Sosa v 310 Group LLC

2024 NY Slip Op 32425(U)

July 12, 2024

Supreme Court, New York County

Docket Number: Index No. 157148/2017

Judge: Alexander M. Tisch

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.
NYSCEF DOC. NO. 309 

·~",:~~•~ INDEX NO. 157148/2017 

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SUPREME COURT OF THE STATE OF NEW YORK NEW 

YORK COUNTY 

PRESENT: HON. ALEXANDER M. TISCH 

Justice 

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GENARO SOSA, 

Plaintiff, 

- V -

310 GROUP LLC, METRO NYC SERVICES INC., 

STRUCTURETECH NEW YORK INC., 

PRESS BUILDERS, INC., 

Defendant. 

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310 GROUP LLC, METRO NYC SERVICES INC. 

Plaintiff, 

-againstPRESS BUILDERS, INC. 

Defendant. 

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STRUCTURETECH NEW YORK INC. 

Plaintiff, 

-againstPRESS BUILDERS, INC. 

Defendant. 

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

PRESS BUILDERS, INC. 

Plaintiff, 

-againstCENTRIFUGAL ELECTRIC, LLC 

Defendant. 

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157148/2017 SOSA, GENARO vs. 310 GROUP LLC 

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PART 18 

INDEX NO. 

MOTION DATE 

MOTION SEQ. NO. 

157148/2017 

11/17/2022 

006,007 

DECISION + ORDER ON MOTION 

Third-Party 

Index No. 595066/2019 

Second Third-Party 

Index No. 595115/2019 

Third Third-Party 

Index No. 595115/2020 

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The following e-filed documents, listed by NYSCEF document number (Motion 006) 195, 196, 197, 198, 199, 200, 

201,202,203,204,205,206,207,208,209,210,211,212,213,214,215,216,217,218,219,220,221,222,223, 

224,225,226,227,228,229,230,231,232,233,269,270,271,272,273,274,275,276,277,286,287,292,293, 

294,298,299,301,303,304 

were read on this motion to/for JUDGMENT- SUMMARY 

The following e-filed documents, listed by NYSCEF document number (Motion 007) 157, 158, 159, 160, 161, 162, 

163,164,165,166,167,168,169, 170,171,172,173,174,175,176, 177, 178, 179,180,181, 182, 183,184,185, 

186,187,188,189,190,191,192,193,194,234,235,236,237,238,239,240,241,242,243,244,245,246,247, 

248,249,250,251,252,253,254,255,256,257,258,259,260,261,262,263,264,265,266,267,268,289,290, 

291,295,296,297,300,302,305 

were read on this motion to/for JUDGMENT- SUMMARY 

I. BACKGROUND 

This action was brought by plaintiff Genaro Sosa, a construction worker who tripped over 

an electrical cord which had been left out and sustained an injury while he worked on site on a 

construction project at 310 West 40th Street, New York, New York (the Premises). Defendant 

310 Group LLC (310) states it was the developer of the project. Defendant Metro NYC 

Services, Inc. (Metro) states it was the general contractor on the project. Plaintiff alleges 

defendant 310 hired defendants Metro, Structuretech New York (Structuretech), Press Builders, 

Inc., (Press), and Centrifugal Associates Group LLC (Centrifugal), to work on the project. 

Plaintiff worked for Centrifugal as a foreman. 

In the Second Amended Verified Complaint (NYSCEF Doc. No. 98), plaintiff asserts 

claims against 310, Metro, Structuretech, and Press sounding in negligence (Claims 1-3), New 

York Labor Law§ 200 and 241(6) and Rule 23 of the Industrial Code of the State of New York 

(Claim 4). 310 Group and Metro (the Third Party Plaintiffs) filed a Third Party Verified 

Complaint (NYSCEF Doc. No. 71) against Press in which the Third Party Plaintiffs allege Press 

was required to indemnify the Third Party Plaintiffs for claims arising out of Press' s work or the 

project, in general, pursuant to its contract with Metro. Third Party Plaintiffs assert claims 

against Press seeking declaratory judgment that Press must indemnify Third Party Plaintiffs, and 

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for contribution or indemnification, and for breach of contract for failing to obtain insurance. 

Structuretech filed the Verified Second Third-Party Complaint against Press (NYSCEF Doc. No. 

86) for claims sounding in common law indemnity, contribution, contractual indemnification, 

and breach of contract for Press's failure to obtain liability insurance. Press then filed the Third 

Third Party Complaint (NYSCEF Doc. No. 116) asserting claims against Centrifugal for 

contractual indemnification, common law indemnification or contribution, breach of contract for 

Centrifugal' s failure to obtain insurance, and breach of Centrifugal' s agreement with the general 

contractor on the project for Centrifugal's failure to obtain required insurance. Press also 

asserted cross claims (NYSCEF Doc. No. 107) against 310 Group, Metro, Structuretech, and 

ZDG, LLC (the former construction manager), sounding in common law indemnification and or 

contribution, comparative negligence, contractual indemnification, and breach of contract for 

failure to obtain required insurance. ZDG has been dismissed from this action (NYSCEF Doc. 

No. 92). 

