Opinion
4735 2005.
Decided September 8, 2008.
Samuel J. Lurie, Esq., New York, New York, Attorney for Plaintiffs.
Wilson, Elser, Moskowitz, Edelman Dicker LLP, Queen Grand Realty, LLC and Manhattan Beer Distributions, LLC, New York, New York, Attorneys for Defendants/Third Party-Plaintiff.
Gartner Bloom Greiper, P.C., New York, New York, Attorneys for Third-Party Defendant/Second Third-Party Plaintiff.
Fiedelman McGaw, Dream Development Corp (in default), Jericho, New York, Attorneys for Second Third-Party Defendant.
The following papers numbered 1 to 79 read on the motion by plaintiffs for an order granting summary judgment against defendants Queen Grand Realty, LLC and Manhattan Beer Distributors, LLC on the cause of action for a violation of Labor Law § 240(1), and setting the matter down for an assessment of damages. Third-party defendant Milcon Construction Corp. (Milcon) cross-moves for an order granting summary judgment dismissing plaintiffs' Labor Law §§ 200, 240(1) and 241(6) claims. Second third-party defendant Macro Contracting Corp. (Macro) cross-moves for an order granting summary judgment dismissing plaintiffs' Labor Law §§ 200, 240(1) and 241(6) claims. Queen Grand Realty, LLC and Manhattan Beer Distributors, LLC (Manhattan Beer) cross-moves for an order (1) granting leave to amend its answer in order to assert a cross claim against Macro for contractual indemnification and cross claims against Milcon for common-law indemnification, and (2) deeming the proposed amended pleading served; (3) granting summary judgment dismissing the plaintiffs' complaint; and in the alternative (4) denying plaintiffs' motion for summary judgment and (5) granting summary judgment against Milcon on the claim for common-law indemnification and (6) granting summary judgment against Macro on the claim for contractual indemnification. Milcon cross-moves for an order granting summary judgment dismissing all third-party claims, cross claims and counterclaims. Second third-party plaintiff Milcon cross-moves for an order granting summary judgment against second third-party defendant Macro. Macro cross-moves for an order dismissing the first cause of action set forth in Milcon's second third-party complaint, and dismissing the Queen Grand and Manhattan Beer's cross claim for contractual indemnity.
Plaintiff Mariusz Baginski sustained personal injuries on January 11, 2005, when during the course of his employment the wooden planks he was standing on broke causing him to fall to the ground. Mr. Baginski was employed by Macro, as an asbestos removal worker, and at the time of the accident was working in a warehouse located at 47-12 Grand Avenue, Maspeth, New York. Said premises are owned by Queen Grand Realty, LLC and were leased to Manhattan Beer Distributors. Manhattan Beer Distributors hired Milcon to perform construction and renovation services, including asbestos removal at the subject premises. Milcon entered into a subcontract with Macro on June 14, 2004 to perform the asbestos removal services. Scott Miller, the president of Milcon, testified at his deposition that he was also the president of Macro at the time these entities entered into the subcontract, and that he was an employee of both entities at the time of plaintiff's accident.
Mr. Baginski testified at his deposition that on the date of the accident, and for several days prior, he and his co-workers were performing asbestos removal work at said premises. Shortly before his accident at approximately 1:50 P.M., on January 11, 2005, his supervisor, Adam Wilkowski, instructed him to paint the pipes located in the boiler room. He asserts that in order to reach the overhead pipes, his supervisor instructed him to climb from a 12-foot scaffold onto wooden planks that were placed between the two pipes located approximately 6 feet above the scaffold. Mr. Baginski stated that these planks were approximately 10 feet long, 6 inches wide and 1 ½ inches thick. The planks ran parallel to one another, with a gap of approximately 2 inches between them. The planks were not secured to each other or to the pipes in any manner. Mr. Baginski stated that the pipes had been in place since his first day on the job, but that he did not know who put them there. He stated that on the days prior to the accident, he and his co-workers had been instructed by their supervisor to stand on the planks while removing asbestos from the pipes. Mr. Baginski stated that just prior to the accident, he had stepped onto one of the planks, and that suddenly and without any warning, the plank broke, causing him to fall 18 feet below to the concrete floor, where he landed on his back. It is asserted that Mr. Baginski was not provided with any safety lines, nets or other devices and neither the scaffold nor the planks were equipped with handrails, guardrails or other protective devices.
