Simpson v Success Academy Charter Schs., Inc.

[*1] Simpson v Success Academy Charter Schools, Inc. 2023 NY Slip Op 50181(U) Decided on February 3, 2023 Supreme Court, Kings County Thomas, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 3, 2023
Supreme Court, Kings County

Crystal Mack Simpson, as Administratrix of the Estate of Stephen C. Simpson, Plaintiff,

against

Success Academy Charter Schools, Inc., 555 Tenth Avenue, LLC, Gilbane Building Company, Richter & Ratner Contracting Corp., Extell Development Company, Five Star Electric Corp., Infinity Elevator Company, Inc., Patriot Electric Corp. and City Safety Compliance Corp., Defendants.



Richter & Ratner Contracting Corp., Third-Party Plaintiff,

against

City Safety Compliance Corp. And Patriot Electric Corp., Third-Party Defendants.



Index No.: 514131/2018



Attorney for the plaintiff CRYSTAL MACK SIMPSON

Gail Kelner, Esq.

KELNER & KELNER

140 Broadway, 37th Floor

New York, New York 10005 Attorney for the defendant SUCCESS ACADEMY CHARTER SCHOOLS, INC.

Paul Plush, Esq.

CULLEN AND DYKMAN, LLP

44 Wall Street, 15th Floor

New York, New York 10005

Attorney for the defendant 555 TENTH AVENUE LLC

Andrew L. Klauber, Esq.

MALAPERO PRISCO & KLAUBER LLP

271 Madison Avenue, 17th Floor

New York, New York 10016

Attorney for the defendant GILBANE BUILDING COMPANY

Douglas H. Miller, Esq.

ROPERS MAJESKI, a Professional Corporation

750 Third Avenue, 25th Floor

New York, New York 10017

Attorney for the defendant RICHTER & RATNER CONTRACTING CORP.

Peter A. Gaudioso, Esq.

MCELROY DEUTSCH MULVANEY & CARPENTER LLP

225 Liberty Street, 36th Floor

New York, NY 10281

Attorney for the defendant EXTELL DEVELOPMENT COMPANY

Andrew L. Klauber, Esq.

MALAPERO PRISCO & KLAUBER LLP

271 Madison Avenue, 17th Floor

New York, New York 10016

Attorney for the defendant FIVE STAR ELECTRIC CORP.

Beth L. Rex, Esq.

FRENCH & CASEY LLP

29 Broadway, 27th Floor

New York, New York 10006

Attorney for the defendant INFINITY ELEVATOR COMPANY, INC.

Lauren M. Solari, Esq.

HEIDELL PITTONI MURPHY & BACH, LLP

99 Park Avenue

New York, NY 10016

Attorney for the defendant PATRIOT ELECTRIC CORP.

Marc M. Mahoney, Esq.

HEIDELL PITTONI MURPHY & BACH, LLP 99 Park Avenue

New York, NY 10016
Delores J. Thomas, J.

Upon the foregoing papers in this wrongful death action: (1) defendant Richter and Ratner Contracting Corp. (Richter) moves, in motion (mot.) sequence (seq.) 3, for an order pursuant to CPLR 3212, awarding it summary judgment dismissing plaintiff Crystal Mack Simpson, as Administratrix of the Estate of Stephen C. Simpson (plaintiff) action against it. (2) Defendant Success Academy Charter Schools, Inc. (Success) moves, in mot. seq. 4, for summary judgment dismissing plaintiff's complaint against it.[FN1] (3) Defendant Infinity Elevator Company, Inc. (Infinity) moves, in mot. seq. 7, for summary judgment dismissing plaintiff's complaint against it. (4) Defendants 555 Tenth Avenue, LLC (555 Tenth) and Extell Development Company (Extell) move, in mot. seq. 8, for summary judgment dismissing plaintiff's complaint against them. (5) Defendant Gilbane Building Company (Gilbane) moves, in mot. seq. 9, for summary judgment dismissing plaintiff's complaint against it. (6) Defendant Five Star Electric Corp. (Five Star) moves, in mot. seq. 10, for summary judgment dismissing plaintiff's complaint against it. (7) Success moves, in mot. seq. 13, for an order pursuant to CPLR 3214 (b), staying discovery pending the determination of its summary judgment motion. (8) Richter moves, in mot. seq. 14, for an order pursuant to CPLR 3214 (b), staying discovery pending the determination of its summary judgment motion. (9) Defendant/third-party defendant Patriot Electric Corp. (Patriot) moves, in mot seq. 15, for summary judgment dismissing plaintiff's complaint and all cross claims and third-party claims asserted against it. Plaintiff moves, in mot. seq. 16, for an order striking Extell and 555 Tenth's answers, precluding the use of all surveillance tape footage, and directing that 555 Tenth and Extell produce all surveillance tape out-takes.

Background Facts and Procedural History

The instant action arises out of fatal injuries sustained by plaintiff's husband, Stephen C. Simpson (decedent) on July 22, 2017 while attempting to exit an elevator stalled between floors on a construction site located at 555 Tenth Avenue in Manhattan (the building). At the time of the accident, there were two separate construction projects taking place at the building. One project involved the construction of a charter school in a commercial condominium owned by Success in an area comprising portions of the basement and first seven floors of the building (the Success Academy Project).[FN2] The other project involved the construction of the upper floors of the 51-story building (the Building Project).

Prior to the accident, on or about September 15, 2014, Extell hired Gotham Construction Co. LLC (Gotham) to serve as the construction manager on the Building Project. At the time it hired Gotham, Extell was the lessee of the building. Gotham then hired Five Star to perform electrical work on the Building Project. In December of 2014, Extell assigned its leasehold to [*2]555 Tenth, which owned the building. On or about March 3, 2015, Gilbane was assigned Gotham's duties as the construction manager on the Building Project. On December 2, 2016, 555 Tenth sold the aforementioned commercial condominium to Success, which planned on constructing a charter school in this portion of the building. On January 25, 2017, Success hired Richter to serve as the construction manager on the Success Academy Project. On March 10, 2017, Richter hired Patriot to perform electrical work on the Success Academy Project. It is undisputed that decedent was employed by Patriot at the time of his death. On May 17, 2017, Richter hired defendant City Safety Compliance Corp. (City Safety) to provide site-safety monitoring services on the Success Academy Project.

On the day of the accident (i.e., July 22, 2017), Five Star planned to perform a temporary shutdown of electrical power to the building in order to allow for the removal of two "hoist feeds" used in the Building Project. Although the Building Project and Success Academy Project were separate, both projects would be affected by the power shutdown since it involved cutting off electrical power to the entire building. Accordingly, coordination between the safety and electrical contractors involved on the two projects was required. In this regard, Five Star's "Shut Down Plan and Actual Timeline of Events Report" (NYSCEF Doc No. 262) indicates that Five Star's general foreman Leonard Bates arrived at the job site at 4:00 p.m. on the accident date and met with Gilbane's Site Safety Superintendent, Dominic Giarraputo and Patriot's general foreman regarding the scope of the work and the timing of the electrical shutdown. In particular, the report indicates that the designated time for the shutdown was 5 p.m. and that Patriot's general foreman was told to have his employees leave the jobsite by 4:30 p.m. The report further states that Patriot's employees left the jobsite at 4:30 p.m. and the construction gate to the entrance was locked. The report also states that Mr. Giarraputo and Mr. Bates met again at 5:00 pm and Mr. Giarraputo confirmed that the building entrance was locked and the construction space was vacant of workers and gave the green light to proceed with the shutdown. Finally, the report states that the electrical power was shut down at 5:15 p.m. and restored at 7:00 p.m.

