Opinion
Index No. 618481/2016 Mot. Seq. Nos. 003 MotD 004 XmotD 005 XMD
07-20-2021
BRIDGE ITE BRERETON, Plaintiff, v. QUEENS BALLPARK COMPANY, LLC, INSOMNIAC HOLDPNGS, LLC, FOUR AND TWENTY LLC, d/b/a BML-BLACKBIRD THEATRICAL SERVICES INC., BML-BLACKBIRD INC., and DIVERSIFIED PRODUCTION SERVICES LLC, Defendants.
PALERMO LAW, P.L.L.C . Attorney for Plaintiff LESTER SCI IWAB KATZ & DWYER, LLP Attorney for Defendants Queens Ballpark Company, LLC, Insomniac Holdings, LLC, Four and Twenty LLC, and BML-Blackbird Inc. LAW OFFICE OF VICTORIA A. TUROHETTI Attorney for Defendant Diversified Production Services LLC
Unpublished Opinion
Motion Date 1/7/21 (003), 2/11/21 (004, 005)
Adj. Date 4/15/21
PALERMO LAW, P.L.L.C . Attorney for Plaintiff
LESTER SCI IWAB KATZ & DWYER, LLP Attorney for Defendants Queens Ballpark Company, LLC, Insomniac Holdings, LLC, Four and Twenty LLC, and BML-Blackbird Inc.
LAW OFFICE OF VICTORIA A. TUROHETTI Attorney for Defendant Diversified Production Services LLC
PRESENT: Hon. GEORGE M. NOLAN, Justice of the Supreme Court
HON. GEORGE M. NOLAN, JUSTICE
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers filed by defendants Queens Ballpark Company, LLC, Insomniac Holdings. LLC, hour and Twenty LLC, d/b/a_BML,-Blackbird Theatrical Services, LLC, and BML-Blackbird Inc., on December 14, 2020; Notice of Cross Motion and supporting papers filed by defendant Diversified Production Services LLC, on January 15, 2021; filed by plaintiff, on January 28, 2021; Answering Affidavits and supporting papers filed by defendant Diversified Production Services LLC, on April 8, 2021: Replying Affidavits and supporting papers filed by defendants Queens Ballpark Company, LLC, Insomniac Holdings. LLC. Four and Twenty LLC, d/b/a BML-Blackbird Theatrical Services, LLC, and BML-Blackbird Inc., on April 8, 2021; filed by defendants Queens Ballpark Company. LLC. Insomniac Holdings. LLC. Four and Twenty LLC, d/b/a BML-Blackbird Theatrical Services. LLC, and BML-Blackbird Inc., on April 8, 2021: filed by defendant Diversified Production Services LLC, on April 3, 2021 filed by plaintiff, on April 13, 2021; Other ___; it is
ORDERED that the motion by defendants Queens Ballpark Company, LLC, Insomniac Holdings, LLC, Four and Twenty LLC, and BML-Blackbird Inc. for summary judgment dismissing the complaint and cross claims against them is granted to the extent set forth herein, and is otherwise denied; and it is further
ORDERED that the cross motion by defendant Diversified Production Services LLC for summary judgment dismissing the complaint and cross claims against it is granted to the extent set forth herein, and is otherwise denied; and it is further
ORDERED thai the cross motion by plaintiff Bridgette Brereton for summary judgment in her favor on the issue of defendants' liability on her claim under Labor Law § 240 (1) is denied.
Plaintiff Bridgette Brereton commenced this action to recover damages for personal injuries she allegedly sustained during her employ for nonparty 360 Productions on May 16. 2016. at a parkins? lot located at the premises known as Citi Field, located in Flushing, New York. The accident allegedly occurred when plaintiff was struck by three steel trusses during the takedown of light structures and apparatus from a prior event known m Electric Daisy Carnival ("EDC"). Defendants Queens Ballpark Company, LLC ("QBC") allegedly leased certain parking lots of Citi Field to defendant Insomniac Holdings,' LLC ("Insomniac") to host EDC. Insomniac allegedly subcontracted with defendants Four and Twenty LLC, d/b/a BML-Blackbird Theatrical Services, LLC ("Four and Twenty"), BML-BlackBird Inc. ("BML-Blackbird"), Diversified Production Services LLC ("DPS"), and nonparty 360 Productions to perform certain services at the worksite. Plaintiff asserts claims against defendants for common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6).
