Opinion
Index 512903/18
02-28-2022
ALAN CRISTIAN ROMERO, Plaintiff, v. EVERGREEN GARDENS II LLC and BROOKLYN GC LLC, Defendants. EVERGREEN GARDENS II LLC and BROOKLYN GC LLC, Third-Party Plaintiff, v. RELIABLE MASONRY CORP., Third-Party Defendant.
Unpublished Opinion
PRESENT: HON. INGRID JOSEPH, Justice.
DECISION/ORDER
Hon. Ingrid Joseph, Supreme Court Justice.
The following e-filed papers read herein:
NYSEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits/Affirmations Annexed
89-90. 157-159
_Opposing Affidavits/Affirmations
116-118, 175, 199.200-205
Affidavits/ Affirmations in Reply
207.215-216
Other Papers (Copies of papers re: Bankr. Stay)
219, 220, 221
In this labor law dispute, defend ants/third-party plaintiffs, Evergreen Gardens II LLC ("Evergreen") and Brooklyn GC, LLC ("Brooklyn GC"), move for an order, pursuant to CPLR § 3212, (1) granting them summary judgment dismissing plaintiffs claims sounding in common-law negligence and violations of Labor Law §§ 200 and 241 (6), and (2) granting summary judgment in their favor against third-party defendant Reliable Masonry Corp. ("Reliable") on their contractual indemnification, common-law indemnification, contribution and breach of contractual insurance procurement requirements claims (Motion Seq. 3). Plaintiff, Alan Cristian Romero ("plaintiff) cross-moves for an order, (1) pursuant to CPLR § 3212, granting partial summary judgment in his favor on his Labor Law §§ 240 (1) and 241 (6) causes of action, and (2) pursuant to CPLR § 5015, vacating any prior default on the motion (Motion Seq. 5).
The court notes that, although this action as against Evergreen was stayed by Evergreen's filing of a voluntary petition for bankruptcy in the United Slates Bankruptcy Court for the Southern District of New York on February 22, 2021, plaintiff has submitted a copy of a stipulation so-ordered by a Bankruptcy Court Judge on October 29, 2021 that lifts the automatic stay with respect to Evergreen in order to allow plaintiff to continue the instant action as against Evergreen with the condition that any recovery from Evergreen is limited to the proceeds available under certain insurance policies and/or excess insurance policies.
Plaintiff claims arc premised upon common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6) based on an accident that occurred September 14, 2017, when he was struck on the head by two bricks that fell directly from above where he was standing. Evergreen was the owner of the work site and it hired Brooklyn GC to act as the general contractor for the construction of an eight-story mixed use commercial and residential building. Pursuant to a written contract, Brooklyn GC thereafter hired Reliable as the masonry contractor to install the building's brick facade. Plaintiff was employed by Reliable as a mason.
According to plaintiffs deposition testimony, on the day of the accident, plaintiffs work involved laying bricks on the seventh floor of the building. Plaintiff did this work while standing on a mast climber, which is a kind of scaffold that can move up and down the face of a building. When it came time for plaintiff and his coworkers to take their lunch break, plaintiff asserts that the layer of bricks he had completed was mortared into position and that there were no loose bricks in the area where he had been working. In order to take their lunch break, plaintiff and his coworkers lowered the mast climber to the second floor. After the lunch break, plaintiff stood on the mast climber, which was still at the second floor, waiting for bricks and mortar to be loaded onto it before returning to the seventh floor to continue working. While he was waiting on the mast climber, plaintiff was struck on the head with two bricks that fell from above. Plaintiff did not see the bricks until after they hit him.
Plaintiffs testimony regarding his belief that the bricks fell because someone working above him dislodged them was based on what his coworkers told him after the accident and was not based on his own observations.
In his deposition testimony, Moshe Blum, Brooklyn GC's construction superintendent, stated that he observed the bricks fall and hit plaintiff and that, at the time plaintiff was struck, plaintiff was ascending to the seventh floor on the mast climber. According to Blum, at the time of the accident, no one was working in the area from where the bricks fell. Blum did state, however, that Reliable's work was approaching the safety netting and guardrails located around the parapet, and that this safety material had to be removed before Reliable could finish its work. According to Blum, prior to the date of the accident, he had observed that Reliable employees had, on occasion, left unsecure, loose bricks on the worksite, and that, after the accident, he went to the seventh floor, and observed some loose bricks at the top of the brick work. While Blum conceded that he did not witness what actually caused the bricks to fall, he opined that it was vibrations from the mast climber that caused the loose bricks to fall.