The court notes that Mr. Baginski testified at his deposition through a sworn Polish interpreter. Such testimony shall be considered with respect hereto. However, Mr. Baginski has also submitted an affidavit in support of his motion for summary judgment. It is accompanied by an affidavit from Katyrzyna Szynkowski, who states that she is employed by plaintiffs' counsel, that she is fluent in English and Polish, and that on September 28, 2007 she translated said affidavit to Mr. Baginski in Polish and that prior to signing it he acknowledged that he fully understood its contents. Ms. Szynkowski, however, does not allege that she is a translator and has not stated her qualifications as a translator. Therefore, the court will not consider Mr. Baginski's affidavit ( see generally CPLR 2101[b]).
Plaintiffs' have also submitted an affidavit of their expert Stanley H. Fein, a professional engineer, who opines that, based upon his review of the pleadings and deposition transcripts, it was a breach of generally accepted proper safety engineering standards and construction practices to allow the plaintiff to use the scaffold platform without any safety devices; that the scaffold should have been equipped with guardrails; plaintiff should have been provided with safety belts and safety lines; and that the planking he was standing on should have been properly secured so as to prevent it from moving and collapsing.
Defendants Queen Grand Realty and Manhattan Beer, in opposition to the plaintiffs' motion and in support of their cross motion for summary judgment dismissing the complaint, assert that plaintiff was the sole proximate cause of the accident and that, as he was provided with proper safety protections which he failed to use, he was a recalcitrant worker and, therefore, he cannot establish a violation of Labor Law § 240(1). Defendants also assert that plaintiff's version of the facts is not supported by any objective evidence and they rely upon an affidavit submitted by plaintiff's foreman, Adam Wilkowski, in support of Milcon's cross motion to dismiss the complaint.
Defendants Milcon and Macro, in opposition to the plaintiffs' motion, assert that triable issues of fact exist as to whether plaintiff was the sole proximate cause of the accident and as to the recalcitrant worker defense.
Defendant Milcon, in its cross motion to dismiss the Labor Law § 240(1) cause of action against Queen Grand Realty and Manhattan Beer, relies upon the affidavits of its president, Scott Miller, its project manager, Andrzej Roback, plaintiff's foreman Adam Wilkowski, and Carl J. Abraham, a professional engineer. Mr. Miller, Mr. Roback and Mr. Wilkowski all state that extension ladders and scaffolding had been brought to the job site and placed in the boiler room, which were of sufficient height, or could be adjusted to a sufficient height, for the performance of the subject work.
Mr. Wilkowski states in his affidavit that he never told Mr. Baginski to use or step on the wooden planks, and that all the workers were told to wear safety belts and that safety belts were available at the job site. Mr. Wilkowski further states that neither Macro nor Milcon supplied the wooden planks and that any such planks were at the job site prior to Milcon and Macro's presence at the job site.
Mr. Roback states in his affidavit that he was present at the job site after the contract was signed but before any work was performed and again on January 3, 2005 when the equipment was brought in and that he did not see any wooden planks 6 inches wide or 10 feet long and that this type of wood was not used on an asbestos job; that he was at the job site on January 6, 2005 when it was inspected by the Department of Environmental Protection and that no violations were issued to Milcon, Macro or Manhattan Beer.
Mr. Miller states in his affidavit and at his deposition that Milcon supplied the extension ladders, scaffolds, as well as prefabricated wall panels and plywood sheets that were used to construct a decontamination unit; that Macro supplied the labor but did not supply any equipment; that no wooden boards or planks as described by plaintiff were supplied or used on this job; and that he personally walked through the boiler room and never saw any planks or wooden boards measuring 10 feet in length or 6 inches wide, or anywhere near those dimensions.
Mr. Abraham, opines within a reasonable degree of engineering and safety engineering certainty that the accident was due to the plaintiff's own working methods; that Milcon provided the plaintiff with extension ladders and scaffold that, if he had used them as trained, would have been able to provide him with proper protection and he would have been able to reach the area he needed to work on; and that safety belts and harnesses were available at the time of the accident and that plaintiff failed to use them.
At the outset, it is noted that the note of issue was vacated pursuant to an order dated September 20, 2007 and a new note of issue was thereafter filed with the court on June 9, 2007. Therefore, the motion and all of the cross motions are timely as they were served after the prior note of issue was vacated and before the filing of the current note of issue.
