Opinion
11229/08.
Decided June 30, 2011.
The following papers numbered 1 to 37 read on this motion by defendant Site Safety, LLC (Site Safety) pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross claims asserted against it; and this motion by defendants 653 Eleventh Ave., LLC s/h/a 653 Eleventh Ave LLC (653 Eleventh Ave.) and Flintlock Construction Services, LLC (Flintlock) pursuant to CPLR 3211 and 3212 dismissing the complaint and all cross claims asserted against them; and this cross motion by plaintiff pursuant to CPLR 3212 for summary judgment on the issue of liability as against defendants Flintlock and 653 Eleventh Ave., and for leave to amend his complaint and bill of particulars as proposed.
Numbered
Paper Notices of Motion-Affidavits-Exhibits........ 1-8 Notice of Cross Motion-Affidavits-Exhibit.... 9-15 Answering Affidavits-Exhibits................ 12-25 Reply Affidavits............................. 26-36 Supplemental Summons and Amended Complaint, dated October 29, 2010...................... 37Upon the foregoing papers it is ordered that the motion numbered 16 and the motion numbered 17 and the cross motion thereto, on the motion calendar for March 24, 2011 are determined together as follows:
Defendant 653 Eleventh Ave., the owner of the land and building located at 653 11th Avenue, New York, New York (the premises), engaged defendant Flintlock as the general contractor for a construction project to convert the building to a hotel. Defendant Flintlock allegedly hired Danica Corp. (Danica), plaintiff's employer, to perform air-conditioning, heating and ventilation installation, and plumbing work on the project, and engaged defendant Site Safety, as a site safety manager for the project. Plaintiff alleges that during the course of his employment on January 16, 2008, he tripped and fell on a piece of plywood lying across the sidewalk abutting the premises while carrying an air-conditioning unit by hand with a coworker. Plaintiff also alleges that a height differential of approximately 3" existed between the surface of the plywood and the adjacent ground and sidewalk, and the plywood was not chamfered or "ramped up," or secured.
Plaintiff commenced this action to recover damages for personal injuries, including a broken ankle, asserting causes of action based upon violation of Labor Law § 241(6), predicated on alleged violations of 12 NYCRR 23-1.5, "12 N.Y.C.R.R. 23-17[sic] (e)(1) and (2), " and common-law negligence.
Plaintiff intended to assert a violation of 12 NYCRR 23-1.7(e)(1) and (2). 12 NYCRR 23- 17(e) was a typographical error insofar as there is no rule or regulation numbered 23-17.
Plaintiff did not assert a claim based upon violation of Labor Law § 200.
Defendants Flintlock and 653 Eleventh Ave. served a joint amended answer, dated July 22, 2008, denying the material allegations of the complaint, and asserting various affirmative defenses and cross claims against defendant Site Safety for common-law contribution and indemnification, and contractual indemnification and breach of an agreement to secure liability insurance coverage in favor of Flintlock and 653 Eleventh Ave.
Defendant Site Safety served an amended answer denying the material allegations of the complaint, asserting various affirmative defenses, and cross claims against defendants Flintlock and 653 Eleventh Ave. for common-law contribution and indemnification, contractual indemnification and breach of an agreement to procure liability insurance coverage in its favor.
By so-ordered stipulation dated January 15, 2010, defendant Flintlock agreed to provide a letter within 20 days of the date of the stipulation setting forth the name and address of the company which performed "excavation for sewage on the sidewalk in front of the 48th Street vehicular driveway/entranceway for the subject building prior to the accident," and "[t]he record(s) which identify the company that performed the aforesaid excavation. Pursuant to that so-ordered stipulation, plaintiff was granted leave to supplement and amend his pleadings to add the "sewer excavator" at the project as a defendant upon identification of such company. As of the time of the making of the instant motions, plaintiff had yet to serve a supplemental summons and amended complaint. Plaintiff, however caused a supplemental summons and amended complaint dated October 29, 2010, naming Copper Plumbing Heating, LLC (Copper Plumbing) as an additional party defendant, to be served and filed during the period after the instant motions were made, but prior to the date they were marked fully submitted. Defendants Flintlock and 653 Eleventh Ave. served a joint answer dated December 9, 2010 to the amended complaint during this period. It is unclear from the submissions and the records on file with the County Clerk whether defendant Site Safety served an answer to the amended complaint.
