Opinion
Index No. 106146/2009 Motion #004-007
02-04-2014
SURINDER SINGH and RANO SINGH, Plaintiffs, v. 1221 AVENUE HOLDINGS, LLC, MORGAN STANLEY & CO., INCORPORATED, L&K PARTNERS, INC., and RAISED COMPUTER FLOORS, INC., Defendants. L&K PARTNERS, INC. and 1221 AVENUE HOLDINGS, LLC, Third-Party Plaintiffs, v. CAMPBELL AND DAWES, LTD. and RAISED COMPUTER FLOORS, INC., Third-Party Defendants.
DECISION/ORDER
HON. CAROL ROBINSON EDMEAD, J.S.C.
MEMORANDUM DECISION
In this personal injury Labor Law action arising from a construction site accident, defendant Morgan Stanley & Co., Incorporated ("Morgan Stanley") moves for summary judgment dismissing the complaint of the plaintiffs Surinder Singh ("Singh") and Rano Singh (collectively, "plaintiffs") and the cross-claims against Morgan Stanley, plus costs, fees, and disbursements (motion seq. 004), and granting contractual and common law indemnification and attorneys' fees against co-defendants L&K Partners, Inc. ("LK"), Raised Computer Floors, Inc. ("RCF"), and Campbell and Dawes, Ltd. ("CD") (motion seq. 005).
LK and defendant 1221 Avenue Holdings LLC ("1221") (collectively, "LK") move for summary judgment dismissing the complaint and all cross claims and counterclaims against them and for judgment against CD for common law and contractual indemnification. Alternatively, LK seeks summary judgment against CD for breach of contract by failing to procure insurance to cover LK (motion seq. 006).
Finally, CD and Electrical Contractors i/s/h/a CD (collectively, "CD") move for summary judgment dismissing the plaintiffs' Labor Law §§240(1) and 241(6) claims, and any common law indemnification and contribution claims (motion seq. 007).
RCF joins in the requests to dismiss plaintiffs' complaint.
Factual Background
Singh was allegedly injured on December 10, 2007 while working at a renovation project (the "Project") involving the fourth and fifth floors of the building located at 1221 Avenue of the Americas, New York, New York (the "Premises"). 1221 was the owner of the building at that time.
Prior thereto, on June 9, 2005, Morgan Stanley, as lessee of the office spaces at the Premises, engaged LK to provide construction management services pursuant to a "Construction Management Agreement" ("CMA") for work being performed thereat. In turn, on August 20, 2007, LK hired RCF via a Purchase Order ("RCF Purchase Order") to install/reinstall raised computer floors, and CD via Purchase Order ("CD Purchase Order") as the electrical subcontractor, both in connection with the Project. Thereafter, in 2008, Morgan Stanley entered into a second "Construction Agreement" with LK for LK to supervise, direct, and inspect all the construction work at the Premises.
At the time of the accident, Singh was employed by CD as a journeyman to work on the fourth floor of the Premises (Plaintiff July 2011 EBT, pp. 50-52). When Singh first reported to the job, he was told to report to foreman Vinny Mok ("Mok"), also of CD, who instructed Singh that they would be "doing data cables," i.e., "provide cabling for the desks that were going on that floor, for data communication, telephone" "into the data room." (id., pp. 52-53; October 2011 EBT, p. 13). When Singh arrived at work, he went to the "shanty" where he waited "until the foreman gives you instructions what to do" (July 2011 EBT, pp. 54-55). Mok was the only person from whom Singh received instructions (October 2011 EBT, p. 13). Other CD employees also took instructions from Mok, as well as from Joe Gallano ("Gallano"), a general foreman who also worked for CD (July 2011 EBT, pp. 55-56, October 2011 EBT, p. 14).
On the day of the incident, Singh and his partner Declan Conroy ("Conroy") were on the fourth floor, headed toward Mok's office "near the shanty" to "get labels [to identify] the cables," when Singh tripped on a "screw sticking out of "one of the corners of the floor tile, the raised tile" and fell onto his knees (July 2011 EBT, pp. 82, 88, 91, 96-97, 99, 101, 112). In the area in which they were walking, the offices "on one side" and skids or "stacks of [cable] material on the other side, on the floor itself about 5 feet high, created what Singh called a "passage" or "passageway" five to seven feet wide (July 2011 EBT, pp. 90, 98; October 2011 EBT, pp. 15, 48, 52); Singh was walking on the left side (where "the skids material" were sitting) and Conroy on the right ("next to the office") (July 2011 EBT, pp. 90-91). The floor was made of black tiles (id., p. 93, 101), which he and other journeymen in his "group" had moved "Many times" to get access underneath in order to run the cables (id., pp. 107-109). There were also times when a tile would have already been removed by a plumber, for instance, also working at the site, which required Singh to "go underneath their pipes." (id., pp. 115-116).
At the job site, Gallano ran the weekly safety meetings (id., pp. 55-56), where they were reminded to work safe and clean their work area (id., p. 57). Singh did not recall whether any safety issues were raised at the safety meetings during the four weeks he was at the job site, and he did not see any screws sticking out of the floors before his accident (id., pp. 57-58, 60). Singh was unaware of any prior complaints or incidents involving a screw sticking out of the floor (id., pp. 105, 107).
Conroy testified that he was walking 15 feet ahead of Singh, and when Singh called him, he turned around and saw Singh kneeling on the floor (id., pp. 20-21). Singh showed him a gray screw sticking up about "an inch" out of the floor, which was the first time he saw the screw (id., pp. 21, 24, 78, 91). He had not seen the screw when he passed the area ahead of Singh, as he could have been two feet "over this way" when he was walking (id., pp. 24-26). Conroy described the area where Singh's accident occurred as "a passageway," approximately four feet wide, i.e., "corridor construction surrounded by material and pallets of material," with materials to his left and a wall on his right (id., pp., 22-23). 10-15 feet in front of Conroy were six pallets of material left on the floor, approximately four feet high (id., pp., 66-67, 69-70). From where Singh was kneeling, there was material on the left approximately four feet away (id., p. 104-105). There was space to walk around the pallets (id., p. 70) and they could have "cut through the core [of the building], but that's always packed with construction people doing the lobbies for the elevators and stuff . . . So you kind, of stay away from that area" (id., p. 92). They "could have avoided" the area of Singh's accident (id., p. 94). They were not required to take the route they took to get the materials; the route they took "was just the clearest area to go through" (id., pp. 138-140), The nearest wall to the right was about 20 feet (id., p. 71). The tiles in the area of Singh's fall were "old" tiles, which would probably be re-secured and re-leveled as opposed to replaced (id., pp. 83-84). Newer tiles just "pop down" and are not screwed down, (id., p. 86). The tiles were dark blue and dark grey, fastened by four grey screws (id., pp. 23-24). The area was not part of CD's work area on the date of the accident, as CD was not pulling wire in that area that day; nor did CD remove any tiles that day (id., p. 30-31). Conway did not hear of any complaints about tiles sticking out of the raised floor (id. 35), but was warned before the accident to "watch out" for someone taking out a tile or screws sticking out (id., p. 36). If there was a problem with the floor, they were to cordon it off and report it to the general contractor (id., p., 37-38). He saw other laborers and plumbers opening up the tiles and remove screws from the tiles on the fourth floor (id., p. 79). But, they did not screw them back in. CD was told to leave the tiles unscrewed (id., p. 81). However, he saw the flooring company insert screws on the tiles that did not have screws (id., p. 83). The flooring company was present at the job site in November and December (id., p. 107).
