Rosini v Jamestown OTS, LP.

2024 NY Slip Op 32183(U)

June 26, 2024

Supreme Court, New York County

Docket Number: Index No. 156324/2018

Judge: Arthur F. Engoron

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
FILED: NEW YORK COUNTY CLERK 06/27/2024 02:00 PM INDEX NO. 156324/2018

NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 06/27/2024

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SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. ARTHUR F. ENGORON 

Justice 

-------------------X 

MICHAEL ROSINI, 

Plaintiff, 

PART 

INDEX NO. 

MOTION DATE 

156324/2018 

01/06/2023, 

01/06/2023 

37 

- V. 

JAMESTOWN OTS, LP., STRUCTURE-TONE, INC., 

Defendants. 

MOTION SEQ. NO. _ ___;;.0...;;...09---'-01_0 __ 

DECISION + ORDER ON 

MOTION 

-------------------X 

STRUCTURE-TONE, INC., 

Plaintiff, 

-againstThird-Party 

Index No. 595782/2019 

DIMAIO MILL WORK CORPORATION, CITYWIDE PAINTING 

AND DESIGN INC., 

Defendants. 

-------------------X 

The following e-filed documents, listed by NYSCEF document number (Motion 009) 145, 146, 147, 148, 

149,168,169,170,171,172,173,174,175,176,177,178,179,180,181,182,183,184,185,186,187, 

199,200,201,202,203,204,208,209,210,211 

were read on this motion for SUMMARY JUDGMENT 

The following e-filed documents, listed by NYSCEF document number (Motion 01 O) 150, 151, 152, 153, 

154,155,156,157,158,159,160,161,162,163,164,165,166,167,194,195,196,197,198,205,206, 

207,212 

were read on this motion for SUMMARY JUDGMENT 

Upon the foregoing documents, and for the reasons stated hereinbelow, the motions for summary 

judgment are granted in part and denied in part,.as follows. 

Background 

On or about November 7, 2017, plaintiff, Michael Rosini, was allegedly struck by a piece of 

millwork on a construction site located at 4 Times Square New York, NY allegedly under the 

control of defendants Structure Tone LLC f/k/a Structure Tone, Inc., s/h/a Structure-Tone, Inc. 

("Structure Tone), Citywide Painting and Design Inc. ("Citywide") (plaintiffs employer), and 

Dimaio Millwork Corp. ("Dimaio"). NYSCEF Doc. No. 174. · 

156324/2018 ROSINI, MICHAEL vs. STRUCTURE-TONE, INC. 

Motion No. 009 010 

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On July 8, 2018, plaintiff commenced the instant lawsuit against defendants Jamestown OTS, 

L.P., and Structure Tone. NYSCEF Doc. No. 171. 

On September 11, 2019, Structure Tone filed a verified third-party complaint against third-party 

defendants Dimaio and Citywide, asserting eight causes of action: (1) contractual defense and 

indemnification against Dimaio; (2) common law negligence against Dimaio; (3) attorney's fees 

against Dimaio; (4) failure to procure insurance against Dimaio; (5) contractual defense and 

indemnification against Citywide; (6) common law negligence against Citywide; (7) attorney's 

fees against Citywide; and (8) failure to procure insurance against Citywide. NYSCEF Doc. No. 

156. 

On December 6, 2019, plaintiff filed an amended complaint, adding Dimaio and asserting five 

causes of action alleging defendants (1) were careless in their control of the premises; and (2) 

violated Labor Law§§ 200, 240(1), and 241(6) (the latter by violating sections 23-1.5, 23-1.7, 

23-1.16, and 23-1.21 of the New York Industrial Code). NYSCEF Doc. No. 52 

In a Decision and Order, dated April 18, 2023, this Court granted partial summary judgment 

dismissing Structure Tone's sixth and eighth third-party causes of action against Citywide. 

NYSCEF Doc. No. 188. 

Motion Sequence 9 

On January 6, 2023, defendant/third-party plaintiff Structure Tone moved, pursuant to CPLR 

3212, for summary judgment: dismissing plaintiff's Labor Law§§ 200, 240(1), and 241(6) 

claims; granting Structure Tone's third-party claims against third-party defendants Dimaio and 

Citywide for defense, indemnification, and failure to procure insurance. NYSCEF Doc. No. 148. 

Structure Tone argues that plaintiffs Labor Law§ 200 claim should be dismissed as the 

Accident arose due to the manner the underlying work was performed; that the Labor Law § 

240(1) claim should be dismissed because plaintiff fails to establish that Structure Tone's 

violation proximately caused plaintiff's injuries; and that the Labor Law§ 241(6) claim fails to 

plead and prove a violation of a specific Industrial Code regulation. NYSCEF Doc. No. 148. 

