Kiznar v. KA Greenpoint LLC

ADDITIONAL CASES KA Greenpoint, LLC and Bridge Zale Construction Corp, Third-Party Plaintiffs v. Rockingham Insurance Company and Mario’s Supervision, LLC, Third-Party Defendants The following numbered papers were read on these motions: NYSCEF Doc No. 92: Notice of Motion submitted by Plaintiff (Motion #5) NYSCEF Doc No. 93: Affirmation in Support submitted by Plaintiff (Motion #5) NYSCEF Doc No. 94: Expert Affidavit submitted by Plaintiff (Motion #5) NYSCEF Doc No. 95: Statement of Material Facts submitted by Plaintiff (Motion #5) NYSCEF Doc No. 96: Exhibit A — Summons (Motion #5) NYSCEF Doc No. 97: Exhibit B — Certification (Motion #5) NYSCEF Doc No. 98: Exhibit C — Verified Bill of Particulars (Motion #5) NYSCEF Doc No. 99: Exhibit D — EBT of Plaintiff (Motion #5) NYSCEF Doc No. 100: Exhibit E — EBT of Plaintiff (Motion #5) NYSCEF Doc No. 101: Exhibit F — EBT of Defendant Bridge Zale Construction (Motion #5) NYSCEF Doc No. 102: Exhibit G — EBT of Third-Party Defendant Mario’s Supervision (Motion #5) NYSCEF Doc No. 103: Exhibit H — Note of Issue (Motion #5) NYSCEF Doc No. 104: Certification submitted by Plaintiff (Motion #5) NYSCEF Doc No. 105: Affidavit of Service submitted by Plaintiff (Motion #5) NYSCEF Doc No. 106: Notice of Motion submitted by Third-Party Defendant Mario’s Supervision (Motion #6) NYSCEF Doc No. 107: Affirmation in Support of Motion for Summary Judgment submitted by Third-Party Defendant Mario’s Supervision (Motion #6) NYSCEF Doc No. 108: Memorandum of Law, submitted by Third-Party Defendant Mario’s Supervision (Motion #6) NYSCEF Doc No. 109: Statement of Martial Facts submitted by Third-Party Defendant Mario’s Supervision (Motion #6) NYSCEF Doc No. 110: Exhibit A — Summons and Verified Complaint (Motion #6) NYSCEF Doc No. 111: Exhibit B — Answer, Demand for a Verified Bill of Particulars, Combined Demands, Demand for Medical Bills/Billing Authorizations, Notice of Deposition, Notice of Revocation of Service by Fax, Demand for Cell Phone Records/Authorizations & Notice to Preserve, Demand for Social Media/Networking Authorizations & Notice to Preserve (Motion #6) NYSCEF Doc No. 112: Exhibit C — Answer (Motion #6) NYSCEF Doc No. 113: Exhibit D — Third-Party Summons, Third-Party Complaint (Motion #6) NYSCEF Doc No. 114: Exhibit E — Defendant Rockingham Insurance’s Verified Answer to Third-Party Complaint (Motion #6) NYSCEF Doc No. 115: Exhibit F — Verified Answer to Third-Party Complaint (Motion #6) NYSCEF Doc No. 116: Exhibit G — Order (Motion #6) NYSCEF Doc No. 117: Exhibit H — Stipulation (Motion #6) NYSCEF Doc No. 118: Exhibit I — EBT of Third-Party Defendant Mario’s Supervision (Motion #6) NYSCEF Doc No. 119: Exhibit J — EBT of Defendant Bridge Zale Construction (Motion #6) NYSCEF Doc No. 120: Exhibit K — EBT of Plaintiff (Motion #6) NYSCEF Doc No. 122: Exhibit L — Contract Agreement (Motion #6) NYSCEF Doc No. 122: Exhibit M — NYC Department of Buildings Work Permit Data (Motion #6) NYSCEF Doc No. 123: Exhibit N — Insurance Agreement (Motion #6) NYSCEF Doc No. 124: Notice of Motion submitted by Third-Party Defendant Rockingham Insurance (Motion #7) NYSCEF Doc No. 125: Affirmation in Support of Motion for Summary Judgment submitted by Third-Party Defendant Rockingham Insurance (Motion #7) NYSCEF Doc No. 126: Memorandum of Law submitted by Third-Party Defendant Rockingham Insurance Company (Motion #7) NYSCEF Doc No. 127: Statement of Material Facts submitted by Third-Party Defendant Rockingham Insurance (Motion #7) NYSCEF Doc No. 128: Exhibit A — Summons, Verified Complaint (Motion #7) NYSCEF Doc No. 129: Exhibit B — Answer (Motion #7) NYSCEF Doc No. 130: Exhibit C — Third-Party Summons (Motion #7) NYSCEF Doc No. 131: Exhibit D — Defendant Rockingham Insurance Company’s Verified Answer to Third-Party Complaint (Motion #7) NYSCEF Doc No. 132: Exhibit E — Contract Agreement (Motion #7) NYSCEF Doc No. 133: Exhibit F — Contract Agreement (Motion #7) NYSCEF Doc No. 134: Stipulation submitted by Plaintiff (Motion #5) NYSCEF Doc No. 135: Stipulation submitted by Plaintiff (Motion #6) NYSCEF Doc No. 136: Stipulation submitted by Plaintiff (Motion #7) NYSCEF Doc No. 137: Stipulation submitted by Defendants KA Greenpoint and Bridge Zale