In this action to recover damages for injuries sustained while performing steel erection and framing as a union ironworker, plaintiff Frank Phillips (plaintiff) asserts claims for common law negligence and pursuant to Labor Law §§ 200, 240 (1), and 241 (6) against defendants Bast Hatfield Construction, LLC (Bast Hatfield); The Palombo Group Inc. (Palombo); and American Ornamental, LLC (American Ornamental) (collectively, where appropriate, defendants). American Ornamental commenced a third-party action against American Iron & Crane, Inc. (American Iron).

Presently before the Court is plaintiff's motion for partial summary judgment on the issue of liability against defendants on his Labor Law §§ 240 (1) and 241 (6) claims (Motion #3). All defendants and third-party defendant oppose plaintiff's motion and cross-move for summary judgment seeking dismissal of the complaint in its entirety.

Defendants and third-party defendant also move for summary judgment. Bast Hatfield cross-moves for summary judgment (Motion #4) dismissing plaintiff's complaint and the cross-claims of Palombo, American Ornamental, and American Iron for common law indemnification and contribution; and for summary judgment on its cross-claims for contractual indemnification and breach of contract against American Ornamental and American Iron.

The Palombo Group Inc. cross-moves for summary judgment (Motion #5) dismissing the complaint and all cross-claims asserted against it; for summary judgment on its cross-claim for contractual indemnification against Bast Hatfield; and for leave to amend its reply to American Iron's cross-claims to include a cross-claim for contractual indemnification against American [*2]Iron and, upon such amendment, for summary judgment.

American Ornamental cross-moves for summary judgment (Motion #6) dismissing plaintiff's complaint and the cross-claims of Bast Hatfield and Palombo for contractual indemnification and breach of contract; and, in the alternative, for conditional summary judgment on its cross-claim against American Iron for contractual indemnification for damages in excess of American Iron's $1 million general commercial liability policy limit.

Third-party defendant American Iron & Crane Inc. cross-moves (Motion #7) for summary judgment dismissing plaintiff's complaint and the third-party complaint of American Ornamental.

For the reasons that follow plaintiff's motion for partial summary judgment is denied. Palombo's cross-motion is granted and the complaint and cross-claims asserted by and against it are dismissed.

The remaining defendants' and American Iron's cross-motions to dismiss plaintiff's common law negligence and Labor Law § 200 claims are denied. Bast Hatfield's, American Ornamental's, and American Iron's cross-motions are denied to the extent they seek dismissal of plaintiff's Labor Law §§ 240 (1) and 241 (6) causes of action.

Bast Hatfield's cross-motion to dismiss all cross-claims against it for common law indemnification and contribution is granted, in part, and denied as premature, in part. Its motion for summary on its cross-claims for contractual indemnification against American Ornamental and American Iron is granted conditionally. And its motion for summary judgment on its cross-claims for breach of contract against American Ornamental and American Iron is denied.

American Ornamental's cross-motion for summary judgment on its contractual indemnification claim concerning excess coverage against American Iron is granted conditionally. Its cross-motion for dismissal of Bast Hatfield's cross-claim against it for breach of contract is granted.

American Iron's cross-motion insofar as it seeks dismissal of American Ornamental's third-party complaint is denied.

On December 14, 2020, plaintiff commenced this action seeking damages for personal injuries sustained on December 23, 2019, when he fell approximately 25 feet from a steel beam while performing his work as a union ironworker on a steel framing project for nonparty Germantown Central School District (Germantown CSD). Plaintiff asserts causes of action for common law negligence and pursuant to Labor Law §§ 200, 240 (1), and 241 (6) against all defendants. At the time of the accident, plaintiff was employed by third-party defendant American Iron, which was performing the iron framing/installation work pursuant to a subcontract with defendant American Ornamental. Defendant Bast Hatfield was the general contractor on the project, and defendant Palombo was the construction manager. Plaintiff did not name American Iron as a defendant in this personal injury action because, as conceded at oral argument, claims against his employer are barred by the exclusivity provisions of Workers' Compensation Law § 11.

On January 19, 2021, American Ornamental answered plaintiff's complaint, raised various affirmative defenses, and asserted cross-claims against Bast Hatfield and Palombo for common law and contractual indemnification and contribution and breach of contract. Bast Hatfield answered on January 22, 2021, raised various affirmative defenses, and asserted cross-[*3]claims against American Ornamental and Palombo for common law and contractual indemnification and contribution and breach of contract. And on May 21, 2021, Palombo answered, raised various affirmative defenses, and asserted cross-claims against Bast Hatfield and American Ornamental for common law and contractual indemnification and contribution and breach of contract.

On April 19, 2021, defendant/third-party plaintiff American Ornamental filed a third-party summons and complaint against third-party defendant American Iron asserting claims of contractual and common law indemnification and contribution, breach of contract, and apportionment. On March 1, 2022, American Iron answered the third-party complaint, raised various affirmative defenses, and asserted cross-claims against American Ornamental, Bast Hatfield, and Palombo for contribution, common law indemnification, and contractual indemnification.

Bast Hatfield answered the third-party complaint and asserted cross-claims for common law and contractual contribution or indemnification and breach of contract against American Ornamental, Palombo, and American Iron. American Ornamental submitted a reply in opposition to Bast Hatfield's cross-claims asserted in its answer to the third-party complaint, and separately replied in opposition to American Iron's cross-claims against it. And Palombo submitted a reply in opposition to American Iron's cross-claims. Discovery is complete and the above-mentioned motions are now pending before the Court.

At all times relevant, Bast Hatfield was the general contractor on a construction project at the Germantown CSD which included, among other work, steel framing/assembly. On October 1, 2019, Bast Hatfield entered into a subcontract with American Ornamental pursuant to which American Ornamental would furnish and install all structural steel, including, among other things, steel beams, on the Germantown CSD project (see NYSCEF Doc No. 163). According to American Ornamental's owner, Matthew Calkins, American Ornamental is in the business of manufacturing fabricated steel from raw steel, which is then used on job sites (see NYSCEF Doc No. 161 at 10). Because American Ornamental does not erect steel, it subcontracts with steel installation companies to perform all such work (see id.). So, pursuant to an agreement dated November 13, 2019, American Ornamental subcontracted the steel assembly work for the Germantown CSD project to American Iron (see NYSCEF Doc No. 164). Pursuant to its contract with the Germantown CSD, Palombo took on the role of construction manager (see NYSCEF Doc No. 175). And Bast Hatfield, American Ornamental, and American Iron executed indemnification agreements (see NYSCEF Doc No. 165)

On December 23, 2019, plaintiff, a union ironworker employed by American Iron, was performing steel frame assembly work pursuant to the American Ornamental-American Iron subcontract on the Germantown CSD project. Plaintiff testified at deposition that, at all times relevant while working on the Germantown CSD project, he never "receive[d] any instructions and directions from anybody other than American Iron employees" (NYSCEF Doc No. 135 at 21). Plaintiff also testified that, at all times during his work on the Germantown CSD project, he used his own personal safety harness, retractable safety line, and tools (see id. at 26-27). Plaintiff testified that "the only contractor that provided [him] with any equipment" while working on the Germantown CSD project was American Iron, and that the only equipment it provided was a "[B]eamer" (id. at 21).

The Beamer

In his affidavit, plaintiff's expert, Eric Heiberg, P.E., sets forth a comprehensive description of the Beamer and other safety equipment plaintiff used on the date of the accident. Though defendants' experts controvert certain conclusions relative to Heiberg's analysis of the Beamer's efficacy, his general description of the device is not disputed and will, therefore, be set forth up front to provide clarity and context.

The Beamer consists of an approximately 18-inch aluminum rod with various slots/notches on it and which has on one side a fixed clamp and on the other side an adjustable sliding clamp that slides along the rod which may be locked into place at one of the various slots/notches in order to adjust it to the size of a particular I-beam flange (NYSCEF Doc No. 143 at ¶¶ 19-20). Each clamp includes a hook that fits around the flange of a beam (see id. at ¶ 19). The sliding clamp may be adjusted by depressing a spring-operated lever that allows that clamp to slide along the rod to adjust to the size of a particular beam flange (see id. at ¶ 20). As the sliding clamp moves along the rod the tab of the adjustable lever contacts the slots/notches causing a clicking sound (see id.). Once the sliding clamp is closed around the I-beam flange, the adjustable tab closes and fixes the adjustable clamp into place (see id.). To disengage the Beamer from the flange, a worker must push/depress the spring-operated lever, which removes the tab from the slot/notch and permits the adjustable clamp to slide away from the beam flange (see id.).

