Rosario v Gentry Tenants Co-Op (2024 NY Slip Op 50485(U)) (2024)

Index No. 155290/2015

Plaintiff: Marc Getler, Esq; Avanzino & Moreno P.C. Gentry:

Timothy Layer, Esq.; Ahmuty, Demers, & McManus

Leardon: Peter D. Cantone, Esq.; Lippman & Lesperance

JRS Boiler: Courtney A. Chadwell, Esq.; Barry McTiernan & Moore LLC
Dakota D. Ramseur, J.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 345, 346, 347, 348, 352, 356, 360, 361, 362, 419, 420, 421, 422, 423, 424 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 008) 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 349, 353, 357, 367, 368, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 409, 410, 411, 413, 415, 416 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 009) 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 350, 354, 358, 364, 365, 366, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 407, 408, 414, 417 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 010) 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 351, 355, 359, 369, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 412, 418

were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.

In May 2015, plaintiff Francisco Rosario commenced this Labor Law action to recover damages for injuries he allegedly sustained in a fall while attempting to install a new hot water tank at an apartment complex located at 21 Fairview Avenue, Tuckahoe, New York. He asserts causes of action against Gentry Tenants Co-Op (hereinafter, "Gentry"), Andrea Bunis Management, Inc. ("Andrea Bunis"), and Leardon Boiler Works, Inc. ("Leardon")—respectively, the owner of the premises, the building manager, and the contractor hired to perform the installation—under Labor Law §§ 200, 240 (1) and 241 (6). Thereafter, Gentry commenced a third-party action against Leardon, and Leardon commenced a second third-party action against its subcontractor (and plaintiff's employer) JRS Boiler, Inc ("JRS"). In this Decision and Order, the Court consolidates the following motions for resolution:

(1) Motion Sequence 007: Plaintiff moves for summary judgment against Gentry, Andrea Bunis, and Leardon on liability under Labor Law § 240 (1);

(2) Motion Sequence 008: Gentry and Andrea Bunis' move for summary judgment on plaintiff's Labor Law § 200 and § 240 (1) claims; alternatively, should the Court deny the that portion motion, they move for summary judgment on their contractual and common [*2]law indemnification claims against Leardon and JRS;^[FN1]

(3) Motion Sequence 009: Leardon moves for summary judgment on all of plaintiff's and Gentry's claims against it as well as for summary judgment on its contractual and indemnification claims against JRS; and

(4) Motion Sequence 010: JRS moves for summary judgment, dismissing plaintiff's complaint in its entirety. ^[FN2]

BACKGROUND

Relevant Deposition Testimony

Plaintiff—Depositions on March 16, 2018, and March 16, 2022

A boiler technician/repairman/welder employed by JRS Boiler since around 2003, plaintiff testified that his accident occurred on June 6, 2014. Plaintiff reported to the apartment complex with a coworker, Jorge De La Cruz, at around 9:00 a.m., as assigned by a JRS. (NYSCEF doc. no. 284 at 57-58, 68, and 72, plaintiff dep. transcript 3/16/18.) Brian Policastro, a Leardon employee, and Juan Gill, another JRS employee, were already at the site. (Id. at 72-73.) According to plaintiff, Policastro directed the other three in unloading the two hot water tanks from a delivery truck. (Id. at 75.) Each tank measured approximately six ft. long, 34-36 inches in diameter, and weighed approximately 200-300 pounds or more. (Id. 76-77.) The driver off-loaded the tanks from the truck via a hydraulic lift gate, and the four placed them on pallet jacks. (Id. at 77.) However, the tanks could not fit through the entrance as originally planned (id. at 83), so Policastro directed the tanks to be removed from the pallet and placed on metal hand trucks that plaintiff and De La Cruz had brought to the site (id. at 86). Plaintiff testified that, once they managed to place them on the hand trucks, Policastro secured them using one rope, saying that was sufficient. (Id. at 90, 92.)