The court notes that Blum, in a section of the accident report prepared by him that asks "what caused the event," wrote that "one guy was fixing safety on the roof and brick guy left loose brick on top of parapet wall and it fall down [sic] when he fixed it."
In contrast, Leonardo Simon, a Reliable supervisor, asserted in an affidavit submitted in opposition that, in his experience, a mast climber would not have caused enough vibration to dislodge a brick, even one used to hold a "masonry twig" of a "masonry line" in place. Simon asserts that, although he did not witness the accident, a few minutes prior to the accident, he observed a worker, who was not employed by Reliable, removing poles and netting from an area directly above the seventh-floor area where plaintiff had been installing bricks and above where plaintiff was struck by the bricks.
Simon stated that a masonry line helps ensure that bricks are installed in a level manner, and a masonry twig is a thin piece of metal at the end of a masonry line. A brick is placed on the twig in order to hold the masonry line in place and prevent it from being blown in the wind.
Initially, Evergreen and Brooklyn GC contend that plaintiffs cross motion and opposition to their motion, which were not served and filed until December 23, 2020, cannot be considered because plaintiff failed to comply with the time constraints of a November 25, 2020 order that, in adjourning the return date of the motion to January 6, 2021, required plaintiff to file opposition to defendant's motion on or before December 9, 2020. Plaintiffs delay in opposing defendants' summary judgment motion, however, has no bearing on consideration of plaintiff's cross-motion for summary judgment because the November 25, 2020 order set no time limit for plaintiff to move for summary judgment, and because plaintiffs motion was timely under CPLR 3212 (a) and local court rules since the note of issue that was filed on December 11, 2020 was thereafter vacated by an order (Knipel, J.) dated January 25, 2021 (see Wells Fargo Bank, NA v Apt, 179 A.D.3d 1145, 1146-1147 [2d Dept 2020]). The court will also consider plaintiffs opposition to defendants' motion because plaintiff has sufficiently detailed a reasonable excuse for his delay based on a law office failure in assigning counsel to submit the opposition papers, and defendants have not been prejudiced by the delay as they received additional time to submit their reply and opposition papers (see Stango v Byrnes, 200 A.D.3d 821, 822-823 [2d Dept 2021]; Garcia v City of New York, 189 A.D.3d 788, 789 [2d Dept 2020]).
In any event, a court may not require that a summary judgment motion be made earlier than 30 days after the filing of the note of issue (see CPLR 3212 |a]).
This court rejects defendants' suggestion that plaintiffs cross motion must be denied because plaintiff has failed to attach the pleadings to his motion papers (CPLR 3212 [b]) given that defendants submitted the pleadings as part of their own motion and the pleadings are thus already in the record before the court (see Monlalvo v Episcopal Health Servs., Inc., 172A.D.3d 1357, 1359 [2d Dept 2019]; CPLR 2001]).
The court notes that, even if it were required to reject plaintiffs opposition papers, it would reach the same result regarding defendants' motion since, as discussed below, portions of defendants' requested relief would still be denied in view of initial burden of proof that applies to their motion even in the absence of opposition (see Caliber Home Loans, Inc. v Squaw, 190 A.D.3d 926, 927-928 [2d Dept 2021 ]; Exit Empire Realty v Zilelian, 137 A.D.3d 742, 743 [2d Dept 2016]) and in view of the affidavits in the record before the court appended to the timely opposition submitted by Reliable.
