ADDITIONAL CASES Roseland Development Associates, LLC, and Pavarini McGovern, LLC, Third-party Plaintiffs v. All Safe LLC, Third-party Defendants DECISION AND ORDER The Court consolidates motion sequences 002 and 003 for disposition. In this action for personal injuries asserting violations of the Labor Law, plaintiff Damien Brennan (plaintiff) moves, pursuant to CPLR 3212, for partial summary judgment on the issue of liability under Labor Law §§240 (1) and 241 (6) (motion sequence number 002). Third-party defendant All-Safe, LLC (All-Safe) cross-moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff’s Labor Law §§240 (1) and 241 (6) claims. Defendants/third-party plaintiffs Roseland Development Associates, LLC (Roseland) and Pavarini McGovern, LLC (Pavarini) move, pursuant to CPLR 3212, for: (1) summary judgment dismissing the complaint and any counterclaims against them; and (2) summary judgment on their contractual indemnification claim against All-Safe (motion sequence number 003). All-Safe cross-moves, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint. This action arises out of an accident that occurred on January 31, 2017, at 242 West 53rd Street in Manhattan (the premises). It is undisputed that Roseland was the owner of the project, and that Pavarini was the general contractor hired to construct a new 63-story residential building. Pavarini retained All-Safe as a subcontractor to install, repair, and maintain the exterior hoists on the project. Plaintiff was employed as an elevator mechanic by All-Safe. Plaintiff testified at his deposition that, on January 31, 2017, he was employed as an elevator mechanic by All-Safe (NYSCEF Doc No. 76, plaintiff tr at 12-13). His supervisor was Nicholas Garcia (Garcia), a head mechanic at All-Safe (id. at 31). On the morning of the accident, Garcia told plaintiff that they were going to perform safety checks on the elevators at multiple locations, including at the subject premises (id. at 57). After the safety check was completed, it was determined that a safety plate for the right elevator cab needed to be replaced because it was making a knocking noise at around the third or fourth floor (id. at 61-62, 72). The elevator had to be moved up and down so measurements could be taken from inside and outside the cab (id. at 67-69). Garcia brought the cab to a stop somewhere between the second and fourth floors and instructed plaintiff to secure his safety harness so he could stand on one of the ties to take measurements (id. at 74-75). Plaintiff alleges he had an accident while “[r]epairing an elevator” (id. at 33). He secured his lanyard to the tie that he was going to stand on (id. at 81). Plaintiff testified that he “was standing on either the second or third tie between the two elevators approximately three-foot space between both elevators” (id. at 33). Plaintiff testified that he was giving Garcia “the measurement that he needed to adjust the plate and the counterweight came down, hit [him] on the right side of the head” and “[d]ragged [him] down on top of the tie” (id. at 34). “[The] next thing that [he] felt was…the counterweight of the other elevator and it came back up, it hit [him] in the back, pushed him out over the edge of the tie and [he] fell two or three feet” (id.). He stated that “[t]he elevator counterweight brought [him] down and at some [5,000] pounds pulls into another piece of metal,” the counterweight “came back up” and “hit him in the back and pushed [him] out over the edge of the tie” (id. at 92-93). At some point, the counterweight from the other car came into contact with his lower back, and pushed plaintiff off the tie (id. at 194-195). Plaintiff’s lanyard became disengaged from the tie because the lanyard hook “got severed or destroyed” when the counterweight fell (id. at 93). Plaintiff could not explain how he was being held up or what prevented him from falling to the ground (id. at 98, 197). Eventually, plaintiff was able to pull himself back by climbing up to the tie (id. at 96). Garcia testified that he was also employed as an elevator mechanic by All-Safe (NYSCEF Doc No. 77, Garcia tr at 24-25, 45). On the day of the accident, there was a scheduled “90-day drop test” of the three hoists that a third-party inspector oversaw (id. at 71-72). All three hoists at the project passed the load test (id. at 73). After the inspections were completed, an operating engineer called him to report a problem with one of the hoists making a noise (id. at 76-77, 137). Garcia did not inform the operator of the other car that they were investigating the cause of the noise: he stated “they don’t need to know that because the car is just moving like at the regular operation. I don’t do anything unusual at this point” (id. at 79, 85, 138). Garcia testified that the other elevator was not taken out of service because it was quicker to do the job without asking permission to shut down both elevators (id. at 85-86). However, Garcia testified that it was always safer to stop both cars; “[i]f nothing is moving, it is always safer” (id. at 86). After Garcia determined the location of the noise, he brought the car back down and retrieved a grease gun (id. at 80-81). Garcia did not observe plaintiff’s accident because he was standing inside the elevator cab while plaintiff was standing on the tie, but he knew that there was something wrong when he heard plaintiff scream; “Immediately I hear him screaming, I run to the roof of the car, I saw him hanging out of his harness” (id. at 93-94, 153). Garcia further testified that the safety plate would have been greased pursuant to a schedule within one or two weeks (id. at 170-171). Garcia stated that the hoist would have functioned properly if they had not gone back to grease the safety plate (id. at 171). He further explained that the work was a “two man job” “[b]ecause to spread the grease into the bushing you had to pump a little bit of grease, move the pinion a little bit and so pump another little grease and then spin a little bit so the grease go all around the shaft” (id. at 163-164). Bryan Fredrick (Fredrick), Pavarini’s assistant superintendent, supervised the construction of the building (NYSCEF Doc No. 78, Fredrick tr at 8-9, II). Fredrick was on the concrete deck supervising the “forming, stripping deck, pouring floors” and generally “watching the complete operation” (id. at 9). He did not observe the accident (id. at 21). Edward Lydon (Lydon) testified that he was Pavarini’s general superintendent working on the project (NYSCEF Doc No. 79, Lydon tr at 10, 12). All-Safe was the subcontractor that was retained to install, maintain, and repair the hoists (id. at 15-16). According to Lydon, the City of New York conducts routine safety inspections every 90 days, and All-Safe participates in the inspections (id. at 31-32). All-Safe made the decision whether to take cars out of service (id. at 62, 73). Daniel O’Brien (O’Brien) testified that he was a part owner of All-Safe Height Contracting, which changed its name to All-Safe (NYSCEF Doc No. 80, O’Brien tr at 14, 16). He testified that the All-Safe mechanics would decide whether it was safe to have a car in operation while the other car was being worked on (id. at 67-68). O’Brien stated that greasing of the hoist was part of routine maintenance, which occurred once a month (id. at 73). Plaintiff commenced this action asserting causes of action stemming from common-law negligence and violations of Labor Law §§200, 240, 241-a, and 241 (6) (NYSCEF Doc No. 71, verified complaint
