Samaroo v. Patmos Fifth Real Estate, Inc.

Full title: JOSEPH SAMAROO and STEPHEN HERMAN, Plaintiffs, v. PATMOS FIFTH REAL…

Court: Supreme Court of the State of New York, Kings County

Date published: Jun 30, 2011

2011 N.Y. Slip Op. 51217 (N.Y. Sup. Ct. 2011)

Opinion

37170/06.

Decided June 30, 2011.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] DEBRA SILBER, J.

Upon the foregoing papers, (1) defendant A.T.A. Construction Corp. (ATA) moves pursuant to CPLR 3212, for summary judgment dismissing plaintiffs Joseph Samaroo and Stephen Herman's (collectively, plaintiffs) action and all cross claims asserted against it. (2) Defendant/third-party plaintiff Patmos Fifth Real Estate, Inc. (Patmos) moves for summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims against it. Patmos further moves for summary judgment on its common-law indemnification and breach of contract claims against defendant Mazl Building, LLC (Mazl) and on its contractual indemnification and breach of contract claims against defendant/third-party defendant Rotavele Elevator, Inc. (Rotavele). In a second separate motion, Patmos moves for summary judgment dismissing plaintiffs' Labor Law §§ 240 (1), 241 (6), and 241-a claims against it. In a third separate motion, Patmos moves for summary judgment on its common-law and contractual indemnity cross claims and breach of contract cross claim against ATA. (3) Mazl moves for summary judgment dismissing plaintiffs' action and all cross-claims asserted against it. (4) Rotavele and defendant ELS Contracting, Inc. (ELS) move for summary judgment dismissing plaintiffs' action against them. Rotavele moves for summary judgment dismissing Patmos' third-party action and all cross-claims asserted against it, and ELS moves to dismiss all cross-claims. (5) Plaintiff Joseph Samaroo cross-moves for summary judgment under his Labor Law §§ 240 (1) and 241-a claims against Patmos, Mazl, and ATA. (6) Plaintiff Stephen Herman cross-moves for summary judgment under his Labor Law §§ 240 (1) and 241-a claims against Patmos and ATA.

Background Facts and Procedural History

The instant action arises out of an October 14, 2006 accident in which plaintiffs

Samaroo and Herman fell down an elevator shaft and sustained various injuries during the course of a construction/renovation project on a five-story building located at 214-216 East 52nd Street in Manhattan (the building or the premises). Prior to the accident, by written agreement dated November 30, 2005, Mazl, which owned the building at the time, hired ATA to perform "all demolition and restructure" work on the renovation project. ATA was also identified as a "general contractor" on a New York City Department of Building's work permit issued in connection with the work. As originally conceived, the renovation plan called for converting existing commercial space within the building into 10 residential apartment units. In a separate written agreement dated January 27, 2006, Mazl hired Rotavele to install an "overhead traction elevator" within the building's elevator shaft. Among other things, this work included installation of the elevator's motor, guide rails, traveling cables, brakes, shaftway wiring, doors, as well as the elevator car itself.

On or about March 29, 2006, while the renovation project was ongoing, Mazl entered into a contract to sell the premises to Patmos.¹ At the time, Patmos intended to make certain changes to the renovation plan, including increasing the number of residential units to be constructed and providing for commercial space on the first floor of the building. The contract of sale contained a construction agreement whereby Mazl agreed to complete specific renovation work prior to closing for an agreed upon price of $1,350,000.00. The work was identified in a construction schedule, which included a "new cinder block elevator shaft to be provided from the basement to penthouse levels." The construction schedule did not include the installation of the elevator itself. However, under the construction agreement, Patmos agreed to reimburse Mazl for the money it paid to Rotavele and the elevator installation contract between Mazl and Rotavele was attached as a rider to the contact of sale. On June 21, 2006, Mazl and Patmos closed on the property sale. In a fax transmission dated June 25, 2006, Mazl allegedly notified Rotavele that it sold the premises to Patmos and that all of Mazl's contracts were assigned to Patmos as part of the sale.

1 The contract was actually between Mazl and Patmos Immobilare Srl. Subsequently, Patmos Fifth Real Estate (i.e., Patmos) was incorporated. When the closing of the property was held on June 21, 2006, Patmos Immobilare Srl assigned the contract to Patmos and Patmos took title.

On June 23, 2006, Patmos entered into a construction contract with ATA whereby ATA agreed to perform "all demolition and re-structure and mechanicals according to the plans of George Schwartz Architect and supply labor and materials." On September 17, 2006, Patmos entered into a "Temporary Construction Contract" with Mazl. The contract provided in pertinent part:

"WHEREAS, the parties have agreed that [Mazl] will complete all work in accordance with plans to be approved for the premises known as 214 East 52nd Street, New York, New York; and

"WHEREAS, such plans have not been approved as of this date; and

"WHEREAS, the parties have agreed that certain work can be commenced or continued without approval of such plans; and

"WHEREAS, the parties have agreed not to stop work on the site until such approval of the plans; and

"WHEREAS, the parties have agreed that it is not possible to finalize and estimate for work to be done without such final plans.

"NOW, THEREFORE, it is agreed as follows:

"(1) [Mazl] will continue or commence work with good and sufficient materials and in a workmanlike manner of work, which is deemed by [Mazl] and which can be done without approval of plans."

The Temporary Construction Contract also required that Mazl "shall keep a competent foreman, necessary assistants, and a sufficient number of skilled workmen and laborers to properly and promptly perform the work."

On or about September 4, 2006, ATA ceased performing work at the premises. In this regard, ATA's president, Moshe Mishal, testified that ATA had finished performing the work that had been approved up to that point in time and was awaiting the approval of the changes that Patmos made to the architectural plans. Once the changes were approved, ATA would recommence work at the site. Included in the work that ATA had completed at this point was the construction of the walls for the elevator shaft. These walls would ultimately house the elevator machinery that was to be installed by Rotavele. During the week of September 29, 2006, plaintiff Stephen Herman, an ELS employee, began performing elevator installation work at the premises. In this regard, ELS was a "payroll company" wholly owned and controlled by Rotavele. According to Herman's deposition testimony, the first day he arrived at the building, he was accompanied by his supervisor, John Stewart, and a co-worker later identified as Giner "Greg" Alladin. Herman further testified that, "when I first went with [Stewart], he had to call this guy to get a key from this guy because the building was locked and he could not get the guy." According to Herman, Stewart and Greg then kicked the door down in order to gain entry to the building. Thereafter, a new lock was placed on the door by an individual whom Herman assumed worked for the building and Stewart gave Herman a key to this lock. However, at his own deposition, Stewart denied kicking the door down. Rather, Stewart testified that he was given a key to the building by an unidentified individual whom he believed worked for "the general contractor." In any event, once they gained entry to the building, Stewart directed Herman to begin installing the elevator in the shaft.

Over the next few weeks, Herman installed rails and brackets in the elevator shaft. While performing this work, Herman was assisted by various Rotavele employees including Greg, and ultimately, plaintiff Samaroo. According to Herman's deposition testimony, he and his co-workers began the work by building platforms within the elevator shaft, which would serve as work platforms. Specifically, Herman testified that he and his co-workers constructed a platform at the first floor level, then worked their way up until a platform was constructed at all five floors of the elevator shaft. The platforms themselves consisted of seven-foot long, three-inch thick support planks covered with plywood, which was nailed to the planks. Herman testified that one end of the supporting planks rested on the floor outside the elevator shaft and the other end of the planks were inserted into a hole that had been drilled at the back of the elevator shaft. The planks were not secured to the floor or the hole in the shaft. Once the platforms were complete, Herman and his co-workers installed guide rails and brackets within the elevator shaft. As a final matter, Herman testified that, although he had worn safety harnesses while working on prior Rotavele projects, he did not wear a harness on the subject job. In particular, Herman testified that Rotavele did not provide workers with safety harnesses in small-scale projects including the elevator installation job in the subject building.

During the week leading up to the accident, Herman was assisted exclusively by Samaroo, who was directly employed by Rotavele. Like Herman, Samaroo testified that, although he was provided with, and wore, a safety harness during a prior Rotavele project, no safety harness was provided to him on the instant elevator installation job. However, with regard to the construction of the platforms in the shaft, Samaroo's testimony differed from Herman's in certain respects. Specifically, according to Samaroo, on the days leading up to the accident, he and Herman installed a single platform in the shaft at a specific floor, performed the necessary work within the shaft at that level, and then disassembled the platform at the end of the work day. On subsequent days, he and Herman repeated this process on a different floor. In contrast, as previously noted, Herman testified that the completed platforms were left in place even as additional platforms were constructed at other levels. Further, Samaroo testified that the end of the platform's support planks within the elevator shaft rested upon a beam at the back of the shaft, whereas Herman testified that this end of the plank was inserted in a hole drilled in the shaft wall.

According to Herman's deposition testimony, on October 13, 2006, the day prior to the accident, he and Samaroo removed all platforms from the elevator shaft. This was necessary inasmuch as the workers needed to hoist an elevator machine² up the shaft to the motor room at the top of the building. Once this was accomplished, Herman and Samaroo left work for the day. In contrast, Samaroo testified that two days prior to the accident, he and Herman removed a single platform from the third-floor level of the elevator shaft and that no platforms were added or removed from the shaft on the day before the accident.

2 According to Herman, the elevator machine was used to pull the elevator cables.

In any event, it is undisputed that when Herman and Samaroo returned to the building on the day of the accident, there were no platforms within the elevator shaft. Accordingly, once they arrived at the building, Herman and Samaroo built a single platform within the shaft at either the fifth or fourth floor level of the building so as to allow them to install a sheave³ underneath the elevator machine, which had previously been hoisted to the top of the shaft. Once the platform was complete, plaintiffs entered the shaft, whereupon Herman set up an eight-foot ladder on the platform by leaning it against the shaft wall. Herman then climbed the ladder while Samaroo held the apparatus. Once Herman determined that the ladder was secure, he directed Samaroo to hand him various tools. As Samaroo passed Herman a hammer, the platform that they were standing on suddenly collapsed, and both workers, as well as the platform itself, fell to the bottom of the elevator shaft. Neither Herman nor Samaroo knew what caused the platform to collapse and Samaroo testified that he did not hear any wood cracking and did not feel the planks shift under his feet prior to the collapse.

3 Herman testified that the sheave was a wheel that pulled the elevator cables.

By summons and complaint dated March 15, 2007, Samaroo commenced the instant action against Patmos, ELS, ATA, and Mazl seeking damages for the injuries he sustained in the accident. The complaint alleges violations of Labor Law §§ 240 (1), 241 (6), 200, as well as common-law negligence. Thereafter, the defendants joined issue and served answers to the summons and complaint. In addition, Patmos commenced a third-party action against Rotavele seeking common-law and contractual indemnification, as well as damages for breach of the provision in the contract to procure liability insurance.

In 2006, Herman commenced an action against ATA, Patmos, Rotavele, and Mazl in New York County. Herman's amended summons and complaint alleges violations of Labor Law §§ 240 (1), 241 (6), 241-a, 200, as well as common-law negligence. The defendants in the New York County action joined issue and served answers to Herman's summons and complaint. In an order dated July 9, 2008, Hon. Louis B. York of Supreme Court, New York County, directed that Herman's action be consolidated with Samaroo's instant Kings County action. Discovery is now complete and the instant motions are now before the court.

Plaintiffs' Claims Against the Employers ⁴

4 As previously noted, Herman asserted claims against Rotavele but not against ELS while Samaroo asserted claims against ELS but not Rotavele. However, inasmuch as Herman and Samaroo's actions have been consolidated, both Herman and Samaroo appear in the caption as first party plaintiffs and ELS and Rotavele appear as first-party defendants.

