Opinion
18239 2008.
December 9, 2010.
The following papers numbered 1 to 35read on this motion by Manuel Rodriguez and Carmen Rodriguez for summary judgment in their favor on the issue of liability pursuant to Labor Law § 240 (1); cross motion by More Air Mechanical Services Co., Inc. (More Air), for summary judgment in their favor dismissing the third-party complaint and for summary dismissal of all cross claims of Tribeca 105 LLC (Tribeca), against More Air; cross motion by RAF Construction and Development Corp. (RAF), to dismiss plaintiffs' claims pursuant to Labor Law §§ 200, 240 (1) and 241 (6); and cross motion by Tribeca for contractual and common law indemnification from More Air.
Numbered
Papers Notice of Motion — Affidavits — Exhibits ............... 1-4 Notices of Cross Motions — Affidavits — Exhibits ....... 5-16 Answering Affidavits — Exhibits ........................ 17-27 Reply Affidavits ....................................... 28-35Upon the foregoing papers it is ordered that the motion and cross motions are decided as follows:
Plaintiffs in this negligence/labor law action seek damages for injuries sustained by Manuel Rodriguez ("plaintiff"), when he fell from an unsecured ladder while working at premises under construction known as 105 Franklin Street, in the Borough of Manhattan, New York. The premises were owned by Tribeca, which had hired RAF to act as the general contractor for the construction project. At the time, plaintiff was employed by More Air which was impleaded as a third-party in this action. The action by Carmen Rodriguez is derivative.
Facts
Plaintiff testified that he was employed as a "mechanic's helper" by More Air on March 25, 2008. As part of his employment, he was assigned to perform work at the 105 Franklin Street construction site. At the construction site, More Air installed "all the duct units" and "AC units on every floor". Plaintiff testified that Billy Singh was his supervisor at the site and at other construction sites where More Air performed work. Plaintiff and Singh worked together to install "most of the air conditioning units". There were no other individuals that performed this work with them.
With regard to the issue of direction at the work site, plaintiff testified that Singh gave him work directions and no one else did; at the beginning of the work day Singh would tell plaintiff what to do and that Singh would give plaintiff instructions about the use of safety devices such as a hard hat. All of the tools plaintiff used on the job were provided by More Air. Plaintiff testified that these tools were kept in the More Air van which Singh drove. Singh also kept hard hats, safety harnesses and three or four ladders in the van. Separate from the tools kept in the van, More Air also kept tools in a "gang box" at the 105 Franklin Street site. More Air also had scaffolds available for its employees to use and plaintiff recalled that two or three scaffolds were at the site.
Plaintiff identified RAF as the general contractor at 105 Franklin Street and stated that "Paul" was the "head guy" for the general contractor. Paul never gave plaintiff any instructions regarding his work. Additionally, Paul never instructed Singh on what types of tools to use or how to do the work itself. No one from the general contractor, including Paul, provided plaintiff or Singh with tools. In fact, when Paul would talk to plaintiff and Singh, he would merely discuss where the other trades were performing work so that More Air would not be in the way or have any trade be in their way.
As to the alleged fall, plaintiff testified that the work to be performed that day included the installation of a horizontal drain pipe, which started the day before the alleged fall. Singh used an extension ladder to perform the installation of the drain pipe. Plaintiff held the ladder while Singh performed this work. In order to continue installing the drain pipe on March 25, 2008, work needed to be done on the pipes which were located in the vicinity of the "joists" or "beams" that ran across the ceiling of the first floor. To perform this work, plaintiff and Singh used a 10-20 foot tall metal extension ladder. Plaintiff testified that they found the ladder on the first floor, but that he did not know who owned the ladder. Plaintiff testified that after picking up the ladder, he told Singh that he did not want to use the ladder to perform the work and that he would prefer to use a scaffold. Singh told him not to worry and ordered plaintiff to climb the ladder to perform the work.
At no point did plaintiff refuse to use the ladder or ask for a different ladder. Plaintiff also did not ask More Air to provide him with a scaffold to perform his work. Plaintiff and Singh set the ladder up against one of the "joists" or "beams". Plaintiff climbed the ladder and began performing his work. Plaintiff testified that, at some point, the ladder shifted causing plaintiff to fall from the ladder.
Singh testified as follows: all of the necessary equipment was provided by More Air, including the ladders. All of the instructions relative to the work to be performed were provided by More Air employees. Singh would assign specific tasks to plaintiff. The general contractor, RAF, would not assign any specific tasks to More Air employees or direct them as to how to perform their work.
