No one has objected to consideration of United's C-2, the security supervisor's Incident Report, and Trizec Corporation's Occurrence Report. However, IDI argues that statements in its own Supervisor Accident Investigation Report and Daily Job Report, which were submitted in support of plaintiffs' cross motion, are inadmissible hearsay.

The Court finds that the Supervisor Accident Investigation Report and Daily Job Report are business records (see CPLR 4518). The EBT testimony of Frank Ferrara, IDI's job construction superintendent at the site, indicates that the Supervisor Accident Investigation Report and Daily Reports were made in the regular course of IDI's business (see Dempsey Affirm., Ex M [Ferrara EBT], at 10-11; 47 [daily reports prepared and signed by Ferrara]). IDI had a policy whereby "[a] report had to be filled out for any incidents that occur" at the workplace (id. at 11). Ferrara identified IDI's Supervisor Accident Investigation Report as one that would have been generated by IDI in [*5]August of 1997 (id. at 10). Although Ferrara, the job construction superintendent at the site, testified that his responsibilities at that time would not have involved completing accident reports, when asked who from IDI had that responsibility, he answered, "Typically, a supervisor would most likely" (id. at 69). Ferrara testified that, for Crespo's accident report, "I probably gave the information over the phone to the office" (id. at 11) because "I didn't have a form on site" (id. at 69).Ferrara recognized the handwriting in IDI's Daily Job Reports as his own (Ferrara EBT, at 72), and some bear his signature. This demonstrates it was Ferrara's responsibility in the regular course of IDI's business to make the reports each day on which work was performed at the site (see id. at 47, 72).

However, the inquiry does not end there. IDI correctly notes that, even if the documents may be considered under the business records exception to the hearsay rule, the statements contained in the reports are admissible only if both the reports and the statements fall within recognized exceptions to the hearsay rule (see Flynn v Manhattan & Bronx Surface Tr. Operating Auth., 61 NY2d 769, 781 [1984]).

Plaintiffs counter that the statements fall within either the speaking agent exception or the exception for party admissions. The "speaking agent" exception to the hearsay rule

is a long- and well-recognized exception for statements made by agents of an employer, which are inculpatory to the employer. The exception requires that: (1) the making of the statement is an activity within the scope of the agent's authority; and (2) the statements were made in the course of business or transaction for which the agent was employed

Plaintiffs assert that Ferrara, then IDI's job construction superintendent, was responsible for the day-to-day operations at the worksite, and thus, is presumed to have had the authority to speak for his employer, the general contractor, IDI (Fortunato Affirm. ¶ 22). In support of this argument, plaintiffs cite Candela v City of New York (8 AD3d 45 [1st Dept 2004] [statements made by project manager who prepared accident report admissible under speaking agent exception]), Navedo v 250 Willis Ave. Supermarket (290 AD2d 246 [1st Dept 2002] [store manager had authority to bind employer on issue of notice of hazardous condition - statements admissible under principal/agent admission exception]), Carpenter v D'Agostino Supermarkets (270 AD2d 51 [1st Dept 2000] [statement of store manager who interviewed injured party and had general supervision of operation of the store was admissible on issue of notice]), and Brusca v El Al Israel Airlines (75 AD2d 798 [2d Dept 1980] [statement by job superintendent at construction site, whose job included writing daily work reports about activities at worksite admissible under principal/agent admission exception]). The Court agrees that Ferrara, as job construction superintendent, had the authority to speak on IDI's behalf. Having determined that Ferrara is a speaking agent, the Court must consider the sources of Ferrara's information.

IDI claims that Ferrara was not the author of the Supervisor Accident Investigation Report, but this objection is without merit. Although the report was not in Ferrara's own handwriting, [*6]Ferrara testified that he, a supervisor, called in the information for the report to his office because he did not have a form with him on site (Ferrara EBT, at 11, 69). IDI is not claiming that the information on the report was not accurately recorded.

Nevertheless, Ferrara testified at his EBT that he did not witness the accident (id. at 11). According to Ferrara, the accident was first reported to him by Crespo's partner (id. at 25). It would appear that the statements contained in IDI's Supervisor Accident Investigation Report and the Daily Job Report come from Crespo's partner. Thus, plaintiffs must demonstrate that the statements made to Ferrara (which Ferrara reported back to IDI) fall within an exception to the hearsay rule for them to be considered as evidence in support of plaintiffs' cross motion for summary judgment.