Labor Law § 240 (1) imposes absolute liability on owners and contractors or their agents when they fail to protect workers employed on a construction site from injuries proximately caused by risks associated with falling from a height or those associated with falling objects (see Wilinski v 334 East 92nd Housing Dev. Fund Corp., 18 N.Y.3d 1, 3 [2011]; Narducci v Manhasset Bay Assoc, 96 N.Y.2d 259, 267-268 [2001]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]). For a defendant to be held liable under Labor Law § 240 (1), a plaintiffs injuries must be "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, 18 N.Y.3d at 10). For accidents involving falling objects, the "plaintiff must show more than simply that an object fell causing injury to a worker" (Narducci, 96 N.Y.2d at 268; see also Fabrizzi v 1095 Ave. of Ams., L.C.C., 22 N.Y.3d 658, 663 [2014]). A plaintiff must show that, at the time the object fell, it was "being hoisted or secured" (Narducci, 96 N.Y.2d at 268) or "required securing for the purposes of the undertaking" (Outar v City of New York, 5 N.Y.3d 731, 732 [2005]; see Quattrocchi v F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 758 [2008]) and that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci, 96 N.Y.2d at 268; see Fabrizzi, 22 N.Y.3d at 663).
As is relevant here, Labor Law § 240 (1) provides: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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."
There no dispute that the brick work plaintiff was performing is covered as work in the "erection" of a building under Labor Law § 240 (I), and that Evergreen, as owner, and Brooklyn GC, as general contractor, or the entity that fulfilled that rule, may be held liable under section 240 (1) regardless of whether they actually supervised or controlled plaintiffs work (see Gordan v Eastern Ry Supply, 82 N.Y.2d 555, 559-560 [1993]; see also McCarthy v Turner Constr.. Inc., 17 N.Y.3d 369, 374 [201 []; Barker v Union Corrugating Co., 187 A.D.3d 1544, 1546 [4th Dept 2020]; Yaguachi v Park City 3&4 Apis.. Inc., 185 A.D.3d 635, 635-636 [2d Dept 2020]).
The primary evidence before the court regarding the falling bricks comes from the testimony and affidavits from plaintiff, Blum, Brooklyn GC's superintendent, and Simon, a Reliable supervisor. A juror might be able to infer from Blum's assertions, made in his affidavit and deposition testimony, that Reliable workers had left unsecured bricks lying around that could have come loose as a result of vibrations from the mast climber. Similarly, Simon's assertions that he observed a worker removing perimeter protection from an area above where plaintiff was working might allow an inference that this worker dislodged the bricks at issue. The assertions of Blum regarding the presence of unsecured bricks and those of Simon regarding the work being performed above plaintiffs location might support an inference that some sort of securing device or overhead protection was necessary under the circumstances (see Hewitt v NY 70th St., LLC, 187 A.D.3d 574, 574-575 [1st Dept 2020]; Garcia v SMJ210 W.18 LLC, 178 A.D.3d 473, 473 [1st Dept 2019]; Passos v Noble Constr. Group, LLC, 169 A.D.3d 706, 707-708 [2d Dept 2019]; Wellington v Christa Constr. LLC, 161 A.D.3d 1278, 1280-1281 [3d Dept 2018]: Cortes v Jing Jeng Hang, 143 A.D.3d 854, 855 [2d Dept 2016]; Stawski v Pasternack, Popish & Reif, P.C., 54 A.D.3d 619, 620 [2d Dept 2008]).
The court notes that plaintiff, in cross moving, relies on the deposition transcripts and other exhibits submitted by defendants in support of their motion and the affidavits submitted by Reliable in its opposition to defendants' motion.
