Opinion
14534 Index Nos. 152839/14 595386/14, 595049/15, 595086/15 Case No. 2021–00101
11-04-2021
Jonathan STRAUGHTER et al., Plaintiffs, v. THOR SHORE PARKWAY DEVELOPERS, LLC, et al., Defendants–Respondents, BJ's Wholesale Club, Inc., et al., Defendants–Respondents–Appellants. B.R. Fries & Associates, LLC, Third–Party Plaintiff–Respondent–Appellant, v. Canatal Steel, USA, Third–Party Defendant–Appellant–Respondent, Chartis Insurance Company of Canada, Third–Party Defendant. [And Other Third–Party Actions]
Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for appellant-respondent. McMahon, Martine & Gallagher, LLP, Brooklyn (Andrew D. Showers of counsel), for respondents-appellants. Morrison Mahoney LLP, New York (Saige Subick of counsel), for respondents.
Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for appellant-respondent.
McMahon, Martine & Gallagher, LLP, Brooklyn (Andrew D. Showers of counsel), for respondents-appellants.
Morrison Mahoney LLP, New York (Saige Subick of counsel), for respondents.
Gische, J.P., Mazzarelli, Shulman, Pitt, Higgitt, JJ.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about July 1, 2020, which, insofar as appealed from as limited by the briefs, granted plaintiff Jonathan Straughter's (plaintiff) motion for summary judgment on the Labor Law § 240(1) claim and the Labor Law § 241(6) claim predicated on a violation of Industrial Code ( 12 NYCRR) § 23–1.16 as against defendants B.R. Fries & Associates, LLC (Fries) and BJ's Wholesale Club, Inc. (Wholesale), granted Fries's motion for summary judgment on its contractual indemnification claim against third-party defendant Canatal Steel, USA, and granted Thor Shore Parkway Developers, LLC's (Thor) motion for summary judgment on its contractual indemnification cross claim against Fries, unanimously modified, on the law, to deny plaintiff's motion, and, upon a search of the record, to grant Wholesale's motion for summary judgment on its contractual indemnification claim against Canatal, and otherwise affirmed, without costs.
Conflicting evidence as to the availability of safety devices on the construction site on the day of plaintiff's accident precludes summary judgment on the Labor Law §§ 240(1) and 241(6) claims (see Giordano v. Tishman Constr. Corp., 152 A.D.3d 470, 59 N.Y.S.3d 28 [1st Dept. 2017] ; Cordeiro v. TS Midtown Holdings, LLC, 87 A.D.3d 904, 931 N.Y.S.2d 41 [1st Dept. 2011] ).
The court correctly granted Fries's motion for summary judgment on its contractual indemnification claim against Canatal and Thor's motion for summary judgment on its contractual indemnification claim against Fries. In support of its claim, Fries was not required to prove that it lacked authority to supervise and control the work (see Batlle v. N.Y. Devs. & Mgt., Inc., 193 A.D.3d 562, 146 N.Y.S.3d 624 [1st Dept. 2021] ). Upon a search of the record, we grant Wholesale's motion for summary judgment on its contractual indemnification claim against Canatal, pursuant to the same contractual provision that supports Fries's claim, which names Wholesale as an indemnitee. The contractual provision on which Thor based its cross claim against Fries was not limited to negligence (see e.g. Ging v. F.J. Sciame Constr. Co., Inc., 193 A.D.3d 415, 418, 146 N.Y.S.3d 603 [1st Dept. 2021] ). We decline to consider Fries's unpreserved argument based on a predecessor to the provision at issue, since it is not a purely legal argument apparent on the face of the record but depends on facts not brought to Thor's attention on the motion (see Ramirez v. Almah, LLC, 169 A.D.3d 508, 509, 94 N.Y.S.3d 38 [1st Dept. 2019] ). In any event, since the provision at issue is unambiguous, extrinsic evidence of the parties' intent may not be considered ( Bailey v. Fish & Neave, 8 N.Y.3d 523, 528, 837 N.Y.S.2d 600, 868 N.E.2d 956 [2007] ).