In Buckley v J.A. Jones/GMO (38 AD3d 461 [1st Dept 2007]), the Appellate Division ruled that an incident report was admissible as a business record because the foreman of the subcontractor who reported the information to the general contractor's safety supervisor was under a business duty to furnish information about an on-the-job accident to the safety supervisor. The foreman of the subcontractor claimed to have personally witnessed the surrounding circumstances of the injured worker's accident. Here, plaintiffs have not established that the person who reported Crespo's accident to Ferrara had personally witnessed the accident. Neither have plaintiffs established that Ferrara's source was under a business duty to report the accident, nor have plaintiffs demonstrated that the report of the accident to Ferrara contained sufficient indicia of reliability. Thus, on plaintiffs' cross motion here, the Court does not consider IDI's Supervisor Accident Investigation Report and the Daily Job Report as competent evidence that Crespo fell from a ladder after receiving an electrical shock.^[FN3]

Even excluding IDI's reports, Nargentino's affidavit and the other accident reports are still sufficient to establish that Crespo fell from an unsecured ladder after suffering an electric shock while working at an elevation, which is a violation of Labor Law § 240 (1). "The ladder provided to plaintiff was inadequate to prevent him from falling five to sevenfeet to the floor after being shocked, and was a proximate cause of his injuries" (Vukovich v 1345 Fee, LLC, 61 AD3d 533 [1st Dept 2009]; Quackenbush v Gar-Ben Assoc., 2 AD3d 824, 825 [2d Dept 2003] [ladder was inadequate to prevent plaintiff from falling after sustaining electric shock]). Nargentino's unrefuted eyewitness testimony is that plaintiff sustained an electrical shock, "causing the ladder to move," after which Crespo "fell off the ladder and the ladder fell to the ground (Nargentino Aff. ¶ 8). "It is well settled that [the] failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240 (1)" (Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, 174 [1st Dept 2004][citations and internal quotation marks omitted]).

Contrary to defendants' argument, a plaintiff need not demonstrate that the ladder was faulty in any way to establish a violation of Labor Law § 240 (1) (see Montalvo, 8 AD3d at 174). Rather, "[i]t is sufficient for purposes of liability under section 240 (1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent" (Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 291 [1st Dept 2002]).

Victoria's Secret and 1114 Ave.'s argument that Crespo was the sole proximate cause of his injuries are unavailing. 1114 Ave. argues that Crespo was the sole proximate cause of his accident [*7]because he "was personally responsible for erecting the ladder ... and ... he chose the area where the ladder was to be placed" (Dempsey Opp. Affirm. ¶ 10). Victoria's Secret avers that the record does not "exclude the possibility that something other than a violation of Labor Law § 240 (1) may have been the proximate cause of the accident," and opines that "a reasonable jury could conclude that decedent's actions were the sole proximate cause" of his injuries (Schwendemann Opp. Affirm. ¶¶ 10, 11).

" [T]he Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence'" (Kielar v Metropolitan Museum of Art, 55 AD3d 456, 458 [1st Dept 2008][citation omitted]). It is well-settled that once a plaintiff has established that a violation of the statute is a proximate cause of his injury, the worker's "contributory negligence ... is not a defense to a section 240 (1) claim" (Ernish v City of New York, 2 AD3d 256, 257 [1st Dept 2003]; see also Tavarez v Weissman, 297 AD2d 245, 247 [1st Dept 2002]). "[I]f a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it" (Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003]). Here, plaintiffs demonstrated more than one violation of Labor Law § 240 (1): the ladder was not secured to prevent its foreseeable movement when Crespo was shocked by an uncapped lived wire, and adequate safety devices to protect Crespo from falling were not present. Even assuming that the placement and erection of the ladder were to raise an issue of fact as to whether Crespo was the sole proximate cause for the ladder being unsecured, the placement and erection of the ladder would not raise an issue of fact as to the absence of adequate safety devices to prevent Crespo's fall.

Both IDI and 1114 Ave. contend that Nargentino's affidavit is conclusory, contradictory, implausible, and unable to support plaintiffs' cross motion for summary judgment. 1114 Ave. asserts that, because Nargentino has not been deposed, his credibility should be evaluated before a jury at trial, where defendants have the opportunity to cross examine Nargentino.

"The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned" (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]). There is no evidence that Nargentino, a non-party eyewitness, feigned anything. IDI's supposition that his testimony is incredible is based on speculation, not evidence, and thus, cannot defeat a motion for summary judgment (see e.g. Angamarca v New York City Partnership Hous. Dev. Fund. Co., Inc., 56 AD3d 264, 265 [1st Dept 2008]; Delgado v New York City Hous. Auth., 51 AD3d 570, 571 [1st Dept 2008]; Joseph v Pitkin Carpet, Inc., 44 AD3d 462, 464 [1st Dept 2007]; Alexander v State of New York, 27 AD3d 273 [1st Dept 2006]).

The record indicates that Nargentino's name and address were disclosed on October 3, 2006. Defendants could have deposed him but did not. After the note of issue was filed on June 12, 2008, defendants could still have chosen to move, pursuant to CPLR 3108, for an order granting them a commission to conduct a post-note of issue, non-party deposition of Nargentino. They did not. They could have moved to vacate the note of issue because of the need for Nargentino's deposition. They did not. Given the circumstances, the fact that Nargentino was not previously deposed is not a basis either to reject his affidavit, or to deny plaintiffs summary judgment as to liability on their Labor Law § 240 (1) claim.

