Schultz v K-Square Devs.. Inc.

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Schultz v K-Square Devs.. Inc. 2022 NY Slip Op 34523(U) July 11, 2022 Supreme Court, Kings County Docket Number: Index No. 517485/17 Judge: Wavny Toussaint 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. INDEX NO. 517485/2017 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 07/13/2022 At an IAS Term~ Part of the Supreme Court of the- State of New Yoik. held in an.d for the County of Kings, at the Courthouse, at 3 60 Adams Street Brooklyn, New York, on the \1-tt\\ay of JUly~ 2022. - PRES ENT: :· . i HON. WAVNY TOUSSAINT> Justice. TYLER SCHULTZ, Plaintiff, Index No.: 517485/17 -against- K-SQUARE DEVELOPERS. INC. AND 59 SOUTH 4rnLLC., Defendants. ~-------------------~-~----------·----~-·----X 59 SOlITH 4TH LLC, Third~ Party Plaintiff, -againstNSW CONSTRUCTION MANAGEMENT~ rNC.> Third-Party Defendant. --~--------~T----------~---------.. . . ---------·--------·-~-----X K-SQUARE DEVELOPERS, INC., Second Third-Party Plaintiff -against- NSW CONSTRUCTION MANAGEMENT INC. and NORTH SHORE WINDOW & DOOR INC .• Second Third-Party Defendants -----~--....---------------....-----------------·. . .~------....----------X [* 1] 1 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 ----------------------------·-------·---------------·-----X NSW CONSTRUCTION MANAGEJ\.IBNT INC .• Fourth-Party Plaintiff~ -against- ABOVE ALL PROPERTI' MANAGEMENT INC. f/k/a NSW INSTALLATIONS INC.t Fourth-Party Defendant. ---------------------------------------~---------------X 59 SOUTH 4TH LLC, Fifth-Party Plaintiff, -againstABOVE ALL PROPERTY MANAGElvlENT INC. f/k/a NSW INSTALLATIONS INC.~ Fifth-Party Defendant. -------------------------------------------------------------X The following e-filed papers read herein: NYSCEF Nos.: Notice of Motion/Order to Show Cause/ Petition!Cross Motion and Affidavits (Affinnations) Annexed_ _ _ _ _ _ _ _~ Opposing Affidavits (Affirmations)_ _ _ _ _ _ _ __ Affidavits/ Affinnations in Reply - - - - - - - ~ - ~ Jl2:-.W, I56=1M, L6~ L73. IZ.9-194 LS4,1 z+m, l9s.J96, 19H®J~l202,,203-l042 I0-21 l J74. 206. 2-0]. 208-1{19 Other Papers: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, plaintiff Tyler Shultz (plaintiff) moves for partial summary judgment on the issue of liability against defendants K~Square Developers~ Inc. (KSD) and 59 South 4111 LLC. (59 South) under his Labor Law§ 240 (1) cause of action. Plaintiff further moves for summary judgment dismissing defendants' comparative neg1igence and assumption of risk affirmative defenses (Mot. Seq 4). Third .. party and second third-party defendant NSW Construction Management, Inc. (NSW) and fourth and 2 [* 2] 2 of 24 INDEX NO. 517485/2017 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 07/13/2022 fifth-party defendant Above AU Property Management,. Inc. f/k/a NSW Installations, Inc. (Above All) cross-move for an order dismissing plaintifrs claims and all cross claims/third-party claims asserted against them (Mot. Seq 6). 59 South cross-tnoves for summary judgment dismissing plaintifrs complaint and all cross claims asserted against it. 59 South further cross-moves for summary judgment under its contractual indemnification claims against KSD, NSW Construction, and Above AllJ but limited to amounts in excess of the additional insured coverage which is being provided by their respective general liability insurers (Mot Seq 7). KSD cross-moves for summary judgment djsmissing plaintifrs complaint and all cross claims aaserted against it. KSD further cross-moves for summary judgment under its contractual indemnification claims against NSW (Mot. Seq 8). Background Fac'ls and ProcedlU'al History The instant action arises out of personal injuries sustained by plaintiff on January 119 2016, while perfonning work on a construction project during his employment with Above All. 1 . The underJyjng project jnvoJved the construction af several abutting four- story townhouses located at 59 South 4th Street in Brooklyn, New York (the building or the townhouses). Prior to the accidentJ S9 South, which owned the building, hired KSD to serve as the general contractor on the project. Thereafter, KSD hired various subcontractors to carry out the work including NSW,. which was retained to install the 1 At the time of the accident, Above All was known as NSW Installations, Inc. 3 [* 3] 3 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 windows in the townhouses. INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 Subsequently) NSW Construction sub- subcontracted plaintiffs employer, Above All~ to actually perform the window installation work. Approximately five days prior to the accidentt window units were delivered to the job.site whereupon pJa.intiff and his coworkers physically canied the windows to the third and fourth floor of the building where they were to be installed in ~~eferred openings" (i.e., ROs) at a later time. At his deposition, plaintiff testified that the window units were made of steel and glass~ measured approximately three feet by six feet and weighed approximately 400-50 0 pounds. Plaintiff further testified that ordinarily, six workers were used to lift each window unit. However, Mike Temple,. who served as Above Airs Service and Installation Manager on the construction project