This action arises from a personal injury accident at a construction site on a property located in Manhattan. Plaintiff, Robert Weyrauch, was working as an iron welder at the site, which is owned by defendant New York City School Construction Authority (NYCSCA). While working at the site, plaintiff needed to use a portable toilet. Plaintiff was working at street level and wanted to access a portable toilet on the basement level. Plaintiff noticed the top of a ladder sticking up from the space between the basement and street levels. Plaintiff decided to use the ladder to climb down to the basement level. Plaintiff tried to ascertain whether the ladder was sturdy by applying pressure to it. According to plaintiff, the lighting in the space was too dim to see the bottom of the ladder. Plaintiff did not see that the ladder was resting on a piece of rebar, not on the concrete floor beneath. As plaintiff began climbing down the ladder, plaintiff and the [*2]ladder fell. Plaintiff was injured.

In his complaint, plaintiff asserts Labor Law and common-law negligence claims against defendants City of New York, NYCSCA, and E.W. Howell, Co., LLC, the general contractor. Defendants then brought a third-party action against subcontractors JMR Concrete Corp. and Five Star Electric Corp. for contractual indemnification, common-law indemnification and contribution, and breach of contract.

On motion sequence 005, plaintiff moves for partial summary judgment in his favor. On motion sequences 006 and 008, defendants move for summary judgment to dismiss plaintiff's complaint. On motion sequence 010, Five Star moves for summary judgment to dismiss plaintiff's complaint and defendants' third-party complaint. On motion sequence 007, the City and NYCSCA move for summary judgment against JMR, Howell, and Five Star for total or partial contractual indemnification. On motion sequence 009, JMR moves for summary judgment to dismiss defendants' third-party complaint and Five Star's crossclaim.

The motions are consolidated for disposition. Each motion is granted in part and denied in part.

Plaintiff raises claims under Labor Law §§ 240 (1) and 241 (6). (NYSCEF No. 147 at 1.) On motion sequence 005, plaintiff moves for summary judgment on these claims as against the City, NYCSCA, and Howell. On motion sequence 006, the City and NYCSCA move for summary judgment dismissing the entire complaint. On motion sequence 008, E.W. Howell also moves for summary judgment dismissing the entire complaint.^[FN1]

Preliminarily, the City and NYCSCA argue that the City is not a proper Labor Law defendant, because it does not own the premises and is not a general contractor on the project. (NYSCEF No. 308 at 15 [NYCSCA]; NYSCEF No. 188 at 2 [City].) The City provides an affidavit from a senior insurance claims specialist, who represents that only NYCSCA was the owner of the premises and that the City did not supervise plaintiff's work. (NYSCEF No. 331 at 2.) Plaintiff does not dispute this representation. And it does not oppose the City's motion for summary judgment. (NYSCEF No. 271 at 1.) Summary judgment dismissing plaintiff's complaint against the City is granted.

Labor Law § 240 (1) provides that "[a]ll contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or [*3]structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor," ladders and "other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." To be liable under that provision, "the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries." (Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006].) No § 240 (1) liability arises when "the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident." (Gallagher v New York Post, 14 NY3d 83, 88 [2010].)

Plaintiff testified at his deposition that he was working on street level but that he needed to use a portable toilet, which was in the basement. (NYSCEF No. 150 at 55-56 [plaintiff's deposition testimony].) He testified that he was injured while attempting to descend a ladder to the basement floor. Plaintiff further testified that as he began his descent, the ladder "kicked out" from under him, and he fell on the rebar and concrete. (Id. at 90, 104-109.)

In opposition to plaintiff's motion, and in support of their own motions for summary judgment to dismiss the complaint, defendants argue that plaintiff's actions were the accident's sole proximate cause. Defendants contend that plaintiff's negligent use of the ladder was the sole proximate cause of the accident.

Defendants further provide deposition testimony from Joseph Barilla, Howell's senior project manager. Barilla stated that there was no need to use a ladder to access the portable toilets (NYSCEF No. 329 at 258) and that the ladder was not set up for workers to go up and down from street level to the basement (NYSCEF No. 256 at 261).