Rotavele and ELS (collectively, the employers) move for summary judgment dismissing Herman and Samaroo's claims against them. In particular, the employers maintain that Herman's claim against Rotavele is barred under the exclusive remedy doctrine of the Workers' Compensation Law inasmuch as Herman was a special employee of Rotavele. In support of this contention, the employers point to the deposition testimony of Alan Zaretsky, the president of both Rotavele and ELS. Specifically, Mr. Zaretsky testified that ELS is an entity created by him solely for the purpose of handling the payroll of certain Rotavele employees, including Herman. In this regard, Zaretsky testified that ELS "was simply a payroll vehicle, so the contracts were Rotavele contracts and they were just paid out of this company ELS." Zaretsky also testified that Rotavele and ELS were controlled by the same principals. Further, Zaretsky testified that ELS did not perform any contracting work itself, that Herman was supervised and controlled by Rotavele personnel, and that Herman used Rotavele equipment while working at the building. Finally, the employers point to the undisputed fact that Herman was injured while carrying out the elevator installation work which Rotavele (as opposed to ELS) was contracted to perform. Under the circumstances, the employers maintain that ELS was merely an alter ego of Rotavele and that Herman's claims against both of these entities are barred under the Workers' Compensation Law inasmuch as he was a general employee of ELS and a special employee of Rotavele.

The employers also argue that given ELS's status as a mere payroll servicing entity, there is no basis for Samaroo's claims against this defendant. In particular, the employers note that ELS was not hired to perform, nor did it actually carry out any work on the underlying renovation project. As such, the employers contend that ELS is not subject to liability under the Labor Law or any common-law negligence theory.

No opposition has been submitted to this branch of the employers' motion.

Turning first to Herman's claims against Rotavele, it is undisputed that Herman is receiving Workers' Compensation benefits as a result of the accident and "the receipt [of such benefits] from a general employer precludes an employee from commencing a negligence action against a special employer" ( Hofweber v Soros , 57 AD3d 848 , 849). "In determining whether a special employment relationship exists, a significant and weighty feature' is who controls and directs the manner, details and ultimate result of the employee's work'" ( id., quoting Thompson v Grumman Aerospace Corp., 78 NY2d 553, 558). Other factors include who is responsible for the payment of wages and furnishing of equipment, who has the right to discharge the employee, and whether the work was in furtherance of the special employer's or general employer's business ( Schram v Cold Spring Harbor Lab. , 17 AD3d 661 , 662). Finally, it is well-settled that "[a] defendant may establish itself as the alter ego of a plaintiff's employer by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity" ( Samuel v Fourth Avenue Assocs., LLC, 75 AD3d 594, 595). In such cases, the exclusive remedy provisions of the Workers' Compensation law preclude an employee from suing his employer's alter ego.

Here, although ELS was nominally Herman's employer, it is clear that he was a special employee of Rotavele. In this regard, it is undisputed that Herman's work was supervised solely by Rotavele and that Rotavele controlled and directed the manner, details and ultimate result of Herman's work. Further, Rotavele provided Herman with his equipment and the underlying work was performed in furtherance of Rotavele's business given the fact was Rotavele was hired to carry out the elevator installation work. It is also clear that Rotavele and ELS operated as single integrated entity. In particular, Rotavele and ELS were controlled by the same principals and ELS's sole purpose was to act as a "payroll vehicle" for certain workers carrying out Rotavele's work. Under the circumstances, Herman's claims against Rotavele are barred under the exclusive remedy provisions of the Workers' Compensation Law.

With respect to Samaroo's claims against ELS, given the court's determination that ELS was an alter ego of his employer Rotavele, and that the two operated as a single integrated entity, Samaroo's claims against ELS are also barred under the Workers' Compensation Law. Further, it is undisputed that ELS was not hired to perform any actual construction work at the building. Rather, as Zaretsky's uncontroverted testimony indicates, "[t]he physical labor was done for the benefit of Rotavele, ELS had no customers." Thus, there is no basis for Samaroo's Labor Law and common-law negligence claims against ELS.

Accordingly, Herman's claims against Rotavele as well as Samaroo's claims against ELS must be dismissed.

Plaintiffs' Labor Law §§ 240 (1) and 241-a Claims Against ATA, Patmos and Mazl

Samaroo cross-moves for summary judgment against Patmos, ATA, and Mazl under his Labor Law §§ 240 (1) and 241-a claims. At the same time, Herman cross-moves for partial summary judgment against defendants Patmos and ATA under his Labor Law §§ 240 (1) and 241-a causes of action. Further, in opposition/reply papers, Herman requests that the court search the record pursuant to CPLR 3212 (b) and award him summary judgment against Mazl under these causes of action based upon the arguments raised in Samaroo's cross-motion papers. Patmos, ATA, and Mazl all oppose Herman and Samaroo's cross-motions and separately move for summary judgment dismissing plaintiffs' Labor Law §§ 240 (1) and 241-a claims.

In support of his cross-motion for summary judgment, Herman maintains that his injuries were caused by violations of Labor Law §§ 240 (1) and 241-a and, as the respective owner, general contractor, and statutory agent on the underlying renovation project, Patmos, ATA, and Mazl are liable for these statutory violations as a matter of law. Specifically, with respect to his Labor Law § 240 (1) cause of action, Herman points to the undisputed fact that the platform upon which he was working collapsed, thereby causing him to fall some 60 feet to the bottom of the elevator shaft. According to Herman, the collapse of this platform constitutes prima facie evidence of a Labor Law § 240 (1) violation for which the defendants are liable.

With respect to his Labor Law § 241-a cause of action, Herman notes that this provision requires, among other things, that when working within an elevator shaft, workers must be protected by "sound planking at least two inches thick laid across the opening at levels . . . not more than one story below such men." The purpose of this provision is to prevent such workers from falling more than one story down the elevator shaft. Here, it is undisputed that no such planking was laid across the shaft one floor below Herman to prevent him from falling to the bottom of the shaft. Accordingly, Herman maintains that Labor Law § 241-a was violated as a matter of law.

In further support of his summary judgment motion, Herman argues that any alleged action on his part in failing to wear a safety harness while performing his work in the elevator shaft is insufficient to establish that he was a recalcitrant worker or the sole proximate cause of the accident. In this regard, Herman notes that the collapse of the platform clearly constituted a proximate cause of the accident separate and apart from any non-use of an available safety harness. Thus, Herman maintains that the sole proximate cause and recalcitrant worker defenses are inapplicable in this case.

In support of his cross motion for summary judgment against Patmos, ATA, and Mazl under his Labor Law §§ 240 (1) and 241-a causes of action, Samaroo raises the same arguments as Herman. In particular, Samaroo maintains that the collapse of the platform within the elevator shaft constitutes prima facie evidence of a Labor Law § 240(1) violation for which Patmos, ATA, and Mazl are liable given their respective roles as owner, general contractor, and statutory agent on the renovation project. In addition, Samaroo maintains that the defendants violated Labor Law § 241-a inasmuch as sound planking was not covering the elevator shaft one floor below the work platform so as to prevent the workers from falling to the bottom of the elevator shaft. Samaroo also contends that any failure on his part to wear a safety harness while working in the elevator shaft may not be deemed the sole proximate cause of the accident since the collapse of the work platform also constituted a significant proximate cause of the accident.

In opposition to plaintiffs' summary judgment motions, and in support of its own motion for summary judgment dismissing plaintiffs' Labor Law §§ 240 (1) and 241-a claims against it, ATA argues that it is not subject to liability under the Labor Law inasmuch as it is not a contractor or agent with respect to the elevator installation work that gave rise to the accident. In support of this argument, ATA points to the undisputed fact that it did not hire Rotavele to perform the elevator installation work. Rather, Mazl contracted directly with Rotavele for the performance of this work. ATA also points to the fact that it had left the job site several weeks prior to the accident inasmuch as it was awaiting approval of modifications to the original renovation plans. Further, ATA notes that Herman testified that he was supervised solely by his Rotavele supervisor, John Stewart, and Samaroo testified that he was supervised solely by Herman. In addition, ATA's president, Moshe Mishal, testified that ATA was only responsible for building the elevator shaft and had nothing to do with the installation of the elevator machinery. At the same time, Mishal testified that ATA did not oversee or supervise any other trades at the job site and that ATA was not even aware that Rotavele was performing work at the building when the accident occurred. Under the circumstances, given the lack of privity between ATA and Rotavele, as well as ATA's lack of authority to control or supervise the plaintiffs' work, ATA maintains that plaintiffs' Labor Law §§ 240 (1) and 241-a claims must be dismissed against it.

Alternatively, ATA argues that plaintiffs' Labor Law §§ 240 (1) and 241-a claims against it must be dismissed inasmuch as plaintiffs' own actions were the sole proximate cause of the accident. In support of this contention, ATA argues that, for no good reason, plaintiffs failed to utilize readily available safety devices that would have prevented their injuries. Specifically, ATA notes that prior to the accident, there were catch platforms installed at each floor level of the elevator shaft. However, after removing these platforms so that the elevator machine could be hoisted to the top of the shaft, plaintiffs only reinstalled the platform at the fifth floor level before entering the elevator shaft. According to ATA, plaintiffs' failure to reinstall the catch platforms at the levels below the fifth floor was the sole proximate cause of the accident inasmuch as these platforms would have prevented plaintiffs from falling to the bottom of the shaft. ATA also argues that plaintiffs' failure to wear safety harnesses while working in the shaft was the sole proximate cause of the accident. In this regard, ATA notes that Herman's supervisor, John Stewart, testified that Herman and Samaroo were supplied with harnesses that could be attached to a safety line installed in the elevator shaft using lanyards. Stewart further testified that he observed Herman and his assistants wearing safety harnesses while working in the elevator shaft on numerous occasions prior to the accident. In addition, Stewart testified that on one occasion prior to the accident, he observed that Herman was not wearing his safety harness and he directed him to wear the device. Similarly, Rotavele's president, Alan Zaretsky, testified that all of his workers were provided with safety harnesses for their personal use. In further support of this contention, ATA points to an OSHA accident report that was compiled after OSHA inspected the work site and interviewed Rotavele employees. This report states that "foreman ( i.e., Stewart) showed that harnesses were on the site and a life line tie off was available but the workers did not use it." The report also states that the "leadman" ( i.e. Herman) "said he was aware of the condition of he and his helper not using fall protection."

Patmos also opposes plaintiffs' summary judgment motion and moves for summary judgment dismissing plaintiffs' Labor Law §§ 240 (1) and 241-a claims. In so doing, Patmos maintains that plaintiffs are not entitled to protection under the Labor Law inasmuch as they were trespassers at the time of the accident. In support of this argument, Patmos points to Herman's deposition testimony that the building was locked when Rotavele first arrived at the job site and that his co-workers kicked down a door to the building in order to gain entry. In addition, Patmos notes that the accident occurred on a Saturday and the New York City Administrative Code prohibits construction work on weekends. At the same time, Patmos maintains that the accident took place on a Jewish holiday as well as the Sabbath, and under the established rules of the work site, no work was to take place at these times.

Patmos also argues that plaintiffs' own actions in failing to wear available safety harnesses, in failing to re-install the platforms in the elevator shaft below the work area, and in negligently constructing the platform that collapsed were the sole proximate cause of the accident. In support of this last contention, Patmos submits an expert affidavit by Steven Pietropaolo, an engineer. According to Mr. Pietropaolo, given plaintiffs' testimony that they did not hear any cracking or other indication of imminent failure of the platform prior to the collapse, the failure of the platform must have been caused by either plaintiffs' failure to secure the platform planks when assembling it or plaintiffs' failure to properly install the brackets upon which the planks were placed.

Mazl also opposes plaintiffs' motion for summary judgment under their Labor Law §§ 240 (1) and 241-a causes of action and further moves for summary judgment dismissing these claims against it. In so moving, Mazl argues that it is not subject to liability under the Labor Law inasmuch as it did not own the building at the time of the accident. In addition, Mazl argues that it was not a general contractor or statutory agent under the Labor Law. In this regard, Mazl maintains that, although it entered into the Temporary Construction Contract with Patmos, this contract only concerned work with respect to the redesign of the first floor of the building and did not involve the installation of an elevator. At the same time, Mazl notes that it did not perform any construction work at the building and further argues that it had no authority to control or supervise Rotavele's work.

