Hudson City, which hired plaintiffs employer, non party Kolb Mechanical, to investigate a squealing noise emanating froiii the HVAC system. Plaintiff allegedly fell and injured himself when a catwalk [* 3] Smith v Hudson City Savings Bank Index No. 08-27296 Page No. 3 located in the attic of the building collapsed while he was walking toward the HVAC unit to replace a worn mechanical belt. Prior to plaintiffs accident in 2005, Hudson contracted with defendant GJC Associates ( GJC ) to perform renovations which converted the subject premises from a marine supply store into a bank. GJC subcontracted with Sandpebble Builders Inc. ( Sandpebble ) to manage the renovation project. GJC also hired Godsell Contractors, Inc. ( Godsell ) to perform portions of the renovation work, including the installation of the catwalk involved in the accident. By way of an amended complaint, plaintiff alleges causes of actions against the defendants based upon violations of Labor Law $4 200, 240 (l), and 241(6). The amended complaint also asserts a claim by plaintiffs wife, Kathleen Smith, for loss of consortium and reimbursement of medical expenses. Following commencement of the action, defendants joined issue and asserted cross claims against each other for comnion law and contractual indemnification, contribution, and breach of contract based upon the alleged failure to obtain liability insurance naming each other as additional insureds. Shortly thereafter, Hamptons LLC brought a third-party action against GJC alleging causes of action identical to those asserted in the cross claims. Asserting similar claims, Hudson City brought a second third-party action against Sandpebble, and GJC brought a third third-party action against Godsell. Hamptons LI,C now moves for summary judgment dismissing the complaint against it on the grounds plaintiff was engaged in routine maintenance when he fell, that there was no construction, excavation or demolition of the premises at the time of the accident, and that plaintiff failed to allege any specific violations of the Industrial Code. Hamptons LLC further asserts that as the out-of-possession landlord, it neither created nor possessed actual or constructive notice of the alleged dangerous condition, and did not exercise any control of plaintiffs work. Alternatively, Hamptons LLC seek summary judgment on its cross claims against Hudson City and GJC for contractual or common law indemnification. Hudson City opposes the branch of Hamptons LLC s motion for summary judgment on its cross claims, and cross-moves for summary judgment dismissing the complaint on bases similar to those set forth in Hamptons LLC s moving papers. Hudson City requests, alternatively, that it be granted summary judgment on its cross claims for indemnification against GJC. GJC opposes the branch of Hudson City s cross motion for summary judgment on its cross claims, arguing, inter alia, that a triable issue exists as to whether Hudson City is partially responsible for the defective design of plywood flooring in the building s attic. GJC also adopts the arguments set forth in Iiamptons LLC s moving papers and cross-moves for summary judgment dismissing plaintiffs claims against it under Labor Law 5 $240( 1) and 24 l(6). Sandpebble cross moves for summary judgment dismissing plaintiffs claims against it; alternatively, it seeks summary judgment on its cross claims for common lam indemnification. Godsell joins the branches of co-defendants cross motions seeking dismissal of plaintiff s claims, but opposes the branches of those motions seeking summary judgment on the cross claims against it on the basis that it was not contractually obligated to provide indemnification and no nexus exists between the work it performed on the premises and the alleged dangerous condition that caused plaintiff s accident. Godsell argues, inter alia, no evidence exists that its employees failed to nail the plywood sheets to the beam at the floor of the attic, and that there is an insufficient nexus between its work and plaintiffs accident. [* 4] Smith t Hudson City Savings Bank Index No. 08-27296 Page No. 4 @I) Plaintiff does not oppose the niotio by Hamptons LLC seeking dismissal of the complaint against % it, and concedes that he failed to state causes of action under Labor Law $$240(1) and 241(6). However, plaintiff opposes the branches of defendants' cross motions seeking summary judgment dismissing his clainis under thc coiiinion law and section 200 of the Labor Law. In particular, plaintiff asserts that the cross motions by Sandpebble and Godsell were untimely, since they were made more than 120 days after the filing of the note of issue, and were not based on grounds nearly identical to those asserted in Hudson City's tiinell motion. Plaintiff further asserts that