When describing the procedure for the work, they would remove the floor, run the cable under the raised tile floor, and then put in the tiles, but "not put in the screws"; if "the screws were good, we would keep the[m] in a box and give them to the raised flooring company" for the flooring company to "put back"; if "they were bad, we would throw them away," as instructed by Mok (id., pp. 28-29, 109). CD would not put the tiles back in place because the raised computer flooring company "wanted to level the floors and make them safe." (Id., p. 30). He only saw the flooring company leveling the floors and reinstalling the screws (id., pp. 109, 111-112).
No one from Morgan Stanley told him how to do his work, and he did not recall seeing anyone from Morgan Stanley on site (id., p. 97).
Consequently, plaintiffs allege claims against defendants for common law negligence, and violations of Labor Law §§200, 240(1), and 241(6). As to Labor Law 241(6), plaintiffs allege violations of Industrial Code sections 12 NYCRR §§23-1.7(e)(1) and (e)(2).
In opposition, plaintiff withdrew their claims of alleged violations of 12 NYCRR §§23-1.5, 23-1.7(d) or 23-2.1(a)(1), (a)(2), and (b) in their Bill of Particulars, and therefore, such sections are dismissed.
Morgan Stanley (sequence 004 and 005)
In support of dismissal, Morgan Stanley argues that Labor Law §240(1) is inapplicable to plaintiffs' accident as he was not working at an elevated height. Additionally, plaintiffs' Labor Law §241(6) claim fails because plaintiffs cannot assert a sufficiently specific Industrial Code violation applicable to the accident. As to 23-1.7(e) (1) and (e)(2), the screw was not a sharp projection, and the accident did not occur in a "passageway," but in an open, common area that was not the sole means of egress, or an active area in which Singh was working. Further, plaintiffs' Labor Law §200 and common-law negligence claims should be dismissed because Singh received all of his instructions from his supervisors of CD. Morgan Stanley did not have authority to, and did not, direct, supervise, or control Singh's activities during the Project. Nor did Morgan Stanley receive actual or constructive notice of the alleged dangerous condition. Consequently, the cross and third party claims of 1221, LK, RCF and CD for common law indemnification and contribution, contractual indemnification, and breach of contractual warranty against Morgan Stanley should also be dismissed.
LK and CD also seek dismissal of plaintiffs' Labor Law §240(1) for the same reasons, and plaintiffs confirm that they do not claim a violation of this section. Thus, such claim is also dismissed.
There is no opposition to the dismissal of the common law indemnification and contribution, contractual indemnification, and breach of contractual warranty claims against Morgan Stanley.
Instead, argues Morgan Stanley, the Court should grant it judgment for contractual indemnification against (1) LK under the indemnification and insurance provisions of LK's CMA and CA agreements with Morgan Stanley, (2) RCF under the indemnification and insurance provisions of the RCF Purchase Order and Subcontractor Vendor Agreement with LK, and (3) CD under the indemnification and insurance provisions of the CD Purchase Order and Subcontractor Vendor Agreement. Alternatively, Morgan Stanley argues that it is entitled to common law indemnification from these parties since the facts demonstrate that any liability it owes to Singh would be vicarious.
LK/1221 (motion seq. 006)
As to plaintiffs' Labor Law §241(6) claim, LK adds that the screw was an integral part of the floor being constructed. And, as to the Labor Law §200 and common-law negligence claims, the depositions of Singh and LK's field supervisor Ed Duffy show that LK was not negligent, did not supervise, direct, or control Singh's work, and did not have actual or constructive notice of the screw. That LK may have had overall responsibility for the safety of the work done by subcontractors is insufficient to show negligence. Consequently, all cross claims should also be dismissed against LK and 1221. In any event, the Court should grant LK and 1221 (and any other party this Court finds LK is obligated to indemnify) contractual defense and indemnification from CD based on CD's Purchase Order with LK, and common law indemnification from CD, whose employees controlled and directed Singh's work (to the exclusion of LK and 1221) and through whom LK and 1221 would be held vicariously liable to the plaintiffs. And in any event, the Court should grant LK and 1221 judgment against CD for breach of contract in failing to procure insurance to cover L&K and 1221.
Morgan Stanley opposes this branch of LK's motion, arguing that LK failed to establish its entitlement to dismissal of Morgan Stanley's cross claims against LK.
LK also requests a hearing on the issue of reimbursement of attorneys' fees, costs, and disbursements.
CD (motion seq. 007)
In support of dismissal of plaintiffs' claims, third-party defendant CD adds that the screw was an integral part of the work being performed, rendering 23-1.7(e)(2) inapplicable to support plaintiffs' Labor Law §241(6) claim. And, CD argues, as Singh's employer, all common law claims, including claims for common law indemnification and contribution against it should be dismissed as barred pursuant to Worker's Compensation §11.
Morgan Stanley opposes dismissal of its contribution cross claim. Although Morgan Stanley also opposes dismissal of its contractual indemnification claim against CD, CD did not seek dismissal of any such claim. Morgan Stanley does not oppose dismissal of its common law indemnification claim.
In opposition, plaintiffs argue that there is no good faith basis to dismiss their Labor Law §241(6) claim in light of Singh's and Conroy's deposition testimony indicating that Singh tripped on a screw that was sticking up form the surface of a tile floor in a passageway. As the screw was improperly installed, it created a tripping hazard and was not integral to project. And, the passageway was integral to the project, and the open space suggested by the movants was beyond the passageway, and not the area in which Singh fell. That there were other passageways do not render the area of Singh's fall not a passageway under 23-1.7(e). Thus, the Court should grant plaintiffs costs and attorneys fees incurred in opposing the motions. Further, the location of the accident was an active work area that was used by Singh, Conroy, and other workers. The passageway was used to store pallets of construction materials, and there were no warning signs or cones to warn anyone of the subject screw.
