Lemache v. 600 W 144th Street

The following papers numbered E104-E112, E116-E117, E131-E140, and E185 read on this motion by Defendant/Third Party Plaintiff, 600 W 144TH STREET, LLC (hereinafter “600 W”), and oral argument on April 10, 2024, for an order 1) pursuant to CPLR §3212, dismissing Plaintiff’s cause of action brought under New York Labor Law Section 240(1) as against 600 W and 2) for such other and further relief as this court deems fit. (Seq. 2). Third Party Defendant, PHOENIX SUTTON STR INC. (hereinafter “PHOENIX”) filed an affirmation of support for 600 W’s motion. Plaintiff opposes. The following papers numbered E119-E131, E171-E174, E186-E190, and E97-E200 read on this motion by Plaintiff, EDGAR G. CHALE LEMACHE (hereinafter “Plaintiff”), and oral argument on April 10, 2024, for an order 1) granting summary judgment on the issue of liability pursuant to C.P.L.R. §3212 on Plaintiff’s claim under New York State Labor Law §§200, 240(1), 241(6), State and Federal OSHA Rules and Regulations, and the New York Industrial Code Rule 23 (12 NYCRR 23), including 23-1.5, 23-1.7, 23-1.16, and 23-1.21, but more specifically §23-1.5(b); 23-1.5(c); 23-1.7(a); 23-1.7(b); 23-1.7(d); 23-3.3(h); 23-3.3(b); 23-3.3(c); 23-3.3(k); 23-3.3(i); 23-3.3(l); 23-1.7(e); 23-1.16; 23-1.21., against the 600 W, for violating the above rules and regulations and for the Court to set this matter down for an immediate assessment of damages and 2) for such other and further relief as this court deems fit. (Seq. 3). Phoenix and 600 W oppose. The following papers numbered E145-E164, E175-E184, and E191-E196 read on this motion by Phoenix and oral argument on April 10, 2024, for an order 1) dismissing the Third-Party Plaintiff, 600 W’s, Summons and Complaint as against Phoenix. for contractual indemnification and common law indemnification and contribution; 2) dismissing Plaintiff’s cause of action pursuant to New York Labor Law §200 against 600 W; 3) dismissing Plaintiff’s cause of action pursuant to New York Labor Law §241(6); and 4) for such other and further relief as this court deems fit. (Seq. 4). Plaintiff and 600 W each partially oppose. Sequences 2, 3, and 4 are consolidated for the purpose of this decision. PAPERS  NUMBERED Sequence 2: 600 W’s Notice of Motion-Affirmation-Exhibits — Memorandum of Law-Affidavit of Service     E104-E112 Phoenix’s Affirmation in Support-Affidavit of Service    E116-E117 Plaintiff’s Affirmation in Opposition — Memorandum of Law — Affidavit of Service-Exhibits   E131-E140 600 W’s Reply    E185 Sequence 3: Plaintiff’s Notice of Motion-Affirmation-Exhibits — Memorandum of Law-Statement of Material Facts-Affidavit of Service    E119-E130 Phoenix’s Affirmation in Opposition — Memorandum of Law — Affidavit of Service E171-E174 600 W’s Affirmation in Opposition — Memorandum of Law — Exhibits      E186-E190 Plaintiff’s Reply to Phoenix-Memorandum of Law          E197-E198 Plaintiff’s Reply to 600 W-Memorandum of Law             E199-E200 Sequence 4: Phoenix’s Notice of Motion-Affirmation-Exhibits — Memorandum of Law-Affidavit of Service E145-E164 Plaintiff’s Affirmation in Opposition — Memorandum of Law — Affidavit of Service — Exhibits               E175-E184 600 W’s Affirmation in Opposition — Memorandum of Law — Exhibits      E191 Phoenix’s Reply to Plaintiff-Affidavit of Service             E192-E193 Phoenix’s Reply to 600 W-Exhibit-Affidavit of Service  E194-E196 ADDITIONAL CASES 600 W 144th Street, LLC, Third Party Plaintiff v. Phoenix Inc., Phoenix Building Restorer Inc. d/b/a Phoenix Construction, Phoenix Sutton Str Inc. and Phoenix 132 Inc., Third Party Defendant DECISION AND ORDER   U pon the foregoing papers, it is ordered that 600 W’s motion to dismiss Plaintiff’ cause of action under Labor Law §240(1) is GRANTED; Plaintiff’s motion for summary judgment under Labor Law §§200, 240(1), and 241(6) and various state and federal regulations against 600 W is DENIED in part and GRANTED in part; Phoenix’s motion seeking dismissal of 600 W’s summons and complaint against them for contractual indemnification and common law indemnification is GRANTED in part and DENIED in part; and Phoenix’s motion for dismissal of the Plaintiff’s causes of action under Labor Law §§200 and 241(6) against 600 W is GRANTED in part and DENIED in part for the following reasons: This case arises out of a construction accident that occurred on May 21, 2018. Plaintiff alleges that at approximately 2:30 p.m. he was working at a construction site located at the intersection of West 144th Street and Broadway in New York, New York (hereinafter “the construction site”), and while standing on construction materials in the flatbed of a truck at the construction site, the materials he was loading into the truck struck his foot, causing Plaintiff to fall approximately seven to eight feet from the truck to the sidewalk next to the truck. Plaintiff further alleges that as result of the fall, Plaintiff suffered significant and serious injuries. Plaintiff then commenced this action against 600 W, the owner of the construction site property adjacent to sidewalk where the Plaintiff fell from the truck. 