ADDITIONAL CASES Newmark Holdings, LLC and 40 Worth Associates LLC, Third-Party Plaintiffs v. Rainbow Electric Company, Inc., Third-Party Defendant; 595214/16 Whitestar Consulting & Contracting, Inc., Second Third-Party Plaintiff v. Rainbow Electric Co., Inc. and Rainbow Electric Inc., Second Third-Party Defendants; 595714/16 Motion sequence numbers 003, 004, and 005 are consolidated for disposition. In this action arising out of a construction site accident, plaintiff Roy Findley, an electrician, alleges that he was seriously burned when he was electrocuted on April 29, 2015 at the premises located at 40 Worth Street in Manhattan (hereinafter, the premises). Third-party defendant/second third-party defendant Rainbow Electric Company of New York f/k/a Rainbow Electric Company, Inc. i/s/h/a Rainbow Electric Inc. (Rainbow) moves, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint and second third-party complaint (motion sequence number 003). Defendant Whitestar Consulting & Contracting, Inc. (Whitestar) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims and counterclaims against it (motion sequence number 004). Defendants/third-party plaintiffs Newmark Holdings, LLC (Newmark) and 40 Worth Associates, LLC (40 Worth) move, pursuant to CPLR 3212, for an order: (1) dismissing the complaint and all cross claims and counterclaims against them; (2) awarding them conditional summary judgment on their cross claim for contractual indemnification against Whitestar; and (3) awarding them conditional summary judgment on their third-party claim for contractual indemnification against Rainbow (motion sequence number 005). BACKGROUND It is undisputed that 40 Worth and Newmark were the owner and managing agent of the premises. On December 18, 2014, Newmark, as agent for 40 Worth, hired Whitestar as a general contractor for the third-floor charity water build-out project. By purchase order number 3179 dated November 12, 2014, Whitestar retained Rainbow to perform electrical work. Plaintiff was an employee of Rainbow on the date of the accident. Plaintiff testified that, on the date of the accident, he had been working for Rainbow for almost one year (plaintiff tr at 19). He testified that he was “pretty much an electrician” (id.). According to plaintiff, his job was “always the same,” he was the “guy that reads the blueprint and dictates the work, pretty much” (id.). He had an accident on April 29, 2015 at the 40 Worth job location (id. at 18, 19). Three floors were being renovated at the premises (id. at 19-20). Plaintiff stated that he was at the site for “maybe ten days before the accident” in total (id. at 20-21). He had been there for about three days continuously before the accident (id. at 23). Plaintiff described his job duties as follows: “[m]y job was pretty much pretty much power distribution, so they didn’t need me to run the outlets or the lights or stuff like that. They just needed me to connect the wires” (id. at 21). He further stated that his “job would be the 4-inch pipes, the pipe guy,” and that he would “run the wires to feed that floor” (id.). Plaintiff did not “do[] the necessary outlets or lights, stuff like that. They have other guys that do that kind of…[work]” (id. at 21-22). Plaintiff’s boss, Al Dattolo (Dattolo) from Rainbow, gave him instructions as to what had to be done (id. at 23). Plaintiff was connecting the wires from the third floor to the basement (id. at 24-25). Plaintiff had not been working with live power up until the accident; he was just “ splicing the wires” (id. at 26). On the date of the accident, plaintiff started working at about 7:00 a.m. and worked all day in the basement connecting the risers (id. at 34, 35). Plaintiff “safe[d] off the area” by using wood as an insulator (id. at 35). Plaintiff testified that the last connections were to the live power (id. at 41). He asked Dattolo three times throughout the day whether they should shut off the power and the night before (id.). Dattolo told him that he had to get in touch with Tom Lambe (Lambe), the building manager (id.). Dattolo later informed plaintiff that he could not “shut down the building,” and that plaintiff had to “do it live” because they did not want to disturb the other tenants (id. at 42). The circuit breaker on the third floor was in the “off” position before he started working (id. at 59). Plaintiff called Dattolo after lunch, and plaintiff told Dattolo that “the stuff that he asked for didn’t come, like that gloves, are suit” (id. at 44). Dattolo responded to “get it done,” and to do the