Plaintiff Hilario Alejandro Cerecedo moves pursuant to CPLR 3212 for partial summary judgment as to liability on his Labor Law 240 (1) claim against property owner, defendant/third-party plaintiff/third third-party plaintiff/fourth third-party plaintiff Hellenic Orthodox Community of Astoria St. Demetrios, Inc. ("Hellenic") (Mot. Seq. 005).

Hellenic moves pursuant to CPLR 3212 for summary judgment (1) dismissing plaintiff's claims under Labor Law 200 and for common law negligence; (2) for summary judgment on its contractual and common law indemnification claims asserted against plumbing sub-contractor, third-party defendant/second third-party plaintiff Master Plumbing & Heating, Inc. ("Master Plumbing"), plaintiff's employer and plumbing sub-sub-contractor, second third-party defendant/fourth third-party defendant Master East Maintenance Inc. ("Master East"), and third third-party defendant-contractor Omega Construction Management, LLC ("Omega")^[FN1] ; and (3) for summary judgment dismissing all cross- and counterclaims asserted against it (Mot. Seq. 003).

Third-party defendant/second third-party plaintiff-subcontractor Master Plumbing moves for summary judgment on its contractual indemnification and breach of contract claims asserted against Master East (Mot. Seq. 004).

Motion sequences 003, 004, and 005 are consolidated for disposition herein.

Plaintiff commenced this action on October 9, 2017, asserting claims for common law negligence and violations of Labor law §§ 200, 240(1), and 241(6). The claims arise out of injuries plaintiff allegedly sustained on August 11, 2017, while working on the renovation of a school owned by Hellenic, located in Astoria, New York.

At the time of the accident, plaintiff, a plumber, was standing on an old, 8-foot A-frame ladder, connecting pipes. The ladder, which lacked feet, started moving and plaintiff fell to the ground, sustaining injuries. A 10-foot ladder with feet was available at the job site, but it was too tall and big to use in the room where plaintiff was working.

A party seeking summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (id.). Summary judgment is a drastic remedy and must be denied if there is any doubt as to the existence of a triable issue of material fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).

Plaintiff does not oppose Hellenic's motion seeking dismissal of his Labor Law § 200 claim and common law negligence claims. Therefore, those claims as directed to Hellenic are dismissed as abandoned (see Gamez v Sandy Clarkson LLC, 221 AD3d 453, 454-455 [1st Dept 2023]; Martin Assoc., Inc. v Illinois Natl. Ins. Co., 188 AD3d 572, 573 [1st Dept 2020]; Saidin v Negron, 136 AD3d 458, 459 [2016], lv dismissed 28 NY3d 1069 [2016], cert denied 583 US 842 [2017]).

Labor Law § 240(1) provides in relevant part that where a building is being erected, demolished, repaired, or altered, contractors and owners "shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." "The statute imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). "[W]here an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense; however, where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability" (id. [internal quotation marks omitted]). "Thus, in order to recover under section 240 (1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury" (id.). Labor Law § 240(1) is to be liberally construed so as to accomplish its legislative purpose of protecting workers (Stoneham v Joseph Barsuk, Inc., 41 NY3d 217, 221 [2023]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

"Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). "[L]iability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (id., citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

"To raise a triable issue of fact as to whether plaintiff was the sole proximate cause of an accident, the defendant must produce evidence that adequate safety devices were available, that the plaintiff knew they were available and was expected to use them, and that the plaintiff unreasonably chose not to do so, causing the injury sustained" (Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d 402, 402-03 [1st Dept 2013]; see Biaca-Neto v Boston Road II Housing Dev. Fund Corp., 34 NY3d 1166, 1167-1168 [2020]).

Plaintiff has met his prima facie burden as to liability under Labor Law § 240(1). In opposition, Hellenic fails to raise a triable issue of fact, including as to whether plaintiff was the sole proximate cause of his injuries or was a recalcitrant worker. Hellenic's contention that plaintiff's coworkers were supposed to hold the ladder is legally unavailing (Iuculano v City of New York, 214 AD3d 535, 536 [1st Dept 2023]["people are not safety devices within the meaning of Labor Law § 240 (1)"]). Moreover, plaintiff's decision to use the 8-foot ladder was not the sole proximate cause of his injuries in light of his unrebutted testimony that the 10-foot ladder could not fit in the classroom where he fell.

Plaintiff is accordingly entitled to summary judgment as to liability on his Labor Law § [*2]240(1) claim.

Hellenic seeks contractual and/or common law indemnification against Master Plumbing and Master East, and common law indemnification against Omega. Master Plumbing seeks contractual and/or common law indemnification against Master East.