In contrast, plaintiff in his own testimony, stated that he and his coworkers had mortared all the bricks into the wall and left no unsecured bricks where they had been working on the 7th floor are facts that weigh against finding that a Labor Law § 240 (1) safety device would have been necessary or expected to secure the bricks (see Carlton v City of New York, 161 A.D.3d 930, 933 [2d Dept 2018]; Gonzalez v ¶M Constr. Corp., 87 A.D.3d 610, 611 [2d Dept 2011]; Marin v AP Amsterdam 1661 Park LLC, 60 A.D.3d 824, 825-826 [2d Dept 2009]). While the above noted assertions of Blum and Simon may allow an inference regarding the need for a section 240 (1) securing device, the witnesses did not sec exactly where the bricks were located at the time they fell. This inability to identify what caused the bricks to fall, along with plaintiffs own testimony that there were no unsecured bricks on the seventh floor, precludes a finding, as a matter of law, that the bricks that struck plaintiff required securing for the purposes of the undertaking or fell because of the absence or inadequacy of a Labor Law § 240 (1) device (see Millette v Tishman Constr. Corp., 144 A.D.3d 1113, 1115 [2d Dept 2016]; Pazmino v 41-50 78th St. Corp., 139 A.D.3d 1029, 1030 [2d Dept 2016]; Podobedov v East Coast Constr. Group, Inc., 133 A.D.3d 733, 735 [2d Dept 2015]). Accordingly, plaintiff has failed to demonstrate his prima facie entitlement to summary judgment on his section 240 (1) claim and his cross motion must, thus, he denied regardless of the sufficiency of the opposition submitted by defendants and Reliable (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
The court notes that the expert engineering affidavit proffered by plaintiff cannot be considered because it was submitted for the first time in reply (see Caliber Home Loans, Inc. v Weinstein, 197 A.D.3d 1232, 1236-1237 [2d Dept 2021 ]). In any event, the conclusory assertions of the engineer relating to the need for overhead protection or securing devices fail to demonstrate plaintiffs prima facie entitlement to relief. Additionally, Reliable has submitted an affidavit from an expert engineer who asserts that no Labor Law § 240 (1) device would have been needed to secure the recently laid bricks or any bricks used to secure the masonry twig.
Regarding plaintiffs Labor Law § 241 (6) cause of action, under that section an owner, general contractor or their agent may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 349-350 [1998|; Honeyman v Curiosity Works, Inc., 154 A.D.3d 820, 821 [2d Dept 2017]). In his bill of particulars, plaintiff identified a plethora of Industrial Code sections and Occupational Safety and Health Administration ("OSIIA") standards alleged to have been violated. OSHA standards, however, may not be relied upon as a predicate for a section 241 (6) claim (see Cun-En Lin v Holy Family Monuments, 18 A.D.3d 800, 802 [2d Dept 2005]; see also Alberto v DiSano Demolition Co., Inc., 194 A.D.3d 607, 608 [1st Dept 2021]), and defendants have demonstrated that Industrial Code sections 12 NYCRR 23-1.4(45), 23-1.5; 23-1.5(a), (b), (c)(1), (2) and (3); 23-1.7 (b)(1)(i), (ii), (iii), (d), (e), (e)(2) and (f); 23-1.8, 23-1.22(b)(2), 23-1.30, 23-1.32, 23-1.33(a), 23-2.2, and (4); 23-2.3(a)(1) and (2), and (c); 23-2.5(a), 23-2.6(a), 23-3.2(a-d). 23-3.3, (b-m), 23-3.4(a-c), 23-5.1(e)(5); 23.5.1(1). 23-5.1(h); 23-5.1(j)(1); 23-8.1(a), (b)(l-5), (d)(1), (2) and (3), (e)(1) and (5), (f)(I)(i-v), (f)(2)(i) and (ii), (0(4), (0(6); 23-8.2(c)(3) and 23-8.2(0(3), (g)(1)(i) and (ii), (g)(2)(i), (ii) and (iii), and (h); 23-8.5(b), (c)(1), (2) and (3)(i), (ii) and (hi), (e), (f), (h), (i), (j), (k), (I), (m), and (n) are either insufficiently specific or inapplicable to the facts here. Further, plaintiff is deemed to have abandoned reliance on these sections, because he (ailed to addressed them in his opposition papers (see Debennedetto v Chetrit, 190 A.D.3d 933, 935 [2d Dept 2021]; Pita v Roosevelt Union Free Sch. Dist., 156 A.D.3d 833, 835 [2d Dept 2017J). Plaintiffs Labor Law § 241 (6) cause of action is thus dismissed to the extent that plaintiff relies on those above mentioned sections.
