### 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

1 of 7 

### 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 inpart and denied inpart,.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 ofdefendants 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, MICHAELvs. STRUCTURE-TONE, INC. Motion No. 009 010 Page 1 of7


### [* 1]

### FILED: NEW YORK COUNTY CLERK 06/27/2024 02:00 PM INDEX NO. 156324/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 06/27/2024

2 of 7 On July 8, 2018, plaintiffcommenced the instantlawsuit 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 ofaction: (1) contractual defense and indemnification against Dimaio; (2) common lawnegligence against Dimaio; (3) attorney's fees against Dimaio; (4) failure to procure insurance against Dimaio; (5) contractual defense and indemnification against Citywide; (6) commonlawnegligence against Citywide; (7) attorney's fees against Citywide; and (8) failure to procure insurance against Citywide. NYSCEF Doc. No. 156. OnDecember 6, 2019, plaintifffiled an amended complaint, adding Dimaio and asserting five causes ofaction alleging defendants (1) were careless in their control ofthe 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 ofthe NewYork Industrial Code). NYSCEF Doc. No. 52 In a Decision and Order, dated April 18, 2023, this Court granted partial summaryjudgment dismissing Structure Tone's sixth and eighth third-party causes ofaction against Citywide. NYSCEF Doc. No. 188. Motion Sequence 9 OnJanuary 6, 2023, defendant/third-party plaintiffStructure Tone moved, pursuantto CPLR 3212, for summaryjudgment: dismissing plaintiff's Labor Law§§ 200, 240(1), and 241(6) claims; granting Structure Tone's third-party claims againstthird-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 plaintifffails to establish that Structure Tone's violationproximately caused plaintiff's injuries; and thatthe Labor Law§ 241(6) claim fails to plead and prove a violation ofa specific Industrial Code regulation. NYSCEF Doc. No. 148. In opposition, plaintiffargues that: issues offact preclude dismissal ofits Labor Law § 240; 12 NYCRR 23-1.5 ofthe Industrial Code is specific enough to supportplaintiff's Labor Law§ 241(6) claims; and that Structure Tone fails to prove entitlement to dismissal ofthe Labor Law§ 200 and commonlaw negligence claims. NYSCEF Doc. No. 199. Structure Tone also argues that it is entitledto 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 ofthe various trades, the contractual indemnification and defense claims should be denied as there is a triable issue offact as to Structure Tone's ownnegligence. NYSCEF Doc. No. 204.

156324/2018 ROSINI, MICHAELvs. STRUCTURE-TONE, INC. Motion No. 009 01O Page2of7


### [* 2]

### FILED: NEW YORK COUNTY CLERK 06/27/2024 02:00 PM INDEX NO. 156324/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 06/27/2024

3 of 7 Motion Sequence 10 Also on January 6, 2023, defendant Dimaio moved, pursuant to CPLR 3212, for summaryjudgmentdismissing plaintiff's complaint against it and all claims asserted by third-party plaintiffStructure Tone. NYSCEF Doc. No. 150. Dimaio argues, inter alia, that: Diamio is not subject to liability underLabor 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 conditionthat led to the Accident (the millwork that allegedly fell onplaintiff). NYSCEF Doc. No. 167. Plaintiffconcedes Dimaio, as a subcontractor to general contractor Structure Tone, is not subjectto liability under Labor Law§§ 200, 240(1), and 241(6). NYSCEF Doc. No. 199. In opposition, however, plaintiffargues Dimaio is liable for common law negligence and that there are several issues ofmaterial fact precluding summaryjudgment. 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 Inorder to obtain summaryjudgment, the "movantmust establish its defense or cause ofaction sufficiently to warrant a court's directingjudgment in its favor as a matter oflaw. The party opposing the motion, onthe other hand, must produce evidentiary proofin admissible form sufficient to require a trial ofmaterial questions offact on which the opposing claimrests' [M]ere conclusions, expressions ofhope orunsubstantiated allegations or assertions are insufficient' for this purpose." Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d 966, 967 (1988) LaborLaw 

### § 240(1) LaborLaw § 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." LaborLaw§ 240(1)'s "listofrequired safety devices

... evinces a clear legislative intentto provide exceptional protection for workers against special hazards that arise when the work site either is itselfelevated or is positionedbelowthe 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 andallperils that may be connected in a tangential way with the effects ofgravity." Id. LaborLaw § 240(1) applies to: "falling worker" and "falling object" cases, but "withrespect to falling objects [it] only applies where the falling ofan object is related to a significantrisk inherent in the relative elevation atwhich materials orloads mustbe positioned or secured."

