Supreme Court, Westchester County

Decided on April 21, 2026

Index No. 56277/2024

Robert S. Ondrovic, J.

[*1]

The following papers were considered on the motions for summary judgment filed by defendant/third-party plaintiff/fifth third-party plaintiff Grace Contracting & Development LLC (Seq. 2), plaintiff Edwin Alonso Caceres Sanchez (Seq. 3), third-party defendant/second third-party defendant/third third-party plaintiff Pinnacle Thermal Solutions, LLC (Seq. 4), defendant/second third-party plaintiff/fourth third-party plaintiff Triton Construction Company, LLC (Seq. 5), and defendant Tarrytown Union Free School District (Seq. 6):

PAPERS CONSIDERED

Motion Sequence No. NYSCEF Doc. Nos .

No. 2 ("Grace's Motion") 188-199, 359, and 371-372

1. Notice of Motion/Affirmation in Support/Exhibits AA-G

2. Affirmation in Opposition by Triton Construction Company, LLC

3. Affirmation in Opposition by Pinnacle Thermal Solutions, LLC/Exhibit A

No. 3 ("Plaintiff's Motion") 201-223, 356-358, 361-367, 375-377, 380, and 385

4. Notice of Motion/Affirmation in Support/Exhibits A-R/

5. Affirmation in Opposition by Tarrytown Union Free School District/Exhibits 1-2

6. Affirmation in Opposition by Triton Construction Company, LLC/Exhibits 1-6

7. Affirmation in Opposition by Pinnacle Thermal Solutions, LLC/Exhibits A-B

8. Affirmation in Opposition by Grace Contracting & Development LLC

9. Plaintiff's Reply Affirmation

No. 4 ("Pinnacle's Motion") 225-251, 360, 369, 381, and 388-390

10. Notice of Motion/Affirmation in Support/Memorandum of Law/Exhibits A-U

11. Affirmation in Opposition by Triton Construction Company, LLC

12. Plaintiff's Affirmation in Opposition

13. Affirmation in Opposition by Grace Contracting & Development LLC

14. Pinnacle's Separate Reply Affirmations to Triton, Grace and Plaintiff

No. 5 ("Triton's Motion") 252-306, 368, 373-374, and 386-387

15. Notice of Motion/Affirmation in Support/Memorandum of Law/Exhibits 1-52

16. Plaintiff's Affirmation in Opposition

17. Affirmation in Opposition by Pinnacle Thermal Solutions, LLC/Exhibit A

18. Triton's Separate Reply Affirmations to Plaintiff and Pinnacle

No. 6 ("Tarrytown's Motion") 309-345, 370, 378, and 384

19. Notice of Motion/Affirmation in Support/Exhibits A-HH/Memorandum of Law

20. Plaintiff's Affirmation in Opposition

21. Pinnacle's Affirmation in Partial Support

22. Tarrytown's Reply Affirmation

BACKGROUND

Plaintiff Edwin Alonso Caceres Sanchez commenced this action seeking damages for personal injuries he allegedly sustained on July 31, 2023 when he fell from a scaffold while performing HVAC installation work at Sleepy Hollow High School, located at 210 North Broadway, Westchester County, New York. At the time of the incident, Tarrytown was in the process of converting an outdoor entrance of the high school into a security vestibule. For the project, Tarrytown hired Triton as the construction manager and Grace as the general contractor. Grace, in turn, retained plaintiff's employer, Pinnacle, to perform the electrical work on the project.

The complaint, as amended, alleges that defendants violated Labor Law § 240 (1) by failing to provide plaintiff with adequate protection from the height-related risk of installing HVAC insulation, as well as an adequate safety device to prevent him from falling, and these failures were the proximate cause of plaintiff's injuries. The amended complaint further alleges that defendants are liable for common-law negligence and a violation of Labor Law § 200 because they breached their duty to provide plaintiff with a safe place to work. In this regard, plaintiff alleges that his injuries arose from both a dangerous condition on the premises, and a danger in the means and methods of the work performed. Finally, the amended complaint alleges that defendants violated Labor Law § 241 (6) by failing to comply with certain safety rules set forth in the Industrial Code. On these allegations, plaintiff now moves for partial summary judgment as to liability on his Labor Law § 240 (1) claim against Tarrytown, Grace and Triton.

