Defendants, CHEASAPEAKE OWNERS CORP. and GREENTHAL MANAGEMENT CORP., (hereinafter "Chesapeake Defendants"), move this Court for an Order pursuant to CPLR § 3211 for Summary Judgment against the Plaintiff and against co-Defendant York on its cross-claim for indemnification.

Defendant YORK RESTORATION CORP., (hereinafter "York"), moves this Court for an Order pursuant to CPLR § 3211 for Summary Judgment against the Plaintiff and cross moves against the Chesapeake Defendants for indemnification.

Plaintiff Jan Samborski, (hereinafter "Plaintiff" or "Samborski"), cross moves this Court for an Order pursuant to CPLR § 3211 for Summary Judgment on liability.

Upon reading the Notice of Motion by Salvatore I. DeSantis, Esq., Attorney for Defendants CHESAPEAKE OWNER CORP. and CHARLES GREENTHAL MANAGEMENT CORP., dated July, 17th, 2007, together with the Affirmation in Support of Summary Judgment of Salvatore J. DeSantis, Esq., dated July 17th, 2007, together with the Affidavit of BARBARA BERRISFORD, dated July 19th, 2007, and all exhibits annexed thereto; the Notice of Motion for Summary Judgment by Patrick J. Yella, Esq., Attorney for Defendant and Third-party Plaintiff, YORK RESTORATION CORP., dated July 20th, 2007, together with the Affirmation in Support of Patrick J. Yella, Esq., dated July 20th, 2007, and all exhibits annexed thereto; the Affirmation in Opposition by Salvatore J. Desantis, Esq., Attorney for the CHESAPEAKE Defendants, dated July 27th, 2007; the Affirmation in Opposition to Defendants CHESAPEAKE and GREENTHAL'S Motion for Summary Judgment of Patrick J. Yella, Esq., dated November 21st, 2007, and all exhibits annexed thereto; the Reply Affirmation of Patrick J. Yella, Esq., dated November 21st, 2007, and all exhibit annexed thereto: the Reply Affirmation to Affirmation in Opposition of Salvatore J. DeSantis, Esq., dated December 12th, 2007; Notice of Cross Motion and Affirmation in Opposition by Harlan S. Budin, Esq., Attorney for Plaintiff, JAN SAMBORSKI, dated March 26th, 2008, together with the Affirmation in Support of Cross Motion and in Opposition to Defendants' Motions of Harlan S. Budin, Esq., dated march 26th, 2008, and all exhibits annexed thereto; the Reply Affirmation and Affirmation in Opposition of Salvatore J. DeSantis, Esq., dated April 4th, 2008; the Reply Affirmation and Affirmation in Opposition to Plaintiff's Cross Motion by Patrick J. Yella, Esq., dated June 3rd, 2008; and after argument of counsel and due deliberation thereon, the Chesapeake Defendants' motion for [*2]Summary Judgment is granted in part, denied in part, York's motion for summary judgment is denied, and Plaintiff's motion for summary judgment is granted in part and denied in part for the reasons set forth below.

FACTS

Jan Samborksi brings this action against Defendants to recover for losses incurred as the result of personal injuries he sustained while working as a bricklayer. The accident occurred on October 29th, 2004 at 201 East 28th Street, New York, NY, (hereinafter the "premises" or "property"), which was owned by Defendant Chesapeake Owners Corp.

Defendant Charles H. Greenthal Management Corp. was the managing agent for Chesapeake. Defendant York Restoration Corporation was hired by Chesapeake to perform restoration work to the premises.

Plaintiff alleges he was injured when a pail of bricks, which was being lowered, fell on his head while working on the 17th floor terrace of the building.

York brought a third party action against Solty's Construction, Inc., (hereinafter "Solty's"), which York states was sub-contracted to perform the restoration work. York is seeking indemnification and/or contribution from Solty's for losses sustained by the Plaintiff.

ARGUMENTS

The Chesapeake Defendants seek summary judgment dismissing Plaintiff's causes of action for negligence pursuant to Labor Law §200 and common law negligence, and seek an Order dismissing York's cross claims against them for indemnification. The Chesapeake Defendants deny any responsibility for the work site or for any liability related to the accident.

The Chesapeake Defendants further argue that York, the contractor, entered into a contract with them in which York agreed to indemnify them for causes of action arising out of the work being performed on the premises. They further argue that because any liability against them would be vicarious, they are further entitled to common law indemnity.

