### 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 RECEIVED NYSCEF: 07/15/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ALEXANDER M. TISCH Justice ------------------------------------------------------------------X

GENARO SOSA, Plaintiff,

- V

- 310 GROUP LLC, METRO NYC SERVICES INC., STRUCTURETECH NEW YORK INC., PRESS BUILDERS, INC., Defendant. 

### ------------------------------------------------------------------X

310 GROUP LLC, METRO NYC SERVICES INC. Plaintiff,-againstPRESS BUILDERS, INC. Defendant. 

### ------------------------------------------------------------------X STRUCTURETECH NEW YORK INC. Plaintiff,-againstPRESS BUILDERS, INC. Defendant. ------------------------------------------------------------------X PRESS BUILDERS, INC. Plaintiff,-againstCENTRIFUGAL ELECTRIC, LLC Defendant. ------------------------------------------------------------------X

157148/2017 SOSA, GENARO vs. 310 GROUP LLC Motion l\o. 006, 007
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INDEX NO. MOTION DATE MOTION SEQ. NO. 157148/2017 11/17/2022

006,007

DECISION + ORDER ON MOTION

Third-Party IndexNo. 595066/2019

Second Third-Party IndexNo. 595115/2019

Third Third-Party IndexNo. 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 plaintiffGenaro 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 constructionproject at 310 West 40th Street, New York, New York (the Premises). Defendant 310 Group LLC (310) states it was the developer ofthe project. Defendant Metro NYC Services, Inc. (Metro) states it was the general contractor on the project. Plaintiffalleges defendant 310 hired defendants Metro, StructuretechNewYork (Structuretech), Press Builders, Inc., (Press), and Centrifugal Associates Group LLC (Centrifugal), to work onthe project. Plaintiffworked for Centrifugal as a foreman. In the Second Amended Verified Complaint (NYSCEF Doc. No. 98), plaintiffasserts claims against 310, Metro, Structuretech, and Press sounding in negligence (Claims 1-3), New York Labor Law§ 200 and 241(6) and Rule 23 ofthe Industrial Code ofthe State ofNew 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 ofPress's work orthe project, in general, pursuant to its contract with Metro. Third Party Plaintiffs assert claims against Press seeking declaratoryjudgmentthat Press must indemnify Third Party Plaintiffs, and

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for contribution or indemnification, and for breach ofcontract 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 ofcontract 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 ofcontract for Centrifugal's failure to obtain insurance, and breach ofCentrifugal'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 ofcontract for failure to obtain required insurance. ZDG has been dismissed from this action (NYSCEF Doc. No. 92). 