Immediately prior to plaintiff's alleged fall, Singh climbed the ladder to measure a pipe. He testified that he had no problems climbing the ladder and the ladder did not move or shake while he was climbing or standing on it. After he descended, Singh and plaintiff cut a piece of pipe. Then, without discussion, plaintiff ascended the ladder to install the pipe while Singh held the ladder. Singh testified that as plaintiff climbed the ladder, it did not move or shake. Singh further testified that after plaintiff installed the pipe, he "turned himself" while standing on the ladder such that his feet were facing away from the ladder and towards Singh, who was still holding the ladder. When plaintiff finished turning his body, he fell. Singh testified that during this time, the ladder did not move or shake in any way. Finally, Singh testified that in order to properly descend the ladder, plaintiff should have come down facing the same direction as one would face when ascending the ladder.
Ron Frieden, President of RAF, testified as follows: pursuant to the contract with Tribeca, RAF was hired to act as the general contractor for the renovation/construction project at 105 Franklin Street. One of RAF's duties as the general contractor was to hire subcontractors to perform the work at the construction site; RAF would coordinate the subcontractors' activities, but would not direct the subcontractors or their employees. RAF would not provide safety devices or tools to the subcontractors or their employees. In fact, Frieden testified, RAF did not even own or possess any ladders to provide to the subcontractors.
According to Frieden, one of the subcontractors hired by RAF was plaintiff's employer, More Air. More Air was hired to perform the HVAC work pursuant to a contract between RAF and More Air. According to said contract, More Air was to provide all "labor, materials, equipment and services", in order to perform the work at 105 Franklin Street. More Air further agreed to "furnish all materials, supplies, tools, equipment, supervision, labor, utilities, testing, certifications, shop drawings and other items necessary to fully perform all of the work". In addition, More Air was required to provide each of its employees with "the proper safety equipment for the duties being performed by that worker."
The contract further provided that More Air "take all necessary precautions with respect to performance of the work" which included complying with all applicable laws and RAF's Contractor Safety and Health Program. The Contractor Safety and Health Program required More Air to provide its employees with ladders "in good condition, made of suitable material, of proper length and of the correct type for the use intended". More Air was also required to provide a "personal fall protection device" to its employees when they were working at an unprotected elevation of six feet and above. Also, the contract specifically provided More Air "to the fullest extent permitted by law . . . [to] indemnify and hold harmless Owner, Contractor . . . from and against any claims, damages, losses, liabilities, fines, payments and expenses, including but not limited to attorneys' fees arising out of and in connection with injuries . . . resulting from the performance of the work". In addition, More Air was required to procure and maintain a Commercial General Liability insurance policy for RAF's benefit which named RAF as an additional insured under such policy.
Briefly, James Costello, owner of More Air testified that while he was not present at the time of the accident, Singh later told him that plaintiff had essentially "jumped" from the ladder.
Motion by Plaintiffs
While working at the premises, plaintiff was standing on a ladder when the ladder suddenly moved, causing the plaintiff to fall approximately 20 feet to the ground. The defendants had not provided the plaintiff with any safety devices. Labor Law § 240 (1) provides, in pertinent part, "[a]ll contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." "In order to prevail on a Labor Law § 240 (1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries" ( Rudnik v Brogor Realty Corp. , 45 AD3d 828 , 829; see Cahill v Triborough Bridge Tunnel Auth. , 4 NY3d 35 , 39; Blake v Neighborhood Hous. Servs. of NY City , 1 NY3d 280 ). Labor Law § 240 (1) "creates a liability that is strict, or absolute, in two senses: the duty it imposes is nondelegable, and thus contractors and owners are liable under the statute whether or not they supervise or control the work; and where an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense" ( Cahill v Triborough Bridge Tunnel Auth., 4 NY3d at 39). There is, however, no liability "where a plaintiff's own actions are the sole proximate cause of the accident" ( id.).
