The following papers numbered 1 to46read on this motion by plaintiffs for summary judgment on the issue of liability under Labor Law §§ 240(1), 241(6), and 200 and common-law negligence; and on this motion by defendant/third-party plaintiff D'Amato Builders & Advisors, LLC (DBA) for summary judgment dismissing plaintiffs' claims under Labor Law §§ 240(1), 241(6), and 200 and common-law negligence and all cross claims asserted against it and for summary judgment on its third-party cause of action for contractual indemnification against third-party defendant A.F.I. [*2]Glass & Architectural Metal Inc. (AFI); and on this cross motion by defendants Genting New York LLC d/b/a Resorts World Casino New York City (Genting) and The New York Raceway Association, Inc. (NYRA) for summary judgment dismissing plaintiffs' complaint and all cross claims asserted against them; and on this cross motion by AFI for summary judgment dismissing the third-party complaint asserted against it.

Papers/Numbered

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

On November 6, 2013, plaintiff Ricky Daeira, a project manager for AFI, allegedly sustained injuries when, in the area where the Longshots restaurant project was ongoing, he stepped over a guardrail in order to take measurements of a damaged window pane and fell through the glass floor to the ground below. The State of New York, the owner of the Aqueduct Racing Facilities, leased the property to Genting to develop and construct the Resorts World Casino. Genting, as lessor of the Aqueduct Racing Facilities, subleased to NYRA a portion of the premises for horse racing. On August 4, 2010, Genting entered into a contract with DBA to act as Genting's agent and representative for any and all construction projects at Aqueduct Raceway. Plaintiff Ricky Daeira, and his wife suing derivatively, subsequently commenced the within action against defendants under Labor Law §§ 240(1), 241(6), and 200 and common-law negligence. On April 29, 2014, DBA commenced a third-party action against AFI alleging contractual indemnification, common-law indemnification, contribution, and breach of contract to procure insurance.

This court finds that plaintiff Ricky Daeira was not within the special class of persons entitled to the protections of the Labor Law. In order to invoke the protections afforded by the Labor Law a "plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent" (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971 [1979]; see Stringer Musacchia, 11 NY3d 212 [2008]). It is well-settled that the Labor Law does not provide protection where a plaintiff's work precedes the commencement of the proposed construction project or occurs within a separate phase of the larger project when none of the activities protected under the [*3]statute were being carried out (see Martinez v City of New York, 93 NY2d 322 [1999]; Cicchetti v Tower Windsor Terrace, LLC, 128 AD3d 1262 [2015]; Orellana Siguenza v Cemusa, Inc., 127 AD3d 727 [2015]; Jones v Village of Dannemora, 27 AD3d 844 [2006]). Here, based on a careful review of the evidence in the record, AFI had not been hired to perform work on the Longshots restaurant project, which was a separate and distinct project from the rest of the construction work going on at Aqueduct Raceway. According to the affidavit and deposition testimony of Nicholas D'Amato, project manager for DBA, each project at Aqueduct Racing Facilities was a separate and distinct project involving separate contracts. Contractors provided bids or estimates for work on each project, even if a particular contractor may have been already working on a different project at the premises. Both Mr. D'Amato and plaintiff Ricky Daeira stated in their affidavits and depositions that AFI only had two contracts with Genting for two different projects at Aqueduct Racing Facilities - the first contract dated August 16, 2012 was related to the design, fabrication, and installation of a glass-enclosed elevator on the MTA platform at the Aqueduct North Conduit Avenue station ("MTA Platform project") and the second contract dated January 20, 2013 was related to the design, fabrication, and installation of a glass-enclosed canopy covering the walkway connecting the Aqueduct Raceway station and the North Conduit Avenue station ("RW Linkway project"). The deposition testimony of both Mr. D'Amato and plaintiff Ricky Daeira further demonstrate that the MTA Platform project and the RW Linkway project were unrelated to the Longshots restaurant project, and that AFI did not have a contract to perform any work on the Longshots project. Moreover, plaintiff Ricky Daeira stated in his affidavit and testified at his deposition that AFI was not doing any work at the Longshots construction site at the time of the accident and that he had never visited the Longshots construction site before the date of the accident. Plaintiff Ricky Daeira stated that, on the date of the accident, he went to the Longshots construction site to prepare an estimate for the replacement of a damaged window pane on the curtain wall. Inasmuch as AFI did not have a contract to perform work on the Longshots project and, at the time of the accident, plaintiff Ricky Daeira was taking measurements to provide an estimate for work to be done by AFI, plaintiff Ricky Daeira was not an "employee" within the meaning of the Labor Law (see Gibson v Worthington Div. of McGraw-Edison Co., 78 NY2d 1108 [1991]; Lukasinski v First New Amsterdam Realty, LLC, 3 AD3d 302 [2004]; Fabrizio v City of New York, 306 AD2d 87 [2003]). Contrary to plaintiffs' contention, this case is distinguishable from those where a plaintiff or his or her employer had already procured a contract to perform a covered activity (see DeFreece v Penny Bag, Inc., 137 AD2d 744 [1988]), or where a plaintiff, having been hired to perform covered work, was not performing his or her assigned duties at the time of the accident (see Reeves v [*4]Red Wing Co., 139 AD2d 935 [1988]). Therefore, those branches of plaintiffs' motion for summary judgment on the issue of liability under Labor Law §§ 240(1), 241(6), and 200 against defendants are denied, and those branches of DBA's motion and Genting and NYRA's cross motion for summary judgment dismissing said causes of action against them are granted.