QBC, Insomniac. Four and Twenty, and BML-Blackbird now move for summary judgment dismissing the complaint and cross claims against them. They argue, among other things, that plaintiffs common-law negligence and Labor Law § 200 causes of action against them must be dismissed, since plaintiff is unable to identify the cause of her accident without engaging in speculation, and that they did not exercise the requisite authority to supervise or control her work. QBC, Insomniac, Four and Twenty, and BML-Blackbird also argue that they cannot be held liable pursuant to Labor Law § 240 (1), since plaintiffs accident was not height- or elevation-related, and that no safety devices would have prevented it. As to plaintiffs claims under Labor Law § 241 (6), they argue that the provisions relied upon to support her cause of action either lack the specificity required to qualify as a predicate for liability, or are inapplicable to this action. QBC, Insomniac, Four and Twenty, and BML-Blackbird also argue that Four and Twenty and BML-Blackbird (collectively, "BML") are not statutory defendants under Labor Law §§ 240 (1) and 241 (6). In addition, QBC, Insomniac, and BML contend that the cross claims against them for contractual indemnification and breach of contract for failure to procure insurance should be dismissed, since there was no contract between DPS and either QBC or BML, that the relevant indemnification provision of the contract between Insomniac and DPS is inapplicable to this action, and that Insomniac was not contractually obligated to procure insurance. In support of their motion, QBC, Insomniac, and BML submit, among other things, the transcripts of the deposition testimony of plaintiff, Alyxzander Bear, Kevin Brophy, Frank Prokop, Akiko Moritake, and Chris Covin.
DPS opposes the motion by QBC, Insomniac, and BML, and cross-moves for summary judgment dismissing the complaint and cross claims against it. With regard to plaintiffs common-law negligence and Labor Law § 200 causes of action, DPS contends that it did not have authority to supervise or control her work. With regard to plaintiffs claims under Labor Law §§ 240 and 241, DPS argues, in part, that it is not a statutory defendant within those sections of Labor Law. In support of its opposition to the motion by QBC, Insomniac, and BML, and its cross motion, DPS relies upon exhibits submitted with codefendants' motion!
Plaintiff opposes the motion by QBC, Insomniac, and BML, and the cross motion by DPS, and cross-moves for summary judgment in her favor on the issue of defendants' liability under Labor Law § 240 (1). She argues, among other things, that she is able to identify how her accident occurred without engaging in speculation, and that Insomniac, BML, and DPS acted in supervisory roles at the work site. As to her claims under Labor Law §240 (1), plaintiff argues, in part, that she was injured by falling objects at the worksite, and that the trusses generated a significant amount of force when they fell. In support of her opposition and her cross motion, plaintiff relies upon exhibits submitted with the motion by QBC, Insomniac, and BML.
At plaintiffs deposition, she testified that she was employed as a stagehand by 360 Productions at the time of the accident. Plaintiff referred to a "Frank" and "John" as her bosses, and testified that they directed to her to move the subject trusses. While she was unable to identify the precise entity employing Frank or John at her deposition, she testified that one of them was from Insomniac, and that the other one was from BML. She explained that they wore shirts bearing a company logo and identification tags. According to plaintiffs deposition testimony, the three trusses at issue were stacked on top of each other and placed on a dolly prior to the accident. Plaintiff testified that each truss weighed approximately three tons, that the topmost truss was approximately two feet above her head, and that no rachet straps were attached to them. She further testified that her accident occurred when "[she] was in an argument with the Insomniac and Blackbird people over touching the truss." Plaintiff allegedly refused to move the trusses without a forklift. Another laborer allegedly assisted Frank and John in moving the subject trusses. When asked whether "[plaintiff] actually [saw] them physically pushing, or pulling, or doing anything else with the trusses," plaintiff answered in the affirmative. She elaborated that she was saw them "attempt[] to move the truss" by pulling on it with their hands. She further explained that "[w]ithin two seconds, [s]he was on the ground," that she heard a "clang," and that the "[t]he truss was on top of [her]." She clarified that all three trusses separately fell on her. Plaintiff allegedly was wearing a hard hat at the time of the accident.
At Alyxzander Bear's deposition testimony, he testified that he served as Insomniac's director of productions on the date of the accident. He testified that Insomniac hired DPS to handle production, including the hiring of vendors, of LDC. He elaborated that DPS was "responsible" for "load in and load out."
According to Kevin Brophy's deposition testimony, he was a crew chief for Four and Twenty at the time of the accident, and he was a witness to plaintiffs accident. Brophy testified that the accident occurred when plaintiff was moving trusses, which were strapped together with a one- or two-inch piece of rachet strap, on a dolly, with another laborer. He elaborated that "[he] saw her pull over a stack of truss [sic] ..
.over onto herself' during the load out period, and that they fell within a matter of seconds. He described the trusses as weighing "60, 70 pounds, if that," and reaching a height of "90-inches plus wheel height . so maybe 96 inches" when stacked on top of each other.
At Frank Prokop's deposition, he testified thai he was employed as "first electric" by Four and Twenty al the time of the accident. He explained that Four and Twenty was responsible for "the entire lighting package" for certain stages. He testified that while the stagehands were responsible for moving the trusses, someone from Four and Twenty occasionally "may have grabbed one end of the trusses to help someone with them." Prokop testified that he had no involvement in moving the trusses. He also testified that "Blackbird," namely, Kevin, had a supervisory role in directing stagehands. He further testified that while he had no specific recollection of the safety meeting taking place prior to the accident, he claimed that stagehands always were instructed that trusses should only be moved with two people.