The reason for the delay is unclear from the submissions.
Cooper Plumbing has not appeared in relation to the instant motions.
CPLR 3212(a) provides that "[a]ny party may move for summary judgment in any action, after issue has been joined." Although an original complaint is superceded upon service of an amended complaint ( see Pourquoi M.P.S. v Worldstar Intl. , 64 AD3d 551 ), an amendment seeks to change the pleading, whereas a supplement serves to make an addition to the original complaint ( see generally Mendrzycki v Cricchio , 58 AD3d 171 ; see also Lovisa Constr. Co. v Facilities Dev. Corp., 148 AD2d 913, 915; Stella v Stella, 92 AD2d 589). In this case, plaintiff does not assert any new cause of action in his amended complaint against defendants 653 Eleventh Ave., Flintlock and Site Safety. He reasserts claims for violation of Labor Law § 241(6) and common-law negligence, and amplifies the original allegation that "defendants" failed to take those necessary steps to prevent the accident, by adding allegations about defendants' alleged failure to take remedial measures to reduce the tripping hazard in the sidewalk area, including asserting a violation of the "N.Y.C. Administrative Code § 7-10" [sic]. Plaintiff also corrected the typographical error in the original complaint by citing to 12 NYCRR 23-1.7(e)(1) and (2). Given that the respective movants have charted their own procedural course by permitting final submission of these motions after service and filing of the supplemental summons and amended complaint, and that the claims in the amended complaint against defendants are identical to those originally interposed, the court shall deem the instant motions and cross motion to have been directed as against the amended complaint. The court also shall consider issue to have been joined with respect to defendants Flintlock and 653 Eleventh Ave., by virtue of their answer dated December 9, 2010. In addition, the court shall treat the answer originally served by defendant Site Safety as remaining in effect for the purpose of Site Safety's motion for summary judgment ( see Stella v Stella, 92 AD2d at 589).
see n 1. Plaintiff, in the branch of his motion for leave to amend his complaint, originally sought leave to add the additional allegation regarding the violation of the New York City Administrative Code and to correct the typographical error in relation to 12 NYCRR 23-1.7(e)(1) and (2). Plaintiff, in his reply papers, now admits that he also made a typographical error in the amended complaint in relation to the section of the New York City Administrative Code allegedly violated by defendants. Plaintiff intended to assert a violation of section 7-210, as opposed to section 7-10 (which does not exist), of the New York City Administrative Code, and seeks leave to amend the amended complaint to reflect the section of the Code he intended ( see infra at 4).
That branch of the motion by plaintiff for leave to amend the complaint and bill of particulars is granted to the extent of granting plaintiff leave to amend the amended complaint dated October 29, 2010 to substitute "N.Y.C. Administrative Code § 7-210" in place and stead of "N.Y.C. Administrative Code § 7-10" at paragraph 41.
see n 5.
The motion for summary judgment by defendant Site Safety is timely, having been made returnable on June 10, 2010 ( see so-ordered stipulation, dated January 15, 2010). The motion by defendants Flintlock and 653 Eleventh Ave. and that branch of the cross motion by plaintiff for summary judgment in his favor likewise are timely made (CPLR 3212[a]). The note of issue was originally filed on January 15, 2010, but subsequently was vacated by the court in the trial scheduling part on December 16, 2010. By compliance conference order dated March 23, 2011, plaintiff was directed to serve and file a note of issue by July 1, 2011.
It is well established that the proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact," ( Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of its position ( see Zuckerman v City of New York, 49 NY2d 557, supra). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied ( see Rotuba Extruders v Ceppos, 46 NY2d 223, 231). Summary judgment should be granted only when there is no doubt as to the absence of triable issues ( see Andre v Pomeroy, 35 NY2d 361, 364).