Plaintiffs' motion for summary judgment on the Labor Law § 240(1) cause of action; Milcon, Macro, and Queen Grand Realty and Manhattan Beer's cross motions to dismiss plaintiffs' claims for violations of Labor Law §§ 200, 240(1) and 241(6):
It is well settled that a party seeking summary judgment "must make a prima facie showing of entitlement as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Ayotte v Gervasio, 81 NY2d 1062, 1063; see Alvarez v Prospect Hosp., 68 NY2d 320, 324). A prima facie showing shifts the burden to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material question of fact ( see Alvarez v Prospect Hosp., supra).
In order to establish liability for common-law negligence or a violation of Labor Law § 200, the plaintiff must establish that the defendant in issue had "authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" ( Russin v Picciano Son, 54 NY2d 311, 317; see Rizzuto v Wenger Contr. Co., 91 NY2d 343, 352; Singleton v Citnalta Constr. Corp., 291 AD2d 393, 394), or had actual or constructive notice of the defective condition causing the accident ( see LaRose v Resinick Eighth Ave. Assoc., LLC , 26 AD3d 470; Gatto v Turano , 6 AD3d 390, 391; Abayev v Jaypson Jewelry Manufacturing Corp. , 2 AD3d 548; Duncan v Perry, 307 AD2d 249; Giambalvo v Chemical Bank, 260 AD2d 432; Cuartas v Kourkoumelis, 265 AD2d 293; Sprague v Peckham Materials Corp., 240 AD2d 392). "General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law 200" ( Dos Santos v STV Engrs., Inc. , 8 AD3d 223, 224, lv denied 4 NY3d 702). Further, the authority to review safety at the site is insufficient if there is no evidence that the defendant actually controlled the manner in which the work was performed ( see Loiacono v Lehrer McGovern Bovis, 270 AD2d 464, 465)." Where the alleged dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches' ( Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709)" ( Rosenberg v Eternal Mems., 291 AD2d 391, 391-392; see also Perri v Gilbert Johnson Enterprises , 14 AD3d 681; Toefer v Long Is. R.R., 308 AD2d 579, 581 , affd 4 NY3d 399; Comes v New York State Elec. Gas Corp., 82 NY2d 876). Here, defendants Queen Grand Realty and Manhattan Beer have met their burden of establishing that they neither directed nor controlled the method or manner in which the plaintiff conducted his work,( see Amaxes v Newmark Co. Real Estate , 15 AD3d 321), and that they neither created nor had actual or constructive notice of a defective condition which existed on the subject property ( see Beltrone v City of New York, 299 AD2d 306). Plaintiffs apparently have not asserted a direct claim against Milcon. Plaintiffs, thus, cannot satisfy the requisite elements to sustain causes of action based on Labor Law § 200 or common-law negligence against Queen Grand Realty or Manhattan Beer ( see Lombardi v Stout, 80 NY2d 290; Fumo v NAB Constr. Corp. , 19 AD3d 446; Sattar v Natural Stone Indus. , 19 AD3d 681 ; Loreto v 376 St. Johns Condominium, Inc. , 15 AD3d 454; Gatto v Turano , 6 AD3d 390). Therefore, those branches of the cross motions which seek an order granting summary judgment dismissing plaintiffs' claim for a violation of Labor Law § 200, are granted.
Labor Law § 240(1) creates a duty that is nondelegable and an owner or general contractor who breaches that duty may be held liable in damages regardless of whether either had actually exercised supervision or control over the work ( see Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494). 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 ( see Ross v Curtis-Palmer Hydro-Electric Co., supra at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514; Zimmer v Chemung County Performing Arts, 65 NY2d 513). The legislative purpose behind Section 240(1) is to protect workers by placing the ultimate responsibility for safety practices where such responsibility belongs on the owner and general contractor instead of on workers who are "scarcely in a position to protect themselves from accident" ( see Rocovich v Consolidated Edison, supra at 501). Although the "special hazards" contemplated "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity" ( see Ross v Curtis-Palmer Hydro-Electric Co., supra; Rodriguez v Tietz Center for Nursing Care, 84 NY2d 841), the statute's purpose of protecting workers "is to be liberally construed" ( Ross v Curtis-Palmer Hydro-Electric Co., supra at 500). 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 or her injuries ( see Robinson v East Med. Ctr., LP , 6 NY3d 550, 553-555; Weininger v Hagedorn Co., 91 NY2d 958, 960, 695 [1998]; see also Cahill v Triborough Bridge Tunnel Auth. , 4 NY3d 35; Blake v Neighborhood Hous. Servs. of NY City , 1 NY3d 280; Marin v Levin Props., LP , 28 AD3d 525). However, a plaintiff cannot recover under Labor Law § 240(1) if his or her actions were the sole proximate cause of the accident ( see Robinson v East Med. Ctr., LP, 6 NY3d at 553-555; Blake v Neighborhood Hous. Servs. of NY City, supra; Gittleson v Cool Wind Ventilation Corp. , 46 AD3d 855; Marin v Levin Props., LP, supra).