The Beamer also contains a sliding shackle with a 'D' shaped ring (a 'D' ring) that slides along the rod independently of the sliding clamp between the two clamps (see NYSCEF Doc No. 143 at ¶ 23). The retractable lifeline consists of nylon webbing and a housing, which encloses a spring that coils the webbing such that if the webbing is pulled the spring acts as a counterforce to recoil it in a manner similar to a seatbelt (see id.). A snap hook connects to the end of the webbing which allows the lifeline to connect to the 'D' ring on the sliding shackle of the Beamer (see id.). The lifeline is then connected to another 'D' ring on the worker's safety harness via another snap hook (see id.).

The Accident

On the morning of December 23, 2019, plaintiff and his coworker, Anthony, began their day by completing work begun the previous day of attaching iron cross beams. Plaintiff used the Beamer to complete this work on that morning without issue (see NYSCEF Doc No. 135 at 36, 66). Photographs taken before the accident on the morning of December 23, 2019, by Dennis Gilmore, Bast Hatfield's safety director, depict plaintiff working on the top flange of a steel I-beam with his beamer attached to the top flange and connected by a safety line (see NYSCFE Doc No. 134 at 5, 6; see NYSCEF Doc No. 154 at 27). Once finished with the cross beams, plaintiff and Anthony used a two-person basket lift to ascend the steel structure to take measurements on a large beam before plaintiff was to perform welding work. The beam was suspended in the air by a crane.

Plaintiff was wearing his safety harness with the safety line attached to the lift. Upon ascending to the beam, plaintiff attached the Beamer to the bottom flange of the I-beam, connected his safety line to the Beamer, exited the lift, and stepped onto the top flange (see NYSCEF Doc No. 135 at 43). After taking several steps, plaintiff testified that he "noticed [the beam] was wet, because they had snow, wet snow earlier that morning when we were doing the iron," so he decided to bend down in order to grab the top flange and place his left foot onto the bottom flange in order to walk on the bottom flange of the beam (id. at 59). As he bent down and began to place his left foot onto the bottom flange, the beam began to shake (see id.). Plaintiff [*4]further testified that, as he placed his left foot onto the bottom flange and began "to put [his] leg over the other side," his left foot slipped, causing him to fall over the beam to his left (see id.). Plaintiff could not recall at deposition whether the beam flange was wide enough to permit him to fit his entire foot on it (see id. at 110).

Plaintiff held onto the beam for a moment with his hands but ultimately could not maintain his grip and fell approximately 25 feet to the ground. As a result of the fall, plaintiff sustained a fractured pelvis and internal organ bruising. Plaintiff was found lying on the ground with his Beamer and retractable lifeline intact and still connected to his safety harness. It is undisputed that, upon inspection immediately following the accident, the Beamer was found undamaged.

Plaintiff seeks summary judgment on the issue of liability as to his Labor Law §§ 240 (1) and 241 (6) claims. Defendants and American Iron oppose and cross-move for summary judgment dismissing the complaint.

"On a motion for summary judgment, the movant must establish its prima facie entitlement to judgment as a matter of law by presenting competent evidence that demonstrates the absence of any material issue of fact. Only when the movant satisfies its obligation does the burden shift to the nonmovant to present evidence demonstrating the existence of a triable issue of fact" (Aretakis v Cole's Collision, 165 AD3d 1458, 1459 [3d Dept 2018] [internal quotation marks and citations omitted]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Durr v Capital Dist. Transportation Auth., 198 AD3d 1238, 1239 [3d Dept 2021]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez, 68 NY2d at 324 [citation omitted]). And "[o]n such a motion, the facts must be viewed in the light most favorable to the [nonmovant], and every available inference must be drawn in the [nonmovant's] favor" (De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016] [citations omitted]).

Labor Law "section 240 (1) imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks" (Saint v Syracuse Supply Co., 25 NY3d 117, 124 [2015]). Similarly, "Labor Law § 241 (6) . . . imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 348 [1998], quoting Labor Law § 241 [6]).

A subcontractor may be "held liable for [a] plaintiff's injuries under Labor Law §§ 240 (1) and 241 (6) only if it had the authority to supervise and control the work giving rise to the obligations imposed by these statutes, which would render it the general contractor's statutory agent" (Nascimento v Bridgehampton Const. Corp., 86 AD3d 189, 192-193 [1st Dept 2011]; see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; see also Fisher v Hart, 27 AD3d 998, 999 [3d Dept 2006]).

Bast Hatfield, as the general contractor, does not dispute that it is a proper party to plaintiff's Labor Law claims. American Ornamental and Palumbo do.

American Ornamental argues that it is not a proper defendant to plaintiff's Labor Law §§ 240 (1) and 241 (6) claims because it was neither the owner nor general contractor and was not a "statutory agent" of either (see NYSCEF Doc No. 220 at 6). In particular, American Ornamental contends that it did not supervise or control the installation of the steel beams, the work during which plaintiff was injured (see id.). Pointing to section 4.3.1 of its subcontract with American Iron, plaintiff argues that American Ornamental was responsible for both the work that brought about the injury and for the safety of the steel erection (see NYSCEF Doc No. 223 at ¶¶ 11-13).

Through its contract with American Ornamental, Bast Hatfield delegated to American Ornamental the work of "[f]urnish[ing] and install[ing]" the steel in connection with the Germantown CSD project (see NYSCEF Doc No. 163 at 2). The Bast Hatfield-American Ornamental contract required American Ornamental to "take all reasonable safety precautions with respect to [its] Work," including all safety measures initiated by Bast Hatfield and under all applicable laws and regulations, and to "provide all labor, material, equipment, and supervision to complete all" of the steel fabrication and installation (see id. at 2, 4).

Once American Ornamental contractually assumed control and supervision of the steel installation work it "was vested with the requisite authority to supervise and control the injury-producing work, and the mere fact that [it] may not have exercised such authority is irrelevant for purposes of determining the existence of a statutory agency" for purposes of Labor Law §§ 240 (1) and 241 (6) (Doyne v Barry, Bette & Led Duke Inc., 246 AD2d 756, 758 [3d Dept 1998], abrogated on other grounds by McCarthy v Turner Constr., Inc., 17 NY3d 369 [2011]). The fact that American Ornamental subcontracted the steel assembly portion of its work to American Iron does not lead to a different result (see id.). Consequently, American Ornamental is a statutory agent of Bast Hatfield for purposes of plaintiff's Labor Law §§ 240 (1) and 241 (6) claims.

Palombo contends that it is not a proper defendant to plaintiff's Labor Law §§ 240 (1) and 241 (6) claims on the grounds that it was neither the owner, contractor, nor agent of the owner and had no supervisory control or authority over the injury-causing work (see NYSCEF Doc No. 185 at 12). Plaintiff does not raise any specific arguments as to Palombo's authority or control in his memorandum of law in support of his motion, but argues in reply to Palombo's summary judgment motion that Palombo was an agent of the owner.

"A construction manager is not liable . . . as an agent of the owner, unless the manager has the authority to direct, supervise or control the work which brought about the injury" (Kindlon v Schoharie Cent. School Dist., 66 AD3d 1200, 1201 [3d Dept 2009]; see Larkin v Sano-Rubin Const. Co., Inc., 124 AD3d 1162, 1164 [3d Dept 2015]; see also Walls v Turner Const. Co., 4 NY3d 861, 863-864 [2005]).

In support of its motion for summary judgment, Palombo proffers its contract with and the Germantown CSD. Section 3.3.15 of that contract provides that Palombo "shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the Contractors" (NYSCEF Doc No. 175 at 13). It also points to, among other provisions, section 3.3.13, which provides,

The Construction Manager's responsibility for coordination of safety programs shall not extend to direct control over or charge of the acts or omissions of the Contractor, Multiple Prime Contractors, Subcontractors, agents or employees of the Contractors or Multiple Prime Contractors or Subcontractors, or any other persons performing portions of the Work and not directly employed by the Construction Manager, nor shall it relieve the Contractor of its obligations, duties and responsibilities for safety. Specifically, the Construction Manager is not responsible or accountable for any injury or accidents to anyone other than its employees due to site safety conditions or otherwise unless caused directly or indirectly by the Construction Manager's services, and those of its officers, employees or agents.

(NYSCEF Doc No.175 at 13). And section 3.3.15 states that "[t]he Construction Manager shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the Contractors, except provided herein, since these are solely the Contractor's . . . responsibilities . . . ." (id.). Read together, the foregoing sections are prima facie proof that Palombo lacked the requisite supervisory authority and control over the subcontractors' work and safety on the Germantown CSD project, including the injury-causing steel assembly work plaintiff performed under the American Ornamental-American Iron subcontract (see Larkin, 124 AD3d at 1164; Kindlon, 66 AD3d at 1201).