In opposition and reply to ATA, Patmos, and Mazl's respective motions and opposition papers, Herman and Samaroo raise a number of arguments. In particular, plaintiffs maintain that there is no merit to ATA's claim that it was not a "contractor" for purposes of the Labor Law. Specifically, plaintiffs note that ATA was specifically listed as the "general contractor" for the project in the work permit filed with the City of New York. Further, plaintiffs point out that, under its contracts with both Mazl and Patmos, ATA agreed to perform "all work according to work-approved plans" including "all demolition and re-structure and mechanicals according to the plans of George Schwartz Architect and supply labor and materials." A copy of George Schwartz's plans indicates that the work included "remove existing service elevator and install new passenger elevator." In addition, the "general notes" section of these plans states that "the contractor shall provide temporary scaffold, staging and safety devices for protection of public and workmen." Accordingly, plaintiffs maintain that ATA had the contractual authority and responsibility to oversee all construction work at the building, including the elevator installation work that plaintiffs were carrying out at the time of the accident. Plaintiffs also argue that, whether or not ATA actually exercised control and supervision over the elevator installation work performed by Rotavele is irrelevant in determining whether or not ATA is subject to liability under Labor Law §§ 240 (1) and 241-a. Rather, so long as ATA had the authority to control the work and ensure that adequate safety devices were employed, it is subject to liability under these provisions.

Plaintiffs also contend that there is no merit to Mazl's argument that it is not subject to liability under the Labor Law, given its role in the renovation project. In this regard, plaintiffs note that under the terms of the Temporary Construction Contract with Patmos, Mazl was required to continue with the work that did not require new City approval, which included the elevator installation work. In addition, it is undisputed that Mazl initially hired Rotavele to perform the elevator installation work, and Rotavele's president Alan Zaretsky testified that Mazl (not Patmos) paid Rotavele for the installation work until the date of the accident.

Turning to Patmos' motion for summary judgment, Herman and Samaroo contend that the motion is procedurally defective. In this regard, plaintiffs note that the court issued an order dated June 30, 2010 requiring that all parties move for summary judgment by August 30, 2010.⁵ Here, Patmos has made three separate summary judgment motions. However, only one of these motions, which seeks, among other things, dismissal of plaintiffs' common-law negligence and Labor Law § 200 claims, was made prior to September 8, 2010. Consequently, plaintiffs maintain that Patmos' motion to dismiss plaintiffs' Labor Law §§ 240 (1) and 241-a claims must be denied as untimely. In further support of this argument, Herman argues that Patmos' motion cannot be considered "nearly identical" to its co-defendants' timely motions to dismiss these causes of action inasmuch as Patmos' untimely motion contains arguments not raised in ATA and Mazl's motions, including the claim that plaintiffs were trespassers and the claim that plaintiffs were the sole proximate cause of that accident since they constructed the platform that collapsed.⁶ Plaintiffs also contend that Patmos' motion is defective inasmuch as it constitutes a "successive" summary judgment motion.

5 The note of issue was filed on March 30, 2010. Further, by stipulation, the deadline was extended to September 8, 2010.

6 After Patmos raised these two arguments in its cross motion papers, ATA submitted opposition papers to plaintiffs' cross motions for summary judgment which contained the same arguments. However, ATA did not argue that plaintiffs were trespassers or that they were responsible for the collapse of the platform in support of its earlier motion for summary judgment.

In any event, plaintiffs argue that there is no merit to Patmos' argument that plaintiffs are not protected under the Labor Law because as they were trespassers. In this regard, plaintiffs note that it is undisputed that plaintiffs were performing elevator-installation work in the building that their employer was hired to carry-out pursuant to a contract between Mazl and Rotavele. Plaintiffs further note that, at the time the contract was entered into, Mazl owned the building. Further, Patmos, which bought the building from Mazl, assumed this contract prior to the accident. Thus, plaintiffs conclude that they were clearly authorized to perform the work that they were carrying out at the time of the accident. In addition, plaintiffs maintain that there is no merit to the argument that work was prohibited from taking place in the building on Saturdays. In this regard, plaintiffs contend that this rule was revoked once the building was sold to Patmos, which was an Italian company. Finally, plaintiffs aver that there is no support for the contention that a New York City Administrative Code provision prohibiting construction work on weekends may serve to divest them of the protections of the Labor Law.

In further opposition to ATA, Mazl, and Patmos' respective motions, and in support of their own motions for summary judgment under Labor Law §§ 240 (1) and 241-a, plaintiffs maintain that there is no merit to the claim that their own actions were the sole proximate cause of the accident. Specifically, plaintiffs contend that the argument that their own actions in building the platform caused it to collapse is speculative inasmuch as there is no competent evidence demonstrating what caused the collapse. Further, with respect to the contention that plaintiffs failed to use available safety harnesses, plaintiffs note that they both testified that no such devices were available on the day of the accident and any evidence that harnesses were available prior to or after the accident is irrelevant. In addition, plaintiffs reiterate their claim that the failure to wear available safety harnesses could not have been the sole proximate cause of the accident since the collapse of the platform also played a role in the incident. In addition, Samaroo notes that although Stewart testified that he warned Herman about not wearing his safety harness, he did not convey such a warning to Samaroo. Accordingly, Samaroo reasons that this defense does not apply to him.

Timeliness of Patmos' Summary Judgment Motion

As an initial matter, the court must address the issue of whether or not it has the discretion to consider Patmos' motion for summary judgment dismissing plaintiffs' Labor Law §§ 240 (1) and 241-a claims. Specifically, it is undisputed that Patmos' motion is untimely inasmuch as it was made on October 29, 2010, nearly two months after the September 8, 2010 deadline for summary judgment motions. Further, Patmos has failed to identify any circumstances which constitute a reasonable excuse for its delay ( see Brill v City of New York , 2 NY3d 648 ). Rather, Patmos contends that the court may consider its untimely motion inasmuch as it is "nearly identical" to the timely motions filed by plaintiffs and the co-defendants. In addition, Patmos notes that its papers were submitted both in support of its own cross motion for summary judgment and in opposition to plaintiffs' motions for summary judgment under Labor Law §§ 240 (1) and 241-a. Accordingly, even if its cross motion is untimely, Patmos maintains that the court may consider all of the arguments contained therein and award it summary judgment under CPLR 3212 (b).

It is well-settled that "an untimely cross motion for summary judgment may be considered by the court where . . . a timely motion for summary judgment was made on nearly identical grounds" ( Snolis v Clare , 81 AD3d 923 , 925; see also Lennard v Khan , 69 AD3d 812 , 814). Here however, Patmos' motion is not nearly identical to ATA and Mazl's timely motions. In particular, ATA and Mazl's respective motions are primarily based upon the arguments that they were not contractors or statutory agents under Labor Law §§ 240 (1) and 241-a, and therefore are not subject to liability under the statutes. These arguments do not apply to Patmos, which corporation was the owner of the building at the time of the accident. Further, Patmos' arguments that plaintiffs were trespassers and that plaintiffs were the sole proximate cause of the accident as they negligently built the platform that collapsed were not raised in ATA or Mazl's timely summary judgment motions. Under the circumstances, the court should not entertain Patmos' motion for summary judgment to dismiss plaintiffs' Labor Law §§ 240 (1) and 241-a claims ( Teitelbaum v Crown Heights Assoc. for Betterment, ___ AD3d ___, 2011 NY Slip Op 04038 [2d Dept 2011]; Tapia v Prudential Richard Albert Realtors , 79 AD3d 735).

However, because Patmos' motion for summary judgment dismissing plaintiffs' Labor Law §§ 240 (1) and 241-a claims is also procedurally defective, as it constitutes a successive summary judgment motion ( Rocky Point Drive-In L.P. v Town of Brookhaven , 37 AD3d 805 , 808), the court does not need to decide whether this motion is on nearly identical grounds. That is, Patmos made a (timely) motion for summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims and for summary judgment on certain third-party claims against Mazl and Rotavele. Thereafter, over one month later, Patmos improperly made a second motion seeking dismissal of plaintiffs' Labor Law §§ 240 (1), 241-a, and 241 (6) claims. Patmos could and should have sought this relief in its initial motion.⁷ This procedural defect precludes the court from considering Patmos' motion on its merits ( id.).

7 Patmos seeks to justify its successive summary judgment motion by claiming that it "did not previously have" the supporting affidavit of plaintiffs' co-worker Giner Alladin at the time it made its original summary judgment motion. However, Patmos has failed to identify any reason why it could not obtain this affidavit prior to its original summary judgment motion.

However, the court will consider Patmos' trespass and sole proximate cause arguments to the extent that they were raised in opposition to plaintiffs' summary judgment motion. In this regard, Patmos' papers indicate that the arguments were raised both in support of Patmos' summary judgment motion and in opposition to plaintiffs' motions. Moreover, after Patmos raised the above-noted trespass and sole proximate cause arguments, ATA submitted its own opposition papers which contain these identical arguments ( Rocky Point Drive-In L.P., 37 AD3d at 808).

Plaintiffs' Labor Law §§ 240 (1) and 241-a Claims: Conclusions of Law

Labor Law § 240(1) provides, in pertinent part, that:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, [or] altering . . . of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

Labor Law § 240(1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" ( Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners, general contractors, and their agents who "are best situated to bear that responsibility" ( id. at 500; see also Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520). "The duty imposed by Labor Law § 240(1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" ( Ross, 81 NY2d at 500). However, "[o]nly upon obtaining the authority to supervise and control does [a party] fall within the class of those having nondeligable liability as an agent' under [Labor Law § 240 (1)]" ( Russin v Louis N. Picciano Son, 54 NY2d 311). Further, given the exceptional protection offered by Labor Law § 240(1), the statute does not cover accidents merely tangentially related to the effects of gravity. Rather, gravity must be a direct factor in the accident as when a worker falls from a height or is struck by a falling object ( Ross, 81 NY2d at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513). Finally, although comparative negligence is not a defense to a Labor Law § 240 (1) claim, when a plaintiff's own actions are found to be the sole proximate cause of the accident, he or she may not recover under Labor Law § 240 (1) ( Blake v Neighborhood Hous. Serv. of New York City, Inc., 1 NY3d 280, 290).

Labor Law § 241-a provides that:

"Any men working in or at elevator shaftways, hatchways and stairwells of buildings in the course of construction or demolition shall be protected by sound planking at least two inches thick laid across the opening at levels not more than two stories above and not more than one story below such men, or by other means specified in the rules of the board."

The purpose of the statute is to protect workers in or at elevator shaftways from falling more than one floor down the shaft and to further protect such workers from being struck by objects falling from more than two floors above the work area. As is the case with Labor Law § 240 (1), the protective duties set forth in Labor Law § 241-a apply to owners, contractors, and their agents and such duties are nondelegable ( Khela v Neiger, 85 NY2d 333, 336).Further, comparative negligence is not a defense to a Labor Law § 241-a claim ( Doucoure v Atlantic Dev. Gp., LLC , 18 AD3d 337, 338).However, a plaintiff seeking to recover under Labor Law § 241-a must demonstrate that the statute was violated and that such violation proximately caused his or her injuries ( Anspach v Miller Bluff's Constr. Corp., 280 AD2d 564, 565). Thus, if a worker's own actions are the sole proximate cause of the underlying injuries, recovery under the statute is precluded.