Here, in view of Mr. Baginski and Mr. Wilkowski's sharply contradicting statements as to whether plaintiff was directed to stand on the boards in order to perform his work, a triable issue of fact exists as to whether Mr. Baginski's actions were the sole proximate cause of his accident. However, contrary to defendants' assertions, the recalcitrant worker doctrine is inapplicable here as there is no evidence that plaintiff refused to use an available safety device at the work site after being given specific instructions to do so ( see Cahill v Triborough Bridge Tunnel Auth., supra; Walls v Turner Constr. Co. , 10 AD3d 261, affd 4 NY3d 861). Although plaintiff asserts that no safety devices were available, even assuming arguendo that safety harnesses or safety belts were available on the date of the accident and that workers had, in general, been instructed to use safety devices, this is insufficient to establish that plaintiff affirmatively refused to wear a safety harness or safety belt at the time of the accident. Accordingly, plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim is denied, and those branches of the cross motions which seek summary judgment dismissing this cause of action, are denied.
The statutory duties imposed by Labor Law § 241(6) place ultimate responsibility for safety practices on owners of the work site and general contractors ( see Russin v Picciano Son, supra). To the extent that plaintiffs assert a violation of 29 CFR Section 1926, alleged violations of OSHA regulations cannot serve as a predicate to liability under Labor Law § 241(6) ( Rizzuto v L.A. Wenger Contracting Co., Inc., supra at 351).
In order for a contractor or an owner to be liable under Labor Law § 241(6), a plaintiff is required to establish a breach of a rule or regulation of the Industrial Code which gives a specific, positive command ( see Rizzuto v L.A. Wenger Contracting Co., Inc., supra; Ross v Curtis-Palmer Hydro-Elec. Co., supra; Vernieri v Empire Realty Co., 219 AD2d 593). In addition, even if the alleged breach is of a specific Industrial Code rule, that rule must be applicable to the facts of the case ( see Thompson v Ludovico, 246 AD2d 642; Vernieri v Empire Realty Co., supra).
Set forth in plaintiffs' bill of particulars is 12 NYCRR § 23-1.5 of the Industrial Code, which lacks the specificity required to support a cause of action under Labor Law § 241(6) ( see Madir v 21-23 Maiden Lane Realty, LLC , 9 AD3d 450, 452; Salinas v Barney Skanska Constr. Co. , 2 AD3d 619, 622; Fowler v CCS Queens Corp., 279 AD2d 505; Lynch v Abax, Inc., 268 AD2d 366, 367; see generally Ross v Curtis-Palmer Hydro-Elec. Co., supra).
Defendants assert and plaintiffs do not dispute that the following regulations set forth in the bill of particulars are not applicable here: 12 NYCRR § 23-1.7(b)(c)(d) and (e) [overhead hazards, hazardous openings, slipping hazards and tripping hazards]; § 23-1.8 [personal protective equipment]; §§ 23-1.13 and 23-1.13(a)(4) [electrical hazards], § 23-1.15 [safety railings], § 23-1.18 [sidewalk sheds and barricades], § 23-1.19 [catch platforms], § 23-1.20 [chutes], §§ 23-1.21 and 23-1.21(b)(3)(4)(5)(9)(10)(c)(d)(e)(1-5) [ladders and ladderways], § 23-1.23 [earth ramps and runways], §§ 23-1.24, 23-1.24(d) [work on roofs], § 23-128(g) [hand propelled vehicles], § 23-1.30 [illumination], § 23-1.32 [warning signs], § 23-1.33 [protection of persons passing construction sites], § 23-2.1 [maintenance and housekeeping], § 23-2.2 [concrete work], § 23-2.3 [structural steel assembly], § 23-2.4 [flooring requirements], § 23-2.5 [shafts], § 23-2.6 [platforms], § 23-2.7 [stairways], § 23-3.2 [general requirements to start projects], § 23-3.3 [demolition by hand], § 23-3.4 [mechanical methods of demolition]; § 23-4 [general requirements of stability of structure], § 23-7.1 [hoists], §§ 23-8.2 and 23-8.2(b)(2) [cranes] and § 23-9.2 [maintenance of equipment].
