Payano v McGowan Bldrs., Inc.

Supreme Court, Bronx County

Decided on December 10, 2025

Index No. 301578/2016E

Ashlee Crawford, J.

The following e-filed documents, listed by NYSCEF document number (Motion 3) 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 78, 84, 87, 109, 110, 118, 119 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Cross-Motion) 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 117 Were read on this motion to/for JUDGMENT SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 4) 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 79, 85, 88, 89, 90, 91, 111, 112, 116, 120, 121, 122, 123 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 5) 80, 81, 82, 83, 92, 93, 94, 95, 96, 97, 98, 113, 114, 115, 124 were read on this motion to/for JUDGMENT - SUMMARY.

In this action to recover damages for personal injuries arising out of an alleged construction accident, plaintiff moves pursuant to CPLR 3212 for partial summary judgment as to liability on his Labor Law §§ 241 (6), 200, and common law negligence claims. Third-party defendant/second third-party defendant J-Tech Contracting, Inc. (J-Tech) opposes. Defendants McGowan Builders, Inc. (McGowan) and Crep River Terrace Holdings, LLC (Crep River) oppose and cross-move for summary judgment dismissing plaintiff's Labor Law §§ 240 (1), 241 (6), 200, and common-law negligence claims (motion seq. 003). Plaintiff opposes the cross-motion.

Third-party defendant/second third-party defendant Amendola Marble & Stone Center, Inc. (Amendola) moves pursuant to CPLR 3212 for summary judgment dismissing the third-party complaint and second-third party complaint asserted against it, and for an order pursuant to CPLR 3025 permitting Amendola to amend its verified third-party answer and verified second-third party answer to add a second affirmative defense under New York Workers' Compensation [*2]Law §§ 10 and 11 (motion seq. 004).^FN1 McGowan and Crep River partially oppose.

J-Tech Contracting, Inc. moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims, and all third-party claims asserted against J-Tech (motion seq. 005). McGowan, Crep River, and Amendola partially oppose. Plaintiff opposes.

Preliminarily, that part of Amendola's motion for leave to amend its verified third-party answer and verified second third-party answer to assert a second affirmative defense based on New York Workers' Compensation Law §§ 10 and 11 is granted without opposition.

BACKGROUND

On August 11, 2015, plaintiff was injured while working at a construction renovation project inside a residential building located at 22 River Terrace, New York County. It is undisputed that Crep River owned the building, and McGowan was retained to serve as construction manager of the project. McGowan hired plaintiff's employer, Amendola, as a subcontractor to perform tile installation in various units in the building. McGowan also hired J-Tech as a subcontractor to perform millwork at the project.

Plaintiff testified that he worked for Amendola at the subject premises for about a year before the accident happened (Pl. Tr. at 23:2-4, 30:21-25 [NYSCEF Docs. 32-34]). He testified that he primarily received his instructions from his foreman (id. at 34:7-12). He testified that, on the date of the accident, his foreman instructed him to change tiles at an apartment unit (id. at 42:15-22). Plaintiff stated that he was wearing his hard hat, goggles, construction boots, and that the accident occurred on his way to the particular apartment unit (id. at 46, 49:1-7, 179-180). From the elevator to the apartment, there was a hallway about two-and-a-half- to three-feet before reaching the apartment doorway (id. at 52). Plaintiff observed containers full of garbage in the hallway and that the containers obstructed his view as he walked towards the apartment entryway (id. at 53:6-17, 58). Before the accident happened, he was carrying two buckets of material, weighing approximately 20-25 pounds (id. at 64:3-15). As he walked towards the apartment carrying the buckets, he was cut in the face by one of metal clamps protruding from the doorway, causing him to fall to the ground (id. at 63:1-18, at 77:3-10). Plaintiff testified that he never saw this type of object placed on a doorway before his accident (id. at 84:18-23). He also testified that the hallway was not properly lit (id. at 130:1-13).

DISCUSSION

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]).

