Viveros v Maserati Realty, LLC 2024 NY Slip Op 31337(U) April 15, 2024 Supreme Court, Kings County Docket Number: Index No. 508782/20 Judge: Wavny Toussaint Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

### FILED: KINGS COUNTY CLERK 04/16/2024 10:45 AM INDEX NO. 508782/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 04/16/2024

1 of 22 PRES ENT: HON. WAVNY TOUSSAINT, Justice. At an IAS Term, Part 70 of the Supreme Court ofthe State ofNew York, held in and for the CountyofKings, atthe Courthouse, at 360 Ada_rps Street, Brooklyn, New York, on the 1.5-th day ofApril, 2024.



### -----------------------------------------------------------------------X RICARDO GUZMAN VIVEROS, Plaintiff,-againstMASERATI REALTY, LLC, CH GOWANUS, LLC, CH GOW ANUS HOLDINGS, LLC, NY DEVELOPERS & MANAGERS, INC., NY DEVELOPERS & MANAGEMENT, LLC, and FIRST QUALITY ELECTRIC CORP., Defendants. 

### -----------------------------------------------------------------------X The following e-filed papers read herein: Notice ofMotion/Orderto ShowCause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
______ _ Opposing Affidavits/Answer (Affirmations)
__ _ Affidavits/ Affirmations in Reply
_____ _ Other Papers: ____________ _ IndexNo.: 508782/20 DECISION AND ORDER

NYSCEF DocNos.:
85-87, 101-103, 128-130 148-149, 151-152, 154-155

157-158, 160-161, 165-166 170,172, 174,177,179 Upon the foregoing papers, defendant First Quality Electric Corp. (First Quality)
moves (Seq. 05) for an order, pursuant to CPLR §3212, granting summary judgment dismissing the complaint and an)' and all cross claims as asserted against it. Defendants Maserati Realty LLC (Maserati), CH Gowanus, LLC (CH Gowanus), NY Developers & Managers, Inc
..(Managers), and NY Developers & Management, LLC (NY Developers) (collectively referred to as the "Maserati Defendants") move (Seq. 06) for an order, pursuant to CPLR §3212, grantingthem summaryjudgment: (I) dismissing the complaint and any and all cross claim as asserted against them and (2) granting their cross claim 

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2 of 22 

### against First Quality. PlaintiffRicardo Guzman Viveros (plaintiff) moves (Seq. 07) for an order, pursuant to CPLR §3212, granting him partial summaryjudgment oi:i the issue of liability as against Maserati, CH Gowanus and NY Developers on his Labor Law §240(1)
cause of action and on his Labor Law §241(6) cause of action to the extent that it is premised on Industrial Code (12 NYCRR) §23-1.30. 

### BACKGROUND In this action premised on common-law negligence and violations ofLaborLaw §§ 

### 200,240 (1) 

### and 241 (6), plaintiffalleges that, on February 27, 2020, he suffered injuries while installing ductwork at an industrial buildingbeingrenovated for office and retail use at 124 9th Street, Brooklyn, NY (premises), when the ladder on which he was standing moved and he fell to the floor. The building and land at issue were owned by Maserati and, pursuant to a 99-year ground lease, leased to CH Gowanus. CH Gowanus hired NY Developers as a construction manager/general contractor for the project which involved the gut renovation ofthepremises. 1 

### Pursuantto a prime contract, CH Gowanus hired First Quality to perform electrical work and the 

### scope of First Quality's work under their contract included installing new electrical boxes and fixtures as well as installing and maintainingtemporary lightingduringcpnstruction(CHGowanus-FirstQualityContract, Rider 1, Scope ofWork§ 5). Pursuantto anotherprime contract, CH Gowanus hired non1The court notes that CH Gowanus' contract with NY Developers identifiesNY Developers as a construction manager and limits its responsibility for overall site safety. Despite the language ofthe contract, however, Jacob Hamway, who testified as a witness on behalfofMaserati, CH Gowanus, and NY Developers, stated that NY Developers also acted as a general contractor and that its site staff, such as the project manager, assistantproject manager, and superintendent, had authority to stop the work ifthey observed dangerous conditions orpractices and would regularly walk the site to ensurethat the subcontractors adhered to safe construction practices. 2 

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3 of 22 party On Target Sheet Metal CorpiOn Target) to perform HVAC work that included the installation ofductwork. Plaintiffwas employed by On Target as a ductwork installer. According to plaintiffs deposition testimony, he had been working with Julian Pinera (Pinera) his helper, installing ductwork in a small room on the second floor ofthe premises for approximately a week before the accident. In order to perfonn this work, plaintiffand Pinera would each set-up their eight-foot-tall A-frame ladders approximately
one to two feet from each other. Each would grab a hold ofopposing ends ofa three-andone-halfby two-and-one halffoot piece ofmetal duct work, and then proceed to climb up their respective ladders holding the piece ofductwork in orderto attach it to the portion of the ductwork that had already been installed. Just before the accident, plaintiffand Pinera had already positioned a piece ofductwork above them, and plaintiff, who was standing· with his feet on the sixth rung ofhis ladder, was reaching above his head with his left hand to hold the duct in position with a pressure clamp while at the same time reaching up with his right hand to put in screws using a screwdriver. As plaintiffwas installing the duct in this manner, the temporary lighting went out, plaintiffs ladder moved to plaintiffs left, and when it did so, plaintifffell towards his right, striking an electrical panel as he fell to the floor. The ladder also ultimately fell to the floor. Plaintiff, however, did not know what caused the ladder to move. When the lights went out, plaintifftestified that there was no light coming into the
room and that he couldn't see a thing through the darkness. The lights remained out for approximately 20 minutes after the accident. Although plaintiffdid not recall the lights going out while he was working in the room at issue during the week before the accident, 3 

