Collins v Leighton Green Corp.,

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Collins v Leighton Green Corp., 2022 NY Slip Op 33334(U) October 3, 2022 Supreme Court, Kings County Docket Number: Index No. 502088/2018 Judge: Robin S. Garson 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: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 At an IAS Tet111, Part 75 ofthe Supreme Court of the State of New York, held in and Jar the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 3rd day of October, 2022. PRESENT: HON. ROBINS. GARSON, Justice. --------~---------------~-----~--~-----X NATHANIEL COLLINS DECISION & ORDER Plaintiff, - against LEIGHTON GREEN CORP., FRANK CURBELO GUILLARD, FARRINGTON REALTY, LLC, ai1d CENTURY Df.VELOPMENT GROUP, LLC, Defendants. ---------------------------------------X FARRINGTON REALTY, LLC; Third-:-Party Plaintiff, - against TRIHOROUGH CONSTRUCTION SERVICES; INC., Thfrd-Patty Defendant; - -··- ;. · - - - - -· ~.'" - - - - - - ~· -· - - ·- - - - - - - - - - - - - - - "' - -X TRJBOROUGH CONSTRUCTION SERVJCES INC., Fourth-Party Plaintiff~ - against MERENGLiE LIMO AND CAR St~RVICEJNC., F01.Jtth-Party Defendants. ------------------------~--------~-~--~x [* 1] 1 of 32 lndexNo: 502088/2018 Mot. Seq. 8 &9 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 The following papers coi1sidered on this motion NYSCEF DocNos. Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) _ _ _ _ _ _ __ 171.,205; 212_;222 Opposing Affidavits ( Affirmations)_ _ __ . 229-231: 233.,234: 235-237: 239-244 Reply Affidavits (Affirmations) _ _ _ __ 245-,247: 248 2 [* 2] 2 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 Third.;party defendant/fourth"'.party plaintiffTriborough Construction Services, Inc. (Tri borough) moves pursuant to CPLR 3212, for an ordet granting it smn:rnaty judgment . . dismissing plaintiffNathaniel Collins' (Collins) claims pursuant to Labor Law § 241 (6) and dismissing defendant/third.cpar:ty plaintiff Farrington Realty, LLC's (Farrington) claims for contractual indemnification, common-law indemnification, contribution, and breach ofcontract. Farrington and defendant Century Development Group, LLC (Century) jointly move to extend the time to move for summary judgment and upon such extension, granting them summary judgment dismissing Collins' complaint. Upon the foregoing cited papers and after atgument, the tnotion and cross-motion are granted to the extent as foilows: :Background On June 23; 2017, Collins was employed by Triborough in connection with the development and construction of a commercial building (construction project) at 134-37 35th Avenue, Queens, New York (construction site}. Collins was working as a flagman, dil'ecting traffic at the intersection of 35 th Avenue and Prince Street, to permit unencumbered ingress and egress fat durnp trucks to acces5: the constrt1ction site in furtherance of excavation work being perfotmed. On the aforeh'lehtioned date; at 11 :57 · a.111., Collins was standing behind a parked motor vehicle on the side of the east bound lane of 35th Avenue~ when he was struck by a motor vehicle 3 [* 3] 3 of 32 owned by defendant Leigl1ton INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 Green Corp. (Leighton ) and op.erated RECEIVED NYSCEF: 10/03/2022 by defendant Frank; Curbelo (}ui_llard (Guillard). Collins- was pinned between the two motor vehicles. At th·e time of the ,~ccident, Collins wa·s no:t actively ·directing traffic. The real pt"opetty co1istitutingthe construction site was owned by Farring_ton 1 which was developing th~ landfm; commerciaJ_purpo$es. In S~pteniber 2()15, F&rrington retained Triborough to serve as the .general contractor for the com;truction project_! Specifically,. on September ·s, 201.5, Triborough and. Farrington -entered into an agreemen t concerning, among otherresponsil::,ilities and obligations, the work to he perfonned, indemnity, and the procurement ofinsuran ce (construction contract). Collins commenc edtheinsta ntaction on February 1, 201.8,assertingclaims ~gainst Leighton, Ouillard, Farrington~ and Century. Collins. asserts c01ni1fon,._Iaw hegljgen.ce claims against GuiUard arid Leighton and claims sounding in Labor Law :§"§200 &- 241 ( 6) against Farrington arid Century; Pursuant to art amended verified bill of particulars, Collins' Labor Law § 0:241 (6) claim is predicated on the Jndu_sttial Code of the State. of New York, l.2 NYCRR 23-1..5, 23~1.7; 23-1.21; 23-1.16 and 23-1_.29 (a) & (b), The . . defendants appe_ared respectively by se_rving answers. Subs·equently, Farrington commenced a third-party action against Triborough, asse11ing causes: of action for negligence, contraduai indemnification,_ comtnori-law indernnification, and confribution. Triborot1gh thereafter served an answer and commenced a fourth-party actioil against. fourth-pa_rty defendant J\ilereng~e Limo & Car Service; Irtc. (Merengue). -appeared.With the &e_rvice of:a noti.c~ ofapiJearance. 4 [* 4] 4 of 32 Merengue FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 After engaging irt discovery and various motion practice, Collins filed the note of issue. on June 21, 2021, seeking a trial by jury on aU issues. Triborough then filed its summary judgment motion (mot. seq. no. 8) on August20, 2021, seeking dfsmissal of Collins' Labor Law§ 241 (6) claim and the third-party complaint brought by Farrington. On November 2, 2021, Farrington artd Century moved (in mot. seq. no. 9) for an order extending the time to move for summary judgment and summary Judgment dismissing Collins' Labor Law§§ 241 (6) and 200 claims, The Parties' Positions Triborouglt 's Motiou Supporting its motion, Tri borough proffers, among other evidence, the affidavits of the construqtion project foreman, Terrance Brown (Brown), and professional engineer Michael Cronin, P.E. (Cronin) and the deposition testimonies ofCollins; Guillard, George . . Xu, the principle of Farrington and Century (XLL), Joseph Chung (Chung), the president of Triborough, and Jose Martinez, a witness to the accident (Martinez). Additionally, Triborough presents the construction contract, certificate of insurm1ce, insurance poliqies, and police reports and investigation documents. Based upon the foregoing, Triborough nrnintains that it is entitled to summary judgment dismissing plaintiffs Labor Law § 241 (6) claim; predicated upon, among other alleged Industdal Code violations, 12 NYCRR 23-1.29 (b).and dismissal ofFarrington 's illde1rtnification and contribution claims. Colli11s does not contest the dismissal of his Labor Law§ 241 (6) claim to the extent itis predicated on 12 NYCRR 23-1.5, 23-L7, 23-12 l, 23-l.16 and 23-1.29 (a), and as such, plaintiffs 5 [* 5] 5 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 . . reliance upon those code provisions is deemed abandoned (see Debennedetto v Chetrit, 190 AD3d 933, 936 [2d Dept 2021] [hCildingthat plaintiff abandoned his reliance on any other provisions of the