Cardona v 1717 44th St. LLC

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Cardona v 1717 44th St. LLC 2022 NY Slip Op 30669(U) February 28, 2022 Supreme Court, Kings County Docket Number: Index No. 511693/18 Judge: Ingrid Joseph Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 At an IAS Term, Part 83 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 28th day of February, 2022. PRESENT: HON. INGRID JOSEPH, JSC SUPREME COURT or THE STATE OF NEW YORK COUNTY OF KINGS - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - ------ X Juan Pablo Arango Cardona, Plaintiff, Index No. 511693/18 -against- 1717 44th Street LLC, The 1717 44•h Street Condominium, Ninth Avenue Construction Group LLC and Alrosc Construction, Inc., Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------ - - - - - - -X Ninth Avenue Construction Group LLC, Third-Party Plaintiff, -againstPCC Cleaning Solutions. Inc., Third-Party Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - ---- -- - - - - - - - X Alrose Construction, Inc., Second Third-Party Plaintiff. -againstPCC Cleaning Solutions. Inc .. Second Third-Party [klendant. ------------------- - - - ---- - -- - - - - - - X PCC Ckaning Solutions. Inc .. I hird Third-Party Plaintiff. -against- SCI SLT\iccs (\Jrp" 1 of 18 [*FILED: 2] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 Third Third-Party Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - ---- -- - - - - - - X Alrosc Construction, Inc., Fourth Third-Party Plaintiff, -against- SC L Services Corp., Fourth Third-Party Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- ---- - - - - - - X NYSFF Doc Nos.: The follovdng e-filed papers read herein: Notice of Motion/Order to Show Cause/ Petition.( ·ross l\fotion and Affidavits {Affirmations ) Annexed_ _ _ _ _ __ 188, 18(), 206, 221. 223, 244, 245246 264, 272-273, 296-297, 301-30 1 323-324,327 ,330,332, Opposing Aftidavits ( Affirmations) _ _ _ _ _ __ __3~5. 3.V). 341, }43, ~4_,_,,5~3....:..:h....:...1.,___ __ 349-350,35 1 -351, 355,356,360 ,365.367 Atlidavits/ Allirmations in Reply _ _ _ _ _ __ Upon the foregoing papers, plain ti rr Juan Pablo Arango Cardona ("'plain ti !'f') moves (\ lotion Seq. 8 \ for an ord1..'l. pursuant to CPLR § 3212, granting him partial summary judgment with respect to liability 011 his L1hor Law § 240 (I) cause nf action as against defendant 1717 44th Stred LLC ("1717 44th St") and delcndant/thir d-party plaintiff Ninth A\cnue Construction Group T.T.C C-Ninth Ave''). De!'endantsec ond third-party plaintiff/fourt h third-pany plaintiff Alrose C'iinstruction. Inc. ("Alrosc'') moves (Motion Seq. 9) for an order, pursuant to CPLR § 3212, granting it summary judgment dismissing plaintiff's complaint and all cross claims as against it. Third-party defendant/sec ond third-party defendant/thir d third-party plaintiff PCC Cleaning Solutions, Inc. ("PCC'") moves (Motion Seq. 10) for an order, pursuant to CPLR § 3212, granting it summary judgment dismissing the third-party and second third-part:, complaims and any ;md all cross claims against it. 2 2 of 18 1717 44 th St and 1':inth Ave (collcc1ively [*FILED: 3] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 referred to as the "Owner Defendants'') move (Motion Seq. 11 and 12) for an order: (I) pursuant to CPLR § 3212, granting them summary judgment dismissing the complaint and any cross claims and counterclaims; (2) pursuant to CPLR § 3212. granting summary judgment in their favor on their contractual indemnification and duty to defend claims against PCC; (3) pursuant to CPLR § 3126, striking the answer of PCC and granting them relief on all causes of action as against PCC; and (4) pursuant to CPLR § 3025, granting them leave to amend the answer to assert a cross claim for contractual indemnification as against third third-party defendant/fourth third-party defendant SCL Services Corp. ("SCL"). 1 Finally, Ninth Ave cross-moves (Motion Seq. 13) for an order, pursuant to CPLR § 3212. granting it summary judgment dismissing the complaint and cross claims as against it on the ground that the action as against it is barred by the Workers Compensation Law. In this action premised on common-law negligence and violations of Labor Law §§ 200, 240 ( 1) and 241 (6 ), plaintiff alleges that he suffered injuries on January 8, 2018 while removing tiles from a bathroom wall when the ladder he was climbing down moved, causing him to fall to the bathroom tloor. The accident occurred in a three-story building under construction that was owned by defendant 1717 44th St. 2 1717 44th St hired defendant Ninth Ave to act as the general contractor or construction manager for the project. Alrose was hired by Ninth Ave to perform exterior roofing and stucco work. In addition, Ninth Ave, pursuant to a written contract, hired PCC to provide laborers for construction cleanup work. PCC subcontracted the actual provision of laborers to third third-party defendant SCL. Plaintiff was employed by SCL.1 In mot. seq. no. 12, the Owner Defendants seek the same relief sought in mot. seq. no. 11 by way of an amended notice of motion. 