Defendants also rely on Howell's superintendent daily log notes, which state that "there was no reason to use the ladder when an entry door to the same location was" around 15 feet away.^[FN2] (NYSCEF No. 324 at 4.) Defendants also point to plaintiff's testimony, in which he said that he could have reached the portable toilets, or porta-potties, using a different route: "I could have went all the way back up and all the way over onto the other side of the job, and came all the way down again, but the ladder was there." (NYSCEF No. 206 at 83.) Additionally, plaintiff testified that he never saw that ladder before, never used that ladder before, and never saw anyone use the ladder. (NYSCEF No. 327 at 82. 85-86.)

Plaintiff still testified, however, that he saw no other way—aside from using the ladder—to reach the basement. (NYSCEF No. 343 at 68-69), and that he never had "conversations with anyone about using an alternate means of reaching the porta-potties in the basement." (Id. at 68.) Plaintiff argues that no one ever told him not to use the ladder.

The court concludes that defendants have not raised a triable issue of fact about whether plaintiff's actions were the sole proximate cause of his injury. Defendants offer no evidence that plaintiff was instructed not to use the ladder and ignored that instruction. (See O'Shea v Procida Constr. Corp., 220 AD3d 622, 624 [1st Dept 2023] [holding that defendants failed to raise a [*4]triable issue of fact about sole proximate cause when "[n]o evidence was offered to indicate that plaintiff knew of the other ladder or had been instructed to use that other ladder as opposed to the one he chose, and that he chose to ignore his employer's instructions"].) That plaintiff knew there was an alternative route to the portable toilets is insufficient to raise a triable issue of fact. (See Maltese v Port of Auth. of New York & New Jersey, 199 AD3d 612, 613 [1st Dept 2021] [holding that defendant failed to raise an issue of fact about sole proximate cause, even though evidence suggested "the availability of scaffolds and lifts," when evidence did not show "that plaintiff knew he was expected to use them but for no good reason chose not to do so"] [internal quotation marks omitted].) Nor does evidence that plaintiff acted negligently in using the ladder raise a triable issue of fact. (See Vitucci v Durst Pyramid LLC, 205 AD3d 441, 443 [1st Dept 2022] ["Disguised claims of comparative negligence do not make out a sole proximate cause defense on a plaintiff's motion for partial summary judgment on a section 240(1) claim."]; Fletcher v Brookfield Props., 145 AD3d 434, 434 [1st Dept 2016] "[[T]estimony that plaintiff unsafely descended from the ladder by carrying pipe fittings in his arms established, at most, contributory negligence, a defense inapplicable to a Labor Law § 240(1) claim."] [internal quotation marks omitted].)

The branch of plaintiff's motion for summary judgment on his § 240 (1) claim is granted. The branches of defendants' motions to dismiss this claim are denied.

To make out a Labor Law § 241 (6) claim, "a plaintiff must establish the violation of an Industrial Code provision that sets forth specific, applicable safety standards, and that his or her injuries were proximately caused by such Industrial Code violation." (Fuentes v 257 Toppings Path, LLC, 225 AD3d 746, 749 [2d Dept 2024].) As clarified by briefing on the current motions, plaintiff's § 241 (6) claim is premised on alleged violations of Industrial Code §§ 23-1.7 (f), 23-1.21 (b) (4) (ii) and (e) (3), and 23-1.30.

Plaintiff now seeks summary judgment on portions of his § 241 (6) claim: the portions based on §§ 23-1.1 (b) (4) (ii) and (e) (3), and 23-1.30. Defendants move for summary judgment dismissing the § 241 (6) claim in its entirety, arguing that no Industrial Code provisions apply. On defendants' motions, in addition to the provisions on which plaintiff is himself moving for summary judgment, plaintiff opposes dismissal of the portion of his claim based on § 23-1.7 (f).^[FN3]

1. 12 NYCRR 23-1.21 (b) (4) (ii) provides that "[a]ll ladder footings shall be firm. Slippery surfaces . . . shall not be used as ladder footings." 12 NYCRR 23-1.21 (e) (3) provides that "[s]tanding stepladders shall be used only on firm, level footings."

