In this action, arising out of an accident on a construction site involving the renovation and expansion of the Westland South Shore Mall in 1997, all parties except the Plaintiffs, now move for various forms of relief, including renewal, under CPLR § 2221 of prior motions by the Owner/General Contractors Westland South Shore Mall/Westfield Management Inc./Westfield Design and Construction ("Westfield") and by the concrete subcontractor, Atlas Construction Corp. ("Atlas"). Upon renewal, Westfield and Atlas seek modification of prior Orders of Justice Bromley Hall which were inextricably tied to his December 4, 2000 and July 3, 2001 Decisions and Orders. The electrical subcontractor Commander Electric Inc., ("Commander"), the demolition subcontractor, Unesco Services, LLC ("Unesco") and the structural steel subcontractor, McLo Structural Steel Corp. ("McLo"), all seek Summary Judgment under CPLR§ 3212 following completion of discovery of all parties including document inspection and depositions. The prior decisions, various motions and arguments of the parties are discussed below.

2000 and 2001 DECISIONS OF JUSTICE HALL

On December 4, 2000, Justice Hall granted, in part, motions of Westfield and Atlas for Summary Judgment ( " the 2000 Decision"). The 2000 Decision grants Westfield's motion, in part, by dismissing Plaintiff's claims against it under Labor Law § 200, holding that no evidence existed that Westfield, as the owner of the project, had any supervisory control over the actions of the other contractors on the site. The 2000 Decision also granted subcontractor Atlas Summary Judgment, finding that there existed no evidence that Atlas had created the condition that gave rise to the injury or had any control over the work of Plaintiff, as the employee of another subcontractor. The same Decision denied Westfield Summary Judgment on Plaintiffs' Labor Law § 241(6) claim, which is not based on negligence but, rather, on the owner/general contractor's non-delegable duty to avoid various statutory and/or regulatory violations. The Court stated that Plaintiffs had set forth a cause of action with respect to possible violations of Industrial Code §§ 23-1.7(b) (protection hazardous openings) and 23-1.30 (need for illumination required for safe working conditions). Finally, the 2000 Decision denied Westfield's motion for indemnification from the various subcontractors because Westfield had neglected to provide the Court with copies of the various contracts, and granted Westfield the right to renew such motion.

On July 3, 2001, Justice Hall issued a second Decision ("the 2001 Decision") following motions by various parties. First, the Court denied Westfield's motion to renew its original motion under Labor Law § 241 (6) allowing such claims to remain. Next, the Court granted [*2] Westfield's motion to reargue Atlas' motion for Summary Judgment, and upon reargument, reinstated the claim, finding that evidence had been presented that Atlas created the concrete footings in the areas where Plaintiff fell. Third, the Court granted Westfield's motion to renew its prior motion for indemnification and upon renewal, granted contractual indemnification against Atlas and Unesco. Finally, the Court granted Westfield's motion for contractual indemnification against Commander, based on an allegation that Commander had failed to provide lights in the subject area in a timely manner. The Court made clear that its grant of contractual indemnification against Atlas, Unesco and Commander were all conditioned upon an ultimate finding of liability based on fault by those parties. In response to the allegations by several of the subcontractors that the indemnification clauses violated the public policy against absolving a contractor from liability for its own negligence, (see, Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co, 89 NY2d 786, 789) the Court set aside such claims on the ground that it had already found that the owner/general contractor, Westfield, was not negligent.

Defendant and Third Party Defendant Atlas , the concrete subcontractor on the construction site, (motion sequence number 009) moves for an Order, under CPLR § 2221 to renew Westfield's prior motions before Justice Hall for Summary Judgment. Upon renewal, Atlas seeks an Order reinstating the Plaintiffs' Labor Law § 200 claims against Westfield and vacating Justice Hall's grant of Summary Judgment to Westfield on its contractual indemnification claims against Atlas.