Lastly, the assertion that Nargentino's affidavit is "tailored for the sake of summary judgment" is unavailing, because there is no prior inconsistent testimony that he would seek to [*8]finesse.

Accordingly, the part of plaintiffs' cross motion which seeks summary judgment on the Labor Law § 240 (1) claim is granted, and plaintiffs are granted summary judgment as to liability under Labor Law § 240 (1) against 1114 Ave., the undisputed owner of the premises where Crespo was injured. The part of IDI's cross motion which seeks summary judgment dismissing plaintiffs' Labor Law § 240 (1) claims as against IDI is denied.

Although plaintiffs also seek summary judgment against IDI, Victoria's Secret, and Tate & Lyle, the complaint does not name them as defendants. Accordingly, the Court does not reach the issue of whether Victoria's Secret or Tate & Lyle is liable as an "owner" under the Labor Law § 240 (1). Therefore, plaintiffs' cross motion is denied as to IDI, Victoria's Secret, and Tate & Lyle.

B. Labor Law § 241 (6)

Section 241 (6), which imposes a nondelegable duty upon an owner or general contractor to see to it that the construction, demolition and excavation operations at the workplace are conducted so as to provide for the reasonable and adequate protection of the workers, is not self-executing. To establish liability under the statute, a plaintiff must specifically plead and prove the violation of an applicable Industrial Code regulation. The Code regulation must constitute a specific, positive command, not one that merely reiterates the common-law standard of negligence. The regulation must also be applicable to the facts and be the proximate cause of the plaintiff's injury [internal citations omitted]

In their bill of particulars, plaintiffs allege that defendants violated the following provisions of the Industrial Code (12 NYCRR Part 23): §§ 23-1.2 (a) and (c); 23-1.5 (a); 23-1.13 (b) (2), (b) (3), (b) (4), and (b) (5); and 23-1.21. For liability against defendants on Labor Law § 241 (6), plaintiffs cross-move for summary judgment in their favor with respect to alleged violations of 12 NCYRR 23-1.13 (b) (2)-(5) and 12 NYCRR 23-1.21 (b) (1) and (b) (4) (iv).

12 NYCRR 23-1.13 (b) (2)-(5) state:

(2) Determination of voltages. Before work is begun at any construction, demolition or excavation site, the employer shall determine the voltage levels of all energized power lines and power facilities around or near such site. Where two or more voltages are available at a job site, all electrical equipment and circuits shall be appropriately identified. Such identification shall include voltage level and phase.

(3) Investigation and warning. Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments, whether any part of an electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool or machine into physical or electrical contact therewith. The employer shall post and maintain proper warning signs where such a circuit exists. He shall advise his employees of the locations of such lines, the hazards involved and [*9]the protective measures to be taken.

(4) Protection of employees. No employer shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of his work unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means. In work areas where the exact locations of underground electric power lines are unknown, persons using jack hammers, bars or other hand tools which may contact such power lines shall be provided with insulated protective gloves, body aprons and footwear.

(5) Guarding of switches or other circuit interrupting devices. If protection for employees consists of de-energizing circuits, employers shall cause open switches or other circuit interrupting devices to be guarded against inadvertent closing until such employees are no longer exposed.

As set forth above, Crespo's co-worker, Nargentino, stated in his affidavit that, just before his accident, Crespo "attempted to look inside a five inch junction box located on the ceiling in order to continue a pipe run" (Nargentino Aff. ¶ 8). Plaintiff's head touched a live 277-volt wire, causing him to fall from the ladder and be injured. After the accident, Nargentino climbed up a ladder to find out what had caused the accident, and discovered that "there was an uncapped live wire which was located inside the junction box" (id. ¶ 11). Nargentino's unrefuted eyewitness account indicates that 12 NYCRR 23-1.13 (b) (4) was violated, in that Crespo was not protected against electric shock by de-energizing the circuit, and the live wire was uncapped.

Contrary to the arguments of both 1114 Ave. and Victoria's Secret, plaintiffs were not required to submit the affidavit of an expert to establish, as a matter of law, a violation of 12 NYCRR 23-1.13 (b) (4). "Courts regularly permit expert testimony on the question of whether a certain condition or omission was in violation of a statute or regulation" (Roux v Caiola, 254 AD2d 182, 183 [1st Dept 1998]). However, "the question of the applicability of [a statute] is a purely legal one. . . ." (Buchholz v Trump 767 Fifth Ave., 4 AD3d 178, 179 [1st Dept 2004], affd 5 NY3d 1 [2005] ["motion court should not have allowed the expert to usurp its function as the sole determiner of law"]). Defendants cite no case law for their proposition that a Labor Law § 241 (6) claim must be supported by an expert's opinion. More to the point, an eyewitness need not be an expert in order to testify to his personal knowledge of the factual circumstances of the case.

