Opinion
Index No. 517267/2019 Motion Seq. Nos. 6 7 8 9 10
12-01-2023
ANTWAUN BROWN, Plaintiff, v. OSIB-BCRE BOWERY STREET HOLDINGS LLC c/o BRACK CAPITAL REAL ESTATE LTD, THE RINALDI GROUP, LLC, and SCHEAR CONSTRUCTION, LLC, Defendants. v. OSIB-BCRE BOWERY STREET HOLDINGS LLC c/o BRACK CAPITAL REAL ESTATE LTD, and THE RINALDI GROUP, LLC, Third-Patty Plaintiffs, v. v. v. SCHEAR CONSTRUCTION, LLC and ANTHONY G. FERRY INC. ELECTRICAL CONTRACTOR,, Third-Patty Defendants. v. SCHEAR CONSTRUCTION, LLC, Second Third-Party Plaintiff, v. v. v. DASSO INTERNATIONA,, INC., DASSO USA, DASSOXTER, and EASOON USA, LLC, Second Third-Party Defendants.
Unpublished Opinion
At an IAS Part 83 of the Supreme Court of the State of New York held in and for the County of Kings at 360 Adams Street, Brooklyn, New York, on the day of 2023.
ORDER
Hon. Ingrid Joseph J.S.C.
The following e-filed papers read herein: NYSCEF Doc. Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and 187-188, 190, 212-213, 224, 255, Affidavits (Affirmations) Annexed 256, 267, 280, 282, 306-307, 309, 311 226, 237, 239, 241, 252, 254, 341, Opposing Affidavits (Affirmations) 344-345, 346, 349, 350, 351, 356
Affidavits/ Affirmations in Reply 367, 369, 371, 372, 377, 380, 382
Upon the foregoing papers, plaintiff Antwaun Brown moves for an order, pursuant to CPLR 3212, granting partial summary judgment in his favor on his Labor Law § 240 (1) cause of action (motion sequence number 6). Defendants/third-party plaintiffs OS1B-BCRE Bowery Street Holdings LLC c/o Brack Capital Real Estate Ltd. (OSIB-BCRE) and the Rinaldi Group, LLC (Rinaldi) (collectively referred to as OSIB/Rinaldi) move for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiffs complaint and any and all claims as against them and granting summary judgment in their favor on their claims for contractual indemnification, common-law indemnification and breach of contract against defendant/third-party defendant/third-party plaintiff Schear Construction, LLC (Schear) and third-party defendant Anthony G. Ferry Inc. Electrical Contractors (Ferry) (motion sequence number 7). Ferry cross-moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the third-party complaint as against it (motion sequence number 8). Schear cross-moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing plaintiffs common-law negligence and Labor Law §§ 200 and 240 (1) causes of action (motion sequence number 9). In a separate cross motion, Schear moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing OSIB/Rinaldi's claims and cross-claims as against it (motion sequence number 10).
In this action premised on common-law negligence and Labor Law §§ 200, 240 (1) and 241 (6), plaintiff alleges that, while he was installing security cameras on the rear porch/patio of a building under construction, he sustained injuries on July 30, 2018, when his left leg broke through a plank of the porch's permanent wood deck. The building under construction was owned by OSIB-BCRE. Rinaldi was the construction manager for the project, and it hired Schear as the framing/carpentry subcontractor. It was Schear that installed the wood decking on the porch. Ferry was hired by Rinaldi to perform electrical and fire alarm work for the project, and Ferry, in turn, subcontracted some of this work, including the security camera installation work performed by plaintiff, to Giant Security, Inc. d/b/a Vertex Security (Giant). Plaintiff was employed by Giant as an electrical technician for the installation of security cameras.
There is no real dispute that Ferry subcontracted some of its electrical work to Giant. Although Ferry's witness testified that he had never heard of Giant, he also testified that Ferry had subcontracted some of its work to Vertex. A Ferry purchase order for the security camera work identifies Vertex Security and Giant Security d/b/a Vertex Security as the contracting parties. Plaintiff, in his own testimony, identifies Vertex as a company that was related to Giant.
