Opinion
Index 505762/16
01-09-2022
ANTHONY BONAGURO, Plaintiff, v. OLD FIREHOUSE NO. 4 LLC, MARK SHAFIR, HULK RIGGING & HAULING, INC., ABR MOLDING ANDY LLC, CRANES, INC. and ENTERPRISE ARCHITECTURAL SALES, INC. Defendants. ABR MOLDING ANDY LLC, Third-Party Plaintiff, v. CRANES, INC., Third-Party Defendant. ABR MOLDING ANDY LLC, Second Third-Party Plaintiff, v. NY TEMPERING LLC, Second Third-Party Defendant.
Unpublished Opinion
PRESENT: HON. WAVNY TOUSSANT Justice.
Wavny Toussaint Judge
The following e-filed papers read herein: NYSCEF Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 192-225. 227-254. 266-273
Opposing Affidavits (Affirmations) 275-281.284-285
Affidavits/Affirmations in Reply 256-258. 283. 286-293
Other Papers:
Defendant/third-party plaintiff/second third-party plaintiff ABR Molding Andy LLC (ABR) moves for an order pursuant to CPLR 3212: (1) granting summary judgment dismissing the plaintiff Anthony Bonaguro's complaint; (2) granting summary judgment in ABR's favor on its second third-party complaint against second third-party defendant NY Tempering LLC (NY Tempering); and (3) dismissing NY Tempering's counterclaim for breach of contract as against it (motion sequence 10). NY Tempering cross-moves for an order pursuant to CPLR 3212, granting summary judgment in its favor dismissing ABR's second third-party complaint in its entirety, and granting summary judgment in favor of NY Tempering on its breach of contract counterclaim against ABR (motion sequence 11). Plaintiff cross-moves for an order, pursuant to CPLR 3212, granting partial summary judgment as to liability on his Labor Law § 240 (1) claim against ABR (motion sequence 12).
Factual Background
This action arises out of an incident in which the plaintiff sustained injuries on September 20, 2014, while working at premises located at 113 East 90th Street in New York City (the premises). Defendant Old Fire house No. 4 LLC (Old Firehouse) was the owner of the premises, which was undergoing renovations to convert it from a firehouse to a single-family residential home. Pursuant to a contract dated September 12, 2012, Old Firehouse hired ABR to serve as the general contractor for the renovation project, a part of which included the installation of a glass atrium on the roof. Matthew Baird Architects PLLC (MBA) (not a party herein) was the architect hired for the project. ABR hired various subcontractors including defendant Enterprise Architectural Sales, Inc. (Enterprise) to install the glass for the atrium, as well as defendant Hulk Rigging & Hauling, Inc. (Hulk Rigging) to supply and operate the crane used to transport the glass from the street level to the roof. Hulk Rigging, in turn, rented the mobile crane from third-party defendant Cranes, Inc. (Cranes) to use on the project. On or about May 9, 2014, ABR ordered ten (10) units of tempered, triple laminated glass panels from NY Tempering, which purchased the glass from Avic Sanxin Co., Ltd. (not a party herein). At the time of the accident, the plaintiff was employed by Enterprise. Plaintiff commenced this action seeking to recover for the injuries he allegedly sustained, asserting claims under common-law negligence, Labor Law §§ 200, 240 (1) and 241 (6).
Plaintiff's Examination Before Trial:
During his deposition, plaintiff testified that he was a member of Union Local 580 and had been working for Enterprise for over fifteen (15) years before the date of the accident. Plaintiffs boss at Enterprise was Gary Constant (Constant), and Bruce Edgerton (Edgerton) was the foreman at the site. On the morning of the accident, Edgerton directed the plaintiff to assist in setting and installing the glass panels in the bulkhead steel structure located on the roof of the premises. According to plaintiff, he only received directions from either Edgerton or Constant. The job consisted of lifting glass panels, via a mobile crane, from the street level to the roof where the plaintiff and about five other Enterprise workers were waiting to set/reposition the glass in the bulkhead structure. The crane, which was located at the street level, was operated by a Hulk Rigging employee who communicated, via radio transmission, with another Hulk Rigging employee positioned on the roof. Plaintiff testified that the glass panels were lifted/hoisted individually to the roof using the crane, and that the Hulk Rigging employee on the roof gave directions to the crane operator on how to maneuver the crane to position the glass in a specific area. Once the glass panel was positioned in the area where it was to be installed, the plaintiff and his team would physically reposition and move the glass into place. While it was still attached to the crane rigging, Enterprise's workers used clips to secure the panel to the metal frame in the bulkhead. Enterprise used suction cups, approximately six, to assist in positioning the glass into place. After the glass was secured, it would be detached from the crane rigging. The glass panels, which were supplied by NY Tempering, varied in size, the largest of which measured approximately ten feet by twelve feet. Each panel consisted of three laminated panes of tempered glass.
At some point, one of the glass panels was suspended from the crane and in the process of being moved to the bulkhead for installation. Five of the plaintiffs coworkers held the glass by suction cups that were attached to it. A "stop" command was given by Edgerton to the Hulk Rigging employee positioned on the roof, which was relayed, via radio transmission, to the crane operator at the street level. At that time, plaintiff was walking towards the glass in order to grab hold of one of the suction cups. As he did so, the glass panel swayed horizontally toward him and struck his right shoulder, and then proceeded to hit another glass panel that had already been installed around the perimeter of the bulkhead. The glass panel that had already been installed exploded on impact and immediately delaminated (layers of the glass separated/sheared off), pieces of which fell to the ground on top of the plaintiff. According to plaintiff, the glass was suspended about two feet above the rooftop at the time of the accident. The glass load, with the crane rigging, weighed somewhere between 2000 and 3000 pounds. As a result of these events, plaintiff alleges that he sustained various injuries.