II. STANDARD 

The standards for summary judgment are well settled. Summary judgment is a drastic 

remedy which will be granted only when the party seeking summary judgment has established 

that there are no triable issues of fact (see CPLR 3212 [b ]; Alvarez v Prospect Hosp., 68 NY2d 

329 [1986]; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]). To 

prevail, the party seeking summary judgment must make a prima facie showing of entitlement to 

judgment as a matter of law tendering evidentiary proof in admissible form, which may include 

deposition transcripts and other proof annexed to an attorney's affirmation (see Alvarez v 

Prospect Hosp., supra; Olan v Farrell Lines, 64 NY2d 1092, 1093 [1985]; Zuckerman v City of 

New York, 49 NY2d 557, 562 [1980]). Absent a sufficient showing, the court should deny the 

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motion without regard to the strength of the opposing papers (see Winegradv New York Univ. 

Med. Ctr., 64 NY2d 851,853 [1985]). 

Once the initial showing has been made, the burden shifts to the party opposing the 

motion for summary judgment to rebut the prima facie showing by producing evidentiary proof 

in admissible form sufficient to require a trial of material issues of fact (see Kaufman v Silver, 90 

NY2d 204, 208 [1997]). Although the court must carefully scrutinize the motion papers in a 

light most favorable to the party opposing the motion and must give that party the benefit of 

every favorable inference (see Negri v Stop & Shop, 65 NY2d 625,626 [1985]) and summary 

judgment should be denied where there is any doubt as to the existence of a triable issue of fact 

(see Rotuba Extruders, v Ceppos, 46 NY2d 223, 231 [1978]), bald, conclusory assertions or 

speculation and "[a] shadowy semblance of an issue" are insufficient to defeat a summary 

judgment motion (S.J Capalin Assoc. v Globe Mfg. Corp., 34 NY2d 338,341 [1974]; see 

Zuckerman v City of New York, supra; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 

NY2d 255, 259 [1970]). 

Lastly, "[a] motion for summary judgment should not be granted where the facts are in 

dispute, where conflicting inferences may be drawn from the evidence, or where there are issues 

of credibility" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010], quoting Scott v Long Is. 

Power Auth., 294 AD2d 348, 348 [2d Dept 2002]). 

III. MOTION SEQUENCE 006 

In Motion Sequence 006, Press moves for summary judgment dismissing all claims and 

cross-claims against it and granting summary judgment on its claim for indemnification against 

Centrifugal. Plaintiff Sosa cross-moves seeking partial summary judgment in plaintiffs favor 

on the Labor Law § 241 ( 6) claim. Preliminarily, plaintiff argues the motion is defective for its 

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failure to attach the Second Amended Complaint, as required by CPLR section 3212(b) ("A 

motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by 

other available proof''). Press cured this defect by attaching the required pleadings to its reply 

papers, allowing the court to overlook the procedural defect (see Welch v Hauck, 18 AD3d 1096, 

1098 [3d Dept 2005], lv. denied 5 NY3d 708 [2005]; see Ayer v Sky Club, Inc., 70 AD2d 863, 

864 [1st Dept. 1979] [parties permitted to supplement the record by submitting a copy of the 

pleadings], appeal dismissed 48 NY2d 705 [1979]). The record is sufficiently complete, despite 

movant's failure to attach all of the pleadings, as they are available from the materials submitted 

(see e.g. Studio A Showroom, LLC v Yoon, 99 AD3d 632 [1st Dept 2012] [pleadings filed 

electronically were available for the court's consideration], Pandian v New York Health and 

Hospitals Corp., 54 AD3d 590, 591 [1st Dept. 2008] [pleadings were attached to reply papers]; 

Welch, 18 AD3d at 1098 [ cross motion not fatally defective where pleadings were attached to 

primary motion]) and available on NYSCEF. 

A. Plaintiff's Claims Against Press 

1. Negligence and Labor Law§ 200 claims 

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"' (Cruz v 

Toscano, 269 AD2d 122, 122 [1 st Dept 2000] [ citation omitted]). Labor Law § 200 ( 1) states: 

"All places to which this chapter applies shall be so constructed, 

equipped, arranged, operated and conducted as to provide 

reasonable and adequate protection to the lives, health and safety of 

all persons employed therein or lawfully frequenting such places. 

All machinery, equipment, and devices in such places shall be so 

placed, operated, guarded, and lighted as to provide reasonable and 

adequate protection to all such persons." 

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As an initial matter, Press contends it lacked the authority to supervise and control the 

work, so it is not a proper Labor Law or negligence defendant and Labor Law liability does not 

apply to it. 

"When the work giving rise to these [Labor Law] duties has been 

delegated to a third party, that third party then obtains the 

concomitant authority to supervise and control that work and 

becomes a statutory 'agent' of the owner or general 

contractor. Only upon obtaining the authority to supervise and 

control does the third party fall within the class of those having 

nondelegable liability as an 'agent' under sections 240 and 241." 

(Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [ 1981 ]; see also Nascimento v 

Bridgehampton Constr. Corp, 86 AD3d 189, 193 [1st Dept 2011] [an entity becomes a statutory 

agent under the Labor Law when it has been "delegated the supervision and control either over 

the specific work area involved or the work which [gave] rise] to the injury"] internal quotation 

marks and citation omitted]). Press is not an owner or a general contractor. Press contends that, 

as a construction manager, it has only general supervisory powers and no control over how the 

laborers perform their work (Hughes v Tishman Const. Corp., 40 AD3d 305,306 [1st Dept 2007] 

["liability cannot be imposed on an owner or general contractor unless it is shown that it 

exercised some supervisory control over the work"). "It is well settled that an implicit 

precondition to th[e] duty [to maintain a safe construction site] is that the party to be charged 

with that obligation 'have the authority to control the activity bringing about the injury to enable 

it to avoid or correct an unsafe condition' "(Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 

3 52 [ 1998], quoting Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [ 1981 ]). General 

supervisory authority is insufficient to constitute supervisory control; it must be demonstrated 

that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., 

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how the injury-producing work was performed" (Hughes v Tishman Const. Corp., 40 AD3d 305, 

306 [1st Dept 2007]). 

While Press admits to having "supervisory authority," it denies having "supervisory 

control" and points to the Construction Management Agreement between Press and Metro 

(Exhibit Y to Affirmation of Megan E. Yllanes filed in Motion Sequence 007, NYSCEF Doc. 

No. 186). According to the CMA, Press was contracted to provide project management and 

construction consulting services as Construction Manager, to Metro's General Contractor. 

Plaintiff does not argue against the dismissal of this claim in its opposition to Press's 

motion. Therefore, the portion of the motion seeking summary judgment dismissing plaintiffs 

claim against Press brought pursuant to common law negligence and Labor Law § 200 is 

granted. 

2. Plaintifrs Claim Pursuant to Labor Law§ 240 (1) 

Labor Law § 240 (1 ), known as the Scaffold Law, provides: 

"All contractors and owners and their agents ... in the erection, 

demolition, repairing, altering, painting, cleaning or pointing 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) "imposes a nondelegable duty on owners and contractors to provide 

devices which shall be so constructed, placed and operated as to give proper protection to those 

individuals performing the work" (Quiroz v Memorial Hosp. for Cancer & Allied Diseases, 202 

AD3d 601, 604 [1st Dept 2022] [internal quotation marks and citations omitted]). It "was 

designed to prevent those types of accidents in which the scaffold ... or other protective device 

proved inadequate to shield the injured worker from harm directly flowing from the application 

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of the force of gravity to an object or person"' (John v Baharestani, 281 AD2d 114, 118 [1st 

Dept 2001], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). 

The absolute liability found within section 240 "is contingent upon the existence of a 

hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety 

device of the kind enumerated therein" (O'Brien v. Port Auth. of NY & NJ, 29 NY3d 27, 33 

[2017] [internal quotation marks and citation omitted]). In addition, Labor Law§ 240 (1) "must 

be liberally construed to accomplish the purpose for which it was framed" (Valensisi v Greens at 

Half Hollow, LLC, 33 AD3d 693, 695 [2d Dept 2006] [internal citations omitted]). 

That said, not every worker who is injured at a construction site is afforded the 

protections of Labor Law § 240 ( 1 ), and "a distinction must be made between those accidents 

caused by the failure to provide a safety device ... and those caused by general hazards specific 

to a workplace" (Makarius v Port Auth. of NY & NJ, 76 AD3d 805,807 [1st Dept 2010]; 

Buckley v Columbia Grammar & Preparatory, 44 AD3d 263,267 [1st Dept 2007] [section 240 

(1) "does not cover the type of ordinary and usual peril to which a worker is commonly exposed 

at a construction site"). Instead, liability "is contingent upon the existence of a hazard 

contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the 

kind enumerated therein" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). 

To prevail on a Labor Law§ 240 (1) claim, a plaintiff must establish that the statute was 

violated, and that this violation was a proximate cause of the plaintiff's injuries (Barreto v 

Metropolitan Transp. Auth., 25 NY3d 426,433 [2015]). Neither the Second Amended Verified 

Complaint (NYSCEF Doc. No. 98) nor the plaintiff's submissions in opposition to this motion 

make any allegations about a failure to provide sufficient "scaffolding, hoists, stays, ladders, 

slings, hangers, blocks, pulleys, braces, irons, ropes, or other devices" for the protection of the 

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plaintiff, resulting in the injury at issue (Labor Law§ 240[1]). Nor are there any allegations or 

issues of material fact that the plaintiff's alleged injury resulted from an elevation related risk 

(Toefer v Long Is. R.R., 4 NY3d 399,405 [2005]). This statute does not allow recovery for the 

"usual and ordinary dangers of a construction site," such as those alleged here (Rodriguez v 

Margaret Tietz Ctr. for Nursing Care, Inc., 84 NY2d 841, 843 [1994 ]). Therefore, the portion of 

Press's motion seeking summary judgment dismissing the plaintiff's claim brought pursuant to 

Labor Law § 240 (1) is granted and that claim is dismissed as against Press. 

