These motions arise out of a construction-site accident and resulting disputes about whether and to what extent the owner and contractors are liable for that accident.

Plaintiff, Luis Maldonado Barajas, was allegedly injured while working for LRN Enterprises Corp. LRN had been sub-subcontracted by Intersystems S&S Corp. to provide laborers for the construction project. Intersystems had been subcontracted by DJM NYC LLC to provide construction materials. (NYSCEF No. 182 at ¶ 48-50.) DJM was retained as general contractor to erect and dismantle a sidewalk bridge. Turin Housing Development Fund Company, Inc. owns the property. Turin contracted with First Service Residential New York Inc. to serve as general contractor.

On July 20, 2016, plaintiff was working at 609 Columbus Avenue, New York, New [*2]York, where he was tasked by LRN with dismantling a sidewalk bridge. Turin and First Service lacked the authority to control the worksite, did not provide tools, and were not aware of any unsafe condition, (NYSCEF No. 216 at 11:6-21; NYSCEF No. 217 at 13:25-14:2-3; 21:13-18.) DJM did not supply any equipment, although it was required by the DJM-Turin agreement (NYSCEF No. 213 at § 16.1) to oversee general safety measures at the worksite. (NYSCEF No. 207 at 19:4-25; NYSCEF No. 236 at 29:2—7; NYSCEF No. 278 at 24:4-23.) Intersystems was also expected to ensure worksite safety and was responsible for the sidewalk bridge. (Id. at 24:4-10.)

Plaintiff brought his own equipment that day, including a hard hat but not a safety harness. Plaintiff did not request a harness from LRN; he claimed that one would have been useless. (NYSCEF No. 207 at 28:21-25.) While standing on a metal platform and passing a beam, the platform moved, causing plaintiff to fall onto the sidewalk. (NYSCEF No. 208 at 138:7-8; 139:2-11; 140:7-10.) Hospital records show that plaintiff suffered injuries, including a traumatic brain injury (NYSCEF No. 250 at 41), and that plaintiff also tested positive for cocaine on the date of the accident. (NYSCEF No. 206 at 26:4-9.) Nevertheless, a medical report determined that these injuries would not prevent plaintiff from returning to work. (NYSCEF No. 282 at 6-7.)

Defendants dispute which party is liable for plaintiff's injuries and whether defendants are entitled to indemnification for plaintiff's claims. LRN agreed to indemnify Intersystems, and any entity Intersystems was required to indemnify, for liability arising out of contracted-for work. (NYSCEF No. 215 at ¶ 1.) However, this contract was made on July 20, 2016—the same date as the accident—and there is no evidence it was intended to apply retroactively. Intersystems agreed to indemnify DJM, and any entity DJM was required to indemnify, for liability arising out of contracted-for work. Additionally, Intersystems was required by the subcontract dated November 17, 2015, to procure insurance coverage protecting DJM and Turin for such claims. (NYSCEF No. 228 at § 2.)

A. The Branch of the Motion Seeking Summary Judgment Dismissing Plaintiff's Common-Law Negligence and Labor Law § 200 Claims

The parties dispute whether Turin and First Service are liable under Labor Law § 200. Labor Law § 200 (1) codifies an owner's or general contractor's common-law duty to provide construction site workers with a safe place to work. Liability under that provision attaches only if the owner or general contractor (1) created a defective or dangerous condition or had actual or constructive notice of that condition; or (2) exercised supervisory control over the injury-producing work. (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143—144 [1st Dept 2012].)

In a deposition dated September 24, 2020, plaintiff testified that he received instructions from his employer, LRN, and worked alongside LRN's foreman and other laborers on the date of the accident. (NYSCEF No. 207 at 20:14-17; 25:11-18; 65:9-16; 102:21-103:18; 105: 17-23.) LRN installed the sidewalk bridge and placed the metal platform across the sidewalk shed on the date of the accident. (Id.) Neither Turin nor First Service provided any tools, materials, or equipment to any LRN employee. (NYSCEF No. 217 at 21:13-18.) Moreover, plaintiff provided no evidence showing that defendants were ever notified of a dangerous condition concerning the sidewalk bridge or the metal platform.

Since Turin and First Service had no notice of the dangerous condition and no supervisory control over this injury-producing work, liability under Labor Law § 200 does not attach. The branch of the motion seeking summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims is granted.