testified that the windows weighed 250-300 pounds and could be lifted by three to four workers. At the time the accident occurred~ plaintiff and his co-workers had been installing windows on the third and fourth floors of the building for approximately five days. According to plaintifrs deposition testimony> the installation process was made more difficult by the tact that the windows were fJang~ and needed to be instaJJed from the outside of the building. However~ because the windows were stored inside the building, each window needed to be manually carried to the RO, passed th.rough the RO at a 45- degree angle to workers standing on a scaffold outside the window opening, and then in stalled into the RO~ s using screw guns and caulk. Plaintiff further testified that the installation process would have been easier had the windows been hoisted to the RO's using a ~~1u1 r~ positioned outside the building. 4 [* 4] 4 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 On the day of the accidentt plaintiff and his Above All coworkers were supervised by a foreman by the name of ~'Steve." According to plaintiff, on the day of the accident, an individual he described as being ·white~ male, YO\lll& blondish hair, skinnyn told Steve that only four Above All employees should be used to carry the windows to the RO jnstead. of six workers. In particular, plaintiff testified that this individual stated that the work needed to be performed faster and the other two employees could be used to carry out other work on the project. Plaintiff testified that he believed that this individual was employed by '1he GC.~' Howevert KSD's owner, Rudolf Kalaitchev, and 59 South's Project Developer, Roger Bittenbender~ both testified that an individual by the name of Max Bent met this description. Mr. Bittenbender further te&tified that Mr. Bent was employed as the Project Manager by KUB Capital and that 59 South had hired KUB Capital to manage the project. Mr. Kalaitchev testified that Mr, Bent worked for 59 South. The accident occurred as plaintiff and three co-workers were carrying a window on the third floor of the building from where it was stored to an RO approximately 10 feet away. While transporting the windowt plaintiffand another worker held the bottom ofthe window and two other vrorkers positioned behind plaintiff held the top of the. wfodow. Plaintiff testified that he held the window at hip level with his right hand using a suction cup th.at was affixed to the windQw whHe the two workers positioned behind plaintiff held the top end of the window above their heads. After moving the window approximately five fe~ plaintiff testified that i~I felt the weight extremely change, and the window went down and it took my ann. I had a hard shock through my ann, and hit the ground, but I tried to pull back at it to maybe bounce it like two inches and then we were done.n s [* 5] 5 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 Although plaintiff never determined what exactly caused the accident, he sunnised that one of the workers positioned behind him lost his grip on the window, which caused the window to drop and also caused a sudden increase in the amount of weight being born by his right hand and arm. As a result of the accident, plaintiff suffered various injuries to his right ann and wrist. On or about September 8, 2017 >plaintiff filed a summons and complaint against KSD and 59 South seeking to recover for the injuries that he sustained in the accident. Among other things> the complaint alleged that plaintiffs injuries were caused by violations of Labor Law§§ 200~ 240 (I) and 241 (6), as well as common-law negligence. Thereafter, KSD and 59 South filed answers to the complaint. On May 4, 2018~ 59 South commenced a third-party action against NSW seeking common-law and contractual indemnification. On July 5~ 2018~ KSD commenced a third-party action against NSW and North Shore Window & Door Inc. (North Shore) seeking common-law and contractual indemnification. In an order dated August 15~ 2019~ the court granted North Shore's motion to dismiss KSWts action against it. On January 4, 2019, NSW commenced a thirdparty action against Above All seeking common-law and contractual indemnificationt as well as damages for breach of contract to procure liability insurance. However) in a stipulation dated August 6. 2020, NSW discontinued this third-party action with prejudice. On August 21, 20201 59 South commenced a third-party action against Above All seeking contractual indemnification. Discovery is now complete and the instant motions are before the court. 6 [* 6] 6 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 AJ]lrmative Defenses Plaintiff moves for summary judgment dismissing all affinnative defen~s alleging that the accident was caused by his comparative negligence and that he assumed the risk of being injured. In support of this branch of his motion, plaintiff maintains thatt given his uncontroverted description of how the accident occutted in his deposition testimony, there is no basis for any finding that the accident was caused by his own negligence or that he assumed the risk of being injured. Here, plaintiff has made a prima facie showing of his entitlement to summary judgment on these grounds. KSD and 59 South have failed to submit any opposition to this branch ofplaintitrs motion. Accordingly, these affirmative defenses are dismissed. Plaintiffs Labor Law§ 240 (1) Cause of.Action Plaintiff moves for summary judgment under his Labor law § 240 (1) cause of action against KSD and 59 South. 