Upon the foregoing papers, defendants/third-party plaintiffs and second/third-party plaintiffs 970 Kent Avenue Associates, LLC, 970 Kent Avenue Corp. (Kent), and J.I. Construction of Brooklyn (JI) (collectively Kent/JI) move, pursuant to CPLR 3212, for summary judgment on their contractual and common-law indemnification claims against second/third-party defendant Spencer Development Corp. (Spencer), and for summary judgment on their contractual and common-law indemnification claims against

defendant/third-party defendant Colasanto Construction Inc. (Colasanto).^[FN1] Colasanto cross-moves, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint of Kent/JI. Spencer cross-moves, pursuant to CPLR 3212, for summary judgment dismissing the second/third-party complaint of Kent/JI or, in the alternative, for summary judgment on its cross claims for [*2]contractual and common-law indemnification against Colasanto.^[FN2]

By so-ordered stipulation dated June 22, 2009, the parties to the Martinez Action (Actions No. 1-3) and the Burlington Action (Action No. 4). agreed to have their motions decided by the same justice of this court and that the trial in the Martinez Action would not commence until discovery was complete in the Burlington Action. In the Burlington action, Burlington moves, "pursuant to CPLR 3212 for an [o]rder granting summary judgment and (1) declaring that [d]efendant State Insurance Fund [the SIF] is obliged to satisfy, in whole or in part, any judgment obtained by [Kent/JI] against [Colasanto] for third-party claims arising out of the underlying action [the Martinez Action];" and (2) awarding Burlington attorney's fees, costs and expenses. The SIF cross-moves for an order, pursuant to CPLR 3211 (a)(7), to dismiss Burlington's causes of action as an "equitable subrogee," and to set forth a preliminary conference for the purpose of scheduling discovery in this action.

A rider to the subcontract required Colasanto to add Kent and JI as additional insureds on Colasanto's general liability insurance policy. Burlington issued Colasanto a commercial general liability policy (CGL) covering the period from March 4, 2005 to March 4, 2006. This policy includes two blanket additional insured provisions which entitles Kent and JI to additional insured status thereunder. As significant here, the policy contains an employer's liability exclusion which excludes coverage to Colasanto for claims arising out of "bodily injury" to an employee. In addition, the policy contains a cross-liability exclusion which excludes coverage for bodily injury to an "employee of any insured."

The SIF issued a workers' compensation/employer's liability policy (WC/EL) to Colasanto which provides employer's liability coverage to Colasanto for any claim arising out of an injury to an employee of Colasanto.

According to the deposition testimony of Margarito Martinez, decedent's brother and co-worker, on the day of the accident, Melesio was working near the end of a staircase on the 14th floor [*3]of the building. The 14th floor consisted of a cement floor or platform only, and did not have walls. Other workers were in the process of building a ceiling. There was a hole near the staircase. The hole measured two meters by three meters and had a plastic black cover over it. Margarito testified that the black plastic "was covering the hole that [went] to the staircase."

A man named Jose Colon told Melesio to bring a piece of sheet rock somewhere. While holding the piece of sheet rock over his right shoulder, Melesio walked onto the black plastic and fell into the hole down to the 12th floor. Margarito also said that Melesio had stepped on a piece of wood, and that Melesio had gone down (fallen) through the staircase inside.

In an affidavit submitted in support of plaintiffs' cross motion for partial summary judgment, Margarito states that he observed Melesio "carry a piece of sheet rock across a board on a scaffold across a wide chasm towards a window. However, the board broke, and he [Melesio] fell back and to his side plummeting approximately twenty to thirty feet to the basement, striking his head on hard objects there. He fell through an open unguarded opening area [sic]."

Mr. Wayne Colasanto, of Colasanto, Inc., testified that Jose Colon told him that he was working on a platform four feet below the edge of the first floor of the penthouse, where Melesio was working. Jose told Mr. Colasanto that he heard a loud bang and saw a hole. He then saw Melesio "at some point lower in the stairwell." Melesio died the next day.

Mr. Colasanto described a photograph as the area where decedent "fell through." He said the photograph was of "[t]he floor" which appeared "to be the top of a platform." He said the platform had been constructed by Colasanto employees for the purpose of gaining access to the walls that were installed at the "stair surround." He further stated that the platform was made of "sheathing material" called "plycem" and was located four feet below the first floor of the penthouse, that the platform was supported by two aluminum planks, which were installed by Colasanto workers, and that such planks were used "in bridging two areas to provide a platform."

By summons and complaint dated December 5, 2005, plaintiffs commenced the instant action against Kent, JI and others alleging violations of Labor Law §§ 240(1), 241(6), 200, and common-law negligence. Thereafter, plaintiffs served a supplemental summons and amended complaint upon Kent/JI and others on or about November 29, 2005. In February, 2006, Kent/JI commenced a third-party action against Colasanto and its principal, Wayne Colasanto.^[FN3] In April, 2006, Kent/JI commenced a second third-party action against Spencer. On March 27, 2008, plaintiffs filed a note of issue. By order dated December 10, 2008, this court (Schmidt, J.) granted the plaintiffs' cross motion for partial summary judgment on their Labor Law § 240(1) cause of action as against Kent and JI and directed the clerk to set the matter down for a trial for an assessment of damages.

After Kent/JI commenced its action against Colasanto, Colasanto tendered coverage to both Burlington and the SIF. Burlington denied coverage to Colasanto on several grounds, including the employer's liability and cross-liability exclusions contained in the Burlington policy. The SIF acknowledged coverage and is currently defending Colasanto in the third-party action.

Subsequently, Kent/JI asserted claims as additional insureds under the Burlington policy, and Burlington disclaimed coverage. In February, 2006, Kent/JI commenced a declaratory judgment [*4]action against Burlington in the Supreme Court, Kings County, entitled 970 Kent Avenue Associates, LLC, J.I. Construction of Brooklyn, Inc. and Sirius America Insurance Company v Burlington Insurance Company, et al., under Index No. 3294/06, seeking a defense and indemnification for claims arising from the underlying action. By order dated December 15, 2006, this court (Schmidt, J.) ruled that Burlington's disclaimer as to Kent/JI was untimely under Insurance Law § 3420(d) and held that Burlington was obligated to provide a defense and indemnification to Kent/JI.Based upon this order, in August, 2008, Burlington agreed to defend and indemnify Kent/JI as additional insureds under the Burlington policy.

On or about February 6, 2007, Colasanto commenced a declaratory judgment action in the United States District Court for the Eastern District of New York entitled Colasanto Construction, Inc. and Wayne Colasanto v The Burlington Insurance Company, Case No. 07 cv 518 (the Federal Action) seeking, among other things, coverage from Burlington for the contractual indemnification claim alleged in the third-party action. In April 2008, Burlington interposed its answer and denied any obligation to defend or indemnify Colasanto for the contractual indemnity claims. In August, 2008, the Federal Action was "voluntarily dismissed with prejudice as to all claims," pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. According to Burlington, by virtue of this dismissal, Colasanto "released any and all claims against Burlington for contractual indemnity coverage under the Burlington . . . [p]olicy, including those claims set forth in the [t]hird-[p]arty [a]ction."

Burlington represents that after attempts to resolve the underlying action failed as a result of the SIF's refusal to acknowledge its coverage obligations to Colasanto, it commenced the instant declaratory judgment action on or about September 5, 2008. The SIF interposed its answer, and Burlington then served a supplemental summons and first amended complaint for declaratory relief. The SIF thereafter interposed its answer to the first amended complaint.

The motions in the underlying action primarily involve the third-party claims of Kent/JI against Colasanto and Spencer. However, the third-party claim of Kent/JI against Colasanto and the declaratory judgment action both involve the dispute as to which insurance carrier - Burlington or the SIF - will be responsible for payment of plaintiffs' decedent's damages. These motions are presently before the court.

Kent/JI cross-move for contractual and common-law indemnification against Spencer and Colasanto. Kent/JI also seek an order "denying" plaintiffs' cross motion for partial summary judgment motion to the extent it seeks a judgment against them premised upon Labor Law §§ 240(1), 241(6) and 200 and/or common-law negligence.