Here, plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that the defendants failed to provide him with any safety devices, and that defendants' violation of Labor Law § 240 (1) was a proximate cause of his injuries ( see Rudnik v Brogor Realty Corp. , 45 AD3d 828; Guaman v New Sprout Presbyt. Church of NY , 33 AD3d 758 ; Lopez v Melidis , 31 AD3d 351 ; Tavarez v Weissman, 297 AD2d 245). In opposition, defendants failed to raise a triable issue of fact. While it is possible that plaintiff was negligent in allegedly turning around on the ladder, his conduct cannot be considered the sole proximate cause of his injuries ( see Rudnik v Brogor Realty Corp., 45 AD3d at 829; O'Connor v Enright Marble Tile Corp. , 22 AD3d 548 ; Torres v Monroe Coll. , 12 AD3d 261 ; Tavarez v Weissman, 297 AD2d 245). Furthermore, defendants' submission of the unsworn statement of a purported witness failed to raise any triable issue of fact, inasmuch as the statement did not constitute evidentiary proof in admissible form ( see e.g., Grasso v Angerami, 79 NY2d 813; Campbell v Lorenzo's Pizza Parlor, 172 AD2d 478). Accordingly, the motion by plaintiffs for summary judgment in their favor on their claim pursuant to Labor Law § 240 (1), is granted.
Cross Motion by More Air
RAF's third-party complaint against More Air asserts causes of action against More Air sounding in the following: contractual indemnity; breach of alleged contractual obligation to obtain insurance naming RAF as additional insured on More Air's policy; and common law based claims of indemnity and contribution.
The contractual causes of action are based upon an agreement, dated August 2, 2007, between general contractor RAF and its subcontractor More Air, whereby the former contracted with the latter for the performance of certain air conditioning installation work at the subject premises. The RAF-More Air Agreement has two clauses that purport to impart indemnity obligations upon More Air, namely Article 5.8.6 and Article 9.1. More Air argues, inter alia, that the contract between RAF and More Air does not contain a valid indemnification clause under General Obligations Law § 5-322.1. Specifically, More Air alleges that Article 5.8.6 of the contract between RAF and More Air is unenforceable. The Court does not agree.
Article 5.8.6 of the contract between RAF and More Air plainly requires More Air to "defend, indemnify and hold harmless the Contractor and Owner from, and be responsible for all Claims, damages . . . caused in whole or in part by the conduct or failure to act by the Subcontractor, the Subcontractor's employees or anyone for whom the Subcontractor is responsible or may be liable". This contractual language essentially limits indemnification for any claims arising out of More Air's work. Indeed this provision of the contract specifically limits indemnification to claims caused by "the conduct or failure to act by" More Air. Thus, because the contract only requires More Air to indemnify RAF where, as here, an injury is caused by its own actions and arose from More Air's work, the indemnification clause is valid under the General Obligations Law. While it is true that the GOL prohibits a party from being indemnified by contract for acts solely occasioned by that party's negligence, it does not preclude indemnification where the provision calls for partial, not full, indemnification of the owner for personal injuries not caused by its negligence ( see Brooks v Judlau Contracting, Inc. 11 NY3d 204 [2008]; Dutton v Charles Pankow Builders, Ltd., 296 AD2d 321 [2002]).
As stated by the Appellate Division, Second Department, in Itri Brick, the Legislature enacted General Obligations Law § 5-322.1 in order to
"prevent a prevalent practice in the construction industry of requiring subcontractors to assume liability by contract for the negligence of others. The Legislature concluded that such coercive bidding requirements unnecessarily increased the cost of construction by limiting the number of contractors able to obtain the necessary hold harmless insurance, and unfairly imposed liability on subcontractors for the negligence of others over whom they had no control. The agreements also needlessly created expensive double coverage for hold harmless or general liability insurance" ( 89 NY2d at 794).
Since "[o]ne should not be held to answer for the wrongful acts of another unless he is in the insurance business, assuming risks in return for payment of premiums" (Sponsor's Mem, Bill Jacket, L 1981, ch 964, 1981 NY Legis Ann, at 502), for the court to hold that a partially negligent general contractor may never seek contractual indemnification for the wrongful actions attributable to its subcontractor would leave the general contractor liable for the negligent actions of its subcontractor. Such an outcome would be contrary to the intent of General Obligations Law § 5-322.1 that payment of damages be made according to fault.
Based upon the foregoing, the branch of the cross motion by More Air which seeks to dismiss Tribeca's claim for contractual indemnification is denied.
The claims of common law indemnity and contribution against More Air are dismissed pursuant to Workers' Compensation Law (WCL) § 11. It is undisputed that plaintiff was an employee of More Air and that plaintiff's accident occurred during the course of his employment. WCL § 11 provides:
An employer (here More Air) shall not be liable for contribution or indemnity to an third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a "grave injury" which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.