2 A It hough 1717 44th St did not concede its ownership of the premises in its answer, A lrosc has submitted a copy of a deed showing 1717 44'h St's ownership of the premises, 1717 44'h St's deposition witness conceded that it owned the premises at the time of the construction project, and its contract with Ninth Ave identifies it as the owner. 3 PCC's witness testified at its deposition that PCC subcontracted its work and the provision of laborers to SCL. Although plaintiff testified at his deposition that he believed that he was employed by PCC for the six months prior to and including the day of the accident. he conceded that his paychecks came from SCL, and that the Workers' 1 3 3 of 18 [*FILED: 4] KINGS COUNTY CLERK 03/01/2022 12:53 PM INDEX NO. 511693/2018 NYSCEF DOC. NO. 369 RECEIVED NYSCEF: 03/01/2022 Accordmg to plaintiff's deposition testimony. when he arrived al the building site Pll the date of the accident. l\inth Avc·s constructinn manager to(1k him to a hasernent bathroom and d1n:cted him t,i rcnw\C tik and a layer of shet"lrock that was under the tile. The construction managLT gaw plain ti ff a crowbar to rcmO\ e the ti le, and a Sawzall to cut and reml1VL' the shcctrock and informed plaintiff that he could use an A-frame ladder that was in the basement to perform his work. Edgar Ramos, a coworker, \vho was also provided by PCC and apparently employed by SCL was tasked with placing the tile debris in garbage bags and taking the filled hags to a trash area in the basement. .\fter remO\ing much ot' the tile on the back wall of the bathroom located above a b:11htub. plaintilf in cirdcr to reach the tik loc:lled near th(· 1..-ciling of that walL placed the !adder in the clo:c;cd positi<111 in the batl1tub with the top or the ladder rL·sting against 1hc hack wall and the feet against the inside of the hc1thtuh. Plaintiff then climbed up the Lidder until he was two t() three f1:ct ahme the bathroom tlnor and USL'<l a uowhar to remove the tile near the ceiling. When he finished removing the tile al issue, plaintiff started to climh down the ladder, and, as he \Vas doing sn. the ladder moved. causing him to fall to the lloor. 4 One end of the crowbar, which he was holding in one of his hands at the time, struck plaintiff in his eye as he was falling. In moving. Alrnsc submits that it is not a proper Labor Lmv ddcndant and that, since it had no connection \\ith thL· work at issue at thL· time of the accidrnt, it may not be held liable to plaintiff under a colllmon-law negligence cause of action. In this regard, the deposition kstimori) in the record, including that of :\lrose·s pre~idcnt and t\inth Ave's construction 111,inagcr Joseph Ruching1:r. AlrosL··s contract with l\inth 1\ve. and the othi:r contracts in the Compt'nsation Board found that he was employed by SCL. 111 mov111g. plai111iffhao ,uhmiued an affidavit from R<1mos, \1lm avcni:d that he witnessed the accidc·11t, and 11hose ass.:rtions are consistent with rlaintiffs testimony. Ol"notc. Ramos stated that the tiles that plaintiff was removing of the ladder to \1 t>re apprn:dmatd;: sewn feet above the floor, that plaintiff stood 011 the third rung from the bottom tie., stepping l;idder oftl1e rung one down r,-.1ch the,l· tiles. and that tile accident happened a~ plaintiff was s1cppi11g 2). page at Aff. (Ramas ladder) the of down from the third to the second rung from the bottom 4 4 4 of 18 [*FILED: 5] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 record, taken together, demonstrate that Alrose was only hired by Ninth Ave as a subcontractor to perform roofing, waterproofing and stucco work, that it was Ninth Ave that hired PCC, which, in tum, hired SCL, and that Alrose had no general authority over the project and/or authority over the work of PCC or SCL. In addition, according to the testimony of its president, Alrose completed its work on the project nearly a year before the accident occurred and it was off of the jobsite by early 2017. Buchinger testified that the tile work al issue was the result of a subsequent design change apparently requested relating to the sale of the condominium units. In view of this evidence, the fact that Alrose was listed as the general contractor for the project on the work permit is, in and of itself, insufficient to render it liable as a general contractor or agent of the owner or general contractor for purposes of plaintiff's interior work that was performed a year after Alrose's last involvement with the project (see Martinez v 408410 Greenwich St., LLC, 83 AD3d 674, 675 [2d Dept 201 l]; Kilmelis v Creative Pool & Spa, Inc., 74 AD3d 1289, 1291 [2d Dept 2010]; Huerta v Three Star Conslr. Co.. Inc., 56 AD3d 613, 613 [2d Dept 2008], Iv denied 12 NY3d 702 [2009]; see also Giovanniel lo v E.W Howell, Co., LLC, 104 AD3d 812, 813-814 [2d Dept 2013]; Kelarakos v Massapequa Water Dist.