Defendants/third-party plaintiffs 627 Greenwich Owner, LLC ("627 Greenwich"), 90 Morton Owner, LLC ("90 Morton"), and BCRE Services, LLC ("BCRE") move for summary judgment dismissing plaintiff's claims for violation of Labor Law §§ 200, 240 (1)-(3), and 241 (6) and for common law negligence; and for summary judgment on their third-party claims asserted against third-party defendant A. Eagles Inc. ("A. Eagles") for contractual and common law indemnification, breach of contract for failure to procure insurance, and contribution (motion seq. 004).

Third-party defendant A. Eagles moves for summary judgment dismissing plaintiff's claims in the main action, as well as the third-party claims for contractual and common law indemnification and contribution asserted against it (motion seq. 005).^[FN1] Defendants/third-party plaintiffs join that part of A. Eagles' motion seeking to dismiss plaintiff's claims, but, in the event any of plaintiff's claims are sustained, partially oppose that part of the motion seeking dismissal of their third-party claims asserted against A. Eagles.

Plaintiff opposes both motions, insofar as they seek dismissal of his complaint, and takes no position as to the third-party claims asserted against A. Eagles.

Motion sequence numbers 004 and 005 are consolidated for disposition herein.

According to plaintiff, on January 22, 2018, he was performing demolition work at a project located at 627 Greenwich Street, New York, New York. Plaintiff was employed by [*2]subcontractor A. Eagles, which was retained by general contractor BCRE to perform carpentry work at the jobsite. There is conflicting evidence as to whether 627 Greenwich or 90 Morton owned the property, but it is clear the two entities are affiliates (Response to Notice to Admit [NYSCEF Doc. 101]; Resheff EBT Tr. at 20:19-24, 35:21-24 [NYSCEF Doc. 175]; Holzmann EBT Tr. at 8:11-13:25 [NYSCEF Doc. 176]).

Plaintiff was performing demolition work on the second floor of the premises at the time of the accident (Pl's 6/7/21 EBT Tr. at 50-51, 55 [NYSCEF Doc. 173]). Plaintiff's supervisor, David, instructed plaintiff to remove the plywood covering the windows, which started four feet from ground level and extended to the 10-foot-high ceiling (id. at 47, 60-63). The window in question was covered by several pieces of plywood attached by screws to metal surrounding the window (id. at 63-64, 86-87). Plaintiff removed the screws from one sheet of plywood before removing that sheet from the window (id. at 85-87). He was in the process of removing the middle sheet of plywood while standing on the ground, when the last sheet fell on his left foot (id. at 97-103).

In the amended complaint, plaintiff asserts claims for violations of Labor Law §§ 200, 240(1)-(3), and 241(6), and for common law negligence, against the owner and general contractor. Defendants assert third-party claims for contractual indemnification, common law indemnification, contribution, and breach of contract for failure to procure insurance.

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]).

Defendants/third-party plaintiffs seek dismissal of plaintiff's claims for violation of Labor Law § 200 and common law negligence on the grounds that they did not exercise supervisory control over plaintiff's work, and there was no dangerous condition that caused plaintiff's injuries. Plaintiff argues in opposition that the plywood was a dangerous condition of which defendants had constructive notice. Plaintiff further argues that BRCE exercised supervisory control over the work, since its site superintendent had the authority to stop work and to supervise subcontractors. In reply, defendants argue that the evidence shows A. Eagles supervised its own employees' work, and that defendants did not have the authority to stop the subcontractors' work.

Section 200 (1) "codifies the common law duty to maintain a safe workplace, but to recover under this provision, a plaintiff must show that an owner or general contractor exercised some supervisory control over the operation" (Toussaint v Port Authority of New York and New Jersey, 38 NY3d 89, 94 [2022]). "Claims for personal injury under the statute and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition [*3]existing on the premises and those arising from the manner in which the work was performed" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-44 [1st Dept 2012]). "Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it" (id. at 144). "Where 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 control over the injury-producing work" (id.).