ATA's Status at the Work Site

The court turns first to ATA's motion to dismiss plaintiffs' Labor Law § 240 (1) and 241-a claims based upon the argument that it was neither a general contractor nor a statutory agent, as those terms are interpreted under the statutes. Although the Labor Law does not define the term "general contractor," it is generally understood that a party will be deemed to be a general contractor subject to liability under Labor Law §§ 240 (1) and 241-a where it has the responsibility for coordinating and supervising the entire construction project and is invested with a corresponding power to enforce safety standards and to hire responsible subcontractors ( Aversano v JHW Contracting, LLC, 37 AD3d 745, 746). Further, "[a]s a general rule, a separate prime contractor is not liable under Labor Law § 240 (1) . . . [or 241-a] for injuries caused to the employees of other contractors with whom they are not in privity of contract, so long as the contractor has not been delegated the authority to oversee and control the activities of the injured worker" ( Barrios v City of New York , 75 AD3d 517 , 518). However, "where a separate prime contractor has been delegated with the authority to supervise and control the plaintiff's work, the contractor becomes a statutory agent of the owner or general contractor'" notwithstanding a lack of privity between the contractor and the plaintiff's employer ( id., quoting Russin, 54 NY2d at 318).

Here, there is conflicting evidence regarding whether or not ATA possessed sufficient authority to supervise and control the elevator installation work or had the responsibility for overseeing all on-site safety, so as to subject it to liability under Labor Law §§ 240 (1) and 241-a. In particular, the very fact that Rotavele was not hired as a subcontractor by ATA, but was instead hired directly by Mazl, indicates that ATA was not a general contractor for purposes of the elevator installation work and lacked the authority to control Rotavele's work. Further, ATA's president, Moshe Mishal, testified that ATA had no responsibilities with respect to the elevator installation work that caused the accident. In addition, Stewart, Herman, and Samaroo all testified that they had no knowledge of, or involvement with, ATA while working at the building. Moreover, Rotavele's president testified that he believed that ATA merely served as a "broker" to the contract between Mazl and Rotavele. Finally, the fact that ATA left the job site prior to the time that Rotavele began its work and was not present at the building when the accident occurred weighs against any finding that ATA had the authority to control and supervise Rotavele's work.

On the other hand, Mazl's president, Raba Haim "Ruby" Abramov, who initially hired both ATA and Rotavele, testified that ATA was responsible for managing the entire job, including the elevator installation work. Abramov also testified that ATA was responsible for providing safety equipment at the job site, including safety equipment necessary for the elevator installation work. In addition, Abramov testified that ATA and Rotavele had a pre-existing relationship and Rotavele was only brought onto the job after ATA recommended that they be hired to install the elevator. Further, while it is true that ATA did not directly hire Rotavele to perform the elevator installation work, ATA's contracts with both Mazl and Patmos required that it perform "all demolition and re-structure and mechanicals according to the plans of George Schwartz Architect and supply labor and materials." Included in the work set forth in these plans was the statement "remove existing service elevator and install new passenger elevator." The plans also state that "the contractor shall provide temporary scaffold, staging and safety devices for protection of the public and workmen." Finally, while standing alone, ATA's listing on work permits as the "general contractor" for the project is insufficient to raise a triable issue of fact regarding its status ( see Huerta v Three Star Constr. 56 AD3d 613 ), it may be considered in combination with the other evidence in determining whether or not ATA is subject to liability under the nondelegable duty provisions of the Labor Law ( Burnett v Waterford Custom Homes, Inc. , 41 AD3d 1216 , 1217). There is clearly some evidence in the record before the court that ATA possessed general supervisory control over the entire job site, including the elevator installation work.

Under the circumstances and given the conflicting evidence, there is a triable issue of fact regarding whether ATA had been delegated a sufficient degree of general supervisory authority over the elevator installation work so as to subject it to liability under Labor Law §§ 240 (1) and 241-a. Accordingly, that branch of ATA's motion which seeks summary judgment dismissing plaintiffs' Labor Law §§ 240 (1) and 241-a claims, based upon their argument that ATA was not a contractor or statutory agent, must be denied. At the same time, Samaroo and Herman's respective motions for summary judgment against ATA under these causes of action must also be denied, as it has not been established, as a matter of law, that ATA is subject to liability under these statutory provisions.

Mazl's Status at the Work Site

Like ATA, Mazl maintains that it is not subject to liability under Labor Law §§ 240 (1) and 241-a since it was not an owner, contractor, or statutory agent under the statute. However, although it is undisputed that Mazl was no longer the owner of the building at the time the accident occurred, there is conflicting evidence as to whether it had the authority to control and supervise the elevator installation work. In this regard, as previously noted, Mazl is the party that initially hired Rotavele to perform the elevator installation work. Further, although Abramov testified that Mazl assigned this contract to Patmos prior to the accident, Mazl entered into the a new Temporary Construction Contact with Patmos whereby it agreed to "continue or commence work with good and sufficient materials and in a workmanlike manner of work, which is deemed by [Mazl] and which can be done without approval of plans." The Temporary Construction Contract also required that Mazl "shall keep a competent foreman, necessary assistants, and a sufficient number of skilled workmen and laborers to properly and promptly perform the work." Here, it is undisputed that the elevator installation work was part of the original renovation plans and did not require the approval of new plans or the issuance of a new permit. Under the circumstances, there is evidence that Mazl retained the responsibility to oversee the elevator installation work notwithstanding the fact that it assigned its original contract with Rotavele to Patmos.

However, there is also evidence that Mazl lacked the requisite supervisory authority over Rotavele's work so as to be subject to liability as a contractor or agent under Labor Law §§ 240 (1) and 241-a. In this regard, Abramov testified that the work Mazl agreed to perform under the terms of the Temporary Construction Contract did not involve the installation of the elevator, but rather involved demolition work on the first floor of the building. Abramov further testified that when Mazl sold the building to Patmos, it "sold" its contract with Rotavele as well, and that Rotavele's work "is not up to me now."

Under the circumstances, there is a triable issue of fact as to whether Mazl retained sufficient supervisory authority over Rotavele's work after the sale of the building to Patmos so as to subject it to liability as a contractor or agent under Labor Law § 240 (1) and 241-a. Accordingly, plaintiffs' motion for summary judgment against Mazl under these causes of action is denied. For the same reason, Mazl's motion for summary judgment dismissing these claims is denied.

Plaintiffs' Labor Law 240 (1) Claims Against Patmos

Turning to plaintiffs' motions for summary judgment under their Labor Law §§ 240 (1) claim against Patmos, it is undisputed that Patmos owned the building at the time of the accident. Accordingly, Patmos is subject to liability under the statute. It is also undisputed that the platform upon which plaintiffs were working collapsed prior to their falling down the elevator shaft. Such a collapse constitutes prima facie evidence of a Labor Law § 240 (1) violation ( Zong Mou Zou v Hai Ming Constr. Corp. , 74 AD3d 800 , 8011 [2010]; Montour v City of New York, 270 AD2d 236, 238). Under the circumstances, plaintiffs have demonstrated their entitlement to summary judgment against Patmos under their Labor Law § 240 (1) claims, and the burden of proof then shifts to Patmos to raise a triable issue of fact regarding its liability under the statute.

Here, the arguments raised by Patmos are insufficient to meet this burden. In this regard, there is no merit to Patmos' argument that plaintiffs' negligent construction of the platform that collapsed was the sole proximate cause of the accident. It is well-settled that the unexplained collapse of a scaffold or work platform gives rise to a presumption that the device failed to provide adequate protection within the meaning of Labor Law §§ 240 (1) ( Seigel v RPG Fort Greene, Inc., 68 AD3d 675; McCarthy v Turner Constr. Inc., 53 AD3d 333, 333-334; Heffernan v Bais Corp., 294 AD2d 401, 403). However, when there is evidence that a plaintiff's negligent construction of a scaffold or platform caused the device to collapse, the sole proximate cause defense is available. For example, in Styer v Walter Vita Constr., Inc. ( 174 AD2d 662), the plaintiff partially dismantled a scaffold's supports prior to its collapse. Under these circumstances, the Appellate Division, Second Department held that there were issues of fact as to whether plaintiff's actions were the sole proximate cause of the accident ( id. at 663). Similarly, in Plass v Solotoff ( 5 AD3d 365 ), there was uncontroverted evidence that the plaintiff unilaterally elected to use a single plank to form a scaffold platform notwithstanding the fact that the scaffold was designed to hold three planks and such planks were available for plaintiff's use. After plaintiff fell through the gap created by the missing planks and brought suit, the Second Department ruled that plaintiff's own actions were the sole proximate cause of the accident ( id. at 367). Finally, in Heffernan v Bais Corp. ( 294 AD2d 401), the plaintiffs fell down an elevator shaft when a platform that they constructed in the shaft collapsed. It was undisputed that plaintiffs did not place plywood over the beams supporting the platform immediately prior to the collapse. Further, the defendant in that case submitted an expert affidavit which indicated that plaintiff's failure to place the plywood on the beams caused the platform to collapse. Under these circumstances, the Second Department held that there was an issue of fact as to whether plaintiffs' own actions were the sole proximate cause of the accident.

Here, unlike in Styer, Plass and Heffernan, there is no competent evidence demonstrating what caused the platform to collapse, let alone that plaintiffs' negligence in constructing the platform was the sole proximate cause of said collapse. In its papers, Patmos relies exclusively upon the affidavit of its expert, Mr. Pietropaolo, to demonstrate that plaintiffs' negligent assembly of the platform caused its collapse.⁸ However, Mr. Pietropaolo never inspected the work platform or the elevator shaft. Rather, Mr. Pietropaolo relied entirely upon plaintiffs' deposition testimony that they did not hear any wood cracking prior the collapse to reach the conclusion that the accident was caused by plaintiffs' failure to properly install the brackets holding the support plank or to otherwise properly secure the ends of the support planks to the floor and beam upon which they rested. Such a speculative opinion, which is not based upon an inspection of the actual apparatus involved in the accident, is insufficient to raise a triable issue of fact as to whether or not plaintiffs' own actions were the sole proximate cause of the accident ( Landy v 6902 13th Avenue Realty Corp. , 70 AD3d 649 , 650-651). Further, even assuming that the accident was caused by the failure to secure the platform's supporting planks, Mr. Pietropaolo avers that plaintiffs should have secured the planks using various combinations of wall brackets, "cleats," "lashing wires", and "masonry anchors." However, there is no evidence that any of these securing devices were available when plaintiffs' constructed the platform in the shaft. To the contrary, when asked what type of materials he used when constructing the platform, Herman testified that "the material we use was old material they got in the building because I ask my supervisor and he said, well, you have to look for something, he said you have to use the material what they already have there." Finally, there is no evidence that plaintiffs disobeyed any instructions to secure the planks when constructing the platform. In fact, when asked whether Rotavele's workers used devices to secure the support planks to any part of the elevator shaft, Mr. Stewart ( i.e., plaintiffs' supervisor), responded that they did not, and that the platform just "rests in place."

8 Contrary to plaintiffs' contention, the court may consider Mr. Pietropaolo's affidavit notwithstanding the fact that he was not disclosed in response to their discovery demands. Mr. Pietropaolo was retained by Patmos for purposes of its summary judgment motion after the note of issue was filed and after it responded to plaintiffs' discover demands ( compare, Kopeloff v Arctic Cat, Inc. ___ AD3d ___, 2011 NY Slip Op 04007 [2d Dept 2011]).

