Marquez v L & M Dev. Partners, Inc.

[*1] Marquez v L & M Dev. Partners, Inc. 2014 NY Slip Op 50724(U) Decided on May 1, 2014 Supreme Court, Westchester County Connolly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2014
Supreme Court, Westchester County

Victor Marquez, Plaintiff,

against

L & M Development Partners, Inc., 11 BROADWAY OWNER, LLC, 11 BROADWAY HIP LIB HOUSING DEVELOP, CONGRESS BUILDERS, PRO SAFETY SERVICES, LLC, 11 BROADWAY AFFORDABLE RESIDENTIAL, LLC and 11 BROADWAY RESIDENTIAL, LLC, Defendants.



11 Broadway Owner, LLC, 11 BROADWAY HIP LIB HOUSING DEVELOP and CONGRESS BUILDERS, Third-Party Plaintiffs,

against

Pro Safety Services, LLC, Third-Party Defendant.



Pro Safety Services, LLC, Second Third-Party Plaintiff,

against

11 Broadway Affordable Residential, LLC and 11 BROADWAY RESIDENTIAL, LLC, Second Third-Party Defendants.



615/2012



Stanton, Guzman & Miller, LLP

Attorneys for Plaintiff

820 Hempstead Turnpike, 2nd Floor

Franklin Square, NY 11010

Rafferty & Redlisky

Attorneys for Defendant Pro Safety Services, LLC

800 Westchester Avenue, Suite S-608

Rye Brook, NY 10573

Lewis Johs Avallone Aviles, LLP

Attorneys for Defendants 11 Broadway

One CA Plaza, Suite 225

Islandia, NY 11749

Francesca E. Connolly, J.

The defendant/third-party defendant/second third-party plaintiff Pro Safety Services, LLC (hereinafter PSS), moves (1) for summary judgment dismissing the complaint, third-party complaint, and all cross claims asserted against it, and (2) granting it summary judgment on its cross claims and [*2]the second cause action in its second third-party complaint asserted against defendants/second third-party defendants 11 Broadway Affordable Residential, LLC, and 11 Broadway Residential, LLC, for failing to use commercially reasonable efforts to cause Congress Builders and its subcontractors to name PSS as an additional insured on their liability insurance policies. The motion is opposed by the plaintiff and the defendants/third-party plaintiffs/second third-party defendants 11 Broadway Owner, LLC (hereinafter 11 Broadway Owner), 11 Broadway HIP LIB Housing Develop (hereinafter 11 Broadway Housing), Congress Builders LLC s/h/a Congress Builders (hereinafter Congress Builders), 11 Broadway Affordable Residential, LLC (hereinafter 11 Broadway Affordable), and 11 Broadway Residential LLC (hereinafter 11 Broadway Residential). The defendant L & M Development Partners, Inc. (hereinafter L & M) has not opposed the motion.

This action was commenced by the plaintiff for personal injuries he allegedly sustained on June 10, 2011 while working as a laborer for non-party, Advanced Maintenance Corp., at a construction site owned, developed, and/or managed by L & M, 11 Broadway Owner, 11 Broadway Housing, 11 Broadway Affordable, and 11 Broadway Residential, located at 11 Broadway, Brooklyn, New York, when he fell one-story to the basement level below after he stepped on a plywood covering that covered an opening in the floor. Congress Builders served as the general contractor for the project and PSS served as the site safety consultant.

In his complaint, the plaintiff alleges causes of action based upon negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6) predicated on a violation of 12 NYCRR 23-6.1 (d). In the bill of particulars served on PSS, the plaintiff also asserts violations of Labor Law §§ 241 (3) and (5), and indicated that his cause of action pursuant to Labor Law § 241 (6) was predicated on a violation of 12 NYCRR 23-1.7 (b) (1) (i).

For the reasons stated below, the branches of PSS's motion which are for summary judgment dismissing the causes of action based upon Labor Law §§ 241 (3) and (5) and for summary judgment dismissing the cross claims and third-party claims premised upon breach of contract for failure to procure insurance are granted. The branches of PSS's motion which are for summary judgment dismissing the causes of action for common law negligence and pursuant to Labor Law §§ 200, 240 (1) and 241 (6) predicated upon a violation of 12 NYCRR 23-1.7 (b) (1) (i) are denied. The branches of PSS's motion which are for summary judgment dismissing the cross claims asserted against it for contribution, and common law and contractual indemnification are denied, as are the branches of PSS's motion which are for summary judgment on its cross claim and the second cause of action in its second third-party complaint against 11 Broadway Affordable and 11 Broadway Residential for failing to use commercially reasonable efforts to cause Congress Builders and its subcontractors to name PSS as an additional insured on their liability insurance policies.