Atlas argues that at the time of the prior motions by Westfield, the parties had only conducted the deposition of an employee of Westland South Shore Mall, LLP, the owner of the project and had not yet either received documents from nor had an opportunity to depose an employee of Westfield Design & Construction, the general contractor on the project. Atlas advises the Court that the three "Westfield" Defendants, although separate corporate entities and serving separate corporate functions, are all subsidiaries of the same parent and, in this action, are all represented by the same counsel. However, the roles of the different companies are significant, since the employee who had been deposed prior to the 2000 motion is described as the "general manager of the shopping mall", had no business or progress meetings with the general contractor's employees, did not[*3] oversee their work, and had seen no photographs of the work in progress (Deposition of Ronald Craddock at pp.6, 14-15, 30). It was based on that testimony, according to Atlas, that the Westfield Defendants moved for Summary Judgment before Justice Hall on the Labor Law § 200 claims, based on negligence, that had been asserted against them. Following the granting of that motion and the concomitant granting of a motion in Westfield's favor against Atlas on Westfield's contractual indemnification claims (all based on the premise that no evidence had been presented to the Court of any active negligence on Westfield's part) Atlas continued to conduct document and deposition discovery.

Atlas avers that it first received documents from Westfield in September 2005 and took the deposition of the general contractor's project manager, William Heitman. During that discovery process, Atlas received photographs, which had been in the general contractor's possession before the accident attached to monthly progress reports (Heitman Deposition at pp 46, 62). Mr. Heitman testified at his deposition that his duties included inspection of the work and the photographs (Heitman Deposition at pp 46, 74). According to Atlas, such testimony in conjunction with Mr, Heitman's admission that he was aware of the open holes in the concrete where Plaintiff fell in the period up to the accident (Heitman Deposition at p 76), demonstrate awareness by the general contractor of uncovered holes in the construction site at the time of the accident. Although the issue is in dispute, this testimony should also be read in conjunction with the previous testimony of Unesco's employee, Dennis Brooks, that Westfield sent the demolition crew into the area where the beam pockets were uncovered (Brooks Dep. at pp. 30-31). Since these facts, in toto, were unknown to Atlas at the time of Westfield's prior motion, Atlas seeks renewal under CPLR § 2221, and upon renewal, modification of the Court's prior orders, reinstating the Labor Law § 200 claims against Westfield and vacating the granting of Summary Judgment on Westfield's contractual indemnification claims. Atlas argues that there now exists an issue of fact concerning whether Westfield, through its general contractor, was actively negligent in connection with the Plaintiff's alleged injury.

Third Party Defendant, Commander , one of two electrical contractors on the mall expansion and renovation project, now moves , (motion sequence number 010), pursuant to CPLR § 3212 for Summary Judgment, dismissing Westfield's Third Party Complaint against it as well as the cross claims of the other Third Party Defendants. Commander Electric argues, based on the testimony of the various parties, that there is no evidence set forth by Westfield, as Third Party Plaintiff, of a prima facie case of negligence on the part of Commander. In March, 2004, an employee of Commander testified at a deposition that Commander cannot be held in the case on a theory of inadequate lighting at the time of the accident, since Commander did not even begin any electrical work in the area where the accident occurred until late May, 1997, after the occurrence ( Haughland Deposition at pp 11,12). In the 2005 deposition testimony of two employees of the general contractor, neither was able to state whether Commander had in fact started its work prior to the date of the accident (Tanner Deposition at p. 101; Heitman Deposition at pp. 40, 92). Commander argues, in addition, that Plaintiff, in his deposition testimony, never alleged that there was insufficient lighting in the area where he fell and by his deposition testimony, also[*4] precludes a finding that lighting was in any way a proximate cause of the injury (Ippolito Deposition at pp. 18,27, 31, 44).

Additional Third Party Defendant, McLo , a subcontractor engaged in installing structural steel in the area of the construction site, also moves, (motion sequence number 012), pursuant to CPLR § 3212, for an Order dismissing Westland's claims for indemnification as well as any of the co-Third Party Defendants' cross-claims against it. At the time of the original motions, McLo was not yet a party to this action. McLo argues that the depositions of the parties demonstrate that no one can identify any contractual provision that required McLo to provide covers to the area where Plaintiff fell into a hole in concrete. McLo refers to the 2005 deposition of Westland's employee, Heitman, who stated that the entity that poured the concrete and created the hole; i.e. Atlas, would be the entity required to cover it (Heitman Deposition at pp. 42, 89-90). McLo also asserts that a review of its contract with Westfield (Appendix D to motion papers) demonstrates that nowhere in its job description is McLo given the responsibility either to grout or cover the concrete holes into which its steel was installed.

