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.
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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 REAL TY 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 

156776/2017 BUTLER, LARONE vs. MARCO REALTY ASSOCIATES, L.P. 

Motion No. 005 006 007 008 

Page 1 of 19 

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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 

Plaintiff Larone Butler, an employee of defendant 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 summary judgment 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 of contract, 

and common law indemnification and contribution. All motions are opposed. 

BACKGROUND 

Plaintiff Larone 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' Relationships and Responsibilities 

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 the jobsite overlapped in time (id at 25). 

Before James Hunt and its subcontractors started working on the Project, 

Macro Realty-the owner and landlord of the premises-engaged All-Rite as 

general contractor to "prep □ the shell of the 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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Motion No. 005 006 007 008 

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repairs (Hinton tr at 30; Zysman tr at 17). All· Rite subcontracted with other trades 

to "safe off electric" and "safe off all the plumbing'' (Zysman tr at 17, 21). All-Rite 

worked at the Project from the beginning of 2016 to July 2016 (id at 16, 29). During 

that period, a partner at All· Rite, Gregg Zysman, would visit the Project site about 

once a week to check any safety or quality issues (id at 22). 

Contractual Indemnification Clauses 

James Hunt's contracts with Always 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 . . . being filed or asserted against General 

Contractor, Owner, Tenant, Landlord, the Premises, 

Building, Property or Work, arising out of or in connection 

with the Work of this Agreement or the breach by 

Subcontractor of any term or condition of this 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 of any person, including, but not limited to, 

employees of Subcontractor and/ or (ii) loss of or damage to 

property arising out of or resulting from or attributable in 

any way to any aspect of the performance of the 

Subcontractors' work under this agreement, regardless of 

whether or not such bodily injury, claim, damage, loss or 

expense is caused in whole or in part by the negligence, gross 

negligence, or willful act of Subcontractor or from 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). For Always 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 contract with QCC included demolition drawings of the 

subject building along with demolition keynotes (NYSCEF # 386). One of such 

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 with All-Rite contained no indemnification clause 

(NYSCEF # 230 at 1 ·3). But All·Rite's contract with its plumbing subcontractor 

Village Plumbing & Heating had an indemnification provision (id at 11). 

The Accident 

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Plaintiff worked for Always First at the Project site and was primarily 

responsible for rock breaking work including "breaking the foundation and going 

down into the earth" and "making square holes in the ground" (NYSCEF # 17 4 -

Butler tr at 35, 66). Plaintiff performed such work in the subcellar of the subject 

building about three days a week (id at 132·133). 

On the day of the accident, November 22, 2016, plaintiff was instructed by 

his supervisor at Always First, Wilfredo Morales, to continue ground-breaking work 

in the sub-cellar (id at 73, 86·87). At the time, there were many pipes in the sub· 

cellar's ceiling (id at 117). At about s:oo a.m. that morning, plaintiff went down to 

the sub·cellar and saw a worker named David cutting a pipe with a sawzall in his 

hand while standing on a ladder (id at 67, 118·120, 140·142, 166). Plaintiff recalled 

that David was an African American male w horn plaintiff had observed taking 

instructions from James Hunt several times (id at 112, 127). After plaintiff saw 

David cutting the 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 off a hanger in the 12-feet high ceiling (id at 117·119, 142·143, 

146, 171). Plaintiff then started working on the floor of the sub-cellar, about six feet 

away from where David previously worked (id at 119, 166). 

Around 10 a.m. that day, plaintiff was standing next to a hole that Always 

First was excavating in the ground, waiting for his turn to get into the hole (id at 

92·93, 100). As he waited, a silver pipe of about eight inches wide and ten feet long 

fell on plaintiff and hit his lower head and neck (id at 95, 99). After being hit, 

plaintiff looked up and saw that the pipe fell from "the slab" in the ceiling (id. at 

124). Plaintiff recognized that the pipe was the one that David previously worked on 

because the pipe appeared to be cut and "it [was] the only silver pipe that [was] up 

there in the ceiling" (id at 117·118, 166-167). Plaintiff then called Morales to report 

the accident (id at 100). Morales in turn informed Always First's owner Fabio 

Salazar of this incident (NYSCEF # 217 - Salazar tr at 29). Salazar testified that 

Morales told him the accident happened during plaintiffs lunch break (id.). 

Plaintiff alleged that because of the accident, he suffered injuries in his 

cervical spine, lumber spine, and both shoulders (NYSCEF # 275 at 7·12). During 

his deposition, plaintiff testified 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 of the 

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 of David or any African American employees working on the Project 

(NYSCEF # 326 - LaPuma aff, ,r,r 5·6). 