Procedural Arguments to Plaintiff's Cross Motion
As an initial matter, the court rejects ABR's contention that plaintiffs cross motion should be dismissed for failure to attach a complete set of the pleadings, particularly the defendants' answers. Pursuant to CPLR 3212 (b), the failure to annex pleadings to a motion for summary judgment renders it procedurally defective. However, the court has discretion to overlook the defect when the record is "sufficiently complete" and otherwise available to the court and parties on the NYSCEF docket (see Sensible Choice Contracting, LLC v Rodgers, 164 A.D.3d 705, 706-07 [2d Dept 2018]; Wade v Knight Transp., Inc., 151 A.D.3d 1107, 1109 [2d Dept 2017]). Here, the pleadings were electronically filed and available to the court, as well as all parties to this action. Moreover, the court notes that there is no proof that a substantial right was impaired by plaintiffs failure to attach a complete set of the pleadings to his cross motion (see Sensible Choice Contracting, LLC v Rodgers, 164 A.D.3d at 706-07; Washington Realty Owners, LLC v 260 Washington Street, LLC, 105 A.D.3d 675 [1st Dept 2013]).
ABR also argues that plaintiffs cross motion should be denied as procedurally defective because it fails to comply with 22 NYCRR 202.8-b (a) and (c), and 202.8-g. 22 NYCRR 202.8-b provides in pertinent part: '"[u]nless otherwise permitted by the court... affirmations...shall be limited to 7, 000 words each" (22 NYCRR 202.8-b[a]) and "[e]very...affirmation...shall include on a page attached to the end of the applicable document, a certification by the counsel who has filed the document setting forth the number of words in the document and certifying that the document complies with the word count limit" (22 NYCRR 202.8-b [c]). Pursuant to 22 NYCRR 202.8-g, every motion for summary judgment in this state, except in lieu of a complaint pursuant to CPLR 3213, must annex a "separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried" (22 NYCRR 202.8-g [a]). Such numbered paragraphs must specifically cite to evidence separately submitted in support of the motion (id. at [d]). ABR points out that the plaintiff failed to file a "Statement of Material Facts" with his cross motion as required by 22 NYCRR 202.8-g. Instead, plaintiff provides an "Accident History/Statement of Facts" section within his attorney's affirmation in support of his cross motion.
Under the circumstances presented herein, the court finds that the plaintiffs failure to provide statements of material facts and word count certifications is not fatal and may be excused under CPLR 2001 (see Priority 1 Security v Childrens Community Servs. Inc., 2021 WL 4523600, *7 [U] [Sup Ct, New York County 2021]; see generally Crouse Health Sys., Inc. v City of Syracuse, 126 A.D.3d 1336, 1338 [4th Dept 2015]). CPLR 2001 permits a court to excuse defects where "a substantial right of a party is not prejudiced." Here, the court finds that ABR has not been prejudiced by any deficiencies in plaintiffs "Accident History/Statement of Facts" which was included in his attorney's affirmation instead of a
"Statement of Material Facts." Nor has ABR been prejudiced by plaintiff's failure to submit a word count certification. Inasmuch as there is no discernable prejudice to ABR, and in light of this court's preference to decide cases on the merits, plaintiffs cross motion will be considered herein despite these obvious errors. The court now turns to the merits of the parties' respective motion and cross motions.
Discussion
Summary judgment is a drastic remedy and may be granted only when it is clear no triable issue of fact exists (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The moving party is required to make a prima facie showing of entitlement to judgment as a matter of law, and evidence must be tendered in admissible form to demonstrate the absence of any material issues of fact (see Alvarez, 68 N.Y.2d at 324; see also Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). The papers submitted in the context of the summary judgment application are always viewed in the light most favorable to the party opposing the motion (see Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [2d Dept 1990]). If the initial prima facie showing has been met, the burden then shifts to the opposing party to present sufficient evidence to establish the existence of material issues of fact requiring a trial (see CPLR 3212 [b]; see also Alvarez, 68 N.Y.2d at 324; Zuckerman, 49 N.Y.2d at 562). Generally, the party seeking to defeat a motion for summary judgment must tender evidence in opposition in admissible form, and "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." (Zuckerman, 49 N.Y.2d at 562).
Labor Law § 240 (1)In support of its motion, ABR argues that Labor Law § 240 (1) is not applicable as the alleged accident did not involve an elevation-related risk. In this regard, ABR notes that the plaintiff neither fell from a height nor was struck by a falling object. Instead, ABR contends the plaintiff was injured by the horizontal movement of the suspended glass panel which, as plaintiff conceded during his deposition, was only two feet off the roofs surface before it struck the plaintiff and the glass panel that had already been installed in the bulkhead. Under these circumstances, ABR argues there was no significant elevation differential and that the plaintiffs injury did not arise out of the "special hazards" sought to be protected by Labor Law § 240 (1).
ABR further argues that the delamination of the previously installed glass panel, which broke and shattered when struck by the suspended panel, was neither an expected nor foreseeable risk contemplated by the Labor Law. With respect to the suspended glass panel, ABR contends that the evidence in the record supports a finding that plaintiff was in fact afforded proper protection during his work on the premises. In support of this contention, ABR refers to the deposition testimony of Bruce Edgerton, Enterprise's foreman in charge of the glass installation on the date of the accident.
According to Edgerton, to hoist the glass panels to the roof of the premises, Enterprise employees used a nylon strap, a chain fall device, a powered suction cup apparatus that contained six cups with handles, and at least three tag lines that were used when the glass was hoisted from the ground level to the roof (Edgerton tr at 67, 69-72, 79-80). Edgerton explained that the tag lines were used to control the glass load during the hoisting process from the street level to the roof (id. at 79-80). Once the glass was on the roof, the tag lines were removed and suction cups, the handles of which were held by Enterprise's workers, were used to reposition the glass to set it in place in the bulkhead (id. at 79-80). While the suction cups were positioned on the glass, Edgerton gave the command to the Hulk Rigging "radio guy" located on the roof to move the glass up, which he then relayed to the crane operator located on the street level (id. at 37). Approximately six Enterprise workers then began to walk the glass panel (while it was still attached to the suction cups and crane) to the bulkhead for installation. As they approached the location where the glass was to be set, Edgerton testified that he gave the "radio guy" the "stop" command, but the glass continued moving, which is when plaintiffs accident occurred (id. at 37-38, 50).