### II. STANDARD The standards for summaryjudgmentare well settled. Summaryjudgmentis a drastic remedy which will be granted only when the party seeking summaryjudgmenthas established that there are no triable issues offact (see CPLR 3212 [b]; Alvarezv ProspectHosp., 68 NY2d 329 [1986]; Sillman v Twentieth Century-Fox Film Corporation, 3NY2d 395 [1957]). To prevail, the party seeking summaryjudgmentmust make a prima facie showing ofentitlement to judgment as amatter oflawtendering evidentiary proofin admissible form, which may include deposition transcripts and otherproofannexed to an attorney's affirmation (seeAlvarezv ProspectHosp., supra; Olan v FarrellLines, 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 ofthe opposing papers (see WinegradvNew 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 summaryjudgmentto rebut the prima facie showing by producing evidentiary proof in admissible form sufficientto require a trial ofmaterial issues offact (see Kaufman vSilver, 90 NY2d 204, 208 [1997]). Althoughthe court must carefully scrutinize the motion papers in a light most favorable to the party opposing the motion and must give thatparty the benefit of every favorable inference (see Negri vStop & Shop, 65 NY2d 625,626 [1985]) and summary judgment should be denied where there is any doubt as to the existence ofa triable issue offact (see Rotuba Extruders, v Ceppos, 46 NY2d 223, 231 [1978]), bald, conclusory assertions or speculation and "[a] shadowy semblance ofan issue" are insufficientto defeat a summary judgmentmotion (S.J CapalinAssoc. v Globe Mfg. Corp., 34 NY2d 338,341 [1974]; see Zuckerman v City of New York, supra; Ehrlich vAmericanMoninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [1970]). Lastly, "[a] motion for summaryjudgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues ofcredibility" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010], quoting Scott v LongIs. PowerAuth., 294 AD2d 348, 348 [2d Dept 2002]). III. MOTION SEQUENCE 006 In Motion Sequence 006, Press moves for summaryjudgment dismissing all claims and cross-claims against it and granting summaryjudgmentonits claim for indemnification against Centrifugal. PlaintiffSosacross-moves seeking partial summaryjudgmentinplaintiffs favor
onthe Labor Law §241(6) claim. Preliminarily, plaintiffargues 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 summaryjudgment shall be supported by affidavit, by a copy ofthe 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. denied5 NY3d 708 [2005]; seeAyer v Sky Club, Inc., 70 AD2d 863, 864 [1st Dept. 1979] [parties permitted to supplementthe record by submitting a copy ofthe pleadings], appeal dismissed 48 NY2d 705 [1979]). The record is sufficiently complete, despite movant's failure to attach all ofthe pleadings, as they are available from the materials submitted (see e.g. StudioA Showroom, LLCv Yoon, 99 AD3d 632 [1st Dept 2012] [pleadings filed electronically were available for the court's consideration], Pandian vNew York Health and Hospitals Corp., 54 AD3d 590, 591 [1st Dept. 2008] [pleadings were attachedto reply papers]; Welch, 18 AD3d at 1098 [ cross motionnot fatally defective where pleadings were attached to primary motion]) and available onNYSCEF. A. Plaintiff's Claims Against Press 1. Negligence and Labor Law§ 200 claims Labor Law§ 200 is a "'codificationofthe common-law duty imposed upon an owner or general contractorto 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 protectionto 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 aproper Labor Law or negligence defendant and Labor Lawliability 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 vLouis

### 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 Lawwhen it has been "delegatedthe supervision and control either over the specific work area involved orthe work which [gave] rise] to the injury"] internal quotation marks and citation omitted]). Press is not an owneror a general contractor. Press contends that,
as a constructionmanager, it has only general supervisory powers and no control overhowthe laborers performtheir work (Hughes v Tishman Const. Corp., 40 AD3d 305,306 [1stDept2007] ["liability cannotbe imposed on an owner or general contractor unless it is shownthat it exercised some supervisory control overthe work"). "Itis well settledthat an implicit preconditionto th[e] duty [to maintain a safe construction site] is thatthe party to be charged with that obligation 'have the authority to control the activity bringingaboutthe injury to enable it to avoidor correct an unsafe condition' "(Rizzuto vL.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998], quoting Russin v Louis

### N. Picciano & Son, 54 NY2d 311, 317 [1981]). General supervisory authority is insufficient to constitute supervisory control; itmust be demonstrated that the contractor controlled the manner in which theplaintiff performedhis orher work, i.e.,

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howthe 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" andpoints to the Construction ManagementAgreementbetween Press and Metro (Exhibit Y to Affirmation ofMeganE. 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 ConstructionManager, to Metro's General Contractor. Plaintiffdoes not argue against the dismissal ofthis claim in its oppositionto Press's motion. Therefore, the portion ofthe motion seeking summaryjudgmentdismissing plaintiffs claim against Press broughtpursuantto common law negligence and LaborLaw § 200 is granted. 2. Plaintifrs Claim Pursuant to LaborLaw§ 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 otherdevices which shallbe so constructed,placedand operated as to give properprotectionto 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 properprotectionto those individuals performing the work" (Quiroz vMemorial Hosp.for Cancer &AlliedDiseases, 202 AD3d 601, 604 [1st Dept 2022] [internal quotationmarks and citations omitted]). It "was designed to preventthose types ofaccidents in which the scaffold
... or otherprotective device proved inadequate to shield the injured worker from harm directly flowing from the application