59 South~ KSD~ and NSW separately cross-move for summary judgment dismissing plaintiffs Labor Law § 240 (l) claim against them.2 In support of his motion, plaintiff initially notes that 59 South and KSD are subject to liability under the statute inasmuch as 59 South owned the building and KSD served as lhe general contractor on the underlying project. In further SUJ)))ort of his motion, plaintiff submits an expert affidavit by Robert T. Fuchs, a licensed professional engineer in the State of New York and a Board-Certified Safety Professional. Aecording to Mr. Fuchs, more than four i The court notes that NSW moves, in mot. seq. 6J for summary judgment dismissing plaintiff's Labor Law§§ 240 (l)J 241 (6), and 200 claims against jt, However, it does not appear that plajntiff has asserted any claims against NSW. In any event, plaintiff does not oppose NS W's motion for summary judgment dismissing all Labor Law claims against it. 7 [* 7] 7 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 workers should have been used to manually hoist and transport a window weighing between 250-500 pounds. Mr. Fuchs further opines that plaintiff and his coworkers should have been provided with hoists:- ro_pes,. lifts,. platforms, wheeled carts or other similar devices in order to hoist and transport the window, and the failure to do so was a violation of Labor Law § 240 (I) inasmuch as dds fitilure subjected plaintiff to the- gravity-related hazard posed by the weight ofthe fallen window. In further support of his motion for sumnuny judgment under Labor Law § 240 ( l) ~ plaintiff maintains that his iitjuries directly flowed from the application of the force of gravity n()twithstanding the fact that he did not faU from a height and was not struck by a falling objec:1. In particular, plaintiff notes that when his co-worker dropped the window, the gravitational forces acting upon the part of the window that he was carrying greatly increased~ thereby causing injuries to pJaintiW s right hand, wrist and ann. Acc:ording to plaintiff, this is similar to the fact pattem in Runner v New York Stock Exch., Inc. ( 13 NY3d 599 [2009]). In addition plaintiff argues that the mere tact that he was at the same level 9 as the window at the time of the accident does preclude recovery under Labor Law § 240 (1) given the Court of Appeals' ruling in Wilenskiv 334 E. 9.r' Housing Dev. Fund Corp. (18 NY3d 1 {2011]). Finally, in opposition to KSD, 59 South, and NSW1 s cross motions for summary judgment dismissing his Labor Law § 240 (1) claim, and in further support of his own motion for summary judgment under the statute, _plaintiff raises the alternati.ve argument that the statute was violated inasmuch as crane or 'flull1' should have been used lo hoist the window to the RO from outside the building. In support of this argument,. plaintiff points 8 [* 8] 8 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 to his own deposition testimony~ wherein he stated that the windows were flanged and were meant to be installed from the outside of the building. According to plaintiff~ had the defendants used a lull to install the windows, his accident wou1d not have occurred. In opposition to this branch of plaintiff's motiont and in support of their own respective cross motions to dismiss plaintiffs Labor Law § 240 (1) cause of action, 59 South, KSD and NSW aU argue that the accident was not the result of an elevation-related hazard or gravity-related risk encompassed by the statute. Instead~ these defendants maintain that gravity only played a tangential role in the accident, and the use of the safety devices enumerated in the statue was not warranted given the nature of the work and the lack of a significant elevation-related hazard. In support of this argument, 59 Souili; KSD and NSW note that plaintiff did not fall from a height, nor was he struck by a falling object. Instead, plaintiff was merely carrying a window at the time of the accident and his injuries occurred when his coworker lost his gdp on the window, thereby causing the weight to shift According 59 South, KSD, and NSWt numerous AppeUate Division decisions issued both before and after the Court of Appeals' detennination in Runner have ruled that accidents of this type do not fall under the protection of Labor Law § 240 ( l )~ but instead are deemed to have arisen out of the usual and ordinary dangers aasocfated w1th construction work. In further support of it$ cross motion for summary judgment, NSW submits an expert affidavJt by Robert Flynn~ a Llcensed Professional Engineer. According to Mr. Hynnt the methods used by Above Alrs workers to install the windows confonned to industry standards. Mr. Flynn also avers that the use of a lull or hoist was not required for 9 [* 9] 9 of 24 INDEX NO. 517485/2017 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 07/13/2022 the installation of the windows. As a final matter1- NSW maintains that plaintifrs Labor Law claims must be dismissed against it since it was not an owner or general contractor, and is not