ABR contends that the foregoing description of how the glass panels were hoisted and installed at the time of the accident demonstrates that the incident was not a consequence of the failure to use, or the inadequacy of, a safety device utilized during the performance of the work. Relying on an expert affidavit by Dennis W. Eckstine, an engineering design professional, ABR posits that the crane used at the time of the accident (a Liebherr LTC mobile hydraulic crane 1055-3.1) was the proper device to be used for the subject work, and that the verbal commands from the roof to the crane operator located at the streel level were adequate for the hoisting load at issue (NYSCEF Doc No. 224, at 18, ¶17).
In his affidavit, Eckstine opines that the glass load at issue was within the rated capacity of the crane, and that proper safety devices were used to afford stability to the load, which was securely rigged to the crane (id. at ¶ 22). He further opines that the use of tag lines while lifting the load to the roof of the premises was proper in order to prevent the glass panel from twisting or spinning, and that additional safety measures were put in place. In this regard, he notes that the suction-cupped handles were applied to the load so that the panel could be directed and controlled by Enterprise's workers (id.). Eckstine opines that the usage of the suction-cupped handles, held and controlled by Enterprise's six workers, were sufficient to secure the load while being moved horizontally for installation (id. at ¶23). Thus, Eckstine suggests that the removal of the tag lines after the glass panel reached the roof was proper and adequate. He concludes, to a reasonable degree of safety and technical certainty, that plaintiff was provided safety devices which afforded reasonable and adequate protection for the type of work being performed at the job site (id. at ¶35).
In opposition to ABR's motion, and in support of his cross motion, plaintiff argues that ABR, as the general contractor that hired Hulk Rigging and coordinated the work at the site, is responsible for the unsafe crane maneuvers during its hoisting of the glass panel. Plaintiff maintains that he is entitled to summary judgment on his Labor Law § 240 (1) claim as he was not afforded adequate protection against the elevation-related risks of being struck by the suspended glass while it was being hoisted by the crane. In support, the plaintiff has submitted an affidavit wherein he avers that while working on a renovation project, a large piece of glass in the process of being hoisted by a crane, struck him and another glass panel, which separated from its housing and fell on top of him, thereby causing him to fall down and sustain various injuries (NYSCEF Doc No. 273, ¶ 5).
Labor Law § 240 (1) "imposes absolute liability on building owners and contractor's whose failure to 'provide proper protection to workers employed on a construction site' proximately causes injury to a worker" (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 7 [2011], quoting Misseritti v Mark IV Constr. Co., 86 N.Y.2d 487, 490 [1995]; see Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513 [1991])). The statute is intended to provide "extraordinary protections [applicable] only to a narrow class of dangers. More specifically, [the statute] relates only to special hazards presenting elevation-related risks" (Nicometi v Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 96-97 [2015] [internal quotation marks, brackets and citations omitted]). "To succeed on a cause of action under Labor Law § 240 (1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiff's injuries" (Roblero v Bais Ruchel High Sch., Inc., 175 A.D.3d 1446, 1447 [2d Dept 2019]). "Labor Law § 240 (1) is implicated where protective devices prove inadequate to shelter the injured worker from harm directly flowing from the application of the force of gravity to an object or person" {Brown v VJB Constr. Corp., 50 A.D.3d 373, 376 [1st Dept 2008], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993] [emphasis supplied]). Furthermore, summary judgment on a Labor Law § 240 (1) claim should be denied where it cannot be determined whether the proximate cause of plaintiffs injuries was a result of the lack of safety devices of the kind required pursuant to Labor Law § 240 (1) (see Rodriguez v DRLD Development Corp., 109 A.D.3d 409, 410 [1st Dept 2013]).
Here, contrary to ABR's contention, the court finds that the plaintiffs injuries were the result of an elevation differential within the scope of Labor Law § 240 (1). Labor Law § 240 (1) liability does not depend on the existence of a height differential between the injured party and the object but whether "the injured worker's task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against" (Salazar v Novalex Contracting Corp., 18 N.Y.3d 134, 139 [2011]; see Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 604 [2009]). In Wilinski v 334 East 92nd Housing Development Fund Corp. (18 N.Y.3d 1), the Court of Appeals rejected the '"same level' rule" and held "that [a] plaintiff is not precluded from recovery under section 240 (1) simply because he and the [object] that struck him were on the same level" (id. at 10). The Court reiterated the applicable rule in Labor Law § 240 (1), stating:
'"[T]he dispositive inquiry ... does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential "' (id., quoting Runner v New York Stock Exch., Inc., 13 N.Y.3d at 603).In determining whether an elevation differential is "physically significant" versus "de minimis," the Court instructed that "the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent," must be taken into account (Runner v New York Stock Exch., Inc., 13 N.Y.3d at 605; see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d at 10; Harris v City of New York, 83 A.D.3d 104, 110 [1st Dept 2011]).
Here, although the glass panel was only suspended about two feet above the roof surface, and it swayed horizontally when it struck the plaintiff, given the combined weight of the crane's rigging and the glass load (approximately 2000 to 3000 pounds) and the force it was able to generate when it swung, this difference was not de minimis (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d at 10; DiPalma v State of New York, 90 A.D.3d 1659, 1660 [2d Dept 2011]; Pritchard v Tully Constr. Co., Inc., 82 A.D.3d 730, 730-731 [2d Dept 2011]; Gutman v City of New York, 78 A.D.3d 886, 886-887 [2d Dept 2010] [where rail at issue fell only 12 to 16 inches before landing on plaintiffs leg, the elevation differential was not de minimis, particularly given the weight of the object and the amount of force it was capable of generating]). Thus, the plaintiff suffered harm that '"flow[ed] directly from the application of the force of gravity to the [glass load]'" (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d at 10, quoting Runner v New York Stock Exch., Inc., 13 N.Y.3d at 604; Harris v City of New York, 83 A.D.3d 104 [1st Dept 2011] [Section 240 (1) applicable where plaintiff was injured when a 10-foot-by-20-foot slab of concrete and steel, weighing approximately one ton, was being lowered a distance of 3 to 4 feet, when it descended too quickly, shattering the wedge of lumber upon which plaintiff stood causing plaintiff to fall]). The court notes that the cases upon which ABR relies in support of its contention that the plaintiffs accident did not involve an elevated-related risk all predate the Court of Appeals decisions in both Runner and Wilinski.