While plaintiffs point out that RCF did not move for summary dismissal, RCF's motion joining in the other movants' requests was e-flled subsequent to plaintiffs' filing of their opposition papers.
Further, the issue of supervisory control is irrelevant as this accident did not arise from Singh's methods of performing his work. Defendants had a duty to keep the passageway in a safe condition, and failed to indicate when they last inspected the area so as to prove the absence of constructive notice. Furthermore, the accident resulted from a hazard created by defendants, of which they also should have had notice. Defendants' safety officers inspected the project site daily, and were required to coordinate the work and maintain good construction practices, stop unsafe work, and provide site clean-up on a regular basis. The injury from defendants' conduct was foreseeable.
Plaintiffs argues that in any event, issues of fact exist as to defendants' liability. 1221 had authority to stop any work that violated the building rules issued to its tenant Morgan Stanley. Morgan Stanley's project executive William Wong inspected the project every few weeks, and would have reported any raised screw to its safety consultant, CRSG, to report it to LK. LK was responsible for overseeing safety, performed daily walk-throughs of the project for safety, coordinated the trades and scheduling, and ensured the contractors were performing their work safely. LK had the authority to stop any work if there was an unsafe condition, and interacted with Morgan Stanley at weekly job meetings. RCF's president, who was on the site daily overseeing the flooring work and ensuring safety at the project, had the authority to stop its workers. RCF's president observed plumbers and electricians working underneath the raised floor tiles after RCF installed or reinstalled the tiles, and LK was responsible for maintaining the floor tiles in a safe condition. And, Mok from CD testified that he did not have any site safety responsibilities.
LK opposes Morgan Stanley's common law indemnification claim, arguing that Morgan Stanley's mere claim that it was not negligent is insufficient. LK also denies liability for contractual indemnification, arguing that unlike the CA, the CM A with Morgan Stanley did not obligate LK to perform or contract out the construction work Singh was performing at the time of his accident, but instead, was limited to designing the project. Thus, no intent to indemnify can be inferred from such an agreement. Nor is there any showing that Singh's accident fell within the scope of LK's services to be performed as Construction Manager under the CM A, Further, LK cannot be held liable for contractual indemnification under the CA, which was the agreement under which LK worked as a General Contractor and which arguably governed the actual construction work of the project, because such contract was executed on March 17, 2008, three months after Singh's accident. In any event, there is no evidence that LK or its subcontractors were negligent so as to trigger the indemnification clause in the CA. And assuming the Court finds that LK owes Morgan Stanley contractual indemnity, LK is entitled to defense and indemnity from CD under CD's Purchase Order. And, the claim for attorneys' fees Morgan Stanley seeks is insufficiently vague.
RCF also opposes Morgan Stanley's request for common law indemnification for the same reasons as LK. RCF adds that its President, Kevin Nordman, stated that after RCF's installation work on the fourth floor was completed in early October 2007, he saw the electrical, mechanical, and plumbing trades go and work underneath the floor. And, when other trades removed the tiles, they were responsible for reinstalling them. Further Morgan Stanley cannot obtain indemnification under the Subcontractor Vendor Agreement, to which it is not a party. And, said Agreement's requirement that RCF indemnify LK and the owner, in this case, 1221, and does not apply to Morgan Stanley, the undisputed tenant. And, assuming the indemnity provision is enforceable by Morgan Stanley, there is no proof that Singh's accident was caused by or arose out of any negligence of LK. Finally, any conclusion that RCF must indemnify Morgan Stanley under the subcontractor vendor agreement must apply equally as to CD.
CD opposes the respective motions by 1221, LK, and Morgan Stanley for common law and contractual indemnification on the grounds that their motions are based on conclusory, unsubstantiated arguments. In any event, such common law claims are barred by Workers' Compensation Law §11 since Singh did not suffer a grave injury as required under the statute, thus entitling CD, Singh's employer, to dismissal of such claims. And, such parties failed to establish any contractual obligation by CD to indemnify or procure insurance in their favor. The "one-page" CD Purchase Order does not contain any indemnification language, and although it mentions, by the words "please see," a "Subcontractor Vendor Agreement," the Subcontractor Vendor Agreement is undated, not properly incorporated by reference, and not signed by CD in violation of the statute of frauds. In any event, 1221 and Morgan Stanley have not been shown to be "owners" or considered "others required by the contract as additional Indemnities" under the indemnification or insurance provisions, as such terms are undefined in the Purchase Order and Subcontractor Vendor Agreement. Nor do these agreements incorporate the CMA between Morgan Stanley and LK. And, LK, 1221, and Morgan Stanley have failed to affirmatively show their freedom from negligence or that the accident arose out of the CD's work, as required for indemnification, and issues of fact exist on this issue. The raised screw in the tile did not result from any of the work being performed by Singh or Conroy. Further, any grant of indemnification is premature in the absence of any determination as to the culpability of the respective parties.
In reply, Morgan Stanley argues that evidence of supervision and control and specific notice of the condition, which are lacking, is necessary to impose liability upon it even though Singh's accident was the result of a dangerous condition at the workplace. Morgan Stanley's mere general supervisory authority is insufficient. And, the dimensions of the area as shown in blueprints of the Premises (51 feet in length by 33 feet in width) show that the area of Singh's accident was not a passageway as required under 12 NYCRR §23-1.7(e)(1). Nor was the area a "working area" as it was not routinely traversed by workers to pass through to reach their work areas under 12 NYCRR §23-1.7(e)(2).
As to LK's alleged contractual indemnification obligations, Morgan Stanley adds that the CMA and CA encompassed preconstruction elements of the Project and "capital improvements," "renovations," and "other miscellaneous tasks" and thus, contemplated the work Singh was performing when his accident occurred. Further, the CA covers "ongoing tasks" relating to work which began before the date of the CA, and even referenced contract documents dated prior the accident, therefore, warranting retroactive application of the indemnification and insurance obligations therein. As to and RCF and CD, Morgan Stanley is the defined "owner" in the governing CMA and CA and according to the deposition testimonies, and thus, the "owner" in their respective Subcontractor Vendor Agreements. Further, the signed and unsigned documents read together satisfy the statute of frauds, and the Purchase Order specifically incorporates the Subcontractor Vendor Agreements and mentions Morgan Stanley. And, in the absence of any evidence of negligence on Morgan Stanley's part, it is entitled to contractual indemnification, and also, common law indemnification against LK, RCF, and CD as the active negligent parties, since Morgan Stanley's liability, if at all, is premised on vicarious liability without fault.