Plaintiff testified at his examination before trial that he was employed by Danica to assist a mechanic to install ducts at the project beginning in July or August 2007, and received instructions on the work to be performed from the Danica foreman. He also testified that he took his instructions from Danica and received safety instructions during safety meetings. Plaintiff indicated that on the day of the accident, his job was to unload air conditioning units from a tractor trailer, parked across 48th Street, to an area near a sidewalk ramp leading to an exterior elevator on the job site so the units could be taken to the upper floors of the building. He stated that the units came in wooden crates and it was his responsibility to "break down" the crates. He also stated that not all deliveries were received in the area of his fall, and that deliveries were made from the other side of the ramp by using the stairs. Plaintiff testified that at the time of his accident, he and a coworker were carrying, by hand, and while walking sideways, a rectangular air-conditioning unit which measured 2 feet (in height), by 2 feet (in width), by 7-8 feet (in length) and weighed approximately 100 lbs., from an area in the roadway where it had been offloaded from the tractor trailer, towards the area near the sidewalk ramp. Plaintiff also testified that a piece of raised plywood measuring 4 feet by 8 feet was lying across an area of sidewalk abutting the premises, near the southwest corner of 11th Avenue and 48th Street, New York, New York, and that the sidewalk and plywood were located in the pathway leading between the trailer and the ramp. Plaintiff further testified that he tripped on the raised plywood, which caused him to twist his ankle, and fall and drop the unit. Plaintiff admitted he had seen the plywood across the sidewalk for at least a "month or two" prior to his accident, and had walked over the plywood while carrying two or three units without "difficulties." Plaintiff testified that he made no complaints about safety to anyone and was unaware of any complaints about plywood in the area.
Andrew Stetler, the project manager for defendant Flintlock, testified at his examination before trial that he learned of plaintiff's accident from his site superintendent, and had been advised plaintiff stepped into a wooden palette and twisted his ankle. Mr. Stetler testified that wooden palettes were part of a shipment of heat pumps purchased and being delivered to Danica. Mr. Stetler also testified that the sidewalk where plaintiff allegedly tripped and fell was in front of a doorway into the building and was near a ramp which led to an outside hoist used to transport men and material to the first floor. He further testified that a second means to access the outside hoist, consisting of stairs, was on the other side of the hoist. He indicated that the sidewalk in front of the doorway was an area used by all contractors to gain access to the building, and the doorway also provided access for trucks to the building. According to Mr. Stetler, the area was a driveway, and the curb pre-existed the commencement of the project. He stated there was a second entrance into the building from Eleventh Avenue, which was used by workers. Mr. Stetler testified that a contractor retained by Danica had performed excavation work for the purpose of "sewer service," and that the excavation had run through the sidewalk and into premises. He also testified that the contractor, which had performed the excavation, placed the "wooden planks" (depicted in the photograph marked as plaintiff's Exhibit "4" dated December 16, 2009 [ see Plaintiff's Exhibit "E" annexed to affirmation of Michael Flaks, Esq. dated August 20, 2010]), in front of the doorway on the 48th Street Side. Mr. Stetler further testified that he had observed those planks on or before January 16, 2008, and that the function of the wooden planks was "to cover an excavation which was a hazardous condition." He additionally testified that the planks on the sidewalk were placed on the same day, or within a day or two after the excavation, but he indicated that he could not identify such date without consulting the job logs. Mr. Stetler stated that he observed contract workers carrying material while walking over the plywood during the time period November 17, 2007 through January 16, 2008, and defendant Site Safety was hired to act as the safety manager for the project, and identified the agreement denominated "CONTRACT AND AGREEMENT" (safety management agreement) as the agreement entered between Site Safety and Flintlock. He testified that defendant Site Safety was supposed to conduct daily inspections of the project, including the sidewalks, and that Site Safety did not advise him of any tripping hazard on the sidewalk adjacent to the building on or before January 16, 2008. Mr. Stetler also testified that he could not recall anyone making a complaint on or before January 16, 2008 concerning the plywood. He indicated the height differential, "[w]ith the plywood sitting on the sidewalk, it would have been an inch and a half difference."