Next, the court will address the branch of plaintiffs' motion for summary judgment on their common-law negligence claim and the respective branches of DBA's motion and Genting and NYRA's cross motion for summary judgment dismissing said claim against them. Where a premises condition is at issue, an owner or its agent may be liable under common-law negligence if the owner or its agent created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition (see Doto v Astoria Energy II, LLC, 129 AD3d 660 [2015]; Costa v Sterling Equip., Inc., 123 AD3d 649 [2014]; Martinez v Tambe Elec., Inc., 70 AD3d 1376, 1377 [2010]; Ortega v Puccia, 57 AD3d 54 [2008]; Paladino v Society of NY Hosp., 307 AD2d 343 [2003]). Here, plaintiff Ricky Daeira stated in his affidavit and testified at his deposition that the floor on both sides of the guardrail was covered with dirt and construction debris, which created an illusion that the floor through which he fell was made of concrete, that the lighting was poor, that there were no warning signs or barricades indicating that the floor on the outside of the railing was made of glass, and that there were no support structures above the glass floor to prevent access to or prevent objects from falling onto the floor. In contrast, Mr. D'Amato testified at his deposition that it was obvious, at all times and even when dirty, that the area where plaintiff Ricky Daeira fell was made of glass and that "there was always lighting coming through it." Mr. D'Amato also testified that there was a 42-inch wooden guardrail in place to keep people off the glass floor. As such, the evidence in the record demonstrates that there are triable issues of fact, at least, as to whether the alleged dangerous condition of the glass floor should have been apparent upon visual inspection, whether DBA and Genting created the dangerous condition by allowing the glass floor to be covered with dirt and construction debris, and whether DBA and Genting provided adequate warnings of the existence of the glass floor.

With respect to the liability of NYRA under common-law negligence, however, NYRA established its prima facie entitlement to judgment as a matter of law (see e.g. Bateman v Walbridge Aldinger Co., 299 AD2d 834, 836 [2002]). In opposition, plaintiffs and DBA failed to raise a triable issue of fact. In support of their cross motion, Genting and NYRA primarily argue that NYRA did not have any involvement with the Longshots project and, therefore, did not create the alleged dangerous condition of dirt and construction debris on the glass floor or have actual or [*5]constructive notice of it. According to the deposition testimony of Daniel Nelson, safety director for NYRA, Genting and DBA were responsible for the area where the Longshots project was ongoing, no one from NYRA ever entered the Longshots construction site or performed any safety inspections of the area, and NYRA did not attend weekly safety meetings held at the Longshots project.

DBA also seeks summary judgment dismissing Genting and NYRA's cross claim for contribution asserted against it, and Genting and NYRA seek summary judgment dismissing DBA's cross claims for common-law negligence and contribution asserted against them. Notably, DBA and Genting and NYRA did not address these cross claims in their respective moving papers. In any event, as discussed above, DBA and Genting failed to establish their freedom from negligence with regard to plaintiff Ricky Daeira's accident. As such, those branches of DBA's motion for summary judgment dismissing the cross claim for contribution asserted against it and Genting and NYRA's cross motion for summary judgment dismissing the cross claims for common-law negligence and contribution asserted against Genting are denied.

In light of the dismissal of the main action against NYRA, the cross claims for common-law negligence and contribution insofar as asserted against it are dismissed as academic (see Payne v 100 Motor Parkway Assoc., LLC, 45 AD3d 550 [2007]; Rogers v Rockefeller Group Intl., Inc., 38 AD3d 747 [2007]; Cardozo v Mayflower Ctr., Inc., 16 AD3d 536 [2005]).

Those branches of AFI's cross motion for summary judgment dismissing DBA's third-party claims for common-law indemnification and contribution asserted against it are denied. To establish a claim for common-law indemnification, the party seeking indemnity must prove that it was not negligent and that the proposed indemnitor was guilty of some negligence that contributed to the accident or, in the absence of any negligence, had the authority to direct, supervise, and control the work giving rise to the injury (see Benedetto v Carrera Realty Corp., 32 AD3d 874 [2006]; Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681 [2005]). Here, as discussed above, triable issues of fact exist as to DBA's alleged negligence in the happening of plaintiff Ricky Daeira's accident.

That branch of DBA's motion for summary judgment on its third-party cause of action for contractual indemnification against AFI is denied, and those branches of AFI's cross motion for summary judgment dismissing the third-party causes of action for contractual indemnification and breach of contract to procure insurance against it are granted. With respect to DBA's third-party claims for contractual indemnification and breach of contract for failure to procure insurance against AFI, it must be [*6]determined whether the parties entered into a written agreement with each other requiring AFI to indemnify DBA and to procure insurance (see Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427, 431-432 [2005]; Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 365 [2005]; see Moss v McDonald's Corp., 34 AD3d 656 [2006]). As previously discussed, the evidence in the record demonstrates that plaintiff Ricky Daeira was providing an estimate at the time of the accident and that there was no written contract between DBA and/or Genting and AFI to perform work on the Longshots project.

Accordingly, plaintiffs' motion for summary judgment on the issue of liability under Labor Law §§ 240(1), 241(6), and 200 and common-law negligence is denied. Those branches of DBA's motion for summary judgment dismissing plaintiffs' claims under Labor Law §§ 240(1), 241(6), and 200 are granted. In all other respects, DBA's motion is denied. Those branches of Genting and NYRA's cross motion for summary judgment dismissing plaintiffs' claims under Labor Law §§ 240(1), 241(6), and 200 against them are granted. In addition, those branches of Genting and NYRA's cross motion for summary judgment dismissing the common-law negligence claim against NYRA and DBA's cross claims for common-law negligence and contribution against NYRA are granted. In all other respects, Genting and NYRA's cross motion is denied. That branch of AFI's cross motion for summary judgment dismissing the third-party causes of action for contractual indemnification and breach of contract to procure insurance against it are granted. In all other respects, AFI's cross motion is denied.