Cuddihy v Bronx Pro Group LLC

Supreme Court, Bronx County

Decided on December 22, 2025

Index No. 25624/2019E

Ashlee Crawford, J.

Plaintiff Brian Cuddihy moves for partial summary judgment as to liability on his Labor Law §§ 240 (1) and 241 (6) claims against defendants/third-party defendants/second third-party defendants Bronx Pro Group LLC ("Bronx Pro"), Dreamyard 1017 Home Street Housing Development Fund Corporation ("Dreamyard"), and Home Builders 1 L.P. ("Home Builders"). Those defendants and second third-party defendant Vaya separately oppose (mot. seq. 005).

Bronx Pro, Dreamyard, and Home Builders move to dismiss plaintiff's complaint, including the claims under Labor Law §§ 200, 240 (1) and 241 (6) and for common law negligence, and all cross-claims and counterclaims asserted against them; and for summary [*2]judgment on their third-party claims for contractual indemnification and breach of contract for failure to procure insurance asserted against third-party defendants Jemco Erectors Inc. (Jemco) and Exterior Erecting Services Inc. (Exterior), and second third-party defendant Vaya Restoration Inc. (Vaya). Plaintiff, Jemco, and Vaya and Exterior separately oppose, and Exterior cross-moves to dismiss the foregoing third-party claims for contractual indemnification and breach of contract. Bronx Pro, Dreamyard, and Home Builders oppose the cross-motion (mot. seq. 004).

Third-party defendant Jemco moves pursuant to CPLR 3212 for summary judgment dismissing the third-party claims for common law indemnification, contribution, breach of contract, and contractual indemnification; and for summary judgment on its third-party cross-claim for contractual indemnification asserted against third-party defendant Exterior. Vaya opposes. Bronx Pro, Dreamyard, and Homebuilders oppose dismissal of the contractual indemnification claim. Exterior opposes and cross-moves to dismiss Jemco's claim for contractual indemnification; Jemco opposes the cross-motion (mot. seq. 003).

BACKGROUND

On May 15, 2018, plaintiff was injured while working at a construction site located at 1017 Home Street, Bronx, New York. Dreamyard owns the premises, and Bronx Pro serves as real estate developer. Dreamyard retained Home Builders as general contractor for a construction project at the premises (Home Builders Contract [NYSCEF Doc. 183]), and Home Builders hired non-party C&S Construction as construction manager and on-site superintendent. Home Builders then subcontracted certain work to Jemco and Vaya (Jemco Contract [NYSCEF Doc. 167]; Vaya Contract [NYSCEF Doc. 169]). Jemco, in turn, subcontracted the installation of, among other things, internal and exterior wall panels to plaintiff's employer, Exterior.

On the day of the accident, plaintiff was working with another Exterior worker, Nora Shaat, under the direction of Exterior's foreman, Daniel Holland. The three were in the process of plumbing and leveling an internal wall panel for one of the load-bearing walls of the new building (Pl. Tr. at 98-101, 105-109 [NYSCEF Doc. No. 186]; Holland Tr. at 78-79 [NYSCEF Doc. 187]). The wall panel was secured in place by kickers, tapcon screws, and tiebacks (Pl. Tr. at 102; Holland Tr. at 49-56). The kickers and tiebacks were either attached to an adjoining panel or bolted into the ground (Holland Tr. at 51-55). The panels were top heavy and weighed between 700 and 1000 pounds (Holland Tr. at 34, 79; Shaat Tr. at 63, 184 [NYSCEF Doc. 188]).

To plumb and level the panel for final installation, certain safety devices had to be loosened so that plaintiff could adjust the wall's position (Holland Tr. at 74-75; Shaat Tr. at 46-49). Holland testified that the remaining safety devices should have been sufficient to support the wall (Holland Tr. at 109-110). Plaintiff and Shaat testified that an additional safety device called a "come-along" should have been used to secure the panel while it was being adjusted, but was not (Pl. Tr. at 116; Shaat Tr. at 57-59).

