DECISION AND ORDER The within decision consolidates Motion Sequence Nos. 010, 011, 012, and 013 for disposition. In Motion Sequence No. 010, defendant Works In Progress, Inc. (“WIP”) moves for an order, pursuant to CPLR 3212, granting summary judgment in its favor, dismissing plaintiff Peter Treacy’s (“Treacy” or “plaintiff”) complaint and all cross-claims against it with prejudice. In Motion Sequence No. 011, defendants Microsoft Corp. (“Microsoft”) and Marriott International, Inc. (“Marriott”) move for an order, pursuant to CPLR 3212, granting summary judgment in their favor, dismissing plaintiff’s complaint and all cross-claims asserted against them, awarding Microsoft contractual indemnification against defendant Inspired Event Productions, Inc. a/s/h/a Inspired Event Productions LLC (“Inspired”), and awarding Microsoft and Marriott common law indemnification against Inspired. In Motion Sequence No. 012, defendants Ports America, Inc. (“Ports America”) and Port Newark Container Terminal, LLC (“PNCT”) move for an order, pursuant to CPLR 3212, granting summary judgment in their favor, dismissing plaintiff’s complaint and all cross-claims against them with prejudice. In Motion Sequence No. 013, defendant Inspired moves for an order, pursuant to CPLR 3212, granting summary judgment in its favor, dismissing plaintiff’s complaint and all cross-claims against it. For the reasons stated herein, Motion Sequence No. 010 is granted in its entirety; Motion Sequence No. 011 is granted to the extent that Mariott and Microsoft are granted summary judgment dismissing plaintiff’s complaint and all cross-claims asserted against them, but denied to the extent that Marriot and Microsoft are denied summary judgement seeking common law indemnification against defendant Inspired, and Microsoft is denied summary judgment seeking contractual indemnification against Inspired; Motion Sequence No. 012 is granted without opposition; and Motion Sequence No. 013 is granted in its entirety. Factual and Procedural Background The factual and procedural background, as relevant to the motions disposed of herein, is as follows: Plaintiff commenced this action to recover damages for personal injuries he allegedly sustained during the course of his employment when, on July 3, 2011, a stack of crates was pulled onto him from a truck he was helping to unload at the New York Marriot Marquis Hotel (the “hotel”) located at 1535 Broadway in Manhattan. On August 27, 2012, Plaintiff filed a verified complaint dated August 15, 2012 asserting claims sounding in common law negligence solely against defendant Inspired. NYSCEF Doc. No. 1. On May 2, 2013, Plaintiff filed an amended verified complaint dated April 29, 2013 adding defendants WIP, Clark Transfer Inc. (“Clark”), Fairexx, Microsoft, US Techs, Experient, Inc. (“Experient”), Conference Direct, Eastside Container, Ports America, and PNCT with no changes or additions to the causes of action alleged. NYSCEF Doc. No. 11. By order dated May 1, 2014, this Court (Kern, J.) granted default judgments against defendants Clark, Fairexx, Conference Direct, and Eastside Container for their failure to answer or appear in this action and granted plaintiff leave to amend the complaint to add Marriott as a defendant. NYSCEF Doc. No. 84. By order dated September 2, 2014, this Court (Kern, J.) granted defendant Experient’s unopposed motion for summary judgment and dismissed the complaint and all cross-claims asserted against it. NYSCEF Doc. No. 141. The remainder of the action was severed and ordered to continue as against the remaining defendants. Id. By order dated December 4, 2014, this Court (Kern, J.) granted defendant US Techs’ unopposed motion for summary judgment and dismissed the complaint and any and all cross-claims asserted against it. NYSCEF Doc. No. 70. On or about February 3, 2015, plaintiff supplemented his original bill of particulars dated December 17, 2013 with regard to plaintiff’s alleged injuries. Plaintiff served a third supplemental bill of particulars dated March 4, 2015, which also expanded on claimed damages, but did not add any new theories of liability. Finally, in his amended bill of particulars dated February 5, 2016, approximately three and a half years after the original complaint was filed, plaintiff alleged, for the first time, new theories of liability under New York Labor Law Sections 200, 240(1), and 241(6) against the remaining defendants. The remaining defendants, WIP (Mot. Seq. No 010), Microsoft and Marriot (Mot. Seq. No. 011), PNCT (Mot. Seq. No. 012), and Inspired (Mot. Seq. No. 013) (collectively, the “moving defendants”) now move, respectively, for summary judgment dismissing the complaint in its entirety and all cross-claims asserted against them. Microsoft, in addition to moving for dismissal of the complaint in its entirety in Motion Sequence No. 011, also seeks summary judgment on