Puchalski v 4212 28ST LLC

[*1] Puchalski v 4212 28ST LLC 2020 NY Slip Op 51463(U) Decided on December 9, 2020 Supreme Court, Kings County Landicino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2020
Supreme Court, Kings County

Wieslaw Puchalski, Plaintiff,

against

4212 28ST LLC, 28ST CON LLC, J. Petrocelli Contracting, Inc. and Construction Realty Safety Group, Inc., Defendants.



4212 28ST LLC, 28ST CON LLC and J. Petrocelli Contracting, Inc.,Third-Party Plaintiffs,

against

Crestwood Mechanical Co.,Third-Party Defendant.



519091/17
Carl J. Landicino, J.

The following numbered e-filed papers read on this motion:

Papers Numbered

Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 71-87, 88-102, 103-118, 119-136

Opposing Affidavits (Affirmations) 139-143, 144-158, 159-162, 163-169, 170-177, 178-181

Reply Affidavits (Affirmations) 183-185,187-190, 192-195

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, defendants/third-party plaintiffs 4212 28ST LLC, 28ST CON LLC and J. Petrocelli Contracting, Inc. (Petrocelli) move (motion sequence no. 2), pursuant to CPLR §§ 3211(a)(1) and 3212, for an order: (1) granting defendants summary judgment dismissing plaintiff Wieslaw Puchalski's (plaintiff) complaint in its entirety as asserted against them; (2) granting summary judgment in favor of 4212 28ST LLC, 28ST CON LLC and Petrocelli on their third-party claims for contractual indemnification and breach of contract for [*2]failure to procure insurance against third-party defendant Crestwood Mechanical Co. (Crestwood); and (3) dismissing any and all cross claims by defendant Construction Realty Safety Group, Inc. (CR Safety), as well as any and all counterclaims by Crestwood. Plaintiff moves (motion sequence no. 3) for an order, pursuant to CPLR 3212, granting him partial summary judgment as to liability under his Labor Law § 240 (1) claim and Labor Law § 241 (6) claim as based on Industrial Code § 23-1.21(b)(3)(iv) against the defendants. Crestwood moves (motion sequence no. 4) for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint in its entirety. CR Safety moves (motion sequence no. 5) for an order, pursuant to CPLR 3211 (a)(1) and 3212, granting summary judgment dismissing plaintiff's complaint in its entirety as against it, as well as all cross-claims by 4212 28ST LLC, 28 ST CON LLC and Petrocelli, and all counterclaims by Crestwood.

Factual Background

This is an action to recover monetary damages for personal injuries allegedly sustained by plaintiff on August 16, 2017, while he was performing work as a plumber at premises located at 42-12 28th Street, Long Island City, New York. 4212 28ST LLC was apparently the owner of the premises, which was undergoing the construction of a high-rise residential apartment building. 28ST CON LLC served as the general contractor on the site and, at some point before the accident occurred, it hired Petrocelli to serve as the construction manager to oversee the construction project. Pursuant to a contract dated March 26, 2014, 4212 28ST LLC and 28ST CON LLC hired Crestwood, a plumbing subcontractor. CR Safety was also retained to work as a site safety consultant for the site. At the time of the accident, the plaintiff was employed by Crestwood as a plumber mechanic, and had been working at this location for approximately two (2) years before the date of his accident.

During his deposition, the plaintiff testified that his Crestwood supervisor at the site was Andrzej Stasiewicz (Stasiewicz), and Slawomir Morawski (Morawski) and Jacek ("Jack") were his Crestwood foremen. Plaintiff receivesd all of his instructions from them as to the work he was to perform on a day-to-day basis, and was provided with all the tools and equipment needed to perform his work from Crestwood. On the day of the accident, plaintiff was assigned to work on the 47th floor with his co-worker Salla Nimaga (hereinafter, Nimaga). Although they were on the same floor, plaintiff worked in the refuse room and Nimaga performed work in the hallway next to that room. Plaintiff testified that he was drilling holes in the wall and installing pipe supports at the time of the accident. The pipes were located up by the ceiling next to the wall, above where a drop ceiling would have been put in. In order to reach the area, plaintiff used a 6-foot A-frame ladder. Just before the accident occurred, plaintiff was standing on either the first or second rung from the top of the ladder, while attempting to install thread rod through the wall. Plaintiff testified that the ladder then moved and/or tilted, at which point the legs of the ladder closed in up to the plaintiff's groin, causing him and the ladder to fall backwards into a door. The ladder fell on top of the plaintiff. Plaintiff's co-worker, Nimaga, who was in the hallway, heard the accident and immediately came to plaintiff's aid and helped him to the shanty. All of the ladders on the job site belonged to Crestwood.

Plaintiff subsequently commenced the within action on or about October 3, 2017, against 4212 28ST LLC, 28ST CON LLC, Petrocelli and CR Safety seeking to recover for personal injuries allegedly sustained as a result of the accident. Plaintiff alleges violations of Labor Law §§ 200, 240 (1) and 241 (6) and common-law negligence. On or about October 23, 2017, 4212 28ST LLC, 28ST CON LLC and Petrocelli joined this action by filing their Verified Answers. CR Safety served its Verified Answer on or about November 13, 2017. 4212 28ST LLC, 28ST CON LLC and Petrocelli subsequently commenced a third-party action against plaintiff's employer, Crestwood, which joined issue with the service of its Verified Answer with counterclaims on or about January 22, 2019. On January 25, 2019, 4212 28ST LLC, 28ST CON LLC and Petrocelli served a Verified Answer to Crestwood's counterclaims. The parties engaged in discovery and on February 28, 2020, plaintiff filed the Note of Issue with the court. The following motions ensued.

Discussion

4212 28ST LLC, 28ST CON LLC and Petrocelli (collectively, "defendants/third-party plaintiffs") move for summary judgment dismissing plaintiff's Labor Law §§ 200, 240 (1), 241 (6) and common-law negligence claims as against them. CR Safety moves for summary judgment dismissing plaintiff's complaint as against it on the ground it is not a proper Labor Law defendant. Crestwood also seeks summary judgment dismissing plaintiff's complaint. Plaintiff opposes the foregoing motions and seeks partial summary judgment as to liability in his favor under Labor Law § 240 (1) and Labor Law § 241(6) as based upon Industrial Code § 23-1.21(b)(3)(iv) against all of the direct defendants.