In opposition, plaintiff argues that: issues of fact preclude dismissal of its Labor Law § 240; 12 

NYCRR 23-1.5 of the Industrial Code is specific enough to support plaintiff's Labor Law§ 

241(6) claims; and that Structure Tone fails to prove entitlement to dismissal of the Labor Law§ 

200 and common law negligence claims. NYSCEF Doc. No. 199. 

Structure Tone also argues that it is entitled to indemnification and defense from Dimaio and 

Citywide based on agreements with an indemnification provision between Structure Tone and 

the two third-party defendants, respectively. NYSCEF Doc. Nos. 128, 148-149. 

Also in opposition, Dimaio argues,.inter alia, that because Structure Tone coordinated and 

arranged the schedules of the various trades, the contractual indemnification and defense claims 

should be denied as there is a triable issue of fact as to Structure Tone's own negligence. 

NYSCEF Doc. No. 204. 

156324/2018 ROSINI, MICHAEL vs. STRUCTURE-TONE, INC. 

Motion No. 009 01 O Page2of7 

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Motion Sequence 10 

Also on January 6, 2023, defendant Dimaio moved, pursuant to CPLR 3212, for 

summary judgment dismissing plaintiff's complaint against it and all claims asserted by 

third-party plaintiff Structure Tone. NYSCEF Doc. No. 150. 

Dimaio argues, inter alia, that: Diamio is not subject to liability under Labor Law § 

241(6) as Dimaio was neither an owner, general contractor, nor agent at the work site; 

Dimaio's work was completed and done properly and served no role in creating the 

condition that led to the Accident (the millwork that allegedly fell on plaintiff). NYSCEF 

Doc. No. 167. 

Plaintiff concedes Dimaio, as a subcontractor to general contractor Structure Tone, is not 

subject to liability under Labor Law§§ 200, 240(1), and 241(6). NYSCEF Doc. No. 199. 

In opposition, however, plaintiff argues Dimaio is liable for common law negligence and 

that there are several issues of material fact precluding summary judgment. NYSCEF 

Doc. No. 194. 

Also in opposition, Structure Tone argues that, for the same reasons it argues in Motion 

Sequence 9, the contractual claims and common law negligence claims should not be 

dismissed. NYSCEF Doc. No. 206. 

Discussion 

In order to obtain summary judgment, the "movant must establish its defense or cause of action 

sufficiently to warrant a court's directing judgment in its favor as a matter of law. The party 

opposing the motion, on the other hand, must produce evidentiary proof in admissible form 

sufficient to require a trial of material questions of fact on which the opposing claim rests' 

[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are 

insufficient' for this purpose." Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d 966, 967 (1988) 

Labor Law § 240(1) 

Labor Law § 240(1 ), often called the Scaffold Law, provides that "all contractors and owners ... 

shall furnish or erect, or cause to be furnished or erected ... 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)'s "list of required safety devices ... evinces a clear legislative intent to 

provide exceptional protection for workers against special hazards that arise when the work site 

either is itself elevated or is positioned below the level where materials or load[ s] are hoisted and 

secured." Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500-501 (1993) (emphasis in 

original). "[S]pecial hazards ... do not encompass any and all perils that may be connected in a 

tangential way with the effects of gravity." Id. 

Labor Law § 240(1) applies to: "falling worker" and "falling object" cases, but "with respect to 

falling objects [it] only applies where the falling of an object is related to a significant risk 

inherent in the relative elevation at which materials or loads must be positioned or secured." 

156324/2018 ROSINI, MICHAEL vs. STRUCTURE-TONE, INC. 

Motion No. 009 010 Page 3of7 

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Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268 (2001) (internal citation and 

quotation omitted). "[The] safety device contemplated by the statute" is meant to "lessen a 

gravity related risk related to the securing of a large load or the hoisting of construction 

material." Cotroneo v Van Wagner Sign Erectors, LLC, 210 AD3d 421,422 (1st Dept 2022). 

Here, as plaintiff was on the floor at the time of the Accident and as the mill work that tipped 

over was secured to the floor and posed no risk inherent to its relative elevation requiring 

protective safety equipment under the intent of the statute, Structure Tone's motion for summary 

judgment dismissing plaintiffs Labor Law 240(1) claim must be granted. Furthermore, while 

the Court of Appeals has declined to adopt a "same level rule", plaintiffs alleged injuries cannot 

be said to have been ''the direct consequence of a failure to provide adequate protection against a 

risk arising from the physically significant elevation differential"; that is to say the instant 

millwork's arguable height differential was de minimis "given the weight of the object and the 

amount of force it was capable of generating" from its tipping over. Wilinski v 334 E. 92nd 

Hous. Dev. Fund Cotp .• 18 NY3d 1, 9 (2011); Runner v New York Stock Exch., Inc., 13 NY3d 

599,605 (2009). In Runner, the plaintiff was injured by a very heavy spool of wire while 

descending the height differential of a stairway. 