significant triable issues exists as to whether Hudson City created the alleged dangerous condition by deciding to install a narrow plywood catwalk in the attic rather than an actual floor; whether Godsell, the subcontractor responsible for installing the plywood catwalk, negligently failed to screw the plywood into the floor joists; and whether Sandpebble had notice of the alleged dangerous condition since it failed to carry out its contractual obligation of ensuring that the plywood catwalk was properly secured to the floor joists in the attic. At his examination before trial, plaintiff testified that the accident occurred as he was walking toward the HVAC unit at the north end of the attic, when a plywood sheet that was not nailed into the floor joists gave way and caused him to fall. Plaintiff testified that unlike the plywood near the entrance of the attic which was nailed down, the plywood leading to the toward the HVAC unit at the north end of the attic was narrow and resting loosely on a roof vent. He testified that the plywood looked like it was placed there by whoever constructed the attic, and that it was so narrow that he could see portions of the building's drop ceiling six or eight feet below. Plaintiff testified that he took one step on the plywood sheet before it gave way beneath him, and that he could not tell from stepping on the plywood sheet whether it was nailed down or secured to the attic. Plaintiff testified that he was able to stop himself from falling to the floor of the bank by grabbing on to a pipe that was located between the attic floor and the drop ceiling. At a subsequent examination before trial held on August 3, 201 1, plaintiff testified that the plywood which gave way beneath him was just laying on the floor of the attic and was not screwed into the beam beneath it. He further testified that the plywood sheet gave way and rotated before falling to the drop ceiling, and that the beam beneath it lost its rigidity and twisted because there was nothing screwed to the bcam to give it any additional support. At his examination before trial, Dominick Lombardo testified that he was employed by Hamptons LI,C as the maintenance manager for the Hamptoiis Bay Shopping Center where the Hudson City Bank was located. He testified that his duties were limited to visiting the shopping center to ensure the lights in the parking lot were operating correctly, and to rent out any vacant shopping units. Mr. Lombardo testified that although he was aware of the renovations made during 2005, he was unaware of Hamptons 1,LC.s hiring anyone to participate in the conversion, and he believed that the renovation was carried out by Sandpebble. At his examination before trial, Ronald Butkovich testified that he was the senior vice president of the 1 ludson City Bank during 2005, and that his duties involved, among other things, the renovation and marketing of new branches in Eastern Long Island. Mr. Butkovich testified that he became involved in the renovation of the subject branch after the work had already begun, and that his role was to ensure the prqject was timely completed. He testified that his contact person during the renovation was Karl Knief, the executive vice president of GJC, and Steve Parker of Sandpebble, who was at the worksite on a daily [* 5] Smith \ Hudson Cit:y Savings Bank Index No. 08-27296 PageNo. 5 basis. Mr. Butkovich testified that he l- ad no involvement in directing the workers during the project or ensuring that they complied with specijications of the architectural plans for the building. Mr. Butkovich testified that he did not go into the b i d jing s attic, but he was aware that the HVAC system was to be housed there. I-le further testified that lie recognized an e-mail between himself and Mr. Knief, wherein they discussed Mr. Kneif s concerns ab ]ut a directive from the architect requiring GJC to install a couple pieces of plywood sheets for decking 1 n the attic would not provide sufficient safety for maintenance people working on the I-WAC system k oused there. Mr. Butkovich testified that in response, he advised Mr. Knief that the cost of his counter proposal for installing more plywood decking was too high, that he should do as directed, and that he shou d install 18 pieces of plywood sheets in the attic and keep a track of things. Mr. Butkovich testified that he did not recall having any conversations with Steve Parker regarding the adequacy of the attic flooring, and that he believed it was the general contractor s responsibility to ensure the attic floorir g was safe. He also testified that he did not recall anyone from I-lamptons LLC ever visiting, participal ing or supervising any of the work on the worksite. At his examination before trial, Karl Knief testified that GJC was hired to perform