According to Prokop's testimony, prior to the accident, there were approximately six "stacks," which consisted of three or four trusses stacked on top of each other on "wheel pads," in a line to be transported into a truck. There allegedly was one stack that was not aligned with the rest of the slacks prior to the accident. Prokop testified that he specifically instructed plaintiff not to move that particular stack before the accident occurred. Prokop allegedly did not observe the trusses fall to the ground. Prokop testified that no one was closer in proximity to plaintiff than him at the time of the accident, and that he observed that the trusses were strapped together after the accident.
Akiko Moritake testified that she was employed as a site operations coordinator assistant for Insomniac in 2016. She further testified that DPS was responsible for the load out for HDC, and that she personally was involved in that process. She elaborated that her responsibilities included standing next to a truck, and ensuring that items properly were returned and packed. Moritake allegedly could not recall who did the physical work with regard to loading out.
Chris Covin testified that he was responsible for budgeting events and operations for DPS in 2016. He further testified that DPS was hired by Insomniac to provide site services for EDC, and that DPS only contracted with Insomniac. He explained that DPS' responsibilities included dismantling "everything site related" after Insomniac took down "everything that is deemed as the show," such as the lights and staging. He further testified that DPS was not responsible for disassembling the stages or lighting, and that no one from DPS coordinated the building and dismantling of steel structures.
At the outset, the Court considered the merits of the cross motion by plaintiff. Even assuming arguendo that plaintiffs cross motion for summary judgment was untimeiy, a court may consider an untimely motion or cross motion for summary judgment where a timely motion for summary judgment was made on nearly identical grounds (see Cruz v 1142 Bedford Ave., LLC, 192 A.D.3d 859. 2021 NY Slip Op 08220 [2d Dept 2021]; Munoz v Salcedo, 170 A.D.3d 735, 95 N.Y.S.3d 358 [2d Dept 2019]; Sikorjak v City of New York 168 A.D.3d 778, 91 N.Y.S.3d 186 [2d Dept 2019]; Sheng Hat Tong v K and K 7619 Inc., 144 A.D.3d 887, 41 N.Y.S.3d 266 [2d Dept 2016]), as was the case here.
Labor Law § 200 is a codification of the common law duty of owners or general contractors to maintain a safe construction site (Rizzuto v LA. Wenger Contr. Co., 91 N.Y.2d 343,670 N.Y.S.2d 816 [ 1998]; see Cantalupo v Arco Plumbing & Heating, Inc., ___ A.D.3d ___, 2021 NY S lip Op 02783 [2d Dept 2021 ]). Liability premised upon Labor Law § 200, fall into two broad categories, namely, those involving the manner in which the work is performed, and instances where the workers are injured as a result of dangerous or defective premises conditions at a work site (see Rodriguez v HY 38 Owner, LLC, 192 A.D.3d 839, 143 N.Y.S.3d 411 [2d Dept 2021]; Devoy v City of New York, 192 A.D.3d 665, 144 N.Y.S.3d 68 [2d Dept 2021]). Here, plaintiffs injuries did not arise from a defective condition inherent on the property, but rather from alleged defects in the methods or materials utilized in performing the subject work (see Medina-Arana v Henry St. Prop. Ho/dings, LLC, 186 A.D.3d 1666, 131 N.Y.S.3d 110 [2d Dept 2020]; Kearney v Dynegy 151 A.D.3d 1037, 1039, 57N.Y.S.3d 520 [2d Dept 2017 Pilato v 866 U.N. Plaza Assoc., LLC, 77 A.D.3d 644, 909 N.Y.S.2d 80 [2d Dept 2010]). "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'" (Rodriguez v Metropolitan Tramp. Auth., A.D.3d 1026, 1027, 143N.Y.S.3d 363 [2d Dept 2021] quoting Rojas v Schwartz, 74 A.D.3d 1046, 1046, 903 N.Y.S.2d 484 [2d Dept 2010]; see Etiassian v GF Constr., Inc., 190 A.D.3d 947,140 N.Y.S.3d 564 [2d Dept 2021]). "A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed" (Devoy v City of New York, supra at 668, quoting Crichigno v Pacific Park 550 Vanderbilt, LLC, 1 86 A.D.3d 664, 655-656, 127 N.Y.S.3d 309 [2d Dept 2020]; see Doran v JP Walsh Realty Group, LLC, 189 A.D.3d 1363, 134 N.Y.S.3d 787 [2d Dept 2020]). "[M]ere 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 under Labor Law § 200" (Gomez v 670 Merrick Rd Realty Corp., 189 A.D.3d 1187, 1191,138 N.Y.S.3d 111 [2d Dept 2020], quoting Ortega v Puccia, 57 A.D.3d 54, 62, 866 N.Y.S.2d 323 [2d Dept 2008]; see Cremona v Venture Holding & Mgt. Corp. 189 A.D.3d 994 137 N.Y.S.3d 487 [2d Dept 2020]).
