Salas v Joy Constr. Corp.

Supreme Court, Bronx County

Decided on December 19, 2025

Index No. 303619/2013E

Ashlee Crawford, J.

The following e-filed documents, listed by NYSCEF document number (Motion 011

were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, it is

Defendant/third-party plaintiff/second third-party plaintiff/third third-party plaintiff Joy Construction Corp. ("Joy") moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint, which includes his remaining claims under Labor Law §§ 241 (6) and 200; and for summary judgment on its third-party claims for contractual indemnification and breach of contract for failure to procure insurance asserted against third-party defendants F.A. & Partners, Inc. and F.A. & Associates (together, "FA").^FN1 Plaintiff opposes dismissal of his claims under Labor Law §§ 200 and 241 (6), the latter as predicated on violations of Industrial Code [12 NYCRR] §§ 23-1.7 (e)(2), 23-9.2 (b)(1), and 23-9.8 (h). FA, which has not appeared by counsel since its prior counsel withdrew, does not oppose Joy's motion.

BACKGROUND

On June 11, 2010, plaintiff was injured in a forklift accident while working as a foreman/window installer at a construction project at 175 Kent Avenue, Brooklyn, New York. Joy was the general contractor, which sub-contracted with FA to supply and install windows. FA in turn sub-contracted with plaintiff's employer, second third-party defendant Clearview Architectural Inc. d/b/a Clearview Glass Enterprises ("Clearview"), to install windows. The owner of the building is non-party The Chadwick Group (McLaughlin Tr. at 35:16-21 [NYSCEF Doc. 23]).

According to plaintiff, Joy's employee was operating the forklift on the day of the accident (Pl. Tr. at 44:25-45:9 [NYSCEF Doc. 22]). Plaintiff, who was a foreman at the time of the accident, was notified by his supervisor, Gaston, of a window delivery that day (Pl. Tr. at 27:20-28:11, 32:6-16, 40:24-41:7). Inside of the delivery truck was a wooden crate containing a metal frame glass door which was leaning against the interior of the truck's container (Pl. Tr. at 43:13-44:20, 51:13-23). Plaintiff entered the truck with the intention of pulling the crate away from the wall of the truck so that the forklift could adjust it and take it out (Pl. Tr. at 51:3-52:21). While plaintiff was inside of the truck and standing at the far end of the crate, the forklift operator placed the forklift under the crate (Pl. Tr. at 53:3-9). When the operator pushed the forklift in, only one pallet of the forklift grabbed the crate, causing the crate to tilt to plaintiff's left (Pl. Tr. at 59:22-60:12). With one end of the tilted crate on the forklift, plaintiff held the other end of the crate by the sides to prevent it from falling (Pl. Tr. at 65:13-66:8, 70:14-71:24). While he was holding the crate, the forklift operator entered the truck (Pl. Tr. at 53:15-55:15, [*2]57:16-58:21). When plaintiff told the operator to get off the truck and pull the forklift out, the operator kicked a 2x6 piece of wood that was underneath the crate and the crate dropped on plaintiff's knees and left foot, injuring plaintiff (Pl. Tr. at 54:9-21, 59:22-60:7, 62:13-64:25, 74:20-75:17, 79:9-24).

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 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]).

Joy seeks to dismiss plaintiff's claims under OSHA 1936.250(a)(1) as the claimed violation does not establish a basis for liability under section 241(6) (see Alberto v DiSano Demolition Co., Inc., 194 AD3d 607, 608 [1st Dept 2021]) and plaintiff does not oppose. As such, the OSHA violation claim is dismissed.

In his opposition papers, plaintiff cites Industrial Code [12 NYCRR] §§ 23-1.7 (e)(2), 23-9.2 (b)(1), and 23-9.8 (h) as predicates for his Labor Law § 241 (6) claim (Affirm. in Opp. ¶¶ 94-99 [NYSCEF Doc. 33]). However, plaintiff has not pled a violation of sections 23-9.2 (b)(1) or 23-9.8 (h) (see Supp. Bill of Part. & Ver. Bill of Part. ¶ 14 [NYSCEF Doc. 18]; Complaint ¶¶ 65, 82-85 [NYSCEF Doc. 17]). While the failure to identify a specific 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 his bill of particulars to allege a violation of sections 23-9.2 (b)(1) or 23-9.8 (h) (see Marte v Tishman Constr. Corp., 223 AD3d 527, 528 [1st Dept 2024]). Accordingly, Industrial Code §§ 23-9.2 (b)(1) and 23-9.8 (h) are dismissed.

Moreover, in his bill of particulars, plaintiff alleges a violation of Industrial Code § 23-2.1 without specifying the relevant subdivision(s) or subsection(s), resulting in plaintiff's abandonment of that predicate, the dismissal of which he does not oppose (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]; see Supp. Bill of Part. & Ver. Bill of Part. ¶ 14 [NYSCEF Doc. 18]; [*3]Complaint ¶¶ 65, 82-85 [NYSCEF Doc. 17]).