FACTUAL BACKGROUND/PROCEDURAL HISTORY

I. FACTUAL BACKGROUND

A. The Consultant Agreement [*3]

PSS entered into a Consultant Agreement with 11 Broadway Affordable and 11 Broadway Residential, as the owner, dated January 1, 2011, for PSS to provide safety consulting services at various projects, including 11 Broadway. The agreement provides in relevant part as follows: 6.NO DELEGATION OF DUTY. PSS's loss control services are advisory only. It is agreed that consultation, including any inspection or representational activity by PSS does not constitute any delegation to PSS or assumption by PSS of the direct and primary duty of OWNER or any corporation or agency associations affiliated with OWNER to be in compliance with any regulatory agency, law and/or regulation. Furthermore, PSS assumes no responsibility for management or control of the safety practices of OWNER or its contractors nor for the implementation of proposed recommendations.Neither the making of consultations or reports constitutes any determination or warranty by PSS that the workplace, operations, work environment, processes, machinery, equipment, or work tasks are safe or healthful or in compliance with any regulatory requirements. Lastly, OWNER acknowledges that PSS has no control or supervision over the means or methods utilized by OWNER or any subcontractors, any general contractor, any construction manager or owner at the work site to maintain a safe work site or to correct any safety hazards.Notwithstanding the foregoing, PSS is being retained for its knowledge and expertise in the loss control/safety field and OWNER is entitled to rely on PSS for such knowledge and services.7.THIRD-PARTY BENEFICIARIES. It is expressly understood that in providing these services, PSS is acting solely for the benefit of OWNER. While any affiliated companies, associations, representatives, agents, and/or subcontractors of OWNER may indirectly benefit from PSS's assistance, those benefits are merely incidental to the objectives of this Agreement. Consequently, it is expressly understood that none of those affiliated parties (or their employees, agents or subcontractors) shall be considered a third-party beneficiary of the services performed by PSS for OWNER pursuant to this Agreement.Notwithstanding the foregoing, PSS acknowledges that: (A) the General Contractor for the Project, [Congress Builders] shall be deemed to be a third-party beneficiary of the services performed by PSS and PSS' other obligations pursuant to this Agreement.8.HOLD HARMLESS/INDEMNIFICATION/INSURANCE. To the fullest extent permitted by law, . . . OWNER shall hold PSS . . . Harmless from and [*4]against, as well as defend and indemnify PSS for, any and all claims, disputes, suits, losses, liabilities, and/or costs (including, but not limited to, reasonable attorneys' fees and expenses) that result in any damages to any person or property that occur at the Project to the extent arising from OWNERS' or BUILDERS' negligent disregard of PSS' proper safety recommendations contained in written survey reports or safety logs/checklists or communicated in writing to BUILDERS' field and office personnel, provided, however, that nothing contained herein shall limit PSS's obligation to identify safety hazards at the Project as per the mutually agreed audit schedule and to notify BUILDERS of any safety hazards of which PSS becomes aware during its audits. OWNER shall use commercially reasonable efforts . . . to cause BUILDERS and their subcontractors to name PSS as an additional insured on such parties' liability insurance policies. . . . PSS shall indemnify, defend and hold harmless to the fullest extent permitted by law, OWNER, BUILDERS, the indemnified parties listed on Exhibit C, . . . from and against any and all liabilities, including without limitation, any economic loss suffered by any Indemnified parties, obligations, losses, claims, causes of action, suits, proceedings, judgments, damages, penalties, costs and expenses, . . . arising from any negligent act or omission, of or by PSS.18.RELATIONSHIP OF THE PARTIES. The relationship of PSS to OWNER is that of an independent contractor. Nothing contained in this Agreement is intended to create, or does create, a partnership, joint venture or agency relationship between the parties.

Under Exhibit B, Scope of Work, PSS was obligated to provide a qualified safety professional familiar with the work under the contract and experienced with and knowledgeable of all health and safety requirements. Among their job duties, PSS was required to hold new worker safety meetings and maintain records of the safety orientations, perform site safety inspections, monitor compliance with the safety requirements of the NYC Building Codes, assist with coordination of the work for compliance with the Project Safety Program, "[r]ecommend necessary action to correct substandard safety conditions," and "[r]equest compliance with Federal occupational safety & health standards and all state and local laws."

B. Deposition Testimony of Mentor Haxhija and Ate Koukoakpo (a/k/a "Abdul") on behalfof L & M and Congress Builders, Berkeys Andujar on behalf of PSS, the plaintiff VictorMarquez, and non-party witness Johnny McNeil

The 11 Broadway project consisted of the construction of a 14-story residential building, which began in February of 2011 (see deposition testimony of Mentor Haxhija [L & M and Congress Builders at 35). Congress Builders was the general contractor for the project and it was responsible for correcting safety hazards brought to their attention and delegating the appropriate contractor to correct the condition (id. at 14, 35-36). [*5]

PSS was the full-time site safety manager at the jobsite (id. at 57). Berkys Andujar was the PSS employee assigned to 11 Broadway (id. at 36). She conducted the safety orientations for all new workers at the site where she explained the applicable safety rules and regulations. She also conducted the toolbox talks for Congress Builders on a weekly basis to review safety issues (id. at 55-56; see deposition of Berkys Andujar at 17-20). As part of her safety orientation and discussions, Andujar advised all workers that they were prohibited from walking over any plywood and to assume that the plywood was covering an opening in the floor (Andujar at 19). Andujar gave the plaintiff his safety orientation and specifically recalled advising the plaintiff in Spanish not to walk on the plywood (id. at 19-20, 39). Also, according to Andujar, it is common knowledge among construction workers not to walk on plywood (id. at 19).

As part of her job duties for PSS, Andujar would walk the jobsite on a daily basis to perform safety inspections (id. at 30-31; Haxhija at 78-79, 97-98). If she saw a safety violation, she would bring it to the attention of Congress Builders and it would correct the condition. According to Andujar, she would not tell Congress Builders or any subcontractor how to do their job or how to correct any safety violation (Andujar at 15-18). If PSS observed an imminent danger, it had the authority to stop the work (Haxhija at 97-98). However, PSS was not responsible for the means and methods of the subcontractors' work, nor did PSS supervise, direct, or control the subcontractors' work (id. at 105).

The plaintiff was employed as a laborer for Advanced Maintenance, a subcontractor of Congress Builders (id. at 59-61; deposition of the plaintiff Victor Marquez at 20, 22-23, 26). The plaintiff worked under the direct supervision of Congress Builders (Haxhija at 35, 59-61; plaintiff at 26-27). Ate Koukoakpo (a/k/a "Abdul") was employed as a labor foreman for L & M/Congress Builders at 11 Broadway on the date of the accident (see deposition of Ate Koukoakpo a/k/a "Abdul" [L & M and Congress Builders] at 9, 11-12). The plaintiff worked under the direct supervision of Abdul every day (id. at 11; plaintiff at 26-27). The plaintiff was responsible for creating wooden barricades, covering holes with cement, sweeping the floors, and clearing debris from the jobsite (plaintiff at 23, 27).

The plaintiff admitted that he received safety instructions from Andujar, the site safety supervisor, and that he attended a ten-hour OSHA safety course where he was instructed not to walk over covered holes, and to avoid areas that were demarcated with safety tape or warnings (id. at 20-22, 27-29, 100). However, the plaintiff denied being told not to walk on plywood (id. at 27-28, 36).