Although the court finds that Labor Law § 240 (1) is applicable to these facts, triable issues of fact preclude summary judgment in either parties' favor. In this regard, the court notes that there are varying accounts of what caused the suspended glass panel to sway toward the plaintiff striking him and another panel. There is deposition testimony that a breeze or a gust of wind precipitated the glass tilting and moving toward the bulkhead (Shafir tr at 20, 29, lines 8-17). There is also testimony that the accident can be attributed to a delay in Hulk Rigging's radio communications to the crane operator (Edgerton tr at 45). In addition, the court finds that ABR's expert's affidavit raised issues of fact as to whether the safety devices provided to the plaintiff afforded him proper protection under the circumstances herein and whether other devices could have been provided (see Delahaye v Saint Anns School, 40 A.D.3d 679, 682-683 [2d Dept 2007] ["generally, the issue of whether a particular safety device provided proper protection is a question of fact for the jury"]; Kumar v Stahlunt Associates, LLC, 3 A.D.3d 330 [1st Dept 2004] [record raised issues of fact as to whether the safety device provided afforded proper protection]; Ruccolo v City of New York, 278 A.D.2d 472, 473 [2d Dept 2000] [question of fact exists as to whether the ladder in question provided proper protection]; see also Morera v New York City Transit Auth, 182 A.D.3d 509, 510 [1st Dept 2020] [plaintiffs motion for partial summary judgment on his Labor Law § 240 (1) claim denied where issue of fact was raised as to whether other adequate devices could have been provided]). Accordingly, in light of the forgoing issues of fact, plaintiffs cross motion for partial summary judgment as to liability on his Labor Law § 240 (1) claim is denied, and that branch of ABR's motion for summary judgment dismissing said claim is also denied.
Labor Law §241 (6)Generally, Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers without regard to direction and control (see Romero v. J & S Simcha, Inc., 39 A.D.3d 838 [2d Dept 2007]). In order to prevail under this section of the Labor Law, a plaintiff must establish that specific safety rules and regulations of the Industrial Code promulgated by the Commissioner of the Department of Labor were violated (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 [1993]). The rule or regulation alleged to have been breached must be a specific, positive command and be applicable to the facts of the case (see Kwang Ho Kim v D & W Shin Realty Corp., 47 A.D.3d 616, 619 [2d Dept 2008]; Jicheng Liu v Sanford Tower Condominium, Inc., 35 A.D.3d 378, 379 [2d Dept 2006]).
Here, plaintiffs verified bill of particulars alleges that the defendants violated various Industrial Code sections including 12 NYCRR 23-1.5 (a)-(c); 23-1.6; 23-1.7(b); 23-1.24; 23-6; 23-8 and 23-9 and, as a result, are liable under Labor Law § 241 (6). In support of its motion, ABR, relying on its expert affidavit by Dennis W. Eckstine, argues that the Industrial Code sections relied upon do not support plaintiffs Labor Law § 241 (6) claim as they are either too general or not applicable to the facts herein. In his opposition papers, the plaintiff relies solely on alleged violations of sections 23-8.1 (a) and 23-8.1 (e) (1) and is silent as to the remaining code provisions. Since the plaintiff has failed to oppose ABR's motion for summary judgment as to the remaining alleged Industrial Code violations, his reliance upon same in support of his Labor Law § 241 (6) claim is deemed abandoned (see Harsch v City of New York, 78 A.D.3d 781, 783 [2d Dept 2010] [plaintiff deemed to have abandoned his reliance on provisions of the Industrial Code where he failed to address them in his brief]; Genovese v Gambino, 309 A.D.2d 832, 833 [2d Dept 2003]; see also Palomeque v Capital Improvement Services, LLC, 145 A.D.3d 912, 914 [2 Dept, 2016]; Kempisty v 246 Spring St., LLC, 92 A.D.3d 474, 475 ["Where a defendant so moves, it is appropriate to find that a plaintiff who fails to respond to allegations that a certain section is inapplicable or was not violated be deemed to abandon reliance on that particular Industrial Code section"]). Accordingly, that branch of ABR's motion seeking to dismiss plaintiffs Labor Law § 241 (6) claim insofar as based upon Industrial Code provisions 23-1.5 (a)-(c), 23-1.6, 23-1.7, 23-1.7 (b), 23-1.24, 23-6, 23-8.1(b)-(d), (f), 23-8.2, 23-8.3, 23-8.4 and 23-9 is granted.
Although the plaintiff specified a violation of sections 23-8.1 (a) and 23-8.1 (e) (1) for the first time in opposition to ABR's motion, this was not fatal to his claim as no new factual allegations were involved, no new theories of liability were set forth, and no prejudice was caused to ABR (see Ramirez v Metro. Transp. Auth, 106 A.D.3d 799, 800-01 [2d Dept 2013]; Kowalik v Lipschutz, 81 A.D.3d 782, 783 [2d Dept 2011]; see also Doto v Astoria Energy II, LLC, 129 A.D.3d 660, 664 [2d Dept 2015]; Kelleir v Supreme Indus. Park, LLC, 293 A.D.2d 513, 514 [2d Dept 2002]).
As to section 23-8.1 (a), ABR correctly points out that this provision cannot support a Labor Law § 241 (6) claim as it merely states a general safety requirement concerning crane stability (see generally, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494). Accordingly, that branch of ABR's motion seeking to dismiss plaintiffs Labor Law § 241 (6) claim to the extent it is based upon section 23-8.1 (a) is granted.