It is well settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zapata v Buitriago, 107 AD3d 977 [2d Dept 2013]). Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the papers in opposition (see Alvarez v Prospect Hospital, 68 NY2d at 324; see also, Smalls v AJI Industries. Inc., 10 NY3d 733, 735 [2008]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

CR Safety's Motion

The court will first address that branch of CR Safety's motion seeking to dismiss plaintiff's complaint on the ground that it is not a proper Labor Law defendant. In support of its motion, CR Safety contends that it was neither the owner, contractor nor an agent thereof in that it had no control over the work plaintiff was performing and, therefore, owed no duty of care to the plaintiff. CR Safety further contends that it merely monitored safety regulations at the work site, and was not required to direct, supervise or control any of the actual construction work that was being performed by other trades onsite. As such, CR Safety argues that it cannot be considered an "agent" of the contractor for purposes of applying the Labor Law and, therefore, is not a proper statutory Labor Law defendant. In support of this contention, CR Safety proffers the deposition testimony of Joseph Pagano (Pagano), its site safety manager who was at the site during the relevant time period. Pagano testified that he typically arrived at the site in the morning, about 6 a.m., and would walk around to check certain conditions at the site. He also created a daily log which included the names of the trades working onsite and a general description of the work they were performing. Pagano explained that his duties as site safety manager included documenting any safety violations or concerns, as well as any accidents that occurred. He conducted weekly safety meetings with the various trades foremen, but claimed that he never had meetings where he instructed the workers directly. Pagano further testified that if he noticed any unsafe condition or practice during one of his walkthroughs, he had the authority to direct the workers to remedy that situation. However, he did not have the authority to stop the work if the unsafe condition was not remedied. Instead, Pagano would report the issue/concern to the trade foreman and superintendent. Pagano testified that he only advised workers as to safety concerns, and that the means and methods of their work were up to the trades themselves.

Blaise Swiatkowski (Swiatkowski), a Petrocelli superintendent, testified that Petrocelli had multiple superintendents on site daily who were responsible for coordinating the various trades/subcontractors, and ensuring that the plans were properly followed. He testified that CR Safety was responsible for notifying Petrocelli of any safety concerns related to the trades at the work site, and that Petrocelli's superintendents were responsible for notifying the foreman for the specific trade(s) to correct issues that arose. He further testified that CR Safety could only stop work in case of imminent danger, otherwise they were to report the incident or safety violation to a Petrocelli superintendent.

In opposition, plaintiff argues that CR Safety acted as an "agent" of the owner and [*3]general contractor within the meaning of the Labor Law. In support of this contention, plaintiff points to Pagano's testimony that he advised the trades to work safely in compliance with OSHA requirements, and with the proper personal protective equipment (PPE). Plaintiff also refers to the deposition testimony of Crestwood's representative, Andrzej Stasiewicz, wherein he stated that Pagano always held "tool talks" during which he gave instructions on how to use the tools properly, including the ladders and scaffolds on the job site.

Claims under Labor Law §§ 240 (1), 241 (6) and 200 may be brought only against owners, contractors and their agents (see Labor Law § 240 [1] [applying to "[a]ll contractors and owners and their agents"]; § 241 [sub-provisions applying to "[a]ll contractors and owners and their agents"]; Hill v Mid Island Steel Corp., 164 AD3d 1425, 1426, [2d Dept 2018]; Merino v Cont'l Towers Condo., 159 AD3d 471, 472 [1st Dept 2018]). "A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured" (Diaz v Trevisani, 164 AD3d 750, 754 [2d Dept 2018 [quotations omitted]; see Linkowski v City of New York, 33 AD3d 971, 974—975 [2d Dept 2006]; see also Walls v Turner Constr. Co., 4 NY3d 861, 863—864 [2005]; Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]). "To impose . . . liability [under the Labor Law], the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition" (Linkowski v City of New York, 33 AD3d at 975; see Rodriguez v Mendlovits, 153 AD3d 566, 568 [2d Dept 2017]; Samaroo v Patmos Fifth Real Estate, Inc., 102 AD3d 944, 946 [2d Dept 2013]).

Here, CR Safety has made a prima facie showing of its entitlement to judgment as a matter of law dismissing the Labor Law §§ 240 (1) and 241 (6) causes of action insofar as asserted against it. CR Safety has submitted evidence demonstrating that it did not have the requisite authority to control or supervise the means or methods of plaintiff's work or that of his employer, Crestwood. Specifically, CR Safety has established that its role at the worksite was to ensure compliance with safety programs and protocols during the course of the project. Notably, CR Safety's site safety manager, Pagano, testified that CR Safety was authorized only to review and monitor safety programs, hold safety (tool box) meetings, make recommendations and report back to the general contractor and construction manager. The plaintiff himself testified that he only received instructions as to his work from his Crestwood supervisors. In addition, Crestwood's representative, Stasiewicz, testified that Crestwood's foreman and workers were all responsible for inspecting their equipment (including ladders) prior to using it, and that Crestwood's foremen were the only ones who directed its employees on how to perform their work. Based upon the foregoing, CR Safety has made a prima facie showing that it had no control or supervisory authority over the plaintiff's work and, therefore, was not a "statutory agent" within the meaning of the Labor Law (see Lamar v Hill Int'l, Inc., 153 AD3d 685, 686 [2d Dept 2017] [defendants not "statutory agents" where, inter alia, they could only make recommendations for corrective actions to unsafe practice and "stop work only in the event of an emergency"]; Marquez v L & M Dev. Partners, Inc., 141 AD3d 694, 697 [2d Dept 2016]). In opposition, the plaintiff has failed to raise a triable issue of fact. Accordingly, plaintiff's Labor Law §§ 240 (1) and 241 (6) claims are dismissed as against CR Safety.

Plaintiff's Labor Law § 200 claim against CR Safety must also be dismissed. Labor Law § 200 is a codification of the common-law duty imposed on owners, contractors, and their agents to provide workers with a safe place to work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Annicaro v Corporate Suites, Inc., 98 AD3d 542, 544 [2d Dept 2012]; Linkowski v City of New York, 33 AD3d 971, 975 [2d Dept 2006]). "To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have 'authority to exercise supervision and control over the work'" (Rojas v Schwartz, 74 AD3d 1046, 1046 [2d Dept 2010], quoting Gallello v MARJ Distribs., Inc., 50 AD3d 734, 735 [2d Dept 2008]). Inasmuch as CR Safety is not an owner or general contractor and did not possess any authority to supervise and control the work area, it cannot be held liable under Labor Law § 200 (see Thomas v Benton, 112 AD3d 812, 812-813 [2d Dept 2013]; Marquez v L & M [*4]Dev. Partners, Inc., 141 AD3d at 698—99). Contrary to plaintiff's contention, CR Safety's limited authority to stop the contractors' work is insufficient to impose liability under Labor Law § 200 (see Austin v Consolidated Edison, Inc., 79 AD3d 682, 684 [2d Dept 2010]; Gasques v State of New York, 59 AD3d 666, 668 [2d Dept 2009], affd. on other grounds, 15 NY3d 869 [2010]).