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When deposed, LaPuma testified that QCC had finished its work at the 

Project and left the jobsite on October 28, 2016, a month before the accident took 

place (NYSCEF # 222- LaPuma tr at 26, 31). Conversely, Hinton averred that the 

presence of the subject pipe at the site on the day of the accident indicated that 

QCC had not completed its work at the Project (Hinton tr at 81-82). And based on a 

document named GC Weekly Status Update, only 98% of demolition work was 

completed as of November 11, 2016 (NYSCEF # 349). To this, LaPuma testified that 

if a utility pipe was "live" or "hot," QCC's workers could have been instructed not to 

touch it and leave it for an electrician to remove (LaPuma tr at 22:15-25, 23=13·24). 

Procedural Historv 

Plaintiff commenced 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 and James Hunt brought a third-party action against Always First and 

QCC, asserting claims for contractual indemnification, breach of contract, common 

law contribution and indemnification (NYSCEF # 25). Plaintiff filed the note of 

issue on April 5, 2023 (NYSCEF # 129). 

In the instant motions (MS 005-008), plaintiff moves for partial summary 

judgment on his Labor Law § 240 (1) claim against the building defendants (MS 

008); all defendants countermove for summary judgment dismissing all plaintiffs 

claims (MS 005-007). The building defendants move for summary judgment on their 

contractual indemnification claims against All-Rite, Always First, and QCC (MS 

007). All-Rite, Always First, and QCC move for summary judgment 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 summary judgment motion (NYSCEF #s 324· 

326). All motions are opposed. 

DISCUSSION 

On a motion for summary judgment, evidence presented must be examined 

"in the light most favorable to the non-moving party" (Schmidt v One New York 

Plaza Co. LLC, 153 AD3d 427, 428 [2017]). "It is well settled that 'the proponent of 

a summary judgment motion must make a prima facie showing of entitlement to 

judgment as a matter oflaw, tendering sufficient evidence to demonstrate the 

absence of any material issues of fact'" (Pullman v Silverman, 28 NY3d 1060, 1062 

[2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "Failure to 

make such showing requires denial of the motion, regardless of the sufficiency of the 

opposing papers" ( Winegrad v New York Univ. Med Ctr., 64 NY2d 851, 853 [1985]). 

If the moving party makes this initial showing, the burden shifts to the 

opposing party to rebut the prima facie showing by producing evidentiary proof in 

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admissible form sufficient to require a trial of material issues of fact ( Cabrera v 

Rodriguez, 72 AD3d 553, 553·554 [1st Dept 2010]). Hearsay evidence may be 

utilized to raise a question of fact as long as it is not the only evidence submitted 

(Sumitomo Mitsui Banking Corp. v Credit Suisse, 89 AD3d 561, 564 [1st Dept 

2011]). In the presence of a genuine issue of material fact, a motion for summary 

judgment must be denied (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 

[1978]; Grossman v Amalgamated Haus. Corp., 298 AD2d 224, 226 [1st Dept 2002]). 

Issues of credibility are for the fact finders to resolve, except in rare cases where 

testimony is "utterly incredible as a matter of law" (Price v City of New York, 172 

AD3d 625, 629 [1st Dept 2019]). 

Here, as an initial matter, the building defendants rely on Price to argue that 

they are entitled to summary judgment dismissing all plaintiffs claims because 

plaintiffs testimony is incredible as a matter of law (id; NYSCEF # 197 - MS 007 

at 3·6). Such reliance is misplaced. The alleged inconsistencies in plaintiffs 

testimony are not irreconcilable, nor are they utterly incredible as a matter of law 

for being "manifestly untrue, physically impossible, or contrary to common 

experience" (Price, 172 AD3d at 629). Therefore, the court declines to grant the 

building defendants' motion for summary judgment 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· 

party claims for contractual indemnification, breach of contract, and common law 

indemnification and contribution are addressed. 

I. Plainti.frs Claims Against the Building Defendants 

Labor Law §240 (1) Claim (MS 007. 008) 

In MS 008, plaintiff moves for partial summary judgment in his favor on the 

Labor Law§ 240 (1) claim (NYSCEF # 182). In MS 007, the building defendants 

move for summary judgment dismissing this claim (NYSCEF # 197). Both motions 

are accompanied by expert affidavits (NYSCEF # 183 -pltfs expert aff and resume; 

NYSCEF #s 346, 34 7 defts' expert aff and resume) and are opposed by the other 

side (NYSCEF #s 261, 292). For the reasons below, plaintiffs motion for partial 

summary judgment 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 performing labor work "in the erection, 

demolition, repairing, altering . . . of a building or structure" (Labor Law § 240 [1]). 