Triton opposes plaintiff's motion and moves for summary judgment dismissing the complaint in its entirety, and all crossclaims and counterclaims against. Triton argues that it was not the general contractor, the owner, or an agent subject to liability under Labor Law §§ 240 (1) and 246 (1), nor did Triton have the authority to supervise or control the injury-producing work, which is a predicate for common law negligence and Labor Law § 200 liability. Triton also seeks summary judgment on its cross claim for contractual indemnification against Grace, and on its third-party claim for contractual indemnification against Pinnacle. Triton argues that despite the lack of privity between Triton, Grace and Pinnacle, the intent to indemnify Triton is clear from the language of the Grace-Pinnacle contract and the surrounding circumstances.

Tarrytown also moves for summary judgment dismissing plaintiff's Labor Law § 241 (6), common law negligence, and Labor Law § 200 claims. According to Tarrytown, the Industrial Code regulations upon which plaintiff relies for his section 241 (6) claim are either too general or not applicable to the circumstances of plaintiff's accident. Tarrytown further contends that it cannot be liable for common law negligence or a violation of Labor Law § 200 because it did not have the authority to supervise or control the injury producing work. Lastly, Tarrytown seeks an order granting: (1) a conditional judgment of contractual indemnification against Grace, (2) summary judgment on its common law indemnification claim against Grace, and (3) summary judgment dismissing all crossclaims asserted against Tarrytown.

Pinnacle moves for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim on the same grounds as Tarrytown — that the Industrial Code regulations upon which plaintiff relies are insufficiently specific or not applicable to the facts of this case. Pinnacle also seeks judgment dismissing Grace and Triton's common law indemnity and contribution claims, arguing that the claims are barred by Worker's Compensation Law § 11. In addition, Pinnacle seeks summary judgment dismissing Triton's claims for contractual indemnification, contractual contribution, and breach of contract, on the basis that there is no contractual privity between the [*2]two entities.

Lastly, Grace seeks summary judgment on its claim against Pinnacle for contractual indemnification and defense, pursuant to the terms of the Grace-Pinnacle subcontract, which requires Pinnacle to indemnify and defend Grace for claims arising from the work Pinnacle performed at Sleepy Holly High School.

ANALYSIS

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate that there is no genuine dispute as to any material fact (CPLR 3212; Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557 [1980]).

I. Labor Law § 240 (1)

Labor Law § 240 (1) requires that all owners, contractors and their agents "furnish or erect, or cause to be furnished or erected for [the erection, demolition, repairing, altering, cleaning or painting of a building or structure], 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." In order to succeed on a Labor Law § 240 (1) claim, a plaintiff must establish: (1) that there has been a statutory violation, namely, an elevation related risk for which the defendant failed to provide adequate protection, and (2) that the violation was a proximate cause of the plaintiff's injuries.

A. Plaintiff's Motion

At the outset, plaintiff has not demonstrated, prima facie, that Triton is a proper labor law defendant. To support its contention that Triton was the owner's agent and the general contractor, as required for section 240 (1) liability, plaintiff relies on Tarrytown's verified answer to the complaint (NYSCEF Doc. No. 206), and the deposition transcripts of Tarrytown's witness, Anthony Deman, and Grace's witness, Vincent Fuoco (NYSCEF Doc. Nos. 217-218). However, in its answer, Tarrytown merely denies knowledge or information sufficient to form a belief as to plaintiff's allegation that Triton was the general contractor on the project. Anthony Deman, for his part, testified that Tarrytown hired Triton as the construction manager responsible for inspecting the work and keeping track of its progress, and that Grace was hired as "the general contractor under Triton" (NYSCEF Doc. No. 217 at tr. 13-16). However, Deman's testimony merely demonstrates that Triton's role "was only one of general supervision, which is insufficient to impose liability" under Labor Law § 240 (1) (Linkowski v City of New York, 33 AD3d 971, 975 [2d Dept 2006]). Thus, neither Tarrytown's answer nor Deman's testimony provide support for plaintiff's contention that Triton was the owner's agent or the general contractor on the project.

As for Vincent Fuoco, when asked if the construction manager was responsible for safety on the project, Fuoco replied "They're responsible for enforcing safety, that would fall under it" (NYSCEF Doc. No. 218 at tr. 26). According to Fuoco, enforcing safety included ensuring workers had correct personal protective equipment on, and that certain areas of the job site were enclosed by a fence or caution tape. However, Fuoco also testified that he had never seen the terms of the Triton-Tarrytown contract. And, when asked to provide the basis for his statement that Triton was responsible for enforcing safety, Fuoco replied "Just general knowledge of how [*3]it works" (id. at tr. 83) and based on Fuoco's "experience on other projects" involving Triton (id. at tr. 83-84). This generalized testimony about the construction manager's role, which was not specific to this particular construction project, is also insufficient to establish Triton's status as a general contractor or an agent of the owner. Because plaintiff has not demonstrated its prima facie entitlement to partial summary judgment as against Triton, the court need not consider the sufficiency of Triton's opposition papers.