They then pushed the first tank through the entrance way and had to get it up a set of three steps to the boiler room. The steps were lit and without debris or garbage on them. (Id. at 97.) In getting it up the stairs, plaintiff and Policastro, situated directly to his left, each gripped one of the hand truck's handles and pulled from above while De La Cruz and Gill pushed and lifted from below. (Id. at 92-95.) While this was happening, plaintiff testified that Policastro cut his hand on the upper part of the tank and let go of the hand truck. (Id. at 99-100.) According to plaintiff, the hand truck fell towards him, knocked him over, and the tank—being inadequately secured to the hand truck—came to rest on top of him. (Id. at 99-101.) Later, plaintiff explained that he ended up bent/crouched on his back between the wall and the tank but with his feet still on the ground. (Id. at 106-107.) Plaintiff, in his words, "ended up in a position like as if I had been crushed under the tank." (Id. at 104.) Eventually, De La Cruz, Gill, and Policastro pulled [*3]the tank off him and continued transporting it to the boiler room. They moved the second tank using the same procedure. (Id. at 107, 112.) He testified that he had reported the accident to JRS, but no accident report was prepared. (Id. at 118.)

Brian Policastro—Depositions on June 5, 2018, and February 27, 2019

Policastro, a nine-year Leardon service mechanic, testified that he was present at the premises to ensure the boiler tanks "weren't bad" and to assist JRS employees with moving in the two new tanks. (NYSCEF doc. no. 286 at 98, Policastro dep. transcript dated 6/5/18.) He explained that he had experience moving boiler tanks up stairways a handful of times (id. at 47) and had been trained in securing and rigging hand trucks (id. at 56-57.) When securing hot water tanks to a hand truck, Policastro testified that he had never, and would not, use ropes since they cannot be tied as securely as straps and they leave room for human error in tying knots. (Id. at 58-59.) On the day in question, he testified that, to his knowledge, they did not use ropes. (Id. at 133.) At this particular site, JRS owned and supplied the equipment used to install the new tanks—including the hand truck. (Id. at 94, 106.) This included any safety devices that were to be used. (Id. at 107.) He testified that getting the tanks to the boiler room involved moving them up one step and through the entrance, then up three additional stairs five feet away, which led directly to the boiler room. (Id. at 87.) In addition, he felt the hand truck was a good device for the job because it allowed them to roll and lift the tanks into position. (Id. at 123.) Further, to him, the hand truck—because it looked well maintained and solid—felt safe to use to go up the three steps. (Id. at 130.) Nonetheless, the tank extended beyond both the base of the truck and its top handle. (Id. at 125-126.) According to him, there was no portable ramp available to roll the tank up the stairs. (Id. at 131.) In contrast to plaintiff, Policastro testified that he did not control the logistics of getting the tanks to the boiler room, that it was instead JRS's employees who had the rigging equipment and directed how the tanks were to be moved. (Id. at 105; NYSCEF doc. no. 262 at 243, Policastro dep. transcript dated 2/17/19.) Moreover, he testified that JRS employees did not answer to him and that Leardon does not supervise, inspect, or direct their work. (Id. at 105-106.)

In terms of the alleged accident, Policastro testified that "when we were going up the stairs, I think [plaintiff] lost his footing for a second and I steadied off the weight of the hand truck." (NYSCEF doc. no. 286 at 140.) In responding to the question, "what made you think plaintiff lost his footing?", Policastro explained, "the load of the hand truck shifted because he was holding it and I just remember having to take the extra load of the hand truck, and I steadied it off." (Id. at 141.) He further explained that, when the hand truck shifted, plaintiff's "rear touched the ground and then he quickly popped back up . . . Everything happened in a second and he was on his feet again." (Id. at 142-143.) According to him, plaintiff did not say anything—including to question the use of a hand truck—before they continued moving the tank up the stairs. (Id.) Just as plaintiff testified, there were no structural defects or debris in the area of the stairs. (Id. at 236.) Policastro could not remember if he cut his hand, but no accident reports were filed—either concerning his hand or plaintiff's alleged injury. (NYSCEF doc. no. 262 at 215.)

Jorge De La Cruz—EBT on April 30, 2019; Juan Gill—EBT on July 26, 2019

De La Cruz, a cleaner/helper employed by JRS, testified that he did not remember whether plaintiff was injured moving the tanks (NYSCEF doc. no. 288 at 70, De La Cruz EBT); that it was "inconvenient" to use a hand truck to transport a tank but there was not any "trouble" getting the hot water tank to the boiler room (id.); that the tank did not fall off the hand trunk, nor did the truck itself break (id.); that he was not aware of anybody slipping or even losing their grip (id. at 71); and, when asked, confirmed that the delivery "went down smooth with no problems" (id.). Lastly, De La Cruz explained that instead of simply tying the rope around the tank, the four used a ratchet snap, a device connected to a tough nylon-type material that can then be tighten around the object using a crank mechanism. (Id. at 63.)

