Opinion
Index No. 711995/2018 Motion Sequence No. 6
11-30-2022
RONAN GONZALEZ, Plaintiff, v. BLDG EAST 80TH STREET, LLC, ABILENE, INC. and JERRICK ASSOCATES, INC., Defendants. ABILENE, INC., Third-Party Plaintiff, v. AMERICAN VENTILATION SERVICES, INC. Third-Party Defendant.
Unpublished Opinion
Motion Date: May 31, 2022
Present: HONORABLE JOSEPH RISI A. J.S.C.
DECISION/ORDER
HONORABLE JOSEPH RISI A. J.S.C.
The following numbered papers were read on this motion by plaintiff seeking partial summary judgment granting plaintiffs complaint on the Labor Law §240(1) cause of action, and cross motion by defendant, Bldg. East 80th Street, LLC ("Bldg East"), for, among other things, summary judgment dismissing the causes of action alleging a violation of Labor Law §200 and common-law negligence, as against it, both pursuant to CPLR §3212.
Papers Numbered
Notice of Motion - Affirmation - Affidavit - Exhibits................... EF 140-159
Notice of Cross Motion - Affirmation - Exhibits........................... EF 182-191
Answering Affirmations - Affidavit - Exhibits............................ EF 162-181, 192-210, 212, 214
Reply Affirmations......................................................................... EF 213, 215
Upon the foregoing papers, it is ordered that the instant motion for summary judgment on liability, on the Labor Law §240(1) cause of action, and the instant cross motion for, among other things, summary judgment, on the negligence and the Labor Law §200 causes of action, both pursuant to CPLR §3212, are determined as follows:
On June 21, 2018, plaintiff was employed by third-party defendant, American Ventilation Services, Inc. ("AVS"), as a welder and helper, on a boiler conversion and chimney installation project in the premises located at 111 East 89th Street, New York, New York, when he was injured in a fall from a ladder. The premises were owned defendant, Bldg. East, which contracted with defendant, Abilene, Inc. ("Abilene") to perform the project work. Abilene subcontracted with AVS to do the work, including the welding work in the basement, which plaintiff was engaged in at the time of the accident. Plaintiff was using a "6 foot A-frame ladder", available to him at the job site, when it moved and fell to the floor, causing plaintiff to fall to the concrete floor, and suffer injury. Plaintiff contends that he was directed by his foremen to utilize the ladder for the work assigned to him; that the ladder "failed," causing his injuries; and that said ladder was not an "adequate safety device," as required by Labor Law §240(1).
Plaintiff commenced this action against defendants, by service of a summons and complaint, on or about August 8, 2018, alleging negligence and violations of Labor Law §§200, 240 and 241. Issue was joined in October 2018, and defendant, Abilene, commenced a third-party action in October 2018. Third-party defendant, AVS, appeared and answered on or about April 2019.
Plaintiffs motion seeks summary judgment against defendants on the cause of action regarding Labor Law §240(1), and Bldg. East seeks summary judgment dismissing the Labor Law §200 action against it and granting indemnity against Abilene. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]; see Schmitt v Mecford Kidney Center, 121 A.D.3d 1088 [2014]; Zapata v Buitriago, 107 A.D.3d 977 [2013]). Once a prima facie demonstration 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 a material issue of fact which requires a trial of the action (Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). On one party's motion for summary judgment, the evidence should be liberally construed in a light most favorable to the non-moving party (see Monroy v Lexington Operating Partners, LLC, 179 A.D.3d 1053 [2d Dept 2020]; Rivera v Town of Wappinger, 164 A.D.3d 932 [2d Dept 2018]: Boulos v Lerner-Harrington, 124 A.D.3d 709 [2d Dept 2015]). Credibility issues regarding the circumstances of the subject transactions require resolution by the trier of fact (see Bravo v Vargas, 113 A.D.3d 579 [2d Dept 2014]; Martin v Cartledge, 102 A.D.3d 841 [2d Dept 2013]), and the denial of summary judgment.