Based on the above alleged facts McLo makes the following argument. As a result of Justice Hall's 2000 and 2001 Decisions, only Plaintiffs' Labor Law § 241(6) against Westfield survived. Such claims would only allow Westfield contractual indemnification against a subcontractor, such as McLo, where that subcontractor was responsible for the work involved. The Court identified two sections of the Industrial Code that could be asserted by Plaintiff and then Westfield through indemnification, and they involve illumination and the duty to cover holes in a construction site. Since the depositions and contract language demonstrate that McLo's job was merely to erect structural steel on the jobsite, and since the Plaintiff himself admits that he fell into a unprotected hole in the concrete, McLo cannot be required to indemnify Westfield or indeed any of the other subcontractors on the site, for work it had no responsibility to perform. Thus, although McLo's contract with Westfield provided for defense and indemnification of Westfield for actions for injury arising out of McLo's work or that of McLo's agents or employees, McLo asserts that it cannot be held liable for injury allegedly caused by work to be completed by another contractor on the jobsite. Accordingly, McLo asks this Court to grant it Summary Judgment dismissing all Third Party claims as well as any cross-claims against it. With regard to Westfield's second cause of action against McLo, asserting failure to procure insurance, McLo argues that such should be dismissed for the same reason, since McLo was not required to procure insurance to indemnify for work attributable to another contractor on the site.

Yet another Third Party Defendant, Unesco, cross moves (motion sequence number 013), pursuant to CPLR § 3212, granting Unesco Summary Judgment in its favor, dismissing Westfield's Third Party claims as well as all cross claims against it. First, Unesco alleges that discovery has produced no evidence that Plaintiff has suffered a "grave[*5] Injury", as required to assert a common law indemnification claim against the Plaintiff's employer. Unesco also states that it was hired by Westfield as a subcontractor to remove existing ceilings and floor tiles. According to Unesco, the discovery provided by Westfield after the Justice Hall's 2000 and 2001 Decisions, demonstrates that Unesco had no responsibility to perform the work that gave rise to the Plaintiff's injury and that the Industrial Code Sections set forth in Justice Hall's determination, dealing with the need to provide illumination and the need to cover the steel beam pockets surrounding the concrete poured by Atlas, all deal with work attributable to other contractors on the site. Unesco alleges that a reading of its contract with Westfield, like McLo's , demonstrates that Unesco bore no responsibility for the claims that serve as the basis for Westfield's Third Party action against Unesco. Finally, Unesco points to Heitman's deposition, in which he stated that the steel beam pockets were to be covered by wooden covers to be furnished by the concrete contractor (Heitman Deposition at p. 42). Once the contractual indemnification claim fails, Unesco argues that Westfield's second claim against it for failure to procure insurance must also fail, since Unesco was not required to provide insurance for claims arising out of work attributable to other contractors.

In a separate motion, Defendant Atlas again moves, pursuant to CPLR § 2221, to renew, this time its own prior motion before Justice Hall, seeking Summary Judgment, dismissing Plaintiff's complaint, Westfield's Third Party Complaint and all cross claims by the other Third Party Defendants against Atlas under CPLR §3212. Atlas' original 2000 motion for Summary Judgment seeking to dismiss all claims against it, was granted by Justice Hall in his 2000 Decision; however, in a subsequent Decision and Order of 2001, Justice Hall granted Westfield's motion to reargue that application and denied Atlas Summary Judgment, finding that issues of fact remained concerning both Atlas' possible negligence and violations of the Industrial Code on the Mall jobsite.