general construction services for the renovation project in 2005 and that, pursuant to its contract with Hudson City, GJC was responsible for implementing the architectural designs and construction documents. Mr. Kneif testified that Sandpebble was considered the general contractor for the project, and was obligated to supervise the work and conduct safety Inspections. He testified that GJC hired Searles Stromski Associates to prepare the architectural 3lans for the renovation, and that Hudson City s Vice President, Ronald Butkovich, assumed oversight of the architects prior to the commencement of the project. Mr. Kneif further testified that Mr. Butkovich was Hudson City s representative on the project, and that he was there to approve financing and ensure GJC and the team it hired were completing the project properly. He testified that GJC hired Godsell as the carpenters for the project, and that Godsell was responsible for the installation of insulation and plywood decking in the attic. He testified that the architectural plans only required an o p m area above a finished acoustic ceiling, and that the decision to install the plywood flooring near the HVAC unit in the attic followed conversations between himself and Mr. Butkovich regarding instructions by the architects to install a couple sheets of plywood in the attic. Mr. Kneif also identified correspondence he received from the architects through Steve Parker of Sandpebble advising him that the installation ofplywood sheets in the attic was acceptable, and that the plywood sheets should be screwed into the floor joists in the attic to prevent them from twisting and falling under load. He testikied that Godsell was hired to install the plywood, and that he did not know if they screwed the plywood into the joisi s, as it was Sandpebble s obligation to inspect the work and ensure safety. In addition, Mr. Kneif testified that GJC relied on Sandpebble and Godsell to ensure that the work was done properly. At his examination before trial, Steve Parker testified that he was Sandpebble s worksite supervisor for the renovation project at 18 Montauk Highway, that Sandpebble s role was limited to managing thc worksite activities, and t iat GJC was the general contractor for the entire project. Mr. Parker testified that he did not direct tl-e manner or methods of the subcontractor s work, and that he did not inspect or approve the finished work, because such inspection would be performed by the [* 6] Smith v Hudson City Savings Rank Indes No. 08-27296 Page No. 6 municipality, the architect or GJC. Me testified that he was at the worksite on a daily basis, that he never went into the attic, and that he did not recall any specific conversation with Mr. Kneif about the lack of tlooring in the attic. Mr. Parker testified that he knew Godsell was responsible for installing the plywood, but could not remember observing then1 doing that work. He further testified that he did not receive any complaints about the attic floor while he was at the worksite. At his examination before trial, Joseph Godsell testified that his company had been hired by GJC to conduct carpentry work for the renovation project, and that his work was overseen Steve Parker, who instructed him how install the plywood sheets in the attic of the building. Mr. Godsell testified that he did not recall if he instructed his employees that the plywood needed to be screwed into the ceiling beams, and that, even though he visually inspected the plywood sheets, he did not walk on them or ensure that they were screwed into the ceiling beams. Mr. Godsell testified that Mr. Parker was the project supervisor, and that Mr. Parker sometirnes inspected and supervised the means and methods of the work performed by Godsell s employees. He testified, however, that he had no recollection of whether Mr. Parker inspected the plywood after it had been installed in the attic. Mr. Godsell further testified that no one from Hamptons LLC supervised or inspected Godsell s installation of the plywood in the attic, and that he never received any compIaints about the condition of the plywood prior to hearing of the accident. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 119861; Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 I , 487 NYS2d 3 16 [ 19851). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Uni.Med. Ctr., stpra). In determining a motion for summary judgment, the court s function is not to resolve issues of fact or to determine matters of credibility but rather to determine whether issues of fact exist precluding summary judgment (see Rotlz v Barreto, 289 AD2d 557, 735 NYS2d 197 [2001]; O Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [ 19871). Furthermore, on a defendant s motion for summary judgment, opposed by plaintiff, a court is requircd to accept the plaintiffs pleadings as true and its decision must be made on the version of the facts most favorable to the plaintiff (see Henderson v New York, 178 AD2d 129, 124,576 N YS2d 562 [lst Dept 19911; Bulger v Tri-Town Agency, 148 AD2d 44. 