In reply, LK, 1221 and CD reiterate their previous arguments, and adds that the caselaw plaintiffs cite is inapplicable. Further, CD adds that none of the parties dispute that Workers' Compensation Law §11 bars all of the common law claims against it. And, the attorneys' fees sought by plaintiffs are improper, as CD's motion is amply supported by the law and evidence.
Discussion
It is well established that as the proponent of a summary judgment motion, the movant "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact" (Madeline D'Anthony Enterprises, Inc. vSokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012]; Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York University Med. Ctr., 64 NY2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Sumitomo Mitsui Banking Corp. v Credit Suisse, 89 AD3d 561, 933 NYS2d 234 [1st Dept 2011]; Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]).
Labor Law §200Labor Law §200 codifies the common-law duty imposed on an owner or general contractor to provide construction site workers with a safe work site (Coyago v Mapa Properties, Inc., 73 AD3d 664, 901 NYS2d 616 [1st Dept 2010]). Plaintiffs assert that Singh's accident did not arise from the manner or methods in which Singh performed his electrical/cable work (Plaintiffs' aff. in opposition, ¶105). While Morgan Stanley insists that plaintiffs must still (but cannot) show, that it had supervisory control over Singh's work, and plaintiffs insist that supervisory control is irrelevant such that a showing of prior notice alone is relevant as to Morgan Stanley's liability under this section, the Court notes that it has been held that claims "for personal injury under the statute and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed . . . . Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it . . . . Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 950 NYS2d 35 [1st Dept 2012] (emphasis added; internal citations omitted); (see Rodriguez v Dormitory Authority of State, 104 AD3d 529, 962 NYS2d 102 [1st Dept 2013] (stating, "Given that the accident was caused by a dangerous condition on the premises, rather than by the means or methods of plaintiff's work, defendants met their burden by showing that they neither created nor had actual or constructive notice of the alleged dangerous condition" i.e., the scaffold clamp that had been left on the floor where plaintiff was walking); Mendoza v Highpoint Associates, IX, LLC, 83 AD3d 1, 919 NYS2d 129 [1st Dept 2011] ("Where, as here, the accident arises not from the methods or manner of the work, but from a dangerous premises condition, "a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice")).
Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 950 NYS2d 35 [1st Dept 2012]), is instructive in determining whether the issue of supervisory control over the injury-producing work is relevant, as Morgan Stanley suggests. In Cappabianca, plaintiff claimed that the pallet on which he was standing shifted on the slippery floor causing him to fall. The floor was slippery from water emanating from a malfunctioning wet saw he was using. The Court held that "all of the contributing causes of the accident directly arose from the manner and means in which [plaintiff] was performing his work." Thus, the Court held, liability under Labor Law §200 "only attaches where the owner or contractor had the 'authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition," and "[s]ince defendants could not control the activity that continuously produced the water, namely, the [plaintiff's] operation of the wet saw, they lacked any ability to correct the unsafe condition and thus were not liable under section 200 or for negligence.
In Dalanna v City of New York (308 AD2d 400, 764 NYS2d 429 [2003]) a plumber tripped over a bolt that protruded from a concrete slab. Prior to his accident, bolts were used to anchor a tank to the slab before its permanent installation elsewhere. After the tank was removed from the slab, plaintiff's employer was supposed to level the bolts with the surrounding surface, but missed the subject bolt. The First Department affirmed the dismissal of the plumber's Labor Law §200 claim, finding that the protruding bolt was not "a defect inherent in the property," but instead resulted from "the manner in which plaintiff's employer performed its work" (308 AD2d at 400, 764 NYS2d 429).
Here, the protruding screw was not inherent in the property, but the result of the failure of Singh, his co-workers, or one of the trades to level it with the surrounding tile. The record indicates that the screw's protrusion was the result of the work performed at the work site. Singh testified that he removed the tiles "Many times" to "get access to the floors" to run the cables, which was a routine part of his job (July EBT, pp. 107, 115). It was also the routine part of the work by other journeymen at the site to remove floor tiles (July EBT, p. 107). In considering that the source of the dangerous condition at the premises, i.e., protruding screw, was from the work methods of one or more of the subcontractors, and is not a defect inherent in the property, the Court finds that "even if the owner and general contractor . . . had constructive notice of the bolt, they could only be held liable under section 200 if they had exercised supervisory control over the [ ] work" so as to enable them "to avoid or correct" the "unsafe condition" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d at 146).
Thus, in line with the reasoning noted above, defendants must establish that they did not exercise supervision and control over the injury producing work, and did not create or have actual or constructive notice of the alleged protruding screw (see Singh v Black Diamonds LLC, 24 AD3d 138, 805 NYS2d 58 [1st Dept 2005] (dismissal of Labor Law §200 and negligence claims against construction manager Bovis warranted where plaintiff fell through roof opening created by demolition contractor, but later covered by plywood installed by carpenter subcontractor, and there was no showing that Bovis was responsible for overseeing plaintiff's work); Alonzo v Safe Harbors of the Hudson Housing Development Fund Co., Inc., 104 AD3d 446, 961 NYS2d 91 [1st Dept 2013] (dismissing Labor Law §200 and negligence claims for lack of evidence of any supervisory role in the subject construction where plaintiff, while walking towards a window, stepped on a piece of plywood covering a floor opening, which "flipped up" and caused him to fall through the hole)).
Here, defendants Morgan Stanley, LK and 1221 established, as matter of law that they did not have or exercise any supervision or control over the work being performed on the fourth floor at the job site create, or have actual or constructive notice of the alleged protruding screw over which Singh tripped and fell.
The record evidence demonstrates that Morgan Stanley was the lessee of the premises that hired LK to manage the construction and renovation of its Premises, and to act as the General Contractor to "perform, supervise, direct, . . . and inspect all work" in connection with the "construction [and] renovation" at its Premises. No one saw personnel from Morgan Stanley at the work site or at the weekly safety meetings, and CD had no interactions with Morgan Stanley at the Project site (Singh October EBT, pp. 12-13, 23; Conroy EBT, p. 97; Wok EBT, pp. 80-81).
LK was responsible for coordinating and scheduling the work of the trades, ensuring that each trade held safety meetings, and addressing safety issues that arose throughout the day, performing walk-throughs to ensure that each trade was on schedule, and stopping any work if there was an unsafe condition (Duffy, EBT, pp. 9, 33-35). LK did not attend the subcontractors' "toolbox talks." (Duffy EBT, p. 39).