In addition, the regulations set forth at 12 NYCRR § 23-1.16 and § 23-1.17 which set standards for safety belts, harnesses, life lines, tail lines and life nets are inapplicable here as plaintiff claims he was not provided with any such devices ( Smith v Cari, LLC , 50 AD3d 879; Kwang Ho Kim v D W Shin Realty Corp., 47 AD3d 616).
To the extent that plaintiffs set forth in the bill of particulars §§ 23-5.9 [two-point suspension scaffold], 23-5.10 [multiple point suspension scaffolds], and 23-5.22 [stilts] there is no evidence that the wooden boards at issue constituted either a two-point, a multiple point suspension scaffold, or stilts, as defined in the regulations.
Plaintiffs in opposition to the cross motions contend that 12 NYCRR §§ 23-1.22(c), 23-5.3 and 23-5.8 set forth specific safety standards which are applicable here. Since plaintiffs did not set forth §§ 23-5.3 and 23-5.8 in their complaint or bill of particulars, these sections cannot form a basis for defeating defendants' cross motions for summary judgment. Plaintiffs did set forth in their bill of particulars § 23-1.22(c), which pertains to the specifications for working platforms and scaffolds. Whether a structure is a scaffold or a platform, one of its purposes must be to facilitate the work to be done by supporting the workers and their materials. Neither plaintiff nor his expert contends that the boards he stood on were designed and intended to support workers and their materials ( Olson v Pyramid Crossgates Co., 291 AD2d 706, 708). Therefore, as plaintiff cannot establish a cause of action under Labor Law § 241(6), defendants Queen Grand Realty, Manhattan Beer, Macro and Milcon's cross motions to dismiss this claim are granted.
Queen Grand Realty and Manhattan Beer's request to amend its pleadings in order to assert cross claims against Macro and Milcon and related relief on these cross claims, and that branch of Macro's cross motion which seeks to dismiss these cross claims:
It is noted that Queen Grand Realty and Manhattan Beer served purported cross claims on Macro and Milcon on August 31, 2007, which were rejected by Macro on September 5, 2007. Said cross claims were served long after the time to amend the pleading as of right had expired ( see CPLR 3025[a]) and included claims for common-law contribution, common-law indemnification, and contractual indemnification. In a stipulation dated November 12, 2007, Milcon withdrew its common-law indemnification and contribution claims set forth in the second third-party summons and complaint against Macro, and Queen Grand Realty and Manhattan Beer "also w/draw its common law claims asserted as well," presumably against Macro. In the notice of cross motion, dated January 18, 2008, although Queen Grand Realty and Manhattan Beer seek leave to assert a cross claim against Macro for contractual indemnification, and cross claims against Milcon for common-law indemnification, the movants failed to attach a proposed amended pleading to that effect and have only submitted a copy of the cross claims improperly served on August 31, 2007, which includes the withdrawn claims.
It is undisputed that defendants do not claim that plaintiff suffered a grave injury within the meaning of the Workers' Compensation Law. "In the absence of a grave injury,' Workers' Compensation Law § 11 . . . bars a third-party action for contribution or indemnification against an employer when its employee is injured in a work-related accident, unless the employer entered into a written contract prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered'" ( Guijarro v V.R.H. Constr. Corp., 290 AD2d 485, 486, quoting Workers' Compensation Law § 11). Here, the proposed cross claim against Macro, plaintiff's employer is based upon an annual subcontractor's agreement, dated June 15, 2004, between Milcon and Macro, for "various" projects, which was executed by Scott Miller on behalf of both parties, and provides as follows, in pertinent part:
"15 a) To the fullest extent permitted by Law, the Subcontractor shall indemnify and hold harmless, and defend the Owner, Contractor, Architect, Architect's consultants, and the agents and employees of any of them from and against all injuries, claims, damages, losses and expenses of any kind or nature whatever, including but not limited to attorney's fees, directly or indirectly arising out of or resulting from the performance of the Subcontractor's work under this Subcontract. The Subcontractor shall not be required by this agreement to indemnify a party for that portion of any loss that is directly attributable to the negligence of the party to whom indemnification is owed, except to the extent such indemnification is permitted by law. . .".