The evidence here shows that the bottom of the ladder rested on an "unsafe surface"—the rebar. (Rivera v Suydam 379 LLC, 216 AD3d 495, 496 [1st Dept 2023]; cf. Cordova v 653 [*5]Eleventh Ave. LLC., 190 AD3d 637 [1st Dept 2021] [finding there was no § 23-1.21 [b] [4] [ii] violation when "the ladder was not on a slippery surface but on asphalt, that it had appropriate rubber feet, and no unsecured objects were used as footings"].) Defendants argue that § 23-1.21 does not apply, because the ladder was not intended for use and was not a proper means for ingress or egress to the project. But defendants do not explain why the ladder's purpose is relevant to whether the ladder was resting on firm footing and a safe surface, as required by § 23-1.21 (b) (4) (ii) and (e) (3). And they have not shown that "the accident did not occur due to the ladder's placement on an uneven or slippery surface." (Thomas v North Country Family Health Ctr., Inc., 208 AD3d 962, 966 [4th Dept 2022].)

The branch of plaintiff's motion for summary judgment on his § 241 (6) claim predicated on § 23-1.21 (b) (4) (ii) and (e) (3) is granted. The branches of defendants' motions to dismiss plaintiff's § 241 (6) claim predicated on § 23-1.21 (b) (4) (ii) and (e) (3) are denied.

2. 12 NYCRR 23-1.30 provides that "[i]llumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction." According to plaintiff, the area in which he was working, and the area where the ladder was located, contained little light, because of the surrounding parapets blocking the light. (NYSCEF No. 149 at 102-104; NYSCEF No. 327 at 120-126.) Defendants note, however, that plaintiff also testified some natural light came in from over the parapets and that plaintiff could see his immediate surroundings. (NYSCEF No. 327 at 52-53 [plaintiff's testimony]; see Cruz v Metropolitan Tr. Auth., 193 AD3d 639, 639 [1st Dept 2021] [holding that no evidence established inadequate lighting when "plaintiff could see where he was walking"].) The court therefore concludes that an issue of fact exists about whether the lighting in and around where plaintiff was working was sufficient under § 23-1.30.

Defendants further contend that § 23-1.30 is inapplicable, because the accident took place in an area sectioned off from plaintiff's workspace—an area where plaintiff was not supposed to be. (See NYSCEF No. 308 at 18; NYSCEF No. 333 at 14.) But the court declines to award summary judgment to defendants on this ground. The only evidence that speaks to whether the area was sectioned off is the unauthenticated and inadmissible superintendent log. (See supra note 2; NYSCEF No. 324 at 4 [log].) Additionally, plaintiff also testified that he did not need to go over the parapets to access the ladder. (NYSCEF No. 255 at 125.)

The branch of plaintiff's motion for summary judgment on his § 241 (6) claim predicated on § 23-1.30 is denied. The branches of defendants' motions to dismiss plaintiff's § 241 (6) claim predicated on § 23-1.30 are denied.

3. 12 NYCRR 23-1.7 (f) provides that "[s]tairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided." It is unclear whether the ladder here offered "a means of access to different working levels." (Conklin v Triborough Bridge & Tunnel Auth., 49 AD3d 320, 321 [1st Dept 2008]; compare NYSCEF No. 255 at 84 [plaintiff's testimony "[t]hat the ladder was there for guys to get down and use the bathroom"] with NYSCEF No. 256 at 261 [Barilla's testimony that the ladder was not set up for workers to go up and down from street level to the basement].) At the same time, however, plaintiff does not dispute that there was another safe way to access the portable toilets. (See Channer v ABAX Inc., 169 AD3d 758, 760 [2d Dept 2019] [holding that § 23-1.7 (f) violation occurred when "plaintiff could have accessed the second floor of the building by using stairs"].)

The branches of defendants' motions to dismiss the plaintiff's § 241 (6) claim predicated on § 23-1.7 (f) are granted.

Defendants move to dismiss plaintiff's Labor Law § 200 and common-law negligence claims. Labor Law § 200 codifies the common-law negligence standard and imposes "a duty upon an owner or general contractor to provide construction site workers with a safe place to work." (Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 272 [1st Dept 2007].) It "applies only to owners and contractors who actually exercise control or supervision over the work and had actual or constructive notice of the unsafe condition." (Id.)

1. Liability may be predicated on the means and methods of the work. If "the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work." (Castro v Brito, 2025 NY Slip Op 01040, *2 [1st Dept 2025] [emphasis added].)