600 W then commenced a third party action against Phoenix, who owned the truck Plaintiff was standing in when he fell and who was retained to deconstruct a sidewalk shed at the construction site, as well as Phoenix Inc., Phoenix Building Restorer Inc. d/b/a Phoenix Construction, and Phoenix 132 Inc. Stellar Management, the property management company employed by 600 W entered into an agreement with Phoenix for Phoenix to install and remove the sidewalk shed at the construction site. Phoenix then sub-contracted with Phoeniks Inc. (hereinafter “Phoeniks”) to dismantle the sidewalk shed at the construction site. Plaintiff was employed by Phoeniks at the time of his fall on May 21, 2018. When deciding a summary judgment motion, the Court must “determine whether material factual issues exist, not to resolve such issues.” Lopez v. Beltre, 59 A.D.3d 683, 685 [2nd Dept. 2009]; Santiago v. Joyce, 127 A.D.3d 954 [2d Dept 2015]. As such, to succeed on a summary judgment motion, “it must clearly appear that no material and triable issue of fact is presented….” Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]; see also Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978]; Andre v. Pomeroy, 35 N.Y.2d 361 [1974]; Stukas v. Streiter, 83 A.D.3d 18 [2nd Dept. 2011]; Dykeman v. Heht, 52 A.D.3d 767 [2nd Dept. 2008]. Further, summary judgment should not be granted where there is an “arguable” issue of fact. Id. A court should not grant a summary judgment motion where “‘facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.’” Collado v. Jiacono, 126 A.D.3d 927, 928 [2nd Dept. 2015] (quoting Scott v. Long Is. Power Auth., 294 A.D.2d 348, 348 [2nd Dept. 2002]); see Chimbo v. Bolivar, 142 A.D.3d 944 [2nd Dept. 2016]; Bravo v. Vargas, 113 A.D.3d 579 [2nd Dept. 2014]). Should the moving party fail to show the absence of a triable issue of material fact, the motion for summary judgment must be denied. See Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 [1988]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]. To successfully argue for summary judgement, the proponent of said 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.’” Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 [1993], (quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). Once the proponent has made prima facie showing, the burden then shifts to the party opposing the motion to produce evidence sufficient to establish the existence of a triable issue of material fact. See Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]. Labor Law §240(1) 600 W now moves for summary judgment pursuant to CPLR §3212, arguing that Plaintiff cannot recover under Labor Law §240(1) because his injuries did not result from the type of “elevation related risk” contemplated under the statute; 2) the work Plaintiff was engaging in at the time of the accident was not the type of work contemplated by the statute; and 3) the Plaintiff’s arguments that 600 W’s failure to provide any of the safety devices named in the statute is mere speculation and insufficient to support a claim under Labor Law §240(1). Phoenix agrees with and adopts 600 W’s arguments. Labor Law §240 imposes a nondelegable duty upon an owner, general contractor, and/or their agents to conform to the requirement of those Labor Law provisions. See Ross v. Curtis-Palmer Hydro-Electric Co, 81 N.Y.2d 494, 501 (1993). Labor Law §240(1) provides in pertinent part: “All contractors and owners and their agents,…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 so constructed, placed and operated as to give proper protection to a person so employed.” Therefore, when deciding whether to grant summary judgment pursuant to Labor Law §240, “the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” Runner v. New York Stock Exchange, 13 N.Y.3d 599, 603 (2009). Moreover, Labor Law §240 applies to both “falling worker” and “falling object” cases. Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267 (2001). To establish liability for a “falling worker” case under Labor Law §240(1), the injured worker “must demonstrate the existence of an elevation-related hazard contemplated by the statute and a failure to provide the worker with an adequate safety device.” Berg v. Albany Ladder Co., Inc., 10 N.Y.3d 902, 904, (2008); See also Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 681 (2007). To recover under Labor Law §240(1), the Plaintiff in the instant matter must establish that he was standing on top of the materials loaded into the flatbed of the truck “because it was necessary to do so in order to carry out the task he had been given and ‘that there is a safety device of the kind enumerated in section 240(1) that could have prevented his fall, because “liability is contingent upon…the failure to use, or the inadequacy of such a device.”‘” Ramones v. 425 Country Road. LLC., 217 A.D.3d 977, 980 (2nd Dept. 2023) (quoting Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 340 [2011], quoting Narducci. 96 N.Y.2d at 267). Plaintiff, in opposition to Defendant’s motion, argues that Labor Law §240(1) is applicable in this matter because 1) the Plaintiff, in his capacity as a construction worker, was working at an elevated height, and Defendants, particularly 600 W, as an owner and managing agent of the property where the Plaintiff was injured, failed to provide proper security devices to ensure the Plaintiff did not fall from said height; 2) the Plaintiff was loading dismantled scaffold materials from the construction site on to the flatbed of a truck parked next to the construction site, an extension of the construction site, and as such, this was the type of work covered by Labor Law §240(1); 3) the material that the Plaintiff was standing on in the flatbed of the truck should have been secured; 4) the truck the Plaintiff was loading the deconstructed scaffolding materials should have been equipped with proper supports on its sides; and 5) the Defendants failed to supply the Plaintiff with proper equipment and trucks to ensure the Plaintiff could carry out his work in a safe manner. Plaintiff further argues that this case is distinguishable from caselaw cited in 600 W’s motion as Plaintiff was not standing directly on the flatbed of the truck at the construction site when he fell, rather Plaintiff emphasizes that he was standing on top of dismantled scaffolding materials that had been previously loaded into the flatbed and was continuing to load additional scaffolding materials into the truck at the time of his fall, and as such, this is an elevated-related hazard as contemplated by Labor Law §240(1). Here, this Court finds that the circumstances surrounding the Plaintiff’s fall in the instant matter do not qualify as an elevation-related hazard as contemplated by Labor Law §240(1). The facts of the instant matter are analogous to those in Berg v. Albany Ladder Co., Inc., 10 N.Y.3d 902 (2008). In the Berg case, the worker was injured when, while standing atop several bundles of trusses that had been loaded into the flatbed of a truck, the worker fell to the ground from an elevation of about ten (10) feet off the ground when the bundles became unstable. The Court of Appeals granted the Defendant’s motion for summary judgment dismissing the Plaintiff’s Labor Law 240 §(1) claims, finding that the Plaintiff failed to establish sufficient proof creating a question of fact as to whether the Plaintiff’s fall was the result of a lack of a safety device. As in Berg, the Plaintiff’s arguments that 600 W’s failure to provide adequate safety devices, thus causing the Plaintiff’s fall, is insufficient. Specifically, Plaintiff argues that he should have been provided a hoist and rope to aid in loading the racks and poles into the flatbed and a safety line.