The following e-filed papers read herein: NYSCEF Doc Nos.

Upon the foregoing papers, Defendant/Third-Party Defendant Heavy Duty Lifting, LLC (HDL) moves (in motion sequence [mot. seq.] four) for an order, pursuant to CPLR 3212, granting it summary judgment dismissing all claims, cross-claims and third-party claims against it. Plaintiff Luis Cartagena (Plaintiff) cross-moves (in mot. seq. five) for an order, pursuant to CPLR 3212, granting him summary judgment against defendants pursuant to Labor Law §§ 240 (1) and 241(6) and additionally against HDL under Labor Law § 200 and common-law negligence. Defendant North Six 141 LLC (North Six) cross-moves (in mot. seq. six) for an order, pursuant to CPLR 3212: (1) dismissing Plaintiff's claims pursuant to Labor Law §§ 200, 240 (1) and 241 (6) and common-law negligence, (2) granting it contractual indemnification against Third-Party Defendant A 1 Iron Works (A1), (3) dismissing A1's cross-claims against it, and (4) granting it common-law indemnification against A1 and HDL.

Plaintiff commenced this action for personal injuries allegedly sustained on October 27, 2020 while employed as a laborer for A1 at a worksite located at 141 N 6th Street, Brooklyn, New York (the Premises). At the time of his accident, Plaintiff was standing on a flatbed truck tying steel I-beams to cables in order for them to be lifted and moved by a crane.^[FN1] Plaintiff alleges that the crane lifted one of these beams too quickly which struck him, causing Plaintiff to fall from the flatbed truck to the ground and sustain injuries. North Six owned the Premises and retained defendant Disano Demolition (Disano) to perform foundation work.^[FN2] North Six then retained A1 to perform erection of the steel superstructure at the location. In turn, A1 retained HDL, a crane service provider, to provide a boom to unload the steel I-beams.

At the time of his accident, Plaintiff was employed as a rigger by A1. His duty was to tie cables to the steel beams for them to be lifted up by the crane. Javier Moran (Moran) of A1 was Plaintiff's foreman and supervisor. At his deposition, Plaintiff testified that on the day of his accident, Moran told him where to report, gave him his job assignment as well as instructions on what he needed to do and what safety equipment to use. Plaintiff testified that at the time of the accident, there were no other companies performing work at the job site. Plaintiff further testified that he did not wear a harness while on the flatbed truck. He and a co-worker, Oscar, worked together to tie the beams so they could be lifted. According to Plaintiff, the beams were [*2]long and too heavy to be lifted without a device and had to be lifted in a slow manner. Plaintiff testified that the flatbed off which he fell was more than 20 feet long, 5-6 feet wide, and about 6-7 feet high and that he was standing on the edge of the flatbed just prior to the accident. Plaintiff and Oscar had just tied cables around beams, but the crane operator, HDL employee Marciano Abreu (Abreu), was having trouble lifting the beam. Plaintiff testified that the beam was stuck and Abreu was moving the crane up and down too quickly. Plaintiff claimed he had similar issues earlier the same day and told Abreu about it. A1's Safety Director, David Alache (Alache), who was also onsite, directed Abreu to "be easy" and to lift the beams slowly, and had been telling Abreu to do so all day. Plaintiff gave Abreu a signal and Abreu attempted a series of maneuvers to release the plates because they were compressed together, but the plates were not releasing. Plaintiff testified that the crane was moving up and down too quickly, and as a result, the beam came loose and hit him, causing him to fall off the flatbed truck. Plaintiff testified that when he was struck, the beam was flat and straight, then went up about 4 to 5 feet when he was hit. He claimed that the beam wobbled hard with force, and that it happened so fast that he did not see the beam hit him.

During his deposition, Abreu testified that it was common for steel beams to get caught on each other when they are being raised, and that in order to free the beams in this situation, a crane applies initial pressure and then decreases the pressure to allow for the beam to have movement. This allows workers on the flatbed truck to separate the beams in order for one of them to be lifted. Abreu further testified that he controlled the speed with which the crane lifted the beams and where to park the crane. According to Abreu, an A1 supervisor directed everyone's work on the flatbed, and HDL employees had the authority to stop A1's work if it was being done in an unsafe manor while lifting steel beams off the truck. Abreu further testified that HDL had made all necessary repairs to the crane and that it was serviced every two months. As to the time of the accident, Abreu testified that a steel beam became lodged under another beam as it was being lifted off the trailer. Operating the crane, Abreu applied initial pressure and then decreased pressure while Plaintiff held one end of the column and his co-worker worked to free the beam with a crowbar. Abreu testified that once he received the signal to lift the steel beam after it was free, he kept Plaintiff in his line of sight. Abreu used the remote control to lift the column after it was free, while Plaintiff was right next to it on the other side. Abreu testified that he lifted it a couple of feet, made sure everyone got away, then lifted it up. Once he lifted it up a couple of feet off the platform, Abreu saw Plaintiff falling, but did not observe the beam hitting Plaintiff.