The panel in question was adjoined by another panel on one side, and open on the other side (Pl. Tr. at 105). Plaintiff was standing next to the open side of the panel while Holland was measuring the level of the panel and Shaat was waiting to release one of the safety devices (Pl. Tr. at 105-106; Holland Tr. at 76-77). After Shaat released the device, plaintiff testified that he heard yelling, looked up, and noticed that the panel was beginning to fall over (Pl. Tr. at 107-108). He attempted to evade the panel but stumbled on debris and planks that had been left near the panel, and fell over (id. at 101). The panel then fell on top of his leg (id.).

As an initial matter, the moving defendants argue that Bronx Pro is not a proper Labor [*3]Law defendant. Plaintiff does not dispute this argument, nor offer any arguments as to why Bronx Pro, which is neither the owner, general contractor, nor an agent thereof with any connection to the construction work, should be considered a proper Labor Law defendant (Rodriguez v Riverside Ctr. Site 5 Owner LLC, 240 AD3d 452, 454-455 [1st Dept 2025]). Accordingly, that part of the moving defendants' motion to dismiss the complaint against Bronx Pro is granted.

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. Abandoned Claims

Bronx Pro, Dreamyard, and Homebuilders do not oppose dismissal of the third-party claims for common law indemnification, contribution, and breach of contract asserted against Jemco, though those defendants separately move for summary judgment on the breach of contract claim. Therefore, the third-party claims for common law indemnification and contribution 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]).

II. Labor Law § 240 (1)

Plaintiff moves for partial summary judgment as to liability on his Labor Law § 240 (1) claim, and the moving defendants seek dismissal of that claim.

Labor Law § 240 (1) provides in relevant part that where there is erection, demolition, repairing, or altering of a building, contractors and owners "shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." "The statute imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). "[W]here an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense; however, where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability" (id. [internal quotation marks omitted]). "Thus, in order to recover under section 240 (1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury" (id.). Labor Law § 240 (1) is to be liberally construed so as to accomplish its legislative purpose of protecting workers (Stoneham v Joseph Barsuk, Inc., 41 NY3d 217, 221 [2023]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

"Not every worker who falls at a construction site, and not every object that falls on a [*4]worker, gives rise to the extraordinary protections of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). "[L]iability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (id., citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

"In order to prevail on summary judgment in a section 240(1) 'falling object' case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (Fabrizi v 1095 Ave. of the Americas, LLC, 22 NY3d 658, 662 [2014][internal quotation marks and citation omitted]). "Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being "hoisted or secured," or "required securing for the purposes of the undertaking" (id. [internal citations omitted]). Section 240(1) does not automatically apply simply because an object fell and injured a worker; a plaintiff must show that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (id. [emphasis removed, citation omitted]; Torres-Quito v 1711 LLC, 227 AD3d 113, 116 [1st Dept 2024]).

By this standard, plaintiff has established prima facie that he suffered a "falling object" injury and defendants have not raised an issue of fact to preclude summary judgment.

Accordingly, that part of plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240 (1) claim is granted, and that part of the moving defendants' motion to dismiss the claim is denied.

III. Labor Law § 241 (6)

The moving defendants seek to dismiss plaintiff's Labor Law § 241 (6) claim, and plaintiff moves for partial summary judgment as to liability in his favor on this 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]).

Plaintiff only contests the dismissal of, and seeks summary judgment on, Industrial Code 12 NYCRR 23-1.7 (e) (2) and 23-2.1 (a) (1). All other predicates not raised in plaintiff's legal arguments are dismissed as abandoned, including 12 NYCRR 23-1.7 (a) (1) and (2) (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]).

Additionally, plaintiff did not sufficiently allege a violation of Industrial Code § 23-1.7 (e) (2) in his bill of particulars. Plaintiff cited Section 23-1.7, 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. ¶ 14 [NYSCEF Doc. 180]).