According to the affidavit of Darwin Rivera, Patriot's foreman on the day of the accident, Patriot was informed for the first time at approximately 2:30 p.m. on July 22, 2017 that it would have to vacate the jobsite early due to the planned power shutdown. Mr. Rivera further states that he personally informed all of Patriot's employees, including the decedent, that they would have to leave the jobsite at 5:00 p.m. According to Mr. Rivera, he next saw the decedent at approximately 3:30 p.m., and the decent informed him that he had gotten permission to leave early in order to attend his son's birthday party. Mr. Rivera also states that at 3:45 p.m., he was informed by the site safety manager, James Espinoza, that all Patriot employees needed to vacate the jobsite by 4:30 p.m. Finally, Mr. Rivera avers that he was the last Patriot employee to leave the jobsite and as he was leaving, he witnessed a Richter laborer lock the jobsite.

With respect to decedent's activities on the day of the accident, Patriot's timekeeping records indicate that decedent "clocked out" at 3:37 p.m. on that day. A video surveillance camera at the jobsite shows decedent leaving the area at approximately 3:42 p.m. A separate camera shows decedent returning to the jobsite at approximately 5:00 p.m., whereupon he banged on the construction fence with his hand and attempted to gain access to the construction site through the locked construction fence door. The video surveillance footage then shows the decedent leave the area of the construction fence door and return several minutes later with an object in his hand that he used to pry open the door at approximately 5:07 p.m. Between 5:07 [*3]and 5:10, video surveillance footage shows the decedent in the construction yard outside the building. No other individuals are shown in the construction yard during this time. At 5:10, video surveillance footage shows the decedent open a metal door to the building and enter the building through that door.

On July 23, 2017, the day after the accident, Richter's foreman, Jose Vera, opened up the jobsite before 7:00 a.m., entered the building, and began unlocking and opening the doors in the stairwell leading to each floor. When he opened the stairwell door on the fifth floor of the building, he saw the decedent's body hanging out of a one-foot opening in the door to the elevator, which had stopped between floors.[FN3] In this regard, the decedent's feet, legs and lower torso were hanging in mid-air and his arms, upper-body and head were trapped inside the elevator car. At that point, the New York City Police Department (NYPD) and emergency services were called and it was determined that the decedent had died some time earlier.[FN4] The "summary of investigation" in the police report for the incident states: "It is ascertained that the [decedent] went back into the building and was stranded on the elevator when the power was shut off. The deceased then manually opened the elevator doors and attempted to squeeze through the one-foot opening onto the fifth floor when his upper body would not fit leaving him wedged causing accidental asphyxiation." After the accident, the decedent's cell phone was found in an area on the fifth floor of the building in which he had been working on July 22, 2017.

Following the decedent's death, plaintiff, who was the decedent's wife and the administratrix of his estate, filed a claim with the New York Workers' Compensation Board which was contested by the workers' compensation carrier. In particular, the carrier maintained that the decedent's death did not arise out of or occur within the course of employment since the decedent had clocked out for the day and broke into the closed worksite prior to his death. On September 11, 2017, a hearing was held before Workers' Compensation Law Judge Lori Carena at which plaintiff appeared and was represented by counsel. Following the hearing, Judge Carena issued a decision which found "[i]ssues in controversy have been raised by the carrier/employer. Issue is Accident after hours or working." On October 31, 2017 a second hearing was held before Judge Carena. Although plaintiff did not attend this hearing, her attorney did appear. Following the hearing, Judge Carena issued a decision disallowing the claim. In this regard, Judge Carena found that "the accident occurred after work hours. It is surmised that he was going back for a forgotten cell phone.[FN5] I find the accident did not arise out of and in the course of his employment." Plaintiff did not appeal the determination in the Workers' Compensation proceeding.

By summons and complaint dated July 11, 2018, plaintiff brought the instant wrongful death action against Success, 555 Tenth, Gilbane, Richter, Extell, Five Star, Infinity, and Patriot alleging that the decedent's death was caused by their violations of Labor Law §§ 200, 241 (6), [*4]240 (1) as well as their negligence. The complaint further sought damages for conscious pain and suffering. Thereafter, the defendants joined issue and served answers which generally denied the allegations in the complaint and asserted various cross claims. In addition, Richter commenced a third-party action against Patriot and defendant/third-party defendant City Safety. Finally, plaintiff filed an amended complaint naming City Safety as an additional defendant. The instant motions are now before the court.

Motions to Stay Discovery

Success and Richter separately move for an order, pursuant to CPLR 3214 (b), staying discovery pending the determination of the summary judgment motions presently before the court. Inasmuch as the dispositive motions are being determined in the instant decision and order, these motions to stay are now moot.

Plaintiff's Motion to Strike Extell and 555 Tenth's Answer

Plaintiff moves, pursuant to CPLR 3126, for an order striking Extell and 555 Tenth's answers. In the alternative, plaintiff moves for an order precluding the use of surveillance video's taken at the building and/or directing that Extell and 555 Tenth produce out-takes from all of the cameras at the subject building for July 22 and July 23, 2017. In the event that this evidence has been spoliated, plaintiff maintains that Extell and 555 Tenth's answer should be stricken. In support of this motion, plaintiff notes that she made two demands for all out-takes from video surveillance cameras outside and inside the building and Extell and 555 Tenth responded that the only surveillance video was provided to all the parties after it was obtained by Gilbane from the NYPD via a FOIL request. However, according to plaintiff, Extell's Vice President of Construction, Ryan Masters, testified at the Workers' Compensation hearing that 555 Tenth's residential manager and an Extell representative reviewed the videos taken at the building before the accident and selected what was provided to the NYPD. Plaintiff maintains that it is clear from this testimony that there were additional video out-takes that Extell and 555 Tenth withheld and otherwise culled this crucial evidence. In addition, plaintiff argues that the video that was provided was altered since there were periods of time where the video was blacked out. Plaintiff further contends that she has been prejudiced by this failure to provide all relevant video surveillance inasmuch as decedent cannot testify as to what occurred prior to the accident and she is at the total mercy of the defendants for evidence as to what occurred.

In opposition to plaintiff's motion, Extell and 555 Tenth initially note that the striking of a party's pleading pursuant to CPLR 3216 is an extreme remedy that is only warranted where their failure to comply with the discovery order was willful, deliberate, or contumacious conduct. Here, Extell and 555 Tenth maintain that they did not withhold or cull any surveillance videos. In particular, Extell and 555 Tenth note that Mr. Masters testified at the Workers' Compensation hearing that 555 Tenth's Resident Manager sat with an NYPD Detective to review the surveillance footage and the footage was provided to the NYPD after it showed plaintiff leaving the worksite at approximately 3:42 p.m., returning to the worksite at approximately 5:00 p.m., and entering the building shortly thereafter. In addition, Extell and 555 Tenth point out that Mr. Masters testified that the video was unaltered and the black-out periods were explained by the fact that, if the cameras did not pick up a certain percentage of motion, they do not record.

"[T[he drastic remedy of striking a [pleading] is inappropriate absent a clear showing that the [defendant's] failure to comply with discovery demands was willful and contumacious" (Polsky v Tuckman, 85 AD3d 750, 750 [2011], [citations omitted]). Here, plaintiff has failed to make such a showing. In this regard, it is undisputed that plaintiff has been provided with the [*5]surveillance video that was originally provided to the NYPD, which shows the decedent leaving the worksite after clocking out for the day, returning to the worksite, and entering the building before the accident. Further, there is no evidence that this video was altered. To the contrary, Mr. Masters' testimony indicates that the video was not altered. Finally, plaintiff's claim that there are additional relevant surveillance videos that were withheld, culled, or spoliated by Extell and 555 Tenth is speculative and not supported by any evidence. In particular, Mr. Masters testified that members of the NYPD investigating the decedent's death viewed all the surveillance videos taken by Extell/555 Tenth's cameras and took those portions of the videos which depicted the decedent as part of its investigation. Accordingly, plaintiff's motion to strike Extell and 55 Tenth's answer and/or preclude the use of the surveillance video is denied. However, inasmuch as plaintiff is entitled to all video out-takes pursuant to CPLR 3101(i), to the extent that they exist, Extell/555 Tenth are directed to provide plaintiff with copies of all video out-takes taken by their cameras at the jobsite for the time period 3:42 p.m. on July 22, 2017 (i.e., when the decedent first left the job site) and 7:00 a.m. on July 23, 2017 (i.e., when Mr. Vera opened up the jobsite the following morning).