In reply, plaintiff notes that section 2.2 of the contract between the Germantown CSD and Palombo states, in relevant part, that Palombo is the school district's "agent and representative with authority to act on behalf of the [Germantown CSD] as provided in this Agreement" (NYSCEF Doc No.175 at 5). And plaintiff notes that section 2.2.1 of that contract states that Palombo is a "professional construction management services" with "substantial discretion and authority to plan, schedule, approve, coordinate, manage and direct the project . . . ." (id.). Plaintiff also points out that Louis Rodriguez, Palombo's president, testified at deposition that Palombo had the ability to stop work if he observed unsafe conditions on the job site (NYSCEF Doc No. 142 at 14).

But Rodriguez clarified that the only method by which it could have stopped work would have been to "contact the project foreman for th[e] company [performing the work] and let them know that [Palombo] recognize[d] something and it's [that company's] responsibility to stop the work and take care of that issue" (NYSCEF Doc No. 142 at 14). And Rodriguez made clear that the portion of his testimony concerning "management and monitoring" of the sight related to ensuring that the work was being completed on schedule (see id. at 12-13). Further, Rodriguez explained that Palombo's "daily" checks for safety issues related exclusively to "the separation of students and staff in the work area," for example, ensuring that children would not enter the worksite in the event of a fire drill (see id. at 14).

The general contract provisions upon which plaintiff relies do not establish the requisite level of control. And Rodriguez's testimony establishes prima facie that Palombo did not have the ability to itself "direct or control safety matters or work that could lead to injury" and, therefore, "lacked the authority necessary to render it liable under Labor Law § 240 (1)" (Kindlon, 66 AD3d at 1201; see Larkin, 124 AD3d at 1165; cf. Walls v Turner Const. Co., 4 NY3d at 863-864). Because plaintiff has failed to raise any question of fact relevant to Palombo's "supervisory control of the workplace or authority to direct plaintiff's work," his [*5]common law negligence and Labor Law §§ 200, 240 (1) and 241 (6) claims insofar as asserted Palombo are dismissed (Larkin, 124 AD3d at 1164).

Plaintiff alleges that defendants violated Labor Law § 240 (1) by failing to provide him with adequate safety equipment upon the theory that the Beamer failed on the date of the accident. Defendants and American Iron posit that plaintiff has failed to establish that the Beamer was defective or otherwise inadequate, and that plaintiff's misuse of the Beamer was the sole proximate cause of the accident.

Labor Law § 240 (1) states that "[a]ll contractors and owners and their agents, . . . in the erection, . . . of a building or structure shall furnish . . . devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." "Liability under Labor Law § 240 (1) arises when a worker's injuries are the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Begeal v Jackson, 197 AD3d 1418, 1418 [3d Dept 2021] [internal quotations marks, brackets, and citation omitted]). "The statute is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed, and should be construed with a commonsense approach to the realities of the workplace at issue. To this end, the safety devices prescribed by Labor Law § 240 (1) are for the use or protection of persons in gaining access to or working at sites where elevation poses a risk" (id. [internal quotation marks and citations omitted]).

"[T]o prevail on a motion for summary judgment for a Labor Law § 240 (1) claim, a plaintiff bears the burden of showing, as a matter of law, that the statute was violated and that the violation was the proximate cause of his or her injuries" (Begeal, 197 AD3d at 1418-1419 [internal quotations marks, brackets, and citation omitted]). "Once the plaintiff makes a prima facie showing[,] the burden then shifts to the defendant, who may defeat plaintiff's motion for summary judgment only if there is a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff's own acts or omissions were the sole [proximate] cause of the accident" (Morin v Machnick Builders, Ltd., 4 AD3d 668, 669 [3d Dept 2004] [internal quotation marks and citation omitted]; see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003] ["[I]t is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury."]). As the Court of Appeals articulated in Blake v Neighborhood Hous. Servs. of NY City (1 NY3d 280 [2003]), "[e]ven when a worker is not recalcitrant, . . . there can be no liability under section 240 (1) when there is no violation [of the statute] and the worker's actions[,]" such as "his negligence[,] are the sole proximate cause of the accident" (1 NY3d at 290).

"'[T]he question of whether [a] device provided proper protection within the meaning of Labor Law § 240 (1) is ordinarily a question of fact, except in those instances where the unrefuted evidence establishes that the device collapsed, slipped or otherwise failed to perform its function of supporting the worker and his or her materials'" (Barnhardt v Richard G. Rosetti, LLC, 216 AD3d 1295, 2397 [3d Dept 2023], lv dismissed 40 NY3d 1005 [2023], quoting Briggs v Halterman, 267 AD2d 753, 754-755 [3d Dept 1999]).

Plaintiff has failed to demonstrate that "unrefuted evidence establishes that the [Beamer] . . . failed to perform its function" (Barnhardt, 216 AD3d at 1297). Plaintiff testified at deposition that his coworker raised the basket such that his chest was positioned parallel with the I-Beam. Plaintiff attached the Beamer to the bottom flange of the beam and heard the adjustable mechanism of the Beamer click, which he testified caused him to believe that the Beamer was completely connected to the beam (see NYSCEF Doc No.135 at 57). Plaintiff testified that he never received any training regarding proper use of the Beamer (see id. at 104), and that "[i]t's pretty self-define [sic], you just look at it, you know, and you can tell" and that the Beamer is "supposed to lock" and that "[y]ou hear those pins" (id. at 57). Plaintiff testified that, on the day of the accident, he "figured [the Beamer was] hanging on the bottom flange, and if it wasn't locked right, it would have fell [sic]" (id. at 104; see id. at 106). Plaintiff also testified at deposition that he had "used [that Beamer] all morning" without "any difficulties with it" (id. at 66). But, when plaintiff fell from the beam, he fell to the ground and was found lying with the undamaged Beamer still connected to his lifeline and harness. Plaintiff posits that this fact alone establishes a statutory violation on the basis that the Beamer was not an adequate safety device.

Plaintiff further submits the expert affidavit of Eric Heiberg, P.E. (NYSCEF Doc No. 143), and video of the joint expert inspection of the Beamer with retractable lifeline performed on March 28, 2023. In his affidavit, Heiberg states that he performed inspections of the equipment involved in the incident, including the Beamer and the retractable lifeline on March 28, 2023. Heiberg also observes that the Beamer comes with a manual, which plaintiff submits as an exhibit to his motion for summary judgment. The manual's four-step installation instructions are also included in Heiberg's affidavit and state as follows:

1. Hook Fixed Clamp over selected beam flange. Aluminum Bar MUST be positioned parallel with end of beam.

2. Compress lever on Adjustable Clamp and position Adjustable Clamp as tightly as possible against opposite side of beam flange. Beamer Anchor MUST be snug against beam flange and no possibility may exist for Beamer Anchor to detach from beam flange.

3. Release Adjustable Clamp lever and ensure it is fully locked onto High Strength Bar.

4. Attach complete and compatible [Personal Fall Arrest System] to Beamer Anchor D-ring. Maximum 1 connection per Beamer Anchor. Extended free fall connecting device must be used if Beamer Anchor is located below harness dorsal D-ring.

(NYSCEF Doc No. 143 at 5; NYSCEF Doc No. 140). The portion of the manual referenced in Heiberg's affidavit also includes labeled photographs of Beamer's component parts and demonstrates how it connects to an I-beam (see id.).

According to Heiberg, the Beamer is not an adequate safety device because, when the snap hook is connected to the sliding shackle on the Beamer's D ring it can move into a position where sliding shackle is able to depress the lever on the Beamer's adjustable clamp, enabling the clamp to be moved/opened and no longer engaged to the beam flange — i.e. "the Beamer can become accidentally disengaged by the snap hook" of the sliding shackle (NYSCEF Doc No. 143 at ¶ 25).