QBC, Insomniac, and BML made a prima facie case of entitlement to summary judgment dismissing plaintiffs common-law negligence and Labor Law § 200 claims against QBC. They established, prima facie, thai QBC did not exercise supervision or control over the subject work (see Marney v Cornell Kent II Holdings, LLC, 194 A.D.3d 917, 2021 NY Slip Op 03170 [2d Dept 2021 J; Medina-Arana v Henry St . Prop. Holdings, LLC, supra; Turgeon v Vassar Coll., 172 A.D.3d 1134, 100 N.Y.S.3d 374 [2d Dept 2019J). Significantly, QBC allegedly bore no responsibility for the manner in which the work was performed, and none of its employees allegedly had the authority to supervise or control the work at issue. In opposition, plaintiff and DPS failed to raise a triable issue of fact as to whether QBC had the requisite supervision or control over the subject work (see Marney v Cornell Kent II Holdings, LLC, supra; Medina-Arana v Henry St. Prop. Holdings, LLC, supra; Turgeon v Vassar Coll., supra). Plaintiff and DPS failed to specifically address the common-law negligence and Labor Law § 200 claims against QBC in their opposition papers. Accordingly, the portion of the motion by QBC, Insomniac, and BML seeking summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 against QBC is granted.
QBC, Insomniac, and BML failed to establish their prima facie entitlement to summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action against Insomniac and BML They failed to demonstrate, prima facie, that plaintiff was unable to identify the cause of her accident without resorting to speculation (see generally Patrikis v Arniotis, 129 A.D.3d 928,12 N.Y.S.3d 174 [2d Dept 2015]; Chilinski v LMJ Contr., 137 A.D.3d 1185, 28 N.Y.S.3d 390 [2d Dept 2016]; cf. Antelope v Saint Aidan's Church, 110 A.D.3d 1020, 973 N.Y.S.2d 769 [2d Dept 2014]). While the facts and circumstances surrounding the subject accident are heavily disputed, their submissions, including plaintiffs deposition testimony, are sufficient to raise a triable issue of fact as to whether she was struck by falling trusses. QBC Insomniac, and BML further failed lo eliminate triable issues of fact as to whether Insomniac or BML had the requisite authority to supervise or control the work giving rise to plaintiffs injuries (see Rabies v Taconic Mgt Co., LLC, 173 A.D.3d 1089, 103 N.Y.S.3d 571 [2d Dept 2019]; Valdez v Turner Constr Co 171 A.D.3d 836, 98 N.Y.S.3d 79 [2d Dept 2019]; Cruz v Cablevision Systems Corp., 120 A.D.3d 744, 992 N.Y.S.2d 281 [2d Dept 2014]). Notably, plaintiffs deposition testimony raised triable issues of fact regarding the involvement of Insomniac and BML in the injury-producing work. As previously indicated, plaintiffs deposition testimony indicates she considered Frank and John, who were from either Insomniac or BML to be her bosses, and that they directly were involved in transporting the trusses that allegedly fell on her' Accordingly, the portion of the motion by QBC, Insomniac, and BML seeking summary judgment dismissing plaintiffs claims alleging common-law negligence and a violation of Labor Law § 200 against Insomniac and BML is denied, regardless of the sufficiency of the papers in opposition (see Winegrad v New York Univ Med. Ctr., 64 N Y2d 851, 4 87 N.Y.S.2d 316 119 8 5]).
Labor Law § 240 (1) provides that property owners and contractors furnish, or cause to be furnished, safety devices which are "so constructed, placed and operated as to give proper protection" to workers (see Jara v Costco Wholesale Corp., 178 A.D.3d 687, 115 N.Y.S.3d 49 [2d Dept 2019J; Marulanda v Vance Assoc, LLC, 160 A.D.3d 711, 75 N.Y.S.3d 74 [2d Dept 2018]). The purpose of Labor Law § 240 (1) is to “protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility" (Nicometi v Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 96, 7 N.Y.S.3d 263 [2015] quoting Ross v Curtis-Painter Hydro-Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49 [1993]). Moreover, an owner or contractor who breaches this duty may be held liable for damages regardless of whether it actually exercised any supervision or control over the work giving rise to the injury (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 771 N.Y.S.2d484 [2003]; Ross v Curtis-Palmer Hydro-Elec Co supra). In the case of a falling object, "Labor Law § 240(1) applies where the falling of an object is related to "a significant risk inherent in ... the relative elevation ... at which materials or loads must be positioned or secured'" (Narducci v Manhasset Bay Assoc, 96 N.Y.2d 259, 267, 268, 727 N.Y.S.2d 37 [2001 ] quoting Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219 [1991]; see Bianchi v New York City Tr. Auth., 192 A.D.3d 745, 144 N.Y.S.3d 101 [2d Dept 2021]). Labor Law § 240 (1) "does not automatically apply simply because an object fell and injured a worker; '[al plaintiff must show that