• 38 AD3d 717, 718 [2d Dept 2007J; cf Utica Mut. Ins. Co. v Style Mf{I. Assoc. Corp., 28 NY3d 1018, 1020 5 [2016]; Kosovrasti v Epic (217) LLC, 96 AD3d 695, 696 [1st Dept 2012]). Alrose has thus demonstrated its prima facie entitlement to dismissal of the Labor Law and common-law negligence causes of action as against it. This same evidence demonstrates that Alrose may not be held liable on any cross claims or counterclaims for contribution or common-law The Appellate Division, First Department's decision in Bari v Universal Picture (277 AD2d 4, 4-5 ( I st Dept 20001), relied upon by the Owner Defendants is readily distinguishab le, as the "Occupancy Permit" at issue in that case is essentially a license agreement that gave the holder a certain degree of control over the premises while the premises was being used as a film set (see Grli/ikhes v International Tile & Stone Show Expos, 90 AD3d 480, 483 l lst Dept 2011 J). Moreover, even if the New York City Building Code Requirement s relied upon by the Owner Defendants meant that Alrose would have to be deemed in control of the worksite during construction, it is hard to sec how those provisions would apply to Alrose for work contracted by Ninth Ave well after Alrose had finished its work at the site and after a certificate of occupancy had been issued. 5 5 5 of 18 [*FILED: 6] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 indcmnilicatio n (see Di!hennede!lo v Chetrit, 190 AD3J 933. 9W 12d Dept 20211; Cutler ,. /'iwma.1, 171 i\l )3d 860, 861-862 [2d Dept 201 ()]; F.."cme v l'cter AI Moore Con.1·tr. ( 'o, Inc .. 14) AD3d 864, 86() [2d Dept 2016]: see also Mc( 'arthr ,. Twner Constr .. Inc., 17 NY~d 36C)_ 3773 78 l20 I 1j) and that the Owner Defendants arc not entitled to contractual imkmnilicati on under the terms of Ninth ,\ ve's contract with Alrosc since plaintiffs work at issue did not fall within the scope of Alrose's work under their contract (s<?e Lombardo v Tag Ct. Sq .. LLC, 126 AD3d 949. 950-951 [2d Dept 2015]; see also Rizo v 165 Eileen Way. LLC, 169 AD3d 943, 946 [2d Dept 2019]; Smith v Hunter Roher/.,· Conslr. Corp., LLC, 127 AD3d 647,648 [1st Dept 2015]). Plaintiff~ \Vho has not submitted any opposition to Alrose·s motion, has failed to demonstrate an issue of fact in this regard. Whik the Owner Defendants oppose the motion, tl1L·y have likewise failed to submit any cvidentiary prnofwarranti11g denial of Alrosc·s motion. Initially. Ninth Aw_'.·s cross motion, which was not made until April 16. 202L is untimely under Kings ( \lunty Supreme Court Uniform Civil Term Rules. Part C Rule 6, bl.'.cause it was made more than 60 days after tl1L· filing of the note of issue on February 2, 2021 (see Goldin v New J'ork& Preshyt. Ho.<,p .. 112 AD3d 578,579 [2d Dept 2013]; CPLR § 3212 [a]). Ninth Ave offers no excuse for its delay in moving and asserts that its cross motion may nevertheless be considered in light of plaintiffs timely motion for summary judgment. Although a court's power to search the record under CPLR § 3212 (b) al lows a court to consider otherwise unti rnely motions even \Vherc there is no demonstration or good cause for the delay, a court's discrcti(lO to ex(:rcise this power is limited to situation~ "here the timely motion souµ.ht relief ··rn.:arl) identical" to that sought in the untimely cross motion (sec Filannino ,, Trihough Bridge & Tunnel Auth. 34 AD3d 280, 281-282 11st Dept 2006], fr dismissed9 NY3d 862 [2007]: see also S'ikoriak v City of New York, 168 AD3d 778, 780 [2d Dept 2019]; Sheng Hai Tong v K & K 6 6 of 18 [*FILED: 7] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 7619, Inc., 144 AD3d 887, 890 l2d Dept 2016]; Derrick v North Star Orthopedics. PLLC, 121 AD3d 741, 743 [2d Dept 2014]). Since plaintiff, in his motion, only requested summary judgment with respect to liability on his Labor Law § 240 (I) cause of action and did not address the Workers' Compensation and special employment issues that are the subject of Ninth Ave's cross motion, plaintiff's motion did not involve ''nearly identical" issues, and thus, Ninth Ave's untimely cross motion may not be considered (see Dojce v 1302 Realty Co., LLC, 199 AD3d 647, 649-650 l2d Dept 2021]; Jarama v 902 Liberty Ave. Hous. Dev. Fund Corp., 161 AD3d 691, 691-692 [1st Dept 2018]; Sheng Hai Tong, 144 AD3d at 890). Ninth Ave's cross motion would be denied on the merits, even if it was appropriate to consider it, because Ninth A vc failed to demonstrate the absence of factual issues with respect to whether plaintiff was its special employee. The deposition testimony of plaintiff, Joseph Buchingcr (the Ninth Avenue construction manager), and PCC's witnesses provided testimonial evidence that tends to support a finding that plaintiff was a special employee of Ninth Ave. The evidence encompasses their position that neither PCC nor SCL had supervisors on site and it was Buchinger who gave plaintiff his instructions regarding the work to be performed. There was also a showing that Ninth Ave provided the tools and equipment for plaintiff to perform the work, that Ninth Avenue bencfitted from plaintiff's work, and had the authority to terminate plaintiff from working on the job (see Saunders v Newmark Constr., 94 AD3d 738, 738-739 [2d Dept 2012]; Grilikhes v International Tile & Stone Show Expos, 90 AD3d 480, 482-483 [1st Dept 201 lj; Majewicz v Malech, 9 AD3d 860,861 [4th Dept 2012]; Rucci v Cooper Indus., 300 AD2d I 078. 