Russell Lacerenza, a Site Safety manager, testified at his examination before trial that inspections were made by Site Safety managers, including himself, who then completed logs during each shift. Mr. Lacerenza testified that he never observed the plywood in the area prior to the date of the accident, and did not know the reason the plywood had been placed there. He identified a group of documents as the daily log maintained by defendant Site Safety for the project during the month prior to the accident date, including the document dated January 16, 2008. He also identified the document dated January 16, 2008 as having been filled out by Vincent Carbonaro, another Site Safety safety manager, who Lacarenza believed was deceased. The January 16, 2008 document indicates that for the hours "0700-3:30PM," "STREETS-SIDEWALKS IN GOOD CONDITION CLEAN CLEAR," but also notes an accident of a "SHEETMETAL WKR-REPORT TO FOLLOW." Mr. Lacarenza also identified a document as an accident report prepared by Peter Saliu, a Site Safety employee. That report includes a description of plaintiff's accident, which states "while unloading heat pumps from truck Jose Maldonado tripped on street. . . ."
Pursuant to the safety management agreement, defendant Site Safety was to provide defendant Flintlock with advice on safety matters for the project, develop a safety program and set of safety plans, and monitor the project for compliance with safety laws and regulations. Defendant Site Safety was also to have a safety manager on site on a full-time basis, conduct weekly safety meetings, inspect the project, maintain logs, and report safety issues to Flintlock. The safety maintenance agreement also required that defendant Flintlock indemnify and hold defendant Site Safety harmless for personal injuries caused to persons during the execution of the work being performed by, or on behalf of, defendant Flintlock, except for any damage or injury caused by virtue of the negligent act or omission of defendant Site Safety. In addition, the rider to the safety maintenance agreement required that defendant Site Safety indemnify and hold defendant Flintlock harmless for damages and personal injury claims arising out of the performance of the work by defendant Site Safety or provision of the services under the contract, but only to the extent caused by a negligent act or omission of defendant Site Safety, regardless of whether or not such claim, damage, loss or expense is caused in part by defendant Flintlock. The safety management agreement did not name defendant 653 Eleventh Ave. as a party to, or third-party beneficiary of, the agreement, and defendant 653 Eleventh Ave. was not a signatory to the agreement.
The contract between defendants 653 Eleventh Ave. and Flintlock required, among other things, that Flintlock be responsible for initiating, maintaining and supervising all safety precautions and programs in connection its work, take all necessary precautions for the safety of its employees and all other persons who may be affected by Flintlock's work, and administer and manage a safety plan, including the review of the safety programs of each subcontractor. The contract, however, provided that defendant Flintlock's responsibility for review, monitoring and coordination of the subcontractor's safety programs "shall not extent to direct control over execution of the Subcontractor's safety programs. . . ."
Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners, contractors and their agents to provide reasonable and adequate protection and safety to construction workers, even in the absence of control or supervision of the work site ( see Rizzuto v Wenger Contr. Co., 91 NY2d 343, 348-350, citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502; see also Musillo v Marist College, 306 AD2d 782, 783). "An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability under section 241(6), including contributory and comparative negligence" ( Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 350). Once it has been alleged that a concrete specification of the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor as set forth in the New York Industrial Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction caused the plaintiff's injury, and if proven, the owner or general contractor is vicariously liable without regard to fault ( see Rizzuto v Wenger Contr. Co., 91 NY2d 343, 350, supra). The question of whether a contractor or a subcontractor can be considered an agent of the owner or general contractor for Labor Law § 241(6) purposes depends on whether it was given authority to supervise and control the injury producing activity, or was delegated the duty or obligation to correct unsafe conditions or maintain work site safety ( see Musillo v Marist College, 306 AD2d 782, 783, supra; Everitt v Nozkowski, 285 AD2d 442; Kehoe v Segal, 272 AD2d 583).
The safety management agreement contains no provision allowing Site Safety to exercise control over the work area, the contractors or their employees, or to remedy unsafe conditions. Mr. Stetler testified at his deposition that if Site Safety observed a tripping hazard, Site Safety had the authority to direct the responsible subcontractor to remedy it. The copies of the various daily logs offered by defendant Site Safety in support of its motion indicate that on some occasions, contractors were directed to remedy certain unsafe conditions. Such evidence, however, serves to show that defendant Site Safety had a general responsibility to oversee site safety, but does not prove it had been delegated the authority to oversee and control the activities of plaintiff, or had a duty or obligation to remedy unsafe conditions ( see O'Sullivan v IDI Const. Co., Inc. , 28 AD3d 225 ; Singh v Black Diamonds LLC , 24 AD3d 138 , 140; Torres v Morse Diesel Intl., Inc. , 14 AD3d 401, 403). Thus, defendant Site Safety was not the agent of defendants 653 Eleventh Ave. or Flintlock for the purpose of imposing liability under Labor Law § 241(6), and had no statutory duty to protect plaintiff.