543 NYS2d 217 [3d Dept 19891). Initially, thc Court notes that the untimely cross motions by Godsell and Sandpebble may be considered where, as here, they were made on grounds nearly identical to those asserted in timely motions and contain issues already before the court (see McCallister v 200 Park, L.P., 92 AD3d 927, 939 NYS2d 538 [2d Dept 20121; Wlzitelzead v Ct ofNew York, 79 AD3d 858, 913 NYS2d 697 [2d Dept 20101; iy CrrrrztIe v Peteroj), 39 AD3d 590, 592, 833 NYS2d 615 [2d Dept 20071). It is further noted that plaintiff s claims under sections 240( 1) and 241 (6) of the Labor Law are inactionable, as plaintiff concedes he was engaged in routine maintenance at the time of the accident, and that his injuries arose outside the context of any construction, demolition or excavation on the subject premises (see Esposito v N. K City Indus. Dev. Agency. 1 NY3d 526, 770 NYS2d 682 [2003]; Abbntiello v Lancaster Studio Assoc., 3 NY3d 46, [* 7] Smith v 1-Iudson City Savings Bank Index No. 08-27296 Page No. 7 53,781 NYS2d 477 120041; Gonzalez v Woodbourne Arboretum, Inc., 100 AD3d 694,954 NYS2d 113 I2d Dept 201 31). Therefore, the court grants the branches of defendants motion and cross motions seeking summary dismissal of such claims and any cross claims predicated thereon. In particular, the Court grants in its entirety the cross motion by GJC for summary judgment dismissing plaintiffs claims under Labor Law @240( 1) and 241(6j. However, plaintiffs remaining claims, predicated on common law negligence and a violation of section 200 of the Labor Law, are continued against defendants. Labor Law $ 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work (see Comes v New York Stnte Elec. & Gas Corp., 82 NY2d 876,609 NYS2d 168 [1993]; Haider v Davis, 35 AD3d 363,827 NYS2d 179 [ 2d Dept 20061). It applies to owners, contractors, or their agents (Russin v Louis N. Picciano & Son, 54 NY2d 3 1 1,445 NYS2d 127 [ 19811). Indeed, a lessee of real property that hires a contractor and has the right to control the work performed at the property is considered to be an owner for the purposes of the Labor Law (see Ferluckaj v Goldman Saclzs & Co., 12 NY3d 3 16, 880 NYS2d 879 [2009]; Gucfu v 900 Eiglztlz Ave. Condominium, LLC, 81 AD3d 592, 916 NYS2d 147 [2d Dept 201 11). Where a plaintiff s injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a landowner may be liable under Labor Law § 200 if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition (Rojas v Schwartz, 74 AD3d 1046, 1047,903 NYS2d 484 [2d Dept 20101; see Kuffour v Wlzitestone Constr. Corp., 94 AD3d 706, 941 NYS2d 653 [2d Dept 20121; Schick v 200 Blydenburglz, LLC, 88 AD3d 684,930 NYS2d 604 [2d Dept 201 11; Ortegn v Puccia, 57 AD3d 54,61, 866 NYS2d 323 [2d Dept 20081; Clzowdhury v Rodriguez, 57 AD3d 121, 128,867 NYS2d 123 [2d Dept 20081). Furthermore, under the principles of common-law negligence, a subcontractor may be held liable for negligence where there is an issue of fact as to whether its work created the condition that caused the plaintiff s injury (see Ryder v Mount Loretto Nursing Home, 290 AD2d 892, 893, 736 NYS2d 792 [3d Dept 20021; Stevenson v A l f e d o , 277 AD2d 2 18,221, 7 15 NYS2d 444 [2d Dept 20001j. 1 Iere, EIamproiis LLC established its prima facie entitlement to summary judgment dismissing plaintiff s common law and Labor Law 9200 claims against it by demonstrating that it was the out-ofpossession owner of the premises at the time of the accident, and that it neither created nor had actual or constructive notice of the alleged dangerous condition (see Giovnnniello v E. W. Howell, Co., LLC, 104 AD3d 812, 961 NYS2d 513 [2d Dept 20121; Sanders vSt. VincentHosp., 95 AD3d 1195,945 NYS2d 343 [2d Dept 20121; Rodriguez v BCRE 230 Riverdale, LLC, 91 AD3d 933,938 NYS2d 146 [2d Dept o 20121; .see d ~ Jirc/tniewicz v Merex Food Corp., 46 AD3d 623, 848 NYS2d 255 [2d Dept 20071). Significantly, it is undisputed that Hamptons LLC leased the premises to Hudson City, that it played no role in the renovation of the building, including the installation of the plywood flooring in the attic, and that none of its employees received any complaints regarding the existence of any defective condition in the building s attic prior to the date of the accident. As no triable issues were raised by plaintiff or codefendants regarding Hamptons LLC s liability, the branch of the motion by Hamptons LLC for summary judgment dismissing the complaint against it is granted. Further, having determined that Hamptons LLC was not actively at fault