Gill—another JRS helper—testified that plaintiff was in "charge of the job" (NYSCEF doc. no. 291 at 19, Gill EBT), but, later, that both plaintiff and Policastro directed the transport of the tanks (Id. at 49.) In contrast to De La Cruz, he recalled being aware at the time that plaintiff had slipped (Id. at 28) because he screamed but that the tank did not fall on him as Policastro managed to keep hold of it. (Id. at 29-30.) More specifically, he explained that except for Policaastro taking the whole weight on him, the tank would have fallen on plaintiff and would have crushed him. (Id. at 30.) After plaintiff fell, the three of them stood the hand truck up back by the door. (Id. at 31.) Further, he noticed that Policastro did have a cut or small gash on his hand but attributed it to Policastro having held the hand truck up. (Id. at 30.) He further mentioned that the four completed the job, took a break, and checked on plaintiff because they were "concerned." (Id. at 37.) Gill added that, in or around June or July of 2019—about a month and a half before his scheduled EBT—plaintiff called him (this for the second time) and, in Gill's words, "we got into the same conversation and he want and go asked me I can help him out with testimony on his behalf, or bribe me, try to offer me some money." (Id. at 39-41.) Gill explained that he immediately refused the offer and asked him not to call again. (Id.)

Sonia Grisales—EBT on May 30, 2019; and Chas Slotterback—Deposition on June 6, 2014

As an office manager employed by JRS, Grisales testified that she provided their team with instructions for the job the night before they were to install the new boilers (NYSCEF doc. no. 289 at 36 and 40, Grisales EBT), that the team of four were supposed to work together—"it's not like one person makes the decision and everyone goes ahead and does it"—but "the main lead" would be plaintiff and Gill (id. at 39-40), and that neither plaintiff and Gill indicated that there had been an injury or accident when they contacted her once they had completed the work at around 4:00 p.m. (id. at 47-48.)

Lastly, Leardon's General Manager, Chas Slotterback, testified that Leardon received the job to replace the apartment complex's boiler system through a bidding process and that the building's management company—Andrea Bunis—sent a bid package to Leardon. (NYSCEF doc. no. 290 at 24-25, 65; see also NYSCEF doc. no. 267, contract between Gentry and Leardon.) He explained that JRS was subcontracted to bring the hot water tanks to the apartment complex and put them in place but not to fully install them. (Id. at 45.) Further, he testified that the standard practice in handling a tank their size was to use a hand truck and that four people could usually manage. (NYSCEF doc. no. 290 at 51.)

DISCUSSION

Under CPLR 3212, summary judgment is appropriate where "the proponent makes a 'prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of material issues of fact' and the opponent fails to rebut that showing." (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010], quoting Alvarez v prospect Hosp., 68 NY2d 320, 324; see also CPLR 3212 [b].) Once the proponent has made a prima facie showing, the burden shifts to the opposing party to demonstrate, through admissible evidence, factual issues requiring a trial. "Where there is any doubt as to the existence of triable issues, summary judgment should not be granted." (Udoh v Inwood Gardens, Inc., 70 AD3d 563, 565 [1st Dept 2010].)

MS 007: Plaintiff's Entitlement to Summary Judgment under Labor Law § 240 (1)

Labor Law § 240 (1) provides, in relevant 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."

(Labor Law § 240 [1].)