B. The Branch of the Motion Seeking Summary Judgment Dismissing Plaintiff's Labor Law § 240 (1)-(3) Claims

i. Section 240 (1)

The parties dispute whether Turin and First Service are liable under Labor Law § 240 (1), (2), or (3). Labor Law § 240 (1) requires contractors, owners, and agents who erect a structure to provide safety devices such as scaffolding or hoists to protect workers. Plaintiff must show that the statute's violation was a contributing cause of the fall. (Duda v John W. Rouse Const. Corp., 32 NY2d 405, 410 [1973].)

Here, other LRN workers wore harnesses on the day of the accident. In a deposition dated September 24, 2020, plaintiff testified he did not use a harness, claiming it could not be attached while working on the platform. (NYSCEF No. 207 at 118:19-24.) Plaintiff also testified that he did not have a harness on the date of the accident and was not provided with one. (Id. at 21:18-23; 26:14-24.) Although harnesses were available to plaintiff on the date of the accident, plaintiff testified that there was no place for it to be attached, such as a safety line or a secure anchor point. (Id. at 28:21-25.) Plaintiff also testified that he suddenly felt the platform move, released the beam, and fell onto the sidewalk. (NYSCEF No. 208 at 137:25-138:8; 140:7-10.)

Plaintiff's evidence suffices to establish liability under Labor Law § 240 (1). Whether or not a safety harness was available to plaintiff, his unrebutted testimony that he lacked a secure way to attach the harness established that Turin/First Service "fail[ed] to provide him with proper fall protection." (Anderson v MSG Holdings, L.P., 146 AD3d 401, 402 [1st Dept 2017].) Since plaintiff suffered injuries from a fall due in part to the absence of proper fall protection, liability under Labor Law § 240 (1) attaches. (See Berrios v 735 Ave. of Americas, LLC, 82 AD3d 552, 553 [1st Dept 2011] [holding that in light of evidence "that there was no location to which a harness could have been tied," the defendant general contractor "failed to raise the inference that plaintiff's failure to use a safety harness was the sole proximate cause of his injury" for § 240 (1) purposes].) The branch of the motion seeking summary judgment dismissing plaintiff's Labor Law § 240 (1) claim is denied.

ii. Section 240 (2) and (3)

Liability under Labor § Law 240 (2) applies to scaffolding more than 20 feet from the ground. Here, plaintiff was working 14 feet from the sidewalk. (NYSCEF No. 208 at 138: 13-21.) Thus, this provision is inapplicable here.

Labor Law § 240 (3) requires that all scaffolding be construed to bear a certain weight requirement. Turin and First Service argue first that this provision does not apply because plaintiff was not standing on scaffolding. (See NYSCEF No. 184 at 8.) This argument is without merit: The metal platform from which plaintiff fell "served, conceptually and functionally, as an elevated platform or scaffold." (Da Silva v Toll First Ave., LLC, 199 AD3d 511, 511 [1st Dept 2021].) But plaintiff does not contend (or introduce evidence to show) that the shifting of the platform that caused him to fall stemmed from a failure to satisfy the weight requirements of § 240 (3).

The branch of the motion seeking summary judgment dismissing plaintiff's Labor Law § 240 (2) and (3) claims is granted.

C. The Branch of the Motion Seeking Summary Judgment Dismissing Plaintiff's Labor Law § 241 (6) Claim

Turin and First Service move to dismiss plaintiff's Labor Law § 241 (6) claim, contending that none of the Industrial Code provisions identified in plaintiff's supplemental bills of particulars apply here (see NYSCEF No. 184 at 9-10)—as required to establish § 241 (6) liability. (See Lourenco v City of New York, 228 AD3d 577, 578—579 [1st Dept 2024].) Plaintiff does not oppose this branch of the motion. (See NYSCEF No. 333 at ¶ 3.) Turin/First Service's request for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim is granted.

D. The Branch of the Motion Seeking Summary Judgment for Contractual and Common-Law Indemnification as Against LRN and Intersystems

The parties dispute whether Turin and First Service may seek indemnification from LRN and Intersystems. Any party may protect itself from liability for its own negligence under an indemnification agreement, provided "such intention is expressed in unequivocal terms." (Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973].) Moreover, an indemnification agreement made after the plaintiff's accident will not apply retroactively without evidence "the parties intended the agreement to apply as of that date." (Mikulski v Adam R. W., Inc., 78 AD3d 910, 912 [2d Dept 2010].)