Next, plaintiff alleges that ABR violated Industrial Code section 23-8.1 (e) (1), entitled "Load Handling," which states that "[m]obile cranes ... shall not be loaded beyond their rated capacities." Relying on the expert affidavit of Robert L. Flynn, plaintiff contends that the subject crane became "loaded beyond" its rated capacity when a gust of wind caused the glass panel suspended from the crane to move horizontally during a "stop" command, thereby resulting in his injuries. Specifically, Flynn opines that the "wind gust speeds" on the date of the incident were between 21-26 mph based on the Compu Weather report for the date of the accident and, therefore, exceeded "by a significant margin the maximum permissible wind gust speeds" for the crane.
In response, ABR merely points to gaps in the plaintiffs proof, specifically that plaintiffs expert's affidavit is conclusory and unsupported, rather than affirmatively establishing that section 23-8.1 (e) (1) is not applicable to the facts herein, or that a violation of the regulation was not a proximate cause of the plaintiffs injuries (see Simmons v City of New York, 165 A.D.3d 725, 729 [2d Dept 2018]; Przyborowski v A & M Cook, LLC, 120 A.D.3d 651, 654 [2d Dept 2014]) Contrary to ABR's contention, the affidavit of its own expert, Eckstine, was insufficient to meet its burden of establishing that section 23-8.1 (e) (1) cannot serve as a predicate for plaintiffs Labor Law 241 § (6) claim. In his affidavit, Eckstine summarily opines that section 23-8.1 (e) "is inapplicable based on the facts and documents reviewed herein, and therefore, not a basis for New York Labor Law § 241 (6) cause of action." (NYSCEF Doc No. 224, at pg 10, f 38). His opinion, which is conclusory and unsupported, is insufficient to establish prima facie entitlement to judgment as a matter of law in ABR's favor as to this regulation (see Rabon-Willimack v Robert Mondavi Corp., 11 A.D.3d 1007, 1009 [2d Dept 2010]). Accordingly, that branch of ABR's motion seeking to dismiss plaintiffs Labor Law § 241 (6) claim as based upon 23-8.1 (e) (1) is denied (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
Labor Law § 200 and Common-Law Negligence
Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502 [1993]). "To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have 'authority to exercise supervision and control over the work'" (Rojas v Schwartz, 74 A.D.3d 1046 [2d Dept 2010] quoting Gallello v MARJ Distribs., Inc., 50 A.D.3d 734, 735 [2008]; see Chowdhury v Rodriguez, 57 A.D.3d 121, 127-128 [2d Dept 2008]). General supervisory authority to oversee the progress of the work is insufficient to impose liability (see LaRosa v Internap Network Servs. Corp., 83 A.D.3d 905, 909 [2d Dept 2011]; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 505). '"A defendant has the authority to control the work for the purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed'" (Sullivan v New York Athletic Club, 162 A.D.3d 955, 958 [2d Dept 2018] quoting Erickson v Cross Ready Mix, Inc., 75 A.D.3d 519, 522 [2d Dept 2010]). If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercises no supervisory control over the work, no liability attaches under Labor Law § 200 or the common-law (see LaRosa v Internap Network Servs. Corp., 83 A.D.3d at 909; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 505).
Where a plaintiffs injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 if it '"either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'" (Rojas v Schwartz, 74 A.D.3d at 1047, quoting Ortega v Puccia, 57 A.D.3d at 61). When an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards (see Reyes v Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 52 [2d Dept 2011]). Thus, a defendant moving for summary judgment in such a case may prevail "only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiffs accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard" (id).
Here, plaintiff alleges that ABR was negligent in causing, allowing, and/or permitting him to work with inadequate safety equipment (crane), and in failing to keep the premises in a reasonably safe condition (defective glass) (see NYSCEF Doc No. 197, ¶ 6 [Plaintiffs Bill of Particulars]). Since plaintiff alleges that his injuries arose out of the manner in which the work was performed and from a dangerous condition on the premises, ABR must address the proof applicable to both liability standards in order to establish its prima facie entitlement to judgment as a matter of law.
The court finds that ABR has established, prima facie, that it lacked the authority to supervise or control the means and methods of the plaintiff's work pertaining to the installation of the glass (see Chowdhury v Rodriguez, 57 A.D.3d 121, 132 [2008]). In support of its motion, ABR has presented the deposition testimony of its project manager, Lukasz Skoczek, who testified that ABR hired Enterprise to install the glass panels for the atrium, as well as Hulk Rigging to provide the crane to hoist the glass to the roof (Skoczek tr at 15). Although ABR met with Enterprise to explain the scope of work and where the glass was to be installed, Skoczek testified that ABR never provided any direction to Enterprise or Hulk Rigging on how to perform their respective work (id. at 45-46). He further testified that on the day of the accident, Enterprise directed Hulk Rigging on where to place the glass (id. at 44). In addition, Enterprise's foreman, Edgerton, testified that he never received any directions from anyone related to the glass installation other than the owners of Enterprise (Edgerton tr at 15). Furthermore, the plaintiff testified during his deposition that he only received instructions from Enterprise personnel, his boss, Constant, and his foreman, Edgerton (Bonaguro tr at 25, 115).
In opposition, the plaintiff has failed to raise a triable issue of fact. Contrary to plaintiffs assertion, the fact that ABR hired Hulk Rigging and Enterprise to install the glass, or that it coordinated and scheduled the work to be performed at the site, is insufficient to impose liability for common-law negligence and under Labor Law § 200 (see Ortega v Puccia, 57 A.D.3d at 62; Dos Santos v STV Engrs., Inc., 8 A.D.3d 223, 224 [2d Dept 2004]; Geonie v OD & P NY Ltd., 50 A.D.3d 444, 445 [1st Dept 2008][evidence that general contractor's project superintendent coordinated work of trades, conducted weekly safety meetings with subcontractors and conducted regular walk-throughs was insufficient to raise triable fact issue as to whether contractor exercised the requisite degree of supervision and control over the work]). Nor can ABR be held liable for Labor Law § 200 and common-law negligence because it uncrated the glass panels when they were delivered to the site. There is no evidence that ABR had any supervisory control over the means or methods of the hoisting or installation of the glass panels for the atrium (Sullivan v New York Athletic Club, 162 A.D.3d at 958; Wein v E. Side 11th & 28th, LLC, 186 A.D.3d 1579, 1582 [2d Dept 2020] [contractor's general supervisory authority at the job site held insufficient to impose liability under section 200 of the Labor Law]).