With respect to that branch of Kent/JI's cross motion for an order denying plaintiffs' cross motion for summary judgment on their Labor Law § 240(1) cause of action, by order dated December 10, 2008, this court granted that branch of plaintiffs' cross motion for summary judgment on this cause of action. Thus, this portion of Kent/JI's cross motion has been rendered moot.

With respect to that branch of Kent/JI's cross motion for an order denying that branch of [*5]plaintiffs' cross motion for summary judgment on plaintiffs' Labor Law § 241(6) cause of action, Kent/JI argue that summary judgment is unwarranted on the grounds that there are divergent versions as to how the accident occurred and that none of the Industrial Code provisions are applicable to this case. However, this court has already considered plaintiffs' cross motion and has not granted the branch which sought summary judgment on plaintiffs' Labor Law § 241(6) cause of action. Thus, this portion of Kent/JI's cross motion for an order denying plaintiffs' Labor Law § 241(6) claim has already been granted.

As to that branch of Kent/JI's cross motion which addresses plaintiffs' Labor Law § 200 and/or common-law negligence claim, while the notice of cross motion seeks an order denying "plaintiffs' summary judgment motion to the extent it seeks a judgment over [Kent/JI] premised upon Labor Law § 200 and/or common law negligence," in their moving papers, Kent/JI argue that the court should grant them the affirmative relief of summary judgment "dismissing all claims under those theories" because there is no evidence that they (Kent/JI) knew of a dangerous condition or negligently supervised the decedent's work.

Specifically, in support of their cross motion to dismiss plaintiffs' Labor Law § 200/common-law negligence claim, Kent/JI point to the testimony of Mr. George C. Dellapa, the attorney who drafted the contracts entered into between Kent and JI and Kent/JI and Spencer.^[FN4] Mr. Dellapa testified that Kent initially planned to develop the property known as 970 Kent Avenue in Brooklyn as a rental property. Thereafter, the plans changed and Kent entered into a development contract with Resheef Inc. to build condominiums. However, Resheef could not complete the project so it was removed from the project. When Resheef left the job, Kent needed another contractor. However, because contractors were reluctant to enter the project in the middle of a job, Kent decided to use Spencer, a construction manager. Because Spencer did not want to became a general contractor for insurance purposes, Kent decided to form JI to nominally serve as the general contractor, while the actual site work and supervision would be handled by Spencer. In this connection, Mr. Dellapa testified that Spencer was the "on-site manager[] and would be responsible for safety, construction, permits, everything that a general contractor normally does."

In further support of their cross motion, Kent/JI point out that Mr. Dellapa testified that JI had a separate contract with Colasanto pursuant to which Colasanto dismantled the structure erected by Resheef, and erected the penthouse structure, and that Wayne Colasanto testified that the board/platform involved in the decedent's accident was constructed by Colasanto employees, and that it was the responsibility of Mr. Kevin Gordon, an employee of Colasanto, to determine what materials were to be used in constructing the board/platform. Plaintiffs have not opposed this branch of Kent/JI's amended cross motion. However, in their reply to Kent/JI's first cross motion, plaintiffs argued that this court should deny Kent/JI's cross motion to dismiss their "Labor Law § 200 claims." In this regard, plaintiffs asserted that based upon Mr. Dellapa's deposition testimony, Kent/JI could not prove as a matter of law that they had no right of supervision or control of the work of Colasanto. In support of this argument, plaintiffs point out that Mr. Dellapa played a major role in the selection of Spencer; that Mr. Dellapa drafted and signed contracts with the contractors, attended meetings [*6]on site on a regular basis to track the job's progress, defended before the Environmental Control Board New York City Department of Buildings violations committed at the job site, was aware of violations received by Kent for the job, was briefed by Mr. Greco about Colasanto before the contract with Colasanto was signed; that decedent's fall was reported to Mr. Dellapa; that Mr. Dellapa spoke about the accident at the next weekly meeting after the accident occurred and pleaded guilty before the ECB, as "principal,"to charges of a violation issued on the day of the decedent's accident, for which a fine was paid; that he was authorized by Kent/JI to do so; that Mr. Dellapa was familiar with the term plycem board and its purpose; that JI had safety responsibilities at the job site and had the authority to stop unsafe practices; and that Mr. Dellapa went on walk-throughs of the site.

Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). "Even in the absence of supervision or control by the contractor, the statute applies, inter alia, to owners and contractors who either create or have actual or constructive notice of a dangerous condition" (Bradley v Morgan Stanley & Co., Inc., 21 AD3d 866, 868 [2005]; Gonzalez v Pon Lin Realty Corp., 34 AD3d 638, 639 [2006]; Aranda v Park East Constr., 4 AD3d 315, 316 [2004]; Akins v Baker, 247 AD2d 562, 562-563 [1998]).

The uncontroverted evidence before the court demonstrates that Kent/JI did not exercise supervision or control over the decedent's work. In this regard, Wayne Colasanto testified that the decedent only reported to Colasanto employees Kevin Gordon and Elroy Carbon, and that the decedent's work was not supervised or directed by any company other than Colasanto. Moreover, as Kent/JI point out, Wayne Colasanto testified that the board/platform from which the decedent fell was built by Colasanto employees, that he witnessed his workers erect the platform, and that Kevin Gordon decided what material to use in building the platform. Thus, Kent/JI have established as a matter of law that they did not create the dangerous condition that allegedly caused plaintiff to fall, and plaintiffs have failed to raise a triable issue of fact to rebut this showing (see Uzar v Louis P. Ciminelli Constr. Co., Inc., 53 AD3d 1078, 1079-1080 [2008]). Further, there is there is no evidence that Kent/JI had actual or constructive notice of any unsafe condition that might have contributed to the accident. That Kent/JI had authority to stop unsafe work practices, tracked the progress of the job, defended against various safety violations, and were involved with the selection of the construction manager fails to raise an issue of fact as to whether Kent/JI created or had notice of the unsafe condition that caused the decedent's accident (Warnitz v Liro Group, Ltd., 254 AD2d 411, 411 [1998]; Buccini v 1568 Broadway Assocs., 250 AD2d 466, 469 [1998]). Accordingly, that branch of Kent/JI's cross motion to dismiss plaintiff's Labor Law § 200 and common-law negligence causes of action is granted.

Kent/JI next argue that pursuant to sections 1.5.1 and 1.5.2 of their contract with Spencer, Spencer is obligated to defend, indemnify and hold them harmless for the loss alleged by plaintiffs. Kent/JI also assert that based upon the deposition testimony of Mr. Greco, an employee of Spencer, and Mr. Dellapa, who drafted the contract, Spencer was responsible for ensuring that the subcontractors on the site, including Colasanto, the decedent's employer, provided an adequately safe work environment for their employees. In support of this argument, Kent/JI point out that Mr. Dellapa testified that Spencer was the on-site manager and would be responsible for safety, [*7]construction, permits and everything a general contractor would normally manage; that Spencer had an on-site supervisor, Mr. Henry Wild, at the premises at all times work was being performed; that Spencer had the authority to stop work on the project if it was aware of an unsafe condition at the site; that when Spencer was hired, it was given free reign by JI to implement whatever safety measures were required or appropriate; and that JI delegated to Spencer all general contractor responsibilities.

Kent/JI also rely upon the deposition testimony of Mr. Greco (of Spencer), who stated that Mr. Wild was responsible for coordinating the trades; "checking the quality of work" by performing daily walk-throughs with the general contractor, architects, and their consultants; and ensuring that the trades followed the schedule developed by Spencer, the general contractor and the architect. Mr. Greco also testified that if during a walk-through he saw scaffolding that was inadequate because of its physical condition or installation, he would make a comment to the particular trade, owner or foreman who was using the scaffold; that he reviewed safety plans submitted by subcontractors involved in the project; and that he had discussed safety with Colasanto when they were rebuilding the collapsed penthouse before decedent's accident occurred. Kent/JI also assert that Mr. Greco testified that part of Spencer's responsibilities was to ensure that the subcontractors were providing a safe workplace for their employees.