Multiple people observed Plaintiff's accident but did not witness the beam come in contact with Plaintiff. Alache, A1's Safety Director, testified that he did not witness the beam hit Plaintiff but saw him fall. Jerry Lebedowicz (Lebedowicz), North Six's owner, testified that he was onsite that day and standing across the street when he observed the Plaintiff looking at the steel beam while walking backwards just before he fell off the flatbed. Lebedowicz claimed that Plaintiff did not look to see where he was stepping. Both Alache and Lebedowicz testified that Plaintiff lost his footing, causing him to fall.

Lebedowicz testified that A1's Safety Director, Alache, ensured that A1 employees were following safety protocols. According to Lebedowicz, if he saw something unsafe or work being performed in an unsafe manner, he would bring it to the attention of the person in charge. When asked if he had the authority to stop work that was being performed unsafely, Lebedowicz did not respond with a yes or no, but answered that he would raise the issue with the "competent [*3]person" onsite who was in charge of the work, and that this person would correct any safety issues. Lebedowicz also testified that he did not have authority to control the work of A1 workers. However, Lebedowicz testified that on prior occasions, he sent workers home when work was not performed in a safe manner. Lebedowicz also testified that he would walk the Premises to look for unsafe conditions at times.

Alache testified that as A1's Safety Director, it was his job to make sure that everyone onsite had the correct certifications. As to crane/boom operations, Alache had to ensure that all the flaggers were in the right place per blueprint, and make sure the boom operator had their credentials. Alache made sure "everybody [was] tied up, everybody [was] using beam clamps, everybody [was] using retractable lifelines," and "following the rules" "but for A1 only" (Alache tr at 14-15). When asked if anyone from HDL needed to report to anyone at AI, Alache testified that they reported to A1's foreman, Moran, who went over with them the plan for the day and how the steel would be removed from the flatbed, and safety requirements.

Alache testified that just prior to Plaintiff's accident, he gave a verbal command to Abreu to take the beams up easy, but Abreu did not follow that command. According to Alache, if Plaintiff had stood in a different position, to the side of the load, as had previously been discussed in safety meetings, the accident would not have happened. Abreu testified that at a safety meeting after the incident, it was concluded that the accident was due to Abreu's unsafe speed in operating the crane.

On November 10, 2020, Plaintiff filed a complaint against defendants North Six and Lebedowicz.^[FN3] Thereafter, Plaintiff commenced a separate action against HDL under index number 507841/2021, which was consolidated with this action by so-ordered stipulation dated January 14, 2022 (see NYSCEF Doc No. 24). The complaints purport to assert causes of action against North Six, Lebedowicz and HDL for common law negligence and for violations of Labor Law §§ 200, 240 and 241(6). Thereafter, on March 14, 2022, North Six commenced a third-party action against A1, and on December 6, 2022 against HDL, for contractual and common law indemnification and contribution and breach of contract for failure to procure insurance. On June 10, 2022, A1 answered North Six's third-party complaint and interposed cross-claims for contractual and common law indemnification, contribution, and breach of contract. On September 8, 2023, HDL answered North Six's third-party complaint against it.

By stipulation dated January 4, 2022, the action was discontinued without prejudice as to Defendant MB Construction. Defendants Disano Demolition and Greg Lebedowicz have not appeared.

A party moving for summary judgment bears the burden of making a prima facie showing of entitlement to judgment as a matter of law and must tender sufficient evidence in admissible form to demonstrate the absence of any material factual issues (CPLR 3212 [b]; Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Korn v Korn, 135 AD3d 1023, 1024 [3d Dept 2016]). Failure to make [*4]this prima facie showing requires denial of the motion (see Alvarez, 68 NY2d at 324; Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidence in admissible form sufficient to establish an issue of material fact requiring a trial (see CPLR 3212; Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562). "[A]verments merely stating conclusions, of fact or of law, are insufficient to defeat summary judgment" (Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 383 [2004] [internal quotations omitted]). The court must view the totality of evidence presented in the light most favorable to the nonmoving party and accord that party the benefit of every favorable inference (see Fortune v Raritan Building Services Corp., 175 AD3d 469, 470 [2d Dept 2019]; Emigrant Bank v Drimmer, 171 AD3d 1132, 1134 [2d Dept 2019]).

