Opinion
0020623/2005.
May 20, 2008.
BAUMAN, KUNKIS OCASIO-DOUGLAS, Attorneys for Plaintiff, New York, New York.
FISHER EGAN GOLDEN, LLP, Attorneys for Defendant Wellmod Homes Corp., Patchogue, New York.
LOCCISANO LARKIN, Attorneys for Defendants Reiger, Hauppauge, New York.
MALOOF, LEBOWITZ, CONNAHAN, et al., Attorneys for Defendant Apex Homes, Inc., New York, New York.
MILBER, MAKRIS, PLOUSADIS SEIDEN, Attorneys for Defendant Sandel Inc., Woodbury, New York.
Upon the reading and filing of the following papers in this mater: (1) Notice of Motion by defendant Wellmod Homes Corporation, dated November 8, 2007, and supporting papers (including Memorandum of Law; (2) Notice of Cross Motion by defendant Apex Homes, Inc., dated November 12, 2007, and supporting papers; (3) Notice of Motion by defendants James Reiger and Barbara Reiger, dated November 13, 2007, and supporting papers; (4) Notice of Cross Motion by supplemental defendant Dave Sandel Inc., n/k/a Long Island Crane, dated November 12, 2007, and supporting papers; (5) Affirmations in Opposition, Reply Affirmations and Memorandum, and letter; and now UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motions are decided as follows: it is
ORDERED that these motions are consolidated for the purpose of this determination; and it is further
ORDERED that the motion (#002) by defendant Wellmod Homes Corp. for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiff's complaint and any cross claims asserted against it, s granted to the extent that plaintiff's common-law negligence and Labor Law §§ 200 and 241(6) claims are dismissed, with the exception of the § 241(6) claim based upon alleged violation of 12 NYCRR §§ 23-8.1 (f)(1)(iv) and (6), and is otherwise denied; and it is further
ORDERED that the cross motion (#003) by defendant Apex Homes, Inc. for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiff's complaint and striking the complaint pursuant to CPLR 3126, is granted to the extent that plaintiff's common-law negligence and Labor Law §§ 200 and 241(6) claims are dismissed, with the exception of the § 241(6) claim based upon alleged violation of 12 NYCRR §§ 23-8.1 (f)(1)(iv) and (6), and is otherwise denied; and it is further
ORDERED that the motion (#004) by defendants, James Reiger and Barbara Reiger, for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiff's complaint and any cross claims asserted against them, is granted; and it is further
ORDERED that the cross motion (#005) by supplemental defendant Dave Sandel, Inc. n/k/a Long Island Crane Rigging, Inc. for an order pursuant to CPLR 3212 granting summary judgment dismissing all claims and cross claims asserted against it, is granted as to the cross claims asserted by the Reiger defendants and is otherwise denied.
Plaintiff commenced this action to recover damages pursuant to Labor Law §§ 200, 240(1), and 241(6), and for common-law negligence, for injuries he allegedly suffered when a portion of a roof being lifted by a crane broke loose and hit him. The accident occurred during the construction of a modular home on property owned by James Reiger and Barbara Reiger (hereafter collectively the Reigers). The modular home, manufactured by Apex Homes (hereafter Apex) and sold by the dealer, Wellmod Homes Corporation (hereafter Wellmod), was placed or set on its foundation by defendant Dave Sandel Inc. n/k/a Long Island Crane Rigging, Inc. (hereafter Sandel), plaintiff's employer.
The Reigers entered into a sales contract with Wellmod, as the "dealer," which referred to the manufacturing, delivery and setting of the modular units as the "Work." Wellmod thereafter entered into an agreement with Apex, entitled a "House Acceptance Form," for manufacture of the modular units, which provides that the Buyer (Wellmod) would be responsible for movement of the units from the transporter to the foundation for erection and trim-out of the unit. The sales contract between the Reigers and Wellmod provided, inter alia, for a price for the dealer to "deliver and erect" or "deliver and set" the modular units on the Reigers' property and provided that various portions of the work would be done by subcontractors hired by the dealer. The contract also stated that the Reigers would be responsible for completing construction of the home, which the parties agree entailed hiring subcontractors for plumbing, electrical and various other finishing work. The Reigers initial responsibility was to contract for the excavation, the foundation, and the sill plates. Wellmod inspected the foundation to make sure that it conformed to the contract specifications and, therefore, could accommodate the manufactured home.