The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v Beltre, 59 A.D.3d 683, 685 [2d Dept 2009]; Santiago v Joyce, 127 A.D.3d 954 [2d Dept 2015]). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented .... This drastic remedy should not be granted where there is any doubt as to the existence of such issues ... or where the issue is 'arguable' [citations omitted] (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]; see also, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978]; Andre v Pomeroy, 35 N.Y.2d 361 [1974]; Stukas v Streiter, 83 A.D.3d 18 [2d Dept 2011]; Dykeman v Heht, 52 A.D.3d 767 [2d Dept 2008]. Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 A.D.3d 927 [2d Dept 2014]), citing Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]; see Charlery v Allied Transit Corp., 163 AD3 914 [2d Dept 2018]; Chimbo v Bolivar, 142 A.D.3d 944 [2d Dept 2016]; Bravo v Vargas, 113 A.D.3d579 [2d Dept 2014]). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Cotp. v Federal Ins. Co., 70N.Y.2d966 [1988]; Winegrad v New York Med. Ctr., 64N.Y.2d851 [1985]).
Labor Law §240(1) protects a worker from "specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured," and, to be applicable, the harm must flow "directly ... from the application of the force of gravity to an object or person" (Ross v Curtis Palmer Hydro-Electric Company, 81 N.Y.2d 494, 501 [1993]). Such statute should be construed as liberally as possible for the accomplishment of the purpose of imposing absolute liability for a breach which proximately causes an injury (see Saint v Syracuse Supply Co., 25 N.Y.3d 117 [2015]; Nicometi v Vineyards of Fredonia, LLC, 25 N.Y.3d 90 [2015]; Fabrizi v 1095 Ave. of the Ams., LLC, 22 N.Y.3d 658 [2014]; McCarthy v City of New York, 173 A.D.3d 1165 [2d Dept 2019]); Zamora v 42 Carmine St. Associates, LLC, 131 A.D.3d 531 [2d Dept 2015]), and it "imposes a nondelegable duty upon owners, general contractors, and their agents to provide safety devices necessary to protect workers from the risks inherent in elevated work sites" (Martin v Hillside Enters, LLC, 185 A.D.3d 809, 810 [2d Dept 2020] quoting Vatican v Hawthorne Vil., LLC, 155 A.D.3d 924, 925 [2d Dept 2017]; see McCarthy v Turner Constr., Inc., 17 N.Y.3d 369 [2011]; Orellana v 7 W. 34th St., LLC, 173 A.D.3d 886 [2d Dept 2019]; Vicuna v Vista Woods, LLC, 168 A.D.3d 1124 [2d Dept 2019]). Liability is imposed where there exists a hazard contemplated under the statute; a failure to utilize a, or the use of an inadequate, safety device enumerated therein; and "plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see Wilinski v 334 East 92nd Housing Development Fund Corp., 18 N.Y.3d 1 [2011]; Soczek v 8629 Bay Parkway LLC., 193 A.D.3d 1093 [2d Dept 2021]; Zoto v 259 W. 10,th, LLC, 189 A.D.3d 1523 [2d Dept 2020]; Lemus v New York B Realty Corp., 186 A.D.3d 1351 [2d Dept 2020]; Jones v City of New York, 166 A.D.3d 739 [2d Dept 2018]).
Plaintiff must demonstrate that at the time of the subject occurrence, the safety device provided required securing for the purpose of the undertaking at hand, and failed due to "the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 268 [2001]). "The availability of a particular safety device will not preclude liability 'if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures'" (Munzon v Victor at Efth, LLC, 161 A.D.3d 1183, 1184 [2d Dept 2018], quoting Nimirovski v Vornado Realty Trust Co., 29 A.D.3d 762, 762 [2d Dept 2006]; see Yaucan v Hawthorne Vil., LLC, 155 A.D.3d 924 [2d Dept 2017]). Where there is no statutory violation, or where a securing device of the type enumerated in the statute would not be necessary (see Rocovich v Consolidated Edison Co., 78 N.Y.2d 509; Benavides-Portillo v G.B. Constr. & Dev., Inc., 149 A.D.3d 681 [2d Dept 2017]; Garcia v Market Assoc., 123 A.D.3d 661 [2d Dept 2014]; Moncayo v Curtis Partition Cotp., 106 A.D.3d 963 [2d Dept 2013]), or where the plaintiffs actions are the sole proximate cause of his or her own injuries (see Blake v Neighborhood Hous. Sen's. of N.Y. City, 1 N.Y.3d 280 [2003]; Yaguachi v Park City 3 & 4 Apts., Inc., 185 A.D.3d 635 [2d Dept 2020]; Loretta v Split Dev. Corp., 168 A.D.3d 823 [2d Dept 2019]; Nalvarte v Long Is. Univ., 153 A.D.3d 712 [2d Dept 2017]; Melendez v 778 Park Ave. Bldg. Corp., 153 A.D.3d 700 [2d Dept 2017]), there can be no recovery under such statute.