Contrary to defendants' contention, however, 12 NYCRR 23-1.7 (a), addressing overhead hazards states a specific standard (see Zervos v City of New York, 8 A.D.3d 477, 480 [2d Dept 2004]). Under 123 NYCRR 23-1.7 (a)(1), every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. As defendants have failed to submit evidentiary proof showing that the area where plaintiff was working was not normally exposed to falling material or objects, they have failed to demonstrate, prima facie, that 12 NYCRR 23-1.7 (a) is inapplicable to the facts and accident here (see Salcedo v Sustainable Energy Options, LLC, 190 A.D.3d 439, 440 [1st Dept 2021]; Gonzalez, 87 A.D.3d at 611). The portion of the defendants' motion that is addressed to plaintiff's Section 241 (6) claim, to the extent it is premised on 12 NYCRR 23-1.7 (a), must therefore be denied, regardless of the sufficiency of plaintiffs opposition papers (see Winegrad, 64 N.Y.2d at 853). The portion of plaintiffs cross motion relating to his Labor Law § 241 (6) claim premised upon this same section must similarly be denied.
Blum's assertion that the subject area was not normally exposed to falling hazards is contained in an affidavit submitted for the first time with defendants' reply papers, and as such, it cannot be considered (see Caliber Home Loans. Inc. v Weinstein, 197 A.D.3d 1232, 1236-1237 [2d Dept 2021]).
With respect to 12 NYCRR 23-1.7 (a), the court finds that plaintiff has failed to submit evidentiary proof showing that the area at issue was normally exposed to falling material or objects (see Crichigno v Pacific Park 550 Vanderbilt, LLC, 186 A.D.3d 664, 665 [2d Dept 2020]). Further, the court notes that plaintiff raised, for the first time, in opposition to the defendants' motion and in support of his own cross motion, that defendants violated 12 NYCRR 23-5.1 (i), which sets standards for overhead protection on scaffolds when such protection is required (see Doto v Asotria Energy II, LLC, 129 A.D.3d 660, 664 [2d Dept 2015J). Assuming arguendo that plaintiff can utilize section 23-5.1 (i), it would be denied, since plaintiff has failed to submit evidentiary proof showing that the area at issue was subject to falling objects such that overhead protection would be necessary (see Kauffman v New York City Sch. Constr. Auth., 55 Misc.3d 1208 [A], 2017 NY Slip Op 50455, *6 [U] [Sup Ct, Queens County 2017]; see also Crichigno, 186 A.D.3d at 665; cf. Zervos v City of New York, 8 A.D.3d 477, 480 [2d Dept 2004]). In the same manner, plaintiff raised a claim based upon 12 NYCRR 23-1.17 (sets standards for life nets). Even if plaintiff could properly rely on this section, the court finds it is inapplicable because it is intended to protect falling workers, not falling objects (see Venegas v Shymer, __ A.D.3d __, 2022 NY Slip Op 00459 [2d Dept 2022]; Kwang Ho Kim v D & W Shin Realty Corp., 47 A.D.3d 616, 619 [2d Dept 2008]). Thus, plaintiffs cross motion with respect his Labor Law § 241 (6) claim is subject to denial, regardless of the sufficiency of the defendants' opposition papers (see Winegrad, 64 N.Y.2d at 853).
The defendants also move to dismiss plaintiffs common-law negligence and Labor Law § 200 causes of action. Cases involving common-law negligence and Labor Law § 200 "fall into two broad categories: namely, those where workers arc 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" (Onega v Puerto, 57 A.D.3d 54, 60 [2d Dept 2008]). This court finds that the defendants have demonstrated that the accident arose from the means and methods of Reliable's work, rather than a dangerous property condition. Namely, to the extent that Reliable workers left unsecured bricks at the worksite, this was done as part of their ongoing work at the project (see Giglio v Turner Constr. Co., 190 A.D.3d 829, 830-831 [2d Dept 2021]; Cody v State of New York, 82 A.D.3d 925, 927 [2d Dept 2011])- Contrary to plaintiffs contentions, there is nothing to suggest that the alleged vibrations from the mast climber, in and of themselves, made it a dangerous property condition (see Gasper v Ford Motor Co., 13 N.Y.2d 104, 110-111 [1963]: Gillis v Brown, 133 A.D.3d 1374, 1376 [4th Dept 2015]). Rather, there is evidence that a dangerous condition may have arose from Reliable leaving unsecured bricks that could be dislodged by vibrations and failing to protect against such tailing objects by providing overhead protection.