I. Labor Law § 240 (1)

McGowan, Crep River, and J-Tech move for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim on the ground that plaintiff's accident did not involve a gravity-related hazard. No party, including plaintiff, has opposed the motion; therefore, plaintiff's Labor Law § 240 (1) claim is hereby 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]).

II. Labor Law § 241 (6)

Plaintiff moves for summary judgment on his claim under Labor Law § 241 (6), and McGowan, Crep River, and J-Tech move for summary judgment dismissing that claim.

Labor Law § 241(6) imposes a non-delegable 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 § 241(6), plaintiff must show that defendant violated an Industrial Code regulation that sets forth a specific, positive command, and is not simply a recitation of common-law safety principles (Toussaint v Port Authority of New York and New Jersey, 38 NY3d 89, 93-94 [2022]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503 [1993]). Plaintiff must also establish that such violation was the proximate cause of the accident (Gonzalez v Stern's Dept. Stores, 211 AD2d 414, 415 [1st Dept 1995]).

Here, plaintiff moves for summary judgment with respect to Industrial Codes 12 NYCRR §§ 23-1.7(e)(1) (Tripping and other hazards; Passageways) and 23-1.7(e)(2) (Tripping and other hazards; Working areas); and, in opposition to defendants' cross-motion, addresses arguments raised as to § 23-1.30 (Illumination). All other predicates not raised in plaintiff's legal arguments are dismissed as abandoned (Burgos v Premier Props. Inc., 145 AD3d 506, 508 [1st Dept 2016]; 87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540, 542 [1st Dept 2014]).

Industrial Code 12 NYCRR § 23-1.7(e) covers tripping and other hazards and is sufficiently specific to support a Labor Law § 241(6) claim (see Singh v Young Manor, Inc., 23 AD3d 249, 249 [1st Dept 2005]). This section, in relevant part, requires "[s]harp projections which could cut or puncture any person shall be removed or covered" (Industrial Code [12 NYCRR] § 23-1.7 [e] [1]). The Court finds that this section applies: the metal clamp that cut plaintiff in the face is a "sharp projection" and the area where plaintiff's accident occurred—a hallway to an apartment within defendant's premises—was a passageway within the meaning of the regulation (see Zyskowski v Chelsea-Warren Corp., 238 AD3d 498, 500 [1st Dept 2025]). Accordingly, plaintiff has met his prima facie burden under the Industrial Code 12 NYCRR § 23-1.7(e)(1) predicate.

As to Industrial Code 12 NYCRR § 23-1.7(e)(2), "areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and material and from sharp projections insofar as may be consistent with the work being performed." Here, plaintiff establishes prima facie that a violation of § 23-1.7(e)(2) was a proximate cause of his accident, because the area where he worked or passed was not kept free from a sharp projection—a metal clamp that cut his face—consistent with the work he was performing (Pl. Tr. at 77:3-7).

The Court rejects defendants' argument that § 23-1.7 is inapplicable because the metal [*3]clamps, as placed, were "integral to the work." Plaintiff's accident was caused by a metal clamp protruding from a door entryway as plaintiff walked through to get to his work area and did not arise out of the performance of his actual work. Therefore, the previously installed metal clamp was material that was not integral to the plaintiff's work at the site (see Zyskowski v Chelsea-Warren Corp., 239 AD3d at 501; Sternkopf v 395 Hudson NY, LLC, 227 AD3d 579, 581 [1st Dept 2024]). Defendants have not raised an issue of fact to overcome summary judgment for plaintiff under Industrial Codes 12 NYCRR §§ 23-1.7(e)(1) and (e)(2), which is granted to plaintiff, and have not met their burden for dismissal of same.

Industrial Code 12 NYCRR § 23-1.30 requires proper illumination where "persons are required to work or pass in construction, demolition and excavation operations." Here, plaintiff testified that the hallway leading to the apartment had "very little lighting" and that "[t]he hall was dark" (Pl. Tr. at 130:1-13). Defendants McGowan and Crep River have not shown, prima facie, that the lighting as it existed at the time of the accident was appropriate (Favaloro v Port Auth. of NY & N.J., 191 AD3d 524 [1st Dept 2021]). Therefore, summary judgment dismissing plaintiff's Labor Law § 241 (6) claim as predicated on a violation of Industrial Code 12 NYCRR § 23-1.30 is denied.^FN2

III. Labor Law § 200 and/or Common-Law Negligence

Plaintiff moves for summary judgment on his Labor Law § 200 and common-law negligence claims, and defendants McGowan and Crep River seek dismissal of those claims.