1079 I4th D1.:pt 2002J: Bnmn ,, /Jrnt'kner Pla::u As.10( , 2()5 i\ D2d 207, 20~ 11 st Dept 2002 I). 7 7 of 18 [*FILED: 8] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 There is also evidence that weighs against a finding that plaintiff was a special employee. including Ninth Ave and PCC' s Master Services Agreement dated September 15, 2017. In the Agreement, PCC is identified as a subcontractor and the entity responsible for supervising and directing the work at issue (Master Services Agreement § 5.3). Additionally, plaintiff testified that he believed he was an employee of PCC but on the other hand, a witness provided by Ninth Ave stated that Ninth Ave's authority did not extend to supervision of the means and methods of PCC's work (see Digirolomo v Goldslein, 96 AD3d 992, 993-994 [2d Dept 2012]; Bellamy v Columbia Univ., 50 AD3d 160, 164 [1st Dept 2008J; Palo v Sweeney Steel Serv. Corp., 117 AD2d 984, 985 [4th Dept 1986]). 6 These factual issues would have precluded Ninth Avenue from overcoming the presumption that plaintiff's general employment with SCL continued (see Duhe v County <~f"Rocklund, 160 AD3d 807, 808-809 [2d Dept 2018]; cf Thompson v Grumman Aerospace Corp., 78 NY2d 553,557 [1991J). Nevertheless, Ninth Ave's cross motion papers were sufficient to demonstrate the existence of factual issues as to whether plaintiff was its special employee such that plaintiff's motion must be denied. The Court of Appeals has emphasized that a worker's categorization as a special employee is usually a question of fact (see Thompson, 78 NY2d at 557). Further, the Court of Appeals has emphasized that many factors are considered. and that no one is decisive (id. at 558), including the contractual agreements amongst the parties (id. at 559-560). Accordingly, this court finds that the factors favoring a finding of special employment, namely ' < iivcn that Ni 11th /\ve ha•, 1iot )Cl n'.ccivcJ a11y aftirnrntivl· n:lidhascd on it:, assertion, made in support of its su111111;1ry .i11dg111cnt motion seeking disrnis,al or lhc cum111on-law ncgligcncc and I ,ubur Law ~ 200 causes of actiun. that it did nol supervise or CLHJtr\d pL1intiffs \lurk. Ninth /\\c 1s 1wt_judicially c,lopped from assc-rtir1,g th,· inn>11:,1stent argum,·111 made in ,wpµur t of its cross 1uot1nn (.1,•e F crrciru I' It :1 clwff I fe1gh1,, ,'\Jed C1r,, 8 I ADJd 'i 87, :i 88 I2d l),·pt 20 11 l: IL't' u/111 l!'c·s/ I//,• ,V/' I. Tm,,' II \' (:okc'\', I 7:i AD )d 1463' l ,165 r2d Dcpl 2019 I: L/ f,>/'t'/1::1, \ Auhn, 100 AD,J l-.i80, 1482-148,) [1th llcpr 2012]), 'Jeverthelcss, counsel's compl'lir1g a,sse11ions, mmk !fl 'Ji11tl·, Ave·s 11wli!1n c111d the cross motion may be admissible as i11k1rm:d judicial ad111i,~ion,; (see Rosule, v Ri1en1, 171> ADJd 7:il 7c,c:. 12d lkpr 2019];, l,1·ers, ,\{()Jwn. I :i l 1\D'lJ 41 L l l '] j Ist Dept 20 I 71, /i, de med 32 NY3d 904 [21ilXJ: !lrtm,:11,da 150/1,1 /,, S"'" St, LLC. 117 AD3d '>J], '>,4-S'JS I 1st lkpt 2014]), 8 8 of 18 [*FILED: 9] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 the evidence showing thal Ninth Ave's direction of the work. that this work was for the benefit of Ninth Ave, the absence of supervisors from either SCL or PCC at the worksite, Ninth Ave's provision of tools and equipment, and Ninth Ave's authority to discharge plaintiff from the work site are sufficient to demonstrate the existence of factual issues despite the evidence supporting factors that weigh against finding special employment (see Saunders. 94 AD3d at 738-739: Mt~jewic:, 9 AD3d at 861; Rucci, 300 AD2d at 1079; Brown. 295 AD2d at 208). In considering these factors. it is worth noting that. despite characterizing itself as a cleaning subcontractor. PCC acted more like a staffing agency or labor supplier than a subcontractor. Additionally. plaintiff was not involved in specialized work and it cannot be said that PCC or SCL were providing the services of a specialist and thereby retained a degree of control over the work (see M,~jewicz, 9 AD3d at 861: ,f Di~iro/omo, 96 AD3d at 993-994; Oden v ChemunK County bulus. Dev. Agenq. 183 AD2d 998, 999 13d Dept 1992 J). The Owner Defendants. in opposition to plaintiffs motion and in support of their own motion, initially assert that plaintiff is not entitled to the protection afforded to workers under l ,ahor Law § 240 ( l ). because he was not engaged in any of the enumerated activities considered to constitute construction work under the statutc. 