Garrett v City of New York

[*1] Garrett v City of New York 2017 NY Slip Op 50243(U) Decided on February 23, 2017 Supreme Court, Kings County Saitta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 23, 2017
Supreme Court, Kings County

Julian Garrett and Pauline Garrett, Plaintiffs,

against

City of New York and Skanska/Picone Joint Venture, Environmental Laboratories, Inc. and Environmental Energy Associates, Defendants.



City of New York and Skanska/Picone Joint Venture, Third-Party Plaintiffs,

against

Synagro Northeast, LLC, Third-Party Defendant,



Synagro Northeast, LLC, Second Third-Party Plaintiff,

against

Environmental Laboratories, Inc., and Environmental Energy Associates, Second Third-Party Defendants,



City of New York and Skanska/Picone Venture, Third Third-Party Plaintiffs,

against

Environmental Labortories, Inc., and Environmental Energy Associates, Third Third-Party Defendants,



City of New York and Skanska/Picone Venture, Fourth Third-Party Plaintiffs,

against

Hazen Sawyer, P.C./ Malcome-Pirnie, Inc., A Joint Venture, Hazen and Sawyer P.C. and Malcolm Pirnie, Inc., Fourth Third-Party Defendants.



14158/2009



Plaintiff Attorney — Julian & Pauline Garrett

Kelner & Kelner

140 Broadway, 37th floor

New York, New York 10005

(212) 425-0700

Gail S. Kelner, Esq.

Defendants Attorney —

Lewis Brisbois Bisgaard & Smith, LLP — City of New York and Skanska/Picone Joint Venture

77 Water Street

New York, New York 10005

(212) 232-1300

Thomas A. Noss, Esq.

Defendants / 2nd 3rd Party Defendants / 3rd 3rd Party Defendants

Pillinger Miller Tarallo, LLP — Environmental Laboratories, Inc.

570 Taxter Road, suite 275

Elmsford, New York 10523

(914) 703-6300

Raymond A. Cote, Esq.

Defendant / 2nd 3rd Party Defendant / 3rd 3rd Party Defendant

Callhan Koster Brady & Brennan — Environmental Energy Associates One Whitehall Street, 10th floor

New York, New York 10004

(212) 248-8800

Luis E. Valvo, Esq.

Defendant / 4th 3rd Party Defendant

Litchfield Cavo, LLP — Hazen Sawyer, P.C. / Malcolm Pirnie, Inc., A joint Venture Hazen and Sawyer, P.C. and Malcolm Piernie, Inc.

420 Lexington Avenue, suite 2104

New York, New York 10170

(212) 818-0568

John V. Barbieri, Esq.
Wayne P. Saitta, J.

Plaintiffs, JULIAN GARRETT and PAULINE GARRETT, (hereinafter "Plaintiffs"), move this Court for an Order granting leave to renew their motion pursuant to CPLR 2221(e) to amend their complaint to add a cause of action pursuant to Labor Law section 240(1), and upon amending the complaint, granting Plaintiffs summary judgment on their Labor Law 240(1) claim, and granting Plaintiffs summary judgment on their claim pursuant to Labor Law 241(6) against Defendants CITY OF NEW YORK, ("CITY") and SKANSKA/PICONE JOINT VENTURE, ("SKANSKA"), (collectively CITY/SKANSKA); Defendant ENVIRONMENTAL LABORATORIES, INC, ("ELI"), seeks summary judgment dismissing all of the claims and cross claims against it; Defendant ENVIRONMENTAL ENERGY ASSOCIATES, ("EEA"), seeks summary judgment dismissing all of the claims and cross claims against it; Defendant CITY seeks summary judgment dismissing Plaintiff's common law negligence and Labor Law 200 claim, Defendant CITY seeks summary judgment on its cross claim for contractual indemnification against EEA, Defendant SKANSKA seeks a conditional order granting it contractual indemnification against EEA, Defendant CITY seeks summary judgment on its claim for breach of contract for failure to procure insurance, and for contractual indemnification against Defendant HAZEN SAWYER, P.C./ MALCOME-PIRNIE, INC., a Joint Venture, HAZEN and SAWYER P.C. and MALCOLM PIRNIE, INC., ("HAZEN SAWYER"), Defendant CITY seeks summary judgment on its claim for breach of contract for failure to procure insurance against EEA, Defendant CITY seeks summary judgment against EEA for common law indemnification; Defendant CITY seeks summary judgment against ELI for common law indemnification; and HAZEN SAWYER seeks summary judgment dismissing the fourth party action against them, and HAZEN SAWYER seeks summary judgment on its claim for contractual indemnification from SKANSKA.