Atlas' motion to renew, like its other such motion considered herein, is largely based on discovery in 2004 and 2005 of Atlas' President, Kenneth Padover, McLo Steel's President, John Lock, as well as the Project Superintendent for the general contractor, Kenneth Tanner. According to the deposition of Kenneth Padover for Atlas, Westfield told Atlas when to commence work and when to return to the site after a particular job was completed (Kenneth Padover Deposition at pp. 57, 48, 91, 92). He testified that Atlas' contemporaneous time sheets show that the pouring of concrete where the accident occurred was completed by Atlas by some date in April, 1996 and that Atlas did not return to the jobsite until directed by Westfield in late May 1997, after the accident has occurred (Deposition of Kenneth Padover at pp. 44,51). In the interim period, it was Westfield's job to supervise the work (Deposition of Kenneth Padover at p. 115) and McLo's job to install structural steel where the openings in the concrete were created (Kenneth Padover Deposition at pp. 40, 50). Kenneth Padover submits an additional Affidavit in support of this motion stating that the income sheets for Atlas demonstrate that no Atlas employee was even on the jobsite on the date of the occurrence, and that no one from Atlas had custody or control over the area where the accident occurred between May 5, 1997 and May 19, 1997. (Kenneth Padover Affidavit at par. 8).[*6] Since Atlas was required to relinquish control over the site in order for McLo to perform its job, only Westfield as the General Contractor or McLo, who assumed control over the concrete slabs once Atlas poured them, had any responsibility in the area.

Atlas asserts that based on the deposition testimony and contemporaneous income sheets set forth, there remains no issue of fact concerning Atlas' responsibility and, therefore, that Atlas is entitled to Summary Judgment, dismissing all direct claims, third party claims and cross claims against it in this action.

Westfield moves (motion sequence number 011), pursuant to CPLR §2221, to renew its original 2000 motion for Summary Judgment, dismissing all Plaintiffs' claims against it. In the alternative, upon renewal, Westfield moves for full contractual indemnification against Atlas, Commander and Unesco. In addition, Westfield moves for full contractual indemnification against McLo, the one subcontractor which was not yet a party at the time of the original motions.

With regard to the remaining claims under Labor Law § 241 (6), Westfield argues that there is no evidence produced by Plaintiff during discovery that either of the Industrial Code sections referred to in Justice Hall's 2001 Decision are applicable to the case at bar. In its request for alternative relief in the form of full indemnification, Westfield asserts that the contracts with Atlas, Unesco, Commander and McLo clearly make each subcontractor responsible for its own work, for the safety at the jobsite and to follow all applicable OSHA regulations. According to the testimony at his deposition of Mr. Heitman, Westfield states Westfield's employee did not see any uncovered beam pocket openings after the steel was inserted (Heitman Deposition at pp. 43-44). In addition, Westfield asserts that Atlas was responsible for the covering of the openings it created; McLo inserted steel into the openings and neglected to cover them; Unesco improperly directed its employees into the area of the accident at nighttime; and Commander was late in installing the temporary lighting in the area of the accident. Westfield opines that each of these are set forth in the more recent deposition of its employee, Mr. Heitman.

Based on all of the above facts and the language contained in each of the subcontracts, Westfield asks this Court, upon renewal to grant it Summary Judgment, or, in the alternative, to grant Westfield full indemnification against each of the subcontractors.

Westfield opposes Atlas' motion to renew Westfield's original motion for Summary Judgment, claiming that is untimely, and barred by laches on Atlas' part in conducting discovery that Atlas could have conducted and failed to do as far back as 2002. In any case, Westfield asserts that the new disclosure does not change the essential finding of Justice Hall that no evidence has[*7] been provided that Westfield had any control over Atlas' means and methods of construction. Westfield argues that its duty to provide a safe place to work under Labor Law § 200 is predicated on its ability to control the work and that no evidence of such control has been demonstrated. see, Comes v. New York State Electrical and Gas Corp., 82 NY2d 876, 609 NYS2d 168 (1993). Westfield also opposes Unesco's and McLo's motions for Summary Judgment. Westfield asserts that it is protected by the broad indemnification clauses contained in the contracts with each of these subcontractors. In Unesco's case, Westfield states that the indemnification clause holds Westfield harmless for the work of the subcontractor or any of such subcontractor's employees. Plaintiff was only on the site at the time of the accident as an employee of that Third Party Defendant. Westfield also opines that a question of fact remains concerning the gravity of Plaintiff's injury. With regard to McLo, Westfield states that it was the duty of both the structural steel subcontractor as well as the concrete subcontractor to protect the site where McLo was actually working on the date of the accident. Westfield also opposes Commander's cross motion for Summary Judgment, claiming that the job payment records demonstrate that Commander was in fact called upon to provide temporary lighting in the area of the accident before the accident occurred. Thus an issue of facts remains concerning Commander's improper performance of its work.

