In this action arising out of a construction site accident, defendant W5 Group LLC moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims and third-party claims against it (motion sequence 005). Third-party defendant United States Roofing Corporation (US Roofing) moves, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint (motion sequence 006). Defendant/third-party plaintiff/second third-party plaintiff Tishman Construction Corporation of New York moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims against it; and Tishman also moves for summary judgment on its claims for contractual indemnification against US Roofing, defendant Atlantic Hoisting & Scaffolding, LLC, and second third-party defendant ADCO Electrical Corp. (motion sequence 007). ADCO moves, pursuant to CPLR 3212, for summary judgment dismissing the second third-party complaint and all cross claims against it (motion sequence 008). And Atlantic moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims against it with prejudice (motion sequence 009).

Motion sequences 005, 006, 007, 008, and 009 are consolidated here for disposition.

Plaintiff was allegedly injured on December 6, 2011 at the Jacob K. Javits Center located at 655 West 34th Street in Manhattan. Tishman was the construction manager on a renovation project at the Javits Center (NYSCEF Doc No. 189, Cettina tr at 11, 18). On November 23, 2009, Tishman hired US Roofing to perform roofing and waterproofing at the Javits Center (NYSCEF Doc No. 185). On November 9, 2009, Tishman retained Atlantic to provide hoists and scaffolds on the project (NYSCEF Doc No. 184). By agreement dated September 22, 2009, Tishman hired ADCO as the electrical contractor (NYSCEF Doc No. 186). W5 Group LLC was the demolition contractor (NYSCEF Doc No. 153, Costello tr at 14). On the date of the accident, US Roofing employed plaintiff as [*2]a roofer.

Plaintiff testified at his deposition that he was employed by US Roofing at the time of his accident (NYSCEF Doc No. 187, plaintiff tr at 15). US Roofing was hired to put down a temporary roof (id. at 40). Plaintiff was working in one part of the building in an area referred to as "the cubes" (id. at 44). They were changing the windows on one part of the Javits Center (id.).

On the date of the accident, plaintiff was waterproofing a cube to keep water from going inside the building (id. at 68). When he got to the area, he noticed that the area was wet (id. at 71). He called his foreman, who told him that there was a blower in the gang box upstairs (id. at 72, 73). Plaintiff went to go get the blower (id. at 74). Plaintiff had to take a staircase to get the blower, and "hit [his] head on the way up" (id. at 76). Plaintiff testified that there was a doorway opening or entrance that was six feet high and three feet wide that he had to walk through to reach the stairway (id. at 80, 81). He had to duck to pass through the opening because he had his hard hat on (id. at 81). Plaintiff is six feet, four inches tall (id. at 82).

When plaintiff stood up, "something was there and made everything snap back" (id.). As a result, plaintiff fell forward, causing him to land on his knees under the staircase (id. at 84). Plaintiff testified that he had no trouble seeing at that point, and could see the stairs in front of him (id. at 83). But he also testified that "it was kind of dark out," and "[t]here were no lights or anything in there" (id. at 87-88; NYSCEF Doc No. 188, plaintiff tr at 29). After he fell, plaintiff looked up, and saw "part of the scaffold or something there"; it looked like "a platform that you stand on" (NYSCEF Doc No. 187, plaintiff tr at 86, 87). He did not recall if there were any lights in the stairwell (id. at 88). Plaintiff then went up the stairs to get the blower (id.). Plaintiff told his foreman what happened and that his back hurt, and that the pain was going up into his shoulder and arm (id. at 89-90). He testified that only US Roofing workers gave him instructions on a daily basis (id. at 91). Plaintiff's foreman drove him to the hospital at about 10:00 a.m. or 10:30 a.m. (id. at 93-94).