Construction (Motion #5) NYSCEF Doc No. 138: Stipulation, submitted by Defendants KA Greenpoint and Bridge Zale Construction (Motion #6) NYSCEF Doc No. 139: Stipulation submitted by Defendants KA Greenpoint and Bridge Zale Construction (Motion #7) NYSCEF Doc No. 140: Opposing Statement of Material Facts submitted by Defendants KA Greenpoint and Bridge Zale Construction (Motion #5) NYSCEF Doc No. 141: Affirmation in Opposition submitted by Defendants KA Greenpoint and Bridge Zale Construction (Motion #5) NYSCEF Doc No. 142: Affirmation regarding transcripts submitted by Defendants KA Greenpoint and Bridge Zale Construction (Motion #5) NYSCEF Doc No. 143: Memorandum of Law submitted by Defendants KA Greenpoint and Bridge Zale Construction (Motion #5) NYSCEF Doc No. 144: Exhibit 1 — EBT of Plaintiff (Motion #5) NYSCEF Doc No. 145: Exhibit 2 — EBT of Defendant Bridge Zale Construction (Motion #5) NYSCEF Doc No. 146: Exhibit 3 — EBT of Third-Party Defendant Mario’s Supervision (Motion #5) NYSCEF Doc No. 147: Exhibit 4 — Bellevue Hospital Records (Motion # 5) NYSCEF Doc No. 148: Exhibit 5 — Photo (Motion # 5) NYSCEF Doc No. 149: Exhibit 6 — Contract Agreement, Subcontract Agreement (Motion # 5) NYSCEF Doc No. 150: Exhibit 7 — Correspondence (Motion # 5) NYSCEF Doc No. 151: Stipulation submitted by Defendants/Third-Party Plaintiffs KA Greenpoint and Bridge Zale Construction (Motion #5) NYSCEF Doc No. 152: Stipulation, submitted by Defendants/Third-Party Plaintiffs KA Greenpoint and Bridge Zale Construction Corp. (Motion #6) NYSCEF Doc No. 153: Stipulation, submitted by Defendants/Third-Party Plaintiffs KA Greenpoint and Bridge Zale Construction Corp. (Motion #7) NYSCEF Doc No. 154: Notice of Motion, submitted by Third-Party Defendant Mario’s Supervision (Motion #6) NYSCEF Doc No. 155: Affirmation in Support submitted by Third-Party Defendant Mario’s Supervision (Motion #6) NYSCEF Doc No. 156: Exhibit A — Summons, Verified Complaint(Motion #6) NYSCEF Doc No. 157: Exhibit B — Certification, Demand Pursuant to CPLR 3017(c), Answer, Demand for a Verified Bill of Particulars, Combined Demands, Demand for Medical Bills/Billing Authorizations, Notice of Deposition, Notice of Revocation of Service by Fax, Demand for Cell Phone Records/Authorizations & Notice to Preserve, Demand for Social Media/Networking Authorizations & Notice to Preserve (Motion #6) NYSCEF Doc No. 158: Exhibit C — Answer (Motion #6) NYSCEF Doc No. 159: Exhibit D — Third-Party Summons, Third-Party Complaint (Motion #6) NYSCEF Doc No. 160: Exhibit E — Defendant Rockingham Insurance’s Verified Answer to Third-Party Complaint (Motion #6) NYSCEF Doc No. 161: Exhibit F — Verified Answer to Third-Party Complaint (Motion #6) NYSCEF Doc No. 162: Exhibit G — Order (Motion #6) NYSCEF Doc No. 163: Exhibit H — Stipulation (Motion #6) NYSCEF Doc No. 164: Exhibit I — EBT of Third-Party Defendant Mario’s Supervision (Motion #6) NYSCEF Doc No. 165: Exhibit J — EBT of Defendant Bridge Zale Construction (Motion #6) NYSCEF Doc No. 166: Exhibit K — EBT of Plaintiff (Motion #6) NYSCEF Doc No. 167: Exhibit L — Contract Agreement, Subcontract Agreement Rider (Motion #6) NYSCEF Doc No. 168: Exhibit M — NYC Department of Buildings Work Permit Data (Motion #6) NYSCEF Doc No. 169: Exhibit N — Insurance Agreement (Motion #6) NYSCEF Doc No. 170: Statement of Undisputed Material Facts submitted by Third-Party Defendant Mario’s Supervision (Motion #6) NYSCEF Doc No. 171: Memorandum of Law submitted by Third-Party Defendant Mario’s Supervision (Motion #6) NYSCEF Doc No. 172: Affidavit of Service submitted by Third-Party Defendant Mario’s Supervision (Motion #6) NYSCEF Doc No. 173: Correspondence submitted by Plaintiff (Motion #6) NYSCEF Doc No. 174: Opposing Statement of Material Facts submitted by Defendants KA Greenpoint and Bridge Zale Construction (Motion #7) NYSCEF Doc No. 175: Affirmation in Opposition submitted by Defendants KA Greenpoint and Bridge Zale Construction (Motion #7) NYSCEF Doc No. 176: Memorandum of Law submitted by Defendants KA Greenpoint and Bridge Zale Construction (Motion #7) NYSCEF Doc No. 177: Affirmation submitted by Defendants KA Greenpoint and Bridge Zale Construction (Motion #7) NYSCEF Doc No. 178: Exhibit 1 — Rockingham