This statute was designed to protect workers from "harm directly flowing from the 

application of the force of gravity to an object or person" (John v Baharestan1: 281 

AD2d 114, 118 [1st Dept 2001]). Application of Labor Law§ 240 (1) is limited to 

"specific gravity-related accidents [such] as falling from a height or being struck by 

a falling object that was improperly hoisted or inadequately secured" (Ross v Curtis· 

Palmer Hydro-Electric Co., 81 NY2d 494, 500·501 [1993] [internal quotation and 

citation omitted]). In other words, Labor Law§ 240 (1) does not apply unless the 

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injury is "directly attributable to a risk posed by a physically significant elevation 

differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 605 [2009]). 

To prevail on summary judgment in a Labor Law § 240 (1) "falling object" 

case, an injured worker must demonstrate that "at the time the object fell, it either 

was being hoisted or secured, or required securing for the purposes of the 

undertaking" (Fabrizi v 1095Ave. of Americas, L.L.C., 22 NY3d 658,663 [2014] 

[internal citations and quotations omitted]). Plaintiff must also show that the object 

fell and injured the worker "because of the absence or inadequacy of a safety device 

of the kind enumerated in the statute," such as ropes and pulleys (id; see Narducci 

v Manhasset Bay Assoc., 96 NY2d 259, 268-269 [2001]; see Wl1inski v 334 E. 92nd 

Hous. Dev. Fund Corp., 18 NY3d 1, 9 [2011]). 

Here, plaintiff argues that the half-cut pipe hanging in the ceiling above the 

hole that plaintiff would excavate was an object that required securing for the 

purpose of plaintiffs undertaking (NYSCEF # 182 at 5, NYSCEF # 292, ,r,r 17, 19). 

Plaintiff relies on his expert witness Kathleen V. Hopkins's affidavit to contend that 

the proximate cause of plaintiffs injury was the lack of safety device such as stays 

and ropes 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 securing because the pipe was part of the demolition project and "the 

provision of a 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 of proximate cause, the building defendants claim that "it 

was not foreseeable that this pipe would have fallen out of nowhere" (NYSCEF # 

197 at 15). Their expert witness Bernard P. Lorenz opines that "[pllaintiff cannot 

show why the pipe fell or that it fell due to a lack of a safety device" (NYSCEF # 

346, ,r 11). Additionally, the building defendants argue that the fall of the 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 of injured workers require securing for purposes of the injured 

worker's undertaking (see Diaz v Raveh Realty, LLC, 182 AD3d 515 [1st Dept 2020] 

[falling plywood from the ceiling when being stripped off, hitting plaintiff who was 

working on the floor, was an object that required securing]; Gonzalez v Paramount 

Group, Inc., 157 AD3d 427, 428 [1st Dept 2018] [falling cinderblocks from above into 

hole below injured worker]; see also Stawski v Pasternack, Popish & Reif, 54 AD3d 

619, 620 [1st Dept 2008] [same]). Under these circumstances, the falling objects are 

also the proximate cause of plaintiffs injury (see Diaz, 182 AD3d at 516 ["plaintiffs 

injury was the foreseeable consequence of the risk of performing the task without 

any safety device of the kind enumerated in the statute"]; Humphrey v Park v'iew 

Fifth Ave. Assoc. LLC, 113 AD3d 558, 559 [1st Dept 2014] [finding that plaintiffs 

"testimony demonstrates that the [falling object] came from somewhere above 

plaintiff and was a proximate cause of his injuries"]). 

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Applying these standards, plaintiff has established prima facie entitlement to 

summary judgment on the Labor Law § 240 (1) claim. Plaintiffs testimony 

demonstrates that he was hit in his lower head and neck by a partially cut pipe 

falling from the 12·foot·high ceiling of the sub·cellar while standing underneath the 

pipe, awaiting his turn to enter a hole on the ground to excavate it (see Butler tr at 

92, 95, 99, 171). Since plaintiff was required to work underneath the half-cut pipe 

hanging on the ceiling, the pipe required securing for the purpose of plaintiffs 

undertaking (see Diaz, 182 AD3d at 515·516). 

The record indicates that the lack of securing of the pipe was the proximate 

cause of plaintiffs injury, which was a foreseeable consequence of the risks of 

leaving the pipe unsecured and hanging on the ceiling (see id; see also NYSCEF # 

183 at 5 [expert witness Hopkins opines that the failure to secure the pipe is the 

proximate cause of the accident]). Although the building defendants argue that 

plaintiff"cannot show why the pipe fell" (NYSCEF# 346, ,r 11), "plaintiff is not 

required to show the exact circumstances of the fall of the material" (Salcedo v 

Sustainable Energy Options, LLC, 190 AD3d 439,439 [1st Dept 2021]). 