"In order to prevail in any action premised upon [common law] negligence, it must be established that defendant owed plaintiff a duty, that defendant, by act or omission, breached such duty, that such breach was the proximate cause of plaintiff's injuries, and that plaintiff sustained damages" (Salvador v New York Botanical Garden, 71 AD3d 422, 423 [1st Dept 2010]). "Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). "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, 143-44 [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 record demonstrates that neither McGowan nor Crep River supervised or controlled the plaintiff's work (Siegel v Delta Airlines, Inc., 227 AD3d 516, 517 [1st Dept 2024]), an owner or general contractor may still be held liable if it either created the hazardous condition or failed to remedy it despite possessing actual or constructive notice thereof (Coon v WFP Tower B Co. L.P., 220 AD3d 407, 408 [1st Dept 2023]). Here, plaintiff failed to establish prima facie that the protruding metal clamp that injured plaintiff existed for a sufficient length of time to permit employees of McGowan or Crep River to discover and remedy the condition (id. [*4]at 408-409). Various witnesses produced on behalf of the parties testified that there were no prior complaints about the metal clamps on the doorways. Moreover, McGowan and Crep River failed to submit evidence as part of their moving papers of when the work site was last inspected contemporaneous with plaintiff's accident (see id.; Kolakowski v 10839 Assoc., 185 AD3d 427, 427-428 [1st Dept 2020]; Pereira v New Sch., 148 AD3d 410, 412-413 [1st Dept 2017]).

Accordingly, no party has demonstrated its prima facie entitlement to summary judgment on plaintiff's Labor Law § 200 and common-law negligence claims as asserted against McGowan and Crep River.

IV. Third-Party Claims against Amendola

Amendola moves for summary judgment dismissing Crep River's third-party complaint and McGowan's second third-party complaint as against Amendola. No opposition was submitted with respect to Amendola's motion to dismiss the third-party and second third-party claims for common law indemnification, contribution, and breach of contract for failure to procure, which claims as asserted against Amendola are dismissed as abandoned (see supra).

McGowan's and Crep River's contractual indemnification claims against Amendola are based on an indemnification provision in the subcontract between McGowan and Amendola, which provides as follows:

1. INDEMNIFICATION

"11.1 To the fullest extent permitted by the applicable law governing this Subcontract, the Subcontractor [Amendola] shall indemn[ify], protect, defend and save harmless the Contractor [McGowan], . . . the Owner [Crep River] and all other entities that the Contractor must indemnify under the Prime Contract, from and against any loss, damage, injury, cost or expense; and from and against any Claim, demand, liability, lawsuit, judgment, action or other proceeding arising from, to arise from, in connection with or as a result of any of the following:

11.1.1. The negligent acts or omissions of the Subcontractor [Amendola] . . .

11.1.2. The loss of life or property, or injury or damage to the person, body or property of any person or persons whatsoever, that arises or results directly or indirectly arising out of or occurring in connection with the performance of its Work, the scope of its Work or the failure to fully and completely carry out the terms of the Subcontract by Subcontractor [Amendola] . . . "

[NYSCEF Doc. 64 at 20].

"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]). "Indemnification provisions are strictly construed and a promise to indemnify should not be found unless it can be clearly implied from the language and [*5]purpose of the entire agreement and the surrounding facts and circumstances" (Madison Hospitality Mgt. LLC v Acacia Network Hous., Inc., 230 AD3d 1063 [1st Dept 2024] [internal quotation marks and citation omitted]).