156324/2018 ROSINI, MICHAEL vs. STRUCTURE-TONE, INC. Motion No. 009 010 Page 3of7


### [* 3]

### FILED: NEW YORK COUNTY CLERK 06/27/2024 02:00 PM INDEX NO. 156324/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 06/27/2024

4 of 7 Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268 (2001) (internal citation and quotation omitted). "[The] safety device contemplated by the statute" is meantto "lessen a gravity related risk related to the securing ofa large load orthe hoisting ofconstruction material." Cotroneo v Van Wagner Sign Erectors, LLC, 210 AD3d 421,422 (1stDept 2022). Here, as plaintiffwas onthe floor atthe time ofthe Accident and as the millworkthattipped over was secured to the floor and posed no risk inherentto its relative elevationrequiring protective safety equipment under the intent ofthe statute, Structure Tone's motion for summary judgment dismissing plaintiffs Labor Law 240(1) claim must be granted. Furthermore, while the Court ofAppeals has declined to adopt a "same level rule", plaintiffs alleged injuries cannot be saidto have been ''the direct consequence ofa 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 "giventhe weight ofthe object and the amount offorce it was capable ofgenerating" 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). InRunner, the plaintiffwas injured by a very heavy spool ofwire while descending the height differential ofa 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 ofthe Department ofLabor. "To establish a claim under the statute, a plaintiffmust showthat a specific, applicable Industrial Coderegulation was violated and that the violation caused the complained-ofinjury." Caru>abianca v SkanskaUSA Bldg. Inc., 9~ AD3d 139, 146 (1st Dept 2012) citing Ross at 501-502. Here, plaintiffrelies on 12 NYCRR 23-l.5(c)(3), whichprovides that "all safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired orrestored orimmediately removed from thejob site ifdamaged." 12 NYCRR 23- l.5(c)(3) is "sufficiently specific enoughto support a Labor Law§ 241(6) claim. Becerrav Promenade Apartments Inc., 126 AD3d 557 (1st Dept 2015) citing Misicki v Cardonna, 12 NY3d 511, 520-521 (2009). In support ofitclaim, plaintiffprovides a photo taken the day after the Accident in which plaintiffwrote "this was not inplace" over a middle component seemingly stabilizing the leg ofthe millwork. NYSCEF Doc. No. 141. As questions offact remain as to whetherthere was a safety device or safeguard absent or inneed ofrepair on the millwork at the time ofthe Accident, Structure Tone's motion for summaryjudgment dismissing plaintiffs Labor Law 241(6) claim must be denied. Labor Law § 200 Labor Law §200 "is a codification ofthe common-law duty imposed upon an owner or general contractorto 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 andcontractors who actually exercise control or supervision overthe work and had actual orconstructive notice ofthe 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


### [* 4]

### FILED: NEW YORK COUNTY CLERK 06/27/2024 02:00 PM INDEX NO. 156324/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 06/27/2024

5 of 7 Here, as a Structure Tone supervisor testified (NYSCEF Doc No. 163) that he was responsible for "planning and scheduling" the work ofthe various contractors, there are genuine issues of fact as to whether Structure Tone controlled the work site, and ifthe supervisor had constructive or actual notice ofthe allegedly defective millwork. Therefore, Structure Tone's motion for summaryjudgmentdismissing 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 orhold harmless the promisee against liability for damage arising out ofbodily injury to persons ... contributed to, caused by or resulting from the negligence ofthe promisee, his agents or employees, orindemnitee, whether such negligence be in whole orinpart, is againstpublic policy and is void and unenforceable

... In Duttonv Charles PankowBldrs., 296 AD2d 321 ( Ist Dept 2002), the Appellate Division, First Department, recognized the principle of"partial indemnification," that is, when an indemnification agreementthat does not run to the negligent conduct ofthe owner orgeneral contractor. For example, "[t]he phrase 'to the fullest extentpermitted by law' limits rather than expands a promisor's indemnification obligation." Brooks v Judlau Contr., Inc., 11 NY3d 204, 210 (2008). In view ofphrases 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 indemnificationprovisions can be enforceable. Dutton at 322. Here, Paragraph 11.2 ofStructure Tone's subcontracts withthe third-party defendants states, in pertinent part: To the fullest extent [allowed] by Law, Subcontractor will indemnify and hold harmless Structure Tone, LLC,