Because Labor Law § 240 (1)'s aim is to protect workers by placing ultimate responsibility for safety practices on the owner and contractors instead of workers, who are scarcely in a position to protect themselves from accident (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]), the statute imposes a nondelegable duty on owners, contractors, and their agents to provide "devices which shall be so constructed, placed and operated as to give proper protection to those individuals performing the work." (, 603 [1st Dept 2022] [internal citation removed].) Section 240 (1) imposes absolute liability on these entities but the statute is limited to a narrow class of dangers: only those "special hazards" presenting "elevation-related risks." (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 96-97 [2015].) Thus, "[absolute] liability may . . . be imposed under the statute only where plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation risk." (, 33 [2017]; see also Blake v Neighborhood Hous. Servs. of NY City, Inc., 1 NY3d 280, 287 [2003] ["Liability is contingent on a statutory violation and proximate causation"]; Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267-268 [2001] [With respect to failing objects cases, "Labor Law § 240 (1) applies where the falling of an object is related to a 'significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured."] [internal citations omitted].)

Against Gentry, Andrea Bunis, and Leardon

Initially, neither Gentry nor Andrea Bunis nor Leardon dispute that they are, respectively, an owner, agent, and general contractor within the meaning of the Labor Law and thus subject to [*4]the obligations of §240 (1) described above. Additionally, on his motion for summary judgment, plaintiff's theory of liability under § 240 (1) is that Policastro, in using rope, inadequately secured the hot water tank to the hand truck such that it fell on him. Accordingly, the only question is whether plaintiff has demonstrated that he suffered an injury directly related to an elevation risk and whether a failure to adequately secure the tank proximately caused that injury.

Where credible evidence reveals differing versions of the accident, one under which defendant would be liable and another under which they would not, questions of fact exist, making summary judgment inappropriate. (, 442 [1st Dept 2012].) In reviewing the relevant depositions, it is clear that plaintiff, Policastro, De La Cruz, and Gill each recall the events in question vastly differently. The first material difference concerns who directed them to use a hand truck to transport the hot water tanks and whether they did so without using a ratchet snap. As described above, plaintiff testified that Policastro was "in charge of the work site" (NYSCEF doc. no. 284 at 75), directed them to load the tanks onto the hand truck (id. at 85-86), and then rigged them together with only one rope, believing such measures sufficiently safe (id. at 90, 92); by contrast, Policastro testified that he directed their work only so far as letting them know where the tanks needed to be placed, but that "getting [the hot water tank] there, that's what [JRS employees] do, they have all the rigging equipment" (NYSCEF doc. no. 286 at 105-106) and that "the logistics of getting it there . . . wasn't up to me." (NYSCEF doc. no. 262 at 243.) Grisales' testimony provides greater support for Policastro's version of the events than it does plaintiff's: although she acknowledges a general absence of central leadership at the site, she explained that plaintiff and Gill, not Policastro, would be considered the "main leads" at the site. (NYSCEF doc. no. 289 at 39-40.) In between these competing versions of events, Gill's testimony confirms aspects of both. (NYSCEF doc. no. 291 at 19, 49 [Q: "Was anybody in particular directing this move of this tank?" Gill: "Well, people in charge, Francisco and Brian"].) Lastly, De La Cruz's testimony undoubtedly corroborates Policastro's account that they used a ratchet snap to secure the tank.

The difference between plaintiff's testimony and Policastro's is the difference between whether or not Gentry, Andrea Bunis, and Leardon can be held liable: if plaintiff directed the use of a hand truck without adequate safety devices like the ratchet snap instead of Policastro, plaintiff would, of course, be the sole proximate cause of his own injury; if the opposite is true, plaintiff would have suffered a gravity-related injury directly attributable to Policastro's failure to provide an adequate safety device. Since there can be no liability under Labor Law § 240 (1) where a plaintiff is the sole proximate cause of his accident (see Paz v City of New York, 85 AD3d 519, 519 [1st Dept 2011]), these discrepancies are essential because they demonstrate, contrary to plaintiff's position, that liability does not exist under all factual scenarios.^[FN3]