As to plaintiff's sole remaining predicate, Industrial Code (12 NYCRR) § 23-1.7 (e) (2)("Tripping and other hazards — Working areas") provides that "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed." The subsection is sufficiently specific to sustain a claim under Labor Law § 241 (6) (Licata v AB Green Gansevoort, LLC, 158 AD3d 487, 489 [1st Dept 2018]). "On its face, section 23-1.7 (e) (2) does not apply to all potential tripping hazards but only to 'accumulations of dirt and debris,' 'scattered tools and materials,' and 'sharp projections'" (Cioppa v ESRT 112 W. 34th St., L.P., 232 AD3d 411, 412 [1st Dept 2024]).

Industrial Code § 23-1.7 (e)(2) is inapplicable here, as plaintiff did not trip and alleges no tripping hazard (Raffa v City of New York, 100 AD3d 558, 559 [1st Dept 2012]; Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 147 [1st Dept 2012]). Therefore, the Industrial Code 12 NYCRR § 23-1.7 (e)(2) predicate is dismissed, and the Labor Law 241 (6) claim is dismissed in its entirety.

II. Labor Law 200

"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 mere retention of the contractual privilege to override hazardous means and method of the work is insufficient to infer actual supervisory control (Lourenco v City of New York, 228 AD3d 577, 583 [1st Dept 2024]), issues of fact exist here as to whether Joy actually exercised supervisory control over the work so as to be liable for the means and methods of the forklift operator's work (Sandoval-Morales v 164-20 N. Blvd., LLC, 231 AD3d 501, 503 [1st Dept 2024]). Joy's witnesses testified that Joy did not have a forklift on premises (McLaughlin Tr. at 21:2-8 [NYSCEF Doc. 23]) or they could not recall whether Joy did (Tucker Tr. at 54:16-21 [NYSCEF Doc. 24]); whereas plaintiff testified that the forklift operator was a Joy employee and FA's witness testified that Joy agreed to provide a forklift and forklift operator (Kenny Tr. at 55:7-57:12 [NYSCEF Doc. 26]). Accordingly, dismissal of plaintiff's Labor Law § 200 claim is denied.

III. Contractual Indemnification

"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 [*4]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]). However, conditional judgment on the issue of contractual indemnity is premature where triable issues of fact exist as to the indemnitee's negligence (Mohammed v Silverstein Props., Inc., 74 AD3d 453, 454 [1st Dept 2010]).

Joy moves for contractual indemnification against FA, pursuant to Section 4.6.1 of the contract between Joy and FA (Joy-FA Contract ¶ 4.6.1 [NYSCEF Doc. 19]). However, conditional judgment on the issue of contractual indemnity is premature where triable issues of fact exist as to the indemnitee's negligence, as found here (Cackett v Gladden Properties, LLC, 183 AD3d 419, 422 [1st Dept 2020]; Mohammed v Silverstein Props., Inc., 74 AD3d 453, 454 [1st Dept 2010]). Therefore, summary judgment on Joy's contractual indemnification claim against FA is denied.

IV. Breach of Contract — Failure to Procure Insurance

"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]).

Joy moves unopposed for summary judgment on its claim against FA for breach of contract for failure to procure insurance. Article 13 of the contract between Joy and FA requires FA to procure insurance covering FA's work and to name Joy as an additional insured (Joy-FA Contract ¶¶ 13.1-13.4 [NYSCEF Doc. 19]; see Affirm. in Supp. ¶¶ 154-156 [NYSCEF Doc. 15]). FA's president, Domenico Alessio, does not remember whether FA ever obtained liability insurance for this project (Alessio Tr. 39:8-25 [NYSCEF Doc. 25]). Therefore, Joy has met its initial burden and summary judgment on claim against FA for breach of contract for failure to procure insurance is granted without opposition.

Accordingly, it is hereby

ORDERED that that part of the motion by defendant/third-party plaintiff/second third-party plaintiff/third third-party plaintiff Joy Construction Corp. for summary judgment dismissing plaintiff's claims is GRANTED IN PART, only as directed to plaintiff's Labor Law § 241(6) claim, which is DISMISSED, and is DENIED as directed to plaintiff's Labor Law § 200 claim; and it is further

ORDERED that that part of the motion by defendant/third-party plaintiff/second third-party plaintiff/third third-party plaintiff Joy Construction Corp. for summary judgment on its third-party claims asserted against third-party defendants F.A. & Partners, Inc. and F.A. & Associates is GRANTED as to its claim for breach of contract for failure to procure insurance, and is DENIED as to its claim for contractual indemnification against FA; 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 12/19/25

ASHLEE CRAWFORD, J.S.C.