The following efiled paper read on this motion by Defendants/third-party plaintiffs Sullivan Heights, LLC (Sullivan) and Znko Construction, Inc. (Znko) for summary judgment dismissing the complaint and all cross claims against them and for summary judgment in their favor on their third-party claims for contractual indemnification and breach of contract to procure insurance against defendants/third-party defendants Cross Concrete, Inc. (Cross Concrete) and Able Fencing, Inc. (Able); and on this motion by Able for summary judgment dismissing the complaint and all cross claims and/or counterclaims and third-party claims against it; and on this motion by Cross Concrete for summary judgment dismissing the complaint and all cross claims against it; and on this motion by plaintiff for partial summary judgment in his favor on the issue of liability against Sullivan and Znko. Papers Numbered Notices of Motion — Affidavits — Exhibits EF 154-182 EF 183-210 EF 211-225 EF 227-247 Answering Affidavits — Exhibits EF 226 EF 253-270 Reply Affidavits EF 271-276 ADDITIONAL CASES Sullivan Heights, LLC and Znko Construction Inc., Third-Party Plaintiff, v. Cross Concrete, Inc. and Able Fencing, Inc., Third-Party Defendants Upon the foregoing papers it is ordered that the motions are determined as follows: On March 3, 2018, at approximately 11:00 a.m, plaintiff, an employee of nonparty New York City Department of Buildings, was allegedly injured when he tripped and fell on a piece of wood at the property located at 195 Sullivan Place in Brooklyn, New York. It is undisputed that plaintiff visited the premises to investigate a complaint about a fence that was filed several months prior to the accident. Sullivan, the owner of the property, hired Znko to act as the general contractor on the construction project. Znko, in turn, entered into subcontracts with Able, for the performance of fencing work, and Cross Concrete, for the performance of excavation and foundation work. Plaintiff subsequently commenced the within action against Sullivan, Znko, Cross Concrete, and Able under Labor Law §§241(6) and 200 and common-law negligence. On October 4, 2018, Sullivan and Znko commenced a third-party action against Cross Concrete and Able alleging claims for contractual indemnification, breach of contract to procure insurance, common-law indemnification, and contribution. Those branches of the separate motions by Sullivan and Znko, Able, and Cross Concrete for summary judgment dismissing the Labor Law §§241(6) and 200 claims against them are granted, and those branches of plaintiff’s motion for partial summary judgment in his favor on the issue of liability under Labor Law §§241(6) and 200 against Sullivan and Znko are denied. Defendants primarily argue that the Labor Law claims should be dismissed on the grounds that plaintiff, as an inspector for the New York City Department of Buildings, does not fall within the special class of persons entitled to protection under the Labor Law. In order to invoke the protections afforded by the Labor Law a “plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent” (Whelen v. Warwick Val. Civic & Social Club, 47 NY2d 970, 971 [1979]; see Stringer Musacchia, 11 NY3d 212 [2008]). Moreover, whether inspection work falls within the purview of the Labor Law “must be determined on a case-by-case basis, depending on the context of the work” (Fedrich v. Granite Bldg. 2, LLC, 165 AD3d 754 [2d Dept 2018]). Here, based on a careful review of the evidence in the record, the court finds that plaintiff, a city inspector who was only tasked with entering the premises for the sole purpose of investigating a prior complaint regarding a fence on the subject property, was not a covered person under the Labor Law (see Daeira v. Genting N.Y., LLC, 173 AD3d 831 [2d Dept 2019]; cf. Channer v. ABAX Inc., 169 AD3d 758 [2d Dept 2019]; Dubin v. S. DiFazio & Sons Constr., Inc., 34 AD3d 626 [2d Dept 2006]). Significantly, under the particular circumstances of this case, plaintiff was neither employed to perform work essential to the construction work being performed at the premises nor was he involved in any aspect of the construction project. Next, the court will address those branches of the separate motions by Able and Cross Concrete for summary judgment dismissing the common-law negligence claims against them. Where a premises condition is at issue, an owner or its agent may be liable under common-law negligence if the owner or its agent created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition (see Doto v. Astoria Energy II, LLC, 129 AD3d 660 [2d Dept 2015]; Costa v. Sterling Equip., Inc., 123 AD3d 649 [2d Dept 2014]; Martinez v. Tambe Elec., Inc., 70 AD3d 1376, 1377 [4th Dept 2010]; Ortega v. Puccia, 57 AD3d 54 [2d Dept 2008]). To provide constructive notice, the defect must be visible and apparent and exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (see Gordon v. American Museum of Natural History, 67 NY2d 836, 837 [1986]). Here, upon a thorough examination of the evidence in the record, including the deposition testimony of all parties, there are triable issues of fact, at least, as to which party created the alleged dangerous condition of the wooden debris on the walkway upon which plaintiff tripped, how long the piece of wood was present in the walkway, and who was responsible for remedying such condition. As such, the branches of the separate motions by Able and Cross Concrete for summary judgment dismissing the common-law negligence claims against them are denied. That branch of Sullivan and Znko’s motion for summary judgment dismissing