3. Plaintiff's Claim Pursuant to Labor Law§ 241(6) 

Labor Law§ 241 (6) provides: 

"All contractors and owners and their agents, ... when constructing 

or demolishing buildings or doing any excavating in connection 

therewith, shall comply with the following requirements: 

* * * 

(6) All areas in which construction, excavation or demolition 

work is being performed shall be so constructed, shored, 

[and] equipped ... as to provide reasonable and adequate 

protection and safety to the persons employed therein or 

lawfully frequenting such places." 

Labor Law § 241 ( 6) imposes a nondelegable duty of reasonable care upon owners and 

contractors "'to provide reasonable and adequate protection and safety' to persons employed in, 

or lawfully frequenting, all areas in which construction, excavation or demolition work is being 

performed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343,348 [1998]; see also Ross v 

Curtis-Palmer Hydro-Electric Co., 81 NY2d at 501-502). 

To sustain a Labor Law§ 241 (6) claim, it must be established that the defendant violated 

a specific, "concrete" implementing regulation of the Industrial Code, rather than a provision 

containing only generalized requirements for worker safety (Ross, 81 NY2d at 505). violation 

must be a proximate cause of the plaintiff's injuries (Yaucan v Hawthorne Vil., LLC, 155 AD3d 

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924, 926 [2d Dept 2017] ["a plaintiff must demonstrate that his or her injuries were 

proximately caused by a violation of an Industrial Code regulation that is applicable to the 

circumstances of the accident"]; see also Sutherlandv Tutor Perini Bldg. Corp., 207 AD3d 159, 

161 [1st Dept 2022]). "Whether a regulation applies to a particular condition or circumstance is 

a question of law for the court" (Harrison v State of New York, 88 AD3d 951, 953 [2d Dept 

2011]). 

Press argues the Labor Law 241 ( 6) claim should be dismissed because plaintiff has failed 

to allege a specific violation of the Industrial Code required for this statute to apply and OSHA 

violations do not create liability pursuant to Labor Law § 241 ( 6). In its opposition to the motion, 

plaintiff Sosa clarifies that there was a violation oflCR § 23-1. 7( e )(1) and (2), in that Press had 

the responsibility to keep the area clear of tripping hazards but failed to do so, creating liability 

pursuant to Labor Law § 241 ( 6). Press concedes that this claim survives its motion for summary 

judgment as it pertains to violations of ICR § 23-1. 7( e )( 1) and (2). 

B. Cross-Claims against Press 

310 Group and Metro asserted cross-claims against Press for: ( 1) indemnification 

pursuant to the contract between Press and Metro; (2) contribution and common-law 

indemnification; and (3) breach of contract, for failure to procure the insurance required by the 

contract between Press and Metro. 

1. 310/Metro claims for contribution, common law indemnification 

Press moves for summary judgment dismissing the cross claim for contribution and 

common law indemnification. "To establish a claim for common-law indemnification, 'the one 

seeking indemnity must prove not only that it was not guilty of any negligence beyond the 

statutory liability but must also prove that the proposed indemnitor was guilty of some 

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negligence that contributed to the causation of the accident"' (Perri v Gilbert Johnson Enters., 

Ltd., 14 AD3d 681, 684-685 [2d Dept 2005], quoting Correia, 259 AD2d at 65). "Contribution 

is available where two or more tortfeasors combine to cause an injury and is determined in 

accordance with the relative culpability of each such person" (Godoy v Abamaster of Miami, 302 

AD2d 57, 61 [2d Dept 2003] [internal quotation marks and citations omitted]). 

Press argues that since a Centrifugal employee, Terry Hall, left the electrical cord out and 

Press had no obligation to inspect the property pursuant to its agreement with Metro (the CMA), 

Press is not liable for any negligence, and so has no obligation for contribution. Similarly, Press 

claims not to be liable for common law indemnification because Centrifugal has direct liability 

for the injury and Press did not supervise or control Centrifugal employees (Deposition 

Testimony of Genaro Sosa, attached as Ex P to motion, NYSCEF Doc. No. 213, p 132; 

Deposition Testimony of Abe Noy, Ex S to motion, NYSCEF Doc. No. 216, pp 79-80). In fact, 

Press contends it was prohibited by the CMA from controlling the actions of Metro's 

subcontractors. Press provides evidence Centrifugal was aware of Hall's safety violations and 

failed to take action until after plaintiff was injured (Daily Log, attached as Ex CC to Motion , 

NYSCEF Doc. No. 226). Press states it was barred from supervising the contractors and 310 

Group failed to do so. 

310 Group, Metro, and Centrifugal (the Opposing Parties) argue Press's motion must fail 

because Press has failed to make a prima facie case it was not negligent and Opposing Parties 

were. Opposing Parties also argue Press was effectively the general contractor. Mr. Noy, owner 

of Metro and a member of 310, states that he was the only person from either of those companies 

onsite and he did not monitor or control the work (Aff of Abe Noy, filed in Motion Seq. No. 007, 

NYSCEF Doc. NO. 194). the evidence cited by Sosa from the testimony of Mr. Noy, Opposing 

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Parties cite to the affidavit of Mr. Thomas Socha, Press's Construction Superintendent, who 

testified that Press supervised the subcontractors, was responsible for safety on the jobsite, and 

had the authority to stop work if its employees observed unsafe work (Attached as Exhibit T to 

Affirmation of Adam J. Kipnis, NYSCEF Doc. No. 217 at 13, 15-16, 31 ). 