Commercial General Liability (Motion #7) NYSCEF Doc No. 179: Exhibit 2 — EBT of Paul Ruiz, Witness on behalf of Third-Party Defendant Rockingham Insurance (Motion #7) NYSCEF Doc No. 180: Exhibit 3 — Correspondence (Motion #7) NYSCEF Doc No. 181: Affirmation in Opposition submitted by Third-Party Defendant Mario’s Supervision (Motion #5) NYSCEF Doc No. 182: Response to Plaintiff’s Statement of Material Facts submitted by Third-Party Defendant Mario’s Supervision (Motion #5) NYSCEF Doc No. 183: Affirmation in Reply submitted by Third-Party Defendant Rockingham Insurance (Motion #5) NYSCEF Doc No. 184: Reply Affirmation submitted by Third-Party Defendant Rockingham Insurance (Motion #7) NYSCEF Doc No. 185: Exhibit A — EBT of Paul Ruiz, Witness on behalf of Third-Party Defendant Rockingham Insurance (Motion #7) DECISION AND ORDER Upon the foregoing papers and having heard oral argument on the record from counsel who appeared, the within motions are determined as follows. Background The subject accident occurred at a worksite at 188 Java Street in Brooklyn (“Premises”) owned by Defendant/Third-Party Plaintiff KA Greenpoint LLC (“Owner KA Greenpoint”). Owner KA Greenpoint retained the general contractor Defendant/Third-Party Plaintiff Bridge Zale Construction Corp. (“G.C. Bridge Zale”). G.C. Bridge Zale in turn hired sub-contractor Third-Party Defendant Mario’s Supervision, LLC (“Sub. Mario’s Supervision”). Plaintiff Tomasz Kuznar (“Plaintiff Kuznar”) was an employee of Sub. Mario’s Supervision. Third-Party Defendant Rockingham Insurance Company (“Rockingham”) was the insurer of the Premises pursuant to a contract between it and Owner KA Greenpoint.¹ On April 16, 2018, Owner KA Greenpoint entered into an agreement with Defendant G.C. Bridge Zale as general contractor to remodel the first floor of the Premises, among other things (see NYSCEF Doc No. 93 5). On May 5, 2018, G.C. Bridge Zale in turn subcontracted with Sub. Mario’s Supervision as follows (NYSCEF Doc No. 121): Apartment # 1 renovation: Installation of new bathroom which includes sheetrock, cement boards, tiles and painting Installation of new kitchen which includes new sheetrock, new cabinets, carpentry, plaster and paint Installation of new apartment entrance doors and frames primer and paint Install molding and base boards Installation of new front window Primer and paint whole apartment Cellar renovation Installation of new porcelain tiles in cellar floor Installation of new sliding door and patio door on the back of the house Installation of new boiler room — fire rated door According to Plaintiff Kuznar, on September 11, 2018, he was directed by someone named Walter (not an employee of Sub. Mario’s Supervision) to remove a nine-foot-long section of steel pipe located on the first floor of the Premises approximately nine feet above the floor (see NYSCEF Doc No. 99 at 34, 44). Plaintiff alleged that he was provided with an unsecured six-foot A-frame ladder and a reciprocating saw (a “Sawzall”) to perform the task. Plaintiff Kuznar alleged that the Sawzall got stuck in the steel pipe, wherefore he then proceeded to shake the Sawzall by moving it back and forth, causing the ladder he was standing on to become unstable. Plaintiff Kuznar then lost his balance and fell. (See generally NYSCEF Doc No. 99 at 32-58.) Before this Court are various motions for summary judgment pursuant to CPLR 3212. Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v. AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v. Prospect Hosp., 68 NY2d at 324). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978]). The motions came before this Court on June 1, 2023, when counsel for two of the parties appeared — for Plaintiff Tomasz Kuznar and for Third-Party Defendant Mario’s Supervision, LLC. Discussion Plaintiff Kuznar’s Motion for Summary Judgment against Owner KA Greenpoint and G.C. Bridge Zale Plaintiff Kuznar argued that Labor Law §240 (1) is applicable and imposes absolute liability on the property owner and its general contractor in circumstances where the statute was violated, irrespective of whether the owner or general contractor exercised any control over the project. Said statute pertinently provides: All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be