Nevertheless, plaintiff has established his prima facie entitlement to partial summary judgment on his Labor Law § 240 (1) claim against Tarrytown and Grace through the submission of Tarrytown's answer to the complaint (NYSCEF Doc. No. 206), the parties' deposition transcripts (NYSCEF Doc. Nos. 213-214; 217-220), surveillance video and photographs depicting the scaffold and plaintiff's accident (NYSCEF Doc. Nos. 215-216), and the expert affidavit of Certified Safety Manager Kathleen V. Hopkins (NYSCEF Doc. No. 203). This evidence shows that on July 31, 2023, plaintiff was instructed to install pipe insulation in the vestibule of the premises. He utilized a six-to-seven-foot-high blue-pipe scaffold that was owned and erected by Grace. The scaffold, which had been in the vestibule for weeks prior to plaintiff's accident, had no safety railings, its planking was not secured with any ropes, irons, braces, or other devices, and its cross-braces were not connected to its blue pipe framing. Plaintiff had no safety device to prevent him from falling, such as a safety harness, lanyard or anchor point. While plaintiff was standing on the scaffold, the planking moved side to side causing plaintiff to fall approximately six-to-seven feet to the ground. This evidence demonstrates, prima facie, that Tarrytown and Grace violated Labor Law § 240 (1) by failing to provide adequate protection from the height related risk of installing HVAC insulation, and by failing to provide plaintiff with a safety device to prevent him from falling, and these violations were the proximate cause of plaintiff's injuries.

In opposition, however, Tarrytown has raised an issue of fact with respect to the adequacy of the scaffold, as demonstrated by plaintiff's deposition testimony (NYSCEF Doc. Nos. 213-214) the deposition testimony of Grace's witness, Vincent Fuoco (NYSCEF Doc. No. 218), and plaintiff's accident report (NYSCEF Doc. No. 358). According to this evidence, "there was nothing mechanically wrong with the scaffold" (id.). Plaintiff had been working atop the scaffold for approximately 40 minutes and did not feel any of the boards move until just prior to his fall when the plank underneath his right foot moved. Fuoco, whose company owned the scaffold, testified that he would have personally inspected the scaffold when it was first erected. He also confirmed that when Grace constructed the scaffold, the cross-bracing was securely affixed to the frame. Fuoco also testified that, pursuant to the Occupational Safety and Health Administration ("OSHA") regulations, railings are not required for one-section scaffolds, like the one at issue here.

Tarrytown, Grace, and Pinnacle have also raised an issue of fact as to whether plaintiff was the sole proximate cause of his accident. To show that a plaintiff was the sole proximate cause of an accident, "a defendant has to establish that the plaintiff misused an otherwise proper safety device, chose to use an inadequate safety device when proper devices were readily available, or failed to use any device when proper devices were available" (Lochan v H & H Sons Home Improvement, Inc., 216 AD3d 630, 633 [2d Dept 2023]). Here, Tarrytown, Grace, and Pinnacle rely on plaintiff's testimony, the testimony of his co-worker, non-party Johnny Riasco (NYSCEF Doc. No. 357) and plaintiff's accident report. According to this evidence, plaintiff and Riasco were supposed to use a ladder to perform the pipe insulation work, plaintiff [*4]had been previously trained on the proper use of scaffolding, which included the use of a harness, a tie-off, and ensuring the planks are secure, and prior to his use of the scaffold, plaintiff complained to Riasco that the planks were unsecured. The evidence also shows that despite this knowledge, plaintiff chose to use the scaffold and he later fell from the scaffold because he lost his footing and/or his balance.

Accordingly, plaintiff is not entitled to partial summary judgment on the issue of liability under his Labor Law § 240 (1) claim because there is an issue of fact as to the adequacy of the scaffold and whether plaintiff was the sole proximate cause of his accident.

B. Triton's Motion

On its motion for summary judgment, Triton has established, prima facie, that it is not a proper Labor Law defendant because it was the construction manager on the project, and not an agent of the contractor or owner subject to liability under Labor Law § 240 (1). Generally, a construction manager of a work site is not responsible for injuries under Labor Law § 240 (1) (Walls v Turner Const. Co., 4 NY3d 861, 863-64 [2005]). Nevertheless, a construction manager may be vicariously liable as an agent of the contractor or owner if the manager "had the authority to supervise and control the work that brought about the injury" (Woodruff v Islandwide Carpentry Contractors, Inc., 222 AD3d 920, 921 [2d Dept 2023] [citation omitted]). "The label of construction manager versus general contractor is not necessarily determinative" (Walls, 4 NY3d at 864). In determining whether a construction manager is an agent, the courts consider the following four factors set forth in Walls: (1) the specific contractual terms, (2) the absence of a general contractor, (3) the construction manager's duty to oversee the construction site and the trade contractors, and (3) the construction manager's ability to control the activities at the job site and stop unsafe work (id.).