According to plaintiffs deposition testimony, on the day of the accident, he was directed by his Giant supervisor to install two security cameras on the rear patio of the building with the help of a coworker. After plaintiff had installed one of the cameras, he climbed down off the ladder he was using, folded the ladder with it lying on the floor and started to pick up the ladder in order to move it to another location on the porch so he could install the other camera. As plaintiff was picking up the ladder, he took a step back with his left leg and his left foot broke through a plank of the wood deck that covered the patio area. Plaintiffs left leg went through the planking of the deck up to his shin, a distance plaintiff estimated to be one and one-half feet, to the subfloor below the wood deck. Plaintiff fell on top of the wood deck when his foot fell through the platform and the ladder that he was holding fell on top of him.
Plaintiff testified, at his February 7, 2020 and May 11, 2020 depositions, that the accident happened when he took a step backward while grabbing the ladder. At his January 28, 2021 deposition, plaintiff did not mention that the accident occurred as he took a step back, but rather, stated that the accident happened after he had taken a few steps walking sideways while dragging the ladder. The parties make no suggestion that this minor inconsistency has any bearing on the liability issues discussed below, and, in any event, this court is not aware of any legal grounds to believe that such an inconsistency would have any impact on the liability issues herein.
While plaintiff did not specifically testify that his foot fell through to the subfloor below the wood deck, plaintiffs counsel conceded such was the case in the memorandum of law submitted in support of plaintiff s motion (NY St Cts Elec Filing [NYSCEF] Doc. No. 189 at 3, ¶ 12).
The wood deck was supported above a concrete slab and waterproofing membrane by pedestals and decking planks were placed over wooden joists that were 10 to 22 inches apart. Photographs taken of the accident site (NYSCEF Doc. No. 202) show that the hole that was created when the plank broke, while big enough to allow plaintiffs foot to fall through, was not of the size to allow one's entire body to fall to the level below. In his own deposition testimony, plaintiff stated that, when he put the ladder onto the floor in the area of the accident, he looked at the flooring, and did not notice any broken pieces or cracks and none of the planks in the area appeared to be bent or bowed in any manner. Rinaldi's project manager testified at his deposition that he had conducted a walk-through of the deck area at some point after it was constructed, but before the accident, and he did not observe any defects with the wood planking, nor did he ever receive any complaints from others regarding the deck's wood planking.
Although Schear's president testified that he performed a walk through of the deck at some point after its installation and before the accident, he was not asked about his observations, if any, regarding the deck's condition.
As an initial matter, the court rejects plaintiff and OSIB/Rinaldi's assertion that Schear's cross motions may not be considered because they are untimely (Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6; CPLR § 3212 [a]). The cross motions may be considered because the court (Freier, J.), in an order dated February 17, 2023 (NYSCEF Doc. No. 357), vacated the note of issue and restored the action to its prenote status (see Mills v City of New York, 144 A.D.3d 644, 645 [2d Dept 2016]; see also Mayorquin v Carriage House Owner's Corp., 202 A.D.3d 541, 541 [1st Dept 2022]; Wells Fargo Bank, NA v Apt, 179 A.D.3d 1145, 1146-1147 [2d Dept 2020]).
Labor Law § 240 (1) imposes absolute liability on owners and contractors or their agents when they fail to protect workers employed on a construction site from injuries proximately caused by risks associated with falling from a height or those associated with falling objects (see Wilinski v 334 E. 92nd Housing Dev. Fund Corp., 18 N.Y.3d 1, 3 [2011]; Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268 [2001]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]). For a defendant to be held liable under Labor Law § 240 (1), a plaintiffs injuries must be "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see Wilinski, 18 N.Y.3d at 10).