work without the gloves and are suit (id.). At 2:30 p.m., before plaintiff made the actual connections, plaintiff asked Dattolo to shut down the power because “it was a little bit too dangerous” (id. at 49). Dattolo again told plaintiff to do the work “live” (id.). After telling Dattolo that he did not have insulated gloves or an arc suit, Dattolo told plaintiff to “Stop being a baby” (id. at 50, 51). Plaintiff testified that there was no lockout/tagout procedure used (id. at 177, 178). According to plaintiff, it was Rainbow’s responsibility to ensure that workers used such a procedure (id. at 178). He further testified that, as far as he knew, it was standard procedure to wear a metal belt buckle when working on electrical panels (id. at 74, 75). Plaintiff stood in the back of the unit and drilled three holes into the copper busbars that were live with electrical current (id. at 46, 47). Plaintiff testified that his accident occurred as he was attempting to set the last of the three parts of electrical wire to the lug nut installed on the main panel’s electrical source (id. at 61). The electrical wire dropped inside the electrical panel, and plaintiff’s left hand became wedged in the same area, coming into contact with the busbar that contained live electrical current (id. at 61, 62). He received an electrical shock from the live current in the busbar (id. at 61, 62, 64). Plaintiff testified that the building porter had opened the electrical room for plaintiff (id. at 92). Plaintiff told him that he was connecting the wires from the riser (id.). Plaintiff further testified that, if the circuit breaker was in the wrong position upstairs, the electricity could have “back-fed” even though there was no electrical load on the system (id. at 57, 58, 61). Lambe, Newmark’s property manager, testified that Newmark hired Whitestar as a general contractor for an office build-out (Lambe tr at 8, 12). Lambe testified that he had electrical training, and that he was an operating engineer (id. at 21). According to Lambe, Dattolo asked him if he could pull wires from a pull box into the ceiling (id. at 23). Lambe said that the building would schedule a shutdown either Friday night or on the weekend (id.). Lambe testified that he controlled access to the switch gear room, and that he met Dattolo in the switchgear room at around 9:00 a.m. (id. at 25). Lambe testified that there is “no tying into anything that’s hot, everything is shut down” (id. at 26). The shutdowns were scheduled for Fridays after 9:00 p.m. and on the weekends so as not to interrupt the tenant’s normal business hours (id. at 29). After the accident, Lambe spoke with Dattolo, who said “I don’t know why he did it, I told him he wasn’t supposed to do anything like that” meaning “[t]ying into the live board” (id. at 38). According to Lambe, plaintiff “arced the lug onto the live bus detail to the frame of the switch gear,” and that there was an “arc flash” (id.). The power would have been “cut” within two weeks of the request (id. at 57, 58). An electrician would shut down the switch gear (id. at 31). He would not do it himself; “you got to be suited up, got to have all the gloves, arc shields” (id.). Dattolo testified at his deposition on October 13, 2017 that he was a consultant for Rainbow, and not an owner of Rainbow (Dattolo tr at 14, 45). He did not recall having any conversations with Lambe about shutting off the building’s power (id. at 21). Dattolo did not remember whether plaintiff ever asked for an arc suit, but also stated that plaintiff would not have any use for it (id. at 66). The live hook-up was not scheduled to be performed that day (id. at 86). He did not recall whether any Rainbow employee requested that the building shut down the power (id. at 112). Dattolo stated that plaintiff was not authorized or qualified to perform the work that he was doing at the time of the accident (id. at 121, 134). Rainbow’s employee, Adam Blitz, would have performed the connections when they were scheduled, with the power off (id. at 85, 134, 135). Whitestar provided a Standard Form Agreement Between Contractor and Subcontractor (Standard Form Agreement) (id. at 143-144). According to Dattolo, Whitestar issued these types of agreements “per job” (id. at 144). Dattolo did not believe that there was an agreement for that job; Rainbow had performed multiple jobs there, and there was one dated more than a year prior to that agreement (id.). He did internal research regarding the Standard Form Agreement and determined that it did not apply to the job