On the date of the accident, which was Friday, June 10, 2011, the building was constructed up to the second floor (Haxhija at 48). The concrete had been poured in the basement with the exception of the garage ramp (id.). The garage ramp was constructed of metal deck with steel rebar in anticipation of the concrete pour scheduled for the following Monday (id.). Safety cables were placed on the ramp to delineate the first floor from the ramp to prevent workers from walking on the ramp (id. at 49, 55, 82-83, 85-86).

The floor of the ramp had one opening to allow for future exhaust to escape from the [*6]basement to the first floor level (id. at 51; Andujar at 22). Andujar told Congress Builders that the opening needed to be covered (Andujar at 22). Congress Builders sent the plaintiff and Abdul to cover the opening (id. at 22-23). Congress Builders was responsible for covering the opening before the concrete pour (Haxhija at 53). Abdul and the plaintiff covered the opening with plywood that was a larger size than the opening, and reinforced with two by fours (id. at 70-71, 83-84, 91, 103, 106; Koukoakpo at 22-23, 30). The hole was about four feet by four feet in dimension and they used plywood that overlapped the hole by one foot on all four sides to cover it, as well as two by fours for reinforcement (Koukoakpo at 23, 30; Andujar at 23-24). As a warning, Abdul painted the plywood blue and wrote the words "Danger-Stop" on the covering with a picture of a skull and cross bones (Koukoakpo at 27-28, 30; Andujar at 23). The plaintiff was with Abdul when he painted the words on the covering (Koukoakpo at 39). The plywood was painted to notify workers that it covered an opening and to warn workers not to walk over it (Haxhija at 91, 101). While the covering was built to be strong enough to prevent it from breaking, it was not intended to be walked on (id. at 101). All workers were specifically instructed at the safety orientation meeting and during toolbox talks not to walk on the plywood (id.; Koukoakpo at 44).

The plaintiff denied working with Abdul in creating the plywood cover to place over the opening in the ramp (plaintiff at 36). He also denied ever seeing the opening on the ramp or knowing that it existed under the plywood covering (id. at 36, 101). The plaintiff also denied that the plywood covering was painted blue or that it had any warnings on it (id. at 45-46). However, the plaintiff remarked that if he had seen the plywood covering as shown in the photographs (painted blue with written warnings on it), he would not have stepped on it (id. at 45-46, 100).

After the opening was covered, Andujar, on behalf of PSS, inspected the covering and found that it was "pretty sturdy" with "no wiggle room" (Haxhija at 24, 26; Andujar at 23-24). PSS never instructed Congress Builders or the plaintiff as to how to cover the hole (Andujar at 42, 44). According to Andujar, applicable safety rules and regulations required that the plywood covering be secured. However, Andujar stated that this was not possible because there was no place to support the plywood due to the condition of the floor in anticipation of the concrete pour (id. at 25-26). Instead, the plaintiff and Abdul used two by fours to prevent the plywood from moving, along with larger pieces of plywood to overlap the hole opening (id. at 47).

The covering was in place for about two to three weeks before the date of the accident (id. at page 22). At the time the opening was covered, no rebar was installed on the ramp (id. at 35-36) The rebar installation on the ramp was completed on the day before the accident (id. at 36). Once the rebar was completed, the area was 100% clean and became a tripping hazard for anyone to walk on (id. at 36-37). Safety cables and caution tape were placed along the ramp to warn workers not to walk in the area (id. at 27-28, 33, 47-48; Haxhija at 81-83). However, there were no cables from the basement level at the ramp leading to the first floor level (id. at 99-100). Although Haxhija recalled seeing caution tape at the top of the ramp on the first floor level, he could not recall seeing the caution tape at the bottom of the ramp (id.).

On the date of the accident, which was a Friday, there was no work being done on the ramp [*7](id. at 81-83; Andujar at 28). There was no reason for the plaintiff to walk on the ramp, as no work was being done in this area (Andujar at 28). If the plaintiff needed to get to the basement, access was available by stairs on the other side of the building (id. at 33; Koukoakpo at 41-42, 47).

On the date of the accident, Abdul was working with the plaintiff in the basement (Koukoakpo at 35). Abdul told the plaintiff to continue his work in the basement and then Abdul left the area to go pray (id. at 36). Abdul was gone for about ten to fifteen minutes when he heard a scream (id. at 35, 37 ). When he returned to the area, he saw the plaintiff and the plywood covering on the basement floor (id. at 29). Abdul was surprised to see that the plywood fell through the hole, considering the way it was constructed to overlap the hole (id.). The plywood did not break and was intact, and appeared to be in the same condition as when it was placed to cover the opening (id.). Abdul did not know why the plaintiff had walked on the ramp rather than take the stairs (id. at 41-42, 47). According to Abdul, the ramp was a tripping hazard and the workers were not permitted to walk on it (id. at 41-42). The workers were also told at the toolbox talks not to walk on the plywood (id. at 44).

Andujar was notified of the accident immediately after it happened (Andujar at 39). She went to the area and observed the plaintiff on the basement floor with the plywood covering nearby (id. at 40-41).

According to the plaintiff, on the date of the accident, he was working in the basement for about an hour when he decided to walk the site to look for garbage to clear (plaintiff at 33-34). There was no work being done on the ramp that day (id. at 37). The ramp floor was covered with metal rebar in anticipation of the cement pour, but there were no yellow lines in place to indicate to the plaintiff not to walk in the area (id. at 42-43). The plaintiff's job duties included clearing work areas of garbage and debris after the work was finished, but he was not allowed to cross lines marked in yellow (id. at 42). The plaintiff stepped on the plywood on the ramp and fell ten to twelve feet to the basement below (id. at 48). He stepped on the plywood because it did not appear to be covering an opening (id. at 101).

Non-party witness Johnny McNeil was working as a laborer for RNC Industrial at 11 Broadway on the date of the accident (McNeil at 6-7, 9). According to McNeil, the plaintiff's accident happened on a Friday at the end of the day (id. at 13). McNeil was working in the basement when he heard a noise and, suddenly, the plaintiff came falling through an opening above and landed on the basement floor with the blue plywood covering on top of him (id. at 14-15). McNeil removed the plywood from the plaintiff's body and called an ambulance (id.). The cover weighed about three to four pounds (id. at 16-17). He recalled that the plywood cover was painted blue, but he did not recall seeing any writing on it (id. at 15-16, 18-19).