The instant defendants are entitled to dismissal of the Labor Law § 240 (1) cause of action because the accident did not involve a significant elevation differential for purposes of Labor Law § 240 (1) given that the hole that was created when the plank broke was too small to allow plaintiff s entire body to fall to the level below (see Johnson v Lend Lease Constr. LMB, Inc., 164A.D.3d 1222, 1222 [2d Dept 2018]; Vitale v Astoria Energy II, LLC, 138 A.D.3d 981, 983 [2d Dept 2016]; Avila v Plaza Constr. Corp., 73 A.D.3d 670, 671 [2d Dept 2010], Iv granted 15 N.Y.3d 706 [2010], appeal withdrawn 15 N.Y.3d 918 [2010]; Alvia v Teman Elec. Contr., 287 A.D.3d 421, 422 [2d Dept 2001], Iv denied 97 N.Y.2d 749 [2002]; see also Keavey v New York State Dormitory Auth., 6NY3d 859, 860 [2006], affirming 24 A.D.3d 1193 [4th Dept 2005]; cf. O'Conner v Lincoln Metrocenter Partners, L.P., 266 A.D.2d 60, 61 [1st Dept 1999] [hole was big enough that plaintiff could have fallen through to level below if he had not held himself up in the opening]). Even if plaintiff could have fallen to the level below, the protections of the statute were not implicated under these circumstances since the waterproofing membrane and concrete slab were only approximately one-and-one-half feet below the wood decking (see Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514-515 [1991]; Balfe v Graham, 214 A.D.3d 693, 694 [2d Dept 2023]; Piccuillo v Bank of N.Y. Co., 277 A.D.2d 93, 94 [1st Dept 2000]; D 'Egidio v Frontier Ins. Co., 270 A.D.2d 763, 765 [3d Dept 2000]) and because the accident occurred on a fully-constructed, permanent wood decking under conditions where no section 240 (1) safety device would have been expected (see Carrillo v Circle Manor Apts., 131 A.D.3d 662, 662-663 [2d Dept 2015], Iv denied 27 N.Y.3d 906 [2016]; Romeo v Property Owner (USA) LLC, 61 A.D.3d 491, 491 [1st Dept 2009]; Geonie v OD & PNY Ltd., 50 A.D.3d 444, 445 [1st Dept 2008]; cf. Quizhpi v South Queens Boys & Girls Club, Inc, 166 A.D.3d 683, 684 [2d Dept 2018] [foreseeable that roof would collapse and cause plaintiff to fall to lower level]; Shipkoski v Watch Case Factory Assocs., 292 A.D.2d 587, 588-589 [2d Dept 2002] [issue of fact as to whether it was foreseeable that floor would collapse and allow plaintiff to fall to floor level below]).
Although the Appellate Division, Second Department does not mention the depth of the hole at issue in Balfe, plaintiff, in his reply brief on appeal, states that the hole was two feet deep (see Reply Brief, 2021 WL 10365302, *4).
The court notes that the cases plaintiff primarily relies upon are Appellate Division, First Department cases that are inconsistent with the above noted Appellate Division, Second Department cases (see Payne v NSH Community Servs., Inc., 203 A.D.3d 546, 547 [1st Dept 2022]; Brown v 44 St. Dev., LLC, 137 A.D.3d 703, 704 [1st Dept 2016]). Morevoer, in the Second Department cases cited by plaintiff, the plaintiffs fell significantly greater distances than the distance involved herein (see Yiming Zhou v 828 Hamilton, Inc., 173 A.D.3d 943, 944 [2d Dept 2019] [plaintiff fell 15 feet through hole]; Valensisi v Greens at Half Hollow, LLC, 33 A.D.3d 693, 694 [2d Dept 2006] [plaintiff fell through hole 20 feet])
Turning to the Labor Law § 241 (6) cause of action, plaintiff premises this cause of action on violations of Industrial Code (12 NYCRR) §§ 23-1.7, 23-1.7 (b), 23-1.7 (b) (1), 23-1.7 (d), 23-1.7 (e), 23-1.7 (e) (1), 23-1.7 (e) (2), 23-1.11, and 23-3.3 (f). In moving, OSIB/Rinaldi have demonstrated, prima facie, that all of these sections are inapplicable to the facts of this case (see e.g. Castro v Wythe Gardens, LLC, 217 A.D.3d 822, 826 [2d Dept 2023]). As plaintiff, in opposition, concedes that the facts in this case do "not present a cognizable" Labor Law § 241 (6) cause of action (NYSCEF Doc. No. 161, at ¶ 1, n1), OSIB/Rinaldi are entitled to dismissal of plaintiffs Labor Law § 241 (6) cause of action. Although defendant Schear did not seek dismissal of plaintiffs section 241 (6) cause of action in its cross motion, in searching the record, this court also dismisses said claim as against Schear (see Schwartz v Town of Ramapo, 197 A.D.3d 753, 756 [2d Dept 2021]; Rivera v Port Auth. of N.Y. & N.J, 69 A.D.3d 917, 918-919 [2d Dept 2010]; CPLR3212 [b]).