¹ However, Plaintiff’s arguments that these items would have prevented his fall is mere speculation. “[M]ere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action.” Eisenstein v. Block 5298, Inc., 164 A.D.3d 1304, 1305 (2nd Dept. 2018 quoting Vojvodic v. City of New York, 148 A.D.3d 1086, 1087 [2nd Dept. 2017]). As such, Defendant 600 W’s motion seeking dismissal of the Plaintiff’s cause of action under Labor Law 240 §(1) is GRANTED and Plaintiff’s motion seeking summary judgment against Defendant 600 W Labor Law 240 §(1) is DENIED. The parties remaining contentions regarding Law 240 §(1) need not be considered in light of this Court’s determination. Labor Law §241(6) Plaintiff now moves for summary judgment on the issue of liability pursuant to C.P.L.R. §3212 on Plaintiff’s claim under New York State Labor Law §241(6), State and Federal OSHA Rules and Regulations, and the New York Industrial Code Rule, arguing that 600 W violated its non-delegable duty as an owner to “provide reasonable and adequate protection and safety” for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Labor Law §241(6) states, in relevant part, All contractors and owners and their agents,…when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:…All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places…. “To establish liability under Labor Law §241(6), a plaintiff or a claimant must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case.” Zaino v. Rogers, 153 A.D.3d 763,760 (2nd Dept. 2017) (quoting Aragona v. State of New York, 147 A.D.3d 808, 809, [2nd Dept. 2017]). When the Industrial Code regulation does not mandate compliance with concrete specifications, the Plaintiff’s Labor Law §241(6) claim must be dismissed. Toussaint v. Port Authority of New York and New Jersey, 38 N.Y.3d 89, 95 (2022). For the following reasons, Plaintiff’s stated cause of actions under the following Industrial Code provision are inapplicable to the instant matter: 12 NYCRR §23-1.5(c)(1) does not apply to the facts here. Section 23 — 1.5(c) provides, as relevant here, that no employer shall require or permit an employee to use machinery or equipment that is not in “good repair and a safe working condition.” Plaintiff asserts that the scaffold sidewalk shed materials that were being loaded in the flatbed were not stored in a safe condition, however, there is no allegation that the materials themselves, nor the flatbed truck, were in anyway defective, in disrepair, or an unsafe working condition.² Gomez v. 670 Merrick Road Realty Corp. 189 A.D.3d 1187 (2nd Dept. 2020). 12 NYCRR §23-1.5(c)(3) does not apply to the facts here. Section 23-1.5(c)(3) provides, as relevant here, that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable and shall be immediately repaired or restored or immediately removed from the job site if damaged.” However, again Plaintiff failed to assert any such equipment was being used at the time of the Plaintiff’s fall, and if it was, that the equipment was in an inoperable state and was left at the construction site despite that state.³ Id. 12 NYCRR §23-1.7(b)(1) (iii)(c) states “[w]here employees are required to work close to the edge of such an opening [of a hazardous opening], such employees shall be protected as follows…An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage. However, just because there is a height differential between the ground and the materials Plaintiff was standing on in the flatbed of the truck, this does not constitute a hole or hazardous opening as contemplated by the statute. See Rookwood v. Hyde Park Owners Corp., 48 A.D.3d 779 (2nd Dept. 2008). Thus, 12 NYCRR §23-1.7(b)(1) (iii)(c) is applicable to the instant matter. 12 NYCRR §23-1.7(d) states that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform, or other elevated working surface which is in a slippery condition. Ice, snow, water, grease, and any other foreign substance which may cause slippery footing shall be removed, sanded, or covered to provide safe footing.” (emphasis added). Here, it is undisputed that the Plaintiff was standing on the scaffold materials in the flatbed of a truck at the time of his fall and said fall occurred when a piece of scaffold being loaded into the truck struck Plaintiff’s foot. However, this statute is inapplicable in this matter as Plaintiff fails to establish that “ice, snow, water, grease, and any other foreign substance” caused the scaffold materials to become slippery, thus causing the Plaintiff’s fall. Rather, 600 W attached Plaintiff’s deposition as an exhibit in support of their arguments for Sequence 3, where Plaintiff explicitly states that he fell when two poles struck his foot.⁴ See Kane v. Peter M. Moore Const. Co., Inc., 145 A.D.3d 864, 869 (2nd Dept. 2016) (holding that the movant was entitled to dismissal of the Plaintiff’s Labor Law §241(6) cause of action predicated on 12 NYCRR §23-1.7(d) when movant “submitted evidence demonstrating that the Plaintiff’s accident was not caused by a failure to remove or cover a foreign substance.”). 