Roger Cettina (Cettina), Tishman's superintendent, testified that the project entailed replacing the building façade, skylights, and roof, and included upgrades and finish work (NYSCEF Doc No. 189, Cettina tr at 11-13). Tishman was the construction manager and hired the subcontractors on the project (id. at 18-19). Cettina walked the site every morning and checked on the progress of the work (id. at 31). Atlantic erected all the scaffolding for the project (id. at 39). Atlantic's engineer, Plan B Engineering (Plan B), designed the drawings for all the support scaffolds, obtained the required permits, and signed off that the scaffold had been built according to the drawings (id. at 43-45). Cettina testified that, if US Roofing employees were using scaffolding, they were required to inspect it before using it (id. at 47, 50). He testified that "low headroom" signs were posted where there was low headroom (id. at 72). ADCO was responsible for providing the lighting (id. at 81). Cettina testified that there was temporary lighting installed below the decks in the scaffolding (id. at 89).

Alan Tan (Tan), another Tishman superintendent, testified that there were string lights installed on the scaffold on the project (NYSCEF Doc No. 190, Tan tr at 12-14, 17). Tan did not recall having problems with clearance when he used the scaffold (id. at 20). He did not recall receiving any complaints about the scaffold (id. at 24). Tan did not remember whether lighting was installed in the scaffolding in December 2011 (id. at 14).

Atlantic's general foreman, Hugh Ennis (Ennis), testified that Atlantic installed the scaffolding system at the Javits Center (NYSCEF Doc No. 191, Ennis tr at 11-13). According to Ennis, Atlantic installed temporary scaffolding on the project in the area known as the Crystal Palace (id. at 19). Atlantic constructed a large sidewalk bridge platform, which was about 25 feet high that covered all of the Crystal Palace, and installed a scaffold above the platform (id. at 20). Ennis would suggest that low scaffolding be painted to make it more visible and that warning signs be placed in the area (id. at 28-30). The scaffold frame was typically six feet, six inches high and five feet wide (id. at 50). The headroom was about six feet, two inches high, which was a standard height on Atlantic scaffolds (id. at 50-51). Ennis did not recall receiving any complaints about the scaffold, and did not recall ever noting that the scaffolding was inadequately lit (id. at 40, 42).

Ennis avers that the "scaffolding design and installation was a joint venture between Atlantic, Plan B, and Tishman" (NYSCEF Doc No. 233, Ennis aff, ¶ 8). The typical scaffold headroom allowed a person who was six feet, [*3]two inches tall to walk freely beneath it (id., ¶ 12). According to Ennis, there were no scaffold areas without this typical headroom (id., ¶¶ 12-13).

Robert Honovic (Honovic), ADCO's general foreman, testified that ADCO provided temporary lighting in the scaffold staircases (NYSCEF Doc No. 192, Honovic tr at 30). Honovic testified that "[i]f one of those lights went out," ADCO "would change it" (id. at 31). According to Honovic, temporary lighting was installed on the platform and in the scaffold staircase (id. at 32). The temporary lighting was in place in December 2011 (id. at 36). Honovic was unaware whether complaints were made about the temporary lighting (id. at 62).

Kenneth Baker (Baker), US Roofing's general superintendent, testified that he was working at the Javits Center in 2011 (NYSCEF Doc No. 193, Baker tr at 11-12). The Crystal Palace roof was made of glass cubes and there were pipe scaffolding steps to access the cubes (id. at 25).

Tishman's supervisors accident investigation report described the accident as follows: "while gathering material from SE cube [plaintiff] struck head on a low scaffold frame causing him to injure his back & neck" (NYSCEF Doc No. 194 at 2). The accident report indicates that "signs are already posted — possibly add more signage & spray paint scaffold" (id. at 3).

Plaintiff's complaint seeks recovery for violations of Labor Law §§ 200, 240 (1),^[FN1] and 241 (6), and recovery under principles of common-law negligence (NYSCEF Doc No. 178).

By decision and order dated May 15, 2014, this court (Wooten, J.) granted summary judgment to defendants Empire State Development Corporation, Jacob Javits Convention Center, New York Convention Center Operating Corporation, and New York Convention Center Development Corporation, and dismissed the complaint and cross claims against them (NYSCEF Doc No. 181).