As there is a disputed issue of material fact as to Press' s role at the job site, and what 

Press's obligations were regarding supervising workers and workplace safety, Press's motion for 

summary judgment on the cross-claims against it by 310 Group and Metro for contribution and 

common law indemnification fail. 

2. 310 Group/Metro claims for contractual indemnification 

"A party is entitled to full contractual indemnification provided that the 'intention to 

indemnify can be clearly implied from the language and purposes of the entire agreement and the 

surrounding facts and circumstances"' (Karwowski v 1407 Broadway Real Estate, LLC, 160 

AD3d 82, 87-88 [1st Dept 2018], quoting Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 

774, 777 [1987]). "In contractual indemnification, the one seeking indemnity need only establish 

that it was free from any negligence and was held liable solely by virtue of the statutory liability" 

(Correia v Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]; see also Lexington Ins. Co. 

v Kiska Dev. Group LLC, 182 AD3d 462,464 [1st Dept 2020][denying summary judgment 

where indemnitee "has not established that it was free from negligence"]). Further, unless the 

indemnification clause explicitly requires a finding of negligence on behalf of the indemnitor, 

"[ w ]hether or not the proposed indemnitor was negligent is a non-issue and irrelevant" 

(Correia, 259 AD2d at 65). 

Press explains the only indemnification agreement it signed was in the CMA with Metro 

and Centrifugal is not entitled to indemnification based on that agreement. Press also argues the 

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indemnification clause in the CMA is unenforceable because it violates General Obligations Law 

§ 5-322.1, which states an agreement exempting owners and contractors for liability for their 

own negligence is unenforceable, citing Brooks v Jud/au Contr., Inc. (11 NY3d 204, 207 

[2008]). Further, Press contends, the clause in the CMA contract is fatally flawed because it 

indemnifies Metro of its own ordinary negligence and lacks the saving language identified by 

Brooks. 

Opposing Defendants argue the clause is not rendered unenforceable by General 

Obligations Law§ 5-322.1 when there is no evidence in this instance that the parties seeking to 

enforce the clause were at fault. (Brown v Two Exch. Plaza Partners, 76 NY2d 172, 180 

[ 1990]). As Press has not brought evidence to establish a prima facie case for 310 or Metro's 

fault, they argue the contractual indemnity claim should survive summary judgment. 

Third party defendants are correct that the First Department has held an indemnification 

clause without the limitation language is still valid, even though it violates the rule in General 

Obligations Law § 5-322.1, if the indemnitee is not negligent (Sande v Trinity Ctr. LLC, 206 

AD3d 441,442 [1st Dept 2022]; Higgins v TST 375 Hudson. L.L.C., 179 AD3d 508, 511 [1st 

Dept 2020]). There are issues of fact about which entity had responsibility for overseeing 

worksite safety and which entities may have been negligent. Therefore, Press' motion for 

summary judgment on the contractual indemnification claim fails. 

3. Breach of Contract for Failure to Obtain Liability Insurance 

Press argues that, as far as the insurance requirement is enforceable, Press fulfilled the 

terms of its contract regarding insurance, as it was only required to obtain insurance coverage to 

protect Metro and 310 Group from claims arising from Press' s work, which it did. There is 

evidence in the record that shows Press did obtain insurance, Colony's reservation ofrights 

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letter, filed by 310 Group and Metro (Attachment B to Yllanes Aff., NYSCEF Doc. No. 230). 

Press claims Metro and 310 Group misinterpret the language of the agreement to require Press to 

provide insurance covering the actions of their own subcontractor. That obligation fell to Metro. 

310 Group and Metro contend the indemnification clause in the Press contract is enforceable 

because while General Obligations Law§ 5-322.1 does not allow 310 Group and Metro to be 

protected from their own negligence, they could not have been negligent here, because it was not 

their obligation to oversee the work site. 

The reservation of rights letter from Colony shows Press had obtained insurance. It does 

not establish, however, whether the insurance purchased fulfils the requirements of the CMA. It 

is also, as discussed above, a disputed issue of material fact what Press' s responsibilities were at 

the site, whether Press or Metro was responsible for supervising workers and monitoring safety 

issues at the site, and who, if anyone, was negligent. Therefore, the portion of the motion 

seeking summary judgment dismissing the claim for breach of contract for failure to obtain 

insurance is also denied. 