Here, Triton's proffered evidence, which includes the Triton-Tarrytown and Grace-Tarrytown contracts, and the testimony of Triton's witness Kevin Sawyer (NYSCEF Doc. Nos. 296-297, 302-303), shows that the Walls factors weigh heavily in favor of finding that Triton was not the general contractor or an agent of the owner. The evidence demonstrates that Triton was hired as a construction manager whose role was limited to general oversight, contract administration, and advising its client, with no right or duty to enforce safety or stop unsafe work. According to Sawyer's testimony, if Triton became aware of a safety issue, it was required to report the issue to Tarrytown, who would in turn address it with Grace. As detailed in the Grace-Tarrytown contract, Grace was the general contractor responsible for supervising and directing the work, exercising control over the construction means and methods, and supervising all safety precautions and programs on the jobsite. The Grace-Tarrytown contract also specifically limited Triton's role by stating that the construction manager "shall not supervise, direct or have control or authority over, nor be responsible for the Contractors means, [and] methods . . . of construction or the safety precautions and programs incident thereto or for any failure of the Contractor to comply with laws and regulations applicable to the furnishing or performance of the work" (NYSCEF Doc. No. 303 at § 2.1.3).

In opposition, plaintiff has failed to raise a material issue of fact. Plaintiff relies on the same evidence submitted in support of his own motion for partial summary judgment including the testimony of Deman and Fuoco. This evidence was insufficient to meet plaintiff's prima facie burden of demonstrating that Triton was the general contractor or an agent of the owner, and for the same reasons, is insufficient to raise an issue of fact in opposition to Triton's motion (Gonzalez v Magestic Fine Custom Home, 115 AD3d 796, 797 [2d Dept 2014] [third party who [*5]assumes a role of general supervision pursuant to which it checks the progress of the work and reports to the owner, but does not hire the contractors or coordinate all aspects of the construction project, is not liable under Labor Law § 240 (1)]; Armentano v Broadway Mall Properties, Inc., 30 AD3d 450, 451 [2d Dept 2006] [authority of construction manager, who coordinated the subcontractors, created work schedules, and prepared progress reports for the project, did not rise to the level of supervision or control necessary to make the construction manager liable for plaintiff's injuries pursuant to Labor Law § 240 (1)]).

Accordingly, Triton is entitled to summary judgment dismissing plaintiff's Labor Law § 240 (1) claim insofar as asserted against it.

II. Labor Law § 241 (6)

Labor Law § 241 (6) places a nondelegable duty upon owners and general contractors and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross v Curtis Palmer Hydro-Elec, Co., 81 NY2d 494 [1993]). "To establish liability under Labor Law § 241 (6), a plaintiff must demonstrate that the injuries allegedly sustained were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case" (Ricottone v PSEG Long Island, LLC, 221 AD3d 1032, 1034 [2d Dept 2023] [citation omitted]). A defendant moving for summary judgment on a Labor Law § 241 (6) claim must establish, prima facie, "that the plaintiff failed to identify a section of the Industrial Code that was allegedly violated, that any such section is insufficiently specific to support liability or is inapplicable to the facts of the case, or that the defendant complied with the requirements of the identified provision" (Gonzalez v City of New York, 227 AD3d 958, 960 [2d Dept 2024]).

A. Pinnacle's Motion

Pinnacle has established its prima facie entitlement to summary judgment dismissing plaintiff's Labor Law § 241 (6) claim insofar as it is predicated on 12 NYCRR § 23-5, et seq., 12 NYRCRR § 23-5.1 (b) (Scaffold foot or anchorage), 12 NYCRR 23-5.1 (c) (Scaffold structure), 12 NYCRR 23-5.1 (g) (Scaffold lumber), 12 NYCRR § 23-5.1 (h) (Scaffold erection and removal), 12 NYCRR § 23-5.1 (j) (Safety railings required except where elevation is not more than seven feet), 12 NYRCC § 23-5.3 (g) (Footings), and 12 NYCRR § 23-5.3 (h) (Tie-ins). It is evident that these regulations are either too general or not applicable to the circumstances of the case. With respect to 12 NYCRR § 23-5.1 (j), the only specifically cited regulation that could arguably apply to plaintiff's accident, the regulation requires safety railings for all scaffolds except "[a]ny scaffold platform with an elevation of not more than seven feet." As stated in plaintiff's accident report, the scaffold from which he fell was "[r]oughly 6.5 ft" high (NYSCEF Doc. No. 235), and therefore, the absence of any railings did not violate 12 NYCRR § 23-5.1 (j).