While the mere retention of the contractual privilege to override hazardous means and method of the work is insufficient to infer actual supervisory control (Lourenco v City of New York, 228 AD3d 577, 583 [1st Dept 2024]), issues of fact exist here as to whether BCRE actually exercised supervisory control over the work so as to be liable for the means and methods of A. Eagles' work (Sandoval-Morales v 164-20 N. Blvd., LLC, 231 AD3d 501, 503 [1st Dept 2024]). Plaintiff has failed to identify a dangerous condition existing at the premises that caused his injury, and has not met his burden as to 627 Greenwich or 90 Morton.

Accordingly, that part of the motion by defendants/third-party plaintiffs for summary judgment dismissing plaintiff's claims for violation of Labor Law § 200 and common law negligence is granted as those claims are directed to 627 Greenwich and 90 Morton, and denied as directed to BCRE under a means and methods theory.

Defendants/third-party plaintiffs seek summary judgment dismissing plaintiff's Labor Law § 240 (1) claim. They argue that the falling plywood was not an injury contemplated by the statute, as no safety device would have prevented plaintiff's injury. Plaintiff argues that defendants have not met their burden of showing that an appropriate safety device was available and that plaintiff failed to use it.

Labor Law § 240 (1) provides in relevant part that where there is demolition, repairing or altering of a building, 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 [*4]NY2d 494, 501 [1993]).

"In the context of falling objects, the risk to be guarded against is the unchecked or insufficiently checked descent of the object" (Torres-Quito v 1711 LLC, 227 AD3d 113, 116 [1st Dept 2024] [citation omitted]). "It is settled law that a plaintiff establishes a prima facie entitlement to liability on a Labor Law § 240(1) 'falling object' claim where he shows that he was struck by a falling object, that such object required securing for the purposes of the undertaking, and that the lack of adequate overhead protection failed to shield against the falling of such object and therefore proximately caused plaintiff's injuries" (id.).

Here, defendants have not met their initial burden of showing that the falling plywood did not "require[] securing for the purposes of the undertaking," and there is no evidence that plaintiff was provided netting or any other adequate safety device to protect him against falling debris (see Mayorquin v Carriage House Owner's Corp., 202 AD3d 541, 542 [1st Dept 2022], citing Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]). Moreover, there is no evidence that plaintiff was the sole proximate cause of his injuries.

Defendants/third-party plaintiffs seek summary judgment on their third-party claim for contractual indemnification asserted against third-party defendant A. Eagles. A. Eagles separately moves for summary judgment dismissing that third-party claim.

"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]).

Here, the contract's broad indemnification provision in favor of defendants/third-party plaintiffs (see BCRE-A. Eagles Contract at § 13 [NYSCEF Doc. 160]) was triggered by plaintiff's accident in the course of A. Eagles' work (see Asian v Flintlock Constr. Servs., LLC, 225 AD3d 462, 463 [1st Dept 2024]).^[FN2] The subject indemnification provision also does not run afoul of General Obligations Law § 5-322.1 as it contains the savings language "to the fullest extent permitted by law" (Brooks v Judlau Contr., Inc., 11 NY3d 204, 210 [2008]; see Guzman v 170 W. End Ave. Assoc., 115 AD3d 462, 464 [1st Dept 2014]; see also Dutton v Pankow Bldrs., 296 AD2d 321, 321-322 [1st Dept 2002], lv denied 99 NY2d 511 [2003]).

Accordingly, the motion by defendants/third-party plaintiffs for summary judgment on their third-party claim for contractual indemnification is granted, conditioned on a finding of liability against defendants on plaintiff's remaining Labor Law claims (motion seq. 004). The motion by A. Eagles to dismiss the third-party claim for contractual indemnification is denied (motion seq. 005).

Defendants/third-party plaintiffs seek summary judgment on their third-party claims for [*5]common law indemnification and contribution, and A. Eagles moves for summary judgment dismissing those claims.

"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]). "Absent an express indemnification agreement, or a 'grave injury' as enumerated in Workers' Compensation Law § 11, an employer's liability for an employee's on-the-job injury is ordinarily limited to workers' compensation benefits" (Fleming v Graham, 10 NY3d 296, 299 [2008]).