Admissibility of Surveillance Videos

As a preliminary matter, the court must rule on the issue of whether or not the surveillance videos may be considered as admissible evidence in determining the instant summary judgment motions. In this regard, plaintiff maintains that the videos may not be considered by the court inasmuch as they are unauthenticated, there has been no testimony by a person with personal knowledge regarding the accuracy of the videos, and there has been no testimony by a person with personal knowledge regarding the creation of the video and its chain of custody.

In response to plaintiff's claims regarding the admissibility of the surveillance videos, and in support of their own summary judgment motions, the defendants raise various arguments. In particular, Success, Richter, Patriot and Five Star maintain that the videos are properly authenticated inasmuch as they were obtained from the NYPD via a FOIL request. In addition, Gilbane argues that plaintiff may not argue that the surveillance videos have not been properly authenticated when plaintiff's counsel improperly refused to allow plaintiff to identify the decedent in the video during the course of her deposition testimony. Gilbane also notes that, after being directed by the court to address this issue in an interrogatory, plaintiff responded that she "believes that the image of [the decedent] may be depicted in this footage." Finally, 555 Tenth and Extell maintain that the surveillance video was properly authenticated by sworn testimony during the Workers' Compensation hearing. In particular, 555 Tenth and Extell note that Mr. Master's testified at the hearing that Extell installed permanent surveillance cameras on the exterior of the building in the normal course of business. Mr. Masters further testified that he reviewed the surveillance videos in question and that video accurately depicted the premises outside where the accident occurred. Further, as previously noted, Mr. Masters testified that the video was not edited and the black-out periods on the video are explained by the fact that the cameras only record when there is a certain amount of motion. Finally, 555 Tenth and Extell point to the testimony of Michael Tek, who owned Patriot and personally knew the decedent. In particular, Mr. Tek testified that he viewed the video and identified the decedent as the individual who left the job site and subsequently returned and forced his way through the fence gate.

It is well-settled that in order for videos to be deemed admissible, they must be properly [*6]authenticated. "Testimony from the videographer that he took the video, that it correctly reflects what he saw, and that it has not been altered or edited is normally sufficient to authenticate a videotape" (Zigarelli v Hughes, 3 NY3d 64, 69 [2004]). Further, when there is no videographer, "[t]estimony, expert or otherwise, may establish that a videotape 'truly and accurately represents what was before the camera'" (People v Patterson, 93 NY2d 80, 84 [1999], quoting People v Byrnes, 33 NY2d 343, 349 [1974]). Finally, "[a]ny gaps in the chain of custody [of the video go] to the weight of the evidence, not its admissibility (People v Oquendo, 152 AD3d 1220, 1221 [2017], citing People v Hawkins, 11 NY3d 484, 494 [2008]).

Here, contrary to plaintiff's argument, the testimony of Mr. Masters and Mr. Tek during the Workers' Compensation hearing was sufficient to authenticate the surveillance video so as to establish that it truly and accurately represented what was before the camera. In particular, Mr. Masters testified that he observed surveillance video and determined that the video was taken by permanent surveillance cameras that Extell installed outside the building. Mr. Masters further testified that the video was not altered or edited and that it was provided to the NYPD as part of its investigation into the decedent's death. Furthermore, it is undisputed that this video was subsequently obtained from the NYPD via a FOIL request. In addition, Mr. Masters testified that the video accurately depicted the area where the accident occurred. Further, Mr. Tek, who personally knew the decedent, testified that decedent was the individual in the video breaking through the construction fence. Under the circumstances, the court finds that the surveillance video has been properly authenticated and is admissible evidence.

Plaintiff's Labor Law Claims

Richter, Success, Infinity, 555 Tenth and Extell, Gilbane, Five Star, and Patriot all move for summary judgment dismissing plaintiff's Labor Law §§ 240 (1), 241 (6), and 200 causes of action. In so moving, several of the arguments raised by these defendants are identical. In particular, all of the defendants argue that these claims are barred by the doctrine of collateral estoppel inasmuch as, after holding a hearing on plaintiff's Workers' Compensation claim, Judge Carena determined that the accident occurred after working hours and did not arise out of or in the course of the decedent's employment with Patriot. According to the moving defendants, this determination by the Workers' Compensation judge requires the dismissal of all of plaintiff's Labor Law causes of action since these claims only apply to the activities enumerated in the statutes and to individuals who were permitted or suffered to work at the jobsite at the time the accident occurred. Specifically, the defendants maintain that the Workers' Compensation judge's determination that the accident occurred after working hours and outside the course of decedent's employment necessarily requires a finding that plaintiff was not engaged in the type of construction, demolition, or excavation work covered under the statutes and further requires a finding that plaintiff's presence on the jobsite at the time of the accident was not permitted or authorized by his employer, the owner, or general contractor on the project.

In the alternative, the moving defendants argue that, even if there had been no ruling by the Workers' Compensation judge, the evidence before the court conclusively demonstrates that the decedent was not carrying out work protected by the Labor Law statutes, that he was not permitted or suffered to work at the construction site at the time the accident occurred, and that he was not engaged in an activity protected under the Labor Law when the accident occurred. In this regard, the moving defendants point to the surveillance videos which show the decedent leaving the jobsite at approximately 3:42 p.m. on July 22, 2017 after having clocked out for the day, and returning to the jobsite at approximately 5:00 p.m. and prying open the locked gate to [*7]the fence surrounding the jobsite. The moving defendants also point to the NYPD investigation report and work records which indicate that the jobsite was shut down and cleared of all workers prior to 5:00 p.m. in preparation for a temporary shutdown of electrical power to the building.

The moving defendants also maintain that plaintiff's Labor Law claims must be dismissed inasmuch as they had no duty to protect the decedent against the alleged hazards that led to his death. In particular, the moving defendants contend that the decedent's actions in returning to the job site after it had been closed down for the day, breaking through the gate in the exterior fence, breaking into the building, partially forcing open the door to the elevator cab after the elevator stopped working as a result of the power shutdown, and attempting to extricate himself from the elevator cab through the narrow gap created, was not foreseeable.

Moreover, 555 Tenth, Extell, Five Star and Gilbane argue that they are not subject to liability under the Labor Law for the injuries sustained by the decedent inasmuch as they were not owners, general contractors, or statutory agents with respect to the work performed on the Success Academy Project. In this regard, 555 Tenth and Extell note that the Building Project and Success Academy Project were completely different construction projects, with different owners, different general contractors, and different subcontractors. 555 Tenth and Extell further note that they did not own or lease the site of the commercial condominium which was the site of the Success Academy Project and did not hire any of the contractors engaged in work on the project, including the decedent's employer Patriot. Similarly, Five Star points out that it was hired to perform work on the Building Project rather than Success Academy Project where the accident occurred. Finally, Five Star contends that it had no authority to control or supervise any of the work carried out on the Success Academy Project.

In opposition to the moving defendants' motions to dismiss her Labor Law claims, plaintiff maintains that these claims are not barred by the doctrine collateral estoppel based upon the determination of the Workers' Compensation Board. In particular, plaintiff argues that the parties involved in the Workers' Compensation proceeding differ from the parties involved in this action since she was not appointed administratrix of the decedent's estate until after the conclusion of the Workers' Compensation proceeding and she did not represent the decedent's next of kin at the proceeding. Plaintiff also contends that she did not have a full and fair opportunity to litigate the Workers' Compensation judge's determination since she did not witness the accident and required discovery in order to defend against the insurance carriers' argument that the accident occurred after working hours. At the same time, plaintiff maintains that the Workers' Compensation Law judge improperly relied upon the surveillance video. In addition, plaintiff argues that there was no finding on any issue of fact in the Workers' Compensation proceeding which collaterally estops plaintiff from asserting Labor Law claims in this action since the Workers' Compensation judge merely "surmised" that decedent returned to the worksite to retrieve his cell phone. Plaintiff further contends that the Workers' Compensation judge's determination that the decedent was not injured in the course of his employment with Patriot was not a factual finding, but the ultimate conclusion of the Board, which does not give rise to collateral estoppel with respect to plaintiff's Labor Law claims.