subject to liability under the Labor Law. In reply to KSD, 59 South, and NSW's arguments,. plaintiff agrees that NSW is not a proper Labor Law defendant and does not oppose it.s motion to dismiss all Labor Law claims against it. However, plaintiff contends that the defendants 1 arguments that the accident is not covered under Labor Law § 240 (1) are without merit. In particular, plaintiff argues that all of the cases cited by the defendants either pre-date the Court of Appeals t rulings in Runner and Wilensky or are distinguishable given the facts in the instant case. Labor Law § 240 (I) provides, in pertinent part, that: ''All contractors and owners and their agentss except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection,. demolition, repairin~ [or] altering ... of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor,. scaffolding9 hoi$ts,. stays, ladders, slings, hangers, blocks,. pulleys9 braces, irons, ropes, and other devices which shall be so constructed~ placed and operated as to give proper protection to a person so employed.» Labor Law§ 240 (I) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay. ladder or other proteetive device proved inadequate to shield an injured worker from harm directly flowing from the application of the. force of gravity to an object or personH (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, SO 1 [1993]). In order to accomplish this goal, the statute places the responsibility for safety practjces and safety devices on owners, general contractors~ and their agents who nare best situated to bear that responsibility (id. at 500; see also Zimmer v Chemung County Pe,f Arts, 65 NY2d 513~ 99 10 [* 10] 10 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 520 [1985]). Fu.rthert ii[tJhe duty imposed by Labor Law§ 240 (1) is nondelegable and ... an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work)' (Ross, 81 NY2d at 500). Given the exceptional protection offered by Labor Law§ 240 {1), the statute does not cover accidents merely tangentially related to the effe-cts of gravity. Rather, gravity must be a direct factor in the accident as when a worker falls from a height or is struck by a falling object (Ross, 81 NY2d at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509~ 513 f 199 I}). However, "the applicability of the statute in a falling object case . . . does not ... depend upon whether the object has hit the worker. The relevant inquiry ... is whether the harm flows directly from the application of the force of gravity t() the object (Runner, 13 NY3d at 604). At the same time, the mere fact that an object fell and caused injury is insufficient to demonstrate a violation of Labor Law § 240 (l) (Narducci v Manhasset Bay Assoc.~ 96 NY2d 259,269 [2001]). The plaintiff must show that the object fell while being hoisted or se-cured because of the absence of or inadequacy of a safety device iisted in the statute or that the falling object required securing given the nature of the work (Chu.qui v Amnn, LLC~ 203 AD3d 1018;, 102012022]; Simmons v City of New Yor-k, 165 AD3d 725, 727 [2018]). As an initial matter, there is no merit to plaintifrs argument that his injuries were proximately caused by a violation of Labor Law § 240 (1) inasmuch as KSD and 59 South fajJed to provjde a crane or JuJJ to hoist the windows into position from outside the building. WhHe it may be tru.e that it would have been easier to install the windows using this method,. 11 [* 11] 11 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 p]aintiffwas not iajured while instaUing the window into the RO. Rather~ he was injured white carrying the window from a storage area to the RO. In any event, Above Airs Service and Installation Manager~ Mike TempJ~ testified that there was no room to position a lull outside the building because the building was located on a city street and scaffolding was erected outside the building. Plaintiff has railed to submit any evidence refuting th.is claim. Turning to plaintiffs alternate theory of liability under Labor Law § 240 (I)~ the Appell~te Division has long held that injuries sustained by workers who are manuaUy lifting, maneuverin~ or carrying heavy objects across level surfaces at construction sites are not covered by the statute (Branch v 1908 West Ridge Rd UC, 199 AD3d 1362 [20211; Christie v Live Nation Concerts, Inc., 192 AD3d 971:. 973 [2021]~ Lemus v New York B Realty Corp.~ 186 AD3d 1351, 1352 [2020]; Simmons v City ofNew Yorkt 165 AD3d 725, 727 [2018]; Jackson v Hunter Roberts Constr. Groupt UC, 161 AD3d 666, 667 [2018]~ Narrmv v Crane-Hogan Structural Sys,, 202 AD2d 84lt 842 [1994]). In ruling that these types of accidents are not covered under Labor Law§ 240 (1), the courts have found that the injuries were the result of routine workplace risk (Branch~ 199 AD3d at 1362~ Lemus 186 AD3d 1351, 1352), were not caused by the failure to provide protection against eJe.vation-related hazards (Christle;, 192 AD3d at 973, did not involve a falling object lh3:t was being hoisted or secured or that required securing given the nature of the work (Simmon.s1 165 ADJd at 7.27; NOTrow, 202 AD2d st 842),. and/or did not involve a physically significant height diff~rential (Jackson~ 161 AD3d at 667). 