1221 may have conducted walk-throughs "on occasion" and did "not oversee work that tenants [Morgan Stanley] are performing in their space" (Gerald Blume EBT, pp. 15-16, 30). 1221 's building manager performed a general review of the tenants' spaces to ensure that they were not in violation of a building rule, such as storing things in a fire stair (Blume EBT, p. 31). And, if 1221's building manager saw a screw, "he had no obligation to report that to anyone" (Blume EBT, p. 32). Nor did 1221 have any written safety plan for the Project (Blume EBT, p. 15).
More importantly, Singh received all of his instructions solely from his employer's foreman. Such evidence is uncontested by plaintiffs, and sufficient to show that Morgan Stanley, LK, and 1221 did not exercise any supervision or control over the work being performed on the fourth floor or create the alleged dangerous condition at issue.
Further, Morgan Stanley, LK, and 1221 established that they lacked actual and/or constructive notice of the protruding screw, in that neither Singh, Conroy, nor Duffy (of LK) saw the protruding screw, or heard of any complaints of same, at any time prior to the accident (Santiago v Burlington Coat Factory, 112 AD3d 514, 977 NYS2d 232 [1st Dept 2013] (finding that defendants established their entitlement to dismissal of the common-law negligence and Labor Law §200 claims by showing that they had received no complaints concerning the ladder, which, according to the store manager, had rubber feet on it)).
Plaintiffs' assertions that Morgan Stanley inspected the job site every few weeks and hired LK to oversee safety at the site, that LK and performed walk-throughs in connection with overseeing safety and supervising the site, and that 1221 had authority to stop work that violated the building's rules, are insufficient to raise an issue of fact, especially as none of these parties directed or controlled the subject work at the site. Such activities have been held insufficient to demonstrate that these parties had the requisite degree of control and that they actually exercised that control (see O'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225, 226, 813 NYS2d 373 [1st Dept 2006], affd. 7 NY3d 805, 822 NYS2d 745, 855 NE2d 1159 [2006]; Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343; Singh v Black Diamonds LLC, 24 AD3d 138, 140 [2005] [dismissing Labor Law §200 and common-law negligence claims against general contractor, even though its project superintendent conducted regular walk-throughs and had the authority to stop the work if he observed an unsafe condition]; Hughes v Tishman Constr. Corp., 40 AD3d 305, 311 [1st Dept 2007] ("general supervisory control is insufficient to impute liability pursuant to Labor Law §200, which liability requires actual supervisory control or input into how the work is performed"); Burkoski v Structure Tone, Inc., 40 AD3d 378, 381 [1st Dept 2007] [no Labor Law § 200 liability where defendant construction manager did not tell subcontractor or its employees how to perform subcontractor's work]). And, plaintiffs' contention that the movants failed to establish the last time they inspected the area fails to raise an issue of fact as to notice given that no one testified as to having seen or complained of the screw and the absence of any evidence of how long the screw was protruding from the tile.
Additionally, it is uncontested that any common law negligence-based claim against CD, as Singh's employer, is barred by Workers' Compensation Law §11.
Therefore, plaintiffs' Labor Law §200 and common law negligence claims are severed and dismissed as against Morgan Stanley, LK, 1221 and CD.
However, RCF failed to establish its freedom from negligence for Singh's accident. RCF simply joined in the motions by Morgan Stanley, LK, 1221, and CD, without pointing to any evidence indicating that it did not create the condition which allegedly caused Singh's injuries. Further, the evidence as presented by the other movants indicated that RCF, as the flooring company, was responsible for removing the existing raised flooring, and reinstalling the screws into the tile flooring. Therefore, dismissal of plaintiffs' Labor Law §200 and common law negligence claims against RCF is unwarranted.
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" (Misicki v Caradonna, 12 NY3d 511, 515, 909 NE2d 1213 [2009]). This section imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers engaged in the inherently dangerous work of construction, excavation or demolition (see Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-502 [1993]; Misick v Caradonna, supra). In order to recover, a claimant must prove that the owner or contractor violated a rule or regulation of the Commissioner of the Department of Labor which sets forth a specific standard of conduct, as opposed to a general reiteration of the common law (see Ross, 81 NY2d at 502-504; Coyago v Mapa Properties, Inc., 73 AD3d 664, 901 NYS2d 616 [1st Dept 2010] ("A Labor Law § 241(6) claim requires that there be a violation of some specific safety standard")).
As relevant herein, 12 NYCRR 23-1.7 (e)(1) and (2) state as follows:
(e) Tripping and other hazards.
(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.
(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.
As to whether the area constituted a "passageway" under 23-1.7 (e)(1) the Court of Appeals recently noted, in the context of determining whether a particular provision of the Industrial Code is applicable, that the Code "should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace" (St. Louis v Town of N. Elba, 16 NY3d 411, 416 [2011]). "Responsibility under Labor Law § 241 (6) "extends not only to the point where the . . . work was actually being conducted, but to the entire site, including passageways utilized in the provision and storage of tools, in order to insure the safety of laborers going to and from the points of actual work" (Linkowski v City of New York, 33 AD3d 971, 824 NYS2d 109 [1st Dept 2006] citing Sergio v Benjolo N.V., 168 AD2d 235, 236 [1st Dept 1990).
Here, the record shows that the pathway area where Singh tripped was located within an open area, that contained a "passageway" created by piles of materials four-five feet high on his left side and the offices/wall on his right side, that was commonly used by workers to pass from one part of the jobsite to another. Plaintiff stated that he "was going down a passage," six to seven feet wide, with offices on his right and skids of material on his left, where "you have an open area on the other side" behind the material (July EBT, pp. 90-91, 98-99; October EBT, p. 45). Conroy likewise described the accident location as four-feet wide "a passageway," surrounded by pallets of material to his left and a wall on his right, and as the clearest way to get to the materials they needed. Therefore, it cannot be said as a matter of law at this juncture, that the pathway taken by Singh was not designed to provide him and his co-workers with a means to getting to and from the work area (see Sikorska v City of New York, 2003 WL 22849784 [Sup. Court, New York County 2003] (the sole remaining purpose of the stairway was to provide plaintiff and her fellow workers with a means of getting to and from the work area)). Thus, an issue of fact exists as to whether plaintiff was walking along a passageway when he fell and as to whether 12 NYCRR 23-1.7(e)(1) is applicable to his accident (Cumberland v Mines Interests Ltd. Partnership, 105 AD3d 465, 963 NYS2d 173 [1st Dept 2013] (plaintiff's deposition testimony raised an issue of fact as to whether he fell in a "passageway" or an open work area)).