With respect to plaintiffs common-law negligence and Labor Law § 200 causes of action, when such claims arise out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged with liability had the authority to supervise or control the performance of the work (see Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352 [1998]; Hart v Commack Hotel, LLC, 85 A.D.3d 1117, 1118 [2d Dept 2011]). Where a premises condition is at issue, property owners and general contractors may be held liable under common-law negligence and for a violation of Labor Law § 200 if they either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident (see Abelleira v City of New York, 120 A.D.3d 1163, 1164 [2d Dept 2014]; Bauman v Town of Islip, 120 A.D.3d 603, 605 [2d Dept 2014]; Ortega v Puccia, 57 A.D.3d 54, 61 [2d Dept 2008]). Similarly, liability under Labor Law § 200 and common-law negligence may be imposed upon a subcontractor where it had control over the work site and either created the allegedly dangerous condition or had actual or constructive notice of it (see Vita v New York Law Sch., 163 A.D.3d 605, 607 [2d Dept 2018]; Wolf v KLR Meeh., Inc., 35 A.D.3d 916, 918 [3d Dept 2006]).
Through deposition testimony in the record showing that plaintiff was exclusively supervised by Giant supervisors, OSIB/Rinaldi and Schear have demonstrated, prima facie, that they did not exercise more than general supervisory authority over the injury producing work and are thus entitled to dismissal of the common-law negligence and Labor Law § 200 causes of action to the extent they are premised on the means and methods of performing the work (see Abelleira v City of New York, 201 A.D.3d 679, 680 [2d Dept 2022]; Goldfien v County of Suffolk, 157 A.D.3d 937, 938 [2d Dept 2018]; Messina v City of New York, 147 A.D.3d 748, 749-750 [2d Dept 2017]). As plaintiff concedes that OSIB/Rinaldi and Schear did not supervise or control his work, OSIB/Rinaldi and Schear are entitled to dismissal of the common-law negligence and section 200 claims to the extent premised on the means and methods of performing the work theory of liability.
Plaintiff, however, asserts that OSIB/Rinaldi and Schear have failed to demonstrate their prima facie entitlement to dismissal of the Labor Law § 200 and common-law negligence causes of action to the extent that they are premised on a defective premises condition theory of liability. In moving for summary judgment seeking dismissal of common-law negligence and section 200 causes of action, it is defendants who bear the initial burden of demonstrating, prima facie, that they did not cause or create the defective condition or have actual or constructive notice of such condition (see Estrella v ZRHLE Holdings, LLC, 218 A.D.3d 640, 648 [2d Dept 2023]; Karel v Pizzorusso, 215 A.D.3d 738, 739 [2d Dept 2023]). "A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Hamm v Review Assoc., LLC, 202 A.D.3d 934, 937-938 [2d Dept 2022]; see Nicoletti v Iracane, 122 A.D.3d 811, 812 [2d Dept 2014]).
Here, defendants primarily rely on the plaintiffs own testimony that, when he put the ladder onto the floor in the area of the accident, he looked at the flooring, and did not notice any broken pieces or cracks and none of the planks in the area appeared to be bent or bowed in any manner (Plaintiffs 2/7/20 deposition at 88, lines 16-25; at 89, lines 2-5). While this testimony constitutes some evidentiary proof regarding the condition of the flooring, the court finds that it is not dispositive with respect to whether there were any visible or apparent defects because the questioning of plaintiff at the deposition focused on the condition of the floor in the area where he placed the ladder. Defendants' attorneys did not specifically ask plaintiff if he observed the condition of the planks in the area where plaintiffs foot broke through the decking. To the extent that plaintiffs testimony suggests that the accident occurred in the same general area where he had placed the ladder, it is unclear whether he would have paid as close attention to the condition of the flooring outside the immediate area where he placed the ladder. Although defendants also note that Rinaldi's project manager testified that he observed no defects with the planking when he performed a walkthrough of the patio at some point after its construction and before the accident, this project manager could provide no further detail regarding either when he performed the walkthrough or how closely he examined the condition of the planking during the walkthrough.