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ofthe force ofgravity 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 contingentuponthe existence ofa hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device ofthe kind enumerated therein" (O'Brien v. PortAuth. 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 ofLabor Law § 240 (1 ), and "adistinction must be made between those accidents caused by the failure to provide a safety device
... and those caused by general hazards specific to aworkplace" (Makarius v PortAuth. of NY &NJ, 76 AD3d 805,807 [1st Dept 2010]; Buckley v Columbia Grammar & Preparatory, 44 AD3d 263,267 [1stDept 2007] [section 240 (1) "does not coverthe type ofordinary and usual peril to which a worker is commonly exposed at a construction site"). Instead, liability "is contingent upon the existence ofa hazard contemplated in section 240 (1) and the failure to use, orthe inadequacy of, a safety device ofthe kind enumerated therein" (Narducci v Manhasset BayAssoc., 96 NY2d 259, 267 [2001]). To prevail on a Labor Law§ 240 (1) claim, aplaintiffmust establish that the statute was violated, and that this violation was aproximate cause ofthe plaintiff's injuries (Barreto v Metropolitan Transp. Auth., 25 NY3d 426,433 [2015]). Neitherthe Second Amended Verified Complaint (NYSCEF Doc. No. 98) nor the plaintiff's submissions in oppositionto this motion make any allegations about a failure to provide sufficient "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, or otherdevices" for the protection ofthe

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plaintiff, resulting in the injury at issue (Labor Law§ 240[1]). Nor are there any allegations or issues ofmaterial fact that the plaintiff's alleged injury resulted from an elevationrelated risk (Toefer v LongIs. R.R., 4 NY3d 399,405 [2005]). This statute does not allowrecovery for the "usual and ordinary dangers ofa 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 summaryjudgment 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 withthe 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 anondelegable duty ofreasonable care upon owners and contractors "'toprovide reasonable and adequate protection and safety' to persons employed in,
or lawfully frequenting, all areas in which construction, excavation or demolitionwork is being performed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343,348 [1998]; see also Ross v Curtis-PalmerHydro-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" implementingregulation ofthe Industrial Code, rather than aprovision containing only generalized requirements for worker safety (Ross, 81 NY2d at 505). violation must be a proximate cause ofthe plaintiff's injuries (Yaucan v Hawthorne Vil., LLC, 155 AD3d

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924, 926 [2d Dept 2017] ["aplaintiffmust demonstrate that his orher injuries were proximately causedby a violation ofan Industrial Coderegulationthat is applicable to the circumstances ofthe accident"]; see also Sutherlandv Tutor Perini Bldg. Corp., 207 AD3d 159, 161 [1st Dept 2022]). "Whether a regulation applies to a particular condition orcircumstance is
a question oflawfor the court" (Harrison v State of New York, 88 AD3d 951, 953 [2d Dept 2011]).Press argues the LaborLaw241(6) claim shouldbe dismissedbecauseplaintiffhas failed to allege a specific violationofthe Industrial Coderequired for this statute to apply and OSHA violations do not create liability pursuantto LaborLaw § 241(6). In its oppositionto the motion, plaintiffSosaclarifies thatthere was a violation oflCR § 23-1.7(e)(1) and (2), inthat Presshad theresponsibility to keep the areaclear oftripping hazardsbutfailed to do so, creating liability pursuant to Labor Law § 241(6). Press concedes that this claim survives its motion for summary judgmentas itpertains to violations ofICR § 23-1.7(e)(1) and (2). B. Cross-Claims against Press 310 Group and Metro asserted cross-claims against Press for: (1) indemnification pursuantto the contractbetween Press and Metro; (2) contribution and common-law indemnification; and (3) breach ofcontract, for failure to procurethe insurancerequiredby the contractbetweenPress and Metro. 1. 310/Metro claims for contribution, common law indemnification Pressmoves for summaryjudgmentdismissingthe cross claimfor contribution and
common lawindemnification. "To establish a claim for common-lawindemnification, 'the one seeking indemnity mustprove notonly that it was not guilty ofany negligence beyondthe statutory liability butmust also provethatthe proposedindemnitorwas guilty ofsome