The general rule as to indemnification clauses is that "when a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed'" ( Tonking v Port Auth. of NY N.J. , 3 NY3d 486, 490, quoting Hooper Assoc. v AGS Computers, 74 NY2d 487, 491; Wrighten v ZHN Contracting Corporation, ___ AD3d ___, 2006 NY Slip Op 6850, 2006 NY App Div LEXIS 11435 [2006]; Gilbert v Albany Med. Ctr. , 21 AD3d 677, 678-679). Here, the indemnification clause contains no reference to the property owner's tenant or lessee. The language of the parties is not clear enough to enforce an obligation to indemnify unnamed entities, and the court will not rewrite the contract and supply a specific obligation the parties themselves did not spell out. If the parties intended to cover a tenant or lessee, as a potential indemnitee, they had only to say so unambiguously ( see Tonking v Port Auth., supra at 489-490). In addition, despite counsel's assertions, there is no evidence that Manhattan Beer acted as the agent for the owner when it entered into an agreement with Milcon for the removal of asbestos from pipes located in the leased warehouse premises. Manhattan Beer, therefore, may not assert a claim against Macro for contractual indemnification.
As regards Queen Grand Realty, the indemnification clause does not specifically include the claims of Macro's employees. Since it cannot be said that indemnification for claims by Macro's employees was "the unmistakable intent of the parties" ( Solomon v City of New York, 11 AD2d 383, 388 [internal quotation marks omitted]), Macro cannot be required to indemnify Queen Grand Realty under the circumstances presented herein ( Sumba v Clermont Park Assoc., LLC , 45 AD3d 671, appeal dismissed 10 NY3d 732; Vigliarolo v Sea Crest Constr. Corp. , 16 AD3d 409, 410). In view of the foregoing, that branch of Queen Grand Realty and Manhattan Beer's cross motion which seeks leave to amend its answer in order to assert a cross claim against Macro for contractual indemnification, to deem the amended pleading served and for summary judgment on said cross claim, is denied, and that branch of Macro's cross motion which seeks to dismiss any such cross claim asserted by Queen Grand Realty and Manhattan Beer, is granted.
In order to establish a claim for common-law indemnification "the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident" ( Correia v Professional Data Mgt., 259 AD2d 60, 65; accord Priestly v Montefiore Med. Ctr., Einstein Med. Ctr. , 10 AD3d 493 , 495) or "in the absence of any negligence" that the proposed indemnitor "had the authority to direct, supervise, and control the work giving rise to the injury" ( Hernandez v Two E. End Ave. Apt. Corp., 303 AD2d 556, 557; see also Kelly v City of New York , 32 AD3d 901 ; Coque v Wildflower Estates Developers, Inc. , 31 AD3d 484 ; Perri v Gilbert Johnson Enters. , 14 AD3d 681, 684-685). Where more than one party might be responsible for the accident, summary judgment granting indemnification against one party is improper ( see Freeman v National Audubon Soc'y, 243 AD2d 608, 609). Defendants Queen Grand Realty and Manhattan Beer in support of this cross motion do not assert that the scaffolds, ladders and other equipment provided by Milcon were defective or failed to provide the plaintiff with proper protection, or that Milcon had the authority to direct, control or supervise the plaintiff's work. Rather, defendants' counsel, in support of this branch of the cross motion, merely claims that Milcon furnished the wooden boards which were involved in plaintiff's accident. This claim is not supported by the evidence, as Milcon's project manager and its president both state in their affidavits that it did not supply any wooden boards matching the plaintiff's description. The only wood Milcon states it supplied consisted of plywood with attached boards that was used to construct the decontamination unit and that the dimensions of these wooden pieces did not match plaintiff's description of the boards. In the absence of any evidence which establishes that Milcon furnished the subject wooden boards, no basis exists for Queen Grand Realty and Manhattan Beer's claim against Milcon for common-law indemnification. Therefore, that branch of Queen Grand Realty and Manhattan Beer's cross motion which seeks leave to amend its answer in order to assert a cross claim against Milcon for common-law indemnification, to deem the amended pleading served and for summary judgment on said cross claim, is denied.