"To recover on a cause of action pursuant to Labor Law §240(1), a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident" (Przyborowski v A & M Cook, LLC, 120 A.D.3d 651, 653 [2014]; see Berg v Albany Ladder Co., Inc., 10 N.Y.3d 902 [2008]; Andres v North 10 Project, LLC, 192 A.D.3d 953 [2d Dept 2021]; Soczek v 8629 Bay Parkway, LLC., 193 A.D.3d 1093; Lozado v St. Patrick's RC Church, 174 A.D.3d 879 [2d Dept 2019]; Jones v City of New York, 166 A.D.3d 739 [2d Dept 2018]; Lorde v Margaret Tietz Nursing & Rehabilitation Ctr., 162 A.D.3d 878 [2d Dept 2018]; Yao Zong Wu v Zhen Jia Yang, 161 A.D.3d 813 [2d Dept 2018]). In the instant matter, plaintiff must demonstrate that at the time of the subject occurrence, for the purpose of the undertaking at hand, there existed an "absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 268 [2001]). "Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law §240(1)" (Narducci v Manhasset Bay Assoc., 96 N.Y.2d at 267; see James v City of New York, 166 A.D.3d 739 [2d Dept 2018]; Guallpa v Canarsie Plaza, LLC, 144 A.D.3d 1088 [2d Dept 2016]).
"While the 'collapse of a ... ladder for no apparent reason while a plaintiff is engaged in an activity enumerated under the statute creates a presumption that the ladder ... did not afford proper protection'" (Torres v Accumanage, LLC, 2022 NY Slip Op. 06154 [ 2d Dept 2022] quoting Cruz v Roman Catholic Church of St. Gerard Magella in Borough of Queens in the City of N.Y., 174 A.D.3d 782, 783 [2d Dept 2019]; see Seferovic v Atlantic Real Estate Holdings, LLC, 127 A.D.3d 1058 [2d Dept 2015]; Ramirez v Metropolitan Transp. Auth., 106 A.D.3d 799 [2d Dept 2013]), "[t]he mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided, and whether a particular safety device provided proper protection is generally a question of fact for a jury" (Yao Zong Wu v Zhen Jia Yang, 161 A.D.3d 813, 814 [2d Dept 2018]; see Lozado v St. Patrick's RC Church, 174 A.D.3d 879 [2d Dept 2019]).
In the case at bar, plaintiff required the use of a ladder or scaffold to reach the area he was welding; he used the ladder he claims he was "directed" to use by Abilene; he alleged that the ladder shook and he lost his balance; and he, and the ladder, were propelled to the ground (see Poalacin v Mall Preps., Inc., 155 A.D.3d 900 [2d Dept 2017]). Consequently, liability under 240(1) has been, prima facie, demonstrated.
Based upon the evidence presented, plaintiff has satisfied his prima facie burden of demonstrating that the subject accident involved a Labor Law §240(1) type accident. Through his testimony, and a submitted report from Kathleen V. Hopkins, R.N., C.S.S.M., a Certified Site Safety Manager, opining that the ladder provided to plaintiff was inadequate, in and of itself, to protect plaintiff against its movement in the course of plaintiffs work, and that additional securing devices were necessary to adequately protect plaintiff from falling (see Nimirovski v Vornado Realty Trust Co., 29 A.D.3d 762), plaintiff demonstrated a violation of Labor Law §240(1). As plaintiff has demonstrated, albeit prima facie, that a statutory violation was a proximate cause of his injuries, therefore, plaintiff cannot be determined to be the sole proximate cause of the accident (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d280; Weininger v Hagedorn &Co., 91 N.Y.2d 958 [1998]; Repalo v MJRB Kings Highway Realty, LLC, 163 A.D.3d 1023 [2d Dept 2018]).