Plaintiff's common-law negligence claim is also dismissed as against CR Safety. A subcontractor "may be held liable for negligence where the work it performed created the condition that caused the plaintiff's injury even if it did not possess any authority to supervise and control the plaintiff's work or work area" (Poracki v St. Mary's R.C. Church, 82 AD3d 1192, 1195 [2d Dept 2011] [internal quotation marks omitted]; see Erickson v Cross Ready Mix, Inc., 75 AD3d 519, 523 [2d Dept 2010]). An award of summary judgment in favor of a subcontractor on a negligence or Labor Law § 200 cause of action is improper "where the 'evidence raise[s] a triable issue of fact as to whether [the subcontractor's] employee created an unreasonable risk of harm that was the proximate cause of the injured plaintiff's injuries'" (Erickson v Cross Ready Mix, Inc., 75 AD3d at 523, quoting Marano v Commander Elec., Inc., 12 AD3d 571, 572—573 [2d Dept 2004]).

Here, CR Safety has demonstrated, prima facie, that it did not create the condition that allegedly caused the plaintiff's injury in that it did not supply the ladder to the plaintiff (see Sledge v S.M.S. Gen. Contractors, Inc., 151 AD3d 782, 783 [2d Dept 2017]; Palacios v 29th St. Apts, LLC, 110 AD3d 698, 699 [2d Dept 2013]). It is undisputed that the subject ladder was supplied by Crestwood, and that CR Safety had no involvement with the ladder or plaintiff's usage of it at the time of the accident. The plaintiff has failed to raise a triable issue of fact in opposition. Accordingly, plaintiff's common-law negligence claim is also dismissed as against CR Safety.

Labor Law § 240 (1) Claim

Plaintiff seeks partial summary judgment as to liability on his Labor Law § 240 (1) claim against defendants. In light of this court's determination dismissing plaintiff's complaint as against CR Safety, plaintiff's motion will be addressed as it pertains to the remaining defendants/third-party plaintiffs, 4212 28ST LLC, 28ST CON LLC and Petrocelli. Defendants/third-party plaintiffs oppose plaintiff's motion and seek summary judgment dismissing plaintiff's Labor Law § 240 (1) claim. Crestwood also separately moves for summary judgment dismissing said claim.

In support of his motion, plaintiff, relying primarily on his deposition testimony, as well as his sworn affidavit (NYSCEF Doc. Nos. 95 & 99), contends he was caused to perform construction work at an elevated height, and that the ladder he used was defective in that it failed to afford him proper protection when it moved/tilted, thereby causing him and the ladder to fall. Plaintiff submits an expert affidavit by Herman Silverberg, a professional engineer (NYSCEF Doc. No. 100). Mr. Silverberg avers that he inspected the subject ladder and found that the rear left leg is not level with the floor surface in that there is a 3/8-of an inch gap between the floor and bottom surface of the pad when the ladder was in an opened position. Mr. Silverberg's affidavit includes photographs of the ladder taken on the day of his inspection depicting his measurement of the gap. He opines that "this defect causes the ladder to tilt toward the gap on the left side when a user's weight is shifted toward the left side of the step," which he concludes caused the plaintiff's accident. Mr. Silverberg further opines that the plaintiff should have been provided with scaffolding, such as a pipe scaffold or Baker scaffold, which would have provided him with proper protection. Based upon the foregoing, the plaintiff argues that he has made a prima facie showing that the defendants/third-party plaintiffs violated Labor Law § 240 (1), which was a proximate cause of his injuries.

In opposition to plaintiff's motion, and in support of their motions seeking to dismiss plaintiff's Labor Law § 240 (1) claim, defendants/third-party plaintiffs and Crestwood argue that the plaintiff's accident was the result of the usual and ordinary risk of the work he was performing on site and, thus, unrelated to any elevation related risk which brought about the need for the ladder. In this regard, defendants/third-party plaintiffs and Crestwood contend the [*5]accident occurred when the plaintiff lost his balance as he stepped on a piece of thread rod/pipe that had fallen on the ladder, and as a result, the plaintiff's legs went in between the steps of the ladder up to his groin thereby causing him and the ladder to fall. Defendants/third-party plaintiffs and Crestwood further contend that the subject ladder was appropriate and adequate for the type of work plaintiff was performing, and that it was not defective in any way. In support of their contentions, they proffer a handwritten statement signed by the plaintiff, in which he describes how the accident occurred (NYSCEF Doc. No. 82). According to the statement, the plaintiff was standing on the second step from the top of the ladder performing pipe support work. As he was stepping down, his foot slipped on a piece of thread rod that happened to be on the step of the ladder, which caused him to lose his balance and fall. Defendants/third-party plaintiffs and Crestwood contend that the plaintiff's legs went in between the steps of the ladder up to his groin when he slipped on the thread rod, and that it was not until after he was in this position that he then fell backwards and pulled the ladder with him. Defendants/third-party plaintiffs and Crestwood, therefore, argue that the plaintiff's accident was solely due to the fact that he lost his balance, and was completely unrelated to any gravity related risk or defect in the ladder.

In addition, defendants/third-party plaintiffs and Crestwood rely upon the deposition testimony of Andrzej Stasiewicz, who is the Vice President of Crestwood and was the plaintiff's supervisor at the time of the accident. Stasiewicz testified that he and a Crestwood foreman, Morawski, visited with the plaintiff at his apartment the day after the accident in order to see how he was doing, and to get a statement as to how the accident occurred for reporting purposes (NYSCEF Doc. No. 80, Stasiewicz tr at 19). Stasiewicz further testified that the plaintiff asked him to write down the statement for him because he was unable to write due to his injured arm (id. at 21-22). Although he and the plaintiff both speak Polish, Stasiewicz directed that plaintiff give him his account of the accident in English because the statement had to go in a site safety report (id. at 22). Stasiewicz claimed that the plaintiff then told him that the accident occurred as he was cutting thread rod from the pipe support, and that as he was stepping down from the ladder, he stepped on a piece of thread rod and lost his balance (id. at 50-53). Stasiewicz testified that the plaintiff never mentioned that the ladder moved or that anything was wrong with it (id. at 29). Stasiewicz claimed that he wrote the plaintiff's statement in English, read it aloud to him, and then handed it to him for his review (id. at 21-23, 48). According to Stasiewicz, plaintiff then looked at all four pages, and raised no objections to what was written down before he signed all four pages (id. at 23-25, 48). In addition, Stasiewicz testified that the day after the accident occurred, he took the ladder, tagged it, and put it in his shop in the basement so no one else could use it (id. at 29). He further testified that he inspected the ladder and found "absolutely" nothing wrong with it (id.).