While the subject indemnification provision does not run afoul of General Obligations Law § 5-322.1, as it sufficiently contains the appropriate savings clause "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]), Crep River and McGowan have no right of indemnification against Amendola for its own negligence (see Vasquez v Manhattan Coll., 223 AD3d 601, 602-603 [1st Dept 2024]; General Obligations Law § 5—322.1). For the reasons discussed supra, there is an issue of fact precluding Amendola's motion for summary judgment dismissing Crep River's third-party claim and McGowan's second third-party claim for contractual indemnification against Amendola, and the motion is denied as premature.

V. Third-Party Claims against J-Tech

J-Tech moves for summary judgment dismissing Crep River's third-party complaint and McGowan's second third-party complaint. No opposition was submitted with respect to J-Tech's motion to dismiss the third-party and second third-party claims for breach of contract for failure to procure insurance. Therefore, those claims as asserted against J-Tech are dismissed as abandoned (see supra).

McGowan's and Crep River's contractual indemnification claims against J-Tech are based on an indemnification provision in the subcontract between McGowan and J-Tech which is substantively identical to the provision in the subcontract between McGowan and Amendola (see NYSCEF Doc No. 62 at 20).

J-Tech, too, failed to establish prima facie that the subcontract's indemnification provision was not triggered by plaintiff's accident in the course of J-Tech's work—metal clamps that allegedly cut plaintiff were installed by J-Tech (Asian v Flintlock Constr. Servs., LLC, supra at 463). This indemnification provision likewise does not run afoul of General Obligations Law § 5-322.1.

As to McGowan and Crep River's common law indemnification claim against J-Tech, "[t]o 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]; see also McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378 [2011]). As the evidence fails to affirmatively establish J-Tech's negligence or McGowan's and/or Crep River's freedom from negligence related to plaintiff's accident, J-Tech's application to dismiss McGowan's and Crep River's claims for contractual and common law indemnification and contribution against it is denied as premature.

The Court has considered the parties' additional contentions not specifically addressed herein. To the extent that any requested relief was not addressed by the Court, it is hereby denied.

Accordingly, it is hereby

ORDERED that plaintiff's motion for summary judgment is GRANTED IN PART, such that plaintiff is awarded judgment on his Labor Law § 241 (6) claim as predicated on Industrial Code 12 NYCRR §§ 23-1.7(e)(1) and (e)(2); and the remainder of plaintiff's motion is DENIED [*6](motion seq. 003); and it is further

ORDERED that the cross-motion by defendants McGowan Builders, Inc. and Crep River Terrace Holdings, LLC for summary judgment dismissing plaintiff's Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims is GRANTED IN PART, such that plaintiff's Labor Law § 240(1) claim is DISMISSED without opposition, plaintiff's Labor Law § 241(6) claim based on any predicates not raised in plaintiff's legal arguments (i.e., any predicates other than Industrial Code sections 23-1.7(e)(1) and (e)(2) and 23-1.30) are DISMISSED as abandoned, and the remainder of the cross-motion is DENIED (motion seq. 003); and it is further

ORDERED that the motion by third-party defendant/second third-party defendant Amendola Marble & Stone Center, Inc. is GRANTED IN PART, such that that part of the motion seeking leave to amend Amendola's verified third-party answer and verified second third-party answer to assert a second affirmative defense based on New York Workers' Compensation Law §§ 10 and 11 is GRANTED without opposition; and that part of the motion for summary judgment is GRANTED only to the extent that the third-party and second third-party claims against Amendola Marble & Stone Center, Inc. for common law indemnification, contribution, and breach of contract for failure to procure are DISMISSED, and the remainder of the motion is DENIED (motion seq. 004); and it is further

ORDERED that the motion by third-party defendant/second third-party defendant J-Tech Contracting, Inc. for summary judgment is GRANTED IN PART, such that plaintiff's Labor Law § 240(1) claim and the third-party and second third-party claims against J-Tech Contracting, Inc. for breach of contract for failure to procure are DISMISSED, and the remainder of the motion is DENIED (motion seq. 005); 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.

DATE 12/10/25

ASHLEE CRAWFORD, A.J.S.C.