12 [* 12] 12 of 24 INDEX NO. 517485/2017 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 07/13/2022 Here, the window that plaintiff and bis coworkers were manually canying at the time of the accident was not being hoisted, nor did it require securing given the fact that the window was being carried to the RO. Thus~ the accident was not caused by the failure to provide protection against a risk arising from a physically .signi:tfoant elevation differential and is not covered under Labor Law § 240 (l ). Rathert the accident was caused by the ordinary and usual dangers associated with construction sites. Contrary to plaintiff's argument9 the fact that plaintiff was injured when his co-worker dropped the portion of the window that he was carrying does not mnndate a finding of a Labor Law § 240 ( l} violation (Simmons~ 165 AD3d at 726; Narraw, 202 AD2d at 841--84-2). Moreover1' plaintiff's reliance on the Court of Appeals rulings in Runner and Wilensky is misplaced as the facts in the instant case are readily distinguishable. In particular in Runner, the plaintiff was 9 injured during a hoisting operation when a "jerry.rigged devise'' comprised of a rope wrapped around a pole proved inadequate to safely lower an 800-pound reel of wire down a staircase (Ru,mert 13 NY3d at 602). In contra.st,, the instant accident did not take place during a hoisting operation as plaintiff and his co-workers were merely carrying the window across a level floor. In Willenski~ the Court ruled that there was an issue of-fact as to whether Labor Law § 240 ( l) safety devices should have been em.ployed to secure two vertical pipes that fell on top of a plaintiff during demolition operations since the pipes were not slated fordemo11tioo at the time the accident occurred (Willenski~ 18 NY3d at 11). Here9no Labor Law § 240 (I) devices could have been used to secure the window since it was being manually carried across the room at the time of the accident. 13 [* 13] 13 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 Accordingly, those branches of KSD and 59 South~s cross motions for summary judgment dismissing plaintiffs Labor Law§ 240 (1) claim against them are granted and pJruntHPs motion for summary judgment against KSD and 59 South under Labor Law § 240 (l) is denied. Further~ to the extent that plaintiff has asserted a Labor Law§ 240 (I) daim against NS W~ said claim is dismissed on consent. Plainliffs la/Jor Law 241 (6) Cans.e ofAclio11 NSWt 59 Sou~ and KSD separately cross~move for summary judgment dismissing p1a,ntiff's Labor Law § 241 (6) cause of action. In so moving, these defendants all raise the same argument. Specifically~ the defendants contend that the New York State Industrial Code provisions which plaintiff alleges were violated are either inapplicable given the circumstances of the accident or are not specific enough to support a Labor Law § 241 (6) claim. Plaintiffbas not submitted any opposition to these branche:s ofNSW, 59 South. and KSD's respective motions. Labor Law§ 241(6) provides, in pertinent part, that: ~'All areas in which constructio~ excavation or demolition work is being performed shall be so constructed, shore4 equippedt guarded~ arranged,. operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places.n Labor Law § 241 (6), whfoh was enacted to provide workers engaged in construction~ demolition, and excavation work with reasonable and adequate safety protections, places a ncmdelegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (Rass1 81 14 [* 14] 14 of 24 ~ ' INDEX NO. 517485/2017 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 07/13/2022 NY2d at 501-502). Accordingly, in order to support a cause of action under Labor Law § 241 (6), a plaintiff must demonstrate that his or her injuries were proximately caused by a vjo]ation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a specific standard of conduct rather than a mere reiteration of common-law principles (id at 502; Ares v State, 80 NY2d 959,960 (1992); see also Reyes v Arco Wentworth Mgt. Corp.,, 83 AD3d 4 7) 53 [20 II]). Here~ plaintiffs bill of particulars alleges violations of 12 NYCRR 23 .. 1,2 (a), 1. 7 (a) (2), 1.5 (a), 1.5 (c), l.lS(a-e), 1.16 (b-f), l.l 7 (b-e), 5.1 (a), (c) (1)1' (c) (2), (e) (1), (f), (g)" (h), 0) and (1), 23-5.3 (e)~ 5.4 (a), 5.6 (e), 5.8 (a-h)9 5.9, 5.9 (d) and (e) (2). The moving defendants have made a prirna facie demonstration that these regulations are either too general to support a Labor Law§ 241 (6) claim, or inapplicable given the circumstances surrounding the underlying accident. Further, as noted above, plaintiff has failed to submit any opposition to this branch of KSD, 59 South, and NSW's respective motions. Accordingly1 the moving defendants' cross motions for summary judgment dismissing plaintiffs Labor Law§ 241 (6) cause of.action is granted. Plaintiff's Labor Law § 200/Conunon-Law Negligence Claims KSD and 59 South separately cross~move for summary judgment dismissing plaintiff's Labor Law§ 200 and common-law negligence claims against them. In support of this branch of their respective motions, both defendants argue that they did not exercise control and supervision over plaintifrs work and did not have notice of any dangerous condition that may have caused the accident. 