In opposition, the building defendants fail to raise an issue of fact precluding 

summary judgment in plaintiffs favor. The building defendants suggest that 

material inconsistencies exist in plaintiffs testimony that (i) he saw David cutting a 

pipe using a sawzall and that (ii) David stopped working when plaintiff came 

downstairs (NYSCEF # 261, ,r 4). However, these events can happen in close 

temporal proximity and are reconcilable. The building defendants also allege that 

plaintiff was inconsistent in first stating that David's ladder was right by the hole, 

and then testifying that the ladder was less than six feet away from the hole (id ,r 

6). These statements are not contradictory either. Other alleged inconsistencies 

raised by 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 question plaintiffs statement that he was 

working when hit by the pipe (NYSCEF # 261, ,r 19) because Salazar testified that 

he learned from Morales that plaintiff was on lunch break when the accident 

happened (Salazar tr at 29:8-13). However, this hearsay evidence may not be 

considered unless "it is not the only proof submitted," which is not the case here 

(Sumitomo Mitsui Banking Corp., 89 AD3d at 564). And even if plaintiff were on 

lunch break when being hit, he may still prevail on the Labor Law§ 240 (1) claim 

(see Morales v Spring Scaffolding, Inc., 24 AD3d 42, 48 [1st Dept 2005] [under some 

circumstances, "Labor Law§ 240 [1] applies to the lunch break accident"]). 

The building defendants' contention that the half-cut pipe required no 

securing because it was part of a 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 of the work, would be illogical" ( Wilinski, 

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

target of demolition when they fell' (id [emphasis added]), and the fall of the 

objects was "the goal of the demolition work being performed' (Abad v Brookfield 

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Properties OLP CO. LLC, 190 AD3d 471 [1st Dept 2021] [emphasis added]). Here, 

the pipe did not fall when being cut or demolished In fact, halfway through cutting 

the pipe, David stopped the work and left the pipe hanging on the ceiling for two 

hours without securing it (see Butler tr at 67, 100, 114, 142·143). The goal of the 

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 of the pipe 

did not involve a physically significant elevation differential. In a similar pipe· 

falling case, the Court of Appeals found that a physically significant elevation 

differential existed in a 4·foot fall "given the amount of force the pipes were able to 

generate over their descent" ( Wilinski, 18 NY3d 1, 2). Here, the pipe had fallen at 

least 4 feet before hitting plaintiff and was 8 inches wide and over 10 feet long, 

bigger than the 4 inches wide and 10 feet tall metal pipes 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 summary judgment on his Labor 

Law § 240 (1) claim against the building defendants (MS 008) is granted. The 

branch of the building defendants' motion for summary judgment dismissing 

plaintiffs Labor Law§ 240 (1) claim (MS 007) is denied. 

Labor Law §241 (6) Claim (MS 007) 

In MS 007, the building defendants move for summary judgment dismissing 

plaintiffs Labor Law§ 241 (6) claim (NYSCEF # 197 at 10·13). Plaintiff opposes 

(NYSCEF # 292, ,r,r 43·53). For the 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 safety rules 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 plaintiff must mandate 

compliance with concrete specifications and not simply declare general safety 

standards" (Misicki v Caradonna, 12 NY3d 511, 515 [2009]). 

Here, in support of his Labor Law § 241 (6) claim, plaintiff initially 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 of particulars, ,r 5). 

Later, when opposing the building defendants' summary judgment motion 

dismissing this claim, plaintiff bases 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 that plaintiff has abandoned his Labor Law § 241 (6) 

claim except for the branch that predicates on Industrial Code§§ 23·3.3 (b) (3) and 

(c) (NYSCEF # 376, ,r 37). To the extent that plaintiff fails to address previously 

raised Industrial Code violations, he is deemed to have abandoned that part of his 

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Labor Law § 241 (6) claim (see Foley v Consol. Edison Co. of New York,. Inc., 84 

AD3d 476, 478 [1st Dept 2011]; see Kempisty v 246 Spring St., LLC, 92 AD3d 474, 

475 [1st Dept 2012]). 