Industrial Code by failing to address them in his brief}; Pita v Roosevelt Union Free Sch Dist., 156 AD3d 833, 835 [2d Dept 2017]). Concerning Collins' allegations that a violation of 12 NYC RR 23,.1.29 (b) occurred; Triborough insists that this code,which details the necessary instruments and directives for designated persons controlling public traffic for construction wotk; is inapplicable. Triborough presents that the testimony of Collins demonstrates that at the time of the accident, he was not actively directing traffic, butrather standing off to the side of the tlow of traffic. Tribotough maintains that as Collins was not ac.tively engaged in controlling traffic, he may not seek recovery based upon the allegation the provision was violated. Supporting this contention; Triborough directs the court's attention to the expert affidavit of Cronin. Cronin avers that "Section 23-l.29 (b)is inapplicable because at the time ofthe accident[Collins] was not.actively engaged in•fiagging'' (NY•StCtsE lec Filing [NYSCEF] Doc No. 175, Cronin aff para26). Accordi11gly, Triborough contends that it demonstrated its entitlement to smnmary judgment dismissing Collins' Labor Law § 24 i (6) claiih. Alternatively, Triborough argues that regardless of the applicability of section 231.29 (b ), the obligations promulgated were complied with and no violation occurred. Relying on the testimony ofMartinez, Collins, and the affidavit of Brown, Triborough . . explains that Coll ins was provided, and had in his possession at the time of the accident, a fluorescent orange flag, as required by the Industrial. Code. Further, they highlight that 6 [* 6] 6 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 Collins was also provided a neon green vest, an additional safety measure, not required by the provision. Brown aveJTed that: "As foreman for Triborough, I conducted a two,.hour, on,-site flagging training for all Triborough workers during their first day at a new job. Before anyone was permitted to flag, l verbally explained and physically demonstrated to them what they would need to flag, when to flag, how to flag and what to do between flagging. These instructions included extending the- flag away from the body to stop trnffic and toretteatto an area out of traffic where they felt safe when not flagging" (NYSCEF Do.: No. 174. Brown aff para 6). Additionally. Cronin provid¢s that"[ c]onsistent with Collins,'testimony ... [ Collins] \Vas holding a flag atthe forte of the accident ... Based on [Collins'] deposition testimony .. [Collins] was wearing a brightly colored safety vest atthe ti01e ofhis accident, which is.in compliance with both the Site Safety Plans for the constructim1 project and industry safety standards" {NYSCEF Doc No. 175, Cronin affparas 26c.27). Finally, Cronin asserts that despite Collins denying ever receiving any flagging training, based upon the affidavit of Brown, Cronin's opinion is that" Collins received appropriate instructions to stand out of traffic when he was not flagging and that his actions were consistent with such instructions, even ifhe denies receiving them" (id at para 30). Therefore, Triborough represents that regardless, of 12 NYC RR 1.29 (b)' s applicability, it complied with those requirements. Finally, Triborough maintains that beyond 'its arguments concerning applicability of,. and comp liari ce with, the relevant Industrial Code, provision, that Col Iihs' .Labor Law §. 441 (6) .claim nevertheless must be dismissed as> the sole proximate cause of' his injuries was the coildqct of Guillard. It. points to Martin!!z's deposition testimony wherein he 7 [* 7] 7 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 averred that Guillard was operating his cat, not paying attention or looking ahead, He SJJecifically testified that, "[Guillatd] kept looking at me until he got the hit and then he turned around and that's how the accident happened'' (NYSCEF Doc No. 192, affirmation ofTribornugh 's counsel, Martinez deposition tr at 19, lines 18-20). Tri borough asserts that it is under no obligation to prevent third-party conduct unless the intetvening act is normal and a foreseeable consequence:ofthe situation created by its negligence. Itrrtaintains that the evidence demonstrates thatGuillard's failure to comply with Vehicle and Traffic Laws resulting in Collins being struck while he was not actively flagging, butrather standing off to the side of the roadway, is neither a normal or foteseeable consequence of its negligent conduct; nor could any of its alleged negligent conduct be considered a proximate cause of Collins' injµries. Further,Cronin provides that the relevant organizations, rules and regulations, such as the "American Traffic Safety Services Association (ATSSA), Manual of Unifonn Traffic Control Devices (MUTCD) and New York City Flag Regulations .... did not provide any training or instruction on how a flagger should react or respond to drcumstances outside of the flaggers control where a driver violates the rules of the road and unexpectedly turns into the parking lane of a roadway" (NYSCEF Doc No. 175,. Cronin aff para 31}. He also opines that "[t]hese courses do not teach 1:wasive tactics to avoid reckless ot errant drivers when the individual worker isalready standing out of traffic in an otherwi$e safe locations .... It is my opinion1 to a reasonable degree of site safety and erigii1eering certainty, that any action or inaction by Triborough .such as the. alleged. faih.lte to supervise or train Collins -was not a contributing cause of the accidenr (id. at33}. 8 [* 8] 8 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 Triborough emphasizes that merely furnishing the possibility ofan accident is insufficient to find that a defendant's conduct was a proximate cause of a resulting accident. Accordingly, Triborough asserts that the evidence demonstrates that its conduct cannot be deemed a proximate cause to the occurrence_ of the accident and Collins injuries. Addressing Farringtort's third-party claiins for contractual indemnification, common"law indemnification, and contribution, Triborough argues that such claims necessarily fail based upon it demonstrating that its conduct was neither neglisent nor the proxi1nate cause of Collins injuries, Triborough proffers tlle construction contract which contains the following indemnity provision: ''To the fullest extent pennitted by Jaw, the Contractor and/or Subcontractor shall indemnify and hold harmless the Owner, agent, and employee of either oftllem from and against claims, damagers [sic], losses and expenses,including butnot limited to attorney's fees_, arising out of or tesulting from petformance and of the Contractor and/or Subcontractor's Work, provided such claim, dmnage, loss ot expense is attributable to bodily injury, siclmess, disease or death, or to injury to or destruction oftangible property (other than the wotk itself), including loss of use resulting there