Defendants/third-party plaintiffs and Crestwood also proffer a handwritten statement by Nimaga, a Crestwood co-worker, who was working at the site on the date of the plaintiff's accident (NYSCEF Doc. No. 83, at page 170). They point out that Nimaga's statement is consistent with plaintiff's statement in that Nimaga confirmed that he was working with plaintiff on the 47th floor on the date of the accident. Although he did not see the accident, Nimaga claimed that the plaintiff told him there was a piece of a 3/8 inch rod on the step of the ladder which made him trip and lose his balance. Nimaga further stated that he was present when the plaintiff gave the same version of events to his foreman, Morawski.

In addition, defendants/third-party plaintiffs and Crestwood proffer the expert affidavit of Bernard P. Lorenz, P.E., in which he avers that he has reviewed the plaintiff's Bill of Particulars, deposition transcripts of the parties, photographs, as well as performed a physical inspection of the subject A-frame ladder (NYSCEF Doc. No. 85). Mr. Lorenz avers that upon his inspection, he found that the ladder's rubber feet were in good condition, and that when he opened the ladder to its full position and tested both spreaders, they properly locked into place with all four feet on the ground surface, and that the ladder was stable and secure. He further avers that he stood on the ladder, shook it, manipulated it and tested it for stability, and notes that the ladder did not wobble, twist or move. Mr. Lorenz concludes that the ladder was in good condition, safe, stable [*6]and proper for use without any defects or dangerous conditions. Defendants/third-party plaintiffs and Crestwood have also submitted copies of photographs taken by Mr. Lorenz during his inspection of the ladder (NYSCEF Doc. No. 143).

Mr. Lorenz also avers that he observed the plaintiff's expert (Mr. Silverberg) inspect the subject ladder, and opines that his inspection was incomplete and did not provide sufficient information to form any conclusions within a reasonable degree of certainty. In this regard, Mr. Lorenz avers that the plaintiff's expert never touched the ladder during his inspection; never attempted to properly position it on the ground surface, and never attempted to walk up and down the ladder. Instead, he claims Mr. Silverberg had someone else open the ladder, which was never properly positioned on the ground surface and, as such, one of the feet was not touching the ground. He further claims that Mr. Silverberg chose to leave the ladder improperly placed on an uneven sidewalk to manipulate his findings in concluding that the ladder was defective. In addition, defendants/third-party plaintiffs and Crestwood note that Mr. Silverberg failed to provide any measurements of the length of any of the four legs of the ladder to support his contention that the left rear leg was shorter than the other legs. They claim that he also failed to compare the condition of the pad (foot) of the ladder's left rear leg to that of the remaining feet. Thus, they argue that Mr. Silverberg's affidavit should be rejected and not considered by the court.

In response, plaintiff notes that Nimaga's statement and his (plaintiff's) purported statement are both unsworn and not in admissible form and, thus, should not be considered herein. Plaintiff contends it is undisputed that he did not personally write the statement, and particularly points out that it was written by his Crestwood supervisor, Stasiewicz, a party adverse to him in this action. Plaintiff avers in his sworn affidavit that he did not step on a thread rod, and does not recall stating that he did so to his supervisors when they came to his apartment (NYSCEF Doc. No. 164). He further avers that Stasiewicz had to read the statement to him because he could not read English. Plaintiff also claims that he was experiencing a lot of pain and while he knows he signed something, he is not sure it was the statement proffered by the parties. He further avers that his purported signature on the statement does not look exactly like his.

Plaintiff also submits a supplemental affidavit by Mr. Silverberg in which he disputes Lorenz's contention that his inspection of the ladder was incomplete (NYSCEF Doc. No. 166). Mr. Silverberg avers that he made a thorough hands-on inspection of the ladder, and reiterates his opinion that the ladder's left rear pad was worn down compared to the other three pads, which made the ladder unstable. Plaintiff also argues that defendants/third-party plaintiffs' expert affidavit by Mr. Lorenz should not be considered because it is conclusory, contains no measurements of the ladder, and fails to dispute Mr. Silverberg's finding, that the rear left leg of the ladder is not level with the floor and has a 3/8-of an inch gap between the floor and bottom surface.

In response, defendants/third-party plaintiffs and Crestwood maintain that plaintiff's signed statement, in which he described the accident as him slipping on a thread rod, is admissible evidence since he identified his signature on each page of the statement during his deposition (NYSCEF Doc. No. 78, Puchalski tr at 101 -104). Further, they note that the plaintiff admitted Stasiewicz read the statement back to him before he signed it because he could not read English. Defendants/third-party plaintiffs and Crestwood additionally note that the plaintiff also testified that he did not remember if he had stepped on a piece of thread rod before the accident occurred (id. at 118). In addition, they maintain there is absolutely no evidence that the ladder plaintiff was using was defective or inadequate for plaintiff's work. As Mr. Lorenz opined in his affidavit, they contend that the ladder was safe and appropriate for plaintiff's use, and was not the cause of his accident. Further, defendants/third-party plaintiffs and Crestwood note that the plaintiff admitted during his deposition that he noticed no problems with the ladder earlier that morning when he used it, and that he specifically had no issues/problems with the side braces (id. at 67). Defendants/third-party plaintiffs and Crestwood, therefore, argue that the ladder from [*7]which plaintiff fell was not defective, but instead constituted a proper and adequate safety device for the work he was performing.