Plaintiff contends that he is entitled to summary judgment because the beams were improperly secured and allowed to swing freely with no way to stop or slow their speed, and therefore this subsection was violated. Plaintiff also argues that the fact that he was on a platform on the flatbed truck and fell implicates the necessary elevation differential to trigger the application of section 240 (1).

HDL contends that it is entitled to summary judgment because it is not a statutory agent within the meaning of the statute. In this regard, HDL notes that A1 is the entity that controlled the work onsite. North Six additionally argues that it is entitled to summary judgment dismissing this claim because Plaintiff was not engaged in a protected activity under Labor Law § 240 (1) since falling off of a flatbed truck while working at a construction site is not an injury that is meant to be covered.

"Under Labor Law § 240 (1), contractors and owners engaged 'in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure' must provide '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'" (O'Brien v Port Auth. of NY & N.J., 29 NY3d 27, 33 [2017] quoting Labor Law § 240 [1]). "In other words, Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). "[T]he 'special hazards' referred to are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (id.).

An injured laborer must have been engaged in one of the statute's enumerated activities to avail himself of its protections and the focus is on the type of work the plaintiff was performing at the time of the injury (see Joblon v Solow, 91 NY2d 457, 465 [1998]). "Liability may . . . be imposed under the statute only where the 'plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'" (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 97 [2015], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). "[T]o succeed on a cause of action alleging a violation of Labor Law § 240 (1), a plaintiff must establish a violation of the statute and that such violation was a proximate cause of his or her resulting injuries" (Panfilow v 66 East 83rd Street Owners Corp., 217 AD3d 875, 878 [2d Dept 2023]).

"To hold a subcontractor liable as a statutory agent for violations of Labor Law § 240 (1) or section 241 (6), there must be a showing that the party had the authority to supervise and control the work giving rise to these duties" (Torres v LPE Land Dev. & Constr., Inc., 54 AD3d 668 [2d Dept 2008] [internal quotation marks omitted]). "Where the owner or general contractor does in fact delegate the duty to conform to the requirements of the Labor Law to a third-party subcontractor, the subcontractor becomes the statutory agent of the owner or general contractor" (Van Blerkom v American Painting, LLC, 120 AD3d 660, 661-662 [2d Dept 2014]).

Here, Plaintiff has met his prima facie burden of demonstrating entitlement to summary judgment as a matter of law. In that regard, Plaintiff testified that he was hit by a steel beam while it was being hoisted up too quickly by the boom from the flatbed truck, causing Plaintiff to fall to the ground. As testified to by Plaintiff, his injuries were a direct result of failure to provide adequate protection against a risk arising from a physically significant elevation differential involving a falling or improperly hoisted object with no protection against this provided to Plaintiff, which implicates the statute (see Hayek v Metropolitan Transp. Auth., 195 AD3d 568 [1st Dept 2021] [Plaintiff struck by improperly hoisted or inadequately secured load of L-shaped steel rebar entitled to summary judgment]; Flores Metropolitan Transp. Auth., 164 AD3d 418 [1st Dept 2018] [Plaintiff who fell off a flatbed truck after a load of steel beams, without tag lines, was hoisted above him by a crane and began to swing towards him was entitled to summary judgment, as "[t]he risk of the hoisted load of beams with no tag lines triggered the protections set forth in Labor Law § 240 (1)"]; McLean v Tishman Constr. Corp., 144 AD3d 534, 534-535 [1st Dept 2016] [Plaintiff who fell off a flatbed truck after being struck with a metal beam that fell off the blades of a forklift and struck him entitled to summary judgment]; Harris v City of New York, 83 AD3d 104; [1st Dept 2011] [Plaintiff who fell after being struck by a slab being lowered from a crane too quickly entitled to summary judgment]; see also Fahning v City of New York, 2023 NY Slip Op 50923[U] [Sup Ct, Kings County 2023], Abadi, J.]).

In opposition, North Six and HDL have raised questions of fact. First, both Lebedowicz and Abreu testified that Plaintiff fell from the flatbed truck due to his own misstep and that they did not observe the steel beam striking Plaintiff. Abreu testified that Plaintiff fell because he was moving away from the steel beam, and Lebedowicz testified that Plaintiff fell because he was not looking where he was going. Where a plaintiff simply falls from a flatbed truck, courts have held that because the elevation differential is so small, the risk of the worker falling is, as a matter of law, not an extraordinary elevation-related risk protected by section 240 (1), but rather, one of the usual and ordinary dangers involved in working at a construction site (see Toefer v Long Is. R.R., 4 NY3d 399, 405, 408 [2005]; Eddy v John Hummel Custom Builders, Inc., 147 AD3d 16, 20-21 [2d Dept 2016]).