LRN's president signed a subcontract to indemnify Intersystems and any entity Intersystems was required to indemnify from liability for work-related injuries. (NYSCEF No. 215 at ¶ 1.) However, the LRN-Intersystems contract is dated July 20, 2016—the same date as plaintiff's accident—and there is no evidence the contract was intended to apply retroactively. (NYSCEF No. 220 at 29:21-25; 30:2-11.) The branch of the motion seeking summary judgment on Turin and First Service's contractual and common-law indemnification claims against LRN and Intersystems is denied.

E. The Branch of the Motion for Summary Judgment Dismissing All Labor Law § 200 Counterclaims and Crossclaims

The parties dispute whether Turin and First Service are liable under Labor Law § 200. Here, the platform shifting while plaintiff was working on it constitutes prima facie evidence that proper protection was not provided. (Cf. Vera v Low Income Mktg. Corp., 145 AD3d 509, 512 [1st Dept 2016] [dismissing the common-law negligence claim because evidence established that the scaffold was "sturdy" before plaintiff's accident].) As discussed in Point I.A, Turin and First Service lacked the authority to control the worksite; did not control, direct, or supervise the work; and did not provide tools, equipment, or materials. Additionally, Turin and First Service testified they were never aware of any unsafe condition involving the sidewalk shed or the metal platform. (NYSCEF No. 216 at 11:6-21; NYSCEF No. 217 at 13:25-14:2-3.) Turin/First Service's motion for summary judgment dismissing all counterclaims and crossclaims asserted under Labor Law § 200 against them is granted.^[FN1]

A. The Branch of the Motion Seeking Summary Judgment in DJM's Favor on its Crossclaims Against Intersystems

The parties dispute whether Intersystem properly indemnified DJM. Intersystems and DJM's agreement provides that "to the fullest extent permitted by law," Intersystems would indemnify DJM, all entities DJM is required to indemnify, Turin, and the employees of each of them for claims arising from the contracted-for work. (NYSCEF No. 228 at § 1.) Plaintiff was injured while performing work Intersystems was contracted to perform for DJM. Intersystems is thereby obliged to indemnify DJM for claims arising from plaintiff's accident to the extent of the negligence of Intersystems or its agents. (See Brooks v Judlau Contr., Inc., 11 NY3d 204, 207 [2008].) Although, as discussed below in Point II.C, it remains to be determined whether DJM was negligent in some respect, Intersystems has not raised an issue of fact about whether DJM's negligence, if any, was the sole proximate cause of the accident. DJM is therefore entitled to conditional summary judgment on liability on its contractual-indemnification crossclaim against Intersystems. (See McKinney v Empire State Dev. Corp., 217 AD3d 574, 575 [1st Dept 2023].) The "extent of the indemnification will depend on the extent to which any negligence by [DJM] is found to have contributed to the accident." (Id.)

The subcontract agreement between DJM and Intersystems also provides that Intersystems must procure insurance coverage protecting DJM and Turin for claims arising out of the contracted-for work. DJM was denoted as an additional insured in this subcontract dated November 17, 2015. (NYSCEF No. 228 at § 2.) A breach of an insurance-procurement provision occurs when the additional insured reasonably expects the named insured to provide effective coverage. (Spector v Cushman & Wakefield, Inc., 100 AD3d 575, 575 [1st Dept 2012].)

The subcontract between DJM and Intersystems requires that no insurance "policy provisions shall restrict, reduce, limit or otherwise impair contractual liability coverage." (NYSCEF No. 228 at § 2.2.) DJM relies on a disclaimer letter from Arch Insurance Company to Intersystems, stating that Intersystems was not covered under the Arch policy with respect to plaintiff's claims. (See NYSCEF No. 222 at 15-16 [DJM memo of law]; NYSCEF No. 239 [disclaimer letter].) The disclaimer letter relied, among other things, on a contractual-liability coverage exclusion in the policy. (See NYSCEF No. 239 at 8.) Given this impairment to contractual-liability coverage, DJM has established prima facie that Intersystems failed to obtain the insurance coverage required by their subcontract.