Because plaintiff does not allege or establish that he sustained a "grave injury," the motion by A. Eagles for summary judgment dismissing the third-party claims for common law indemnification and contribution is granted, and the motion by defendants/third-party plaintiffs for summary judgment on those claims is denied (Tavarez v LIC Dev. Owner, L.P., 205 AD3d 565, 567 [1st Dept 2022]; Purcell v Visiting Nurses Foundation Inc., 127 AD3d 572, 574 [1st Dept 2015]).

Defendants/third-party plaintiffs seek summary judgment on their third-party claim for breach of contract for failure to procure insurance asserted against A. Eagles. "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 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]).

Defendants have met their initial burden on their motion by submitting BCRE's contract with A. Eagles, which requires A. Eagles to procure insurance covering the work, and to name 90 Morton, BCRE, "and each of their respective affiliates, shareholders, and partners" as additional insureds (BCRE-A. Eagles Contract at ¶ 13, and Appendix E [NYSCEF Doc. 160]).

While A. Eagles' owner, Abilj Ljesnjanin, testified that A. Eagles had insurance naming BCRE as an additional insured, he could not recall if the policy was ever cancelled, or if the policy named any other entity (Ljesnjanin EBT Tr. at 25-26 [NYSCEF Doc. 177]). In any event, A. Eagles has not provided a policy in effect at the time of the accident.

As such, the motion by defendants/third-party plaintiffs for summary judgment on their third-party claim for breach of contract for failure to procure insurance is granted (motion seq. 004).

Defendants/third-party plaintiffs seek dismissal of plaintiff's Labor Law §§ 240 (2)-(3) and 241 (6) claims. By not opposing dismissal of these claims, plaintiff is deemed to have abandoned them (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]). Therefore, dismissal of plaintiff's claims under Labor Law §§ 240 (2)-(3) and 241 (6) is [*6]granted.

Accordingly, it is hereby

ORDERED that the motion by defendants/third-party plaintiffs 627 Greenwich Owner, LLC, 90 Morton Owner, LLC, and BCRE Services, LLC for summary judgment dismissing plaintiff's claims, and for summary judgment on their third-party claims (motion seq. 004) is GRANTED IN PART as follows:

(a) summary judgment dismissing plaintiff's claims under Labor Law § 200 and for common law negligence is GRANTED as to 627 Greenwich and 90 Morton, and DENIED as to BCRE;

(b) summary judgment dismissing plaintiff's claim under Labor Law § 240 (1) is DENIED;

(c) summary judgment dismissing plaintiff's claims under Labor Law §§ 240 (2)-(3) and 241 (6) is GRANTED;

(d) summary judgment on the third-party claim asserted against A. Eagles Inc. for contractual indemnification is GRANTED in favor of defendants/third-party plaintiffs, conditioned on a finding of liability against defendants/third-party plaintiffs on plaintiff's remaining Labor Law claims;

(e) summary judgment on the third-party claims asserted against A. Eagles Inc. for common law indemnification and contribution is DENIED;

(f) summary judgment on the third-party claim asserted against A. Eagles Inc. for breach of contract for failure to procure insurance is GRANTED in favor of defendants/third-party plaintiffs; and it is further

ORDERED that the motion by third-party defendant A. Eagles Inc. for summary judgment dismissing plaintiff's claims, as well as the third-party claims for contractual and common law indemnification and contribution asserted against it (motion seq. 005) is GRANTED IN PART as follows:

(a) summary judgment dismissing plaintiff's claims is GRANTED only as to the claims under Labor Law §§ 240 (2)-(3) and 241 (6), and the claims under Labor Law § 200 and for common law negligence only as asserted against 627 Greenwich Owner, LLC and 90 Morton Owner, LLC, and is otherwise DENIED;

(b) summary judgment dismissing the third-party claim for contractual indemnification is DENIED;

(c) summary judgment dismissing the third-party claims for common law indemnification and contribution is GRANTED; 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.