constructed, placed and operated as to give proper protection to a person so employed. Labor Law §240 (1) imposes an absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury. This duty imposed is nondelegable and an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control. (See Gordon v. Eastern Ry. Supply, 82 NY2d 555, 559 (1993); accord Bland v. Manocherian, 66 NY2d 452, 459 [1985] [legislative purpose of Labor Law §§240 and 241 was to place ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on owner and general contractor, and statutory provisions were to be construed as liberally as may be for the accomplishment of said the purpose].)² Plaintiff Kuznar argued that insofar as Owner KA Greenpoint owned the property and G.C. Bridge Zale was the general contractor, such defendants fell within the ambit of Labor Law §241 (1), and were subject to liability under the statute in question irrespective of whether either entity exercised any control over the project. Plaintiff Kuznar further argued that courts have consistently held that where a safety device such as a ladder proved inadequate for a worker’s elevation-related work, i.e., the ladder moved or shifted, thereby causing a worker to fall, a violation of §241 (1) will be upheld and the worker will be entitled to summary judgment (NYSCEF Doc No. 93 at 5). Additionally, Plaintiff Kuznar relied on Alvarez v. Vingsan L.P. (150 AD3d 1177 [2d Dept 2017]), where the court ruled that the construction worker plaintiff was entitled to summary judgement when an unsecured A-frame ladder moved for no apparent reason, causing the plaintiff to fall to the ground below. Plaintiff Kuznar argued that the shifting of the ladder, which led to his fall, warrants granting him summary judgment on the issue of liability (see also Casasola v. State, 129 AD3d 758 [2d Dept 2015] [defendant failed to raise triable issue of fact as to whether plaintiff worker's conduct in standing on unsecured A-frame ladder was sole proximate cause of accident]). Based on the foregoing, Plaintiff Kuznar asserted he is entitled to summary judgment against Owner KA Greenpoint and G.C. Bridge Zale because the facts and applicable case law establish that the ladder which he was using to perform his tasked work failed when it leaned to one side and shook back and forth, causing him to fall from the ladder and onto the ground below. This summary judgment motion by Plaintiff Kuznar constituted Motion # 5 (Calendar # 2) (see NYSCEF Doc Nos. 92-105). Plaintiff Kuznar also relied on the expert affidavit submitted by Kathleen Hopkins (“Hopkins”), a Certified Site Safety Manager who supported his position that Defendants failed to provide him with an adequate safety device. Hopkins contended that Plaintiff Kuznar should have been provided with a regular five-foot wide tubular welded frame scaffold set on base plates or a hoist because they are more stable. (See NYSCEF Doc No. 94 at 3.) First Independent Ground Warranting Denial of Relief Sought by Plaintiff The first independent ground warranting the denial of the drastic partial summary judgment relief sought by Plaintiff Kuznar, which would effectively operate to wrest from the jury the determination of liability is whether Plaintiff Kuznar’s shaking of the Sawzall while on the ladder was the sole proximate cause of his fall. The mere fact that Plaintiff Kuznar fell from the ladder at issue does not, in and of itself, establish that the ladder failed to provide proper protection, thereby bringing his claim within the ambit of the Labor Law §241 (see Canino v. Electronic Tech. Co., 28 AD3d 932 [3d Dept 2006]). Thus, the question of whether the device provided proper protection within the meaning of Labor Law §241 (1) is ordinarily a question of fact, except in those instances where the unrefuted evidence establishes that the device collapsed, slipped or otherwise failed to perform its function of supporting the worker and his or her materials (id.). If there is an issue of fact as to whether plaintiff’s fall from a ladder resulted from (1) him shifting his weight while on the ladder or (2) the ladder unpredictably losing its stability, summary judgment under Labor Law §241 (1) cannot be granted (see Gaspar v. Pace Univ., 101 AD3d 1073 [2d Dept 2012] [plaintiff lost balance while shaking head to dislodge mask hooked on cable]; Costello v. Hapco Realty, Inc., 305 AD2d 445 [2d Dept 2003] [proof of plaintiff's fall from ladder, without more, is not sufficient to establish liability under Labor Law §241 (1)]); accord Joseph v. 210 West 18th, LLC, 189 AD3d 1384 [2d Dept 2020] [fall from ladder, standing alone, insufficient to establish ladder was inadequate safety device]). Second Independent Ground Warranting Denial of Relief Sought by Plaintiff After the September 11, 2018 accident, Plaintiff Kuznar was admitted to Bellevue Hospital, where it was recorded that his fall was due to alcohol intoxication. This admission raised an issue of fact as to whether Plaintiff Kuznar’s intoxication at the time of his fall caused him to lose balance and fall from the ladder. Thus, there is an issue of fact as to whether he was the sole proximate cause of his fall. Entries from Bellevue Hospital staff dated after the accident noted that Plaintiff Kuznar’s fall is “due to alcohol intoxication” (NYSCEF Doc No. 147 at 14, 35). Notably at page 38 (Sept. 12, 2018), it states, “This is the first Bellevue admission for Tomasz Kuzniar, a 35-year-old man with a history of alcohol abuse who was admitted last night after falling five feet from a ladder. He sustained a fracture of the right calcaneus that was treated by Orthopedics with a splint. He was found to be in alcohol withdrawal, and so far has received 500 mg of chlordiazepoxide, most recently an hour ago” (id. at 38). Other entries recorded regular use of alcohol and cocaine and his fall due to alcohol intoxication (id. at 9, 10, 11, 12, 19, 20, 23, 41, 44, 46, 71, 76, 85, 87, 89, 91, 96, 99, 104). Inasmuch as a genuine issue of fact exists as to whether Plaintiff Kuznar was intoxicated at the time of his fall and whether such intoxication — rather than a defective ladder — caused his loss of balance as well as his fall from the ladder, summary judgment cannot be granted. Summary judgment must be denied to an injured worker where a jury could find that intoxication was the sole proximate cause of a fall from a ladder or an elevated worksite (see Berman v. Franchised Distribs., Inc., 88 AD3d 755 [2d Dept 2011]; Bondanella v. Rosenfeld, 298 AD2d 941 [4th Dept 2002]; Tate v. Clancy-Cullen Storage Co., Inc., 171 AD2d 292 [1st Dept 1991]). Taking into account the evidence concerning intoxication, a jury could find it here. Plaintiff Kuznar has failed to demonstrate liability as a matter of law on his Labor Law §240 (1) claims against Owner KA Greenpoint, LLC and G.C. Bridge Zale Construction Corp. There are material issues of fact precluding summary judgment (see Alvarez v. Prospect Hosp., 68 NY2d 320; Winegrad, 64 NY2d 851; Zuckerman, 49 NY2d 557; Andre, 35 NY2d 361). Therefore, Plaintiff Kuznar’s motion for partial summary judgment must be denied. Defendant Sub. Mario’s Supervision’s Motion for Summary Judgement against Plaintiff Kuznar & Defendants/Third Party Plaintiffs Owner KA Greenberg and G.C. Bridge Zale On August 22, 2022, Third-Party Defendant Mario’s Supervision filed a motion for summary judgment to dismiss all claims asserted against it by Defendants/Third Party Plaintiffs Owner KA Greenpoint and G.C. Bridge Zale. This was Motion # 6 (Calendar # 1) (see NYSCEF Doc Nos. 106-123). The two Defendants/Third-Party Plaintiffs had commenced a third-party action against Sub. Mario’s Supervision, asserting that the latter was liable for damages they incurred on theories of common law indemnification, contractual indemnification, and a failure to have them included as additional insureds in the policy of liability insurance it procured. G.C. Bridge Zale was issued a permit to perform plumbing work at the time of the accident (see NYSCEF Doc No. 122) as the general contractor of the project. There is no indication that personnel from Sub. Mario’s Supervision directed Plaintiff Kuznar to cut the pipes. Additionally, there is no indication that the contract covered work to be performed in the location where the accident arose (see NYSCEF Doc Nos. 132, 133). Third-Party Defendant Sub. Mario’s Supervision Cannot be Held Liable under a Theory of Common Law Indemnification The Defendants/Third-Party Plaintiffs argue that Plaintiff Kuznar’s accident was proximately caused by the negligence of Third-Party Defendant Sub. Mario’s Supervision, its agents, servants and/or its employees (see NYSCEF Doc No. 113).