York argues that it is entitled to summary judgment based upon the fact that the Plaintiff was employed by York at the time of loss and therefore Plaintiff's action against it is barred by the Worker's Compensation Law. York further argues that Plaintiff was not engaged in protected activity at the time of the accident under Labor Law §240(1) or §241(6). York also moves to dismiss the §200 or common law negligence claims against it on the ground that it was not negligent and did not supervise Plaintiff's work. York further seeks dismissal of the Chesapeake Defendants cross claim for indemnification, asserting they were not negligent and [*3]that the contractual indemnification clause is unenforceable.

Plaintiff cross moves for summary judgment on liability against the Chesapeake Defendants and York for both the Labor Law §240(1) claims and the §241(6) claims.

The Chesapeake Defendants argue that Plaintiff's cross-motion is untimely and therefore should not be considered.

The Chesapeake Defendants argue that Plaintiff's March 26th, 2008 cross-motion and affirmation in opposition should not be considered as the cross-motion was filed well beyond the 60 day period in which to respond.

The Second Department in Ellman v. Village of Rhinebeck, 41 AD3d 635, 838 NYS2d 641, (2nd Dept 2007), held that the Supreme Court could consider an untimely cross-motion for summary judgment where a "timely motion for summary judgment was made on nearly identical grounds", citing McKinney's CPLR 3212(a).

Although Chesapeake's motion did not seek relief on the Labor Law claims pursuant to §240(1) and §241(6), York's timely summary judgment motion did. Accordingly the Plaintiff's cross-motion seeking summary judgment as to those claims may be considered.

Summary Judgment

It is well established that a moving party for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

Once there is a prima facie showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of action. Zuckerman v. City of New York, 49 NY2d 557 (1980); Alvarez v. Prospect Hosp., 68 NY2d 320, (1986).

However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers.

When considering a summary judgment motion for failure to make out a case, this Court is required to accept the Plaintiff's evidence as true and give it the benefit of "every reasonable [*4]inference which can be reasonably drawn from that evidence." Secof v. Greens Condominium, 551 NYS2d 563, {158 AD2d 591} citing, Goldstein v. Hauptman, 131 AD2d 724.

Workers' Compensation Defense

York asks this Court to grant it summary judgment against Plaintiff on the basis that it was Plaintiff's employer at the time of loss and therefore Plaintiff is barred from suing York pursuant to the Workers' Compensation Law.

In this case there is a question of fact as to whether York or Solty's employed the Plaintiff at the time of the accident. In its deposition, George York, testifying on behalf of York, raised a question of fact.

Q. Did you ever have anyone on the payroll named Andre or Andre?

A. No.

Q. Or Mr. Samborski?

A. No.

Deposition of George York, September 14th, 2006, p 66.

Further, in its answer, York denied having employed Plaintiff on the date of the accident. To make matters less clear, Plaintiff in his complaint asserts that York is his employer.

York's own testimony and the conflicting admissions by Plaintiff and York in their pleadings raise an issue of fact as to whether York or Solty's employed the Plaintiff on the date of the accident. Therefore that portion of York's motion seeking summary judgment in reliance upon a Workers' Compensation defense is denied.

Labor Law §240(1)

Plaintiff seeks summary judgment granting his Labor Law §240(1) claim and York seeks to dismiss that claim.

Labor Law §240(1), known as the "scaffold" law, was enacted to provide absolute liability for construction activities involving a significant risk due to elevation.

"To establish liability under Labor Law §240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries" (Reinoso v Ornstein Layton Mgt., Inc., 19 AD3d 678, 678 [2005]). [*5]

A plaintiff must show that they were subject to particular risk because of "the relative elevation at which the task [had to] be performed or at which materials or loads [had to] be positioned or secured". Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 (1991).

Scaffold law was designed to prevent those types of accidents in which scaffold, hoist, stay, ladder or other protective device proves inadequate to shield injured worker from harm directly flowing from application of force of gravity to object or person and right of recovery does not extend to other types of harm, even if harm was caused by inadequate, malfunctioning or defectively designed scaffold, stay or hoist. McKinney's Labor Law § 240, subd. 1, Rocovich v. Consolidated Edison Co., supra , 78 NY2d, at 514, 577 NYS2d 219, 583 NE2d 932.

Therefore, in a falling object case, Plaintiff must show that they were injured as the result of the absence or failure of a safety device while the object was being hoisted or secured. Narducci v. Manhasset Bay Associates, 96 NY2d 259, 750 NE2d 1085, (2001); (see, e.g., Pope v. Supreme-K.R.W. Constr. Corp., 261 AD2d 523, 690 NYS2d 632; Baker v. Barron's Educ. Serv. Corp., 248 AD2d 655, 670 NYS2d 587).

In Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 (1991), the Court of Appeals set forth when elevation related activities were intended to fall within the protections of §240(1).

