Hernandez v 303 W. 42nd St. Realty, LLC

Supreme Court, Bronx County

Decided on December 18, 2025

Index No. 33305/2020E

Ashlee Crawford, J.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 76-99, [*2]116-125, 137-139, 146-147 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 100-115, 126-131, 133-136, 140-145 were read on this motion to/for JUDGMENT - SUMMARY.

Defendant/third-party plaintiff 303 West 42nd Street Realty LLC ("303 West") and defendant Capital Improvement Services, LLC ("Capital") move pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint, including all claims asserted against them under Labor Law §§ 200 and 241(6) and for common law negligence; and for summary judgment granting conditional contractual and common law indemnification to 303 West and Capital as against defendant/third-party defendant Standard Waterproofing Corp. ("Waterproofing") (mot. seq. 002). Plaintiff only opposes dismissal of his Labor Law § 241 (6) claim as predicated on a violation of Industrial Code §§ 23-1.5 (c) (3) and 23-1.8 (a) (Moran Aff. in Opp ¶ 3 [NYSCEF Doc. 137]). Waterproofing opposes that part of the motion seeking contractual and common law indemnification against it.

Waterproofing separately moves for summary judgment dismissing plaintiff's complaint, as well as the third-party claims and cross-claims asserted against it by 303 West and Capital (mot. seq. 003). Plaintiff opposes that part of the motion directed to his complaint, and 303 West and Capital oppose that part of the motion directed to their cross-claims and third-party claims.

BACKGROUND

On August 10, 2020, plaintiff was injured while dismantling a sidewalk bridge at a construction site at 303 West 42nd Street, New York, New York. At the time of the accident, plaintiff was employed by third-party defendant Everest Scaffolding Inc. ("Everest"). According to the written contracts, 303 West, as owner, retained Capital to serve as construction manager for the project (303 West-Capital Contract [NYSCEF Doc. 91]). 303 West also retained Waterproofing to perform certain construction services (303 West-Waterproofing Contract [NYSCEF Doc. 92]). Waterproofing in turn retained Everest to install the sidewalk bridge and pipe scaffolding for the project.

Plaintiff testified that the Everest foreman, Chaco, tasked him with assisting in taking down a sidewalk bridge on the day of the accident (Pl. Tr. at 38:23-39:6, 113:4-24 [NYSCEF Docs. 94-95]). Plaintiff was not provided with, did not ask for, and was not wearing safety equipment to protect his eyes (id. at 44:24-45:19, 129:5-131:10). At the time of the accident, plaintiff was working on top of the bridge with Chaco, removing panels by using two hammers (id. at 118:11-25, 136:25-137:4, 154:12-156:6). To separate panels, plaintiff held one hammer in his left hand against the wood of the panel and hit that hammer with the second hammer in his right hand (id. at 118:22-120:23, 156:4-157:8). As plaintiff struck one hammer against the other, a piece of metal flew into his left eye (id. at 118:22-120:23, 157:4-8). Plaintiff believes the piece of metal came from one of the hammers (Pl. Tr. at 121:18-22, 156:18-21).

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.). [*3]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 § 200 and Common Law Negligence

Plaintiff does not oppose dismissal of his claims under Labor Law § 200 and for common negligence, which claims are therefore dismissed as abandoned (seeGamez 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]; Moran Aff. in Opp ¶ 3 [NYSCEF Doc. 137]).

II. Labor Law § 241(6)

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]).

"To be treated as a statutory agent, the subcontractor must have been delegated the supervision and control either over the specific work area involved or the work which gave rise to the injury" (Rodriguez v Riverside Ctr. Site 5 Owner LLC, 240 AD3d 452, 454 [1st Dept 2025]). "If the subcontractor's area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory" (id.)

Plaintiff opposes only the dismissal of his Labor Law § 241(6) claim as predicated on a violation of Industrial Code [12 NYCRR] §§ 23-1.5 (c) (3) and 1.8 (a). By not opposing dismissal of all other Industrial Code predicates, those other predicates are 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 [2016], lv dismissed 28 NY3d 1069 [2016], cert denied 583 US 842 [2017]).

Additionally, plaintiff alleges a violation of Industrial Code § 23-1.5 in his bill of particulars without specifying the relevant subdivision(s) or subsection(s), resulting in plaintiff's abandonment of this predicate (Caminiti v Extell W. 57th St. LLC, 166 AD3d 440, 441 [1st Dept 2018]; McLean v Tishman Constr. Corp., 144 AD3d 534, 535 [1st Dept 2016]; Bill of Part. ¶ 10 [NYSCEF Doc. 81]).

While Waterproofing argues that it is not a proper Labor Law defendant, the Court finds an issue of fact in this regard which precludes summary judgment dismissing plaintiff's claims.

Turning to Industrial Code 12 NYCRR § 23-1.8 (a), that predicate provides that "[a]pproved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any [*4]other operation which may endanger the eyes." That predicate is sufficiently specific to support a Labor Law § 241(6) claim (Buckley v Triborough Bridge and Tunnel Auth., 91 AD3d 508, 509 [1st Dept 2012]). However, defendants argue that plaintiff was not engaged in an operation that specifically endangered the eyes as contemplated in section 23-1.8 (a). Rather, they contend, the factual circumstances here amount to a freak accident insufficient to support liability thereunder. The Court agrees there is an issue of fact as to whether plaintiff's injury was proximately caused by a violation of Industrial Code 12 NYCRR § 23-1.8 (a) (see Roque v 475 Building Co., LLC, 171 AD3d 543, 544 [1st Dept 2019]["The issue of whether demolishing a sidewalk bridge and removing nails are activities covered by 12 NYCRR 23-1.8(a) is an issue of fact"]; Paulino v Bradhurst Associates, LLC, 144 AD3d 430 [1st Dept 2016]; Buckley v Triborough Bridge and Tunnel Auth., 91 AD3d 508, 509 [1st Dept 2012]; McByrne v Ambassador Constr. Co., Inc., 290 AD2d 243, 243-244 [1st Dept 2002]; see also Pl. Tr. at 131:10 [plaintiff's testimony that he was provided disposable eye protection, which he discarded after use]).