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negligence that contributedto the causationofthe accident"' (Perri v GilbertJohnson 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 ofeach such person" (Godoy vAbamasterof 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 ofGenaro Sosa, attached as Ex P to motion, NYSCEF Doc. No. 213, p 132; Deposition Testimony ofAbe Noy, Ex Sto motion, NYSCEF Doc. No. 216, pp 79-80). In fact, Press contends it was prohibited by the CMAfrom controlling the actions ofMetro's subcontractors. Press provides evidence Centrifugal was aware ofHall's safety violations and failed to take action until after plaintiffwas 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 ofMetro and a member of310, states that he was the only person from either ofthose companies onsite and he did not monitor or control the work (AffofAbe Noy, filed in Motion Seq. No. 007, NYSCEF Doc. NO. 194). the evidence cited by Sosa from the testimony ofMr. Noy, Opposing

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Parties cite to the affidavit ofMr. Thomas Socha, Press's Construction Superintendent, who testified that Press supervised the subcontractors, was responsible for safety on thejobsite, and had the authority to stop work ifits employees observed unsafe work (Attached as Exhibit T to Affirmation ofAdam J. Kipnis, NYSCEF Doc. No. 217 at 13, 15-16, 31). As there is a disputed issue ofmaterial fact as to Press's role at thejob site, and what Press's obligations were regarding supervising workers and workplace safety, Press'smotion for summaryjudgment onthe cross-claims against it by 310 Group and Metro for contribution and
common law indemnification fail. 2. 310 Group/Metro claims for contractual indemnification "Aparty is entitled to full contractual indemnification provided thatthe 'intentionto indemnify can be clearly implied from the language andpurposes ofthe entire agreement and the surrounding facts and circumstances"'(Karwowski v 1407BroadwayReal Estate, LLC, 160 AD3d 82, 87-88 [1st Dept 2018], quoting DrzewinskivAtlanticScaffold & 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 ofthe statutory liability" (Correia v ProfessionalDataMgt., 259 AD2d 60, 65 [1stDept 1999]; see also Lexington Ins. Co.
v Kiska Dev. Group LLC, 182 AD3d 462,464 [1st Dept 2020][denying summaryjudgment where indemnitee "has not established that it was free from negligence"]). Further, unless the indemnification clause explicitly requires a finding ofnegligence onbehalfofthe indemnitor, "[