Labor Law § 241(6) 

As here relevant, Labor Law§ 241(6) requires property owners and contractors to comply with 

rules promulgated by the Commissioner of the Department of Labor. "To establish a claim 

under the statute, a plaintiff must show that a specific, applicable Industrial Code regulation was 

violated and that the violation caused the complained-of injury." Caru>abianca v Skanska USA 

Bldg. Inc., 9~ AD3d 139, 146 (1st Dept 2012) citing Ross at 501-502. 

Here, plaintiff relies on 12 NYCRR 23-l.5(c)(3), which provides that "all safety devices, 

safeguards and equipment in use shall be kept sound and operable, and shall be immediately 

repaired or restored or immediately removed from the job site if damaged." 12 NYCRR 23-

l.5(c)(3) is "sufficiently specific enough to support a Labor Law§ 241(6) claim. Becerra v 

Promenade Apartments Inc., 126 AD3d 557 (1st Dept 2015) citing Misicki v Cardonna, 12 

NY3d 511, 520-521 (2009). In support of it claim, plaintiff provides a photo taken the day after 

the Accident in which plaintiff wrote "this was not in place" over a middle component seemingly 

stabilizing the leg of the millwork. NYSCEF Doc. No. 141. 

As questions of fact remain as to whether there was a safety device or safeguard absent or 

in need ofrepair on the millwork at the time of the Accident, Structure Tone's motion for 

summary judgment dismissing plaintiffs Labor Law 241(6) claim must be denied. 

Labor Law § 200 

Labor Law § 200 "is a codification of the common-law duty imposed upon an owner or 

general contractor to provide construction site workers with a safe place to work." 

Comes v New York State Elec. and Gas Cotp., 82 NY2d 876, 877 (1993). Labor Law § 

200 "applies only to owners and contractors who actually exercise control or supervision 

over the work and had actual or constructive notice of the unsafe condition." Buckley v 

Columbia Grammar and Preparatory, 44 AD3d 263,272 (1st Dept 2007). 

15632412018 ROSINI, MICHAEL vs. STRUCTURE-TONE, INC. 

Motion No. 009 010 Page4of7 

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Here, as a Structure Tone supervisor testified (NYSCEF Doc No. 163) that he was responsible 

for "planning and scheduling" the work of the various contractors, there are genuine issues of 

fact as to whether Structure Tone controlled the work site, and if the supervisor had constructive 

or actual notice of the allegedly defective millwork. Therefore, Structure Tone's motion for 

summary judgment dismissing plaintiff's Labor Law § 200 claim must be denied. 

GOL § 5-322.1(1) 

General Obligations Law§ 5-322.1(1) states, in pertinent part, that a construction-related 

contract: 

purporting to indemnify or hold harmless the promisee against liability for damage 

arising out of bodily injury to persons ... contributed to, caused by or resulting from the 

negligence of the promisee, his agents or employees, or indemnitee, whether such 

negligence be in whole or in part, is against public policy and is void and 

unenforceable ... 

In Dutton v Charles Pankow Bldrs., 296 AD2d 321 ( I st Dept 2002), the Appellate Division, First 

Department, recognized the principle of "partial indemnification," that is, when an 

indemnification agreement that does not run to the negligent conduct of the owner or general 

contractor. For example, "[t]he phrase 'to the fullest extent permitted by law' limits rather than 

expands a promisor's indemnification obligation." Brooks v Judlau Contr., Inc., 11 NY3d 204, 

210 (2008). In view of phrases limiting the subcontractor's obligation "to the fullest extent 

permitted by law" and excluding liability created by the general contractor's sole and exclusive 

negligence, such indemnification provisions can be enforceable. Dutton at 322. 

Here, Paragraph 11.2 of Structure Tone's subcontracts with the third-party defendants states, in 

pertinent part: 

To the fullest extent [allowed] by Law, Subcontractor will indemnify and hold 

harmless Structure Tone, LLC, ... in connection with thejob/project work. .. 

against any and all claims, suits, liens, judgments, damages, losses and expenses 

including the reasonable legal fees and costs arising in whole or in part and in any 

manner from the acts, omissions, breach or default of Subcontractor, subcontractors, its officers, directors, agents, employees, and Subcontractors in 

connection with the performance of any work by subcontractor, its employees and 

subcontractors pursuant to this Subcontract. Subcontractor will defend and bear 

all costs of defending any action or proceedings brought against Structure Tone, 

LLC. and or Owner, their officers, directors, agents and employees, arising in 

whole or in part out of any such acts, omission, breach or defaults. 