Setting entails placing the modular units on the foundation and securing them to one another, as well as to the foundation.
The modular home could be completed by the dealer, at an additional cost to the purchasers, or could be completed by the purchasers, who would be responsible for hiring the subcontractors to complete the home. The Reigers chose to employ the finishing subcontractors themselves, to save money.
Sill plates are barriers placed between the concrete foundation and the wooden frame.
Kent Jenkins, the vice president of finance and development for Apex, testified at his deposition that he did not have direct knowledge of the construction process but that, generally, Apex did not monitor or supervise the set up or erection of the modular units; rather, the "builder" was responsible for this. Apex did not deal directly with Sandel, since it was Wellmod's responsibility to see that the units were properly set. To that end, Apex required an "Installation Acceptance Form," wherein Wellmod certified that the erection of the Reigers' modular home by Sandel was done to the manufacturer's specifications, necessary for warranty purposes. Conversely, John Hopkins, Wellmod's vice president, testified at his deposition that Sandel was hired by Apex, not Wellmod. Further, the installation acceptance form for the Reiger home authorizes Apex, not Wellmod, to pay Sandel.
Dave Sandel, the principal of the crane company which employed plaintiff, testified at his deposition that his company had placed dozens of homes manufactured by Apex, as well as other modular manufacturers, although he stated that he never dealt with Apex directly or the homeowners themselves. Routinely, his company would be notified by the seller or the dealer that a modular home was to be be delivered on a certain date and that his services would be required on that date, without written contracts. Mr. Sandel stated that he did not have a written contract with Wellmod or with Apex for the home at issue but that his company did, in fact, erect the modular units and that his employees did not take instructions from others. He also stated that the homeowners paid him for the set up.
No documentary proof that the Reigers paid Sandel has been offered, nor is there any proof of payment by Wellmod or Apex.
Among the documents offered by the parties is a "construction service subcontract," which appears to be prepared by Apex and which lists Dave Sandel, Inc. as the subcontractor. It provides, inter alia, that Sandel (i) would place the modular units on the foundation, (ii) would bolt the modular units together, and (iii) would permanently attach or affix the modular units to the foundation. Although it is dated before plaintiff's accident it does not identify the location of the services to be performed and is not signed by any party. Apex, which has its manufacturing plant and offices in Pennsylvania, manufactured the modular home in four units and shipped them to the Reigers' property on four of its tractor trailers. Upon arrival, the modular units were unwrapped by Sandel's "set crew" and inspected by Wellmod to make sure that the units were within the required specifications and had arrived intact and with the "loose items" needed to complete the house. Plaintiff, a member of Sandel's set crew, testified at his examination before trial that the crane had placed the two first story units on the foundation, then placed the two second story units on top of the first story units, and that they were in the process of "bringing up" the roof at the time of his accident. The roof segments are located within the top units and are attached to the outside wall by hinges, and each part is lifted up by the use of four straps which are attached to the roof and to the crane by use of a stabilizer bar. The crane lifts the roof a few feet higher than it will ultimately be and Sandel's workers go under the roof to pick up and place "knee walls" upon which the roof will rest. Plaintiff testified that, when he was under the roof, one of the straps broke and part of the roof came down on top of him. John Hopkins (Wellmod), testified that he was present at the home at the time of the accident and that, although he did not witness the accident, he was told at the time that a strap had broken and the roof had fallen on plaintiff.
The knee walls are placed into notches in the beams and later permanently attached with nail guns.