the object fell... because of the absence or inadequacy of a safety device of the kind enumerated in the statute'" (Fabrizi v 1095 Ave. of the Ants., L.L.C., 22 N.Y.3d 658, 663, 985 N.Y.S.2d 416 [2014], quoting Narducci v Manhasset Bay Assoc, supra at 268; see Wiski v Verizon N.Y., Inc., 186 A.D.3d 1590, 129 N.Y.S.3d 341 [2d Dept 2020]). The application of Labor Law § 240 (1) requires a significant elevation differential, "even if the injury is caused by the application of gravity on an object" (Simmons v City of New York, 165A.D.3d 725, 726-727, 85 N.Y.S.3d 462 [2d Dept 2018], quoting Christiansen v Bonacio Constr., 129 A.D.3d 1156 1158, 10 N.Y.S.3d 683 [3d Dept 2015]). An object's fall from a minuscule height is not the elevation-related injury contemplated by Labor Law § 240 (1) (see Cambry v Lincoln Gardens, 50 A.D.3d 1081, 857 N.Y.S.2d 225 [2d Dept 2008]; Perron v Hendrickson/Scalamandre/Posillico (TV), 22 A.D.3d 731, 803 N.Y.S.2d 106 [2d Dept 2005]). Moreover, a plaintiff is not precluded from recovering under Labor Law § 240 merely because he or she was on the same level as the base of a falling object (see Wiliinski v 334 E. 92nd Hous Dev Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551 [2011]). In determining whether an elevation differential is physically significant or de minimis, the court must also take into account "the weight of the [fallingl object and the amount of force it was capable of generating, even over the course of a relatively short descent" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 605, 895 N.Y.S.2d 279 [2009]; see Wilinski v 334 E. 92ndIIous. Dev. Fund Corp., supra; Kandatyan v 400 Fifth Realty, LLC, 155 A.D.3d 848, 63 N.Y.S.3d 681 [2d Dept 20171). To prevail on a claim pursuant to Labor Law § 240 (1), a plaintiff must establish mat the statute was violated, and that the violation was a proximate cause of the injuries (see Majerski v City of New York, 193 A.D.3d 715,2021 NY Slip Op 02147 [2d Dept 2021]; Devoy v City of New York, supra). While a plaintiffs comparative negligence is not a defense to a Labor Law § 240 (1) claim, and does not effect a reduction in liability, a plaintiff cannot prevail on a Labor Law § 240 (1) claim if his or her actions were the sole proximate cause of the accident (see Debennedetto v Chetrit, 190 A.D.3d 933, 140 N.Y.S.3d 569 [2d Dept 2021]; Aguilar v Graham Terrace, LLC, 186 A.D.3d 1298 131 N.Y.S.3d 48 T2d Dept 2020]). "
QBC, Insomniac, and BML failed to establish their prima facie entitlement to summary judgment d]smissing plaintiffs Labor Law § 240 claim against them. They failed to establish, prima facie, that either Four and Twenty or BML-Blackbird was not an a contractor or statutory agent under Labor Law § 240 (see Alexandridis v Van Gogh Contr. Co., 1 80 A.D.3d 969, 120 N.Y.S.3d 347 [2d Dept 2020]- Johnsen v City of New York, 149 A.D.3d 822, 49 N.Y.S.3d 898 [2d Dept 2017]). As previously set forth, the submissions of QBC, Insomniac, and BML failed to eliminate triable issues of fact as to whether BML had authority to supervise or control the injury-producing work. Moreover, their submissions present conflicting evidence regarding, inter alia, the dimensions and weight of the trusses at issue. Based on the record, the stacked trusses allegedly reached a height of roughly two feet above plaintiffs head, and there is significant dispute as to the weight of each truss. Lven assuming arguendo that plaintiffs testimony regarding the weight of each truss is disregarded as incredible as a matter of law, as requested by QBC, Insomniac, and BML, their submissions failed to eliminate triable issues of fact as to whether that height differential constitutes a significant elevation differential given the combined weight of trusses and the force generated by them when they fell, so as to require a safety device as set forth in Labor Law § 240 (1) (see Runner v New York Stock Exch. Inc., supra; McCatlister v 200 Park, L.P., 92 A.D.3d 927, 939 N.Y.S.2d 538 [2d Dept 2012]- Gutman v City of New York, 78 A.D.3d 886, 911 N.Y.S.2d 458 [2d Dept 2010]). Brophy's deposition testimony indicates that the trusses had a combined weight of approximately 180 to 210 pounds, and thus, they potentially would have generated a significant amount of force over their descent. QBC, Insomniac, and BML further failed to eliminate triable issues of fact as to whether the trusses fell due to the absence or inadequacy of an enumerated safety device (see Wilinski v 334 F. 92nd Rous. Dev Fund Corp supra Carlton v City of New York, 161 A.D.3d 930. 77 N YS3d 445 [2d Dept 20181). Accordingly, the portion of the motion by defendants QBC, Insomniac, and BML seeking summary judgment dismissing plaintiffs Labor Law § 240 against them is denied, regardless of the sufficiency of the papers in opposition (see Winegrad v New York Univ Med. Ctr., supra).