McNeil did not walk on the ramp after the rebar was installed because it was a tripping hazard (id. at 19-20, 22). However, before the date of the accident, he had walked on the plywood covering and saw others walking on it and he knew it to be secure (id. at 25-26, 28-29). [*8]

II. PROCEDURAL HISTORY

A. PSS's motion for summary judgment

PSS moves for summary judgment dismissing the complaint, third-party complaint, and all cross claims asserted against it and granting it summary judgment on its third-party claims and cross claims as against defendants/second third-party defendants 11 Broadway Affordable and 11 Broadway Residential for failing to use commercially reasonable efforts to cause Congress Builders' subcontractors to name PSS as an additional insured on their liability insurance policies.

PSS contends that the consultant agreement is only between PSS and 11 Broadway Affordable and 11 Broadway Residential, and therefore, the claims made by 11 Broadway Owner and 11 Broadway Housing should be dismissed based upon lack of privity. PSS further contends that under the consultant agreement, PSS was not delegated the authority to oversee and control the activities of the plaintiff, nor was it delegated the duty and obligation to remedy unsafe conditions. Since PSS had no authority to supervise, direct, or control the work that caused the plaintiff's injury, it argues that the contractual indemnification agreement in favor of Congress Builders is unenforceable pursuant to General Obligations Law § 5-322. With regard to the claims for common law indemnification and contribution, PSS contends that 11 Broadway Affordable and 11 Broadway Residential have failed to establish that PSS was guilty of some negligence that contributed to the plaintiff's accident, and therefore, the claims for common law indemnification must fail.

With regard to the cross claims and third-party claims against PSS for breach of contract for failure to procure insurance, PSS contends that it complied with the contract by naming the owners, Congress Builders, and required subcontractors as additional insureds on PSS's liability insurance policy and therefore, the claim should be dismissed.

With regard to its cross claims and third-party claims, PSS contends that 11 Broadway Affordable and 11 Broadway Residential breached their contract by failing to use commercially reasonable efforts to cause Congress Builders' subcontractors to name PSS as an additional insured on their policies of insurance. Accordingly, PSS claims its measure of damages should be its out-of-pocket expenses incurred, including its deductible, which amounts to $20,448.26 to date.

PSS contends that it is entitled to summary judgment dismissing the plaintiff's complaint, in that it owed no duty of care to the plaintiff to give rise to liability for negligence. Furthermore, since PSS had no authority to supervise, direct, or control the plaintiff's work and had no authority to control the activity bringing about the injury to enable PSS to avoid or correct an unsafe condition, it cannot be held liable under Labor Law § 200. Since PSS cannot be deemed an agent of the owner, it argues that Labor Law §§ 240 and 241 also do not apply to PSS.

In the alternative, PSS argues that Labor Law § 240 (3), which relates to construction of scaffolding, does not apply to the facts of this case. Similarly, PSS argues that Labor Law § 241 (3), which applies to the requirement for floor planking where double floors are not to be used, and [*9]241 (5), which applies to requirements for shafts or openings where elevators, elevating machines or hod-hoisting apparatus are used to lift materials, do not apply to the facts of this case. With regard to the Labor Law § 241 (6) violation, predicated on a violation of 12 NYCRR 23-1.7 (b) (1) (i), PSS contends that the plywood cover created by the plaintiff and Congress Builders was not only in place, but that it was "a substantial cover fastened in place" and cordoned off by safety cables, in compliance with the Industrial Code. Finally, PSS argues that the plaintiff's Labor Law § 240 (1) claim should be dismissed because the plaintiff's own conduct was the sole proximate cause of the accident as a matter of law.

B. Plaintiff's opposition to PSS's motion for summary judgment

In opposition, the plaintiff contends that an issue of fact exists as to whether PSS acted as an agent of Congress Builders on the jobsite to subject it to liability under the Labor Law. Citing to the testimony of Berkeys Andujar on behalf of PSS, the plaintiff contends that Andujar admitted that she discovered a dangerous opening on the floor that required protection, that she directed Congress Builders to cover the opening, and that she inspected the plywood cover made by the plaintiff and Congress Builders and, despite her knowledge that the cover was not fastened, she deemed it to be acceptable and secure. This was the very cover that failed, exposing a dangerous opening through which the plaintiff fell. Also relying on the testimony of non-party witness Johnny McNeil, that the plywood cover was "not heavy" and weighed about three to four pounds, the plaintiff contends that the plywood cover "was light, and hardly sturdy or secure." Based upon these facts, the plaintiff contends that a question of fact exists as to whether PSS exercised sufficient supervision and contol over the activity that resulted in the plaintiff's injuries.

The plaintiff further contends that the opening through which the plaintiff fell was in violation of 12 NYCRR 23-1.7 (b) (1) (i), which requires that "[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule)." The plaintiff maintains that the plywood covering was not fastened by a substantial cover within the meaning of the Industrial Code, nor was a safety railing installed around the opening, and therefore, the Code was violated and the violation was a proximate cause of the plaintiff's injuries. At the very least, whether there was a violation of this Code provision presents a question of fact.

Finally, the plaintiff disputes that he was solely responsible for causing his own accident and that he was injured as a result of being recalcitrant. The plaintiff cites his own testimony, which contradicts the testimony of the various witnesses who testified on behalf of the defendants, wherein the plaintiff denies receiving any warnings about walking on plywood at the jobsite, denies assisting in the construction of the plywood covering for the opening, denies any knowledge that an opening existed under the plywood, denies that the plywood covering was painted blue and had written warnings on it, and denies that there were cables and caution tape in place to warn him not to walk on the ramp. The plaintiff also cites the testimony of non-party witness Johnny McNeil, who also denied receiving warnings about walking on plywood at the jobsite, and had no recollection of any written warnings painted on the plywood cover.