Michael Koch, Jr., the set crew foreman for Sandel, testified at his deposition that the accident was caused when one section of the ridge beam, at the top section of the roof, pulled off and the roof fell on plaintiff, but that the strap did not break. The straps were attached to the ridge beam. He did not know who attached the straps originally, did not inspect the straps after the accident, and did not know what had become of the straps. Mr. Koch testified that he had to reinstall the ridge beam in order to complete the roof and that when he inspected it, there did not appear to be anything wrong with the beam. Mr Koch also testified that the plaintiff proceeded to go under the roof before he was directed to; plaintiff did not wait for his signal that it was OK to proceed, which was the normal practice. The crane operator for Sandel, Michael Koch, Sr., also testified at his deposition that the ridge beam let go. Both Mr. Koch, Jr. and Mr. Kock, Sr. testified that Mr. Hopkins had the authority to stop the work if he thought it was unsafe, although neither of them had ever seen him do that. An owner of a one or two family dwelling is exempt from the absolute liability imposed under Labor Law § 240(1) and the vicarious liability imposed under Labor Law § 241(6) unless he directed or controlled the work being performed ( Lombardi v Stout , 80 NY2d 290, 590 NYS2d 55; Miller v Shah , 3 AD3d 521, 770 NYS2d 739; Duncan v Perry , 307 AD2d 249, 762 NYS2d 275). The phrase "direct or control" is "construed strictly and refers to the situation where the owner supervises the method and manner of the work" ( Garcia v Petrakis , 306 AD2d 315, 316, 760 NYS2d 551). The fact that a homeowner acts as his own general contractor will not bar application of the exemption, as long as the homeowner did not control or direct the manner or method of the work being performed by the injured plaintiff ( Soskin v Scharff , 309 AD2d 1102, 1104, 766 NYS2d 248; Reilly v Loreco Constr., 284 AD2d 384, 386, 726 NYS2d 142). Here, the homeowners, Mr. and Mrs. Reiger, established that they lacked the requisite supervision and control over plaintiff's work and are entitled to the protection of the homeowners exemption as a matter of law, and plaintiff did not rebut this with admissible evidence to the contrary ( Ferrero v Best Modular Homes , 33 AD3d 847, 823 NYS2d 477, lv dismissed 8 NY3d 841, 830 NYS2d 693). The protection provided by Labor Law § 200 codifies the common-law duty of an owner or employer to provide employees a safe place to work ( Jock v Fien, 80 NY2d 965, 590 NYS2d 878). It applies to owners, contractors, or their agents ( Russin v Louis N. Picciano Son, 54 NY2d 311, 445 NYS2d 127), who exercise control or supervision over the work, or either created an allegedly dangerous condition or had actual or constructive notice of it ( Lombardi v Stout , supra; Yong Ju Kim v Herbert Constr. Co. , 275 AD2d 709, 713 NYS2d 190). Where, as here, the alleged defect or dangerous condition arises from the subcontractor's work and the homeowners exercised no supervisory control over the method and manner of the work, no liability attaches to them under the common law or under Labor Law § 200 ( Comes v New York State Elec. Gas Corp. , 82 NY2d 876, 877, 609 NYS2d 168; Mas v Kohen , 283 AD2d 616, 725 NYS2d 90). Accordingly, the Reigers' motion for summary judgment is granted and the complaint, and all cross claims, are dismissed as against them.
Plaintiff's expert's opinion is that, if the ridge beam separated from the rafter, it was caused by the failure to properly place, balance, and secure the load. While the expert thereafter contradicts his own opinion by speculating that separation might occur from a manufacturing defect, there is no support for this theory in the record. Moreover. Mr. Koch, Jr. testified that when he replaced the ridge beam, there was nothing wrong with it. To the extent that Apex seeks to prohibit the introduction of any evidence of a manufacturing defect (or to dismiss the complaint) pursuant to CPLR 3126 because it did not have the opportunity to inspect the ridge beam prior to its alleged repair by Sandel, the Court finds this remedy to be inapplicable to plaintiff's complaint ( see generally, Kirkland v New York City Hous. Auth. , 236 AD2d 170, 666 NYS2d 609 [1997]). Plaintiff makes no claim of a manufacturing defect. Moreover, plaintiff was never in control of the ridge beam, and there is no evidence that Sandel knew of plaintiff's action prior to the alleged repair { see, O'Reilly v Yavorskiy , 300 AD2d 456, 755 NYS2d 81 [2002]). Further, Apex has asserted no claim against Sandel, Sandel has asserted no claim against Apex, and plaintiff's common-law negligence cause of action against Apex is dismissed herein ( Lane v Fisher Park Lane Co. , 276 AD2d 136, 138-139, 718 NYS2d 276 [2000]).
Koch, Jr. testified that Sandel had constructed or set 100 to 200 homes for Apex.
The Reigers testified that they built the home with the intent to live there but changed their minds after it was completed and then sold it without ever having lived in it. Although plaintiff argues that the Reigers never intended to live in the home, that it was built with the intent to sell, and therefore the Reigers should not be entitled to the homeowners' exemption, plaintiff has offered no support for this theory ( cf., Freeman v Advanced Design Prods. , 27 AD3d 1112, 811 NYS2d 244 [2006]; Morgan v Rosselli , 9 AD3d 417, 418, 780 NYS2d 629 [2004]).