12 NYCRR §23-1.7(e)(2) requires that “[t]he parts of floors, platforms and similar areas where persons work, or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.” (emphasis added). Again, this statute is inapplicable in this matter as there is no allegation that the Plaintiff tripped over accumulated dirt and debris or scattered scaffold materials or that the pile of the scaffolding materials in the truck’s flatbed could be considered a tripping hazard. Costa v. State, 123 A.D.3d 648 (2nd Dept. 2014); See also Steir v. One Bryant Park LLC, 113 A.D.3d 551 (1st Dept. 2014). 12 NYCRR §23-3.3(b)(3) states that “[w]alls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.” This statute is inapplicable as there is no allegation in this matter that Plaintiff’s fall was caused wind or some sort of vibration moving the poles that struck the Plaintiff and caused him to fall. See Vega v. Renaissance 632 Broadway, LLC, 103 A.D.3d 883, 885 (2nd Dept. 2013) (holding that 12 NYCRR §23-3.3 (b)(3) was inapplicable when “the hazard arose from the Plaintiff’s actual performance of the demolition work itself,” rather than form structural instability resulting from demolition.”). 12 NYCRR §23-3.3(b)(4) “states that an “[e]mployers shall not suffer or permit any person to work while such person is standing on top of a wall or any similar elevated structure of small area.” This statute, too, is inapplicable in this matter as the Plaintiff was standing on top of dismantled scaffolding material in a flatbed of a truck at the time of his fall, not a wall or similar structure. See Jara v. The New York Racing Ass’n, 2010 WL 1536285 (Sup. Ct. Queens Co. February 25, 2010). 12 NYCRR §23-3.3(c) states “[d]uring hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.” However, this statute is inapplicable in this matter as the Plaintiff has failed to establish that the Plaintiff’s fall was caused by “structural instability caused by the progress of demolition rather than from the actual performance of the work.” Carranza v. JCL Homes, Inc., 210 A.D.3d 858, 860 (2nd Dept. 2022). 12 NYCRR §23-3.3 (h) requires, in pertinent part, that in the demolition of structural steel by hand, when a derrick is not being used, “the persons engaged in the dismantling of structural steel members shall be protected by solidly planked flooring not less than two inches thick full size or sound floor arches not more than two stories or 30 feet, whichever is less, below, and directly under that portion of any tier of beams where such persons are at work.” This statute is inapplicable to the instant matter as the facts here do not involve the dropping of “steel beams from a building or other structure at the time of the accident.” Malloy v. Madison Forty-Five Co., 13 A.D.3d 55, 57 (1st Dept. 2004). 12 NYCRR §23-3.3(k)(1)(ii) states, in relevant part that “[s]uitable barricades shall be provided to prevent stored materials from sliding…into any area where any person is located or passing. All materials shall be safely piled in such locations as will not interfere with any work operations nor present any hazard to any person employed at…the demolition site.” This statute does not apply to the instant case as it pertains to the storage of materials, not the transportation of said materials. Wilson v. Davaco, 2018 WL 485650 (Sup. Ct. New York Co. January 19, 2018). Here, the materials were being loaded into the flatbed of the truck to be transported away from the construction site. Plaintiff, however, did establish that 12 NYCRR §23-3.3(l) applies to the instant matter. Industrial Code, 12 NYCRR §23-3.3(l), states “[a]ny person working above…ground level in the demolition of any…structure shall not be suffered or permitted to use…piled materials as a footing in the performance of his work. Every person shall be provided with safe footing consisting of sound flooring….” Industrial Code §23-1.4(b)(16) defines demolition work as “[t]he work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment.” As it is undisputed that the Plaintiff was standing on dismantled scaffolding racks when he was loading more dismantled scaffold materials into the truck at the time of his fall, and was not provided sound flooring, 12 NYCRR §23-3.3(l) applies. 