The following e-filed documents, listed by NYSCEF document number (Motion 005) 129-151, 178, 181-185 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 152-173, 179, 180, 186 were read on this motion to/for JUDGMENT - SUMMARY.

Plaintiff Onofre Morales moves for partial summary judgment as to liability under Labor Law § 240(1) against defendant/third-party plaintiff/second third-party plaintiff Tri-State Contracting Group Corp. ("Tri-State") and defendant/second third-party defendant The Bronx Lebanon Hospital Center s/h/a The Lebanon Hospital Association of the City of New York ("Bronx Lebanon") (mot. Seq. 006). Tri-State and Bronx Lebanon separately oppose the motion.

Bronx Lebanon moves for summary judgment (1) dismissing plaintiff's Labor Law § 200 and common law negligence claims asserted against it, and (2) in its favor on its common law indemnification cross-claim against Tri-State (mot. seq. 005). Tri-State opposes only that part of the motion directed to the common law indemnification claim asserted against it; plaintiff does not oppose the motion.

On March 30, 2017, plaintiff was working at a construction project at Bronx Lebanon Hospital at 1650 Grand Concourse, Bronx, New York. Plaintiff was employed by third-party defendant sub-contractor C.M.C. Home Improvement Inc., which was retained by general contractor Tri-State; Bronx Lebanon owned the premises. At the time of the accident, plaintiff was performing caulking and tiling work on the ceiling of a hallway while standing on a six-foot A-frame ladder. As plaintiff descended the ladder, the ladder suddenly moved to the left, causing him to fall several feet to the ground.

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]).

Labor Law § 240 (1) provides in relevant part that where a building is being erected, 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 [*2]omitted]; see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). "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. [citation omitted]). Labor Law § 240 (1) is to be liberally construed so as to accomplish its legislative purpose of protecting workers (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

"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), and Tri-State and Bronx Lebanon have failed to raise an issue of fact sufficient to overcome summary judgment.

Because plaintiff does not oppose dismissal of his claims for violation of Labor Law § 200 and for common law negligence, those claims 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 [1st Dept 2016], lv dismissed 28 NY3d 1069 [2016], cert denied 583 US 842 [2017]).

"To establish a claim for common-law indemnification, 'the one seeking indemnity 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'" (Pena v Intergate Manhattan LLC, 194 AD3d 576, 578 [1st Dept 2021] [citation omitted]; see also Naughton v City of New York, 94 AD3d 1, 10 [1st Dept 2012]).

Bronx Lebanon argues that since there is no evidence of its negligence, and because Tri-State actively supervised, managed, and controlled the means and methods of the work, Bronx Lebanon is entitled to common-law indemnification (Memo of Law in Supp., p. 13 [NYSCEF Doc. 132]).

In opposition, Tri-State argues that (1) the Court's prior order dated July 27, 2021 (Suarez, J.), finding that Tri-State met its prima facie burden for dismissal of plaintiff's Labor Law § 200 and common-law negligence claims (7/27/21 Order [NYSCEF Doc. 59]), precludes Bronx Lebanon's common-law indemnification claim; and (2) Bronx Lebanon offers no evidence of Tri-State's negligence (Aff. in Opp. [NYSCEF Doc. 178]).

Bronx Lebanon argues in reply that the Court's finding of no negligence by Tri-State preceded consolidation and Bronx Lebanon's participation in this action, and that it is not bound by such a finding by collateral estoppel or res judicata (Aff. in Reply ¶¶ 5-13 [NYSCEF Doc. No. 183]).

The Court rejects Tri-State's issue preclusion argument, which is essentially based on law of the case. Bronx Lebanon was then a non-party and did not have a full and fair opportunity to litigate the determination or to appeal the decision (see People v Evans, 94 NY2d 499, 502 [*3][2000]; 47 E. 34th St. (NY) L.P. v BridgeStreet Worldwide, Inc., 219 AD3d 1196, 1201 [1st Dept 2023]). Notwithstanding, Bronx Lebanon has put forth no evidence of Tri-State's negligence, precluding summary judgment on its common-law indemnification claim (see Dejesus v Downtown Re Holdings LLC, 217 AD3d 524, 526 [1st Dept 2023]; Balcazar v Commet 380, Inc., 199 AD3d 403, 404 [1st Dept 2021]). Accordingly, it is

ORDERED that the motion by plaintiff for partial summary judgment as to liability under Labor Law § 240(1) against defendant/third-party plaintiff/second third-party plaintiff Tri-State Contracting Group Corp. and defendant/second third-party defendant The Bronx Lebanon Hospital Center s/h/a The Lebanon Hospital Association of the City of New York is GRANTED (mot. seq. 006); and it is further

ORDERED that the motion by The Bronx Lebanon Hospital Center s/h/a The Lebanon Hospital Association of the City of New York for summary judgment is GRANTED IN PART such that (1) that part of the motion seeking dismissal of plaintiff's Labor Law § 200 and common law negligence claims asserted against it is GRANTED without opposition, and (2) that part of the motion seeking summary judgment in its favor on its common-law indemnification cross-claim asserted against Tri-State Contracting Group Corp. is DENIED; 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.