from, cause in whole or in part by the Contractor .. _,; (NYSCEF negligent acts or omissions Doc No. 200, affitmatioh of Triborough's counsel, exhibit Y, at 9). of Triborough insists that a finding of negligence against it is a necessary element for Farrington 's contractual indemnification claim against it, as well as its claims for common law indemnification and contribution. Ttiborough mairttainsthat since it has demonstrated that H did not violate_ the Industrial Code,. and was not the proximate cause. of Collins' 9 [* 9] 9 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 injuries, these third.,.party claims fail as a Ii1atter of law. Accordingly, Tribornugh seeks dismissal of the thitd,;patty complaint. hi opposition, Collins argues that Triboroughfailed to establish its prima fade case and that material questions of fact exist requiring denial of its summary judgment motion as to his Labor Law § 241 (6) claim. He contends that Triborough's moving papers demonstrate that; at a minimum, there is a question of fact as to whether it provided instructions and appropriate training prior to directing him to manage traffic. Additionally, Collins asserts that Tri borough's contentioi1 that 12 NYC RR 23 -'-1.29 (b) is inapplicable is wholly unavailing ai1d unsupported by both fact and law. He presents that at thetime of the accident, he was serving as a flagman and the Industrial Code provision djtectly governs the equipment, protocols, and instructions required for safe execution of the task. Collins contends that his own deposition testimony, as presented by Triborough, tebuts Brown's assertions that he was properly trained. Additionally, he asserts that Brown's affidavit is unspecific a11d amorphous, failing to establish, as a inatter oflaw,Jhat he ever trained him (Collins) or that he (Collins) ever received any training. Similarly, he argues . . that Cronin's expert affidavit is conclusory in nature, likewise failing to establish, as a matter oflaw; that the obligatfortgunder 12 NYCRR 23-1.29 (b) were inet by Triborough. Further, Collins rejects Triborough's position that, as a matter oflaw, the coi.lrt qm determine that its violation ofthe. Iildustrial Code was not a proximate cause. He. concedes that though in some instances undisputed facts may pennit a court to determine: whether another party's negligence merely fi.irnished a condition 10 [* 10] 10 of 32 for an accident to ocqur while not FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 being,a proximate cause_, here the facts necessitate the denial o_f smn1ttary judgment, :as a reasonable juror could determine Triborough is violation df the Industrial Code was, a proximate cause of CQ1lit1s' injuries. ·Finally I Collins also proffers the· expert affidavit of profo_s$ional engineer Joseph J. McHi.lgh (McHugh). McHugh averred that bas¢d upun his, review of relevant mat(;:rials, Collins "should have been instructed that, when not flagging and whenever possible, he ·.should _be stat.ion.ed cqmpletely off the. roadway .... Had [Collins] been properly instructed to be, ai1d actually been stationed and positioned off the roadway, in compliance with Industrial Code.Rule 23-1.29 (b), then this acddeht would not have occurred" (NYSCEF Doc No. 23 I , aff of McHugh para I 0). He also- opines· that the failure to pro"perly instruct wa's a. proximate cause of the &ccident (id. at pa,ra 13). Accordingly,, Collins contends that Triboroi.Jgh failed to establish.._its prirna: facie case, am:l, alternatively, that qu~stions of fact preclude the entry of accelerated judgment. Leighton and Guillard :proffer their attorney's affirmation, Who insists that the record. deinons_trates numerous_ questio:n-s of fact exist as to the culpability of all paities and that accelerated judgment is inappropriate. He. teferences Collins) deposition testimony wherein heJestified that he was standing partially on the roadwayatthe time of the accident and that he did not know howfo flag;_ not was he given any instructions on how to perform the. activity. Thus, Leighton and Guillard assert questions of contributory negligence b,y Collins and the liability of all other. defendants remain, requiriqg jury detem1ination and denial of the motions. 11 [* 11] 11 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 Farrington and Century's Motion As part of their relief, Farrington and Century seek an extension of time to move fat summary judgment, asserting that the tardiness of the motion was a consequence of circumstances beyond their control, but maintaining that no prejudice resulted from the dilatory practice. They effectively concede that the motion is 72 days late, by acknowledging it was filed on Novembet 2; 2021. It is undisputed that the note of issue was filed on June 21, 2021, thus the deadline to timely move for summaty judgment expired on or about August 20, 202 L Nevertheless, they argue they have a reasonablG excuse for the delay. They present that duringthe period that a timely motion for smimrnry judgment should have been prepared, the hatidling attorney, as well as another partner, were hath diagnosed with COVID-19, causing work difficulties and personal ailments. Further, counsel states that attempts to file a motion more expeditiously were complicated by the death of an associated attorney who was retained to prepare the moving papers. Thus, Farrington and Century urge the co1trt to grant an extension of time to move for summary judgment and consider the merits oftheir motion, As to the merits of their motion, and in partial opposition to Tri borough's motion, Farrington and Century al'gue that the evidence supports a determinatio11 that the sole proximate cause of the accident was the conduct of Guillard; Relying on the deposition testimony of Chung and the affidavit of Brown, they maintain Collins received proper training and wa,s provided with the necessary equipment to direct public traffic as required J:,y the statute. They further present that rieither Farrington nor Century performed any 12 [* 12] 12 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 i1idependent acts of negligence which caused Collins' tnJUrtes. . Thus, they argue that . Collins; Labor Law§ 241 (6) claim must be dismissed. Addressing Collins' Labor Law § 200 claim; Farrington and Century highlight Xu 's testimony, wherein he testified that "everything was controlled by Triborough; how the trucks goit1g in and out, what the. details of the logistics is" (NYSCEF Doc No. 194, affirmatiot1 of Triborough's counsel, exhibits, Xu deposition tr at 46, lines 17-20). They argue that to be liable under Labor Law § 200, as the owner, there either must be adefective condition at the prern ises or that it controlled and supervised the work of the plaintiff They present that the sole allegations concern the manner in which Collins performed his ,vork. Thus, to be liable putsuarit to Labor Law § 200, Farrington must have supervised and