With respect to the moving defendants' arguments that the surveillance videos, police reports and other documentation establish that plaintiff was a trespasser and was not engaged in any activities covered under the Labor Law at the time of the accident, plaintiff maintains that this evidence is not in admissible form since the videos and other records have not been authenticated. In addition, to the extent that the moving defendants rely on this argument, [*8]plaintiff argues that the motions are premature since none of the defendants have been deposed and claims regarding what the decedent was doing at the jobsite are speculative. According to plaintiff, the need for depositions is particularly critical in this case since the decedent is dead and evidence of what transpired at the jobsite prior to and up to the time of the accident is exclusively within the defendants' knowledge. In any event, plaintiff contends that the decedent was not a trespasser but a workman who was permitted to work at the worksite pursuant to his employment with Patriot. Finally, plaintiff argues that there were numerous safety violations that contributed to the accident including the lack of a watchperson at the construction site after hours, the lack of adequate fencing around the perimeter of the worksite, the failure to follow proper procedure and ensure that the elevators were empty and secure during the electrical shutdown, as well as the lack of functioning safety equipment on the elevator. In this regard, plaintiff points to a New York City Building Department report that was generated after the accident and found that the elevator's door zone restriction device was not functioning, the elevator's emergency lights were not functioning, and the elevator's phone was not functioning.

The court turns first to the issue of whether or not plaintiff's Labor Law claims are barred by the doctrine of collateral estoppel. "The quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal" (Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255 [2013]). The party against whom the doctrine of collateral estoppel is sought to be invoked must be the same party who appeared in the prior proceeding or action, or in privity with that party (Buechel v Bain, 97 NY2d 295, 303 [2001]). It is well-settled that determinations by the Workers' Compensation Board may collaterally estop a plaintiff from subsequently raising issues in a Labor Law action where the same issue was disputed before and necessarily decided by the Board and the plaintiff had a full and fair opportunity to litigate the issue before the Board (Denisco v 405 Lexington Ave., LLC, 203 AD3d 1025, 1026-1027 [2022]; Lennon v 56th and Park (NY) Owner, LLC, 199 AD3d 64, 77-78 [2021]; Rigopolous v American Museum of Natural History, 297 AD2d 728 [2002]).

Here, the only disputed issue before the Workers' Compensation judge was whether the decedent's accident and death occurred out of and in the course of his employment with Patriot, or whether it occurred outside the scope of his employment, after the worksite had been closed down for the day. After hearing the testimony of Mr. Masters and Mr. Tek, and viewing the video surveillance tapes, Judge Carena determined that the decedent's accident and death occurred after working hours and outside the course of his employment with Patriot.

It is a fundamental tenet of the Labor Law that the protections set forth in Labor Law §§ 240 (1), 241 (6), and 200 only apply to workers who were hired by someone, be it an owner, contractor or agent and who were suffered or permitted to work on a building or structure (Mordkofsky v V.C.V. Development Corp., 76 NY2d 573, 576-577 [1990]; Dos Anjos v Palagonia, 165 AD3d 626, 627 [2018]). Moreover, even if a plaintiff has been hired by an owner or contractor on project, in order to successfully assert a claim a under Labor Law §§ 240 (1), 241 (6), and/or 200, that worker must demonstrate that they were suffered or permitted to work on a building or structure at the time the accident occurred. Thus, a worker who is injured at a day or time when the worksite is closed, or who is otherwise not authorized or permitted to be at the worksite at the time of the accident is not entitled to the protection offered under the [*9]Labor Law statutes (Jardin v A Very Special Place, Inc., 138 AD3d 927, 930 [2016]; Aslam v Neighborhood Partnership Hous. Dev. Fund, 135 AD3d 790, 791 [2016]; Lazri v Kingston City Consol. School Dist., 95 AD3d 1642, 1644 [2012]; Haque v Crown Heights NRP Assoc., LP, 33 AD3d 864 [2006]). It is also well-settled that in order to fall under the protection of Labor Law §§ 240 (1) or 241 (6), a plaintiff must have been engaged in one or more of the protected activities enumerating in the statute such as performing construction, excavation or demolition work (Jock v Fine, 80 NY2d 965, 968 [1992]; Adika v Beth Gavriel Bukharian Cong., 119 AD3d 827, 828 [2014]).

Here, plaintiff's Labor Law claims against the moving defendants are barred by the doctrine of collateral estoppel. In particular, as noted above, plaintiff's Labor Law claims are dependent upon a showing that the decedent was suffered or permitted to work at the jobsite at the time of his accident and death. Inasmuch as it was determined in the Workers' Compensation proceeding that the accident occurred after working hours and outside the course of the decedent's employment with Patriot, it necessarily follows that the decedent was not suffered or permitted to work at the jobsite at the time of the accident. Moreover, with respect to plaintiff's Labor Law §§ 240 (1) and 241 (6) claims, this determination also necessitates a finding that the decedent was not engaged in an activity protected under the statutes (see Feinberg v Sanz, 115 AD3d 705, 706 [2014]). Furthermore, plaintiff, who was represented by counsel throughout the Workers' Compensation proceeding, had a full and fair opportunity to litigate this disputed issue. Moreover, Judge Carena's determination was supported by the surveillance video and the testimony of Mr. Masters and Mr. Tek, both of whom authenticated the video. Further, there is no merit to plaintiff's argument that collateral estoppel does not apply to the Workers' Compensation Board's ruling given Judge Carena's statement that it was "surmised" that the decedent returned to the worksite to retrieve his cellphone. The key determination made in the Workers' Compensation proceeding was not the precise reason why the decedent returned to the jobsite, which is something that can never be known with certainty since the decedent died in the accident. Rather, the key determination, which is fatal to plaintiff's Labor Law claims, is that the accident took place outside the scope of the decedent's employment after the jobsite had been shut down for the day. Finally, plaintiff is the same party involved in both the Workers' Compensation proceeding and the instant civil action and the fact that plaintiff was not the administratrix of the decedent's estate at the time of the administrative proceeding is of no moment.[FN6] Accordingly, the moving defendants' respective motions to dismiss plaintiff's Labor Law §§ 240 (1), 241 (6) and 200 claims are granted as these claims are barred by the doctrine of collateral estoppel.

The court further finds that plaintiff's Labor Law claims must be dismissed on additional grounds. In particular, as noted above, in order to be afforded the protection of Labor Law §§ 240 (1), 241 (6), and 200, it must be established that the decedent was suffered and permitted to work at the worksite at the time of the accident. In addition, with respect to her Labor Law §§ [*10]240 (1) and 241 (6) claims, it must also be established that the decedent was engaged in an activity protected under the statutes. Here, it is undisputed that the Success Academy worksite was closed at approximately 4:30 p.m. on July 22, 2017 in preparation for the planned electrical power shut-down. Further, the evidence in the record before the court, including the video surveillance tapes, the NYPD police reports, Patriot's work records, and various accident reports demonstrate that, on the day in question, the decedent "clocked out" with Patriot at 3:37 p.m. and exited the worksite at approximately 3:43 p.m. This evidence further demonstrates that the decedent returned to the jobsite at approximately 5:00 p.m., forced his way past the locked outer perimeter fence gate at 5:07 p.m. and entered the building where his body was discovered the next day in the morning. Thus, the evidence showed that the decedent was not permitted or suffered to work at the jobsite at the time he re-entered the premises or when his accident occurred. This evidence also demonstrates that the decedent was not engaged in a protected activity at the time of the accident since the worksite was closed down. In opposition to this showing, plaintiff has failed to point to any evidence which raises a triable issue of fact regarding the issue of whether or not the decedent was permitted or suffered to work at the building during this time period. Further, "[t]he mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distribution, Inc., 34 AD3d 759, 760 [2006] [citations omitted]). Finally, it cannot be said that the evidence regarding whether or not the Success Academy Project jobsite had closed down for the day at the time the decedent re-entered the site was within the exclusive knowledge of the defendants since the surveillance videos, police reports, and employee time records have all been provided to plaintiff.

