Opinion
Index Nos. 152626/2016 005 007
08-04-2022
SEAN DIAMOND, Plaintiff, v. TF CORNERSTONE INC., CARNEGIE HALL TOWER II, L.L.C., ABM INDUSTRIES, INC. D/B/A ABM JANITORIAL SERVICES NORTHEAST, INC., KLEAR ELECTRICAL CORP., UNITY BUILDING SECURITY, INC., Defendants.
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. DAKOTA D. RAMSEUR JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 005) 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 119, 121, 151, 152, 153, 154, 184' 185, 186, 187, 188, 189, 190, 191, 192, 193, 209, 212, 213, 214, 310, 311, 312, 374 were read on this motion to/for JUDGMENT - SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 007) 138, 139, 140, 141, 142143 144 145, 146, 147, 148, 149, 150, 194, 200, 201,202, 203, 204, 205, 206, 207, 208, 210, 211, 215' 216' 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 255, 256, 257, 258, 259' 26(/ 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291.292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304' 305, 306, 307, 308, 309 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER
Plaintiff, Sean Diamond (plaintiff), commenced this action seeking damages for personal injuries and pursuant to Labor Law § 241(6) stemming from a November 15, 2015 fall on a stairway in Carnegie Hall Tower, located at 152 West 57th Street, New York, New York (premises). In motion sequence 005, co-defendant, Klear Electrical Corp. (Klear), now moves pursuant to CPLR 3212 for summary dismissal of the amended complaint and all cross claims with prejudice. Co-defendant, ABM Industries, Inc. d/b/a ABM Janitorial Services Northeast, Inc. (ABM) now cross-moves pursuant to CPLR 3212 for summary dismissal of the amended complaint and all cross claims, including those sounding in failure to procure insurance, indemnification, and contribution. In motion sequence 007, plaintiff now moves pursuant to CPLR 3212 for summary judgment on his claims under Labor Law § 241(6) and for negligence against co-defendants ABM, Klear, TF Cornerstone Inc. (TF Cornerstone), Carnegie Hail Tower II, LLC (Carnegie), and Unity Building Security, Inc. (Unity). TF and Carnegie now cross-move pursuant to CPLR 3212 for summary dismissal of plaintiff's claim under Labor Law § 241(6) and Unity cross-moves pursuant to CPLR 3212 for summary dismissal of the amended complaint. The motions are opposed. For the following reasons, the motions and cross-motions for summary dismissal of plaintiffs claims under Labor Law § 241(6) are granted, and the motions and cross-motions concerning plaintiffs claim for negligence are denied.
FACTUAL BACKGROUND
Plaintiff commenced this action for personal injuries resulting from a slip on a chipped or broken step. Specifically, plaintiff testified that he was injured when he slipped and fell on the fourth step from the bottom of the stairway located between the 60th and 61 st floors at the premises. TF Cornerstone managed the premises and Carnegie owned the premises. ABM provides janitorial and maintenance sendees at the premises. Klear is an electrical contractor hired to maintain the lighting in the public areas within the premises. Unity was contracted to provide fire safety and security personnel in the lobby area of the premises.
On the date of the incident, plaintiff was employed by non-party Otis Elevator Co. as an elevator mechanic assigned to repair the freight elevator located within the premises. Specifically, plaintiff was called to fix a problem with the door locks on the elevator, which resulted in the elevator shutting down intermittently. Plaintiff testified that his work consisted of wiping the elevators rollers and tracks to remove a buildup of dust and gunk, what plaintiff referred to as "maintenance bump" (NYSCEF doc. no. 246, pla dep at 82:21-83:11). Plaintiff further testified that he had to replace a couple of "gibs," which plaintiff explained are used to insert the doors into the tracks, as they wore out from "too much play" (id. at 140:19-141:4).
Plaintiff testified that after he finished working, he exited the freight elevator on the 60th floor and ascended the staircase to the 61st floor in order to bring his tools back to his base. Plaintiff then proceeded down the staircase to the 60th floor so that he could take the elevator to the lobby, as there was no elevator service on the 61st floor. Plaintiff testified that he walked down the initial steps to the landing and then down the second ten steps. As he reached the fourth step from the bottom of the 60th floor, his right foot moved out from under him, and he slid down the remaining steps.