Tishman brought a third-party complaint against US Roofing, seeking: (1) common-law indemnification; (2) contractual indemnification; (3) contribution; and (4) damages for failure to procure insurance (NYSCEF Doc No. 162). Tishman also commenced a second third-party action against ADCO, asserting the following claims: (1) common-law indemnification; (2) contribution; (3) contractual indemnification; and (4) damages for failure to procure insurance (NYSCEF Doc No. 206).

The various remaining parties now move for summary judgment against one another.

"The proponent of summary judgment must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law" (Ryan v Trustees of Columbia Univ. in the City of NY, Inc., 96 AD3d 551, 553 [1st Dept 2012] [internal quotation marks and citation omitted]). "Thus, the movant bears the burden to dispel any question of fact that would preclude summary judgment" (id.). "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]). On a motion for summary judgment, "facts must be viewed in the light most favorable to the non-moving party" (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks omitted]).

Labor Law § 241 (6) requires owners, contractors, and their agents to "provide reasonable and adequate [*4]protection and safety" for workers performing the inherently dangerous activities of construction, excavation and demolition work. To recover under Labor Law § 241 (6), a plaintiff must plead and prove the violation of a concrete provision of the New York State Industrial Code, containing specific, positive commands, rather than a provision reiterating common-law safety standards (St. Louis v Town of N. Elba, 16 NY3d 411, 414 [2011]; Ross v Curtis-Palmer Hydro Elec. Co., 81 NY2d 494, 503 [1993]). In addition to establishing the violation of a specific and applicable regulation, the plaintiff must also show that the violation was a proximate cause of the accident (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 146 [1st Dept 2012]).

"[The] 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'"

(Smith v McClier Corp., 22 AD3d 369, 370-371 [1st Dept 2005], quoting Sergio v Benjolo N.V., 168 AD2d 235, 236 [1st Dept 1990]).

As a preliminary matter, the court notes that it is undisputed that Tishman is a responsible party under Labor Law § 241 (6). A construction manager may be liable under Labor Law § 241 (6) where it has the "ability to control the activity which brought about the injury" (Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]).

Atlantic contends that it was not responsible for the lighting conditions on the site. As a result, the court must consider whether Atlantic may be held liable under Labor Law § 241 (6). It is undisputed that Atlantic is not an owner or general contractor. Thus, Atlantic may only be held liable as an agent of either an owner or contractor.

"When the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory 'agent' of the owner or general contractor. Only upon obtaining the authority to supervise and control does the third party fall within the class of those having nondelegable liability as an 'agent' under sections 240 and 241"

(Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]). Here, Atlantic, the hoist and scaffold contractor, did not have the authority to supervise and control plaintiff's work or the lighting contractor's work (see DeMaria v RBNB 20 Owner, LLC, 129 AD3d 623, 626 [1st Dept 2015]; Nascimento v Bridgehampton Constr. Corp., 86 AD3d 189, 193 [1st Dept 2011]). Accordingly, Atlantic is not a statutory agent, and is entitled to dismissal of plaintiff's Labor Law § 241 (6) claim.

Plaintiff's verified bill of particulars alleges violations of 12 NYCRR 23-1.7 (e) (1), (2) and 12 NYCRR 23-1.30 (NYSCEF Doc No. 183, verified bill of particulars ¶ 15). However, plaintiff only relies on 12 NYCRR 23-1.30 in opposition to defendants' motions (NYSCEF Doc No. 274 at 11-12). Therefore, plaintiff has abandoned reliance on the remaining Industrial Code provisions cited in his bill of particulars (see Cardenas v One State St., LLC, 68 AD3d 436, 438 [1st Dept 2009] ["Plaintiff abandoned any reliance on the various provisions of the Industrial Code cited in his bill of particulars by failing to address them either in the motion court or on appeal . . ."]). As a result, the court shall only consider whether a plaintiff has a valid section 241 (6) claim based on an alleged violation of 12 NYCRR 23-1.30 against Tishman.