Labor Law § 240 (1) provides, in pertinent part, that:

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

The statute "'imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites'" (Probst v 11 W. 42 Realty Invs., LLC, 106 AD3d 711, 711—12 [2d Dept 2013], quoting McCarthy v Turner Constr., Inc., 17 NY3d 369, 374 [2011]). "'To prevail on a cause of action alleging a violation of Labor Law § 240 (1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries'" (Gaspar v Pace Univ., 101 AD3d 1073, 1074 [2d Dept 2012], quoting Lopez—Dones v 601 W. Assoc., LLC, 98 AD3d 476, 479 [2d Dept 2012]). "There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries" (Karanikolas v Elias Taverna, LLC, 120 AD3d 552, 555 [2d Dept 2014]; see Artoglou v Gene Scappy Realty Corp., 57 AD3d 460, 461 [2d Dept 2008]). "The failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240 (1)" (Wasilewski v Museum of Modern Art, 260 AD2d 271 [1st Dept1999]). However, "[t]he mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided, and whether a particular safety device provided proper protection is generally a question of fact for a jury" (Lozada v St. Patrick's R C Church, 174 AD3d 879, 880—81 [2d Dept 2019]; see Loretta v Split Dev. Corp., 168 AD3d 823, 824[2d Dept 2019]; Yao Zong Wu v Zhen Jia Yang, 161 AD3d 813, 814 [2d Det 2018]; Karwowski v Grolier Club of City of NY, 144 AD3d 865, 866 [2d Dept 2016]; Hugo v Sarantakos, 108 AD3d 744, 744—45 [2d Dept 2013]; Esteves—Rivas v W2001Z/15CPW Realty, LLC, 104 AD3d 802, 803—804 [2d Dept 2013]). Indeed, where a plaintiff falls off the ladder because he or she lost his or her balance, and there is no evidence that the ladder from which the plaintiff fell was defective or inadequate, liability pursuant to Labor Law § 240 (1) does not attach (see Gaspar v Pace Univ., 101 AD3d at 1074; Chin—Sue v City of New York, 83 AD3d 643, 644 [2d Dept 2011]).

Based upon a review of the parties' submissions, the court finds that triable issues of fact exist as to how plaintiff's accident occurred (see Degen v Uniondale Union Free Sch. Dist., 114 AD3d 822 [2d Dept 2014]; Delahaye v Saint Anns School, 40 AD3d 679 [2d Dept 2007]), whether the ladder provided adequate protection and, if not, whether such failure proximately caused the plaintiff's injuries (see Loretta v Split Dev. Corp., 168 AD3d at 825; Karanikolas v Elias Taverna, LLC, 120 AD3d at 555 [triable issue of fact as to whether the ladder used by plaintiff was defective or inadequately secured precluded summary judgment on Labor Law § 240 (1) claim]; Gaspar v Pace Univ., 101 AD3d at 1074; Chin—Sue v City of New York, 83 AD3d at 644; see also Campos v 68 E. 86th St. Owners Corp., 117 AD3d 593, 594 [1st Dept 2014]). Although the plaintiff, through his deposition testimony and sworn affidavit, established that the ladder moved/tilted causing him and the ladder to fall, there is conflicting evidence as to whether the accident occurred in this manner.[FN1] Plaintiff's supervisor (Stasiewicz) testified that when he [*8]went to plaintiff's apartment the day after the incident, plaintiff told him that, while descending the ladder, he stepped on a thread rod and lost his balance and fell, and never mentioned that the ladder moved or that anything was wrong with it. Such testimony raises an issue of fact as to the manner in which the accident occurred (see Loretta v Split Dev. Corp., 168 AD3d at 825; Robinson v Goldman Sachs Headquarters, LLC, 95 AD3d 1096, 1098 [2d Dept 2012] [issues of fact precluded summary judgment on Labor Law § 240 (1) claim where defendants offered accident report indicating that plaintiff had previously stated, within two days after the accident, that he lost his footing or balance and fell off the ladder; report did not indicate that the foot of the ladder kicked out, that the ladder "walked the floor," or that the ladder fell over, as plaintiff later testified at his deposition]; Corchado v 5030 Broadway Properties, LLC, 103 AD3d 768, 769 [2d Dept 2013]; Chan v Bed Bath & Beyond, Inc., 284 AD2d 290, 290 [2d Dept 2001] [issue of fact precluded summary judgment in plaintiff's favor where his supervisor testified that on the following day the plaintiff told him during a telephone conversation that he slipped off of the ladder]).

Issues of fact also exist as to whether the ladder provided adequate protection. While plaintiff testified that the ladder moved and/or tilted just before he fell, Stasiewicz testified that he inspected the ladder the day after the accident and noticed that there was absolutely nothing wrong with it (see Santos v Condo 124 LLC, 161 AD3d 650, 654 [1st Dept 2018] [issue of fact as to whether scaffold was missing planks raised where two workers testified that immediately following the accident, there was nothing about the wooden planking that appeared out of the ordinary]). Plaintiff also testified that he looked over the ladder prior to using it and that nothing appeared wrong with it, and that he had used the ladder earlier that morning with no problems. In addition, the conflicting expert engineer affidavits proffered by the parties raise issues of fact as to whether the ladder provided adequate protection to the plaintiff (see Morera v New York City Transit Auth., 182 AD3d 509, 510 [1st Dept 2020] [plaintiff's motion for partial summary judgment on his Labor Law § 240 (1) claim denied where conflicting expert testimony raised issue of fact as to whether other adequate devices could have been provided]; Campos v 68 E. 86th St. Owners Corp., 117 AD3d at 594). Accordingly, in light of the forgoing issues of fact, plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240 (1) claim is denied, and those branches of the motions by defendants/third-party plaintiffs and Crestwood for summary judgment dismissing said claim are also denied.

Labor Law § 241 (6) Claim

Plaintiff also seeks partial summary judgment as to liability on his Labor Law § 241 (6) cause of action based upon Industrial Code § 23-1.21(b)(3)(iv). Defendants/third-party plaintiffs and Crestwood oppose this branch of his motion, and seek summary judgment dismissing plaintiff's Labor Law § 241 (6) claim based upon all alleged Industrial Code violations. Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers without regard to direction and control (see Romero v J & S Simcha, Inc., 39 AD3d 838 [2d Dept 2007]). In order to prevail under this section of the Labor Law, a plaintiff must establish that specific safety rules and regulations of the Industrial Code promulgated by the Commissioner of the Department of Labor were violated (see Ross v Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494 [1993]; Ares v State of New York, 80 NY2d 959 [1992]). The rule or regulation alleged to have been breached must be a specific, positive command and be applicable to the facts of the case (see Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 619 [2d Dept 2008]; Jicheng Liu v Sanford Tower Condominium, Inc., 35 AD3d 378, 379 [2d Dept 2006]).