The various tasks in which these devices are customarily needed or employed share a common characteristic. All entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured. The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured. Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 (1991). See also Kaferstein v. J.P. Morgan Chase & Co., 9 Misc 3d 1078, 805 NYS2d 265 N.Y.Sup., 2005.

In this case pails of bricks being used in the renovation work were being lowered in the course of the work. Plaintiff was struck when the pail was being lowered from the roof onto the terrace where he was working. Plaintiff testified that the pail was lowered by a rope which was tied to the handle, and that the uncovered pail was lowered by hand.

The Second Department has also held that when objects, which are an integral part of the work being performed, fall and cause injury, they qualify as elevation-related [*6]work and require the use of safety devices adequate to prevent such injury pursuant to Labor Law §240(1). (See Mendoza v. Bayridge Parkway Assoc., LLC, 38 AD3d 505, 831 NYS2d 485 [2nd Dept 2007] where a stone, secured by a rope, fell and struck worker in head).

York cites Narducci v. Manhasset Bay Associates, 96 NY2d 259, 750 NE2d 1085, 727 NYS2d 37 (2001), in support of its position that an object being lowered is not an object being hoisted or secured.

In Narducci, the Court held that a worker who was injured when he was struck by a piece of glass that fell from an adjacent window frame was not injured by an object that was being hoisted or secured, or due to an elevation-related risk, and that glass that fell was part of pre-existing building structure and was a general hazard, rather than a hazard specifically addressed by Scaffold Law. The Court further held the fact that worker was performing work at a height was irrelevant, since ladder on which he was standing functioned properly. Narducci v. Manhasset Bay Associates, 96 NY2d 259, 750 NE2d 1085, 727 NYS2d 37 (2001), citing McKinney's Labor Law § 240(1).

However, in Narducci, the falling of the piece of glass, though arguably incidental to the work being performed on the job site, was not specifically "being hoisted or secured".

The Second Department held that Labor Law §240(1) applied where a roofer was struck in the head by an unsecured cinder block which was being lowered by a rope; it was held that the failure to provide safety devices was a proximate cause of the loss. Baker v. Barron's Educational Service Corp., 248 AD2d 655, 670 NYS2d 587, (2nd Dept 1998).

Materials being lowered by a rope are being hoisted within the meaning of Labor Law § 240(1). It is the fact that the object is at a higher elevation than the worker while it is being moved, rather than whether it is being moved up or down that creates the gravity related risk, which brings the situation within Labor Law §240(1).

The manner in which the bricks were lowered in an open bucket without adequate safety devices created a risk of falling that violated § 240(1). Plaintiff is entitled to summary judgment on this §240(1) as against the Chesapeake Defendants. However Plaintiff is not entitled to summary judgment against York as there is still an open question as to whether he was an employee of York.

Labor Law §241(6)

Plaintiff moves for summary judgment on his §241(6) claim and Defendant York seeks to dismiss the claim on the ground that the Plaintiff has not shown a violation of a [*7]specific provision of the Industrial Code.

In order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals (Id at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]).

Plaintiff alleges the violation of several sections of the Industrial Code, specifically 23-17; 23-5; 23-5.1 and 23-1.8. Of these sections, two show violations which support his cause of action under Labor Law §241(6).

Section 23-1.7(a) deals with Overhead Hazards and requires suitable protection to workers who are working in an area exposed to falling materials or objects by means of an overhead barrier. This section is specific enough to support a §241(6) claim.

It is not contested that pails of bricks were lowered in a pail from the roof to the seventeenth floor terrace in order to facilitate work being performed there. Due to the fact that the materials were being lowered directly from above the area where Plaintiff was working, Section 23-1.7(a) is implicated.

Defendants have failed to offer evidence that scaffolding or any other overhead protection was provided.

Section 23-1.8(c)(1) requires owners and general contractors to provide safety helmets to any worker working in an area where there is a risk of falling objects.

It is undisputed that Plaintiff was not provided with a hard hat. As bricks were being lowered in an open bucket to Plaintiff , the area where Plaintiff was working was clearly exposed to the risk of falling objects.

These two sections of the Industrial Code are sufficiently specific to support a claim under §241(6). Plaintiff has demonstrated that these two sections were violated. Plaintiff is entitled to summary judgment against the Chesapeake Defendants, but as it has not yet been determined whether York was his employer, summary judgment against York is not warranted.

Labor Law §200 and Common Law Negligence [*8]

The Chesapeake Defendants move for summary judgment dismissing Plaintiff's causes of action based on common law negligence and Labor Law §200, and dismissing York's cross claims for common law indemnification.