Section 23-1.30 provides that:

"Illumination sufficient for safe working conditions shall be provided wherever persons are required to [*5]work or pass in construction, demolition or excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass"

Tishman argues that plaintiff's accident did not result from inadequate lighting. Specifically, Tishman contends that plaintiff was able to see the stairs in front of him, and bumped his head after passing through the entrance.

Plaintiff maintains, in opposition to Tishman and Atlantic's motions, that there is question of fact as to whether the lighting complied with § 23-1.30, in view of his testimony that the area where the accident occurred was dark and did not have any artificial lighting.

The First Department has held that § 23-1.30 is sufficiently specific to support a Labor Law § 241 (6) claim (Emery v Steinway, Inc., 178 AD3d 613, 615 [1st Dept 2019]; Murphy v Columbia Univ., 4 AD3d 200, 202 [1st Dept 2004]).

Here, plaintiff testified that "it was kind of dark out," and "[t]here were no lights or anything in there" (NYSCEF Doc No. 187, plaintiff at 87-88; NYSCEF Doc No. 188, plaintiff tr at 29-30). In light of this evidence, there are issues of fact as to the adequacy of lighting (see Hernandez v Columbus Ctr., LLC, 50 AD3d 597, 598 [1st Dept 2008] ["Plaintiff's testimony, confirmed by his supervisor, that lighting conditions were poor, consisting only of a street light 150 to 200 feet away, created a triable issue of fact as to adequate lighting"]; Verel v Ferguson Elec. Constr. Co., Inc., 41 AD3d 1154, 1158 [4th Dept 2007] [issue of fact as to adequacy of lighting where plaintiff testified that it was so dark that he "wouldn't be able to read the newspaper" and that there was no artificial lighting in the area of the accident]). Moreover, it is for the jury to determine whether the lighting caused plaintiff's accident (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784 [1980]). This is not a case where "only one conclusion can be drawn from the established facts" (id.).

Accordingly, plaintiff has a valid Labor Law § 241 (6) claim based on an alleged violation of 12 NYCRR 23-1.30 against Tishman.

Labor Law § 200 (1) is "a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). This provision applies to owners, general contractors, and their statutory agents (Hewitt v NY 70th St. LLC, 187 AD3d 574, 575 [1st Dept 2020]; Sledge v S.M.S. Gen. Contrs., Inc., 151 AD3d 782, 783 [2d Dept 2017]). Where the worker is injured as a result of the manner in which the work is performed, "the . . . general contractor is liable if it actually exercised supervisory control over the injury-producing work" (Cappabianca, 99 AD3d at 144).

By contrast, " a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition'" (Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 556 [1st Dept 2009], quoting Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708 [2d Dept 2007]). Where the condition at issue is both "open and obvious" and "not inherently dangerous," a defendant is not liable under Labor Law § 200 or for common-law negligence (Dinallo v DAL Elec., 43 AD3d 981, 982 [2d Dept 2007]).

Here, plaintiff's accident arose out of a dangerous condition on the premises, not the means in which he performed his work. Plaintiff testified that he hit his head on "something there" above his head and "[i]t looked like part of the scaffold or something there" (NYSCEF Doc No. 187, plaintiff tr at 87). He also stated that he did not recall seeing any warning or caution signs in the area (id. at 138). Tishman's accident report states that plaintiff "struck [his] head on a low scaffold frame causing him to injure his back & neck" (NYSCEF Doc No. 194 at 2 [*6][emphasis supplied]). Thus, whether defendants supervised plaintiff is irrelevant.