In order to establish entitlement to summary judgment and dismissal of all common law claims of indemnity and contribution pursuant to WCL § 11, a movant must show "by the submission of competent admissible evidence that the plaintiff did not sustain a grave injury' within the meaning of WCL § 11(Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487, 488). In support of their motion for summary judgment on the ground that the plaintiff did not suffer a "grave injury" within the meaning of Workers' Compensation Law § 11, More Air relied, inter alia, upon the plaintiffs' verified bill of particulars specifying the nature of plaintiff's physical injuries, none of which constituted a "grave injury" within the meaning of the statute (see Spiegler v Gerken Bldg. Corp. , 35 AD3d 715 ; Marshall v Arias , 12 AD3d 423 ). The burden then shifts to the opponent of such motion to raise a triable issue of fact in this regard (( Fitzpatrick v Chase Manhattan Bank, supra). Based upon the pleadings and evidence in the record, none of the injuries claimed by plaintiff meet the statutory threshold of "grave injury" under WCL § 11.
The term "grave injury" as contained in Workers' Compensation Law § 11 has been described as a statutorily-defined threshold for catastrophic injuries, and it includes only those injuries listed in the statute and determined to be permanent ( see, Curran v Auto Lab Serv. Ctr., 280 AD2d 636; Kerr v Black Clawson Co., 241 AD2d 686). Furthermore, the statutory list of grave injuries is intended to be exhaustive, not illustrative ( see, Curran v Auto Lab Serv. Ctr., supra). More Air met its burden of proving by competent admissible evidence ( see Gaddy v Eyler, 79 NY2d 955; Licari v Elliott, 57 NY2d 230), that plaintiff's injuries, although clearly serious, did not rise to the level of "grave" injuries within the meaning of Workers' Compensation Law § 11 ( see, Curran v Auto Lab Serv. Ctr., supra). In opposition to the cross motion, plaintiffs failed to demonstrate the existence of a triable issue of fact. Accordingly, the branch of the cross motion which is for summary judgment dismissing the claims of common law indemnity against More Air is granted ( see Castro v United Container Mach. Group, 96 NY2d 398; Bardouille v Structure-Tone, 282 AD2d 635).
Finally, RAF's claim against More Air for breach of contract for alleged failure to procure insurance is dismissed as the record reveals that More Air did procure same.
Cross Motion by RAF
RAF cross moves for summary judgment in its favor dismissing the complaint and all cross claims asserted against it and for summary judgment on its claims for contractual and common law indemnification against More Air. RAF contends that it did not supervise or control plaintiff or the work he was performing when the alleged accident occurred; plaintiff's own conduct was the sole proximate cause of the alleged accident; the industrial code sections alleged by plaintiff as the predicates for a violation of Labor Law § 241 (6) are inapplicable to the instant matter and that RAF's contract with More Air provides that More Air must defend and indemnify RAF relative to this action.
Labor Law § 200 and Common Law Negligence Claims
RAF is entitled to dismissal of so much of the complaint as alleged negligence and a violation of Labor Law § 200, and all other claims based upon them, because an "implicit precondition" to the duty to provide construction site workers with a safe place to work is that the party charged with such responsibility have the authority to control the activity bringing about the injury ( see Comes v New York State Elec. Gas Corp., 82 NY2d 876; D'Amico v New York Racing Assn., 203 AD2d 509). Here, RAF did not exercise any degree of supervisory control over plaintiff's activities.
Although RAF coordinated the subcontractors at the site, told subcontractors where to work on a given day, and had the authority to review safety on the site, this conduct does not rise to the level of supervision or control necessary to hold RAF liable for plaintiff's injuries (see Lillis v City of New York, 226 AD2d 592; Biszick v Ninnie Constr. Corp., 209 AD2d 661).
Labor Law § 241(6)Labor Law § 241 (6), requires 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. As is the duty imposed by Labor Law § 240 (1), the Labor Law § 241 (6) duty to comply with the Commissioner's regulations is nondelegable ( e.g., Long v Forest-Fehlhaber, 55 NY2d 154, 159; Allen v Cloutier Constr. Corp., 44 NY2d 290). Thus, to the extent that plaintiff has asserted a viable claim under Labor Law § 241 (6), he need not show that defendants exercised supervision or control over his work site in order to establish his right of recovery. Plaintiff withdrew his opposition to the branches of defendants' cross motion which seek to dismiss plaintiffs' claims on all but sections 23-1.21 (3) and 23-1.21(b) (4).
Contrary to defendants' contention, the Commissioner's regulations are sufficiently specific to support a cause of action under Labor Law § 241 (6) ( see Perry v City of Syracuse Indus. Dev. Agency, 283 AD2d 1017; Norton v Park Plaza Owners Corp., 263 AD2d 531). Furthermore, there are triable issues of fact as to whether defendant violated 12 NYCRR 23-1.21(b) (3) and (b) (4) ( see De Oliveira v Little John's Moving, 289 AD2d 108).