Milcon's cross motion for summary judgment dismissing all third-party claims, cross claims and counterclaims:
That branch of Milcon's cross motion for summary judgment dismissing Queen Grand Realty's third-party complaint for indemnification, and contribution, and Manhattan Beer's cross claim for common-law indemnification, is granted for the reasons stated above.
That branch of Milcon's cross motion which seeks summary judgment dismissing second third-party defendant Macro's counterclaims for common-law contribution and indemnification, is granted, as there has been no showing that Milcon supplied the wooden boards, or that there was any defect in the materials supplied by Milcon.
Second third-party plaintiff Milcon's cross motion for an order granting summary judgment against second third-party defendant Macro; and that branch of Macro's cross motion for an order dismissing the first cause of action set forth in Milcon's second third-party complaint:
As previously noted above, Milcon's second cause of action against Macro for common-law indemnification and contribution has been withdrawn.
Milcon's request for summary judgment on its first cause of action against Macro for contractual indemnification, including defense costs, is denied. The evidence presented here does not establish that Macro was responsible for plaintiff's accident, as a triable issue of fact exists as to whether plaintiff's supervisor directed him to stand on the subject wooden boards, or whether plaintiff was the cause of his own injuries. Furthermore, this cause of action is based upon the June 15, 2004 annual subcontractor's agreement, which was executed by Scott Miller as the president of Macro and as the president of Milcon. Said agreement refers to "various" projects, and is, by its terms, subject to the terms and conditions of any purchase order executed by the parties for a specific job. The fact that none of the purchase orders submitted herein contained any additional indemnification terms, however, does not render the annual agreement unenforceable. Rather, in the absence of any additional terms, the provisions of the annual agreement govern. The annual agreement's indemnification clause, however, does not specifically include claims of Macro's employees. Since it cannot be said that indemnification for claims by Macro's employees was "the unmistakable intent of the parties" ( Solomon v City of New York, supra at 388), Macro cannot be required to indemnify Milcon under the circumstances presented herein ( Sumba v Clermont Park Assoc., LLC, supra; Vigliarolo v Sea Crest Constr. Corp., supra at 410). Likewise, Macro cannot be required to assume the defense of the action against Milcon based upon the provisions of the indemnification clause.
The annual agreement required Macro to carry general liability insurance naming Milcon as the primary additional insured on the policy. Macro has not demonstrated that it procured insurance for the project which named Milcon as an additional insured. Rather, Macro, in opposition to Milcon's cross motion, has submitted a copy of Milcon's response to discovery demands in which it stated Milcon is insured by American Safety Insurance Company with a policy limit of $2 million per occurrence and a $2 million aggregate. Therefore, as Macro failed to establish that it procured general liability insurance, and as Milcon had procured its own insurance, Macro can only be liable for the cost of procuring said insurance. Accordingly, Milcon's cross motion for summary judgment against Macro on the second third-party complaint is granted solely as to the third cause of action, and Macro's cross motion to dismiss the second third-party compliant is granted to the extent that the first and second causes of action are dismissed.
Conclusion:
Plaintiffs' motion for summary judgment on the Labor Law § 240(1) cause of action is denied.
Third-party defendant Milcon's cross motion for an order granting summary judgment dismissing plaintiffs' complaint is granted to the extent that the Labor Law §§ 200, and 241(6) claims are dismissed, and the remainder of the cross motion is denied as to the Labor Law § 240(1) claim.
Second third-party defendant Macro's cross motion for an order granting summary judgment dismissing plaintiffs' complaint is granted to the extent that the Labor Law §§ 200 and 241(6) claims are dismissed, and the remainder of the cross motion is denied as to the Labor Law § 240(1) claim.
That branch of defendants Queen Grand Realty, LLC and Manhattan Beer Distributors, LLC's cross motion which seeks leave to amend its answer in order to assert a cross claim against Macro for contractual indemnification and cross claims against Milcon for common-law indemnification, and to deem the proposed amended pleading served, and for further relief on these cross claims is denied. That branch of these defendants' cross motion which seeks summary judgment dismissing the plaintiffs' complaint is granted to the extent that the Labor Law §§ 200, and 241(6) claims are dismissed and is denied as to the Labor Law § 240(1) claim.
Milcon's cross motion for an order granting summary judgment dismissing all third-party claims, cross claims and counterclaims, is granted.
Macro's cross motion for an order dismissing the first cause of action set forth in Milcon's second third-party complaint, and dismissing the Queen Grand and Manhattan Beer's cross claim for contractual indemnity, is granted.