Accordingly, this court finds that defendants have failed to demonstrate, prima facie, that the defect with the planking was not visible and apparent, and could not have been discovered through a reasonable inspection (see Catalano v Tanner, 23 N.Y.3d 976, 977 [2014], reversing 112 A.D.3d 1299, 1299-1300 [4th Dept 2013]; Lobianco v City of Niagara Falls, 213 A.D.3d 1341, 1342-1343 [4th Dept 2023]; Gairy v 3900 Harper Ave., LLC, 146 A.D.3d 938, 939 [2d Dept 2017]; Farrauto v Bon-Ton Dept. Stores, Inc., 143 A.D.3d 1292, 1293 [4th Dept 2016]; Bergin v Golshani, 130 A.D.3d 767, 768 [2d Dept 2015]; Kowalczyk v Time Warner Entertainment Co., CP., 121 A.D.3d 630, 631 [1st Dept 2014]; see also Buffalino v XSport Fitness, 202 A.D.3d 902, 903-904 [2d Dept 2022]; but see Reed v 64 JWB, LLC, 171 A.D.3d 1228, 1229 [2d Dept 2019], Iv denied 35 N.Y.3d 902 [2020]; Gray v City of New York, 87 A.D.3d 679, 680 [2d Dept 2011], Iv denied 18 N.Y.3d 803 [2012]).
In considering the parties' contentions regarding dangerous condition liability, Schear's arguments, in its motion papers, primarily address whether it had actual and constructive notice of any defect with the deck. Schear failed to address whether it, as a subcontractor, had control over the worksite, and thus, whether it had a duty under the common-law and Labor Law § 200, to maintain the planking on the patio's wood deck (see Vita, 163 A.D.3d at 607; Wolf, 35 A.D.3d at 918). Additionally, the testimony of Schear's president, who was not directly involved in supervising or performing the work relating to the construction of the wood deck, is insufficient to demonstrate, prima facie, that Schear did not cause or create the defective condition of the deck (see Camelio v Shady Glen Owners' Corp., __ A.D.3d __, 2023 NY Slip Op 04105, *2 [2d Dept 2023]; Zong Wang Yang v City of New York, 207 A.D.3d 791, 795 [2d Dept 2022]; Jackson v Conrad, 127 A.D.3d 816, 818-819 [2d Dept 2015]). Even assuming that the record is sufficient to allow an inference that the plank at issue had some latent defect that Schear would not have been able to detect at the time it constructed the deck, the present record, which is devoid of expert proof regarding the condition of the plank or first-hand knowledge regarding the actual construction, is insufficient to support such a finding as a matter of law.
OSIB/Rinaldi's motion and Schear's cross motion must thus be denied with respect to plaintiffs Labor Law § 200 and common-law negligence causes of action to the extent they are premised on the dangerous property condition theory of liability regardless of the sufficiency of plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
With respect to OSIB/Rinaldi's contractual indemnification claims as against Ferry, the indemnification provision of Rinaldi's contract with Ferry provides, as relevant here, that:
[Ferry] shall . . . indemnify and defend [Rinaldi], the Architect, the Owner... (the "Indemnities"), and save them harmless from and against any and all claims . . . and all expenses (including attorneys fees' and disbursements) arising out of any act, error or omission or breach of Contract or infringement of any patent right by [Ferry] or any of its SubSubcontractors or suppliers of any tier in connection with the performance of the Work hereunder or otherwise arising out of, in connection with or as a consequence of the performance of the Work hereunder (Rinaldi-Ferry Contract § 12.2).