600 W’s argument that Plaintiff was not engaged in demolition work at the time of his fall, and as such 12 NYCRR §23-3.3(l) would not apply, is unavailing. Moreover, it is well settled that alleged violations of Occupational Safety and Health Administration standards does not provide a basis for liability under Labor Law §241(6). Greenwood v. Shearson, Lehman & Hutton, 238 A.D.2d 311 (2nd Dept. 1997). Therefore, Plaintiff’s alleged OSHA violations do not support claims under Labor Law §241(6). Based on the foregoing Plaintiff’s motion for summary judgment based on Labor Law §241(6) against 600 W is DENIED in part and GRANTED in part. Phoenix’s motion to dismiss Plaintiff’s causes of action under Labor Law §241(6) is GRANTED in part and DENIED in part. Labor Law §200 Plaintiff now moves for summary judgment on the issue of liability pursuant to C.P.L.R. §3212 for Plaintiff’s claim under Labor Law §200 against 600 W, arguing that 600 W exercised supervisory control over the work at the construction site and had actual and constructive notice of the means and manner in which the Plaintiff was performing his work. Labor Law §200 codifies the common law duty of landowners and employers to provide employees with a safe place to work. Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573 (1990); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993). “To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition.” Damiani v. Federated Dep’t Stores, Inc., 23 A.D.3d 329, 331 (2nd Dept. 2015); See also Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 505. Recovery “cannot be had under Labor Law 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work.” McKee v. Great Atl. & Pac. Tea Co., 73 A.D.3d 872, 874 (2nd Dept. 2010); Ortega v. Puccia, 57 A.D.3d 54 (2nd Dept. 2008). Here, Plaintiff argues that 600 W had the authority to supervise or control the performance of the work, including the means and methods of how the work was being done because the work was performed at their own business location and because Mr. Ramses Capellan, an employee of Stellar Management, the property management company for 600 W, testified in his deposition⁵ that he oversaw the construction needs at the construction site until he was replaced. In opposition to Plaintiff’s motion, both 600 W and Phoenix argue that 600 W did not exercise supervisory control over the construction site and did not have any input into the work being performed at the time of the Plaintiff’s fall. 600 W and Phoenix further argue, and cite Plaintiff’s deposition in support, that at the time of the Plaintiff’s fall, Plaintiff only received instruction for his work from his foreman.⁶ This Court agrees with Defendants 600 W and Phoenix. In his deposition, Mr. Capellan testified that he was not present at the time the sidewalk shed was being removed at the construction site.⁷ “[T]he duty to provide a safe place to work is not breached when the injury arises out of a defect in the subcontractor’s own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work” Puccia, 57 A.D.3d at 62 (quoting Persichilli v. Triborough Bridge & Tunnel Auth., 16 N.Y.2d 136, 145 [1965]). Moreover, a “duty to provide a safe place to work is not breached when the injury arises out of a defect in the subcontractor’s own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work.” Persichilli, 16 N.Y.2d at 145. Here, just as in the Puccia case, the accident in the instant matter involved the way the Plaintiff performed his work, which was not supervised by 600 W, and which was performed on equipment provided by the Plaintiff’s employer and under direction of the Plaintiff’s employer, not 600 W. There is nothing in the record to indicate that 600 W had the authority to control the manner or method in which Plaintiff, an employee of Phoenik, performed his work, specifically how he loaded the dismantled scaffold materials into the flatbed of the truck. Therefore, Plaintiff’s motion for summary judgment pursuant to Labor Law §200 against 600 W is DENIED and Phoenix’s motion to dismiss Plaintiff’s cause of action under Labor Law §200 against 600 W is GRANTED. Contractual and Common Law Indemnification Phoenix now moves for summary judgment, pursuant to CPLR §3212, dismissing 600 W’s Third-Party Plaintiff Summons and Complaint as against them for contractual indemnification and common law indemnification and contribution. Phoenix argues that they are entitled to dismissal of 600 W’s summons and complaint as 600 W has failed to establish that a contract exists in which Phoenix agreed to indemnify 600 W for all costs, legal fees, expenses, and disbursements for injuries sustained at the construction site such as the Plaintiff’s in this matter. Phoenix further argues that 600 W’s claim for common law indemnification and contribution must be dismissed as Phoenix was not negligent and was not actively supervising the Plaintiff’s work at the time of his fall. Of note, 600 W did not oppose the portion of Phoenix’s motion seeking dismissal of 600 W’s claim for contractual indemnification and failed to provide any such contract containing a clause in which Phoenix agrees to indemnify 600 W for any injuries sustained at the construction site. As such, the portion of Phoenix’s motion seeking dismissal of 600 W’s claim for contractual indemnification is GRANTED. To establish a claim for common-law negligence, a movant must prove that they were not negligent and that the proposed indemnitor was responsible for “the negligence that contributed to the accident or, in the absence of any negligence, [that the proposed indemnitor] had the authority to direct, supervise, and control the work giving rise to the injury.” Benedetto v. Carrera Realty Corp., 32 A.D.3d 874, 875 (2nd Dept. 2006). “[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is ‘a separate duty owed the indemnitee by the indemnitor.’” Raquet v. Braun, 90 N.Y.2d 177, 183 (1997) (quoting Mas v. Two Bridges Assocs., 75 N.Y.2d 689, 690 [1990].) In opposition to Phoenix’s motion, 600 W argues that, at a minimum, a question of law exists as to whether Phoenix was the proximate cause of the Plaintiff’s accident. Specifically, 600 W argues that a review of Mr. Michel Siwiec’s⁸ testimony establishes that the Plaintiff’s fall was the result of the inclined positioning at which the truck he was standing in was parked at the time of his injuries. 600 W further argues that Phoenix, as the general contractor employed for the dismantling of the sidewalk shed, did have the authority to direct, supervise, and control Phoenik’s work at the construction site. This Court agrees with 600 W and finds that a triable issue of fact exists as to whether Phoenix had the authority to direct, supervise, and control Phoenik’s work and whether the parked position of Phoenix’s truck, driven and parked by a Phoenix employee, caused the Plaintiff’s fall. Mr. Siwiec testified during his deposition that in the past six (6) years, Phoenix has owned, in addition to other vehicles, two flatbed trucks and that only Phoenix employees were permitted to operate them.⁹ He further testified that these vehicles had not been leased to any other company, nor loaned out to any other company in the last six years.¹⁰ Most importantly, Mr. Siwiec testified that Phoenix employees were present to assist or supervise Phoenik employees at the construction site¹¹ and that “even when it’s somebody else’s work, [he is] the contractor. And when the work is performed either by [his] employees or other — or the subcontractor’s employees, [he has] to check the safety.”¹² As such, Phoenix’s motion seeking dismissal of 600 W’s claim for common law indemnification is DENIED. Accordingly, it is hereby ORDERED, that 600 W’s motion seeking dismissal of Plaintiff’s cause of action under Labor Law §240(1) is GRANTED; and it is further ORDERED, that Plaintiff’s motion seeking summary judgment pursuant to Labor Law §240(1) is DENIED; and it is further ORDERED, that Plaintiff’s motion seeking summary judgment pursuant to Labor Law §241(6) pursuant to12 NYCRR §§23-1.5(c)(1); 23-1.5(c)(3); 23-1.7(b)(1) (iii)(c); 23-1.7(d); 23-1.7(e)(2); 23-3.3 (b)(3); 23-3.3(b)(4); 23-3.3(c); 23-3.3 (h); and 23-3.3(k)(1)(ii) against 600 W is DENIED; and it is further ORDERED, that Plaintiff’s motion seeking summary judgment pursuant to Labor Law §241(6) pursuant to 12 NYCRR §23-3.3(l) against 600 W is GRANTED; and it is further ORDERED, that Phoenix’s motion seeking dismissal of Plaintiff’s Labor Law §241(6) claim pursuant to 12 NYCRR §23-3.3(l) is DENIED; and it is further ORDERED, that Plaintiff’s motion seeking summary judgment pursuant to Labor Law §200 is DENIED; and it is further ORDERED, that Phoenix’s motion seeking dismissal of Plaintiff’s cause of action pursuant to Labor Law §200 is GRANTED; and it is further ORDERED, that Phoenix’s motion seeking dismissal of 600 W’s cause of action for contractual indemnification is GRANTED; and it is further ORDERED, that Phoenix’s motion seeking dismissal of 600 W’s cause of action for common law indemnification is DENIED; and it is further ORDERED, that the Defendant/Third-Party Plaintiff, 600 W, shall serve a copy of this Order with Notice of Entry upon the clerk of this court and upon all parties on or before July 8, 2024. This constitutes the Decision and Order of the Court. Any relief sought not addressed herein is DENIED. Dated: June 26, 2024