C. Press's claim against Centrifugal for indemnification. 

Press also moves for summary judgment on its claim for contractual or common-law 

indemnification against Centrifugal. Press claims to be a third-party beneficiary of Centrifugal' s 

contract with ZDG as that agreement classifies ZDG, the original construction manager, and its 

successors as indemnitees. (Subcontractor Agreement, attached as Exhibit BB to the Affidavit of 

Adam J. Kipnis, NYSCEF Doc. No. 225). Metro signed an Assumption and Assignment of 

Contract with Centrifugal as "Owner's new Contractor/Construction Manager" (see Ex Z). That 

contract was assigned to Metro but Press claims to be the new construction manager and 

successor to ZDG (Raymond Hanratty Tr. of 7 /20/21, attached as Exhibit R to the Affidavit of 

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Adam J. Kipnis, NYSCEF Doc. No. 215, at 19-20). Therefore, Press claims section 22.1 of the 

Subcontractor Agreement requires Centrifugal to defend and indemnify Press, as the new 

construction manager. Alternatively, Press argues it is a consultant, which Centrifugal was also 

obligated to indemnify. Therefore, Press claims it is entitled to contractual indemnification for 

Centrifugal's negligence in failing to more closely supervise Terry Hall, who left out 

Centrifugal's extension cord, after receiving notice of the risks he created. Alternatively, Press 

seeks common law indemnification from Centrifugal, arguing Press did not have supervisory 

responsibilities over either Terry Hall who left out the cord or the plaintiff who tripped on it, so 

Press is not a wrongdoer here and Centrifugal owes it common law indemnification. 

Centrifugal contends Press's common law indemnification claim is barred by New York 

Workers' Compensation Law§ 11, which limits Centrifugal's liability to the worker's 

compensation insurance benefits it provided Soto and states generally, "[a]n employer shall not 

be liable for contribution or indemnity to any third person based upon liability for injuries 

sustained by an employee acting within the scope of his or her employment for such employer 

unless such third person proves through competent medical evidence that such employee has 

sustained a 'grave injury."' As plaintiff only suffered a hip fracture and knee tear, he did not 

sustain a grave injury. According to Centrifugal, the Subcontractor Agreement was assumed by 

Metro, which was named the "new Contractor/Construction Manager" replacement construction 

manager, according to the Assignment, and so Metro would be a beneficiary of its terms, rather 

than Press (Assignment to Metro, Ex Z to Kipnis Aff, NYSCEF Doc. No. 223). Centrifugal 

argues Press is also neither a third party beneficiary of the Subcontractor Agreement nor ZDG's 

successor in interest. 

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Press contends that the agreement between Metro and Press conveyed the role of 

construction manager to Press, and the contractual right to indemnification with it. Alternatively, 

Press points out it is a consultant, which is another category of contractor entitled to 

indemnification under the Subcontractor Agreement. 

As there are disputed issues of material fact regarding Press's status and responsibilities 

for the project, and thus disputes about which parties were negligent, Press' motion seeking 

summary judgment against Centrifugal on the indemnification claims is denied. 

D. Plaintiffs Cross-Motion for Summary Judgment on the Labor Law§ 241(6) 

claim 

Plaintiff Sosa cross-moves for summary judgment on his claims against 310 Group, 

Metro, and Press brought pursuant to Labor Law§ 241(6), which provides: 

"All contractors and owners and their agents, ... when constructing or 

demolishing buildings or doing any excavating in connection therewith, shall 

comply with the following requirements: ... 

6. All areas in which construction, excavation or demolition work is being 

performed shall be . . . operated and conducted as to provide reasonable and 

adequate protection and safety to the persons employed therein or lawfully 

frequenting such places." 

Sosa argues the site failed to provide "reasonable and adequate protection and safety" because it 

violated the Industrial Code of the State of New York§ 23-l.7(e), which states: 

"( e) Tripping and other hazards. 

(1) Passageways. All passageways shall be kept free from accumulations of dirt 

and debris and from any other obstructions or conditions which could cause 

tripping." 

Press argues first that plaintiff Sosa has never asserted a Labor Law § 241 ( 6) claim 

against Press, but the Second Amended Verified Complaint does allege "defendants violated" 

that statute. While Press is not named specifically, there is a colorable argument that the claim 

was asserted against all named defendants. Press then argues that if the claim survives Press's 

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motion for summary judgment, plaintiffs motion for summary judgment must fail because there 

is no evidence Mr. Hall left the electrical cord on the floor in the hallway for any particular 

amount of time, and there is an issue of act as to whether the cord was an "integral part of the 

work being performed" (McDonagh v Victoria's Secret, Inc., 9 AD3d 395, 396-97 [2d Dept 

2004]). Here, there are issues of disputed material fact as to whether the dangerous condition 

was avoidable or "inherent to the task at hand" (Bazdaric v Al mah Partners LLC, 41 NY 3d 310, 

320 [2024]). Accordingly, the plaintiffs cross-motion for summary judgment is denied. 

IV. Motion Sequence 007 

In Motion Sequence 007, 310 Group, Metro, and Centrifugal move together for summary 

judgment dismissing plaintiffs Labor Law § 200 common law negligence claim and plaintiffs 

labor law§ 240(1) claim, granting the movants summary judgment on their indemnification 

counterclaims against Press, dismissing Press' s common law indemnification crossclaim and 

counterclaim against movants, and dismissing Press' s claims against Centrifugal for contractual 

indemnification, breach of contract, and common law indemnification and contribution. 