7 They also argued that plaintiff's work was not part of a larger construction project, since a certificate of occupancy had already been issued (in January 2017). Labor Law § 240 (I) imposes absolute liability on owners and contractors, or their agents. when workers employed on a construction site sustain an injury that is proximately caused by the failure to provided protection against the risks associated with elevation Labor Law§ 240 (I), provides, as relevant here, that, "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, Jemolition, repairing. ultain~. puintin~. deaning m· pointing of a building or structure shall furnish or erect, or cause to be furnished or en:cted for the performance of such labor, scaffolding. hoists. stays, ladders, slings. hangers, blocks, pulleys. braces, irons. ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed" (emphasis added). 1 9 9 of 18 [*FILED: 10] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 differentials (see Wilinski v 33./ East 92nd Housing Dev. Fund Corp., 18 NY3d 1. 3 (201 I]; Ross v Curtis-Palmer Hydro-Elec. Co .• 8 l NY2d 494, 500 [ 19931). The Owner Defendants' contentions might have merit if plaintiff's task only involved the removal of a few tiles. However, in this case, it is undisputed that plaintiff's task involved the removal of all of the ti !es that covered the bathroom wall as well as the removal of a layer of the sheetrock. Even if plaintiff's work is not deemed part of a larger construction project, it qualifies as alteration work for purposes of Section 240(l)(see Panek v County of Albany, 99 NY2d 452, 458 L2003]; Job/on v Solow, 91 NY2d 457, 465-466 [1998]; Alberici v Gold Medal Gymnastics, 197 AD3d 540, 541-542 [2d Dept 2021]; Goodwin v Dix Iii/ls Jewish Ctr., 144 A03d 744, 746-747 [2d Dept 2016]; Velasco v Green-Wood Cemetery, 8 AD3d 88, 89 [1st Dept 2004J) and/or demolition work (see Hensel v Aviator FSC, Inc., 198 AD3d 884, 886 f2d Dept 2021]; Kharie v South Shore Record Mgt., Inc., 118 AD3d 955,956 [2d Dept 2014]). With respect to the other statutory requirements, 1717 44th St and Ninth Ave, which are, respectively, the owner of the site and the entity that essentially acted as the general contractor for the project, may be held liable under Labor Law § 240 regardless of whether or not they actually supervised or controlled plaintiffs work (see Gordan v Eastern Ry. Supply, 82 NY2d 555, 559-560 [1993]; see also McCarthy, Inc., 17 NY3d at 374; Barker v Union Corrugating Co., 187 AD3d 1544, 1546 [4th Dept 2020); Park City 3 & 4 Apts., Inc., 185 AD3d 635, 635- 636 [2d Dept 2020]). Further, under the circumstances here, the two-to-three foot elevation at which plaintiff was working constitutes a significant elevation differential for purposes of Labor Law § 240 (1) (see Swiderska v New York Univ., 10 NY3d 792, 793 [2008]; Portillo v DRMBRE-85 FEE LLC. 191 AD3d 613, 614 [1st Dept 2021]; Doto v Astoria Energy II. LLC, 129 AD3d 660, 662 [2d Dept 2015]; Gallo v Cl(fion Park Senior Living, LLC, 90 AD3d 1387, 10 10 of 18 [*FILED: 11] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 1387-1388 [3d Dept 201 J]; Abrev v URS Greiner Woodward Clyde, 60 AD3d 878, 879-880 [2d Dept 2009]; McGarry v CVP 1 LLC, 55 AD3d 441,441 [1st Dept 2008]; /Janna v Gellman, 29 AD3d 953, 954 l2d Dept 2006j). Plaintiffs deposition testimony that the ladder shifted a~ he started to climb down constitutes evidence that the ladder was inadequately secured and is sutlicient to establish, prima facie, that the ladder failed to provide proper protection (see Ciojfi v Target Corp., 188 AD3d 788, 791 [2d Dept 2020]; Cabrera v Arrow Steel Window Corp., 163 AD3d 758, 759-760 [2d Dept 2018.J; Messina v City ofNew York, 148 AO3d 493,494 [1st Dept 2017]; Goodwin, 144 AD3d at 747; Florestal v City <~l New York, 74 AD3d 875, 876 [2d Dept 2010]; Ruiz v WDF Inc., 45 AD3d 758, 758 [2d Dept 2007]). The Owner Defendants, however, contend that plaintiff's use of the A-frame ladder in the closed position and the failure to have his coworker hold the ladder constitute the sole proximate cause of the accident. Although, in some instances, a plaintiffs unexplained use of an A-frame ladder in the closed position has been found to constitute evidence that a plaintiffs actions were the sole proximate cause of the accident, plaintiff's usage of the ladder in such a manner here was clearly out of necessity in order for him to reach the tile that was located above the bathtub. Further, there is no evidence in the record that plaintiff was ever provided with or had available equipment that would have allowed him to reach that tile or that he disobeyed any instructions in performing his work in such a manner (see Morales v 2400 Ryer Ave. Realty, LLC, 190 AD3d 647, 647-648 [1st Dept 2021]; Zholaf?ii v 52 Wooster Holdings, LLC, 188 AD3d 1300, 1302 [2d Dept 20201; Noor v City of New York, 130 AD3d 539,540 [1st Dept 20151; Sztachanski v Morse Diesel Int., Inc., 9 AD3d 457, 457-458 [2d Dept 2004]). Additiona11y, plaintiffs failure to ask his coworker to hold the ladder is not the sole proximate cause of the accident because a coworker is not a safety device (see Rodriguez v BSREP UA Heritage LLC, 181 AD3d 537, 538 11 11 of 18 [*FILED: 12] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 I Isl [)q)l INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 2020\: ,\nor. 1:rn 1\D3d at :',41: (iron! i· ( iryo/\'cir fork. 109 :\D3d W,1. 