The second material difference concerns whether plaintiff suffered an injury related to a "falling object" at all. Though plaintiff describes how the weight of the hand truck knocked him down against the cement stairs, how the tank became unfastened from the truck and came to rest on top of him (NYSCEF doc. no. 284 at 99-101), and how he ended up bent/crouched between the wall and the tank (id. at 106-107), no other witness corroborates this account. Policastro [*5]explained that he steadied the hand truck after it shifted and that plaintiff's "rear touched the ground" but that "he quickly popped back up . . . Everything happened in a second and he was on his feet again." (NYSCEF doc. no. 286 at 142-143.) De La Cruz went further: he recalled neither the hand truck's weight shifting nor anybody losing their grip and confirmed that (1) the tank remained attached to the hand truck and (2) the delivery went down smoothly. (NYSCEF doc. no. 288 at 71.) Gill, meanwhile, was adamant that Policastro had managed to keep hold of the hand truck and water tank, preventing both from falling on him. (NYSCEF doc. no. 291 at 29-30 ["A: (Plaintiff) screamed . . . He fell...If that will [sic] tank would have fell on him it would have crushed him because Brian was holding on." Q: "Brain held onto the hand truck?" A: "To the hand truck and to the tank so it doesn't—he took the whole weight on him and then we managed to pull it back."])

From this perspective, even accounting for inconsistencies and contradictions in the testimonies offered by Policastro, De La Cruz, and Gill, it appears that they unite on the point that the hot water tank did not fall off the hand truck and onto plaintiff as he claims. Further, Grisales disputed plaintiff's allegation that he reported the accident to JRS, explaining that neither he nor Gill mentioned an issue with the delivery when they called the firm after completing the work that day. (NYSCEF doc. no. 289 at 47-48.) For these reasons alone, summary judgment is unwarranted. (See Perez v Folio House, Inc., 123 AD3d 519, 519 [1st Dept 2014] [finding triable issues of fact existed as to how the plaintiff's accident occurred where coworker and foreman's testimony contradicted plaintiff's account and established non-gravity related account of fall].) But in addition, Gill's testimony that plaintiff attempted to bribe him for favorable testimony at his deposition undermines his credibility that the accident occurred in the manner alleged. (See Alvarez v 2455 8 Ave, LLC, 202 AD3d 724, 725 [2d Dept 2022].) Given that there is evidence controverting plaintiff's account of material aspects of the accident and evidence calling into question his credibility, plaintiff is not entitled to summary judgment. (, 1217 [1st Dept 2023].)

MS 008 and MS 009: Gentry, Andrea Bunis, and Leardon's Entitlement to Summary Judgment on Plaintiff's Labor Law § 200 and § 240 (1) Claims ^[FN4]

Labor Law § 240 (1)

In their respective motions for summary judgment, Gentry, Andrea Bunis, and Leardon essentially contend that plaintiff's injury did not involve the height-related risks contemplated by Labor Law § 240 (1) such that they were required to provide additional safety devices. (See NYSCEF doc. no. 298 at 13, Gentry and Andrea Bunis memo of law; NYSCEF doc. no. 276 at 12, Leardon memo of law.) ^[FN5]The Court finds this argument unpersuasive.

First, a review of plaintiff's cited caselaw demonstrates that, if his injury occurred as he testified, it was the type of injury to which § 240 (1) applies, i.e., one sustained due to a significant elevation risk. As this Court explained at the outset, the Court of Appeals defined the contemplated hazards under § 240 (1) as those involving risks related to gravity where there is a difference between the elevation level at which the worker is positioned and the higher level of the materials being hoisted or secured. (See Rocovich, 78 NY2d at 514.) In Agli v 21 E. 90 Apts. Corp. (195 AD3d 458 [1st Dept 2021]), the plaintiff injured himself while attempting to lower a steel bedplate weighing approximately 500 pounds down a flight of stairs using a hand truck without hoisting equipment. (Id.) Like the positions assumed by plaintiff, Policastro, Gill, and De La Cruz in this case, Agli explained that he was holding the hand truck by one of its handles from above while his coworkers controlled it from below. When a coworker lost control of the hand truck, it fell particularly fast, which "jerked" Agli and caused him to slip on gravel or debris on one of the steps. (Id. at 458-459.) Under these circ*mstances, the First Department held that plaintiff had not only demonstrated that the injury resulted from a gravity- or elevation-related risk but was entitled to summary judgment on liability on his § 240 (1) claim. Likewise, in Dirschneider v Rolex Realty Co. LLC (157 AD3d 538, 539-540 [1st Dept 2018]), the First Department granted Dirschneider summary judgment on his § 240 (1) claim where he sustained injuries to his foot while helping transport a 600-pound steel beam. More specifically, the court found that "the record establishes a failure to provide plaintiff and his coworker with devices offering adequate protection against gravity-related risks of moving an extremely heavy object down a staircase, leading to the workers' loss of control over the object's descent and plaintiff's injuries." (Id.)