[*10]C. Opposition of 11 Broadway Owner, 11 Broadway Housing, 11 Broadway Affordable,11 Broadway Residential, and Congress Builders to PSS's motion for summary judgment

The defendants, 11 Broadway Owner, 11 Broadway Housing, 11 Broadway Affordable, 11 Broadway Residential, and Congress Builders oppose the motion, contending that the plaintiff was the sole proximate cause of the accident, but should it be determined otherwise, then there are questions of fact as to whether PSS was negligent in improperly determining that the plywood covering over the opening was safe, proper, and in compliance with code, whether PSS conducted an appropriate inspection of the jobsite on the date of the accident, and whether PSS gave appropriate safety instructions to the plaintiff. In addition, 11 Broadway Owner, 11 Broadway Housing, 11 Broadway Affordable, 11 Broadway Residential, and Congress Builders contend that PSS has failed to establish that it was free from negligence in the happening of the accident to escape potential liability on the third-party claims and cross claims of 11 Broadway Owner, 11 Broadway Housing, 11 Broadway Affordable, 11 Broadway Residential, and Congress Builders for contribution and contractual and common law indemnification, and therefore, PSS's motion for summary judgment should be denied.

In addition, with regard to PSS's motion for summary against 11 Broadway Affordable and 11 Broadway Residential for failing to use commercially reasonable efforts to cause Congress Builders' subcontractors to name PSS as an additional insured on their liability insurance policies, 11 Broadway Affordable, 11 Broadway Residential, and Congress Builders maintain that PSS has failed to meet its burden of proof for summary judgment. PSS has failed to establish that the subcontractors were required to name PSS as an additional insured, and even if they did, whether PSS would have been entitled to coverage. 11 Broadway Affordable, 11 Broadway Residential, and Congress Builders also maintain that they procured coverage for PSS as an additional insured on their policy of insurance with Mt. Hawley Insurance Company, but that PSS failed to properly tender its defense and indemnification to Congress Builders and its insurance carrier to obtain such coverage. Furthermore, PSS has failed to provide any substantiation for its out-of-pocket expenses for costs incurred with its defense of this lawsuit.

D. PSS's reply to the opposition of plaintiff and 11 Broadway Owner, 11 BroadwayHousing, 11 Broadway Affordable, 11 Broadway Residential, and Congress Builders

In reply, PSS argues that the overwhelming admissible evidence demonstrates that PSS did not have the authority to supervise, direct, or control the plaintiff's work to impose liability against it for negligence or under the Labor Law. Moreover, even though PSS inspected the plywood covering, neither the owners nor Congress Builders ever delegated to PSS the authority to ensure compliance with the New York State Industrial Code. PSS further contends that the cross claims and third-party claims asserted by 11 Broadway Owner and 11 Broadway Housing should be dismissed since they are based upon the Consultant Agreement, to which they are not parties, nor third-party beneficiaries. Since 11 Broadway and Congress Builders do not dispute that PSS complied with its contractual obligation to procure additional insured coverage for the required entities, PSS argues that this cause of action should be dismissed.

[*11]DISCUSSION/ANALYSIS

I. LABOR LAW §§ 240 (1) AND 241 (6)

PSS has failed to meet its prima facie burden for summary judgment dismissing the plaintiff's Labor Law §§ 240 (1) and 241 (6) causes of action insofar as asserted against it (see Zuckerman v New York, 49 NY2d 557, 562 [1980]).

A. PSS failed to establish that it was not a statutory agent of the owner

Labor Law §§ 240 (1) and 241 (6) impose nondelegable duties upon owners, contractors, and their agents to furnish safety devices and adequate protection to workers engaged in certain types of work (see Ortega v Liberty Holdings, LLC, 111 AD3d 904, 906 [2d Dept 2013]). "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" (Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]; see Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005] ["one may be vicariously liable as an agent of the property owner for injuries sustained under the statute in an instance where the manager had the ability to control the activity which brought about the injury"]; Delahaye v Saint Anns School, 40 AD3d 679, 683 [2d Dept 2007]).

In determining whether a defendant is a statutory agent under the Labor Law, the defendant's contractual title is not dispositive; rather, the inquiry focuses on whether the defendant "had the ability to control the activity which brought about the injury" (Walls v Turner Constr. Co., 4 NY3d at 864). Accordingly, courts have held that entities with the title of site safety consultant or construction manager—entities not typically considered to be contractors or agents under the Labor Law—may nevertheless be held liable where they had the authority to control the activity bringing about the plaintiff's injury (see Leszczynski v Town of Neversink, 107 AD3d 1183, 1185 [3d Dept 2013] ["Although a safety consultant generally is not liable to an injured worker under the Labor Law . . . it is not the title that is dispositive, but whether such defendant had sufficient supervision and control over the activity that resulted in the injury"]; see also Campoverde v Sound Hous., LLC, __ AD3d __, 2014 NY Slip Op 2736 at 2-3 [April 23, 2014] [issue of fact as to whether defendant construction manager "was delegated the authority and duties of a general contractor, and whether it exercised supervisory control and authority over the work being done"]; Barrios v Skanska USA Building, Inc., 75 AD3d 517 [2d Dept 2010] [finding that defendant construction manager was a statutory agent as a matter of law]; cf. Barreto v Metropolitan Transp. Auth., 110 AD3d 630, 632 [1st Dept 2013] ["IMS, the site safety consultant, cannot be liable for the accident under plaintiff's theories because it was a subcontractor with no supervisory authority over plaintiff or his work"]).

Here, the proof submitted by PSS in support of its motion, viewed in the light most favorable to the non-moving parties, establishes that PSS, as site safety consultant, exercised supervision and control over the very activity that resulted in the plaintiff's injury, with the authority to make recommendations to the general contractor to correct the unsafe condition. According to paragraph [*12]6 of the Consultant Agreement, "PSS [was] being retained for its knowledge and expertise in the loss control/safety field and OWNER [was] entitled to rely on PSS for such knowledge and services." Under Exhibit B, Scope of Work, PSS was obligated to provide a qualified safety professional familiar with the work under the contract and experienced with and knowledgeable of all health and safety requirements. Among their job duties, PSS was required to hold new worker safety meetings and maintain records of the safety orientations, perform site safety inspections, monitor compliance with the safety requirements of the NYC Building Codes, assist with coordination of the work for compliance with the Project Safety Program, "[r]ecommend necessary action to correct substandard safety conditions" and "[r]equest compliance with Federal occupational safety & health standards and all state and local laws."