With respect to the claim for common-law negligence, defendant Site Safety contends that plaintiff cannot establish a prima facie case of negligence against it because it did not owe him a duty of care. Defendant Site Safety asserts that it owed no duty of care to plaintiff arising out of its contractual relationship with defendant Flintlock, and no evidence exists that it caused the plywood to be placed in the sidewalk area where plaintiff allegedly had his accident.
"Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party ( see Espinal v Melville Snow Contrs., 98 NY2d 136, 138-139). To the extent plaintiff's claim against defendant Site Safety is premised upon a breach of the safety management agreement, that agreement did not impose upon Site Safety any duty to maintain the premises in a reasonably safe condition, halt the work or enforce the safety plans or control the work of the contractors at the project ( see id. at 140-141; Usman v Alexander's Rego Shopping Ctr., Inc. , 11 AD3d 450 ; see also Parra v Allright Parking Management, Inc. , 59 AD3d 346 ). In addition, defendant Site Safety has established a prima facie case that in its performance of its contractual obligations, it did not create the alleged hazardous condition of the plywood or exacerbate the alleged hazardous condition of the sidewalk by placing plywood on it ( see Espinal v Melville Snow Contrs., 98 NY2d at 141-142; see also Brown v Welsbach Corp., 301 NY 202, 205 [1950]; Cino v City of New York , 49 AD3d 796 ; Losito v City of New York , 38 AD3d 854 ; Kleeberg v City of New York, 305 AD2d 549) id.; see Foster v Herbert Slepoy Corp. , 76 AD3d 210 , 213-214; Grob v Kings Realty Assoc. , 4 AD3d 394 , 395). Plaintiff has failed to raise a triable issue of fact as to whether defendant Site Safety negligently created or exacerbated the alleged hazardous condition.
With respect to plaintiff's claims against defendants 653 Eleventh Ave. and Flintlock pursuant to Labor Law § 241(6), such claims are based on 12 NYCRR 23-1.5, 23-1.7(e)(1) and 23-1.7(e)(2).
12 NYCRR 23-1.5 merely establishes general safety standards, and cannot serve as a predicate for liability pursuant to Labor Law § 241(6) ( see Ulrich v Motor Parkway Properties , LLC, 84 AD3d 1221; Pereira v Quogue Field Club of Quogue, Long Is. , 71 AD3d 1104 ).
12 NYCRR 23-1.7(e)(1) requires owners and general contractors, among other things, to keep all "passageways" free of debris which could cause tripping.
Plaintiff and his expert witness, Nicholas Bellizzi, a civil engineer, assert that the plywood was in a "passageway" in violation of 12 NYCRR 23-1.7(e)(1).
Although expert testimony on the question of whether a certain condition or omission constitutes a violation of a statute or regulation is permitted ( see Dufel v Green, 84 NY2d 795; Roux v Caiola, 254 AD2d 182, 183, lv denied 93 NY2d 803), the determination as to applicability and meaning of the law, including whether a particular condition or omission was in violation of a statute or regulation, is the province of the court ( see Spence v Island Estates at Mt. Sinai ITZHAKI PROPERTIES, LLC , 79 AD3d 936; Messina v City of New York, 300 AD2d 121; Penta v Related Cos., 286 AD2d 674). Notwithstanding the assertion of plaintiff and his expert witness, 12 NYCRR 23-1.7(e)(1) cannot reasonably be interpreted to include such open sidewalk area as is claimed herein to be the accident location ( see Castillo v Starrett City , 4 AD3d 320 , 322; see also Smith v Hines GS Properties, Inc. , 29 AD3d 433; Canning v Barney's New York, 289 AD2d 32). This conclusion is notwithstanding that the area was regularly traversed by workers, including workers carrying materials onto the job site, and was marked with signs redirecting pedestrians away from the area ( see Castillo v Starrett City , 4 AD3d 320 , 322, supra; Canning v Barney's New York, 289 AD2d 320, supra; see also Dalanna v City of New York, 308 AD2d 400; Smith v Hines GS Properties, Inc. , 29 AD3d 433 , supra; cf. Constantino v Kreisler Borg Florman General Const. Co., Inc., 272 AD2d 361; Catapano v Alstom Signaling, Inc., 6 Misc 3d 1020(A) [2005]).