A. Sosa's Labor Law§ 200/ Common Law Negligence Claim 

Movants contend that for this claim to succeed against a property owner or general 

contractor, a plaintiff must show the property owner or general contractor either created the 

dangerous condition or had actual or constructive notice of the condition (Garcia v DPA Wallace 

Ave. I, LLC, 101 AD3d 415,417 [1st Dept 2012]). However, Garcia provides for liability to 

accrue to the person "with authority to control the activity bringing about the injury" (id.). Here, 

it is undisputed the extension cord belonged to Centrifugal and was left on the floor by a 

Centrifugal employee (Memo, NYSCEF Doc. No. 159, at para 33, Exhibits "U" at 25:20-25, 

31:10-14 and "J" at 40:10-15; Noy Affidavit, i)8). However, the roles of the movants on site are 

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disputed and issues of fact remain, as discussed above. Therefore, this portion of the motion is 

granted and the plaintiff's claim pursuant to Labor Law § 200/common law negligence will 

survive. 

B. Sosa's Labor Law§ 240(1) Claim 

As discussed above, Labor Law § 240(1 ), the Scaffold Law, does not apply to this case, 

as there was no hazard of the type contemplated by that law and no failure to use the 

corresponding scaffolding, harness, or other gear. This portion of the motion is granted, and this 

claim dismissed as against movants. 

C. Contractual Indemnification Claims between Metro/310 and Press 

Movants seek summary judgment on their claim against Press for contractual 

indemnification pursuant to the Construction Management Agreement between Metro, as 

General Contractor, and Press, as Construction Manager, dated December 15, 2016 (CMA, 

attached as Exh Y to the Affirmation of Megan Yllanes, NYSCEF Doc. No. 159). Movants rely 

on Article 9 of the CMA, which provides: 

"PRESS agrees to indemnify, defend and hold harmless METRO, 310 Group, 

LLC, Helm Management, Inc. and their respective members, officers, directors, 

employees, representatives, and agents (collectively, the "Indemnified Parties"), 

against any and all claims, losses, damages, liabilities costs or expenses 

(including, without limitation, attorney's fees and costs of litigation and or 

settlement, whether incurred as a result of a claim by a third party or an 

indemnitee hereunder) arising out of the Services performed pursuant to this 

Agreement or occurring in connection with the Project or the construction of the 

Project, except to the extent arising out of the gross negligence or willful 

misconduct of the Indemnified Party that is seeking to be indemnified." 

Movants contend plaintiff's injury occurred in connection with the Project, so movants should be 

indemnified by Press, regardless of whether any party's negligence can be established. 

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Press argues movants misinterpret the clause and points out that the indemnification 

requirements are mutual. That section later states that 

"METRO agrees to indemnify, defend and hold harmless PRESS and their 

respective officers, directors, employees, representatives, and agents against any 

and all claims, losses, damages, liabilities, costs or expenses (including, without 

limitation, attorney's fees and costs of litigation and or settlement) arising out of 

the actions of METRO pursuant to this Agreement, except to the extent arising 

out of the gross negligence at willful misconduct of PRESS." 

"The fundamental rule of contract interpretation is that agreements are construed in 

accord with the parties' intent. . . and '[t]he best evidence of what parties to a written 

agreement intend is what they say in their writing' .... Thus, a written agreement that is clear 

and unambiguous on its face must be enforced according to the plain terms, and extrinsic 

evidence of the parties' intent may be considered only if the agreement is ambiguous [internal 

citations omitted]" (Riverside South Planning Corp. v CRP/Extell Riverside LP, 60 AD3d 61, 66 

[1 st Dept 2008], affd 13 NY3d 398 [2009]). Whether a contract is ambiguous presents a question 

of law for resolution by the courts (id. at 67). 

In accordance with these principles, a court should interpret a contract "so as to give full 

meaning and effect to the material provisions" (Beal Savings Bank v Sommer, 8 NY 3d 318, 324 

[2007], quoting Excess Ins. Co. Ltd. v Factory Mut. Ins. Co., 3 NY3d 577, 582 [2004]). "A 

reading of a contract should not render any portion meaningless . . . . Further, a contract should 

be read as a whole, and every part will be interpreted with reference to the whole; and if possible 

it will be so interpreted as to give effect to its general purpose" (id. at 324-325, quoting Matter of 

Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358 [2003]). 

The sentence at issue, "claims ... arising out of the Services performed pursuant to this 

Agreement or occurring in connection with the Project" has a grammatical ambiguity, whether 

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"occurring in connection with the Project" modifies "claims" or "Services." Movants effectively 

argue it modifies "claims." Using movants' interpretation, Press would indemnify Metro for any 

claims "occurring in connection with the Project," which would render the prior phrase 

meaningless, as the requirement for Press to indemnify Metro for claims "arising out of the 

Services performed pursuant to this Agreement" would be totally subsumed. Movant's 

interpretation would also conflict with the remainder of that section of the CMA, in which Metro 

agrees to indemnify Press for claims "arising out of the actions of METRO pursuant to this 

Agreement." The interpretation which gives the terms of the indemnification section full force 

and effect without making any portion meaningless is to interpret "occurring in connection with 

the Project" to modify "Services," so Press provides indemnification for claims arising from its 

services under the CMA or other services Press provides related to the Project. Therefore, this 

portion of movants' motion for summary judgment is denied. 

