Opinion
Index No. 508782/20
04-15-2024
RICARDO GUZMAN VIVEROS, Plaintiff, v. MASERATI REALTY, LLC, CH GOWANUS, LLC, CH GOWANUS HOLDINGS, LLC, NY DEVELOPERS & MANAGERS, INC., NY DEVELOPERS & MANAGEMENT, LLC, and FIRST QUALITY ELECTRIC CORP., Defendants.
Unpublished Opinion
PRESENT: HON. WAVNY TOUSSAINT, Justice.
DECISION AND ORDER
HON. WAVNY TOUSSAINT, J. S. C.
| The following e-filed papers read herein: | NYSCEF Doc Nos.: |
| Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed | 85-87. 101-103. 128-130 148-149, 151-152,154-155 |
| Opposing Affidavits/Answer (Affirmations) | 157-158, 160-161. 165-166 |
| Affidavits/ Affirmations in Reply | 170. 172. 174. 177. 179 |
| Other Papers: | ___ |
Upon the foregoing papers, defendant First Quality Electric Corp. (First Quality) moves (Seq. 05) for an order, pursuant to CPLR §3212, granting summary judgment dismissing the complaint and any and all cross claims as asserted against it. Defendants Maserati Realty LLC (Maserati), CH Gowanus, LLC (CH Gowanus), NY Developers & Managers, Inc. (Managers), and NY Developers & Management, LLC (NY Developers) (collectively referred to as the "Maserati Defendants") move (Seq. 06) for an order, pursuant to CPLR §3212, granting them summary judgment: (1) dismissing the complaint and any and all cross claim as asserted against them and (2) granting their cross claim against First Quality. Plaintiff Ricardo Guzman Viveros (plaintiff) moves (Seq. 07) for an order, pursuant to CPLR §3212, granting him partial summary judgment on the issue of liability as against Maserati, CH Gowanus and NY Developers on his Labor Law §240(1) cause of action and on his Labor Law §241(6) cause of action to the extent that it is premised on Industrial Code (12 NYCRR) §23-1.30.
BACKGROUND
In this action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6), plaintiff alleges that, on February 27, 2020, he suffered injuries while installing ductwork at an industrial building being renovated for office and retail use at 124 9th Street, Brooklyn, NY (premises), when the ladder on which he was standing moved and he fell to the floor. The building and land at issue were owned by Maserati and, pursuant to a 99-year ground lease, leased to CH Gowanus. CH Gowanus hired NY Developers as a construction manager/general contractor for the project which involved the gut renovation of the premises. Pursuant to a prime contract, CH Gowanus hired First Quality to perform electrical work and the scope of First Quality's work under their contract included installing new electrical boxes and fixtures as well as installing and maintaining temporary lighting during construction (CH Gowanus - First Quality Contract, Rider 1, Scope of Work § 5). Pursuant to another prime contract, CH Gowanus hired non-party On Target Sheet Metal Corp., (On Target) to perform HVAC work that included the installation of ductwork. Plaintiff was employed by On Target as a ductwork installer.
The court notes that CH Gowanus' contract with NY Developers identifies NY Developers as a construction manager and limits its responsibility for overall site safety. Despite the language of the contract, however, Jacob Hamway, who testified as a witness on behalf of Maserati, CH Gowanus, and NY Developers, stated that NY Developers also acted as a general contractor and that its site staff, such as the project manager, assistant project manager, and superintendent, had authority to stop the work if they observed dangerous conditions or practices and would regularly walk the site to ensure that the subcontractors adhered to safe construction practices.
According to plaintiffs deposition testimony, he had been working with Julian Pinera (Pinera) his helper, installing ductwork in a small room on the second floor of the premises for approximately a week before the accident. In order to perform this work, plaintiff and Pinera would each set-up their eight-foot-tall A-frame ladders approximately one to two feet from each other. Each would grab a hold of opposing ends of a three-and-one-half by two-and-one half foot piece of metal duct work, and then proceed to climb up their respective ladders holding the piece of ductwork in order to attach it to the portion of the ductwork that had already been installed. Just before the accident, plaintiff and Pinera had already positioned a piece of ductwork above them, and plaintiff, who was standing with his feet on the sixth rung of his ladder, was reaching above his head with his left hand to hold the duct in position with a pressure clamp while at the same time reaching up with his right hand to put in screws using a screwdriver. As plaintiff was installing the duct in this manner, the temporary lighting went out, plaintiffs ladder moved to plaintiffs left, and when it did so, plaintiff fell towards his right, striking an electrical panel as he fell to the floor. The ladder also ultimately fell to the floor. Plaintiff, however, did not know what caused the ladder to move.