In Serowik v Leardon Boiler Works Inc. (129 AD3d 471 [1st Dept 2015]), the First Department rejected the argument—advanced on the instant motion by Gentry and Andrea Bunis—that an object's relatively short fall necessarily precludes § 240 (1) liability. There, the plaintiff was injured while helping to lower a tank weighing four to five hundred pounds down a flight of stairs. In pertinent part, the First Department explained that the plaintiff's injury was "due to the application of gravity to the tank, and the elevation differential was not de minimus given the weight of the tank, which generated sufficient force to pull plaintiff into the pipe and cause injury. (Id. at 471.) Similarly, here, defendants have not demonstrated that the elevation difference of the three stairs was de minimus or, in different words, "not an appreciable height difference" given that the tank's weight was, by consensus, between two and three hundred pounds and at most five hundred. Defendants also attempt to distinguish these cases on the grounds that all involve plaintiffs transporting heavy objects down a set of stairs, not up like here. Yet, as plaintiff contends, while his injury might have occurred in the process of moving the tanks up a set of stairs, there is no doubt that, as testified to, his injury—again, being pinned against the ground/stairwell wall by a heavy object—was still ultimately the product of gravity and a falling object that the four workers collectively could not maneuver safely. As such, the [*6]Court finds plaintiff's testimony concerning the accident sufficient to demonstrate it occurred due to a significant elevation risk.

In opposition, defendants principally rely upon Narducci v Manhasset Bay Assocs. (96 NY2d 259 [2001) and Grygo v 1116 Kings Highway Realty, LLC (96 AD3d 1002 [2d Dept 2012]), but neither are as analogous as those cited above. In Narducci, the plaintiff was assigned to remove steel window frames using a ladder when one of the frames fell on him. Critically, plaintiff did not fall but rather suffered severe cuts on his right arm. (Narducci, 96 NY2d at 266.) The Court of Appeals held that § 240 (1) was inapplicable because "the glass that fell on plaintiff was not a material being hoisted or a load that required securing" and thus was a general hazard of the workplace, one not contemplated under the Labor Law. (Id. at 268-269.) Quite clearly, the glass that injured Narducci—again, being something that cannot be hoisted—is qualitatively different than the tank being carried up the stairs by plaintiff and his coworkers. It is also what limits Narducci's persuasive appeal when compared to Agli, Dirschneider, and Serowik. A similar logic applies to Grygo: the injured plaintiff was not engaged in hoisting or transporting a heavy object but was standing next to a cart containing sheetrock when it toppled and fell over on him. (Grygo, 96 AD3d at 1003.) As with Narducci, the First Department found that his injuries resulted from a general hazard encountered at a construction site and were not the direct consequence of a failure to provide an adequate safety device. (Id.) ^[FN6]Leardon, in reply, further relies on Oakes v Wal-Mart Real Estate Bus. Trust (99AD3d 31 [3d 2012]) and Schutt v Dynasty Transportation of Ohio, Inc. (20 AD3d 858, 859 [2d Dept 2022]). Yet both are readily distinguishable: in Oakes, the 10,000 pound truss had been set up right and remained on the ground when it tipped over; in Schutt, the plaintiff was preparing a hydraulic jack and was placing placing nylon straps around it when he slipped and toppled the jack—there is no suggestion that it was being lift or hoisted at the time of the incident. As such, neither case is particularly analogous to the circ*mstances here. Since defendants have failed to show that plaintiff's accident was not of the type contemplated by Labor Law § 240 (1), they are not entitled to summary judgment on this ground.

Labor Law § 200

Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. (Villanueva v 114 Fifth Ave. Assoc. LLC, 162 AD3d 404, 405-406 [1st Dept 2018].) Claims for personal injury under § 200 fall into two broad categories: (1) those arising from an alleged defect or dangerous condition existing on the premises and (2) those arising from the manner in which the work was [*7]performed. (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-144 [1st Dept 2012].) For the former category, liability attaches if the owner or general contractor created the dangerous condition or had actual or constructive notice; for the latter category, where the injury was caused by the "manner and means" (or "means and methods") of the work, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work. (Id., citing Foley v Consolidated Edison Co. of NY, Inc., 84 AD3d 476, 477 [1st Dept 2011]; see also Cook v Orchard Park Estates, Inc., 73 AD3d 1263, 1264 [3d Dept 2010] ["If an injury is caused by the manner in which a subcontractor performs its work, an owner or general contractor will be liable only if it had the authority to control the activity bringing about the injury"].)