D. Common Law Indemnification 

Movants seek summary judgment dismissing Press's cross and counterclaims against 

defendants for common law indemnification. "[I]n the case of common-law indemnification, the 

one seeking indemnity must prove not only that it was not guilty of any negligence beyond the 

statutory liability but must also prove that the proposed indemnitor was guilty of some 

negligence that contributed to the causation of the accident for which the indemnitee was held 

liable to the injured party by virtue of some obligation imposed by law, such as the nondelegable 

duty imposed by Labor Law§ 240 (l)" (Correia v Professional Data Mgt., Inc., 259 AD2d 60, 

65 [1st Dept 1999]). As discussed above, issues of fact exist as to whether movants were 

negligent, therefore their motion for summary judgment dismissing these claims is denied. 

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E. Dismissing Contractual Indemnification Claims Against Centrifugal 

Press claims to be entitled to indemnification from Centrifugal pursuant to the 

subcontract between ZDG LLC and Centrifugal. Movants seek summary judgment on this claim 

on the ground that Press is neither a named beneficiary nor an intended third-party beneficiary of 

Centrifugal's subcontract. Press argues the Centrifugal/ZOO agreement, (attached as Ex. BB to 

Opposition, NYSCEF Doc. No. 264), required Centrifugal to indemnify or cover as additional 

insureds a list of parties, including the "CM" or construction manager (Id. 'ii 109). Press explains 

that ZDG was the construction manager at that time, and the counterparty to that agreement, but 

that Press took over that position and so was entitled to that indemnification. Press also relies on 

a Certificate of Liability Insurance naming Centrifugal as the named insured and Press as an 

additional insured (Ex. FF to Opposition, NYSCEF Doc. No. 268), and the deposition testimony 

of Raymond Hanratty in which Hanratty confirms Press is listed on an insurance certificate as an 

additional insured (attached as Ex R to Opposition, NYSCEF Doc. No. 254, pp 35-9). 

Defendants contend Metro took over the subcontract with Centrifugal and was the new 

Construction Manager and that Metro acquired ZDG's rights, not Press. As discussed above, 

there are disputed issues of fact regarding Press' role in the project. Therefore, material issues of 

fact exist and the motion for summary judgment on this claim is denied. 

F. Common Law Indemnification/Contribution Claims against Centrifugal 

Movants seek summary judgment dismissing Press's common law indemnification and 

contribution claims against Centrifugal for the portion of plaintiffs damages that were caused by 

Centrifugal. They point out that plaintiff filed for Workers' Compensation benefits, so was 

barred from suing his employer pursuant to New York Workers' Compensation Law and argue 

that Centrifugal only has liability to third parties, such as Press, when the plaintiff was gravely 

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injured or the employer and the third party had a written contract for indemnification or 

contribution (New York Workers' Compensation Law § 11 ). Movants argue that plaintiff's 

injuries do not qualify as grave, entitling Centrifugal to the protection of the Workers' 

Compensation Law. Press points to the subcontractor agreement between ZDG and Centrifugal, 

which provides for indemnification but not contribution, to which Press claims to be a successor 

for ZDG. 

The language in the Workers' Compensation Law§ 11 gives an employer an exemption 

from liability for contribution or indemnity, except those terms 

"shall not include a claim or cause of action for contribution or indemnification 

based upon a provision in a written contract entered into prior to the accident or 

occurrence by which the employer had expressly agreed to contribution to or 

indemnification of the claimant or person asserting the cause of action for the type 

of loss suffered" 

(Workers' Compensation Law§ 11 ). This clause exempts Centrifugal, the plaintiffs employer, 

from common law, but not contractual, claims for indemnification and contribution. Therefore, 

this portion of the motion for summary judgment is granted and the claim for common law 

indemnification and contribution is dismissed. 

V. CONCLUSION 

For the reasons discussed above it is hereby 

ORDERED that Press Builders, Inc.'s Motion for Summary Judgment (006) is hereby 

granted in part and denied in part in that, in the plaintiffs claim brought pursuant to Labor Law 

§ 200 is dismissed, his claim brought pursuant to Labor Law § 240(1) is dismissed, and his claim 

brought pursuant to Labor Law§ 241(6) survives as far as it is brought pursuant to ICR § 23-1/7 

(e) (l)and (2) and otherwise dismissed. Further, the cross-claims brought against Press by 3 IO, 

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Metro, and Centrifugal survive, except for the claim brought by Centrifugal for contractual 

indemnification, which is dismissed. And it is further 

ORDERED that the cross-motion made by plaintiff (006) for summary judgment on the 

claim brought pursuant to Labor Law§ 241(6) is hereby denied and the claim will survive. And 

it is further 

ORDERED that the motion made by 310, Metro, and Centrifugal (007) is granted in part 

and denied in part in that the portion of the motion seeking summary judgment dismissing the 

plaintiffs Labor Law §240(1) claim and the portion of the motion seeking summary judgment 

dismissing Press' s common law indemnification and contribution claims against Centrifugal are 

granted and those claims are dismissed and the motion is otherwise denied. 

This constitutes the decision and order of the Court. 

7/12/2024 

DATE 

CHECK ONE: 

ALEXANDER M. TISCH, J.S.C. 

APPLICATION: 

CHECK IF APPROPRIATE: ~ CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

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NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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