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4 of 22 he alleges the lights had previously gone out on several occasions during his eight months working on the project. With respect to the subject ladder, plaintiffstatedthathe had used it before the day ofthe accident and had experienced no problems, issues or concerns with the ladderpriorto the accident, and, ifhe had, he would have brought them to the attention ofhis supervisor. The floor ofthe room at issue was concrete and plaintiffand Pinera kept it free ofgarbage and debris. In his deposition testimony, Pinera's description ofhow he and plaintiffperfonned their assignments is similar to plaintiffs description ofsame. Pinera also stated that the accident occurred after the lights went out while they were standing on their respective ladders installing a piece ofductwork. At the time the lights went out, Pinera was holding
one end ofthe duct in place as plaintiffwas installing a screw. Although Pinera did not witness plaintiffs fall because the lights went out, he was able to hear it. Pinera's ladder also moved when plaintifffell, buthe was able to steady himselfby holding on to a pipe in the ceiling. Like plaintiff, Pinera also did not notice any issues with the ladders they were using. With respect to the lighting, Pinera stated that the temporary lighting had gone out
on occasion during the course ofthe project, and that it had gone out once or twice in the three or four days they were working in the room before the accident. In contrast to the testimony ofplaintiffand Pinera, Antonio Grande Pajaro (Pajaro), who was First Quality's onsite supervisor and present atthe project from 7:00 a.m. to 5:00 p.m. on a daily basis, testified at his deposition that the temporary lighting for the project stayed on 24 hours·a day, 7 days a week, that he had received no complaints about the lighting going out, and that the lights did not go offand were notturned offduringhistime 4 

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5 of 22 on the project, which included the day ofthe accident. Pajaro also testified that the only way to shut down the temporary lights was to turn offthe breaker in the electrical box, that this box was kept locked, and that First Quality's representatives were the only persons who had the keys for the box. The only other way for the lights to go out was ifsomeone had damaged one ofthe light cables, and Pajaro testified that he was not aware ofany such cables being cut or damaged while he worked onsite. Pajaro also stated that the electrical boxes in the room plaintiffwas working in related to the emergency light system and had nothing to do with the temporary lighting. DISCUSSION 

### Standardof Review "To obtain summaryjudgment it is necessary that the movant establish his [orher]
cause ofaction or defense sufficiently to warrant the court as a matter oflaw in directing judgmentin his [orher] favor" (Zuckerman v Citya/New York, 49NY2d 557, 562 [1980]). "On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial ofany issue offact" (id.). Ifthere are triable issues offact as to how the alleged accident occuned, then the motion should be denied (Lima v HY38 Owner, LLC, 208 AD3d 1181, 1183 (2d Dep't 2022]). "Summaryjudgment is a drastic remedy which should only be employed when there is no doubt as to the absence oftriable issues" (Murray v Community House Development Fund Company, Inc., 223 AD3d 675,677 [2d Dep't 2024]; Chiara v Town of New Castle, 126 AD3d 111, 125 [2d Dep't 2015]).

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6 of 22 Additionally, "[i)n determining a motion for summaryjudgment, the court must viewtheevidencein thelightmostfavorabletothenonmovingparty, and whereconflicting inferences may be. drawn, the court must draw those most favorable to the nonmoving party" (Chiara, ~26 AD3d at 111; Open Door Foods, LLC v Pasta Machines, Inc., 136 AD3d 1002, 1005 [2d Dep't 2016]). The function ofthe court on a motion for summary judgment is not to resolve issues offact or determine matters ofcredibility, butmerely to detennine whether such issues exist (Khutoryanskaya vLaser & Microsurgery, P.C., 222 AD3d 633, 635 [2d Dep't 2023]; Schumacher v Pucciarelli, 161 AD3d 1205, 1205 [2d Dep't2018]). 