w]hetheror notthe 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 indemnificationbased 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
ownnegligence is unenforceable, citing Brooks vJud/au Contr., Inc. (11 NY3d 204, 207 [2008]). Further, Press contends, the clause in the CMA contract is fatally flawed because it indemnifies Metro ofits 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 whenthere 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 aprima facie case for 310 or Metro's fault, they argue the contractual indemnity claim should survive summaryjudgment. Third party defendants are correctthatthe First Departmenthas held an indemnification clause without the limitation language is still valid, even though it violates the rule in General Obligations Law § 5-322.1, ifthe indemnitee is not negligent (Sande v Trinity Ctr. LLC, 206 AD3d 441,442 [1st Dept 2022]; Higgins v TST375 Hudson. L.L.C., 179 AD3d 508, 511 [1st Dept 2020]). There are issues offact about which entity had responsibility for overseeing worksite safety and which entities may have been negligent. Therefore, Press' motion for summaryjudgment on the contractual indemnification claim fails. 3. Breach ofContract for Failure to Obtain Liability Insurance Press argues that, as far as the insurance requirement is enforceable, Press fulfilled the terms ofits 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 misinterpretthe language ofthe agreement to require Press to provide insurance covering the actions oftheir own subcontractor. That obligationfell to Metro. 310 Group and Metro contend the indemnification clause inthe 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 obligationto oversee the work site. The reservation ofrights letter from Colony shows Press had obtained insurance. Itdoes not establish, however, whetherthe insurance purchased fulfils the requirements ofthe CMA. It is also, as discussed above, a disputed issue ofmaterial fact what Press's responsibilities were at the site, whether Press or Metro wasresponsible for supervising workers and monitoring safety issues at the site, and who, ifanyone, was negligent. Therefore, the portion ofthe motion seeking summaryjudgmentdismissing the claim for breachofcontractfor failure to obtain insurance is also denied. C. Press's claim against Centrifugal for indemnification. Press also moves for summaryjudgmenton its claim for contractual orcommon-law indemnification against Centrifugal. Press claims to be a third-party beneficiary ofCentrifugal's contractwithZDG 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'snew Contractor/Construction Manager" (see Ex Z). That contract was assigned to Metro but Press claims to be the new construction manager and
successorto ZDG (Raymond Hanratty Tr. of7 /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 ofthe Subcontractor Agreementrequires 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 ofthe risks he created. Alternatively, Press seeks common law indemnification from Centrifugal, arguing Press did not have supervisory responsibilities over either Terry Hall who left outthe cordorthe plaintiffwho tripped on it, so Press is not a wrongdoer here and Centrifugal owes it common law indemnification. Centrifugal contends Press's common lawindemnification claim is barred by New York Workers' CompensationLaw§ 11, which limits Centrifugal's liability to the worker's compensation insurance benefits it provided Soto and states generally, "[a]nemployer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustainedby an employee acting withinthe scope ofhis orher employmentfor such employer unless such third personproves through competent medical evidence that such employee has sustained a 'grave injury."' As plaintiffonly suffered a hip fracture and knee tear, he did not sustain a grave injury. Accordingto Centrifugal, the Subcontractor Agreement was assumed by Metro, which was named the "new Contractor/ConstructionManager" replacement construction manager, according to the Assignment, and so Metro would be a beneficiary ofits terms, rather than Press (Assignmentto Metro, ExZto Kipnis Aff, NYSCEF Doc. No. 223). Centrifugal argues Press is also neither a third party beneficiary ofthe Subcontractor AgreementnorZDG's
successor in interest.

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Press contends that the agreementbetweenMetro and Press conveyedthe role of construction manager to Press, and the contractual rightto indemnification with it. Alternatively, Press points out it is a consultant, which is anothercategory ofcontractor entitled to indemnification underthe SubcontractorAgreement.
As there are disputed issues ofmaterial fact regarding Press's status and responsibilities for the project, and thus disputes about which parties were negligent, Press' motion seeking summaryjudgment against Centrifugal on the indemnification claims is denied. D. Plaintiffs Cross-Motion for Summary Judgment on the LaborLaw§ 241(6) claim PlaintiffSosacross-moves for summaryjudgmentonhis claims against 310 Group, Metro, and Press broughtpursuantto LaborLaw§ 241(6), whichprovides: "All contractors and owners and their agents, ... when constructing or demolishing buildings ordoing any excavating in connectiontherewith, shall comply with the following requirements:
... 6. All areas in which construction, excavation ordemolition work is being performed shall be
. . . operated and conducted as to provide reasonable and adequate protection and safety to the persons employedtherein or lawfully frequenting suchplaces." Sosa argues the site failed to provide "reasonable and adequate protection and safety" because it violated the Industrial Code ofthe State ofNew York§ 23-l.7(e), which states: "(

e) Tripping and otherhazards. (1) Passageways. All passageways shall be kept free from accumulations ofdirt and debris and from any other obstructions orconditions which could cause tripping."
Press argues first that plaintiffSosahas never asserted a LaborLaw § 241(6) claim against Press, butthe Second Amended Verified Complaintdoes allege "defendants violated" that statute. While Press is not named specifically, there is a colorable argumentthat the claim
was asserted against all named defendants. Press then argues that ifthe claim survives Press's