In support of this branch of its motion, NYCSCA submits an affidavit from its risk manager. The risk manager represents that "NYCSCA did not direct, supervise, or control Plaintiff's work or the mean and methods of Plaintiff's work as an Ironworker with JC Steel." ^[FN4] (NYSCEF No. 211 at 3.) In addition, both defendants point to plaintiff's testimony that he received all his instructions from, and was directed by, JC Steel's foreman, Stevey Mok. (NYSCEF No. 254 at 73].) Plaintiff also testified that he had no interactions with anyone from NYCSCA when he worked at the project. (Id. at 74.) He further testified that he never interacted "with anybody that identified themselves of being an employee of EW Howell." (Id. at 75.)

In response, plaintiff argues that Howell and NYCSCA's agreement and Barilla's testimony show that defendant had authority (and were obligated) to supervise compliance with the injury-producing work, i.e., inadequate lighting, removal of parapets, and improperly placed and unsecured ladders. (NYSCEF No. 197 at 14 [Howell-NYCSCA agreement]; NYSCEF No. 177 at 95-99 [Barilla EBT testimony].) But that evidence is insufficient to raise an issue of fact about whether NYSCA actually exercised control or supervisory authority over plaintiff when he was working. (Cf. Giovengo v P&L Mech., 286 AD2d 306, 306 [1st Dept 2001] [holding that a triable issue of fact about Labor Law § 200 liability existed in light of testimony that "owners directed [defendant] where to place the piping in the building once it was delivered"].)

2. When an accident results from "a defective premises condition, rather than the method or manner in which work was performed, liability depends on whether the owner or contractor created or had actual or constructive notice of the hazardous condition." (Balbuena v 395 Hudson New York, LLC, 214 AD3d 586, 587 [1st Dept 2023].) With respect to constructive notice, "the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." (Eksarko v Associated Supermarket, 155 AD3d 826, 827 [2d Dept 2017].)

NYCSCA argues that the ladder "was not positioned in a manner intended for use" and that plaintiff intentionally left his work area to access the ladder. (NYSCEF No. 188 at 6 [emphasis omitted.) Howell argues that plaintiff's injuries did not result from a dangerous condition, but rather from plaintiff's decision to climb down a ladder that was a reasonably observable hazard. (NYSCEF No. 244 at 6.)

Neither defendant, however, provides evidence showing the absence of actual and constructive notice of the hazardous condition. They submit no schedules or evidence of inspections on the project—whether with respect to the lighting, ladders on the premises, or the areas around or near plaintiff's workspace on the day of the accident. (See Pereira v New Sch., 148 AD3d 410, 412-413 [1st Dept 2017] ["[D]efendants failed to establish that they lacked constructive notice of the dangerous condition that caused plaintiff's injury, since they submitted no evidence of the cleaning schedule for the work site or when the site had last been inspected before the accident."].) Moreover, their allegation that the area was sectioned off and that plaintiff should not have entered that area is insufficient to demonstrate that they did not know of the conditions on cordoned-off sections of the premises. Defendants have therefore not made out a prima facie case for summary judgment dismissing the Labor Law 200 and common-law negligence claim predicated on a hazardous condition.

The branches of defendants' motions (mot seqs 006 and 008) to dismiss plaintiff's Labor Law § 200 and common-law negligence claim are granted to the extent it is predicated on the means-and-methods theory and denied to the extent it is predicated on the constructive-notice theory.

On motion sequence 010, third-party Five Star moves for summary judgment dismissing plaintiff's complaint against the City, NYCSCA, and Howell and for summary judgment dismissing those defendants' third-party complaint against it. The City and NYCSCA oppose the motion as untimely. (See NYSCEF No. 383 at 2.) Five Star filed this motion more than two months after the dispositive-motion deadline in this action. Five Star acknowledges its tardiness—citing "an exceptional number of associate departures." (NYSCEF No. 410 at ¶ 4) It argues that the court should consider its motion, because it is based on "nearly identical grounds to those of other defending parties moving for summary judgment dismissing the Plaintiff's Complaint against them." (Id. at ¶ 5.)