### Plaintiffs' Causes of Action Turning first to the parties' contentions relating to plaintiff's Labor Law §240(1)
cause ofaction, that section imposes absolute liability on owners and contractors or their agents when their failure to protectworkers employed on a construction site from the risks associated with elevation differentials proximately causes injury to a worker (Wilinski v 334 E. 92ndHous. Dev. Fund Corp., 18 NY3d 1, 3 [2011]; Ross v Curtis-Palmer HydroElec. Co., 81 NY2d 494, 500 [1993]). With respect to falls from ladders, the Appellate Division, SecondDepartmenthas emphasizedthat "[t]hemere fact that aplaintifffell from
a ladder does not, in and of itself, establish that proper protection was not provided" (Karanikolas v Elias Taverna, LLC; 120 AD3d 552, 555 [2d Dep't 2014] [internal quotation marks omitted]; Cutaia v Board of Mgrs. of the 160/170 Varick St. Condominium, 38 NY3d 1037, 1038-1039 [2021]; Orellanav 7 W. 34th St., LLC~ 173 AD3d 886, 888 [2d Dep't 2019]). In orderto find the absence ofproperprotection, "[t]here must 6 

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7 of 22 be evidence that the ladder was defective or inadequately secured and that the defect. or the failure to secure the ladder, was a substantial factor in causing the plaintiffs injuries" (Karanikolas, 120 AD3d at 555 [internal quotation marks omitted]; Hugo v Sarantakos, 108 AD3d 744, 745 [2d Dep't 2013]). Here, there is no dispute that Maserati, CH Gowanus and NYDevelopers may each be held liable underLaborLaw §240(l). Maserati may be held liable as an owner(Gordon
vEastern Ry. Supply, 82 NY2d 555, 559-560 [1993]; Jara v Costco Wholesale Corp., 178 AD3d 687, 690 (2d Dep't 2019]), CH Gowanus may beheld liable since it acted in therole ofowner by contracting with the various contractors for the construction work at issue (Gomez v 670 Merrick Rd Realty Co1p., 189 AD3d 1187, 1190 [2d Dep't 2020]; Wicks v Leemilt'sPetroleum, Inc., 103 AD3d 793, 795-796 [2d Dep't 2013]), and NY Developers may be held liable since, although it was identified as construction manager, it et1ectively acted as the general contractor within the meaning ofsections 240 (1) and 241 (6) (Walls
v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]; Seales v TridentStructural Corp., 142 AD3d 1153, 1157-1158 [2d Dep't2016]; Pipia v Turner Constr. Co., 114 AD3d 424,427 [1stDep't2014], lvdismissed24NY3d 1216 [2015]). There is also nodisputethatplaintiff
was performing covered alteringwork within the meaning ofLaborLaw §240 (I) that was also ancillary to a larger construction project (Sanatass v ConsolidatedInv. Co., Inc., I 0 NY3d 333,337 (2008]; 

### Depass vMercer Sq., LLC, 219 AD3d 801, 802 [2d Dep't 2023]) and that plaintiffwas working at a significant elevation differential within the meaning of that section 

### (Swiderska v New York Univ., IO NY3d 792, 793 [2008]; 

### Doto v Astoria Energyfl LLC, 129 AD3d 660,662 [2d Dep't2015]). 7 

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### Contrary to defendants' contentions, plaintiffs deposition testimony that he fell to the ground after the ladder moved shows that the ladder was inadequately secured and is sufficient to establish his prima facie entitlement to summaryjudgmenton his LaborLaw § 

### 240 (I) cause ofaction (Hoxhaj v West 30th HL LLC, 

### 195 AD3d 503, 504 [1st Dep't 2021] [ladder wobbled]; Salinas v 64 Jefferson Apts., LLC, 

### 170 AD3d 1216, 1222 [2d Dep't 2019] [ladder moved]; Cabrera 

### vArrow Steel Window Corp., 

### 163 AD3d 758, 759- 760 [2d Dep't 2018] [ladder moved]; Alvarez v Vingsan L.P., 

### 150 AD3d 1177, 1179 [2d Dep't 2017]). In view ofplaintiffs deposition testimony regarding the movement ofthe unsecured ladder, plaintiffwas not required to ·show that the ladder was defective in order to make out his prima facie burden (Rodriguez 

### vMilton Boron, LLC, 

### 199 AD3d 537, 538 [1st Dep't 2021]; Von Hegel v BrixmorSunshine Sq., LLC, 

### 180 AD3d 727, 730 [2d Dep't 2020]; Mingo vLebedowicz, 

### 57 AD3d 491,493 [2d Dep't 2008]) and had no obligation to explain why it moved (Hoxhaj, 

### 195 AD3d ·at 504; Salinas, 

### 170 AD3d at 1222 [ladder moved for no apparent reason]; Cabrera, 

### 163 AD3d at 759-760 [ladder moved for no apparent reason]). The Maserati Defendants, in opposition, argue that plaintiff asserted that the accident was caused by the lights going out and, as a result, thatthe cause ofthe accident
was unrelated to the need for aLaborLaw§240 (I)

### device. It is true that cases addressing section 240 (I) 

### have held, for example, that a fall solely caused by a tripping hazard

. \. 