In opposition, Intersystems does not raise an issue of fact about the adequacy of the coverage afforded by the Intersystems policy addressed in DJM's papers. Instead, Intersystems argues that it satisfied the coverage requirement by inducing its own subcontractor, LRN, to obtain coverage for the benefit of DJM that satisfied the subcontract between DJM and Intersystems. (See NYSCEF No. 314 at 7-9.) It is unclear from the record—and the parties' briefing does not clarify—how many insurance policies naming Intersystems and DJM as named or additional insureds were potentially applicable here to plaintiff's claims.^[FN2] I.e., it is possible that the Arch policy containing the contractual-liability exclusion was issued to Intersystems as named insured; and that Intersystems's subcontractor LRN also procured insurance coverage for the benefit of LRN, Intersystems, and DJM that would satisfy the requirements of the DJM-Intersystems subcontract. In that scenario, DJM likely would not be entitled to judgment on its claim for failure to obtain insurance. It is also possible that the Arch policy was issued to LRN as [*3]named insured; and that Intersystems sought (but was denied) coverage from Arch as an additional insured due to the coverage-liability exclusion. In that scenario, DJM likely would be entitled to judgment in its favor.

Absent clarity on which insurance policies are in play for this claim—and what the relevant terms of those policies are—this court lacks a basis to grant DJM summary judgment on its failure to obtain insurance claim.

Entitlement to common-law indemnification requires a party to demonstrate it was held vicariously liable without any finding of negligence or supervision and that the indemnitor was either negligent or had the authority to direct, supervise, and control the injury-producing work. (McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378 [2011].) Here, plaintiff testified that he received instructions on the day of the accident from LRN's foreman. (NYSCEF No. 232 at 23:3—9.) Although DJM did not supply any equipment for plaintiff's use on the day of the accident, DJM's project manager was on site regularly to ensure compliance with plans and specifications. (NYSCEF No. 236 at 12:12-16; 13:13-18; 16:6-10; 29:2—7.) There is no evidence that Intersystems was negligent. There remain material issues of fact about whether DJM was negligent and exercised control over plaintiff's work.

DJM is granted conditional summary judgment in its favor on liability on its contractual-indemnification claim. DJM's requests for summary judgment on its failure-to-obtain-insurance and its common-law indemnification claims are denied.

B. The Branch of the Motion Seeking Summary Judgment Dismissing Intersystems' Crossclaims

DJM seeks summary judgment dismissing Intersystems' contractual-indemnification/failure-to-obtain-insurance crossclaims against it. (NYSCEF No. 221.) The proposal Intersystems submitted to DJM on September 4, 2015, does not include any indemnification language that would obligate DJM to indemnify Intersystems. (See NYSCEF No. 214.) Intersystems could not reasonably expect DJM to procure effective coverage. DJM's motion for summary judgment to dismiss Intersystems' third cause of action for contractual indemnity and fourth cause of action for breach of contract for failure to procure insurance is granted.

C. The Branch of the Motion Seeking Conditional Summary Judgment on DJM's Common-Law Indemnification Claim Against LRN

DJM seeks conditional summary judgment for common-law indemnification against LRN. pending a jury's determination as to whether plaintiff suffered a "grave injury." As discussed in Point II.A, "common-law . . . indemnification[] permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party." (17 Vista Fee Assocs. v Teachers Ins. & Annuity Ass'n of Am., 259 AD2d 75, 80 [1st Dept 1999].) Workers' Compensation Law (WCL) § 11 precludes third-party claims for contribution or indemnification against an employer or co-employee unless the employee suffered a "grave injury" within the meaning of the statute. (Dudek v Metropolitan Trans. Auth. of State of NY, 24 AD3d 21, 26 [2d Dept 2005].)

To succeed on a claim for common-law indemnification, DJM must demonstrate it was held vicariously liable without any finding of negligence or actual supervision and that LRN was either negligent or had authority to direct, supervise, and control the injury-producing work. Additionally, a general contractor can be liable for common-law negligence if it created the condition or had notice of the condition. (McCarthy, 17 NY3d at 377-378.)

DJM did not instruct plaintiff about the work to be done that day. (NYSCEF No. 232 at 23:3-9.) DJM neither owned nor supplied any equipment related to the sidewalk bridge. (NYSCEF No. 236 at 29:2-7.) DJM hired Intersystems expecting that Intersystems would provide and install proper safety equipment. (Id. at 24:4-10.) But DJM had general control over the site; DJM's agreement with Turin required DJM to oversee compliance with safety plans and specifications. (NYSEF No. 337 at ¶ 35.) DJM's president also testified it did not ensure that safety equipment was used despite an oversight role in safety compliance. (NYSCEF No. 278 at 12:3-4; 24:4-23.) Thus, a question arises about whether DJM may have been negligent in some respect and liable under Labor Law § 200.