In its own cross motion to dismiss the second third-party action and in opposition to Kent/JI's cross motion for contractual and common-law indemnification against it, Spencer first argues that Kent/JI are not entitled to contractual indemnification against it on the grounds that there is evidence that Kent/JI's negligence caused decedent's accident; that it did not have authority to stop work at the construction site if it became aware of unsafe conditions there; that it was not given "free reign to implement whatever safety measures it deemed appropriate;" that pursuant to its contract with Kent/JI, it did not have supervision or control over the methods and means of the decedent's work; that its role was solely advisory; that it was only responsible for notifying Kent/JI to procure additional safety measures that may have been required (which no other party requested); that it was not permitted to implement safety procedures; that it was not required to have a supervisor at the premises at all times and had no contractual duty to be present at the site on the day decedent's accident occurred (a Saturday); that there was no evidence that the accident occurred as a direct result of its work at the site, rather it was JI's negligence in failing to ensure that their own subcontractors adhered to safety procedures and in failing to provide a safe workplace for their employees; and that it was not an agent of Kent/JI because it did not have supervisory control over the decedent's work.

In opposition to this branch of Spencer's cross motion, Kent/JI argue that Mr. Greco and Mr. Wild (both of Spencer) attended safety meetings with subcontractors; that Spencer, without their input, selected Colasanto for this project; that while Spencer claimed that it had no representative at the site on the Saturday the accident occurred, Mr. Greco testified that Spencer's sister company, Rende Contracting Corp., had an employee (Mr. Moran) at the site on Saturdays, and that if Mr. Moran had witnessed an unsafe condition, he would have reported it to Mr. Greco; and that although Spencer stated that someone from JI was supervising the site on the day of the accident, its citation to Mr. Dellapa's deposition transcript to support this claim only indicates that someone from JI was "probably" at the site "four out of five days (Monday through Friday) or some part of the time."

In reply to Kent/JI's opposition to Spencer's cross motion to dismiss the second third-party [*8]complaint, Spencer argues that Mr. Dellapa's (of Kent/JI) testimony that Spencer was obligated to examine the scaffolds at the site disregards the parties' contract pursuant to which Spencer had no control over construction performed by the subcontractors or safety precautions in connection with the subcontractor's work; that Mr. Dellapa conceded that it was JI's contractual duty to supervise the means, methods, and procedures for construction and for safety precautions and programs in connection with the work being done at the site; that it had no contractual duty to be at the site on a Saturday, when the accident occurred; that Kent/JI misstated Mr. Greco's (of Spencer) testimony that Spencer was required to ensure that the subcontractors were providing a safe work place for their employees, when Mr. Greco in fact testified that it was the responsibility of the trades to do so; that Rende's presence elsewhere on the site does not render Spencer liable for the accident, particularly when Wayne Colasanto testified that Rende was not working in the same area of the construction site where Colasanto's employees were working on the date of the accident; that it is undisputed that Colasanto supervised and controlled the means and method by which the decedent's work was done; and that Kent/JI's lack of involvement in selecting Colasanto is irrelevant as to whether Spencer supervised the methods and means of Colasanto's work at the site, particularly since Mr. Greco testified that Colasanto entered into a subcontract with JI with respect to its work at the site, and Wayne Colasanto confirmed that Colasanto was hired by JI to perform work at the site.

With respect to the contract entered into between Spencer and Kent/JI, the indemnification provision (Section 1.5.1) provides, in relevant part, that:

"To the fullest extent permitted by law, Construction Manager [Spencer] shall indemnify, hold harmless and indemnify the Owner [Kent] and General Contractor [J.I] . . . for which work is performed under this agreement against losses, claims, actions, demands, damages, liabilities, or expenses, including but not limited to reasonable attorney's fees and all other costs or defenses, by reason of liability imposed by law or otherwise upon Owner or the General Contractor . . . for damages because of bodily injuries, including death at any time resulting therefrom, sustained by any person or persons, including Construction Manager's employees, or on account of damage to property, including loss of use thereof, arising directly from the performance of Construction Manager's work or from any of the acts or omissions on the part of the Construction Manager, its employees, but does not provide defense or indemnity for the Owner, General Contractor and additional insureds own acts, actions, omissions, neglects or unproven allegations."

However, relying upon Section 2.3.15 of the contract, Spencer argues that it did not have any supervision or control over the methods and means of the decedents' work.This section provides that:

"With respect to each Contractor's own work, the Construction Manager shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the Contractors, since these are solely the Contractor's responsibility under the Contract for Construction. The Construction Manager shall not be responsible for a Contractor's failure to carry out the Work in accordance with the respective Contract Documents. The Construction Manager shall not have control over or charge of acts or omissions of the Contractors, Subcontractors, or their agents or employees, or any other persons performing portions of the Work not directly employed by the Construction Manager." [*9]

Further, according to the contract, Spencer notes that Kent had authority to stop the work. Specifically, Section 2.3.1 of the contract provides that:

"If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 12.2 or persistently fails to carry out Work in accordance with the Contract Documents, the Owner, by written order signed personally or by an agent specifically so empowered by the Owner in writing, may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity."

In addition, pursuant to Section 1.5.2 of the contract, Spencer notes that it was only obligated to "strictly observe all safety laws, rules and regulations . . . and advise Owner and General Contractor to provide such protection as necessary to protect the workers of other contractors" and well as to notify the general contractor to procure additional safety measures if required.

Spencer also emphasizes that it was obligated under Section 2.3.12 of the contract to "review the safety programs developed by each of the Contractors for purposes of coordinating safety programs with those of the other Contractors," but that this obligation did not "extend to direct control over or charge of the acts or omissions of the Contractor, Subcontractors, agents or employees of the Contractors or Subcontractors, or any other persons performing portions of the Work and not directly employed by the Construction Manager."

Finally, pursuant to Article 14 of the contract, Spencer agreed that its Project Super, Mr. Wild, would be on-site at all times that the work was being performed, except Saturdays, and that Mr. Greco would be on site one day per week for a job meeting and would visit the site one or two days per week.

"When liability attaches solely pursuant to Labor Law § 240(1), indemnification may be sought from the party actually responsible for the supervision, direction, andcontrol of the work giving rise to the injury" (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 661-662 [2009], citing Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]; see also Loiacono v Lehrer McGovern Bovis, 270 AD2d 464, 465 [2000]; Canka v Coalition for the Homeless, 240 AD2d 355, 356-357 [1997]). "However, a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Cava Constr. Co., Inc., 58 AD3d at 662, citing General Obligations Law § 5-322.1; Reynolds v County of Westchester, 270 AD2d 473 [2000]; see also Giangarra v Pav-Lak Contr., Inc., 55 AD3d 869, 871 [2008]["an indemnification clause is enforceable where the party to be indemnified is found to be free of any negligence."]).Moreover, "[a] party is entitled to contractual indemnification when the intention to indemnify is clearly implied from the language and purposes of the entire agreement and the surrounding circumstances'" (Torres v LPE Land Dev. & Constr., Inc., 54 AD3d 668, 670 [2008], quoting Canela v TLH 140 Perry St., LLC, 47 AD3d 743, 744 [2008]).