When the lights went out, plaintiff testified that there was no light coming into the room and that he couldn't see a thing through the darkness. The lights remained out for approximately 20 minutes after the accident. Although plaintiff did not recall the lights going out while he was working in the room at issue during the week before the accident, he alleges the lights had previously gone out on several occasions during his eight months working on the project. With respect to the subject ladder, plaintiff stated that he had used it before the day of the accident and had experienced no problems, issues or concerns with the ladder prior to the accident, and, if he had, he would have brought them to the attention of his supervisor. The floor of the room at issue was concrete and plaintiff and Pinera kept it free of garbage and debris.
In his deposition testimony, Pinera's description of how he and plaintiff performed their assignments is similar to plaintiffs description of same. Pinera also stated that the accident occurred after the lights went out while they were standing on their respective ladders installing a piece of ductwork. At the time the lights went out, Pinera was holding one end of the duct in place as plaintiff was installing a screw. Although Pinera did not witness plaintiffs fall because the lights went out, he was able to hear it. Pinera's ladder also moved when plaintiff fell, but he was able to steady himself by holding on to a pipe in the ceiling. Like plaintiff, Pinera also did not notice any issues with the ladders they were using. With respect to the lighting, Pinera stated that the temporary lighting had gone out on occasion during the course of the project, and that it had gone out once or twice in the three or four days they were working in the room before the accident.
In contrast to the testimony of plaintiff and Pinera, Antonio Grande Pajaro (Pajaro), who was First Quality's onsite supervisor and present at the project from 7:00 a.m. to 5:00 p.m. on a daily basis, testified at his deposition that the temporary lighting for the project stayed on 24 hours a day, 7 days a week, that he had received no complaints about the lighting going out, and that the lights did not go off and were not turned off during his time on the project, which included the day of the accident. Pajaro also testified that the only way to shut down the temporary lights was to turn off the breaker in the electrical box, that this box was kept locked, and that First Quality's representatives were the only persons who had the keys for the box. The only other way for the lights to go out was if someone had damaged one of the light cables, and Pajaro testified that he was not aware of any such cables being cut or damaged while he worked onsite. Pajaro also stated that the electrical boxes in the room plaintiff was working in related to the emergency light system and had nothing to do with the temporary lighting.
DISCUSSION
Standard of Review
"To obtain summary judgment it is necessary that the movant establish his [or her] cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his [or her] favor" (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact" (id.).. If there are triable issues of fact as to how the alleged accident occurred, then the motion should be denied (Lima v HY 38 Owner, LLC, 208 A.D.3d 1181, 1183 [2d Dep't 2022]). "Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (Murray v Community House Development Fund Company, Inc., 223 A.D.3d 675, 677 [2d Dep't 2024]; Chiara v Town of New Castle, 126 A.D.3d 111, 125 [2d Dep't 2015]).
Additionally, "[i]n determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party, and where conflicting inferences may be drawn, the court must draw those most favorable to the nonmoving party" (Chiara, 126 A.D.3d at 111; Open Door Foods, LLC v Pasta Machines, Inc., 136 A.D.3d 1002, 1005 [2d Dep't 2016]). The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist (Khutoryanskaya v Laser & Microsurgery, P.C, 222 A.D.3d 633, 635 [2d Dep't 2023]; Schumacher v Pucciarelli, 161 A.D.3d 1205, 1205 [2d Dep't 2018]).
Plaintiffs' Causes of Action
Turning first to the parties' contentions relating to plaintiffs Labor Law §240(1) cause of action, that section imposes absolute liability on owners and contractors or their agents when their failure to protect workers employed on a construction site from the risks associated with elevation differentials proximately causes injury to a worker (Wilinski v 334 E. 92ndHous. Dev. Fund Corp., 18 N.Y.3d 1, 3 [2011]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]). With respect to falls from ladders, the Appellate Division, Second Department has emphasized that "[t]he mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided" (Karanikolas v Elias Taverna, LLC, 120 A.D.3d 552, 555 [2d Dep't 2014] [internal quotation marks omitted]; Cutaia v Board of Mgrs. of the 160/170 Varick St. Condominium, 38 N.Y.3d 1037, 1038-1039 [2021]; Orellana v 7 W. 34th St., LLC, 173 A.D.3d 886, 888 [2d Dep't 2019]). In order to find the absence of proper protection, "[t]here must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiffs injuries" (Karanikolas, 120 A.D.3d at 555 [internal quotation marks omitted]; Hugo v Sarantakos, 108 A.D.3d 744, 745 [2d Dep't 2013]).