The common law and Labor Law §200 impose a duty upon employers to provide their employees with a safe place to work. It applies to owners, contractors, or their agents, who had control over, or supervised the work, or who created the dangerous condition and had actual or constructive notice of it. Kim v. Herbert Construction. Co., 275 AD2d 709, 713 NYS2d 190 (2nd Dept 2000).

The Chesapeake Defendants argue that there is no evidence to support a claim that they had any supervision or control over Plaintiff or any of York's or Solty's workers. They further argue that they did not provide any safety equipment to any worker nor did they have actual or constructive notice of the hazardous condition.

York further opposes the Chesapeake Defendants' motion to dismiss Plaintiff's negligence claims and York's cross-claims, arguing Chesapeake had notice of the conditions at the site.

Further, York cites the deposition testimony of Barbara Berrisford, an Account Executive of Charles Greenthal Management Corp., that she had discussions with Mr. York about an incident involving a falling brick which led to the job being shut down by the Department of Buildings. They assert that this is evidence that could be construed by a trier of fact as notice to the Chesapeake Defendants of unsafe work practices.

The Second Department, in, Zavesky v Decato 223 AD2d 642, 636 NYS2d 419 (2nd Dept. 1996), clarified when notice of unsafe work conditions on a job site could be evidence to hold a building owner liable for negligence in work place related accidents, holding that where the dangerous condition is created by a contractor's methods as opposed to a condition of the site, the owner can not be held liable.

Here York failed to show that the injury occurred as a result of a condition of the workplace, rather the evidence demonstrates that the loss was caused by the manner in which the work was performed.

There has been no evidence adduced that the Chesapeake Defendants exercised supervision or control over Plaintiff's work. The Chesapeake Defendants are entitled to dismissal on the negligence claims against them as well as York's cross-claims against them for common law indemnification.

York also moves to dismiss Plaintiff's §200 and common law negligence claims [*9]against it. York argues that because they had no notice or duty of any problem with regard to the manner of lowering the materials to the Plaintiff, they cannot be held liable under Labor Law §200.

However there are still questions of fact as to whether York supervised Plaintiff or had notice of the manner in which bricks were lowered, so York's motion dismissing the negligence claims against it should be denied.

Contractual Indemnification

York argues that the indemnification clause in the contract between York and the Chesapeake Defendants is unenforceable because it contemplates indemnification of the indemnitee for their own negligence. They cite Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 786, 658 NYS2d 903 (1997).

However the indemnity clause in the contract includes the language "to the fullest extent permitted by law". This limitation is sufficient to make the clause enforceable. Balladares v. Southgate Owners Corp., 40 AD3d 667, 835 NYS2d 693 (2nd Dept 2007); Atiencia v. MBBCO II, LLC, 17 Misc 3d 1138(A), 856 NYS2d 22

(Table) N.Y.Sup.,2007. York also moves to dismiss the Chesapeake Defendants' cross-claims for indemnification against it on the grounds that York was not negligent. The Chesapeake Defendants in turn move for summary judgment on their indemnification cross-claims stating they are entitled to be indemnified by York for York's or Solty's negligence pursuant to the terms of the contract between them.

Section 3.18.1 of the contract reads,

3.18.1 Indemnification. To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not covered by Project Management Protective Liability Insurance purchased by the Contractor in accordance with Section 11.3, the [York] shall indemnify and hold harmless [Chesapeake and Greenthal], *** from and against any claims, damages, losses or expenses *** arising out of resulting from the performance of the Work *** but only to the extent caused in whole or in part by a breach of contract or by the negligent acts or omissions of [York], a Subcontractor, anyone directly or indirectly employed by them...

The contract executed between Chesapeake Owners Corp and York provided for indemnification if York, or its subcontractors, are negligent. However it is still an open question as to whether either York or Solty's was negligent. Therefore neither granting summary judgment to the Chesapeake Defendants on their indemnification [*10]cross-claims, or granting York's motion to dismiss those cross-claims, is appropriate at this point.

WHEREFORE, the Chesapeake Defendants' motion for summary judgment dismissing Plaintiff's Labor Law §200 and common law negligence claims is granted; the Chesapeake Defendants' motion to dismiss York's cross-claims against them is granted; the Chesapeake Defendants' motion for summary judgment on their cross-claims for indemnification from York is denied; York 's motion for summary judgment to dismiss the complaint, and to dismiss Chesapeake's cross claims for indemnification is denied; and Plaintiff's cross-motion on liability on its claims pursuant to Labor Law §240(1) and §241(6) is granted as to the Chesapeake Defendants and denied as to York.

This shall constitute the decision and order of the court.

ENTER,

_______________________________

JSC