To the degree plaintiff relies upon 12 NYCRR 23-1.7(e)(2), that regulation requires owners and general contractors to keep:
"Working areas. The parts of floors, platforms and similar areas where persons work or pass free from accumulations of . . . debris . . .and from scattered . . . materials and from sharp projections insofar as may be consistent with the work being performed" (emphasis supplied).
A question of fact exists as to whether the area where plaintiff's accident allegedly occurred was a "working area," i.e. a "similar area" where persons "pass," as contemplated by the regulation ( see Smith v Hines GS Properties, Inc. , 29 AD3d 433, supra; Maza v University Ave. Development Corp. , 13 AD3d 65 ; cf. Muscarella v Herbert Const. Co., Inc., 265 AD2d 264). A question of fact also exists as to whether the plywood constituted "accumulat[ed] . . . debris" or "scattered . . . [material]," or a "sharp projection," by virtue of the plywood's exposed edge ( see Giza v New York City School Const. Authority, 22 AD3d 800; Lenard v 1251 Americas Associates, 241 AD2d 391, appeal withdrawn 90 NY2d 937; cf. Wilson v Innovax-Pillar Inc., [Supreme Court, Queens County, Index No. 6996/2005, order dated May 30, 2007, Taylor, J.]), as opposed to material intentionally placed ( see Boyette v Algonquin Gas Transmission Co., 952 F Supp 192 [SD NY 1997] ["two by four" board deliberately placed in proper position to support a pipe so to prevent rust not "scattered" material]).
With respect to plaintiff's claim based upon common-law negligence asserted against defendants 653 Eleventh Ave. and Flintlock, an owner and the general contractor owe a common-law duty to workers to exercise reasonable care to render safe the places of work provided by them, together with the ways and approaches thereto ( see Rimoldi v Schanzer, 147 AD2d 541; Copertino v Ward, 100 AD2d 565, 567; Moore v Suburban Fuel Oil Serv., 22 AD2d 827, affd 16 NY2d 647). In this case, issues of fact exist relating to the cause of plaintiff's fall, and the location where plaintiff allegedly tripped and fell, including whether it was in an area where workers gained ingress and egress, or access for deliveries of materials and equipment, to the job site and therefore, in a way or approach to the place of work ( cf. Moore v Suburban Fuel Oil Serv., 22 AD2d 827, affd 16 NY2d 647, supra). Defendants 653 Eleventh Ave. and Flintlock also have failed to meet their burden of establishing that the plywood did not constitute an inherently hazardous condition at the work area, and whether they maintained the place of work in reasonably safe condition ( see Bruce v Fashion Sq. Assoc. , 8 AD3d 1053 ; Piazza v Frank L. Ciminelli Constr. Co. , 2 AD3d 1345 , 1349; Luckern v Lyonsdale Energy Ltd. Partnership, 281 AD2d 884, 885), and lacked notice of the allegedly hazardous condition. Furthermore, the open and obvious condition of the plywood in the sidewalk area does not negate the common-law duty of defendants 653 Eleventh Ave. and Flintlock to ensure the safety of the work area, but rather bears only upon plaintiff's comparative fault ( see Cortez v Northeast Realty Holdings, LLC , 78 AD3d 754 ; Cupo v Karfunkel , 1 AD3d 48 ). Plaintiff, moreover, has offered evidence sufficient to raise triable issue of fact as to whether defendant 653 Eleventh Ave. had constructive notice of alleged hazard ( see Cuevas v City of New York , 32 AD3d 372 ), and that defendant Flintlock had actual, or at the very least, constructive notice of the plywood condition before his accident.