Section 23-2.1 (a) (1) provides that "[a]ll building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not [*5]obstruct any passageway, walkway, stairway or other thoroughfare." This predicate is inapplicable as the panel in question was not being "stored" (Brown v Tishman Construction Corp. of New York, 226 AD3d 529, 530 [1st Dept 2024]; Diaz v P&K Contracting, Inc., 224 AD3d 405, 407 [1st Dept 2024]; cf. Castaldo v F.J. Sciame Construction Co. Inc., 222 AD3d 579, 580 [1st Dept 2023]; Rodriguez v DRLD Dev., Corp., 109 AD3d 409, 410 [1st Dept 2013]); was not a "material pile" (Lourenco v City of New York, 228 AD3d 577, 582 [1st Dept 2024]); and was not obstructing a "passageway, walkway, stairway or other thoroughfare" (Diaz v P&K Contracting, Inc., supra at 407; Ormsbee v Time Warner Realty Inc., 203 AD3d 630 [1st Dept 2022]; cf. Padilla v Touro College Univ. System, 204 AD3d 415, 416 [1st Dept 2022]).

Accordingly, that part of the moving defendants' motion to dismiss the Labor Law § 241 (6) claim is granted, and that part of plaintiff's motion for partial summary judgment as to liability on this claim is denied.

IV. Labor Law § 200 and Common Law Negligence

The moving defendants seek summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence claims. Plaintiff opposes.

"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.).

Here, there are two factors impacting plaintiff's accident: the falling wall panel and the debris and planks plaintiff alleges he tripped over. Both events arise out of the means and methods of the work, as neither are conditions inherent in the premises (see Lindemann v VNO 100 W. 33rd St. LLC, 223 AD3d 434 [1st Dept 2024]). As to the interior wall panel, it is undisputed that Exterior controlled and directed all work related to wall panel installation (Pl. Tr. at 50-51). Any general supervisory authority over the project on the part of the moving defendants is insufficient to establish liability for a "means and methods" injury (Diaz v P&K Contr., Inc., 224 AD3d 405, 407 [1st Dept 2024]).

As to the debris and planks, Holland testified that Home Builders, as general contractor, was responsible for clearing debris from the site (Holland Tr. at 40-41, 130), and the moving defendants do not dispute this. Moreover, Vaya's principal, Balvir Singh, testified that Home Builders directed Vaya where to place the planks (Singh Tr. at 70, 95-96 [NYSCEF Doc. 164]). Thus, Home Builders had supervision and control over both the debris and the planks. There is, however, no proof that Dreamyard or Bronx Pro had supervision or control over the debris or the planks, and accordingly these claims are dismissed against them.

Home Builders argues that the planks were placed such that there was sufficient room to work next to the panels and that plaintiff was not positioned next to the debris to have been in danger of tripping over it, which plaintiff disputes. Singh, testifying on behalf of Vaya, testified that there was sufficient room based on where the planks should have been left prior to the accident (Singh Tr. at 153-154). He also testified that, given the way the planks were positioned in the photograph taken after the incident, they were a tripping hazard that should have been moved (id.). The record does not indicate who, if anyone, moved the planks before the incident, nor is there a clear answer to the dispute regarding whether plaintiff had sufficient space to maneuver between the panel and the planks. These issues of fact preclude summary judgment in favor of Home Builders.

Accordingly, that part of the moving defendants' motion to dismiss plaintiff's Labor Law § 200 and common law negligence claims is granted to the extent of dismissing the claims against Dreamyard and Bronx Pro, and is otherwise denied.

V. Timeliness of the Cross-Motions

Jemco argues that Exterior's cross-motion against it is untimely, and while the moving defendants do not raise this argument in response to Exterior's other cross-motion, Exterior filed both cross-motions on the same day.