Accordingly, the motion by 303 West and Capital to dismiss plaintiff's Labor Law 241 (6) claim is denied as to the Industrial Code § 23-1.8 (a) predicate, but is granted as to all other predicates, which are dismissed.

III. Contractual Indemnification

303 West and Capital seek conditional judgment on their contractual indemnification cross-claims and third-party claim against Waterproofing. 303 West and Capital contend that 303 West retained the services of Waterproofing to provide all labor, material, and equipment to install sidewalk bridging and pipe scaffolding, and that they had no involvement with the means and methods of Waterproofing or Everest's work. 303 West and Capital rely upon the broad indemnification provision in the contract between 303 West and Waterproofing (see 303 West-Waterproofing Contract, ¶ 10.4 [NYSCEF Doc. 92]).

Waterproofing opposes and moves to dismiss these claims, arguing that although it was not Capital's subcontractor, its work fell under Capital's oversight. Waterproofing contends that it was retained for façade and roofing work, which necessitated the erection of scaffolding and sidewalk bridges; and that while it retained Everest to provide scaffolding and sidewalk bridges, Waterproofing and Everest were not in a general contractor-subcontractor relationship. Rather, Everest leased the scaffolds and sidewalk bridges to Waterproofing.

"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 subject indemnification provision does not run afoul of General Obligations Law § 5-322.1, as it 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]). Furthermore, 303 West and Capital [*5]have established their entitlement to conditional contractual indemnification, as the indemnification provision provides for Waterproofing to indemnify them from liability relating to personal injury arising out of or in connection with any accident "in or about the place where such Work is being performed or in the vicinity thereof (i) while Contractor is performing the Work, either directly or indirectly through a Contractor or materials Contract, or (ii) while any of Contractor's (of any tier) property, equipment or personnel are in or about such place or the vicinity thereof, provided the foregoing arise or result from the performance of the Work" (see 303 West-Waterproofing Contract, ¶ 10.4 [NYSCEF Doc. 92]; McKinney v. Empire State Dev. Corp., 217 AD3d 574, 575-576 [1st Dept 2023][establishing entitlement to conditional summary judgment on contractual indemnification claim]). As plaintiff's accident falls into such category, 303 West and Capital have met its prima facie burden, and Waterproofing's arguments are insufficient to overcome 303 West and Capital's entitlement to conditional contractual indemnification.

Therefore, 303 West and Capital's motion for summary judgment on their contractual indemnification cross-claims and third-party claim as against Waterproofing is granted, conditioned on a finding of liability against defendants on plaintiff's claim. Waterproofing's motion to dismiss 303 West and Capital's contractual indemnification cross-claims and third-party claim is denied.

IV. Common Law Indemnification

303 West and Capital also seek conditional judgment on their common law indemnification cross-claims and third-party claim against Waterproofing. Waterproofing opposes and seeks to dismiss these 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]; see also McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378 [2011]).

As to common law indemnification, Waterproofing has sufficiently shown that it was neither negligent nor had actual supervision or control of plaintiff's injury-producing work. Waterproofing did not direct the manner and means of Everest's work and was not on site when Everest did its work (Ricciardelli Tr. at 17:25-18:10, 22:17-23:2, 27:20-28:2 [NYSCEF Doc. 98]). 303 West and Capital's motion for summary judgment on their common law indemnification cross-claims and third-party claim as against Waterproofing is denied, and Waterproofing's motion to dismiss 303 West and Capital's common law indemnification cross-claims and third-party claim is granted.

Accordingly it is hereby

ORDERED that that part of the motions by defendants 303 West and Capital (seq. 002) and Waterproofing (seq. 003) seeking summary judgment dismissing plaintiff's complaint are DENIED as to plaintiff's claim under Labor Law § 241(6) predicated on Industrial Code 12 NYCRR § 23-1.8 (a), and are GRANTED as to plaintiff's claims for common law negligence and under Labor Law §§ 200 and 241(6), the latter as premised on all other Industrial Code predicates, which claims are DISMISSED; and it is further

ORDERED that that part of the motion by 303 West and Capital for summary judgment on their contractual and common law indemnification cross-claims and third-party claims as against Waterproofing. is GRANTED IN PART only as to the contractual indemnification [*6]claims, conditioned on a finding of liability against 303 West and Capital on plaintiff's claims; and the motion is DENIED as to the common law indemnification claims, which are DISMISSED (mot. seq. 002); and it is further

ORDERED that that part of the motion by Waterproofing to dismiss the cross-claims and third-party claims for contractual and common law indemnification asserted by 303 West and Capital is GRANTED IN PART as to the common law indemnification claims, which are DISMISSED; and DENIED as to the contractual indemnification claims (mot. seq. 003); 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 12/18/25

Ashlee Crawford, J.S.C.