Here, there is no dispute that Maserati, CH Gowanus and NY Developers may each be held liable under Labor Law §240(1). Maserati may be held liable as an owner (Gordon v Eastern Ry. Supply, 82 N.Y.2d 555, 559-560 [1993]; Jara v Costco Wholesale Corp., 178 A.D.3d 687, 690 [2d Dep't 2019]), CH Gowanus may be held liable since it acted in the role of owner by contracting with the various contractors for the construction work at issue (Gomez v 670 Merrick Rd. Realty Corp., 189 A.D.3d 1187, 1190 [2d Dep't 2020]; Wicks v Leemilt's Petroleum, Inc., 103 A.D.3d 793, 795-796 [2d Dep't 2013]), and NY Developers may be held liable since, although it was identified as construction manager, it effectively acted as the general contractor within the meaning of sections 240 (1) and 241 (6) (Walls v Turner Constr. Co., 4 N.Y.3d 861, 863-864 [2005];. Seales v Trident Structural Corp., 142 A.D.3d 1153, 1157-1158 [2d Dep't 2016]; Pipia v Turner Constr. Co., 114 A.D.3d 424, 427 [1st Dep't 2014], Iv dismissed 24 N.Y.3d 1216 [2015]). There is also no dispute that plaintiff was performing covered altering work within the meaning of Labor Law § 240 (1) that was also ancillary to a larger construction project (Sanatass v Consolidated Inv. Co., Inc., 10 N.Y.3d 333, 337 [2008]; Depass v Mercer Sq., LLC, 219 A.D.3d 801, 802 [2d Dep't 2023]) and that plaintiff was working at a significant elevation differential within the meaning of that section (Swiderska v New York Univ., 10 N.Y.3d 792, 793 [2008]; Doto v Astoria Energy II, LLC, 129 A.D.3d 660, 662 [2d Dep't 2015]).
Contrary to defendants' contentions, plaintiffs deposition testimony that he fell to the ground after the ladder moved shows that the ladder was inadequately secured and is sufficient to establish his prima facie entitlement to summary judgment on his Labor Law § 240 (1) cause of action (Hoxhaj v West 30th HL LLC, 195 A.D.3d 503, 504 [1st Dep't 2021] [ladder wobbled]; Salinas v 64 Jefferson Apts., LLC, 170 A.D.3d 1216, 1222 [2d Dep't 2019] [ladder moved]; Cabrera v Arrow Steel Window Corp., 163 A.D.3d 758, 759-760 [2d Dep't 2018] [ladder moved]; Alvarez v Vingsan LP., 150 A.D.3d 1177, 1179 [2d Dep't 2017]). In view of plaintiff s deposition testimony regarding the movement of the unsecured ladder, plaintiff was not required to show that the ladder was defective in order to make out his prima facie burden (Rodriguez v Milton Boron, LLC, 199 A.D.3d 537, 538 [1st Dep't 2021]; Von Hegel v Brixmor Sunshine Sq., LLC, 180 A.D.3d 727, 730 [2d Dep't 2020]; Mingo v Lebedowicz, 57 A.D.3d 491, 493 [2d Dep't 2008]) and had no obligation to explain why it moved (Hoxhaj, 195 A.D.3d at 504; Salinas, 170 A.D.3d at 1222 [ladder moved for no apparent reason]; Cabrera, 163 A.D.3d at 759-760 [ladder moved for no apparent reason]).
The Maserati Defendants, in opposition, argue that plaintiff asserted that the accident was caused by the lights going out and, as a result, that the cause of the accident was unrelated to the need for a Labor Law § 240 (1) device. It is true that cases addressing section 240 (1) have held, for example, that a fall solely caused by a tripping hazard unrelated to the ladder or scaffold at issue does not make out a section 240 (1) violation (see Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 N.Y.3d 823, 825 [2008]; Nieves v Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 916 [1999]; Krarunzhiy v 91 Cent. Park W. Owners Corp., 212 A.D.3d 722, 723-724 [2d Dep't 2023]) and a case involving a plaintiff who simply lost his balance and fell because of lights going out might be encompassed within such a rule (see Jurski v City of New York, 204 A.D.3d 983, 984 [2d Dep't 2022]; cf Cutaia, 38 N.Y.3d at 1039 [factual issue as to adequacy of ladder or need for additional safety devices presented by plaintiffs fall from ladder after receiving electric shock]). The Maserati Defendants argument, however, ignores plaintiffs deposition testimony that he fell after the ladder itself moved, which as discussed above, is in and of itself, sufficient to demonstrate a section 240 (1) violation. Further, even if it could be found that the ladder ended up moving because plaintiff moved his body when the lights went out, such an action by plaintiff would not eliminate the movement of the ladder as a proximate cause of plaintiffs accident (see Green v Evergreen Family Ltd. Partnership, 210 A.D.3d 1496, 1497-1498 [4th Dep't 2022]; Messina v City of New York, 148 A.D.3d 493, 494 [1st Dep't 2017]; Goodwin, 144 A.D.3d at 747; Ruiz v WDF, Inc., 45 A.D.3d 758, 758 [2d Dep't 2007]).Moreover, the Maserati Defendants have presented no facts suggesting that there is an issue with plaintiffs credibility sufficient to question his testimony regarding the ladder's movement (see e.g. Klein v City of New York, 89 N.Y.2d 833, 834-835 [1996]; Cardenas v J11-127 Cabrini Apts. Corp., 145 A.D.3d 955, 957 [2d Dep't 2016]; Melchor v Singh, 90 A.D.3d 866, 869 [2d Dep't 2011]; cf. Jurski, 204 A.D.3d at 984).