... inconnection 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 inpart and in any manner from the acts, omissions, breach or default ofSubcontractor, subcontractors, its officers, directors, agents, employees, and Subcontractors in connection with the performance ofany work by subcontractor, its employees and subcontractors pursuant to this Subcontract. Subcontractor will defend and bear all costs ofdefending any action orproceedings brought against Structure Tone, LLC. and or Owner, their officers, directors, agents and employees, arising in whole orinpart out ofany such acts, omission, breach ordefaults. NYSCEF Doc. No. 128. In addition, Structure Tone's subcontracts withthird-party defendants all contain the phrase "to the fullest extent by Law," thus rendering their indemnification clauses enforceable forjointliability attributable to the negligence ofCitywide, Dimaio, ortheir relatedparties as specified. Dutton at·322.

156324/2018 ROSINI, MICHAEL vs. STRUCTURE-TONE, INC. Motion No. 009 010 Page5of7


### [* 5]

### FILED: NEW YORK COUNTY CLERK 06/27/2024 02:00 PM INDEX NO. 156324/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 06/27/2024

6 of 7 However, "where the contractor's negligence has not been litigated and a triable issue of fact is raised, the contractor's request for Sl;lillIIlaryjudgmentfor contractual • indemnificationmustbe denied." Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 12 (1st Dept 2011). Here, the record raises questions offact as to the parties' alleged negligence; therefore, Structure Tone's motion for summaryjudgmentfor indemnification mustbe denied. Duty to Defend "Itis well settled that [an insurer's] duty to defend is broaderthan its duty to indemnify" and arises "[when] the allegations ofthe complaint suggest a reasonable possibility of coverage" or where the insurer has "actual knowledge offacts establishing a reasonable possibility ofcoverage." Auto. Ins. Co. ofHartford 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 executedby Structure Tone require the third'."party defendants to "defend and bear all costs ofdefending any action or proceedings brought against Structure Tone" in connection withthe project. NYSCEF Doc. No. 128. Therefore, the third-party defendants' insurers have a duty to defend, as they had actual notice ofthe possibility ofcoverage 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 summaryjudgment for defense from Dimaio and Citywide mustbe granted. Control In Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 (1981), the Court ofAppeals addressed the standard for liability under LaborLaw§§ 200 and 240: [ o]nly upon obtaining the authority to supervise and control does the third party fall within the class ofthose 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 ajob site, andthereby make each contractor an insurer for all workers regardless ofthe ability to direct, supervise, and control those workers, would lead to improbable and unjustresults

... However, the common lawnegligence claims raise the issue offact as to the state ofthe millworkthat the Dimaio employee left before plaintiffstarted working. Thus, Dimaio's motion for summaryjudgmentdismissing plaintiffs claims mustbe granted, without opposition, as to plaintiffs Labor Law§§ 200, 240(1), and 241(6) and denied as to plaintiffs common lawnegligence claims.

156324/2018 ROSIN!, MICHAEL vs. STRUCTURE-TONE, INC. Motion No. 009 010 Page 6of7


### [* 6]

### FILED: NEW YORK COUNTY CLERK 06/27/2024 02:00 PM INDEX NO. 156324/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 06/27/2024

7 of 7 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 ofthe motion ofdefendant/third-party plaintiff, Structure Tone LLC f/k/a Structure Tone, Inc., s/h/a Structure-Tone, Inc., for summaryjudgment (Motion Sequence 9) seeking to dismiss plaintiffsthird cause ofaction, for violating Labor Law § 240(1), and to grant summaryjudgment on the third-party complaint's first and fifth causes ofaction, for defense only, againstthird-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 ofthe motion ofdefendant/third-party defendant Dimaio for summaryjudgment (Motion Sequence 10) to dismiss plaintiff's second, third, fourth, and fifth causes ofaction, for violations ofLaborLaw§§ 200, 240(1), and 241(6), are hereby granted as to Dimaio only, and are otherwise denied; and the Clerk is hereby directed to enterjudgment accordingly.

6/26/2024

DATE CHECK ONE:

APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER

. INCLUDES TRANSFER/REASSIGN

156324/2018 ROSINI, MICHAELvs. STRUCTURE-TONE, INC. Motion No. 009 01O ARTHUR F. ENGORON, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHER**□** REFERENCE

Page7 of7


### [* 7]