In opposition, plaintiff solely addresses Industrial Code sections 23-5.1 (e) (1), 23-5.1 (j) and 23-5.3 (e). As previously discussed, 12 NYCRR § 23-5.1 (j) is not applicable to the circumstances of plaintiff's accident. And although plaintiff has alleged a violation of sections 23-5.1 (e) (1) and 23-5.3 (e) for the first time in opposition to Pinnacle's motion, this is not fatal to plaintiff's claim, since no new factual allegations were involved, no new theories of liability were set forth, and no prejudice was caused to Pinnacle (Kelleir v Supreme Indus. Park, 293 AD2d 513, 514 [2d Dept 2002]). However, as to these two sections of the Industrial Code, Pinnacle was required, but failed to demonstrate that they are inapplicable under the circumstances, that they are applicable but not violated, or that a violation of these regulations was not a proximate cause of plaintiff's injuries. Accordingly, that branch of Pinnacle's motion seeking summary judgment dismissing plaintiff's Labor Law § 241 (6) is granted only to the [*6]extent the claim is predicated on 12 NYRCRR § 23-5.1 (b) (Scaffold foot or anchorage), 12 NYCRR 23-5.1 (c) (Scaffold structure), 12 NYCRR 23-5.1 (g) (Scaffold lumber), 12 NYCRR § 23-5.1 (h) (Scaffold erection and removal), 12 NYCRR § 23-5.1 (j) (Safety railings required except where elevation is not more than seven feet), 12 NYRCC § 23-5.3 (g) (Footings), and 12 NYCRR § 23-5.3 (h) (Tie-ins).

B. Tarrytown's Motion

In support of the branch of its motion to dismiss plaintiff's section 241 (6) claim, Tarrytown similarly argues that the Industrial Code regulations upon which plaintiff's claim relies are too general or not applicable to the circumstances of plaintiff's accident. In opposition, plaintiff raises the same arguments made in response to Pinnacle's motion. For the reasons stated above, Tarrytown is entitled to judgment dismissing plaintiff's Labor Law § 241 (6) claim insofar as it is based on 12 NYRCRR § 23-5.1 (b) (Scaffold foot or anchorage), 12 NYCRR 23-5.1 (c) (Scaffold structure), 12 NYCRR 23-5.1 (g) (Scaffold lumber), 12 NYCRR § 23-5.1 (h) (Scaffold erection and removal), 12 NYCRR § 23-5.1 (j) (Safety railings required except where elevation is not more than seven feet), 12 NYRCC § 23-5.3 (g) (Footings), and 12 NYCRR § 23-5.3 (h) (Tie-ins). However, like Pinnacle, Tarrytown has not demonstrated its entitlement to dismissal of the Labor Law § 241 (6) claim predicated on Industrial Code sections 23-5.1 (e) (1) and 23-5.3 (e). Tarrytown only addresses 12 NYCRR § 23-5.1 (e) (1) to the extent it discusses plank length, but makes no argument as to the portion of the regulation that requires planks to be "laid tight." In addition, there is an issue of fact with respect to 12 NYCRR § 23-5.3 (e), which requires all metal scaffolds to have railings. Here, the evidence shows that the scaffold was made of metal and had no railings. Moreover, plaintiff's bill of particulars specifically alleges that defendants violated the Labor Law by failing, among other things, to erect a scaffold with safety railings and that these violations were a proximate cause of plaintiff's injuries (NYSCEF Doc. No. 321). And while Tarrytown points to Grace's testimony that OSHA regulations did not require the scaffold to have railings, this merely raises an issue of fact as to whether 12 NYCRR § 23-5.3 (e) was violated.

C. Triton's Motion

Triton is entitled to summary judgment dismissing plaintiff's Labor Law § 246 (1) claim, insofar as asserted against it. As previously discussed, Triton is not a proper Labor Law defendant because it was not an agent of the contractor or owner.