at the premises (id. at 145). He believed that it applied to a project at “5-something Broadway” (id.). In an affidavit, Dattolo avers that he has been the owner of Rainbow since December 8, 2015 (Dattolo aff, 1). Dattolo states that, in April 2014, Whitestar provided him with a Standard Form Agreement in connection with a project that was scheduled to be performed at 594 Broadway in Manhattan (id., 5). “The scope of that project was to install 2000 amp feeder on lateral of 12 story building for a new chiller project” (id.). Neither Dattolo nor any Rainbow employee drafted the Standard Form Agreement (id., 6). The Standard Form Agreement does not contain a project name, project location, date of the project, or any other identifying information, and does not include the name of an “owner” (id., 7). Dattolo understood that the agreement applied to the project that it was about to commence with Whitestar at 594 Broadway (id., 8). No Whitestar representative ever told him that that agreement would apply to all work between Rainbow and Whitestar going forward (id., 9). Rainbow did not enter into an indemnification agreement with Whitestar for the 40 Worth job (id., 12). Frederick Basli (Basli) testified that he was employed by Whitestar from 2012 through February 1, 2014 (Basli tr at 10-11). Basli returned to work for Whitestar in June 2017, and is currently the director of construction (id. at 13). At the time that the Standard Form Agreement was signed by Dattolo on behalf of Rainbow on April 1, 2014, Basli did not work for Whitestar (id. at 33). Basli was not involved in negotiating the Standard Form Agreement (id.). However, Basli testified that the Standard Form Agreement was not “job specific”; rather, it was “subcontractor specific” (id. at 36). Whitestar did not “link” indemnification agreements to contracts or buildings (id.). Lawrence Budabin (Budabin), Whitestar’s project manager for the 40 Worth project, testified that he did not recall that Rainbow ever requested that the power be shut off (Budabin tr at 55). Whitestar did not direct Rainbow’s work (id. at 70). Plaintiff commenced this action on December 11, 2015, asserting two causes of action seeking recovery for: (1) common-law negligence; and (2) violations of Labor Law §§200 and 241 (6), including 12 NYCRR 23-1.13. Newmark and 40 Worth subsequently impleaded Rainbow, asserting the following four claims: (1) common-law indemnification; (2) contribution; (3) contractual indemnification; and (4) failure to procure appropriate general liability insurance coverage. Whitestar also brought a second third-party action against Rainbow, asserting eight causes of action seeking: (1) common-law indemnification; (2) contribution; (3) contractual indemnification; and (4) damages for failure to procure insurance. By so-ordered stipulation dated March 1, 2017, Newmark, 40 Worth, and Whitestar “discontinued, without prejudice their impleaders sounding in common-law negligence for ‘grave injury’” (Jones affirmation in support, exhibit M). That stipulation further provided that “[t]he contractual cause(s) of action persist and are unaffected by the instant stipulation” (id.). By stipulation of partial discontinuance filed on June 28, 2017, Newmark and 40 Worth discontinued their common-law indemnification claim against Rainbow, without prejudice (id., exhibit N). DISCUSSION “‘On a motion for summary judgment, the movant bears the burden of adducing affirmative evidence of its entitlement to summary judgment’” (Scafe v. Schindler El. Corp., 111 AD3d 556, 556 [1st Dept 2013], quoting Cole v. Homes for the Homeless Inst., Inc., 93 AD3d 593, 594 [1st Dept 2012]). “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]). “Once this requirement is met, the burden then shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial” (Ostrov v. Rozbruch, 91 AD3d 147, 152 [1st Dept 2012]). The court’s function on a motion for summary judgment is “issue-finding, rather than issue-determination” (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY3d 941 [1957] [internal quotation marks and citation omitted]). A. Labor Law §240 (1) As a preliminary matter, Newmark and 40 Worth argue that plaintiff’s Labor Law §240 (1) claim should be dismissed, because plaintiff did not sustain a gravity-related accident. However, plaintiff did not plead a cause of action seeking recovery under Labor Law §240 (1) (complaint, 29). Plaintiff also does not argue, in opposition, that he is seeking to recover damages for violation of section 240 (1) (Fischman affirmation in opposition,