Atlas opposes Westfield's motion to renew Westfield's original motion to the extent that it sought contractual indemnification against Atlas. As stated in its own motion to renew this same motion, Atlas asserts that the deposition testimony taken together has now brought forth several factual allegations, including 1) Unesco's statement that Westfield instructed it to send its employee into the area of the accident (Brooks Dep at pp 30, 31); 2) Heitman's statement that he had the ability to exclude a contractor from a particular area of the site (Heitman Deposition at pp. 111, 126); 3) and that Westfield's project manager was aware of the dangerous condition on the site (Heitman Deposition at p. 76 and the project photographs provided in 2004). Thus, Atlas states that the general contractor is not entitled to Summary Judgment on either of its Labor Law claims and questions of fact exist concerning Westfield under Labor Law § 200. see, Rizzuto v. L.A. Wegner Contracting co., 91 NY2d 343, 671 NYS2d 816 (1998). With regard to Westfield's allegation of laches, Atlas replies that Westfield's counsel was essentially responsible for the delay by refusing to produce the general contractor's knowledgeable employee for a deposition, necessitating an order by Justice Hall appointing a JHO to preside over disclosure; and failure of Westfield's counsel to comply with the JHO's rulings and ultimately necessitating a motion by Atlas, which finally succeeded in producing the significant testimony in 2005 of Westfield's employee.

Atlas also opposes McLo's motion for Summary Judgment, dismissing Westfield's Third Party action against McLo on the ground that questions of fact exist, based on the general terms of the parties' contracts concerning McLo's negligence and duty to provide a safe jobsite, since the evidence presented in discovery now demonstrates that McLo was in charge of the area where the accident actually occurred on the date it occurred. Atlas also produces job meeting minutes exchanged during disclosure which state that McLo was late in setting the steel, raising yet more issues of fact concerning McLo's negligent actions. (Exhibits B and C to opposition papers by Atlas).[*8]

McLo opposes Westfield's motion for Summary Judgment on the issue of contractual indemnification as to McLo, pointing to those parts of Heitman's deposition testimony, where he states that Atlas, having created the holes in the concrete, was responsible to cover them (Heitman deposition at P. 42). McLo contends that Westfield has no authority for its current argument that McLo also had some duty to cover the beam pockets. For essentially the same reasons, McLo opposes Atlas' motion to renew its original motion for Summary Judgment. While McLo does not oppose any motions to dismiss the Plaintiff's claims, it still opposes any such motion concerning Atlas' claims against McLo on the ground that the evidence demonstrates that Atlas, rather than McLo, was responsible for the open beam pockets.

Commander opposes Westfield's motion for Summary Judgment on its indemnification claims against Commander, asserting that the depositions of Commander's employees demonstrate that it was not called to the jobsite to provide lighting prior to the accident (Haughland Deposition at pp, 12, 15, 20, 39-42.) Commander asserts that, in any case, no testimony has come forth since Westfield's original motion for Summary Judgment against Commander that any lighting that did exist was insufficient. Conclusory allegations by Plaintiff in his deposition that the area was dark are, according to Commander, simply insufficient to demonstrate a violation of the Industrial Code. see, Herman v. St. John's Episcopal Corp., 242 AD2d 316, 678 NYS2d 635 (2d Dep't 1997).

Unesco opposes Westfield's motion to renew its application for Summary Judgment against Unesco stating that disclosure now demonstrates that Unesco was not responsible for the work covered by either the illumination or covering sections of the Industrial Code referred to in Justice Hall's 2001 Decision. Unesco states that it cannot be held in the case, under any common law theory of negligence as Plaintiff's employer, because disclosure has demonstrated that there is no evidence of grave injury. Based on the foregoing, Unesco asserts that Westfield has neither contractual nor common law rights of indemnifications against Unesco and that Unesco's motion for Summary Judgment should also be granted.