controlled Collins work, which they maintain did not occur here. Accordingly, they insist that they are entitled to summary judgment dismissing Collins' Labor Law § 200 claim. Alternatively, Farrington and Century posit that should the court find that accelerated judgment is unwarranted, Triborough's smnmary judgment motion seeking dismissal of their third-pa1iy claims must likewise be denied, and an order in its favor granting indemnification and contribution must be granted. Farrington and Century further assert that the evidence likewise demonstrates that Century had no involvement in the construction project, the construction site, or any other el~ments of the present action. Bolsteri'ng this claim, they refer to Xu's testimony wherein he attests that Century was not the owner of the construction site or construction project (see NYSCEF Doc No. 194, affh-rrfation ofTribotough's counsel, exhibit S,Jcu deposition 1.3 [* 13] 13 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 tr at 22, lines 4-16). Additionally, Farrington and Century, proffer the indemnity contract and certificate of insurance, Which reflect that Farrii'1gton is the owner of the construction project and real property, and listed as the only additional insured and certificate holder (seeNYSCEF Doc No. 220, affirmation of Collins' counsel, exhibits P and G). Collins opposes Farrington ancl Century's motion, initially assertingthatthe motion is untimely. Though sympathetic to the circumstances befalling defendants' counsel, he maintains that good cause for extending the time to move for summary judgment has not been established, as the affirmation merely demonstrates that minor portions of the time to move for sLHnmary judg111ent were encumbered by the difficulties attested to by counsel. Alternatively, Collins argues that should the court considet Farrington and Century's motion as a cross-motion, thus timely, the motion should be limited to only those issues also presented in Triborough's timely motion for summary judgment, i.e. Collins' Labor La,v § 241 {6) claim. Addressing the merits, Collins insists that the c;vidence demonstrates numerous questioi1s of fact as to the liability of the defendants. Collins, however, does not present any oppositioi1 to the extent the moving defendants assert Century was unirtvolved in the construction project. Leighton and Gaillard assert substantially similar opposition to the merits of Farri11gton and Century's niotion as Collins. Their ultimate position is that questions of fact preclude the en try. of summary judgment, as- the testimony of Cd IH hs. raises issues bf . . . whether he was properly trained and. instructed to direct traffic. Additionally, they raise concerns regarding Collins' persqnal conciuct, asserting he failed to use reasonable: care to 14 [* 14] 14 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 avoid the oncoming car, Thus, Leighton and Guillal'd contend questions of fact require denial ofboth motions for surnrnaryjudgment. Triborouglt and Farrington/Century's Replies . . In reply, Triborough rejects the contentions of the other parties. Addressing Collins' opposition, it insists that it complied with the IndustriaJ Codeprovision. Further,regardless ofwhether Collins was properly instructed to direct·traffic;·such potential.negligence was not the proximate cause of the accident. Tri.borough emphasizes the evidence. clearly estalJiishes that the sole proximate cause ofCollins' injuries was the negligent conduct of Guillard. Turning to Farrington and Century; Tri borough argues that they failed to rebut its showing that it is entitled to dismissal of the third . .party complaint in totality. It argues that . . none of the evidence establishes that it was negligentin any capacity, and accordingly, the contractual indemnification, common law indemnification, and contributions claims necessarily fail. Siti1ilarly, it asserts that in their moving papers, Farrington and Century failed to establish their prima Jacie case against Triborough compelling indemnification and contribution. Finally, addressing Leighton and Guillard's opposition_, Triborough assei-ts that such opposition is inexact anp. fails to specifically address the merits of its tilotion. Beyond this; Tri borough maintains that the only submission in opposition was the affirmation of counsel, which is insufficient to raise triable issues of fa ct, and. accordingly, fails to rebut its pritna facie showing entitling it to dismissal of Co 11 ins' Labor Law § 241 (6) claim. 15 [* 15] 15 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 Fanington and Century's reply reassert their contentions presented in theirinitial moving papers. They re-e1ti.phasize that the evidence cleady demonstrates that the sole proximate cause was the conduct ofGuiUard. Relying on precedent, they argue wherethe facts present the possibility of only one conclusion as to the cause of an accident, it is appropriate for a court to determine the question of ptoxin1ate cause. They insist that the facts presented in the instant matter permit only a single conclusion -- that the sole proximate cause of Collins; injuries was the negligence of Guillard. Finally:, Farrington and Century again assert that Triborough is obligated to indemnify it in the present action. Discussion Extending Time to Move As a preliminary matter, the court shall address that branch of Farrington and CeOh1ry's motion seeking an extension of time to move for summary judgment. CPLR 3212 permits tardy motions for smmriary judgment"with leave of the court on good cause shown/' As noted in Brill v City of Ne111 York (2 NY3d 648, 652 (20041), a party demonstrates ''good cause," by providing a "satisfactory explanation for the untimeliness~'' "Absent a satisfacto1y explanation for the untimeliness constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits" (Dojce v 1302 Realty Co., LLC, 199 AD3d 647 [2d Dept 2021]; see also Bressingham v Jamaica Hosp, Med. Ctr., 17 AD3d 496, 497 [2d Dept 2005]). The underlying public policy concerns are that: "t]h¢ failure to comply with deacllines hot only impairs the efficient functioning of the courts and the acljudication of 16 [* 16] 16 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution" (Gibbs v St. Barnabas Hosp., 16 NY3d 74, Rl [2010]). Nevertheless, the courthas "'board discretion'" in determining whether good cause was sht:r\Vn warranting art extension of time to move for summary judginent (Filannino v Triborough Bridge and Tunnel Auth, 34 AD3d 280, 283 [1st Dept 2006]; quoting Fqhrenholz v Sec. Jvfut. Ins. Co., 32 AD3d 1326, 1328 [4th Dept 2006], citing Burnell v Hwwdu, I AD3d 758; 760 [3d Dept 2003]; see alspAlvarez v EvUe$; 56 AD3d 500 [2d Dept 2008]). Among those circumstances that the Appellate Division has recognized as good cause shown are: a) illness of moving counsel where such delay was de minimis (see Popalardo v _Marino, 83 AD3d 1029, 1030 [2ci Dept 