As to the remaining Code violation, it is 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 v Everest Realty LLC, 84 AD3d 

542, 544 [1st Dept 2011D. Industrial Code§ 23·3.3 (b) (3) provides that "[w]alls, 

chimneys and other parts of any ... structure shall not be left unguarded in such 

condition that such parts may fall" (12 NYCRR 23·3.3 [b] [3]). Here, viewing the 

evidence in the light most favorable to the non-moving party, plaintiffs testimony 

at least raises a question of fact that the building defendants have violated 

Industrial Code § 23·3.3 (b) (3) by leaving the partially cut pipe hanging on the 

ceiling in a condition that it may fall (see Wilinski, 18 NY3d at 12 [denying 

defendants' motion for summary judgment dismissing the Labor Law § 241 [6] 

claim predicated on Industrial Code § 23·3.3 [b] [3] where plaintiff was hit by fallen 

metal pipes]; see also Ortega v Everest Realty LLC, 84 AD3d 542, 545 [1st Dept 

2011]). 

Turning to Industrial Code§ 23·3.3 (c), this section requires "continuing 

inspections against hazards . . . created by the progress of the demolition work 

itself' (12 NYCRR 23·3.3 [c]). This provision only applies to hazards related to 

structural instability caused by the progress of the demolition, not hazards arising 

from the actual performance of the demolition work (Smith v New York City Haus. 

Auth., 71 AD3d 985, 987 [2d Dept 2010] [Industrial Code§ 23·3.3 [c] does not 

require "inspections of how demolition would be performed"]). Here, as in Smith, the 

subject pipe fell and injured plaintiff due to the actual performance of the 

demolition work, not structural instability caused by the progress of the demolition 

(see id; see Butler tr at 95, 140·141). Therefore, Industrial Code § 23·3.3 (c) does 

not apply to the facts of this case. 

As such, the branch of the building defendants' motion for summary 

judgment dismissing plaintiffs Labor Law§ 241 (6) claim (MS 007) is denied as to 

Industrial Code § 23·3.3 (b) (3) and otherwise granted. 

Labor Law ~200 and Negligence Claim (MS 007) 

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

owner or general contractor to provide construction site workers with a safe place to 

work" (Singh v Black Diamonds LLC, 24 AD3d 138, 139 [1st Dept 2005] [internal 

citations omitted]). Liability under Labor Law § 200 may be based either upon (i) 

the means and method by which the work is performed or (ii) actual or constructive 

notice of a dangerous condition inherent in the premises (see McLeod v Corp. of 

Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 41 AD3d 796, 797 

[2d Dept 2007]; see also Mendoza v Highpoint Assoc., I4 LLC, 83 AD3d 1, 9 [1st 

Dept 2011]). A defendant has constructive notice of a hazardous condition on 

property "when the condition is visible and apparent and has existed for a sufficient 

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length of time 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, plaintiff asserts a Labor Law § 200 and common 

law negligence claim against the building defendants (NYSCEF # 205, ,r,r 207, 210· 

212,219). In MS 007, the building defendants move for summary judgment 

dismissing this claim arguing that they are not liable under Labor Law § 200 

because they did not supervise the injury producing work and they lacked actual or 

constructive notice of the alleged dangerous condition relating to the pipe (NYSCEF 

# 197 at 6·10). Plaintiff disputes the latter point, asserting that the building 

defendants has failed to show that they lacked constructive notice of the hanging 

pipe because they have not produced evidence as to when the subject area was last 

inspected prior to plaintiffs accident (NYSCEF # 292, ,r,r 55·58). 

On a defense motion for summary judgment dismissing a Labor Law § 200 

and common law negligence claim based on a dangerous premises condition, the 

moving defendants have the initial burden to establish that they lacked 

constructive notice of the dangerous condition by evidence of when the site had last 

been inspected before the accident (Spencer v Term Fulton Realty 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 of the area 

in question, is insufficient to establish a lack of constructive notice" (Grif.in, 181 

AD3d at 913). 

Here, the building defendants submit no evidence as to when the sub-cellar 

was last inspected before the accident, thus failing to establish a lack of 

constructive notice of the subject pipe that had been hanging for two hours before it 

fell (see Singh v Manhattan Ford Lincoln, Inc., 188 AD3d 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 summary judgment 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 of the site (Hinton tr at 23), 1 this is insufficient to establish a lack of 

constructive notice because it only refers 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 of any 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, at best, indicates a lack of actual 

notice, not constructive notice. 

Accordingly, the branch of the building defendants' motion for summary 

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

(MS 007) is denied. 

1 The building defendants cite to the wrong page of this deposition transcript (NYSCEF # 376, 1 48). 

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II. Plainti:B.'s Claims Against All-Rite, Always First, and QCC (MS 006, 006) 

In addition to his claims against the building defendants, plaintiff asserts the 

same set of claims-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 each moves to dismiss all of plaintiffs 

claims against them (NYSCEF #s 166,233, 325). 