Further, with respect to HDL, the pretrial deposition testimony raises questions of fact as to whether HDL ultimately supervised and controlled the work so as to be a statutory agent for the purposes of the statute. Plaintiff notes that HDL was hired by the contractor to operate the crane and did in fact operate it. Abreu testified that he controlled where to park the crane and the speed that the beams were lifted off the flatbed. Plaintiff also highlights Abreu's testimony that HDL made all necessary repairs to the crane, including servicing it, and that HDL paid for the service. It is also undisputed that Abreu lifted the beam (which Plaintiff alleges struck him) from the flatbed trailer by using the crane. Abreu also testified that HDL employees had authority to stop A1's work if it was being done in an unsafe manor while lifting steel beams off the truck. Abreu further testified that the A1 supervisor directed everyone's work on the flatbed, but that [*5]only applied to A1 employees.

On the other hand, there is testimony that A1's employee, Alache, controlled HDL employee Abreu's work, in that Plaintiff and Alache both testified that Alache told Abreu to take the beams up "easy" and lift them slowly. Alache further testified that as A1's Safety Director, everyone on site had to have correct certifications, including the crane operator and make sure that A1 workers onsite were following directions. When asked if HDL reported to anyone at A1, Alache testified that they reported to A1's Moran, who went over the plan for the day with HDL, including safety requirements and how the steel beams would be removed from the flatbed.

Where there is conflicting deposition testimony as to material facts, any determination is necessarily based on the credibility of the deponents, which is to be resolved at trial and not upon a motion for summary judgment (see S.J. Capelin Assoc. V Glob Mfg. Corp., 34 NY2d 338, 341 [1974]; DeSario v SL GreenMgt. LLC, 105 AD3d 421, 422 [1st Dept 2013]; see also Xirakis v 1115 Fifth Ave. Corp., 226 AD2d 452 [2d Dept 1996]). A court cannot weigh the credibility of witnesses on a motion for summary judgment unless it clearly appears that the issues are feigned (see Conciatori v Port Auth. of NY and N.J., 46 AD3d 501, 503 [2d Dept 2007]).

As multiple factual questions exist as to how Plaintiff's alleged accident occurred and proximate cause of same, Plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim is denied. Likewise, as material questions of fact exist, HDL and North Six have failed to meet their prima facie burden for summary judgment dismissing Plaintiff's Labor Law § 240 (1) claim. Accordingly, those branches of their respective motions are denied.

"Labor Law § 241 (6) imposes a non-delegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Toussaint v Port Authority of New York and New Jersey, 38 NY3d 89, 93 [2022] [internal quotation marks omitted]). "To establish liability under Labor Law § 241 (6), a plaintiff or a claimant must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case" (Aragona v State, 147 AD3d 808, 809 [2d Dept 2017]).

In his original bill of particulars, Plaintiff alleged that the following Industrial Code sections were violated: 12 NYCRR §§ 23-1.5, 23-1.7 (a) (1), 23-1.7 (a) (2), 23-1.7 (d), 23-1.7 (e), 23-1.7 (f), 23-1.8 (c), 23-1.16, 23-1.17, 23-1.21 (a), 23-1.21 (b) (1), 23-1.21 (b) (3), 23-1.21 (b) (4) (i), (ii), (iii), (iv) and (v), 23-1.30, 23-1.32, 23-2.1 (a) & (b), 23-3.1, 23-3.2, 23-3.3 (b), (c), (d), (e), (g), (h), & (1), 23-3.4, 23-6.1 and 23-6.2. In his third supplemental bill of particulars dated June 29, 2023, prior to the note of issue being filed, Plaintiff does not list these Industrial Code sections, but lists an additional violation of 12 NYCRR 23-8.1 (f) (2) (i).

Plaintiff currently moves for summary judgment only under Industrial Code Section 23-8.1 (f) (2) (i), arguing that the beam "suddenly accelerated," swinging into him causing Plaintiff to fall off the truck, which was in violation of this code section. In opposition, HDL notes that Plaintiff's bill of particulars does not include this subsection and Plaintiff has not sought leave to amend the bill of particulars. HDL also argues that it is entitled to summary judgment because it was not an owner, contractor or statutory agent. HDL further argues that the subsections of the Industrial Code pleaded in the bill of particulars are inapplicable. In reply, Plaintiff argues that the third supplemental bill of particulars, in which the new Industrial Code subsection was [*6]pleaded, was a supplemental rather than an amended bill of particulars, and that therefore, no leave of the court was required to file it.