Plaintiff further testified that he looked at the step as he was descending the staircase, including immediately before stepping onto the step, and did not observe anything on the step. Plaintiff further testified that while he didn't notice anything on the step, "[i]t was a little dark, it wasn't the most lighted stairs" (id. at 61:21-22). Plaintiff further testified that he looked at the subject step after he fell and observed that there was a four- or five-inch chip in the step. Plaintiff further testified that there were two lights in the stairway, one at the top of the staircase and one at the bottom, and that both were illuminated at the time of his fall. Photographs of the alleged defective step reveal a groove, or "chip," on the edge of the right side of the fourth step from the landing. Plaintiff further testified that the lighting in the staircase was "dim to medium" and that the lighting was "probably [] inappropriate" (id. at 63:17-25).
Brian Ralli (Ralli), a maintenance supervisor for Otis, testified that plaintiff was performing what would be considered routine maintenance (NYSCEF doc. no. 229 20:18-22). Ralli further testified that he completed an accident report addressing the details of the incident the day after. According to the accident report, the cause of plaintiff s accident was attributed to "[n]ot holding the handrail" within the staircase (id. at 25:11-12). Ralli further testified that plaintiff did not tell Ralli that a broken step caused his fall, and that if plaintiff told him he tripped on a broke step, Ralli would have included that information in the accident report.
DISCUSSION
On a motion for summary judgment, the movant carries the initial burden of tendering admissible evidence sufficient to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Once the movant meets its initial burden, the burden shifts to the opposing party to "show facts sufficient to require a trial of any issue of fact" (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). When deciding the motion, the Court's views .the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v. Stop &Shop, Inc., 65 N.Y.2d 625, 626 [1985]). Summary judgment may be granted upon a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence sufficient to eliminate material issues of fact (CPLR 3212 [b]; Alvarez, 68 N.Y.2d at 324; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
Labor Law 241(6)In support of their respective motions for summary dismissal of plaintiff s claims pursuant to Labor Law § 241(6), defendants argue that plaintiff was not performing work as defined pursuant to the statute at the time he was injured. ABM and Unity also argue that they are improper defendants under Labor Law § 241(6) in that they are neither owners nor contractors under the statute. In opposition, plaintiff argues that his injury resulted from work that was part of ongoing construction at the premises and that he was performing a repair within the context of Labor Law § 241 (6).
Labor Law § 241 (6) imposes a nondelegable duty on owners, contractors, and their agents to ensure that construction, demolition, and excavation operations at construction sites are conducted so as to provide for the reasonable and adequate protection of construction workers (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 350 [1998]). By its terms, Labor Law § 241(6) applies to repairs that arise during construction, demolition or excavation, but not to repairs that constitute routine maintenance (Nagel v D &R Realty Corp., 99 N.Y.2d 98 (2002) ["The Industrial Code definition of 'construction work;' which includes maintenance, must be construed consistently with this Court's understanding that section 241(6) covers industrial accidents that occur in the context of construction, demolition and excavation"]). "The Industrial Code definition of'construction work' [12 NYCRR 23-1.4(b)(l 3)], which includes maintenance, must be construed consistently with this Court's understanding that section 241(6) covers industrial accidents that occur in the context of construction, demolition and excavation" (id. at 103; Caban v Maria Estela Houses I Assocs., L.P., 63 A.D.3d 639, 640 [1st Dept 2009]).