³ However, there is no basis for this claim as there is no evidence that establishes negligence on the part of Third-Party Defendant Mario’s Supervision. A party cannot be held liable under a theory of common law indemnification where, as here, the party was not responsible for the means and methods of the injury-producing work. Courts have held that a third-party defendant meets its prima facie burden of establishing entitlement to summary judgement when it demonstrates that it was not responsible for the means and methods of the plaintiff’s work (see Zolotar v. Krupinski, 36 AD3d 802,803 [2d Dept 2007]). Here, Sub. Mario’s Supervision cannot be held responsible for the means and methods of Plaintiff Kuznar’s work at the time of the aforementioned occurrence. It is established that (1) no personnel from Sub. Mario’s Supervision instructed or directed Plaintiff Kuznar to cut any pipes, and (2) Sub. Mario’s Supervision was not tasked with performing work where the accident occurred. Third-Party Plaintiffs’ Contractual Claims Against Third-Party Defendant Sub. Mario’s Supervision are Unavailing Based on the Terms of the Contract Agreement Courts have held in the context of the Labor Law, “it is elementary that the right to contractual indemnification depends on the specific language of the contract” (Kader v. City of N.Y., Hous. Preserv. & Dev, 16 AD3d 461, 463 [2d Dept 2005], quoting Gillmore v. Duke/Fluor Daniel, 221 AD2d 938, 939 [2d Dept. 1995]). The May 5, 2018 Contract Agreement expressly provided that that Sub. Mario’s Supervision must indemnify the Third-Party Plaintiffs only for occurrences “arising out of or resulting from the Work covered by this Contract Agreement to the extent such Work was performed by or contracted through the Subcontractor or by anyone for whose acts the Subcontractor may be held liable, excluding only liability created by the sole and exclusive negligence of the Indemnified Parties” (see NYSCEF Doc No. 167 at 3). Said Contract Agreement also required Sub. Mario’s Supervision to procure insurance protecting the Third-Party Plaintiffs for claims arising out of or resulting from Sub. Mario’s Supervision’s work under the agreement (id.). Insofar as the work engaged in by Plaintiff Kuznar was outside the scope of the work to be performed by Sub. Mario’s Supervision under the Contract Agreement, and did not include cutting pipes or performing plumbing work, the indemnification and insurance clauses do not apply to Plaintiff Kuznar’s work at the time of the occurrence. Accordingly, the Third-Party Plaintiff’s contractual indemnification claims against Sub. Mario’s Supervision⁴ are unavailing based on the terms of the Contract Agreement (see Loiek v. 1133 Fifth Avenue Corp., 46 AD3d 766 [2d Dept 2007] [plaintiff's injuries did not arise out of, or result from, performance of work under subcontract]; Moss v. McDonald’s Corp., 34 AD3d 656 [2d Dept 2006] [indemnification provision triggered only in event of finding of negligence]; cf. Karwoski v. 1407 Broadway Real Estate, LLC, 160 AD3d 82, 87-88 [1st Dept 2018] [party is entitled to full contractual indemnification provided the intention to be indemnified can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances.]) Notably, no party filed opposition to Third-Party Defendant Mario’s Supervision’s motion for summary judgment against Defendants/Third-Party Plaintiffs Owner KA Greenpoint and G.C. Bridge Zale. Under the circumstances here, it should be granted (see Karademir v. Mirando-Jelinek, 153 AD3d 509, 511 [2d Dept 2018]; Rubinfeld v. County of Suffolk, 54 AD3d 1016 [2d Dept 2008]). Therefore, the indemnification and failure-to-procure-insurance claims asserted against Sub. Mario’s Supervision’s are unavailing based on the terms of the Contract Agreement. There are no material issues of fact for a jury to determine (see Alvarez v. Prospect Hosp., 68 NY2d 320; Winegrad, 64 NY2d 851; Zuckerman, 49 NY2d 557; Andre, 35 NY2d 361). Third-Party Defendant