Victoria's Secret contends that Nargentino's affidavit is conclusory, and lists seven issues that it claims Nargentino's affidavit leaves unresolved (Schwendemann Opp. Affirm. ¶ 13). However, the seven "issues" raised by Victoria's Secret are themselves totally speculative and conclusory, and do not raise an issue of fact concerning plaintiffs' Labor Law § 241 (6) claim.

Victoria's Secret and 1114 Ave. also argue that plaintiffs' section 241 (6) claim must be [*10]dismissed because Crespo was the sole proximate cause of his accident. To be clear, they are not contending that Crespo was instructed to de-energize the circuit to the wire that allegedly shocked him. Nargentino states in his affidavit that, "At no time, prior to the accident did Nick Crespo or myself do any work to the junction box in which this uncapped live wire was located or to the uncapped wire itself" (Nargentino Aff. ¶ 12). Rather, they hope that the jury would conclude that Crespo was the sole proximate cause of his accident because he erected and placed the ladder himself. Thus, it would be more accurate to say that Victoria's Secret and 1114 Ave. are raising an argument as to Crespo's comparative negligence.

On a motion for summary judgment, defendants "may raise any valid defense to the imposition of vicarious liability under Labor Law § 241 (6), including contributory and comparative negligence" (Lorefice v Reckson Operating Partnership, 269 AD2d 572, 573 [2d Dept 2000]). However, Victoria's Secret and 1114 Ave. submit no evidence to raise a triable issue of fact that Crespo acted negligently. As discussed above with respect to plaintiffs' claim under Labor Law § 240 (1), the argument that decedent was the sole proximate cause of his accident is based on speculation and conjecture.

As to 12 NYCRR 23-1.13 (b) (5), its purpose "is to prevent electrical shock to a worker by the inadvertent closing of an open switch or circuit interrupting device" (Zak, 262 AD2d at 253). Victoria's Secret's manager of facilities, Bryan Eccard, testified that there were breaker panels on the 25th floor which could turn the flow of electricity on and off (Dempsey Affirm., Ex L [Eccard EBT], at 50-51). He explained that, "An electrical panel, in general, has wires that come out and land on switches or outlets. At that electrical panel there are separate breakers that can be turned on and off in order to stop the flow of current to the field device" (id. at 55). The breaker panels were located behind the elevator banks, within Victoria's Secret's demised premises (id. at 51, 52-53). Eccard attested that the breaker panels were located behind a locked door, and that Victoria's Secret had no access to it (id. at 52, 53). Rather, "[t]he building has the access to it and the control of it" (id. at 53).

Nargentino's affidavit does not mention the breaker panels, nor do the other documents which refer to the happening of the accident. Thus, plaintiffs have not demonstrated, as a matter of law, that, at the time of plaintiff's accident, the wire was live because the door guarding the breaker panels for the 25th floor was left unlocked and unsecured, whether the unlocked door provided an opportunity for someone to inadvertently close the circuit breaker, or whether anyone attempted to de-energize the circuit.

In sum, the part of plaintiffs' cross motion which seeks summary judgment on their Labor Law § 241 (6) claim is granted as against 1114 Ave. only with respect to the allegations concerning Industrial Code § 23-1.13 (b) (4), and is otherwise denied. Although plaintiffs also seek summary judgment on plaintiffs' Labor Law § 241 (6) claims against IDI, Victoria's Secret, and Tate & Lyle, the complaint does not name them as defendants.

C. Labor Law § 200 and Common-Law Negligence

IDI cross-moves for, among other things, summary judgment dismissing plaintiffs' common-law negligence and Labor Law § 200 claims. Tate & Lyle argues that plaintiffs failed to establish a prima case of negligence against it because it had no duty of care to plaintiff. However, as mentioned previously, plaintiffs did not name IDI and Tate & Lyle as defendants. Thus, the parts of IDI's and Tate & Lyle's cross motions that seek summary judgment dismissing plaintiffs' Labor [*11]Law § 200 and common-law negligence claims are denied.

Summary Judgment in the Third-Party Actions and Cross Claims

A. 1114 Ave.'s claims against Victoria's Secret

1114 Ave. seeks summary judgment on its causes of action for common-law and contractual indemnification against Victoria's Secret; and upon granting summary judgment, an order directing Victoria's Secret to assume 1114 Ave.'s defense and indemnification. 1114 Ave. also requests a hearing on the issue of reimbursement of 1114 Ave.'s attorney's fees.

1. Common-Law Indemnification against Victoria's Secret

It is undisputed that 1114 Ave. was an out-of-possession owner of the 25th floor, where the build-out of Victoria's Secret's space was occurring. As set forth above, 1114 Ave., as owner, is absolutely, but vicariously, liable to plaintiffs under Labor Law § 240 (1).