Genuine issues of material fact exist about whether DJM exercised supervision or control over the work and whether any valid indemnification agreement was in place. DJM's motion for partial summary judgment seeking conditional common-law indemnification is denied.

D. The Branch of the Motion Seeking Summary Judgment Dismissing Plaintiff's Common-Law Negligence and Labor Law § 200 Causes of Action

As discussed in Point II.C, there remain issues of fact about whether DJM was negligent and exercised control over plaintiff's work. DJM's motion for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 causes of action is denied.

As discussed in Point I.D, a question of fact exists about whether the subcontract agreement is enforceable. Intersystems' motion for summary judgment in its favor for contractual indemnification against LRN, for the coverage of all damages, costs, and expenses, including attorney fees, and to ordering LRN to assume the defense of Intersystems is denied.

A. The Branch of the Motion Seeking Dismissal of Intersystems' Third-Party Claim for Contractual Indemnification

As discussed in Point I.D, an issue of material fact exists about whether an enforceable contract existed at the time of plaintiff's accident. LRN's motion for summary judgment dismissing Intersystems' complaint for contractual indemnification is denied.

B. The Branch of the Motion for Summary Judgment Dismissing the Common-Law Claims Against LRN Asserted by Turin, First Service, and DJM

The parties dispute whether recovery against LRN is barred by the WCL. As discussed in Point II.C, WCL § 11 bars third-party actions against employers for indemnification or contribution unless plaintiff sustained a "grave injury." (Tonking v Port Auth. of New York and New Jersey, 3 NY3d 486, 490 [2004].) The statute defines "grave injury" as one resulting in "permanent total disability," which requires evidence that "the injured worker is no longer employable in any capacity." (Rubeis v Aqua Club Inc., 3 NY3d 408, 413 [2004].) Whether plaintiff sustained a "grave injury" is a question of fact for a jury. (Serrano v 432 Park S. Realty Co., LLC, 59 AD3d 242, 242-243 [1st Dept 2009].)

Here, plaintiff sustained, among other injuries, a traumatic brain injury, basal skull fracture, subdural hematoma, cerebral aneurysm, and hemorrhagic stroke. His hospitalization included a 12-day stay in the intensive care unit. (NYSCEF No. 250 at 41.) Nevertheless, an independent medical examination concluded that there was "no objective evidence for residual neurological injury that would prevent [plaintiff] from returning to his pre-accident level of function." (NYSCEF No. 282 at 6-7.) Although no evidence suggests that plaintiff will be unable to work in the future, evidence indicates that plaintiff sustained a traumatic brain injury. [*4]Therefore, a jury must determine whether plaintiff suffered a grave injury. Since it has not yet been established whether plaintiff sustained such an injury, this court cannot determine at this stage whether the common-law claims against LRN are barred. LRN's motion for summary judgment dismissing all common-law claims against it asserted by Turin, First Service and DJM is denied.

C. The Branch of the Motion Seeking Summary Judgment Dismissing DJM, Turin, and First Service's Contractual-Indemnification Claims

i. DJM

The parties dispute whether DJM is entitled to contractual indemnification from LRN. DJM expected that Intersystems would provide and install proper safety equipment. (NYSCEF No. 278 at 24:4—10.) Intersystems was also responsible for protecting the workers erecting and removing the sidewalk bridge—the specific assignment on the day of the accident. (Id. at 23:22—25; 24:2—3.) Regardless, the DJM-Turin agreement required DJM to supervise safety precautions and programs in connection with the contracted-for work (NYSCEF No. 213 at § 16.1). These circumstances show that DJM had some responsibility concerning the overall safety of the site. (See Torkel v NYU Hosps. Ctr., 63 AD3d 587, 591 [1st Dept 2009].)