Labor Law § 240(1), commonly known as the "scaffold law," creates a duty that is nondelegable, and an owner or contractor who breaches that duty may be held liable in damages regardless of whether either had actually exercised any supervision or control over the work ( Ross v Curtis-Palmer Hydro-Elec. Co. , 81 NY2d 494, 601 NYS2d 49). The "exceptional protection" provided for workers by § 240(1) is aimed at "special hazards" and is limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured ( Ross v Curtis-Palmer Hydro-Elec. Co. , supra at 501; Rocovich v Consolidated Edison Co. , 78 NY2d 509, 514, 577 NYS2d 219; Zimmer v Chemung County Performing Arts , 65 NY2d 513, 493 NYS2d 102). In order to prevail upon a claim pursuant to Labor Law § 240(1), a plaintiff must establish that the statute was violated and that this violation was a proximate cause of his injuries ( Bland v Manocherian , 66 NY2d 452, 497 NYS2d 880; Sprague v Peckham Materials Corp. , 240 AD2d 392, 658 NYS2d 97). An injured plaintiff's contributory negligence will not exonerate a defendant who has violated § 240(1) ( Raquet v Braun , 90 NY2d 177, 184, 659 NYS2d 237). Conversely, a defendant is not liable under § 240(1) where there is no evidence of a violation and the proof reveals that the plaintiff's own negligence was the sole proximate cause of the accident ( Robinson v East Med. Ctr., 6 NY3d 550, 814 NYS2d 589; Blake v Neighborhood Hous. Servs. of N.Y. City , 1 NY3d 280, 290-291, 771 NYS2d 484).
In Diamond v Reilly Homes Constr. Corp. ( 245 AD2d 763, 665 NYS2d 464), the Appellate Division found that Labor Law § 240(1) was applicable when that plaintiff was hit with a suspended portion of the roof for a modular home, because the brackets securing the roof to the hoist detached or failed, much like the instant scenario. In Diamond , the manufacturer of the home was required by the purchase agreement with the dealer to provide a "set crew" to install the home on its foundation and both the manufacturer and the purchaser/dealer were found liable to plaintiff. Here, however, the purchase agreement between Wellmod and Apex provides that Wellmod would be responsible for moving the units from the transporter to the foundation and for erecting the units.
Wellmod's motion for summary judgment is based on the argument that it is not subject to the absolute liability imposed by Labor Law § 240(1) because it was not an owner or a general contractor and was not the agent of either, it did not supervise or control the work, and it had no authority to do so. Wellmod argues that the Reigers were the general contractors for construction of their home. As the party moving to dismiss plaintiff's Labor Law § 240(1) claim as against it, it was Wellmod's initial burden to establish that Labor Law § 240(1) is inapplicable to either version of plaintiff's accident generally, Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595; Fabbricatore v Lindenhurst Union Free School Dist. , 259 AD2d 659, 686 NYS2d 822). The Court finds that Wellmod did not meet its burden on this claim. Wellmod's sales contract with the Reigers provides for the manufacturing, delivery and setting of the modular units. The Reigers had the foundation poured but it was Wellmod which inspected it to make sure it was correct, inspected the modular units once they arrived, and contacted Sandel to set up a date for Sandel to set the units on the foundation. An entity is deemed a contractor within the meaning of Labor Law § 240(1) "if it had the power to enforce safety standards and choose responsible subcontractors . . . regardless of whether it actually exercised that right" ( Milanese v Kellerman , 41 AD3d 1058, 1061, 838 NYS2d 256). While Wellmod did not supervise or direct the work of Sandel's set crew, it appears that this was because Sandel "had performed similar work for [Wellmod] numerous times in the past and understood its responsibilities" ( Milanese at 1061). Therefore, Wellmod has not established, as a matter of law, that it was without the authority to direct or control the work ( Hoffmeister v Oaktree Homes , 206 AD2d 920, 615 NYS2d 176).
For the purposes of these motions plaintiff's testimony, that one of the straps suspending the roof broke or let loose is deemed true. Whether, ultimately, to credit his testimony or the alternate theory offered by his coworkers, that the strap did not break but rather the ridge beam broke off, is a matter to be resolved at trial ( see, Locicero v Princeton Restoration, 25 AD3d 664, 665, 811 NYS2d 673 [2006]).