Here, in plaintiff's bill of particulars, he alleged violations of Industrial Code §§ 23-1.7, 23-1.16, 23-1.21, 23-1.30, 23-1.31, 23-1.32, 23-2.1, 23-3.3 as predicates for his Labor Law § [*9]241(6) claim. In support of their motions to dismiss said claim, defendants/third-party plaintiffs and Crestwood argue that the various Industrial Code provisions alleged are either inapplicable as a matter of law, too general, or were not violated. In opposition, however, plaintiff has withdrawn his reliance on all of the above-referenced code provisions except § 23-1.21(b)(3)(iv).

Section 23-1.21(b)(3)(iv) provides that "[a]ll ladders shall be maintained in good condition. A ladder shall not be used if . . . it has any flaw or defect of material that may cause ladder failure." Plaintiff maintains that the ladder was defective and relies on the expert affidavit of Mr. Silverberg. As noted above, Mr. Silverberg affirms that he inspected the subject ladder, and found that it was defective in that the rear left leg was shorter than the other legs, causing the ladder to tilt and be unstable when standing toward the left side on the ladder step. In particular, upon observing the gap on the foot of the rear rail, he claims the two rear rails, which were placed at the same surface elevation, were not balanced as one rail pad had a gap between the surface thereby causing a vertical elevation differential from the surface that would cause the ladder to lean or tilt to that side. He opines that this defect was a proximate cause of the plaintiff's accident.

Defendants/third-party plaintiffs and Crestwood, however, argue that section 23-1.21(b)(3)(iv) was not violated since there is evidence in the record that the ladder was not defective. In support of this contention, defendants note that the plaintiff himself testified that he looked over the ladder before he used it and did not see anything wrong with it. Defendants additionally rely on an affidavit by their expert engineer, Mr. Lorenz, who inspected the ladder and concluded that it was in good condition and was proper for plaintiff's use without any defects or dangerous conditions. Mr. Lorenz stated that he physically attempted to manipulate the steps and associated braces, cross braces and all riveted connections on the ladder to check their stability, and noted that the ladder's rubber feet were in good condition. He concluded that the ladder had no defects and no unsafe conditions that would have caused it to move or wobble as alleged by the plaintiff, and that it was not the cause of plaintiff's accident.

Neither party has established, prima facie, entitlement to judgment as a matter of law as to plaintiff's Labor Law § 241 (6) claim (see Poalacin v Mall Properties, Inc., 155 AD3d 900, 907 [2 Dept 2017]). The conflicting affidavits from engineering experts addressing the issue of whether the ladder provided reasonable and adequate protection and safety to the plaintiff raise a triable issue of fact as to whether the defendants violated 12 NYCRR 23-21(b)(3)(iv) (see Torres v City of New York, 127 AD3d 1163, 1166 [2d Dept 2015]). Indeed, where the parties offer conflicting expert opinions, issues of credibility arise requiring jury resolution (Shu Ying Lee v Fenton, 116 AD3d 945 [2nd Dept 2014] citing Martin v Siegenfeld, 70 AD3d 786, 788 [2d Dept 2010]). In light of the foregoing, that branch of plaintiff's motion seeking partial summary judgment as to liability on his Labor Law § 241 (6) claim as based upon a violation of Industrial Code § 23-1.21(b)(3)(iv) is denied, and those branches of the motions by the defendants/third-party plaintiffs and Crestwood seeking to dismiss said claim are also denied.

Labor Law § 200/Common-law Negligence Claims

Defendants/third-party plaintiffs and Crestwood also seek summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims. Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide a safe place to work (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Cooper v State of New York, 72 AD3d 633, 635 [2d Dept 2010]). "Cases involving Labor Law § 200 fall into two broad categories, namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Torres v City of New York, 127 AD3d at 1165; see Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]).

Here, contrary to plaintiff's contention, his accident did not involve any dangerous or defective condition on the premises, but arose from the manner in which the plaintiff performed [*10]his work, and on equipment (a ladder) provided by his employer, Crestwood (see Sanders v Sanders-Morrow, 177 AD3d 920, 923 [2d Dept 2019]; Ortega v Puccia, 57 AD3d at 62 [where plaintiff fell from a scaffold, court held the allegedly defective scaffold should be viewed as a device involving the methods and means of the work, rather than a dangerous or defective premises condition; Chowdhury v Rodriguez, 57 AD3d 121, 129 [2d Dept 2008] ["the 'supervisory authority' standard governs defendants' liability for worksite injuries under Labor Law § 200, where the dangerous or defective equipment is provided by the plaintiff's employer rather than by the property owner"]; see also Melendez v 778 Park Avenue Building Corp., 153 AD3d 700, 702 [2d Dept 2017]).

"To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work" (Torres v City of New York, 127 AD3d at 1165 [internal quotation marks omitted]; see Forssell v Lerner, 101 AD3d 807, 808 [2d Dept 2012]). "A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed" (Ortega v Puccia,57 AD3d at 62). "[T]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence" (Austin v Consolidated Edison, Inc., 79 AD3d 682, 684 [2d Dept 2010] [internal quotation marks omitted]; see Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 959 [2d Dept 2013]; Allan v DHL Express [USA], Inc., 99 AD3d 828, 832 [2d Dept 2012]; Harrison v State of New York, 88 AD3d 951, 954 [2d Dept 2011]; Cambizaca v New York City Tr. Auth., 57 AD3d 701, 702 [2d Dept 2008]; Peay v New York City School Constr. Auth., 35 AD3d 566, 567 [2d Dept 2006]).

In the instant matter, the defendants/third-party plaintiffs have established, prima facie, that they lacked the authority to control the manner in which the plaintiff's work was performed, and there is no evidence that defendants exercised any control over the choices made by plaintiff's employer, Crestwood (see Dasilva v Nussdorf, 146 AD3d 859, 860 [2d Dept 2017]; Karanikolas v Elias Taverna, LLC, 120 AD3d at 555; Chowdhury v Rodriguez, 57 AD3d at 131-132). During his deposition, the plaintiff testified that he received all of his instructions from his Crestwood supervisors. He also testified that all of the tools and equipment, including the subject ladder, were provided by Crestwood. In opposition, the plaintiff has failed to raise a triable issue of fact. Accordingly, plaintiff's Labor Law § 200 and common-law negligence claims are hereby dismissed as against the defendants/third-party plaintiffs.