However, notwithstanding the issue of fact as to whether the area Singh traversed could be deemed a "passageway" within the meaning of Rule 23-1.7(e), 23-1.7(e) does not apply so as to support plaintiff's Labor Law § 241(6) claim because the evidence shows that the protruding screw constituted an integral part of the work being performed on the fourth floor. In Zieris v City of New York, 93 AD3d 479, 940 NYS2d 72 [1st Dept 2012]), the plaintiff was engaged in "rivet removal," which was "ongoing in various parts of the bridge, and all falling parts could not be caught while plaintiff and his coworkers were actively engaged in the removal work" (id. at 480). The Court held that such evidence established that "the rivet stem resulted from the work plaintiff was performing" and "constituted an integral part of plaintiff's work" and as such, 12 NYCRR 23-1.7(e)(2) "did not apply." Notably, the Court also held "unavailing" plaintiff's argument that "the rivet did not originate from the work that he himself was performing is unavailing, as rivets left by his coworkers, who were performing the same rivet removal work, could still be deemed an integral part of the work" (id.) (emphasis added) (see also, Flynn v 835 6th Ave. Master L.P., 107 AD3d 614, 969 NYS2d 13 [1st Dept 2013] (finding that the rebar that allegedly caused plaintiff's fall "was in the process of being installed and thus integral to the ongoing work, defeating his claim of a violation of 12 NYCRR 23-1.7(e)(2)")).
The holding in Zieris v City of New York commands the same result. Here, plaintiff or his co-workers or other trades on the fourth floor unscrewed the screws to remove the tiles in order to perform their respective work underneath the tiles (Colella v The Port Authority of New York and New Jersey, supra) ("the First Department does not factor the issue of who is responsible for debris removal into its analysis of 12 NYCRR § 23-1.7 (e) (2)")). This is not an instance where the protruding object "served no purpose" (cf. McDevitt v Cappelli Enters., Inc. 16 Misc 3d 1133(A), 847 NYS2d 903 (Table) [Sup. Court, New York County 2007] (plaintiff's pant was caught on a nail protruding from a stairway post); McAndrew v Tennessee Gas Pipeline Co., 216 AD2d 876, 628 NYS2d 991 [4th Dept 1995] (plaintiff tripped over a piece of wood partially buried in a trench). And, that the protruding nail caused Singh's fall is not dispositive, in and of itself. The protruding nail was an integral part of the work being performed. Thus, plaintiffs' Labor Law §241(6) claim, which is predicated on an alleged violation of Industrial Code Rule 23-1.7(e), is dismissed.
Contractual and Common Law Indemnification
A party is entitled to full contractual indemnification provided that the intention to indemnify can clearly be implied from the language and purpose of the entire agreement and the surrounding facts and circumstances (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774,777 521 NYS2d 216 [1987]; Masciotta v Morse Diesel International, Inc., 303 AD2d 309, 758 NYS2d 286 [1st Dept 2003]). A party seeking contractual indemnification must establish that it is free from any negligence and that its liability is solely vicarious arising from the non-delegable duty imposed by the Labor Law (Quick v City of New York, 24 Misc 3d 1210, 890 NYS2d 370 [Sup Ct, Kings County 2009] citing Rey v Ridamaset, LLC, 19 Misc 3d 1114, *2 [Sup Ct, Queens County 2008]; Correia v Professional Data Mgt., Inc., 259 AD2d 60, 693 NYS2d 596 [1st Dept 1999] ("In contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of the statutory liability"); Francavilla v Nagar Const. Co., Inc., 151 AD2d 282, 542 NYS2d 557 [1st Dept 1989] ("Since the evidence at trial in this case was insufficient to support a finding that L.H.L. Realty was in any way negligent, and its liability was vicariously predicated solely on its nondelegable duty under the Labor Law, L.H.L. was entitled to be indemnified from its co-defendant, who was the party actually at fault")).
"Common-law indemnification requires proof not only that the proposed indemnitor's negligence contributed to the causation of the accident, but also that the party seeking indemnity was free from negligence" (Martins v Little 40 Worth Associates, Inc., 72 AD3d 483, 899 NYS2d 30 [1st Dept 2010] citing Correia v Professional Data Mgt., 259 AD2d 60, 65, 693 NYS2d 596 [1999]; Espinoza v Federated Dept Stores, Inc., 73 AD3d 599, 904 NYS2d 3 [1st Dept 2010] (As there has been no finding of negligence on the part of Macy's, co-defendants are not entitled to common law indemnification for costs and attorney's fees by Macy's)).
As to Morgan Stanley's motion against LK for contractual indemnification, the CMA between Morgan Stanley, defined as the "Owner" and LK, requires LK to "indemnify and hold harmless" Morgan Stanley from any and all liability, claims, damages, and expenses "resulting from or in any manner arising out of, in connection with or on account of (i) any act, omission, fault or neglect of [LK] or any subcontractor of . . . [LK] . . . (ii) claims of injury . . . occurring or resulting directly or indirectly from the Work or the activities of [LK], or any subcontractor or, or material supplier to, [LK], or anyone employed by any of them in connection with the Work or this Agreement. . . ." Morgan Stanley's subsequent CA with LK contained the same language (see Article ll).
Article 12 of Morgan Stanley's CMA and CA with LK also required LK to procure commercial liability insurance naming Morgan Stanley as an additional insured.
Singh's claims and alleged damages resulted from and arise out of or in connection with the work by LK's subcontractor, CD, and thus, the contractual indemnity provision was triggered by Singh's personal injury claim. And, Morgan Stanley established its freedom from negligence in this action. Contrary to LK's contention, neither the CMA nor the CA, by its terms, provides for indemnification against claims arising out of LK's work only when LK was negligent (Santos v BRE/Swiss, LLC, 9 AD3d 303, 780 NYS2d 585 [1st Dept 2004]).
Further, contrary to LK's contention, Morgan Stanley engaged LK under the CMA, dated June 1, 2005, to provide construction management services for ongoing construction tasks, including miscellaneous tasks and projects (Article I), and to coordinate and supervise all "Work necessary to complete construction of the Project" including "all labor necessary to complete such construction, all materials and equipment" and requires that "Subcontractors shall perform the Work, except for work that Owner and [LK] agree may be performed by [LK's] own forces." Therefore, the CMA broadly includes the provision for LK to engage CD, and for CD to perform its subcontracted work. There is no language limiting LK's responsibilities at the Project to "preconstruction" activities.