In plaintiff's video submission, Heiberg demonstrates how the adjustable clamp of the [*6]Beamer may be depressed by pressing the snap hook of the lifeline against it. In the video, Heiberg is holding the fixed clamp of the Beamer in his left hand and the retractable lifeline in his right hand. The Beamer is positioned at an angle with the fixed clamp held higher than the adjustable clamp and far end of the Beamer rod. The snap hook of the retractable lifeline is connected to the 'D' ring on the sliding shackle of the Beamer. The Beamer is positioned with both clamps facing toward the ground. Heiberg can be seen pressing the snap hook of the lifeline up against the adjustable tab of the adjustable clamp on the Beamer at an approximately 45-degree angle such that the snap hook is flush against the adjustable clamp and not engaging the 'D' ring of the Beamer. Heiberg positions both clamps nearly as close together as possible around the sliding shackle and wedges one of the edges of the snap hook against the adjustable tab. Upon doing so, Heiberg is able to disengage the adjustable tab causing the adjustable clamp to release and slide along the Beamer. Heiberg replicates this maneuver twice.

Based on his video demonstration, and because plaintiff was found on the ground with his lifeline and Beamer still attached on the day of the accident, Heiberg opines that "something must have depressed the lever on the adjustable clamp and enabled the [B]eamer's clamp to move and thus enable the [B]eamer to become disengaged from the lower flange of the beam" (NYSCEF Doc No. 143 at ¶ 38). He posits that the accident "is consistent with the snap hook depressing the lever on the adjustable clamp, enabling the clamp to be moved and no longer engage the beam flange, and no longer comprise an anchor point" (id. at ¶ 39).

The Court finds that plaintiff's proof fails to establish a prima facie claim under Labor Law § 240 (1). Plaintiff's theory that the Beamer is an inadequate safety device is premised entirely on his deposition testimony that he properly used the Beamer because he heard the clicking noise and because the Beamer did not immediately fall off of the flange, as well as Heiberg's speculative conclusion that the Beamer must have failed by becoming accidentally detached when the snap hook connected to plaintiff's lifeline disengaged the adjustable clamp of the Beamer. But no record evidence, including plaintiff's deposition testimony, comes close to establishing that the Beamer became detached under conditions similar to that posited by Heiberg.

The manual—referred to, incorporated in, and relied on by Heiberg's report—fails to support plaintiff's position that hearing a clicking noise indicated that the Beamer was properly secured. And plaintiff acknowledged at deposition that he undertook no additional measures to check whether the Beamer was secured other than by hearing the click sound and because the Beamer had not fallen when he connected it to the bottom flange. The manual, by contrast, instructs the user to "ensure it is fully locked onto High Strength Bar" (NYSCEF Doc No. 143 at 5; NYSCEF Doc No. 140 at 6). And Heiberg's affidavit indicates that the Beamer would make numerous clicking sounds as the adjustable clamp slides across the rod—but does not establish that hearing a single click would ensure that the Beamer was properly secured.

Moreover, Heiberg's video demonstration fails to establish, as a matter of law, that the Beamer was inadequate. Contrary to plaintiff's position, the "conditions at the work site" are relevant to determining whether the supplied safety equipment is adequate (Morin, 4 AD3d at 670). And Heiberg does not establish that the conditions under which he was able to disengage the adjustable clamp of the Beamer using the snap hook on the lifeline were similar to the conditions under which plaintiff used the Beamer on the day of the accident or even if such conditions could be replicated on an actual job site.

Plaintiff is correct in stating that his contributory negligence, if any, is irrelevant to Labor [*7]Law § 240 (1) liability (see Dalaba v City of Schenectady, 61 AD3d 1151, 1152 [3d Dept 2009]).^[FN1] But the Court's conclusion is not grounded in a finding of contributory negligence. Rather, it is plaintiff's failure to meet his "burden of showing, as a matter of law, that the statute was violated" that guides its analysis (Begeal, 197 AD3d at 1419). Because plaintiff has not established prima facie that the Beamer was defective or inadequate, he has failed to establish the requisite statutory violation necessary to demonstrate entitlement to summary judgment as to liability on his section 240 (1) claim. Defendants. in any event, adduced evidence raising questions of fact that would defeat plaintiff's motion; but they fail to establish entitlement to summary judgment dismissing the Labor Law § 240 (1) claim against them.

Even if plaintiff had established prima facie liability under Labor Law § 240 (1), defendants' evidence raises triable issues of fact as to whether the Beamer was an adequate safety device for elevated steel work, or whether plaintiff's improper use of the Beamer was the sole proximate cause of the accident. Defendants' evidence is not conclusive, however, so they are not entitled to summary judgment dismissing the Labor Law 240(1) claims against them.

During the deposition testimony of Walter Korawajczyk, Project Manager for American Iron on date of accident (see NYSCEF Doc No. 178), plaintiff's counsel asked Korawajczyk whether he would "agree. . . that if [plaintiff] was attempting to attach the [B]eamer to the lower flange, it would fall if not attached?" (id. at 66). Korawajczyk replied, "[d]epends how tight it is. You can connect that to the bottom flange of the beam and still have it fall off if it's not tight" (id. at 67). Korawajczyk also testified that he visited plaintiff in the hospital on the day of the accident to check on his wellbeing. Korawajczyk stated that he asked plaintiff what had gone wrong when he fell, and plaintiff told him, "he did not properly secure the beam to the [B]eamer" (id. at 56). Korawajczyk included that same quote in a written report, which he testified he authored later that day. In his written report, Korawajczyk indicated that plaintiff "was sure he did not have [the Beamer] tight" (NYSCEF Doc No. 162).

Korawajczyk's written statement and deposition testimony containing plaintiff's admission that he failed to connect the Beamer tightly at the time of the accident are admissible and raise an issue of fact sufficient to defeat summary judgment (see Vogler v Perrault, 149 AD3d 1298, 1299 [3d Dept 2017] [denying the defendant's motion for summary judgment to dismiss the plaintiff's Labor Law §§ 240 and 241 claims, in part, based on the plaintiff's deposition testimony which included an admission by the defendant]; see id. at n 1 ["admissions by a party of any fact material to the issue are always competent evidence against him [or her], wherever, whenever or to whomsoever made"], quoting Reed v. McCord, 160 NY 330, 341 [1899]). Plaintiff's admission likewise raises a question of fact as to whether plaintiff knew of but failed to adhere to safety precautions relative to attaching the Beamer, notwithstanding his deposition testimony that he never received any training and that use of the Beamer was, in effect, self-explanatory.

Furthermore, defendants' experts raise questions of fact as to the adequacy of the Beamer. [*8]Bast Hatfield's expert, Bernanrd P. Lorenz, P.E., personally inspected the Beamer and other safety equipment during the joint-expert inspection and observed Heiberg's video-recorded demonstration (see NYSCEF Doc No. 149 at ¶ 5). Lopez posits that the "connection hook of the lanyard would not twist and move to a horizontal position and impact the Beamer['s] adjustable component during use regardless of whether Beamer was attached to top or bottom flange" and that Heiberg's "manipulation of the beam clamp by use of the retractable lanyard clamp is flawed and not a scenario which would exist regardless of the beam clamp being attached to either the top or bottom flange of the beam" (id. at 149 at ¶ 21). Lorenz concludes that the most likely cause of Beamer becoming detached was plaintiff "improperly fastening the beam clamp to the bottom flange of the beam" (id. at ¶ 22).

American Ornamental's expert, Ernie J. Gailor, P.E., states that he attended the March 28, 2023 equipment inspection, personally inspected the Beamer and lifeline, and observed Heiberg conduct his test of the safety equipment (NYSCEF Doc No. 197). Gailor posits that Heiberg's demonstration "was flawed because it failed to account for the placement of the steel beam into the beamer. If the steel beam were in place as it would have been during this incident, there would be no room or accessibility for the snap hook to be in such a position that it could disengage the beamer" (id. at ¶ 9). Gailor opined that, based on his inspection of the Beamer and accompanying safety equipment, "the [B]eamer could not be disengaged once it was properly installed for use" (id. at ¶ 10). In Gailor's opinion, the accident was caused by plaintiff's misuse of the Beamer, namely his failure to securely attach the Beamer to the steel beam (see id. at ¶ 11).

Moreover, Gailor notes that "[t]he sound of a click does not ensure that the beamer is fully engaged. If the beamer were installed askew, a click may be heard but the Beamer would not be properly or safely installed" (NYSCEF Doc No. 197 at ¶ 11). Gailor opines that, because there are "several . . . notches over which the spring-loaded locking lever would travel prior to being fully engaged" hearing a "single click does not mean that the adjustable clamp was positioned at the tightest possible notch on the high strength bar" (id.). Gailor states that it is "proper industry custom and practice to vigorously shake the Beamer . . . to determine that it [i]s solidly attached to the beam" (id. at ¶ 12). The Court concludes that the expert opinions of Lopez and Gailor, alone, raise triable issues of fact as to whether the Beamer was an adequate safety device, as well as whether plaintiff's misuse of the Beamer was the proximate cause of the accident.