ABR has also established, prima facie, that it did not create or have actual or constructive notice of the alleged dangerous condition(s) which caused the plaintiff's injuries (see Chowdhury v Rodriguez, 57 A.D.3d 121, 128 [2d Dept2008]). It is undisputed that the already installed glass panels that delaminated and fell on plaintiff were not created (i.e., fabricated) by ABR. Instead, said glass was manufactured, laminated, and tempered by Avic Sanxin and supplied by NY Tempering. In his affidavit, Skoczek (ABR's project manager) attests that he was present when the glass panels were delivered to the premises and uncrated, and that "there was nothing to suggest that any of the units of glass were defectively fabricated by the manufacturer or that the lamination of any glass layer would fail" (NYSCEF Doc No. 225, at pg 2, ¶ 6). In opposition, the plaintiff has failed to raise an issue of fact as to whether ABR had constructive or actual notice of the alleged defective condition of either the crane or the glass panels. Based upon the foregoing, that branch of ABR's motion seeking to dismiss plaintiffs Labor Law § 200 and common-law negligence claims as against it is granted.
ABR's Second Third-Party Claims Against NY Tempering
ABR seeks a conditional order of summary judgment on its second third-party claims against NY Tempering for contribution and/or common-law indemnification. NY Tempering opposes and cross-moves for summary judgment dismissing said claims.
In support of its motion, ABR argues that in the event it is found liable under the Labor Law, it is entitled to contribution and/or common-law indemnification from NY Tempering since it was the supplier of the alleged defective glass that delaminated and fell on plaintiff. ABR submits a report prepared by Axis Facades USA LLC, a consultant hired by MBA, the project's architect, which had a representative onsite on the date of the accident overseeing the installation of the glass panels ("the Axis report") (NYSCEF Doc No. 216). The Axis report states, in pertinent part, that "[i]t is [Axis Facades's] opinion that the catastrophic failure of the laminated glass is likely attributable to the improper laminating processes utilized by the fabricator." ABR also submits a report by Simpson, Gumpertz & Heger ("SGH"), an engineering company hired by MBA to determine why the glass panel delaminated ("the Simpson report") (NYSCEF Doc No. 217). The Simpson report indicates that SGH reviewed the broken glass at the accident location on September 23, 2014, three days after the accident occurred, and states as follows:
"Based on the information available to us, it is possible that the manufacturer may have not used appropriate temperature, pressure, or duration in the autoclave during the lamination process, and as such the SentryGlas was not strong enough to hold the weight of the glass post-breakage" (NYSCEF Doc No. 252).Based upon the foregoing, ABR maintains that the glass panel that delaminated was defective and that NY Tempering, as the supplier of the glass, created the dangerous condition which caused plaintiffs injuries.
In opposition to ABR's motion, and in support of its cross motion, NY Tempering contends that neither the plaintiff nor ABR has established that the subject glass panels were defective as a result of either a manufacturing flaw, improper design, or a failure to provide adequate warnings. It maintains that Avic Sanxin manufactured, fabricated, and laminated the glass pursuant to the drawings and specifications provided by MBA. NY Tempering relies upon the affidavit of its President, Haidong Weng, wherein he avers that the glass passed all safety tests, including temperature test, pressure test and duration test before it was shipped from China to the United States (NYSCEF Doc No. 253, ¶ 8). Furthermore, NY Tempering notes that after the glass was manufactured and laminated by Avic Sanxin, ABR's employees went to China to assist with the inspection of the subject glass panels and that no defects or unreasonably dangerous conditions were discovered (id. at ¶10). In addition, NY Tempering notes that two panels of glass had already been installed in the bulkhead without any issue before the incident happened.
NY Tempering further argues that both the Simpson report and the Axis report are baseless and should be disregarded by the court. In this regard, it points out that neither report conducted any tests of the subject glass to determine the cause of the delamination and/or its failure. NY Tempering further notes that in its report, SGH stated that it was not aware of any testing available to determine the cause of the glass' failure conclusively. In addition, the Axis report noted that the cause of the delamination was unknown. Thus, NY Tempering argues that the opinions set forth in both reports ~ that the subject glass underwent an improper lamination process ~ are purely speculative as they fail to cite to any regulations or data in support of their respective conclusions.
NY Tempering further contends that it has been deprived of its opportunity to inspect and test the subject glass so as to defeat the conclusory opinions from SGH and Axis regarding the improper laminating process. In this regard, it contends that plaintiff and ABR intentionally or negligently disposed of the subject glass sample before NY Tempering had an opportunity to inspect and test it. Even if it were determined that the glass panels were defective, NY Tempering contends that the faulty operation of the crane, which caused the suspended panel to strike plaintiff and the previously installed panels, was the cause of plaintiff s accident. It further contends that the plaintiff was not using the subject glass for its intended purpose but was in the process of installing another glass panel. It therefore argues that strict products liability does not apply to the instant action as the plaintiffs alleged injury did not result from his actual use of the subject glass.
As to contribution, NY Tempering argues that said claim should also be dismissed because it owed no duty to the plaintiff. In this regard, it argues that it was not the service provider, but the middle supplier of the glass to ABR. As such, NY Tempering contends it cannot be said to have assumed a duty of care, and thus cannot be potentially liable in tort to the plaintiff. It further contends that it had no duty to maintain the premises at all.
In reply, ABR argues that the subject glass was "not reasonably safe" as it splintered and a layer of the glass delaminated, sheared off, and fell onto the plaintiff. ABR argues that the delamination of the glass which was between 8 and 12 feet in size was certainly not the "intended purpose" of the glass when it was introduced into the stream of commerce and installed at the premises. It further points to the deposition testimony of NY Tempering's President, Weng, who stated that in all his years' experience working in the glass processing industry, he had "never" heard of or seen a laminated glass panel delaminate in the way it did on the date of the incident (Weng tr at 61, lines 6-10). Citing the Stimpson and Axis reports, ABR reiterates its position that NY Tempering supplied defective glass, making it partially at fault in the happening of the accident.