Mario’s Supervision’s motion for summary judgment against Defendants/Third-Party Plaintiffs Owner KA Greenpoint and G.C. Bridge Zale is granted. Third-Party Defendant Sub. Mario’s Supervision’s Amended Motion On May 10, 2023, Third-Party Defendant Sub. Mario’s Supervision filed an untimely amended motion seeking to dismiss all of Plaintiff Kuznar’s claims in addition to the relief originally sought against Defendants/Third-Party Plaintiffs Owner KA Greenpoint and G.C. Bridge Zale (see NYSCEF Doc Nos. 154-172). However, Third-Party Defendant Sub. Mario’s Supervision’s amended motion is unavailing on two independent grounds. First, its amended motion for summary judgment is untimely as it was filed long after the 60-day deadline to file summary judgment motions under the Kings County Supreme Court’s rules (see Kings County Supreme Court Uniform Civil Term Rules, Part C ["Motions in IAS Parts"], §6, available at https://ww2.nycourts.gov/courts/2jd/kings/civil/KingsCivilSupremeRules.shtml#Motion [last accessed July 2, 2023]). The Second Department has held in denying a movant’s motion for summary judgment on the basis that it was filed more than sixty-days after the filing on the note of issue, Pursuant to rule 13 of the Uniform Civil Term Rules of the Supreme Court, Kings County, the appellant was required to make its motion for summary judgment no more than 60 days after the note of issue was filed, unless it obtained leave of the court on good cause shown. The appellant’s motion was made more than 60 days after the filing of the note of issue, and the excuse proffered by the appellant’s attorney was insufficient to constitute good cause for the delay (see Brill v. City of New York, 2 NY3d 648 [2004]; McNally v. Beva Cab Corp., 45 AD3d 820 [2007]; Crawford v. Liz Claiborne, Inc., 45 AD3d 284 [2007]; Milano v. George, 17 AD3d 644 [2005]; Breiding v. Giladi, 15 AD3d 435 [2005]). Accordingly, we affirm the Supreme Court’s order insofar as appealed from on the basis of the untimeliness of the motion alone, and we do not address the merits of the motion (see Milano v. George, 17 AD3d at 645). (Kennedy v. Bae, 51 AD3d 980, 981 [2d Dept 2008]; accord Gonzalez v. Pearl, 179 AD3d 645 [2d Dept 2020].) Second, Sub. Mario’s Supervision’s amended motion for summary judgment — now including relief sought against Plaintiff Kuznar — was improper as it constituted a successive motion for summary judgment which cannot be considered absent narrowly circumscribed situations not present here. The Second Department has held that generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause. Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment. (See Vinar v. Litman, 110 AD3d 867 [2d Dept 2013].) Sub. Mario’s Supervision failed to adequately explain why the additional relief sought against Plaintiff Kuznar could not have been included in its summary judgment motion filed on August 22, 2022. Therefore, based on the foregoing, to the extent that Third-Party Defendant Mario’s Supervision’s amended motion for summary judgment filed on May 10, 2023 sought relief dismissing Plaintiff Kuznar’s complaint, it is denied on the grounds that (1) it was untimely filed and (2) it constitutes an impermissible successive motion for summary judgment. To the extent that it sought relief against Defendants/Third-Party Plaintiffs Owner KA Greenpoint and G.C. Bridge Zale, it is denied as being duplicative of the motion filed on August 22, 2022, which is granted. Third-Party Defendant Rockingham’s Summary Judgment Motion against Owner KA Greenpoint Third-Party Defendant Rockingham moved for summary judgment seeking dismissal of Defendant/Third-Party Plaintiff Owner KA Greenpoint’s third-party complaint against it. This constituted Motion # 7 (Calendar # 3) (see NYSCEF Doc Nos. 124-133). The grounds for Rockingham’s motion were: (1) The subject insurance policy (“Rockingham Policy”) issued by Rockingham to Owner KA Greenpoint did not provide coverage for the present personal injury action commenced by Plaintiff Kuznar or in connection with the September 11, 2018 accident. (2) Rockingham did not owe a defense to Owner KA Greenpoint in this action. (3) Rockingham had no duty to indemnify Owner KA Greenpoint. Owner KA Greenpoint sought coverage under its insurance policy with Rockingham. However, Rockingham contended that the Rockingham Policy contained an unambiguous exclusion provision that expressly barred coverage for claims of the type arising from Plaintiff Kuznar’s accident. Rockingham alleged that Owner KA Greenpoint cannot obtain coverage under the Rockingham Policy because the Policy’s so-called “Employers Liability/Contractors Liability Exclusion” was triggered. As previously stated, this motion arises from the September 11, 2018 accident that took place at 188 Java Street, Brooklyn, New York, which property was owned by the Owner KA Greenpoint. This policy exclusion barred coverage for claims related to bodily injuries sustained by subcontractors working on any jobsite where an insured is performing work, conducting business, performing operations, services and/or duties related to the conduct of the insured’s business. The policy provision was unambiguous. Pertinent sections of the Rockingham Insurance Policy exclusion provision (NYSCEF Doc No. 178) included the following: SECTION I — COVERAGES, COVERAGE A — BODILY INJURY AND PROPERTY DAMAGE LIABILITY paragraph 2. Exclusions paragraph e. is deleted and replaced with the following: e. Employer’s Liability/Contractors Liability “Bodily injury” to: … (3) A “contractor” or “subcontractor” on any site where an insured is performing work, conducting business, performing operations, services and/or duties related to the conduct of the insured’s business. Plaintiff Kuznar sustained “bodily injuries” while performing work related to the conduct of Owner KA Greenpoint’s business. The latter’s business was to provide rental apartments to tenants. The work being done was to renovate one of the rental apartments. This Court disagrees with Owner KA Greenpoint’s argument that that this exclusion rendered the policy meaningless. The policy provided coverage for liability arising from accidents unrelated to work performed onsite or unrelated to the insured’s business. Had Owner KA Greenpoint wanted to procure more extensive coverage it presumably could have do so in exchange for a higher premium. Where the provisions of an insurance policy are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement (United States Fid. & Guar. Co. v. Annunziata, 67 NY2d 229, 232 [1986]). An exclusion of coverage for injuries of employees and employees of contractors must be sustained where it is unambiguous (see Tudor Ins. Co. v. Sundaresen, 143 AD3d 642 [1st Dept 2016]; Century Surety Co. v. Franchise Contractors, LLC, 2016 WL 1030134 [SD NY, Mar. 10, 2016]; Colon v. United States Liability Ins. Group, 2009 WL 2413646 [ED NY, Aug. 6, 2009]). Therefore, the motion for summary judgment interposed by Rockingham dismissing Defendant/Third-Party Plaintiff Owner KA Greenpoint’s coverage claim against Rockingham is granted, this Court finding that Rockingham does not have a duty to defend or indemnify Owner KA Greenpoint in connection with the claims alleged by Plaintiff Kuznar. There are no material issues of fact for a jury to determine (see Alvarez v. Prospect Hosp., 68 NY2d 320; Winegrad, 64 NY2d 851; Zuckerman, 49 NY2d 557; Andre, 35 NY2d 361). Conclusion Accordingly, it is hereby ORDERED as follows: (1) Motion # 5 (Calendar # 2): Plaintiff Tomasz Kuznar’s motion for partial summary judgment on his Labor Law §240 (1) claim against Defendants KA Greenpoint, LLC and Bridge Zale Construction Corp. is denied. (2) Motion # 6 (Calendar # 1): Third-Party Defendant Mario’s Supervision’s motion for summary judgment filed on August 22, 2022, against Defendants/Third-Party Plaintiffs KA Greenpoint, LLC and Bridge Zale Construction Corp. is granted. (3) Motion # 6 (Calendar # 1): Third-Party Defendant Mario’s Supervision’s amended motion for summary judgment filed on May 10, 2023, against Defendants/Third-Party Plaintiffs KA Greenpoint, LLC and Bridge Zale Construction Corp., and Plaintiff Tomasz Kuznar, is denied. (4) Motion # 7 (Calendar # 3): Third-Party Defendant Rockingham Insurance Company’s motion for summary judgement dismissing Defendant/Third-Party Plaintiff KA Greenpoint, LLC’s third-party complaint against Rockingham Insurance Company is granted. Dated: July 3, 2023