Finally, 555 Tenth, Extell, Five Star, and Gilbane have made a prima facie showing of their entitlement to summary judgment dismissing plaintiff's Labor Law §§ 240 (1), 241 (6), and 200 on an alternative basis. In particular, it is well-settled that these statutes only apply to owners, contractors, and their agents (Southerton v City of New York, 203 AD3d 977 [2022]; Hill v Mid Island Steel Corp., 164 AD3d 1425, 1426 [2018]; Sanchez v Palmiero, 118 AD3d 860, 861-862 [2014]; Medina v R.M. Resources, 107 AD3d 859, 860 [2013]). Here, although 555 Tenth and Extell had an ownership interest in the commercial condominium where the accident occurred at one time, these defendants have submitted an affidavit by Richard Coleman, Extell's Vice President of Construction Field Operations, in which he states that 555 Tenth sold the commercial condominium to Success on December 2, 2016, over seven months before the accident. Furthermore, Extell and 555 Tenth have submitted a copy of a contract of sale which indicates that 555 Tenth sold the commercial condominium to Success on December 2, 2016 as claimed by Mr. Coleman. Notably, under the terms of the contract of sale, Success was granted exclusive rights to the elevator where the accident occurred. In addition, Mr. Coleman states that the Success Academy Project where the accident occurred was separate from the Building Project and that 555 Tenth and Extell did not hire any of the contractors who worked on the Success Academy Project including the decedent's employer Patriot. Moreover, this claim is supported by the various contracts and subcontracts which are part of the record and demonstrate that none of the contractors who performed work on the Success Academy Project were hired by 555 Tenth or Extell. Accordingly, 555 Tenth and Extell have made a prima facie showing that they were not owners, contractors, or statutory agents under the Labor Law, and thus not subject to liability under the statutes. Further, plaintiff's opposition papers fail to raise a triable issue of fact regarding this issue. Thus, there is no basis for plaintiff's Labor Law claims against Extell [*11]or 555 Tenth.

Five Star has also made a prima facie showing that it is not subject to liability as an owner, contractor, or statutory agent under Labor Law §§ 240 (1), 241 (6) or 200. In particular, the record before the court, including the contract between Gotham and Five Star, demonstrates that Five Star was hired as an electrical subcontractor on the Building Project. Thus, Five Star was not an owner or contractor on the Success Academy Project where the accident occurred. Furthermore, Five Star has demonstrated that it was not a statutory agent with respect to plaintiff's accident. In particular, "[a] party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured" (Linkowski v City of New York, 33 AD3d 971, 974-975 [2006]). Here, Five Star was not hired to perform any work on the Success Academy Project and had no authority to control the work performed by plaintiff, who worked for a different electrical subcontractor on a different construction project.

Finally, Gilbane has made a prima facie showing that they were not an owner, contractor, or statutory agent for the purposes of Labor Law §§ 240 (1), 241 (6) or 200. In this regard, Gilbane points out that it was the general contractor on the Building Project, not the Success Academy Project where the accident occurred. Gilbane further notes that Success owned the worksite at the time of the accident and Success had previously hired Richter to serve as the general contractor on the Success Academy Project. Gilbane also submits copies of the contract whereby Success hired Richter. Thus, Gilbane has demonstrated that it had no connection with the work that took place on the Success Academy Project and may not be held liable under the Labor Law for the decedent's injuries and death as it was not an owner, contractor, or agent.

Accordingly, the moving defendants' respective motions for summary judgment dismissing plaintiff's Labor Law §§ 240 (1), 241 (6) and 200 claims against them are granted.

Plaintiff's Common-Law Negligence Claims Against the Building Project Defendants

555 Tenth, Extell, Five Star and Gilbane (i.e., the Building Project defendants) also move for summary judgment dismissing plaintiff's common-law negligence claim against them. In so moving, these defendants rely upon the same arguments they made in support of their respective motions for summary judgment dismissing plaintiff's Labor Law claims against them. In particular, 555 Tenth and Extell maintain that, inasmuch as they did not have any ownership interest in the commercial condominium where the accident took place and did not hire the decedent's employer or any of the contractors that worked on the Success Academy Project, the decedent's accident and death cannot be attributed to any negligence on their part. Furthermore, 555 Tenth and Extell argue that they had no duty or responsibility to maintain, service or repair the gate entrance to the Success Academy Project, any entrance or interior doors located within the commercial condominium, or the elevator where the accident occurred. At the same time, 555 Tenth and Extell maintain that they had no authority to supervise or exercise control over the decedent's work, or the work of any other contractors employed on the Success Academy Project.

Similarly, Gilbane and Five Star argue that, inasmuch as they were hired solely to perform work on the Building Project, they were not responsible for any safety issues involving the commercial condominium where the accident took place and did not have any authority or control over the work being performed on the Success Academy Project. In addition, while Five Star acknowledges that it temporarily shut down the power to the Success Academy Project in order to allow for the removal of a hoist, it contends that this may not form the basis of any [*12]negligence claim against it. In support of this contention, Five Star submits an affidavit by its general foreman, Lenny Bates. In this regard, Mr. Bates states that Gilbane informed Patriot's foreman that the power would be shut off to the Success Academy Project prior to the accident and that Patriot agreed to make sure that all of its employees left the jobsite by 4:30 p.m. on the date of the accident. Mr. Bates further states that Patriot's foreman informed him that everyone was out of the building and the jobsite was locked prior to the power shutdown. Finally, Mr. Bates states that Five Star "had nothing to do with making sure everyone was out of the Success Academy building before the shutdown began, and my crew and I did not begin the shutdown until we were told it was clear to do so. Neither I nor my crew had any knowledge of someone returning to the Success Academy Project site after all the workers had vacated the premises and the site was locked shut."

In opposition to these branches of the Building Project defendants' motions, plaintiff maintains that the moving defendants have failed to meet their prima facie burden of proof in moving for summary judgment. Plaintiff further contends that the motions for summary judgment are premature inasmuch as none of the defendants have been deposed. In any event, plaintiff argues that there are issues of fact regarding whether Gilbane and Five Star's negligence caused or contributed to the accident inasmuch as they unleashed the force of harm that caused the decedent's death. In this regard, plaintiff points out that Gilbane and Five Star planned and carried out the electrical shutdown that caused the decedent to become trapped in the elevator. Plaintiff further contends that there are issues of fact regarding 555 Tenth and Extell's negligence since they hired Gilbane and Five Star.

Turning first to plaintiff's common-law negligence claim against 555 Tenth and Extell, "[a] property owner has a duty to keep his or her property in a 'reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk'" (Russo v Hamill, 123 AD3d 792, 793 [2014], quoting Basso v Miller, 40 NY2d 233, 241 [1976]). However, a party has no duty to maintain a premises in a reasonably safe condition if it does not own or manage the premises (Santos v Daniello Carting Co., LLC, 148 AD3d 463, 464 [2017]). Here, 555 Tenth and Extell have made a prima facie showing that they did not own or manage the commercial condominium where the accident occurred by submitting the aforementioned contract of sale and Mr. Coleman's affidavit, both of which demonstrate that the premises was sold to Success seven months before the accident. Consequently, 555 Tenth and Extell have demonstrated that they are entitled to summary judgment dismissing plaintiff's common-law negligence claim against them inasmuch as they had no duty to maintain Success Academy Project jobsite, including the elevator where the accident took place, in a reasonably safe condition. Further, plaintiff has failed to submit evidence sufficient to raise a triable issue of fact regarding the issue of ownership and, as previously noted, the mere hope the further discovery will uncover such evidence is insufficient to deny a summary judgment motion. Accordingly, 555 Tenth and Extell's motion for summary judgment dismissing plaintiff's common-law negligence claim against them is granted.