Upon reading the Notice of Motion of Gail S. Kelner, Esq. of Kelner & Kelner, Attorney for Plaintiffs, JULIAN GARRETT and PAULINE GARRETT, dated March 21st 2016, together with the Affirmation in Support of Plaintiffs' Summary Judgment Motion and Leave to Renew, of Gail S. Kelner, Esq., dated March 17, 2016 and all exhibits annexed thereto; the Notice of Motion by Louis E. Valvo, Esq. of Callan Koster Brady & Brennan, Attorney for Defendant, ENVIRONMENTAL ENERGY ASSOCIATES, dated March 25th, 2016, together with Affirmation in Support and the Memorandum of Law of Louis E. Valvo, Esq., dated March 25th, 2016, and all exhibits annexed thereto; the Notice of Motion of Raymond A. Cote of Pillinger Miller Tarallo LLP, Attorney for Defendant/Third-party Defendant, ENVIRONMENTAL LABORATORIES, INC., dated March 25th, 2016, together with the Affirmation in Support of Raymond A. Cote, Esq., dated March 25th, 2016 and all exhibits annexed thereto; the Notice of Motion of Thomas A. Noss, Esq. of Lewis Brisbois Bisgaard & [*2]Smith LLP, Attorney for Defendants/Third-party Plaintiffs, CITY OF NEW YORK and SKANSKA/PICONE JOINT VENTURE, dated March 25th, 2016, together with the Affirmation in Support of Thomas A. Noss, Esq., and all exhibits annexed thereto; the Affirmation in Partial Opposition by Louis E. Valvo, Esq., dated May 20th, 2016 and all exhibits annexed thereto; the Affirmation in Opposition of Louis E. Valvo, Esq., dated May 23rd, 2016 and all exhibits annexed thereto; the Affirmation in Opposition to Motion of Gail S. Kelner, Esq., Defendant, ENVIRONMENTAL ENERGY ASSOCIATES, dated May 23rd, 2016 and all exhibits annexed thereto; Notice of Cross-Motion by John V. Barbieri, Esq. of Litchfield Cavo LLP, Attorneys for Fourth Third-Party Defendants, HAZEN SAWYER, P.C. / MALCOLM PIRNIE, INC., A JOINT VENTURE HAZEN and SAWYER, P.C. and MALCOLM PIRNIE, INC., dated May 23rd, 2016, together with the Affirmation in Support of John V. Barbieri, Esq., dated May 23rd, 2016 and all exhibits annexed thereto; the Opposition to the Motion by John V. Barbieri, Esq., dated May 23rd, 2016 and all exhibits annexed thereto; the Affirmation in Opposition to Motion of Defendant, ENVIRONMENTAL LABORATORIES, INC., of Gail S. Kelner, Esq., dated May 24th, 2016 and all exhibits annexed thereto; the Affirmation in Opposition to Defendants, CITY OF NEW YORK and SKANSKA/PICONE JOINT VENTURE, of Gail S. Kelner, Esq., dated May 24th, 2016 and exhibits annexed thereto; the Affirmation in Opposition to ENVIRONMENTAL ENERGY ASSOCIATES, motion for Summary Judgment, of Thomas Noss, Esq., dated May 25th, 2016 and all exhibits annexed thereto; the Affirmation in Opposition of Raymond A. Cote, Esq., Attorney for Defendant/Third-Party Defendant, ENVIRONMENTAL LABORATORIES, INC., dated May 25th, 2016; the Affirmation in Opposition to ENVIRONMENTAL LABORATORIES, INCs Motion for Summary Judgment of Thomas A. Noss, Esq., and all exhibits annexed thereto; the Affirmation in Opposition to Plaintiffs' Motion for Summary Judgment of Thomas A. Noss, Esq., dated May 25th, 2016 and all exhibits annexed thereto; the Reply Affirmation of Raymond A. Cote, Esq., dated June 1st, 2016; the Affirmation in reply to CITY OF NEW YORK and SKANSKA/PICONE JOINT VENTURE's Opposition to ENVIRONMENTAL ENERGY ASSOCIATES' Motion for Summary Judgment of Louis E. Valvo, Esq., dated June 1st, 2016; the Affirmation in Reply to Plaintiff's Opposition to ENVIRONMENTAL ENERGY ASSOCIATES' Motion for Summary Judgment of Louis E. Valvo, Esq., dated June 1st, 2016; the Affirmation in Reply to HAZEN SAWYER, P.C. / MALCOLM PIRNIE, INC., A JOINT VENTURE HAZEN and SAWYER, P.C. and MALCOLM PIRNIE, INC. and in Further Support of Defendants' Motion for Summary Judgment of Thomas A. Noss, Esq., dated June 1st, 2016; the Affirmation in Reply to Plaintiffs and in Further Support of Defendants' Motion for Summary Judgment of Thomas A. Noss, Esq., dated June 1st, 2016; the Affirmation in Reply to ENVIRONMENTAL ENERGY ASSOCIATES and in Further Support of Defendants' Motion for Summary Judgment of Thomas A. Noss, Esq.,, dated June 1st, 2016; the Reply Affirmation of Gail S. Kelner, Esq., dated June 1st, 2016 and all exhibits annexed thereto; the Reply Affirmation of Kevin Donnelly, Esq., Attorney for Defendants, HAZEN SAWYER, P.C./MALCOLM PIRNIE, INC., A JOINT VENTURE, dated June 14th, 2016; and after argument of counsel and due deliberation thereon, Plaintiffs' motion is granted in part and denied in part, ELI's motion is granted, EEA's motion is denied, the CITY/SKANSKA's motion is granted in part and denied in part, and HAZEN SAWYER's cross motion is denied for the reasons set forth below.

FACTS

Plaintiffs bring this action to recover for injuries JULIAN GARRETT, ("Plaintiff"), [*3]sustained on September 24, 2008 while he was working inside a waste digester tank located at the New Town Creek Waste Treatment Facility in Greenpoint, Brooklyn.

Defendant CITY of NEW YORK, ("-ITY"), is the owner of the facility where the accident occurred.

Defendant SKANSKA/PICONE JOINT VENTURE, ("SKANSKA"), was hired by the CITY to demolish certain waste treatment tanks at the facility and was the general contractor on the demolition project, ("the project").

Defendant CITY of NEW YORK, ("-ITY") and Defendant SKANSKA/PICONE JOINT VENTURE, ("SKANSKA") are referred to collectively as the "SKANSKA Defendants".

Jaesen Sellick, who was employed by SKANSKA, was a laborer assigned to adjust water pressure in the hose the Plaintiff was using and to operate a winch at the top of the digester tank that was attached to Plaintiff while he was working in the tank.

SYNAGRO was hired by SKANSKA to clean the tanks in preparation for their demolition. Plaintiff was an employee of SYNAGRO.

Defendant ENVIRONMENTAL ENERGY ASSOCIATES ("EEA"), was hired by SKANSKA to provide air monitoring of confined spaces. Mike Nealis was employed by EEA as a confined space monitor to monitor air quality within the tank.

Plaintiff alleges Defendant ENVIRONMENTAL LABORATORIES, INC, ("ELI"), was a subcontractor of SKANSKA. ELI states it was not working on the project. Mike Nealis worked for ELI as well as EEA.

At the time of the accident, Plaintiff was hosing down sludge in the tank to allow it to be pumped out of the tank in preparation for the tank being demolished.

Plaintiff was working from the bottom of a tank which was approximately 60 feet high and 80 feet wide. Plaintiff got into the tank by descending a ladder which was resting on a pipe which was 8 feet off of the base of the tank. When he got to the base of the ladder, he was lowered by a winch which was affixed to a harness on his back, by Jaesen Sellick.

Plaintiff testified that he complained to Brian, who Plaintiff said was the safety officer, that the ladder failed to reach the bottom of the tank.

Plaintiff testified that if he wanted to exit the tank, he would advise the person watching him from above to winch him up. Sellick was position at the top of the tank on the day of the accident.

Plaintiff states that the equipment he used was already in the tank when he was lowered in. He was operating a water hose to soften and liquefy the solid waste in the tank so that it could be pumped out of the tank. Plaintiff states that he did not use the hose from a position standing on top of the pipe because the distance from the hose to the sludge would be too far for the material to mix properly.

Plaintiff states that in the course of his work, a large section of sludge broke up and started to move toward him. He stated that he yelled for help but that no one responded. He stated when he looked up, no one was at the top of the tank. He stated he shook the cable attached to his back to try to get the attention of someone at the top of the tank. He tried to bend down and exit through a hatch in the side of the tank which was below knee level, but he was unable to get through the hatch because the harness he was wearing was still attached to a cable running up the inside of the tank to the top. Plaintiff states that he could not get more than his head through the hatch and out of the tank. Plaintiff stated that he ingested some of the sludge.

At some point after the sludge fell, Mike Nealis tried to pull Plaintiff out of the tank by [*4]the cable but could not do so because Plaintiff was holding on to the lid of the hatch. Sellick returned to the outside of the hatch, saw that Plaintiff was holding on to the hatch and he told Nealis to stop pulling on the cable from the top of the tank. The fire department came and after four hours was able to remove the Plaintiff through the hatch.