### unrelated to the ladder or scaffold at issue does not make out a section 240 (1) violation (see Cohen v MemorialSloan-Kettering Cancer Ctr., 

### 11 NY3d 823, 825 [2008];Nieves v FiveBoroA.C. &

### Refrig. Corp., 

### 93 NY2d 914, 916 [1999]; Krarunzhiy v 91 Cent. Park W 8 

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9 of 22 Ovmers C01p., 212 AD3d 722, 723-724 [2d Dep't 2023]) and a case involving a plaintiff who simply lost his balance and fell because oflights going out might be encompassed within such a rule (see Jurski v City of New York, 204 AD3d 983, 984 [2d Dep't 2022]; cf Cutaia, 38 NY3d at 1039 [factual issue as to adequacy of ladder or need for additional safety devices presentedby plaintiffs fall from ladder after receiving electric shock]). The Maserati Defendants argument, however, ignores plaintiffs deposition testimony that he fell after the ladder itselfmoved, which as discussed above, is in and ofitself, sufficient to demonstrate a section 240 (1) violation. Further, even ifit could be found that the ladder endedup moving becauseplaintiffmovedhis body when the lights wentout, such an action by plaintiff would not eliminate the movement of the ladder as a proximate cause of plaintiffs accident (see Green v Evergreen Family Ltd. Partnership, 210 AD3d 1496, I497-1498 [ 4th Dep't 2022]; Messina v City of New York, 148 AD3d 493, 494 [1st Dep't 2017]; Goodwin, 144 AD3d at 747;Ruizv WDF, Inc., 45 AD3d 758, 758 [2d Dep't2007]).2 Moreover, theMaserati Defendantshave presentedno facts suggestingthatthere is an issue with plaintiffs credibility sufficient to question his testimony regarding the ladder's movement (see e.g. Klein v City of New York, 89 NY2d 833, 834-835 [1996]; Cardenas v J11-127 CabriniApts. Corp., 145 AD3d 955,957 [2d Dep't 2016]; Melchor v Singh, 90 AD3d 866, 869 [2d Dep't 2011]; cfJurski, 204 AD3d at 984).

i There are noevidentiary facts suggesting that plaintiffsimply lost his balance and fell and caused the ladder to fall as he was already falling to the ground (Woods v Design Ctr., LLC, 42 AD3d 876, 877 [4th Dep't2007]; cfDurkin vLongls. PowerAuth., 37 AD3d 400,401 [2d Dep't 2007]; Costello v Hapco Realty, 305 AD2d 445, 446-447 [2d Dep't2003]). 9 

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10 of 22 Turning to plaintiffs Labor Law 

### § 241 (6) cause ofaction, under that section an owner, general contractor or their agent may be held vicariously liable for injuries to a plaintiff where the plajntiff establishes· that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts ofthe case (Rizzuto v L.A. Wenger Contr. Co., 9 I NY2d 343, 349- 350 [ I998]; Honeyman v Curiosity Works, Inc., I54 AD3d 820, 821 [2d Dep't 2017]). Here, plaintiff, in his bill ofparticulars, premises his section 241 (6) cause ofaction on violations oflndustrial Code 12NYCRR §§ 23-1.7 (f), 23-1.21, and 23-1.30. Initially, the Maserati Defendants have demonstrated their prima facie entitlement to dismissal ofthe LaborLaw 

### § 241 (6) cause ofaction to the extent that it is premised on Industrial Code (12 NYCRR) § 23-1.7 (f) (requiring stairways, ramps or runways to provideworker access to differentworking levels above orbelowthe ground). Section 23- 1.7 (f) is inapplicable here since plaintiffwas using the ladder at issue as a work platfonn, not as a means ofaccessing working levels above orbelowthe ground within the meaning ofthat section (Ramones v 425 Country Rd., LLC, 217 AD3d 977, 980 [2d Dep't 2023]; Miranda v NYC Parntership Haus. Dev. Fund Co., Inc., 122 AD3d 445, 446 (1st Dep't 2014]). Plaintiff, who failed to address section 23-1.7 (f) in his opposition papers, has abandoned reliance on section 23-1.7 (f) and the Maserati Defendants are entitled to dismissal ofthe section 241 (6) cause ofaction to the extentthat it is based on that section (Debennedetto v Chetrit, 190 AD3d 933, 936 [2dDep't 2021]). With respect to Industrial Code (12 NYCRR) § 23-1.21, plaintiff, in his bill of particulars, did not identify which ofthe subsections ofsection 23-1.21 were violated here 10 

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11 of 22 (Caminiti v Extell W. 57th St. LLC, 166 AD3d 440,441 [1st Dep't 2018]). In opposition to theMaserati Defendants' motion, however, plaintiffasserted that section 23-1.21 (b) (3) (iv), which providesthat "All ladders shall be maintained in good condition. A ladder shall not be used if any ofthe following conditions exist:
... If it has any flaw or defect of material that may cause ladder failure," was violated. While plaintiff could properly specify a violation ofthis subsection for the first time in his oppositionpapers(seeSimmons

v City of New York, 165 AD3d 725, 729 [2d Dep't 2018]), plaintiff's own testimony was that he did not have any problem or issue with the ladder prior to the accident and that he
was able to set it up and lock it into position without incident. In the absence of any evidence in the record suggesting that the ladderhad a flaw ordefect ofmaterial that could have caused it to fail, and, given that the accident itselfdoes not allow anything more than
a speculative inference that the ladder had such a defect, the Maserati Defendants' are entitled to dismissal ofthe Labor Law § 241 (6) cause ofaction to the extent it is premised
on section 23-1.21 (Yao Zang Wu v Zhen Jia Yang, 161 AD3d 813, 815 [2d Dep't 2018]; Croussett v Chen, 102.AD3d 448, 448-449 [1st Dep't 2013]). Factual issues as to whether there were problems with the lighting at thejobsite require denial ofbothplaintiff's motion and the Maserati Defendants' motion with respect to whether Industrial Code (12 NYCRR) § 23-1.30, which addresses illumination at construction sites,3 was violated. Thetestimony ofplaintiffand Pinera that thelights went