The court agrees that the part of Five Star's motion for summary judgment to dismiss plaintiff's complaint is nearly identical to the City, NYCSCA, and Howell's motions (mot seqs 006 and 008). But Five Star also seeks relief dismissing the third-party complaint—relief not sought in those defendants' motions. Accordingly, the court has considered Five Star's arguments for summary judgment dismissing the complaint (see supra note 1) and declines to consider its arguments for dismissing the third-party complaint. ^[FN5] (See Whitehead v City of New York, 79 [*6]AD3d 858, 860-861 [2d Dept 2010] [holding that branch of untimely cross-motion for summary judgment on third-party claim for common-law identification was not based on nearly identical grounds to the timely motion, which concerned Labor Law § 240, and was therefore properly denied].)

On motion sequence 007, the City and NYCSCA move for summary judgment against JMR, Howell, and Five Star on their claim for total or partial contractual indemnification and for reimbursement of attorney fees. (NYSCEF No. 213 [notice of motion].) To be entitled to such relief, "the one seeking indemnity need only establish that it was free from any negligence and [may be] held liable solely by virtue of . . . statutory [or vicarious] liability." (Spielmann v 170 Broadway NYC LP, 187 AD3d 492, 494 [1st Dept 2020].) To make out their prima facie case, the City and NYCSCA cite contractual-indemnification provisions in the respective agreements between Howell and JMR (NYSCEF No. 225 at ¶ 16.1) and Howell and NYCSCA (NYSCEF No. 224 at 72).

1. The City and NYSCA seek summary judgment on their contractual-indemnification claim against JMR. JMR argues that an issue of facts exists about whether NYCSCA and the City were negligent. JMR points to a contract provision in its agreement with Howell that provides that NYCSCA has the right to inspect the methods of construction and is the "final judge of the quality and suitability of the work, materials, processes of manufacture and methods of construction." (NYSCEF No. 225 at ¶ 6.1 [JMR subcontract with Howell].) JMR refers to Barilla's testimony that "SCA safety people" would come "once a week." (NYSCEF No. 238 at 195-196). JMR therefore argues that NYCSCA should have been aware of insufficient lighting, whether Five Star was improperly storing equipment, and whether Howell was removing the parapet walls each day.

The court agrees that JMR raises an issue of fact about whether NYCSCA had notice of the conditions on the premises. (See York v Tappan Zee Constructors, LLC, 224 AD3d 527, 529 [1st Dept 2024] [denying summary judgment on contractual-indemnification claim when there were issues of fact about "whether TZC had notice of the icy condition or the lighting condition on the barges and could have remedied the conditions"].) The branch of the City and NYCSCA's motion for summary judgment indemnifying NYCSCA is denied.

The branch of City and NYCSCA's summary-judgment motion indemnifying the City is denied as well. According to the subcontract between Howell and JMR, whether the City is entitled to indemnification depends on whether NYCSCA and/or Howell negligently caused plaintiff's injury. (NYSCEF No. 225 at ¶ 16.1 [subcontractor must indemnify owner and contractor, "but only to the extent that such claim, damage or loss is not caused by the negligence of the Owner and/or Contractor"].)

2. The City and NYCSCA seek summary judgment on their contractual-indemnification claim against Howell. Howell argues that that NYCSCA's motion should be denied as academic or premature, because Howell's primary insurer agreed to assume the defense and indemnity of NYCSCA. (See NYSCEF No. 224 at 76.) On reply, the City and NYCSCA concede that the Howell's primary insurer assumed the defense. and indemnification of NYCSCA, but contends that the motion is not moot, because they "are also entitled to indemnity above the primary layer of insurance coverage being afforded by HOWELL by HOWELL's excess insurers." (NYSCEF [*7]No. 382 at 6.)

The court agrees that the motion is academic to the extent that the contractual-indemnification claim asserted by NYCSCA pertains to primary coverage. On the other hand, conditional summary judgment is granted to the extent that NYCSCA's claim pertains to indemnity coverage in excess of Howell's primary coverage.

Additionally, summary judgment is granted with respect to the City's claim for contractual indemnification. Howell agreed to defend and indemnify the City. (NYSCEF No. 224 at 72.) But Howell's insurer agreed to defend and indemnify only NYCSCA, not the City. (See id. at 76.) Accordingly, this branch of the motion is granted.