Fourth-third party Defendants HAZEN SAWYER PC/MALCOLM-PIRNIE INC, A JOINT VENTURE, HAZEN AND SAWYER PC and MALCOLM-PIRNIE INC, (hereinafter "HAZEN SAWYER"), held a post-accident meeting, which Synagro attended, during which it was proposed that in order to complete the cleaning of the tank, the worker could work on a platform elevated above the sludge until the sludge pile was three feet high or less to prevent being engulfed in falling sludge.

HAZEN SAWYER prepared a report of the incident which concluded that the ladder, elevated ten feet off of the floor of the tank, did not provide a second means of egress from the tank, in addition to the side hatch. The report concluded that the ladder should reach the bottom of the tank and be secured with a rope to prevent it from shifting.

SKANSKA attendant, Jaesen Sellick, was not present at the top of the tank to monitor the Plaintiff in the tank at the time of the accident because he left the top of the tank at Plaintiff's request to open the hatch to allow in fresh air.

Plaintiff also submits the affidavit of Jaesen Sellick who stated that he had not been trained to be a tank monitor, specifically was not trained not to leave the tank unattended. He was told that his job was to make sure the water flow was adequate for Plaintiff to do his work. He states that he was not told that he was to have constant contact with the Plaintiff and that he should not leave the top of the tank. Sellick states that monitoring the Plaintiff was not part of the work to which he was assigned. He states there was no one assigned to the top of the tank just to monitor the safety of Plaintiff. He said that when he went down to open the hatch, no one was at the top of the tank to monitor the Plaintiff.

Michael Nealis testified for EEA and stated that the Plaintiff was supposed to be at the bottom of the tank while he started his shift to be able to liquefy the sludge. Nealis stated he did not know whether Plaintiff was able to get to the floor of the tank by descending the ladder as he had no way of seeing the ladder from the top of the tank. Nealis stated that when Sellick went down to open the side hatch of the tank, he, Nealis, remained positioned at the top of the tank. Nealis stated he did not have a radio nor could he actually see the Plaintiff when he was in the tank. Nonetheless, Nealis maintains that he had visual contact with the Plaintiff because he could see water splashing. He said he did not see the sludge pile move, and he only learned that there had been an accident when Bob Hubert, an employee of Synagro, came running to the top of the tank.

Plaintiffs' motion

Plaintiffs original complaint did not allege any violations of the New York State Labor Law.

By Order of the Court dated October 29, 2013, Plaintiffs were granted leave to amend their complaint to allege Labor Law section 241(6) and 200 violations, but were denied leave to allege a violation pursuant to Labor Law 240(1).

Plaintiffs now move for summary judgment on their Labor Law 241(6) claim and to renew that part of their original motion seeking leave to amend their complaint to add a Labor Law 240(1) violation, as well as for summary judgment on that proposed claim.

Plaintiffs argue they should be allowed to amend the complaint to add a claim pursuant to [*5]Labor Law 240(1) as the original complaint alleges all of the relevant facts which sustains this claim, and therefore there is no prejudice to the Defendants.

Plaintiffs further argue that the Court erred in holding that there was no safety device that could have protected him from the falling sludge that would not have prevented him from performing his task. Plaintiff contends that he has learned through further discovery that Plaintiff could have been provided with a platform which would have allowed him to liquefy the sludge from a position above the sludge which would have protected him from the falling sludge and prevented his injury.

Plaintiff further argues Defendants are liable pursuant to the New York Labor Law 241(6) because Defendants violated Industrial Code 12 NYCRR 23-1.7(f) by failing to provide a ladder that reached the floor of the tank or other safe means of egress from the tank.

Plaintiffs further argue that Defendants violated section 12 NYCRR 12-1.9 because Jaesen Sellick, the tank monitor who was supposed to be watching Plaintiff while he was in the tank, was not at the top of the tank when the Plaintiff needed assistance and there was not a second worker, in addition to Sellick, at the top of the tank to aid Plaintiff.

The SKANSKA Defendants argue that Plaintiffs should not be permitted to amend their complaint to add a violation pursuant to Labor Law section 240(1) because the Plaintiffs did not move to reargue the Court's October 29, 2013 decision which denied the amendment, and because Plaintiff do not present any new evidence that would change the Court's analysis to justify renewal.

Defendant EEA opposes Plaintiffs' motion arguing there are no new facts to warrant renewal of the motion to amend the complaint to add a claim pursuant to Labor Law 240(1) and that to permit the amendment would be prejudicial to the Defendant EEA as it, and the other Defendants, have already filed all of their dispositive motions, and it severely delays the resolution of the case. EEA argues that should the Court grant Plaintiffs' motion, that the Court strike the note of issue, order additional depositions, and extend the time to file further dispositive motions.

Defendant SKANSKA further argues that Plaintiffs are not entitled to summary judgment on their 241(6) claim as there remain questions of fact as to whether Plaintiff was comparatively negligent in his work causing the accident, and even if the code sections were violated, whether those violations constitute a proximate cause of the accident.

Plaintiffs motion

ANALYSIS

Applications for leave to amend pleadings under CPLR 3025 (b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit, and that the sufficiency or underlying merit of the proposed amendment is to be examined no further. Maldonado v Newport Gardens, Inc, 91 AD3d 731, 937 NYS2d 260 (2nd Dept 2012). RCLA, LLC v 50-09 Realty, LLC, 48 AD3d 538, 852 NYS2d 211 (2nd Dept 2008).

The Court denied that part of Plaintiffs' prior motion that sought to amend the complaint to include a claim pursuant to Labor Law 240(1), holding that the absence of a ladder did not cause the Plaintiff to fall or suffer a gravity related injury, and that there was no safety device that could have been employed to prevent the sludge from falling that would not have rendered the Plaintiff's task impossible. The Court noted that it was Plaintiff's task to liquefy the sludge on the sides of the tank so that it flowed down into the drain at the bottom of the tank.

Plaintiff now presents evidence obtained through discovery which demonstrates that contrary to the Court's reasoning in denying Plaintiff leave to amend to add a 240(1) claim, there was a safety device that could have prevented Plaintiff's injury and not interfered with his work. Plaintiff claims that he could have been provided with an elevated platform which could have elevated him above the falling sludge.

Labor Law 240(1)

Labor Law § 240 (1) was designed to provide "exceptional protection" for workers against the "special hazards" which stem from a work site that is either elevated or positioned below the level where materials are hoisted or secured. [T]he purpose of the strict liability statute is to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials, and, accordingly . . . there will be no liability under the statute unless the injury producing accident is attributable to the latter sort of risk. La Veglia v St. Francis Hosp, 78 AD3d 1123, 1126—27 [2d Dept 2010], internal citations omitted.