2011]), b) scheduling errors due to reliance on court recotds (seeAdika v Dramitino,v, 74 AD3d 848, 849 [2d Dept20JO]), c) substantive developments in the case that created issues not existing at the time a timely motion could have been filed (see Bullard v St: Barnabas Hosp., 27 AD3d 206; 206 [I st Dept 2006] [the insfitutional defendants could not have moved on the grounds of issue preclusion and law ofthe t'ase until a court order was issued, which was entered subsequent to the deadline to move for summary judgment]), and d) significant discovery re1nained outstanding (Alvarez, 56 AD3d at 500). When the court has confronted and considered the excuse oflaw office failure; the Appellat~ Division has routinely found that such excuse is not deemed to be good cause where such excuse is m~rely perfunctory (see Lqnza v M~A~ 17 [* 17] 17 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 CHome Desigi1 and Constr. Corp., 188 AD3d 855, 856 [2d Dept 2020]; Quinones v Joan and Sanford I. Weill Med Coll. and Graduate School o/ Med. Scis. of Cornell Univ., 114 AD3 d 4 72, 47 4 [1st Dept 2014 J; 8aldessari v Cafnes, 61 AD3 d 904; 905 [2d Dept 2009];Giudice v Green 292 Madison, LLC, 50 AD3 d 506 [1st Dept 2008]). 1 Here:, although Farrington and Century;s motion is untimely by a measure of 72 days_, the totality of the circumstances demonstrates good cause shown to consider the motion on its merits and extend time to move forsurnmary judgment. While the delay in filing the instant motion cannot be deemed de mini,nis, the history provided by counsel concerning his COVID-19 diagnosis, as well as his partner's diagnosis, during the titne period in ·which a timely motion could have been prepared, the efforts undertaken to prepare the motion sooner, and the death of the retained attorney assisting in the matter1 provides sufficiently detailed good cause. Rothkrug, Farrington and Century's counsel, averred: "Jcontracted Covid-19 in early August, 2021 [sic] and was in quarantine for virtually the entire month. Although I was not hospitalized, I lost taste and smell, and had high fever and other adverse conditions from August 14, 2021 to August 21, 202L During such time, I was unable to be in my office and had little ability to woik During such time, my law partner also tested positive for Cdvid-19 and also had to be quarantined .... When '''[AJn untimely motion or cross motion·forsummaryjudgment maYbe considered by the cowt where, as here, a timely motion for summary judgment was niade on nearl)1identical grounds'" (Ho,i1ela11d li1.s. Co. of Nev.· York t, Ndtl. Gra,ige Nlut. ll1i Co., 84 AD3d 737, 73 8 [2d Dept 2011], quoting Gi·ande v Pe/eroy, 39 AD3 d. 590, 591 w592 [2d Dept 20071). Whei'ti a timely 111 otion for suinmary judgment seeks to d isrn iss a .cause of action based upon a specific Labor L.aw provision and an t1ntimely m'btion seeks.to dis.miss a cause of action bas.ed upon a different and :distinct Labor Law prov is ion, the motions are not deemed to be brought 6h nehrly identical .grounds (see Parede.s v 1668 Real'ty Assoc,; LLC, 11 0 ADJ d. 700, 702 [2d Dept 2013] [wherein a thnely 1notio11 fot summary judgment corict;rning a(l allegation ofaviolation al Labor Law § 240 [l] was. notnearly identical to· 1ssues raised in an· untimely mod on add re,ssi ng anallegaticm of a viohi.tion of Labor Law § 200]). · 1.8 1 [* 18] 18 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 I returned to work on August 30, 2021, I had urgent need to catch up with the numetous matters that urgently needed attention during my absence. As a result, T was compelled to retain the services of Stuart Kitchner, Esq., an experienced litigation attorney who worked in my office building, to assist with the preparation of the moti011 papers. Kitchner began work on the papers, but then he tragically got sick and Kitchner passed away on October 24, 2021. The combination of my illness and attorney Kitchner's passiilg tesulted in the motion not being filed [timely]" (NYSCEF Doc No. 213, aff of Parrington and Century's counsel ,r,r 4 -9). Additionally, Rothkrug noted that at the time of filing the instant motion, no opposition to the timely filed motion had been served. Further, a review of the court record demonstrates that shortly after the filing of the note of issue, Tri borough moved for an order; among other relief, compelling certain discovery and an extension of time for all parties tQ move for summaryjudgment due to outstanding discovery. The order resolving that n10tion was not issued until August 4, 2021, which denied the extension with leave to renew; but also compelled certain outstanding disclosure. While the pendency of the discovery motion does not stay or extend time to 1nove for su1nmary judgment, the circumsta11ces unique to this matter and the details presented in Rothkrug's affidavit provide a satisfactory explanation for the untimeliness of Farrington and Century's motion. Accordingly, the time to move for summary judgment is extended and the motion shall be considered on its merits. Summary Judgment On a motion for summary judgrherit the cpurt's function is issue finding, not issue deterntination · (see 1ho A~-:bestds Renwval Coip. v Gabriel & $t:iacca Certified Pub.. 19 [* 19] 19 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 Accountants; LLP, 164 AD3d 864, 865 [2d Dept 2018]). "Summaryjudgment is a drastic_ remedy not to be used if there is any doubtthat a triable issue offact exists" (Cunningham v Gen Elec. Credit Corp.; 96 AD2d 502, 502 [2d Dept 1983]). "A party moving for summary judgment must demonstrate that 'the cause of action or defense shall be established sufficiently to warrantthe court as amatter oflaw in directingjudgment' inthe moving party's favor" (Jacobsen v New York CityHealth & Hasps: Corp., 22 NY3d 824, 833 [2014], quoting CPLR 3212 [b]), "[T]he proponent ofa summary judgment motion 111ust make a prima facie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence to demonstrate the absence of m1,y material issues, of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [ 1986] [internal citati ans omitted]). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to prod11ee evidentiary proofin admissible form sufficient to>establish the existence of a material issue of fact (see Zuckerman v CityofNew York, 49 NY2d 557,_ 557 [1980]). Century is Not a Ptoper Party It is axiomatic that to be Hable to an injured person under Labor Law §§ 200 ot 241, the alleged tmtfeasot must be either an owner ofthe property orcontracted to perfonn work atthe premises. The evidence presented demonstrates that Century has no involvement in either the construction project ot the constntcti011 site. Xu testified that Farrington, not Century; purchased the construction site (see NYSCEF Doc No. 194, Xu deposition tr at 21, lines 12-22}. Add iti anal Iy; Xu unequivocally stated that Century had no ro Ie in the project cfr site at all (see .id. at 22, lines 9-16). Corrohorating and further supportfng Xu;s 20 [* 20] 20 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 testimorw and. the position of.Century and Farrington, is the _construction contract and the relevantccrtifica te of insurance which denote Farrington as the owrier of the construction site and- the sole eniity listed as the additional fosured (see NYSCEF Doc No. ·200, affi11nation of Tdboro_ugh 's ,c.ounsel, ~xhibit Y at 9 eA[greement] made as of the 8th Day of Septemberin [sic]theyear _of2015 [b,etWeen] the Owner: Farrington [Jand the Contract: Triborough[t]; NYSCEF Doc No. 202~ affirmation of Tribotough's counsel, exhibit AA .at l). Critically, no party presents any contrary evidence creating questions- of fact a,s· to Whetl}er Centl1ry was- involved in any ·capacity with the constr.uction :site ot project; :and there are no allegations that Century and Farrington are acting as a single entity, Accotdingly, Century is not a proper :party to this action and the coniplaint is hereby dismis~~d as ag~insiit. lflbor Law§ 2()0 Labor Law§ 200 "codifies landowners and general co11ttactors common-law duty -to maintain a safe workpiace'' (Ross 1i-Curtis-Paliner .Hydro-Electric:· Co., 81 NY2d 494, SOS [1993J[internal quotation marks:omitted]). ·there are two broad categories ofco_ndtJ.d which ¢ould result in the imposition of liability on a landowner~ pursuant to Labor Law § 200. The fitst, if the resulting injuries occurred due to the manner in which the work is being_·performed, in this instance. the landowner "must have- had &uthority to exercise supervfaion and control of the work'' (DiMaggio v Cataletto,. l l 7 ADJd 98-4, 986 .[2d Dept 2014] [intenta1 qt,totations marks atJd citations omitted]). The second, if the .resulting_ injuries occurred due to a darig¢ro1..1s condition at the premises, the landowner must have 21 [* 21] 21 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 had actual or constructive notice of the dangerous conditioi1 (see Guaman v 178 Ct. St, LLC, 200 AD3d 655 [2d Dept 2021] [internal citations omitted]). "When ah accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes uf action alleging a violation of Labor Law§ 200 is obligated to address the proof applicable to both liability standards'' (Hamm v Review Assoc., LLC, 202 AD3d 934, 938 [2d Dept 2022] [internal citations omitted]). "Defendants moving for summary judgment with respect to causes of action alleging a violation of Labor Law§ 200 and common-law negligence must examine the plaintiffs co1nplaint and bill of particulars to identify the theory or theories of liability, in order to properly direct ptoof to premises issues_; or means and methods issues, or both, as 1nay be indicated on a case,...by-case basis. The property owner is entitled to summary judgment only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiffs accident and inju·ry, and when no triable issue of fact is raised in opposition as to either relevant liability standard1' (Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 52 (2d Dept 2011 ]). Here,Fa:trington has demonstrated its·entitlernent to sum1nmyjudgrnent dismissing Collins' Labor Law § 200 claim. Based upon the pleadings, bills ofpaititulars, and the arguments presented by all parties, Collins' sole theory to impose liability under Labor Law § 200 is based upon the manner in which his work was performed. Thus, liability may only be imposed on Farrington, as the owrter of the con~truction site, based upon its respective control and supervision of the work being performed by Collins. the ev1dente presented to the ~outtestablishes that Farrington had no ~antral or supervisory power over 22 [* 22] 22 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 Collins or the work being performed at the construction site (see NYSCEF Doc No. 194, affirmation ofTriborough;s counsel, exhibits, Xu deposition tr at 46, lines 17-20). Brown averred that he, in his capacity as a Triborough foreman, supervised Collins and had general control over the work being performed by hfrn, including _providing necessary equipment and training (see NYSCEF Doc No. 174, Brown aff para's 5-10). Similarly, Collins testified that he had never heard of Farrington (NYSCEF Doc No. 191, affirmation ofTriborough's counsel, exhibit P, Collins deposition tr at 62, lines 4-9), and on the date of the accident; he worked for Triborough (see id. at 11, lines 12-23). Finally, the construction contract dictates that Triborough was to perfomt all the work concerning the construction project, "except as specifically indicated in the Contract Documents" (NYSCEF Doc No. 200, affirmation of Triborough's counsel, exhibit Y, at 3). Nowhere in the contract documents is there any indication that Farrington had any role in supervising or controlling any aspect of the daily operation of the constrLiction project. Thus, the proffered evidence demonstrates Farrington's prima facie entitlement to swmnary judgment disinissing Collins' Labor Law§ 200 claim. In opposition, no party presents evidence rebutting this showing or creating a question of factthat Farrington was involved in any supervisory aspect ofthe construction project or controlled the work being performed by Coffins. Rather, the arguments presented, and evidence proffered by all parties,. demonstrate that Farrington's sole involvement in the cortstrt1ctioh site and project was ownirig the prelilises and re:taining 23 [* 23] 23 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 Tri borot1gh to serve as the generaJ contractqr. Accordingly. Farrington' s motion dismissing Collins' Labor Law §2d0 clai1n is granted. labQr Law Labor Law§ 241 (6) L_abor L"-,;;.; § 241 (6) provides.that: -~Au areas i11 Which construction, excavation or demolition work rs being· perfo~m.ed shall be so consttucted, shored, equipped, guarded, arranged, operated and cof1:ductGd. as to provide reasonable and adequate protection arid safetY to the persons employed therein--or Jaw"fully frequenting such places. The commissioner may make. rules to carry into effect the· provisi0.11s of this;-s.ubdivi-sion, and the owners. and contractors -andtheir" agents for such wod(, exceptowners of one and twofamily dwellings who contract for but dq.not direct or control the work,. $hall c01np1y·ttrerewith." As explained- by the Second Department more plainly; the provision: -mrequires own:ers and contractors to provide reasonable and .adequate: protection and safety for workers and to compiy with the spe~ific safety rules and regulations promulgated· by the Commissioner of°the Department ofLabot; The duty to comply with the Commissi01wr':, ·safety rules, which ar~ set out in the Industrial Gode (12 NYCRR), is nondi!legable .. In order to support a claiin under section 24 l{ti), however, the particular provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply cfedate general safety standards or reiterate common-law pdnciples" (Pereira v Quogue Field Club