Tishman does not dispute that it had control over the work site. Although Tishman argues that plaintiff has failed to identify any dangerous condition with the scaffold, it has not demonstrated that the configuration of the scaffold was open and obvious, and not inherently dangerous as a matter of law (see Matthews v Vlad Restoration Ltd., 74 AD3d 692, 692-693 [1st Dept 2010] [lower horizontal brace on scaffold was open and obvious and not inherently dangerous where it was painted bright blue and clearly presented a barrier to passersby]). In view of plaintiff's evidence that he hit his head on a low portion of the scaffold, that he had to walk through the area to reach the staircase, and that the area lacked artificial lighting (NYSCEF Doc No. 187, plaintiff tr at 80-88), there are questions of fact as to whether the scaffold was typical of a construction site and whether it constituted a dangerous condition (see Graziano v Source Bldrs. & Consultants, LLC, 175 AD3d 1253, 1260 [2d Dept 2019]). Moreover, Tishman has not shown its lack of notice, since it has not submitted any evidence as to when the area was last inspected prior to the accident (see Pereira v New Sch., 148 AD3d 410, 412-413 [1st Dept 2017]; Ladignon v Lower Manhattan Dev. Corp., 128 AD3d 534, 535 [1st Dept 2010]). Tishman merely points to gaps in plaintiff's proof, which is insufficient (see Torres v Merrill Lynch Purch., 95 AD3d 741, 742 [1st Dept 2012]).^[FN2]

Even if the scaffold was open and obvious, Tishman would still not be entitled to summary judgment. The duty under Labor Law § 200 does not extend to "defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence, and experience of the servant" (Gasper v Ford Motor Co., 13 NY2d 104, 110 [1963] [internal quotation marks and citation omitted]). However, these circumstances merely "'negate[] any duty that defendant [] . . . owed plaintiff to warn of potentially dangerous conditions'" (England v Vacri Constr. Corp., 24 AD3d 1122, 1124 [3d Dept 2005] [emphasis supplied and citation omitted]). Therefore, Tishman is not entitled to dismissal of plaintiff's section 200 and common-law negligence claims.

Atlantic has failed to show that it did not "have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Russin, 54 NY2d at 317). Atlantic erected the scaffold on the site (NYSCEF Doc No. 191, Ennis tr at 11-13), and there are questions of fact as to whether Atlantic was negligent in supplying the low scaffold, and whether the condition was created during the installation of the scaffold (see Mendez v Union Theol. Seminary in City of NY, 17 AD3d 271, 271-272 [1st Dept 2005] [scaffolding contractor was not entitled to dismissal of worker's Labor Law § 200 and common-law negligence claims where there were issues of fact as to whether "the accident was caused in whole or in part by [its] failure properly to construct the scaffolding from which plaintiff fell"]; Urbina v 26 Ct. St. Assoc., LLC, 12 AD3d 225, 226 [1st Dept 2004] [issues of fact as to whether construction company was negligent in erecting scaffold]). Accordingly, Atlantic is not entitled to dismissal of plaintiff's section 200 and common-law negligence claims (see Mendez, 17 AD3d at 271-272).

Tishman moves for summary judgment on its claim for contractual indemnification from US Roofing, pursuant to the following indemnification provision in US Roofing's contract:

"INDEMNITY VIOLATION OF LAW

7. To the fullest extent permitted by law, the Contractor shall indemnify, defend and hold harmless the . . . Construction Manager . . . from and against all claims or causes of action, damages, losses and expenses, including but not limited to attorneys' fees and legal costs and expenses (collectively, 'Claims'), arising out of or resulting from the acts or omissions of Contractor, or anyone for whose acts Contractor may be liable, in connection with the Contract Documents, the performance of, or failure to perform, the Work, or the Contractor's operations, including the performance of the obligations set forth in this clause. To the fullest extent permitted by law, Contractor's duty to indemnify the indemnitees shall arise except to the extent that any such claim, damages, loss or expense was caused by the proven negligence of the indemnitees or an indemnitee"

"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]).