The Court of Appeals decision in Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009] clarified the scope of what constituted a 240(1) violation from a falling object or falling worker to holding that "the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential". While Plaintiffs' case is neither a typical falling worker nor typical falling object case, there is a colorable claim within the interpretation of what constitutes a Labor Law 240(1) violation enunciated in Runner.

The sludge pile that Plaintiff was in the process of liquefying was significantly higher than he was, and it fell on him due to Plaintiff's position relative to the pile. Had the Plaintiff been elevated on a platform above the level of the sludge he was liquefying, Plaintiff would not have been overtaken by the falling sludge. A work platform is an enumerated safety device within the meaning of Labor Law 240(1).

While the movement of the sludge was inherent in the task of liquefying it, it was not the failure to secure the sludge which constituted a violation of section 240(1), but the failure to provide Plaintiff a platform to elevate him to protect him from the falling sludge.

The Court held in its original decision that there was no enumerated device that could have been employed to prevent the sludge from falling which would not have rendered Plaintiff's task impossible. The relevant question was not whether an enumerated device could have prevented the sludge from falling but whether there was an enumerated device which could have protected the Plaintiff from the falling sludge without interfering with his task. Plaintiff has submitted sufficient evidence obtained through further disclosure to show a colorable claim that elevating the Plaintiff would have prevented his injuries.

Therefore, that part of his motion to renew his leave to amend the complaint to add a Labor Law 240(1) violation should be granted, and upon renewal, Plaintiffs should be permitted to amend their complaint.

However, since issue has not yet been joined on this new cause of action, that part of Plaintiffs' motion seeking summary judgment on their Labor Law 240(1) claim must be denied at this time.

Labor Law 241(6)

Plaintiff moves for summary judgment on liability against the CITY/SKANSKA Defendants on his Labor Law 241(6) claim.

Labor Law § 241(6) imposes a non-delegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed. It requires owners and contractors to comply with specific safety rules promulgated by the Commissioner of the Department of Labor, but the rule or regulation must set forth concrete specifications, and not general safety standards. Ross v. Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494, 501—502, 601 N.Y.S.2d 49, 618 N.E.2d 82.

Here, Plaintiff alleges that Defendants violated of Industrial Code § 23—1.7(f) and 12 NYCRR 23-1.7(g).

12 NYCRR 23-1.7(g) applies to "unventilated confined areas" such as tanks, requires air testing of a tank, and also provides that such areas shall be subject to Industrial Code Rule 12. Plaintiffs' claim here is not that the air was not tested, but rather that several requirements of Part 12 of the Industrial Code were not met.

Subsection (a)(2) of 12 NYCRR 12-1.9 requires

Whenever a confined space is to be entered, a person who has been designated as a safety monitor shall function as required by this Part (rule). A confined space shall not be entered unless there is at least one other person in addition to the required safety monitor ready to render assistance in an emergency when alerted. Such additional person shall be located within 100 feet unobstructed walking distance from and not more than one floor above or one floor below the access opening of such confined space. The assigned duties of such additional person shall be such that they will not prevent him from responding immediately to an emergency when alerted.

Further, subsection (c)(1) of 12 NYCRR 12-1.9 requires

A person designated as a safety monitor shall be stationed at the access opening of any confined space while such space is occupied for any reason. The safety monitor shall maintain visual contact with every occupant in the confined space where the construction of the confined space permits, or shall have continuous knowledge of the activities and well-being of every occupant of the confined space via verbal communication or other positive means at all times. Such safety monitor may assist an occupant of a confined space in such light duties as handling tools or supplies or removing containers of refuse or debris provided that these tasks do not interfere with his primary duty as a safety monitor.(2) The safety monitor shall be an alert, competent person, fully capable of quickly summoning the assistance of a person or rescue team for the administration of emergency first aid treatment if required.(3) The safety monitor must be physically able to assist such summoned person or rescue team in the extrication of an occupant from a confined space under emergency conditions.

Plaintiff annexes the affidavit of Jaesen Sellick who states that Nealis was not present when Sellick left the top of the tank to open the hatch at the bottom of the tank.

Mike Nealis testified that when Sellick left the top of the tank, he, Nealis was present at the top of the tank and he asserts that he maintained visual contact with Plaintiff because he could see water splashing. However, Nealis also testified that he could neither see Plaintiff nor could he see the sludge pile fall. He stated that he could see water splashing, but that he could not see the Plaintiff himself.

Nealis also testified that he did not have a radio and that he could not hear Plaintiff's cries for help. He learned that something had occurred to the Plaintiff when Bob Hubert, an employee of Synagro, ran up to the top of the tank.

Despite Defendants contention that Nealis fulfilled the duties required of 12 NYCRR 12-1.9(c), which requires maintaining communication with the Plaintiff while keeping him "under constant visual contact", Nealis admitted that he could neither see Plaintiff, nor could he communicate with him by radio. Based upon his own admissions, Nealis was not able to render assistance, despite the fact that he says he was positioned at the top of the tank when he could neither see nor hear Plaintiff.

While Defendants argue that there is ample evidence that Nealis was the designated safety monitor, his inability to see or hear the Plaintiff renders that designation meaningless as he was not able to be alerted to and respond to an emergency and therefore he was not able to satisfy the responsibilities of a safety monitor.

The absence of any person at the top of the hatch who could see Plaintiff and who could be alerted to Plaintiff's request for help, and render effective assistance therefore constitutes a violation of 12 NYCRR 23-1.7(g), including 12NYCRR 12-1.9(c)(1) and 12NYCRR 12-1.9 (a)(2), and was a proximate cause of Plaintiff's injuries.

Comparative Negligence

Comparative negligence is a valid defense to a Labor Law § 241(6) cause of action. Lopez v New York City Dept. of Envtl. Protection, 123 AD3d 982, 999 NYS2d 848 (2nd Dept 2014), lv to appeal denied, 26 NY3d 905 (2015). Defendant SKANSKA argues that Plaintiff was comparatively negligent and therefore there was no Labor Law 241(6) violation.

SKANSKA argues that Plaintiff is comparatively negligent because he failed to work off of the pipe until the sludge was at a lower level, and because he failed to unhook himself from the winch so that he could access the side hatch. Defendant SKANSKA argues that as an experienced worker, alone in the tank, he should have known better. Defendant SKANSKA argues that HAZEN SAWYER's report suggested that Plaintiff should have worked from elevation until the material was three feet high or less, and that Plaintiff's choice not to do so provides a basis to show that Plaintiff was comparatively negligent.

Defendant cites Ascencio v Briarcrest at Macy Manor, LLC, 60 AD3d 606, 874 NYS2d 562 [2d Dept 2009] in support of its argument that Plaintiff was negligent.

In Ascencio the Second Department found that the plaintiff may have been comparatively negligent when he was struck by the bucket of an excavator as he positioned himself too close to excavation equipment, denying him summary judgment on his 241(6) claim.