3 Industrial Code ( 12 NYCRR) §§ 23-1.30 provides that, "Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than IO foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similararea where persons are required to pass." 11 

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12 of 22 out on several occasions and that whenthe lights went out atthe time ofthe accident it was pitch black in theroom at issue is sufficientto demonstrate factual issues as to whetherthe amount oflight in the room, at the time ofthe accident, violated section 23-1.30 

### (Murphy
v 80 Pine, LLC, 208 AD3d492, 497-498 [2d Dep't 2022]; 

### see also Favaloro v PortAuth. ofN.Y. 

### &N.J, 191 AD3d 524, 525 [1st Dep't 2021]; 

### Capuano v Tishman Constr. Corp., 98 AD3d 848, 850-851 [1stDep't2012];

### Murphy v Columbia Univ., 4 ADJd200,202 [1st Dep't 2004]) and whether "someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent
or remediate the hazard" arising from the lighting issues at thejobsite 

### (Rizzuto, 91 NY2d. at 351;

### Bocanegra v ChestRealty Corp., 169 AD3d 750, 751-752 [2d Dep't2019]). On the otherhand, the above noted testimony ofPajaro, a First Quality supervisor, that there was no problem with the lighting is sufficient to demonstrate a factual issue as to whether the lighting had anything to do with the accident. Moreover, plaintiffs own testimony, while showing thatthelights going outwas temporally relatedto the movement of the ladder, fails to demonstrate, as a matter of law, that the lights going out was a proximate cause ofthe ladder's movement orofplaintiffs fall. Regarding the portion ofFirst Quality's motion addressed to plaintiffsLaborLaw §§ 240 (I) and 241 (6) causes ofaction, First Quality asserts that it is entitled to summary . judgment dismissing these claims because it was not an owner, general contractor or statutory agent thereof within the meaning ofthose sections. In his opposition papers, plaintiffhas agreed to withdraw the section 240 (I) and 24l (6) causes ofaction as against First Quality. While, in the face of such an agreement by plaintiff, this court would 12 

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13 of 22 normally grant First Quality's motion with respect to those causes ofaction, the Maserati Defendants have opposedthisportion ofFirst Quality's motion, asserting thatFirst Quality
was in fact a statutory agent for purposes of section 240 (1) and 241 (6) liability. The Maserati Defendants may oppose the dismissal ofthose causes ofaction, despite the fact that they have cross claim for indemnification, contribution and breach ofthe insurance provisions againstFirst Quality, becauseFirst Quality's liability undersections 240 (1) and 241 (6) may have abearingon thejury'sapportionment ofliability for the accident (Be/mer
v HHMAssoc., Inc., 101 AD3d 526, 527-528 [1st Dep't 2012]; see also Cunha v City of New York, 12 NY3d 504, 508-510 [2009]; Frank vMeadowlakes Dev. Corp., 6 NY3d 687, 691-693 [2006]; cfCPLR 1602 [l] [a], [8]). Since the responsibilities CH Gowanus delegated to First Quality in their contract includedmaintainingthetemporary lighting at issue, this control overlighting couldrender it liable as a statutory agent under Labor Law § 241 (6) to the extent that such cause of action is premised on a violation oflndustrial Code (12 NYCRR) § 23-1.30. This factual issue requires denial ofFirst Quality's motion relating to section 241 (6) as premised upon section 23-1.30 only (McKinney vEmpire StateDev. Corp., 217 AD3d 574, 576 [lst Dep't 2023]; Vitucci v Durst Pyramid LLC, 205 AD3d 441, 444 [1st Dep't 2022]; DeMaria v RBNB20 Owner, LLC, 129 AD3d 623,626 [1stDep't2015]; see alsoDrzewinskivAtlantic Scaffold & Ladder Co., 70 NY2d 774, 776-777 [1987]; Sanchez v 404 ParkPartners, LP, 168 AD3d 491, 492 [1st Dep't 2019]). On the other hand, because First Qua1ity had no authority over other aspects ofplaintiff's work, includingplaintiff's methods and manner ofperforming his work on the_ ladder, First Quality is entitled to dismissal ofplaintiffs 13 • I



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14 of 22 LaborLaw§ 240 (1) cause ofaction and dismissal ofhis LaborLaw§ 241 (6)claim to the extent it is premised on Industrial Code sections other thari section 23-1.30 

### (Vitucci, 205 AD3d at 444; 

### see also Woodrujfv lslandwide Carpentry Contrs., Inc., 222 AD3d 920,921 [2d Dep't 2023]; 

### Fiore v Westerman Constr. Co., Inc., 186 AD3d 570, 571 [2d Dep't 20201). Turning to plaintiffs common-law negligence and Labor Law § 200 causes of action, when such claims arise outofalleged defects or dangers in themethods or materials ofthe work, "there is no liability under the common law or Labor Law § 200 unless the
owner or general contractor exercised supervision or control over the work performed" 

### (Carranza v,!CLHomes, Inc., 210 AD3d 858, 860 [2d Dep't2022), quoting 

### Cun-EnLin v Holy Family Monuments, 18 AD3d 800, 80I [2d Dep't 2005); 

### see also Barreto v Metropolitan Transp. Auth., 25 NY3d426,435 [2015]; 

### Valencia v Glinski, 219 AD3d 541, 545 [2dDep't2023]). Where apremises condition is at issue,property owners and general contractors may be held liable under·common-law negligence and for a violation ofLabor Law § 200 ifthey either created the dangerous condition that caused the accident or had actual orconstructivenotice ofthe dangerous condition that causedthe accident

### (Abelleira
v City of New York, 120 AD3d 1163, 1164 [2d Dep't2014];

### Bauman v Town of Islip, 120 AD3d 603, 605 [2d Dep't 2014]; 

### Ortega v Puccia, 57 AD3d 54, 61 [2d Dep't 2008]). Similarly, liability under Labor Law§ 200 and common-law negligence may be imposed upon a subcontractorwhereithadcontrol overthework siteandeithercreatedthe allegedly dangerous condition or had actual or constructive notice ofsame 

### (V.ita v New York Law

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15 of 22 Sch, 163 AD3d 605,607 [2d Dep't2018]; WolfvKLR Mech., Inc., 35 AD3d 916,918 [3d Dep't2006]). Here, the record, includingplaintiff's deposition testimony that OnTargetprovided the equipmenthe used at the worksite and that he received all ofhis instructions regarding his work from On Target, demonstrates, prima facie, that defendants did not supervise or control plaintiff's work for purposes ofplaintiffs Labor Law § 200 and common-law negligence causes of action (Wilson v Bergan Constr. Corp., 219 AD3d 1380, 1383 [2d Dep't 2023]; Kefaloukis v Mayer, 197 AD3d 470, 471 [2d Dep't 2021]; Lopez v Edge 11211, LLC, 150 AD3d 1214, 1215-1216 [2d Dep't 2017]). However, the deposition testimony ofplaintiff and Panera regarding the lighting going out on several occasions demonstrates the existence offactual issues as to whether the problems with the lighting constituted a dangerous property condition. The Maserati Defendants, in moving have failed to demonstrate, as a matter oflaw, that they did not have control overthe worksite and/or that they did not have actual or constructive notice ofthe issues with the lighting (De Vita v NYY Steak Manhattan, LLC, 214 AD3d 477, 478 [1st Dep't 2023]; Simon v Granite Building2, LLC, 170 AD3d 1227, 1232-1233 [2d Dep't2019], Ivdenied34 NY3d 904 [2019]; Honeyman, 154 AD3d at 822).4 Contrary to the Maserati Defendants' contentions, the fact that they delegated the installation and maintenance ofthe temporary lighting to First Quality is insufficient to demonstrate, in and of itself~ that they did not retain control over the worksite or authority to address the lighting issues
.. These factual

4 The court notes that, in moving, Maserati and CH Gowanus have made no argument and pointed to no evidence suggesting thattheir liability should be considered differently from that ofNY Developers. 15 

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16 of 22 issues with respectto the lighting also preclude dismissal ofthe section 200 and commonlaw negligence claims against First Quality, the entity responsible for installing and maintaining the temporary lighting 

### (Miano v 

### Battery Place Green LLC, 117 AD3d 489, 489-490 [1st Dep't 2014]; 

### Beltran v 

### Navillus Tile, Inc., 108 AD3d 414, 415 [1st Dep't 2013]). Contribution, Indemnification, andInsuranceIssues 

### In view ofthe above discussed factual issues with respect to First Quality's liability for the lighting conditions on the premises, First Quality is not entitled to dismissal ofthe Maserati Defendants' cross-claim for contribution from it 

### (Romanov New York City Tr. Auth., 213 AD3d 506, 508 [1st Dep't2023];

### Randazzo v 

### ConsolidatedEdison Co. of NY, Inc., 177 AD3d 796, 798 [2d Dep't2019]; 

### State of New York v Defoe Corp., 149 AD3d 889, 890 [2d Dep't 2017]). The portion of the Maserati Defendants' motion seeking summaryjudgment on their contribution claims against First Quality is denied as a party is only entitled to recover on a contribution claim upon a jury determination of apportionment of damages and the payment of damages in excess of that party's proportionate share ofthejudgment 

### (Klinger v Dudley, 41 NY2d 362, 369 [1977]; CPLR 1401, 1402). The issues with respect to FirstQuality's own negligence also require denial ofthe portion ofits·motion seeking.dismissal ofthe common-law indemnification claims against it 

### (Zong Wang Yang v City of New York, 207 AD3d 791, 796-797 [2d Dep't 2022]). The portion ofthe Mas_erati Defendants' motion seeking summaryjudgment in its favor on its common-law indemnification claim against First Quality must be denied in view ofthe 16 