Also unpersuasive is Wellmod's argument that plaintiff was the sole proximate cause of his accident because he went under the roof to bring up the knee walls without first getting such direction from his supervisor. The Court finds this insufficient to support Wellmod's motion for summary judgment or to raise a factual issue in support of the recalcitrant worker defense ( see, Hoffmeister v Oaktree Homes, 206 AD2d 921, 615 NYS2d 177 similar circumstances). Further, there is no allegation that plaintiff's action caused the mishap or that plaintiff refused to use an available safety device ( Guaman v New Sprout Presbyt. Church of N. Y. , 33 AD3d 758, 822 NYS2d 635; Szuba v Marc Equity Prop. , 19 AD3d 1176, 1177, 798 NYS2d 813). Accordingly, summary judgment dismissing plaintiff's Labor Law § 240(1) claim is denied to Wellmod.
Labor Law § 241(6) requires owners and general contractors to "provide reasonable and adequate protection and safety" for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. As is the duty imposed by Labor Law § 240(1), the duty to comply with the Commissioner's regulations imposed by § 241(6) is nondelegable ( Ross v Curtis-Palmer Hydro-Elec. Co., supra; Long v Forest-Fehlhaber , 55 NY2d 154, 448 NYS2d 132: Allen v Cloutier Constr. Corp. , 44 NY2d 290, 405 NYS2d 630). Therefore, a plaintiff who asserts a viable claim under § 241(6) wherein the rule or regulation alleged to have been breached is a "specific positive command" and not merely "general safety standards" need not show that defendants exercised supervision or control over the work site or had actual or constructive notice in order to establish a right of recovery ( Ross v Curtis-Palmer Hydro-Elec. Co. , supra; Rizzuto v L.A. Wenger Contr. Co. , 91 NY2d 343, 670 NYS2d 816).
Plaintiff's opposition is confined to defendants' alleged violations of 12 NYCRR §§ 23-6.1(d), 23-6.2 (c), 23-8.1 (f)(1)(iv) and 23-8.1 (f)(6). Plaintiff did not address the remaining Code violations, and, in any event, they are either too general or not applicable to plaintiff's accident. As to § 23-6.1, it provides at subsection (a): "Application of Subpart. The general requirements of this Subpart shall apply to all material hoisting equipment except cranes, derricks, aerial baskets, excavating machines used for material hoisting and fork lift trucks [ emphasis added]." Here, the underlying accident involved a crane, this is the basis for plaintiffs allegations under subpart 12 NYCRR 23-8.1. Therefore, 23-6.1(d) cannot serve to support plaintiff's Labor Law § 241(6) cause of action ( Marvin v City of New York , 5 Misc 3d 1003[A], 798 NYS2d 710 [2004]).
Section § 23-6.2, entitled "Rigging, rope and chains for material hoists," provides:
(c) Fittings. All hooks, shackles and other fittings subject to tension or shear shall be drop-forged. The use of deformed or damaged hooks, shackles, chains or other fittings is prohibited. All suspended pulley blocks, sheaves, well wheels or similar devices shall be moused or securely fastened or safety hooks shall be used.
While section 23-6.2(c) has been found specific enough to support a Labor Law § 241(6) claim ( Guerra v Port Auth. of N. Y. N.J. , 35 AD3d 810, 811, 828 NYS2d 440), here, there is no claim that damaged fittings, such as hooks, shackles or chains, caused plaintiff's accident. Plaintiff alleges that the strap suspending the roof broke. Therefore, the Court finds that this section is also inapplicable to plaintiff's accident.
Section § 23-8.1, entitled "Mobile Cranes, Tower Cranes and Derricks," provides:
(f) Hoisting the load. (1) Before starting to hoist with a mobile crane, tower crane or derrick the following inspection for unsafe conditions shall be made:
* * *
(iv) The load is well secured and properly balanced in the sling or lifting device before it is lifted more than a few inches.
* * *
(6) Mobile cranes, tower cranes and derricks shall not hoist or carry any load over and above any person except as otherwise provided in this Part (rule).
As to these subsections, defendant has not established that they are too general or are inapplicable to the accident. Accordingly, the Court finds that they are, at least arguably, applicable and summary judgment dismissing these violations is denied ( Locicerio v Princeton Restoration , supra at 666-667). Further, a violation of the Industrial Code is considered only some evidence of negligence; the jury will resolve the issue of whether the operation or conduct at the work site was reasonable and adequate under the particular circumstances and whether plaintiff's contributory negligence, if any, was a factor ( Rizzuto v L. A. Wenger Contr. Co., supra; Herman v St. John's Episcopal Hosp. , 242 AD2d 316, 678 NYS2d 635).