III. Negligence and Labor Law § 200

Labor Law § 200 codifies the common-law duty of an owner or employer to provide employees with a safe place to work (Astarita v Flintlock Const. Services, LLC, 69 AD3d 888 [2d Dept 2010]). Thus, "[a]n action based on Labor Law § 200 is premised on negligence" (Karaktin v Gordon Hillside Corp., 143 AD2d 637, 638 [2d Dept 1988]). Cases under Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]). "Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]). A general contractor may also be held liable for unsafe premises [*7]conditions if they created or had actual or constructive notice of the condition, and also had control over the worksite (Wynne v B. Anthony Const. Corp., 53 AD3d 654, 656 [2d Dept 2008] [emphasis added]). On the other hand, "when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" (Ortega, 57 AD3d at 61).

Here, as an initial matter, the court finds that plaintiff's accident did not involve any dangerous or defective condition on Tarrytown's premises. Rather, the accident involved the methods and means of the work (see Ortega, 57 AD3d at 62 [finding that injuries caused by an allegedly defective scaffold should be viewed as involving the methods and means of the work]). Thus, contrary to plaintiff's contention, defendants are not required to submit evidence addressing the proof applicable to both the "dangerous premises condition" and the "dangerous means and methods" liability standards.

A. Triton's Motion

Triton has met its prima facie burden of demonstrating that it is not liable for common law negligence or a violation of Labor Law § 200 because it did not supervise, direct or control plaintiff's work. To show this lack of supervisory control, Triton proffers its contract with Tarrytown, which states that "the Construction manager shall not be responsible for construction means, methods, techniques, sequences or procedures . . . since these are solely the contractor's responsibility" (NSCEF Doc. No. 297). Triton also relies on the terms of the Grace-Tarrytown contract, which similarly states that "the Construction manager shall not supervise, direct or have control or authority over, nor be responsible for, the Contractor's means, methods, techniques, sequences or procedures of construction . . . " (NYSCEF Doc. No. 302).

In opposition, plaintiff has failed to raise a triable issue of fact regarding Triton's authority to control the means and methods of the injury-producing work. Accordingly, Triton is entitled to judgment dismissing plaintiff's common law negligence and Labor Law § 200 claims insofar as asserted against Triton.

B. Tarrytown's Motion

Tarrytown has also demonstrated its entitlement to judgment dismissing the Labor Law § 200 and common law negligence claims against it by submitting evidence that it had no authority to supervise or control the injury-producing work. At his deposition, plaintiff testified that he took all of his work direction from Vincent Sasso, who was plaintiff's boss at Pinnacle (NYSCEF Doc. No. 325 at 17) and no Tarrytown personnel instructed plaintiff where to work, provided equipment for his work, or stopped him from performing work (id. at 325). Tarrytown's witness Anthony Deman also testified that he had no interaction with Pinnacle and his only communications with Grace involved coordinating the opening and closing of the building on the days when work was being performed (NYSCEF Doc. No. 327 at 13-14). Fuoco, who testified on behalf of Grace, conceded that Tarrytown did not direct any of the work performed, and that Grace was the entity responsible for stopping unsafe work, and supervising and directing Pinnacle's work (NYSCE Doc. No. 328 at 75, 83). As for the Grace-Tarrytown contract, it explicitly prohibits Tarrytown from supervising, directing or controlling the contractor's "means, method, methods, techniques, sequences or procedures of construction" and affirmatively requires the contractor to supervise and direct the work, and to maintain sole [*8]responsibility and control over the construction means and methods (NYSCEF Doc. No. 335 at § 2.1.3).

Tarrytown further contends that to the extent plaintiff has asserted a claim sounding in res ipso loquitor, it must also be dismissed because, as the record establishes, plaintiff's accident was not caused by an instrumentality within the exclusive control of Tarrytown, and, in any event plaintiff contributed to the happening of the accident by using the scaffold despite his awareness that the planks were not secure.

In opposition, plaintiff fails to raise an issue of fact. The record does not support plaintiff's assertion that Tarrytown acknowledged it had the authority to enforce safety or halt the work due to safety concerns. Nor is there any evidence showing that the scaffold was an instrumentality in Tarrytown's exclusive control so as to support plaintiff's res ipso loquitor claim insofar as asserted against Tarrytown. Accordingly, Tarrytown is entitled to summary judgment dismissing the common law negligence and Labor Law § 200 claims against it.

IV. 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 Atl. Scaffold & Ladder Co., Inc., 70 NY2d 774, 777 [1987], quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]). A contract's indemnification clause "must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]). Generally, construction agreements indemnifying a party for their own negligence are deemed void as against public policy (NY Gen Ob Law § 5-322.1). However, an indemnification provision that violates the General Obligations Law on its face may nevertheless be enforceable if the party seeking indemnification can show they were free of negligence and the party whom they are seeking indemnification from was negligent (Brown v Two Exchange Plaza Partners, 76 NY2d 172 [1990]; Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786 [1997].