With respect to plaintiff's common-law negligence claims against Five Star and Gilbane, it is undisputed that they did not own the commercial condominium. Instead, they were contractors hired to perform work on the Building Project. A contractual obligation alone does not generally give rise to tort liability in favor of third parties except where the contractor fails to exercise reasonable care, and in so doing, launches a force or instrument of harm or exacerbates a dangerous condition (Cohen v City of New York, 209 AD3d 830, 831 [2022]; Payne v Murray, [*13]198 AD3d 795 [2021]). Here, while it is true that Five Star and Gilbane took part in the plan to shut off power to the Success Academy Project, they have demonstrated that they exercised reasonable care in this regard. In particular, Mr. Bate's affidavit indicates that Gilbane notified Patriot of the power shutdown prior to its occurrence, that Five Star was not responsible for clearing the workers from the Success Academy Project jobsite and that Five Star was informed that the site was clear before it began the shutdown process. Notably, neither Patriot nor Richer disputes this claim. Accordingly, Gilbane and Five Star have made a prima facie demonstration of their entitlement to summary judgment dismissing plaintiff's common-law negligence claim against them. Further, plaintiff's opposition papers fail to raise a triable issue of fact in this regard. Accordingly, Gilbane and Five Star's motions for summary judgment dismissing plaintiff's common-law negligence claims against them are granted.

Common-Law Negligence Claims Against the Success Academy Project Defendants

Success, Richter, Infinity and Patriot separately move to dismiss plaintiff's common-law negligence claims against them. In support of this branch of their respective motions, these defendants all argue that they owed no duty of care to the decedent with respect to any alleged unsafe condition at the Success Academy Project jobsite inasmuch as his presence there was unforeseeable. In support of this argument, the Success Academy Project defendants rely upon the aforementioned video surveillance tapes, as well as the NYPD report, and Patriot's employee records, all of which indicate that the decedent "clocked out" from his job with Patriot and exited the jobsite before the site had been closed down for the day, and that the decedent returned to the jobsite after it had been closed down and forced his way into the jobsite through the locked outer fence gate and also forced his way into the building prior to becoming trapped in the elevator after the power to the commercial condominium had been temporarily shut down. These defendants also submit an affidavit by Richter's project foreman, Jose Vera, who states that prior to the accident date, he was not aware of any person who had ever broken into the jobsite. According to the Success Academy Project defendants, this evidence establishes that they did not owe the decedent a duty of care with respect to maintaining the worksite in a reasonably safe condition inasmuch as the circumstances of the accident and the decedent's presence at site were not foreseeable. Furthermore, the Success Academy Project defendants maintain that they did not have notice of any unsafe conditions that may have contributed to the accident and did not exercise any control or authority over the decedent at the time of the accident.

In addition to arguing that it did not owe the decedent a duty of care since the circumstances of the accident, as well as his presence at the jobsite, was not foreseeable, Infinity notes that it was not even a contractor on the Success Academy Project, but instead was retained by Academy to perform monthly maintenance work on the two elevators which serviced the commercial condominium. Further, Infinity points out that it did not exercise any control or supervision over the work that took place on the Success Academy Project. Moreover, Infinity contends that it did not create or have notice of any dangerous condition that may have caused or contributed to the accident since it is undisputed that the elevator stopped between floors as a result of a planned power shutdown in which Infinity played no part. Finally, Infinity maintains that the decedent's own actions in prying open the elevator doors and attempting to jump from the elevator while it was stopped between floors was the sole proximate cause of the accident and otherwise unforeseeable.

Patriot also raises additional arguments in support of its motion for summary judgment dismissing plaintiff's common-law negligence claim against it. In particular, Patriot notes that, [*14]although it was the decedent's employer, it did not owe him a legal duty at the time and place of his accident and death since Patriot vacated the jobsite prior to the planned power shutdown and any control it had over the jobsite terminated at that point. Similarly, Patriot contends that it was not responsible for maintaining the elevators or securing the jobsite after it had been closed down for the day. In support of these contentions, Patriot submits Mr. Rivera's aforementioned affidavit in which he states that Patriot did not have any control over securing the jobsite or over the site's gating or fencing. Mr. Rivera further states that Patriot was not responsible for providing a "fire watch" when the jobsite was closed and that Patriot was not responsible for performing any work or maintenance on the elevators in the commercial condominium.

In opposition to the Success Academy Project defendants' motions to dismiss her common-law negligence claim, plaintiff reiterates her argument that the motions are premature inasmuch as none of the defendants have been deposed yet and the issue of whether or not the decedent's presence on the jobsite was foreseeable is based upon facts that are exclusively within the knowledge of the moving defendants, including what efforts were made to secure the jobsite and whether or not there was a history of individuals entering the jobsite after hours. Furthermore, plaintiff notes that the decedent left the jobsite at approximately 3:30 p.m. on the date in question and returned at approximately 5:00 p.m., which is two hours before the jobsite ordinarily closed according to Patriot's foreman, Mr. Rivera. In addition, plaintiff notes that Patriot's insurance carrier admitted during the Workers' Compensation proceeding that the decedent did not know about the power shutdown and the OSHA investigation report also stated that the decedent was unaware of the shutdown. Thus, plaintiff contends that further discovery may reveal that the decedent, unaware of the shutdown, had a legitimate reason to return to the jobsite and that it was foreseeable that he would do so.

In further opposition to the Success Academy defendants' motion to dismiss her common-law negligence claim, plaintiff maintains that there were numerous unsafe conditions on the jobsite that contributed to the accident and that the defendants had actual and/or constructive notice of these conditions. In this regard, plaintiff points to a post-accident report compiled by the New York City Department of Buildings, which found several violations with the elevator including the fact that the door restrictor was not working, the elevator car's emergency lighting was not working, and the emergency phone in the elevator was not working properly. In addition, plaintiff notes that this report stated that the elevator, which was intended for passengers, was "illegally used as a construction temp elevator." Plaintiff further submits an expert affidavit by Patrick Carrajat, an elevator safety consultant. Among other things, Mr. Carrajat opines that the failure to have a functioning phone system in the elevator contributed to the accident inasmuch as the decedent could not summon help after he became trapped in the elevator. In addition, Mr. Carrajat maintains that the failure of the elevator to have a functioning door restrictor was a proximate cause of the accident since had the device been operable, the door would only open four inches and the decedent would not have been able to attempt to exit the elevator car.

In addition to the alleged defects involving the elevator, plaintiff further maintains that the Success Academy Project defendants created or otherwise had notice of additional unsafe conditions inasmuch as the fencing and gate outside the construction site were inadequate and these defendants failed to provide watchpersons to patrol the jobsite and building after closing for the day. In support of this contention, plaintiff submits an expert affidavit by Frank Susino, a professional in the field of construction management and safety. According to Mr. Susino, the [*15]defendants violated New York City Building Code § 3303.3, which requires that a watchperson be present while operations are not ongoing on all construction projects involving a building with a footprint between 5,000 and 40,000 square feet. Mr. Susino opines that had a watchperson been present, the accident would not have occurred. Mr. Susino further claims that the defendants failed to adequately secure the worksite and that this failure was a violation of New York City Building Code § 3307.7 which requires that building sites be protected by 8-foot-high fences and gates. Finally, Mr. Susino opines that it was a violation of proper safety practices to fail to post signs notifying workers of the planned power shutdown and to allow a worker to leave for the day without notifying him/her of the shutdown.

In further opposition to Infinity's claim that it was not responsible for the accident, plaintiff initially notes that Infinity was retained to maintain two elevators in the commercial condominium, including the elevator where the accident took place. As such, plaintiff contends that it had a duty to maintain the elevators in a safe condition. According to plaintiff, there is ample evidence that Infinity breached this duty and that this breach proximately caused the decedent's death. In this regard, plaintiff points to the aforementioned post-accident report which indicates that the elevator's door restrictor, emergency lights and phone were not functioning properly. Plaintiff further relies upon Mr. Carrajat's expert affidavit in which he contends that these violations proximately caused the accident. As a final matter, plaintiff maintains that it was entirely foreseeable that Infinity's failure to properly maintain the elevator would lead to injuries to passengers in the elevator.