There are no evidentiary facts suggesting that plaintiff simply lost his balance and fell and caused the ladder to fall as he was already falling to the ground (Woods v Design Or, LLC, 42 A.D.3d 876, 877 [4th Dep't 2007]; cf. Durkin v Longk. Power Auth, 37 A.D.3d 400,401 [2d Dep't 2007]; Costello v Hapco Realty, 305 A.D.2d 445, 446-447 [2d Dep't 2003]).
Turning to plaintiffs Labor Law § 241 (6) cause of action, under that section an owner, general contractor or their agent may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes- that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 349-350 [1998]; Honeyman v Curiosity Works, Inc., 154 A.D.3d 820, 821 [2d Dep't 2017]). Here, plaintiff, in his bill of particulars, premises his section 241 (6) cause of action on violations of Industrial Code 12 NYCRR §§ 23-1.7 (f), 23-1.21, and 23-1.30.
Initially, the Maserati Defendants have demonstrated their prima facie entitlement to dismissal of the Labor Law § 241 (6) cause of action to the extent that it is premised on Industrial Code (12 NYCRR) § 23-1.7 (f) (requiring stairways, ramps or runways to provide worker access to different working levels above or below the ground). Section 23-1.7 (f) is inapplicable here since plaintiff was using the ladder at issue as a work platform, not as a means of accessing working levels above or below the ground within the meaning of that section (Ramones v 425 Country Rd., LLC, 217 A.D.3d 977, 980 [2d Dep't 2023]; Miranda v NYC Parntership Hous. Dev. Fund Co., Inc., 122 A.D.3d 445, 446 [1st Dep't 2014]). Plaintiff, who failed to address section 23-1.7 (f) in his opposition papers, has abandoned reliance on section 23-1.7 (f) and the Maserati Defendants are entitled to dismissal of the section 241 (6) cause of action to the extent that it is based on that section (Debennedetto v Chetrit, 190 A.D.3d 933, 936 [2d Dep't 2021]).
With respect to Industrial Code (12 NYCRR) § 23-1.21, plaintiff, in his bill of particulars, did not identify which of the subsections of section 23-1.21 were violated here (Caminiti v Extell W, 57th St. LLC, 166 A.D.3d 440, 441 [1st Dep't 2018]). In opposition to the Maserati Defendants' motion, however, plaintiff asserted that section 23-1.21 (b) (3) (iv), which provides that "All ladders shall be maintained in good condition. A ladder shall not be used if any of the following conditions exist: ... If it has any flaw or defect of material that may cause ladder failure," was violated. While plaintiff could properly specify a violation of this subsection for the first time in his opposition papers (see Simmons v City of New York, 165 A.D.3d 725, 729 [2d Dep't 2018]), plaintiffs own testimony was that he did not have any problem or issue with the ladder prior to the accident and that he was able to set it up and lock it into position without incident. In the absence of any evidence in the record suggesting that the ladder had a flaw or defect of material that could have caused it to fail, and, given that the accident itself does not allow anything more than a speculative inference that the ladder had such a defect, the Maserati Defendants' are entitled to dismissal of the Labor Law § 241 (6) cause of action to the extent it is premised on section 23-1.21 (Yao Zong Wu v Zhen Jia Yang, 161 A.D.3d 813, 815 [2d Dep't 2018]; Croussett v Chen, 102 A.D.3d 448, 448-449 [1st Dep't 2013]).