In opposition, defendant has failed to show that "plaintiffs injuries did not result from the type of elevation related hazard to which the statute applies" (Parker v 205-209 East 57th Street Associates, LLC, 100 A.D.3d 607, 609 [2012]). Defendants have failed to raise a triable issue of fact as to whether plaintiff was the sole cause of his own injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280; Loretta v Split Dev. Corp., 168 A.D.3d 823 [2d Dept 2019]; Nalvarte v Long Is. Univ., 153 A.D.3d 712 [2d Dept 2017]; Melendez v 778 Park Ave. Bldg. Corp., 153 A.D.3d 700 [2d Dept 2017]), as defendants' evidence failed to include affidavits of co-workers, or persons at the scene, stating that the ladder plaintiff used was not defective and was of sufficient height to perform the welding work safely, and that plaintiff failed to employ the proper procedure to accomplish the task at hand, or did move, or overburden, the ladder in an improper and dangerous manner, so as to have "caused him to lose his balance and fall" (see Gelvez v Tower 111, LLC, 166 A.D.3d 547 [1st Dept 2018]; Nalvarte v Long Is. Univ., 153 A.D.3d 712 [2d Dept 2017]; Caban v Plaza Constr. Corp., 153 A.D.3d 488 [2d Dept 2017]; Bermejo v New York City Health & Hosps. Corp., 119 A.D.3d 500 [2d Dept 2014]). Defendants' opposition, while alluding to the incongruity of plaintiffs story, and questioning his choice of a ladder, rather than a scaffold, to accomplish his task - which, in and of itself, was not an unreasonable selection - was unavailing in adequately addressing the fact that the ladder, either ordered to be utilized, or, at minimum, readily available for use at the site, failed to protect plaintiff as required by the statute. As such, defendants' arguments failed to raise an issue of fact which is sufficient to rebut plaintiffs prima facie entitlement (see Cabrera v Arrow Steel Window Corp., 163 A.D.3d 758 [2d Dept 2018]; Alvarez v Vingsan, L.P., 150 A.D.3d 1177 [2d Dept 2017]), and plaintiffs motion seeking partial summary judgment on liability, under Labor Law §240(1), against the owner and contractor herein, is granted.
Defendant, Bldg. East, cross-moves for summary judgment, seeking dismissal of plaintiffs claim against it pursuant to Labor Law §200, and for the granting of judgment against defendant, Abilene, for both common-law and contractual indemnification. Labor Law §200, is a codification of the common-law duty imposed upon an owner and general contractor or agent to provide construction site workers with a safe place to work (see Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343; Allen v Cloutier Constr. Corp., 44 N.Y.2d 290; Pchelka v Southcrcft, LLC, 178 A.D.3d 836 [2d Dept 2019]; Turgeon v Vassar Coll., 172 A.D.3d 1134 [2d Dept 2019]; Moscati v Consolidated Edison Co. of N Y., Inc., 168 A.D.3d 717 [2d Dept 2019]). "Cases involving 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 A.D.3d 54, 61 [2d Dept 2008]; see DiSanto v Spahiu, 169 A.D.3d 861 [2d Dept 2019]).
To be held liable for injuries, pursuant to Labor Law §200 or for common-law negligence, where, as here, plaintiffs claim arises out of the methods or manner of the work, rather than an alleged dangerous condition on the property, "recovery against the owner or general contractor cannot be had ... unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" (Ortega v Puccia, 57 A.D.3d at 61; see Pchelka v Southcroft, LLC, 178 A.D.3d 836 [2d Dept 2019]; Rodriguez v Mendlovits, 153 A.D.3d 566 [2d Dept 2017]). The right to generally supervise the work, or stop the work if a safety violation is noted, or to monitor compliance with contract specifications or safety regulations, is insufficient to impose liability under Labor Law §200 or common law negligence (see Derosas v Rosmarin Land Holdings, LLC, 148 A.D.3d 988 [2d Dept 2017]; Messina v City of New York, 147 A.D.3d 748 [2d Dept 2017]). Bldg. East argues, among other things, that it did not have the authority to, nor did it, supervise, direct, or control the means and methods of performing the work of Abilene; had no contract with, nor control over, plaintiffs employer, AVS; nor was there any evidence submitted by any party of Bldg. East's actual or constructive notice of any unsafe method utilized by plaintiff (see Vargas v Lamberti, 186 A.D.3d 1572 [2d Dept 2020]; Paul v Village of Quogue, 178 A.D.3d 942 [2d Dept 2019]; Guallpa v Canarsie Plaza, LLC, 144 A.D.3d 1088 [2d Dept 2016]).