The deposition testimony of Berkeys Andujar on behalf of PSS establishes that she was aware of the dangerous opening in the ramp leading from the first floor to the basement level garage, that she instructed the general contractor Congress Builders to cover the opening, and that she personally inspected it prior to the accident. Although she described the cover as being "pretty sturdy" with "no wiggle room," she was also aware that applicable safety rules and regulations required that the plywood covering be secured (Andujar deposition at 23-24, 25-26; see 12 NYCRR 23-1.7 [b] [1] [i] ["Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule)"]).

While PSS was not delegated the authority under the agreement to control the means, methods, and procedures used by Congress Builders to cover the opening, PSS had the authority and the obligation to "[r]ecommend necessary action to correct substandard safety conditions" and "[r]equest compliance with Federal occupational safety & Health standards and all state and Local laws" (see Exhibit B, paragraph B (2) (n) and (o) to Consultant Agreement). PSS made no recommendations or requests to Congress Builders to correct the violation to conform with the applicable safety rules and regulations, as it had the authority to do under the agreement (id.), and thereafter, the plaintiff fell through the very opening the cover was designed to protect. Accordingly, PSS has failed to demonstrate, as a matter of law, that it lacked the requisite authority to control the activity that resulted in the plaintiff's injury.

B. PSS failed to establish the absence of a statutory violation proximately causing the injury

1. Labor Law § 240 (1)

As an initial matter, PSS has failed to establish, prima facie, the absence of a violation of Labor Law § 240 (1). "Labor Law § 240 (1) imposes absolute liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards. Breach of the statutory duty must be the proximate cause of the injury. The statute is to be interpreted liberally to accomplish its purpose" (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 [2003]; see Ortiz v 164 Atlantic Avenue, LLC, 77 AD3d 807, 808 [2d Dept 2010]). "In order to prevail on a Labor Law § 240 (1) claim, the plaintiff must establish a [*13]violation of the statute and that the violation was a proximate cause of his or her injuries" (Ortiz v 164 Atlantic Avenue, LLC, 77 AD3d at 809). However, "[w]here there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)" (Treu v Cappelletti, 71 AD3d 994, 997 [2d Dept 2010], citing Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003]).

Here, the plaintiff's fall through the opening in the floor is precisely the type of elevation-related hazard that Labor Law § 240 (1) is designed to prevent (see Alonzo v Safe Harbors of the Hudson Housing, 104 AD3d 446, 450 [1st Dept 2013] ["We have repeatedly held that section 240 (1) is violated when workers fall through unprotected floor openings"], citing Burke v Hilton Resorts Corp., 85 AD3d 419 [1st Dept 2011]; Pichardo v Urban Renaissance Collaboration Ltd. Partnership, 51 AD3d 472 [1st Dept 2008]; O'Connor v Lincoln Metrocenter Partners, 266 AD2d 60 [1st Dept 1999]; Carpio v Tishman Constr. Corp. of NY, 240 AD2d 234 [1st Dept. 1997]; see also Valensisi v Greens at Half Hollow, LLC, 33 AD3d at 696; Norero v 99-105 Third Ave. Realty, LLC, 96 AD3d 727, 728 [2d Dept 2012]).

Moreover, a fall through a floor opening covered by plywood has been found to be sufficient to support a Labor Law § 240 (1) claim (see Alonzo v Safe Harbors of the Hudson Housing, 104 AD3d at 447, 450 ["Plaintiff was walking towards a window through which insulation was being delivered, when he stepped on an eight-by-four-foot section of three-quarter-inch-thick plywood, which unexpectedly flipped up.' The sheet of plywood had been covering an opening in the floor. Plaintiff fell through the hole, which to that point had been concealed, 10 or 12 feet to the story below"]). Accordingly, PSS has failed to demonstrate the absence of a violation of Labor Law § 240 (1).

2. Labor Law § 241 (6)

Further, PSS has failed to establish, prima facie, the absence of a Labor Law § 241 (6) violation. "Labor Law § 241 (6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Norero v 99-105 Third Ave. Realty, LLC, 96 AD3d at 728, citing Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]). "To prevail on a cause of action alleging a violation of Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision that sets forth specific, applicable safety standards" (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-505 [1993]).

To sustain his Labor Law § 241 (6) cause of action, the plaintiff relies upon a violation of 12 NYCRR 23-1.7 (b) (1) (i), which provides as follows: Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).[*14]

Here, the proof submitted establishes that the plywood covering was not "fastened in place" as required by 12 NYCRR 23-1.7 (b) (1) (i) and that the plywood cover failed. Further, no safety railing was constructed and installed in place at the time of the accident as the regulation alternatively permits (see Alonzo v Safe Harbors of the Hudson Housing, 104 AD3d at 447, 450-451 [finding a violation of 12 NYCRR 23-1.7 (b) (1) (i) where the plaintiff fell though an unfastened plywood covering]). Accordingly, PSS has failed to demonstrate the absence of a Labor Law § 241 (6) violation.

C. PSS failed to establish that the plaintiff's conduct was the sole proximate cause of theaccident

Further, PSS failed to establish its prima facie burden for summary judgment on the ground that the plaintiff's conduct was the sole proximate cause of the accident. "Liability under section 240 (1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident" (Gallagher v New York Post, 14 NY3d 83, 88 [2010]). Here, there is no evidence that the plaintiff's accident was caused by his failure (or recalcitrance) to use safety devices that were elsewhere on site and which he was instructed to use. Rather, the evidence in the record would appear to establish the defendants failed to supply any compliant safety device to protect this floor opening. Accordingly, PSS failed to establish that the plaintiff was the sole proximate cause of the accident.

In summary, the branches of PSS's motion which are for summary judgment dismissing the Labor §§ 240 (1) and 241 (6) causes of action are denied. Since PSS failed to meet its prima facie burden, the burden to raise a triable issue of fact does not shift to the plaintiff (see Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]).