Pursuant to General Obligations Law § 5-322.1, a clause in a construction contract which purports to indemnify a party for its own negligence is against public policy and is void and unenforceable (Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 795 [1997], rearg denied 90 NY2d 1008 [1997]). However, an indemnification agreement that authorizes partial indemnification "to the fullest extent permitted by law" is enforceable (Brooks v Judlau Contr., Inc., 11 NY3d 204, 210 [2008]; Guzman v 170 W. End Ave. Assoc., 115 AD3d 462, 464 [1st Dept 2014]). Furthermore, even if the indemnification clause does not contain this savings language, it may nevertheless be enforced where the party to be indemnified is found to be free of any negligence (Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179 [1990]).

The First Department has held that even where there are issues of fact as to the indemnitee's active negligence, an award of conditional indemnification is warranted where the indemnification provision does not violate the General Obligations Law (see e.g. Cuomo v 53rd & 2nd Assoc., LLC, 111 AD3d 548, 548 [1st Dept 2013] ["Although, as third-party plaintiffs concede, there are issues of fact as to Plaza's active negligence, Plaza is entitled to conditional summary judgment on its claim for contractual indemnification; the extent of its indemnification depends on the extent to which any negligence on its part is found to have contributed to the accident"]; Burton v CW Equities, LLC, 97 AD3d 462, 463 [1st Dept 2012] [contractor granted conditional indemnification despite existence of issues of fact as to its active negligence where indemnification clause did not require indemnification for its own negligence]). More recently, the First Department has held that "it is inappropriate to grant conditional summary judgment on a[] . . . contractual indemnification claim against a subcontractor where an issue of fact exists as to whether the . . . general contractor's negligence was the sole proximate cause of the underlying claim" (Cackett v Gladden Props., LLC, 183 AD3d 419, 422 [1st Dept 2020]).

Applying these principles, the intention to indemnify Tishman is clear; the indemnification provision requires US Roofing to defend and indemnify Tishman against claims "arising out of or resulting from" US Roofing's "performance of, or failure to perform the Work" (NYSCEF Doc No. 185 at 5). The provision is triggered because plaintiff was injured in the course of his work for US Roofing (see Mancusi v Avalonbay Communities, Inc., 199 AD3d 463, 463-464 [1st Dept 2021]; Fuger v Amsterdam House for Continuing Care Retirement Community, Inc., 117 AD3d 649, 650 [1st Dept 2014]).^[FN3] The provision does not violate the General Obligations Law because it [*7]only allows indemnification "To the fullest extent permitted by law" (see Brooks, 11 NY3d at 210).

In light of the issues of fact as to Tishman's active negligence, Tishman is entitled to conditional summary judgment on its claim for contractual indemnification against US Roofing; the extent of indemnification depends on the extent to which Tishman's negligence contributed to the accident (see Cuomo, 111 AD3d at 548). There is no issue of fact as to whether Tishman's negligence was the sole proximate cause of the accident (cf. Pawlicki v 200 Park, L.P., 199 AD3d 578, 579 [1st Dept 2021] [issue of fact as to whether general contractor's negligence was sole proximate cause of accident where general contractor may have covered grille covering opening in the floor]). The evidence indicates that Atlantic installed the scaffolding, ADCO provided the temporary lighting, and that US Roofing was required to inspect the scaffolding before using it (NYSCEF Doc No. 189, Cettina tr at 39, 47, 50, 81). There is also no evidence that Tishman concealed the allegedly dangerous condition.

Tishman moves for summary judgment on its claim for contractual indemnification from ADCO based upon the indemnification provision contained within ADCO's contract, which is similar to the provision in US Roofing's contract.^[FN4]

ADCO counters that plaintiff's accident did not result from the lighting conditions. In addition, ADCO asserts that it did not violate any provisions of the Labor Law or the Industrial Code.