Here, defendants establish their entitlement to dismissal of plaintiffs claims pursuant to Labor Law § 241(6) by demonstrating that plaintiffs injuries were not the result of construction, demolition, and excavation at the premises within the meaning of section 241(6). It is undisputed that at the time of plaintiff s fall, plaintiff was performing repair work on the subject elevator, and as discussed below, there is no proof that the injury producing work was in the context of construction, demolition or excavation (see Donnelly v Treeline Companies, 13 A.D.3d 143, 143 [1st Dept 2004] ["Since the accident resulting in the death of plaintiffs decedent, which occurred during repair of an elevator owned, operated and maintained by defendants, did not occur in the context of construction, demolition or excavation, the claim under Labor Law § 241(6) is precluded"]; Peluso v 69 Tiemann Owners Corp., 301 A.D.2d 360, 361 [1st Dept 2003] ["Here, plaintiff was examining the electrical control panel in the basement in an attempt to repair an elevator that was not stopping level with the floor, but was otherwise functioning. The repair work was being performed on the elevator, not on a building or other structure as required by both statute and regulation"]). As the incident in this case occurred during a repair and there is no evidence that construction, demolition or excavation was in progress, plaintiffs claims under Labor Law § 241(6) must be dismissed (see Mata v Park Here Garage Corp., 71 A.D.3d 423, 424 [1st Dept 2010] ["Labor Law § 241(6), however, is inapposite because plaintiff was not performing his work in the context of construction, demolition or excavation"]).
Plaintiff contends that he was injured while in the premises to repair the freight elevator, which, plaintiff contends, was an integral part of ongoing construction within the premises. In determining whether plaintiff was working in a construction area within the meaning of Labor Law § 241(6), the court looks to such factors as physical proximity and common ownership and operation of the off-site premises (see Karwowski v 1407 Broadway Real Est.. LLC. 160 A.D.3d 82, 86 [finding an issue of fact as to whether plaintiff's worksite constituted an "area] ] in which construction, excavation or demolition work is being performed" under Labor Law' 241 § (6) where the plaintiff was injured while performing cutting work connected to renovation within the defendants' building]). "Labor Law 241(6) extends to areas where materials or equipment are being readied for use, as opposed to areas where they are merely stored for future use" (id. [internal citations and quotations omitted]). Plaintiff fails to present any proof demonstrating that his work was part of a broader construction project. In fact, plaintiff unequivocally testified that his work the day of the incident was not in conjunction with any other work. Moreover, there is no factual basis to support plaintiffs vague testimony that there was construction going on in the premises or any link between plaintiffs repair work on the elevator and any other work taking place at the premises.
Plaintiff also cites to McCrea v Arnlie Realty Co. LLC, 140 A.D.3d 427, 429 [1st Dept 2016]) for the proposition that "[discerning if an accident occurring in the context is repair, falling under the protection of § 241 (6), turns on whether the machinery was inoperable or malfunctioning at the commencement of the work" (NYSCEF doc. no. 1 39, 31). The plaintiff in McCrea was injured while performing elevator repair work when an elevator fell on top of him (McCrea, 140 A.D.3d at 429). However, the court in McCrea only addressed whether the plaintiff was performing a "repair" under Labor Law § 240, not Labor Law § 241(6) (id.). The distinction is critical, as "[u]nlike Labor Law § 240, which includes repair work. Labor Law § 241(6) is limited to those areas in which construction, excavation, or demolition work is being performed" (Barrios v 19-19 24th Ave. Co.. LLC, 169 A.D.3d 747 [2d Dept 2019]).
Further, ABM and Unity are not a proper Labor Law § 241(6) defendant for the additional reason that they did not have supervisory control over plaintiff. "A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured" (Linkowski v City of New York, 33 A.D.3d 971, 974-975 [2d Dept 2006]). "To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition" (id.). Here, it is undisputed that neither ABM nor Unity were owners or general contractors or that either defendant had control or any supervisory authority over plaintiff s work on the date of the incident. Plaintiff fails to address this point in his opposition. Accordingly, plaintiffs claims under Labor Law § 241(6) are dismissed.
Negligence
A landowner or possessor has a duty to exercise reasonable care to maintain its premises in a safe condition (Basso v. Miler, 40 N.Y.2d 233, 238 [1976]). For the landowner to be held liable for a dangerous condition on its premises, the injured party must prove that the landowner created the alleged dangerous condition or had actual or constructive notice of the condition (Gordon v American Mueum of Natural History, 67 N.Y.2d 836, 838 [1986]). To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it (see Strowman v Great All. & Pac. Tea Co., Inc., 252 A.D.2d 384 [1998]) "To be entitled to partial summary judgment a plaintiff does not bear the. double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (Rodriguez v City of New York, 31 N.Y.3d 312, 323 [2018]).