II. LABOR LAW § 200 AND COMMON LAW NEGLIGENCE

"Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" (Ortega v Liberty Holdings, LLC, 111 AD3d at 906; see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). There are "two broad categories under which liability may be imposed under Labor Law § 200" (Slikas v Cyclone Realty, LLC, 78 AD3d 144, 147 [2d Dept 2010]). One category of liability relates to negligence arising from the means, methods, and materials employed in the work: "[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]; see Comes v NY State Elec. & Gas Corp., 82 NY2d 876 [1993] [liability may not be imposed pursuant to Labor Law § 200 "solely because the owner had notice of the allegedly unsafe manner in which the work was performed"]; Singh v Black Diamonds LLC, 24 AD3d 138 [1st Dept 2005] ["liability can only be imposed if defendant exercised control or supervision over the work and had actual or constructive notice of the purportedly unsafe [*15]condition"]). Second, liability may also be imposed where the injury is proximately caused by a dangerous or defective condition in the property itself: "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 contractor may be liable in common-law negligence and under Labor Law § 200 only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it" (Sotomayer v Metropolitan Transp. Auth., 92 AD3d 862, 864 [2d Dept 2012]).

Here, the accident can be characterized as involving both the materials employed in the work and a dangerous condition on the premises, and therefore, PSS is required to eliminate triable issues of fact as to both theories in order to meet its prima facie burden (see Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 52 [2d Dept 2011] ["when an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards"]). However, an examination of the proof reveals that PSS has failed to meet its prima facie burden for summary judgment under either theory.

With respect to the theory of liability relating to the means, methods, and materials of the work, PSS has failed to establish, as a matter or law, that it did not have the authority to supervise or control the work giving rise to the accident or that it had no notice of the unsafe manner in which the opening was covered (see Gallagher v Resnick, 107 AD3d 942, 945 [2d Dept 2013] ["To be held liable pursuant to Labor Law § 200 in a case such as this, where the claim arises out of the methods or means of the work, a defendant must have authority to supervise or control the work"]; cf. Ramos v Champion Combustion, Inc., 12 AD3d 227 [1st Dept 2004] ["Plaintiff's common-law negligence and Labor Law § 200 claims were properly dismissed as Champion did not exercise supervisory control over the work in the course of which plaintiff was injured"]). To the contrary, viewing the evidence in the light most favorable to the plaintiff, PSS had the contractual authority and notice to remedy the allegedly inadequate covering placed over the opening that the plaintiff fell through. PSS's on-site representative requested that the opening be covered, and personally inspected the plywood covering after it had been constructed. PSS had the authority under its Consultant Agreement to "[r]ecommend necessary action to correct substandard safety conditions," but chose not to do so.

With respect to the theory of liability relating to a dangerous condition on the premises, PSS's own evidence raises an issue of fact as to whether it had actual notice of the alleged dangerous condition and an opportunity to correct it (see Mikelatos v Theofilaktidis, 105 AD3d 822, 824 [2d Dept 2013] ["TMA failed to establish, prima facie, that it lacked . . . notice of the allegedly dangerous condition, thus precluding a finding, as a matter of law, that it was not negligent"]). Although PSS was not a party to the Consultant Agreement, viewing the evidence in the light most favorable to the plaintiff, given Andujar's directions to Congress Builders to construct the covering and her personal inspection of it after it was put in place, PSS can be said to have launched the force or instrument of harm, and therefore, owed the plaintiff a duty of care (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]; Ragone v Spring Scaffolding, Inc., 46 AD3d 652, 654 [2d Dept [*16]2007]).

Accordingly, the branches of PSS's motion which are for summary judgment dismissing the Labor Law § 200 and common law negligence causes of action are denied.

III. THE PLAINTIFF'S REMAINING LABOR LAW CLAIMS

However, PSS has met its prima facie burden for summary judgment dismissing the Labor Law § 241 (3) and (5) causes of action, as neither of these statutes apply to the facts of this case. PSS has established the inapplicability of Labor Law § 241 (3), which states: "If double floors are not to be used, the floor two stories immediately below the story where the work is being performed shall be kept planked over." Here, there is no evidence that the failure to plank over the floor of a lower story proximately caused the plaintiff's injuries. Finally, Labor Law § 241 (5) relates to the requirements for guarding shafts or openings where elevators, elevating machines or hod-hoisting apparatus are used in the course of construction, for the purpose of lifting materials. Since the opening at the subject jobsite was not used in any manner for lifting materials, this section of the Labor Law does not apply. In opposition, the plaintiff failed to raise a triable issue of fact as to the applicability of these sections (see Zuckerman v New York, 49 NY2d 557, 562 [1980]). Accordingly, the branches of PSS's motion which are for summary judgment dismissing the causes of action based upon violations of Labor Law § 241 (3) and (5) are granted.

Although PSS, in its memorandum of law, argues that summary judgment should be granted dismissing a Labor Law § 240 (3) cause of action, such a claim was never asserted by the plaintiff in the complaint or in the bill of particulars served on PSS. Accordingly, the Court has not addressed PSS's arguments relating to Labor Law § 240 (3).[FN1]

IV. CROSS CLAIMS AND THIRD-PARTY CAUSES OF ACTION AGAINST PSS

A. Common law indemnification and contribution

With regard to the claims for common law indemnification and contribution, PSS contends that 11 Broadway Owner, 11 Broadway Housing, 11 Broadway Affordable, 11 Broadway Residential, and Congress Builders have failed to establish that PSS was guilty of some negligence that contributed to the plaintiff's accident, and therefore, these claims must fail.