Factual issues as to whether there were problems with the lighting at the jobsite require denial of both plaintiffs motion and the Maserati Defendants' motion with respect to whether Industrial Code (12 NYCRR) § 23-1.30, which addresses illumination at construction sites, was violated. The testimony of plaintiff and Pinera that the lights went out on several occasions and that when the lights went out at the time of the accident it was pitch black in the room at issue is sufficient to demonstrate factual issues as to whether the amount of light in the room, at the time of the accident, violated section 23-1.30 (Murphy v 80 Pine, LLC, 208 A.D.3d 492, 497-498 [2d Dep't 2022]; see also Favaloro v Port Auth. of N.Y. & N.J., 191 A.D.3d 524, 525 [1st Dep't 2021]; Capuano v Tishman Constr. Corp., 98 A.D.3d848, 850-851 [1st Dep't 2012]; Murphy v Columbia Univ., A A.D.3d200, 202 [1st Dep't 2004]) and whether "someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard" arising from the lighting issues at the jobsite (Rizzuto, 91 N.Y.2d at 351; Bocanegra v Chest Realty Corp., 169 A.D.3d 750, 751-752 [2d Dep't 2019]).
Industrial Code (12 NYCRR) §§ 23-1.30 provides that, "Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations.. but in no case shall such illumination be less than !0 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass."
On the other hand, the above noted testimony of Pajaro, a First Quality supervisor, that there was no problem with the lighting is sufficient to demonstrate a factual issue as to whether the lighting had anything to do with the accident. Moreover, plaintiffs own testimony, while showing that the lights going out was temporally related to the movement of the ladder, fails to demonstrate, as a matter of law, that the lights going out was a proximate cause of the ladder's movement or of plaintiff s fall.
Regarding the portion of First Quality's motion addressed to plaintiffs Labor Law §§ 240 (1) and 241 (6) causes of action, First Quality asserts that it is entitled to summary judgment dismissing these claims because it was not an owner, general contractor or statutory agent thereof within the meaning of those sections. In his opposition papers, plaintiff has agreed to withdraw the section 240 (1) and 241 (6) causes of action as against First Quality. While, in the face of such an agreement by plaintiff, this court would normally grant First Quality's motion with respect to those causes of action, the Maserati Defendants have opposed this portion of First Quality's motion, asserting that First Quality was in fact a statutory agent for purposes of section 240 (1) and 241 (6) liability. The Maserati Defendants may oppose the dismissal of those causes of action, despite the fact that they have cross claim for indemnification, contribution and breach of the insurance provisions against First Quality, because First Quality's liability under sections 240 (1) and 241 (6) may have a bearing on the jury's apportionment of liability for the accident (Belmer v HHM Assoc, Inc., 101 A.D.3d 526, 527-528 [1st Dep't 2012]; see also Cunha v City of New York, 12 N.Y.3d 504, 508-510 [2009]; Frank v Meadowlakes Dev. Corp., 6 N.Y.3d 687, 691-693 [2006]; cf. CPLR 1602 [1] [a], [8]).
Since the responsibilities CH Gowanus delegated to First Quality in their contract included maintaining the temporary lighting at issue, this control over lighting could render it liable as a statutory agent under Labor Law § 241 (6) to the extent that such cause of action is premised on a violation of Industrial Code (12 NYCRR) § 23-1.30. This factual issue requires denial of First Quality's motion relating to section 241 (6) as premised upon secti on 23 -1.3 0 only (McKinney v Empire State Dev. Corp., 217 A.D.3d 574, 5 76 [1st Dep't 2023]; Vitucci v Durst Pyramid LLC, 205 A.D.3d 441, 444 [1st Dep't 2022]; DeMaria v RBNB 20 Owner, LLC, 129 A.D.3d 623,626 [ 1 st Dep't 2015]; see also Drzewinski v Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774, 776-777 [1987]; Sanchez v 404 Park Partners, LP, 168 A.D.3d 491, 492 [1st Dep't 2019]). On the other hand, because First Quality had no authority over other aspects of plaintiff s work, including plaintiffs methods and manner of performing his work on the ladder, First Quality is entitled to dismissal of plaintiffs Labor Law § 240 (1) cause of action and dismissal of his Labor Law § 241 (6) claim to the extent it is premised on Industrial Code sections other than section 23-1.30 (Vitucci, 205 A.D.3d at 444; see also Woodruff v Islandwide Carpentry Contrs., Inc., 222 A.D.3d 920, 921 [2d Dep't 2023]; Fiore v Westerman Constr. Co., Inc., 186 A.D.3d 570, 571 [2d Dep't 2020]).