1114 Ave. argues that Victoria's Secret owed it a common-law duty to indemnify because it hired IDI (Dempsey Affirm. ¶ 21). Although it is true that Victoria's Secret hired IDI, 1114 Ave. has not demonstrated how hiring IDI makes Victoria's Secret " guilty of some negligence that contributed to the causation of the accident'" (Perri v Gilbert Johnson Enters, Ltd., 14 AD3d 681, 685 [1st Dept 2005][quoting Correia v Professional Data Mgt., 259 AD2d 60 (1st Dept 1999)]).

In the absence of negligence, 1114 Ave. may be entitled to indemnity "from the party who was actually responsible for the supervision, direction and control of the work the plaintiff was performing at the time of injury" (Carr v Jacob Perl Assoc., 201 AD2d 296, 297 [1st Dept 1994][emphasis added]; Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 661-662 [2d Dept 2009]; see also Young v Casabonne Bros., 145 AD2d 244 [3d Dept 1989]). That is, the party which "had direct control over the work giving rise to the injury" (Mejia v Levenbaum, 57 AD3d 216 [1st Dept 2008]; Tighe v Hennegan Constr. Co., Inc., 48 AD3d 201 [1st Dept 2008]; see also Bronzino v NYNEX, 262 AD2d 236 [1st Dept 1999][awarding common-law indemnification against the party with direct supervisory authority over plaintiff's work]; see also Reilly v DiGiacomo & Son, 261 AD2d 318 [1st Dept 1999][summary judgment for contractual indemnification against general contractor denied for lack of evidence that was either negligent or exclusively supervised and controlled plaintiff's work site]).

Here, it is undisputed that Victoria's Secret did not supervise or control Crespo's work. Therefore, the part of 1114 Ave.'s motion which seeks summary judgment on its second cause of action, for common-law indemnification claim against Victoria's Secret, is denied.

2. Contractual Indemnification against Victoria's Secret

"A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987], quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]).

Here, the Victoria's Secret agreed to indemnify and defend 1114 Ave. by virtue of its Paragraph 5 (a) of its sublease with Tate & Lyle's predecessor, which incorporates the provisions of the lease between Tate & Lyle's predecessor and 1114 Ave, which contains indemnification provisions. Paragraph 5 (a) of the Sublease provides that

[e]xcept as hereinafter expressly set forth, the Lease as modified by the deletions noted on Exhibit A is hereby incorporated into this Sublease in its entirety, and Sublandlord leases the Subleased Premises to Subtenant upon, and Subtenant accepts [*12]the Subleased Premises subject to all the terms and conditions of the Lease that are so incorporated

Tenant shall indemnify, defend and save harmless, Landlord ... from and against any and all liability (statutory or otherwise), claims, suits, demands, damages, judgments, costs, fines, penalties, interest and expenses (including, but not limited to, reasonable legal fees and disbursements incurred in any legal action or proceeding to enforce this provision against Tenant, ... which Landlord ... may suffer arising from, or in connection with, (a) any liability or claim for any injury to ... any person ... occurring in or about the Demised Premises attributable to or caused by Tenant ... in connection with their use and occupancy of the Demised Premises, or (b) from any work, installation or thing whatsoever done ... in the Demised Premises during the Term, or ... (d) from any wrongful or negligent act, omission of Tenant ...

In opposition, plaintiffs and Victoria's Secret contend that 1114 Ave. was responsible for the defective electrical condition on the 25th floor. Consequently, they argue that the indemnification provision would be unenforceable as against public policy under General Obligations Law § 5-322.1 (Porper Opp. Affirm. ¶ 9; Schwendemann Opp. Affirm. ¶ 10).

Plaintiffs' and Victoria's Secret's reliance on General Obligations § 5-322.1 is misplaced. The indemnification provision at issue is incorporated by reference in the Sublease, and is not "in connection with or collateral to a contract or agreement relative to the construction, alteration, repair, or maintenance of a building . . ." (General Obligations Law § 5-332.1). General Obligations § 5-322.1 therefore does not apply to the Sublease.

General Obligations Law § 5-321 deems void and unenforceable an agreement in lease "exempting the lessor from liability for damages or injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises . . . ." However, "[w]here, as here, a lessor and lessee freely enter into an indemnification agreement whereby they use insurance to allocate the risk of liability to third parties between themselves, General Obligations Law § 5-321 does not prohibit indemnity" (Great Northern Ins. Co. v Interior Constr. Corp., 7 NY3d 412, 419 [2006]; Gary v Flair Beverage Corp., 60 AD3d 413, 414-415 [1st Dept 2009]). Here, Victoria's Secret's Sublease also incorporates, by reference, an obligation to obtain commercial general liability insurance, pursuant to Section 8.03 of Tate & Lyle's Lease.^[FN4]

Therefore, the part of 1114 Ave.'s motion which seeks summary judgment in its favor on the fourth cause of action of the third-party complaint, for contractual indemnification against Victoria's [*13]Secret, is granted. As summary judgment on 1114 Ave.'s claim for contractual indemnification has been granted, Victoria's Secret is directed to assume the defense and indemnification of 1114 Ave. according to the provisions of the Lease and Sublease. An inquest on the issue of reimbursement of 1114 Ave.'s legal fees shall be directed.