An indemnitor is required to indemnify the indemnitee only to the extent of the indemnitor's own negligence. (Brooks, 11 NY3d at 207.) Even if DJM is found to have exercised actual supervision over the plaintiff's work, DJM may seek indemnification, as long as DJM is not found to be solely negligent, or the contract does not permit indemnification for DJM's own negligence. Therefore, LRN's motion for summary judgment dismissing DJM's contractual-indemnification claim is denied.

i. Turin and First Service

The parties dispute whether Turin and First Service are entitled to contractual indemnification from LRN. Entitlement to contractual indemnification requires a party "prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor." (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2d Dept 2009].) Summary judgment on a cause of action for contractual indemnification is proper when the movant establishes that it did not direct, control, or supervise the injury-producing work. (Quilliams v Half Hollow Hills Sch. Dist., 67 AD3d 763, 765 (2d Dept 2009].)

In this case, Turin contracted with DJM for exterior renovation work at the premises. (NYSCEF No. 213.) DJM later contracted with Intersystems to install and dismantle the sidewalk shed. (NYSCEF No. 214.) Intersystems then subcontracted this work to LRN, pursuant to a fully executed subcontract agreement. (NYSCEF No. 215.)

As discussed in Point I.D, a material question of fact remains about whether an enforceable agreement in effect at the time of the accident required LRN to indemnify Intersystems, and by extension all entities Intersystems is contractually required to indemnify. Accordingly, the motion for summary judgment dismissing Turin and First Service's contractual claim is denied.

Plaintiff seeks summary judgment in his favor against Turin, First Service, and DJM on his Labor Law § 240 (1) claim. Plaintiff must show a statutory violation was a contributing cause of the accident of the fall. (Duda, 32 NY2d at 410.) Here, plaintiff fell from a platform and [*5]sustained injuries. Plaintiff did not wear a harness. Nor did plaintiff bring a harness to the site, or notify his employer that he lacked one, or otherwise obtain one. Plaintiff also tested positive for cocaine. However, plaintiff testified that there was no way to tie the safety harness while on the platform. (NYSCEF No. 207 at 118:19-24.) Plaintiff was not the sole cause of the accident, and the violation of the statute was a contributing cause. Summary judgment in plaintiff's favor on liability his Labor Law § 240 (1) cause of action is granted.

Accordingly, it is hereby

ORDERED that the branches of Turin and First Service's motion (mot seq 006) seeking summary judgment dismissing plaintiff's claims against them are granted with respect to plaintiff's common-law negligence claim, Labor Law § 200 claim, Labor Law § 240 (2) and (3) claims, and plaintiff's Labor Law § 241 (6) claim; and are denied with respect to plaintiff's Labor Law § 240 (1) claim; and it is further

ORDERED that the branches of Turin and First Service's motion (mot seq 006) seeking summary judgment dismissing all counterclaims and crossclaims asserted under Labor Law § 200 against them are granted; and it is further

ORDERED that the branches of Turin and First Service's motion (mot seq 006) seeking summary judgment in their favor on their contractual and common-law indemnification claims against LRN and Intersystems are denied; and it is further

ORDERED that the branches of DJM's motion (mot seq 007) seeking summary judgment in its favor on its crossclaims against Intersystems are conditionally granted with respect to DJM's contractual-indemnification claim and are denied with respect to DJM's common-law indemnification claim and its claim for breach of contract for failure to procure insurance; and it is further

ORDERED that the branches of DJM's motion (mot seq 007) seeking summary judgment dismissing Intersystems's crossclaims against it are granted; and it is further

ORDERED that the branch of DJM's motion (mot seq 007) seeking summary judgment in its favor on its third-party claim against LRN for common-law indemnification is denied; and it is further

ORDERED that the branch of DJM's motion (mot seq 007) seeking summary judgment dismissing plaintiff's claims against it is denied; and it is further

ORDERED that Intersystems' motion (mot seq 008) for summary judgment in favor of third-party plaintiff Intersystems for contractual indemnification against LRN, for the coverage of all damages, costs, and expenses, including attorney fees, and ordering LRN to assume the defense of Intersystems is denied; and it is further

ORDERED that LRN's motion (mot seq 009), seeking summary judgment dismissing Intersystems' complaint for contractual indemnification, summary judgment dismissing DJM and Intersystems' contractual claim, and all contractual and common-law claims asserted by Turin Housing, First Service, and DJM is denied; and it is further

ORDERED that plaintiff's motion (mot seq 010) for summary judgment in his favor on liability on his Labor Law § 240 (1) cause of action is granted, with the extent of plaintiff's damages on this claim to be determined at the time of trial.