Here, the indemnification provision provides for indemnification in favor of Kent/JI for acts arising directly from the performance of Spencer's work or from any of the acts or omissions on its part or on the part of its employees under its contract with Kent/JI. Further, the intention to indemnify is clearly implied from the language and purpose of the entire agreement and the [*10]surrounding circumstances. In addition, as noted above, Kent/JI have made a prima facie showing that they did not exercise supervisory control over the decedent's work, and that they neither created nor had actual or constructive knowledge of the allegedly dangerous condition. Nevertheless, Kent/JI have failed to raise a material question of fact as to whether Spencer was actually responsible for the supervision, direction, and control of the work giving rise to the decedent's injury, which precludes an award of contractual indemnification in their favor (compare Vukovich v 1345 Fee, 61 AD3d 533, 534 [2009]). In this regard, pursuant to its contract with Kent/JI, Spencer did not have supervisory control over each contractors' work and was not responsible for the means and methods of the decedent's work or safety programs of each subcontractor. Further, it is undisputed that Spencer was only contractually obligated to "strictly observe all safety laws, rules and regulations," to advise Kent/JI to provide the necessary protection for workers of other contractors, to notify the general contractor if additional safety measures were required, and to review safety programs. Moreover, a " construction manager's authority to stop the contractor's work, if the manager notices a safety violation, does not give the manager a duty to protect the contractor's employees'" (Warnitz , 254 AD2d at 411, quoting Buccini, 250 AD2d at 468-469; see also Martin v Ron Paisner, 253 AD2d 796, 797-798 [1998]). In addition, "[t]he general duty to supervise the work and ensure compliance with safety regulations does not amount to supervision and control of the work site such that the supervisory entity would be liable for the negligence of the contractor who performs the day-to-day operations" (Warnitz, 254 AD2d at 411 [internal citation omitted]). Similarly, " the fact that [the construction manager] may have dispatched persons to observe the progress and method of the work does not render it actively negligent'" (id. at 411-412, quoting Aragon v 233 W. 21st St., Inc., 201 AD2d 353, 354 [1994]). Based upon the foregoing, there is no evidence in the record that Spencer "was negligent in any way causally related to the [decedent's] accident" (id. at 412). Since Kent/JI have failed to demonstrate that the decedent's claim arises directly from the performance of Spencer's work or the acts or omissions of Spencer or its employees, that branch of Kent/JI's cross motion which seeks contractual indemnification against Spencer is denied.

The court next addresses that branch of Kent/JI's cross motion for common-law indemnification against Spencer. In seeking that relief, Kent/JI are required "to establish as a matter of law that it was not negligent, and that [Spencer] was either guilty of some negligence that contributed to the causation of the accident or that [Spencer] had the authority to direct, supervise, and control the work giving rise to the injury" (Dipasquale v M.J. Ogiony Bldrs., 60 AD3d 1338, 1340 [2009] [internal quotations and citations omitted]; see also Picchione v Sweet Constr. Corp., 60 AD3d 510, 513 [2009]).

Here, Kent/JI have made a prima facie showing that they were not negligent. In support of this branch of its cross motion, in addition to the testimony of Mr. Dellapa and Mr. Greco set forth above, Kent/JI also point out that Wayne Colasanto testified that he and Spencer had discussed building the board/platform from which the decedent fell. However, neither this testimony nor the testimony of Mr. Dellapa and Mr. Greco, noted above, establish that Spencer was either guilty of some negligence that contributed to the causation of the accident or that Spencer had the authority to direct, supervise, and control the work giving rise to the decedent's death. Therefore, this branch of Kent/JI's cross motion for common-law indemnification against Spencer is denied.

In view of the court's determination denying Kent/JI's cross motion against Spencer, the cross motion of Spencer to dismiss the second third-party complaint is granted. In light of this [*11]determination, that branch of Spencer's cross motion, seeking in the alternative contractual and common-law indemnification against Colasanto, has been rendered moot.

Kent/JI cross-move for contractual and common-law indemnification against Colasanto. In support of that branch of their cross motion for contractual indemnification, Kent/JI rely upon the indemnification provision in their contract with Colasanto, and evidence which "overwhelmingly demonstrates that the accident occurred as a direct result of the negligent acts of Colasanto in failing to properly supervise its workers and in failing to construct the subject platform out of the proper materials." Specifically, in their factual recitation, Kent/JI point out that Colasanto built the subject board/platform and decided what materials to use in constructing it.

Kent/JI argue that they are entitled to common-law indemnification because the decedent suffered a "grave injury" under the Workers' Compensation Law as a result of Colasanto's negligence.Moreover, to demonstrate that the accident occurred as a result of Colasanto's negligence, Kent/JI again point out that Colasanto workers constructed the subject board/platform, and that Wayne Colasanto witnessed the workers erect the board/platform, conceded that his site supervisor (or project manager) decided what material to use in constructing the board/platform, and testified that the decedent reported only to Colasanto employees Kevin Gordon and Elroy Carbon and was supervised solely by Colasanto.

Lastly, in anticipation of Colasanto raising an antisubrogation argument, and relying primarily upon McGurran v DiCanio Planned Dev. Corp. (216 AD2d 538 [2d Dept 1995]), Kent/JI assert that the antisubrogation rule would not be implicated if they were granted indemnification from Colasanto. Specifically, Kent/JI argue that Colasanto was not insured by Burlington, its own insurer; that "Burlington never insured Colasanto for employee liability;" and that "this risk was never accepted by Burlington," which is why Colasanto was required to obtain workers' compensation insurance from the State Insurance Fund (the SIF). In this regard, Kent/JI state that:

"Burlington disclaimed covered to Colasanto. Colasanto is only insured by the State Insurance Fund. Indeed, Colasanto states in its Response to the Preliminary Conference Order that it is being defended through a policy issued by the State Insurance Fund, not Burlington . . . Also of significance is the fact that the State Insurance Fund is paying the attorneys' [sic] fees for the law firm representing Colasanto in this action."

Stated otherwise, Kent/JI assert that "the general commercial liability (CGL) policy purchased from Burlington by Colasanto was for obligations [Colasanto] agreed to assume via contract and not for employee liability," and that "the CGL policy excludes coverage for injuries occurring to Colasanto employees." Kent/JI maintain, therefore, that at issue are two separate and distinct policies, premiums, insurance companies and risks, and because different risks are involved, the public policy behind the antisubrogation rule is not implicated.^[FN5] Finally, Kent/JI argue that the workers' [*12]compensation carrier (the SIF), as a co-insurer, is obligated to pay half of the defense costs and indemnity dollars.

In opposition to these branches of Kent/JI's cross motion, Colasanto argues that Kent/JI are not entitled to contractual indemnification because the testimony of Mr. Dellapa (of Kent/JI) and Mr. Greco (of Spencer) raises questions of fact as to: 1) which entity - Spencer or JI - acted as the general contractor; 2) how safety was handled at the job site; and 3) whether the entity which acted as the general contractor had notice of the allegedly dangerous condition which caused the decedent's accident. In this regard, Colasanto points to the testimony of Mr. Dellapa that "JI was the general contractor for the entire project including the penthouses;" but who also testified that Spencer was the "de facto" contractor on the job site; that Kent/JI gave Spencer "free reign to put in whatever safety measures were required;" that if Kent/JI saw a subcontractor doing something wrong at the site, they would tell Spencer; that it was Spencer's job to check the site for safety issues; and that while Kent/JI delegated its contractual safety duties to Spencer, Kent/JI also had employees on the site during the week to ensure that Spencer was monitoring safety on the job site. Colasanto also points out that Mr. Greco testified that JI was the general contractor for the project; that Spencer only acted as the construction manager; that it was the duty of the tradesmen themselves to ensure a safe workplace for their employees; that if it had been on notice of an unsafe condition, it would report it to the "proper people;" that only the general contractor, not the construction manager, had the authority to stop work if it noticed an unsafe condition; and that it was undisputed that JI hired Colasanto.

Colasanto also asserts that Kent/JI is not entitled to common law indemnification since the testimony noted above raises an issue of fact as to the negligence of Kent/JI with respect to their contractual duties with respect to safety at the job site. In particular, Colasanto notes that Mr. Dellapa testified that Kent/JI walked around the building two to three times a week and would comment to the subcontractrors if they saw an unsafe condition; that members of Kent and JI were one in the same; and that Kent/JI delegated their safety responsibilities to Spencer, including checking the scaffolding at the job for "safety issues."