Plaintiff also failed to establish her prima facie burden for summary judgment in her favor on her Labor Law § 240 claim against QBC, Insomniac, and BML. The evidence relied upon by plaintiff in support of her cross motion failed to demonstrate, prima facie, that her conduct was not the sole proximate cause of her injuries (see Batlle v NY Devs. & Mgt, Inc., 193 A.D.3d 562,2021 NY Slip Op 02446 [2d Dept 2021]-Ponce-Francisco v Plainview-Old Bethpage Cent School Dist., 83 A.D.3d 683, 920 N.Y.S.2d 406 [2d Dept 2011]; see also Reyes v Astoria 31st St. Devs., LLC, 190 A.D.3d 872, 139 N.Y.S.3d 352 [2d Dept 2021]; Benavidez-Portillo v G.B. Constr. & Dev., 149 A.D.3d 681, 51 N.Y.S.3d 141 [2d Dept 2017]- Serrano v Popovic, 91 A.D.3d 626, 936 N.Y.S.2d 254 [2d Dept 2012]). As previously set forth, there are significant disputes in the facts and circumstances surrounding the subject accident. Based on the record, there are triable issues of fact including whether plaintiffs own conduct in attempting to move the trusses, without assistance, after being instructed not to do so was the sole proximate cause of her alleged injuries. Accordingly, plaintiffs cross motion for summary judgment in her favor on her Labor Law § 240 claim against QBC, Insomniac, and BML is denied, regardless of the sufficiency of the papers in opposition (see Winegrad v New York Univ Med. Ctr., supra).
Labor Law § 241 "imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., supra at 348; see Cantatupo v Arco Plumbing & Heating, Inc., supra). "A plaintiff asserting a cause of action under Labor Law § 241(6) must demonstrate a violation of a rule or regulation of the Industrial Code which gives a specific, positive command, and is applicable to the facts of the case" (Bianchi v New York City Tr. Auth., supra at 748; see Carey v Five Bros., Inc., 106 A.D.3d 938, 966 N.Y.S.2d 153 [2d Dept 2013]). The particular provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles (Misicki v Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375 [2009]). Further, to impose liability under Labor Law § 241 (6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case (see Cantalupo v Arco Plumbing & Heating, Inc., supra; Majerski v City of New York, supra).
QBC, Insomniac, and BML established their prima facie entitlement to summary judgment dismissing plaintiffs Labor Law § 241 (6) claims against them. By her verified bill of particulars plaintiff alleges violations of 12 NYCRR 23-1.5 through 23-1.8, and various violations of Occupational Safety and Health Administration ("OSHA") regulations. Inasmuch as plaintiff failed to address the branch of the motion by QBC, Insomniac, and BML seeking dismissal of her Labor Law § 241 (6) claims in opposition, the Court deems those claims abandoned and grants summary judgment dismissing them (see Elam v Ryder Sys., Inc., 176 A.D.3d 675, 107 N.Y.S.3d 71 8 [2d Dept 2019]; Pita v Roosevelt Union Free Sch. Dist., 156 A.D.3d 833, 68 N.Y.S.3d 84 [2d Dept 2017]; Palomeque v Capital Improvement Servs., LLC, 145 A.D.3d 912, 43 N.Y.S.3d 483 [2d Dept 2016]). In any event, a review of the Industrial Code provisions cited by plaintiff in her bill of particulars reveal that they are inactionable general safety standards or inapplicable to this action (see NYCRR 23-1.5-23 -1.8; Gomez v670 Merrick Road Realty Corp., supra; Zaino v Rogers 153 A.D.3d 763, 59 N.Y.S.3d 770 [2d Dept 2017]; Guallpa v Canarsie Plaza, LLC, 144 A.D.3d 1088, 42 N.Y.S.3d 293 [2d Dept 2016]; Moncayo v Curtis Partition Corp., 106 A.D.3d 963, 965 N.Y.S.2d 593 [2d Dept 20131-Marin v AP-Amsterdam 1661 Park LLC, 60 A.D.3d 824, 875 N.Y.S.2d 242 [2d Dept 2009]- Vlrich v Motor Parkway Props., LLC, 84 A.D.3d 1221, 924 N.Y.S.2d 493 [2d Dept 2011]; Pereira v Quogue Field Club of Quogue, Long Is., 71 A.D.3d 1104, 898 N.Y.S.2d 220 [2d Dept 2010); Mercado v TPT Brooklyn Assoc, LLC 38 A.D.3d 732, 832 N.Y.S.2d 93 [2d Dept 2007]; Sdregas v City of New York, 309 A.D.2d 612, 765 N.Y.S.2d 610 [ 1 st Dept 2003]; Lawyer v Rotterdam Ventures Inc., 204 A.D.2d 878,612 N.Y.S.2d 682 [3dDept 1994]) Moreover, the OSHA regulations cited by plaintiff provide no basis for imposing liability under Labor Law § 241 (6) (see Graziano v Source Bldrs. & Consultants, LLC, 175 A.D.3d 1253, 109 N.Y.S.3d 115 [2d Dept 2019]; Marl v Liro Engineers, Inc., 159 A.D.3d 688, 73 N.Y.S.3d 202 [2d Dept 2018]; Shaw v RPA Assoc., LLC, 75 A.D.3d 634, 906 N.Y.S.2d 574 [2d Dept 2010]). Therefore, the branch of the motion by QBC, Insomniac, and BML for summary] udgment dismissing plaintiffs claims under Labor Law § 241 (6) against them is granted.