"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" (Perri v Gilbert Johnson Enters., Ltd., 14 A.D.3d 681, 684-685 [2d Dept 2005], quoting Correia v Professional Data Mgt., 259 A.D.2d 60, 65 [1st Dept 1999]; "Where a defendant's alleged liability is purely statutory and vicarious, conditional summary judgment in that defendant's favor on the basis of common-law indemnification is premature absent proof, as a matter of law, that [the party from whom indemnification is sought] was negligent or had authority to direct, supervise, and control the work giving rise to the plaintiff's injury" (Shaughnessy, 147 A.D.3d at 999 [internal quotation marks omitted]).
ABR maintains that NY Tempering is at fault in suppling defective glass panels. A party injured as a result of a defective product may seek relief against the product manufacturer or others in the chain of distribution if the defect was a substantial factor in causing the injury (see Speller v Sears, Roebuck & Co., 100 N.Y.2d 38, 41 [2003]; Codling v Paglia, 32 N.Y.2d 330, 342 [1973]). A product may be defective because of a mistake in the manufacturing process resulting in a manufacturing flaw, because of an improper, defective design, or because the manufacturer failed to provide adequate warnings regarding the use of the product (see Liriano v Hobart Corp., 92 N.Y.2d 232, 237 [1998]; Voss v Black & Decker Mfg. Co., 59 N.Y.2d 102, 106-107 [1983]).
Here, while it is clear from this record that ABR's liability, if any, is purely vicarious pursuant to the Labor Law, ABR has failed to establish, as a matter of law, that the glass panels that delaminated were defectively manufactured and/or fabricated. Both the Axis and Simpson reports lack probative value as neither is supported by foundational facts, such as the results of actual testing of the glass panels, empirical data or deviations from relevant industry standards regarding the lamination process (see Diaz v New York Downtown Hosp., 99 N.Y.2d 542, 544 [2002]; see also Augustine v City of New York, 188 A.D.3d 969, 973 [2d Dept 2020]). Indeed, neither report contained explanations as to how their conclusions were reached regarding the cause for the glass panel's failure/delamination.
In addition, NY Tempering has likewise failed to proffer sufficient evidence in admissible form establishing that the glass was not defectively manufactured and/or fabricated. Weng's conclusory statements in his affidavit that the glass "passed all safety tests including temperature test, pressure test and duration test" (NYSCEF Doc No. 253, at pg 3, ¶ 8) is insufficient to affirmatively demonstrate, prima facie, that the glass was not defective (see Morales v City of New York, 193 A.D.3d 923, 926 [2d Dept 2021]; Cecere v Zep Mfg. Co., 116 A.D.3d 901, 902 [2d Dept 2014). NY Tempering failed to proffer an expert affidavit, for example, detailing the results of the tests performed, an explanation of the specifications to which the glass was manufactured and fabricated, or a discussion detailing compliance with the relevant industry standards regarding the laminating process. Thus, neither party is entitled to summary judgment on the common-law indemnification claim as the culpability of NY Tempering, if any, has not yet been established (see Allan v DHL Express [USA], Inc., 99 A.D.3d 828, 833 [2d Dept 2012]; Markey v C.F.M.M. Owners Corp., 51 A.D.3d 734, 738 [2d Dept 2008]).
Summary judgment is also denied as to ABR's contribution claim against NY Tempering. "Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person [internal quotation marks and citations omitted]" (Godoy v Abamaster of Miami, Inc., 302 A.D.2d 57, 61 [2d Dept 2003]). Contrary to NY Tempering's contention, a right of apportionment may arise even if the contributing party owed no duty directly to the injured party. The breach of a duty running from the contributor to the defendant who has been held liable can trigger a right to contribution (see Raquet v Braun, 90 N.Y.2d 177, 182 [1997]; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 N.Y.2d 599, 603 [1988]). Moreover, the critical requirement for apportionment by contribution is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought (see DiMarco v New York City Health & Hosps. Corp., 187 A.D.2d 479, 480 [2d Dept 1992]; see also Raquet v Braun, 90 N.Y.2d at 182).
Here, it is alleged that defective glass supplied by NY Tempering to ABR played a role in causing and/or augmenting the plaintiffs injuries for which contribution is sought. However, as noted above, since issues of fact exist as to NY Tempering's fault, if any, in the happening of the accident, summary judgment in either party's favor on this claim is precluded at this stage.
NY Tempering's Breach of Contract Counterclaim Against ABR
In its answer to ABR's second third-party complaint, NY Tempering asserted a breach of contract counterclaim alleging that ABR failed to pay the "full amount of contract price" to NY Tempering after the ten units of glass were delivered to the premises. In support, NY Tempering submits the affidavit of its President, Haidong Weng (NYSCEF Doc No. 253). Weng attests that on or about May 9, 2014, NY Tempering and ABR entered into a contract whereby the latter agreed to purchase ten units of tempered, triple laminated glass for a total sum of $110,000.00. He further attests that ABR tendered $50,000.00 as a deposit for the glass, but never paid the remaining balance of $60,000.00. A copy of the signed contract/invoice, which is annexed as an exhibit to NY Tempering's cross motion, sets forth the $110,000.00 total contract price, that $50,000.00 was paid as a deposit, and that $60,000.00 was the remaining balance as of the date of the document (May 9, 2014) (NSYCEF Doc No. 248). According to Weng, the glass was manufactured, laminated and fabricated by Avic Sanxin in accordance with the specifications and shop drawings of the architect on the project, MBA, and had passed all safety tests before being delivered to ABR. Based upon the foregoing, NY Tempering maintains it tendered the glass to ABR in accordance with the contract terms, and that ABR failed to pay the remaining balance of $60,000.00 and is therefore in breach of the agreement.