And, that the CA was dated subsequent to the date of Singh's accident is inconsequential under the circumstances. "A term in a contract executed after a plaintiff's accident may be applied retroactively where evidence establishes as a matter of law that the agreement pertaining to the contractor's work 'was made 'as of [a pre-accident date], and that the parties intended that it apply as of that date'" (Stabile v Viener, 291 AD2d 395, 396 [2002], Iv dismissed 98 NY2d 727 [2002]). The CA's preamble states that Morgan Stanley, as Owner, engaged LK "to provide construction services for ongoing tasks" and LK's work is defined as including "performing of everything necessary in the . . . construction, renovation, rehabilitation and equipment of the Site. . . ." (Article 1). Article 2 indicates that LK was to "coordinate the construction tasks in accordance with the 'Contract Documents', which are the following: . . . . The specifications contained in the Request for Proposal with respect to the Site issued by Owner and dated June 1, 2007" and proposals, emails, and addendums submitted by LK dated June and July 2007. The CA also referenced contracts LK "has entered . . . with any Subcontractor(s) during the course of the Project . . . ." The cases cited by LK are distinguishable in that none of them indicated the existence of a prior agreement between the parties (cf. Burke v Fisher Sixth Ave. Co., 287 AD2d 410, 731 NYS2d 724 [1st Dept 2001] (dismissing third party claims where contracts purportedly incorporating the attachments containing the indemnity and insurance clauses were dated and executed after plaintiff's accident, and "there [was] nothing about these contracts to suggest that they were intended to have retroactive effect"); Beckford v City of New York, 261 AD2d 158, 689 NYS2d 98 [1st Dept 1999] (denying general contractor indemnification against its subcontractor because contract between them was executed after the accident)).
Therefore, Morgan Stanley is entitled to contractual indemnification from LK, and an award of attorneys fees to be determined at a hearing.
Morgan Stanley's request for summary judgment against CD for contractual indemnification pursuant to the CD Purchase Order is granted. The CD Purchase Order, which expressly states, in all capital letters "Please see Safety Letter & Subcontractor Vendor Agreement Attached" sufficiently incorporates the Subcontractor Vendor Agreement containing the indemnification provision at issue (see Technical Support Services, Inc. v International Business Machines Corp., 18 Misc 3d 1106(A), 856 NYS2d 26 (Table), 2007] citing Liberty Mgmt. & Constr. Ltd. v Fifth Ave. & Sixty-Sixth St. Corp., 208 AD2d 73, 77-78 [1st Dept 2005] ("plaintiff accepted contract when it agreed to separate document incorporating contract by reference)).
The indemnification provision in the Subcontractor Vendor Agreement requires CD to indemnify and defend "L&K Partners, Inc., Owner and any others required by contract as additional indemnities . . . . from any and all claims, suites, damages . . . related to . . . personal injuries . . . arising out of or in connection with or as a result of or consequence of the performance of the Work of the Subcontractor [CD] . . . ." The work Singh was performing on behalf of his employer CD (LK's subcontractor) at the time he was injured (i.e., walking to obtain labels for the cables he planned to install) constituted "Work" under this Purchase Order.
That the attached Subcontractor Vendor Agreement is unsigned is inconsequential, since "signed and unsigned writings relating to the same transaction and containing all the essential terms of a contract may be read together to evidence a binding contract" (Liberty Mgmt, supra citing Weiner & Co. v Teitelbaum, 107 AD2d 583, 483 NYS2d 313, citing Crabtree v Elizabeth Arden Sales Corp., 305 NY 48, 110 NE2d 551)). It is uncontested that CD executed the Purchase Order. And, CD does not expressly deny that the Subcontractor Vendor Agreement was attached to the Purchase Order at the time it was executed.
Notably, Morgan Stanley submits an affidavit from LK's comptroller, who states that the Purchase Order and Subcontractor Vendor Agreement constitutes the contract documents, in the regular course of business.
Therefore, CD's conclusory claim that there is no proof of its agreement to indemnify certain parties, lacks merit. Consequently, CD's claim that the indemnification agreement violates the statute of frauds because the agreement is unsigned, likewise lacks merit.
Further, that Morgan Stanley was a tenant of the Premises, and not the building owner is inconsequential for purposes of the indemnification clause. Morgan Stanley hired LK as the general contractor for the Project on its leased Premises, LK hired CD as the subcontractor, and 1221 (the building owner) had no role in hiring CD (see Picchione v Sweet Constr. Corp., 60 AD3d 510, 875 NYS2d 42 [1st Dept 2009] (where Discovery Communications, the tenant, hired Sweet as the general contractor, and First Lexington (the building owner) played no role in the hiring, "Discovery Communications was 'the owner' contemplated by the indemnification provision in the subcontractor's agreement with Sweet)).
Further, Morgan Stanley established its freedom from negligence for Singh's accident, and, contrary to CD's contention, Singh's accident (which occurred as he walking to get labels for the cables) arose out of or in connection with or was a result of or consequence of the performance of the CD's work (see Balbuena v New York Stock Exchange, Inc., 49 AD3d 374, 853 NYS2d 330 [1st Dept 2008] ("it is not necessary that plaintiff himself be actively engaged in the type of work covered by the indemnity contract in order for such injury to fall within this broadly worded indemnification provision; Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 271, 847 NYS2d 67 [2007] (lessee entitled to contractual indemnification from drywall contractor where plaintiff's injury "arose out of drywall contractor's work, even though plaintiff was performing electrical work at time of injury)). Thus, Morgan Stanley is entitled to summary judgment on its claim for contractual indemnification pursuant to the CD Purchase Order.
The above reasoning applies with equal force as to Morgan Stanley's enforceability of the indemnification provisions in the RCF Purchase Order. However, an issue of fact exists as to whether Singh's accident arose out of or in connection with or was a result of or consequence of the performance of the RCF's work. As RCF points out, the record does not conclusively establish which trade caused the screw to remain in a raised position, and RCF, though retained to install the raised floors, completed its job prior to the date of Singh's accident. Thus, Morgan Stanley's request for summary judgment on its contractual indemnification claim against RCF is denied.
Contrary to RCF's contention, the RCF Purchase Order does not, by its terms, provide for indemnification against claims arising out of RCF's work only when RCF was negligent (Santos v BRE/Swiss, LLC, 9 AD3d 303, 780 NYS2d 585 [Is' Dept 2004]).