Further, relying upon North Star Reinsurance Corp. v Continental Insurance (82 NY2d 281 [1993]), Maksymowizc v New York City Bd. of Educ. (232 AD2d 223 [1st Dept 1996]), and Antonitti v City of Glen Cove (266 AD2d 487 [2d Dept 1999]) Colasanto contends that the third-party action is barred by the antisubrogation rule because its insurer, Burlington, also insures Kent/JI.In this regard, Colasanto notes that this court directed Burlington to assume the defense and indemnification of Kent/JI.Moreover, Colasanto argues that an owner's third-party complaint against the (plaintiff's) employer must be dismissed as barred by the antisubrogation rule where, as here, the owner (Kent/JI) is an additional insured on the policy of general liability insurance purchased by the employer (Colasanto) pursuant to its obligation to indemnify the owner, under an "insured contract" [*13]it entered into with the owner or general contractor, against claims for injuries arising out of the work (see Maksymowizc, 232 AD2d at 223; Antonitti, 266 AD2d at 487). Colasanto annexes a copy of the contract with JI under which it was performing work at the job site, which it asserts is an "insured contract" under Burlington's policy.

Colasanto also notes that while Kent/JI argue that it (Colasanto) is only insured by the SIF, the complaint in the Burlington Action contains admissions that the Burlington policy covers Colasanto on contractual claims.^[FN6] Colasanto annexes the affidavit of Wayne Colasanto, who states that the policy under which Kent/JI are being defended and indemnified was paid for by Colasanto.Thus, Colasanto states that it is covered by the Burlington policy.

Kent/JI do not respond to Colasanto's arguments in their opposition, but rely solely on the arguments made in their cross motion.

In its own cross motion to dismiss the third-party complaint, Colasanto raises the same antisubrogation argument noted above.

In opposition to Colasanto's cross motion to dismiss the third-party complaint, Kent/JI first note that Colasanto does not allege that they (Kent/JI) were negligent and therefore not entitled to indemnification from Colasanto. Rather, Kent/JI point out that Colasanto seeks dismissal based upon the antisubrogation rule, and argue that the cases cited by Colasanto are inapplicable since they involve accidents which occurred before the grave injury amendment to the Workers' Compensation Law was enacted on September 10, 1996. Secondly, Kent/JI reiterate that even if Burlington insured Colasanto for contractual claims, the antisubrogation rule would not be violated by Kent/JI's claim against Colasanto for common-law indemnification.

In reply, Colasanto reiterates that the negligence of Kent/JI, which precludes the court from granting Kent/JI indemnification, flows from their own inspections of the scaffolding, as well as their failure to perform their contractual responsibilities with respect to safety at the job site. In addition, Colasanto repeats that an owner's third-party complaint against a subcontractor must be dismissed as barred by the antisubrogation rule where, as here, the general liability carrier covers both the owner and the subcontractor. Further, Colasanto states that the contention of Kent/JI that Burlington did not insure it for contractual claims is undermined by Burlington's declaratory judgment action (Action No. 4) in which it admitted liability and sought half the amount of any indemnification it would have to pay on behalf of Colasanto.

As noted above, the parties to the Martinez Action and the Burlington Action have agreed that one justice would hear the motions in both cases. Specifically, in the Burlington Action, Burlington has moved for summary judgment "declaring" that the SIF "is obliged to satisfy, in whole or in part, any judgment obtained by [Kent/JI] against Colasanto for third-party claims arising out of the [Martinez action]," and the SIF has cross-moved to dismiss Burlington's causes of action as an equitable subrogee and for a preliminary conference to schedule discovery. [*14]

In support of its motion, Burlington argues that the antisubrogation rule neither bars Kent/JI from seeking common law indemnification against Colasanto, nor allows the SIF to escape its coverage obligations. First, Burlington asserts that the Burlington and the SIF policies cover different parties for different risks. Specifically, Burlington argues that its CGL policy provides coverage to Kent/JI as additional insureds for the claims in the underlying action but that Colasanto, as the employer of Martinez, is not covered under the Burlington policy for direct claims for employee injuries by operation of the employer's liability and cross-liability exclusions, a risk for which Colasanto secured coverage from the SIF under the separate SIF policy. Stated otherwise, Burlington states that its policy provides coverage for bodily injury and property damage liability to its insured but excludes coverage under the employer's liability exclusion to "[a]n employee of the insured arising out of and in the course of employment of: [e]mployment by the insured" and under the cross-liability exclusion for bodily injury to an "employee of any insured."

In addition, Burlington notes that the SIF has acknowledged that it owes coverage to Colasanto for the common-law claims and is currently defending Colasanto in the third-party action. Burlington further points out that the SIF is being represented in this action by the same law firm it appointed to defend Colasanto in the Martinez Action (Bivona & Cohen). Thus, Burlington concludes that there is no identity of coverage as between Burlington and the SIF, making the antisubrogation rule inapplicable.

Burlington next argues that the antisubrogation rule does not apply because both parties are not covered under the same policies inasmuch as Kent and JI are not insured under the SIF policy.

Burlington further states that the Federal Action was dismissed with prejudice in August, 2008 and that Colasanto released any and all claims against it for contractual indemnity coverage under the Burlington policy. In this regard, Burlington argues that even if the Burlington policy provided coverage to Colasanto for the contractual indemnity claim, the antisubrogation rule would not bar Kent/JI's claim against Colasanto for common-law indemnity because the Burlington policy does not cover Colasanto for common-law liability arising out of an injury to an employee.

In support of its cross motion to dismiss Burlington's causes of action as an equitable subrogee and in opposition to Burlington's motion, the SIF makes the same antisubrogation argument made by Colasanto, its insured. Specifically, relying upon Maksymowicz (232 AD2d 223), the SIF asserts that the third-party complaint must be dismissed as barred by the antisubrogation rule because the Burlington policy covers both Kent/JI (owner/contractor) and Colasanto (subcontractor/employer).

The SIF also contends that Burlington cannot make the instant motion as "equitable subrogee" of Kent/JI because Kent/JI are already represented by different counsel in the underlying action. In addition, the SIF argues that Burlington has not demonstrated that there is a dispute at issue since it cannot demonstrate any real, immediate or adverse legal interest or rights to be decided between the two insurers. In a related argument, the SIF maintains that Burlington cannot assert claims as an "equitable subrogee"of Kent/JI because the rights of an insurer (Burlington) as an equitable subrogee against a third-party (Colasanto) are derivative and limited to the rights that the insured (Kent/JI) would have had against the third party. The SIF argues that since Kent/JI do not have any rights against the SIF because they are not its insureds, Burlington cannot sue it as equitable subrogee of Kent/JI. Further, the SIF contends that pursuant to CPLR 3420, Burlington may not bring an action for a declaratory judgment against it on behalf of or as an "equitable subrogee" of [*15]Kent/JI since Kent/JI have not obtained a judgment against Colasanto and have not paid a judgment on behalf of Kent/JI.The SIF also argues that discovery is warranted because a question of fact exists as to whether the Burlington policy provides coverage to Colasanto in the underlying action. The SIF points to Burlington's claim in its original declaratory judgment action that it was a co-insurer of Colasanto, as well as the deposition testimony of Ms. Palmisano (a Burlington Area Claim Manager) in the Federal Action that Colasanto was covered by the Burlington policy for contractual indemnification claims " for the acts or omissions of Colasanto which may have caused the death of [the decedent].'"

The SIF further contends that Burlington should not imply that Colasanto waived coverage in settlement of the Federal Action without the consent of the federal court since the resolution of that action was subject to a confidentiality agreement; that there is no evidence before the court with respect to the resolution of the Federal Action; that the SIF was not a party to the Federal action; and that the stipulation discontinuing the action was not on the merits and that as such, the claim by Burlington warrants full discovery regarding the Federal Action since Burlington relies upon its outcome in supporting its motion.

The SIF next argues that the relief sought by Burlington is speculative since it is seeking a declaration that the SIF is obligated to satisfy in whole or in part any judgment obtained by Kent/JI against Colasanto for third-party claims made in the underlying action when Kent/JI have not yet obtained any judgment against Colasanto. Further, the SIF notes that Burlington fails to clarify whether it is seeking satisfaction of the entire judgment or part thereof. Lastly, the SIF contends that Burlington's claim for attorney's fees has no basis in law.