Also without merit is Patmos' argument that plaintiffs' failure to wear available safety harnesses was the sole proximate cause of the accident. In particular, although plaintiffs denied at their depositions that they were provided with safety harness at the subject work site, this testimony is contradicted by other evidence including Stewart and Zaretsky's deposition testimony, as well as the OSHA accident report, which indicates that plaintiffs were provided with and directed to wear safety harnesses prior to the accident and that these harnesses could be secured with a lanyard to a safety line that ran down the elevator shaft. Thus, for purposes of plaintiffs' summary judgment motion, the court must assume that plaintiffs neglected to wear safety harnesses that were available for their use at the time of the accident. Moreover, as a general rule, evidence that a worker injured in a fall failed to utilize a safety harness is sufficient to establish the sole proximate cause defense ( Martinez v Ashley Apts Co., LLC , 80 AD3d 734 , 735-736; Leniar v Metropolitan Trans. Auth. , 37 AD3d 425 , 426; Yedynak v Citnalta Constr. Corp. , 22 AD3d 840 , 841). However, where the worker's fall is preceded by the failure or collapse of a safety device, the failure to wear an available safety harness is not deemed to be the sole proximate cause of the accident, for the obvious reason that the failure/collapse also played a critical role in the accident ( Berrios v 735 Avenue of the Americas, LLC , 82 AD3d 552, 553; Hill v Stahl , 49 AD3d 438 , 442; Moniuszko v Chatham Green, Inc. , 24 AD3d 638 , 638-639). Here, it is undisputed that the platform upon which plaintiffs were working collapsed immediately prior to their fall down the elevator shaft. Thus, while plaintiffs' alleged failure to wear safety harnesses would support a finding of comparative negligence on their part, it is insufficient to establish a sole proximate cause defense.

The court next turns to the last sole proximate cause argument raised by Patmos (and ATA), namely that plaintiffs' failure to replace the platforms within the elevator shaft immediately prior to the accident was the sole cause of plaintiffs' injuries. As an initial matter, as previously noted, there is a discrepancy between Herman and Samaroo's testimony regarding the existence of these platforms. In particular, Herman testified that the platforms built at each level of the elevator shaft were left in place until all of them were removed the day prior to the accident so as to allow the plaintiffs to hoist the elevator machine up the shaft. In contrast, Samaroo testified that there was only one platform in the shaft that was assembled and disassembled from day to day. In any event, even assuming that there were several platforms located below the platform that actually collapsed, and further assuming that plaintiffs failed to rebuild these platforms prior to the accident, this failure was not the sole proximate cause of the accident or plaintiffs' injuries. Specifically, the presence, or lack thereof, of additional platforms below plaintiffs did not cause the platform that they were standing upon to collapse. At best, such platforms may have minimized the injuries sustained by plaintiffs by preventing them from falling to the bottom of the shaft. Accordingly, plaintiffs' alleged failure to replace the platforms below the platform that collapsed may not be deemed the sole proximate cause of the accident.⁹

9 As previously noted, in support of its summary judgment motion, ATA also argued that plaintiffs' failure to wear available safety harnesses and failure to replace the platforms in the elevator shaft constituted the sole proximate cause of the accident. However, inasmuch as the court has found these arguments to be without merit, ATA is not entitled to summary judgment dismissing plaintiffs' claims.

Trespass Issue

Turning to the trespasser argument raised in Patmos' motion/opposition papers (as well as ATA's opposition papers), it is well-settled that the occurrence of a construction-site accident does not automatically give rise to a claim under the Labor Law's nondelegable duty statutes such as Labor Law §§ 240 (1) or 241-a. Rather, the statutes only apply when the injured worker is "within the class of persons entitled to protection under [the statutes]" ( Morra v White, 276 AD2d 536, 537). In particular, "a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent" ( Whelen v Warwick Val. Civic Social Club, 47 NY2d 970, 971). That said, there is no requirement that an owner consent to or even be aware of the work that caused the accident in order for it to be subject to liability under the Labor Law. All that is required is that there be "some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest" ( Abbatiello v Lancaster Studio Assoc. , 3 NY3d 46 , 51).

Initially, the court notes that this incident cannot be said to be a situation where the plaintiff's employer appeared at the job site without the owner's consent or knowledge. Indeed, there was a clear nexus between the owner and the plaintiff's employer here, given the fact that Rotavele was hired to perform the elevator installation work that caused the accident by Patmos' predecessor Mazl, and their written contract was subsequently assigned to Patmos ( compare Morton v State of New York , 15 NY3d 50 ; Abbatiello, 3 NY3d at 498). Further, Patmos has failed to demonstrate that Rotavele and its workers were trespassers in the building at the time the accident occurred. In this argument, Patmos relies largely upon Herman's deposition testimony, wherein he stated that when he first arrived at the job site several weeks before the accident, Stewart and a co-worker kicked down a door in order to gain entry to the premises. However, a review of this testimony indicates that if Stewart broke into the building, it was because "he had to call this guy to get a key from this guy" and "he could not get this guy." Thus, Stewart's alleged action in breaking down the door was undertaken as a matter of expediency in carrying out Rotavele's contractual obligations, not trespass.¹⁰ Further, there is no specific testimony that Rotavele lacked permission to carry out the work that it was contracted to perform in the weeks leading up to the accident or on the accident date itself. When asked whether Rotavele was permitted to work in the building after ATA had vacated the site, Abramov testified that he could not answer that question as the decision was Patmos' to make. Further, Agostino Previtera, Patmos' "technical director," testified that he never had any conversations with anyone working for Rotavele. Previtera also testified that ATA controlled entry to the building inasmuch as it was the only party that possessed a key to the premises. However, when asked at his deposition whether, "any workers from Rotavele, did you ever tell them they weren't allowed into the building," ATA's president Mishal responded "I didn't speak to them. I don't remember speaking to anyone." Finally, Zaretsky (Rotavele's president) testified that he did not even become aware of the fact that Mazl had sold the building to Patmos until after the accident.

10 The court also notes that, at his own deposition, Stewart denied breaking down the door to the building and further testified that he obtained a key from a party he believed to be the general contractor. Further, plaintiff's co-worker, Greg Alladin, has submitted an affidavit in which he states that he cannot recall how initial entry to the building was gained.

Patmos has also failed to demonstrate that Rotavele lacked permission to perform work on the day of the accident because the work was being performed on the Jewish Sabbath ( i.e., a Saturday). Specifically, Abramov testified that when Mazl owned the building, all work was prohibited on Saturdays. However, Abramov further testified that this rule was only in place when Mazl owned the building and he had "no idea" if Patmos prohibited work on Saturday after it became the owner of the building. At the same time, Patmos' principal, Augusto Reitano, testified that he was unaware of any rule prohibiting work on Saturdays after Patmos purchased the building. Further, although Mr. Previtera testified that no work was permitted on Saturdays, he also testified that ATA was the party that closed the job site on these days. When ATA's president Moshe Mishal was questioned about this rule, he responded, "[t]o me, it didn't make a difference to work or not to work [on Saturdays], it was Ruby's [Abramov] idea." However, as noted above, Abramov testified that this rule was only in place when Mazl owned the building.

Finally, there is no merit to Rotavele's argument that plaintiffs are ineligible for the protection of the Labor Law inasmuch as New York City Administrative Code § 24-224 prohibits the performance of construction work on weekends. It is notable that there is not a single reported case which holds that a worker loses the protection of the Labor Law when the underlying work is performed in violation of a local administrative code provision prohibiting work on weekends. Moreover, as previously noted, an individual falls under the protections of the Labor Law when he or she is permitted or suffered to work on a building and hired by someone, be it an owner, contractor or their agent ( Whelen, 47 NY2d at 971). The fact that the underlying work being performed at the time of the accident violated a (now repealed) New York City Administrative Code provision prohibiting construction work on weekends does not demonstrate that plaintiffs were not permitted or suffered to work on the building by the owner, contractor, or their agent.

Accordingly, as Patmos has failed to raise a triable issue of fact as to whether plaintiffs were trespassers or were the sole proximate cause of the accident, those branches of Samaroo and Herman's motions which seek summary judgment against Patmos under their Labor Law § 240 (1) causes of action are granted.

Plaintiffs' Labor Law § 241-a Claims Against Patmos

As the owner of the building, Patmos is also subject to liability under Labor Law § 241-a. However, plaintiffs have failed to establish their entitlement to summary judgment against Patmos under this cause of action. It is undisputed that there was no platform one floor beneath plaintiffs' work area, as is generally required by the statute. However, it is well-settled that "in circumstances where the work could not have been performed or not performed efficiently if the shaftway had been planked over,' a defendant does not violate Labor Law § 241-a by failing to install planking" ( Brownrigg v New York City Hous. Auth. , 70 AD3d 619 , 621, quoting Brzozo v Park P.E.P. Corp., 28 AD2d 867, 868). Here, Herman testified that the day before the accident, planking was in place inside the shaft on the floors below the work area and that this planking was removed in order to allow an elevator machine to be hoisted up the shaft. Accordingly, there is an issue of fact as to whether plaintiffs' work on the day of the accident could be efficiently performed had planking been in place below the work area. Further, in the absence of planking, Labor Law § 241-a specifically allows for "other means specified in the rules of the board" for the protection of workers in shaftways. The rules of the Industrial Board of Appeals provide for use of safety belts and harnesses for the protection of workers in shafts ( Sharp v Scandic Wall Ltd. Partnership, 306 AD2d 39, 39-40, citing 12 NYCRR 23-2.5[b][5]). As previously noted, there is evidence that plaintiffs were provided with such safety harnesses but failed to wear them at the time of the accident. Thus, plaintiffs have failed to demonstrate that Patmos violated Labor Law § 241-a as a matter of law. Consequently, plaintiffs' motions for summary judgment against Patmos under this cause of action must be denied.

Plaintiffs' Labor Law § 241 (6) Claim

ATA, Mazl, and Patmos separately move to dismiss plaintiffs' Labor Law § 241 (6) causes of action. In so moving, the defendants primarily rely upon the same arguments they raised in moving to dismiss plaintiffs' Labor Law §§ 240 (1) and 241-a claims — arguments which have already been addressed by the court. Specifically, ATA argues that it is not subject to liability under Labor Law § 241 (6) as it was not an owner, contractor, or agent under the statute. ATA further argues that this cause of action must be dismissed since plaintiff was the sole proximate cause of the accident. Similarly, Mazl argues that plaintiffs' Labor Law § 241 (6) claims must be dismissed against it inasmuch as it was not an owner, contractor, or statutory agent under the Labor Law. Finally, Patmos' motion to dismiss plaintiffs' Labor Law § 241 (6) claims is based upon the same sole proximate cause and trespasser arguments it advanced in support of its motion to dismiss plaintiffs' Labor Law §§ 240 (1) and 241-a claims.

The court has already determined that there are issues of fact regarding whether or not ATA and Mazl are subject to liability as a contractor or statutory agent. Consequently, to the extent ATA and Mazl advance this argument in moving to dismiss plaintiffs' Labor Law § 241 (6) cause of action, said motions must be denied. Further, to the extent that ATA moves to dismiss plaintiffs' Labor Law § 241 (6) claim based upon the arguments that plaintiffs' failure to wear safety harnesses as well as their removal of the platforms below the work area constituted the sole proximate cause of the accident, the court has already addressed and rejected these arguments. Finally, Patmos' motion for summary judgment dismissing plaintiffs' Labor Law § 241 (6) claim must be denied as it is procedurally defective. Patmos made this motion after the deadline for filing summary judgment motions had expired. Moreover, Patmos' motion is not "nearly identical" to Mazl and ATA's respective motions. Specifically, Patmos relies upon the arguments that plaintiffs were trespassers and that plaintiffs' negligent construction of the platform that collapsed was the sole proximate cause of the accident. These arguments were not raised in ATA and Mazl's timely motions. Finally, as previously noted, Patmos' motion to dismiss plaintiffs' Labor Law § 241 (6) cause of action is a procedurally defective successive summary judgment motion.

However, ATA raises an additional argument in support of its motion to dismiss plaintiffs' Labor Law § 241 (6) claims which stands apart from those advanced in seeking dismissal of plaintiffs' Labor Law §§ 240 (1) and 241-a claims. Specifically, ATA argues that the Industrial Code provisions which plaintiffs allege were violated are either too general to support a Labor Law § 241 (6) claim or are inapplicable given the circumstances of the accident.¹¹ In addition, to the extent that Samaroo cites alleged violations of OSHA regulations and the New York City Building Code, ATA argues that these may not serve as the predicate for a Labor Law § 241 (6) claim.