North Six additionally argues that it is entitled to summary judgment dismissing the Labor Law § 241 (6) claim because Plaintiff did not plead any applicable Industrial Code provision that was violated.

As an initial matter, the court notes that the Plaintiff has abandoned his reliance on all provisions of the Industrial Code set forth in the original bill of particulars by failing to address those provisions in his opposition to the defendants' motions (see Pita v Roosevelt Union Free Sch. Dist., 156 AD3d 833, 835 [2d Dept 2017]; Palomeque v Capital Improvement Servs., LLC, 145 AD3d 912, 914 [2d Dept 2016]). Further, contrary to defendants' assertion, Plaintiff's amendment and/or supplement of his bill of particulars to include an alleged violation of 12 NYCRR § 23-8.1 (f) (2) (i) as a predicate for his Labor Law § 241 (6) claim is permitted. Neither HDL nor North Six are prejudiced by the addition of the new Industrial Code subsection, as it relates to acceleration and deceleration during hoisting of the beams by the crane, topics that were extensively explored during discovery. In addition, HDL was able to submit an affidavit from its expert engineer, John Whitty (Whitty), addressing the claim under section 23-8.1 (f ) (2) (i).

Section 23-8.1 (f) (2) (i) states that with respect to a crane's hoisting of a load, "[t]here shall be no sudden acceleration of deceleration of the moving load unless required by emergency conditions." Here, Plaintiff testified that the beam was suddenly hoisted up too quickly and struck him, despite Abreu being told to move the beam up slowly. Plaintiff submits an affidavit from his occupational safety expert, John Coniglio (Coniglio), who opines that Plaintiff's accident was caused by the quick upward movement of the crane when attempting to break free a column to be lifted up, causing it to strike Plaintiff. In opposition, HDL's expert opines that there is nothing in the evidence that definitively indicates that the upward movement of the crane while lifting framing off the flatbed was the cause of Plaintiff's injury. Rather, Whitty notes that multiple deponents — Abreu, Alache and Lebedowicz — witnessed the accident but did not see a beam strike Plaintiff. In addition, Abreu testified that he was trying to get the beams separated, and there is a question as to whether this was an emergency situation that called for a more sudden acceleration or deceleration of the hoist.

In sum, there is a question of fact as to whether there was an emergency condition that forced a sudden acceleration or deceleration precluding summary judgment on the basis of Labor Law § 241 (6), as predicated upon section 23-8.1 (f) (2) (i), in favor of any party.

"Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work" (Panfilow v 66 E. 83rd St. Owners Corp., 217 AD3d 875, 878-879 [2d Dept 2023]; Saitta v Marsah Props., LLC, 211 AD3d 1062, 1063 [2d Dept 2022]; see also Lombardi v Stout, 80 NY2d 290, 294 [1992]). "Where the allegations involve the manner in which the work was performed, the property owner and/or general contractor will be held liable only if they possessed the authority to supervise or control the means and methods of the work" (Paniflow, 217 AD3d at 879; see also Saitta, 211 AD3d at 1063). "Where the allegations involve dangerous or defective conditions on the premises where the work was performed, the property owner and/or general contractor will be held liable if they either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time" (id.). "A defendant has [*7]constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected" (Mushkudiani v Racanelli Construction Group, Inc., 219 AD2d 613 [2d Dept 2023]; Nicoletti v Iracane, 122 AD3d 811, 812 [2d Dept 2014]).

Plaintiff contends that he is entitled to summary judgment against HDL because HDL had authority to control the work at the site and that Abreu operated the crane negligently, proximately causing Plaintiff's injuries. HDL, on the other hand, contends that it is entitled to summary judgment because it did not owe a duty to Plaintiff and was not negligent as a matter of law. North Six argues that this case falls within the "means and methods" category rather than the "dangerous condition" category, and that it is entitled to summary judgment because it did not direct or control Plaintiff's work.

Here, as discussed above, questions of fact exist as to whether HDL controlled the work at issue thereby precluding summary judgment on Plaintiff's Labor Law § 200 claim. A question of fact also exists as to whether Abreu's lifting of the beam proximately caused Plaintiff's injuries or whether his injuries were caused by his losing his footing and falling. Based upon the foregoing, that branch of HDL's motion seeking to dismiss Plaintiff's Labor Law § 200 and common law negligence claims as against it is denied.