Plaintiff does 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 

and Always First (see Genovese v Gambino, 309 AD2d 832, 833 [2d Dept 2003] [a 

claim is deemed abandoned if plaintiff did not oppose to defendant's motion for 

summary judgment dismissing the claim]). Plaintiff nevertheless opposes QCC's 

cross motion for summary judgment in its entirety, citing questions of fact as to 

QCC's role in the demolition of the subject pipe (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 of fact 

(NYSCEF #s 339, 343). 

As a gating issue, the timeliness of QCC's cross motion to AU-Rite's summary 

judgment motion is addressed first. Generally, courts deny untimely summary 

judgment motions without considering the merits unless good cause for delay is 

shown (see Brill v City of New York, 2 NY3d 648, 653 [2004]). As an exception, 

however, an untimely cross motion may be considered on its merits without a 

showing of good cause, if it addresses "nearly identical" issues in a timely filed 

summary judgment motion (see Connor v A.A1A Consulting Engineers PC, 213 AD3d 

483, 484 [1st Dept 2023], Iv to appeal dismissed in part, denied in part, 40 NY3d 

1088 [2024]; see also Kershaw v Hosp. for Special Surgery, 114 AD3d 75, 87 [1st 

Dept 2013]). For this purpose, it is essential that the subject motion is correctly 

labeled as a cross motion (see Kershaw, 114 AD3d at 87). 

Here, QCC filed its cross motion on September 20, 2023 (NYSCEF # 325), five 

months after the note of issue was filed on April 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 summary judgment motions of All-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, 114 AD3d at 87). A cross 

motion is one that is made "against the party who made the original motion," 

namely, All-Rite (see id at 87·88; see CPLR 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 not file its separate motion for summary judgment, it instead filed a cross motion in All· 

Rite's summary judgment motion (MS 006) (NYSCEF #s 325, 393). 

3 The building defendants incorrectly filed their opposition to QCC's cross motion in MS 007, as 

opposed to MS 006. 

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motion" is in fact an untimely summary judgment motion, which, without good 

cause shown, should be denied without considering the merits (Kershaw, 114 AD3d 

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"]; see Brill, 2 NY3d at 653). 

In any event, many issues and arguments raised in QCC's motion are not 

"nearly identical" to those raised by All-Rite in its timely motion. For example, QCC 

and All· 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, relating to 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 of its 

merits (see Crawford v 14 E. 11th St., LLC, 191 AD3d 461 [1st Dept 2021] [denying 

a mislabeled cross motion as untimely without considering its merits as it did not 

raise issues nearly identical to those raised in a timely motion]; see Rubino v 330 

Madison Co., LLC, 150 AD3d 603,604 [1st Dept 2017] [same]). 

In sum, the branches of All· Rite and Always First's summary judgment 

motions dismissing plaintiffs 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 Building Defendants' Contractual Indemnification Claims 

The building defendants assert a claim for contractual indemnification 

against Always First and QCC in the third ·party complaint (NYSCEF # 25). They 

also assert this claim as a cross claim against All-Rite in their answer to plaintiffs 

complaint (NYSCEF # 200 at 5). In MS 007, the building defendants move for 

summary judgment on this claim against Always First, QCC, and All-Rite 

(NYSCEF # 195). In MS 005 and 006, Always First, QCC, and All-Rite move for 

summary judgment 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 building defendants, Always First, and All-Rite. 

Cross Claim Against All-Rite {MS 006. 007) 

In MS 006, All· Rite moves for summary judgment dismissing the building 

defendants' contractual indemnification claim against it (NYSCEF # 233, ,r,r 13, 25· 

28). The building defendants oppose MS 006 (NYSCEF # 285, ,i,r 15·23) and in MS 

007 move for summary judgment 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 between All· Rite and Marco 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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Marco Realty (NYSCEF #s 230, 287). The indemnification provisions that the 

building defendants cite are in fact from All· Rite's contract with one of its 

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 of any 

governmental safety requirements by [Village Plumbing & Heating]" and are 

irrelevant to the building defendants' contractual indemnification claim against All· 

Rite (NYSCEF # 230 at 11).5 

Therefore, the branch of All-Rite's motion for summary judgment dismissing 

the building defendants' contractual indemnification claim (MS 006) is granted. The 

building defendants' competing motion for summary judgment on this claim against 

All· Rite (MS 007) is denied. 

Third·Partv Claim Against Alwavs First (MS 005, 007) 

In MS 007, the building defendants move for summary judgment against 

Always First on the contractual indemnification claim (NYSCEF # 197 at 18·19). 

Conversely, in MS 005, Always First moves for summary judgment dismissing this 

claim (NYSCEF # 166 at 4·6). For the reasons below, both motions are denied. 