Turning to plaintiffs common-law negligence and Labor Law § 200 causes of action, when such claims arise out of alleged defects or dangers in the methods or materials of the work, "there is no liability under the common law or Labor Law § 200 unless the owner or general contractor exercised supervision or control over the Work performed" (Carranza v JCL Homes, Inc.,210 A.D.3d 858, 860 [2d Dep't 2022], quoting Cun-En Lin v Holy Family Monuments, 18 A.D.3d 800, 801 [2d Dep't 2005]; see also Barreto v Metropolitan Transp. Auth., 25 N.Y.3d 426, 435 [2015]; Valencia v Glinski, 219 A.D.3d 541, 545 [2d Dep't 2023]). Where a premises condition is at issue, property owners and general contractors may be held liable under common-law negligence and for a violation of Labor Law § 200 if they either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident (Abelleira v City of New York, 120 A.D.3d 1163, 1164 [2d Dep't 2014]; Bauman v Town of Islip, 120 A.D.3d 603, 605 [2d Dep't 2014]; Ortega v Puccia, 57 A.D.3d 54, 61 [2d Dep't 2008]). Similarly, liability under Labor Law § 200 and common-law negligence may be imposed upon a subcontractor where it had control over the work site and either created the allegedly dangerous condition or had actual or constructive notice of same (Vita v New York Law Sch., 163 A.D.3d 605, 607 [2d Dep't 2018]; Wolf v KLR Meek, Inc., 35 A.D.3d 916, 918 [3d Dep't 2006]).
Here, the record, including plaintiffs deposition testimony that On Target provided the equipment he used at the worksite and that he received all of his instructions regarding his work from On Target, demonstrates, prima facie, that defendants did not supervise or control plaintiffs work for purposes of plaintiffs Labor Law § 200 and common-law negligence causes of action (Wilson v Bergon Constr. Corp., 219 A.D.3d 1380, 1383 [2d Dep't 2023]; Kefaloukis v Mayer, 197 A.D.3d 470, 471 [2d Dep't 2021]; Lopez v Edge 11211, LLC, 150 A.D.3d 1214, 1215-1216 [2d Dep't 2017]). However, the deposition testimony of plaintiff and Panera regarding the lighting going out on several occasions demonstrates the existence of factual issues as to whether the problems with the lighting constituted a dangerous property condition. The Maserati Defendants, in moving have failed to demonstrate, as a matter of law, that they did not have control over the worksite and/or that they did not have actual or constructive notice of the issues with the lighting (DeVita v NYY Steak Manhattan, LLC, 214 A.D.3d 477, 478 [1st Dep't 2023]; Simon v Granite Building 2, LLC, 170 A.D.3d 1227, 1232-1233 [2d Dep't 2019], lv denied 34 N.Y.3d 904 [2019]; Honeyman, 154 A.D.3d at 822). Contrary to the Maserati Defendants' contentions, the fact that they delegated the installation and maintenance of the temporary lighting to First Quality is insufficient to demonstrate, in and of itself, that they did not retain control over the worksite or authority to address the lighting issues. These factual issues with respect to the lighting also preclude dismissal of the section 200 and common-law negligence claims against First Quality, the entity responsible for installing and maintaining the temporary lighting (Miano v Battery Place Green LLC, 117 A.D.3d 489, 489-490 [1st Dep't 2014]; Beltran v Navillus Tile, Inc., 108 A.D.3d 414, 415 [1st Dep't 2013]).
The court notes that, in moving, Maserati and CH Gowanus have made no argument and pointed to no evidence suggesting that their liability should be considered differently from that of NY Developers.
Contribution, Indemnification, and Insurance Issues
In view of the above discussed factual issues with respect to First Quality's liability for the lighting conditions on the premises, First Quality is not entitled to dismissal of the Maserati Defendants' cross-claim for contribution from it (Romano v New York City Tr. Auth., 213 A.D.3d 506, 508 [1st Dep't 2023]; Randazzo v Consolidated Edison Co. of N.Y., Inc., 177 A.D.3d 796, 798 [2d Dep't 2019]; State of New York v Defoe Corp., 149 A.D.3d 889, 890 [2d Dep't 2017]). The portion of the Maserati Defendants' motion seeking summary judgment on their contribution claims against First Quality is denied as a party is only entitled to recover on a contribution claim upon a jury determination of apportionment of damages and the payment of damages in excess of that party's proportionate share of the judgment (Klinger v Dudley, 41 N.Y.2d 362, 369 [1977]; CPLR 1401, 1402).
The issues with respect to First Quality's own negligence also require denial of the portion of its motion seeking dismissal of the common-law indemnification claims against it (Zong Wang Yang v City of New York, 207 A.D.3d 791, 796-797 [2d Dep't 2022]). The portion of the Maserati Defendants' motion seeking summary judgment in its favor on its common-law indemnification claim against First Quality must be denied in view of the factual issues with respect to First Quality's negligence and the Maserati Defendants' own negligence (McDonnell v Sandaro Realty, Inc., 165 A.D.3d 1090, 1097-1098 [2d Dep't 2018]; see also McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 377-378 [2011]).