962-963 [2d lkpt 201 :1] ). A...:cordingly. plaintiff has cknHllhlratl'd. prima laci1.-. that I abPr la\\ ~ 240 (I) \\as \ iolatcd. and that he is entitled tn summan judgment ,is aµ.:iinst l 717 44th St. 1717 44th St. in \ipposing the motion. foik·d t1i demonstrate the existence of a factual issue \\arranting denial of pLlint11'rs moli\lll as against it. I hat branch or plaintilL; motiun with respect to Ninth /\\C: is subject to denial. )'.:inth A\ 1.· has demonstrated the existence of foctwd issues as to whether plaintiff \Vas acting as its special c1uplu:,ee at the tirnl' uf the accident and thus. \\hethcr the action as agc1inst it is barred b:, the exclusi\ c n:mcdy provisiuns of Worker:-; Compensation Law~-~ 11 and \\'ith respect tu labor Ll\\ ~ 241 ((l). the 2() (6 ). U\,ner DcknJants han: demonstrated. pnma focic. that the Industrial Code sections relied upcin h:, plaintiff do not state specific standards. arc inapplicable tu thc facts herein. (1r that any Yiolatiun thcreur \\as nol a proxirn:,tc cause of the acciJ1.·nt. \1orcuvcr. as counsel 1<)r plainti!f spccilically represents that plaintiff Jocs not oppose the portion or the O\\t1cr l)cfenJants· motion rcqu1.·sting dismissal ()f plaintiffs section 241 ((l) c:1use of action. the 0\\ ncr Deti:ndants arc entitled to dismissal of the I ,abor I ,aw ~ 2-i 1 ((>)cause flt' action (St'C f)chc1111edcrtn, 190 AD.id at <)35: Piru 1· Nou1ei·c/1 ( '111011 h·ce .\'c/1. /)isr. 1::;6 Rc.~cmlin)} plaintiffs common-I:!\\ negligence and 1.abor I .aw~ 200 causes ( h,ncT lkti:ndants· rnutwn papers denl()nstrale that p!a111t1rt s claims arise nnnncr 11f or action. tht' 1)\lt of his method and performing his ,,orl,; rather than a dangcruus property conditi(ll1 (11:c .\fo11dragn11- \lon'no r .\J)Om. 18() ;\!)id 157..i. l 576 I :?d Dept 20201: !'011/in r ( ?ti mote flume 1, Inc. 1h6 .. \l))J Mi7. (l71 12d Dept 20181: .\frfrnde:: r -:-:,.; !'urk ,fre nldg C'mp. l:',3 :\D3d 700. 702 [2d 12 12 of 18 [*FILED: 13] KINGS COUNTY CLERK 03/01/2022 12:53 PM INDEX NO. 511693/2018 NYSCEF DOC. NO. 369 RECEIVED NYSCEF: 03/01/2022 l)ept 20171. /1· denied 31 NY3d 90() j2018j: Xlinw11·ic 1· /\me// ( 'on" .lssoc. UJ ·. l 11 .-\D3d (,05. (107-608 12d l)ept 20l>I), \Vhen commun-Lm negligence ,md section 200 claims aris<..' out of alkg<..'d defects or d:mgers in the methods or manner of the work. recovery against the owner or gc1h:1al contractor cannot be had unlcs" it is shown tlwt the party lo he charged with li;1hility h:id the auth(lrity lo supcn is<..' or contn1l the perform,mce of the work (sec Ri:::.1110 {'01111 c·o. 91 ~Y2d .\.-f1, _-:;52 [J<)<J81: I/wt fkpt 2011 I: Slum 1· Rf'.I l,10( 1· ('om11wck i· /..-1 We11ga !ford JJ(', 85 ;\l)3d 1117, l l 18 [2d !JC. 75 AD"ld 614. 615-h,6 12d Dept 2010]) An O\\ncr·s authority lo slop the \Vork or its ge11cral supcrvis<1ry authority OV<..T the injury-producing \\Ork is, in :111d or ibclt'. in"unicicnt t(i demonstrJ.te supervision and control the common LI\\ and I abor I a\, al h70-(173; (iold!icn 1· ( ·u11n1_,· ~ 200 (see ll1r purposes of liability under Dchcnncdcrro. 190 ,\D3d at 9.18: / 011/in. I (1(1 J\D3d 1 0/.\11//0/k. 157 ;\f)3J 937. 938 l2d Dept 2018]: \fess/no 1· ( 'irr of \'c11 fork. 147 1\D3d 748.749-75012d Dept 2017]J. I !ere. the dcpositi11n le:,,li111011y uf '{oel Sabel. Ninth ;\\'e·s pn1jecl manager. and Joseph Bucliinger. Ninth 1\\c·s cnnstruclion manc1ger. sufficinitly demonstrates that 1717 -l-lth St did n;,t c\ercisc mon: than general supervisory cn11trnl over the project, and plaintiff in oppositi11n. idcntit1es no e\idcntiar:- facts that W,luld create an issue ot foci with respect lo 1717 4-lth St's .supcn·isi,in and control ol plai11lit'l"s work. 171 7 -l4th St is thus entitled to dismissal of plaintiffs cornnwn-la\\ n<..·gligcncc and I ;d1or I .:I\\~ 200 causes or action. On the other hand. the same c\·iJL·ncc that l\inth ;\vc relies up()n in :,,Upport nf its argumcm that plaintiff was its special empluyec ,kmonstratcs the existt.:111.:e or factual issues \\ith respect to the extent of'.'-rinth Ave· supervision :md control (11'plaintiffs work for purposes ot the comnwn law and Labor Law ~ 200 liability such that it has railed to demonstrate its prima foeic entitlement tll dismissal ol these claims (sec /11/!UII \' 13 13 of 18 I, ll /11 ( ·om, . !t1c·, 145 :\D3d 715. 717-718 [*FILED: 14] KINGS COUNTY CLERK 03/01/2022 12:53 PM INDEX NO. 511693/2018 NYSCEF DOC. NO. 369 RECEIVED NYSCEF: 03/01/2022 12d Lkpt 20l(lll. Accordingly. the portion of the Owner Defendant's motion relating to Ninth .