The following papers numbered 1 to53read on this motion by (1) motion by Copper to dismiss the claims and cross claims asserted against it pursuant to CPLR 3212; (2) motion by plaintiff for partial summary judgment in his favor pursuant to CPLR 3212; (3) motion by Danica for summary judgment in its favor dismissing the complaint and third-party complaint, insofar as asserted against it, pursuant to CPLR 3212; (4) cross motion by BBD Developers LLC, 17th Street Development, Metro Construction Enterprises, Inc., and Pav-Lak Industries, Inc. (herein collectively referred to as the owner defendants), to dismiss plaintiff's claims pursuant to Labor Law §§ 200 and 240(1), and (5) cross motion by the owner defendants for summary judgment in their favor on their claims for contractual indemnification from Danica and Copper.

Papers

Numbered

Notices of Motions - Affidavits - Exhibits1-20

Notices of Cross Motions - Affidavits-Exhibits21-28

Answering Affidavits - Exhibits29-40

Reply Affidavits41-53

Upon the foregoing papers it is ordered that the motions and cross motions are determined as follows:

Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained on December 6, 2007, when he slipped on ice on a staircase while performing construction work at 246 West 17th Street, New York, New York (premises). BBD Developers LLC (BBD), was the original purchaser of the property at 246 West 17th Street. BBD sold the property to 17th Street Development prior to any of the renovation work at issue. Pav-Lak was the general manager/contractor responsible for the entire building. Danica was retained as a subcontractor by Pav-Lak., to perform mechanical and plumbing work at the premises. Plaintiff moves the summary judgment in his favor on his claim pursuant to Labor Law §241(6). As noted above, defendants move and cross move for summary judgment in their respective favor. The motions and cross motions are opposed by the respective parties.

Facts [*2]

The complaint alleges that on December 6, 2007, at approximately 11:00 a.m., plaintiff slipped and fell on ice in a stairwell while working as a plumber's assistant inside the new condominium construction project at the premises known as 246 West 17th Street. Plaintiff testified that immediately following the accident, he observed water actively leaking from a valve on the fire suppression standpipe in that stairwell, and that such water was the source of the ice that caused his fall. The plumbing, fire suppression and HVAC subcontractor, Danica, and its subcontractor/assignee, Copper, signed Subcontractor Agreements in which duties of direction, supervision, control, site safety, housekeeping, OSHA compliance and Labor Law compliance were assumed. In addition, the record indicates that they assumed duties to defend, indemnify and procure commercial general liability insurance coverage to Pav-Lak and the Owners.

Plaintiff further testified as follows: His duties included carrying and bringing materials to the plumbers at the job site. Although the building had a roof, some of the windows has not yet been installed at the time of his accident; and the building did not have permanent heating. The general contractor brought in heaters that you plug into the wall to warm up the building because it was getting very cold. Plaintiff recalled that prior to the accident, he observed icy conditions around the building. Laborers at the building would put sand, salt and other materials on such conditions. The laborers also unloaded the heaters. Plaintiff estimated that there were over 100 heaters at the job site and that the building did not have enough electricity to push the heaters so the heaters weren't blowing properly. The laborers were supervised by the general contractor.

After plaintiff arrived at the building that morning and had worked for approximately 1.5 hours, plaintiff was instructed by his plumber to go to the basement and get a piece of material. Plaintiff used an interior staircase to go to the basement. The stairs were made of concrete, however, the staircase wasn't completely finished at the time of the accident. The staircase had a landing on each level which was 4x3 and had 20-25 steps between each landing. Each landing had a temporary light fixture hanging above it. Plaintiff described the lighting as good. Plaintiff walked through an open door frame and took one step into the landing. He took a second step, slipped and fell backwards down several steps. Plaintiff called for help and was assisted by the elevator operator within thirty seconds. He told the elevator operator what happened and he traveled to the third floor landing where he observed ice on top of the stairs.

Plaintiff reported the accident to the general contractor who instructed laborers to get two of the heaters and place them on the landing to melt the ice. The general contractor also instructed that a warning sign be put up until the ice melted. Plaintiff did not notice any warning signs in the staircase prior to the accident. Plaintiff could not identify what type of pipe was leaking water but, when shown photographs of the accident location at his examination before trial, his recollection regarding the pipe was refreshed. He testified that masonry guys would come and take water from the pipe "all the time" to fill buckets to facilitate their work.