1S [* 15] 15 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 In opposition to KSD • s cross motion to dismiss his Labor Law§ 200 and commonlaw negligence clajms, plaintiff maintains that there is evidence that KSD supervised the manner in which Above All carried out its window installation work. Plaintiff further maiutajus that there js evidence that KSD controlled Above All's work by making the determination not to use a lull to install the windows from outside of the building. Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work ( Ch.owdhwy v Rodriguez, 57 AD3d 12I~ 127-128 [2008)). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those who exercise control or supervision over the plaintiff's wo~ or who have actual or constructive notice of the unsafe condition that caused the underlying accident (Bradley v Morgan Stanley & Co., Inc.~ 21 AD3d 866~ 868 (200SJ; Aranda v Park East Constr., 4 AD3d 315 [2004]; Akins v Baker, 247 AD2d 562, 563 [1998]). Specifically~ ii[w]here a premises condition is at issue~ property owners [and contractors] may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accidenf' (Ortega v Puccia, 51 AD3d 54, 61 [2008]). On the other handt "[w]here a plaintifrs claims implicate the means and methods of the work~ an owner or a contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the perfonnance of the work. General supervisory authority to oversee the progress of the work is insufficient to impose liability. If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercises no supervisory 16 [* 16] 16 of 24 INDEX NO. 517485/2017 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 07/13/2022 control over the work, no liability attaches under Labor Law§ 200 or the common law" {laRosa v JnternapNet>Pork Serv. Cm-p.~ 83 AD3d 905 [2011})~ Here, the accident arose out of the means and methods that plaintiff and his Above All co-workers employed in transporting the window to the RO. Accordinglyt in seeking summary judgment dismissing plaintiff's Labor Law§ 200 and common-law negligence daims~ it was incumbent upon KSD and 59 South to demonstrate that they lacked the authority to control and/or supervise the performance of the work. However~ neither KSD nor 59 South have met their pri111a fade burden in this regard. In particular, 59 South's memorandum cf 1aw in support of its swmnaiy judgment cross motion merely states that it "wiU demonstrate that apart from having general control over the project as a whole and retaining a general power to stop any unsafe work. practices, it neither knew of the specific unsafe work practice that allegedly led to the plaintiffs accident, nor did it have specific supervisory control over the alleged unsafe work practice.» 59 South has not submitted any affidavits or pointed to any specific deposition testimony which demonstrates that it lacked the authority to control and supervise the work. Further~ 59 South has failed to point to any evidence that its representative Max Beni who was present at the jobsite on a daily basis~ lacked such authority. Similarly, KSD1 s memorandum of law merely states in c.onclusory fashion that ~~[t}here is no evidence that [KSD] directedt controlled, or supervised the means and methods ofthe work at the site~ and that f'[p Jlaintiff r«.eived his instructions from his foreman and not from anyone on behalf of [K.SDV~ KSD has failed to submit any affidavits or point to any specific deposition testimony supporting these claims. Accordingly, those branches of KSD and 59 South s respective cross motions 9 17 [* 17] 17 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 which seek summary judgment dismissing plaintiffs Labor Law§ 200 and common-law negligence- claims must be denied regardless of the s.ufflde-,ncy of the opposing papers (Cruz v Cablevision Systems Corp.~ 120 AD3d 744t 748 [2014]). However~ NSW's cross motion for summary judgment dismissing these claims is granted without opposition. 59 Soutl, ;s Contractual lndemnijication Clu/111 AgainstA/Juve All Above All cross-moves for summary judgment dismissing 59 South ts contractual indemnification claim against it. At the same time~ 59 South cross-moves for summary judgment under its contractual indemnification claim against Above AH to the extent that a judgment is entered against 59 South in excess of the additional insured coverage extended to 59 South by Above All's liability insurance carrier. In support of its cross motion for summary judgement dismissing 59 South~s contractual indemnification claim against it, Above All points to the contract between NSW and Above All. In particular, this contract contained a clause whereby Above All agreed to indemnify the property owner (i.e. 59 South) for claims "arising out of or resuJting from performance of [Above AWsJ work to the extent caused by the negligent acts or omissions of [Above All]." Above All maintains. that its obligation to indemnify 59 South was never triggered inasmuch as the accident was not caused by its negligent acts or omissions. In support of this contentiont Above AJJ points to Mr~ FJynn ~ s aforementioned affidavit in whic::b he avers that the methods used by Above All's workers to install the windows conformed to industry standards. fn opposition to this branch of Above AlPs cross motim'.4 and in support of its own cross motion for summary judgment under its contractual indemnification claim against 