Defendants/Third-Party Plaintiffs' Third-Party Claims Against Crestwood

Contractual Indemnification

Defendants/third-party plaintiffs seek summary judgment in their favor on their third-party contractual indemnification claim against Crestwood. It is well settled that "[a] party is entitled to full contractual indemnification provided that the 'intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987], quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]; see Tanking v Port Auth. of NY & N.J., 3 NY3d 486, 490 [2004]; Torres v Morse Diesel Intl., Inc., 14 AD3d 401, 403 [1st Dept 2005]). "The party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability" (Jardin v A Very Special Place, Inc., 138 AD3d 927, 931 [2d Dept 2016]; see Arriola v City of New York, 128 AD3d 747, 749 [2d Dept 2015).

Defendants/third-party plaintiffs' third-party claim for contractual indemnification is based upon the contract between 4212 28ST LLC, 28ST CON LLC and Crestwood, dated March 26, 2014. Section 6 of the contract provides, in pertinent part, as follows:

"To the fullest extent permitted by law SUBCONTRACTOR [Crestwood] shall defend, indemnify and hold harmless [4212 28 ST LLC] ("Owner"), [28ST CON LLC] ("Contractor"), [J. Petrocelli Contracting, Inc.] ("Construction Manager"), . . . from and [*11]against any claims, damages, losses or expenses, and any liability, including without limitation, attorney's fees and court costs, arising out of or resulting from performance of the WORK under this CONTRACT, or as a result of any misrepresentation or breach of warranty, provided that any such claim, damage, loss or expense is caused by the intentional or negligent acts or omissions or by statute, including acts or omissions in violation of any applicable federal, state or local law, including without limitation, fair housing, labor, and employment laws, of the Subcontractor, the Subcontractor's Sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable [ ]".(NYSCEF Doc. No. 84).

Reading the paragraph plainly, Crestwood is required to indemnify defendants/third-party plaintiffs and hold them harmless for any claims arising from its work at the premises, provided those claims arise out of Crestwood's intentional acts, negligent acts or omissions, or by its violation of any applicable federal, state or local law. Defendants/third-party plaintiffs have demonstrated that plaintiff's accident clearly arose out of and/or resulted from the performance of Crestwood's work at the job site, and that they are free from any fault in the happening of the accident. Furthermore, it is undisputed that Crestwood solely directed and controlled the plaintiff's work and was the entity which supplied the ladder at issue. However, the grant of summary judgment on the issue of contractual indemnity must be made conditional upon the plaintiff's recovery against the defendants/third-party plaintiffs in the main action (see Jamindar v Uniondale Union Free Sch. Dist., 90 AD3d 612, 616 [2d Dept 2011]; Gange v Tilles Inv. Co., 220 AD2d 556, 558 [2nd Dept 1995]). In addition, the court notes that Crestwood does not oppose this portion of defendants/third-party plaintiffs' motion.

Breach of Contract for Failure to Procure Insurance

Defendants/third-party plaintiffs also seek summary judgment in their favor on their third-party claims against Crestwood for breach of contract for failure to procure insurance. As set forth in section 8 of the contract between 4212 28ST LLC, 28ST CON LLC and Crestwood, the latter was required, among other things, to procure and maintain certain insurance naming 4212 28ST LLC, 28ST CON LLC and Petrocelli as additional insureds. Specifically, the contract required Crestwood to retain primary commercial general liability insurance on an occurrence basis, with minimum amount of $1,000,000 per occurrence/$2,000,000 general aggregate. Crestwood was also required to procure commercial umbrella liability insurance on an occurrence basis in excess of the commercial general liability, with minimum limits of $15,000,000 per occurrence, and the defendants/third-party plaintiffs were to also be included as additional insureds on the umbrella and excess policies (NYSCEF Doc. No 84, at page 5). Defendants/third-party plaintiffs contend that Crestwood failed to procure the foregoing requisite insurance and, therefore, is in breach of the insurance procurement provisions of the contract.

In opposition, Crestwood maintains that it has procured the requisite insurance naming the defendants/third-party plaintiffs as additional insureds, and has submitted a certificate of insurance, which purportedly indicates that Crestwood procured a commercial general liability policy with $1,000,000 per occurrence/$2,000,000 aggregate, and an umbrella policy with limits of $9,000,000 per occurrence (NYSCEF Doc. No. 162). In reply, defendants argue that the certificate of insurance should be rejected by the court in that it fails to establish that Crestwood procured the requisite insurance. Defendants/third-party plaintiffs also point out that Crestwood has failed to proffer a copy of its insurance policy.

"'A party seeking summary judgment based on an alleged failure to procure insurance naming that party as an additional insured must demonstrate that a contract provision required that such insurance be procured and that the provision was not complied with'" (DiBuono v Abbey, LLC, 83 AD3d 650, 652 [2d Dept 2011], quoting Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738, 739 [2d Dept 2003]; see Marquez v L & M Dev. Partners, Inc., 141 AD3d at 701; Ginter v Flushing Terr., LLC, 121 AD3d 840, 844 [2d Dept 2014]). "If [*12]such a showing is made, the promisor is liable to the promisee for the resulting damages for the promisor's failure to obtain the required insurance coverage, including the liability of the promisee to the plaintiff and the costs incurred in defending against the plaintiffs action (see Keelan v Sivan, 234 AD2d 516, 517 [2d Dept. 1996] [internal citations omitted]). Moreover, an insurance procurement clause is independent of the indemnification provision in a contract, and thus a final determination of liability need not await a factual determination as to whose negligence, if anyone's, caused plaintiff's injuries (see Spector v Cushman & Wakefield, Inc., 100 AD3d 575, 575 [1st Dept 2012]).

Here, the agreement between these parties clearly required Crestwood to procure certain insurance naming the defendants/third-party plaintiffs as additional insureds. However, aside from pointing to the relevant insurance procurement provision, defendants/third-party plaintiffs have failed to submit any evidence substantiating their claim that Crestwood failed to comply with said provision. As such, defendants/third-party plaintiffs have failed to establish their entitlement to judgment as a matter of law in connection with this issue (see Ginter v Flushing Terrace, LLC, 121 AD3d at 844; Karanikolas v Elias Taverna, LLC, 120 AD3d at 556; Mathey v Metropolitan Transp. Authority 95 AD3d 842, 845 [2d Dept 2012]). Since the burden never shifted to Crestwood, this branch of defendants/third-party plaintiffs' motion is denied without regard to the sufficiency of Crestwood's opposition papers on this issue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Cross Claims and Counterclaims against Defendants/Third-Party Plaintiffs

Inasmuch as plaintiff's complaint has been dismissed as against CR Safety, CR Safety's cross claims against defendants/third-party plaintiffs for common-law indemnification, contribution and contractual indemnification have been effectively rendered moot, and said claims are hereby dismissed (see Hoover v Int'l Bus. Machines Corp., 35 AD3d 371, 372 [2d Dept 2006]). Additionally, in light of this court's finding that the defendants/third-party plaintiffs were not negligent in the happening of the plaintiff's accident, Crestwood's counterclaims against them for common-law indemnification and contribution are also dismissed (see Cutler v Thomas, 171 AD3d 860, 861 [2d Dept 2019] ["A party can establish its prima facie entitlement to judgment as a matter of law dismissing a cause of action for common-law indemnification and contribution asserted against it by establishing that it was not at fault in the happening of the subject accident]).