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17 of 22 factual issues with respect to First Quality's negligence andthe Maserati Defendants' own negligence (McDonnell v Sandaro Realty, Inc., 165 AD3d 1090, 1097-1098 [2d Dep't 2018]; see also A1cCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378 [2011]). Regardingthe contractual indemnificationprovision, itprovides, as is relevant here, that First Quality "shall defend, indemnify, and hold harmless" each of the Maserati Defendants from claims "arising or alleged to arise from
... the performance ofthe Work under this Agreement, whetherperformedby Contractor, its Subcontractors and agents, or ~nyone employed by any ofthem or anyone for whose acts any ofthem may be liable
... regardless ofwhether or not it is caused in part by any or all ofthe Indemnitees hereunder, providedthatthis indemnity shall notextend tothe liability ofany Indemniteefrom its own negligence orwillful misconduct" (CH Gowanus

- First Quality contract, Rider 1, 

### § 15 (a) and Rider 1, Exhibit B § e). Indemnification provisions like this that apply for claims "arising" out ofthe work are broadly read in favor ofthe indemnitees and do not require a showing ofnegligence (Adagio v New York State Urban Dev. Corp., 168 AD3d 602, 603 [1st Dep't 2019]). However, in view ofthe factual issues as to whether the lighting had anything to do with the accident, and thus, whether the claim arose from First Quality's work within the meaning ofthe indemnification provision, the portions ofFirst Quality's motion and the Maserati Defendants' motion relating to contractual indemnification must be denied 

### (Nugra vAramalla, 191 AD3d 683, 686 [2d Dep?t 2021 ];

### Adagio, 168 AD3d at 603;

### DeMaria, 129 AD3d at 626-627; 

### Robbins v Goldman Sachs Headquarters, LLC, 102 AD3d 414,415 [1st Dep't2013]).

17 

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18 of 22 With respect to the breach ofcontract for failure to obtain insurance naming the Maserati Defendants as additional insureds cross claim, First Quality has submitted a copy of its general liability policy that contains a blanket additional insured endorsement providing that: "Who Is An Insured is amended to include as an additional insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability for 'bodily injury', 'property damage' or 'personal and advertising injury' caused, in whole or in part, by: 1. Youracts or omissions; or2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured." Based on this endorsement, which also governs who is an additional insured on the umbrella policy·obtained by First Quality,5 First Quality's insurer, in a letter dated January 6, 2021, disclaimed coverage for Maserati andNYDevelopers becausethey didnotdirectly contract with First Quality. While First Quality's insurer, in a letter also dated January 6, 2021, agreed toprovide a defense to CH Gowanus, it did so with a full reservation ofrights based on the portion ofthe endorsement limiting additional insured coverage for liability "caused whole or in part by
... [First Quality's] acts or omissions
... in the performance of[First Quality's) ongoing operations for the additional insured."

5 The "Who is an Insured" provision ofthe umbrella policy provides, as is relevant here, that an insured includes "[a]ny additional insur!ld underthe scheduled underlying general liability and professional errors and omissions policy will automatically be an insured underthis insurance" (JJmbrella Policy, § Il [3]). 18 

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19 of 22 First Quality c01Tectly asserts that a blanket additional insured endorsement may generally satisfy the additional insured requirements ofa construction contract (Lange,: v A1TA Capital Constr. Co., 184 AD3d401, 402-403 [1st Dep't2020]; Perez vMorse Diesel Intl., Intl., Inc., 10 AD3d 497,498 [1st Dep't2004]; see also Kassis v Ohio Cas. Ins. Co., 12 NY3d 595, 599-600 [2009]) and that disclaimer letters, in and of themselves, are generally insufficient to demonstrate that a party failed to obtain the required insurance (Perez, 10 AD3d at498; KM0-361 RealtyAssoc. vPodbielski, 254 AD2d43, 44 [1stDep't 1998]; Garcia v GreatAtl. & Pac. Tea Co., 231 AD2d 401,403 [1st Dep't 1996]; see also Dorsetv 285Madison OwnerLLC, 214 AD3d402,404 (1st Dep't2023];Binascov BreakAway Demolition Corp., 256 AD2d 373, 375 [2d Dep't 1998]). Here, however, the disclaimer letter shows that First Quality's insurer denied coverage to both Maserati and NY Developers based on language in the endorsement that is essentially the same as language that has been found to limit coverage to entities that are in direct contractual privity with the named insured (Arch SpecialtyIns. Co. vNautilus Ins. Co., 213 AD3d404, 405 [1st Dep't2023]; Dynatec Contr., Inc. vBurlington Ins. Co., 184 AD3d475,475 [1st Dep't 2020]; see also Gilbane v Bldg. Co./TDXConstr. Corp. v St. PaulFire & Mar. Ins. Co., 31 NY3d 131, 140 [2018]). As such, there are at least factual issues as to whether First Quality breached the terms of its contract with CH Gowanus, which required it to obtain insurance that named both Maserati and NY Developers as additional insureds (Roldan vNew York Univ., 81 AD3d 625,629 [2d Dep't2011]; Bachrowv Turner Constr. Corp., 46 AD3d 388, 388 [1st Dep't 2007]; Clapper v County of Albany, 188 AD2d 774, 775-776 [3d Dep't 1992]). 19 