When a common-law negligence and section 200 claim arise out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged with liability had the authority to supervise or control the performance of the work (see Rizzuto, 91 N.Y.2d at 352: Hart v Commack Hotel, LLC, 85 A.D.3d 1117. 1118 [2d Dept 2011]; Shaw. 75 A.D.3d at 635-636). Without more, an owner or contractor's authority to stop the work or their general supervisory authority over the injury-producing work is insufficient to demonstrate supervision and control for purposes of liability under the common law and Labor Law § 200 (see Poulin, 166 A.D.3d at 670-673; Goldfien v County of Suffolk, 157 A.D.3d 937. 938 [2d Dept 2018]; Messina v City of New York, 147 A.D.3d 748. 749-750 [2d Dept 2017]; Sanchez v Metro Bldrs. Corp., 136 A.D.3d 783, 787 [2d Dept 20161).
Here, plaintiff, in his own testimony, stated that his work was exclusively supervised by Simon, a Reliable supervisor. Blum, in his testimony, added, with respect to Hvenjreen. that Lvergreen did not provide safety equipment to the workers and did not have any employees present at the worksite to watch the work. Defendants have thus demonstrated, prima facie, that Evergreen did not exercise any authority over the work and thus may not be held liable for plaintiffs common-law negligence and section 200 claims (see Debennedetto, 190 A.D.3d at 938; Poulin. 166 A.D.3d at 670-673; Goldfien, 157 A.D.3d at 938; Messina, 147 A.D.3d at 749-750; see also Kefaloukis v Mayer, 197 A.D.3d 470. 471 [2d Dept 2021]; Lopez v Edge 11211, LLC, 150 A.D.3d 1214, 1215-1216 [2d Dept 20171).
Although general supervision and control over a subcontractor's work is insufficient to make a general contractor liable under the common-law and Labor Law § 200, liability may be found where it is shown that a general contractor is responsible for coordinating the work of subcontractors and an accident results from a lack of coordination (see Rizzuto, 91 N.Y.2d at 352-353; Gardner v Tishman Constr. Corp., 138 A.D.3d 415, 416-417 [1st Dept 2016]; Matthews v 400 Fifth Realty LLC, 111 A.D.3d 405. 406 [1st Dcpt 2013]). Here, the affidavit of Simon, submitted in opposition by Reliable, would allow an inference that the unidentified worker removing the netting and poles from above where plaintiff was working may have caused the bricks to fall onto plaintiff Blum's own testimony that Brooklyn GC had general management authority of the jobsite, and that he had the authority to stop work if he observed a worker performing potentially dangerous work above another worker demonstrates that Brooklyn GC had sufficient control over the work of Reliable and that of the worker who removed the netting to avoid and correct the unsafe situation arising from any improper overhead work (see Rizzuto, 91 N.Y.2d at 352-353; Gardner, 138 A.D.3d at 416-417; Matthews, 111 A.D.3d at 406). As a result, there are factual issues that require denial of the portion of defendants' motion seeking dismissal of the common-law negligence and section 200 claims as against Brooklyn GC.
In his affidavit, Jacob Klein, Reliable's CEO, states that Blum, Brooklyn GC's construction superintendent, was in charge of sequencing the work of the various subcontractors on the job, and it was Blum who arranged to have laborers remove leading edge protection where Reliable needed to perform its work.
Of note, although Blum denied observing anyone performing work above where plaintiff was working at the time of the accident, he did admit that there had been a worker removing the netting from the parapet above where Reliable workers had been working and that the removal of the netting was necessary to allow Reliable to progress with its brickwork.
As Evergreen did not have representative at the worksite and there is nothing in the record to suggest that it had any role in the coordination of the work, plaintiff has failed to demonstrate the existence of a factual issue requiring denial of this portion of the motion as it relates to Evergreen. Evergreen is thus entitled to dismissal of plaintiffs common-law negligence and Labor Law § 200 causes of action as against it.