As plaintiff has failed to proffer evidence that Bldg. East ordered, supervised, or controlled the method of the boiler conversion project (see Katfman v Turner Constr. Co., 195 A.D.3d 1003 [2d Dept 2021]; Devoy v City of New York, 192 A.D.3d 665 [2d Dept 2021]; Status Gen. Dev., Inc. v 501 Broadway Partners, LLC, 163 A.D.3d 740 [2d Dept 2018]), no question of fact exists in this regard. Consequently, Bldg. East has submitted compelling evidence to, prima facie, demonstrate entitlement to summary judgment pursuant to common-law negligence and Labor Law §200, and plaintiff has failed to raise a question of fact in rebuttal, warranting the granting of this branch of Bldg. East's cross motion.
Additionally, Bldg. East moves for summary judgment against co-defendant, Abilene, seeking contractual and common-law indemnification. The law is clear that while owners "owe nondelegable duties ... to plaintiffs who are employed at their work sites, these defendants can recover in indemnity, either contractual or common-law, from those considered responsible for the accident" (Kennelly v Darlind Constr., 260 A.D.2d 443, 445-446 [2d Dept 1999]; see Marulanda v Vance Assoc., LLC, 160 A.D.3d 711 [2d Dept 2018]; Shea v Bloomberg, 124 A.D.3d 621 [2d Dept 2015]).
"The right to contractual indemnification depends upon the specific language of the contract (citations omitted) ... [and] should not be found unless it can be clearly implied from the ... purpose of the entire agreement and the surrounding circumstances (citations omitted)" (Reisman v Bay Shore Union Free School Dist., 74 A.D.3d772, 773 [2010]; see Flores v Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363 [2005]; Skerrett v LIC Site B2 Owner, LLC, 199 A.D.3d 956 [2d Dept 2021]; LaGuardia v Brennan Beer Gorman/Architects, LLP, 175 A.D.3d 1280 [2d Dept 2019]; Chong Fu Huang v 57-63 Greene Really, LLC, 174 A.D.3d 777 [2d Dept 2019]; McCoy v Mecford Landing, L.P., 164 A.D.3d 1436 [ 2d Dept 2018]; DeSouza v Empire Transit Mix, Inc., 155 A.D.3d 605 [2d Dept 2017]). "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" (Alayev v Juster Assoc., LLC, 122 A.D.3d 886, 887 [2d Dept 2014]; see Hooper Assoc, v AGS Computers, Inc., 74 N.Y.2d 487 [1989]: Drzewinski v Atlantic Sccjfold & Ladder Co., 70 N.Y.2d 774 [1987]; Cuellar v City of New York, 139 A.D.3d 996 [2d Dept 2016]; Lawson v R & L Carriers, Inc., 126 A.D.3d 944 [2d Dept 2015]). Contracts that fail to contain an express agreement to indemnify cannot form the basis for a declaration that a duty to indemnify exists (see Chong Fu Huang v 57-63 Greene Realty, LLC, 174 A.D.3d 777; Ruizv Griffin, 50 A.D.3d 1007 [2d Dept 2008]; O'Berg v MacManus Group, Inc., 33 A.D.3d 599 [2d Dept 2006]; 405 Becford Ave. Development Corp. v New Metro Constr., Ltd., 26 A.D.3d 408 [2d Dept 2006]).
The subcontract between Abilene and the "Owner" of the subject property herein, fully signed on March 6, 2018, states, in relevant part, that Abilene will indemnify the Owner for any claims/damages "arising out of or in connection with negligence or other misconduct by Abilene." Such writing satisfies the requirements that a "written contract," must have been entered into prior to the accident and must have been sufficiently particular to have encompassed "an agreement to indemnify the person asserting the indemnification claim for the type of loss suffered" (Rodriguez v N & S Bldg. Contrs., Inc., 5 N.Y.3d 427 [2005]; Tullino v Pyramid Companies, 78 A.D.3d 1041 [2d Dept 2010]).
