Since McGovern & Company was not negligent, it is entitled to summary judgment dismissing its co-defendants' cross-claims and Milford Flooring Corp.'s counterclaims for contribution against McGovern & Company. Astrakan v. City of New York, 184 A.D.3d 444, 445 (1st Dep't 2020); Ramos v. Pet Mkt. W. 57th St., Inc., 114 A.D.3d 423, 424 (1st Dep't 2014).
The motion court correctly found that plaintiff, an auto salesman who occasionally engaged in property management type duties at the request of his employer's principal, who was also a principal in 935 Bronx River Avenue, LLC and Old Iron Management, LLC, was not a covered person under Labor Law §§ 241(6) or 240(1). The record is clear that plaintiff's employment did not involve him performing construction, alteration, demolition, or similar labor, and the company he worked for did not regularly undertake enumerated duties under the Labor Law (see Prats v Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 883 [2003]; Panek v County of Albany, 99 N.Y.2d 452 [2003]). Furthermore, at the time the accident occurred, plaintiff's employer's principal had directed him only to videotape a premises recently vacated by tenant M&M Auto Glass Services, LLC d/b/a Four Star Auto Glass, and not to perform any tasks concerning the condition of the premises (see Prats at 882 ; Astrakan v City of New York, 184 A.D.3d 444 [1st Dept 2020]). In any event, the work being performed by plaintiff at the time of his accident would not constitute demolition or alteration of the premises (see Widawski v 217 Elizabeth St. Corp., 40 A.D.3d 483 [1st Dept 2007]).
While plaintiff should have moved for vacatur of the grant of defendants' motion for summary judgment rather than reargument (seeHutchinson Burger, Inc. v. Bradshaw, 149 A.D.3d 545, 50 N.Y.S.3d 267 [1st Dept. 2017] ; Country Wide Home Loans, Inc. v. Dunia, 138 A.D.3d 533, 28 N.Y.S.3d 319 [1st Dept. 2016] ), because plaintiff attached an affidavit demonstrating excusable default and an affidavit showing possible merit, we will treat the underlying motion as a motion to vacate. Upon vacatur, we find that the trial court's sua sponte denial of defendants' motion for summary judgment as untimely was proper (seeAppleyard v. Tigges, 171 A.D.3d 534, 535–536, 98 N.Y.S.3d 174 [1st Dept. 2019] ; cf.Astrakan v. City of New York, 184 A.D.3d 444, 125 N.Y.S.3d 709 [1st Dept. 2020] ; Gomez v. Penmark Realty Corp., 50 A.D.3d 607, 857 N.Y.S.2d 94 [1st Dept. 2008] ). Any prejudice to defendant from the court's sua sponte consideration of the timeliness issue was ameliorated by defendant's raising the issue in its motion for leave to renew (seeBayo v. 626 Sutter Ave. Assoc., LLC, 106 A.D.3d 648, 650, 966 N.Y.S.2d 390 [1st Dept. 2013] ).
Plaintiffs attempted removal of the refrigerator was, therefore, routine and, as a result, Plaintiff is not within the class of persons subject to the protections of Labor Law 240(1) and 241(6). See DeJesus v 935 Bronx Riv. Ave., LLC, 213 A.D.3d 552 [1st Dept. 2023]; see also Astrakan v City of New York, 184 A.D.3d 444 [1st Dept. 2020], In opposition, Plaintiff failed to raise triable issues of fact.
Claims for contribution and common-law indemnification are generally predicated upon proof that the party from whom indemnification or contribution is sought was negligent (see Astrakan v City of New York, 184 A.D.3d 444, 445 [1st Dept 2020]; Naughton v City of New York, 94 A.D.3d 1, 10 [1st Dept 2012]). As discussed above, Antique has demonstrated that its actions did not cause or contribute to the happening of the accident, and Antis has failed to raise a triable issue of fact.
Inasmuch as Hudson owed a contractual duty to proactively consult with the Armory as to any designs that were problematic, triable issues of fact remain as to whether Hudson was negligent in its fabrication and oversight of the installation in creating and allowing for the potentially hazardous condition, and thus launching an instrument of harm. Furthermore, to the extent that this movant may not be free from negligence, summary judgment on its other claims for indemnification and breach of contract to procure insurance coverage are likewise unwarranted (see Tormey v City of New York, 302 AD2d 277 [1st Dept 2003]; compare Astrakan v City of New York, 184 Ad3d 445 [1st Dept 2020]; Linhart v Rojas, 154 Ad3d 440 [1st Dept 2017]). Thus, Hudson's motion is denied in its entirety.
This record demonstrates that Elite Production Consult's actions or omissions did not contribute to plaintiff's injury and thus warrants dismissal of Lighting Syndicate's implied indemnification and contribution claims against Elite Production Consult. Astrakan v. City of New York, 184 A.D.3d 444, 445 (1st Dep't 2020); Higgins v. TST 375 Hudson, L.L.C., 179 A.D.3d 508, 511 (1st Dep't 2020); Canty v. 133 E. 79th St., LLC, 167 A.D.3d 548, 549 (1st Dep't 2018). III. LIGHTING SYNDICATE'S MOTION FOR SUMMARY JUDGMENT
Defendant Touro did not control those means and methods. ( Astrakan v. City of New York , 184 AD3d 444, 445, 125 N.Y.S.3d 709, 711 [1st Dept. 2020].) Indemnity
Where, as here, plaintiff alleges that his accident arose from the means and methods of his work, and he testified that his employer and not defendant, supervised and controlled his work and provided him with equipment, defendant cannot be held liable under Labor Law § 200 or common law negligence. (See Astrakan v City of New York, 184 AD3d 444 [1st Dept 2020] [defendants not liable where they lacked control over means and methods of plaintiff's work]). C. Labor Law § 240(1)
Thus, as ABM's contract with Jones for ice removal did not entirely absolve Jones' completely of its obligation to maintain the premises, it does not create a duty of care owed to Plaintiff (see DeCanio v Principal Bldg. Services, Inc., 115 AD3d 579, 580 [1st Dept 2014]; Gartmann v City of New York, 67 AD3d 468 [1st Dept 2009]). The branches of the motions to dismiss the common law indemnification and contribution crossclaims asserted by ABM against the Goldman Defendants and Jones asserted against the Goldman Defendants and ABM must be dismissed as these parties have been found not negligent (see eg Astrakan v City of New York, ___AD3d___, 2020 NY Slip Op 03276 [1st Dept 2020]; Ramos v Pet Mkt. W. 57th St., Inc., 114 AD3d 423 [1st Dept 2014]). The branch of ABM's motion to dismiss Jones' crossclaim for failure to procure insurance is grated since ABM demonstrated it procured the contractually required insurance with proof that a policy with a blanket endorsement to provide insurance coverage for contractually designated additional insureds was in effect at the time of the accident (see Perez v Morse Diesel Int'l, Inc., 10 AD3d 497, 498 [1st Dept 2004]).