DPS established its prima facie entitlement to summary judgment dismissing plaintiffs Labor Law §§ 200, 240 (I), and 241 (6) and common-law negligence causes of action against it (see Pereira v Hunt/Bovis Lend Lease Alliance II, 193 A.D.3d 1085, 2021 NY Slip Op 02552 [2d Dept 2021 J- Fiore v Westerman Constr. Co., 186 A.D.3d 570, 128 N.Y.S.3d 628 [2d Dept 2020]; Cusumano v AM&G Waterproofing, LLC, 160 A.D.3d 922, 72 N.Y.S.3d 488 [2d Dept 2018]; Fucci v Plotke, 124 A.D.3d 835, 3 N.Y.S.3d 67 [2d Dept 2015]). DPS established, prima facie, that it was not an owner, contractor, or statutory agent under Labor Law §§ 240 and 241, and that it lacked the requisite authority to supervise or control the work that allegedly brought about plaintiffs injuries (see Pereira v Hunt/Bovis Lend Lease Alliance II, supra; Fiore v Westerman Constr. Co., supra; Cusumano v AM&G Waterproofing, LLC, supra; Fucci v Plotke, supra). Moreover, inasmuch as plaintiff failed to address the branch of DPS' cross motion seeking dismissal of her claims under Labor Law § 241 in opposition, such claims are deemed abandoned, and are dismissed (see Elam v Ryder Sys., Inc., supra; Pita v Roosevelt Union FreeSch. Dist., supra; Palomeque v Capital Improvement Servs., LLC, supra). Further, as previously set forth, the Industrial Code provisions and OS HA regulations cited in plaintiff s bill of particulars were either inapplicable or insufficient predicates to impose liability under Labor Law § 241 (6).
In opposition, the opposing parties failed to submit evidence sufficient to raise a triable issue of fact as to DPS's liability under Labor Law §§ 200, 240 (1), and 241 (6), and in common-law negligence (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, supra). At most, the record only shows that DPS had general supervisory authority over the subject work, which is insufficient in itself to impose liability under the Labor Law (see Zupan v Irwin Contr. Inc., 145 A.D.3d 715, 43 N.Y.S.3d 113 [2d Dept 20161; Fucci v Plotke, supra; Rodriguez v JMB Architecture, LLC, 82 A.D.3d 949, 919 N.Y.S.2d 40 [2d Dept 2011]). Based on the foregoing, DPS is also entitled to summary judgment dismissing the cross claims asserted against it for common-law indemnification and contribution (see Stone v Williams, 64 N.Y.2d 639, 485 N.Y.S.2d 42 [1984]; Pereira v Hunt/Bovis Lend Lease Alliance II, supra; Tapinekis v Rivington House Health Care Facility, 17 A.D.3d 572, 793 N.Y.S.2d 484 [2d Dept 2005]), and its cross claims for common-law indemnification and contribution against QBC, Insomniac, and BML are dismissed as academic (see Hernandez v Asoli, 171 A.D.3d 893, 97 N.Y.S.3d 227 [2d Dept 2019]; Parabit Realty, LLC v Town of Hempstead, 113 A.D.3d 661, 978 N.Y.S.2d 352 [2d Dept 2014]). Further, to the extent that plaintiffs cross motion seeks summary judgment in her favor on the issue of DPS1 liability under Labor Law § 240, that portion of her cross motion is denied, as moot.
With regard to the cross claims for indemnification, a party's right to contractual indemnification depends upon the specific language of the parties of the relevant contract (see Crutch v 421 Kent Dev, LLC 192 A.D.3d 982, 2021 NY Slip Op 01752 [2d Dept 2021 ]; Mejia v Cohn, 188 A.D.3d 1035, 136 N.Y.S.3d 480 [2d Dept 2020]; Hanna v Milazzo, 179 A.D.3d 907, 118 N.Y.S.3d 122 [2d Dept 2020]). Absent a legal duty to indemnify, a contract for indemnification should be strictly construed as to avoid imputing any duties which the parties did not intend to assume (see Zalewski v MH Residential 1, LLC, 163 A.D.3d 900. 82 N.Y.S.3d 40 (2d Dept 2018]; Petersen v Miller Auto Parts, Inc., 151 A.D.3d 893, 58 N.Y.S.3d 57 |2d Dept 2017]; Tafolla v Aldrich Mgt Co., LLC, 136 A.D.3d 1019, 26 N.Y.S.3d 194 [2d Dept 2016]).