3. The City and NYCSCA further seek summary judgment on their contractual-indemnification claim against Five Star. Five Star argues, however, that NYCSCA has not made out a prima facie case for contractual indemnification. According to Five Star, NYCSCA relies on an indemnity provision in Five Star's subcontract with Howell but attaches a version of the subcontract that does not contain the indemnity provision. The court agrees with Five Star that NYCSCA has not made out its prima facie case. In any event, on reply, the City and NYCSCA abandons this claim as against Five Star. (See NYSCEF No. 382 at 2.) This branch of the motion for summary judgment is denied.

On motion sequence 009, JMR moves for summary judgment dismissing (i) the City, NYCSCA, and Howell's third-party claim for common-law indemnity; contribution; contractual indemnity; and breach of agreement to procure liability insurance (see NYSCEF No. 166 at 12-15 [third-party complaint]) and (ii) Five Star's crossclaim for indemnification and contribution (see NYSCEF No. 167 at 14-15 [Five Star's third-party answer]). The motion is granted in part and denied in part.

On a claim for common-law indemnification, the proposed indemnitor "must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident for which the indemnitee was held liable to the injured party by virtue of some obligation imposed by law." (Correia v Professional Data Mgt., Inc., 259 AD2d 60, 65 [1st Dept 1999].)

JMR argues that it was not negligent. It points to testimony from Barilla who said that it looked like the rebar was properly installed. (NYSCEF No. 177 at 243-244.) JMR says that the contribution claim also fails, because it owed no duty to plaintiff or third-party plaintiffs to secure the ladder, light the workspace, or provide access to the workspace. (NYSCEF No. 163 at 5.)

Howell, NYCSCA, and the City ^[FN6] argue that JMR has not absolved itself from liability, because the ladder was resting on rebar installed by JMR and therefore that JMR created the [*8]dangerous condition, at least in part. (NYSCEF No. 370 at 2; NYSCEF No. 280 at 17.) The court agrees with JMR. Even assuming that the rebar formed part of dangerous condition on the premises, the City and NYCSCA raise no issue fact about whether JMR, the proposed indemnitor, negligently installed or placed the rebar in that location.

The branch of JMR's motion for summary judgment dismissing the common-law indemnification and contribution claims is granted.

Entitlement to contractual indemnification "depends upon the specific language of the contract." (Trawally v City of New York, 137 AD3d 492, 492-493 [1st Dept 2016].) The contractual indemnification provision here provides that "[t]o the maximum extent permitted by law, [JMR] hereby assumes entire responsibility and liability (which includes the indemnification of Contractor and all indemnities) for any and all damages and expenses or injury of any kind or nature whatsoever . . . arising out of, or in any way occurring direct or indirectly or in any manner connected with [JMR's] Work." (NYSCEF No. 291 at ¶ 16.1 [emphasis added].)

JMR argues that defendants must, but cannot, "show that the subject incident was caused by, result[ed] from, ar[ose] out of, or occurred directly or indirectly due to JMR's work." (NYSCEF No. 163 at 6.) Defendants argue that because the accident involved a ladder placed on the rebar JMR installed, the accident relates to, or is connected with JMR's work, and JMR must indemnify them. (See NYSCEF No. 370 at 7 [Howell's memo.)

The court agrees with defendants that JMR's work in installing the rebar is connected to the accident, even if JMR is not at fault for causing the accident. (See Pope v Supreme-K.R.W. Const. Corp., 261 AD2d 523, 525 [2d Dept 1999] [holding that summary judgment on the contractual-indemnification claim was improperly denied when "the plain and unambiguous terms of the contract [did] not condition Dynamic's duty to defend and indemnify K.R.W. and Supreme on findings that Dynamic was negligent and that such negligence was a proximate cause of the injuries at issue"].) JMR is therefore subject to the indemnification provision based on the language in that provision.

The question, then, is whether JMR has established that Howell or NYCSCA's negligence caused the accident, such that defendants and Five Star may not be indemnified. (See NYSCEF No. 291 at ¶ 16.1 [Howell-JMR agreement].) At this juncture, whether Howell or NYCSCA was negligent, and whether their negligence caused plaintiff's injury, is unclear. A triable issue of fact about proximate cause remains.