American Iron also proffers an affidavit of its own expert, Kristopher Seluga, P.E., who opines that Heiberg "directly manipulat[ed] the lifeline shock absorber with his hands" in a manner inconsistent with conditions that could exist if the Beamer were attached to a beam flange (NYSCEF Doc No. 209 at 13). In particular, Seluga states that "[t]he position of the D-ring and snap hook that Mr. Heiberg had to create to release the adjustable clamp locking mechanism during the joint inspection could not have been achieved while the beamer was attached to the beam because the flange of the beam would have mechanically prevented those parts from achieving that position (i.e. that space was already occupied by the beam flange" (id. at 15).

Seluga further opines that "the [B]eamer can be loosely attached onto the beam such that it does not fall when released, but can easily come free when pulled along the beam by the lifeline" (NYSCEF Doc No. 209 at 16). In support, Seluga attaches numerous photographs to his affidavit which depict the Beamer in various positions on an I-beam flange. For instance, Figure [*9]20 depicts the Beamer attached to the bottom flange of an I-beam with the lifeline attached to the Beamer's 'D' ring by a snap hook with the lifeline pulled tightly parallel to the Beamer (see id. at 36). Seluga opines that the Beamer cannot accidentally detach the adjustable lever under such circumstances. And Seluga includes several photographs of the Beamer attached loosely to the bottom flange of a beam, including photographs where the Beamer is only connected by one of the clamps, and remains connected to the Beam until pulled by the lifeline, causing it to become detached (see id. at 37-40). This is consistent with defendants' expert opinion evidence, as well as Korawajczyk's testimony, that the Beamer could remain attached to the bottom flange of an I-Beam even if improperly and/or loosely connected until some level of force was exerted, such as by pulling the lifeline.

Because questions of fact exist as to whether the Beamer was an adequate safety device and whether plaintiff's actions were the sole proximate cause of the accident, plaintiff's motion for partial summary judgment as to his Labor Law § 240 (1) claims against Bast Hatfield and American Ornamental is denied. But given plaintiff's testimony and the testimony of Heiberg, questions of fact preclude summary judgment in their favor. Bast Hatfield's and American Ornamental's cross-motions for summary judgment dismissing plaintiff's Labor Law § 240 (1) claims against them are, therefore, denied.

"Labor Law § 241 (6) . . . imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 348 [1998], quoting Labor Law § 241 [6]). "To prevail on a Labor Law § 241 (6) claim, a plaintiff must demonstrate the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the injury and that the violation was the proximate cause of the injury sustained" (Hall v Queensbury Union Free School Dist., 147 AD3d 1249, 1251 [3d Dept 2017] [internal quotation marks and citations omitted]).

"Comparative negligence remains a cognizable affirmative defense to a section 241 (6) cause of action" (Copp v City of Elmira, 31 AD3d 899, 899-900 [3d Dept 2006]). And "unlike the contravention of a statute, 'a violation of a regulation does not necessarily establish a right to summary judgment on a Labor Law § 241 (6) cause of action'" (Schoonover v Diaz, 222 AD3d 1244, 1247 [3d Dept 2023], quoting Copp, 31 AD3d at 900). Rather, a violation of an Industrial Code regulation constitutes only "some evidence of negligence" (Paolangeli v Cornell Univ., 296 AD2d 691, 693 [3d Dept 2002]).

Plaintiff alleges a violation of 12 NYCRR 23-1.16 (a) and (b). That regulation is "sufficient to sustain a cause of action under Labor Law § 241 (6)" (Mills v Niagara Mohawk Power Corp., 262 AD2d 901, 902 [3d Dept 1999]). Subdivision (a) provides that "[s]afety belts, harnesses and all special devices for attachment to hanging lifelines shall be approved" (12 NYCRR 23-1.16 [a]). Plaintiff contends that because there is no evidence that the Beamer [*10]provided to plaintiff was "approved" defendants violated subdivision (a).

Plaintiff's argument in this regard hinges entirely on one sentence in Heiberg's affidavit in which he states that "[t]here has been no evidence provided that the Guardian Beamer was approved through General Approval or through Special approval" as defined under 12 NYCRR § 23 (3) (i) and (ii), respectively (NYSCEF Doc No. 143 at ¶ 60). Even accepting plaintiff's allegation in this regard as true, plaintiff has established, at most, a violation of 12 NYCRR 23-1.16. But such violation, alone, constitutes only "some evidence of negligence" and is insufficient to meet his burden on summary judgment (Paolangeli, 296 AD2d at 693; see Schoonover, 222 AD3d at 1247; Copp, 31 AD3d at 900). Plaintiff offers no facts or arguments to establish how the lack of "approval" proximately caused the accident. To the extent plaintiff seeks to bootstrap this argument to his contentions concerning the Beamer's alleged failure, as discussed in detail above, questions of fact preclude summary judgment.

Next, 12 NYCRR 23-1.16 (b) requires that, "[e]very approved safety belt or harness provided or furnished to an employee for his personal safety shall be used by such employee in the performance of his work whenever required by this Part (rule) and whenever so directed by his employer. At all times during use such approved safety belt or harness shall be properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline" (12 NYCRR 23-1.16 [b]). Plaintiff argues that, because the Beamer was defective, defendants failed to provide him with a secure anchor point in violation of subdivision (b). For the reasons set forth above, questions of fact exist as to whether the Beamer was an adequate safety device and, therefore, an adequate anchor point. Accordingly, questions of fact preclude summary judgment on plaintiff's Labor Law § 241 (6) claim based on an alleged violation of 12 NYCRR 23-1.16 (b).^[FN2]

Plaintiff further asserts that defendants violated 12 NYCRR 23-1.7 (d), which provides that "[e]mployers 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."

Questions of fact exist as to whether the beam was wet and/or slippery and, if so, whether the slippery and/or wet condition of the beam was a proximate cause of the accident, which preclude summary judgment based on a violation of 12 NYCRR 23-1.7 (d). Plaintiff's deposition [*11]testimony is the only evidence of snowfall or slippery conditions on the beams on the day of the accident. Even assuming plaintiff's testimony is sufficient to establish a violation of 12 NYCRR 23-1.7 (d) based on the presence of water, that alone is insufficient to establish summary judgment on his Labor Law § 241 (6) claim (see Paolangeli, 296 AD2d at 693; see also Schoonover, 222 AD3d at 1247; Copp, 31 AD3d at 900).^[FN3]

And though plaintiff alleges that the presence of water on the beam informed his decision to step down to the bottom flange and that he "slipped and then . . . rolled" off the beam, he did not specify whether his foot slipped because the beam was wet or if he misplaced his foot while stepping down. Indeed, plaintiff could not recall whether the portion of the bottom flange he stepped down to was large enough to accommodate his entire foot. Consequently, plaintiff's own deposition testimony raises a question of fact regarding proximate causation sufficient to preclude summary judgment on this claim.

Defendants have raised additional questions of fact concerning the presence of water and/or other slippery conditions on the beam on the date of the accident. Korawajczyk explained the procedure American Iron used to address weather-related conditions on the job site during his deposition. In particular, Korawajczyk testified that, if there was precipitation at the commencement of a workday, the crew and foreman would need "to be in agreement" in deciding whether to perform their work (NYSCEF Doc No. 160 at 102). Korawajczyk explained that it is "a group decision and either way if there's precipitation in the morning when you arrive on-site, you have to wait two hours per the union, then after the two hours, you make that judgment call" (id.). Korawajczyk testified, the crew arrives on site at 7:00 a.m., and if there was precipitation, "they were required to stay on site for two hours" and after the two hours, if it was still raining or snowing, "then they make the call as a group to either stay or go home" (id.). Korawajczyk stated that he was not on-site on the date of the accident, but that American Iron's foreman, Charlie Wood, was responsible for notifying him if there was precipitation on the jobsite (see id. at 102). But, Korawajczyk testified, Wood did not inform him of any precipitation on the site on the date of the accident (see id. at 102-103).

Dennis Gilmore, Bast Hatfield's safety director, testified at deposition that he was on-site on the date of the accident for two separate visits, one before the accident and one after the accident (see NYSCEF Doc No. 159 at 40, 75). Gilmore stated that, during his first visit to the site the morning of the accident, he observed and photographed the steel structure (see id.). Gilmore's photographs taken on the morning of December 23, 2019, depict plaintiff working on the top flange of a steel beam. The photographs do not depict falling snow and no wetness and/or snow or ice is apparent on the beams. Rather, the photographs depict blue skies with a dusting of snow on the ground. These photographs contain a time-dated stamp of 2019/12/23 09:36 a.m.—which was prior to the accident (see NYSCEF Doc No. 134 at 2, 3). Gilmore recalled the weather conditions of December 23, 2019, as "cold in the morning but it had quickly heated up" and stated that there was no precipitation that he was aware of (NYSCEF Doc No. 154 at 81). But Gilmore stated that he did not observe the conditions of the steel beams, only those on the [*12]ground (see id. at 93).