ofQuoguei -11 ADJd 1104~-- 05 [2d Dept 2 0 10], quo ting Mis icki v Ca,~ado nna; 12 NY3.d 5 ll; 5 15 n [2009)). ·'the legislative inte1it ·of section 241 is :'to place the ultimate. responsibilit)t for safety practices at building construction Jobs wh¢re such responsibility actually belongs-, ·on the ownerand general contractor" (Rizzuto v-L.A. Wenger Co_ntr. Co.,. /he:, 91 NY2d 343,348 is [199 8] [inte1trnl quotation marks and citations om frted]). To be entitled to disrn Sal ofa 24 [* 24] 24 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 claim brought ttndel' Labor Law § 24 l (6), a inovlng defendant must d~monstrate that ¢jther a) they ate exempturtder the statute (see Ortega v Puccia, 57 AD3d 54, 58 [2d Dept 2008]), b) that ·alleged Industrial Code provision is inapplicable (see Esposito-·v New York City Indus. Dev. Agency, I. NY3d 526, 528 [2003']}, c) tha,t they compliecl with the rel"evant Industrial Code provision (see Liicas v. _KD Dev, Const. Corp;, ~00 AD2d 634, 635 [2d Dept 2002]), or d) that the violation of the Industrial Code provision was .notthe proximate cause·qf-the allegedinju.ries (see Misirlakis v.E. Coast Entertainment Properties; Inc,) 297 AD2d 31.2, 3 l2·[2c:1Dept.2002]),. "Generally,_ it is for the trier of fact to determine the issue of proximate cause" (Kallandv Hung,y HarborAsso:c., .LLC, 84 AD3d 889, 889 [2d Dept 20 Ii] [internal 'citations omitted]). "However_, the issue ofproximate cause may be decided asa matter qflaw wlwre only o_ne conclusion may be drawnfrom the established facts ... . Although the .i~sue 0.f proxhnate Gau.se is generally for the. jury, liability may not be imposed upon a patty who merely fun1ishes the condition or occasion for the . occurrence is .o-f the event but not one of its. causes" ( Cana is v Ti/con New :York, Inc,, 13 5 AD3 d 6.83, 6.84 [2d Dept 20-16] [internal quotation marks- and citations ·omitted[). Critically, '~there may be more than oneproxima,tt! cause.ofan accidenti, (Kalland? 84 AD.3d at 889). l:FNYCRR 23,.j .29 (b) provides: "Every designated person authorized· to control public vehicular traffic shall be provided with a flag or paddle -measuring not. less than 18 inches in length and width, Such flag or paddle shall be colored fluorescent red or orange and shall be mounted on a suitable hand staff. Such designated pers9.n shall b.e stationed at:~ proper _and reasonable- distance from the work area and shall face approaching traffic. Such person .shall be instr\.tcted to stop traffic, whenever n~cessary, is [* 25] 25 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 by extending the traffic flag or paddle horizontally while facing the traffic. When traffic is to resume, such designated pet~on shall lower the flag or paddle and signal with his free hand." Defendants demonstrate compliance with this provision by instructing the designated person to act as a flagman and by providingthe individual with an appropriate fluorescent tlag (see lzicas,300 AD2d at 635). Importantly, 12 NYCRR 23-1 .29has been held to be ·sufficiently specific to support a Labor Law § 241 (6) claim (see Lamuraglia v New York City Tr. Auth., 299 AD2d 321; 324 [2d Dept 2002] [court found violation of section 23'" 1.29 to .be a potential proximate cause in causing an accident leading to injuries to a plaintiff]). Herei accelerated judgment dismissing Collins' Labor Law § 241 (6) claim is unsupp01ied by the proffered evidence, requiring the triet of fact to determine liability. Dispositive to the denialofTriborough and Farrington's motion is the deposition testimony of Collins who attests that prior to serving as the flagman at the construction site, he received no directions or trainingfrom his employer. Specifically, Collins testified, "I was obligated to flag and I was just doing myjob. They told ni.eto - I didn't know how to flag, I didn't know nothing about the flagging, I wasn't given any instructions on how to flag" (NYSCEF Doc No. 191,.affinnation ofTriborough's counsel, exhibit P, Collins deposition tr at 31, lines 23-25; at 32; lines 2-3). He also testified that he had never flagged prior to that day and that he never received any training oi' directions from his supervisor (see id. at 32, lines 9-18). Collins' testimony conflicts with Brown's affidavit, wherein he averted that ''[b]efore anyone was permitted to flag, I verbally explained and physically 26. [* 26] 26 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 demonstrated to them what they would need to flag,whento flag, how to flag. and what to . . ·dobetwecn flagging. These instructions included extending the flag away from the body to stop traffic and to retreat to an area out of traffic where they felt safe when not flagging" (NYSCEF Doc No. 174~ Brown aff para 6). Beyond these questions of fact; the competing expert evidence. presented by both parties in the form of the expert affidavits ofMessrs. Cronin and McHugh require the trier of fact to consider credibility (see generally Martinez v Coca-Cola Refreshment s USA, lnc., 187 AD3d 1170 [2d Dept 20201). Thus, at a minimm11, questions of fact and issues of c:redibility preclude a summary judgment deteri11ination as to liability of the parties and whether a Violation of 12 NYCRR 23;. l .29 (b) occurred. The moving defendant$' contentions concerning proximate cause 1s equally ui1availing at this stage of the litigation. While determining the issue of proximate cause is permitted at the sununary judginent stage, it is only appropriate ''where only one conclusion may he drawn from the established facts" (Canals, 135 AD3cl at 684 [internal quotation marks and citations omitted]). Here; the facts el early require the trier of fact to determine which acts/conduct , if any, of the parties was a sufficiently contributory factor incausingCo llins; accident. Further, as aforementio ned,theAppe llate Division has found that a. violation of 12 NYCRR 23- l .29 can be a· proximate cause of injuries (see Lamiiraglia, 299 AD2d at 524 [2d .Dept 20021). The proximate cause (or causes} of Collins' injuries must be determined by the trier of fact as the evidence permits various conclusions being drawn, rather than a single, undeniable conclusion. Accordingly, those 27 [* 27] 27 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 branches of the motions seeking sumniaryjudgment dismissing Collins' LaborLaw § 241 (6) claim, predicated on 12 NYCRR23-l .29 (b) are denied 1 Breach of Contract for Failure to Procure li1s1Jra11ce Triborough's moHon for summary judgment to the extent rt seeks to dismiss Farrington'sdaim for breach of contract is granted. At the outset, the third-party complaint does not expressly assert a breach of contract for failure to procure insurance claim. However, to the extent the complaint could be read as asserting such a claim, the court shall consider such relief. Farrington's third-party complaint, its partial opposition to Triborough's tnoti01i for summary