B. Tate & Lyle's cross claim against Victoria's Secret

Tate & Lyle seeks summary judgment in its favor on its cross claim against Victoria's Secret for common-law indemnity and contractual indemnity.

Tate & Lyle has not met its prima facie burden for common-law indemnity. Like 1114 Ave., Tate & Lyle has not demonstrated that Victoria's Secret was " guilty of some negligence that contributed to the causation of the accident'" (Perri, 14 AD3d 681, 685, supra). Therefore, this branch of its cross motion for summary judgment against Victoria's Secret is denied.

Turning to contractual indemnification, Tate & Lyle cites paragraph 6 (c) of the Sublease and Section 11.03 of the Lease. Paragraph 6 (c) of the Sublease states,

"that Subtenant shall indemnify Sublandlord against and hold Sublandlord harmless from all claims, liabilities, losses and damages that Sublandlord may incur by reason of, resulting from or arising out of a failure to comply with the provisions of this Sublease, including without limitation clauses (a) and (b) of this paragraph. . . ."

Victoria's Secret argues that neither 1114 Ave. nor Tate & Lyle meet their evidentiary burden with regard to the Lease and Sublease because no affidavit or affirmation, or deposition testimony, indicates that these documents are complete, accurate, and agreed to form (Scwendemann Opp. Affirm. ¶ 5). This argument is unavailing. No party is objecting to the authenticity of the Lease and Sublease. "The lack of certification, in the circumstances, is at most a technical irregularity which may be disregarded" (Borchardt v New York Life Ins. Co. 102 AD2d 465, 467 [1st Dept], affd 63 NY2d 1000 [1984] [allowing uncertified hospital record to be considered on a motion for summary judgment]).

The Court grants Tate & Lyle summary judgment against Victoria's Secret on its cross claim for contractual indemnification, for the same reasons that 1114 Ave. is entitled to contractual indemnification against Victoria's Secret. Crespo's accident falls within the scope of the indemnification provisions of Section 11.03 of the Lease.

C. 1114 Ave.'s claims against Tate & Lyle

1114 Ave.'s third-party complaint alleges five causes of action as against Tate & Lyle, sounding in common-law indemnification and contribution, contractual indemnification and breach of contract to procure insurance naming 1114 Ave. as an insured, or as an additional insured (Dempsey Affirm., Ex G). Tate & Lyle seeks summary judgment dismissing the third-party complaint in its entirety, but addresses only the cause of action for common-law indemnification. Its moving papers do not address 1114 Ave.'s other causes of action for contractual indemnification and breach of an agreement to procure insurance.

As previously discussed, in the absence of negligence, 1114 Ave. may be entitled to [*14]indemnity "from the party who was actually responsible for the supervision, direction and control of the work the plaintiff was performing at the time of injury" (Carr v Jacob Perl Assoc., 201 AD2d 296, supra). It is undisputed that Tate & Lyle was an out-of-possession lessee/sublessor. Thus, Tate & Lyle did not have direct control over Crespo's work.

To establish a claim for common-law indemnification against Tate & Lyle, 1114 Ave. would have to "prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident" (Correia, 259 AD2d at 65). Tate & Lyle asserts that it cannot be found negligent because of its out-of-possession status.

It is well settled that an out-of-possession owner or lessor is not liable for injuries that occur on the premises unless the owner or lessor has retained control over the premises or is contractually obligated to repair or maintain the premises

D. Victoria's Secret against IDI

In its fourth-party complaint, Victoria's Secret alleges four causes of action: common-law and contractual indemnification, contribution, and breach of contract to procure insurance. Victoria's Secret cross-moves for, among other things, summary judgment in its favor against IDI on all causes of action of the fourth-party complaint. IDI cross-moves for summary judgment dismissing, among other things, the fourth party action.

1. Common-Law Indemnification

Victoria's Secret contends that, should it be held liable to plaintiffs, it would be entitled to common-law indemnification from IDI, because its conduct was allegedly purely passive. IDI argues that the fourth-party should be dismissed because plaintiffs cannot demonstrate that IDI has any liability under Labor Law §§ 240, 241, and common-law negligence.

It bears repeating that plaintiffs did not name Victoria's Secret or IDI as direct defendants. Thus, absent amendment of the complaint, neither Victoria's Secret nor IDI would be held liable to plaintiffs.