the common-law negligence claim against them is, however, granted, and that branch of plaintiff’s motion for summary judgment on said claim is denied. There is no allegation that Sullivan and Znko created the alleged dangerous condition of the wooden debris in the walkway or had actual notice of such condition. Furthermore, with respect to the issue of constructive notice, plaintiff failed to offer any evidence indicating how long the subject piece of wood was laying in the walkway prior to his accident. The inability of the plaintiff to make the required showing of when the alleged defect existed “creates the possibility that the condition may have emanated only moments before the accident, through no fault or with no knowledge of the defendant, any other conclusion being pure speculation” (Deegan v. 336 E. 50th St. Tenants Corp., 216 AD2d 59 [1st Dept 1995]). In addition, Justin Wechsler, the site superintendent, testified at his deposition that, on the date of the accident, he walked through the work site from 9:46 a.m. to 10:28 a.m., only thirty minutes prior to plaintiff’s accident, and did not observe any hazardous conditions at the time of his inspection. In light of the dismissal of the main action against Sullivan and Znko, the cross claims for common-law indemnification and contribution insofar as asserted against them as well their cross claims and third-party claims for contractual indemnification, common-law indemnification, and contribution against Cross Concrete and Able are dismissed as academic (see Payne v. 100 Motor Parkway Assoc., LLC, 45 AD3d 550 [2d Dept 2007]; Rogers v. Rockefeller Group Intl., Inc., 38 AD3d 747 [2d Dept 2007]; Cardozo v. Mayflower Ctr., Inc., 16 AD3d 536 [2d Dept 2005]). Therefore, those branches of Sullivan and Znko’s motion for summary judgment dismissing all cross claims asserted against them and for summary judgment in their favor on the third-party claims for contractual indemnification against Cross Concrete and Able, that branch of Cross Concrete’s motion for summary judgment dismissing all cross claims against it, and those branches of Able’s motion for summary judgment dismissing all cross claims and the third-party claims for contractual indemnification, common-law indemnification, and contribution against it are denied as moot. Notwithstanding dismissal of plaintiff’s complaint against Sullivan and Znko, their third-party claims for breach of contract to procure insurance against Cross Concrete and Able are not rendered academic (see Natarus v. Corp. Prop. Investors, Inc., 13 AD3d 500 [2d Dept 2004]). A promisee seeking summary judgment based upon a promisor’s failure to name the promisee as an additional insured, as required by the contract between the two, need only show that the contract so required and that the promisor failed to comply with this provision (see Keelan v. Sivan, 234 AD2d 516 [2d Dept 1996]). Initially, it is noted that the separate subcontracts between Znko and Cross Concrete and Znko and Able contain identical insurance procurement provisions. Pursuant to paragraph 2 of the subcontracts, Cross Concrete and Able were required to purchase commercial general liability insurance which must “include contractual liability coverage and additional insured coverage for the benefit of the Contractor, Owner and anyone else the Owner is required to name (as set forth in-the schedule below), and shall specifically include coverage for completed operations.” The list of additional insureds in the agreements included both Sullivan and Znko. Cross Concrete and Able, however, failed to offer any evidence as to whether they procured the requisite insurance naming Sullivan and Znko as additional insureds. Moreover, contrary to Able and Cross Concrete’s contention, the issue of whether insurance coverage was triggered by the circumstances of plaintiff’s accident is irrelevant. Therefore, that branch of the motion by Sullivan and Znko for summary judgment on their third-party claims for breach of contract to procure insurance against Cross Concrete and Able is granted, and that branch of Able’s motion for summary judgment dismissing said third-party claim against it is denied. Finally, those branches of Cross Concrete and Able’s separate motions for summary judgment dismissing the cross claims for common-law indemnification and contribution against them are denied. As previously discussed, neither Cross Concrete nor Able established their freedom from negligence with regard to the happening of plaintiff’s accident (see Chilinski v. LMJ Contr., Inc., 137 AD3d 1185, 1188-1189 [2d Dept 2016]; Assevero v. Hamilton & Church Props., LLC, 131 AD3d 553, 558 [2d Dept 2015]). Therefore it is, ORDERED, that those branches of Sullivan and Znko’s motion for summary judgment dismissing the complaint against it and for summary judgment in their favor on the third-party cause of action for breach of contract to procure insurance against Cross Concrete and Able are granted. In all other respects, Sullivan and Znko’s motion is denied; and it is further, ORDERED, that the motion by Able for summary judgment dismissing the complaint and all cross claims and/or counterclaims and third-party claims against it is denied; and it is further, ORDERED, that the motion by Cross Concrete for summary judgment dismissing the complaint and all cross claims against it is denied; and it is further, ORDERED, that Plaintiff’s motion for partial summary judgment in his favor on the issue of liability against Sullivan and Znko is denied. This constitutes the decision and Order of the Court. Dated: September 24, 2021