With respect to North Six, the court finds that it has made a prima facie showing that it lacked the requisite supervision and control over the means of the work at issue (see Campanello v Cinquemani, 179 AD3d 763, 765 [2d Dept 2020]). Although Lebedowicz testified that he would say something to the person in charge or the manager in the event he observed a subcontractor performing work in an unsafe manner, such conduct does not constitute supervision or control over the work. Indeed, it is well settled that "mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200" (id.; see Poulin v Ultimate Homes, Inc., 166 AD3d 667, 670 [2d Dept 2018]). In opposition, the Plaintiff failed to raise a triable issue of fact. Accordingly, that branch of North Six's motion seeking to dismiss Plaintiff's Labor Law § 200 and common law negligence claims as against it is granted.

In February of 2020, North Six entered into an "Updated Proposal" with A1 to construct a new building at the Premises (the Proposal). The Proposal was signed by representatives of North Six and A1. When asked at his deposition whether this was the contract that North Six entered into with A1 for work at the premises, Lebedowicz answered that it looked like it, but that he really was not sure (Lebedowicz tr at 30, lines 14-15). Lebedowicz also testified that other than the Proposal, there was also a hold harmless agreement with respect to the project (the Hold Harmless Agreement). The Hold Harmless Agreement, entitled "Subcontract Agreement Rider (Contractor/Subcontractor)," was signed by representatives of both North Six and A1 in February of 2020 and contained the following indemnification and insurance procurement provisions running in favor of North Six:

"Indemnity. In consideration of the Contract Agreement, and to the fullest extent permitted by law, the Subcontractor shall defend and shall indemnify, and hold harmless, at Subcontractor's sole expense, the Contractor, all entities the Contractor is required indemnify and hold harmless, the Owner of the property, and the officers, directors, agents, employees, successors and assigns of each of them from and against all liability or claimed liability for bodily injury or death to any person(s), and for any and all [*8]property damage or economic damage, including all attorney fees, disbursements and related costs, arising out of or resulting from the Work covered by this Contract Agreement to the extent such Work was performed by or contracted through the Subcontractor or by anyone for whose acts they may be held liable, excluding only liability created by the sole and exclusive negligence of the Indemnified Parties. This indemnity agreement shall survive the completion of the Work specified in the Contract Agreement."

"Insurance. The Subcontractor shall procure and shall maintain until final acceptance of the Work, such insurance as will protect the Contractor, all entities the Contractor is required indemnify and hold harmless, the Owner, and their officers, directors, agents and employees, for claims arising out of or resulting from Subcontractor's Work under this Contract Agreement, whether performed by the Subcontractor, or by anyone directly or indirectly employed by Subcontractor, or by anyone for whose acts Subcontractor may be liable."

On May 21, 2021, A1, as Contractor, and HDL, as Subcontractor, executed a "Subcontract Agreement Rider (Contractor/Subcontractor)" (the Rider) which contained indemnification and insurance procurement provisions. The Rider applied "in all instances in which the Named Insured engages a subcontractor, and prior to any operations performed by said subcontractor" (emphasis added). The Rider contained identical language with respect to Indemnity and Insurance as the language cited above from the Hold Harmless Agreement.

At the time of Plaintiff's accident, HDL was covered under an insurance policy issued by United Specialty Insurance Company, which contained a blanket additional insured endorsement that adds to the policy as an additional insured "as required by written and properly executed contract prior to loss" any person or organization that HDL agreed to in a "written and properly executed contract." A1 was also covered under an insurance policy at the time of Plaintiff's accident. The policy, issued by Utica National Insurance Group, provided additional insured coverage, but only to the extent that Plaintiff's injuries were caused by A1's acts or omissions.

North Six contends that it is entitled to summary judgment on its contractual indemnification claims against A1 because the Proposal and Hold Harmless Agreement were effective at the time of the accident and provides for indemnification. In opposition to North Six's motion, HDL contends that the motion should be denied because negligence has not yet been determined, and in any event, it was not negligent and did not supervise Plaintiff's work. HDL also argues that North Six has not proven itself free of negligence.

HDL contends that it is entitled to summary judgment and dismissal of the claims for contractual indemnification and breach of contract brought by North Six and A1 because HDL did not enter into a contract with anyone in connection with the work performed at the Premises. HDL notes that the Rider was not in effect at the time of Plaintiff's accident. HDL concedes that it was party to the Rider with A1, dated May 12, 2021, and concedes that it was to indemnify the "Owner of the property" and to procure insurance, but notes that North Six is not an identified party nor listed as additional insured. Additionally, HDL contends that there was no intention of the parties for the Rider to apply to the instant project, as it states that the Rider was to be signed prior to its application and that it would apply to any operations thereafter, and not apply retroactively.