In any event, Victoria's Secret has not met its prima facie burden of summary judgment against IDI for common-law indemnification. Bryan Eccard attested that Victoria's Secret hired IDI as its general contractor, and that IDI was contractually responsible for safety at the job site (Eccard EBT, at 25). Frank Ferrara was IDI's job construction superintendent for the project and was at the site daily (Ferrara EBT, at 12). However, the fact that IDI was the general contractor is not sufficient to establish that IDI "had direct control over the work giving rise to the injury" (Mejia, 57 AD3d 216, supra). Victoria's Secret has not demonstrated that IDI acted negligently, and that such negligence was a substantial factor in causing Crespo's injuries.

2. Contribution

"Contribution is available where two or more tortfeasors combine to cause an injury' and [*15]is determined in accordance with the relative culpability of each such person' [citation omitted]" (Godoy v Abamaster of Miami, 302 AD2d 57, 61 [2d Dept 2003]; see also Mas v Two Bridges Assoc., 75 NY2d 680, 689-690 [1990] ["in contribution, the tort-feasors responsible for plaintiff's loss share liability for it. Since they are in pari delicto, their common liability to plaintiff is apportioned and each tort-feasor pays his ratable part of the loss"]).

Summary judgment dismissing this claim is unwarranted, since no finding of negligence has yet been made against Victoria's Secret or IDI.

3. Contractual Indemnification

Victoria's Secret seeks summary judgment in its favor directing IDI to indemnify Victoria's Secret, 1114 Ave., and Tate & Lyle. In support of this branch of its motion, Victoria's Secret submits a copy of a "Summary Fixed Price Construction Agreement" between Victoria's Secret, as owner, and IDI, as contractor. At his deposition, Eccard identified the agreement as the contract between Victoria's Secret and IDI (Eccard EBT, at 45). Although the copy of the agreement is not signed by IDI, James Stumpf, the former president of IDI, acknowledged at his deposition that the Summary Fixed Price Construction Agreement was the agreement that was reached between IDI and Victoria's Secret with regard to the project at 1114 Avenue of the Americas for renovations (Schwendemann Affirm., Ex D [Stumpf EBT], at 26-27).IDI contends Victoria's Secret has not laid a proper foundation for the admissibility of the Summary Fixed Price Construction Agreement, because the agreement is not signed by IDI and Eccard's and Stumpf's deposition transcripts are not signed. IDI further contends that neither Eccard's nor Stumpf's testimony established that the agreement was complete, accurate, and agreed to form.

These arguments are unavailing. CPLR 3116 (a) provides, in pertinent part, that "[i]f the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed" (see also Chisholm v Mahoney, 302 AD2d 792, 793 [3d Dept 2003], citing Zabari v City of New York, 242 AD2d 15, 17 [1st Dept 1998]). Here, the stenographer certified both transcripts as accurate (White Knight Ltd. v Shea, 10 AD3d 567, 567 [1st Dept 2004]). Based on the testimony of Eccard and Stumpf, the Court will consider the "Summary Fixed Price Construction Agreement" annexed as Exhibit F to Victoria's Secret cross motion.

"[A]n unsigned contract may be enforceable, provided there is objective evidence establishing that the parties intended to be bound" (Flores v Lower East Side Serv. Ctr., 4 NY3d 363, 369 [2005]). Stumpf's EBT testimony establishes a prima facie evidence that IDI intended to be bound by the terms of the written agreement between Victoria's Secret and IDI. IDI fails to raise a triable issue of fact on this point. IDI does not claim that another agreement exists with Victoria's Secret. The agreement purports to be made as of July 25, 1997, which predates Crespo's accident. IDI submits no evidence to raise a triable issue of fact that the agreement was not in effect on the date of Crespo's accident.

Annexed to the Summary Fixed Price Construction Agreement are the "Owner's Standard General Conditions for Construction" (the General Conditions) (see Schwendemann Affirm., Ex F). Paragraph 4.16 states,

§ 4.16. Indemnification. To the fullest extent permitted by law, the Contractor [IDI] shall indemnify, defend and hold harmless the Owner [Victoria's Secret] ... its Landlords ... from and against any and all claims, suits or demands including cost, litigation expenses, counsel fees and liabilities incurred in connection therewith, [*16]arising out of injury to ... any person whatsoever ... to the extent caused by the acts errors or omissions of the Contractor, or any firm, entity or other person for whose acts or omissions the Contractor is responsible ... while engaged in the performance of the Work ... . This indemnification obligation: (a) shall not be limited in any way by the amount or type of insurance carried by the Contractor or any Subcontractor ...; and (b) expressly extends to any matter for which the Owner ... expends money, or becomes obligated to expend money, to indemnify, defend or hold harmless the landlord of the Project or any other person or entity pursuant to any lease or related document or agreement affecting the Project

As IDI indicates, Victoria's Secret has not demonstrated that Crespo's injuries were caused by errors or omissions by IDI or a firm or entity for which IDI is responsible. Victoria's Secret incorrectly interprets the indemnification provisions to be much broader than their actual language. Thus, this branch of Victoria's Secret's cross motion is denied.