11 Samaroo's bill of particulars alleges violations of 12 NYCRR 23-1.7(b), 23-1.11(a) and (c), 23-1.15, 23-1.16, 23-1.17, 23-1.18(c), 23-1.22(c), 23-1.25(b), 23-3.3, 23-5.1, and 23-5.2. Herman's bill of particulars alleges violations of 12 NYCRR 23-1.7, 1.7(a)(1), 1.7(b)(1), 23-1.21, 23-5.3, 23-5.4, 23-5.5, 23-5.6, 23-5.11, 23-5.13, 23-5.15, and 23-5.19.

In opposition to this branch of ATA's motion, both Herman and Samaroo maintain that they have a viable Labor Law § 241 (6) claim to the extent that they rely upon a violation of 12 NYCRR 23-2.5(a)(2). In this regard, plaintiffs note that they have not alleged a violation of this provision, but seek leave to amend their pleadings to add a violation of 23-2.5(a)(2). Plaintiffs further contend that this regulation is both applicable and sufficiently specific to support a Labor Law § 241 (6) claim. In particular, plaintiffs note that this regulation requires that "tight planking . . . shall be installed not more than one story or 15 feet, whichever is less, in the shaft below the level where persons are working" in order to "minimize injuries from falls in shafts." The regulation further provides that, "in lieu of such platform, an approved life net [may be] installed in the shaft not more than one story or 15 feet, whichever is less, below the level where persons are working." Here, it is undisputed that no such planking or life net was installed in the shaft below the level where plaintiffs were working at the time of the accident.

In reply to plaintiffs' opposition papers, ATA argues that the court should deny plaintiffs' application to amend their pleadings so as to add a violation of 12 NYCRR 23-2.5(a)(2). ATA maintains that the subject provision is not applicable inasmuch as, by its own terms, 23-2.5(a) only applies to shafts "other than elevator shafts." Here, it is undisputed that the accident took place in an elevator shaft. Further, ATA notes that plaintiffs failed to discuss in their opposition papers any of the Industrial Code regulations set forth in their bills of particulars. Accordingly, ATA argues that plaintiffs have conceded that these provisions may not serve to support their Labor Law § 241 (6) claims.

Labor Law § 241(6) provides, in pertinent part, that:

"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places."

Labor Law § 241(6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code ( Ross, 81 NY2d at 501-502). Accordingly, in order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals ( id. at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]).

Here, with respect to the Industrial Code regulations set forth in Samaroo and Herman's respective bills of particulars, ATA has made a prima facie showing that these regulations are either too general to support a Labor Law § 241 (6) claim, or inapplicable given the circumstances of the accident. Further, plaintiffs' opposition papers do not even discuss these regulations. Thus, plaintiffs have effectively conceded that these provisions may not serve to support their Labor Law § 241 (6) cause of action. Moreover, it is not disputed that OSHA regulations and New York City Building Code provisions may not serve to support a Labor Law § 241 (6) claim.

With respect to the alleged violation of 12 NYCRR 23-2.5(a)(2), the court initially notes that the fact that plaintiffs failed to allege a violation of this provision in their pleadings is irrelevant. It is well-settled that an alleged Industrial Code violation may be raised for the first time in opposition to a summary judgment motion, and the court may sua sponte deem a defendant's pleadings amended to contain such an allegation so long as the amendment presents no new factual allegations or theories of liability ( Kowalik v Lipschutz , 81 AD3d 782, 783; Latino v Nolan and Taylor-Howe Funeral Home, Inc., 300 AD2d 631, 633-634; Kelleir v Supreme Indus. Park, LLC, 293 AD2d 513). Here, the alleged violation of 23-2.5(a)(2) does not present any new facts or theories of liability. However, it is clear that this provision is not applicable given the circumstances of the accident. The protections set forth in 23-2.5(a)(1) only apply to shafts "other than elevator shafts." Here, the accident took place in an elevator shaft. Accordingly, this regulation may not serve to support plaintiffs' Labor Law § 241 (6) claim. Indeed, in apparent recognition of this fact, at oral argument before the court on the motions, plaintiffs withdrew their motion to amend their pleadings "without prejudice with leave to renew if necessary."¹² Under the circumstances, ATA's motion to dismiss plaintiffs' Labor Law § 241 (6) claims based upon their failure to allege any specific and applicable Industrial Code regulations is granted.

12 Plaintiffs may not revive their Labor Law § 241 (6) claims against ATA by seeking leave to amend their pleadings to allege additional Industrial Code violations after the determination of this motion. Once ATA made a prima facie showing that plaintiffs failed to set forth any specific and applicable Industrial Code violations, it was plaintiffs' burden to lay bare their proof and point to an Industrial Code provision which was sufficient to support their Labor Law § 241 (6) claim ( see generally Olson v Pyramid Crossgates Co., 291 AD2d 706, 707 [2002]). Plaintiffs' failure to do so must result in the dismissal of their Labor Law § 241 (6) claim against ATA with prejudice.

Plaintiffs' Labor Law § 200/Common-Law Negligence Claims

ATA moves for summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims against it. In so moving, ATA argues that it did not have any authority to control the means and methods plaintiffs employed in carrying out the elevator installation work. In support of this argument, ATA notes that it was not a general contractor with respect to the elevator installation work inasmuch as it did not hire Rotavele to perform this work. Rather, Rotavele was contracted directly by Mazl, which subsequently assigned the contract to Patmos. ATA also points out that there is no evidence which indicates that it had the authority to control the means and methods used by Rotavele's workers during the elevator installation process. To the contrary, plaintiffs as well as their supervisor Stewart testified that they were directed solely by Rotavele personnel. Further, ATA notes that it could not have controlled the means and methods plaintiffs employed in carrying out their work inasmuch as it had left the job site several weeks before the accident. Finally, ATA maintains that, to the extent the accident was caused by a dangerous condition, it neither created nor had notice of this condition given the fact that it vacated the building weeks before the accident while it awaited approval of the new plans.

Mazl also moves for summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims against it. In so moving, Mazl maintains that it lacked the authority to control the means and methods employed by plaintiffs in carrying out the elevator installation work. In support of this contention, Mazl argues that it did not supervise or control the elevator installation work performed by Rotavele. Specifically, Mazl notes that its principal, Ruby Abramov, merely inspected the progress of the work from time to time after Mazl sold the building to Patmos. Mazl further argues that its only function on the job after the sale of the building was to ensure that ATA was paid for its work. Finally, Mazl notes plaintiffs and their supervisor Stewart testified that they were directed and controlled solely by their employer Rotavele.

Patmos also moves for summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims against it.¹³ In support of its motion, Patmos argues that it had no control over the means and methods employed by plaintiffs in performing their work given plaintiffs' uncontradicted deposition testimony that they were supervised solely by Rotavele personnel.

13 Unlike its motion for summary judgment dismissing plaintiffs' Labor Law §§ 240 (1), 241-a and 241 (6) claims, Patmos' motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims was timely made inasmuch as it was filed prior to the September 8, 2010 deadline for summary judgment motions.

Although plaintiffs dispute Mazl and ATA's argument that they did not have any authority or control over the elevator installation work, plaintiffs did so in the context of their Labor Law §§ 240(1), 241(6), and 241-a claims. In particular, plaintiffs argue that Mazl and ATA retained sufficient supervisory authority over the work so as to be charged with the nondelegable duties imposed by these statutes upon contractors and their agents. Plaintiffs have failed to specifically oppose those branches of Mazl, ATA, and Patmos' motions which seek dismissal of their Labor Law § 200 and common-law negligence causes of action.

Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work ( Chowdhury v Rodriguez, 57 AD3d 121, 127-128). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those defendants who exercise control or supervision over the plaintiff's work, or who have actual or constructive notice of the unsafe condition that caused the underlying accident ( Bradley v Morgan Stanley Co., Inc., 21 AD3d 866, 868; Aranda v Park East Constr. , 4 AD3d 315; Akins v Baker, 247 AD2d 562, 563). Specifically, "[w]here a premises condition is at issue, property owners [and contractors] may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" ( Ortega v Puccia , 57 AD3d 54 , 61). On the other hand, "[w]here a plaintiff's claims implicate the means and methods of the work, an owner or a contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work. General supervisory authority to oversee the progress of the work is insufficient to impose liability. If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercisers no supervisory control over the work, no liability attaches under Labor Law § 200 or the common law" ( LaRosa v Internap Network Serv. Corp. , 83 AD3d 905 ).

Here, the accident arose out of the means and methods Rotavele employed in carrying out their elevator installation work. Further, the court has already determined that, given conflicting evidence regarding ATA and Mazl's supervisory responsibilities over this work, there are triable issues of fact as to whether they are subject to liability as contractors and agents under the nondelegable duty provisions of the Labor Law. However, even if these issues were resolved against ATA and Mazl, it is clear that, at best, they possessed general supervisory authority over the elevator installation work and that the specific means and methods used in carrying out this work were solely those of Rotavele and its employees. Indeed, plaintiffs do not contend otherwise. Thus, as ATA and Mazl exercised no supervisory control over these means and methods, they cannot be held liable under plaintiffs' Labor Law § 200 and common-law negligence claims.

Turning to plaintiffs' Labor Law § 200 and common-law negligence claims against Patmos, it is undisputed that Patmos did not excise any authority or control over Rotavele's work, let alone the specific means and methods it employed in installing the elevator. Under the circumstances, Patmos is entitled to summary judgment dismissing these claims against it as well.

Common-Law Indemnification Claims Against the Employers

Rotavele and ELS move for summary judgment dismissing all common-law indemnification claims asserted against them. In so moving, Rotavele and ELS maintain that they were plaintiffs' general and special employers, and as such, no common-law indemnification claims may lie against them unless Herman and/or Samaroo sustained a "grave injury" as that term is defined in Workers' Compensation Law § 11. Here, the employers maintain that a review of plaintiffs' bills of particulars and deposition testimony demonstrates that neither Herman nor Samaroo sustained a grave injury in the accident.

No opposition has been submitted to this branch of the employers' motion.

The court has already determined that Herman was a special employee of Rotavele and that Rotavele and ELS were alter egos. Moreover, it is undisputed that Samaroo was an employee of Rotavele. Consequently, under Workers' Compensation Law § 11, all common-law indemnification claims against the employers are precluded unless it can be established that Herman and/or Samaroo sustained a grave injury in the accident ( Mikulski v Adam R. West, Inc. , 78 AD3d 910 , 911). Here, although both plaintiffs sustained serious injuries in the accident, the deposition testimony and pleadings submitted by the employers are sufficient to make a prima facie showing that these were not grave injuries for purposes of Workers' Compensation Law § 11 ( Maxwell v Rockland County Community Coll. , 78 AD3d 793 , 794). Further, the other defendants in this action have failed to offer any opposition to this branch of the employers' motion. Accordingly, all common-law indemnification claims against the employers must be dismissed.

Contractual Indemnification Claims Against Rotavele

Rotavele moves for summary judgment dismissing Mazl, ATA and Patmos' contractual indemnification claims against it. In support of this branch of its motion, Rotavele contends that it never entered into any contractual agreements whereby it obligated itself to indemnify ATA or Patmos. Further, while it acknowledges that there was an indemnification clause in its contract with Mazl, Rotavele maintains that Mazl is not entitled to contractual indemnity against it for two reasons. First, Rotavele contends that Mazl itself is not subject to liability in this case inasmuch as it was not a contractor, agent or owner under the Labor Law at the time of the accident. Under the circumstances, Rotavele reasons that there will be no liability against which Mazl needs to be indemnified. In the alternative, Rotavele contends that the indemnification clause in the contract between it and Mazl no longer applied at the time the accident occurred. Specifically, Rotavele argues that it only agreed to indemnify Mazl in its capacity as owner of the building. According to Rotavele, once Mazl sold the building to Patmos, Rotavele's obligation to indemnify Mazl ceased as the parties never intended that Mazl should be indemnified in its capacity as a contractor.