its cross-claims for contractual and common law indemnification against Inspired. Marriott also seeks summary judgment against Inspired for common law indemnification only. Plaintiff opposes Motion Sequence Nos. 010, 011, and 013, and cross-moves for summary judgment on his claims based upon Labor Law 240(1) and 241(6) and attempts to raise a triable issue of fact on his Labor Law 200 claim. Plaintiff does not address his non-labor law claims in his opposition. Motion Sequence No. 012 is not opposed by plaintiff. Indeed, in plaintiff’s affirmation in support of his cross-motion against the other defendants, plaintiff affirmatively states that he takes no position with respect to the motion by defendants Ports America and PNCT. Accordingly, Mot Seq. 012 is granted without opposition and the complaint and all cross-claims against Ports America and PNCT are dismissed in their entirety with prejudice. Discussion Plaintiff’s Labor Law and Common Law Negligence Claims A threshold issue for claims under the New York Labor Law is whether the plaintiff was a person “employed” in a capacity that is protected under the Labor Law. Gibson v. Worthington Div. of McGraw-Edison Co., 78 N.Y.2d 1108, 1109 (1991). Labor Law section 200 requires that the plaintiff is “employed” in construction. Id. (dismissing plaintiff’s Labor Law section 200 cause of action on the ground that because plaintiff’s company had not been hired to perform any “construction work” on the premises at the time the accident occurred, plaintiff was not a person “employed” as defined under Labor Law section 200). Under Labor Law section 240(1), the threshold issue is whether the plaintiff was injured while employed in ‘”the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’” (collectively the “covered,” “protected,” or “enumerated” activities). Soto v. J. Crew Inc., 21 N.Y.3d 562, 566 (2013) (quoting Labor Law §240(1)); see also Martinez v. City of New York, 93 N.Y.2d 322 (1999). For claims under section 241(6) of the Labor Law, a plaintiff must have been engaged in “construction, demolition or excavation” work. Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 528 (2003). Even viewing all the evidence in the light most favorable to the plaintiff, the Court finds that there are no triable issues of fact that could give rise to a conclusion that plaintiff was covered under any of these sections of the Labor Law. Treacy’s employer, Budd, was contracted to provide cross-town trucking and union labor for loading and unloading component pieces of scenic sets and display booths to be assembled and used at an event hosted at the hotel, Microsoft’s Imagine Cup 2011. As an employee of Budd, Treacy’s sole task in relation to the Imagine Cup event was to unload a truck at the hotel’s loading dock. Once off the truck, a team of “pushers” from a separate union and non-party employer were tasked with transporting the materials from the loading dock into the hotel and into the ballroom on different floor by way of a freight elevator. Indeed, in accordance with local union practices, no Budd employee was required or even permitted to transport any materials beyond the loading dock. Neither Treacy nor his employer played any role in the assembly of the putative structures for the event, which was completed by an entirely different entity inside the ballroom at a location far removed from the loading dock. Regardless of whether the portable booths and scenic sets constitute a “structure” for Labor Law construction purposes, Treacy’s work activities were not covered by the Labor Law. Neither Budd nor Treacy was employed to perform construction, Treacy was not engaged in any of the protected or enumerated activities, nor was he working in a construction area. Rather, the general context of Treacy’s work fell into a “separate phase easily distinguishable from other parts of the larger construction project.” Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 881 (2003). As Treacy’s sole task of unloading trucks was distinct from any possible claimed construction, “there is a bright line separating the enumerated and nonenumerated work.” Beehner v. Eckerd Corp., 3 N.Y.3d 751, 752 (2004). Indeed, Treacy’s work activities were essentially no different than that of a UPS or FedEx driver dropping off packages at a loading dock containing component parts that would ultimately be used in construction. In sum, Treacy’s work activities were simply too far removed from any alleged construction for the Labor Law to apply. Thus, the pushers, for example, who brought the crates in from the loading dock to the hotel and up to the ballroom, whereupon the purported construction occurred, might have been covered under the Labor Law, Treacy, who never left the loading dock, is not. For all of the foregoing reasons, plaintiff was not a person covered by the Labor Law at the time of the accident. He was