CPLR 3212 (a) provides that summary judgment motions must be made within 120 days of the filing of the note of issue, or such earlier time as the court may direct. A court may only entertain a late-filed summary judgment motion upon "a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy" (Brill v City of New York, 2 NY3d 648, 652 [2004]). If the moving party fails to offer any excuse for its tardiness, the motion must be denied without regard to its potential merit (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727 [2004]). However, where an untimely cross-motion seeks "nearly identical" relief as the initial motion, a court may consider it even in the absence of good cause for the delay (Filannino v Triborough Bridge and Tunnel Auth., 34 AD3d 280, 281 [1st Dept 2006]). Any relief sought by the cross-movant that is not "nearly identical" must be denied (Maggio v 24 W. 57 APF, LLC, 134 AD3d 621, 628-629 [1st Dept 2015]).

On February 22, 2024, the Court so-ordered a stipulation setting forth a motion schedule for this matter and directing the parties to file all motions for summary judgment on or before April 27, 2024, which was the 120th day (NYSCEF Doc. 112). While the schedule was later amended, there was no mention of extending the time to cross-move (NYSCEF Doc. 194). Accordingly, Exterior's cross-motions are untimely, and Exterior offers no explanation for its untimely filings. However, Exterior cross-moves to dismiss those claims that Jemco and the moving defendants seek summary judgment against it on; therefore Exterior is seeking "nearly identical" relief, and the Court will consider the cross-motions.

V. Contractual Indemnification

Jemco seeks to dismiss the moving defendants' claim for contractual indemnification, and for summary judgment on its own claim against Exterior (seq. no. 003). Exterior cross-moves to dismiss Jemco's claim (seq. no. 003). The moving defendants seek summary judgment on their claims for contractual indemnification against Jemco, Exterior, and Vaya (seq. no. 004). Exterior cross-moves to dismiss the moving defendants' claim (seq. no. 004). The motions and cross-motions are opposed.

"A party is entitled to full contractual indemnification provided that the 'intention to [*6]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]).

To obtain conditional relief on a claim for contractual indemnification, the one seeking indemnity must establish that it was free from any negligence and may be held liable solely by virtue of statutory or vicarious liability (Spielmann v 170 Broadway NYC LP, 187 AD3d 492, 494 [1st Dept 2020]). Conversely, "where a triable issue of fact exists regarding the indemnitee's negligence, a conditional order of summary judgment for contractual indemnification must be denied as premature" (id. [internal quotations and citation omitted]).

The contract between Home Builders and Jemco contains a Hold Harmless Agreement which provides that Jemco shall indemnify "[Home Builders], all entities [Home Builders] is required to indemnify and hold harmless, [and] the Owner of the property" from all claims "arising out of or resulting from the Work covered by this Contract Agreement including but not limited to wrongful acts or any omission, fault, or negligence of subcontractor, or of anyone acting on subcontractor's behalf" (Home Builders-Jemco Contract, NYSCEF Doc. 129 at Ex. C, § 1). Bronx Pro and Dreamyard are listed as required indemnified parties (id. at pp. 41-42, "List of Indemnified Parties and Additional Insureds"). Jemco does not meaningfully dispute that Exterior was performing work within Jemco's scope of work under its contract. The Hold Harmless Agreement further provides that only "liability created by the sole and exclusive negligence of the Indemnified Parties" is excluded from indemnification (id. at p. 38, § 1). Further, the 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]).

As set forth above, neither Dreamyard nor Bronx Pro may be found solely negligent for plaintiff's accident. Accordingly, they are entitled to indemnification by Jemco under the terms of the agreement (Drzewinski, 70 NY2d at 777). However, issues of fact remain regarding Home Builders' potential negligence related to the debris near the accident site, precluding as premature a finding of indemnification in its favor (Spielmann, 187 AD3d at 494).

Vaya's contract with Home Builders contains an identical Hold Harmless Agreement (Home Builders-Vaya Contract, NYSCEF Doc. 169 at 49, § 1). However, issues of fact remain as to whether plaintiff's accident arose out of Vaya's work, as set forth above. Therefore, the motions for summary judgment on the third-party claim for breach of contract by Home Builders, Dreamyard, and Bronx Pro are denied. Home Builders' potential negligence precludes summary judgment in their favor entirely (Spielmann, 187 AD3d at 494).