18 [* 18] 18 of 24 INDEX NO. 517485/2017 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 07/13/2022 Above All9 S9 South maintains that ifit is ultimately found liable for plaintiffs injuries9it will be due to Above AWs failure to provide the proper equipment to hoist and transport the window. The right to -contractual indemnification 1s- dependent upon the specific language in the contract (Reisman v Bay Shore Union Free School Dist., 74 AD3d 772~ 773 [2010]). In this regard_. the obligation to indemnify should only be found where it is clearly indicated in the language in the contract (George v Marshalls of MA., lnc. 61 AD3d 925) 930 9 [2009]). Finally~ a party seeking contractual indemnification must demonstrate that it was ·free of negligence since a party may not be indemnified for its own negligent conduct (Cava Constr. Co. Inc. v Gaeltec Remodeling Corp., 58 AD3d 660, 662 [2009]). 1 As an initial matter, the court notes that, ina.,much as the court has already dismissed plaintiffs Labor Law §§ 240 (I) and 241 (6) claims against 59 South~ the subject contractual indemnification claim is only relevant as it relates to attorney's fees. Here~ there are issues of fact as to whether the accident was caused by Above Airs negligenee in only assigning four workers to carry the window. In particulart while Mr. Flynn opines that four workers were sufficient,. plainti:trs ex.pert Mr. Fuchs opines that this was not an adequate number of workers given the weight of the window. Accordingly, since Above All's obligation to indemnify 59 South is dependent upon a finding that its negligence caused the accident, both 59 South and Above AJrs cross motions for summary judgment on the contractual indemnification claim must be denied. 19 [* 19] 19 of 24 INDEX NO. 517485/2017 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 07/13/2022 59 South's Contractual IndemnijicaJion Claim Against NSW 59 South cross-moves for summary judgment under its contractual indemnification claim against NSW. In suwort of this branch of its cross motion~ 59 South points to the jndemnification clause in the contract between NSW and KSD. In particular~ under the tenns of this clause~ NSW agreed to indemnify 59 South against "any and &.II claims ... arising from or in connection with [NSW~s] perfonnance of the work.n Heret 59 South maintains that the accident clearly arose out of the window installation subsequently delegated ta plaintiffs employer,, Above AU. work that NSW Accordingly,, 59 South maintains that it is entitled to summary judgment under its contractual indemnification claim against NS W. In opposition to this branch of 59 South's cross tnotion, NSW argues that there are issues of fact regarding whether 59 Southts own negligence caused the accident. In particulart NSW notes that plaindff testi.fied that an individual that meets the descr:iptfon of 59 South's project manager (Mr. Bent) directed that the window be carried by four individua, s instead of six. NS W further notes that plaintifP s expert, Mr. Fuchs, states in bis affidavit that four workers could not safely lift and carry the window given its weight. Accordingly,, given this issue of fact regarding 59 South~s negligence~ NSW argues that 59 South is not entitled to summary judgment under its contractual indemnification claim as aga ittst it. As previously noted~ a party seeking contractual indemnification must demonstrate that it was free of negligence (Cava Constr. Co .• Inc., 58 AD3d at 662). Here, 59 South has failed to make such a demonstration. Moreover, given plaintiff's testimony that an 20 [* 20] 20 of 24 INDEX NO. 517485/2017 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 07/13/2022 individual who meets the description of Mr. Bent directed that the window be carried by on]y four workers~ there are issues of fact regarding whether 59 South was negligent. According]y, 59 South~s cross motion for summary judgment under its contractual indemnification claim against NSW is denied. 59 South's Contractual lndemnifreation Claim Against KSD 59 South also cross-moves for swnmazy judgment under jts contractua.1 indemnification claim against KSD. In support ofthis branch ofits motion~ 59 South points to the indemnification clause in the contract between 59 South and KSD. In this regard, the clause provides thai H[KSD] shall indemnify and hold harmless {59 South) ... from and against claims, damages~ losses and expenses, including but not limited to attorneys' fees~ arising out of or resulting from performance of the Work ... but only to the extent caused by lhe negligent acts or omissions of[KSD], [or] a Subcontractor." Here, 59 South maintains thatt ifit is uJtimately held liable in this case, it will be based upon the negligence of either KSD~ NSW~ or Above All because plaintiff WM not furnished with adequate equipment to lift and carry the window. 