not employed in construction nor engaged in any of the enumerated activities as required to bring claims under Labor Law sections 200, 240(1) or 241(6). Accordingly, the moving defendants are granted summary judgment on all of plaintiff’s Labor Law claims. In addition to plaintiff’s failure to raise triable issues of fact that he was covered under the Labor Law, plaintiff’s negligence claims under Section 200 of the Labor Law, as well as his common law negligence claims, fail for additional reasons. Section 200 of the Labor Law is the codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. Cruz v. Toscano, 269 A.D.2d 122 (1st Dep’t 2000). It is well settled that in order to find an owner or his agent (e.g., a general contractor) liable under Labor Law section 200 for defects or dangers arising from a subcontractor’s methods or materials, it must be shown that the owner or agent exercised some supervisory control over the injury-producing work. See Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877 (1993); Fresco v. 157 E. 72nd St. Condo., 2 A.D.3d 326, 328 (1st Dep’t 2003) (finding that the plaintiff submitted no evidence that the defendant had the right to control his work, or in fact controlled the injury-producing activity); Cruz, 269 A.D.2d at 123 (holding that the duty to provide a safe workplace was not breached where the plaintiff’s injuries arose out of an alleged defect in his employer’s tools and methods). The same standard applies to claims for common law negligence. Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993) (“This rule [regarding liability for negligence] is an outgrowth of the basic common-law principle that ‘an owner or general contractor [sh]ould not be held responsible for the negligent acts of others over whom [the owner or general contractor] had no direction or control.’” (second and third alterations in original) (quoting Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 297 (1978))). Here, the surveillance video shows that it was the manner of the work that led to the injury. While there is conflicting testimony as to whether this plan was devised as a group or solely by George Holtzer, Budd’s alleged foreman, it is uncontested that no person other than plaintiff’s employer, Budd, gave plaintiff any instruction on how to unload the crates on the date of the accident. Thus, there is no genuine issue of material fact as to whether any of the moving defendants’ employees exercised actual supervision or control over the worksite where plaintiff was injured to hold them liable for plaintiff’s injuries. See Ross, 81 N.Y.2d at 55-56. Further, a contractor’s general supervisory control is insufficient to impute liability. See Sparendam v. Lehr Constr. Corp., 24 A.D.3d 388, 389 (1st Dep’t 2005). Nor is the mere presence of the general contractor’s personnel at the worksite sufficient to infer supervisory control. See In re New York City Asbestos Litig. (A.C. & S., Inc.), 25 A.D.3d 374 (1st Dep’t 2006). For the foregoing reasons, the moving defendants are granted summary judgment on plaintiff’s Labor Law section 200 and common law negligence claims.1 The cases cited by plaintiff in opposition to defendants’ summary judgment motions do not require a different result. With the exception of Locicero v. Princeton Restoration, Inc., 25 A.D.3d 664 (2d Dep’t 2006), there is no dispute in any of the cases cited by Treacy that the plaintiffs therein were construction workers and the injuries occurred at active construction sites. In Locicero, a plaintiff who was delivering rebar to the second floor of a building that was undergoing construction, at the direction of the contractor performing cement work, was injured. Labor Law 240(1) was found to apply in that case, in part, because unlike Treacy, the delivery task in Locicero required that the plaintiff actually enter an active construction site to deliver rebar that was to be immediately used in the ongoing cement operation. In the instant litigation, the delivery responsibilities fell on the pushers. As such, Treacy was not injured at an active construction site. In the end, given the nature and location of the work at the time of the accident, plaintiff was not within the class of workers the Labor Law was enacted to protect. Microsoft’s and Marriott’s Cross-claims for Common Law Indemnification against Inspired Microsoft and Marriott move for summary judgment on their cross-claim against Inspired for common law indemnification on the basis that this action arises out of the negligence of Inspired or its subcontractor, Budd. Conversely, Inspired moves for summary judgment dismissing Microsoft’s and Marriott’s cross-claim arguing that there are no genuine issues of material fact under which Inspired could be found negligent and, therefore, common law indemnification must be dismissed on that basis. To the extent that either Microsoft or Marriott