In this case, ADCO must indemnify Tishman against all claims "arising out of or resulting from the acts or omissions of [ADCO] . . . in connection with the Contract Documents, the performance of, or failure to perform, the Work, or [ADCO's] operations" (NYSCEF Doc No. 186 at 6). There are questions of fact as to whether ADCO had constructive notice of the inadequate temporary lighting (see Miano v Battery Place Green LLC, 117 AD3d 489, 489-490 [1st Dept 2014]; Beltran v Navillus Tile, Inc., 108 AD3d 414, 415 [1st Dept 2013]), and whether the inadequate lighting was a proximate cause of the accident (see Robbins v Goldman Sachs Headquarters, LLC, 102 AD3d 414, 415 [1st Dept 2013]). The evidence is clear that ADCO was responsible for fixing the temporary lighting: Honovic testified that if one of the lights went out, ADCO "would change it" (NYSCEF Doc No. 192, Honovic tr at 31).

That said, however, whether ADCO violated the Labor Law has no bearing on whether the indemnification provision is triggered. As acknowledged by ADCO, plaintiff has not brought any direct claims against it. Moreover, the indemnification provision does not violate the General Obligations Law because it contains the savings language "To the fullest extent permitted by law" (NYSCEF Doc No. 186 at 6). Therefore, Tishman will not be indemnified for its own negligence. In view of the foregoing, the branch of Tishman's motion seeking summary judgment on claim for contractual indemnification from ADCO is denied. For the same reasons, ADCO is not entitled to summary judgment dismissing Tishman's contractual-indemnification claim.

Tishman also moves for summary judgment on its contractual-indemnification claim against Atlantic. Tishman argues that it is entitled to indemnification based upon the indemnification provision contained within Atlantic's contract. In response, Atlantic asserts that Tishman has failed to make a prima facie showing that plaintiff's claims arose out of or resulted from Atlantic's acts or omissions, and that Tishman has failed to establish its freedom from negligence.

Under the indemnification provision contained within Atlantic's contract, Atlantic is required to indemnify Tishman "against all claims, damages . . . arising out of resulting from the acts or omissions of [Atlantic], [or] the performance, or failure to perform the Work . . ." (NYSCEF Doc No. 184 at 5). Pursuant to Atlantic's contract, Atlantic was required to "design, furnish, install, maintain and subsequently remove a common scaffold work platform approximately 6'-6" below the bottom member of the roof space frame and approximately 10'-6" below the bottom member of the space frame underneath the existing catwalk," and was required to "provide fully planked platforms at every 6'-6" (id. at 33, 34).

It is undisputed that plaintiff was injured while standing on the scaffold (NYSCEF Doc No. 187, plaintiff tr at 82, 87). However, there are questions of fact as to Atlantic's negligence, and whether plaintiff's accident arose out of or resulted from Atlantic's work of designing and installing the scaffold (compare Balbuena v New York Stock Exch., Inc., 49 AD3d 374, 376 [1st Dept 2008], lv denied 14 NY3d 709 [2010] [contractual indemnification warranted in action where plaintiff used a scaffold to wash down internal walls and fell when an unsecured plank overturned; "under any fair reading of the subject indemnity provisions, plaintiff's injury arose out of, was incidental to, or resulted from the work of erecting or dismantling the scaffold"]; Urbina v 26 Court St. Assoc., LLC, 46 AD3d 268, 271 [1st Dept 2007] [contractual indemnification upheld where indemnification provision required drywall subcontractor to furnish and install all scaffolding, and general contractor's liability to the worker arose out of the collapsed scaffold under Labor Law § 240 (1)]).

Since it has not been determined whether Atlantic's acts or omissions caused plaintiff's alleged injuries, an award of summary judgment would be premature (see D'Angelo v Builders Group, 45 AD3d 522, 525 [2d Dept 2007]). Notwithstanding the above, it is not necessary for plaintiff to have been engaged in the type of work covered by Atlantic's contract in order to fall within the broad scope of the indemnification provision (see Urbina, 46 AD3d at 271). Therefore, Tishman is not entitled to summary judgment granting it contractual indemnification from Atlantic at this juncture.