"The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" (Curreri v Heritage Prop. Inv. Trust, Inc., 48 AD3d 505, 507 [2008]). In order to establish a claim for common-law indemnification, the party seeking to be indemnified is required to prove that it was not negligent, and that the proposed indemnitor was responsible for negligence that contributed to the accident or, in the absence of any negligence, had the authority to direct, supervise, and control the work giving rise to the injury (Benedetto v Carrera Realty Corp., 32 AD3d 874, 875 [2d Dept 2006]).

A. Grace's Motion

Grace has failed to demonstrate its entitlement to summary judgment on its claims against Pinnacle for contractual indemnification and defense. The Grace-Pinnacle contract states that Pinnacle "shall indemnify, defend and hold [Grace] harmless" from and against all claims "arising out of or resulting from the performance of the Work" provided that the claim "is caused in whole or in part by any neglect act or omission of the Contractor, and Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by indemnified hereunder" (NYSCEF Doc. No. 198). From this language, it appears that Pinnacle is required to indemnify Grace in the event that the claim is caused in whole or in part by Grace and Pinnacle, or anyone employed by Grace and Pinnacle regardless of whether the claim was caused in part by Grace. [*9]Grace has not demonstrated, prima facie, that plaintiff's claims were caused in whole or in part by any neglect or omission of Pinnacle. In addition, to the extent that the Grace-Pinnacle contract requires Pinnacle to indemnify Grace for Grace's own negligent act or omission, such is void as against public policy unless Grace can show both that it was free from negligence and that Pinnacle was negligent. Grace has made no such showing and because the unrefuted evidence shows that Grace owned, erected, inspected, and was the last to utilize the scaffold prior to plaintiff's fall, the court cannot determine as a matter of law that Grace is free from negligence. Accordingly, Grace is not entitled to judgment on its claim for contractual indemnification against Pinnacle.

B. Pinnacle's Motion

Pinnacle is entitled to summary judgment dismissing Grace and Triton's common law indemnification and contribution claims against it. Under Worker's Compensation Law § 11 (1) an "employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee unless the third person proves that the employee sustained a grave injury," as narrowly defined in the statute (Castro v United Container Mach. Group, Inc., 96 NY2d 398, 401 [2001] [quoting Worker's Compensation Law § 11 (1)] [internal quotation marks omitted]). Pinnacle submits, among other things, plaintiff's complaint and bill of particulars to show that plaintiff has not alleged a grave injury under the Worker's Compensation Law. Grace and Triton have not raised any issues of fact in opposition to this prima facie showing. Accordingly, Grace and Triton's separate claims against Pinnacle for common law indemnity and common law contribution are dismissed.

With respect to the branch of Pinnacle's motion dismissing Triton's claims for contractual indemnification, contractual contribution and breach of contract for failure to procure insurance, Pinnacle has met its prima facie burden of establishing that it never executed a written agreement contractually obligating it to indemnify Triton or procure liability insurance on Triton's behalf. Pinnacle has also established, prima facie, that Triton is not a signatory to the Grace-Pinnacle contract and the contract does not contain any language conferring third-party rights upon Triton.

In opposition, Triton has failed to raise an issue of fact. The crux of Triton's argument is that it is a third-party beneficiary of the Grace-Pinnacle contract because the contract requires Pinnacle to indemnify the premises owner and its agents. However, this court has determined that Triton is not an agent of the owner, and therefore, Triton cannot be deemed a third-party beneficiary of the Grace-Pinnacle subcontract under an agency theory. Accordingly, Pinnacle's motion to dismiss Triton's claims for contractual indemnification, contractual contribution, and breach of contract for failure to procure insurance is granted.

C. Triton's Motion

This court's findings — that Triton is not an agent of the owner subject to liability under Labor Law §§ 240 (1) and 241 (6), and did not have the authority to supervise or control the injury-producing work as required for common law negligence and Labor Law § 200 liability — have rendered Triton's motion for summary judgment on its contractual indemnification claims against Grace and Pinnacle moot.

D. Tarrytown's Motion

Tarrytown has demonstrated, prima facie, that the terms of the Grace-Tarrytown contract [*10]entitle Tarrytown to contractual indemnification from Grace, upon a finding as to Grace and/or Pinnacle's negligence (NYSCEF Doc. No. 334). Tarrytown has also established, prima facie, that it is a third-party beneficiary of the Grace-Pinnacle subcontract, which requires Pinnacle to indemnify the owner, among others, for claims arising out of or resulting from the performance of the work, where the claim is caused in whole or in part by any negligent act or omission of Pinnacle or anyone directly or indirectly employed by Pinnacle (NYSCEF Doc. No. 337). Neither Grace nor Pinnacle have submitted any opposition to Tarrytown's motion. As such, Tarrytown is entitled to a judgment of conditional contractual indemnification against Grace.