Defendants also proffer the Bast Hatfield daily log, dated December 23, 2019, which includes weather reports from Germantown CSD from 7:00 a.m., 12:00 p.m., and 3:00 p.m. (see NYSCEF Doc No. 134 at 29). As relevant to the accident, the temperature at 7:00 a.m. that day is listed as 26 degrees, and 43 degrees at noon (see id.). "0" precipitation is shown on that day (see id.). Though Bast Hatfield's daily log indicates that no precipitation occurred on the date of the accident, that log also indicates that temperatures rose approximately 17 degrees between 7:00 a.m. and noon. This is consistent with Gilmore's deposition testimony that it was cold in the morning and that temperatures rose significantly by noon. But neither party has submitted any other weather reports or other evidence to establish prior precipitation that could have thawed/melted prior to the time of the accident.^[FN4]

Consequently, because questions of fact exist as to whether defendants violated 12 NYCRR 23-1.7 (d) and, if so, whether such violation was a proximate cause of plaintiff's accident, plaintiff's motion and defendants' cross-motions for summary judgment on plaintiff's Labor Law § 241 (6) claim based on defendants' alleged regulatory violation are denied (see Miller v R.L.T. Properties, Ltd., 206 AD3d 648, 650-651 [2d Dept 2022]).^[FN5]

In his Bills of Particulars, plaintiff asserts that defendants failed to provide and/or maintain a safe place and premises to perform his work by failing to keep the beam free of slipping hazards. He claims that defendants are liable for common law negligence and under Labor Law § 200 because defendants had both actual and constructive notice of the alleged slippery conditions on the beam on the date of the accident.

Defendants and American Iron move for summary judgment dismissing plaintiff's common law negligence/Labor Law § 200 claims. Defendants argue that they did not supervise or control plaintiff's work at the time of the accident and neither created nor had notice of the [*13]allegedly dangerous wet conditions of the beams.

Labor Law § 200 "codifies the common-law duty of an owner or employer to provide employees with a safe place to work" (Jock v Fien, 80 NY2d 965, 967 [1992]; see Mitchell v T. McElligott, Inc., 152 AD3d 928, 929-30 [3d Dept 2017]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Edwards v State Univ. Constr. Fund, 196 AD3d 778, 780 [3d Dept 2021] [internal quotation marks and citations omitted]). "Under the first category, 'a general contractor may be held liable in common-law negligence and under Labor Law § 200 if it created the dangerous condition or had control over the work site and actual or constructive notice of the dangerous condition'" (id., quoting Eversfield v Brush Hollow Realty, LLC, 91 AD3d 814, 816 [2d Dept 2012]).

Plaintiff's claims fall within the first category of Labor Law § 200 cases based on dangerous or defective premises conditions at a work site, namely the presence of water and/or slippery conditions on the beam. Questions of fact exist as to whether defendants Bast Hatfield and American Ornamental had constructive notice of slippery conditions on the beam. As discussed above relative to plaintiff's Labor Law § 241 (6) claim based on 12 NYCRR 23-1.7 (d), plaintiff testified at deposition to experiencing wet conditions on the day of the accident. In particular, he testified that he needed to change gloves several times while working prior to the accident because the steel was so wet. In addition, the record evidence establishes the presence of snow on the ground and rapidly increasing temperatures on the morning of the accident. This evidence is sufficient to raise questions of fact as to whether Bast Hatfield and American Ornamental had constructive notice of the presence of slippery conditions on the beams. Consequently, they have failed to establish prima facie entitlement to judgment as a matter of law on plaintiff's common law negligence and Labor Law § 200 claims, and their motions for summary judgment to dismiss these claims are denied.

But the record reveals questions of fact regarding comparative negligence. Plaintiff's own testimony establishes that he never "complained to [his] supervisor" about the alleged wetness on the beams on the day of the accident despite allegedly being aware of such condition for the "hours" he worked on the beams prior to the accident (NYSCEF Doc No. 135 at 36, 110). And, although plaintiff testified that he and his co-worker, Anthony, complained of the wet conditions to each other, Anthony's witness statement provides only that plaintiff "fell and beamer popped off [Plaintiff] hit the ground" (NYSCEF Doc No. 188 at 5).

Further, Korawajczyk's testimony establishes that American Iron's foreman on the day of the accident never advised him of any weather-related conditions necessitating delaying or stopping work that morning, despite having a procedure in place that required mutual agreement of American Iron and the union ironworkers to commence or continue work in the event such conditions existed. The foregoing suggests that the allegedly wet conditions on the beam were readily observable to plaintiff. But, "[t]he issue [of] whether a condition was readily observable impacts on [plaintiff's] comparative negligence and does not negate defendants' duty to keep the premises reasonably safe" (Parkhurst v Syracuse Regional Airport Auth., 165 AD3d 1631, 1632 [4th Dept 2018] [ellipses omitted]).

Based on the foregoing, defendants' cross-motions for summary judgment dismissing plaintiff's common law negligence and Labor Law § 200 claims are denied.

Palombo's cross-motion to dismiss all cross-claims for common law indemnification and contribution is granted, as all claims asserted against it have been dismissed (see Tapinekis v Rivington House Health Care Facility, 17 AD3d 572, 574 [2d Dept 2005] [holding that the Court's "conclusion that the appellant (wa)s not liable to the plaintiffs for the injuries sustained . . . necessarily defeat(ed) all the cross claims for common-law indemnification and contribution asserted against the appellant]; see also Glaser, 71 NY2d at 646; Otero v 635 Owner LLC, 210 AD3d 435, 437 [1st Dept 2022]). And, because no party has pointed to any contractual provision imposing an obligation relative to Palombo with respect to the remaining claims and/or cross-claims, all contractual indemnification and breach of contract claims against Palombo are dismissed (see Herrero v 2146 Nostrand Ave. Assoc., LLC, 193 AD3d 421 [1st Dept 2021]). Based on the foregoing, the remaining issues raised by and against Palombo are rendered academic and the Court declines to address them.

"Indemnification is the right of one party to shift the entire loss to another and may be based upon an express contract or an implied obligation. The principle of common-law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" (Morin v Heritage Builders Group, LLC, 211 AD3d 1138, 1142 [3d Dept 2022] [internal quotation marks, brackets, and citation omitted]). "Common-law indemnification is generally available 'in favor of one who is held responsible solely by operation of law because of his relation to the actual wrongdoer' (id., quoting McCarthy v Turner Const., Inc., 17 NY3d 369, 375 [2011]). "In order to establish a claim for common-law indemnification, a party must prove not only that it was not negligent, but also that the proposed indemnitor's actual negligence contributed to the accident" (Morin, 211 AD3d at 1143 [internal quotation marks and citation omitted]).

"[A] party cannot obtain common-law indemnification unless it has been held to be vicariously liable without proof of any negligence or actual supervision on its own part" (McCarthy v Turner Const., Inc., 17 NY3d 369, 377-378 [2011]). And a general contractor's "authority to supervise the work and implement safety procedures is not alone a sufficient basis for requiring common-law indemnification. Liability for indemnification may only be imposed against those parties (i.e., indemnitors) who exercise actual supervision" (id. at 378). Where, as here, "a party with contractual authority to direct and supervise the work at a job site never exercises that authority because it subcontracted its contractual duties to an entity that actually directed and supervised the work, a common-law indemnification claim will not lie against that party on the basis of its contractual authority alone" (id.).

Here, there has been no finding of liability as to Bast Hatfield under Labor Law § 240 (1), and the only potential basis for liability thereunder is statutory—not negligence-based (see [*14]Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179 [1990]). Accordingly, Bast Hatfield's motion for summary judgment dismissing American Ornamental's and American Iron's cross-claims for common law indemnification is granted insofar as they arise from or are related to Bast Hatfield's potential liability under Labor Law § 240 (1).