The contract between Always First and James Hunt (NYSCEF # 227) 

contains an indemnification provision, which provides that Always First shall 

indemnify James Hunt for claims asserted against James Hunt "by reason of injury 

to ... any person ... arising out of or resulting from or attributable in any way to 

any aspect of the performance of [Always First's] Work under this Agreement," 

regardless of whether Always First is at fault for causing such injury or breaching 

this contract with 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 that plaintiffs injury arose out of his 

performance of Always First's work because plaintiff was 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 causing the accident (NYSCEF # 

197 at 19; NYSCEF # 225, ,r,r 3, 6·10; NYSCEF # 226, ,r,r 5, 8-13). 

Always First counterargues that the indemnification provision at issue is 

void under General Obligations Law (GOL) § 5-322.1 because it indemnifies the 

building defendants for their own acts of negligence (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 of Always 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 of the same document. 5 Even assuming that these provisions could be read into All-Rite's contract with Marco Realty, the 

building defendants have not submitted any evidence that All·Rite violated any governmental safety 

requirements when working at the site. 

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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, among the building defendants, only James Hunt 

can be entitled to summary judgment on the contractual indemnification claim 

against Always First, because James Hunt is the only indemnitee under its contract 

with Always First (NYSCEF # 227; see Herrero v 2146 Nostrand Ave. 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 of negligence (General Obligations Law § 5· 

322.1 [ID. If the owner or general contractor is partially negligent, a contract clause 

indemnifying them is void under GOL § 5-322.1, unless it contains savings 

language that provides for partial indemnity (see Itri Brick & Concrete Corp. v 

Aetna Gas. & Sur. Co., 89 NY2d 786, 790, 794-796 [1997]). In contrast, if the owner 

or general contractor is not actively negligent, an indemnification provision without 

a savings clause does not violate GOL § 5-322.1 even if it contemplates full 

indemnity (Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430,434 [1st Dept 2007]). 

Here, the indemnification clause between Always First and James Hunt 

contains no savings language and would have indemnified James Hunt even if it 

were negligent (NYSCEF # 227, § 4.7.2). Unlike Rhodes-Evans, the record here does 

not show that James Hunt is free of negligence as a matter of law (see Rhodes· 

Evans, 44 AD3d at 434). Specifically, questions of fact exist as to whether James 

Hunt had constructive notice of the pipe and whether James Hunt employed David 

who cut the pipe (see Butler tr at 67, 100, 112, 120, 127). If James Hunt is found to 

be negligent in any degree, its indemnity clause with Always First would be void 

under GOL § 5-322.1 (see Itri Brick & Concrete Corp., 89 NY2d at 794-796). Given 

these triable issues of fact, James Hunt's motion for summary judgment 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 of law 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 Claim Against QCC (MS 007) 

In MS 007, the building defendants move for summary judgment 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 "arising out of or in connection with the Work 

or this Agreement or the breach by [QCC] of any term or condition of this 

Agreement" (NYSCEF# 228, § 4.7.1) and (ii) claims asserted against James Hunt 

"by reason of injury to ... any person ... arising out of or resulting from or 

attributable in any way to any aspect of the 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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The building defendants argue that QCC was contractually required to 

indemnify them because QCC was responsible for removing the subject pipe 

(NYSCEF # 382, ,i,i 11 ·13, 32, 33, 36, 37).6 They point to (i) Hinton's testimony 

affirming that QCC was responsible for removing the pipe that injured plaintiff 

(Hinton tr at 59), and (ii) the demolition keynote that was allegedly part of QCC's 

contract, which provided that "abandoned base 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 of the accident (NYSCEF # 

322, ,i 4 [2]). QCC adds that the last day of its 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 of his knowledge, there were no QCC employees working in the sub·cellar on 

the day of the accident (Hinton tr at 63·64). 

Applying the legal principles discussed above regarding Always First's 

liability for contractual indemnity, the court denies the building defendants' 

summary judgment on the contractual indemnification claim against QCC. 

Questions of fact exist as to whether plaintiffs claim arose out of QC C's work 

because while the building defendants rely on the demolition keynote to argue that 

QCC was responsible for removing the subject pipe, they provide no evidence that 

QCC performed the work that injured plaintiff or 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 of the accident, no QCC employees 

worked in the sub-cellar (Hinton tr at 63·64). Such record at least creates a question 

of fact as to whether plaintiffs injury arose out of QC C'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 of whether 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 breach by [QCC] of ... this 

Agreement" (NYSCEF # 228, § 4. 7.1). Reading the 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 of the other trade's performance of 

work. 

Accordingly, the branch of the building defendants' summary judgment 

motion on the contractual indemnification claim against QCC (MS 007) is denied. 