12 NYCRR 23-1.21 (b) (3) relates to ladders and ladder ways: Maintenance
"All ladders shall be maintained in good condition. A ladder shall not be used if any of the following conditions exist:
(i)if it has a broken member or part
(ii)if it has any insecure joints between members or parts;
(iii)if it has any wooden rung or step that is worn down to three-quarters or less of its original thickness;
(iv)if it has any flaw or defect of material that may cause ladder failure
While defendants contend that the ladder was stable and in good working order at the time of the accident, plaintiff testified that the rubber feet of the ladder were missing from the bottom of the ladder and that the ladder shook causing him to fall to the ground.
Furthermore, Industrial Code 23-1.21 (b)(4), which relates to ladders and ladder ways, installation and use, states as follows:
(iv) when work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of the ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means. When work is being performed from rungs higher than 10 feet above the ladder footing, mechanical means for securing the upper end of such ladder against side slip are required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used.
Although the plaintiffs submitted evidence sufficient to establish that 12 NYCRR 23-1.21 (b) (4) (iv) was violated, "an issue of fact exists as to whether a violation of this provision was the proximate cause of [the plaintiff's] injury" ( Montalvo v J. Petrocelli Constr., Inc. , 8 AD3d 173 , 176; cf. Trippi v Main-Huron, LLC , 28 AD3d 1069 , 1070; Blair v Cristani, 296 AD2d 471, 472
Accordingly, the branches of the cross motion which seek to dismiss plaintiffs' claims pursuant to Labor Law § 241(6), are denied.
Although RAF coordinated the contractors at the site, told contractors where to work on a given day, and had the authority to review safety on the site, this conduct does not rise to the level of supervision or control necessary to hold RAF liable for plaintiff's injuries ( see Lillis v City of New York, 226 AD2d 592; Biszick v Ninnie Constr. Corp., 209 AD2d 661). As plaintiff testified at his examination before trial, plaintiff's employer supplied plaintiff with all equipment for the job, and plaintiff determined how to go about plaintiff's individual tasks on his own. RAF's contractual duties to supervise and enforce general safety standards at the work site did not create an issue of fact as to RAF's negligence.
The Appellate Division, First Department stated in Buccini v 1568 Broadway Assoc. ( 250 AD2d 466, 469): "The general duty to supervise the work and ensure compliance with safety regulations does not amount to supervision and control of the work site such that the supervisory entity would be liable for the negligence of the contractor who performs the day-to-day operations." Accordingly, in the absence of any evidence of negligence or misconduct by RAF, its motion for summary judgment on its contractual indemnification claim against Open Air is granted ( Masciotta v Morse Diesel Intl., Inc., supra; Buccini v 1568 Broadway Assoc., supra).
Cross Motion by Tribeca
Tribeca's purported cross claims against More Air consists of common law based claims of indemnity and contribution; and Tribeca also claims contractual indemnity against More Air, based on the 8/2/07 RAF-More Air agreement.
It is undisputed that More Air never entered into any contract with Tribeca. The subcontract (Article 9.1) between RAF and More Air provides as follows:
9.1 Indemnification and liability. Excepting only the responsibility of the owner and contractor for their own negligent acts and omissions, to the fullest extent permitted by law, subcontractor shall indemnify and hold harmless owner, contractor and contractor's other laborers, subcontractors, or suppliers and all of their agents and employees from and against any claims, damages, losses, liabilities, fines, payments and expenses, including but not limited to attorney's fees, arising out of and in connection with injuries (including death), or damage to property (including materials, machinery, tools, equipment or the Work), whether furnished by the owner, contractor or subcontractor resulting from performance of the work caused or alleged to be caused in whole or in part by a violation of any law, ordinance or regulations or by any negligent or wilful act or omission, or any claim of strict liability, arising out of work by subcontractor or anyone directly or indirectly employed by subcontractor or anyone for whose acts subcontractor may be liable. The provisions of this Article shall not be construed to negate or abridge, or otherwise reduce any other right or obligation of indemnity, which would otherwise exist as to any party or person described in this Article 9.1.