In opposition to this branch of Rotavele's motion, Mazl notes that there a clause in its contract with Rotavele which requires Rotavele to indemnify Mazl for claims "arising out of or resulting from performance of [Rotavele's] work." Here, inasmuch as plaintiffs' injuries clearly arose out of Rotavele's work, Mazl contends that there are issues of material fact regarding the extent of Rotavele's obligation to indemnify Mazl pursuant to this contractual clause.

Patmos also opposes Rotavele's motion to dismiss its contractual indemnification claim and Patmos further moves for summary judgment on its contractual indemnification against Rotavele. In support of its motion, Patmos maintains that Mazl assigned its contract with Rotavele to Patmos after the sale of the building. Patmos further contends that this assignment included Mazl's indemnification rights against Rotavele. In this regard, Patmos notes that Mazl's principal, Ruby Abramov, testified that after the sale of the building, he assigned Mazl's contract with Rotavele to Patmos. Abramov also testified that he notified Rotavele of this assignment by sending it a correspondence via fax machine. Finally, Patmos submits a copy of a fax transmission/correspondence dated June 25, 2006 in which Abramov notified Frank Tortorella (Rotavele's vice president) of the sale of the building. This correspondence further states "all liabilities and contracts should be transfer [sic] to [Patmos] as part of our sale agreement." Under the circumstances, Patmos maintains that Mazl's right to be indemnified by Rotavele for injuries arising out of Rotavele's work was assigned to Patmos. Moreover, inasmuch as it is undisputed that plaintiffs' injuries did arise out of Rotavele's work, Patmos maintains that it is entitled to summary judgment on its contractual indemnification claim against Rotavele.

In opposition to Patmos' motion, Rotavele maintains that it had no knowledge of the fact that Mazl sold the building to Patmos, or that Mazl had assigned its contract with Rotavele to Patmos prior to the accident. In particular, Mr. Zaretsky testified that he was not even aware that Mazl had sold the building to Patmos until after the accident occurred, let alone that Mazl had assigned its contract with Rotavele to Patmos. Under the circumstances, Rotavele argues that it was under no obligation to indemnify Patmos pursuant to the terms of the assigned contract. In support of this contention, Rotavele points to well-settled law which stands for the proposition that, when a party is under no legal duty to indemnify, a contact assuming that obligation must be strictly construed so as to avoid reading in a duty which the parties did not intend to be assumed. According to Rotavele, given the fact that it was unaware that Mazl had sold the building or assigned the contract to Patmos, Rotavele never intended to assume the obligation to indemnify Patmos. In addition, Rotavele argues that it was never its intent that the indemnification agreement it entered into with Mazl could be assigned to Patmos or any other party. Rotavele notes that the indemnification agreement only requires that Rotavele indemnify Mazl and its employees and makes no mention of Mazl's agents or assigns. Further, paragraph 40 (j) of the agreement between Mazl and Rotavele specifically provides that "[Rotavele] will not sign any hold harmless agreement unless negotiated upfront." Finally, Rotavele denies that it ever received a fax transmission from Mazl advising it that the contract had been assigned or transferred to Patmos.

Turning first to Patmos' contractual indemnification claim against Rotavele, said claim centers around the issue of whether or not Mazl's right to indemnification under its contract with Rotavele was properly assigned to Patmos. As a general rule, contracts are freely assignable absent language which expressly prohibits assignment ( in re Stralem, 303 AD2d 120; General Obligations Law § 13-101). Moreover, "[n]o particular words are necessary to effect an assignment; it is only required that there be a perfected transaction between the assignor and assignee, intended by those parties to vest in the assignee a present right in the things assigned" ( Leon v Martinez, 84 NY2d 83, 88). In addition, a contract's silence regarding its assignability does not preclude assignment ( Eisner Computer Solutions v Gluckstern, 293 AD2d 289). To the contrary, in the absence of a contractual, statutory, or public policy prohibition against assignment, "a clear and unambiguous prohibition is essential to effectively prevent assignment" notwithstanding any alleged lack of notice or consent ( Special Prods. Mfg. v Douglass, 159 AD2d 847, 849). Finally, "when a valid assignment is made, the assignee steps into the assignor's shoes and acquires whatever rights the latter had" ( In re Stralem, 303 AD2d at 123).

Here, Abramov's uncontradicted deposition testimony indicates that Mazl assigned its contract with Rotavele to Patmos after the sale of the building and prior to the accident. Further, there was no language within the underlying contract precluding such assignment, nor has Rotavele identified any statutory or public policy prohibition against assigning indemnification rights. Moreover, as owners, Mazl and Patmos stood in the same shoes regarding potential liability under the Labor Law. Thus, the assignment of the indemnification right to Patmos did not increase the risk that Rotavele's obligation to indemnify would be triggered ( compare Badiak v White Plain Kensington, LLC , 31 Misc 3d 765 [Nonparty subcontractor cannot assign to general contractor indemnification rights against sub-subcontractor inasmuch as subcontractor faced no liability and general contractor was exposed to strict liability provisions of the Labor Law which did not apply to nonparty subcontractor]). Indeed, but for the assignment of the contract and indemnification right to Patmos, Rotavele would have been obligated to indemnify Mazl given the fact that the accident clearly arose out of Rotavele's work. Under the circumstances, Mazl's indemnification rights were assignable to Patmos. Finally, the court has already determined that Patmos' negligence did not play a role in the accident and that its liability is purely vicarious in nature. Thus, General Obligations Law § 5-322.1 does not preclude Patmos from enforcing its indemnification right against Rotavele ( Reisman v Bay Shore Union Free School Dist. , 74 AD3d 772 , 774).

Accordingly, that branch of Rotavele's motion which seeks summary judgment dismissing Patmos' contractual indemnification claim against it is denied and Patmos' motion for summary judgment on the issue of contractual indemnification against Rotavele is granted.

With respect to the remaining contractual indemnification claims against Rotavele, it is undisputed that Rotavele never entered into any agreement whereby it agreed to indemnify ATA. Accordingly, there is no basis for ATA's contractual indemnification claim against Rotavele. Further, although Rotavele did enter into a contract whereby it agreed to indemnify Mazl, Mazl's president, Abramov, testified that Mazl assigned this contract to Patmos prior to the accident. Further, Mazl does not dispute Patmos' claim that Mazl's indemnification right was assigned to Patmos. Consequently, Mazl's contractual indemnification claim against Rotavele must be dismissed.

Breach of Contract Claims Against Rotavele

Patmos moves for summary judgment under its breach of contract claim against Rotavele. In particular, Patmos maintains that Rotavele breached its obligation under the assigned contract to procure liability insurance listing Patmos as an additional insured. In support of this argument, Patmos again notes that under the terms of the contract between Rotavele and Mazl, Rotavele was obligated to obtain liability insurance listing Mazl as an additional insured. Accordingly to Patmos, once it was assigned the contract by Mazl, Rotavele was obligated to obtain the same liability coverage on Patmos' behalf. However, Rotavele failed to obtain such coverage as evidenced by the fact that its liability carrier has refused to defend and indemnify Patmos against plaintiffs' claims.

Patmos also contends that Rotavele breached its obligation under the contract to "comply with all aspects of local laws." In this regard, Patmos points out that plaintiffs have alleged violations of Labor Law §§ 240 (1), 241 (6), 200, as well as various Industrial Code regulations. Under the circumstances, Patmos reasons that, should plaintiffs be found to recover under any of these provisions, Rotavele will be in breach of its contractual obligation to comply with local laws.

Turning first to Patmos' claim for breach of contract to procure liability insurance, as noted above, there is evidence before the court in the form of Zaretsky's deposition testimony that Rotavele was not notified, and otherwise remained unaware that Mazl assigned its rights under the elevator installation contract to Patmos until after the accident occurred. Under the circumstances, Patmos is not entitled to summary judgment against Rotavele under this claim, as it is unclear whether or not Rotavele was made aware that it was obligated to procure liability insurance covering Patmos.

To the extent that Patmos seeks summary judgment against Rotavele on its claim that Rotavele breached its contractual obligation to comply with all local laws, said motion must also be denied. In this regard, Patmos points to Labor Law §§ 240 (1), 241 (6), 241-a, 200 and the Industrial Code provisions set forth in plaintiffs' pleadings in arguing that Rotavele breached its obligation to comply with local laws. However, these Labor Law provisions apply to owners, contractors, and their agents, not employers such as Rotavele. Furthermore, as an owner, Patmos' duty to comply with Labor Law §§ 240 (1), 241-a, and 241 (6) is nondelegable. Thus, Patmos cannot shift the burden of complying with these provisions to an employer by means of a contractual provision.

Under the circumstances, Patmos' motion for summary judgment against Rotavele under its breach of contract claims is denied.

Common-Law Indemnification Claims Against ATA

ATA moves for summary judgment dismissing all common-law indemnification claims against it. In support of its motion, ATA argues that it played no role supervising or controlling the elevator installation work that caused the accident. Further, ATA maintains that the accident was not caused by any negligence on its part, as it was not even present at the work site at the time the accident occurred. Accordingly, ATA maintains that there is no basis for any common-law indemnification claims asserted against it by its co-defendants.

Patmos opposes this branch of ATA's motion and further moves for summary judgment against ATA under its common-law indemnification claim. In support of its motion, Patmos argues that ATA had the authority to control and supervise plaintiffs' work inasmuch as it was the general contractor on the job site. Further, Patmos argues that its negligence did not play any role in the accident. Mazl also opposes ATA's motion to dismiss its common-law indemnification claim. In particular, Mazl argues that, inasmuch as ATA can be held liable as a general contractor for plaintiff's injuries, ATA is not entitled to summary judgment dismissing the common-law indemnification claims asserted against it.

Initially, the court notes that Patmos' motion is untimely inasmuch as it was made after the expiration date for summary judgment motions. However, Patmos' motion involves the same issues as ATA's timely motion for summary judgment dismissing the common-law indemnification claim. Under the circumstances, the court may consider Patmos' motion on it merits as it is nearly identical to ATA's timely motion.¹⁴

14 The same holds true with respect to Patmos' motion for summary judgment against ATA under its contractual indemnification and breach of contract claims.

Turning to the merits of the motions, "a party cannot obtain common law indemnification unless it has been held vicariously liable without proof of any negligence or actual supervision on their own part" ( McCarthy v Turner Constr. Inc., ___ NY3d ___, 2011 NY Slip Op 05541). Further, the movant must establish that the proposed indemnitor was either negligent or exercised actual supervision over the work that caused the injury ( id.). "[A] common law indemnification claim will not lie against [a] party on the basis of its contractual authority alone" ( id.). Here, it is undisputed that ATA's negligence played no role in the accident. Further, although there is an issue of fact as to whether ATA possessed general supervisory authority over the elevator installation work, it is clear that it did not exercise actual supervision over this work. Consequently, there is no basis for the common-law indemnification cross claims asserted against ATA and said claims are dismissed.

Contractual Indemnification Claims Against ATA

ATA moves for summary judgment dismissing all contractual indemnification cross claims asserted against it. In so moving, ATA maintains that at the time the accident occurred, there were no agreements in effect whereby it agreed to indemnify Mazl, Rotavele, or ELS. Further, although there was an agreement in effect whereby ATA was obligated to indemnify Patmos, ATA argues that this obligation was not triggered given the wording of the agreement and the circumstances of the accident. The subject indemnification clause provides, in pertinent part:

"To the fullest extent permitted by law, [ATA] shall indemnify and hold harmless [Patmos] . . . from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of [ATA's] work, provided that such claim . . . is attributable to bodily injury . . . caused in whole or in part by negligent acts or omissions of [ATA], [ATA's] sub-contractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable."