However, in this case, Plaintiff attested that he could not have worked from the location of the pipe and the ladder because they were too far from the sludge pile for the water spray to reach the material so it would mix properly. Even had the ladder been close enough to the pile for Plaintiff to loosen the sludge with the hose, Plaintiff could not have climbed the ladder to do the work as the ladder provided did not reach the bottom of the tank.

Plaintiff was not negligent working from the floor of the tank when he was not provided an elevated platform from which he could safely and effectively perform his work.

Here, the Plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 241(6) by showing that there was a violation of 12 NYCRR 23-1.7(g), including 12NYCRR 12-1.9(c)(1) and 12NYCRR 12-1.9 (a)(2), and that such violation was a proximate cause of his injuries. [*6]Lopez v New York City Dept. of Envtl. Protection, 123 AD3d 982, 999 NYS2d 848 (2nd Dept 2014), lv to appeal denied, 26 NY3d 905 (2015).

Since Plaintiff has shown a violation of the Industrial Code and Defendant SKANSKA has failed to show that Plaintiff's was comparatively negligent, Plaintiff has met his burden as to his entitlement to summary judgment against the CITY/SKANSKA on his Labor Law 241(6) claim.

ELI's motion for SJ dismissing all claims against it

In his complaint, Plaintiff alleged that ELI was hired by SKANSKA to assist in the construction, demolition and cleaning operations at the facility where Plaintiff's accident occurred, and that ELI's negligence caused Plaintiff's injuries.

CITY/SKANSKA allege cross claims against ELI for contractual indemnification, breach of contract for failure to procure insurance, common law indemnification and contribution.

ELI moved for summary judgment to dismiss the complaint against it and all cross claims against it by Synagro and the CITY/SKANSKA Defendants for contribution, common law indemnification, contractual indemnification and failure to procure insurance, arguing it had no involvement with the construction, demolition and cleaning operations at the New Town Creek facility.

Both Plaintiff and CITY/SKANSKA oppose the motion. Synagro has not opposed the motion.

Mark Waznys testified on behalf of ELI. Waznys states he has been the president and sole shareholder of ELI since around 1979, and was the president in 2008, at the time of Plaintiff's accident. He states he was vice-president of EEA for approximately 12 years, including in 2008, at the time of Plaintiff's accident, but he was never a shareholder in EEA. He stated that EEA but not ELI contracted to do work on the project in 2008. He also stated that ELI and EEA had a common office in 2008, and that they shared staff. He stated that at times, both EEA and ELI would be on the same site, but not on the same contract.

Waznys stated that Mike Nealis worked for both EEA and ELI, and had worked as a confined space attendant/supervisor, and that if he worked on a job site for one company, he did not work for the other. He stated that while Nealis was a per-diem worker, who worked for both companies, he did not work for both companies at the same time. Waznys stated that at the time of Plaintiff's accident, Nealis was working for EEA, despite the fact that he signed a confined space entry permit for the project as an employee of ELI.

ARGUMENTS

ELI argues that it did not sign any contract with the CITY/SKANSKA on the project, that it had no employees on the job site and that it had no oversight of either Plaintiff or his workplace and therefore it cannot be held liable for the Plaintiff's accident. ELI argues that CITY/SKANSKA's affirmation, which states that the Plaintiff's incident arose out of EEA's work, demonstrates that the incident did not arise out of ELI's work.

ELI notes that CITY/SKANSKA contracted with EEA, not ELI, for services rendered relating to air monitoring within the waste digester tanks, and while Mike Nealis worked for both entities at various times, and inadvertently signed an entry permit as an employee of ELI, he was employed by EEA while working on the project.

In opposition to ELI's motion, Plaintiff and CITY/SKANSKA argue that ELI has failed to meet its burden to eliminate all questions of fact as to its involvement on the project because an ELI entry permit was used for access to one of the digester tanks, and ELI owned winches [*7]and tripods used on the job.

Finally, both Plaintiff and CITY/SKANSKA assert that there is an unknown relationship between EEA and ELI. Plaintiff argues that ELI and EEA have common employees and that ELI's equipment was used on the job. Plaintiff argues that the two are alter egos and as such, dismissal of the action against ELI is not warranted.

ANALYSIS

It is clear that EEA, and not ELI, had the contract to work on the project, and that Nealis was working on the project pursuant to the EEA contract. Therefore, the only basis by which ELI could be liable for Plaintiff's injuries is as an alter ego of EEA. In order to determine whether a corporation has been so dominated by another so as to be called its alter ego, the Courts consider a number of factors, which include " whether there is an overlap in ownership, officers, directors and personnel, inadequate capitalization, a commingling of assets, or an absence of separate paraphernalia that are part of the corporate form ... such that one of the corporations is a mere instrumentality..". John John, LLC v Exit 63 Dev., LLC, 35 AD3d 540, 826 NYS2d 657 (2d Dept 2006).

ELI and EEA shared common offices and had a common staff and performed the same work. However, Mark Waznys, president and sole shareholder of ELI, attested that in 2008, while he was a vice-president in EEA, he was not a shareholder in EEA. He attested that as the vice president of EEA, he would take directions from Balu Kamat, the president of EEA, and Carmine Desio, another vice-president of EEA.

In his examination before trial, Nealis admitted that he worked for both entities, but not simultaneously. He stated that he signed the confined space entry permit as an employee of ELI in error, and that it should have been on behalf of EEA. Significantly, payroll records reflect that Nealis was employed by EEA on the date of the accident.

Even if the winch and tripod used on the project were owned by ELI, since there is no claim that the winch or tripod failed or caused Plaintiff's injuries, that fact by itself is not enough to hold ELI in the action.

While it appears that ELI and EEA performed similar work, functioned out of a shared office and employed the same staff on jobs, neither Plaintiff nor CITY/SKANSKA have submitted any evidence to challenge ELI's testimony that ELI and EEA did not have the same ownership and are separate entities, other than the fact that Nealis worked for both entities and signed the entry permit as an ELI employee. This, without more, is insufficient to demonstrate that EEA and ELI are alter egos and thus ELI cannot be held liable for EEA's activities on the project.

Further, CITY/SKANSKA did not furnish any contract between it and ELI to refute ELI's testimony that it had no contract to work on the job. ELI was not involved in the project and did not have a presence on site at the time Plaintiff's accident occurred. ELI is entitled to dismissal of the complaint and all cross claims against it.

EEA's motion for summary judgment

EEA moves for summary judgment seeking dismissal of all of Plaintiff's' claims against it, arguing it had no involvement with the construction, demolition and cleaning operations at the New Town Creek facility, nor did it have any authority over the Plaintiff or his work.

Plaintiffs allege claims against EEA pursuant to Labor Law sections 200 and 241(6). In his bill of particulars, Plaintiff states the basis for his 200 claim against EEA is that EEA's employees had notice of the fact that Plaintiff did not have a safe means of egress from the tank [*8]as the ladder he was provided did not reach the floor of the tank, and that EEA failed to monitor the Plaintiff.