Klear
In support of it motion for summary judgment on plaintiff s claim for negligence, Klear contends that plaintiffs fall was not caused by inadequate lighting, but rather the broken step. In opposition, plaintiff argues that an issue of fact exists as to whether inadequate lighting was a proximate cause of plaintiff s fall. Plaintiff further argues that whether he was able to see the stairs before the fall and whether plaintiff could notice the broken step after his fall does not foreclose the argument that inadequate lighting contributed to the fall.
An issue of fact exists as to whether inadequate lighting was a proximate cause of plaintiffs fall. When asked whether he observed a foreign substance on the steps, plaintiff testified that he "[d]id not. It was a little dark, it wasn't the most lighted stairs" Plaintiff's unrebutted testimony further reveals that, at the time of his fall, the lighting in stairway was "probably inappropriate" and was "dim to medium" (pla dep at 61:12-22; 63:12-25; 66: 4-8) (see Santiago v New York City Hous. Auth., 268 A.D.2d 203, 204 [holding that a jury could properly find that inadequate lighting in stairwell was a proximate cause of plaintiffs fall where plaintiff testified that the stairwell on which she fell was dark and that she slipped on a step that she could not see clearly]; cf Sarmiento v C & E Assocs., 40 A.D.3d 524, 526 [1st Dept 2007]). In light of plaintiffs testimony, a jury could reasonably infer that plaintiff could not see the broken portion of the step because of the dimly lit stairway.
Klear further contends that plaintiff attributed his fall to the defective step, not the lighting within the stairway. To this end. Klear cites to the testimony wherein plaintiff was asked "[i]s there any reason why you fell down the steps beside slipping on that step?," to which plaintiff responded, "1 don't know, what else could make me fall" (id. at 66:22-25). Plaintiff's response does not preclude his argument that inadequate lighting was a proximate cause of his fall. Indeed, plaintiff was not asked whether the lighting contributed to his fall. Thus, the branch of Klear's motion for summary dismissal of plaintiffs negligence claim on the basis that inadequate lighting w-as not a proximate cause of plaintiff s injury is denied.
Klear also fails to demonstrate that it did not have notice of the defective lighting condition. Klear submits an affidavit from its president, Gary Gerome, wherein he states that Klear "[h]ad no notice of any lights being out in the staircase between the 60th and 61st floors" in the premises (NYSCEF doc. no. 99 at ¶E). The president's affidavit is self-serving and conclusory, and thus, fails to demonstrate that there is no issue of fact as to whether Klear had notice of the alleged inadequate lighting condition. Thus, the branch of Klear's motion for summary dismissal of plaintiffs negligence claim is denied.
While Klear seeks dismissal of the cross claims, it does not specifically address the cross claims in substance. Accordingly, the branch of Klear's motion to dismiss the cross claims is also denied.
ABM
ABM argues that it did not owe plaintiff a duty of care, as it performed janitorial services at the premises pursuant to an agreement which plaintiff was not a party. Thus, ABM argues, plaintiff cannot establish that ABM owed a duty to the plaintiff or a duty of reasonable care independent of its contractual obligations to Cornerstone. In opposition, plaintiff argues that ABM was responsible for cleaning the premises, including the subject staircase. Plaintiff also argues that the amended complaint alleges negligence in the transporting of oil and lubricants, among other liquids, on the staircase and whether the use of cleaners caused a breakdown of the stairway (NYSCEF doc. no. 200, pla opp to ABM mtn at ¶15).
"[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal v Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138 [2002]; Church ex rel Smith v Callanan Indus, Inc, 99 N.Y.2d 104, 111 [2002] ["Ordinarily, breach of a contractual obligation will not be sufficient in and of itself to impose tort liability to noncontracting third parties upon the promisor"]). The Court in Espinal articulated three exceptions to the rule:
"[A] party who enters into a contract to render services may be said to have assumed a duty of care-and thus be potentially liable in tort-to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely."
