Notice of Motion — Exhibits and Affidavits Annexed 51-66 Answering Affidavit and Exhibits, Memorandum of Law 84-91, 92-98 Reply Affidavit108-115Sequence No. 3Doc. Nos. Notice of Motion — Exhibits and Affidavits Annexed 67-83 Answering Affidavit and Exhibits, Memorandum of La 100-105 Reply Affidavit 107 Upon the foregoing papers, the motions listed above are decided in accordance with the annexed decision and order. Adrian Armstrong, J. Upon the foregoing papers, the motion of the plaintiffs for summary judgment under Labor Law 240(1) and 241(6), and the separate motion of the defendants for summary judgment against third party defendant Wellbuilt Construction Enterprises, LLC (“Wellbuilt”), for contractual indemnity and for judgment for breach of contract for failure to procure insurance, are decided as follows. On May 22, 2015, plaintiff,1 an employee of third party defendant Wellbuilt, was present at a construction project involving the demolition of the 38th floor of a building located at 1250 Broadway in Manhattan. Plaintiff testified that he was assigned on an emergency basis to remove bolts from a ceiling, and that he did so by using an angle grinder and a scaffold. He described the scaffold as having two fixed sides, with a platform approximately 5 to 8 feet from ground level. He testified that he was not provided with eye protection. He stated that he cut through each bolt to a point approximately half the diameter of the bolt, and then used a hammer to break off the extruding piece. Plaintiff testified that when he struck a bolt, a piece hit him in the eye, causing him to fall from the scaffold. Third party defendant’s on-site manager, Vukaj, testified that plaintiff was employed in a limited capacity as a laborer for cleaning and preparation only. He was supplied with a stepladder, protective eyeglasses, gloves and a broom. Vukaj testified that he personally directed plaintiff’s activities, and that plaintiff was never assigned or instructed to remove bolts or use a scaffold. Further, Vukaj was not aware until long after the fact that plaintiff claimed that he was injured in a fall from a scaffold. The workers’ compensation report of injury prepared by Wellbuilt states that the activity of the plaintiff at the time of the injury was unknown, that plaintiff was employed as a laborer, and that his activities included “load and unload materials, clean debris and prepare sites, [and] assist other workers.” Plaintiff seeks summary judgment as to liability. However, the facts are sharply disputed, precluding summary judgment. As defendants argue, there are issues of fact as to how the accident occurred, and as to whether plaintiff exceeded the scope of his employment. In similar cases, it has been held that where the job duties of the plaintiff are disputed and those duties arguably do not include elevation-related risks, summary judgment is improper. For example, in one recent First Department case, the court held: “Plaintiff commenced this action to recover for personal injuries he allegedly sustained when he fell from a utility pole while attempting to troubleshoot a cable installation activation that did not work. However, his supervisor submitted an affidavit asserting, inter alia, that plaintiff’s sole job functions were as a manager, providing administrative services and training, assessing materials and equipment needed for a job, and occasionally following up with an activation from ground level only, but that in no event were his duties to entail climbing any poles. “Supreme Court correctly determined that issues of fact exist as to whether the aerial work plaintiff contends he was performing when he fell was outside the scope of his employment and thus outside the protection of Labor Law §240 (1) (Simoes v. City of New York, 81 AD3d 514, 917 NYS2d 163 [1st Dept. 2011]; Vega v. Renaissance 632 Broadway, LLC, 103 AD3d 883, 885, 962 NYS2d 200 [2d Dept. 2013]). Moreover, Supreme Court correctly determined that issues of fact exist as to how the accident occurred. Specifically, the individual who performed that activation testified that plaintiff was not present, and he could not recall any problems with the activation (see Macchia v. Nastasi White, Inc., 26 AD3d 225, 809 NYS2d 47 [1st Dept 2006]).” (McCue v. Cablevision Sys. Corp., 160 AD3d 595, 595-596, 75 N.Y.S.3d 170, 171 [1st Dept. 2018].) Plaintiff argues that since his duties included “prepar[ing] sites,” the work in which he claims he was engaged is clearly within the scope of his duties. The Court rejects this argument. Plaintiff reads too much into a single phrase, and has not established the scope of his employment included elevation-related risks. In addition, apart from the foregoing issues, there is no showing that defendants’ property manager, defendant Murray Hill Properties, is liable for the happening of the accident. With respect to liability under Labor Law 240(6), plaintiff relies on Industrial Code 23-1.8(a) (eye protection) and 23-1.8(c)(1) (head protection). There are issues of fact as to whether eye protection was provided. As to head protection, plaintiff has not shown that this section is applicable under the instant facts. 12 NYCRR 23-1.8 (c) (1) provides: “Every person required to work or pass within any area where there is a danger of being struck by falling objects or materials or where the hazard of head bumping exists shall be provided with and shall be required to wear an approved safety hat.” In order to prevail on a Labor Law §241 (6) cause of action premised upon a violation of 12 NYCRR 23-1.8 (c) (1), the plaintiff must establish “that the job was a ‘hard hat’ job, and that the plaintiff’s failure to wear a hard hat was a proximate cause of his injury” (McLean v. 405 Webster Ave. Assoc., 98 AD3d 1090, 1095, 951 NYS2d 185 [2012] [citations and internal quotation marks omitted]). Plaintiff has not established as a matter of law that there existed a danger of being struck by falling objects or materials. (Seales v. Trident Structural Corp., 142 AD3d 1153, 1157, 38 N.Y.S.3d 49, 54 [2d Dept. 2016].) By separate motion, the defendants seek judgment against the third party defendant Wellbuilt for contractual indemnity and failure to procure insurance. As to failure to procure insurance, it appears that insurance was provided but a disclaimer issued. The moving defendants have not established a breach of contract based on the disclaimer. (Zurich Am. Ins. Co. v. Tower Natl. Ins. Co., 159 AD3d 418, 420, 72 N.Y.S.3d 50, 52 [1st Dept. 2018] ["It is unclear from the record whether or not the insurer has actually disclaimed coverage and, if so, on what basis. Thus, issues of fact exist as to whether the insurance coverage purportedly procured by Port Richmond satisfied its contractual obligation."].) As to the indemnification, defendants rely on a contract (AIA Document A107 — 1997) which states that it pertains to “Restrooms on the 38th Floor.” It is undisputed that the accident did not occur in a restroom. Defendants argue that Article 1, entitled “THE WORK OF THIS CONTRACT”, is further “described in the Contract Documents.” Likewise, §6.3, entitled THE WORK, defines the term “Work” as meaning “the construction and services required by the Contract Documents [defined elsewhere, in §6.1], Section 6.1 further states that, “The Contract Documents consist of this Agreement Drawings, Specifications, Addenda issued prior to the execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement. To the extent that defendants argue that the Contract Documents, including the proposal of Wellbuilt and the list of specifications, “nowhere limit the Work to the bathrooms,” defendants have nevertheless not established as a matter of law that the present document was intended to cover all work performed by Wellbuilt. Those issues not addressed herein are found to be without merit. Accordingly, it is hereby, ORDERED that the motions of the plaintiffs and the defendants are denied. This is the Decision and Order of the Court. Dated: November 18, 2020