Regarding the contractual indemnification provision, it provides, as is relevant here, that First Quality "shall defend, indemnify, and hold harmless" each of the Maserati Defendants from claims "arising or alleged to arise from . . . the performance of the Work under this Agreement, whether performed by Contractor, its Subcontractors and agents, or anyone employed by any of them or anyone for whose acts any of them may be liable . . . regardless of whether or not it is caused in part by any or all of the Indemnitees hereunder, provided that this indemnity shall not extend to the liability of any Indemnitee from its own negligence or willful misconduct" (CH Gowanus - First Quality contract, Rider 1, § 15 (a) and Rider 1, Exhibit B § e). Indemnification provisions like this that apply for claims "arising" out of the work are broadly read in favor of the indemnitees and do not require a showing of negligence (Adagio v New York State Urban Dev. Corp., 168 A.D.3d 602, 603 [1st Dep't 2019]). However, in view of the factual issues as to whether the lighting had anything to do with the accident, and thus, whether the claim arose from First Quality's work within the meaning of the indemnification provision, the portions of First Quality's motion and the Maserati Defendants' motion relating to contractual indemnification must be denied (Nugra v Aramalla, 191 A.D.3d 683, 686 [2d Dep?t 2021]; Adagio, 168 A.D.3d at 603; DeMaria, 129 A.D.3d at 626-627; Robbins v Goldman Sachs Headquarters, LLC, 102 A.D.3d 414, 415 [1st Dep't 2013]).
With respect to the breach of contract for failure to obtain insurance naming the Maserati Defendants as additional insureds cross claim, First Quality has submitted a copy of its general liability policy that contains a blanket additional insured endorsement providing that:
"Who Is An Insured is amended to include as an additional insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability for 'bodily injury', 'property damage' or 'personal and advertising injury' caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured."Based on this endorsement, which also governs who is an additional insured on the umbrella policy obtained by First Quality, First Quality's insurer, in a letter dated January 6,2021, disclaimed coverage for Maserati and NY Developers because they did not directly contract with First Quality. While First Quality's insurer, in a letter also dated January 6, 2021, agreed to provide a defense to CH Gowanus, it did so with a full reservation of rights based on the portion of the endorsement limiting additional insured coverage for liability "caused whole or in part by . . . [First Quality's] acts or omissions ... in the performance of [First Quality's] ongoing operations for the additional insured."
The "Who is an Insured" provision of the umbrella policy provides, as is relevant here, that an insured includes "[a]ny additional insured under the scheduled underlying general liability and professional errors and omissions policy will automatically be an insured under this insurance" (Umbrella Policy, § II [3]).
First Quality correctly asserts that a blanket additional insured endorsement may generally satisfy the additional insured requirements of a construction contract (Longer v MTA Capital Constr. Co., 184 A.D.3d 401,402-403 [ 1st Dep't 2020]; Perez v Morse Diesel Intl., Intl., Inc., 10 A.D.3d 497, 498 [1st Dep't 2004]; see also Kassis v Ohio Cas. Ins. Co., 12 N.Y.3d 595, 599-600 [2009]) and that disclaimer letters, in and of themselves, are generally insufficient to demonstrate that a party failed to obtain the required insurance (Perez, 10 A.D.3d at 498; KMO-361 Realty Assoc. v Podbielski, 254 A.D.2d 43,44 [1st Dep't 1998]; Garcia v Great Atl. & Pac. Tea Co., 231 A.D.2d 401, 403 [1st Dep't 1996]; see also Dorset v 285 Madison Owner LLC, 214 A.D.3d 402,404 [1st Dep't 2023]; Binasco v Break-Away Demolition Corp., 256 A.D.2d 373, 375 [2d Dep't 1998]). Here, however, the disclaimer letter shows that First Quality's insurer denied coverage to both Maserati and NY Developers based on language in the endorsement that is essentially the same as language that has been found to limit coverage to entities that are in direct contractual privity with the named insured (Arch Specialty Ins. Co. v Nautilus Ins. Co., 213 A.D.3d 404, 405 [1st Dep't 2023]; Dynatec Contr., Inc. v Burlington Ins. Co., 184 A.D.3d 475, 475 [1st Dep't 2020]; see also Gilbane v Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 31 N.Y.3d 131, 140 [2018]). As such, there are at least factual issues as to whether First Quality breached the terms of its contract with CH Gowanus, which required it to obtain insurance that named both Maserati and NY Developers as additional insureds (Roldan v New York Univ., 81 A.D.3d 625, 629 [2d Dep't 2011]; Bachrow v Turner Constr. Corp., 46 A.D.3d 388, 388 [1st Dep't 2007]; Clapper v County of Albany, 188 A.D.2d 774, 775-776 [3d Dep't 1992]).