\ ve must he denied. regardless of the sur!iciL'.IKY of plaintilTs opposition papers (sec Wincgrad 1· .Yc11 fork [ ·ni1· .\led ( ·1r. (l4 NY2d 8:'i 1. 8)_\ 11 ()85 I)_ PCC hc1s demonstrated its prirna t'aeie entitlement to dismissal ui' the eornrnon-Lm indemnification and contribution claims as against it thrnugh the deposition testimony of pLli111ill. P('("s supen1sor. Dln l\lrgesz. and Ninth i\\c·s constrUL'.tion manager. Joseph Buchingcr. ;1s \,ell ,is the S\\Onl aftinnation from PC("s partner and nunagcr '{ehud:1 /.icherrnan. dcm()nstrating that PCC did not supervise or contrul plaintill's worl,.; (sec J>ercin1 I lunt Ro,·is I.end !case . 11/iunc,' I I. 1(), !\[>,d 1085. 1090 12d Dept 2021 I: 1· /)chcnncdcl!o. I()() i\Lr;d at 919: ( ·111/a. 171 AD3d at 861-862: ,\('(' ulso ,\le( ·urrh1. 17 '\JY1d at 3 77-3 78 ). The rcc,ml sho\\s that PCC did not ht1ve any supervisors at the \\orksite ;ind that PCC's im,oh·ement with till' work did not c-:tend b1.:yond informint! plaintiff ,vhen and where he should show up to \\Pf'k. The parties· did not submit opposition that addresses this aspect of the rnotion. nor have the parties ilkntificJ n idencc that dcmonstrntl's the existence I)('( ·s supcn is1on and comm!. I nr a !"actual issue with respect hus. the court fL11cls that PCC is entitled tu dismissal 1\1 or tile contribution and comrnnn-bw indcmnil1c,llion claims asserted against it. PC( ·s motion seeking Jislllissal of '\linth a\vc·s c1.111lractual indemnification claims. and the ()\\Ill'!' Defendants' motion fur summary judgment in thL'.ir favor on th;1t claim. must he denied Till· \.laster Ser\ ices \grec·1111.·nt broadly requires PC'(' to defend and indemnify tl1l' U\\ 111.·r Dckndants for any claim .. arising out 01· or in connection with ( i) the performance uf the Services, (ii) this Agreement and/or Subcontractor's breach of any covenant, representation of warranty contained herein and (iii) any act or omission of Subcontractor or Subcontractor's employees, agents. sub-subcontractors ... including ... any Claim with n::spect to ... personal 14 14 of 18 [*FILED: 15] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 injury ... '' (Master Services Agreement § 6). Despite this broad language, this court finds that the language cannot be read to require PCC to indemnify Ninth Ave for work that was beyond the scope of the Master Services Agreement, which by its express terms stated that PCC "shall provide laborers to clean the construction site only after such laborers are requested by LNinth Ave]" (Master Services Agreement § 2 and Exhibit A to Master Services Agreement) (see Niagara Frontier Transp. Auth. v Tri-De/Ja constr. Corp., 107 AD2d 450, 452-453 f4th Dept 19851, a.ffdfor the reasons stated he/ow 65 NY2d 1038 [1985]; see also Hooper Assoc. v AGS Computers. 74 NY2d 487, 491-492 f1989]~ DiGidio v City of New York, 176 AD3d 452, 454 [I st Dept 2019], Iv dismissed in part and iv denied in part 35 NY3d 963 l2020J; Murphey v Longview Owners, Inc.. 13 AD3d 346,347 [2d Dept 2004]). Plaintiff's work in removing tiles from the wall cannot be deemed cleaning work under any reasonable definition of cleaning. Nevertheless, factual issues exist as to whether PCC agreed to modify the agreement and provide labor for the work at issue in view of Yehuda Zicherman's statement in his sworn affirmation that PCC assigned plaintiff to work at the project upon Ninth Ave's request that it provide ..a laborer to remove a couple of tiles" (compare Saeteros v Seven Up Realty, LLC, 187 AD3d 559, 559-560 [1st Dept 2020]; Burhmasler v CRM Renie! Mgt. Inc., J66 AD3d I 130. 1133-1134 [3d Dept 2018]; Murphy, 13 AD3d at 34 7 with Lombardo, 126 AD3d at 950-951 ). 8 The existence of factual issues as to whether plaintiffs work tell within the scope of PCC's work for Ninth Ave under the Master Services Agreement requires denial of both PCC and the Owner Defendants' motion with respect to the contractual indemnification claim. While Zichennan's language minimizes how many tiles were to be removed, it nevertheless indicates his knowledge that the work involved the removal of the tiles from the wal\, and not just the cleaning of construction debris. 8 15 15 of 18 [*FILED: 16] KINGS COUNTY CLERK 03/01/2022 12:53 PM INDEX NO. 511693/2018 NYSCEF DOC. NO. 369 RECEIVED NYSCEF: 03/01/2022 The Owner Ddcndants · motion in this respect must further be denied because I 71 7 44' 11 St currently has no contractual indemnil1cation claim as against PCC. since it is not a party to the third-r1arly action. and because there arc factual issues with respect to ;--: inth ;\ vc · s u\vn negJigcnc(· as discussed above \Vith res peel lo pLiinti trs common-law negligence and labor L1w :'S 200 causes of action against il (Roblero 1' Hals Ruchel l!igh Sch, Inc. 175 AfBJ 1446. 