Mays v Lend Lease (US) Constr. LMB Inc.

Supreme Court, Bronx County

Decided on December 12, 2025

Index No. 21339/2019E

Ashlee Crawford, J.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 67-78, 117-123, 138-141, 143, 146, 149 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 81-92, 124-127, 133-134, 144, 147, 150 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 94-113, [*2]128-132, 136-137, 140, 142, 145, 148, 151 were read on this motion to/for JUDGMENT -SUMMARY.

Upon the foregoing documents, it is

Plaintiff moves pursuant to CPLR 3212 for partial summary judgment as to liability on her claims under Labor Law §§ 241 (6) and 200 and for common law negligence asserted against defendants/third-party plaintiffs Lend Lease (US) Construction LMB, Inc., Lend Lease (US) Construction Inc. (together, "Lend Lease"), and defendants/third-party plaintiffs The New York and Presbyterian Hospital, The Presbyterian Hospital in the City of New York, and the New York and Presbyterian Hospitals, Inc. (together, "Presbyterian") (motion seq. 003).^FN1 Lend Lease, Presbyterian, and third-party defendant Lowy & Donnath, Inc. ("Lowy") oppose.

Lowy moves for summary judgment dismissing the third-party complaint, including third-party claims for common law indemnification and contribution, contractual indemnification, and breach of contract for failure to procure insurance (motion seq. 004). Lend Lease and Presbyterian oppose the motion only as to the contractual indemnification claim.

Lend Lease and Presbyterian move for summary judgment dismissing plaintiff's claims under Labor Law §§ 200 and 241 (6); and dismissing Lowy's counterclaims for common law and contractual indemnification, contribution, and breach of contract for failure to procure insurance; and for summary judgment on their third-party claims against Lowy for contractual indemnification and breach of contract for failure to procure insurance (motion seq. 005). Plaintiff opposes the motion as directed to her claims. Lowy opposes the motion as directed to it, except as to dismissal of its own counterclaims for breach of contract for failure to procure insurance and contractual indemnification.

BACKGROUND

On February 4, 2016, plaintiff was injured while working as an electrician at a construction site on the roof of The Allen Pavilion at The New York and Presbyterian Hospital, 5141 Broadway, New York, New York. Plaintiff was installing electric heat tracing cables and fire alarms on the roof. While walking on wire mesh over a plywood walkway on the roof, she slipped on wet "muck" that had accumulated in the wire mesh, and tripped over coiled wired mesh, falling and sustaining injuries.

Prior to the accident, plaintiff complained to the Lend Lease labor foreman and the foreman's supervisor about debris and coiled wired mesh on the plywood walkway on the roof, [*3]and was told that the issue would be taken care of (Plaintiff Tr. at 62:13-63:25, 138:18-23 [NYSCEF Doc. 72]). Others had also previously complained to plaintiff about the unsafe condition of the roof (id. at 52:25-55:24). While plaintiff did not complain about the roof being wet on the day of the accident, she testified it was "always wet" (id. at 64:2-16).

Bernard Esser, a journeyman construction electrician working for Lowy, affirmed that he witnessed plaintiff trip over rolled up wire mesh debris sticking up from the passageway (Esser Aff. at p. 1 [NYSCEF Doc. 74]). He affirmed that the roof, including the wire mesh, was always slippery, and that pieces of wire mesh created tripping hazards (id. at pp. 1-2).

Senior Project Manager for Lend Lease, Mark Drumm, testified that he had knowledge that the plywood on the roof was wet on or before the date of the accident, insofar as the plywood was exposed to the elements, but he cannot remember receiving any complaints about it or whether Lend Lease addressed the issue (Drumm Tr. at 62:22-63:14 [NYSCEF Doc. 75]).

One of Lend Lease's subcontractors, not Lowy, built the walkway at its direction, to protect the roof from damage (Drumm Tr. at 48:3-49:14, 60:9-14). The workers were directed to walk on the walkway, and not the roof itself (id. at 107:13-21).

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, Inc. v Ceppos, 46 NY2d 223, 231 [1978]).

I. Labor Law § 241 (6)

Plaintiff moves for partial summary judgment as to liability on his claim under Labor Law §§ 241 (6) against Lend Lease and Presbyterian. Lend Lease and Presbyterian move for summary judgment dismissing that claim.

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]).

Plaintiff argues that Presbyterian and Lend Lease violated Industrial Code §§ 23-1.7 (d), (e) (1), (e) (2), and 23-1.22 (b) (1), (2), and (3), thereby abandoning all other predicates not raised in her legal arguments (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]).