Finally, Plaintiff, the only party who has not moved herein, opposes both Atlas' and Westfields' motions to renew their prior motions, stating that nothing has changed since the prior decisions. The fact remains that the Plaintiff fell into an unprotected hole on a construction site where the illumination was poor. He suggests that it may be time for this case to proceed to trial.

CPLR § 2221(a), in pertinent part, allows a party to move to renew a prior motion under certain circumstances. As relevant herein, CPLR§ 2221 (e) states that a motion to renew "(s]hall be based upon new facts not offered on the prior motion that would change the prior determination . . . . . and shall contain reasonable justification for failure to present such facts on the prior motion". Interpreting this statute, the courts have held that a motion for leave to renew, must be based upon new or[*9] additional facts which, although in existence at the time of the original motion, were not made known to the party seeking renewal, and, therefore, were not known to the court. Orange and Rockland Utilities, Inc. v Assessor of Town of Haverstraw, 304 AD2d 668, 758 NYS2d 151 (2d Dep't 2003).

Labor Law § 200 requires, in general, that construction sites be operated to provide reasonable and adequate protection for the health and safety of those employed on the site. This statute is not meant to impose on general contractors or owners the duty to supervise the means and methods of construction. However, where injury is caused by a defect or dangerous condition at a work site, a general contractor may be liable upon a showing that such defendant had actual or constructive knowledge of the condition that caused the occurrence. see, Dennis v City of New York, 304 AD2d 611, 758 NYS2d 661 (2d Dep't 2003); Jurgens v Whiteface Resort on Lake Placid L.P., 293 AD2d 742 NYS2d 142 ( 3d Dep't 2002).

Labor Law § 241 (6) provides, in pertinent part, that contractors and owners must provide construction areas with such devices as necessary to provide reasonable and adequate protection to persons employed on the site. This statute grants the State Commissioner of Labor the rule making power to carry out the particular provision of law. Unlike Labor Law § 200, this statute, although not absolute, imposes a non-delegable duty on owners and general contractors to comply with the provisions of the New York Industrial Code.

In the case at bar, both Atlas and Westfield base their motions for leave to renew on the fact that extensive discovery has continued in the years following the 2000 and 2001 Decisions of Justice Hall. It is interesting that both parties, in support of their efforts to renew, point to the deposition in 2005 of Westfield's Project manager, William Heitman. Atlas asserts that documents received in 2004 as well as the 2005 deposition demonstrate that Westfield, as general contractor, not only took photographs of the open beam pockets into which the Plaintiff fell, but also was aware of the openings in the time period right before the accident. Westfield argues that its Project Manager's testimony demonstrates that Westfield saw no openings after McLo's steel was installed. While each party opposes the other's motion, it is clear to the Court that the extensive 2004 and 2005 discovery of documents and all parties, raised issues which are significant, which were in existence at the time of the original motions and which, until full disclosure was completed, were not known to all parties or to the Court. In addition , the three motions to renew are inextricably related, since they all deal with the application of statutory and common law to the contested facts of this multi - party litigation.

Accordingly, the Court grants Atlas' motion to renew Westfield's 2000 motion for Summary Judgment, Westfield's motion to renew its own 2001 motions for Summary Judgment or in the alternative for full indemnification, and Atlas' motion to renew its 2000 motion for Summary Judgment.[*10]

Summary Judgment is a most drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable. Elzer v Nassau County, 111 AD2d 212, 489 NYS2d 246 (2d Dep't 1985); Steven v Parker, 99 AD2d 649, 472 NYS2d 225 ( 2d Dep't 1984); Gaeta v New York News, Inc., 95 AD2d 325, 466 NYS2d 321 (1st Dep't 1983). As the New York Court of Appeals noted in the oft cited case of Sillman v Twentieth Century Fox, 3 NY2d 395, 404 (1956):

"To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (DiMenna & Sons v City of New York, 301 NY 118). This drastic remedy should not be granted where there is any doubt as to the existence of such issues (Braun v Carey, 280 App.Div. 1019), or where the issue is arguable' (Barnett v. Jacobs, 255 NY 520, 522); issue finding rather than issue determination is the key to the procedure' (Esteve v Avad, 271 App. Div. 725, 727)."