In its reply to the SIF's opposition to its motion, in its memorandum of law in further support of its motion, and in opposition to the SIF's cross motion to dismiss, Burlington reiterates that the antisubrogation rule does not bar Kent/JI from pursuing their third-party claims against Colasanto because: 1) there were two separate polices in effect on the date of the loss: its own general liability policy and the SIF's WC/EL policy and 2) those polices do not cover the same risk, since Kent/JI are covered under the Burlington policy as additional insured whereas Colasanto, as the employer of the decedent, is not covered under the Burlington policy for direct claims for employee injuries by virtue of the employer's liability and cross-liability exclusions.

As to the SIF's procedural arguments, Burlington first notes that it properly brought this declaratory judgment action on its own behalf seeking a declaration, not a money judgment. It also asserts that its commencement of the action in the alternative as an "equitable subrogee" was proper since it would have "equitable subrogation" rights

if it were to pay a settlement and/or a judgment on behalf of Kent/JI during the pendency of this action.

Burlington also argues that the SIF's reliance upon CPLR 3420 is misplaced as that statute addresses the right of an injured party to bring a direct action against an insurer to recover money damages, a circumstance not implicated in this declaratory judgment action.

Next, Burlington asserts that since it has annexed the voluntary dismissal with prejudice in the Federal Action establishing that Colasanto released any claims to coverage from Burlington for the claims in the underlying action, there are no material issues of fact warranting discovery regarding this settlement. Burlington also notes that the discovery sought by the SIF (the underwriting file, the deposition of a Burlington representative) are neither material nor necessary [*16]to the SIF's defense of this action, and do not have any relevance to the SIF's coverage obligations to Colasanto. Burlington also correctly states that a Burlington representative was already deposed. In addition, Burlington argues that it is irrelevant that the SIF was not a party to the Federal Action in light of the fact that Colasanto fully released its claims to coverage under the Burlington policy.

Burlington next asserts that this action for declaratory relief is not speculative inasmuch as its very purpose is to provide a procedure for parties to resolve disputes over existing rights and obligations (CPLR 3001), namely in this case to determine "the obligations, rights and other legal relations of [the] SIF with respect to insurance coverage for Colasanto for claims arising out of the [u]nderlying action." Further, Burlington contends that the implication by the SIF that this court may not make a determination of the SIF's obligations before a judgment is made in the underlying action undermines the stated purpose of bringing a declaratory action.

In its reply, the SIF reiterates that discovery with respect to the settlement in the Federal Action is warranted because it was not a party to that action. The SIF also argues that case law prohibits Burlington from bringing this action against it as an equitable subrogee of Kent/JI.

Finally, it should be noted that Burlington has provided an additional submission to this court and the parties to both actions on the issue of antisubrogation as it relates to the cross-liability exclusion in the Burlington policy.

"Subrogation, an equitable doctrine, entitles an insurer to stand in the shoes' of its insured to seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse" (North Star Reinsurance Corp., 82 NY2d at 294). However, "[a]n insurance carrier has no right of subrogation against its own insured to recover for a claim which arises out of the very same risk for which the insured is covered" (Coughlan v Turner Constr. Co., 296 AD2d 342, 342 [2002], citing Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 468 [1986]). "Public policy requires this exception to the general rule both to prevent the insurer from passing the incidence of loss to its own insured and to guard against the potential for conflict of interest that may affect the insurer's incentive to provide a vigorous defense for its insured" (North Star Reinsurance Corp., 82 NY2d at 294-295; Pennsylvania Gen., 68 NY2d, at 471-472).

Here, Kent/JI (the owner and general contractor, respectively), and their insurer Burlington, argue that the antisubrogation rule does not apply since the Burlington policy excludes coverage for work-related claims by plaintiffs' decedent, a former employee of Colasanto, by operation of the employer's liability and cross-liability exclusions. As such, Burlington contends that indemnity against Colasanto is not being sought for the very risk for which Colasanto was covered under the Burlington policy, but rather for a risk for which Colasanto was covered under the workers' compensation policy obtained by Colasanto from the SIF. Colasanto and the SIF argue, in effect, that the Burlington policy covers Colasanto's common-law indemnification obligation under the "insured contract" exception to the exclusion for employment-related injuries and that by pursuing the instant third-party claim against it, Burlington is "impermissibly attempting to pass the incidence of loss to its own insured,' in violation of the antisubrogation rule" (Antonitti, 266 AD2d at 488, quoting North Star Reins. Co., 82 NY2d at 294). Colasanto and the SIF have not addressed the cross-liability exclusion in the Burlington policy.

Based upon a review of the record and the relevant case law, the court finds that the employer's liability and cross-liability exclusions serve to preclude coverage to Colasanto for direct claims for employee injuries under the Burlington policy. Since the Burlington policy does not [*17]provide coverage to Colasanto for direct claims for employee injuries, Burlington is not attempting to pass the incidence of its own loss to its insured by advancing the subject third-party claim. In this regard, "before an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case and that they are subject to no other reasonable interpretation" (Seaboard Surety Co. v Gillette Co., 64 NY2d 304, 311 [1984] [internal citations omitted]). Thus, "[t]o negate coverage by virtue of an exclusion, an insurer must establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case" (Cont'l Cas. Co. v Rapid-American Corp., 80 NY2d 640, 652 [1993]; Jahier v Liberty Mut. Group, 2009 NY Slip Op 5948, *2 [2009]). "An ambiguity in an exclusionary clause must be construed most strongly against the insurer" (Jahier, 2009 NY Slip Op 5948, *2; citing Ace Wire & Cable Co. v Aetna Casualty & Surety Co., 60 NY2d 390, 398 [1983]; see also Bassuk Bros. v Utica First Ins. Co., 1 AD3d 470, 471 [2003], appeal dismissed 3 NY3d 696 [2004]). "At the same time, an insured must demonstrate that an exception to an exclusion applies where coverage rests on the application of such exception" (Monteleone v Crow Constr. Co., 242 AD2d 135, 140 [1998], appeal denied 1998 NY App. Div. LEXIS 9725 [1998]; appeal denied 92 NY2d 818 [1998]). "However, the plain meaning of the policy's language may not be disregarded to find an ambiguity where none exists" (Jahier, 2009 NY Slip Op 5948, *2, quoting Atlantic Balloon & Novelty Corp. v American Motorists Ins. Co., 62 AD3d 920, 922 [2009]; see also Bassuk Bros, 1 AD3d at 471).

The Burlington policy contains an employer's liability exclusion. The employer's liability exclusion precludes coverage for bodily injury to an employee of the insured "arising out of and in the course of employment of [e]mployment by the insured.'" However, the policy provides that "[t]his exclusion does not apply to liability assumed by the insured under an insured contract.'" In addition, the policy contains a cross-liability exclusion, which states that "[t]his insurance does not apply to any actual or alleged bodily injury' [or] . . . personal injury', to: . . . [a] present employee of any insured . . ."

