The following papers having been read on this motion: Notice of Motion (DAL) 1 Notice of Cross-Motion and Opposition to Motion (Queens, Cheesecake, and Shawmut) 2 Opposition (to Motion and Cross-Motion) (Plaintiff) 3 Opposition to Cross-Motion (DAL) 4 Reply to Plaintiff’s Opposition (DAL) 5 Reply to Co-Defendants’ Opposition (DAL) 6 Defendant DAL has moved for summary judgment, pursuant to CPLR §3212, seeking summary judgment to dismiss all Plaintiff’s claims against it under the Labor Law, as well as any cross-claims presented by Co-Defendants for indemnification. Defendants Queens, Cheesecake, and Shawmut have opposed this application, but have also cross-moved for dismissal of Plaintiff’s complaint as asserted against them. Plaintiff has opposed both applications. After review and consideration, Defendant DAL’s motion is hereby granted to the following extent and the cross-motion by Defendants Queens, Cheesecake, and Shawmut is also granted to the following extent. The facts and circumstances of this labor law matter occurred on or about June 26, 2016, between approximately 8:30am and 9:00am, when Plaintiff was working for non-party Orion, a subcontractor on this particular project. At this particular job site, Defendant Queens was the owner of the building, Defendant Cheesecake was the client and soon-to-be tenant of the premises being renovated, Defendant Shawmut was the general contractor for the project, and Defendant DAL was the electrical subcontractor for the project. Plaintiff, a member of Carpenter’s Local 45 union, was working on this morning installing Sheetrock in a particular area. It appears undisputed between the parties that the project required several workers of various specialties to be working simultaneously on this project, as the restaurant being constructed was due to open on September 1. While Plaintiff was at a ground level elevation, he went to go retrieve some work material; upon his return to his work area, he tripped and fell from cable wire laying on the floor, causing injury. It also appears undisputed in the moving papers that Defendant DAL was the only subcontractor on the project who was working with the subject cable that caused Plaintiff to trip and fall. Nevertheless, Plaintiff’s complaint, as amplified by the bill of particulars and supplemental bill of particulars, asserts claims under Labor Law §240(1), §241(6), and §200. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1968). To make a prima facie showing, the motion must be supported by affidavit, but a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). To established a prima facie case under the scaffold law, a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged. Shipkoski v. Watch Case Factory Associates, 292 AD2d 587, 741 NYS2d 55 (2nd Dept., 2002); see also Labor Law §240(1). Here, the deposition transcript of Plaintiff makes clear that his injury occurred not as the result of an elevation related hazard, as he was not the party elevated during this incident; rather, he was walking on ground level while a worker for Defendant DAL was installing cable while elevated off the ground. Thus, Labor Law §240(1) is inapplicable to all the Defendants herein, and both the motion and cross-motion are granted, dismissing this theory of liability in its entirety. Turning now to Plaintiff’s next claim under Labor Law §241(6), such a plaintiff must allege that a specific and concrete provision of the Industrial Code was violated and that the violation proximately caused his injuries. Keener v. Cinalta Construction Corp., 146 AD3d 867, 45 NYS3d 179 (2nd Dept., 2017). To the extent that plaintiff has asserted a viable claim under this section, he need not show that defendant exercised supervision or control over his worksite in order to establish his right of recovery. Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 601 NYS2d 49 (1993). A subcontractor may be held liable for negligence where the work it performed created the condition that caused the plaintiff’s injury even if it did not possess any authority to supervise and control the plaintiff’s work or work area. Poracki v. St. Mary’s Roman Catholic Church, 82 AD3d 1192, 920 NYS2d 333 (2nd Dept., 2011). Plaintiff’s bill of particulars alleges a violation by Defendants of 12 NYCRR §23-1.2, §23-1.4, §23-1.5, §23-1.7(d), (e)(1) and (e)(2), as well as 29 CFR §1926.10, §1926.20, §1926.21, §1926.200, and §1926.250. However, neither 12 NYCRR §23-1.2, §23-1.4, and §23-1.7(d), nor 29 CFR §1926.10 