judgment) and its moving papers effectively concede that Triborough procured insurance (see NYSCEF Doc No. 20, Third-Party Complaint, at 4-5, i!16-12; see also NYSCEF Doc No. 248,reply affirmation ofFarrington's connsel in Jurther support of motion for summary judgment at ,i l l ["It is not disputed thatFarrington and Triborough had a written contract, and that pursuant to that contract Triborough obtained ilisutance for the benefit of Farrington"]). Further, Farrington does not expressly oppose that branch ofTriborough's motion nor assert that the sought relief is improper or that there is no such cJaim as breach of contract for failing to procure insurance, Notwithstanding Fanington' s concessions and the peculiar circumstances of the requested relief, Tri borough established its prima facie case by proffering the construction contract, the insurance policy, and certificate of insurance in accordance with the insutance provisioti:s of the construction contract. Even.in the scenario whete the insurer disclaimed coverage, such disc! aimer would not constitute a breach to .procure insurance (see ge neraily [* 28] 28 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 Augustine v Halcyon Constr. Cmp., 71 Misc 3d 7IS, 718 [Sup Ct, Bronx County 2021, Walker, L], citing Arner v RREEF Am,, L.E. C.; 121 AD3d 450) 451 [1st Dept 2014]; see also 77 Water St.; Inc. v JTC Painting & Decorating Corp., 148 AD3d I 092, I 097 [2d Dept 2017]). Common-Law Indemnification and Contribution "'The principle of common-law, or implied; indemnification permits one who has been cmnpeUed to pay forthewrongofanothertorecover from the wrongdoer the damages itpaid tothe injured party'" (George v Marshalls of MA, Inc., 61 AD3d 925, 929 [2d Dept 2009], qµoting Curreri v Heritage Prop. Inv. Trust, Inc .. 48 AD3d 505, 507 [2d Dept . 2008]). "°C01nmon""law indemhification·is warranted,vhere a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious'" (Board of Mgrs. o/125 North 10th Condominium v 125Noth10; LLC, 150 AD3d 1063, 1064 [2d Dept 2017], quoting Balladares v SouthgateOwne,·s Corp., 40 AD3d 667, 671 [2d Dept2007]). "Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indernnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing carmot receive the benefit of the doctrine" (Board.of Mgrs. Of Olive Park Condominhtm v Maspeth Props., LLC, 170 AD3d 645, 647 [2d Dept 2019]). "'[T]o establish a claim for common-law indemnification, a party must prove hot only that it was not. iwgligertt 1 but .also tha:t the proposed· indemnitor was 29 [* 29] 29 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 responsible for [the] negligence that contribute to the accident" (Fedrich v Granite Bldg. 2, LLC, 165 AD3d 754, 756 [2d Dept2018], quoting Wahab v Agris & Bren,wr, LLC, 102 ADJd 672, 674 [2d Dept 2013]; see also McCarthy v Turner Const:, Inc., 17NY3d 369, 377-378 [2011]). Where a party's liability "would be based on its actual wrongdoing, not its vicarious liabi1ity'' common-law inde1nnification is ihapplicable (American Ins. Co. v Scl111all, 134 AD3d 746, 749-750 (2d Dept 2015]). Finally. "[t] o sustain a third'-party cause of action for contribution; a third-party plaintiffisrequired to.show that the third-party defendant owed ita duty of reasonable care. independent of its contractual obligations, or that a duty was owed to the plaintiffs as injured parties and that a breach of that duty contributed to the alleged injuries'' (Marquez vL & M Dev. Partners, Inc., 14 l AD3 d 694, 699 [2d Dept 2016] [internal quotation marks and.citations omitted]). Hete, in light of the triable issues of fact as to whether Triborough was negligent in the happening of Collins' accident~ those branches of its niotion seeking summary judgment dismissing Farrington's contribution and common-law indemnification thirdparty claims are denied (see Martin v Huang, 85 AD3d 1132, 1133 [2d Dept 2011]; Shea 1.iPutnam Golf,Inc., 79 AD3d 1013, 1015 [2dDept2010];BellefieurvNewarkBethlsrael Med. Ctr., 66 AD3d 807,808 [2d Dept2009J;Markeyv CF.MM Owners C01p., 51 AD3d . . 734,. 73.8 [2d Dept 2008 J; Petri v Gilbert Johnson Enterpri.~es; Ltd., 14 AD3d 681, 685 [2d Dept 2005]). 30 [* 30] 30 of 32 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 INDEX NO. 502088/2018 RECEIVED NYSCEF: 10/03/2022 Contn1ctual Indemnification "The right to contractual indemnification depends upon the specific languageofthe contract'' (Alfaro v 65 West J3th Acquisition, LLC, 74 AD3 d 125 5, 1255 [2d Dept 2010 ]). ''A party seeking contractual indemnification must prove itself free frorr1 negligence" (Tarpey v Kolanu Partners, LLC, 68 AD3d 1099, 1100 [2d Dept 2009]). A contract imposing indemnification "must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" (HooperAssociates, LtdvAGS Computers, Inc., 7 4 NY2d 487; 49 I [1989] [emphasis added]). Thus, to be entitled to summary judgment on the issue of contractual indemnification, a movant rimst proffer sufficient evidence of an indemnification provision in the contract, satisfaction of the contracrual prerequisites entitling it to indemnification, and that it is free from negligence (see Alfaro, 74 AD3d at J 255-1256; see also Tarpey, 68 AD.3d 1100). Here, pursuant to the construction contract between Farrington and Tri borough, the latter's duty to indemnify is triggered by a finding that its ''rtegligertt acts or omissions'' . . caused "in whole or in paii" Collins' injuries {NYSCEF Doc No. 200, affirmation of Triborough's counsel, exhibit Y, at 9). As noted above, there are issues of fa,ct as to Triborough 's negligence, and thus whether the indemnity provision has been triggered herein. Accordingly, that branch of Triborough's inotioi1 to dismiss Farrington's . . conttactual indemnification claim is also denied (see Bahrman v Holtsville Fire.Dist., 270 AD2d 438, 439 [2d Dept 20.00]). Accordingly, it is 31 [* 31] 31 of 32 INDEX NO. 502088/2018 FILED: KINGS COUNTY CLERK 10/03/2022 04:05 PM NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 10/03/2022 ORDERED that Triborough's motion for summary judgment, mot. seq. no. 8, is granted only to the extent that Farrington's third-party claim sounding in breach of contract for failure to procure insurance is dismissed as against it; and the remainder of Triborough ' s motion is denied ; and it is further, ORDERED that Farrington and Century's motion for summary judgment, mot. seq. no. 9, is granted to the extent that a) all causes of action as asserted against Century are hereby dismissed and b) Collins ' Labor Law§ 200 claim as against Farrington is hereby dismissed; the remainder of Farrington and Century ' s motion is denied. To the extent not specifically addressed herein, parties' remaining contentions have been considered and found to be either meritless and/or moot. This constitutes the decision and order of the court. ENTER, ,uZ~ /0·"5. 2 U S. C. 0 32 [* 32] 32 of 32

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