Moreover, the record is devoid of evidence that Bast Hatfield actually supervised, controlled, or directed plaintiff's work in any manner. Rather, plaintiff's testimony establishes that his employer at the time of the accident, American Iron, was the only entity that controlled his work, provided any supervision or direction, or provided him with any safety equipment. Accordingly, Bast Hatfield's status as general contractor is, alone, insufficient to sustain common law indemnification (see McCarthy, 17 NY3d at 378). And though Bast Hatfield's negligence may be difficult to establish, plaintiff's Labor Law § 241 (6) claim remains pending against it. Consequently, at this juncture, when the issue of fault under Labor Law § 241 (6) has not yet been determined, Bast Hatfield's motion for summary judgment dismissing American Ornamental's, American Iron's, and Palombo's cross-claims for common law indemnification must be denied as premature.

"[W]here a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy" (Glaser v M. Fortunoff of Westbury Corp., 71 NY2d 643, 646 [1988]). As no determination of negligence has yet been made as to any party, Bast Hatfield's cross-motion for summary judgment dismissing all cross-claims for contribution is denied as premature (see id.).

Bast Hatfield cross-moves for summary judgment on its cross-claims for contractual indemnification against American Ornamental and American Iron. American Ornamental and American Iron oppose Bast's cross-motion for contractual indemnification. American Ornamental cross-moves to dismiss Bast Hatfield's cross-claim for contractual indemnification. Bast Hatfield's cross-motion for summary judgment for contractual indemnification against American Ornamental is granted, conditionally upon a finding of liability against American Ornamental.

"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 [1987]).

Pursuant to the Bast Hatfield-American Ornamental subcontract, American Ornamental was required to indemnify Bast Hatfield

against any and all losses, claims, actions, demands, damages, liabilities or expenses . . . by reason of the liability imposed by law or otherwise upon [Bast Hatfield] for damages because of bodily injuries, . . . sustained at any time by any person or persons, including [American Ornamental's] employees, agents, or representatives . . . arising directly or indirectly out of the performance of [American Ornamental's] work or from any acts or omissions on the part of [American Ornamental], its employees, agents or [*15]representatives.

Plaintiff's bodily injury was sustained in the performance of the steel assembly work—the work subcontracted by Bast Hatfield to American Ornamental. Consequently, Bast Hatfield has established prima facie that the indemnification provision of its contract with American Ornamental was triggered when plaintiff was injured while performing the work subcontracted by American Ornamental. American Ornamental has failed to raise a triable issue of fact in opposition. But since no liability determination has yet been made, Bast Hatfield is entitled to conditional summary judgment for contractual indemnification against American Ornamental (see Weidtman v Tremont Renaissance Hous. Dev. Fund Co., Inc., 224 AD3d 488, 491 [1st Dept 2024]; Alfieri v ABB, Inc., 227 AD3d 941, 942 [2d Dept 2024]).

Bast Hatfield further argues that it is entitled to summary judgment on its cross-claim for contractual indemnification against American Iron. American Iron argues in opposition that Bast Hatfield's motion must be denied because the scope of the indemnification agreement as between it and Bast Hatfield is limited to injuries arising due to American Iron's negligence for which no finding has yet been made. Subsequent to the full submission of the present motions, American Iron's primary insurer, Hiscox, agreed to indemnify Bast Hatfield up to the $1 million limit on its primary commercial liability insurance policy without reservation of rights. Accordingly, Bast Hatfield concedes that its contractual indemnification claims against American Iron concerning the initial $1 million Hiscox policy have been resolved, and the only issue remaining with respect to its contractual indemnification claim against American Iron is the issue of excess liability coverage over $1 million.

American Ornamental also seeks conditional summary judgment on its third-party claim against American Iron for contractual indemnification against American Iron for any amount in excess of $1 million, the amount of American Iron's policy through Hiscox. American Ornamental does not dispute that Hiscox has agreed to defend and indemnify American Ornamental up to the $1 million policy limit.

In support of its motion, Bast Hatfield submits the indemnification agreement it executed with American Ornamental and American Iron (see NYSCEF Doc No. 165) pursuant to which American Iron Agreed to "defend, indemnify, and hold harmless" American Ornamental and Bast Hatfield "[t]o the fullest extent permitted by law"

"from and against all claims, damages, losses, liens liabilities, or expenses of any kind for bodily injury . . . that arise out of or result from the performance of the Work, but only to the extent of the negligence or other culpable conduct attributable to the acts or omissions of [American Iron] . . . or anyone employed directly . . . by [American Iron] . . . and does not extend to that part of any claims, damages, loss, liability or expenses shown to arise from the negligent acts or omissions of [American Ornamental or Bast Hatfield.]"

American Ornamental's and American Iron's subcontract contains a similar indemnification provision at section 4.6.1, pursuant to which

[American Iron] shall indemnify and hold harmless . . . [American Ornamental], . . . 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 [American Iron's] Work under this Subcontract provided that any such claim, damage, loss or expense is attributable to bodily injury, . . . but only to the extent caused by the negligent acts or omissions of [American Iron], . . . anyone directly or indirectly employed by [American Iron] 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.

(NYSCEF Doc No. 164 at 7 [emphasis added]). In addition, the American Ornamental-American Iron subcontract obligated American Iron to obtain an excess liability coverage and name, among others, Bast Hatfield as an additional insured (NYSCEF Doc No. 164 at 16, 17).

As addressed above, American Iron's insurer, Hiscox, has agreed to indemnify Bast Hatfield and American Ornamental up to the $1 million limit on the general commercial liability policy. Further, based on the foregoing analysis of the above-cited indemnification provisions, American Iron's indemnification obligations to Bast Hatfield and American Ornamental, relevant now to the issue of excess liability coverage, are triggered only upon a finding of negligence or other culpable conduct by American Iron or those within its control or under its employ. American Iron's indemnification obligations relative to excess liability coverage will depend on the extent to which its negligence is found to have proximately caused plaintiff's injury (see Ramirez, 169 AD3d at 509). No such finding against American Iron has yet been made.

But the record does not contain evidence suggesting that Bast Hatfield's or American Ornamental's acts or omissions were the sole proximate cause of plaintiff's accident. Rather, the record before the Court establishes that plaintiff was injured while performing work for American Iron, and plaintiff's testimony establishes that American Iron was the only entity to directly control or supervise his work or provide him with any safety equipment. Accordingly, Bast Hatfield's and American Ornamental's cross-motions for summary judgment for contractual indemnification against American Iron in excess of the $1 million Hiscox Policy limit are granted conditionally upon a determination of liability against American Iron (see Johnson v Chelsea Grand E., LLC, 124 AD3d 542, 543 [1st Dept 2015]). And American Iron's cross-motion to dismiss American Ornamental's claim in this regard is conditionally denied.

Bast Hatfield moves for summary judgment on its cross-claim for breach of contract against American Ornamental for its purported failure to furnish Bast Hatfield with primary, non-contributory additional insured status. American Ornamental cross-moves for summary judgment dismissing Bast Hatfield's breach of contract claim against it, contending that it obtained the general commercial liability and excess coverage naming Bast Hatfield as an [*16]additional insured as required, and that its general commercial liability carrier's reservation of rights does not amount to a breach of contract.

In support of its cross-motion, Bast Hatfield points to its subcontract with American Ornamental, pursuant to which American Ornamental was required to maintain at its own expense insurance to protect Bast Hatfield, including "Commercial General Liability Coverage providing bodily injury in the minimum amount of $1,000,000 for each occurrence" as well as an umbrella policy for liability coverage in the minimum amount of $2,000,000 (NYSCEF Doc No. 163 at 4 ¶ 5). American Ornamental was further required to provide a certificate of insurance evidencing that all required coverage was in force prior to commencement of any work on the project with Bast Hatfield included as an additional insured on American Ornamental's General Liability policy (see id.). Bast Hatfield also submits the response of American Ornamental's general commercial liability insurer, Admiral Insurance Group (Admiral), in which Admiral "advised that Bast Hatfield will qualify as an Additional Insured subject to a Reservation of Rights and only on an excess basis with respect to coverage provided by American Iron and their insurer, Hiscox" (NYSCEF Doc No. 214 at 1).

In opposition, American Ornamental submits its insurance policy through Admiral and its excess insurance policy through American International Group, Inc. (AIG) (see NYSCEF Doc Nos. 195, 196). The Admiral policy lists as additional insureds under the Commercial General Liability Coverage Part "[a]ny person or organization that is an owner or manager of real property or personal property . . . or a contractor on whose behalf you are performing ongoing operations" (NYSCEF Doc No. 195 at 26). It also states that "[t]his insurance policy is primary to and will not seek contribution from any other insurance available to an additional insured under your policy provided that: (1) [t]he additional insured is a Named Insured under such other insurance; and (2) [y]ou have agreed in writing in a contract or agreement that this insurance would be primary and would not seek contribution from any other insurance available to the additional insured" (id. at 54). The Bast Hatfield-American Ornamental contract provided that "[t]he insurance for the Additional Insureds shall be and shall specify that it is primary and non-contributing insurance before any insurance obtained by the Additional Insureds" (NYSCEF Doc No.163 ¶ 5).