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motion for summaryjudgment, plaintiffsmotion for summaryjudgment must fail because there is no evidence Mr. Hall left the electrical cord on the floor in the hallway for any particular amount oftime, and there is an issue ofact as to whether the cord was an "integral part ofthe work being performed" (McDonagh v Victoria's Secret, Inc., 9 AD3d 395, 396-97 [2d Dept 2004]). Here, there are issues ofdisputed material fact as to whetherthe dangerous condition
was avoidable or "inherentto the task at hand" (Bazdaric vAl mah Partners LLC, 41 NY 3d 310, 320 [2024]). Accordingly, the plaintiffs cross-motion for summaryjudgmentis denied. IV. Motion Sequence 007 In Motion Sequence 007, 310 Group, Metro, and Centrifugal move together for summary judgmentdismissing plaintiffs Labor Law § 200 common lawnegligence claim and plaintiffs labor law§ 240(1) claim, granting the movants summaryjudgmentontheir 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 ofcontract, 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, aplaintiffmust showthe property owner or general contractor either created the dangerous condition orhad actual or constructive notice ofthe condition (Garciav 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 ofthe movants on site are

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disputed and issues offact remain, as discussed above. Therefore, this portion ofthe motion is granted and the plaintiff's claimpursuant to Labor Law § 200/commonlawnegligence 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 ofthe type contemplatedby that law and no failure to use the corresponding scaffolding, harness, or other gear. This portion ofthe motion is granted, and this claim dismissed as against movants. C. Contractual Indemnification Claims between Metro/310 and Press Movants seek summaryjudgmentontheir claim against Press for contractual indemnificationpursuant to the Construction Management Agreementbetween Metro, as General Contractor, and Press, as ConstructionManager, dated December 15, 2016 (CMA, attached as Exh Y to the Affirmation ofMegan Yllanes, NYSCEF Doc. No. 159). Movants rely
on Article 9 ofthe CMA, which provides: "PRESS agrees to indemnify, defend and hold harmless METRO, 310 Group, LLC, Helm Management, Inc. andtheir respective members, officers, directors, employees, representatives, and agents (collectively, the "Indemnified Parties"), against any and all claims, losses, damages, liabilities costs orexpenses (including, without limitation, attorney's fees and costs oflitigation and or settlement, whether incurred as a result ofa claimby a third party or an indemnitee hereunder) arising out ofthe Services performedpursuantto this Agreement oroccurring inconnection with the Project orthe construction ofthe Project, exceptto the extent arising out ofthe gross negligence or willful misconduct ofthe Indemnified Party that is seeking to be indemnified."
Movants contendplaintiff's injury occurred in connection with the Project, so movants should be indemnified by Press, regardless ofwhether any party's negligence canbe established.

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Press argues movants misinterpretthe 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 oflitigation and or settlement) arising out of the actions ofMETRO pursuant to this Agreement, except to the extent arising out ofthe gross negligence at willful misconduct ofPRESS."
"The fundamental rule ofcontract interpretation is that agreements are construed in accord withthe parties' intent.
. . and '[t]he best evidence ofwhatparties 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 ofthe parties' intent may be considered only ifthe agreement is ambiguous [internal citations omitted]" (Riverside South Planning Corp. v CRP/ExtellRiverside LP, 60 AD3d 61, 66 [1 st Dept 2008], affd 13 NY3d 398 [2009]). Whether a contract is ambiguous presents a question oflaw 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 effectto the material provisions" (Beal Savings BankvSommer, 8NY 3d 318, 324 [2007], quoting Excess Ins. Co. Ltd. v FactoryMut. Ins. Co., 3NY3d 577, 582 [2004]). "A reading ofa contract should not render any portionmeaningless
. . . . Further, a contract should be read as a whole, and every part will be interpreted with reference to the whole; and ifpossible 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 ofthe Services performedpursuantto this Agreement or occurring in connection with the Project" has a grammatical ambiguity, whether