can be used to form an independent basis for a cause of action asserted under this section of the Labor Law, as these sections do not contain language setting standards for work place safety per se. Rather, these sections are merely introductory to the larger code sections and statutes they belong to. Likewise, given the testimony of Plaintiff, in which he undoubtedly states that the cause of his fall and subsequent injury was a trip over something, not a slip, the provisions of 12 NYCRR §23-1.7(d) are misplaced herein. Thus, the portions of the motion and cross-motion seeking dismissal of Plaintiff’s claim under Labor Law §241(6) citing violations of these codes are granted and same dismissed forthwith. On the other hand, this Court is unable to resolve the issue of liability for all Defendants with respect to the remaining codes alleged by Plaintiff. The papers before the Court are insufficient to determine if violations of the general responsibilities of the Defendants encompassed in 12 NYCRR §23-1.5 and 29 CFR §1926.20, the standards for keeping passageways and working areas free from tripping hazards as stated in 12 NYCRR §23-1.7(e)(1) and (e)(2), or the safety training, signage requirements, and material storage requirements incorporated as part of 29 CFR §1926.21, §1926.200, and §1926.250, have occurred by Defendants on the papers alone, and finds that such a question is best resolved by a jury hereafter. Moreover, even though Defendant DAL was a subcontractor on the job site, the proof before the Court indicates that its work performed created the condition that injured Plaintiff. Accordingly, the portions of Defendant DAL’s motion and the cross-motion by Defendants Queens, Cheesecake, and Shawmut, seeking summary judgment to dismiss Plaintiff’s Labor Law §241(6) under these code sections are both hereby denied. Next, under Labor Law §200(1), in order to establish liability, it must be established that the owner or contractor defendant had the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition. Biafora v. City of New York, 27 AD3d 506, 811 NYS2d 764 (2nd Dept., 2006). Here, it appears undisputed that the general contractor of the project was Defendant Shawmut and no argument has been asserted in the cross-motion that Defendants Queens and/or Cheesecake did not have control over the project to the same extent. Nonetheless, the evidence before the Court suggests that the work being performed by the workers for Defendant DAL in installing the cable was sufficiently controlled by Defendant DAL. Therefore, it cannot be said as a matter of law that Plaintiff’s claim under Labor Law §200(1) should be dismissed as to any Defendant, since a question of fact exists as to who had the authority to control this activity. As such, the portion of the motion and the remaining portions of the cross-motion are hereby denied as to Plaintiff’s claim under this statute. The remaining application before the Court involves the requested dismissal by Defendant DAL of the cross-claims for indemnification asserted by Defendant Shawmut. The right to contractual indemnification depends upon the specific language of the contract and the promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances. McDonnell v. Sandaro Realty, Inc., 165 AD3d 1090, 87 NYS3d 86 (2nd Dept., 2018). Indemnification provisions are to be strictly construed. McCoy v. Medford Landing L.P., 164 AD3d 1436, 84 NYS3d 223 (2nd Dept., 2018). Contrary to Defendant DAL’s assertion, that Plaintiff’s injury could not have been caused by workers for Defendant DAL since said workers dispute the allegation that excess cable line they were working with was off the spool or strewn about on the floor, the testimony before the Court appears in conflict to this position. Once again, the Court is left with an issue of credibility between witnesses that is best reserved for a jury to decipher. Accordingly, the remaining portions of Defendant DAL’s motion must be denied. Ruiz v. Griffin, 71 AD3d 1112, 898 NYS2d 590 (2nd Dept., 2010). Defendant DAL shall file and serve a copy of the within order with notice of entry upon all parties within twenty (20) days from the date of this order. The parties shall appear as scheduled in the DCM Trial Part of Supreme Court, Nassau County, on March 16, 2019, at 9:30 am. All other requests for relief not specifically addressed in the foregoing shall be deemed denied herein. This hereby constitutes the decision and order of this Court. Dated: February 19, 2020