ADCO moves for summary judgment dismissing Tishman's failure-to-procure-insurance claim. It is well established that "[a]n agreement to procure insurance is not an agreement to indemnify or hold harmless, and the distinction between the two is well recognized" (Kinney v Lisk Co., 76 NY2d 215, 218 [1990]). Pursuant to ADCO's contract with Tishman, ADCO was required to obtain general liability insurance in the amount of $10,000,000 and to name Tishman as an additional insured (NYSCEF Doc No. 288 at 117). Tishman did not oppose dismissal of its failure to procure insurance claim against ADCO. In addition, Tishman admitted that ADCO procured an insurance policy and admitted that Tishman was named as an additional insured on the policy (NYSCEF Doc No. 198 ¶¶ 8, 9; NYSCEF Doc No. 268 ¶ 8; see 22 NYCRR 202.8-g [c]). Accordingly, the court grants summary judgment dismissing this claim as abandoned (see Norris v Innovative Health Sys., Inc., 184 AD3d 471, 473 [1st Dept 2020]).

US Roofing argues that the common-law indemnification and contribution claims against it must be dismissed, because plaintiff did not suffer a "grave injury" (see Workers' Compensation Law § 11). Plaintiff alleges that he suffered, among other things, a back injury (NYSCEF Doc No. 161, verified bill of particulars ¶ 9). A back injury does not qualify as a "grave injury" (Spiegler v Gerken Bldg. Corp., 35 AD3d 715, 717 [2d Dept 2006] [worker's "alleged injuries to his back . . . clearly do not fall within any of the enumerated categories"]). Given that [*8]Tishman did not oppose dismissal of these claims, these claims are deemed abandoned and are dismissed (see Goya v Longwood Hous. Dev. Fund Co., Inc., 192 AD3d 581, 585 [1st Dept 2020] ["because AIM and Cross did not oppose C & W's motion for summary judgment dismissing their claims against it for common-law indemnification and contribution, those claims should be dismissed"]).

US Roofing also argues that it purchased the insurance required by its contract (NYSCEF Doc No. 172). US Roofing submits an insurance policy naming Tishman as an additional insured (NYSCEF Doc No. 173). Because Tishman did not oppose dismissal of this claim, the court grants summary judgment dismissing Tishman's failure-to-procure-insurance claim.

W5 Group LLC, the demolition and debris removal contractor, moves for summary judgment, arguing that it had nothing to do with plaintiff's accident. None of the parties has opposed W5 Group LLC's motion. Accordingly, W5 Group LLC is entitled to dismissal of all claims asserted against it.

Accordingly, it is

ORDERED that the motion (sequence number 005) of defendant W5 Group LLC for summary judgment is granted and the complaint and cross claims against said defendant are dismissed with costs and disbursements to said defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the motion (sequence number 006) of third-party defendant United States Roofing Corporation is granted to the extent of dismissing the third-party claims brought against it for common-law indemnification, contribution, and failure to procure insurance, and is otherwise denied; and it is further

ORDERED that the motion (sequence number 007) of defendant/third-party plaintiff/second third-party plaintiff Tishman Construction Corporation of New York for summary judgment is granted to the extent of dismissing plaintiff's Labor Law § 241 (6) claim against Tishman except as to the alleged violation of 12 NYCRR 23-1.30, and granting Tishman conditional contractual indemnification against third-party defendant United States Roofing Corporation, and is otherwise denied; and it is further

ORDERED that the motion (sequence number 008) of second third-party defendant ADCO Electrical Corp. for summary judgment is granted to the extent of dismissing the second third-party claim for failure to procure insurance, and is otherwise denied; and it is further

ORDERED that the motion (sequence number 009) of defendant Atlantic Hoisting & Scaffolding, LLC is granted to the extent of dismissing plaintiff's Labor Law § 241 (6) claim against it, and is otherwise denied; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly.