Butler v Marco Realty Assoc., L
.P
. 2024 NY Slip Op 31230(U) April 10, 2024 Supreme Court, New York County Docket Number: Index No. 156776/2017 Judge: Margaret A. Chan 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.INDEX NO. 156776/2017 NYSCEF DOC. NO. 405 RECEIVED NYSCEF: 04/10/2024

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### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. MARGARET A. CHAN Justice -------------------X

LARONE BUTLER, Plaintiff,



### -vMARCO REALTY ASSOCIATES, LP., JAMES HUNT CONSTRUCTION CO., INC., ALL-RITE CONSTRUCTION CO., INC., ALWAYS FIRST, INC., and QCC MAINTNENANCE INC., Defendants. -------------------X

MARCO REALTY ASSOCIATES, LP. Third Party Plaintiff,-againstALWAYS FIRST, INC. and QCC MAINTENANCE INC. Third Party Defendants. ---------------·----X PART

INDEX NO.

MOTION DATE 49M

156776/2017 06/02/2023, 06/02/2023, 06/02/2023, 06/02/2023
005 006 007 MOTION SEQ. NO. 008
DECISION + ORDER ON MOTION

Third-Party Index No. 595506/2018

The following e-filed documents, listed by NYSCEF document number (Motion 005} 163, 164, 165, 166, 167,168,169,170,171,172,173,174,175,176,177,178,252,256,274,275,276,277,278,279,280, 281,282,283,284,293,301,305,308,330
were read on this motion to/for JUDGMENT-SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 006) 232, 233, 234, 235, 236,237,238,239,240,241,242,243,244,245,246,247,248,249,250,257,285,286,287,288,289, 290,291,296,297,302,306,324,325,326,331,334,335,336,339,340,341,342,358,393,394
were read on this motion to/for JUDGMENT-SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 007) 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, 220,221,222,223,224,225,226,227,228,229,230,231,254,258,292,294,295,298,299,300,303, 322,323,332,337,343,344,345,346,347,348,349,350,351,352,353,354,355,356,357,360,361, 362,363,364,365,366,367,368,369,370,371,372,373,374,375,376,377,378,379,380,381,382, 383,384,385,386,387,388,389,390,391,392
were read on this motion to/for JUDGMENT-SUMMARY

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2 of 19 The following e-filed documents, listed by NYSCEF document number (Motion 008) 179, 180, 181, 182, 183,184,185,186,187,188,189,190,191,192,193,194,253,259,261,262,263,264,265,266,267, 268,269,270,271,272,273,304,333,338,359
were read on this motion to/for JUDGMENT-SUMMARY

PlaintiffLarone Butler, an employee ofdefendant Always First, Inc. (Always First), was allegedly injured on November 22, 2016, when working on a construction project at 360 E. Fordham Road, Bronx County, New York, NY (the Project). This premises was owned by defendant Marco Realty Associates, L.P. (Macro Realty) and leased to defendant Old Navy, LLC (Old Navy). Old Navy's parent company the Gap, Inc. (the Gap) hired James Hunt Construction Co., Inc. (James Hunt) as general contractor for interior renovation. (James Hunt, Macro Realty, the Gap, Old Navy are referred to in this Order as "the building defendants.") James Hunt in turn subcontracted with QCC Maintenance Inc. (QCC) and Always First for demolition work. Meanwhile, Macro Realty also hired All-Rite Construction Co., Inc. (All-Rite) for demolition work. This Decision and Order addresses motion sequences (MS) 005-008, where the parties move for summaryjudgment on (i) plaintiffs Labor Law§§ 200, 240 (1), and 241 (6) claims and negligence claim, and (ii) the building defendants' cross claims and third-party claims for contractual indemnification, breach ofcontract, and common law indemnification and contribution. All motions are opposed. 

### BACKGROUND PlaintiffLarone Butler alleges that he was injured on November 22, 2016, while working on the Project (NYSCEF # 29

- verified amended compl. 

### ,r 209). The Project was to build out and install interior finishes for Old Navy, a tenant in the subject building (NYSCEF # 189

- Hinton tr at 14). 

### Parties'RelationshipsandResponsibilities At the time on plaintiffs incident, James Hunt's site superintendent was Bill Hellbusch, who had the responsibility to oversee site safety and day-to-day construction activities (id at 19-20, 23, 25). James Hunt's senior project manager then was Richard Hinton, who usually visited the site every two to three weeks to check construction progress (id at 10, 21-22). James Hunt subcontracted with QCC for demolition work and hired Always First to supplement QCC's work, because certain work, such as rock breaking, went beyond QCC's capabilities (id at 25-27). QCC and Always First' work on thejobsite overlapped in time (id at 25). Before James Hunt and its subcontractors started working on the Project, Macro Realty-the owner and landlord ofthe premises-engaged All-Rite as general contractor to**"prep □** the shell ofthe building for Old Navy to take possession" (id at 28-30; NYSCEF # 246

- Zysman tr at 16). All-Rite was responsible for demolition and removal work, structural support work, and flooring

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3 of 19 repairs (Hinton tr at 30; Zysman tr at 17). All·Rite subcontractedwith othertrades to "safe offelectric" and "safe offallthe plumbing'' (Zysman tr at 17, 21). All-Rite worked at the Project from the beginningof2016 to July 2016 (id at 16, 29). During thatperiod, a partner atAll·Rite, Gregg Zysman, would visit the Project site about once a week to check any safety or quality issues (id at 22). 

### ContractualIndemnification Clauses James Hunt's contracts withAlways First and QCC contained the same indemnification clause, which provided that: 4.7.1 Subcontractor shall defend, indemnify and hold General Contractor forever harmless from and against any and all claims

. . . beingfiled or asserted against General Contractor, Owner, Tenant, Landlord, the Premises, Building, Property or Work, arising out ofor in connection with the Work ofthis Agreement or the breach by Subcontractor ofany term or condition ofthis Agreement. 4.7.2 Subcontractor shall defend, indemnify, and hold harmless General Contractor

. . . from and against all claims

. . . asserted against

. . . General Contractor by reason of(i) injury to or death ofany person, including, but not limited to, employees ofSubcontractor and/ or (ii) loss ofor damage to property arising out of or resulting from or attributable in any way to any aspect ofthe performance ofthe Subcontractors' work under this agreement, regardless of whether or not such bodily injury, claim, damage, loss or expense is caused in whole or inpartby the negligence, gross negligence, or willful act ofSubcontractororfrom breach of this Agreement by Subcontractor. (NYSCEF#s 227, 228, § 4.7). For both contracts, the term "General Contractor" meant James Hunt and the term "Owner, Tenant, or Landlord" meant the Gap (NYSCEF#s 227, 228 at 1). "Subcontractor" meant Always First and QCC respectively (id). ForAlways First's contract, "Work" was defined as rock breaking (NYSCEF# 227, § 8.2). For QCC, "Work" referred to demolition (NYSCEF# 228, § 8.2). According to the building defendants, James Hunt's contractwith QCC included demolition drawings ofthe subject building alongwith demolition keynotes (NYSCEF # 386). One ofsuch keynotes on the sub-cellar floorplan stated that "abandoned base building utility lines 

### &piping at sub-cellar [were] to be removed in their entirety" (id at 1, n 22). Marco Realty's contract withAll-Rite contained no indemnification clause (NYSCEF # 230 at 1·3). ButAll·Rite's contract with its plumbing subcontractor Village Plumbing & Heating had an indemnificationprovision (id at 11). 

### TheAccident

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4 of 19 Plaintiffworked for Always First at the Project site and was primarily responsible for rock breaking work including "breakingthe foundation and going down into the earth" and "making square holes inthe ground" (NYSCEF # 174

- Butler tr at 35, 66). Plaintiffperformed such work in the subcellar ofthe subject building about three days a week (id at 132·133). On the day ofthe accident, November 22, 2016, plaintiffwas instructedby his supervisor at Always First, Wilfredo Morales, to continue ground-breakingwork in the sub-cellar (id at 73, 86·87). At the time, there were manypipes in the sub· cellar's ceiling (id at 117). At about 

### s:oo a.m. that morning, plaintiffwent down to the sub·cellar and saw a worker named David cutting a pipe with a sawzall inhis hand while standingon a ladder (id at 67, 118·120, 140·142, 166). Plaintiffrecalled that David was an African American male whorn plaintiffhad observed taking instructions from James Hunt severaltimes (id at 112, 127). Afterplaintiffsaw David cuttingthe pipe, David "immediately stopped what he was doing to let [plaintiff] set up and occupy that workspace" (id at 114). This left the pipe partially cut and hanging offa hanger inthe 12-feet high ceiling (id at 117·119, 142·143, 146, 171). Plaintiffthen startedworking on the floor ofthe sub-cellar, about six feet away from where Davidpreviously worked (id at 119, 166). Around 10 a.m. that day, plaintiffwas standing next to a hole thatAlways Firstwas excavating in the ground, waitingfor his turn to get into the hole (id at 92·93, 100). As he waited, a silverpipe ofabout eight inches wide and ten feet long fell on plaintiffand hit his lower head and neck (id at 95, 99). After beinghit, plaintifflooked up and saw that the pipe fell from "the slab" in the ceiling (id. at 124). Plaintiffrecognized that the pipe was the one that Davidpreviously worked on because the pipe appeared to be cut and "it [was] the only silverpipe that [was] up there in the ceiling" (id at 117·118, 166-167). Plaintiffthen called Morales to report the accident (id at 100). Morales in turn informed Always First's owner Fabio Salazar ofthis incident (NYSCEF # 217

- Salazar tr at 29). Salazartestified that Morales told him the accident happened during plaintiffs lunch break (id.). Plaintiffalleged that because ofthe accident, he suffered injuries in his cervical spine, lumber spine, andboth shoulders (NYSCEF # 275 at 7·12). During his deposition, plaintifftestified that David worked for James Hunt because he saw David taking directions from James Hunt (Butler tr at 112, 127). However, Hinton from James Hunt testified that he was not familiar with a man named David working at the Project (NYSCEF # 216

- Hinton tr at 10, 57). Hinton further testified that, as shown in the demolition drawings and demolition keynotes, QCC was contractually required to demolish and remove the subject pipe (id at 59·60, 66, BO; NYSCEF # 386 at 1, n 22). That said, Hinton recalled that on the day ofthe accident, there were no QCC employees working in the sub-cellar area (Hinton tr at 63·64). QCC's president Anthony LaPuma also asserted that QCC had no employees by the name ofDavid or any African American employees working onthe Project (NYSCEF # 326

- LaPuma aff, 

## ,r,r 5·6).

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5 of 19 When deposed, LaPuma testified that QCC had finished its work at the Project and left thejobsite on October 28, 2016, a monthbefore the accident took place (NYSCEF# 222- LaPuma tr at 26, 31). Conversely, Hinton averred that the presence ofthe subjectpipe at the site on the day ofthe accident indicated that QCC had not completed its work at the Project (Hinton tr at 81-82). Andbased on a document named GC Weekly Status Update, only 98% ofdemolition work was completed as ofNovember 11, 2016 (NYSCEF# 349). To this, LaPuma testified that ifa utilitypipe was "live" or "hot," QCC's workers could have been instructed not to touch it and leave it for an electricianto remove (LaPuma tr at 22:15-25, 23=13·24). 

### ProceduralHistorv Plaintiffcommenced this action in July 2017 (NYSCEF# 1) and filed an amended complaint in July 2018 (NYSCEF# 29). The amended complaint asserted a claim for negligence and claims under Labor Law§§ 200, 240 (1), and 241 (6) against all defendants (id). In James Hunt's answer to plaintiffs complaint, it asserted four cross claims against All-Rite (NYSCEF# 200 at 4-7), which are: (i) common law contribution, (ii) common law indemnification, (iii) contractual indemnification, and (iv) specific performance under contract. In addition, Marco Realty andJames Hunt brought a third-party action againstAlways First and QCC, asserting claims for contractual indemnification, breach ofcontract, common law contribution and indemnification (NYSCEF# 25). Plaintifffiled the note of issue onApril 5, 2023 (NYSCEF# 129). Inthe instant motions (MS 005-008), plaintiffmoves for partial summary judgment on his Labor Law § 240 (1) claim againstthe building defendants (MS 008); all defendants countermove for summaryjudgment dismissing all plaintiffs claims (MS 005-007). The building defendants move for summaryjudgment on their contractual indemnification claims against All-Rite, Always First, and QCC (MS 007). All-Rite, Always First, and QCC move for summaryjudgment dismissing all cross claims and third-party claims against them (MS 005-006). QCC's motion was filed as a cross motion to All 0Rite's summaryjudgment motion (NYSCEF#s 324· 326). All motions are opposed. DISCUSSION On a motion for summaryjudgment, evidence presented must be examined "in the light most favorable to the non-moving party" 

### (Schmidt v OneNew York Plaza Co. LLC, 153 AD3d 427, 428 [2017]). "It is well settledthat 'the proponent of a summaryjudgment motion must make a prima facie showingofentitlement to judgment as a matter oflaw, tendering sufficient evidence to demonstrate the absence ofany material issues offact'" 

### (Pullman vSilverman, 28 NY3d 1060, 1062 [2016], quoting

### Alvarez vProspectHosp., 68 NY2d 320, 324 [1986]). "Failure to make such showing requires denial ofthe motion, regardless ofthe sufficiency ofthe opposingpapers" ( 

### Winegrad vNew York Univ. Med Ctr., 64 NY2d 851, 853 [1985]). Ifthe movingparty makes this initial showing, the burden shifts to the opposingparty to rebut the prima facie showingbyproducing evidentiaryproofin

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6 of 19 admissible form sufficient to require a trial ofmaterialissues offact (

### Cabrera v Rodriguez, 72 AD3d 553, 553·554 [1st Dept 2010]). Hearsay evidence may be utilized to raise a question offact as long as it is not the only evidence submitted 

### (SumitomoMitsuiBanking Corp. v CreditSuisse, 89 AD3d 561, 564 [1st Dept 2011]). In the presence ofa genuine issue ofmaterial fact, a motion for summary judgment mustbe denied 

### (seeRotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; 

### Grossman vAmalgamatedHaus. Corp., 298 AD2d 224, 226 [1st Dept 2002]). Issues ofcredibility are for the fact finders to resolve, except in rare cases where testimony is "utterlyincredible as a matter oflaw" 

### (Price v Cityof New York, 172 AD3d 625, 629 [1st Dept 2019]). Here, as an initial matter, the building defendants rely on 

### Priceto argue that they are entitled to summaryjudgment dismissing all plaintiffs claims because plaintiffs testimony is incredible as a matter oflaw (id; NYSCEF# 197

- MS 007 at 3·6). Such reliance is misplaced. The alleged inconsistencies inplaintiffs testimony are not irreconcilable, nor are they utterlyincredible as a matter oflaw for being "manifestlyuntrue, physically impossible, or contrary to common experience" 

### (Price, 172 AD3d at 629). Therefore, the court declines to grant the building defendants' motion for summaryjudgment on this ground. Below, plaintiffs claims under Labor Law§§ 240 (1), 241 (6), 200, and common law negligence, as well as the building defendants' cross claims and third· partyclaims for contractual indemnification, breach ofcontract, and common law indemnification and contribution are addressed. 

### I. Plainti.frs Claims

### Against the BuildingDefendants 

### LaborLaw §240 (1) Claim (MS007. 008) InMS 008, plaintiffmoves for partial summaryjudgment in his favor onthe Labor Law§ 240 (1) claim (NYSCEF# 182). In MS 007, the building defendants move for summaryjudgment dismissing this claim (NYSCEF# 197). Both motions are accompanied by expert affidavits (NYSCEF# 183 -pltfs expert affand resume; NYSCEF#s 346, 34 7 defts' expert affand resume) and are opposedbythe other side (NYSCEF#s 261, 292). For the reasons below, plaintiffs motion for partial summaryjudgment on the Labor Law § 240 (1) claim (MS 008) is granted. Labor Law § 240 (1) imposes an absolute and nondelegable duty on owners and contractors to provide certain safety devices, such as "scaffolding,

... pulleys, braces, irons, ropes" to protect a person performinglabor work "in the erection, demolition, repairing, altering

. . . ofa building or structure" (Labor Law § 240 [1]). This statute was designed to protectworkers from "harm directly flowing from the application ofthe force ofgravityto an object or person" 

### (John v Baharestan1: 281 AD2d 114, 118 [1st Dept 2001]). Application ofLabor Law§ 240 (1) is limited to "specific gravity-related accidents [such] as falling from a height orbeing struck by a falling object that was improperly hoisted or inadequately secured" 

### (Ross v Curtis· PalmerHydro-Electric Co., 81 NY2d 494, 500·501 [1993] [internal quotation and citation omitted]). In otherwords, Labor Law§ 240 (1) does not apply unless the

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7 of 19 injury is "directly attributable to a riskposedby a physically significant elevation differential" 

### (Runner vNew YorkStockExch., Inc., 13 NY3d 599, 605 [2009]). To prevail on summaryjudgment in a Labor Law § 240 (1) "falling object" case, an injured worker must demonstrate that "atthe time the object fell, it either wasbeing hoisted or secured, or required securingfor the purposes ofthe undertaking" 

### (Fabrizi v 1095Ave. of Americas, L.L.C., 22 NY3d 658,663 [2014] [internal citations and quotations omitted]). Plaintiffmust also show that the object fell and injured the worker "because ofthe absence or inadequacy ofa safety device ofthe kind enumerated in the statute," such as ropes andpulleys (id; 

### seeNarducci vManhassetBay Assoc., 96 NY2d 259, 268-269 [2001]; 

### see Wl1inski v 334E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 9 [2011]). Here, plaintiffargues that the half-cut pipe hangingin the ceiling above the hole thatplaintiffwould excavate was an object that required securing for the purpose ofplaintiffs undertaking (NYSCEF# 182 at 5, NYSCEF# 292, 

## ,r,r 17, 19). Plaintiffrelies on his expert witness Kathleen V. Hopkins's affidavit to contend that the proximate cause ofplaintiffs injury was the lack ofsafety device such as stays andropes securing the pipe to the ceiling (NYSCEF# 182 at 5, NYSCEF# 183 at 5). Conversely, the building defendants assert that the subject pipe did not require securingbecause the pipe was part ofthe demolition project and "the provision ofa safety device to prevent the pipe from being removed would have precluded that work" (NYSCEF# 197 at 15; NYSCEF# 261, 

## ,r,r 24, 31; NYSCEF# 346, 

## ,r 11). As to the issue ofproximate cause, the building defendants claim that "it was not foreseeable that this pipe would have fallen out ofnowhere" (NYSCEF # 197 at 15). Their expert witness Bernard P. Lorenz opines that "[pllaintiffcannot show why the pipe fell or that it fell due to a lack ofa safety device" (NYSCEF # 346, 

### ,r 11). Additionally, the building defendants argue thatthe fall ofthe pipe did not involve a" 'physically significant' elevation differential" (NYSCEF # 197 at 15). In falling object cases, courts have consistently held that objects several feet above the work area ofinjured workers require securingfor purposes ofthe injured worker's undertaking 

### (see Diaz vRavehRealty, LLC, 182 AD3d 515 [1st Dept 2020] [fallingplywood from the ceilingwhenbeing stripped off, hittingplaintiffwho was working on the floor, was an object that required securing]; 

### Gonzalez vParamount Group, Inc., 157 AD3d 427, 428 [1st Dept 2018] [falling cinderblocks from above into hole below injured worker]; 

### seealso Stawski vPasternack, Popish 

### &Reif, 54AD3d 619, 620 [1st Dept 2008] [same]). Under these circumstances, the falling objects are also the proximate cause ofplaintiffs injury 

### (seeDiaz, 182 AD3d at 516 ["plaintiffs injurywas the foreseeable consequence ofthe risk ofperformingthe task without any safety device ofthe kind enumerated in the statute"]; 

### Humphrey vPark v'iew FifthAve.Assoc. LLC, 113 AD3d 558, 559 [1st Dept 2014] [finding thatplaintiffs "testimony demonstrates that the [fallingobject] came from somewhere above plaintiffand was a proximate cause ofhis injuries"]).

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8 of 19 Applying these standards, plaintiffhas establishedprima facie entitlement to summaryjudgment on the LaborLaw § 240 (1) claim. Plaintiffs testimony demonstrates that he was hit in his lower head and neck by a partially cutpipe falling from the 12·foot·high ceiling ofthe sub·cellarwhile standing underneath the pipe, awaitinghis turn to enter a hole on the ground to excavate it 

### (see Butler tr at 92, 95, 99, 171). Since plaintiffwas required to work underneath the half-cut pipe hanging onthe ceiling, the pipe required securingfor the purpose ofplaintiffs undertaking 

### (see Diaz, 182 AD3d at 515·516). The record indicates that the lack ofsecuringofthe pipe was the proximate cause ofplaintiffs injury, whichwas a foreseeable consequence ofthe risks of leaving the pipe unsecured and hanging on the ceiling 

### (see id; seealsoNYSCEF # 183 at 5 [expert witness Hopkins opines that the failure to secure the pipe is the proximate cause ofthe accident]). Although the building defendants argue that plaintiff"cannot show why the pipe fell" (NYSCEF# 346, 

## ,r 11), "plaintiffis not required to show the exact circumstances ofthe fall ofthe material" 

### (Salcedo v SustainableEnergy Options, 

### LLC, 190 AD3d 439,439 [1st Dept 2021]). In opposition, the building defendants fail to raise an issue offact precluding summaryjudgment inplaintiffs favor. The building defendants suggest that material inconsistencies exist inplaintiffs testimony that (i) he saw David cutting a pipe using a sawzall and that (ii) David stopped working whenplaintiffcame downstairs (NYSCEF # 261, 

## ,r 4). However, these events can happen inclose temporalproximity and are reconcilable. The building defendants also allege that plaintiffwas inconsistent in first stating that David's ladder was right bythe hole, and then testifying that the ladderwas less than six feet away from the hole 

### (id 

## ,r 6). These statements are not contradictory either. Other alleged inconsistencies raisedby the building defendants, such as plaintiffs recollection about David's co· worker 

### (id 

## ,r,r 5, 7, 8) are not relevant for plaintiffs Labor Law 240 (1) claim. The building defendants also questionplaintiffs statement that he was working when hitby the pipe (NYSCEF# 261, 

## ,r 19) because Salazar testified that he learned from Morales that plaintiffwas on lunch break when the accident happened (Salazar tr at 29:8-13). However, this hearsay evidence may notbe considered unless "it is not the only proofsubmitted," whichis not the case here 

### (SumitomoMitsuiBanking Corp., 89 AD3d at 564). And even ifplaintiffwere on lunchbreakwhen beinghit, he may still prevail on the Labor Law§ 240 (1) claim 

### (seeMorales v SpringScaffolding, Inc., 24 AD3d 42, 48 [1st Dept 2005] [under some circumstances, "Labor Law§ 240 [1] applies to the lunch break accident"]). The building defendants' contentionthat the half-cut pipe required no securingbecause it was part ofa demolition project is unpersuasive. While "imposing liability for failure to provide protective devices to prevent the

... objects from falling, when their fall was the goal ofthe work, would be illogical" ( 

### Wilinski, 18 NY3d at 11), this is only true where the falling objects "were themselves the target ofdemolition 

### when they fell' (id [emphasis added]), and the fall ofthe objects was "the goal ofthe demolition work 

### being performed' (Abad vBrookfield

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9 of 19 

### Properties OLP CO. LLC, 190 AD3d 471 [1st Dept 2021] [emphasis added]). Here, the pipe did not fall 

### when beingcutordemolished In fact, halfway through cutting the pipe, David stopped the work and left the pipe hanging on the ceiling for two hours without securingit 

### (see Butlertr at 67, 100, 114, 142·143). The goal ofthe demolition project was not for the pipe to fall two hours after it was partially cut. Thus, before the demolition work on the pipe was resumed, the pipe required securing under Labor Law§ 240 (1). Also unavailing is the building defendants' assertion that the fall ofthe pipe did not involve a physically significant elevation differential. In a similarpipe· falling case, the Court ofAppeals found that a physically significant elevation differential existed in a 4·foot fall "giventhe amount offorce the pipes were able to generate over their descent" ( 

### Wilinski, 18 NY3d 1, 2). Here, the pipe had fallen at least 4 feet before hittingplaintiffand was 8 inches wide and over 10 feet long, biggerthan the 4 inches wide and 10 feet tall metalpipes in 

### Wilinski(id at 5; Butler tr at 95, 171). Thus, the elevation differential in the case is not 

### de minimis. Accordingly, plaintiffs motion for partial summaryjudgment on his Labor Law § 240 (1) claim against the building defendants (MS 008) is granted. The branch ofthe building defendants' motion for summaryjudgment dismissing plaintiffs Labor Law§ 240 (1) claim (MS 007) is denied. 

### LaborLaw§241 (6) Claim (MS007) In MS 007, the building defendants move for summaryjudgment dismissing plaintiffs Labor Law§ 241 (6) claim (NYSCEF # 197 at 10·13). Plaintiffopposes (NYSCEF # 292, 

### ,r,r 43·53). Forthe reasons below, the building defendants' motion is denied to the extent that plaintiffs Labor Law§ 241 (6) claim is predicated on Industrial Code§ 23·3.3 (b) (3). Labor Law§ 241 (6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection for workers and to comply with specific safetyrules set forth in the Industrial Code 

### (see St. Louis v Town of N Elba, 16 NY3d 411, 413 [2011]). To establish liability under Labor Law§ 241 (6), "[t]he particular [Industrial Code] provision relied upon by a plaintiffmust mandate compliance with concrete specifications and not simply declare general safety standards" 

### (Misicki v Caradonna, 12 NY3d 511, 515 [2009]). Here, in support ofhis Labor Law § 241 (6) claim, plaintiffinitially alleges that the building defendants violated Industrial Code§§ 23·1.5, 23·1.7 (a) (1), 23· 2.1, 23·2.3, 23·2.6, and 23·3.3 (NYSCEF # 202

- verified bill ofparticulars, 

### ,r 5). Later, when opposingthe building defendants' summaryjudgment motion dismissing this claim, plaintiffbases his Labor Law§ 241 (6) claim only on Industrial Code §§ 23·3.3 (b) (3) and (c) (NYSCEF # 292, 

### ,r,r 43·53). In reply, the building defendants argue thatplaintiffhas abandoned his Labor Law 

### § 241 (6) claim except for the branch thatpredicates on Industrial Code§§ 23·3.3 (b) (3) and (c) (NYSCEF # 376, 

### ,r 37). To the extent that plaintifffails to address previously raised Industrial Code violations, he is deemed to have abandoned thatpart ofhis

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10 of 19 Labor Law § 241 (6) claim 

### (see Foley v Consol. Edison Co. of New York,. Inc., 84 AD3d 476, 478 [1st Dept 2011]; 

### seeKempisty v 246

### SpringSt., LLC, 92 AD3d 474, 475 [1st Dept 2012]). As to the remaining Code violation, itis undisputed that Industrial Code §§ 23·3.3 (b) (3) and (c)-which apply to demolition by hand-are sufficiently specific to support a Labor Law § 241 (6) claim 

### (see Ortega vEverestRealtyLLC, 84AD3d 542, 544 [1st Dept 2011D. Industrial Code§ 23·3.3 (b) (3) provides that "[w]alls, chimneys and other parts ofany
... structure shall notbe left unguarded in such condition that suchparts may fall" (12 NYCRR 23·3.3 [b] [3]). Here, viewingthe evidence in the light most favorable to the non-movingparty, plaintiffs testimony at least raises a question offact thatthe building defendants have violated Industrial Code § 23·3.3 (b) (3) by leavingthe partially cut pipe hanging on the ceiling in a conditionthat it may fall 

### (see Wilinski, 18 NY3d at 12 [denying defendants' motion for summaryjudgmentdismissing the Labor Law § 241 [6] claim predicated on Industrial Code § 23·3.3 [b] [3] where plaintiffwas hit by fallen metal pipes]; 

### seealso Ortega v EverestRealtyLLC, 84 AD3d 542, 545 [1st Dept 2011]). Turningto Industrial Code§ 23·3.3 (c), this section requires "continuing inspections against hazards

. . . createdbythe progress ofthe demolition work itself' (12 NYCRR 23·3.3 [c]). This provision only applies to hazards related to structural instability caused by the progress ofthe demolition, not hazards arising from the actual performance ofthe demolition work 

### (Smith vNew York CityHaus. Auth., 71 AD3d 985, 987 [2d Dept 2010] [Industrial Code§ 23·3.3 [c] does not require "inspections ofhow demolition would be performed"]). Here, as in 

### Smith, the subject pipe fell and injuredplaintiffdue to the actualperformance ofthe demolition work, not structural instability causedby the progress ofthe demolition 

### (see id; seeButler tr at 95, 140·141). Therefore, Industrial Code § 23·3.3 (c) does not apply to the facts ofthis case. As such, the branch ofthe building defendants' motion for summary judgment dismissingplaintiffs Labor Law§ 241 (6) claim (MS 007) is denied as to Industrial Code § 23·3.3 (b) (3) and otherwise granted. 

### LaborLaw ~200andNegligence Claim (MS007) Labor Law§ 200 "is a codification ofthe common-law duty imposed upon an owner or generalcontractor to provide construction site workers with a safe place to work" 

### (Singh vBlackDiamondsLLC, 24AD3d 138, 139 [1st Dept 2005] [internal citations omitted]). Liability under Labor Law § 200 maybe based either upon (i) the means and method by which the work is performed or (ii) actual or constructive notice ofa dangerous condition inherent in the premises 

### (seeMcLeod v Corp. of PresidingBishop of Church of Jesus Christof LatterDaySaints, 41 AD3d 796, 797 [2d Dept 2007]; 

### seealsoMendoza vHighpointAssoc., I4 LLC, 83 AD3d 1, 9 [1st Dept 2011]). A defendant has constructive notice ofa hazardous condition on property "when the condition is visible and apparent and has existed for a sufficient

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11 of 19 length oftime to afford the defendant a reasonable opportunity to discover and remedy it" 

### (Grif.in v PMV Realty, LLC, 181 AD3d 912, 913 [2d Dept 2020]). In the amended complaint, plaintiffasserts a Labor Law § 200 and common law negligence claim against the building defendants (NYSCEF # 205, 

### ,r,r 207, 210· 212,219). InMS 007, the building defendants move for summaryjudgment dismissing this claim arguing that they are not liable under Labor Law § 200 because they did not supervise the injuryproducingwork and they lacked actual or constructive notice ofthe alleged dangerous condition relating to the pipe (NYSCEF # 197 at 6·10). Plaintiffdisputes the latter point, asserting thatthe building defendants has failed to show that they lacked constructive notice ofthe hanging pipe because they have not produced evidence as to when the subject area was last inspectedprior to plaintiffs accident (NYSCEF# 292, 

### ,r,r 55·58). On a defense motion for summaryjudgment dismissing a Labor Law § 200 and common law negligence claim based on a dangerous premises condition, the moving defendants have the initialburden to establishthat they lacked constructive notice ofthe dangerous conditionby evidence ofwhen the site had last been inspected before the accident 

### (Spencer v Term FultonRealty Corp., 183 AD3d 441, 443 [1st Dept 2020]). For this purpose, "[m]ere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection ofthe area in question, is insufficient to establish a lack ofconstructive notice" 

### (Grif.in, 181 AD3d at 913). Here, the building defendants submit no evidence as to when the sub-cellar was last inspectedbefore the accident, thus failing to establish a lack of constructive notice ofthe subject pipe that had been hanging for two hours before it fell 

### (see Singh vManhattan FordLincoln, Inc., 188AD3d 506, 507 [1st Dept 2020] [defendants may have constructive notice on a dangerous condition that existed for two to three hours prior to plaintiffs accident]; 

### see Trinidad v Turner Constr. Co., 189 AD3d 565, 567 [1st Dept 2020] [denying summaryjudgment dismissing a Labor Law§ 200 claim because evidence as to when the site was last inspected is lacking]). Although Hinton testified that Hellbusch occasionally conducted walkthroughs ofthe site (Hinton tr at 23), 1 this is insufficient to establish a lack of constructive notice because it onlyrefers to James Hunt's general inspection practices not specific to the sub-cellar area 

### (see Griffin, 181 AD3d at 913). Further, while the building defendants assert that they were not notified ofany falling objects, and that there was no complaint about the subcellar (Butler tr at 168, 180; NYSCEF # 226, 

### ,r 12; NYSCEF# 376, 

## 1 47), this, atbest, indicates a lack ofactual notice, not constructive notice. Accordingly, the branch ofthe building defendants' motion for summary judgment dismissingplaintiffs Labor Law§ 200 and common law negligence claim (MS 007) is denied.

1 The building defendants cite to the wrongpage ofthis deposition transcript (NYSCEF # 376, 

### 1 48).

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12 of 19 II. Plainti:B.'s ClaimsAgainstAll-Rite, Always First, and QCC (MS 006, 006) In addition to his claims against the building defendants, plaintiffasserts the same set ofclaims-common law negligence, Labor Law §§ 200, 240 (1), and 241 (6)-against AU-Rite, Always First, and QCC (NYSCEF# 29 at 36·37). In MS 005 and 006, All-Rite, Always First, and QCC2 eachmoves to dismiss all ofplaintiffs claims against them (NYSCEF#s 166,233, 325). Plaintiffdoes not oppose All-Rite and Always First's motions (NYSCEF #s 306, 308), and therefore is deemed to have abandoned his claims against All-Rite andAlways First 

### (see Genovese v Gambino, 309 AD2d 832, 833 [2d Dept 2003] [a claim is deemed abandoned ifplaintiffdid not oppose to defendant's motion for summaryjudgment dismissing the claim]). Plaintiffnevertheless opposes QCC's cross motion for summaryjudgmentin its entirety, citing questions offact as to QCC's role in the demolition ofthe subjectpipe (NYSCEF# 358). The building defendants3 and Always First also oppose QCC's cross motion, asserting that it was untimely filed, lacking in merits, and should be denied due to questions offact (NYSCEF#s 339, 343). As a gating issue, the timeliness ofQCC's cross motion to AU-Rite's summary judgment motion is addressed first. Generally, courts deny untimely summary judgment motions without consideringthe merits unless good cause for delay is shown 

### (seeBrill v Cityof New York, 2 NY3d 648, 653 [2004]). As an exception, however, an untimely cross motion maybe considered on its merits without a showing ofgood cause, ifit addresses "nearlyidentical" issues in a timely filed summaryjudgment motion 

### (see Connor v

### A.A1A ConsultingEngineersPC, 213 AD3d 483, 484 [1st Dept 2023], 

### Ivto appealdismissedinpart, deniedinpart, 40 NY3d 1088 [2024]; 

### seealsoKershaw vHosp. for SpecialSurgery, 114AD3d 75, 87 [1st Dept 2013]). For this purpose, it is essential that the subject motion is correctly labeled as a cross motion 

### (see Kershaw, 114AD3d at 87). Here, QCC filed its cross motion on September 20, 2023 (NYSCEF# 325), five months after the note ofissue was filed onApril 5, 2023 (NYSCEF# 129). Without demonstrating any good cause for the delay, QCC claims that its untimely cross motion can be considered on the merits because it concerns "identical facts, issues and evidence" as raised in the summaryjudgment motions ofAll-Rite (NYSCEF# 325, 

## ,r 3). This is incorrect. "The problem

... is that [QCC's] motion, in addition to being untimely, is not a true cross motion" 

### (see Kershaw, 114AD3d at 87). A cross motion is one that is made "against the partywho made the original motion," namely, All-Rite 

### (see id at 87·88; 

### seeCPLR 2215). But here, QCC's "cross motion" contains nothing against All-Rite, and is entirely directed at plaintiffs amended complaint and the building defendants' third-party complaint. Thus, QCC's "cross

2 QCC did notfile its separate motion for summaryjudgment, itinstead filed a cross motion inAll· Rite's summaryjudgment motion (MS 006) (NYSCEF#s 325, 393). 3 The building defendants incorrectly filed their opposition to QCC's cross motion inMS 007, as opposed to MS 006.

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13 of 19 motion" is in fact an untimely summaryjudgmentmotion, which, without good cause shown, shouldbe denied without consideringthe merits 

### (Kershaw, 114AD3d at 88, 90 [declining to consider an untimely motion because "[a]llowing movants to file untimely, mislabeled 'cross motions' without good cause shown for the delay, affords them an unfair and improper advantage"]; 

### seeBrill, 2 NY3d at 653). In any event, many issues and arguments raised in QCC's motion are not "nearlyidentical" to those raisedbyAll-Rite in its timely motion. For example, QCC andAll·Rite's arguments on the contractual indemnification claim rest on entirely different contract terms (NYSCEF#s 228, 230). On the negligence claim, QCC's motion raises different factual issues than All·Rite's motion, relatingto QCC's duty to remove the specific pipe at issue as well as QCC's relationship with David (NYSCEF#s 233, 325). As such, QCC's motion is denied as untimely, without consideration ofits merits 

### (see Crawford v 14E. 11th St., LLC, 191 AD3d 461 [1st Dept 2021] [denying a mislabeled cross motion as untimely without consideringits merits as it did not raise issues nearly identical to those raised in a timely motion]; 

### seeRubino v 330 Madison Co., LLC, 150 AD3d 603,604 [1st Dept 2017] [same]). In sum, the branches ofAll·Rite andAlways First's summaryjudgment motions dismissingplaintiffs claims against them (MS 005, 006) are granted. QCC's untimely "cross motion" in MS 006 is denied. Plaintiffs claims for common law negligence, Labor Law§§ 200, 240 (1), and 241 (6) are dismissed against All· Rite and Always First, but not QCC. 

### III. The BuildingDefendants' Contractual Indemnification Claims The building defendants assert a claim for contractualindemnification against Always First and QCC in the third·partycomplaint (NYSCEF # 25). They also assert this claim as a cross claim against All-Rite in their answer to plaintiffs complaint (NYSCEF # 200 at 5). InMS 007, the building defendants move for summaryjudgment onthis claim against Always First, QCC, andAll-Rite (NYSCEF # 195). InMS 005 and 006, Always First, QCC, and All-Rite move for summaryjudgment dismissing this claim (NYSCEF#s 166, 233, 325). As discussed above, QCC's cross motion in MS 006 is rejected as untimely. The court now examines the motions made by the buildingdefendants, Always First, and All-Rite. 

### Cross ClaimAgainstAll-Rite {MS006. 007) In MS 006, All·Rite moves for summaryjudgment dismissing the building defendants' contractualindemnification claim against it (NYSCEF # 233, 

## ,r,r 13, 25· 28). The building defendants oppose MS 006 (NYSCEF# 285, 

## ,i,r 15·23) and inMS 007 move for summaryjudgment on this claim in their favor (NYSCEF# 197 at 20). Based on the record, the building defendants' cross claim for contractual indemnification against All-Rite fails. Contrary to the building defendants' allegation, the contract betweenAll·Rite andMarco Realty-or at least the copy of the contract the parties submitted-did not contain clauses for All-Rite to indemnify

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14 of 19 Marco Realty (NYSCEF#s 230, 287). The indemnificationprovisions that the building defendants cite are in fact from All·Rite's contract with one ofits subcontractors, Village Plumbing & Heating (NYSCEF# 230 at 11).4 Those indemnification provisions required that Village Plumbing & Heating indemnify All·Rite "in the event an action is undertaken against [All·Rite] for violations ofany governmental safetyrequirements by [Village Plumbing & Heating]" and are irrelevant to the building defendants' contractualindemnification claim againstAll· Rite (NYSCEF # 230 at 11).5 Therefore, the branch ofAll-Rite's motion for summaryjudgment dismissing the building defendants' contractual indemnification claim (MS 006) is granted. The building defendants' competing motion for summaryjudgment on this claim against All·Rite (MS 007) is denied. 

### Third·Partv ClaimAgainstAlwavsFirst (MS005, 007) InMS 007, the building defendants move for summaryjudgment against Always First on the contractual indemnification claim (NYSCEF# 197 at 18·19). Conversely, in MS 005, Always First moves for summaryjudgment dismissing this claim (NYSCEF # 166 at 4·6). Forthe reasons below, both motions are denied. The contract betweenAlways First and James Hunt (NYSCEF# 227) contains an indemnification provision, which provides that Always First shall indemnify James Hunt for claims asserted againstJames Hunt "by reason ofinjury to

... any person
... arising out ofor resulting from or attributable in any way to any aspect ofthe performance of [Always First's] Work under this Agreement," regardless ofwhether Always First is at fault for causing such injury or breaching this contractwith James Hunt (id.§ 4.7.2). This contract defined Always First's work thereunder to be rock breaking (id.§ 8.2). The building defendants argue thatplaintiffs injury arose out ofhis performance ofAlways First's work because plaintiffwas injured when working for Always First to excavate the hole (NYSCEF# 197 at 18, NYSCEF # 360, 

## ,r,r 19·24, 34, 35). The building defendants add that they are entitled to contractual indemnification because they are not at fault for causingthe accident (NYSCEF # 197 at 19; NYSCEF# 225, 

## ,r,r 3, 6·10; NYSCEF# 226, 

## ,r,r 5, 8-13). Always First counterargues that the indemnificationprovision at issue is void under General Obligations Law (GOL) § 5-322.1 because it indemnifies the building defendants for their own acts ofnegligence (NYSCEF # 295 at 4; NYSCEF # 166 at 5). Further, "just because the pipe happened to fall on an Always First worker does not mean the accident arose out ofAlways First's work" (NYSCEF# 295 at 5; NYSCEF # 166 at 5). Always First also claims, without citing any

4 All-Rite's purchase order and contract with Village Plumbing & Heating are pages 6 to 14 of NYSCEF Doc. No. 230. All-Rite's contract with Marco Realty are pages 1 to 3 ofthe same document. 5 Even assuming that these provisions could be read intoAll-Rite's contract with Marco Realty, the building defendants have not submitted any evidence thatAll·Rite violated any governmental safety requirements when working at the site.