Plaintiff also alleged claims against EEA pursuant to Labor Law 241(6), alleging a violation of section 23-1.7(g) of the Industrial Code, which incorporates by reference Rule 12 Control of Air Contaminants, sections 12-1.9(a)(2) and (c)(1).

In his complaint, Plaintiff alleged that EEA was hired by SKANSKA to assist in the construction, demolition and cleaning operations at the facility where Plaintiff's accident occurred, and that the EEA was delegated authority over the safety of the workers and therefore it is liable for Plaintiff's injuries. Mike Nealis worked for EEA and was the "confined space supervisor" at the time of Plaintiff's accident. His duties included monitoring the air inside the tank from a position outside of the tank, and being a safety monitor for the Plaintiff if the Plaintiff required assistance from his position inside the tank.

Both Plaintiff and CITY/SKANSKA oppose EEA's motion.

ARGUMENTS

EEA argues it cannot be held liable to Plaintiff pursuant to Labor Law 200 as EEA's employee, Mike Nealis, did not supervise or control Plaintiff's work, nor did he have actual or constructive notice of any unsafe condition on the job site. EEA states at no time was contractually responsible for site safety nor was it granted such authority.

In support of its motion, EEA cites Nealis' deposition that he maintained visual contact with the Plaintiff, and that he could communicate with Plaintiff by voice. EEA also relies on the affidavit of Martin J. Barry, its expert engineer who states that Nealis was able to make visual and voice contact with the Plaintiff.

EEA also argues it cannot be held liable to Plaintiff pursuant to Labor Law 241(6) as there is no evidence that EEA failed to fulfill its duties pursuant to Industrial Code section 12 NYCRR 23-1.7.

Plaintiff argues that EEA was hired by and was an agent of SKANSKA. EEA was to provide hazardous air monitoring for confined spaces in the digester tanks, and the duty to monitor Plaintiff was delegated to Mike Nealis of EEA. Plaintiff argues that Mike Nealis did not ensure effective communication with the Plaintiff, and was not at the winch at the time of the accident, which constitutes a breach of EEA's duty to ensure Plaintiff's safety.

Plaintiff further argues that as the statutory agent of the CITY/SKANSKA, EEA may be statutorily liable for the violation of 12 NYCRR 23-1.7(f), 12 NYCRR 23-1.7(g) and 12 NYCRR 12.1-9.

CITY/SKANSKA argues that there is conflicting testimony between Nealis and Sellick and therefore questions of fact remain as to whether Nealis was negligent in failing to be available to respond to the Plaintiff's emergency.

ANALYSIS

Labor Law 241(6)

While EEA was neither the general contractor nor the owner, it can be held liable to the plaintiff pursuant to Labor Law § 241(6) if it had the authority to control the activity which led to the plaintiff's injury. Lopes v Interstate Concrete, Inc., 293 AD2d 579, 741 NYS2d 43 (2d Dept 2002).

Plaintiff alleges that EEA violated 12 NYCRR 23-1.7(g) which applies to "unventilated confined areas" such as tanks, and requires air testing of a tank, and also provides that such areas shall be subject to Industrial Code Rule 12. Plaintiffs' claim here is not that the air was not [*9]tested, but rather that several requirements of Part 12 of the Industrial Code were not met.

As discussed more fully above, subsection (a)(2) of 12 NYCRR 12-1.9 requires that when a worker is in a confined space there shall be a safety monitor and at least one other person in addition to the required safety monitor ready to render immediate assistance in an emergency when alerted.

Further, subsection (c) of section 12-1.9 requires that the safety monitor shall be stationed at the access opening of the confined space, shall maintain visual contact and be able to communicate verbally with the worker and have continuous knowledge of the activities and wellbeing of the worker in the confined space. It also requires that the safety monitor be able to summon assistance and assist in the extraction of the worker from the confined space if necessary in an emergency.

Nealis was the safety monitor at the time of Plaintiff's accident, since Sellick had gone down to the base of the tank to open the hatch for Plaintiff. He admits that he could neither see nor hear Plaintiff when Plaintiff required assistance after being trapped by the falling sludge. As the monitor, he had an obligation pursuant to Industrial Code section 12-1.9 to maintain visual contact with Plaintiff and have continuous knowledge of the Plaintiff's activities at all times. Since Nealis admits he could not see the Plaintiff and did not see the sludge pile engulf the Plaintiff, and since Nealis did not hear Plaintiff when he called out for help and shook his cable, EEA has failed to demonstrate that his failure to properly monitor did not violate 12 NYCRR 12-1.9 (a)(2) and (c) and therefore EEA is not entitled to summary judgment dismissing Plaintiff's 241(6) claim against it.

Labor Law 200

Section 200(1) of the Labor Law codifies an owner's or general contractor's common-law duty of care to provide construction site workers with a safe place to work. Claims for personal injury under section 200 and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed. Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it. Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work. Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 950 NYS2d 35 (1st Dept 2012).

Plaintiff states that he called for help and shook the cable which was attached to his harness to alert the person at the top of the tank that he needed help. Despite claiming he maintained visual contact with the Plaintiff, Nealis admitted that in fact he could not see Plaintiff, that he did not have a radio, and he did not hear Plaintiff's cries for help. Further, EEAs Engineer, Barry, does not explain how Nealis could maintain visual contract when he could not see the Plaintiff.

Had Nealis been able to see or hear Plaintiff, he would have been able to engage the winch and pull Plaintiff off of the floor of the tank before he had to try to escape through the hatch.

A prerequisite for liability under Labor Law § 200 is that the party charged with the responsibility to provide a safe work place also have the authority to control the activity producing the injury. Nealis was supposed to be monitoring the Plaintiff's activities at the time of Plaintiff's accident and winch him out of the tank if necessary. Plaintiff relied on the monitor [*10]at the top of the tank winching him up if necessary. Nealis' failure to do so was a substantial factor in producing Plaintiff's injuries.

Since there is a question as to whether Nealis was negligent in the performance of his duties of monitoring the Plaintiff while Plaintiff was in the tank, EEA is not entitled to summary judgment dismissing the Labor Law 200 claim against him.

EEA's motion to dismiss cross-claims

EEA moved for summary judgment and to dismiss all cross claims against it by Synagro and the SKANSKA Defendants for contribution, common law indemnification, contractual indemnification and failure to procure insurance, but it did not make any argument or provide any evidence in support of that part of its motion seeking dismissal of the cross claims. Therefore, EEA is not entitled to dismissal of the cross claims alleged against Synagro or SKANSKA.

CITY/SKANSKA's motion for summary judgment on Plaintiff's 200 claim

The CITY/SKANSKA Defendants move for summary judgment dismissing the Labor Law 200/common law negligence claim against Defendant CITY of NEW YORK.