The language of this provision evidences a clear intent that Ferry indemnify Rinaldi and the other indemnitees, including OSIB-BCRE, regardless of who actually performed Ferry's work under its contract with Rinaldi (see Brown v Two Exch. Plaza Partners, 76 N.Y.2d 172, 178 [1990]; Mogrovejo v HG Hous. Dev. Fund Co., Inc., 201 A.D.3d 461, 463-464 [2d Dept 2022]; Bellreng v Sicoli & Massaro, Inc., 108 A.D.3d 1027, 1031 [4th Dept 2013]; Scott v 122 East 42 St., LLC, 34 Misc.3d 133 [A], 2012 NY Slip Op 5O358[U], *10-11 [Sup Ct, Queens County 2012]). In addition, courts read provisions using this "arising out of the work" language very broadly, and have found that in cases like this, where a plaintiff is injured and brings a claim against a party entitled to indemnification, that party may obtain indemnification from the subcontractor even if the subcontractor, the sub-subcontractor employer of plaintiff, or the plaintiff had nothing to do with causing the injury to the plaintiff (see Brown, 76 N.Y.2d at 178; O'Connor v Serge El. Co., 58 N.Y.2d 655, 657-658 [1982]; Madkins v 22 Little W. 12th St., LLC, 191 A.D.3d 434, 436 [1st Dept 2021]; Reisman v Bay Shore Union Free School Dist., 74 A.D.3d 772, 773-774 [2d Dept 2010]; Daily News, LP v OCS Sec., 280 A.D.2d 576, 577 [2d Dept 2001]; Tkack v City of New York, 278 A.D.2d 227, 229 [2d Dept 2000]). As such, since Giant, plaintiffs employer, was one of Ferry's subcontractors, and since the work plaintiff was performing at the time of the accident was part of Ferry's work under its contract with Rinaldi, Ferry is not entitled to dismissal of the OSIB/Rinaldi's contractual indemnification claim.
On the other hand, in light of the factual issues with respect to OSIB/Rinaldi's own negligence under plaintiffs Labor Law § 200 and common-law negligence claims, OSIB/Rinaldi have failed to demonstrate their prima facie entitlement to contractual indemnification as they have failed to establish that they are themselves free from any negligence with respect to this accident (see Crutch v 421 Kent Dev., LLC, 192 A.D.3d 977, 982 [2d Dept 2021]; Tarpey v Kolanu Partners, LLC, 68 A.D.3d 1099, 1100-1101 [2d Dept 2009]; General Obligations Law § 5-322.1). The court notes that, although OSIB/Rinaldi would be barred from recovering under the provision if they are found liable to plaintiff, if they are successful in defending the action, they may obtain indemnification for expenses, including attorney's fees, arising from their defense of the action (see Alicea v Medjugorje Realty, LLC, 210 A.D.3d 835, 842 [2d Dept 2022]).
Ferry is also not entitled to dismissal of the OSIB/Rinaldi's insurance procurement claims. The insurance procurement provisions of the Rinaldi's contract with Ferry required that Ferry obtain insurance for itself and OSIB-BCRE and Rinaldi, as additional insureds, covering them, as is relevant here, for "any loss or damage that may arise on account of injuries or death happening to its employees, or to any other person, or to any property caused by or in connection with the operations of [Ferry] under this contract" (Rinaldi - Ferry Contract at § 12.1 [a]). Since plaintiffs work for Giant was on the behalf of Ferry, any loss arising from plaintiffs injuries was caused "in connection" with Ferry's operations under its contract with Rinaldi (see Regal Constr. Corp, v National Union Fire Ins. Co. of Pittsburgh, PA, 15 N.Y.3d 34, 38-39 [2010]; Fireman's Fund Ins. Co. v State Natl. Ins. Co., 180 A.D.3d 118, 123-127 [1st Dept 2019], Iv denied35 N.Y.3d 914 [2020]; Tibbetts v LB.M. Corp., 161 A.D.2d 581, 582 [2d Dept 1990]; cf. Worth Constr. Co., Inc. v Admiral Ins. Co., 10 N.Y.3d 411, 415-416 [2008]).