However, to defeat the claims for contribution and common law indemnification, PSS was required to make a prima facie showing that it was free from negligence and that it had no authority to supervise, direct, or control the work giving rise to the injury (see Kielty v AJS Construction of [*17]L.I., Inc., 83 AD3d 1004, 1005 [2d Dept 2011] ["To be entitled to common-law indemnification, MRP was required to show that it was not negligent and that the parties from which it sought indemnification were negligent in connection with the plaintiff's accident . . . or, in the absence of any negligence by those parties, that those parties had the authority to direct, supervise, and control the work giving rise to the injury. . . Moreover, an award of summary judgment on a cause of action for common-law indemnification is appropriate only where there are no triable issues of fact concerning the degree of fault attributable to the parties"] [internal citations omitted]; see Allan v DHL Express (USA), Inc., 99 AD3d 828, 832-833 [2d Dept 2012] [where "DHL's liability, if any, [was] purely vicarious," i.e., where it was free from negligence, DHL met its prima facie burden for summary judgment dismissing 500 Lincoln's cross claim for common-law indemnification by establishing "that it did not exercise actual supervision or control over the plaintiff's work"]); see Silva v FC Beekman Associates, LLC, 92 AD3d 754, 756 [2d Dept 2012] ["Based on its authority as the site safety consultant, its ability to stop imminently dangerous work from continuing, and the evidence that a Gotham representative observed the plaintiff working on the scaffold prior to the accident, without taking any action, Gotham failed to make a prima facie showing of its entitlement to judgment as a matter of law, as it failed to make a prima facie showing that it was free from negligence in the happening of the accident"]).

Here, since PSS has failed to eliminate all issues of fact as to its negligence and authority to supervise, direct, or control the work giving rise to the injury, the branches of its motion which are for summary judgment dismissing the contribution and common law indemnification claims of 11 Broadway Owner, 11 Broadway Housing, 11 Broadway Affordable, 11 Broadway Residential, and Congress Builders are denied.

B. Contractual Indemnification

PSS contends that, since it had no authority to supervise, direct, or control the work that caused the plaintiff's injury, the contractual indemnification agreement is unenforceable pursuant to General Obligations Law § 5-322.

"[T]he right to contractual indemnification depends upon the specific language of the contract" (Kielty v AJS Construction of L.I., Inc., 83 AD3d at 1006). Although "an indemnification agreement that purports to indemnify a party for its own negligence is void under General Obligations Law § 5—322.1, such an agreement does not violate the General Obligations Law if it authorizes indemnification to the fullest extent permitted by law'" (Giangarra v Pav—Lak Contr., Inc., 55 AD3d 869, 870—871 [2d Dept 2008]).

The indemnification agreement here obligates PSS to indemnify, "to the fullest extent permitted by law," 11 Broadway Owner, 11 Broadway Housing, 11 Broadway Affordable, 11 Broadway Residential, and Congress Builders from and against any and all liabilities, including economic loss suffered from any claims, suits, proceedings, or judgments, "arising from any negligent act or omission of or by PSS" (see paragraph 8 of the Consultant Agreement). Since the indemnification agreement contains the qualifying language "to the extent permitted by law," it is [*18]not void and unenforceable, as PSS contends. Moreover, since PSS has failed to establish through its submissions that it was free from negligence, the branch of its motion which is for summary judgment dismissing the cross claims and third-party claims for contractual indemnification is denied.

C. Breach of Contract for Failure to Procure Insurance

However, PSS has met its prima facie burden for summary judgment dismissing the cross claims and third-party claims asserted against it for breach of contract for failure to procure insurance by submitting copies of the pleadings, a copy of the consultant agreement, an affidavit from John McCarthy, President of PSS, and copies of certificates of insurance indicating that the insurance coverage required pursuant to the agreement was procured. In opposition, the defendants failed to tender any evidence to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, PSS is granted summary judgment dismissing the cross claims and third-party claims asserted against it for breach of contract for failure to procure insurance.

V. PSS'S THIRD-PARTY COMPLAINT AND CROSS CLAIM

PSS also moves for summary judgment on the cross claim and cause of action in its second third-party complaint alleging that 11 Broadway Affordable and 11 Broadway Residential failed to use commercially reasonable efforts to cause Congress Builders and its subcontractors to name PSS as an additional insured on their liability insurance policies. However, in opposition to the motion, Congress Builders has come forward with a Certificate of Liability Insurance indicating that it named PSS as an additional insured on its policy of insurance covering the subject construction project. Accordingly, PSS is not entitled to summary judgment on this cause of action.

The Court notes that PSS's notice of motion limits the relief sought with respect to the second third-party complaint to its second cause of action. However, PSS makes a brief reference to its third cause of action for common law indemnification in its moving papers, but does not explicitly ask for any relief with respect to that cause of action (see PSS's memo of law at 7). To the extent that PSS's papers could be broadly construed as having requested summary judgment on that cause of action, the Court finds that PSS has failed to meet its prima facie burden for summary judgment, as it failed to demonstrate that it was free from negligence in the happening of the accident, or that it did not have the authority to direct, supervise, or control the work giving rise to the injury (see Kielty v AJS Construction of L.I., Inc., 83 AD3d at 1005). PSS makes no reference to the first cause of action asserted in the second third-party complaint for contractual indemnification, and therefore, the Court presumes that it seeks no relief with respect to that cause of action.

Based upon the foregoing, it is hereby

ORDERED that the branches of the motion of the defendant/ third-party defendant/ second [*19]third-party plaintiff Pro Safety Services, LLC, which are for summary judgment dismissing the plaintiff's causes of action premised upon violations of Labor Law § 241 (3) and (5) insofar as asserted against it, and for summary judgment dismissing all cross claims and third-party claims asserted against it for breach of contract for failure to procure insurance are granted, and the motion is otherwise denied; and it is further

ORDERED that the parties are directed to appear on June 23, 2014, at 9:30 a.m., in courtroom 1600, the Settlement Conference Part at the Westchester County Courthouse, 111 Dr. Martin Luther King, Jr., Boulevard, White Plains, New York 10601; and it is further

ORDERED that all other relief requested and not decided herein is denied.

This constitutes the decision and order of the Court.

Dated:White Plains, New York

May 1, 2014

HON. FRANCESCA E. CONNOLLY, J.S.C.

Footnotes

Footnote 1: Labor Law § 240 (3) sets forth weight-bearing requirements for scaffolds. The Court notes, in any event, that Labor Law § 240 (3) would not apply under the facts of this case since the plywood cover was not a scaffold (see Bellreng v Sicoli & Massaro, Inc., 108 AD3d 1027, 1029 [4th Dept 2013] ["[Labor Law § 240 (3)] does not apply in this case because the roof decking through which plaintiff fell was not a scaffold"]).