Nevertheless, Tarrytown has not demonstrated its entitlement to common law indemnification from Grace. While Tarrytown's evidence establishes, prima facie, that it is free from negligence and may only be liable for plaintiff's injuries by virtue of statutory or vicarious liability, Tarrytown has not shown, as a matter of law, that Grace is guilty of some negligence that contributed to the cause of the accident. Because there are issues of fact regarding Grace's liability that can only be resolved by the trier of fact, Tarrytown is not entitled to common law indemnification at this juncture.

Lastly, Tarrytown is entitled to judgment dismissing all cross claims asserted against it by Grace and Triton for contractual indemnification and breach of contract for failure to procure insurance. Tarrytown's evidence demonstrates, prima facie, that it did not enter into any relevant agreement with Grace or Triton containing a provision requiring Tarrytown to indemnify these entities. Similarly, there is no agreement between Tarrytown and Grace or Triton to support a breach of contract claim. As for the crossclaims against Tarrytown for common law indemnity, Tarrytown has established, prima facie, that it was not negligent and any vicarious or statutory liability on the part of Tarrytown would only be the result of conduct attributable to Grace and/or Pinnacle. Lastly, Tarrytown has met its prima facie burden of demonstrating it is free from negligence, and therefore, cannot be subject to a crossclaim for contribution pursuant to CPLR 1401. No party has opposed this final branch of Tarrytown's motion, and therefore, all crossclaims asserted against Tarrytown are dismissed.

The court has considered the remainder of the parties' contentions and finds them to be without merit, rendered moot by this decision and order, or not properly before the court, having been raised for the first time in a party's reply papers.

Accordingly, it is hereby

ORDERED that Grace Contracting & Development, LLC's motion is denied; and it is further

ORDERED that plaintiff's motion is denied; and it is further

ORDERED that Pinnacle Thermal Solutions, LLC's motion is granted to the extent of: (1) dismissing plaintiff's Labor Law § 246 (1) claim against Pinnacle insofar as it is predicated on 12 NYRCRR § 23-5.1 (b) (Scaffold foot or anchorage), 12 NYCRR 23-5.1 (c) (Scaffold structure), 12 NYCRR 23-5.1 (g) (Scaffold lumber), 12 NYCRR § 23-5.1 (h) (Scaffold erection and removal), 12 NYCRR § 23-5.1 (j) (Safety railings required except where elevation is not more than seven feet), 12 NYRCC § 23-5.3 (g) (Footings), and 12 NYCRR § 23-5.3 (h) (Tie-ins), (2) dismissing Grace and Triton's common law indemnity and contribution claims against Pinnacle, and (3) dismissing Triton's contractual indemnification, contractual contribution and breach of contract claims against Pinnacle; and it is further

ORDERED that the branch of Triton Construction Company, LLC's motion for summary judgment dismissing plaintiff's claims against it is granted, and the branch of Triton's motion [*11]seeking summary judgment against Grace and Pinnacle is denied as moot; and it is further

ORDERED that the Tarrytown Union Free School District's motion is granted to the extent of: (1) dismissing plaintiff's Labor Law §§ 200 and common law negligence claims asserted against, (2) dismissing those portions of plaintiff's Labor Law 241 (6) claim predicated on 12 NYRCRR § 23-5.1 (b) (Scaffold foot or anchorage), 12 NYCRR 23-5.1 (c) (Scaffold structure), 12 NYCRR 23-5.1 (g) (Scaffold lumber), 12 NYCRR § 23-5.1 (h) (Scaffold erection and removal), 12 NYCRR § 23-5.1 (j) (Safety railings required except where elevation is not more than seven feet), 12 NYRCC § 23-5.3 (g) (Footings), and 12 NYCRR § 23-5.3 (h) (Tie-ins), (3) dismissing all crossclaims for contractual indemnification, breach of contract, and contribution asserted by Grace and Triton against Tarrytown, and (4) granting Tarrytown conditional judgment on its claim against Grace for contractual indemnification; and it is further

ORDERED that the parties shall appear in the Trial Ready Party, on a date and time to be provided by that Part, for the scheduling of a trial on the parties' remaining claims.

This constitutes the decision and order of the court.

The Clerk shall mark his records accordingly.

Dated: April 21, 2026

White Plains, New York

HON. ROBERT S. ONDROVIC

Justice of the Supreme Court