Cross Claims and Counterclaims Against CR Safety

Common-Law Indemnification and Contribution

Inasmuch as CR Safety has shown that it was not negligent, there is no basis for the common-law indemnification and contribution claims asserted against it (see McCarthy v Turner Construction, Inc., 17 NY3d 369, 377—378 [2011]; Marquez v L & M Dev. Partners, Inc., 141 AD3d at 700). Accordingly, that branch of CR Safety's motion seeking summary judgment dismissing defendants/third-party plaintiffs' cross claims for common-law indemnity and contribution, and Crestwood's counterclaims against CR Safety for common-law indemnification are granted and said claims are hereby dismissed as against CR Safety (see Marquez v L & M Dev. Partners, Inc., 141 AD3d at 700; Cardozo v Mayflower Ctr., Inc., 16 AD3d 536, 539 [2d Dept 2005]).

Contractual Indemnification

Defendants/third-party plaintiffs' cross claims against CR Safety for contractual indemnity are also dismissed. Here, pursuant to section 6 of CR Safety's contract with 4212 28 ST LLC and 28 ST CON LLC, CR Safety was required to defend and indemnify the defendants for all claims resulting from the performance of CR Safety's work under the agreement, provided said claims were caused by its intentional or negligent acts and/or omissions (NYSCEF Doc. No. 136). There is no showing that plaintiff's claims arose out of CR Safety's work or any negligence on its part. As such, the indemnity provision was not triggered. Thus, defendants/third-party plaintiffs' cross claims for contractual indemnity from CR Safety are also dismissed.

Breach of Contract for Failure to Procure Insurance

As to defendants/third-party plaintiffs' cross claim against CR Safety for breach of contract for failure to procure insurance, the court notes that CR Safety has failed to submit any evidence to demonstrate its entitlement to judgment as a matter of law. Therefore, that branch of CR Safety's motion seeking to dismiss this cross claim is denied (see Cardozo v Mayflower Ctr., Inc., 16 AD3d 536, 539 [2d Dept 2005]; Natarus v Corp. Prop. Investors, Inc., 13 AD3d 500 [2d Dept 2004] [court held third-party claim that defendant failed to procure contractually mandated insurance coverage was not academic notwithstanding dismissal of the underlying complaint]).

Conclusion

In sum, it is hereby

Motion Seq. No. 2

ORDERED that those branches of the motion by defendants/third-party plaintiffs (4212 28ST LLC, 28ST CON LLC, and Petrocelli) for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim and § 241(6)[FN2] claim as based upon 12 NYCRR 23-1.21(b)(3)(iv) are denied; and it is further

ORDERED that branch of defendants/third-party plaintiffs' motion seeking to dismiss plaintiff's Labor Law § 200 and common-law negligence claims as against them is granted and said claims are hereby dismissed; and it is further

ORDERED those branches of defendants/third-party plaintiffs' motion to dismiss CR Safety's cross claims against them for common-law indemnification, contribution and contractual indemnification, and Crestwood's counterclaims against them for common-law indemnification and contribution are granted and said cross claims and counterclaims are hereby dismissed; and it is further

ORDERED that branch of defendants/third-party plaintiffs' motion for summary judgment in their favor on their third-party claim for contractual indemnification against Crestwood is granted conditionally pending determination of the primary action; and it is further

ORDERED that branch of defendants/third-party plaintiffs' motion for summary judgment in their favor on their third-party claim against Crestwood for breach of contract for failure to procure insurance is denied; and it is further

Motion Sequence No. 3

ORDERED that plaintiff's motion for partial summary judgment as to liability in his favor under Labor Law § 240 (1) and Labor Law § 241(6) as based on 12 NYCRR 23-1.21(b)(3)(iv) is denied; and it is further

Motion Sequence No. 4

ORDERED that Crestwood's motion for summary judgment dismissing plaintiff's complaint is granted only to the extent that plaintiff's Labor Law § 200 and common-law negligence claims are dismissed, and the remainder of Crestwood's motion is otherwise denied; and it if further

Motion Sequence No. 5

ORDERED that branch of CR Safety's motion seeking summary judgment dismissing plaintiff's complaint as against it is granted; and it is further

ORDERED that branch of CR Safety's motion to dismiss defendants/third-party plaintiffs' cross claims against it for common-law indemnity, contribution and contractual indemnity, and Crestwood's counterclaim for common-law indemnity against CR Safety is granted; and it is further

ORDERED that branch of CR Safety's motion to dismiss defendants/third-party [*13]plaintiffs' cross claim against it for breach of contract for failure to procure insurance is denied.The action is severed accordingly.

The foregoing constitutes the decision, order and judgment of the court.

E N T E R

Carl J. Landicino

J. S. C. Footnotes

Footnote 1:The court notes that the two unsworn statements proffered by the defendants/third-party plaintiffs and Crestwood do not constitute evidentiary proof in admissible form and, thus, will not be considered in this court's determination (see Moore v 3 Phase Equestrian Ctr., Inc., 83 AD3d 677, 679 [2d Dept 2011]; Gomes v Courtesy Bus Co., 251 AD2d 625, 626 [2d Dept 1998]; DiMuro v Town of Babylon, 210 AD2d 373, 374 [2d Dept 1994 ][unsworn statement of a purported witness did not constitute evidentiary proof in admissible form]).

Footnote 2:As noted above, the plaintiff has withdrawn that portion of his Labor Law § 241(6) claim predicated upon alleged violations of Industrial Code §§ 23-1.7, 23-1.16, 23-1.30, 23-1.31, 23-1.32, 23-2.1, 23-3.3, and now only relies upon section 23-1.21(b)(3)(iv).