(id. at 140 [internal quotation marks and citations omitted]). i
On a motion for summary judgment involving the application of the Espinal exceptions, the defendant contractor makes a prima facie showing of its entitlement to judgment as a matter of law by offering proof that the plaintiff was not a party to the contract (Foster v Herbert Slepoy Corp. 76 A.D.3d 210 [2d Dept 2010]). Further, if the plaintiff alleges "facts in her complaint or bill of particulars which would establish the possible applicability of any of the Espinal exceptions," then the defendant is required to "affirmatively demonstrate" that none of the exceptions apply in making a prima facie showing (Leibovici v Imperial Parking Mgt. Corp., 139 A.D.3d 909, 910 [2d Dept 2016]; Foster, 76 A.D.3d 210 [The prima facie showing that a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings]). Thereafter, the burden shifts to the plaintiff to raise an issue of fact as to the applicability of the Espinal exceptions (see Ankin v Spitz, 129 A.D.3d 1001, 1003 [2d Dept 2015]).
Here, ABM establishes that plaintiff was not a party to the agreement between ABM and Cornerstone. However, plaintiff correctly argues that the amended complaint alleges that ABM was responsible for providing janitorial services at the premises, that ABM was responsible for maintaining the stairs and stairways within the premises, including by keeping them in good repair, and importantly, that ABM caused the subject condition by allowing certain chemicals to remain on the steps, causing chemical degradation (NYSCEF doc. no. 202, amended compl at ¶45). Thus, the amended complaint alleges facts concerning the first Espinal exception (see Barone v Nickerson, 140 A.D.3d 1100, 1102 [2d Dept 2016] ["Here, the plaintiff alleged facts in his complaint and bills of particulars in support of his assertion that the defendants created or exacerbated the alleged dangerous conditions and, thus, launched a force or instrument of harm"]).
The second and third Espinal exceptions are inapplicable as plaintiff s opposition does not cite to any allegations that Cornerstone detrimentally relied on any continued performance by ABM or that ABM in any way displaced Cornerstone's duty to maintain the premises safely in order to satisfy its prima facie burden (Foster, 76 A.D.3d at 214).
In light of the above, it is ABM's burden on its cross-motion to demonstrate that it did not "launch a force or instrument of harm." Here, ABM fails to demonstrate that it did not cause or create or have notice of the alleged defective condition. ABM submits the affidavit of Hatidze Capric, a site supervisor employed by AMB, wherein he states that ABM did not have notice of the alleged condition and that it "[d]id not create or exacerbate any allegedly hazardous condition alleged by plaintiff in this action" (NYSCEF doc. no. 192 at ¶6). ABM does not submit any other proof demonstrating that it did not create the alleged condition. Thus, ABM's "[submissions were insufficient to make a showing that it did not launch any force or instrument of harm, and its failure to do so precludes the dismissal of the claim against it on this motion" (Lopez v New York Life Ins. Co., 90 A.D.3d 446, 448 [1st Dept 2011]; see Salomon v United States Tennis Assn, 181 A.D.3d 446, 447 [1st Dept 2020] ["Upon a movant's failure to establish prima facie entitlement to summary judgment, the motion is to be denied notwithstanding the strength of the opponent's evidence"]).
As for plaintiffs claim that ABM was responsible for lighting at the premises, the section of the agreement addressing lamping states that "ABM agrees at its cost to furnish and install replacement electric light bulbs, tubes, ballasts and starters as required for public interior and exterior building areas" (NYSCEF doc. no. 214, agreement at 12). While ABM submits testimony from Cornerstone's representative indicating that Klear was responsible for lighting at the premises, ABM's site supervisor does not indicate that ABM did not perform any work as it relates to lighting at the premises. Accordingly, issues of fact exist as to whether ABM exercised reasonable care in performing its duties under the contract.