In order for Apex to be liable to plaintiff under the strict liability imposed by Labor Law § 240(1) or the vicarious liability imposed by Labor Law § 241(6), it must have had the "power to enforce safety standards and choose responsible subcontractors . . . regardless of whether it actually exercised that right" ( Milanese v Kellerman , supra at 1061). Apex established its entitlement to summary judgment by annexing copies of the purchase agreement with Wellmod which provides that Wellmod would be responsible for movement of the units from the designated point of delivery and from the transporter to the foundation for erection and trim-out, and the contract with the Reigers which provides for Wellmod to deliver and set the units. However, in opposition, plaintiff raised a triable issue of fact as to Apex's authority as evinced by the "installation acceptance form," which provides that Wellmod would certify that the installation was done according to Apex's specification, approve the installation, and authorize Apex to pay Dave Sandel, Inc., and the "construction services subcontract," which purports to have Apex subcontract the erection and installation of the manufactured home to Sandel. Accordingly, summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims is also denied to Apex.
The protection provided by Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees a safe place to work ( Jock v Fien , supra). It applies to owners, contractors, or their agents ( see, Russin v Picciano Son , supra) who exercised control or supervision over the work and either created an allegedly dangerous condition or had actual or constructive notice of it ( Lombardi v Stout , supra; Yong Ju Kim v Herbert Constr. Co. , supra). Where, as here, the alleged dangerous condition arises from the method or material controlled by the subcontractor and the contractor exercised no supervision or control over the injured plaintiff's work, no liability attaches under the common law or Labor Law § 200 ( Comes v New York State Elec. Gas Corp. , supra).
Therefore, summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence causes of action is granted to Apex and Wellmod.
As a general rule, an owner or contractor held vicariously liable for a plaintiff's injuries pursuant to Labor Law §§ 240(1) or 241(6) is entitled to indemnification from the "actor who caused the accident" ( see, Chapel v Mitchell , 84 NY2d 345, 618 NYS2d 626; Rivera v D'Alessandro , 248 AD2d 522, 669 NYS2d 877; Werner v East Meadow Union Free School Dist. , 245 AD2d 367, 667 NYS2d 386 [ 1997]). However, pursuant to Worker's Compensation Law § 11, an injured plaintiff's employer is exempt from claims for contribution or indemnity in the absence of plaintiff s "grave injury" ( see also, Majewski v Broadalbin-Perth Cent. School Dist. , 91 NY2d 577, 673 NYS2d 966), unless there is a specific contractual obligation for such. There is no dispute that plaintiff did not suffer a grave injury; therefore, any claims for indemnification or contribution from Sandel are dependent upon a contractual obligation. Apex has not asserted any claims against Sandel, and Sandel asserts that it did not have a written contract with any party, and specifically that it had no contract with Wellmod or the Reigers.
Wellmod has submitted a copy of a document which purports to be a subcontractor payment agreement, dated March 16, 2001, for "various work contracted by and between" the parties, wherein Wellmod identifies itself as the general contractor and Sandel as its subcontractor, and which provides that Sandel would indemnify and hold Wellmod harmless from and against any and all losses or claims arising out of or in any way relating to the work performed by Sandel. Therefore, there is a question of fact as to whether there was a written contract for indemnification in effect on the date of plaintiff's accident ( see, Fischer v Waldbaum's, Inc. , 7 AD3d 756, 756-757, 776 NYS2d 904; cf. Flores v Lower E. Side Serv. Ctr. , 4 NY3d 363, 369-370, 795 NYS2d 491), notwithstanding its apparent contradiction to Wellmod's previous position (i.e. that it was not the general contractor). Accordingly, summary judgment dismissing Wellmod's cross claim for contractual indemnification is denied to Sandel. Sandel is granted summary judgment as to the cross claim by the Reigers.
Plaintiff's accident occurred on May 16, 2003.
In summary, plaintiff's Labor Law § 240(1) claim and so much of the § 241(6) claim which is based upon the alleged violation of 12 NYCRR § 23-8.1 (f)(1)(iv) and 23-8.1(f)(6), remain unresolved as to Wellmod and Apex, and plaintiff's complaint is otherwise dismissed.