With respect to Patriot's argument that it may not be held liable for the decedent's accident and death inasmuch as it had no responsibilities with respect to the jobsite after it closed down for the day on July 22, 2017, plaintiff maintains that Patriot has failed to meet its initial burden of proof of establishing these claims. In any event, plaintiff maintains that there is an issue of fact as to whether Patriot launched a force of harm or otherwise exacerbated a dangerous condition by failing to warn the decedent of the planned power shutdown when he left the jobsite.

Turning first to Patriot's motion to dismiss the common-law negligence claim against it, contrary to plaintiff's claim, Patriot has met its prima facie burden of establishing its entitlement to summary judgment by submitting Mr. Rivera's affidavit in which he states that Patriot had vacated the jobsite at 4:30 p.m. on the date in question, that Patriot, which was an electrical subcontractor on the project, was not responsible for securing the jobsite by providing adequate fencing or a watchperson, and that Patriot was not responsible for maintaining the elevators in safe working order. Furthermore, plaintiff's allegation that Patriot may be found liable under common-law negligence because it failed to warn the decedent of the planned power shutdown is insufficient to raise a triable issue of fact. In particular, Mr. Rivera specifically states that he advised the decedent of the power shutdown. In any event, even if there is an issue of fact in this regard, Patriot's alleged failure to warn decedent of the shutdown, which was to occur after Patriot and all of its employees vacated the jobsite, did not launch a force of harm that caused the accident (Bono v Halben's Tire City, Inc., 84 AD3d 1137, 1139, [2011]; Altinma v East 72nd Garage Corp., 54 AD3d 978, 980 [2008]). Accordingly, Patriot's motion to dismiss plaintiff's common-law negligence claim against it is granted.

With respect to Richter, Success, and Infinity's respective motions to dismiss plaintiff's common-law negligence claim against them, as noted above, these defendants maintain that they did not owe the decedent a duty of care at the time of the accident inasmuch as his presence at [*16]the jobsite was not foreseeable. "A landowner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Peralta v Henriquez, 100 NY2d 139, 144 [2003] [internal quotation marks and citations omitted]). Further, "[a]s relevant here, 'the likelihood of one entering without permission depends on the facts of the case including the location of the property in relation to populated areas, its accessibility and whether there have been any prior incidents of trespassing in the area where the injury occurred'" (Elwood v Alpha Sigma Phi, 62 AD3d 1074, 1076 [2009], lv dismissed 13 NY3d 711 [2009], quoting Scurti v City of New York, 40 NY2d 433, 442 [1976]). "[W]hat accidents are reasonably foreseeable, and what preventive measure should reasonably be taken, are ordinarily questions of fact. Questions of foreseeability may be determined as a matter of law only when a single inference can be drawn from the undisputed facts (Perrelli v Orlow, 273 AD2d 522, 534 [2000] [internal quotation marks, brackets and citations omitted]).

Here, given the fact that plaintiff has not yet had the opportunity to depose any of the defendants, the court finds that Richter, Success, and Infinity's motions for summary judgment dismissing plaintiff's common-law negligence claims against them are premature under CPLR 3212 (f). In this regard, the court notes that, given the fact that the decedent was killed in the accident, evidence regarding prior instances of trespassing and what efforts were made to secure the jobsite, which was located in midtown Manhattan, are exclusively within the knowledge of Richter and/or Success (see Pringle v AC Bodyworks & Sons, LLC, 145 AD3d 1410, 1412 [2016]). Moreover, although the surveillance videos show the decedent forcing his way past the fence gate and into the building, no evidence has been presented regarding what was used to secure these barriers. Finally, plaintiff has presented evidence in the form of Mr. Susino's affidavit which indicates that a watchperson should have been posted at the jobsite during off hours. Under the circumstances, plaintiff should be given the opportunity to depose witnesses and obtain other relevant disclosure which may lead to relevant evidence concerning the foreseeability of the decedent's presence at the jobsite at the time of the accident.

With respect to Richter and Success's alternate argument that they lacked notice of any defect or condition that may have led to the accident, the defendants have failed to meet their prima facie burden of demonstrating that they lacked actual and/or constructive notice of the lack of functioning emergency lights and a functioning emergency telephone in the elevator cab in which the decedent became trapped. Richter and Success have also failed to demonstrate that they lacked actual and/or constructive notice of the nonfunctioning door restrictor. Indeed, these defendants have not presented any admissible evidence regarding these issues (Orahovac v CF Lex Assoc., 147 AD3d 968, 969 [2017]; Cox v Pepe-Fareri One, LLC, 47 AD3d 749 [2008]).

Turning to Infinity's alternative arguments, inasmuch as the service contract between Infinity and Success specifically excluded the elevators' emergency lights and phone system from the service contract, no liability may be imposed upon Infinity based upon the failure of this equipment to function properly (Figueroa v East 168th Street Assoc., 71 AD3d 456, 456-457 [2010]). However, Infinity has failed to demonstrate that it was not responsible for maintaining the door restrictor. Further, Infinity has not presented any evidence demonstrating that it lacked construction and/or actual notice that the door restrictor did not function properly (Orahovac, 147 AD3d at 969; Cox, 47 AD3d at 749). Finally, based upon the evidence before the court, it cannot be said that the decedent's own actions in attempting to jump from the stalled elevator cab was the sole proximate cause of the accident and otherwise unforeseeable. In raising this [*17]argument, Infinity relies upon the Court of Appeal's ruling in Egan v A.J. Construction Corp. (94 AD2d 839 [1999]). In Egan, the Court found that a plaintiff's act of jumping out of a stalled elevator six feet above the lobby floor was unforeseeable. However, in making this determination, the Court relied upon the fact that the elevator was lit and that the plaintiff was aware that the elevator operator had telephoned for assistance (Eagan, 94 NY2d at 841). Here, neither the lights nor the telephone in the elevator were working and there were no persons in the building to assist the decedent. Thus, the facts in Eagan are readily distinguishable from the facts in the instant case.

Accordingly, those branches of Success, Richter, and Infinity's motions which seek summary judgment dismissing plaintiff's common-law negligence claim against them are denied without prejudice to renewal upon the completion of discovery.

Third-Party Claims Against Patriot

Patriot moves to dismiss all contractual indemnification, common-law indemnification, and breach of contract to procure liability insurance claims against it. In support of its motion to dismiss the contractual indemnification claims against it, Patriot notes that, under its subcontract with Richter, its obligation to indemnify is only triggered by injuries and claims arising out of Patriot's work. Here, Patriot maintains that the determination in the Workers' Compensation proceeding as well as the evidence in the case demonstrate that the decedent's accident took place after the decedent had clocked out, after the jobsite had been closed down, and after Patriot had vacated the jobsite for the day. Thus, Patriot maintains that its obligation to indemnify was not triggered since the accident did not arise out of its work under the subcontract agreement. Moreover, Patriot contends that even if its obligation to indemnify was triggered, the subcontract agreement it entered into with Richter only obligates it to indemnify Richter and Success. Thus, Patriot avers that it never assumed a contractual duty to indemnify 555 Tenth, Extell, Gilbane, Five Star, Infinity, or City Safety.

Patriot further maintains that there is no basis for any common-law indemnification claims against it since the accident was not caused by any negligence on its part and it did not exercise any control or supervision over the decedent when he reentered the jobsite prior to the accident.

Finally, Patriot maintains that there is no basis for any breach of contract claims against it. In support of this contention, Patriot submits a copy of its liability insurance policy issued by the Travelers Indemnity Company of Connecticut. Patriot further submits a copy of a commercial umbrella policy issued to it by Merchants Insurance Group. In this regard, Patriot points to an additional insured indorsement in Travelers' policy which states that additional insured coverage is provided to any entity that Patriot is required by contract to have covered as an additional insured. Finally, Patriot notes that the Merchants' policy has a provision stating that any additional insured under the Travelers policy is also an additional insured under the Merchants' policy. Thus, Patriot maintains that it complied with any contractual obligation it had to procure liability insurance coverage.