and in no way augmented plaintiffs injuries, the branch of its motion seeking [* 8] Smith v Hudson Citj?Savings Bank Index No. 08-27296 Page No. 8 summary .judgment dismissing the cross claims against it for contribution or common law indemnification is granted (see McCartlzy v Turner Constr., Inc., 17 NY3d 369, 929 NYS2d 556 [2011]; Guznian v Haven Plaza HOW. Dev. Fund Co., 69 NY2d 559, 5 16 NYS2d 45 1 [ 19871; DiMarco v New York City Health & Hosps. Corp., 187 AD2d 479,480, 589 NYS2d 580 [2d Dept 19921). Iiomever, the branch of Hudson City s cross motion for summary judgment dismissing plaintiffs common law and Labor Law 5200 claims against it is denied, as it failed to meet its prima facie burden on the motion by eliminating significant triable issues from the case (see Alvarez v Prospect Hosp., ,sz1pr~; Winegrad v New York Univ. Med. Ctr., supra). Significantly, when viewed in a light most favorable to plaintiff; the adduced evidence raises a significant triable issue as to whether, as the lessee of the premises, Hudson City was negligent in creating the unsafe condition by approving the installation of a narrow plywood catwalk in the attic despite receiving notice that it may pose a danger for maintenance worlters who needed to gain access to the HVAC unit (see Baillargeon v Kings County Waterproofing Corp., 60 AD3d 881, 875 NYS2d 576 [2d Dept 20091; DiSalvo v YoungMen s Christian Assn. ofN.Y., 51 AD3d 71 1,858 NYS2d 310 [2d Dept 20081; HatfieldvBridgedale, LLC, 28 AD3d 608,814 NYS2d 659 [2d Dept 20061; Fernez v Kellogg, 2 AD3d 397, 767 NYS2d 864 [2d Dept 20031). Additionally, the existence of a triable issue as to whether Hudson City s created the defective condition, requires denial of the branches of its cross motion for summary judgment on its third-party claims, and for dismissal of the cross claims against it (see McAllister v Construction Consultants L.I. Inc., 83 AD3d 1013, 921 NYS2d 556 [2d Dept 201 11; Martinez v City ofNew York, 73 AD3d 993,901 NYS2d 339 [2d Dept 20101). The branch of Sandpebble s cross motion for summary judgment dismissing plaintiffs common law and Labor Law 5200 claims against it likewise is denied, as Sandpebble failed to meet its prima facie burden on the motion. Notably, the adduced evidence, including testimony by Karl Knief, Steve Parker and Joseph Godsell regarding whether Sandpebble was the general contractor for the project, whether it exercised control of the means and methods of Godsell s work, and whether the project supervisor failed to inspect Godsell s work despite his awareness of the insufficiency of the plywood flooring, raises significanttriable issues requiring denial of the motion (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343. 670 NYS2d 8 16 [ 19981; Tomyuk v JunefieldAssoc., 57 AD3d 5 18, 868 NYS2d 73 1 [2d Dept 2008 1; Pino v Irvingtotz Union Free Sch. Dist., 43 AD3d 1130, 843 NYS2d 133 [2d Dept 20071; Aranda v Park E. Constr., 4 AD3d 3 15, 772 NYS2d 70 [2d Dept 20041). In light of the existence of triable issues as to whether Sandpebble may be held liable for plaintiffs injuries, the branch of its cross motion for summary judgment on its cross claims for contribution or common law indemnification is denied, as premature (see Nasuro v PIAssoc., LLC. 49 AD3d 829, 858 NYS2d 175 [2008]; Martinez v City of New Yurk, supra; Coque v Wildflower Estates Devs., Inc., 3 1 AD3d 484,489, 8 18 NYS2d 546 12d Dept 20061). 1:iiially. the branch of the cross motion by Godsell for summary judgment dismissing plaintiffs 1,abor Law $200 claim and the cross claims against it is denied, as testimony by the plaintiff and Joseph Godsell raise triable issues as to whether the plywood sheet at issue was screwed into the floor joist, whether Godsell s employees were responsible for failing to secure it, and, if so, whether such failure [* 9] Smith v H~idson City Savings Bank Index No. 08-27296 Page 9 caused plaintiff's accident (see Frisbee v 256 R.R. Ave. Coup., 85 AD3d 1258, 923 NYS2d 640 [3d Dept 201 11; Kelarakos v Massapequa Water Dist., 38 AD3d 717, 832 NYS2d 625 [2d Dept 20071; Ryder v Mount Loretto Nursing Home Inc., supra; Stevenson v Alfredo, supra). Moreover, Godsell's assertion that the accident may be attributed to some unidentified intervening or superseding cause is insufficient to satisfy its burden on the motion, as it cannot obtain summary judgment by pointing to gaps in plaintiffs proof. Rather, to meet its burden, Godsell must adduce affirmative evidence that it did not create the alleged defective condition (see Ericksun v Cross Ready Mix, Inc., 75 AD3d 519, 906 NYS2d 284 91 [2d Dept 20101; Vittorio v U-Haul Cu., 52 AD3d 823, 861 NYS2d 726 [2d Dept 20081; Mennerich v Esposito, 4 AD3d 399, 772 NYS2d 91[2d Dept 20041).

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