With respect to defendants' third-party claims against Reliable for contractual indemnification, the indemnification provision in the agreement between Brooklyn GC and Reliable provides, as is relevant here, that Reliable must defend and indemnify Evergreen and Brooklyn GC:
"from and against all liability or claimed liability for bodily injury or death to any person(s) . . . including 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 the Subcontractor may be held liable, excluding only liability created by the sole and exclusive negligence of the Indemnified Parties."
Courts read provisions using this "arising out of the work" language very broadly, and have found that in cases like this, where a subcontractor's employee is injured and brings a claim against a party entitled to indemnification, that party may obtain indemnification from the subcontractor even if the subcontractor or its employee had nothing to do with causing the accident (see O'Connor v Serge El. Co., 58 N.Y.2d 655, 657-658 [1982]; Madkins v 22 Little W. 12th St., LLC, 191 A.D.3d 434, 436 [1st Dept 2021]; Reisman v Bay Shore Union Free School Dist., 74 A.D.3d 772, 773-774 [2d Dept 2010]; Daily News, LP v OCS Sec., 280 A.D.2d 576, 577 [2d Dept 2001]; Tkack v City of New York, 278 A.D.2d 227, 229 [2d Dept 2000]). Since Evergreen has demonstrated that il was not negligent as a matter of law. it is entitled to contractual indemnification from Reliable (see Martinez v 281 Broadway Holdings, LLC, 183 A.D.3d 716, 718 [2d Dept 2020]; Bellreng v Sicoli & Massaro, Inc., 108 A.D.3d 1027, 1031 [4th Dept 2013]; General Obligations Law § 5-322.1). In view of the factual issues relating to Brooklyn GC's own negligence, the portion of defendants' motion seeking contractual indemnification must be denied with respect to Brooklyn GC (see Graziano v Source Bldrs. & Consultants, LLC, 175 A.D.3d 1253, 1260 [2d Dept 2019]: McDonnell v Sandaro Realty, Inc., 165 A.D.3d 1090, 1096-1097 12d Dept 2018]).
The court notes that, although il is not clear from the language of the decision in Tkach, the briefs on appeal show that it was undisputed that plaintiffs employer had nothing to do with the material that was blown off the roof and struck plaintiff (sec Defendant-Appcllant-Respondent 2000 WL 3448865 1 and Defendant-Respondent/Third-Party Plaintiff 2000 WL 34488653).
With respect to defendants" common-law indemnification and contribution claims against Reliable, Simon's affidavit in opposition demonstrates the existence of factual issues as to whether the accident resulted from Reliable's negligence or its exclusive direction, supervision and control of the injury producing work and requires denial of this portion of their motion (see McDonnell, 165 A.D.3d at 1097-1098; see also McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 377-378 [2011]). Additionally, the factual issues with respect to Brooklyn GC's own negligence preclude summary judgment in its favor (see McDonnell. 165 A.D.3d at 1097-1098). The court further notes, while not expressly argued in Reliable's opposition papers, that, unless defendants can show that plaintiff suffered a grave injury, the common-law indemnification and contribution claims against Reliable are barred by the exclusive remedy provision of the Workers' Compensation Law given that Reliable has pleaded Workers Compensation as an affirmative defense. Reliable was plaintiffs employer, and plaintiffs deposition testimony suggests that he is receiving or has received Workers' Compensation benefits (see Galeno v Everest Scaffolding, Inc., __ A.D.3d __, 2022 NY Slip Op 00720 [1st Dept 2022]; Grech v HRC Corp., 150 A.D.3d 829, 830-831 [2d Depl 2017]; Workers' Compensation Law § 11).