Nevertheless, OSIB/Rinaldi are not entitled to summary judgment in their favor on the insurance procurement claim because their conclusory assertions that Ferry failed to obtain the policies naming them as additional insureds, as required by the insurance procurement clause of the contract, is insufficient to demonstrate their prima facie burden (see Breland-Marrow v RXR Realty, LLC, 208 A.D.3d 627, 629 [2d Dept 2022]; Ginter v Flushing Terrace, LLC, 121 A.D.3d 840, 844 [2d Dept 2014]; Karnikolas v Elias Taverna, LLC, 120 A.D.3d 552, 556 [2d Dept 2014]; cf. Dibuono v Abbey, LLC, 83 A.D.3d 650, 652 [2d Dept 2011]). The fact that Ferry's insurer may have disclaimed coverage on behalf of OSIB/Rinaldi does not, in and of itself, demonstrate that the policies obtained by Ferry failed to comply with the terms of the contract (see Perez v Morse Diesel Inti., Inti., Inc., 10 A.D.3d 497, 498 [1st Dept 2004]; KMO-361 Realty Assoc, v Podbielski, 254 A.D.2d 43, 44 [1st Dept 1998]; Garcia v Great Atl. & Pac. Tea Co., 231 A.D.2d 401, 402 [1st Dept 1996]; see also Dorset v 285 Madison Owner LLC, 214 A.D.3d 402, 404 [1st Dept 2023]).
Ferry, however, is entitled to dismissal of the common-law indemnification and contribution claims against it as Ferry has demonstrated that it did not supervise or control plaintiffs work and that it was not involved in the construction or maintenance of the wood deck at issue (see Debennedetto v Chetrit, 190 A.D.3d 933, 938-939 [2d Dept 2021]; Cutler v Thomas, 171 A.D.3d 860, 861-862 [2d Dept 2019]; Kane v Peter M. Moore Constr. Co., Inc., 145 A.D.3d 864, 869 [2d Dept 2016]; see also McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 377-378 [2011]).
Turning to OSIB/Rinaldi's contractual indemnification claims against Schear, the indemnification provision in Rinaldi's contract with Schear contains the same language as that of the Rinaldi's contract with Ferry. In view of the factual issues with respect to Schear's liability for plaintiff s accident, Schear has failed to demonstrate, prima facie, that that plaintiffs claims did not "arise" out of its work relating to the patio deck, and thus, it is not entitled to dismissal of the contractual indemnification claims against it (see McCullough v One Bryant Park, 132 A.D.3d 491, 493 [ 1 st Dept 2015]; Beltran v Navillus Tile, Inc., 108 A.D.3d 414, 416 [1st Dept 2013]; Soto v Alert No. 1 Alarm Sys., 272 A.D.2d 466, 468 [2d Dept 2000]; see also Fireman's Fund Ins. Co., 180 A.D.3d at 123-127; cf. Worth Constr. Co., 10 N.Y.3d at 415-416). These factual issues, as well as factual issues with respect to OSIB/Rinaldi's own negligence, preclude summary judgment in OSIB/Rinaldi's favor with respect to their contractual indemnification claims against Schear (see Crutch, 192 A.D.3d at 982; Tarpey, 68 A.D.3d at 1100-1101; General Obligations Law § 5-322.1).
Neither Schear nor OSIB/Rinaldi are entitled to summary judgment in their favor with respect to OSIB/Rinaldi's breach of insurance procurement claims. There are factual issues as to whether the accident arose "in connection" with Schear's operations (see Fireman's Fund Ins. Co., 180 A.D.3d at 123-127; cf. Worth Constr. Co., 10 N.Y.3d at 415-416), and, since neither Schear nor OSIB/Rinaldi have supplied copies of Schear's insurance policies, this court cannot determine if the policies obtained satisfy the requirements of the contract. Moreover, OSIB/Rinaldi concede that Schear's insurer has agreed to provide it with a defense, and, contrary to OSIB/Rinaldi's contention, the failure of Schear's insurer to agree to indemnify OSIB/Rinaldi, does not, in and of itself, demonstrate that the policies obtained by Schear do not comply with the terms of the contract (see Perez, 10 A.D.3d at 498; KMO-361 Realty Assoc., 254 A.D.2d at 44; Garcia, 231 A.D.2d at 402; see also Dorset, 214 A.D.3d at 404).
Schear, however, is entitled to summary judgment dismissing OSIB/Rinaldi's common-law indemnification claim against it. In this respect, OSIB/Rinaldi will either be found liable under plaintiffs Labor Law § 200 cause of action and/or plaintiffs common-law negligence cause of action, and thus common-law indemnification would be barred by OSIB/Rinaldi's own negligence (see Crutch, 192 A.D.3d at 981), or plaintiffs claims will be unsuccessful against OSIB/Rinaldi, rendering the common-law indemnification claim academic (see Hernandez, 171 A.D.3d at 896; Hoover, 35 A.D.3d at 372]). Factual issues with respect to the negligence of Schear, OSIB-BCRE and Rinaldi, however, require denial of Schear's motion to the extent that it seeks summary judgment dismissing OSIB/Rinaldi's claim for contribution from Schear (see Romano v New York City Tr. Auth., 213 A.D.3d 506, 508 [1st Dept 2023]; State of New York v Defoe Corp., 149 A.D.3d 889, 890 [2d Dept 2017]).