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15 of 19 evidence, that "the accident was entirely attributable to [James Hunt's] own acts and omissions," as James Hunt was responsible for overhead protection and supervising other trades' work (NYSCEF# 295 at 5; NYSCEF# 166 at 5·6). As a preliminary matter, amongthe building defendants, onlyJames Hunt canbe entitled to summaryjudgment onthe contractualindemnification claim against Always First, because James Hunt is the only indemnitee under its contract with Always First (NYSCEF# 227; 

### seeHerrero v 2146NostrandAve.Assoc., LLC, 193 AD3d 421, 424 [1st Dept 2021]). GOL § 5-322.1 voids any contract clauses that indemnify the owner and general contractor for their own acts ofnegligence (General Obligations Law § 5· 322.1 [ID. Ifthe owner or general contractor is partially negligent, a contract clause indemnifyingthem is void under GOL § 5-322.1, unless it contains savings language that provides for partial indemnity 

### (seeItriBrick& 

### Concrete Corp. v Aetna Gas. & 

### Sur. Co., 89 NY2d 786, 790, 794-796 [1997]). In contrast, ifthe owner or general contractor is not actively negligent, an indemnificationprovision without a savings clause does not violate GOL § 5-322.1 even ifit contemplates full indemnity 

### (Rhodes-Evans v 111 Chelsea LLC, 44AD3d 430,434 [1st Dept 2007]). Here, the indemnificationclause betweenAlways First andJames Hunt contains no savings language and would have indemnified James Hunt even ifit were negligent (NYSCEF# 227, § 4.7.2). Unlike 

### Rhodes-Evans, the record here does not show that James Hunt is free ofnegligence as a matter oflaw 

### (seeRhodes· Evans, 44AD3d at 434). Specifically, questions offact exist as to whetherJames Hunt had constructive notice ofthe pipe and whether James Hunt employed David who cut the pipe 

### (seeButler tr at 67, 100, 112, 120, 127). IfJames Hunt is found to be negligentin any degree, its indemnity clause with Always First would be void under GOL § 5-322.1 

### (seeItriBrick& 

### Concrete Corp., 89 NY2d at 794-796). Given these triable issues offact, James Hunt's motion for summaryjudgment on this claim (MS 007) is denied. That said, the court also rejects Always First's allegation that James Hunt was wholly at fault as a matter oflaw because Always First fails to cite any evidence for this assertion. As such, Always First's motion for summary judgment (MS 005) is likewise denied as to the contractual indemnification claim. 

### Third·Partv ClaimAgainst QCC(MS007) In MS 007, the building defendants move for summaryjudgment on their contractual indemnification claim against QCC (NYSCEF# 197 at 17). QCC opposes (NYSCEF# 322). James Hunt's contract with QCC required QCC to indemnify James Hunt for (i) claims "arisingout of or in connection with the Work orthis Agreement or the breach by [QCC] ofany term or condition ofthis Agreement" (NYSCEF# 228, § 4.7.1) and (ii) claims asserted against James Hunt "by reason ofinjury to

... anyperson
... arising out of or resulting from or attributable in any way to any aspect ofthe performance of [QCC's] Work under this Agreement" (id§ 4.7.2). This contract defined QCC's work thereunder to be demolition (id, preamble,§ 8.2).

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16 of 19 The building defendants argue that QCC was contractuallyrequired to indemnify them because QCC was responsible for removing the subject pipe (NYSCEF # 382, ,i,i 11·13, 32, 33, 36, 37).6 Theypoint to (i) Hinton's testimony affirming that QCC was responsible for removing the pipe that injuredplaintiff (Hinton tr at 59), and (ii) the demolition keynote that was allegedlypart ofQCC's contract, which provided that "abandonedbase building utility lines & piping at sub·cellar [were] to be removed in their entirety" (NYSCEF # 386, at 1, n 22). In opposition, QCC argues that plaintiffs claim did not arise from QCC's work because no QCC employees were on site on the day ofthe accident (NYSCEF # 322, ,i 4 [2]). QCC adds that the last day ofits work at the Project site was October 28, 2016 (NYSCEF # 326, 

### ii 7; NYSCEF# 157 at 6·7

- QCC's worksheet and invoice). QCC points out that Hinton from James Hunt acknowledged that to the best ofhis knowledge, there were no QCC employees working in the sub·cellar on the day ofthe accident (Hinton tr at 63·64). Applying the legalprinciples discussed above regardingAlways First's liability for contractual indemnity, the court denies the building defendants' summaryjudgment on the contractual indemnification claim against QCC. Questions offact exist as to whetherplaintiffs claim arose out ofQCC's work because while the building defendants rely on the demolition keynote to argue that QCC was responsible for removing the subjectpipe, theyprovide no evidence that QCC performed the work that injuredplaintiffor was even on site that day. QCC's witness LaPuma testified that QCC had finished its work on October 28, 2016, about a month before the accident (LaPuma tr at 31:8-19). And James Hunt's witness, Hinton, confirmed that on the day ofthe accident, no QCC employees worked inthe sub-cellar (Hinton tr at 63·64). Suchrecord at least creates a question offact as to whether plaintiffs injury arose out ofQCC's work. The building defendants apparently suggest that because QCC was once designated to remove the pipe, it is contractually required to indemnify James Hunt regardless ofwhether it performed the injury·producing work (NYSCEF # 382, ,i 11). This argument is unpersuasive. The indemnification clause at issue covers claims "arising out of

... the Work

... or the breachby [QCC] of

... this Agreement" (NYSCEF# 228, § 4.7.1). Readingthe clause as a whole, this provision requires that QCC indemnify James Hunt for QCC's actions or omissions-not someone else's. Thus, assuming that certain work initially designated to QCC was later performed by another trade, QCC is not required under this contract to indemnify James Hunt for claims arising out ofthe other trade's performance of work. Accordingly, the branch ofthe buildingdefendants' summaryjudgment motion on the contractual indemnification claim against QCC (MS 007) is denied.