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"occurring in connection withthe 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 renderthe priorphrase meaningless, as the requirement for Press to indemnify Metro for claims "arising out ofthe Servicesperformed pursuant to this Agreement" would be totally subsumed. Movant's interpretation would also conflict with the remainder ofthat section ofthe CMA, in which Metro agrees to indemnify Press for claims "arising out ofthe actions ofMETRO pursuantto this Agreement." The interpretation which gives the terms ofthe 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 Pressprovides related to the Project. Therefore, this portion ofmovants' motion for summaryjudgment is denied. D. Common Law Indemnification Movants seek summaryjudgment dismissing Press's cross and counterclaims against defendants for common law indemnification. "[I]nthe case ofcommon-lawindemnification, the
one seeking indemnity must prove not only that it was not guilty ofany negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty ofsome negligence that contributed to the causation ofthe accident for which the indemnitee was held liable to the injured party by virtue ofsome obligation imposed by law, such as the nondelegable duty imposed by Labor Law§ 240 (l)" (Correia vProfessionalData Mgt., Inc., 259 AD2d 60, 65 [1st Dept 1999]). As discussed above, issues offact exist as to whethermovants were negligent, therefore their motion for summaryjudgment 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 summaryjudgmentonthis claim
onthe 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 ofparties, including the "CM" or constructionmanager (Id. 

### 'ii 109). Press explains thatZDG was the construction manager at that time, and the counterparty to that agreement, but that Press took overthatposition and so was entitled to that indemnification. Press also relies on a Certificate ofLiability Insurance naming Centrifugal as the named insured and Press as an additional insured (Ex. FF to Opposition, NYSCEF Doc. No. 268), and the depositiontestimony ofRaymond 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'srights, not Press. As discussed above, there are disputed issues offact regarding Press' role in the project. Therefore, material issues of fact exist and the motion for summaryjudgment on this claim is denied. F. Common Law Indemnification/Contribution Claims against Centrifugal Movants seek summaryjudgment dismissing Press's common law indemnification and contribution claims against Centrifugal for the portion ofplaintiffs damages that were caused by Centrifugal. They point outthat plaintifffiled for Workers' Compensationbenefits, so was barred from suing his employerpursuant to New York Workers' Compensation Law and argue that Centrifugal only has liability to third parties, such as Press, whenthe plaintiffwas 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 ofthe Workers' Compensation Law. Press points to the subcontractoragreement 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, exceptthose terms "shall not include a claim orcause ofaction for contribution orindemnification based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contributionto or indemnification ofthe claimant orperson assertingthe cause ofaction for the type ofloss suffered" (Workers' Compensation Law§ 11). This clause exempts Centrifugal, the plaintiffs employer, from common law, butnot contractual, claims for indemnification and contribution. Therefore, this portion ofthe motion for summaryjudgmentis granted and the claim for common law indemnificationand contribution is dismissed. V. CONCLUSION Forthe reasons discussed above it is hereby ORDERED that Press Builders, Inc.'s Motion for Summary Judgment (006) is hereby granted in part anddenied in part inthat, in the plaintiffs claim broughtpursuantto Labor Law § 200 is dismissed, his claim brought pursuantto LaborLaw §240(1) is dismissed, and his claim broughtpursuant to LaborLaw§ 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 broughtagainst 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 summaryjudgmentonthe claimbrought pursuant to LaborLaw§ 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 inpart in that the portion ofthe motion seeking summaryjudgmentdismissing the plaintiffsLabor Law §240(1) claim and the portion ofthe motion seeking summaryjudgment 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 ofthe 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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