Plaintiff does not plead Industrial Code § 23-1.22 (1-3) in her bill of particulars and does [*4]not formally seek leave to amend. While the failure to identify an Industrial Code provision in the complaint or bill of particulars need not be fatal (Adams v Santa Fe Const. Corp., 288 AD2d 11, 12 [1st Dept 2001]), plaintiff does not seek leave to amend her bill of particulars to allege the predicate (cf. Marte v Tishman Constr. Corp., 223 AD3d 527, 528 [1st Dept 2024]). Further, outside of the conclusory assertion of plaintiff's expert, plaintiff has not shown that the walkway was a runway or ramp under Industrial Code § 23-1.22. Therefore, the Court denies the motion for summary judgment insofar as predicated on Industrial Code § 23-1.22 (1-3).

As to the remaining predicates, Industrial Code §§ 23-1.7 (d), (e) (1), and (e) (2) contain sufficiently specific commands to support a Labor Law § 241 (6) claim (see Lourenco v City of New York, 228 AD3d 577, 578 [1st Dept 2024]). Plaintiff has met her prima facie burden based on the Industrial Code §§ 23-1.7 (d) and (e) (2) predicates. However, Industrial Code § 23-1.7 (e) (1) is inapplicable and is therefore dismissed (see Smith v Extell W 45th LLC, 230 AD3d 1044 [1st Dept 2024]; Quigley v Port Auth. of NY & N.J., 168 AD3d 65, 67 [1st Dept 2018]).

Defendants' "integral to the work" defense is unavailing. As set forth in the deposition transcripts, and the affidavit of safety expert Peter Vottis (Vottis Aff. ¶¶ 13-15 [NYSCEF Doc. 78]), the risk of slipping or tripping on the wet debris trapped in the wire mesh was an "avoidable dangerous condition" for which defendants could have utilized preventative measures that would not have made it impossible to complete the work (Maldonado v Hines 1045 Ave. of the Ams. Invs. LLC, 227 AD3d 502, 503 [1st Dept 2024], citing Bazdaric v. Almah Partners LLC, 41 NY3d 310, 320-321 [2024]). Defendants' expert, Martin Bruno, does not dispute the alternative means of protecting the roof suggested by Vottis (Bruno Aff. [NYSCEF Doc. 111]). Notwithstanding, wet debris cannot be integral to the work. Therefore, plaintiff's motion for partial summary judgment on her Labor Law § 241 (6) claim predicated on Industrial Code §§ 23-1.7 (d) and (e) (2) is granted, and is denied as to the remaining predicates, which are dismissed; and defendants' motion for summary judgment is denied as to dismissal of the Labor Law § 241 (6) claim predicated on Industrial Code §§ 23-1.7 (d) and (e) (2), and is granted only to the extent of dismissing all other predicates.

II. Labor Law § 200 and Common Law Negligence

Plaintiff moves for partial summary judgment on her Labor Law § 200 and common law negligence claims against Lend Lease and Presbyterian. Defendants move for summary judgment dismissing 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 (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 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 [*5]owner or general contractor is liable if it actually exercised control over the injury-producing work" (id.).

Plaintiff has established the defendants were on actual notice of the coiled wire mesh, which caused her to trip and fall, and constructive notice of the wet debris in the wire mesh, which caused her to slip and fall. Presbyterian's and Lend Lease's argument that there was no notice as set forth in their expert's affidavit, despite plaintiff's testimony that she complained about tripping hazards prior to her accident, is rejected (Memo of Law in Opp at ¶¶ 22-24 [NYSCEF Doc. 120]). Whereas Lend Lease and Presbyterian were owners and general contractors of the project, plaintiff's motion for partial summary judgment is granted on her claims for violation of Labor Law § 200 and for common law negligence, and the motion by Lend Lease and Presbyterian to dismiss those claims is denied.

III. Contractual Indemnification

Lend Lease and Presbyterian move for summary judgment on their third-party claim against Lowy for contractual indemnification. Lowy opposes and moves for summary judgment dismissing that claim.

Lend Lease and Presbyterian also move for summary judgment dismissing Lowy's counterclaim for contractual indemnification, which Lowy does not oppose. As such, Lowy's contractual indemnification counterclaim is 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]).

"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 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]).

The Court has found that Lend Lease and Presbyterian were on actual or constructive notice of a dangerous condition at the premises which proximately caused plaintiff's accident. While the indemnification provision includes a savings clause, Lend Lease and Presbyterian have no right of indemnification against Lowy for their own negligence (see Vasquez v Manhattan Coll., 223 AD3d 601, 602-603 [1st Dept 2024]; General Obligations Law § 5—322.1; Lowy Subcontract at pp. 7-8, Art. 12 [NYSCEF Doc. 107]).

Therefore, Lowy's motion for summary judgment dismissing the third-party claim for contractual indemnification is granted, and the motion by Lend Lease and Presbyterian directed to that claim is denied.

IV. Breach of Contract — Failure to Procure Insurance

Lend Lease and Presbyterian move for summary judgment dismissing Lowy's counterclaim for breach of contract for failure to procure insurance. Because Lowy does not oppose the motion, that claim is dismissed as abandoned (see supra).