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### FILED: KINGS COUNTY CLERK 04/16/2024 10:45 AM INDEX NO. 508782/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 04/16/2024

20 of 22 On the other hand, this court finds that the Maserati Defendants have failed to demonstrate theirentitlement to summaryjudgment intheir favor based on First Quality's failure to get the correct insurance. Namely, although the language of the insurance procurement provision of CH Gowanus' contract with First Quality does not expressly limit First Quality's insurance procurement duties with any particular language, C<?urts have held that such contracts requiring thatparties be named as additional insureds "mean that the additional insured is insured for all liability arising out ofthe activities coveredby the agreement" 

### (Ceron v Rector, 224 AD2d 475, 476 [2d Dep't 1996]; 

### Roblee v Corning Community Coll., 134AD2d 803, 804-805 [3dDep't 1987], 

### Iv denied72NY2d 803 [1988];


### see also Yondt v BoulevardMall Co., 306 AD2d 882, 883 [4th Dep't 2003]; 

### Belcastro v Hewlett-Woodmere Union Free School Dist. No. 14, 286 AD2d 744, 746-747 [2d Dep't 20011). As such, ifitis found that liability heredid.notarise outofFirst Quality's activities
on the project, its obligation to obtain additional insured coverage would not be triggered and First Quality's faih,1re to obtain appropriate coverage would not have resulted in any damages 

### (Nicholson v SabeyData Ctr. Props., LLC, 205 AD3d 620,622 [1st Dep't2022]; 

### New York CityHous. Auth." vMerchants Mut. Ins. 

### Co., 44 AD3d 540, 542 [1stDep't2007]; 

### Belcastro, 286 AD2d 747).6 Finally, the Maserati Defendants areentitledto dismissal oftheFirstQuality'scross claim for contractual indemnification and breach ofcontract for failure to obtain insurance

6 The Court notes thatrequiring coverage for liability arising outofFirst Quality's-activities maybe broaderthan the additional insured endorsement at issue here that covers liability for First Quality's "acts oromission," and, if liability is found to have arisen out ofFirst Quality's activities but not an act oromission, CH Gowanus might have grounds for abreach ofcontract claim in the event that First Quality's insurer disclaims coverage for CH Gowanus based on its acts oromissions language in its endorsement (Bachrow, 46 AD3d at 388; Clapper v County of Albany, 188 AD2d 774, 775-776 [3d Dep't 1992]; Roblee, 134 AD2d at 804-805). 20 

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### FILED: KINGS COUNTY CLERK 04/16/2024 10:45 AM INDEX NO. 508782/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 04/16/2024

21 of 22 because their contract has no provision requiring the Maserati Defendants to indemnify First Quality or obtain insurance benefiting First Quality. The factual issues regarding the liability ofthe Maserati Defendants' and First Quality for the accident pre_clude dismissal of First Quality's cross claim against the Maserati Defendants for common-law indemnification and contribution. CONCLUSION All arguments raised on the motions and evidence submitted by the parties in connection thereto have been considered by this Court, regardless ofwhether they are specifically discussed herein. Accordingly, it is hereby ORDERED, that First Quality's motion (Seq. 05) is granted to the extent that plaintiff's Labor Law §240(1) cause of action is dismissed as against it and plaintiff's LaborLaw §241(6)causeofactionis dismissedwithrespectto Industrial Code 12 NYCRR § § 23- l.7 (f) and 23.l.21. First Quality's motion is otherwise denied; and it is further ORDERED, thattheMaserati Defendants' motion (Seq. 06) is grantedto theextent. that plaintiff's Labor Law §241(6) cause ofaction is dismissed with respect to Industrial Code (12 NYCRR) §§ 23-1.7 (f) and 23-1.21 and granted to the extentthat First Quality's
cross claim againstthem for contractual indemnification and breach ofcontractfor failure to obtain insurance are dismissed. The Maserati Defendants' motion is otherwise denied; and it is further ORDERED, that plaintiffs motion (Seq. 07) is granted to the extent ofpartial summaryjudgment on the issue ofliability with regard to the Labor Law § 240 (1) cause 21 

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22 of 22 

### of action as against Maserati, CH Gowanus and NY Developers; plaintiffs motion is otherwise denied. In addition, in view oftheparties' stipulationdiscontinuing the action as against CH Gowanus Holdings, LLC (NYSCEF Doc. No. 41), the caption is amended to read as follows: -----------------------------------------------------------------------X RICARDO GUZMAN VIVEROS, Plaintiff,-agai11stMASAERATI REALTY, LLC, CH GOWANUS, LLC, NY DEVELOPERS & MANAGERS, INC., NY DEVELOPERS & MANAGEMENT, LLC, and FIRST QUALITY ELECTRIC CORP., Defendants. IndexNo.: 508782/20



## -----------------------------------------------------------------------X This constitutes th~ decision and order ofthe court.

22 

### J.S.C. 

### BON:WAVNY·musSAJNT J.

## s.c.

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