It is the function of the court on a motion for Summary Judgment to consider all the facts in a light most favorable to the party opposing the motion, Thomas v. Drake, 145 AD2d 687, 535 NYS2d 229 (3d Dep't 1988) and to determine whether there are any material and triable issues of fact presented. The key is issue finding, not issue determination, and the court should not attempt to determine the questions of credibility. S.J. Capelin Assoc. v. Globe, 34 NY2d 338, 357 NYS2d 478 (1974).

Having granted renewal of both Atlas' and Westfield's prior motions for Summary Judgment, the Court must apply the principles set forth above. Upon renewal of Atlas' motion to renew Westfield's original motion for Summary Judgment, this Court denies Westfield's original motion and finds that the ongoing disclosure has indeed raised issues of fact precluding Summary Judgment . This Court adheres to Justice Hall's original determination insofar as it denied Summary Judgment on Plaintiff's claims against Westfield under Labor Law § 241 (6), on the ground that the issues found in Justice Hall's 2000 decision regarding possible violations of the Industrial Code still exist. For the same reasons this Court, upon renewal, denies Westfield's motion for Summary Judgment, dismissing the Plaintiff's complaint against Westfield.

With regard to Westfield's motion for Summary Judgment on Plaintiff's § 200 claims, the Court also finds that material issues of fact exist, concerning Westfield's negligence. Since the prior determination, the Court and the parties have learned that photographs of the exposed beam pockets were taken by Westfield, and that William Heitman saw the open beam pockets in the period shortly prior to the accident. When this is combined with the earlier testimony of Unesco's supervisor Brooks, that Westfield actually directed Unesco to dispose of its debris in the expansion area and Plaintiff's earlier testimony that he was told to do the same, there is at least arguably an issue concerning whether Westfield, being aware of a dangerous condition, sent the Plaintiff to the area. Whether such action was negligence is at least an issue of fact. Based on the foregoing, upon Atlas' request to renew Westfield's 2000 motion, this Court now modifies the December 4, 2000 determination of Justice Hall and reinstates the Plaintiff's claim against Westfield under Labor Law § 200.[*11]

As part of its renewal motion, Westfield asks this Court, in the alternative, to grant its original motion before Justice Hall, in which it sought Summary Judgment on its indemnification claims against Atlas, Commander and Unesco. Upon renewal, the Court denies Westfield's application because an issue of fact has now been raised concerning Westfield's own negligence under Labor Law § 200. Thus, the Court, upon renewal denies Westfield's motion for Summary Judgment on its indemnification claims and modifies Justice Hall's 2001 determination, by vacating the grant of conditional indemnification. For the same reasons, the Court denies Westfield's separate motion for Summary Judgment on its indemnification claim against the more recently added Third Party Defendant - McLo.

Having also granted Atlas' motion to renew its earlier motion for Summary Judgment, seeking to dismiss all claims against it, both direct and as a Third Party Defendant, the Court applies the same principles cited above. Issues of fact remain concerning Atlas' negligence , both under common law and under Labor Law § 241 (6). While Kenneth Padover states that the concrete subcontractor has to leave the pocket open for steel to be installed (K. Padover Dep. at pp. 54, 55), William Heitman has testified that it was Atlas' job to cover the beam pockets (Heitman Dep. at p. 42) and that the open pockets should have been covered and protected (Heitman Dep at p. 89). Issues such as those raised by the disputed testimony of the parties are for the ultimate trier of fact. Accordingly, upon renewal, Atlas' motion for Summary Judgment, dismissing all claims against it is denied.

Since this Court has reinstated the Labor Law § 200 claims against Westfield and, therefore found that an issue of fact exists concerning the general contractor's own negligence, the Court must also examine, for the first time, the provisions of the indemnification clause found in the agreements between Westfield and each of its subcontractors on the site. In pertinent part, such clauses contain the following language:

"Contractor shall, with respect to all work which is covered by or incidental to this contract, to the fullest extent permitted by law, indemnify and hold owner, its general and limited partners Westfield, Inc. . . .and such other parties as Owner may request and their respective agents, officer, employees and servants harmless from and against all of the following:

a) all claims, demands or liabilities arising out of or encountered in connection with this contract or the prosecution of work under it . . . . accepting only such injury or harm as may be caused by owner's willful act or gross negligence."