QBC and BML established their prima facie entitlement to summary judgment dismissing DPS' cross claim for contractual indemnification against them (see Maltese v Metropolitan Tramp. Auth 179 A.D.3d 780, 118 N YS3d 57 [2d Dept 2020]; Desena v North Shore Hebrew Academy, 119 A.D.3d 631' 989 N.Y.S.2d 505 [2d Dept 2014]; Jamindar v Vniondale Union Free Sch. Dist., 90 A.D.3d612, 934 N.Y.S.2d 437 [2d Dept 2011]). Here, there was no evidence of a contractual agreement between DPS and either QBC or BML. In opposition, DPS failed to raise a triable issue of fact (see Maltese v Metropolitan Transp. Auth., supra; Desena v North Shore Hebrew Academy, supra; Jamindar v Vniondale Union Free Sch. Dist, supra). DPS, in essence, concedes that it no contractual relationship existed between DPS and either QBC or BML.
However, Insomniac failed to establish its prima facie entitlement to summary judgment dismissing DPS' cross claim for contractual indemnification against it. The agreement between Insomniac and DPS set forth, in pertinent part, the following indemnification provision:
"To the fullest extent permitted by law, Insomniac expressly agrees to indemnify, defend and hold harmless DPS from and against any and all claims or loss arising out of any violation of any law, rule, regulation or order, and from any and all claims or liabilities, including reasonable attorneys fees, for loss, damage or injury to persons or property or whatever kind or nature arising from the acts or omissions of Insomniac, its parents, partners, affiliates, subsidiaries, successors or assigns and each of their respective agents, employees, representatives and contractors."
Insomniac failed to establish, prima facie, that DPS would not be entitled to indemnification under the terms of the their agreement (see Nugra v Aramalla, 191 A.D.3d 683, 142 N.Y.S.3d 70 [2d Dept 2021]; Byrd v Hughes, 188 A.D.3d 975, 135 N.Y.S.3d 140 [2d Dept 20201; McDonnell v Sandaro Realty, 165 A.D.3d 1090, 87 N.Y.S.3d 86 [2d Dept 2018]). In light of the foregoing, to the extent that the motion by QBC, Insomniac, and BML seeks dismissal of DPS' cross claim for contractual Indemnification against Insomniac, that portion of their motion is denied, regardless of the sufficiency of the papers in opposition (see Winegrad v New York Unix Med. Ctr., supra).
DPS failed to satisfy its prima facie burden dismissing the cross claim for contractual indemnification against it. Here, DPS does not specify its rationale for seeking dismissal of the remaining cross claim against it. The Court cannot grant summary judgment on a rationale not urged by DPS (see Romanelli v Jones, 179 A.D.3d 851, 117 N.Y.S.3d 90 [2d Dept 2020]; (Grucci v Grucci, 174 A.D.3d 790, 102 N.Y.S.3d 885 [2d Dept 2019]). Accordingly, the balance of DPS' cross motion, seeking summary judgment dismissing the cross claim for contractual indemnification against it, is denied, regardless of the sufficiency of the papers in opposition (see Winegrad v New York Univ Med. Ctr., supra).
The Court now turns to the portion of the motion by QBC, Insomniac, and BML for summary judgment dismissing the cross claim for breach of contract for failure to procure insurance against them. A party seeking summary judgment based on an alleged failure to procure insurance naming that party as an additional insured must demonstrate that a contract provision required that such insurance be procured. and that the provision was not complied with (see Marquez v L & M Dev Partners, Inc., 141 A.D.3d 694, 35 N.Y.S.3d 700 [2d Dept 2016]; Ginter v Flushing Terrace, LLC, 121 A.D.3d 840, 995 N.Y.S.2d 95 [2d Dept 2014J; Tingling v C.LN.H.R. Inc., 120 A.D.3d 570, 992 N.Y.S.2d 43 [2d Dept 2014J).
QBC, Insomniac, and BML established their prima facie entitlement dismissing DPS' cross claim against them based on their purported failure to procure insurance (see Torres v 63 Perry Realty, LLC 123 A.D.3d 911, 1 N.Y.S.3d 142 [2d Dept 2014]; Desena v North Shore Hebrew Academy, supra; Ramcharan v Beach 20th Realty, LLC, 94 A.D.3d 964, 942 N.Y.S.2d 593 [2d Dept 2012]). QBC, Insomniac, and BML established, prima facie, that they were not contractually obligated to procure insurance. In opposition, DPS does not specifically address its cross claim alleging breach of contract for failure to procure insurance, and thus, it failed to raised a triable issue of fact (see Torres v 63 Perry Realty, LLC, supra Desena v North Shore Hebrew Academy, supra; Ramcharan v Beach 20th Realty, LLC, supra). Accordingly, DPS' cross claim based on the purported failure of QBC, Insomniac, and BML to procure insurance is dismissed.
According, the motion by QBC, Insomnia, and BML and the cross rmrtion by DPS are granted in part and denied in part, and the cross motion by plaintiff is denied.