6 The building defendants' argument based on James Hunt's job detail report dated January 6, 2021 

is rejected because the building defendants never include any citation for this report, despite 

referring to it in their brief and expert's affidavit (NYSCEF # 382, ,r 37; NYSCEF # 383, ,i 18). 

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IV. The Building Defendants' Remaining Claims 

Third Partv Claims Against Alwa vs First and QCC (MS 005, 006) 

In their third·party complaint, the building defendants raise claims for 

breach of contract as well as common law indemnification and contribution again" st 

Always First and QCC (NYSCEF # 25). Both Always First and QCC now move for 

summary judgment 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. In MS 

005, Always First does not address the building defendants' breach of contract claim 

(NYSCEF # 166). Thus, the building defendants claims' against QCC and their 

claim for breach of contract 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 plaintiff did not sustain a grave 

injury (NYSCEF # 166 at 2·4). In opposition, the building defendants contend that 

questions of fact exist as to whether plaintiffs injury constitutes a grave injury and 

allege that they are free from negligence and therefore can be 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 of his or her employment (see Clavin v CAP 

Equip. Leasing Corp., 156 AD3d 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 and total loss of use or amputation of an 

arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or 

quadriplegia, total and permanent blindness, total and permanent deafness, loss of 

nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger 

or an acquired injury to the brain caused by an external physical force resulting in 

permanent total disability" (Castro v United Container Mach. Grou]}; lnc., 96 NY2d 

398, 401 [2001]; Workers' Compensation Law§ 11). 

Here, both the building defendants and Always First point to plaintiffs 

verified bill of particulars to argue whether the injuries at issue qualify as grave 

(NYSCEF # 275 at 7·12). The bill of particulars shows that plaintiff was injured on 

shoulders, lumbar spine, and cervical spine (id). These are not among the grave 

injuries enumerated in Workers' Compensation Law§ 11 (see Eldoh v Astoria 

Generating Co., L.P., 24 Misc 3d 1214W [Sup Ct 2007], affd sub nom. 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, plaintiff did not suffer a grave injury from the accident and thus Always 

First is entitled to summary judgment dismissing third·party claims for common 

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law indemnification and contribution against it (see Hernandez v Seadyck Realty 

Co., LLC, 161 AD3d 711, 712 [1st Dept 2018]). 

Accordingly, that branch of Always First's motion for summary judgment (MS 

005) is granted. 

Cross Claims Against All-Rite (MS 006) 

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 indemnification claim (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 of negligence on the proposed indemnitor or contributor (see Priestly v 

Monte.iore Med Ctr./Einstein Med Ctr., 10 AD3d 493, 495 [1st Dept 2004] [a 

common law indemnity claim requires proof of some negligence on the part of the 

indemnitor]; see Sommer v Fed Signal Corp., 79 NY2d 540, 550 [1992] [the 

availability of a contribution claim depends on the threshold issue of negligence]). 

To prevail on a negligence claim, it must be shown that there is "(1) a duty owed by 

the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately 

resulting therefrom" (Pasternack v Lah. Corp. of Am. Holdings, 27 NY3d 817, 825 

[2016]). Ultimately, "the law draws a line between remote possibilities and those 

that are reasonably foreseeable" (Lee v New York City Haus. Auth., 25 AD3d 214, 

217 [1st Dept 2005], citing Di Ponzio v Riordan, 89 NY2d 578, 583 [1997]). 

Under these standards, All·Rite has established prima facie entitlement to 

summary judgment dismissing the building defendants' common law 

indemnification and contribution claims against it. Both claims are predicated on 

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 causal link between 

All-Rite's work and plaintiffs injury is 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 TST 375 Hudson, 

L.L.C., 179 AD3d 508, 511 [1st Dept 2020] [dismissing common law indemnification 

and contribution claims against parties that were free from negligence]). That 

branch of All-Rite's motion for summary judgment (MS 006) is granted. 

156776/2017 BUTLER, LARONE vs. MARCO REALTY ASSOCIATES, L.P. 

Motion No. 005 006 007 008 Page 18 of 19 

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INDEX NO. 156776/2017

NYSCEF DOC. NO. 405 RECEIVED NYSCEF: 04/10/2024

19 of 19

CONCLUSION 

For the foregoing reasons, it is hereby 

ORDERED that defendant All· Rite's motion for summary judgment 

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 on the 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 Building Defendants' motion for summary judgment (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 summary judgment (MS 

005) is granted to the extent of dismissing plaintiffs 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 Building Defendants' 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 of its 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 

156776/2017 BUTLER, LARONE vs. MARCO REALTY ASSOCIATES, L.P. 

Motion No. 005 006 007 008 Page 19 of 19 

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