Normally, the party seeking contractual indemnification, first "must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Mohan v Atlantic Court, LLC, 134 A.D.3d 1075, 1078 [2d Dept 2015], quoting Cava Constr. Co, Inc. v Gealtec Remodeling Corp., 58 A.D.3d 660, 662 [2d Dept 2009]; Bleich v Metropolitan Management, LLC, 132 A.D.3d 933 [2d Dept 2015]). As determined above, Bldg. East has demonstrated that this action arose without any active liability accruing to itself (see Brooks v Judlau Contr., Inc., 11 N.Y.3d 204 [2008]; Yang v City of New York, 207 A.D.3d 791 [2d Dept 2022]; Lawson v R &L Carriers, Inc., 126 A.D.3d 944 [2d Dept 2015]); that it lacked the contractual authority to supervise and control the plaintiffs work (see Gikas v 42-51 Hunter Street, LLC, 134 A.D.3d 987 [2d Dept 2015]); and that it may be held liable solely by virtue of any statutory, or vicarious, liability herein (see Brooks v Judlau Contr., Inc., 11 N.Y.3d 204; Yang v City of New York, 207 A.D.3d 791 [2d Dept 2022]; Winter v ESRT Empire State Bldg., LLC, 201 A.D.3d 844 [2d Dept 2022]; Graziano v Source Bldrs. &Consultants, LLC, 175 A.D.3d 1253 [2d Dept 2019]).
Pursuant to the terms of the subject Contract herein, indemnity will not take effect unless, and until, fault is determined. Therefore, on the evidence submitted, the branch of the cross motion seeking judgment on contractual indemnification must be denied as premature, as no determination of negligence has yet been made, and plaintiffs injury has not yet been shown to be attributable solely to any action by Abilene herein (see Arrendahl v Trizechahn Corp., 98 A.D.3d 699 [2d Dept 2012]; Belief eur v Newark Beth Israel Med. Ctr., 66 A.D.3d 807 [2d Dept 2009]).
Even if the indemnification clause of the subject Contract herein had not been sufficiently particular to contractually obligate Abilene to indemnify Bldg. East, the result concerning indemnification would have been the same, as "the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee" (Trustees of Columbia Univ, v Mitchell/Giurgola Assoc., 109 A.D.2d 449, 453 [1st Dept 1985]; see Dreyfus v MPCC Corp., 124 A.D.3d 830 [2d Dept 2015]); Henderson v Waldbaums, 149 A.D.2d 461, 462 [2d Dept 1989]). According to the evidence presented herein, demonstrating that the owner could only be "held to be vicariously liable without proof of any negligence or actual supervision on its own part" (McCarthy v Turner Const., Inc., 17 N.Y.3d 369, 377-378 [2011], quoting Cava Constr. Co, Inc. v. Gealtec Remodeling Corp., 58 A.D.3d 660, 662 [2d Dept 2009]; see Bermijo v New York City Health & Hospitals Corp., 119 A.D.3d 500 [2d Dept 2014]), should Bldg. East be found negligent herein, solely on the basis of its vicarious, or statutory, liability to plaintiff, indemnification on the part of Abilene could be appropriate (see Graziano v Source Builders & Consultants, LLC, 175 A.D.3d 1253 [2d Dept 2019]; Pena v 104 North 6th Street Really Group, 157 A.D.3d 709 [2d Dept 2018]; Seales v Trident Structurals Corp., 142 A.D.3d 1153 [2d Dept 2016]).
The parties' remaining contentions and arguments either are without merit or need not be addressed in light of the foregoing determinations.
Accordingly, plaintiffs motion seeking summary judgment on his Labor Law §240(1) cause of action, is granted. The branch of defendant, Bldg. East 80th Street, LLC's cross motion, seeking dismissal of the causes of action claiming common-law negligence and a violation of Labor Law § 200, is granted. The branch of such cross motion seeking indemnification as against defendant, Abilene, Inc., is denied as premature.
This is the decision and order of the Court.