Unity
In support of its motion for summary dismissal of plaintiff's negligence claim. Unity argues that it did not have a duty to inspect the premises for defects unrelated to fire safety. Specifically. Unity contends that it entered into an agreement with Carnegie to provide fire safety and security personnel services, but that the agreement did not include an obligation for Unity to inspect the stairways for the type of defect that plaintiff alleges caused him to fall. In opposition, plaintiff argues that Unity assumed a duty to inspect the building stairways.
While Unity's moving papers acknowledge the existence of a services agreement wherein Unity agreed to provide uniformed fire safety and security personnel for the building lobby at the premises. Unity fails to address the Espinal considerations in any meaningful way. Thus, Unity's moving papers fail to demonstrate that Unity's actions did not launch a force or harm by creating or exacerbating an alleged hazardous condition on the subject step, that the terms of the services agreement between Unity and Carnegie did not entirely displaced Carnegie's duty to safely maintain the premises, and there that plaintiff relied on Unity's performance of its contractual duties (.see Espinal, 98 N.Y.2d 136). Unity further fails to address the testimony by Joseph Ferriso, Cornerstone s representative, wherein he testified that Unity was responsible for inspecting the premises, including the subject stairways, for defects (NYSCEF doc. no. 37:14-38:15: 41:3-42-10). Accordingly, Unity's cross-motion for summary' dismissal of the amended complaint is denied.
Contribution, Indemnification, and Failure to Procure Insurance
A claim for contribution arises when "[t]wo or more tort-feasors share in responsibility for an injury, in violation of duties they respectively owed to the injured-person" (Smith v Sapienza, 52 N.Y.2d 82, 87 [1 981]; CPLR 1401). "The party seeking contractual indemnification must establish that it was tree from negligence and that it may be held liable solely by virtue of statutory or vicarious liability" (Jardin v A Very Special Place, Inc., 138 A.D.3d 927, 931 [2d Dept 2016]). "The right to contractual indemnification depends upon the specific language of the contract' (Bermejo v New York City Health & Hosps. Corp., 119 A.D.3d 500, 503 [2d Dept 2014]). To prove a claim for common law indemnification, the movant must show that he or she has been held vicariously liable for the wrongdoing of another (see Structure Tone, Inc. v Universal Services Group. Ltd., 87 A.D.3d 909, 911 [1st Dept 201 I]). Here, ABM is not entitled to judgment as a matter of law dismissing the cross claims for contribution, contractual common law indemnification, as ABM fails to demonstrate that it did not owe plaintiff a duty and that ABM did not contribute to plaintiffs injuries.
As for the branch of its motion for summary dismissal of those cross claims alleging failure to procure insurance, ABM submits unrebutted proof that the subject policy contains an endorsement, including a blanket endorsement, for contractually designated additional insureds (NYSCEF doc. no. 193, insurance policy at endorsements 4 and 7). As ABM's showing is unopposed, those claims for failure to procure insurance asserted against ABM are dismissed.
Accordingly, it is hereby
ORDERED that Klear's motion pursuant to CPLR 3212 for summary dismissal of the amended complaint and cross claims (motion sequence 005) is granted to the extent that plaintiffs Labor Law § 241(6) claim is dismissed; and it is further
ORDERED that ABM's cross-motion pursuant to CPLR 3212 for summary dismissal of plaintiffs amended complaint and cross claims (motion sequence 005) is granted to the extent that plaintiffs Labor Law §241(6) claim and the cross claims for failure to procure insurance are dismissed; and it is further
ORDERED that plaintiffs motion for summary judgment on the amended complaint (motion sequence 007) is denied; and it is further
ORDERED that Unity's cross-motion pursuant to CPLR 3212 for summary dismissal of the amended complaint (motion sequence 007) is denied; and it is further
ORDERED that TF Cornerstone and Carnegie's cross-motion pursuant to CPLR 3212 for summary dismissal of plaintiffs Labor Law § 241(6) claim (motion sequence 007) is granted; and it is further
ORDERED that Klear shall serve a copy of this decision and order upon all parties, with notice of entry, within ten (10) days of entry.
This constitutes the decision and order of the Court.