Upon the foregoing papers, and due deliberation being held, the Court finds that:

Defendant Arverne Limited-Profit Housing Corp. ("Arverne") moves pursuant to CPLR § 3212 for summary judgment dismissing plaintiff's Labor Law §§ 241 (6) and 200 and common law negligence claims, and for partial summary judgment on its cross-claims for contractual indemnification and breach of contract for failure to procure insurance asserted against defendant Skyline Restoration, Inc. ("Skyline"). Plaintiff does not oppose the motion. Skyline opposes only that part of the motion directed to the cross-claims asserted against it. Defendant Averne Limited Housing Corp. has not appeared in this action

According to plaintiff, on October 18, 2017, he fell from a ladder while working at a construction site at a residential apartment complex, sustaining personal injuries. Arverne owns the premises and Skyline was the general contractor who subcontracted plaintiff's employer, non-party Barami Construction Corp. ("Barami"), to perform restoration work precipitated by Hurricane Sandy (Ex J to Rossillo Affirm., Prime Contract [NYSCEF Doc. 54]; Ex K to Rossillo Affirm., Subcontract [NYSCEF Doc. 55]; Seminara EBT at 27-28). At the time of the accident, plaintiff was standing two or three steps up a ladder while installing sheet rock, when the ladder moved to the left and he fell to the right (Pl. 9/28/21 EBT Tr. at 45-46, 49-50 [NYSCEF Doc. 49]). Barami supplied the ladder (id. at 32:7-9; Seminara EBT Tr. at 11 [NYSCEF Doc. 51]). [*2]Skyline's project manager, Adam Seminara, testified that Barami, not Arverne, controlled the means and methods of the construction work (Seminara EBT Tr. at 11, 43; see also Kasteri EBT at 46 [NYSCEF Doc. 52]).

In support of its motion, Arverne argues that dismissal of the Labor Law § 200 and common law negligence claims is appropriate because it did not exercise supervision or control over plaintiff or his work, and did not have notice of any dangerous condition. Arverne further argues that plaintiff's Labor Law § 241 (6) claim should be dismissed, as plaintiff has not alleged a violation of the Industrial Code. Arverne maintains that it is entitled to summary judgment on its contractual indemnification cross-claim, because it was free from negligence and the accident arose out of Skyline and Barami's work; and on its breach of contract cross-claim, since Skyline failed to procure unrestricted insurance in favor of Arverne, as required by their contract.

In opposition, Skyline argues that it has complied with its contractual indemnification obligation, given that Arverne is being indemnified and defended by insurance maintained by Barami, afforded to Arverne under the contract between Skyline and Barami. Skyline further argues that its primary and excess insurance policies were in effect at the time of the accident and complied with its contract with Arverne.

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]).

Arverne seeks dismissal of plaintiff's Labor Law § 200 claim and common-law negligence claims. Labor Law § 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 Auth. of NY & N.J.,, 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 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, 143-144 [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 supervisory control over the injury-producing work" (id.).

Arverne has met its prima facie burden by establishing that it neither exercised supervisory control over the work, nor had notice of a dangerous condition. Plaintiff, by not opposing Arverne's motion, is deemed to have abandoned his Labor Law § 200 and common-law [*3]negligence claims (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]). Thus, that part of Arverne's motion seeking dismissal of plaintiff's Labor Law § 200 and common-law negligence claims is granted.

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., 91 NY2d 343, 348 [1998]). To establish a claim under Labor Law section 241 (6), plaintiff must show that defendant "violated an Industrial Code regulation that sets forth a specific standard of conduct and is not simply a recitation of common-law safety principles" (Toussaint, 38 NY3d at 94 [internal quotation marks and citation omitted]). Labor Law § 241 (6) requires that a plaintiff establish that a violation of a safety regulation was the proximate cause of the accident (Gonzalez v Stern's Dept. Stores, 211 AD2d 414, 415 [1st Dept 1995] [citation omitted]).

Arverne met its prima facie burden for dismissal of the Labor Law § 241(6) claim, because plaintiff did not cite the violation of any Industrial Code provision in his complaint or bill of particulars, and did not seek to amend the bill of particulars (Marte v Tishman Constr. Corp., 223 AD3d 527, 528 [1st Dept 2024]). Moreover, plaintiff has abandoned his Labor Law § 241(6) claim by not opposing Arverne's motion (see Gamez v Sandy Clarkson LLC, 221 AD3d at 454-455; Martin Assoc., Inc. v Illinois Natl. Ins. Co., 188 AD3d at 573; Saidin v Negron, 136 AD3d at 459).

"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, 777 [1987] [internal quotation marks and 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 provisions (see NYSCEF Doc. 54 at § 9.15, Rider at § 9 [d]) were triggered by plaintiff's accident in the course of Skyline's and/or its subcontractor's work (see Asian v Flintlock Constr. Servs., LLC, 225 AD3d 462, 463 [1st Dept 2024]). 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]).

Skyline's argument that it complied with the contractual indemnification provision by requiring its subcontractor to indemnify Arverne for acts arising out of the subcontractor's negligence is of no moment, as the plain language of the contract requires indemnification under the circumstances here. Accordingly, Arverne's motion for summary judgment on its contractual indemnification cross-claim against Skyline is granted, conditioned on a finding of liability [*4]against Arverne on plaintiff's remaining Labor Law claim.

"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]).

Here, Arverne met its prima facie burden by establishing the contract provision required procurement of insurance and was not complied with; Skyline raised an issue of fact by tendering the insurance policy. The express terms of the contract require Skyline to purchase commercial insurance to cover the owner as additional insured for claims caused in whole or in part by Skyline's negligent acts or omissions (Skyline Contract at 16 § 17.1; see also id. at 35-38 § 9). Skyline's insurance policy covered movant as an additional insured pursuant to the written contract (NYSCEF Doc. No. 65 [Response to New York Comprehensive Insurance Demand] at 76). While the policy limited such coverage to liability for bodily injury or property damage caused in whole or in part by Skyline's own work, this was in compliance with the terms of the contract (id.). Therefore, that part of Arverne's motion seeking summary judgment on its breach of contract cross-claim is denied.

For the foregoing reasons, it is hereby

ORDERED that that part of the motion by defendant Arverne Limited-Profit Housing Corp. for summary judgment dismissing plaintiff's Labor Law §§ 200 and 241 and common law negligence claims is GRANTED without opposition, and such claims are dismissed; and it is further

ORDERED that that part of the motion by defendant Arverne Limited-Profit Housing Corp. for summary judgment on its contractual indemnification cross-claim asserted against defendant Skyline Restoration, Inc. is GRANTED, conditioned on a finding of liability against Arverne on plaintiff's remaining Labor Law claim; and it is further

ORDERED that that part of the motion by defendant Arverne Limited-Profit Housing Corp. for summary judgment on its cross-claim for breach of contract for failure to procure insurance asserted against defendant Skyline Restoration, Inc. is DENIED; and it is further

ORDERED that plaintiff's Labor Law § 240 claim is severed and continued; and it is further

ORDERED that within 20 days, defendant Arverne Limited-Profit Housing Corp. shall serve a copy of this order with notice of entry upon all parties via NYSCEF; and it is further

ORDERED that the 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.