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As to Morgan Stanley's request for common law indemnification against LK and RCF, such request is denied, as Morgan Stanley failed to establish, as a matter of law, that these parties were negligent, and that such negligence contributed to the causation of Singh's accident. Nor can Morgan Stanley obtain this relief against CD, as Singh's employer.
However, in light of Morgan Stanley's showing that it was not negligent for Singh's accident, Morgan Stanley's request to dismiss the cross and third party claims of 1221, LK, RCF and CD for common law indemnification and contribution, contractual indemnification, and breach of contractual warranty against Morgan Stanley is granted, and such claims are severed and dismissed.
As to LK and 1221's motion for summary judgment against CD for common law indemnification, such request is denied, based on Worker's Compensation Law §11 noted above. However, LK and 1221 are entitled to summary judgment on their contractual indemnification claims against CD based on the CD Purchase Order. The record establishes that 1221 is the building owner and thus, falls under the "Owner" category of indemnitees in the Agreement. And LK is expressly identified as an indemnitee in the Subcontractor Vendor Agreement (which is incorporated into the CD Purchase Order). LK and 1221 established their freedom from negligence for Singh's accident, and that Singh's accident arose out of or in connection with CD's work (as noted above). Notably, LK concedes that it purchased insurance in accordance with the terms of the Subcontractor Vendor Agreement, and does not expressly deny that the Subcontractor Vendor Agreement was attached to the CD Purchase Order. As no showing of CD's negligence is required in order to trigger its indemnification obligation, summary judgment on this issue is not premature. Thus, LK and 1221 are entitled to contractual indemnification from CD under the CD Purchase Order.
As to LK and 1221's request to dismiss all cross-claims and counterclaims against them, such request is denied as to Morgan Stanley's claim for contractual indemnification (to which Morgan Stanley is entitled). And, while Morgan Stanley failed to establish its entitlement to common law indemnification from LK, LK and 1221 established their independent burden of showing that they were not negligent in regard to Singh's accident (see San Andres v 1254 Sherman Ave. Corp., 94 AD3d 590, 942 NYS2d 104 [1st Dept 2012] (in light of the dismissal of the [plaintiff's personal injury] complaint as against [defendant elevator company] Eltech, [the building owner/management company] Sherman's common law indemnification claim against Eltech must also be dismissed)). Therefore, dismissal of Morgan Stanley's common law indemnification claim against LK and 1221is warranted, and said cross claim is severed and dismissed.
Likewise, CD's counter claims against LK and 1221 for common law indemnification and contribution are dismissed, in light of the showing that LK and 1221 were not negligent in respect to the Singh's accident. Similarly, RCF's cross claims against LK and 1221 sounding in common law indemnification and contribution are dismissed as unwarranted. Failure to Procure Insurance
As to LK and 1221's alternative request for summary judgment against CD for failure to procure insurance claim, Section III of the CD Subcontractor Vendor Agreement requires CD to obtain commercial general liability insurance and name LK and "Owner" as additional insureds on any such policy. LK and 1221 established, through CD's discovery response, that no such insurance was obtained.
In response, CD submits an insurance declaration page showing that it obtained coverage from Great American Insurance Company, and identifying LK as a certificate holder. The declaration page also indicates that certain "Additional Insured" endorsements apply. Thus, CD's argument that it complied with its insurance obligations, and that its carrier declined coverage, raises an issue of fact as to whether CD breached it insurance obligations under the CD Purchase Order (see Castro v New York City Tr. Auth., 52 AD3d 213, 859 NYS2d 417 [1st Dept 2008]). Thus, LK and 122 l's request for summary judgment on their breach of contract claim against CD is denied.
Conclusion
Based on the foregoing, it is hereby
ORDERED that the branches of the motions by Morgan Stanley, LK and 1221, CD, and RCF for summary judgment dismissing plaintiffs' Labor Law §240(1) claim are granted, and such claim is severed and dismissed; and it is further
ORDERED that the motions by Morgan Stanley, LK and 1221, CD, and RCF for summary judgment dismissing plaintiffs' Labor Law §241(6) claim as predicated on 12 NYCRR §§23-1.5, 23-1.7(d) or 23-2.1 (a)(1), (a)(2), and (b) are granted, as withdrawn, and said claims are severed and dismissed; and it is further
ORDERED that the branches of the motions by Morgan Stanley, LK and 1221, CD, and RCF for summary judgment dismissing plaintiffs' Labor Law §241(6) claim as predicated on 12 NYCRR §§23-1.7(e)(1) and §23-1.7(e)(2) are granted, and such claims are severed and dismissed; and it is further
ORDERED that the branches of the motions by Morgan Stanley, LK and 1221, CD, and RCF for summary judgment dismissing plaintiffs' Labor Law §200 and common law negligence claims are granted solely as to Morgan Stanley, LK and 1221, and CD and such claims are severed and dismissed; and it is further
ORDERED that the branches of Morgan Stanley motion for summary judgment dismissing the cross and third party claims of 1221, LK, RCF and CD for common law indemnification and contribution, contractual indemnification, and breach of contractual warranty against Morgan Stanley are granted, and such claims are severed and dismissed; and it is further
ORDERED that the branches of the motion by Morgan Stanley for summary judgment on its contractual and common law indemnification claims and an award of attorneys' fees against LK, RCF, and CD is granted solely on the ground of contractual indemnification against LK and CD, and the issue of the amount of attorneys' fees is hereby referred to Hon. Ira Gammerman to hear and determine; and, Morgan Stanley shall serve a copy of this order with notice of entry on all parties and the Special Referee Clerk, Room 119M, within 30 days of entry to arrange a date for the reference to a Special Referee; and it is further
ORDERED that the branch of CD's motion for summary judgment dismissing all common law negligence based cross claims is granted; and it is further
ORDERED that the branches of the motion by LK and 1221 for summary judgment on their common law and contractual indemnification claims and failure to procure insurance claim against CD is granted solely as to contractual indemnification, and the issue of the amount of attorneys' fees is hereby referred to Hon. Ira Gammerman to hear and determine; and, Morgan Stanley shall serve a copy of this order with notice of entry on all parties and the Special Referee Clerk, Room 119M; and it is further
ORDERED that the branches of LK and 1221's motion to dismiss all cross-claims and counterclaims against them is granted solely as to Morgan Stanley's claim for common law indemnification claim, CD's counterclaims for common law indemnification and contribution, and RCF's cross claims sounding common law indemnification and contribution, and such cross claims are severed and dismissed; and it is further
ORDERED that the Clerk may enter judgment accordingly; and it is further
ORDERED that Morgan Stanley shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.
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Hon. Carol R. Edmead, J.S.C.