In the case of Itri Brick & Concrete Corp v. Aetna Cas & Sur Co., 89 NY2d 786, 658 NYS2d 903 (1997), the Court of Appeals held that an [*12]indemnification agreement which contemplates full indemnification of the general contractor by the subcontractor, even where the general contractor has been found partially negligent violates both General Obligations Law § 5-322.1 and public policy. As stated by the Court, the purpose of the statutory prohibition was to put an end to the prevalent practice in the construction industry of requiring subcontractors to assume liability by contract for the negligence of others. Id. at 794.

To the extent that the clause in contention, contained in each of the contacts with Atlas, McLo, Commander and Unesco purports to require the subcontractor to bear the burden of Westfield's own negligence, such clause is in violation of the above stated principles. However, in this case, the clause is otherwise saved by its self limitation in that it only applies "to the fullest extent permitted by law".

Based on all of the above, the Court finds as follows. Since issues of fact have been raised during disclosure concerning Westfield's own negligence, its motions for Summary Judgment on its indemnification claims are all denied. At trial, Westfield's indemnification will be limited as stated by the Court of Appeals, to the extent that the general contractor is found by the trier of fact to be negligent.

Similarly, the motions of each of the subcontractors for Summary Judgment, dismissing all Third Party and cross claims against each, are denied. Issues of fact are raised by consideration of all discovery, including that which has been produced since the 2000 and 2001 Decisions, concerning the negligence of each Third Party Defendant. While the Court does not intend this Decision to contain a recitation of all issues raised, having read, each and every deposition, the following are cited as examples.

Atlas and Westfield argue that job records demonstrate that McLo was in fact on the job working in the area of the beam pockets in the expansion area at the time of the accident and failed to comply with its duty to keep the site where they were working safe (see Exhs B and C to Atlas' opposition papers). McLo's corporate secretary, John Lock was unable to shed any light on the issue. While James Haughland testified on behalf of Commander that temporary lighting in the expansion area did not start until after Memorial Day, Westfield has produced contemporaneous payment records demonstrating that Commander had completed between 60 and 75 percent of its temporary lighting work on the site during the month in question (Exhibit D to Westfield's papers in opposition to Commander's motion). In addition, Plaintiff did state in his deposition that the lighting was "poor" (Ippolito Dep. at p. 17) and that the nearest lighting in the expansion area was a fixture hanging from a wire, described as "temporary lighting" (Ippolito Dep. At pp 89, 90. 17). While Unesco asserts that it was told to discard debris in the expansion area (Brooks Dep. At pp. 30, 31), William Heitman testified that the demolition contractor had no business working in the expansion area at night (Heitman Dep. at pp. 93, 94).[*13]

Viewing the evidence in the light most favorable to the parties opposing each motion for Summary Judgment, as the law requires, the Court denies them all, since issues of fact have been raised concerning the negligence of each party to this action.

Accordingly, the Court grants the motion by Atlas to renew Westfield's original motion for Summary Judgment, Westfield's motion to renew its original motion for Summary Judgment and Atlas' motion to renew its original motion for Summary Judgment. Upon renewal of all the above motions, the Court denies Westfield's motion for Summary Judgment and reinstates Plaintiff's claims against it under Labor Law § 200; the Court also vacates the 2001 conditional grant of indemnification on behalf of Westfield against Atlas, Unesco and Commander. Upon renewal of Atlas' motion for Summary Judgment, the Court denies such motion, finding issues of fact concerning Atlas' negligence and violation of the Industrial Code.

The Court denies the motions for Summary Judgment on behalf of Westfield (against McLo), McLo, Commander and Unesco, finding that issues of fact concerning the negligence of each exist, whether under common law or, as applicable, under the Industrial Code.

The Court finds that the indemnification clause contained within the various subcontracts, does not absolve Westfield from liability for its own negligence, if it is to be "permitted" by existing law.

This constitutes the Decision

Dated: January 10, 2007

Riverhead, New York,