Burlington has satisfied its burden of demonstrating that the cross-liability exclusion applies and that it is not subject to any other reasonable interpretation. Specifically, the cross-liability exclusion noted above, as well as similarly worded cross-liability exclusions, have been held to be clear and unambiguous and has been repeatedly enforced as written (see 385 Third Avenue Associates, L.P. and KNK Construction, LLC v Metropolitan Metals Corp. and The Burlington Insurance Company, Sup Ct, NY County,

June 24, 2009, York, J., index No. 105708/08)] [the cross-liability exclusion applies to exclude coverage in a situation involving actual or alleged bodily injury to an employee of any insured]; Richner Development, LLC v The Burlington Insurance Company, Sup Ct, Nassau County, November 19, 2008, Diamond, J., index No. 021810/07][the cross-liability exclusion in the Burlington policy was subject to only one reasonable interpretation-the policy did not apply in matters involving bodily injury to an employee of a named insured]; The Allen-Stevenson School et al. v Burlington Insurance Company et al., Sup Ct, NY County, March 31, 2008, Edmead, J., index No. 603036/06][cross-liability exclusion is clear and unambiguous, excludes coverage for bodily injury to any employee of any insured, and unambiguously applies to bar coverage to an additional insured against a claim by an employee, and therefore must be enforced as written]). [*18]

The Eastern District of New York, in Chimbay v Avalonbay Communities, Inc. d/b/a Avalon Pines (US Dist Ct., ED NY, Docket No. 06-CV-1908[JS][MLO], Seybert, J., September 29, 2008]), also held that the cross-liability exclusion was clear and unambiguous and therefore acted to preclude coverage to an insured for injuries to its employee. As Burlington asserts, other jurisdictions have also held that the cross-liability exclusion is clear, unambiguous, and precludes coverage for bodily injury to an employee of any insured. In American Wrecking Corp. v Burlington Ins. Co. (400 N.J. Super. 276, 946 A.2d 1084 [App.Div. 2008]), the Appellate Division of the State of New Jersey held that the cross-liability exclusion precluded covered for any injuries suffered by an employee of any insured, including employees of additional insureds named in the policy. The court rejected the claim that the exclusion, worded exactly the same as the cross-liability exclusion at issue here, was ambiguous, finding that the phrase "employee of any insured" was "crystal clear" (400 N.J. Super. at 283, 946 A.2d at 1088). It should also be noted that the cross-liability exclusion in the subject Burlington policy is on its own page with a heading in bold and capital letter which states "THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. EXCLUSION-CROSS LIABILITY."

The argument, in effect, made by Colasanto and the SIF that the "insured contract" exception in the Burlington policy entitles Colasanto to coverage, and that as such, the antisubrogation rule applies to preclude the third-party claim of Kent/JI against Colasanto, must be rejected. As noted above, the Burlington policy generally provides coverage for bodily injury and property damage to the insured, but also contains a number of exclusions from coverage, including one for bodily injury to an employee, namely the employer's liability exclusion described above, which provides that:

"This insurance does not apply to:

e. Employer's Liability

Bodily Injury' to:

(1) An employee' of the insured arising out of and in the course of:

(a) Employment by the insured; or

(b) Performing duties of the insured's business . . .

This exclusion applies:

(1) Whether the insured may be liable as an employer or in any other capacity; and

(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury."

This exclusion does not apply to liability assumed by the insured under an insured contract.'"

The Burlington policy defines an insured contract as "[t]hat part of any other contract or agreement pertaining to your business . . . under which you assume the tort liability of another party to pay for bodily injury' or property damage' to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement." Further, although the [*19]policy excludes coverage for contractual liability, namely " [b]odily injury' or property damage' for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement," the policy also provides that "[t]his exclusion does not apply to liability for damages . . . [a]ssumed in contract or agreement that is an insured contract', provided the bodily injury' or property damage' occurs subsequent to the execution of the contract or agreement."

Although Colasanto and the SIF argue that the insured contract exception applies to provide Colasanto with coverage, "[e]ven where one exclusion may at first appear to contradict another, or create an ambiguity, [e]xclusions in policies of insurance must be read seriatim, not cumulatively, and if any one exclusion applies there can be no coverage since no one exclusion can be regarded as inconsistent with another [citation omitted]" (Monteleone, 242 AD2d at 141, quoting Zandri Constr. Co. v Firemen's Ins. Co., 81 AD2d 106, 108 [1981]; see also 385 Third Avenue Associates, L.P. and KNK Construction, LLC, Sup Ct, NY County, June 24, 2009, York, J., index No. 105708/08; Chimbay, US Dist Ct., ED NY, Docket No. 06-CV-1908[JS][MLO], Seybert, J., September 29, 2008). As Justice York noted in 385 Third Avenue Associates, the Court of Appeals has also held that " in policies of insurance . . . if any one exclusion applies there can be no coverage'" (Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 479 [2005], quoting Monteleone, 242 AD2d at 140-141 [internal quotations omitted]; see also Vislocky v City of New York et al., Sup Ct, Kings County, January 30, 2008, Hinds-Radix, J., index No. 20995/05)] [rejecting argument that the terms of the cross-liability exclusion in insurance policy was ambiguous or that it contradicted other sections of the subject policy because policy exclusions are to be read seriatim and, if any one exclusion applies, there is no coverage since no one exclusion can be regarded as inconsistent with another] [internal quotations and citations omitted]).Further, if Burlington had intended "insured contracts" to be an exception to the cross-liability exclusion, it would have explicitly so indicated in the policy (see 385 Third Avenue Associates, L.P. and KNK Construction, LLC, Sup Ct, NY County, June 24, 2009, York, J., index No. 105708/08; see also Chimbay, US Dist Ct., ED NY, Docket No. 06-CV-1908[JS][MLO], Seybert, J., September 29, 2008)]["The Cross-Liability Provision excludes coverage under the insurance policy for bodily injuries to any employee of any insured. (The insured contract provision and the cross-liability) provisions provide two separate exclusions, and there is no basis for finding that the Cross-Liability Provision does not apply to insured contracts. If Burlington intended to exclude insured contracts' from the provision denying coverage for injuries to employees, it could have expressly stated as such."]).

Moreover, as Monteleone held in describing Zandri (81 AD2d 106), "while exclusion (a) contained an exception that arguably could have applied to the claim involved, the subsequent exclusions made clear that it did not . . . [and] there would be no need for the subsequent provisions if the first controlled" (Monteleone, 242 AD2d at 141 [where "(t)he intent and inescapable effect of deleting the insured contract' exception is to deny coverage for all bodily injury claims, both common-law and contractual alike; to deprive the provision of this meaning would be to render it identical to its predecessor version, despite the deletion of the critical concluding sentence (containing the insured contract provision)."]; see also Richner Development, LLC, Sup Ct, Nassau County, November 19, 2008, Diamond, J., index No. 021810/07]["Upon an objective reading of the insurance policy (which contained an insured contract provision and a cross-liability exclusion), there [was] no ambiguity presented by an "insured contract [provision]."). Because the cross-[*20]liability exclusion applies, this court declines to hold that the "insured contract" exception would permit coverage.

Colasanto and the SIF have not addressed the interplay between the insured contract exception and the cross-liability exclusion. Further, their reliance upon Maksymowicz (232 AD2d 223), and Antonitti (266 AD2d 487), is misplaced. Review of the records of these cases reveals that while the operative insurance polices therein contained employer's liability exclusions with insured contract exceptions, they did not contain cross-liability exclusions.

As concluded above, the antisubrogation rule does not bar that branch Kent/JI's cross motion for common-law indemnification against Colasanto. As such, upon review of the record, the court grants both branches of this cross motion. As to that branch of Kent/JI's cross motion for contractual indemnification, it is settled that " [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'" (Barnes v New York City Hous. Auth., 43 AD3d 842, 844 [2007], appeal dismissed 9 NY3d 1002 [2007], quoting Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987]). Further, "[w]hen liability attaches solely pursuant to Labor Law § 240(1), indemnification may be sought from the party actually responsible for the supervision, direction, and control of the work giving rise to the injury" (Cava Constr. Co., Inc., 58 AD3d at 661-662; see also Loiacono, 270 AD2d at 464; Canka, 240 AD2d at 355). "However, a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Cava Constr. Co., Inc., 58 AD3d at 662; citing General Obligations Law § 5-322.1; Reynolds v County of Westchester, 270 AD2d 473 [2000]).

Here, in support of this branch of their cross motion, Kent/JI point to sections 4.3.1, 4.6.1 and 3.3 of the rider in the JI/Colasanto contract. Section 4.6.1 provides, in pertinent part, that:

"To the fullest extent permitted by law, the Subcontractor (Colasanto) shall indemnify and hold harmless the Owner (Kent), Contractor (JI) . . . and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the Subcontractor's Work, under this Subcontract, provided that any such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death . . . but only to the extent caused by the negligent acts or omissions of the Subcontractor, the Subcontractor's Subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.^[FN7] Such obligation shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a [*21]party or person described in this Section 4.6."^[FN8]

This provision clearly requires Colasanto to indemnify Kent/JI for all claims "arising out of or resulting from performance of the Subcontractor's Work . . . but only to the extent caused by the negligent acts or omissions of the Subcontractor, the Subcontractor's Subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable . . ."Further, this court has already determined that Kent/JI did not supervise or control the decedent's work and did not create or have notice of the condition which caused the decedent's accident. Thus, Kent/JI's liability is purely statutory. In addition, Kent/JI have made a prima facie showing that the work the decedent was performing for his employer, Colasanto, clearly constituted work under the contract, and that the accident was the result of Colasanto's negligence.

Colasanto has failed to rebut this prima facie showing. Colasanto argues that Kent/JI is not entitled to contractual indemnification because there is an issue of fact as to whether Spencer or JI acted as general contractor, and whether the entity which acted as general contractor had notice of the allegedly dangerous condition which caused the decedent's death. However, Colasanto has failed to demonstrate how JI, as general contractor, was responsible for the decedent's death and has failed to provide evidence which shows that Kent/JI had notice of that dangerous condition. Moreover, testimony, in effect, that JI was responsible for safety on the job site and had the authority to stop work if it noticed an unsafe condition fails to raise an issue of fact as to JI's purported negligence. "The contractual duty to oversee the performance of work, inspect the work site and ensure compliance with safety regulations does not constitute supervision and control over the subcontractor's methods of work" (D'Antuono v Goodyear Tire & Rubber Co. Chem. Div., 231 AD2d 955, 955 [ 1996]). Based upon the foregoing, Kent/JI are entitled to summary judgment on this branch of their motion for contractual indemnification against Colasanto (see Drzewinski, 70 NY2d at 777; Cava, 58 AD3d at 661-662; Argueta v Pomona Panorama Estates, Ltd., 39 AD3d 785, 786 [2007]).

As to that branch of Kent/JI's cross motion for common-law indemnification against Colasanto, it is settled that "[w]hile an owner who establishes that its liability pursuant to Labor Law § 240(1) is purely statutory and vicarious may obtain common-law indemnification, such owner must also prove that the proposed indemnitor was guilty of some negligence that caused or contributed to the accident or, in the absence of any negligence, that the proposed indemnitor had the authority to direct, supervise, and control the work giving rise to the injury" (Mid-Valley Oil Co., Inc. v. Hughes Network Sys., Inc., 54 AD3d 394, 395-396 [2008][internal citations omitted]).

Here, the court has already determined that Kent/JI have made a prima facie showing that their liability is purely statutory. In this regard, Kent/JI have demonstrated, and it is undisputed, that Colasanto workers constructed the board/platform from which the decedent fell, that Mr. Colasanto witnessed the workers erect the board/platform, conceded that his site supervisor decided what material to use in constructing the board/platform, and testified that the decedent only reported to and was supervised by Colasanto employees. Colasanto has failed to rebut this showing. While Colasanto argues that Kent/JI walked around the building commenting about unsafe conditions and delegated their safety responsibilities to Spencer, including ensuring scaffolding safety, this is [*22]insufficient to demonstrate that Kent/JI were negligent beyond their statutory liability (D'Antuono, 231 AD2d at 955; Warnitz, 254 AD2d at 411-412; Dennis v City of New York, 304 AD2d 611, 612 [ 2003]). Based upon the foregoing, Kent/JI are entitled to summary judgment as to that branch of their cross motion for common-law indemnification against Colasanto. In light of this determination, the cross motion of Colasanto to dismiss the third-party complaint is denied.

The arguments made by the SIF in opposition to Burlington's motion for summary judgment and in support of its own motion to dismiss are without merit. First, to the extent the complaint so alleges, Burlington properly brought this action in part as an "equitable subrogee" since if it were to pay a settlement and/or judgment on behalf of Kent/JI during the pendency of this action, it would have the rights of an "equitable subrogee." Thus, reliance by the SIF upon Federal Ins. Co. v Arthur Andersen & Co., (75 NY2d 366 [1990]) to support this argument is misplaced.

Moreover, the SIF's reliance upon CPLR 3420, and related case law (Lang v Hanover Ins. Co., 3 NY3d 350, 355 [2004]; Kenmore-Tonawanda School Dist. v State of New York, 38 AD3d 203 [2007], appeal denied 2007 NY App. Div. LEXIS 8343 [July 5, 2007]; appeal denied 10 NY3d 702 [2008]),to support its claim that Burlington cannot bring this action as an equitable subrogee of Kent/JI is also misplaced as that statute addresses the right of an injured party to bring a direct action against an insurer to recover money damages, a circumstance not implicated in this declaratory judgment action. In any event, inasmuch as the court has already determined that Burlington is not obligated to provide any coverage to Colasanto under its policy, this argument has been rendered academic.

Further, Burlington's action for a declaratory judgment against the SIF on its own behalf was proper. As the Court of Appeals held in Lang (3 NY3d at 353), "[t]here is no dispute that parties to an insurance contract — the insurer, a named insured or a person claiming to be an insured under the policy — may bring a declaratory judgment action against each other when an actual controversy develops concerning the extent of coverage, the duty to defend, or other issues arising from the insurance contract" (id.).

Next, the argument by the SIF that the relief sought in this action is speculative because a judgment on the third-party claims has not been rendered in the underlying action is rejected. "CPLR 3001 authorizes a court to declare "the rights and other legal relations of the parties to a justiciable controversy,' providing a procedure for parties to resolve disputes over existing rights and obligations" (Lang, 3 NY3d at 355, quoting CPLR 3001]). Here, a justiciable controversy exists regarding the insurance coverage available to Colasanto in the underlying action because it is [*23]undisputed that the SIF has refused to provide coverage to Colasanto until Burlington's insurance is exhausted. Further, as Burlington argues, the contention of the SIF that it cannot bring this action until a judgment has been rendered in the underlying action undermines the very purpose of CPLR 3001.

As to the SIF's argument that Burlington has failed to articulate the percentage it must pay if a judgment is rendered on Kent/JI's third-party claims, it is now academic since the court has determined that Burlington is not obligated to provide any coverage to Colasanto.

The argument of the SIF that further discovery regarding the Federal Action between Colasanto and Burlington is warranted before this action can proceed is rejected. As noted above, in that action, Colasanto commenced a declaratory judgment action in the United States District Court for the Eastern District of New York seeking, among other relief, coverage from Burlington for the contractual indemnification claim alleged in the third-party action. In April, 2007, Burlington interposed its answer to Colasanto's complaint and denied any obligation to defend or indemnify Colasanto for the contractual indemnity claims in the third-party action. However, Burlington has annexed evidence in admissible form establishing that the Federal Action was voluntarily dismissed with prejudice in August 2008 and that Colasanto released any and all claims against Burlington for contractual indemnity coverage under the Burlington policy, including those claims set forth in the third-party action. Such dismissal "is deemed a final adjudication on the merits for res judicata purposes on the claims asserted or which could have been asserted in the suit'" (Miele v Pension Plan of N.Y.State Teamsters Conf. Pension & Retirement Fund, 72 F. Supp. 2d 88, 96 [E.D.NY 1999], quoting Israel v Carpenter, 120 F.3d 361, 365 [2d Cir.1997]). As such, there exist no material issues of fact which require discovery. In light of the foregoing, that the SIF was not a party to Federal Action has no bearing on this issue. Further, while the SIF contends that the underwriting file of the Burlington policy, as well as deposition testimony from a Burlington representative, will shed light on its coverage obligations, it has "failed to demonstrate anything more than the mere hope that additional discovery would reveal facts sufficient to defeat Burlington's motion" (Golden Stone Trading, Inc. v Wayne Electro Sys., Inc., 45 AD3d 638, 639 [2007][internal quotations and citations omitted]).

Lastly, the court denies that branch of Burlington's motion for costs and attorney's fees as this branch of its motion is unsupported by any authority for this relief.

This constitutes the decision and order of the court.

ENTER,

J.S.C.