With respect to the breach of contract claims, HDL argues that it procured insurance and [*9]points to the insurance policy which contains a blanket additional insured provision. With respect to common law indemnification, HDL contends that those claims should be dismissed because it was not negligent.

In support of its motion, HDL submits an affidavit from Abraham Rosenberg (Rosenberg), its president. Rosenberg states that while HDL was retained by A1 to supply a crane and a crane operator at the Premises on October 27, 2020, HDL did not enter into any agreement or contract with A1 or anyone else, and that only an invoice was generated for this work. Rosenberg further states that there was no separate agreement pertaining to indemnity or the obligation to procure insurance at that time. Finally, Rosenberg states that the Subcontract Agreement Rider executed on May 12, 2021 did not apply to the work on October 27, 2020 and was not intended to be applied retroactively.

North Six contends that it is entitled to common law indemnification from A1 and HDL. North Six argues that according to Plaintiff's version of events, HDL was negligent and caused the accident. North Six also contends that it was free from negligence.

In opposition to HDL's motion, North Six contends that Subcontract Agreement Rider between HDL and A1 required HDL to indemnify and defend North Six. North Six argues that the provisions of this contract may be applied retroactively because the parties intended for it to apply retroactively. North Six also argues that the evidence shows that it was not negligent and that HDL was negligent, and so HDL owes it common law indemnification.

A1, in opposition to HDL's motion, contends that triable issues of fact preclude summary judgment dismissing A1's contractual indemnification claim. In that regard, A1 argues that HDL performed work and was paid for crane services. A1 further submits that it would not make sense for HDL to have possessed insurance coverage for this work if there was no contract. With respect to the common law indemnification claims, A1 argues that summary judgment is not appropriate since liability has not yet been determined.

In opposition to North Six's motion, A1 contends that North Six's common law indemnity and contribution claims should be denied because it is prohibited by the Workers' Compensation Law unless Plaintiff suffered a grave injury. A1 contends the Plaintiff did not suffer such injury. With respect to the contractual indemnification claim, A1 contends North Six has failed to meet its summary judgment burden of producing a contract with indemnification language. A1 argues that there is no evidence that the indemnification language in the Rider attached to the "updated proposal," which, in any event, is not a contract. A1 also argues that even if it were a contract, A1, as Plaintiff's employer, was not negligent and case law requires some negligence on an employer's part for indemnification. In addition, A1 contends that North Six's failure to procure insurance claim should be denied because A1 did in fact obtain insurance for the project.

"A party's right to contractual indemnification depends upon the specific language of the relevant contract" (McNamara v Gusmar Enterprises, LLC, 204 AD3d 779, 783 [2d Dept 2022]). "The 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 circumstances" (id.). "Indemnity contracts are to be strictly construed to avoid reading into them duties which the parties did not intend to be assumed" and "an indemnity contract will not be held to have retroactive effect unless by its express words or necessary implication it clearly appears to be the parties' intention to include past obligations" (Cacanoski v 35 Cedar Place Assoc., LLC, 147 AD3d 810, 812-813 [2d Dept 2017] [internal citations and quotation marks omitted]; see also [*10]Zalewski v MH Residential 1, LLC, 163 AD3d 900, 902 [2d Dept 2018]).

With respect to HDL's motion to dismiss the contractual indemnification cross-claims against it, there was no contract in effect between HDL and A1 or North Six on October 27, 2020, the date of Plaintiff's accident. The Rider, executed almost a year later on May 21, 2021, does not include any express language stating that it was to have retroactive effect. The language in the Rider that it applied "in all instances in which the Named Insured engages a subcontractor, and prior to any operations performed by said subcontractor" suggests that it was not meant to be applied retroactively. In addition, neither A1 nor North Six has submitted sufficient evidence to establish that the Rider was meant to be applied retroactively. By contrast, Rosenberg, HDL's president, states that the contract was not meant to apply retroactively and that there were no other contracts between HDL and A1 with respect to indemnification at the time of Plaintiff's accident. Accordingly, HDL has met its burden on summary judgment with regard to the contractual indemnification claims against it, and A1 and North Six have failed to raise questions of fact. HDL's motion to dismiss the contractual indemnification cross-claims against it is granted.