The branch of the motion for summary judgment dismissing the contractual-indemnification claim is denied. Summary judgment is conditionally granted to the nonmoving parties if Howell and NYCSCA are not found at fault for plaintiff's accident.

The City, NYCSCA, and Howell assert a breach-of-contract claim against JMR for failure to procure insurance. JMR argues that the claim should be dismissed because JMR procured the required insurance: a commercial general-liability policy, an excess-liability policy, and another excess-liability policy. (See NYSCEF Nos. 184, 185.) Defendants do not oppose [*9]dismissal. The branch of JMR's summary-judgment motion to dismiss the breach-of-contract claim for failure to procure insurance is granted.

Accordingly, it is

ORDERED that the branch of the City and NYCSCA motion for summary judgment dismissing the complaint against the City (mot seq 006) is granted; and the City is dismissed from the action; and it is further

ORDERED that the branch of plaintiff's motion for summary judgment on his § 240 (1) claim (mot seq 005) against NYCSCA and Howell is granted; and it is further

ORDERED that the branches of the City, NYCSCA, Howell, and Five Star's motions for summary judgment to dismiss plaintiff's § 240 (1) claim (mot seqs 006, 008, and 010) is denied; and it is further

ORDERED that the branch of plaintiff's motion for summary judgment on his § 241 (6) claim predicated on Industrial Code § 23-1.21 (b) (4) and (e) (3) (mot seq 005) is granted; and it is further

ORDERED that the branches of the City, NYCSCA, Howell, and Five Star's motions for summary judgment to dismiss plaintiff's § 241 (6) claim predicated on § 23-1.21 (b) (4) and (e) (3) (mot seqs 006, 008, and 010) is denied; and it is further

ORDERED that the branch of plaintiff's motion for summary judgment on his § 241 (6) claim predicated on Industrial Code § 23-1.30 (mot seq 005) is denied; and it is further

ORDERED that the branches of the City, NYCSCA, Howell, and Five Star's motions for summary judgment dismissing the § 241 (6) claim predicated on Industrial Code § 23-1.30 (mot seqs 006, 008, and 010) is denied; and it is further

ORDERED that the branches of the City, NYCSCA, Howell, and Five Star's motions for summary judgment dismissing plaintiff's § 241 (6) claim predicated on Industrial Code s 23-1.7 (f) (mot seqs 006, 008, and 010) is granted; and it is further

ORDERED that the branches of the City, NYCSCA, Howell, and Five Star's motions to dismiss plaintiff's Labor Law § 200 and common-law negligence claim (mot seqs 006, 008, and 010) are granted to the extent they are predicated on the means and methods theory and denied to the extent they are predicated on the constructive notice theory; and it is further

ORDERED the branch of Five Star's motion for summary judgment dismissing the third-party complaint (mot seq 010) is denied; and it is further

ORDERED that the branch of the City and NYCSCA's motion for summary judgment on their contractual-indemnification claim against JMR (mot seq 007) is denied; and it is further

ORDERED that the branch of the City and NYCSA's motion for summary judgment on their contractual-indemnification claim against Howell (mot seq 007) is granted to the extent that Howell's primary policy is exceeded and to the extent that Howell must indemnify the City; and it is further

ORDERED that the branch of the City and NYCSCA's motion for summary judgment on their contractual-indemnification claim against Five Star (mot seq 007) is denied; and it is further

ORDERED that the branch of JMR's motion for summary judgment dismissing the City, NYCSCA, and Howell's third-party claim for common-law indemnification and Five Star's crossclaim for indemnification and contribution (mot seq 009) is granted; and it is further

ORDERED that the branch of JMR's motion for summary judgment dismissing the City, NYCSCA, and Howell's third-party claim for contractual indemnification (mot seq 009) is [*10]denied; and summary judgment is conditionally granted to the City, NYCSCA, and Howell if Howell and NYCSCA are found to be not at fault for plaintiff's accident; and it is further

ORDERED that the branch of JMR's motion for summary judgment dismissing the City, NYCSCA, and Howell's third-party claim for breach of contract (mot seq 009) is granted; and it is further

ORDERED that plaintiff shall serve a copy of this order with notice of its entry on all parties; and shall serve notice of entry on the office of the County Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nycourts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly; and it is further

ORDERED that the parties appear for a telephonic status conference on April 30, 2025.