In opposition to this branch of Patriot's motion, Gilbane, 555 Tenth, and Extell contend that there is an issue of fact as to whether Patriot assumed a contractual obligation to indemnify them inasmuch as they are listed as additional insureds in the subcontract agreement between Patriot and Richter. Further, these defendants point out that under the terms of the subcontract, Patriot was obligated in the same manner as Richter was obligated to the owner in the prime contract. Gilbane, 555 Tenth and Extell also argue that Patriot's motion to dismiss all common-[*18]law indemnification claims against it are premature. In particular, these defendants contend that there are factual issues as to whether or not Patriot was negligent in failing to warn the decedent of the planned power shutdown. Finally, Gilbane, 555 Tenth, and Extell contend that Patriot failed to obtain the type of additional insured coverage required under the subcontract agreement. In particular, these defendants note that under the subcontract, Patriot was obligated to obtain coverage for "liability arising out of [Patriot's] ongoing operations." However, the endorsement in the policy only provided additional insured coverage "to the extent that, the injury or damage is caused by acts or omissions of you or your subcontractor in the performance of your work." Thus, Gilbane, 555 Tenth, and Extell argue that the additional insured coverage actually provided is significantly narrower than the coverage required under the subcontract.

Success and Richter also partially oppose this branch of Patriot's motion. In particular, these defendants contend that their respective contractual indemnification claims against Patriot are not barred by the doctrine of collateral estoppel since they were not parties to the Workers' Compensation proceeding. In addition, Success and Richter argue that, even if the court dismisses plaintiff's Labor Law claims against them, they would still be entitled to attorney's fees and costs inasmuch as Patriot's obligation to indemnify included these expenses. Further, Success and Richter maintain that Patriot's motion to dismiss their common-law indemnification claim must be denied since there is an issue of fact as to whether Patriot was negligent in failing to warn the decedent of the planned power shutdown. As a final matter, both Success and Richter have withdrawn their breach of contract claims against Patriot.

The right to contractual indemnification is 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., Inc., 61 AD3de 925, 930 [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]).

The indemnification provision in the subcontract agreement between Patriot and Richter only obligates Patriot to indemnify for accidents arising out of Patriot's work under the agreement. Here, it has already been determined that the decedent's accident did not arise out of Patriot's work inasmuch as it took place after the jobsite had closed down for the day. Moreover, the indemnification provision did not require that Patriot indemnify Gilbane, 555 Tenth, or Extell. In this regard, the fact that the contract required that Patriot's liability insurance policy to list these parties as additional insureds does not trigger a duty to indemnify these parties since an agreement to purchase insurance coverage is separate and distinct from an agreement to indemnify (Kennelty v Darlind Constr. Inc., 260 AD2d 443, 445 [1999]). Finally, the fact that the subcontract contained an incorporation by reference clause whereby Patriot assumed Richter's obligation to the "owner" is of no moment inasmuch as Gilbane, 555 Tenth, and Extell were not identified as owners under the subcontract agreement or the prime contract between Richter and Success.

Accordingly, that branch of Patriot's motion which seeks summary judgment dismissing all contractual indemnification claims against it is granted.

Turning to the common-law indemnification claims asserted against Patriot, such claims are available in favor of a party that is held liable solely by operation of law against a party that is actively at fault in bringing about an underlying injury (Castillo v Port Auth of New York, 159 [*19]AD3d 792, 795 [2018]). Here, it has already been determined that the underlying accident was not caused by any negligence on Patriot's part. Accordingly, that branch of Patriot's motion which seeks summary judgment dismissing all common-law indemnification claims against it is granted.

As a final mater, Richter and Success have withdrawn their breach of contract to procure liability insurance claims against Patriot. Accordingly, that branch of Patriot's motion which seeks summary judgment dismissing Richter and Success's breach of contract claims is moot. Furthermore, Patriot has demonstrated its entitlement to summary judgment dismissing Gilbane, 555 Tenth, and Extell's breach of contract claims against it. In particular, while it is true that the additional coverage actually obtained by Patriot was narrower than the coverage required under the subcontract agreement, even the required coverage was limited to liability arising out of Patriot's "ongoing operations." Here, it has already been determined that the accident did not arise out of Patriot's operations since Patriot had vacated the jobsite prior to the accident and no work was taking place when the decedent re-entered the site. Thus, Gilbane, 555 Tenth, and Extell would not have been covered even if Patriot had obtained the proper insurance coverage. Accordingly, that branch of Patriot's motion which seeks summary judgment dismissing Gilbane, 555 Tenth, and Extell's breach of contract claims is granted.

Summary

In summary, it is hereby

ORDERED that Richter's motion, in mot. seq. 3, for an order awarding it summary judgment dismissing plaintiff's complaint against it is granted with respect to plaintiff's Labor Law §§ 240 (1), 241 (6) and 200 claims and denied, without prejudice to renew, with respect to plaintiff's common-law negligence claim; and it is further

ORDERED that Success's motion, in mot. seq. 4, for an order awarding it summary judgment dismissing plaintiff's complaint against it is granted with respect to plaintiff's Labor Law §§ 240 (1), 241 (6) and 200 claims and denied, without prejudice to renew, with respect to plaintiff's common-law negligence claim; and it is further

ORDERED that Infinity's motion, in mot. seq. 7, for an order awarding it summary judgment dismissing plaintiff's complaint against it is granted with respect to plaintiff's Labor Law §§ 240 (1), 241 (6) and 200 claims and denied, without prejudice to renew, with respect to plaintiff's common-law negligence claim; and it is further

ORDERED that 555 Tenth and Extell's motion, in mot. seq. 8, for an order awarding them summary judgment dismissing plaintiff's complaint against them is granted; and it is further

ORDERED that Gilbane's motion, in mot. seq. 9, for an order awarding it summary judgment dismissing plaintiff's complaint against it is granted; and it is further

ORDERED that Five Star's motion, in mot. seq. 10, for an order awarding it summary judgment dismissing plaintiff's complaint against it is granted; and it is further

ORDERED that Success's motion, in mot. seq. 13, for an order staying discover pending the determination of its summary judgment motion is denied as moot; and it is further

ORDERED that Richter's motion, in mot. seq. 14, for an order staying discover pending the determination of its summary judgment motion is denied as moot; and it is further

ORDERED that Patriot's motion, in mot. seq. 15, for summary judgment dismissing plaintiff's complaint and all cross claims and third-party claims against it is granted; and it is further

ORDERED that plaintiff's motion, in mot. seq. 16, for an order striking 555 Tenth and Extell's answers and/or precluding the use of all surveillance video footage is granted only to the extent that 555 Tenth and Extell are directed to provide plaintiff with copies of video out-takes as directed above.

This constitutes the decision and order of the court.

Dated: February 3, 2023

Hon. Delores J. Thomas Footnotes

Footnote 1:Success's notice of motion states that it is only moving to dismiss plaintiff's Labor Law § 200 and common-law negligence claims. However, its affidavit in support and memorandum of law seek summary judgment dismissing plaintiff's entire complaint against it.

Footnote 2:The address of the Success Academy condominium is listed at 555 Tenth Avenue. However, the Success Academy school's address is now 500 West 41st Street.

Footnote 3:The door to the elevator opened and closed vertically.

Footnote 4:Based upon the decedent's body temperature, the Medical Examiner determined the time of death to be between midnight and 4:00 a.m.

Footnote 5:As previously noted, after the accident, the decedent's cell phone was found in an area of the building where the decedent had worked on July 22, 2017. Thus, Judge Carena surmised that the decedent returned to the building in order to retrieve his phone.

Footnote 6:Although plaintiff's Labor Law claims are barred under the doctrine of collateral estoppel, the same does not hold true for her common-law negligence claims. In this regard, the issues of whether the jobsite and elevator were in a reasonably safe condition and whether or not the decedent's presence at the jobsite at the time of the accident were not considered in the Workers' Compensation proceeding.