ARGUMENTS

Defendant CITY argues that although it owned the facility where the accident took place, it had no notice of any defective condition related to the sludge removal, nor was it involved in sludge removal process at any time. Defendant CITY states it never controlled, directed or supervised Plaintiff's work or any worker in the sludge removal process.

Plaintiffs oppose the dismissal of the 200 claim against Defendant CITY. They state that there are questions of fact as to whether the CITY had a presence on the job site with authority to stop work if it saw anything unsafe.

ANALYSIS

To establish liability for common-law negligence or violation of Labor Law § 200, the plaintiff must establish that the defendant in issue had authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition. General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law § 200. Further, the authority to review safety at the site is insufficient if there is no evidence that the defendant actually controlled the manner in which the work was performed. Perri v Gilbert Johnson Enterprises, Ltd., 14 AD3d 681, 790 NYS2d 25 (2nd Dept 2005).

Nat Federici is an "accountable manager" for the City's Department of Environmental Protection, ("DEP"), and was working on the project at the time of Plaintiff's accident. In his deposition, he testified that he was on site three to four times a week, and that his duties included ensuring the contractor was adhering to the specifications of the contract work and performing periodic site walk-throughs. He attested that there was another employee to be onsite on a daily basis for the DEP, who would conduct daily walk throughs. Federici testified that the DEP had the authority to stop work if they perceived there was a dangerous condition. Federici also stated that there was no DEP employee who was specifically assigned to monitor activities related to the removal of sludge from the digester tanks.

While Plaintiffs demonstrate that DEP's had a presence on site was able to stop unsafe work it observed, Plaintiffs fail to show that the CITY actually controlled the manner in which Plaintiff's work was performed. They do not show that the CITY had notice of any unsafe condition involving the sludge removal, nor do they state that the CITY had control over the [*11]means and methods of Plaintiff's work. While the CITY did have authority to stop work if it saw a condition it deemed unsafe, general authority to oversee the work and oversee safety is insufficient to constitute a violation of Labor Law 200. Perri v Gilbert Johnson Enterprises, Ltd., 14 AD3d 681, 790 NYS2d 25 (2nd Dept 2005).

Since the Plaintiff has not shown the CITY actually controlled the manner in which the work which gave rise to Plaintiff's accident was performed, the CITY is entitled to dismissal of the Labor Law 200 and common law negligence claim against it. Rodriguez v Trades Const. Services Corp., 121 AD3d 962, 997 NYS2d 78 (2nd Dept 2014), Ferreira v City of New York, 85 AD3d 1103, 927 NYS2d 100 (2nd Dept 2011), Perri v Gilbert Johnson Enterprises, Ltd, 14 AD3d 681, 790 NYS2d 25 (2nd Dept 2005).

CITY's motion for summary judgment on its cross claims against EEA

The CITY also moved for summary judgment on its cross claim and third party claim against EEA for contractual indemnification and SKANSKA moved for an order that in the event that SKANSKA is found vicariously liable, that they are entitled to contractual indemnification from EEA for all liability except that percentage of negligence that may be attributed to SKANSKA.

The contract between SKANSKA and EEA includes an indemnification clause, Article XV, which in relevant provides

"[t]o the full extent permitted by law, [EEA] agrees to defend, indemnify and save harmless Contractor and Owner, as well as any other parties which Contractor is required under the Prime Contract to defend, indemnify and hold harmless from and against claim, cost, expense or liability caused by, arising out of, resulting from, or occurring in connection with the materials and services provided, whether or not caused in part by the active or passive negligence or other fault of a party indemnified hereunder; provided, however, Service Provider's duty hereunder shall not arise if such injury, sickness, disease, death, damage, or destruction is caused by the sole negligence of a party indemnified hereunder ".

ARGUMENTS

The CITY argues because Plaintiff's accident arose out of EEA's failure to properly monitor Plaintiff, which it says was part of EEA's duties, and because the CITY was free of any active fault, it is entitled to contractual indemnification from EEA.

EEA argues that it did not provide the ladder or any equipment involved in Plaintiff's accident and that Plaintiff's accident did not arise out of EEA's services under the contract which was only to provide air monitoring, and therefore the indemnification clause is not triggered.

ANALYSIS

As discussed above, Plaintiffs are entitled to summary judgment on their Labor Law 241(6) claim against the CITY/SKANSKA Defendants based, in part, upon the violation by EEA's Mike Nealis of Industrial Code 12 NYCRR 23-1.7(g). Nealis was acting as the confined space supervisor at the time of the accident and part of his duties included keeping in contact with the Plaintiff while he was in the tank. He failed to keep in contact with the Plaintiff and therefore was unable to winch Plaintiff out of the tank as he became trapped by the falling sludge. The CITY is vicariously liable because of NEALIS' actions, and the indemnification clause is not limited to negligent acts. Therefore, the CITY is entitled to contractual indemnification by EEA.

As discussed above, Plaintiff is entitled to summary judgment on its 241(6) claim against [*12]SKANSKA, and therefore SKANSKA is liable. It has not yet been determined whether SKANSKA or EEA was negligent. However, the indemnification clause of the contract does not condition indemnification on EEA being negligent. Therefore, SKANSKA is entitled to a conditional order that EEA is required to indemnify SKANSKA, except for the percentage of liability attributable to any negligence by SKANSKA.

The CITY also moved for summary judgment on its claim for common law indemnification against EEA and ELI.

As discussed above, ELI did not work on this project and all claims against ELI, including the CITY's cross-claims for indemnification, must be dismissed.

The CITY is not entitled to summary judgment against EEA for common law indemnification because while EEA has been found to have violated the Industrial Code in failing to monitor the Plaintiff, there has not been a determination as to EEA's negligence.

Failure to Procure Insurance

The CITY/SKANSKA also moved for summary judgment against EEA on their claim of breach of contract for failure to procure insurance.

The CITY/SKANSKA allege that the Service Provider Agreement with EEA required EEA to name the Contractor and Owner as additional insureds. Thomas Noss, Esq. alleges in his affirmation that EEA's insurance providers have not agreed to provide coverage to the CITY/SKANSKA and that EEA did not procure insurance. However, the CITY/SKANSKA have not provided any affidavit or other proof that the carrier denied them coverage or that no policy, in fact, was obtained.

In response to the CITY/SKANSKA's motion, EEA annexes as Exhibit E an endorsement page which amends policy number 07PKG01848, stating that the policy covers the as additional insureds pursuant to a written contract, but does not name the policy holder nor does it specify the additional insureds to which the coverage applies.

Since the burden of proof on summary judgment is that of the CITY/SKANSKA, and because they failed to show by any admissible evidence that EEA did not procure insurance, the CITY/SKANSKA have not shifted the burden to EEA to show it procured insurance and therefore they are not entitled to summary judgment on their claim for failure to procure insurance.

The CITY also moved for summary judgment for an order for breach of contract for failure to procure insurance against HAZEN SAWYER.