Finally, the portion of defendants' motion seeking summary judgment on its breaeh of contract claim based on Reliable's failure to obtain proper insurance is denied because there are factual issues as to whether the insurance procured satisfies the terms of the insurance procurement provision of the contract. The copy of the policy submitted by defendants shows that it contains a blanket additional insured endorsement, which is generally sufficient to satisfy contractual insurance obligations (see Longer v MTA Capital Constr. Co., 184 A.D.3d 401, 402-403 [1st Dept 20201; Perez v Morse Diesel Intl., Intl., Inc., 10 A.D.3d 497. 498 [1st Dept 20041; see also Kassis v Ohio Cas. Ins. Co., 12 N.Y.3d 595, 599-600 [2009]: cf. Gilbane v Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 31 N.Y.3d 131, 135 [2018]). Although defendants have submitted a disclaimer letter from Reliable's insurer denying coverage for the accident, an insurer's disclaimer, in and of itself, does not necessarily show that a party has breached its contractual obligations. More specifically, a disclaimer may be based on an additional insured's failure to give timely notice of its claim or on an insurer's improper denial of coverage rather than the named insured's failure to purchase a policy providing coverage required by the contract (see Bachrow v Turner Constr. Corp., 46 A.D.3d 388, 388 [1st Dept 20071; Binasco v Break-Away Demolition Corp., 256 A.D.3d 373. 375 [2d Dept 1998]; KMO-361 Realty Assoc, v Podbielski, 254 A.D.2d 43, 44 [1st Dept 1998]).
Indeed, the disclaimer letter here, aside from suggesting that defendants failed to submit documentation regarding the contract requiring that defendants be named as additional insureds, states grounds for denying coverage that would appear improper in view of the policy's language or caselaw addressing similar policy terms. For example, the questionable grounds for denying coverage include the assertion that coverage is denied because there has been no showing that Reliable was negligent (see Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 15 N.Y.3d 34, 38 [2010]), that there was no showing that the accident was a result of Reliable's operations (Regal Constr. Corp., 15 N.Y.3d at 37-39), and that the contractual liability exclusion would apply (see LaBoutique NY, Inc. v Utica Ins. Co., 18 Misc.3d 1132 [A], 2008 NY Slip Op 50266, *3-4 [U] [Sup Ct, Richmond County 2008]; see also Westpoint Intl., Inc. v American Intl. S. Ins. Co., 71 A.D.3d 561, 562-563 [1st Dept 2010]; Wright v Evanston Ins. Co., 14 A.D.3d 505, 506 [2d Dept 2005]). Since Reliable's insurer is not a party to this action, the propriety of the denial of coverage and the applicability of exclusions should first be determined in a declaratory judgment action against the insurer before any finding is made with respect to the adequacy of the coverage purchased by Reliable (see Garcia v Great Atl. & Pac. Tea Co., 231 A.D.2d 401, 402 [1st Dept 1996]).
Based upon the foregoing, defendants' motion (Motion Seq. 3) is granted to the extent that (1) plaintiffs Labor Law § 241 (6) cause of action is dismissed to the extent that it is premised on Industrial Code sections 12 NYCRR 23-1.4(45), 23-1.5; 23-1.5(a), (b), (c)(1). (2) and (3); 23-1.7 (b)(1)(i); (ii), (iii), (d), (e), (e)(2) and (f) 23-1.8, 23-1.22(b)(2), 23-1.30, 23-1.32, 23-1.33(a), 23-2.2, and (4); 23-2.3(a)(1) and (2), and (c); 23-2.5(a), 23-2.6(a), 23-3.2(a-d), 23-3.3, (b-m), 23-3.4(a-c), 23-5.1(e)(5); 23.5.1(f), 23-5.1(h); 23-5.1(j)(1); 23-8.1(a), (b)(1-5), (d)(1), (2) and (3), (e)(1) and (5), (f)(1)(i-v), (f)(2)(i) and (ii). (f)(4). (0(6); 23-8.2(c)(3) and 23-8.2(0(3), (g)(1)(i) and (ii), (g)(2)(i), (ii) and (iii). and (h): 23-8.5(b), (c)(1), (2) and (3)(i), (ii) and (iii). (e), (f). (h), (i). (j). (k). (I), (m), and (n). There exists issues of fact concerning plaintiff's Labor Law § 241 (6) cause of action premised upon 12 NYCRR 23-1.7; (2) plaintiffs common-law negligence and Labor Law § 200 causes of action are dismissed as against Evergreen; and (3) Evergreen is entitled to contractual indemnification from Reliable. The Defendants motion is otherwise denied.
Plaintiffs motion (Motion Seq. 5) is denied, including that branch of plaintiffs motion for relief pursuant to CPLR § 5015, since no judgment or order was entered against plaintiff on default.
This constitutes the decision and order of the court.