On the other hand, this court finds that the Maserati Defendants have failed to demonstrate their entitlement to summary judgment in their favor based on First Quality's failure to get the correct insurance. Namely, although the language of the insurance procurement provision of CH Gowanus' contract with First Quality does not expressly limit First Quality's insurance procurement duties with any particular language, courts have held that such contracts requiring that parties be named as additional insureds "mean that the additional insured is insured for all liability arising out of the activities covered by the agreement" (Ceron v Rector, 224 A.D.2d 475, 476 [2d Dep't 1996]; Roblee v Coming Community Coll., 134 A.D.2d 803, 804-805 [3d Dep't 1987], Iv denied72 N.Y.2d 803 [1988]; see also Yondt v Boulevard Mall Co., 306 A.D.2d 882, 883 [4th Dep't 2003]; Belcastro v Hewlett-Woodmere Union Free School Dist. No. 14, 286 A.D.2d 744, 746-747 [2d Dep't 2001]). As such, if it is found that liability here did not arise out of First Quality's activities on the project, its obligation to obtain additional insured coverage would not be triggered and First Quality's failure to obtain appropriate coverage would not have resulted in any damages (Nicholson v Sabey Data Ctr. Props., LLC, 205 A.D.3d 620, 622 [1st Dep't 2022]; New York City Hous. Auth. v Merchants Mut. Ins. Co., 44 A.D.3d 540, 542 [1st Dep't 2007]; Belcastro, 286 A.D.2d 747).
The Court notes that requiring coverage for liability arising out of First Quality's activities may be broader than the additional insured endorsement at issue here that covers liability for First Quality's "acts or omission," and, if liability is found to have arisen out of First Quality's activities but not an act or omission, CH Gowanus might have grounds for a breach of contract claim in the event that First Quality's insurer disclaims coverage for CH Gowanus based on its acts or omissions language in its endorsement (Bachrow, 46 A.D.3d at 388; Clapper v County of Albany, 188 A.D.2d 774, 775-776 [3d Dep't 1992]; Roblee, 134 A.D.2d at 804-805).
Finally, the Maserati Defendants are entitled to dismissal of the First Quality's cross claim for contractual indemnification and breach of contract for failure to obtain insurance because their contract has no provision requiring the Maserati Defendants to indemnify First Quality or obtain insurance benefiting First Quality. The factual issues regarding the liability of the Maserati Defendants' and First Quality for the accident preclude dismissal of First Quality's cross claim against the Maserati Defendants for common-law indemnification and contribution.
CONCLUSION
All arguments raised on the motions and evidence submitted by the parties in connection thereto have been considered by this Court, regardless of whether they are specifically discussed herein.
Accordingly, it is hereby
ORDERED, that First Quality's motion (Seq. 05) is granted to the extent that plaintiffs Labor Law §240(1) cause of action is dismissed as against it and plaintiffs Labor Law §241 (6) cause of action is dismissed with respect to Industrial Code 12 NYCRR §§ 23-1.7 (f) and 23.1.21. First Quality's motion is otherwise denied; and it is further
ORDERED, that the Maserati Defendants' motion (Seq. 06) is granted to the extent. that plaintiffs Labor Law §241(6) cause of action is dismissed with respect to Industrial Code (12 NYCRR) §§ 23-1.7 (f) and 23-1.21 and granted to the extent that First Quality's cross claim against them for contractual indemnification and breach of contract for failure to obtain insurance are dismissed. The Maserati Defendants' motion is otherwise denied; and it is further
ORDERED, that plaintiffs motion (Seq. 07) is granted to the extent of partial summary judgment on the issue of liability with regard to the Labor Law § 240 (1) cause of action as against Maserati, CH Gowanus and NY Developers; plaintiffs motion is otherwise denied.
In addition, in view of the parties' stipulation discontinuing the action as against CH Gowanus Holdings, LLC (NYSCEF Doc. No. 41), the caption is amended to read as follows:
RICARDO GUZMAN VIVEROS, Plaintiff,
-against-
MASAERATI REALTY, LLC, CH GOWANUS, LLC, NY DEVELOPERS & MANAGERS, INC., NY DEVELOPERS & MANAGEMENT, LLC, and FIRST QUALITY ELECTRIC CORP., Defendants.
This constitutes the decision and order of the court.