"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., Inc., 70 NY2d 774, 777 [1987] [citation omitted]). "The right to contractual indemnification depends upon the specific language of the contract" (DiBrino v Rockefeller Ctr. N., Inc., 230 AD3d 127, 136 [1st Dept 2024] [citation omitted]).

"To be entitled to common-law indemnification, a party must show (1) that it has been held vicariously liable without proof of any negligence or actual supervision on its part; and (2) that the proposed indemnitor was either negligent or exercised actual supervision or control over the injury-producing work" (Naughton v City of New York, 94 AD3d 1, 10 [1st Dept 2012]).

Hellenic contends that it is entitled to contractual indemnification under its contract with Master Plumbing (NYSCEF Doc. 117 [Hellenic-Master Plumbing Contract]), and as a third-party beneficiary of the contract between Master East and Master Plumbing (NYSCEF Doc. 121 [Master Plumbing-Master East Contract]).

The indemnification provision in each contract provides that the subcontractor shall indemnify the owner for bodily injuries "arising out of or resulting from the Work covered by this Contract Agreement" to the extent the work was performed by the subcontractor or its agents (Hellenic-Master Plumbing Contract § 1; Master Plumbing-Master East Contract § 1). However, because neither indemnification provision describes or defines the "Work," they are both too vague to support summary judgment on Hellenic's contractual indemnification claim. Master Plumbing's summary judgment motion on its contractual indemnification provision is denied for the same reason.

The record shows that plaintiff operated under the supervision and control of Master Plumbing, and that Hellenic did not exercise supervision or control over plaintiff's work. Therefore, Hellenic is entitled to common law indemnification as against Master Plumbing.

As plaintiff has not alleged or established that he suffered a grave injury, Hellenic is not entitled to common law indemnification as against plaintiff's employer, Master East (see Workers' Compensation Law § 11; Cooper v Bldg 7th St. LLC, 231 AD3d 533, 534 [1st Dept 2024]).

As to the common law indemnification claim against Omega, there is no evidence that Omega exercised supervisory control over plaintiff and the ownership of the ladder is in dispute. Thus, summary judgment on such claim against Omega is precluded.

Master Plumbing seeks summary judgment on its breach of contract claim against Master East. "A party moving for summary judgment on its claim for failure to procure insurance meets its prima facie burden by establishing that a contract provision requiring the procurement of insurance was not complied with" (Benedetto v Hyatt Corp., 203 AD3d 505, 506 [1st Dept [*3]2022]). "The burden then shifts to the opposing party, who may raise an issue of fact by tendering the procured insurance policy in opposition to the motion" (id.). "[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 559-560 [2014]).

Master Plumbing has met its prima facie burden by submitting the contract requiring Master East to procure insurance to protect Master Plumbing for claims arising out of or resulting from Master East's "Work" (Master Plumbing-Master East Contract § 2). Master East has raised a triable issue of fact by providing its insurance policy for the relevant period (NYSCEF Doc. 159). Therefore, Master Plumbing is not entitled to summary judgment on its breach of contract claim against Master East.

Hellenic seeks dismissal of cross- and counterclaims for contractual and common law indemnification and contribution asserted by Omega. Omega does not oppose dismissal and such claims are therefore dismissed (Gamez, 221 AD3d at 454-455).

Accordingly, it is hereby

ORDERED that the motion by plaintiff Hilario Alejandro Cerecedo for summary judgment as to liability on his claim under Labor Law § 240(1) is GRANTED (Seq. No. 005); and it is further

ORDERED that the motion by defendant/third-party plaintiff/third third-party plaintiff/fourth third-party plaintiff Hellenic Orthodox Community of Astoria St. Demetrios, Inc. for summary judgment (Seq. No. 003) is GRANTED IN PART to the extent that (1) summary judgment dismissing plaintiff's claims against Hellenic for common law negligence and under Labor Law § 200, and all cross- and counterclaims asserted against Hellenic, is GRANTED and those claims are DISMISSED; (2) summary judgment on Hellenic's common law indemnification claim asserted against third-party defendant/second third-party plaintiff Master Plumbing & Heating, Inc. is GRANTED; and (3) summary judgment on Hellenic's remaining contractual indemnification and common law indemnification claims is DENIED; and it is further

ORDERED that the motion by third-party defendant/second third-party plaintiff by Master Plumbing & Heating, Inc. for summary judgment on its contractual indemnification and breach of contract claims asserted against Master East Maintenance, Inc. is DENIED (Mot. Seq. 004); and it is further

ORDERED that all parties shall appear for a pre-trial conference to be calendared by the Clerk of the Court.

This constitutes the decision and order of the Court.