Bast has not established a prima facie claim for breach of contract against American Ornamental. In opposition, however, American Ornamental has established that no triable issues of fact exist as to its compliance with the provisions of its contract with Bast Hatfield requiring it to procure the contractually-mandated insurance coverage based on the Bast Hatfield-American Ornamental subcontract, as well as the Admiral and AIG insurance policies. And Bast Hatfield's contention that Admiral's determination to qualify Bast Hatfield as an additional insured subject to a reservation of rights amounts to a breach of contract lacks merit (see Castro v New York City Tr. Auth., 52 AD3d 213, 214-215 [1st Dept 2008]; Perez v Morse Diesel Intern., Inc., 10 AD3d 497, 498 [1st Dept 2004]; see also Dorset v 285 Madison Owner LLC, 214 AD3d 402, 404 [1st Dept 2023]). The Court has considered Bast Hatfield's additional arguments on this point and finds them to also be without merit. Accordingly, Bast Hatfield's motion seeking summary judgment on its cross-claim for breach of contract against American Ornamental is denied, and American Ornamental's motion for summary judgment dismissing Bast Hatfield's cross-claim against it for breach of contract is granted.

Bast Hatfield contends that American Iron breached its contractual duty to provide it with additional insured status on a primary, non-contributing basis. In opposition, American Iron contends that its insurer has been defending Bast Hatfield and avers that Bast Hatfield has failed to proffer any documentation or arguments to establish American Iron's breach of contract. As discussed above, Bast Hatfield's coverage under American Iron's general commercial liability policy through Hiscox has been resolved. But questions of fact preclude summary judgment concerning American Iron's satisfaction of its obligation to name Bast Hatfield as an additional insured on its excess policy.

Pursuant to Article 13 of the American Ornamental-American Iron subcontract, American Iron was required to purchase and maintain commercial general liability insurance of $1 million per occurrence, as well as an excess or umbrella policy liability coverage of $1 million, and to name as additional insureds, among others, Bast Hatfield and the Germantown CSD, along with their respective officers, agents and employees (NYSCEF Doc No. 164 at 16, 17). Further, pursuant to the indemnification agreement between Bast Hatfield, American Ornamental, and American Iron, American Iron agreed to furnish to American Ornamental and Bast Hatfield "valid certificates of insurance evidencing procurement of all insurance coverages" required thereunder and under the American Ornamental-American Iron contract, and stated that "all of the . . . insurance provisions contained in the subcontract between [Bast Hatfield] and [American Ornamental], and all of the same provisions contained in the prime contract between the [Germantown CSD] and [Bast Hatfield], are incorporated herein by reference and shall be binding upon [American Iron]" (NYSCEF Doc No. 165 at 3).

As of the date of this decision and order, no party has proffered American Iron's excess policy or certificate of insurance relative to the same. Without this documentation, questions of fact remain as to American Iron's compliance with its contractual obligation to name Bast Hatfield as an additional insured on an excess umbrella policy. Accordingly, questions of fact preclude summary judgment on Bast Hatfield's breach of contract claim against American Iron regarding American Iron's obligation to procure and name Bast Hatfield as an additional insured on an excess umbrella policy. Consequently, Bast Hatfield's motion for summary judgment in that regard is denied.

American Iron cross-moves to dismiss American Ornamental's first and fourth cause of action for common law indemnification, contribution, and/or apportionment if plaintiff is determined to have sustained a "grave injury" as defined under Workers Compensation Law (WCL) § 11. American Iron argues that it is immune from liability for such claims pursuant to WCL § 11. American Iron points to the portions of plaintiff's deposition testimony in which he indicated that he suffered a concussion and experiences headaches as a result of the accident, but argues that plaintiff has never been declared unable to work.

Claims of common law indemnification, contribution, and/or apportionment against an injured employee's employer are barred by WCL § 11 unless the employee is shown to have [*18]suffered a "grave injury," as defined under the WCL (see CPLR 1601 [a]; Castro v United Container Mach. Group, Inc., 96 NY2d 398, 401 [2001]). As relevant, "a grave injury" includes "'an acquired injury to the brain caused by an external physical force resulting in permanent total disability'" (Miranda v Norstar Bldg. Corp., 79 AD3d 42, 48 [3d Dept 2010], quoting WCL § 11). To establish a "grave injury" "requires a showing that the injured worker is not employable in any capacity" (id.; see Rubeis v Aqua Club Inc., 3 NY3d 408, 417 [2004]).

At most, plaintiff's deposition testimony raises questions of fact as to whether he suffered a grave injury. But no medical or other expert evidence has been submitted on this issue and it is yet to be determined whether plaintiff suffered a "grave injury." Accordingly, American Iron's cross-motion for dismissal of American Ornamental's first and fourth cross-claims for common law indemnification, contribution, and/or apportionment is denied as premature.

American Iron contends that American Ornament's second cause of action for contractual indemnification must be dismissed because American Iron is presently providing American Ornamental with a defense and has complied with all of its contractual obligations owed to American Ornamental. As explained above, American Ornamental is entitled to conditional summary judgment as to contractual indemnification against American Iron, but only to the extent any damages against American Ornamental exceed American Iron's general commercial liability policy of $1 million. Accordingly, American Iron's cross-motion to dismiss American Ornamental's contractual indemnification claim is denied.

American Iron also cross-moves to dismiss American Ornamental's third cause of action for breach of contract on the ground that American Iron failed to procure contractually-mandated insurance naming American Iron as an additional insured. American Iron contends that this cause of action must be dismissed because it is providing American Ornamental with a defense in this action. American Ornamental does not dispute that American Iron has a general liability insurance policy with Hiscox, pursuant to which American Iron is providing American Ornamental with a defense in this action. But as American Ornamental states in opposition, its contract with American Iron required American Iron to name American Ornamental as an additional insured not only on its general commercial liability policy through Hiscox, but also on its excess liability policy, held through Axis Insurance. As American Iron has submitted neither contract it has failed to establish prima facie entitlement to summary judgment and its motion in this respect is denied.

Based on the foregoing, it is hereby

ORDERED that plaintiff's motion for summary judgment on his Labor Law §§ 240 (1) and 241 (6) claims (Motion #3) is DENIED; and it is further

ORDERED that Palombo's cross-motion (Motion #5) for summary judgment dismissing the complaint and all cross-claims asserted against it is GRANTED and the complaint and all cross-claims asserted by and against Palombo are DISMISSED; and it is further

ORDERED that cross-motions of Bast Hatfield (Motion #4), American Ornamental [*19](Motion #6), and American Iron (Motion #7) for summary judgment insofar as they seek dismissal of plaintiff's common law negligence and Labor Law § 200 causes of action are DENIED; and it is further

ORDERED that the cross-motions of Bast Hatfield's (Motion #4), American Ornamental (Motion #6), and American Iron (Motion #7) for summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims are DENIED; and it is further

ORDERED that Bast Hatfield's cross-motion (Motion #4) for summary judgment dismissing the common law indemnification and contribution cross-claims of American Ornamental and American Iron is GRANTED, IN PART, insofar as such claims are premised on plaintiff's Labor Law § 241 (6) claim, but otherwise DENIED as premature; and it is further

ORDERED that Bast Hatfield's cross-motion for summary judgment (Motion #4) for contractual indemnification against American Ornamental and American Iron is GRANTED CONDITIONALLY, as set forth herein; and it is further

ORDERED that Bast Hatfield's cross-motion for summary judgment (Motion #4) on its breach of contract claims is DENIED; and it is further

ORDERED that the cross-motion of American Ornamental (Motion #6) is GRANTED, insofar as it seeks conditional summary judgment for contractual indemnification against American Ornamental, as set forth herein, and GRANTED insofar as it seeks dismissal of Bast Hatfield's breach of contract cross-claim asserted against it; and its cross-motion is otherwise DENIED; and it is further

ORDERED that American Iron's cross-motion (Motion #7) insofar as it seeks dismissal of American Ornamental's third-party complaint is DENIED.

This constitutes the Decision and Order of the Court, the original of which is being uploaded to NYSCEF for electronic entry by the Albany County Clerk. Upon such entry, counsel for defendants shall promptly serve notice of entry on all other parties entitled to such notice.