Plaintiff testified that he never saw ice on the third-floor landing prior to his accident. He never complained about icy conditions on the job site prior to his accident. He did observe [*3]laborers putting sand on water accumulations on the floor.

Helen Andreadakis testified on behalf of Danica/Copper. Briefly, she testified that the owner and construction manager/general contractor were responsible for removing ice conditions within the subject building.

Charles Blaichman testified on behalf of 17th Street Development as follows: The company was started to develop a property located at 246 West 17th Street in Manhattan. 17th Street are the owners of the subject property. BBD was the original purchasers of the property at 246 West 17th Street, however, BBD sold the property to 17th Street Development prior to any renovation work taking place. Pav-Lak was responsible for the entire building (including site safety during construction), and Blaichman recalled Pav-Lak retained Danica as a subcontractor.

Richard Perez testified on behalf of Pav-Lak, as follows: His responsibilities included controlling the entire work project. Perez was also the President of Metro Construction Enterprises, Inc. (Metro). This company was formed strictly to pull Department of Buildings (DOB) permits on projects for Pav-Lak, and did not perform any work at the job site. Perez was shown the same photographs which were shown to plaintiff. While he was able to confirm that the photographs showed a fire standpipe, he was unable to determine the location at which the photographs were taken.

Paul Xyloportas is a field superintendent for Pav-Lak and testified on its behalf, as follows:. On December 6, 2007, he was supervising a job at 246 West 17th Street in Manhattan. He first learned of the accident when he observed plaintiff sitting in the basement with his leg up and he asked plaintiff what had happened. Plaintiff indicated that he "slipped on ice and landed on his knee and grabbed the handrail". The ice was located on one of the staircase landings. After speaking with plaintiff, Xyloportas went up to the landing in question and observed "thawed out ice" which was slushy in nature. The icy condition was confined to the landing. Xyloportas was aware of this condition approximately one-half hour to one hour before plaintiff's accident. Prior to observing plaintiff in the cellar, Xyloportas observed the slushy condition and instructed one of the laborers to put salt on the condition and to place caution tape around the condition. Xyloportas did not know the source of the water and had personally placed the caution tape warning of the icy condition over the area. He also confirmed that the laborer placed a "dusting" of salt on the icy condition. After the accident, Xyloportas a piece of the yellow caution tape was on the wood railing but the span on the standing pipe was missing. Prior to December 6, 2007, Xyloportas had never observed an icy condition on the subject stairwell nor on any other stairwells. He did not know whether the standpipe system had water in it at the time of the accident. The only running water which Xyloportas testified that he knew of was located in the cellar. There were no other sources of water in the building at the time of plaintiff's accident. Finally, Xyloportas admitted that there were issues with snow and ice in the building prior to plaintiff's accident, and that Xyloportas had personally observed ice inside the building prior to plaintiff's accident. [*4]

Leonidas Andreadakis testified on behalf of Copper. As relevant to the issues herein, he testified that Copper was performing plumbing work at the project located at 246 West 17th Street in Manhattan. Andreadakis was shown a photograph of the standpipe in question, and he testified that he did not receive any complaints about the standpipe at any time prior to December 6, 2007. He explained that the New York City Master Fire Suppression Code requires that the standpipe be dry during construction and that the standpipes are not energized during the winter because the joints that connect the pipes together would crack and break. Andreadakis testified that the standpipe in the photograph would not have been a source of water in December, 2007.

Motion by Copper

The motion by Copper to dismiss the claims and cross claims against it is denied. In support of their motion, Copper submitted evidence that the standpipe in the vicinity of the accident location (for which Copper was responsible because it installed the standpipe), was not energized at the time of plaintiff's accident and thus no water would have been in the system, plaintiff testified that after he fell he observed water dripping from the standpipe at issue. Leonides Andreadakis, a member of Copper and the individual in overall charge of Copper's work, testified also testified that the standpipe was not active at the time of plaintiff's accident, as did Pav-Lak's superintendent, Paul Xyloportas, who inspected the standpipe system before and after the incident. Xyloportas testified that after inspecting the standpipe after plaintiff's accident, he observed that the standpipe was not dripping and that the cause of the icy condition on the stair landing was unknown. Copper also submitted an affidavit from Emmanuel Troise, Jr., an expert in the field of plumbing and fire suppression which confirms that, given the facts and circumstances detailed in the available record, the standpipe would not have been energized at the time of plaintiff's accident. However, in opposition, evidence of plaintiff's testimony wherein he stated that he observed water dripping from the standpipe after he fell, was submitted. Given the conflicting accounts as to whether the standpipe was active and was the source of the water condition which caused plaintiff's fall, the motion by Copper for summary judgment in its favor is denied (see McLean v 405 Webster Ave. Associates, 98 AD3d 1090 [2d Dept. 2012]).

The branch of the motion by Copper which is for summary judgment dismissing the BBD defendants' claim for contractual indemnification, is also denied. Paragraph "6" of the Insurance Requirements/Indemnification Agreement between Pav-Lak and Danica provides, in pertinent part, that:

"To the fullest extent permitted by law, the Subcontractor shall defend, indemnify and hold harmless. . . Pav-Lak, the Owner/Landlord, . . .from and against any and all claims, suits, actions, damages, losses, expenses, penalties, fines, costs and fees, including but not limited to attorneys' fees arising out of or resulting from performance of the work, provided that such claim, damage, loss or expense is attributable to bodily injury. . . caused in whole or in part by any act or omissions of the Subcontractor, anyone directly or indirectly employed by the Subcontractor, or anyone for whose acts they may be liable.

Pursuant to an April 1, 2006 Master Subcontract Agreement that Thomas Andreadakis, a [*5]member of the Danica Group, acknowledges in his January 18, 2013 affidavit, Copper agreed to complete the work on Danica's existing contracts, including the subject Subcontractor Agreement between Pav-Lak and Danica.

"[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]). However a party cannot contract to be indemnified for its own negligence. "[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. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2d Dept. 2009]; see Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807, 808 [2d Dept. 2009]). Since the record is not clear as to the source of the water and which party was responsible therefore, a triable issue of fact exists regarding the BBD defendants' negligence. Where a triable issue of fact exists regarding the indemnitee's negligence, summary judgment on a claim for contractual indemnification must be denied as premature (see Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d at 808; State of New York v Travelers Prop. Cas. Ins. Co., 280 AD2d 756, 757—758 [3d Dept. 2001 ); Baillargeon v Kings County Waterproofing Corp., 91 AD3d 686, 688 (2d Dept 2012).

The branch of the motion which seeks summary judgment in Copper's favor dismissing the claims for common-law indemnification and contribution against and from Copper on the ground that plaintiff did not sustain a "grave injury" in the subject accident, is denied. Workers' Compensation Law § 11 was amended in 1996 to permit an employer to be held liable for contribution or indemnity only where the third-party plaintiff proves through competent evidence that the injured party sustained a "grave injury." "The term grave injury' has been defined as a statutorily defined threshold for catastrophic injuries' * * * and includes only those injuries which are listed in the statute and determined to be permanent" (Ibarra v Equipment Control, 268 AD2d 13, 17—18 [2d Dept. 2000], quoting Kerr v Black Clawson Co., 241 AD2d 686 [3d Dept. 1997]). The third-party complaint may not at this juncture be dismissed on the ground that plaintiff's injury was not grave. Copper argues that the amended verified bill of particulars and deposition testimony are insufficient to establish by "competent medical evidence," as required by Workers' Compensation Law § 11, that a grave injury was sustained. It is, however, the burden of the party seeking summary judgment to show, by competent admissible evidence, that the plaintiff's injuries were not "grave" (Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487 [2d Dept. 2001]). Only upon such a showing does the burden shift to the opposing party "to raise a triable issue of fact through the submission of competent medical evidence' to support its claim of grave injury' " (Harris v Metropolitan Life Ins. Co., 183 Misc 2d 431, 433 [2000]; see also Way v Grantling, 289 AD2d 790, 793 [2d Dept. 2001]). Since Copper has failed to make a prima

facie showing that this plaintiff has not suffered a grave injury, it is not entitled to summary judgment. [*6]

Motion by plaintiff

"Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers ... In order to recover damages on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards" (Aragona v State of New York, 74 AD3d 1260, 1261 [2d Dept. 2010], citing Hricus v Aurora Contractors Inc., 63 AD3d 1004, 1005 [2d Dept. 2009] ). Here, the plaintiff alleges the defendants violated 12 NYCRR § 23—1.7(d) and 23-1.7 (e)(1) and (2), which provide:

(d)"Slipping Hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform, or other elevated working surface which is in a slippery condition. Ice, snow, water, grease, and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."

(e) Tripping and other hazards.

(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.

(2) Working areas: The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.

These regulations apply to slipping and tripping hazards and require an employer to remove, sand, or cover, snow, ice, or other foreign substances that may cause slippery footing on a floor, passageway, walkway, or other specifically identified surfaces. "Responsibility under Labor Law § 241(6) extends not only to the point where the ... work was actually being conducted, but to the entire site, including passageways utilized in the provision and storage of tools, in order to insure the safety of laborers going to and from the points of actual work" (Whalen v City of New York, 270 AD2d 340, 342 [2d Dept. 2000], citing Sergio v Benjolo, N.V., 168 AD2d 235, 236 [1st Dept. 1990]).

Plaintiff's motion for summary judgment on the Labor Law § 241(6) claim based upon a violation of 12 NYCRR § 23—1.7(d) and 23-1.7(e)(1) and (2) is denied. Although these provisions apply to the facts as alleged by plaintiff, a violation of Labor Law § 241(6) is "merely some evidence of negligence which the jury may consider on the question of defendant's negligence" ( Rizzuto v L.A. Wenger Contracting Co. ., Inc., 91 NY2d 343, 349 [1998]; citing Long v Forest—Fehlhaber, 55 NY2d 154, 160 [1982] ). "An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability under section 241(6), including contributory and comparative negligence" (id. at 350 ). The plaintiff and owners claim [*7]the icy conditions existed in the area where plaintiff fell for weeks before the accident. This was an area apparently well used by workers on the site, including the plaintiff, without any incident until the date the plaintiff claims he fell. Questions of fact remain as to whether the plaintiff failed to proceed with reasonable care under the conditions then and there existing. The Court cannot conclude under the facts presented here that the plaintiff was free from negligence as a matter of law, as plaintiff suggests. Since issues of fact exist regarding plaintiff's comparative negligence, the motion is denied in its entirety

(see Edwards v C & D Unlimited, Inc., 295 AD2d 310, 311 [2d Dept. 2002]; Harinarain v Walker, 73 AD3d 701, 702 [2d Dept. 2010]).

Furthermore, CPLR 2214(c), provides that each party shall furnish to the court all papers served by him. Here, it is alleged and not disputed by plaintiff that plaintiff filed papers with the court that were different from those served on the parties. To that end, plaintiff unfairly and prejudicially served an unsworn statement that the purported exhibits are already in the possession of the adverse parties. This court finds no authority for this practice and denies plaintiff's motion, without prejudice, on the ground that plaintiff failed to comply with CPLR 2214(c) .

Motion by Danica

The motion by Danica for summary judgment in its favor dismissing the complaint and third-party complaint, insofar as asserted against it, is denied as untimely. The record indicates that the motion was not served prior to March 8, 2013, which is more than 120 days after the Note of Issue and more than two weeks after the court-ordered February 21, 2013 return date.

It is also alleged, and not disputed, that Danica filed summary judgment papers with the Court which were not served on the BBD defendants, contrary to the mandates of CPLR 2214(c). In addition, the papers were not supported by a copy of the pleadings in accordance with CPLR 3212(a).

Accordingly, the motion by Danica is denied.

Cross Motion by the owner defendants re: plaintiff

The branch of the cross motion by the owner defendants which is to dismiss plaintiff's claims pursuant to Labor Law § 200 is denied. Labor Law § 200 codifies the common-law duty imposed upon an owner or contractor to maintain a safe construction site (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Colon v Bet Torah, Inc., 66 AD3d 731 [2d Dept. 2009]; Lane v Fratello Constr. Co., 52 AD3d 575 [2d Dept. 2008]). Liability for a violation of Labor Law § 200 and common-law negligence may be imposed upon a property owner where, as here, the plaintiff's injuries arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site, when the owner had actual or constructive notice of the dangerous condition (see Hirsch v Blake Hous., LLC, 65 AD3d 570 [2d Dept. 2009]; Fuchs v Austin Mall Assoc., LLC, 62 AD3d 746 [2009]; Lane v Fratello Constr. Co., 52 AD3d 575 [2d Dept. 2008]; Keating v Nanuet Bd. of Educ., 40 AD3d 706 [2007]). The [*8]owner defendants failed to establish, prima facie, that they did not have actual or constructive notice of the allegedly hazardous condition which caused the plaintiff's accident (see DeLiso v State of New York, 69 AD3d 786 [2d Dept. 2010])

"Labor Law § 240 requires contractors and property owners, engaged in, among other things, the construction, demolition, or repair of buildings or structures, to furnish or erect scaffolding, ladders, pulleys, ropes, and other safety devices, which must be constructed, placed, or operated as to give proper protection for workers (see Labor Law § 240[1] ). The statute is intended to protect workers from gravity-related occurrences stemming from the inadequacy or absence of enumerated safety devices" (Ortega v Puccia, 57 AD3d 54, 58 [2d Dept 2008]). The special hazards encompassed by the statute are limited to such gravity-related risks as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured due to the failure of an enumerated safety device (Ross v Curtis—Palmer Hydro—Electric, 81 NY2d 494 [1993]; see also Peay v New York City School Construction Authority, 35 AD3d 566 [2d Dept 2006]; Natale v City of New York, 33 AD3d 772 [2d Dept 2006].) Since it is undisputed that plaintiff fell at ground level and an elevation-related risk was not implicated, the owner defendants are entitled to summary judgment dismissing the Labor Law § 240(1) claim against them.

Cross Motion by the owner defendants re: Danica

While the cross motion of the owner defendant is untimely, the court may consider an untimely cross motion for summary judgment where, as here, a timely motion for summary judgment was made on nearly identical grounds (Travelers Indem. Co. v AA Kitchen Cabinet & Stone Supply, Inc., 106 AD3d 812 [2d Dept 2013]; see McCallister v 200 Park, L.P., 92 AD3d 927, 928 [2d Dept. 2012]; Lennard v Khan, 69 AD3d 812, 814 [2d Dept. 2010]; Grande v Peteroy, 39 AD3d 590, 592 [2d Dept. 2007]). Here, Copper made a timely motion for summary judgment dismissing Pav-Lak's claim for contractual indemnification.

Turning to the merits, the court finds that since there are conflicting accounts as to the source of the water condition, the motion for contractual indemnification is premature, as noted above.

The branch of the motion which is for an order restraining Danica and Copper from divesting, disposing, selling off or secreting assets until a final judgment is satisfied, is denied.

CPLR 5229, in pertinent part states:

In any court, before a judgment is entered, upon motion of the party in whose favor a verdict or decision has been rendered, the trial judge may order examination of the adverse party and order him restrained with the same effect as if a restraining notice had been served upon him after judgment.

What little has been written about this provision and its applicability, informs that "the [*9]only statutory requirement is that the application for 5229 relief be made by the prevailing party" (Sequa v Nave, 921 F. Supp 1072, 1076 [S.D.NY 1996]; Gallegos v Elite Model Management Corporation, 1 Misc 3d 200, [Sup.Ct. NY Co.2003]). The provision is discretionary, and may be granted whenever it appears necessary to prevent an adverse party from disposing assets in an attempt to avoid judgment (see, Weinstein—Korn—Miller NY Civ. Practice ¶¶ 5229.01, 5229.04). While a court may issue a pre-judgment restraining order pursuant to CPLR 5229, this must be "upon motion of the party in whose favor a verdict or decision has been rendered," conditions which have not been satisfied herein.

The branch of the cross motion by Pav-Lak which is to dismiss the claims alleging a violation of Labor Law § 200 and for common-law negligence insofar as asserted against Metro Construction Enterprises, Inc. (Metro), is granted. Plaintiff failed to state a cause of action to recover damages against Metro on these claims. Specifically, plaintiff did not allege sufficient facts in either the complaint or the amended complaint to support the conclusion that Metro had the authority to supervise or control the method or manner of the work being performed by the plaintiff (see Chiu Wong v City of New York, 65 AD3d 1000 [2d Dept. 2009]; Ortega v Puccia, 57 AD3d 54, 61 [2d Dept. 2008]).

Conclusion

The motion by plaintiff for summary judgment in his favor on his claim pursuant to Labor Law §241(6), is denied.

The motion by Copper to dismiss all claims and cross claims against it is denied.

The motion by Danica to dismiss all claims and cross claims against it is denied.

The cross motion by the owner defendants for contractual indemnification against Copper and Danica is denied, as premature.

The cross motion by the owner defendants to dismiss the claims alleging a violation of Labor Law § 200 and for common-law negligence insofar as asserted against Metro Construction Enterprises, Inc. (Metro), is granted

The branch of the cross motion by the owner defendants which is to dismiss plaintiff's claims pursuant to Labor Law § 200 insofar as asserted against the owner defendants, is denied. The branch of the cross motion by the owner defendants which is to dismiss plaintiff's claims pursuant to Labor Law §240(1), is granted.

Dated: Long Island City, NY

June 17, 2013

______________________________

ROBERT J. McDONALD [*10]

J.S.C.