Article 14 of the contract between the CITY and HAZEN SAWYER provided that HAZEN SAWYER would name the CITY as an additional insured in its commercial general liability policy.

The CITY alleges HAZEN SAWYER failed to procure insurance, but Carmine Marra, who was deposed on behalf of HAZEN SAWYER, stated that the CITY was named as an additional insured on the policies obtained by HAZEN SAWYER.

However, since the CITY has failed to provide any evidence that HAZEN SAWYER did not procure insurance, the CITY has not shifted the burden to HAZEN SAWYER and therefore the CITY is not entitled to summary judgment on its claim against HAZEN SAWYER for breach of contract for failure to procure insurance.

Contractual Indemnification against HAZEN SAWYER

The CITY also moved for summary judgment on its claim against HAZEN SAWYER for contractual indemnification. The CITY contracted with HAZEN SAWYER to provide [*13]construction management services, including resident engineering inspection of construction required in connection with the actual construction of the project, as well as determining whether the construction conformed to the plans, specifications and requirements.

Article 15 of the contract between the CITY and HAZEN SAWYER provides:

The Engineer shall be liable to and hereby agrees to indemnify and hold harmless the Commissioner and the City and each officer, agent and employee of the City from any and all claims and judgments against any of them, for damages and from costs and expenses to which the City and its respective officers, agents, and employees may be subjected, or which they may suffer or incur by reason of any loss, property damage, bodily injury, or wrongful death, resulting from the negligence, carelessness or other act or the Engineer or anyone employed by the Engineer, in the performance of this Agreement, or from negligent failure to comply with any of the provisions of this Agreement, or of law.

ARGUMENTS

The CITY argues it is entitled to contractual indemnification based upon the Plaintiff's testimony attesting that he told "Brian", a safety representative of HAZEN SAWYER, that the ladder was too short to reach the bottom of the tank. Thomas Noss, Esq. states in his affirmation that the Brian Alford did not advise the CITY of the condition, and therefore is entitled to be indemnified under the contract.

ANALYSIS

Plaintiff stated in his deposition that he complained to "Brian" a few times about the ladder on tank 14 not reaching the floor, but he could not recall when, or how many days before the accident.

The incident report prepared by HAZEN SAWYER states that Brian Alford, a safety representative of HAZEN SAWYER, was questioned by OSHA after the accident and denied knowing there was an issue in tank 14, where the accident occurred. According to the report, Alford had known of issues of ladders not reaching the bottom of the tank in other tanks, and that the issues had been resolved, but that he had no knowledge that the ladder did not reach the bottom of the tank where Plaintiff was injured. There is no affidavit or deposition testimony of Brian Alford.

Aside from the questions as to whether Brain Alford was told about the ladder in Tank 14 not reaching the floor of the tank, the attorney's affirmation that no one from HAZEN SAWYER told the CITY about the ladder not reaching the bottom of the tank is not competent evidence that HAZEN SAWYER did not notify the CITY of the condition. Therefore, based upon the evidence presented, the CITY is not entitled to summary judgment against HAZEN SAWYER on its claim for contractual indemnification at this time.

HAZEN SAWYER's cross motion to dismiss the fourth party action against it and for indemnification from SKANSKA

HAZEN SAWYER's motion is untimely and is not a proper cross motion and therefore is denied.

HAZEN SAWYER filed what it denominated a cross motion to the March 25, 2016 motion by the CITY against HAZEN SAWYER. The CITY/SKANSKA argue that the cross motion, dated May 23, 2016, is untimely under Brill v City of New York, 2 NY3d 648, 653 [2004].

HAZEN SAWYER argues that its motion is timely as a cross motion because it seeks [*14]relief under the contract between the CITY and SKANSKA. However, the CITY's motion seeks relief under its contract with HAZEN SAWYER. HAZEN SAWYER's purported cross motion seeks summary judgment against SKANSA for contractual indemnification pursuant to SKANSKA contract with the CITY, as an agent of the CITY. SKANSKA did not seek relief against HAZEN SAWYER in the underlying motion.

Since the relief sought in the cross motion was not "nearly identical" to the relief sought in the underlying motion and is based on a different contract, it is untimely and will not be considered. Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 793 NYS2d 176 (2nd Dept 2005).

WHEREFORE, that part of Plaintiffs' motion to amend their complaint is granted to the extent of permitting them to add a claim pursuant to Labor Law 240(1); that part of Plaintiffs' motion seeking summary judgment on its claim pursuant to Labor Law 240(1) against Defendants CITY/SKANSKA is denied as premature, that part of Plaintiff's motion seeking summary judgment on their claim against Defendants CITY/ SKANSKA pursuant to Labor Law 241(6) is granted, ELI's motion to dismiss all of the claims and cross claims against it is granted, that part of EEA's motion to dismiss the claim pursuant to Labor Law 241(6) against it is denied, that part of EEA's motion to dismiss the claim pursuant to Labor Law 200 is denied, that part of EEA's motion seeking dismissal of Synagro's cross claims against it is denied, that part of EEA's motion seeking dismissal of Defendants CITY/SKANSKA's cross claims against it is denied, Defendant CITY's motion seeking dismissal of the claim pursuant to Labor Law 200 against the CITY is granted, that part of Defendant CITY's motion seeking summary judgment on its cross-claim for contractual indemnification against EEA is granted, that part of Defendant SKANSKA's motion seeking a conditional order for contractual indemnification against EEA is granted, that part of the CITY's motion seeking common law indemnification against ELI is denied, that part of the CITY's motion seeking common law indemnification against EEA is denied, that part of Defendant CITY's motion for summary judgment against EEA for breach of contract for failure to procure insurance is denied, that part of the CITY's motion for summary judgment against HAZEN SAWYER for contractual indemnification is denied, that part of the CITY's motion for summary judgment on their claims for breach of contract against HAZEN SAWYER for failure to procure insurance is denied, and HAZEN SAWYER's cross motion for contractual indemnification against SKANSKA is denied as untimely, and it is hereby,

ORDERED that Plaintiffs may amend their complaint to add a claim pursuant to Labor Law 240(1), and it is further

ORDERED that the Note of Issue has been stricken and that further depositions must be held, and it is further

ORDERED that Plaintiff is granted summary judgment as to liability against Defendants CITY/SKANSKA pursuant to Labor Law 241(6), and it is further

ORDERED that all claims and cross claims against ELI are dismissed, and it is further

ORDERED that Plaintiffs' claims pursuant to Labor Law 200 and common law negligence are dismissed against Defendant CITY, and it is further

ORDERED that the CITY is granted summary judgment as to liability against EEA for contractual indemnification, and it is further

ORDERED that SKANSKA is granted summary judgment that SKANSKA is entitled to indemnification from EEA for all liability for Plaintiff's injuries except for that percentage of liability attributable to any negligence found to be attributable to SKANSKA.

This shall constitute the decision and order of this court.

Dated: February 23, 2017

Hon. Wayne P. Saitta

JSC