NYSCEF Doc. No. 128. 

In addition, Structure Tone's subcontracts with third-party defendants all contain the 

phrase "to the fullest extent by Law," thus rendering their indemnification clauses 

enforceable for joint liability attributable to the negligence of Citywide, Dimaio, or their 

related parties as specified. Dutton at·322. 

156324/2018 ROSINI, MICHAEL vs. STRUCTURE-TONE, INC. 

Motion No. 009 010 

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However, "where the contractor's negligence has not been litigated and a triable issue of 

fact is raised, the contractor's request for Sl;lillIIlary judgment for contractual 

• indemnification must be denied." Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 12 

(1st Dept 2011). 

Here, the record raises questions of fact as to the parties' alleged negligence; therefore, 

Structure Tone's motion for summary judgment for indemnification must be denied. 

Duty to Defend 

"It is well settled that [ an insurer's] duty to defend is broader than its duty to indemnify" 

and arises "[when] the allegations of the complaint suggest a reasonable possibility of 

coverage" or where the insurer has "actual knowledge of facts establishing a reasonable 

possibility of coverage." Auto. Ins. Co. of Hartford v Cook. 7 NY3d 131, 137 (2006) 

(internal quotations omitted); Fitzpatrick v Am. Honda Motor Co., Inc., 78 NY2d 61, 67 

(1991). Thus, the duty to provide a defense may arise before indemnification has been 

decided. Auriemma at 12. 

Here, the agreements executed by Structure Tone require the third'."party defendants to 

"defend and bear all costs of defending any action or proceedings brought against 

Structure Tone" in connection with the project. NYSCEF Doc. No. 128. Therefore, the 

third-party defendants' insurers have a duty to defend, as they had actual notice of the 

possibility of coverage from Structure Tone's third-party complaint alleging third-party 

defendants' .culpability, and Structure Tone's deposition testimony. Id.; NYSCEF Doc 

Nos. 27, 163. 

Thus, Structure Tone's motion for summary judgment for defense from Dimaio and 

Citywide must be granted. 

Control 

In Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 ( 1981 ), the Court of Appeals 

addressed the standard for liability under Labor Law§§ 200 and 240: 

[ o ]nly upon obtaining the authority to supervise and control does the third party 

fall within the class of those having non-delegable liability as an "agent" under 

section 240 and 241. To hold otherwise and impose a non-delegable duty upon 

each contractor for all injuries occurring on a job site, and thereby make each 

contractor an insurer for all workers regardless of the ability to direct, supervise, 

and control those workers, would lead to improbable and unjust results ... 

However, the common law negligence claims raise the issue of fact as to the state of the 

millwork that the Dimaio employee left before plaintiff started working. 

Thus, Dimaio' s motion for summary judgment dismissing plaintiffs claims must be granted, 

without opposition, as to plaintiffs Labor Law§§ 200, 240(1), and 241(6) and denied as to 

plaintiffs common law negligence claims. 

156324/2018 ROSIN!, MICHAEL vs. STRUCTURE-TONE, INC. 

Motion No. 009 010 

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Finally, Structure Tone's third-party claim against Diamio for failure to procure insurance was 

withdrawn in open court at oral argument on May, 14, 2024. 

Conclusion 

Thus, those parts of the motion of defendant/third-party plaintiff, Structure Tone LLC 

f/k/a Structure Tone, Inc., s/h/a Structure-Tone, Inc., for summary judgment (Motion 

Sequence 9) seeking to dismiss plaintiffs third cause of action, for violating Labor Law § 

240(1), and to grant summary judgment on the third-party complaint's first and fifth 

causes of action, for defense only, against third-party defendants Dimaio Mill Work 

Corporation and Citywide Painting and Design Inc., are hereby granted, and the rest of 

the motion is denied; those parts of the motion of defendant/third-party defendant Dimaio 

for summary judgment (Motion Sequence 10) to dismiss plaintiff's second, third, fourth, 

and fifth causes of action, for violations of Labor Law§§ 200, 240(1), and 241(6), are 

hereby granted as to Dimaio only, and are otherwise denied; and the Clerk is hereby 

directed to enter judgment accordingly. 

6/26/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

~ CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER . 

INCLUDES TRANSFER/REASSIGN 

156324/2018 ROSINI, MICHAEL vs. STRUCTURE-TONE, INC. 

Motion No. 009 01 O 

ARTHUR F. ENGORON, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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