59 South further contends that under the tenns of the indemnification clause, KSD's obligation to indemnify will be triggered regardless of which contractor is found to be neg(igent. In opposition to this branch of 59_ South~s cross motion, KSD argues that 59 South has failed to demonstrate that it was free from negligence with regard to the occurrence of plaintiffs accident and that it is possible that the jury may detennine that 59 South was negligent with regard to p laintifr s accident. KSD further maintains that~ inasmuch as 59 21 [* 21] 21 of 24 INDEX NO. 517485/2017 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 07/13/2022 South tendered its defense to KSD~s insurance canier~ 59 South's contractual indemnification claim against KSD violates the law regarding anti-subrogation. He~ the C-Ourt has already determined 1hat 59 South has failed to demonstrate that it was free from negligence and that there are issues of fact regarding whether 59 South~s negligence contributed to the accident. Accordingly, 59 South's cross motion for summary judgment under its contractual indemnification claim against KSD is denied. KSD 's Contractual Indemnification Claim Against NSJfP KSD cross-moves for summary judgment under its contractual indemnification claim against NSW. In support of this branch of its motion~ KSD relies upon the aforementioned indemnification clause in the contract between KSD and NSW. In particular, KSD notes that this provision required that NSW indemnify KSD for any claims or accidents arising out of the work regardless of whether or not they were caused by NSW~s negligence. KSD further maintains that the accident clearly arose out of the work 1hat NSW was hired to perform inasmuch as NSW subsequently delegated this work to plaintiffs employert Above All. Finally, KSD maintains that this indemnification provision is fully enforceable since the accident was not caused by any negligence on its part. In opposition to this branch of KSD's cross motion, NSW argues that there are triable issues of fact regarding whether KSD~s negligence caused the accident ~ The court notes that in In its reply affrrmation {NYSCEF Doc. No. 209), NSW maintains that KSD did not oppose NSW,s cross motion to dismiss KSD's thlrd..party claims agairun NSW. However, NS W's cross motion (mot. seq. 6) did not contain any argument in support of its motion to d.ismi ss KSD' s third-party claims. 22 [* 22] 22 of 24 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 INDEX NO. 517485/2017 RECEIVED NYSCEF: 07/13/2022 particular~ NSW notes that KSD's owner {Mr. Kalaitchev) testified that he supervised the work performed by Above All employees and was responsible for ensuring that the work was perfonned in a safe manner. NSW also notes that plaintiff testified that an employee that he believed worked for the general contractor gave instructions that the window being transported at the time of the accident should be carried by four employees instead of six. As previously noted, a party moving for summaJY judgment on a contractual indemnification claim must demonstrate that it is free of any negligence. Here, KSD has not met this burden. In this regard, KSD merely st.ates, in oonclusory fashion, that there was no evidence that it was negligent. Moreover, there is a triable i"ssu.c of fact regarding whether KSD's negligence played a role in the accident. In particular, Mr. Kalaitchev testified that he supervised the work perfonned ftom Above All and when asked if he supervised the manner in which the windows were installed '1o make sure it was safe," he repUedJ ..I make sure people are safe)) (Kalaitchev Deposition, pp. 23-24). Accordingly, that branch of KSD s cross motion which seeks summazy judgmttnt under its cootractuaJ 9 indemnification claim against NSW is denied. Summary In summary~ the court rules as follows: (1) that branch of plaintiffs motion, in mot. seQ. 4 which seeks SlJJllmw:y judgment under his Labor Law§ 240 (l) claim against KSD 9 and 59 South is denied. That branch ofplaintiff's motion which seeks summary judgment dismissing all comparative negligence and uswnption of risk affirmative defenses against him is granted; (2) those branches ofNSW and Above All's cross motion,. in mot. seq. 6J 23 [* 23] 23 of 24 INDEX NO. 517485/2017 FILED: KINGS COUNTY CLERK 07/13/2022 01:55 PM NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 07/13/2022 which seek summary judgment dismissing plaintifrs Labor Law claims against NSW is granted. That branch of NSW and Above Alts cross motion which seeks summary judgment dismissing 59 South's contractual indemnification claim against Above AU is denied; (3) those branches of 59 Soutb)s cross motion> in mot. seq. 7, which seeks summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims against it are granted. That branch of 59 South~s cross motion which seeks summary judgment dismissing plaintiffs Labor Law § 200 and common-law indemnification claims against it is denied. Those branches of 59 South"s cross motion which seeks summary judgment under its contractual indemnification claims against Above AJJ'.' NSW.- and KSD are denied.~ ano (4) those branches of KSD's cross motion) in mot. seq. 8, which seek summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims against it is granted. That branch of KSD~s cross motion which seeks summary judgment dismissing Labor Law § 200 and common-law indemnification claims against it is denied. That branch of KSD~s cross motion which seeks summary judgment under its contractual indemnification claim against NSW is denied. This constitutes the decision and order of the court. - ENTER, J. S. C. 24 [* 24] 24 of 24 - w ,:•:' : : .... ~ . .

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