were potentially liable for the negligence of Inspired or Budd, there would be triable issues of fact as to whether Microsoft and Marriott were entitled to common law indemnification by Inspired. However, here, neither Microsoft nor Marriot are liable for any negligence. Accordingly, neither entity is entitled to indemnification as there is no potential triable issue of fact as to whether Budd was a subcontractor of Inspired based on the “pass-through” arrangement of the Amended Statement of Work/Schedule between Microsoft and Inspired (NYSCEF Doc. No. 255). However, because there is no negligence on behalf of either entity and no such issue of fact, Microsoft and Marriott’s motion seeking summary judgment on its cross-claim for common law indemnification is denied as moot and Inspired’s motion seeking dismissal of this cross-claim is granted. Microsoft’s Cross-claim for Contractual Indemnification Against Inspired Microsoft moves for summary judgment on its cross-claim against Inspired for contractual indemnification based upon the Master Vendor Agreement between Microsoft and Inspired (NYSCEF Doc. No. 253) on the basis that this action arises out of the negligence of Inspired or its subcontractor, Budd. Conversely, Inspired moves for summary judgment dismissing Microsoft’s cross-claim arguing, inter alia, that the contractual indemnification must be dismissed pursuant to the mandatory forum selection clause found in Section 12(b) of the Master Vendor Agreement which provides, in relevant part, that in the absence of federal jurisdiction, “the parties consent to the exclusive jurisdiction and venue in the Superior Court of King County, Washington.” Id. (emphasis added). Forum selection clauses are prima facie valid and shall not be set aside unless the opposing party can show “fraud or overreaching or where the enforcement of the clause would be so unreasonable and unjust as to make a trial in the selected forum ‘so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court.’” Shah v. Shah, 215 A.D.2d 287, 288 (1st Dep’t 1995) (quoting British W. Indies Guar. Trust Co., Ltd. v. Banque Internationale A Luxembourg, 172 A.D.2d 234, 234 (1st Dep’t 1991)). While Microsoft concedes in its papers that the laws of Washington state govern the interpretation and enforcement of the contract, it does not address the forum selection clause. Accordingly, Microsoft “failed to show either that enforcement of the clause would be unreasonable, unjust, or would contravene public policy, or that the clause is invalid because of fraud or overreaching.” Koko Contracting, Inc. v. Cont’l Envtl. Asbestos Removal Corp., 272 A.D.2d 585, 586 (2d Dep’t 2000). Notably, Microsoft maintains its headquarters in Washington state. Further, indemnification is generally a “separate substantive” claim independent from the underlying action. McDermott v. City of New York, 50 N.Y.2d 211, 218 (1980). The Court also notes that despite the age of the underlying action, the statute of limitations for indemnification claims generally do not accrue until the party seeking its enforcement has paid the injured person. Id. Accordingly, the Court dismisses Microsoft’s cross-claim for indemnification against Inspired because Microsoft sued in the wrong venue. In accordance with the foregoing, it is hereby ORDERED that Motion Sequence No. 010 is granted in its entirety and the complaint and all cross-claims are dismissed as against defendant Works in Progress, Inc.; and it is further, ORDERED that the branch of Motion Sequence No. 011 seeking summary judgment on plaintiff’s claims is granted to the extent that plaintiff’s complaint and all cross-claims are dismissed as against defendants Microsoft Corp. and Marriott International, Inc.; and it is further, ORDERED that the branch of Motion Sequence No. 011 seeking summary judgment on defendants Microsoft Corp. and Marriott International, Inc.’s cross-claim against defendant Inspired Event Productions, LLC for common law indemnification is denied; and it is further, ORDERED that the branch of Motion Sequence No. 011 seeking summary judgment on defendants Microsoft Corp.’s cross-claim against defendant Inspired Event Productions, LLC for contractual indemnification is denied; and it is further, ORDERED that Motion Sequence No. 012 is granted in its entirety and the complaint and all cross-claims are dismissed as against defendants Ports America, Inc. and Port Newark Container Terminal (“PNCT”); and it is further, ORDERED that Motion Sequence No. 013 is granted in its entirety and the complaint and all cross-claims are dismissed as against defendant Inspired Event Productions, LLC; and it is further, ORDERED that plaintiff’s cross-motions for summary judgment, pursuant to CPLR 3212, on his Labor Law sections 240(1) and 241(6) claims are denied. This constitutes the decision and order of this Court. Dated: November 15, 2019