6 The building defendants' argument based onJames Hunt'sjob detail report dated January 6, 2021 is rejected because the building defendants never include any citation for this report, despite referring to itin their briefand expert's affidavit (NYSCEF # 382, 

### ,r 37; NYSCEF# 383, ,i 18).

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17 of 19 

### IV. The BuildingDefendants' Remaining Claims 

### ThirdPartv ClaimsAgainstAlwavsFirstandQCC(MS005, 006) In their third·party complaint, the building defendants raise claims for breach ofcontract as well as common law indemnification and contribution again"st Always First and QCC (NYSCEF# 25). BothAlways First and QCC now move for summaryjudgment dismissing these claims (NYSCEF#s 166, 325). The building defendants oppose (NYSCEF#s 274, 343). Initially, QCC's "cross motion" in MS 006 has been denied as untimely. InMS 005, Always First does not address the building defendants' breach ofcontract claim (NYSCEF # 166). Thus, the building defendants claims' against QCC and their claim for breach ofcontract against Always First are not dismissed. Next, the court examines the building defendants' claims for common law indemnification and contribution against Always First. In MS 005, Always First argues that the building defendants cannot maintain common law claims against it because plaintiffdid not sustain a grave injury (NYSCEF # 166 at 2·4). In opposition, the building defendants contend that questions offact exist as to whether plaintiffs injury constitutes a grave injury and allege that they are free from negligence and therefore canbe entitled to common law indemnification (NYSCEF# 274, 

### ilil 6-10). Unless a worker sustains "grave injury," his or her employer cannot be held liable to third parties for common law indemnification and contribution claims on the worker's injuries within the scope ofhis or her employment 

### (see Clavin v CAP Equip. LeasingCorp., 156AD3d 404, 404 [1st Dept 2017]). For this purpose, "[i]njuries qualifying as grave are narrowly defined in Workers Compensation Law § 11," which means "death, permanent andtotal loss ofuse or amputation ofan arm, leg, hand or foot, loss ofmultiple fingers, loss ofmultiple toes, paraplegia or quadriplegia, total andpermanentblindness, total and permanent deafness, loss of nose, loss ofear, permanent and severe facial disfigurement, loss ofan index finger or an acquired injury to the brain causedby an externalphysical force resulting in permanent total disability" 

### (Castro v United ContainerMach. Grou]}; lnc., 96 NY2d 398, 401 [2001]; Workers' Compensation Law§ 11). Here, both the building defendants and Always First point to plaintiffs verified bill ofparticulars to argue whether the injuries at issue qualify as grave (NYSCEF # 275 at 7·12). The bill ofparticulars shows that plaintiffwas injured on shoulders, lumbar spine, and cervical spine (id). These are not among the grave injuries enumerated in Workers' Compensation Law§ 11 

### (see Eldoh vAstoria Generating Co., 

### L.P., 24 Misc 3d 1214W [Sup Ct 2007], 

### affdsubnom. Eldoh v Astoria Generating Co., LP, 57 AD3d 603 [2d Dept 2008] [injuries to the cervical spine and shoulders do not constitute grave injuries]). Therefore, based on the record, plaintiffdid not suffer a grave injury from the accident and thus Always First is entitled to summaryjudgment dismissing third·party claims for common

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18 of 19 law indemnification and contribution against it 

### (see Hernandez v SeadyckRealty Co., LLC, 161 AD3d 711, 712 [1st Dept 2018]). Accordingly, that branch ofAlways First's motion for summaryjudgment (MS 005) is granted. 

### Cross ClaimsAgainstAll-Rite (MS006) The building defendants assert four cross claims against All·Rite: (i) common law contribution, (ii) common law indemnification, (iii) contractual indemnification, and (iv) specific performance under contract (NYSCEF # 200 at 4·7). In MS 006, All· Rite moves to dismiss all cross claims against it (NYSCEF # 233). The building defendants oppose on the common law indemnification and contribution claims and the contractual indemnificationclaim (NYSCEF # 285). Since the building defendants have not opposed on their claim for specific performance, they are deemed to have abandoned that claim 

### (see Genovese, 309 AD2d at 833). Further, as discussed above, the building defendants' contractual indemnification claim against All·Rite fails. Now at issue are the building defendants' common law indemnification and contribution claims against All·Rite. Both common law indemnification and contribution claims are predicated on a :finding ofnegligence on the proposed indemnitor or contributor 

### (see Priestlyv Monte.ioreMed Ctr./EinsteinMed Ctr., 10 AD3d 493, 495 [1st Dept 2004] [a common law indemnity claim requires proofofsome negligence on the part ofthe indemnitor]; 

### seeSommer v Fed Signal Corp., 79 NY2d 540, 550 [1992] [the availability ofa contribution claim depends on the threshold issue ofnegligence]). To prevail on a negligence claim, it must be shown that there is "(1) a duty owedby the defendant to the plaintiff, (2) a breach thereof, and (3) injuryproximately resulting therefrom" 

### (Pasternack v

### Lah. Corp. of Am. 

### Holdings, 27 NY3d 817, 825 [2016]). Ultimately, "the law draws a line betweenremote possibilities and those that are reasonably foreseeable" 

### (Lee vNew York CityHaus. Auth., 25 AD3d 214, 217 [1st Dept 2005], citing 

### DiPonzio vRiordan, 89 NY2d 578, 583 [1997]). Underthese standards, All·Rite has established prima facie entitlementto summaryjudgment dismissing the building defendants' common law indemnification and contribution claims against it. Both claims are predicatedon All-Rite's active negligence, however, All-Rite had finished its work on the project site four months before the accident (Zysman tr at 29, 57). Any causallink between All-Rite's work and plaintiffs injuryis tenuous. The November 2016 accident is a remote possibility not reasonably foreseeable to All-Rite when it completed its work in July 2016. As such, All-Rite was not actively negligent for the incident. Accordingly, the building defendants' claims against All·Rite for common law indemnification and contribution are dismissed 

### (see Higgins v 

### TST375

### Hudson, L.L.C., 179AD3d 508, 511 [1st Dept 2020] [dismissing common law indemnification and contribution claims againstparties that were free from negligence]). That branch ofAll-Rite's motion for summaryjudgment (MS 006) is granted.

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19 of 19 

### CONCLUSION For the foregoing reasons, it is hereby ORDERED that defendant All·Rite's motion for summaryjudgment dismissing all claims and cross claims against it (MS 006) is granted in its entirety; and it is further ORDERED that plaintiffLarone Butler's motion for partial summary judgment onthe Labor Law § 240 (1) claim is granted only as against defendants Marco Realty Associates, L.P., Old Navy, LLC, the Gap, Inc., and James Hunt Construction Co., Inc. (the Building Defendants) (MS 008); and it is further ORDERED that the BuildingDefendants' motion for summaryjudgment (MS 007) is denied in all respects except for plaintiffs Labor Law § 241 (6) claim predicated on Industrial Codes other than§ 23·3.3 (b)(3); and it is further ORDERED that defendant Always First's motion for summaryjudgment (MS 005) is granted to the extent ofdismissingplaintiffs complaint as against it and dismissing the Building Defendants' common law indemnification and contribution claims as against it, and Always First's motion (MS 005) is otherwise denied as to the BuildingDefendants' contractual indemnification claim as against it; and it is further ORDERED that defendant QCC Maintenance Inc.'s untimely summary judgment motion, incorrectly labeled as cross motion in MS 006, is denied without consideration ofits merits, and no claims or third·party claims against QCC are dismissed.

04/10/2024 DATE

CHECK ONE:

APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED
GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN -..,~ 

### 1/ MARGAR.ANJ.s-.-c-. -,

NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 

# 0 OTHER**□** REFERENCE

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