Finally, Exterior's subcontract with Jemco also contains a Hold Harmless Agreement substantially identical to the above provision (Exterior Contract, NYSCEF Doc. 168 at p. 20, § 1). Exterior argues that the moving defendants are not identified in the Agreement, but the first [*7]page of the contract clearly identifies Home Builders as the contractor, and Dreamyard and Bronx Pro are listed as indemnified parties in the Hold Harmless Agreement. Further, Dreamyard and Bronx Pro are also "entities that [Jemco] is required to indemnify" under the prime contract (Exterior Contract, NYSCEF Doc. 168 at 20, § 1).

Exterior also argues that it is unclear which version of its contract applies, submitting what it asserts are three separate versions of the agreement, one of which does not contain the Hold Harmless Agreement (NYSCEF Docs. 219-221). Exterior cannot dispute, however, that both versions that contain the Hold Harmless Agreement are signed by Exterior and dated November 15, 2017, well before the date of plaintiff's accident (NYSCEF Doc. 220 at 24; NYSCEF Doc. 221 at 23). The witness testimony Exterior relies on to attempt to create an ambiguity is parol evidence inadmissible to vary the terms of the contract (see Offenbach v Ohlbaum, 217 AD3d 456, 457 [1st Dept 2023], lv dismissed, 41 NY3d 991 [2024]). Therefore, Exterior must indemnify the moving defendants, as well as Jemco.

Accordingly, that part of Jemco's motion for summary judgment on its claim for contractual indemnification against Exterior is granted, and Exterior's cross-motion to dismiss the claim is denied. That part of the moving defendants' motion for summary judgment on their contractual indemnification claims is granted only in favor of Dreamyard and Bronx Pro against Jemco and Exterior, and is otherwise denied. Finally, that part of Exterior's cross-motion to dismiss those claims is denied.

VI. Failure to Procure Insurance

Jemco moves to dismiss the moving defendants' claim for failure to procure insurance (mot. seq. 003). The moving defendants move for summary judgment on this claim against Jemco, Vaya, and Exterior (mot. seq. 004). Exterior cross-moves to dismiss the moving defendants' claims. The motions and cross-motion are opposed.

"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]). That an insurer disclaims coverage does not give rise to a claim for failure to procure insurance (e.g. Perez v Morse Diesel Intern., Inc., 10 AD3d 497, 498 [1st Dept 2004]).

The Hold Harmless Agreements all require Jemco, Vaya, and Exterior to procure insurance naming the moving defendants as additional insureds (Jemco Contract at 38, § 2 [NYSCEF Doc. 129]; Vaya Contract at 49, § 2 [NYSCEF Doc. 169]; Exterior Contract at 22, § 2 [NYSCEF Doc. 220]). The moving defendants argue that Exterior has breached its agreement because Exterior has not accepted the moving defendants' tender of the defense of this action and must not have procured insurance, but offers no proof of this claim. Moreover, Exterior has identified a primary and an excess insurance policy in its discovery responses (NYSCEF Doc. 226). Home Builders has met its prima facie burden as against Exterior by submitting Jemco's contract with Exterior, which requires Exterior to procure insurance, which shall name moving defendants as additional insureds. Exterior's discovery response alone is insufficient to overcome summary judgment, since it does not prove it procured the requisite insurance (Benedetto, 203 AD3d at 506). Therefore, moving defendants' motion for summary judgment on [*8]their breach of contract claim against Exterior is granted, and Exterior's motion for summary judgment is denied as against moving defendants.

Jemco submits a tender acceptance letter from its insurance carrier, which accepted the tender of this action with a reservation of its rights (NYSCEF Doc. 239). The moving defendants concede in their reply papers that Jemco has procured "additional insured coverage," but they still argue that Jemco has breached the contract because its carrier has not terminated its reservation of rights (Serlin Reply Aff. ¶ 65 [NYSCEF Doc. 271][seq. 004]). While Jemco did not submit its insurance policy, given the moving defendants' concession, the Court finds an issue of fact as to whether Jemco breached the contract by failing to procure insurance. The Court rejects defendants' argument concerning the reservation of rights by Jemco's insurer (see Perez, 10 AD3d at 498). Therefore, summary judgment directed to defendants' breach of contract claim against Jemco is denied.