Here, ATA maintains that the accident did not arise out of its work, but rather, arose out of Rotavele's work. In addition, ATA argues that the accident was not caused by any negligence on its part or any negligence on the part of a subcontractor hired by ATA. ATA notes that it did not hire any subcontractors on this project as Rotavele was hired directly by Mazl.

Mazl, Rotavele and ELS do not oppose this branch of ATA's motion. However, Patmos opposes ATA's motion and further moves for contractual indemnification against ATA. In support of its motion, Patmos initially points out that its contract with ATA referenced the plans of architect George Schwartz. These plans, in turn, contain "general notes" which state, in part, "[t]he contractor shall hold harmless the owner, landlord and the architect from all liabilities and suits arising out of the performance of the contract including work of sub-contractors and sub-sub-contractors." According to Patmos, ATA is obligated to indemnify it pursuant to this provision as the accident clearly arose out of the performance of the work in the contract. In addition, Patmos maintains that ATA is obligated to indemnify it pursuant to the terms of the contract between the parties. Specifically, as previously noted, this contract contains a clause whereby ATA agreed to indemnify Patmos for any claims "arising out of or resulting from performance of [ATA's] work." According to Patmos, the accident arose out of ATA's work inasmuch as ATA had authority and control over the entire renovation project, including the elevator installation work.

As an initial matter, it is undisputed that there was no contractual agreement in place at the time of the accident whereby ATA was obligated to indemnify Mazl, Rotavele, or ELS. Consequently, any contractual indemnification cross claims which these parties have asserted against ATA must be dismissed. Turning to Patmos' contractual indemnification claim against ATA, it is well-settled that indemnity contracts are to be strictly construed to avoid reading into them duties which the parties did not intend to be assumed ( Mikulski v Adam R. West Inc. , 78 AD3d 910 , 911; Nesterczuk v Goldin Mgt., Inc. , 77 AD3d 800 , 804-805). Here, the "hold harmless" language in the general notes section of the architectural plans is insufficient to support Patmos' contractual indemnity claim against ATA. The fact that ATA agreed to perform all work "according to the plans of George Schwartz Architect" in its contract with Patmos does not demonstrate that ATA agreed to indemnify Patmos pursuant to a statement in the plans whereby an unnamed contractor was to hold harmless an unnamed owner. This is especially true inasmuch as there is a specific and direct indemnification clause in the contract between ATA and Patmos which takes precedence over the vague statement in the architectural plans. In particular, ATA agreed to indemnify Patmos for any claim resulting from the performance of ATA's work, but only to the extent caused by the negligence of ATA, ATA's subcontractors, or "anyone for whose acts they may be liable."

Here, the court has already determined that there is an issue of fact as to whether ATA's work encompassed the elevator installation work performed by Rotavele. As noted, it is undisputed that ATA did not hire Rotavele and did not exercise any actual control over Rotavele's work. In addition, Moshe Mishal testified that ATA had no involvement with or responsibility for the elevator installation work. On the other hand, ATA's contract with Patmos specifically identified ATA's "work" as "all demolition and re-structure and mechanicals according to the plans of George Schwartz Architect" and these plans included the elevator installation work. Moreover, Abramov testified that ATA was responsible for overseeing the elevator installation work. Finally, with respect to the second component of the indemnification clause, it is clear that the accident was not caused by ATA's negligence or the negligence of ATA's subcontractors. Rather, the accident is attributable to Rotavele's negligence. However, depending on the jury's determination regarding ATA's status on the job site, ATA may be held liable for Rotavele's acts under Labor Law §§ 240 (1) and 241-a. Thus, the question of whether or not ATA's obligation to indemnify Patmos has been triggered is dependent upon the fact-finder's determination regarding ATA's responsibility (if any) for the elevator installation work.

Under the circumstances, ATA's motion to dismiss Patmos' contractual indemnification cross claim against it, as well as Patmos' motion for contractual indemnification against ATA, must be denied.

Breach of Contract Claims Against ATA

ATA moves for summary judgment dismissing all breach of contract cross claims asserted against it. In support of this motion, ATA notes that it did not enter into any contractual agreement with Rotavele or ELS whereby it was obligated to procure liability insurance covering these parties. Further, ATA maintains that it complied with its contractual obligations to procure liability insurance covering Mazl and Patmos. In support of this argument, ATA submits a copy of its liability policy with Illinois Union Insurance Company which provided coverage at the time of the accident. ATA further notes that this policy contains a blanket additional insured endorsement which provides additional insured coverage "as required by contract, provided the contract is executed prior to loss."

Rotavele, ELS, and Mazl have not submitted any opposition to this branch of ATA's motion. However, Patmos opposes ATA's motion and further moves for summary judgment under its breach of contract claim against ATA. In support of its motion, Patmos notes that under the terms of the contract between them, ATA was obligated to obtain comprehensive general liability insurance which named Patmos as an additional insured or "by using a company specific endorsement that provides equivalent protection." Here, inasmuch as the blanket endorsement in the policy did not specifically name Patmos, and the policy did not otherwise contain a company — specific additional insured endorsement naming it, Patmos maintains that ATA breached its contractual obligation. Further, Patmos argues that an additional insured is understood to be an entity enjoying the same protection as the named insured. According to Patmos, it has not enjoyed the same protection as evidenced by the fact that ATA's carrier has failed to defend and indemnify Patmos.

Here, ATA has made a prima facie showing that it complied with its contractual obligation to obtain liability insurance which covered Patmos and Mazl as an additional insureds. In particular, the blanket additional insured endorsement which provided coverage to any person "as required by contract" is sufficient to demonstrate that ATA acquired the necessary coverage notwithstanding the fact that it did not specifically list Patmos' or Mazl's name in the endorsement ( Perez v Morse Diesel Intern. Inc. , 10 AD3d 497 , 498). Moreover, the fact that ATA's carrier has refused to defend and indemnify Patmos does not demonstrate that ATA breach its contractual obligation ( id.). In this regard, Patmos' "proper remedy is to bring a declaratory judgment action against [ATA's carrier]" ( Garcia v Great Atl. and Pac. Tea Co., Inc., 231 AD2d 401, 402).

Accordingly, ATA is entitled to summary judgment dismissing Mazl and Patmos' breach of contract claims against it. Moreover, it is undisputed that there is no basis for Rotavele and ELS' breach of contract claim against ATA inasmuch as these parties never entered into any contractual agreements with each other.

Third-Party Claims Against Mazl

Mazl moves for summary judgment dismissing all common-law indemnification, contractual indemnification, and breach of contract cross claims asserted against it. In so moving, Mazl argues that there is no basis for any common-law indemnification claims against it inasmuch as it was not negligent and it did not otherwise control or direct plaintiffs' work. Further, Mazl contends that there were no contracts in effect at the time of the accident which obligated it to indemnify or obtain liability insurance covering its co-defendants. Consequently, Mazl maintains that all contractual indemnity and breach of contract claims must be dismissed against it.

Patmos' opposes that branch of Mazl's motion which seeks dismissal of its common-law indemnification and breach of contract cross claims against it and Patmos further moves for summary judgment against Mazl under these claims. In support of its common-law indemnity claim, Patmos argues that Mazl had the authority to control and supervise the elevator installation work under the terms of the Temporary Construction Contract between Mazl and Patmos. In addition, Patmos argues that its own negligence did not play a role in the accident and that it did not control or supervise Rotavele's work. Finally, Patmos argues that Mazl breached its obligation under the temporary construction contract to provide skilled laborers, necessary assistants, and a competent foreman. Patmos further maintains that this breach renders it liable to indemnify Patmos.

As noted earlier, a party seeking common-law indemnification must demonstrate that it was not negligent and that the proposed indemnitor was negligent, or in the absence of such negligence, that the proposed indemnitor actually supervised the work that caused the accident ( McCarthy, ___ NY3d ___, 2011 NY Slip Op 05541). Here, there was no negligence on Mazl's part which played a role in the accident. Further, although there is an issue of fact as to whether Mazl possessed general supervisory authority over the elevator installation work, it is clear that Mazl did not actually supervise this work. Accordingly, Mazl is entitled to summary judgment dismissing Patmos' common-law indemnification claims against it.

With respect to Patmos' breach of contract claim against Mazl, it is undisputed that Mazl was not obligated to procure liability insurance covering Patmos. Further, while it is true that, under the terms of the temporary construction contract, Mazl was obligated to "keep a competent foreman, necessary assistants, and a sufficient number of skilled workmen and laborers to properly and promptly perform the work," there is no evidence that Mazl's alleged breach of this provision played any role in the accident involving Rotavele's workers. Accordingly, Mazl is entitled to summary judgment dismissing Patmos' breach of contract claim against it.

As a final matter, ATA, Rotavele, and ELS do not oppose Mazl's motion to dismiss the contractual indemnification, common-law indemnification, and breach of contract cross claims asserted against it. Consequently, these claims are dismissed against Mazl. In addition, Patmos does not dispute the fact that Mazl did not enter into any agreement to indemnify Patmos. Accordingly, Patmos' contractual indemnity cross claim against Mazl is dismissed as well.

Summary

In summary, the court rules as follows: (1) That branch of Rotavele and ELS's motion which seeks summary judgment dismissing plaintiffs' complaints against them is granted. That branch of Rotavele and ELS's motion which seeks summary judgment dismissing all third-party common-law indemnification claims and cross claims against them is granted. That branch of Rotavele and ELS's motion which seeks summary judgment dismissing all third-party contractual indemnification claims asserted against Rotavele and all cross-claims against both ELS and Rotavele is denied with respect to Patmos' claims and granted with respect to ATA and Mazl's claims. That branch of Rotavele and ELS's motion which seeks summary judgment dismissing all third-party breach of contract claims asserted against Rotavele and all cross claims asserted against both of them, is denied with respect to Patmos' claims and granted with respect to ATA and Mazl's claims. (2) That branch of ATA's motion which seeks summary judgment dismissing plaintiffs' Labor Law §§ 240 (1) and 241-a claims against it is denied. That branch of ATA's motion which seeks summary judgment dismissing plaintiffs' Labor Law §§ 241 (6), 200, and common-law negligence claims against it is granted. That branch of ATA's motion which seeks summary judgment dismissing all common-law indemnification cross claims against it is granted. That branch of ATA's motion which seeks summary judgment dismissing all contractual indemnification claims against it is denied with respect to Patmos' claim and granted with respect to the claims asserted by Mazl, Rotavele, and ELS. That branch of ATA's motion which seeks summary judgment dismissing all breach of contract cross claims against it is granted. (3) That branch of Mazl's motion which seeks summary judgment dismissing plaintiffs' Labor Law §§ 240 (1), 241-a and 241(6) claims against it is denied. That branch of Mazl's motion which seeks summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims against it is granted. That branch of Mazl's motion which seeks summary judgment dismissing all common-law indemnification, contractual indemnification, and breach of contract cross claims asserted against it is granted. (4) That branch of Patmos' motion which seeks summary judgment dismissing plaintiffs' Labor Law §§ 240 (1), 241-a, and 241 (6) claims against it is denied. That branch of Patmos' motion which seeks summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims against it is granted. That branch of Patmos' motion which seeks common-law indemnification against ATA and Mazl is denied. That branch of Patmos' motion which seeks contractual indemnification against ATA and Rotavele is granted with respect Rotavele and denied with respect to ATA. That branch of Patmos' motion which seeks summary judgment under its breach of contract claims against Rotavele, Mazl, and ATA is denied. (5) Those branches of plaintiffs' cross motions which seek summary judgment against Patmos, ATA, and Mazl under their Labor Law § 240 (1) claims are granted with respect to Patmos and denied with respect to ATA and Mazl. (6) Those branches of plaintiffs' cross motions which seek summary judgment against Patmos, ATA, and Mazl under their Labor Law § 241-a claim is denied.

This constitutes the decision and order of the court.