4. Breach of Contract to Procure Insurance

Section 7 of the Victoria's Secret/IDI contract requires IDI to procure certain types of insurance, including commercial general liability coverage, and

Owner [Victoria's Secret] ... and any Landlord requirements for additional insureds shall be named as an additional insured on the Contractor's general ... liability insurance policies ... . The inclusion therein of any person or entity as an additional insured shall not affect any right such person or entity would have as a claimant thereunder if not so included

Victoria's Secret contends that IDI breached its obligation to procure insurance naming it as an additional insured because IDI allegedly refused to accept the tender of Victoria's Secret defense and indemnity. IDI objects, as inadmissible, to Victoria's Secret's letter dated October 15, 2004, requesting that IDI defend and indemnify Victoria's Secret (Schwendemann Affirm., Ex G). IDI maintains that St. Paul Travelers refused Victoria's Secret's tender of defense and indemnity under the US F & G policy because Victoria's Secret had not forwarded a copy of the certificate of insurance, and because St. Paul Travelers maintained that Victoria Secret's notice of the suit to it was late.

Insofar as Victoria's Secret argues that IDI breached an agreement to procure insurance on behalf of Victoria's Secret because the insurance carrier disclaimed coverage, this argument is untenable (Perez v Morse Diesel Intl., 10 AD3d 497, 498 [1st Dept 2004]). Therefore, this branch [*17]of Victoria's Secret's motion is denied.

E. IDI against Victoria's Secret

IDI seeks summary judgment dismissing Victoria's Secret's fourth-party action on the ground that plaintiffs have no admissible evidence to establishing that IDI is liable under Labor Law §§ 200 and 240, or under common-law negligence.

This branch of IDI's cross motion for summary judgment is denied. As discussed above, plaintiffs did not name IDI as a defendant in the complaint. Moreover, IDI " cannot obtain summary judgment by pointing to gaps in plaintiff[s'] proof'" (Coastal Sheet Metal Corp. v Martin Assoc., 63 AD3d 617, 618 (1st Dept 2009)(citing Torres v Industrial Container, 305 AD2d 136, 136 [1st Dept 2003]). Finally, IDI's cross motion does not address Victoria's Secret's first cause of action, which seeks contractual indemnification.

Accordingly, it is

ORDERED that the motion for summary judgment by 1114 Avenue of the Americas Associates, LLC, s/h/a 1114 Avenue of the Americas, LLC, is granted in part, and 1114 Avenue of the Americas Associates LLC is granted summary judgment as to liability only on the fourth cause of action of the third-party complaint (for contractual indemnification) against third-party defendant Victoria's Secret Direct New York, Inc. s/h/a Victoria's Secretcatelogue, New York, Inc. and the motion is otherwise denied; and it is further

ORDERED that the cross motion for summary judgment by Tate & Lyle North America Sugar, Inc., i/s/h/a American Sugar Refining, Inc. is granted to the extent that it is granted summary judgment as to liability only on so much of the cross claim against third-party defendant Victoria's Secret Direct New York, Inc., s/h/a Victoria's Secretcatelogue, New York, Inc., that seeks contractual indemnification, and the cross motion is otherwise denied; and it is further

ORDERED that third-party defendant Victoria's Secret Direct New York, Inc., s/h/a Victoria's Secretcatelogue, New York, Inc. is directed to assume the defense and indemnification of 1114 Avenue of the Americas Associates, LLC and Tate & Lyle North America Sugar, Inc., i/s/h/a American Sugar Refining, Inc. in this action, according to the provisions of the Lease and Sublease; and it is further

ORDERED that the issue of the amount of defense costs, including attorneys' fees, that Victoria's Secret must reimburse 1114 Avenue of the Americas Associates, LLC and Tate & Lyle North America Sugar, Inc. is severed and referred to a Special Referee to hear and determine, except that, in the event of and upon the filing of a stipulation of the parties, as permitted by CPLR 4317, another person designated by the parties to serve as referee, shall determine the aforesaid issue; and it is further; and it is further

ORDERED that plaintiffs' cross motion for summary judgment by plaintiffs is granted as to liability only on so much of the second cause of action against defendant 1114 Avenue of the Americas Associates, LLC, as alleges a violation of Labor Law § 240 (1), and a violation of Labor § 241 (6) that is based on a violation of 12 NYCRR 23-1.13 (b) (4), and the cross motion is otherwise denied; and it is further

ORDERED that the cross motion for summary judgment by Victoria's Secret Direct New York, Inc. s/h/a Victoria's Secretcatelogue, New York, Inc. is denied; and it is further

ORDERED that the cross motion for summary judgment by fourth-party defendant IDI [*18]Construction Company, Inc. is denied; and it is further

ORDERED that the remainder of the action shall continue.

Dated: September 8, 2009ENTER:

New York, New York

_____________/s/________________

J.S.C.