In opposition, ABR argues that NY Tempering has failed to make a prima facie showing that it failed to pay for the goods sold pursuant to the parties' contract. In this regard, ABR contends that NY Tempering has failed to submit documentary evidence establishing that it failed to pay the $60,000.00 balance. In addition, ABR points to Weng's deposition testimony wherein he testified that he did not remember the amount that ABR owed to NY Tempering for the glass panels at issue (Weng tr at 67). ABR maintains that it paid NY Tempering with a check as final payment for the contracted glass. In support of this contention, it submits the affidavit of Lukasz Skoczek, an ABR project manager at the site (NYSCEF Doc No. 225 at ¶¶ 3-5). Skoczek concedes that ABR entered into the contract for the sale of ten glass panels for $110,000.00 and that ABR paid a deposit of $50,000 at that time. However, he avers that on September 16, 2014, ABR made a final payment to NY Tempering in the form of a check for $3,366.00 in connection with the glass, and that NY Tempering never sought additional monies, or claimed that the full payment had not been made. ABR submits a copy of the check which bears the notation "final pay" in the memo portion of the check (NYSCEF Doc No. 225, at pg 3). ABR contends that since NY Tempering never sent it any notices, correspondence, additional invoices, or requests for payment seeking amounts allegedly due and owing, its breach of contract claim must be dismissed.
In response, NY Tempering submits a reply affidavit from Weng wherein he attests that the "final pay" check was not related to the glass contract but was ABR's payment for the suction cups with DHL's express fee, which were ordered by ABR in or about August 2014. NY Tempering has attached as an exhibit a copy of its invoice, dated September 6, 2014, that was issued to ABR for the suction cups DHL express fee (NYSCEF Doc No. 292). It has also submitted a copy of DHL's invoice for its express fee (NYSCEF Doc No. 293). Weng attests that DHL's express fee had nothing to do with the contract made between NY Tempering and ABR for the tempered, laminated glass. As such, NY Tempering argues that the $60,000.00 balance for the glass remains due and outstanding, thereby establishing that ABR breached the contract.
The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiffs performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach (see All. Nat. Ins. Co. v Absolut Facilities Mgmt., LLC, 140 A.D.3d 810 [2d Dept 2016]; Legum v Russo, 133 A.D.3d 638, 639 [2d Dept 2015]).
Here, the court finds that NY Tempering has made a prima facie showing of its breach of contract cause of action against ABR. NY Tempering has tendered sufficient evidence including a copy of the signed contract/invoice as well as the affidavit of Weng, NY Tempering's President who has personal knowledge of the relevant facts that it sold and delivered the laminated glass panels to ABR for the total amount of $110,000.00, which ABR accepted but did not pay the full contracted price.
However, an issue of fact has been raised as to whether ABR's check for $3,366.00 with the notation "final pay" constituted full payment for the glass panels at issue. "As a general rule, acceptance of a check in full settlement of a disputed unliquidated claim operates as an accord and satisfaction discharging the claim" (Merrill Lynch Realty/Carll Burr, Inc. v. Skinner, 63 N.Y.2d 590, 596 [1984]; Huimin Sun v Cai, 146 A.D.3d 760, 762 [2d Dept 2017]). The essential elements of accord and satisfaction are a dispute as to the amount due and a knowing acceptance by the creditor of a lesser amount (see, Horn Waterproofing Corp. v Bushwicklron & Steel Co., 66 N.Y.2d 321, 323 [1985]; Schuttinger v Woodruff, 259 NY 212, 216 [1932]; see also Pothos v Arverne Houses, 269 A.D.2d 377, 378 [2d Dept. 2000]). A genuine dispute requires that the debtor give notice of the dispute prior to tendering a partial payment in full satisfaction (Trans World Grocers Inc. v Sultana Crackers Inc., 257 A.D.2d 616, 617 [2d Dept 1999]).
Based upon a review of the record, it is unclear whether there was an existing dispute between the parties regarding the amount ABR owed for the glass at the time it tendered the check for $3,366.00 to NY Tempering. Moreover, an issue of fact exists as to whether NY Tempering was aware that the check constituted a final payment for the glass, as opposed to a payment toward DHL's express fee for the suction cups (see Profex, Inc. v Town of Fishkill, 65 A.D.3d 678, [2d Dept 2009]). Thus, it cannot be determined, as a matter of law, that ABR's "final pay" check unequivocally acted as a discharge of the alleged outstanding balance owed to NY Tempering for the glass (see Grandell Rehab. & Nursing Ctr., Inc. v Serby, 21 A.D.3d 346, 347 [2d Dept 2005]; Pepe v Tannenbaum, 279 A.D.2d 620 [2d Dept 2001] [defendants failed to establish that a check they issued to the plaintiff constituted an accord and satisfaction barring the action]). Accordingly, that branch of ABR's motion seeking summary judgment dismissing NY Tempering's breach of contract counterclaim as against it is denied, and that branch of NY Tempering's cross motion seeking summary judgment in its favor on said claim is also denied.
Conclusion
Accordingly, it is hereby
ORDERED that the branch of ABR's motion (motion seq. no. 10) for summary judgment dismissing plaintiffs Labor Law § 200 and common-law negligence claims as against it is granted; and it is further
ORDERED that the branch of ABR's motion seeking to dismiss plaintiffs Labor Law § 241 (6) claim is granted, except as to the claim predicated upon Industrial Code section 23-8.1 (e) (1); and it is further
ORDERED those the branches of ABR's motion seeking to dismiss plaintiffs Labor Law § 240 (1) claim and NY Tempering's breach of contract counterclaim against it are denied; and it is further
ORDERED that the branch of ABR's motion for a conditional order of summary judgment on its common-law indemnity and contribution second third-party claims against NY Tempering is denied; and it is further
ORDERED that NY Tempering's cross motion (motion seq. no 11) is denied in its entirety; and it is further
ORDERED that plaintiffs cross motion (motion seq. no. 12) for partial summary judgment in his favor on his Labor Law § 240 (1) claim is denied; and it is further
ORDERED that all relief not specifically addressed herein is denied.
The forgoing constitutes the decision and order of the court.