With respect to North Six's motion for contractual indemnification against A1, North Six has met its burden of demonstrating entitlement to contractual indemnification. "A party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Bellefleur v Neward Beth Israel Medical Center, 66 AD3d 807, 808 [2d Dept 2009]; see also Rodriguez v Waterfront Plaza, LLC, 207 AD3d 489 [2d Dept 2022]). As discussed above, North Six has proven itself free from negligence in the common law negligence and Labor Law § 200 causes of action. The Hold Harmless Agreement, in effect between the parties on the date of Plaintiff's accident, applies where North Six has demonstrated that its free from negligence. Here, the indemnity provision required A1 to indemnify the owner of the premises, North Six, for claims arising out of or resulting from the contracted work "to the extent such work was performed by or contracted through" A1. Plaintiff's accident clearly arose out of the contracted work which A1 subcontracted out to HDL to provide crane services. In addition, where there is an express agreement to indemnify, an owner who is held liable in the absence of negligence pursuant to Labor Law § 240 (1) is entitled to contractual indemnification (see Jara v Costco Wholesale Corp., 178 AD3d 687, 690-691 [2d Dept 2019]; Kader v City of New York, 16 AD3d 461, 463 [2d Dept 2005]). In opposition, A1 has not demonstrated that the Hold Harmless Agreement is inapplicable. Accordingly, North Six's motion for summary judgment on its claim for contractual indemnification against A1 is granted.

With respect to North Six's contractual indemnification claim against HDL, as discussed supra, North Six has not demonstrated that there was a contract between it and HDL. With respect to North Six's motion to dismiss A1's contractual indemnification cross-claims against it, that motion is granted, as the indemnification provisions in the Hold Harmless Agreement between North Six and A1 ran in favor of North Six, not A1.

Accordingly, North Six is entitled to contractual indemnification from A1, and A1's cross-claim for contractual indemnification against North Six is dismissed.

"In order to establish a claim for common-law indemnification, a party must prove not only that it was not negligent, but also that the proposed indemnitor was responsible for negligence that contributed to the accident or, in the absence of any negligence, had the authority [*11]to direct, supervise, and control the work giving rise to the injury" (Buffardi v BJ's Wholesale Club, Inc., 191 AD3d 833, 834 [2d Dept 2021] [internal brackets and ellipses omitted]).

As discussed above, while North Six has proven itself free from negligence, A1's and HDL's negligence or freedom therefrom, has not yet been determined. In addition, while proof that Plaintiff sustained a "grave injury" pursuant to Workers' Compensation Law § 11 would permit HDL and North Six to seek common law indemnification against A1 when it is otherwise not permitted, HDL and North Six have not established, as a matter of law, that Plaintiff suffered a "grave injury." Accordingly, that portion of North Six's motion for summary judgment on its common law indemnification and contribution claims against A1 and HDL is denied. However, as it has established that it is free from negligence in the happening of the accident, that branch of North Six's cross motion seeking to dismiss AI's common law indemnification and contribution cross-claims against it is granted. Additionally, that portion of HDL's motion to dismiss the cross-claims for common law indemnification and contribution against it is denied as issues of fact exist as to its negligence in the happening of the accident.

"A party seeking summary judgment based on an alleged failure to procure insurance naming that party as an additional insured must demonstrate that a contract provision required that such insurance be procured and that the provision was not complied with" (Breland-Marrow v RXR Realty, LLC, 208 AD3d 627, 629 [2d Dept 2022]; Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738, 739 [2d Dept 2003]).

Here, HDL has demonstrated its entitlement to summary judgment dismissing the breach of contract claims against it, as no contract existed at the time of Plaintiff's accident that required it to procure insurance.

With respect to North Six's motion, the evidence establishes that both HDL and A1 had insurance in effect on the date of Plaintiff's accident.

The court has considered the parties' remaining contentions and finds them to be unavailing.

It is therefore,

ORDERED that portion of HDL's motion (mot. seq. four) for summary judgment dismissing the cross-claims for contractual indemnification and breach of contract for failure to procure insurance is GRANTED. The balance of the motion is DENIED; and it is further

ORDERED that Plaintiff's (mot. seq. five) for summary judgment is DENIED in its entirety; and it is further

ORDERED that North Six's motion (mot. seq. six) for summary judgment is GRANTED to the extent that Plaintiff's Labor Law § 200 and common law negligence claims against it are dismissed; North Six is entitled to contractual indemnification from A1, and A1's cross claims for common-law indemnification, contribution and contractual indemnification are dismissed as against North Six. The balance of North Six's motion is DENIED.

All relief not expressly granted herein has been considered and is DENIED.

This constitutes the decision and order of the court.