Lowy moves for summary judgment dismissing the third-party claim for breach of contract for failure to procure insurance asserted against it by Lend Lease and Presbyterian. Lend Lease and Presbyterian oppose and move for summary judgment in their favor on that 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]). "[A] certificate of insurance is merely evidence of a contract rather than conclusive proof that coverage was procured" (Shala v Park Regis Apt. Corp., 192 AD3d 607, 608 [1st Dept 2021] [citation omitted]).

Presbyterian and Lend Lease submit their contract, which requires Lowy to procure insurance covering the work, and to name Lend Lease and any other entity as required in the Owner/Contractor Agreement (Lowy Contract at p. 7, Art. 11 and p. 68, Exhibit C; Presbyterian-Lend Lease Contract at pp. 20-21, §§ 8.1, 8.3, 8.5 [NYSCEF Doc. 106]).

Lowy submits its insurance policies, which name Presbyterian as an additional insured (NYSCEF Docs. 84-87, 88 [Umbrella Policy] at p. 88 Section 2 [3]). Lowy submits a certificate of insurance, which names Lend Lease as an additional insured to its primary and umbrella policies (NYSCEF Doc. 90).

Lowy has met its burden as to Presbyterian. However, there is an issue of fact as to whether coverage was procured for Lend Lease (see Shala, 192 AD3d 608). Therefore, Lowy's motion for summary judgment dismissing the third-party claim for breach of contract is granted as asserted by Presbyterian and denied as asserted by Lend Lease; and Lend Lease and Presbyterian's motion for summary judgment on the third-party claim for breach of contract is denied.

V. Common Law Indemnification and Contribution

Lowy moves for summary judgment dismissing the third-party claims for common law indemnification and contribution asserted against it by Presbyterian and Lend Lease, on the ground that plaintiff did not sustain a "grave injury." Presbyterian and Lend Lease do not oppose this part of Lowy's motion, but separately move for summary judgment dismissing Lowy's counterclaims for common law indemnification and contribution asserted against them. Lowy opposes.

"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 she sustained a "grave injury," the motion by Lowy for summary judgment dismissing the third-party claims for common law indemnification and contribution is granted without opposition (Tavarez v LIC Dev. Owner, L.P., 205 AD3d 565, 567 [1st Dept 2022]; Purcell v Visiting Nurses Foundation Inc., 127 AD3d [*6]572, 574 [1st Dept 2015]). Finally, the motion by Presbyterian and Lend Lease to dismiss Lowy's counterclaims for common law indemnification and contribution is denied as premature.

Accordingly, it is hereby

ORDERED that that part of plaintiff's motion for partial summary judgment as to liability on her Labor Law § 241 (6) claim against defendants/third-party plaintiffs Lend Lease (US) Construction LMB, Inc., Lend Lease (US) Construction Inc., The New York and Presbyterian Hospital, The Presbyterian Hospital in the City of New York, and the New York and Presbyterian Hospitals, Inc. is GRANTED IN PART as predicated on Industrial Code §§ 23-1.7 (d) and (e) (2), and is DENIED as to the remaining predicates, including all predicates not raised in plaintiff's legal arguments, which are DISMISSED as abandoned (motion seq. 003); and it is further

ORDERED that that part of plaintiff's motion for partial summary judgment as to liability on her Labor Law § 200 and common law negligence claims is GRANTED (motion seq. 003); and it is further

ORDERED that the motion by third-party defendant Lowy & Donnath, Inc. for summary judgment dismissing the third-party claims asserted against it is DENIED only as to the claim for breach of contract for failure to procure insurance as asserted by the Lend Lease parties, but is otherwise GRANTED as to the claim for breach of contract for failure to procure insurance as asserted by the Presbyterian parties and as to the claims for common law indemnification, contribution, and contractual indemnification, and those claims are DISMISSED (motion seq. 004); and it is further

ORDERED that that part of the motion by defendants/third-party plaintiffs for summary judgment dismissing plaintiff's claims under Labor Law §§ 200 and 241 (6) is DENIED as to dismissal of the Labor Law § 200 claim and the Labor Law § 241 (6) claim as predicated on Industrial Code §§ 23-1.7 (d) and (e) (2), and is GRANTED only to the extent of dismissing all other Industrial Code predicates consistent with the holding on motion seq. 003 (motion seq. 005); and it is further

ORDERED that that part of the motion by defendants/third-party plaintiffs for summary judgment dismissing third-party defendant Lowy & Donnath, Inc.'s counterclaims is DENIED as to the counterclaims for common law indemnification and contribution, but is GRANTED as to the counterclaims for contractual indemnification and breach of contract for failure to procure insurance and those claims are DISMISSED (motion seq. 005); and it is further

ORDERED that that part of the motion by defendants/third-party plaintiffs for summary judgment on their third-party claims against third-party defendant Lowy & Donnath, Inc. for contractual indemnification and breach of contract for failure to procure insurance is DENIED (motion seq. 005); 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.

DATE 12/12/2025

ASHLEE CRAWFORD, J.S.C.