To the extent plaintiff's claims as against defendant 653 Eleventh Ave. are based upon an alleged violation of Administrative Code of the City of New York § 7-210, that section requires the owner of the real property abutting the sidewalk to maintain the sidewalk in a reasonably safe condition, and imposes liability on the owner for personal injuries proximately caused by the failure of the owner to maintain the sidewalk in a reasonably safe condition. Section 7-210 defines a "[f]ailure to maintain such sidewalk in a reasonably safe condition," to include, "the negligent failure to install, . . . repair or replace defective sidewalk flags and the negligent failure to remove . . . dirt or other material from the sidewalk."
Defendant Flintlock, as the general contractor, is not obligated under Administrative Code § 7-210 to maintain, replace or repair the sidewalk. A contractor, however, may be held liable under common-law for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk ( see Brown v Welsbach Corp., 301 NY 202, 205 [1950]; Cino v City of New York , 49 AD3d 796 ; Losito v City of New York , 38 AD3d 854 ; Kleeberg v City of New York, 305 AD2d 549). In support of its motion for summary judgment, defendant Flintlock has met its burden of establishing that it did not create the allegedly hazardous condition which caused plaintiff to fall ( see Roark v Hunting, 24 NY2d 470, 477; Cino v City of New York , 49 AD3d 796 , supra; Vrabel v City of New York, 308 AD2d 443; Kleeberg v City of New York, 305 AD2d 549; Perriconi v St. John's Preparatory High School, 290 AD2d 546). Plaintiff has failed to raise a triable issue of fact with respect to whether defendant Flintlock caused the plywood to be placed across the sidewalk area.
With respect to whether defendant 653 Eleventh Ave. violated Administrative Code § 7-210, a violation of the Administrative Code of the City of New York constitutes some evidence of negligence (see Cruz v City of New York , 13 AD3d 254). Again, questions of fact remain as to the proximate cause of plaintiff's accident, whether defendant 653 Eleventh Ave. had constructive notice of the alleged hazardous condition of the plywood covering the sidewalk existed, and plaintiff's comparative negligence, if any ( see e.g. White v Gabrielli, 272 AD2d 469).
Thus, that branch of the motion by defendants 653 Eleventh Ave. and Flintlock for summary judgment dismissing the amended complaint asserted against them is granted only to the extent of granting partial summary judgment dismissing the cause of action asserted against them based upon violation of Labor Law § 241(6) predicated upon 12 NYCRR 23-1.5 and 12 NYCRR 23-7(e)(1), and dismissing the claims asserted against defendant Flintlock based upon violation of the Administrative Code of the City of New York § 7-210, and the creation of a dangerous condition upon a public sidewalk. That branch of the cross motion by plaintiff pursuant to CPLR 3212 for summary judgment on the issue of liability as against defendants Flintlock and 653 Eleventh Ave is denied.
That branch of the motion by defendant Site Safety for summary judgment dismissing the cross claim asserted against it by defendants 653 Eleventh Ave. and Flintlock for common-law contribution is granted. Defendant Site Safety has made a prima facie showing that it is entitled to judgment as a matter of law dismissing the cross claim for by defendants 653 Eleventh Ave. and Flintlock for contribution, and defendants 653 Eleventh Ave. and Flintlock failed to demonstrate that Site Safety either owed them a duty of reasonable care independent of Site Safety's contractual obligations owed to defendant Flintlock, or that Site Safety owed a duty of care to plaintiff ( see Roach v AVR Realty Co., LLC , 41 AD3d 821 , 824; Torchio v New York City Hous. Auth. , 40 AD3d 970 , 971).
That branch of the motion by defendant Site Safety for summary judgment dismissing the cross claims asserted against it by defendants 653 Eleventh Ave. and Flintlock for common-law indemnification is granted. Defendant Site Safety has made a prima facie showing of its entitlement to judgment as a matter of law dismissing such cross claim for common-law indemnification by demonstrating that the accident was not due solely to Site Safety's negligent performance or nonperformance of an act solely within its province ( see Jaikran v Shoppers Jamaica, LLC, AD3d [2011], 2011 WL 2410391, 2011 NY App Div LEXIS 5118). Defendants 653 Eleventh Ave. and Flintlock have failed to raise a triable issue of fact in opposition.