1--1-48- 1449 !2cl Dept 2018]). The portion or the 0\\111..T Defendants· motion requesting that PCC's anS\\Cr to the third- party action he stricken based on its failure to pruduce Yehuda 7icherman for a deposition is denied because. even if tl1(· Owner Dcfi.:ndants are deemed to have established that PCC was required to produce an additional \Vitness for deposition (see Thristino 1' ( 'mm!_\' of ,\'1dfolk. 78 .A1)3d 927. 927-928 12d Dept 2010]). absent any evidence that it obtained an order directing the additional deposition or olherwise made any e!Torl tu enforce the notice of deposition. the Own1..T Dctcndants hmc foiled to ck·monstratc th,1t PCCs failure to produce 7icherman for a deposition \\as willful or contumacious (see Amos v So11thwnplon l!osp., 198 AD3d 947. 948 12d Dept Inclccd. giYen the absence of' any evidence that it sought to enforce the notice of 2021 IL deposition prior to the filing zif the nok or issue or that it sought to ,acatc the note of issue on this ground. the Owner Delendants have failed to clemonstrme that they are even entitled to ohtain /.ichcrman 's deposition at this point in the action (see Tfreakers ,\Iote! ,. S1111heach .\1011/uuk /'11·0. 2(n :\D_;J 227,227 l2d Dept 199--1-l; .ice also .lhc 1· .Vci1 fork Unii·. 169 AD3cl 445. 448 [ I st Dept 20 l 9l, ii' di.1mi.1sed 34 ~Y3d 1089 f2020l: 5.'crcdu , Sounds o/ C11bu. 95 AD3d 651,652 [1st Dept 2012]). Finally, that branch of the Owner Defendants' W1opposed motion seeking leave to amend their answer to add a cross claim against SCI, for contractual indemnification is denied, as the 16 16 of 18 [*FILED: 17] KINGS COUNTY CLERK 03/01/2022 12:53 PM NYSCEF DOC. NO. 369 Q\\ ner INDEX NO. 511693/2018 RECEIVED NYSCEF: 03/01/2022 ng in suppor t of Defendants have failed to submi t a copy of the propos ed amend ed pleadi 908,9 10 [2d Dept 2021)). its m11tion (s·el C'PIR 30~5 rbJ: Mul!e \' Lexing ton Ins. Cn __ IC>8 AD3d renew ing this reques t upon This denial is made withou t prejudice to the Ov,mer Defen dants encing a third-p arty action as pniper papas or withou t prejud ice tu the Owne r Defondants comm . · t scr , J-ur sue 11 re 1·1e t•') . ;1gams I3a~cd npon the foregoing. it is hen.:-by the extent that plaint iff ORDE RfD. tint plaint iffs motion (Motio n Seq. 8) is grante d to Labor Law § 240 ( 1) cause of is award ed summ ary judgm ent \Vith respec t to liability. on his ,1ction agains t 1717 44th SL. and it is further compl aint and all cross ORDE RED. that Alrosc 's motion (Motion Seq. 9) is grante d. The d accord ingly, and it is cl,1imc, asserte d against Alrnsc arc dismis sed and the action is severe fort her extent that any and all ORD [RrD, that PCC's motion (Motio n Seq. 10) is grante d to the ution and for comm on-law third-party cbims , cross claims , and/or counte rclaim s for contrib dismis s Ninth Ave·s third-p arty indcmnificati(lfl are dismis sed. That branch of PCC's motion to claim fo1· C\mtractual indem nificat ion is denied , and it is further l l and 12) is grante d to OROERFD, that the O,•mer Defen dants' motion (Motio n Seq. dismis sed as agains t them and the e>:tent tl1at plaint iffs Lahor Law § 241 (6) cause of action is is dismis sed as agains t 1717 44th to the extent Iha! pbinti ff's Lahar Law§ 200 cause of action of the portio n or the motion SI. The Ov:ncr Oefcn dants' motion is otherwise denied. The denial - -- -- ---a person or entity may be added to an action as a \Jtliou!--'.h the lan"uag e ofCPLR § 3019 (bJ ;111d (<l) ~uggests that Co, 86 Misc 2d 1014. 1016 fC1v Ct, New York ,.kfe1,da11t for purp(>Ses ofa cross claim (see Ruhin v K/11ger & lSup Ct. Kings County 19(,7]; 8c!111e1herg 1 County 1976 j; h111 S<!I! Lynch v Flame Uif Corp., 51 Misc 2d 535, 536 right to add such c1 pcrS< 1 n or entit:, as a dde11da lll Ut::., 8 Misc 2d 535, 537-538 [Sup Ct. \iassau County 1957]), this "person who111 a defenda nt represen t~" or whose a is would appear to be li1111teJ to ca:,es \1hcre ,he 1°cr,on or entity nt and other persons alleged to be liable" ddenda ''a (i.e. ints defend, liabilitv i, tied to tk1t ufanotl ier c!efcnclant ,,r Owner Defend ants bringin g a third-pa rty action (C'PIR 3019 [bl). CPLR 1007 impnses no such limitati on on the for contr:tc lual indemn ification against SCL (see CPLR l007) 9 17 17 of 18 [*FILED: 18] KINGS COUNTY CLERK 03/01/2022 12:53 PM INDEX NO. 511693/2018 NYSCEF DOC. NO. 369 RECEIVED NYSCEF: 03/01/2022 s1..·cking kaYe to amend their a!lswer to add a cross clairn for contractual indemnification. as against SCL is mack v,·ithout prejudice or illitiating <l 10 subsequent motion i(ir such relief upon proper papers. third-party action against SCL. and it is furll11..-r ORDFRLD. that i\inth ;\\e's cross motion ([\/lotion SeLJ. 13) is denied. This constitu!es tl1e decision and order or the court. ENTER J/1 :ON. INGR~OSFPil. J.S.C. Hon. bq::d -'<"'"]:_ '"lh ~UprPnl•-~- ("-·u'·t ..,•, 1~t·1't•n 1--Jta __,. 18 18 of 18 ~'' .,,, .._,l.,/ f , .. , ~

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