Article 9.1 excludes indemnification for the negligence of Tribeca, and contains the limiting language "to the fullest extent permitted by law". Contrary to More Air's assertion, this provision does not violate General Obligations Law § 5-322.1 as it does not require More Air to indemnify Tribeca for Tribeca's negligence. The provision is clear, obligating More Air to indemnify Tribeca only when it is shown that damages were caused by More Air's own negligence.
More Air asserts that the language "to the fullest extent permitted by law" broadens the subcontractor's liability to require full contractual indemnification, which includes indemnification for Tribeca's negligence and is thus rendered void by General Obligations Law § 5-322.1. The Court disagrees. That language contemplates partial indemnification and is intended to limit More Air's contractual indemnity obligation solely to More Air's own negligence. The phrase "to the fullest extent permitted by law" limits rather than expands a promisor's indemnification obligation ( Brooks v Judlau Contracting, supra).
Moreover, an indemnification clause is enforceable where the party to be indemnified is found to be free of any negligence (see Brown v Two Exch. Plaza Partners, 76 NY2d 172; Lesisz v Salvation Army , 40 AD3d 1050 ). In support of its claim for contractual indemnification as a matter of law, Tribeca established, prima facie, that it did not have actual or constructive notice of the existence of the condition which allegedly caused plaintiff to fall ( see Gordon v American Museum of Natural History, 67 NY2d 836; Harvey v Morse Diesel Intl., 299 AD2d 451; Canning v Barneys NY, 289 AD2d 32). In opposition, More Air failed to raise a triable issue of fact. In the absence of any showing of negligence, General Obligations Law § 5-322.1 does not bar enforcement of contractual indemnification for vicarious liability imposed under the Labor Law ( see Lesisz v Salvation Army , 40 AD3d 1050 ; Biance v Columbia Washington Ventures, LLC , 12 AD3d 926 ; Fresco v 157 E. 72nd St. Condominium , 2 AD3d 326 ).
More Air also argues that Tribeca should not be granted contractual indemnification because there are questions of fact as to Tribeca's negligence based on the level of supervisory control that Tribeca allegedly exercised at the job site. The record contains no evidence that Tribeca directed or controlled the manner in which plaintiff carried out his tasks.
More Air further argues that Tribeca is not entitled to indemnification under the subcontract between RAF and More Air as there is no privity between Tribeca and More Air. Under the terms of the agreement, however, Tribeca is an express third-party beneficiary. Thus, More Air, in entering into the contract, intended to give Tribeca a right of indemnification arising out of the work it was contracting to perform at Tribeca's premises ( see State of California Public Empl. Retirement Sys. v Shearman Sterling, 95 NY2d 427; Edge Management Consulting, Inc., v Blank , 25 AD3d 364 ; Polat v Fifty CPW Tenants Corp., 249 AD2d 163).
Based on the above, the branch of the cross motion by Tribeca which is for summary judgment on its claim for contractual indemnification against More Air is granted.
The branch of the cross motion which is to dismiss plaintiffs' Labor Law § 200 claim as it pertains to Tribeca is granted. In order to prevail under a negligence or Labor Law § 200 claim, the owner must exercise some supervisory control over the contractor's means and methods and have actual or constructive notice of the unsafe method. Recovery can be had under this statute only if the injured party can demonstrate that the named defendant, either through control or supervision, was directly responsible for the injury ( Lombardi v Stout, 80 NY2d 290; Dilena v Irving Reisman Irrevocable Trust, 263 AD2d 375; Sabato v New York Life Ins. Co., 259 AD2d 535). Therefore, owners are not liable under Labor Law § 200 if they do not direct or control the plaintiff's work ( Pineda v 79 Barrow Street Owners Corp., 297 AD2d 634; Schuler v Kings Plaza Shopping Center and Marina Inc., 294 AD2d 556). Here, there is no basis for holding Tribeca liable pursuant to Labor Law § 200 and common law negligence.
Conclusion
The motion by plaintiffs for summary judgment in their favor on their claim pursuant to Labor Law § 240 (1) is granted.
The cross motion by More Air to dismiss the third party complaint is granted except that the branch of the motion which is for summary judgment dismissing the claims of contractual indemnification sought by RAF is denied.
The branch of the cross motion by RAF seeking to dismiss plaintiffs' claim pursuant to Labor Law § 200 is granted. The branches of the cross motion which seek to dismiss plaintiffs' claims pursuant to Labor Law §§ 240 (1) and 241 (6) are denied.
The branch of the cross motion by Tribeca seeking common law indemnification from More Air is denied. The branch of the cross motion by Tribeca seeking contractual indemnification from More Air is granted.
This Constitutes the Decision and Order of the Court.