That branch of the motion by defendant Site Safety for summary judgment dismissing the cross claim asserted by defendant 653 Eleventh Ave. against it for contractual indemnification is granted. Defendant 653 Eleventh Ave. is not a party to the safety management agreement, and the indemnity provisions contained therein, include no reference to any agreement which obligated Site Safety to indemnify 653 Eleventh Ave. Defendant 653 Eleventh Ave. has failed to raise an issue of fact as to the existence of any other agreement, whereby Site Safety has a duty to provide it with contractual indemnification.
That branch of the motion by defendant Site Safety for summary judgment dismissing the cross claim asserted by defendant Flintlock against it for contractual indemnification is granted. The indemnification provision allows for indemnification for injuries arising out of performance of Site Safety's work or provision of services. Plaintiff's injuries, however, did not arise of the performance of Site Safety's work or provision of services, and defendant Site Safety has demonstrated it did not place the plywood on the sidewalk. Thus, the court need not consider the issue of whether the indemnification provision in the safety management agreement is violative of General Obligations Law § 5-322.1(1) ( see Itri Brick Concrete Corp. v Aetna Cas. Sur. Co., 89 NY2d 786, 795; Cavanaugh v 4518 Assocs. , 9 AD3d 14 ).
That branch of the motion by defendant Site Safety for summary judgment dismissing the cross claim asserted against it for alleged breach of an agreement to procure liability insurance coverage in favor of defendants 653 Eleventh Ave. and Flintlock is denied. The safety management agreement provides that Site Safety will maintain certain liability insurance, including commercial general liability insurance, "as per the listed additional insureds on page 2 of the Certificate of Insurance." Defendant Site Safety, however, has failed to provide a copy of the "Certificate of Insurance," to show defendants 653 Eleventh Ave. and Flintlock are not listed as additional insureds thereon. Under such circumstances, defendant Site Safety has failed to establish entitlement to a judgment dismissing the cross claims asserted by defendants 653 Eleventh Ave. and Flintlock based upon failure to procure liability insurance.
That branch of the motion by defendants 653 Eleventh Ave. and Flintlock for summary judgment dismissing the cross claim asserted by defendant Site Safety for common-law contribution is granted. Inasmuch as defendant Site Safety is not liable to plaintiff for any of his injuries, it cannot seek common-law contribution (CPLR 1401; Raquet v Braun, 90 NY2d 177, 183).
That branch of the motion by defendants 653 Eleventh Ave. and Flintlock for summary judgment dismissing the cross claim asserted by defendant Site Safety for common-law indemnification is granted. Again, defendant Site Safety is not liable to plaintiff for any of his injuries based upon vicarious liability, and thus, cannot obtain common-law indemnification from defendants 653 Eleventh Ave. and Flintlock ( see generally Chapel v Mitchell, 84 NY2d 345).
That branch of the motion by defendant Flintlock for summary judgment dismissing the cross claim asserted by defendant Site Safety for contractual indemnification is granted. The complaint against defendant Site Safety has been dismissed.
That branch of the motion by defendant 653 Eleventh Ave. for summary judgment dismissing the cross claim asserted by defendant Site Safety for contractual indemnification is granted. Defendant 653 Eleventh Ave. is not a party to the safety management agreement, and defendant Site Safety has failed to demonstrate that defendant 653 Eleventh Ave. agreed to provide contractual indemnification, including defense costs, to Site Safety.
That branch of the motion by defendants 653 Eleventh Ave. and Flintlock for summary judgment dismissing the cross claim asserted by defendant Site Safety for breach of contract based on failure to procure insurance coverage is denied. Defendants 653 Eleventh Ave. and Flintlock have failed to make a prima facie showing that they have no contractual duty to procure liability insurance on behalf of defendant Site Safety, or have fulfilled such duty ( see Taylor v Gannett Co., Inc., 303 AD2d 397).
To the extent defendants 653 Eleventh Ave. and Flintlock seek summary judgment in its favor on their cross claims against defendant Site Safety, they failed to move for such relief.