Finally, regarding Vaya, as set forth above, issues of fact remain as to whether plaintiff's accident arose out of Vaya's work, precluding moving defendants' motion for summary judgment on their third-party breach of contract claim against Vaya.

The Court has considered the parties' remaining contentions and any request for relief not specifically addressed herein is denied. Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment as to liability on his Labor Law §§ 240 (1) and 241 (6) claims is GRANTED IN PART as directed to the Labor Law § 240 (1) claim asserted against Dreamyard 1017 Home Street Housing Development Fund Corp. ("Dreamyard") and Home Builders 1 L.P ("Home Builders") only, and the motion is otherwise DENIED (mot. seq. 005); and it is further

ORDERED that the motion by defendants/third-party plaintiffs Bronx Pro Housing Group LLC ("Bronx Pro"), Dreamyard, and Home Builders for summary judgment is GRANTED IN PART as follows:

(a) summary judgment dismissing the complaint as against Bronx Pro is GRANTED in its entirety;

(b) summary judgment dismissing plaintiff's claim under Labor Law § 240 (1) is DENIED as against Dreamyard and Home Builders;

(c) summary judgment dismissing plaintiff's claim under Labor Law § 241 (6) is GRANTED as against Dreamyard and Home Builders;

(d) summary judgment dismissing the cross-claims and counterclaims asserted as against them is GRANTED to the extent that the cross-claims and counterclaims not specifically addressed in this decision and order are DISMISSED without opposition;

(e) summary judgment dismissing plaintiff's claims under Labor Law § 200 and common-law negligence is GRANTED as against Dreamyard and is otherwise DENIED;

(f) summary judgment on the third-party claims for contractual indemnification asserted against third-party defendants Jemco Erectors Inc. and Exterior Erecting Services Inc. is GRANTED in favor of Dreamyard, and otherwise DENIED;

(g) summary judgment on the second third-party claims for contractual indemnification asserted against second third-party defendant Vaya Restoration Inc. is DENIED;

(h) summary judgment on the third-party and second third-party claims for breach of contract for failure to procure insurance is GRANTED as asserted against Exterior Erecting Services Inc. and is otherwise DENIED as asserted against Jemco Erectors Inc., and Vaya Restoration Inc (mot. seq. 004); and it is further

ORDERED that the cross-motion by third-party defendant Exterior Erecting Services Inc. for summary judgment dismissing the third-party claims for contractual indemnification and breach of contract for failure to procure insurance asserted against it by defendants/third-party plaintiffs is GRANTED only to the extent that Bronx Pro's claim for contractual indemnification is DISMISSED as moot; and the motion is otherwise DENIED (mot. seq. 004); and it is further

ORDERED that the motion by third-party defendant Jemco Erectors Inc. for summary judgment is GRANTED IN PART as follows:

(a) summary judgment dismissing defendant/third-party plaintiffs Bronx Pro, Dreamyard, and Home Builders' claims is GRANTED to the extent that the third-party claims for common-law indemnification and contribution are DISMISSED, and Bronx Pro's claim for contractual indemnification is DISMISSED as moot, and the remainder of that part of the motion is otherwise DENIED;

(b) summary judgment on its cross-claim as asserted against third-party defendant Exterior Erecting Services Inc. for contractual indemnification is GRANTED in favor of Jemco Erectors Inc. (mot. seq. 003); and it is further

ORDERED that the cross-motion by third-party defendant Exterior Erecting Services Inc. for summary judgment dismissing Jemco Erectors Inc.'s claim for contractual indemnification is DENIED (mot. seq. 003); 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 12/22/2025

HON. ASHLEE CRAWFORD