Turning to the cross claims and counterclaims against OSIB/Rinaldi, as OSIB/Rinaldi's contractual indemnification and breach of contract to obtain insurance claims are the only remaining claims against Ferry, Ferry's common-law indemnification and contribution claims against OSIB/Rinaldi have been rendered academic and are dismissed (see Hernandez v Asoli, 171 A.D.3d 893, 896 [2d Dept 2019]; Hoover v International Bus. Machs. Corp., 35 A.D.3d 371, 372 [2d Dept 2006]). OSIB/Rinaldi are also entitled to summary judgment dismissing Ferry's contractual indemnification claim against them as Rinaldi's contract with Ferry does not contain an indemnification provision that requires OSIB/Rinaldi to indemnify Ferry.
With regard to Schear's contractual indemnification and breach of contract to obtain insurance claims against OSIB/Rinaldi, OSIB/Rinaldi are entitled to dismissal of those claims because Rinaldi's contract with Schear does not contain indemnification or insurance procurement provisions for the benefit of Schear. OSIB/Rinaldi are also entitled to dismissal of Schear's common-law indemnification claim as against them since Schear will either be found liable under plaintiffs Labor Law § 200 cause of action and/or plaintiffs common-law negligence cause of action, and thus common-law indemnification would be barred by Schear's own negligence (see Crutch, 192 A.D.3d at 981), or plaintiff s claims will be unsuccessful against Schear, rendering Schear's common-law indemnification claim academic (see Hernandez, 171 A.D.3d at 896; Hoover, 35 A.D.3d at 372]). Factual issues with respect to the negligence of Schear, OSIB-BCRE and Rinaldi, however, require denial of OSIB/Rinaldi's motion to the extent that it seeks summary judgment dismissing Schear's claim for contribution from them (see Romano, 213 A.D.3d at 508).
Accordingly, it is hereby, Plaintiffs motion (motion sequence number 6) is denied, and it is further,
ORDERED, that OSIB/Rinaldi's motion (motion sequence number 7) is granted to the extent that: (1) plaintiffs Labor Law §§ 240 (1) and 241 (6) causes of action are dismissed; (2) the common-law negligence and Labor Law § 200 causes of action are dismissed to the degree that they are premised on a means and methods theory of liability; (3) Ferry's counterclaims/cross-claims are dismissed as against them; and (4) Schear's cross-claims for contractual indemnification, common-law indemnification and breach of contract are dismissed as against them. OSIB/Rinaldi's motion is otherwise denied, and it is further, .
ORDERED, that Ferry's cross motion (motion sequence number 8) is granted to the extent that that (1) plaintiffs Labor Law 240 (1) cause of action is dismissed, and (2) OSIB/Rinaldi's third-party claims for common-law indemnification and contribution are dismissed as against it. Ferry's cross motion is otherwise denied, and it is further, ORDERED, that Schear's cross motion for summary judgment dismissing plaintiffs commonlaw negligence and Labor Law §§ 200 and 240 (1) causes of action (motion sequence number 9) is granted to the extent that (1) plaintiffs Labor Law 240 (1) cause of action is dismissed, and (2) the common-law negligence and Labor Law § 200 causes of action are dismissed to the degree that they are premised on a means and methods theory of liability. In addition, in searching the record, this court grants summary judgment in Schear's favor dismissing plaintiffs Labor Law § 241 (6) cause of action as against it. Schear's cross motion is otherwise denied, and it is further.
ORDERED, that Schear's cross motion addressed to OSIB/Rinaldi's claims (motion sequence number 10) is granted to the extent that OSIB/Rinaldi's claims for common-law indemnification against Schear are dismissed. Schear's cross motion is otherwise denied.
This constitutes the decision and order of the court.