Since plaintiff has not alleged a dangerous condition in the stairwell, his theory of liability under § 200 is based upon whether defendants supervised or controlled the manner of work in which plaintiff was injured. As to Leardon, it is not entitled to summary judgment: as discussed above, there are issues of fact as to whether Policastro, a Leardon's employee, exercised the requisite supervisory control by directing them to use a hand truck and securing it only through rope. Further, Leardon's contract with Gentry provides that Leardon "shall supervise and direct the work, using the Contractor's best skills and attention" and that Leardon "shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the contract." (NYSCEF doc. no. 267 at 8, 15.) Gentry and Andrea Bunis, however, are entitled to summary judgment on this claim. Plaintiff testified that he did not meet or speak to the building's super intendent, any of the building's janitors, or anyone from Gentry. (NYSCEF doc. no. 284 at 53-54, 67.) Nor did anyone from these entities provide them equipment or direct them how to do their work on the premises. (Id. at 67.) In this respect, Policastro testimony mirrors plaintiff's exactly: other than inform them as to where to put the tank and let them in the building, the super did not direct, inspect, or supervise any work that they were doing. (NYSCEF doc. no. 286 at 90.) Plaintiff's opposition does not offer any other argument as to how these two entities can be held liable under § 200.

MS 008 and 009: Contractual and Common Law Indemnification Claims

Contractual Indemnity

Paragraph 9.15 of Gentry's contract with Leardon, entitled "Indemnification," provides, in relevant part:

"To the fullest extent permitted by law, the Contractor [Leardon] shall indemnify and hold harmless the Owner . . . and [its] agents and employees . . . from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from the performance of the Work, provided that such claim, damage, [etc.] is attributed to bodily injury . . . but only to the extent caused by the negligent acts or omissions of the Contractor."

In its moving papers, Gentry and Andrea Bunis now seek summary judgment on this contractual indemnification claim against Leardon, arguing that the intent to indemnify is explicit in the contractual language and that they are themselves free of any negligence. The Court agrees. In opposition, Leardon contends that (1) the indemnification provision above requires a showing of

[*8]negligence before it is triggered, (2) in admitting that Leardon did not "did not exercise any supervision and control over the work site," Gentry conceded that Leardon was free from negligence in its counsel's affirmation in support of this motion, and (3) plaintiff's underlying claims lack merit and should be dismissed, meaning Gentry has suffered no losses in need of indemnification. (See NYSCEF doc. no. 367 at 3.) ^[FN7] None have merit. The language "arising out of or resulting from" is a clear and unambiguous indemnification provision that was triggered by plaintiff's claim that his accident arose out of the work described in the contract, i.e., from the installation of the hot water heaters. (See Rainer v Gray-Line Dev. Co., LLC, 117 AD3d 634, 635-636 [1st Dept 2014].) The Court described above the remaining issues of fact under plaintiff's § 200 claim as to whether Leardon, via Policastro, exercised, first, supervisory control over the plaintiff's work, and second, whether it was negligent in exercising such control. And the fact that Gentry may have asserted that Leardon did not "exercise any supervision or control" over the apartment complex in no way concedes that Leardon was not negligent since it may have (indeed it is alleged to have) exercised control over the manner and means of plaintiff's work. Accordingly, the Court grants Gentry and Andrea Bunis a conditional award of contractual indemnification pending an ultimate determination of plaintiff's § 200 against Leardon.^[FN8]

Leardon's indemnification covenant with JRS provides: "[JRS Boiler] hereby covenants and agrees that, to the fullest extent permitted by law . . . it will defend, indemnify and hold the Company . . . harmless from any and all claims, losses, damages, expenses, legal fees, and/or liability with respect to injury to person (including death) or property which may arise from or in connection with such provision of services and/or materials." (NYSCEF doc. no. 321, Leardon/JRS indemnification covenant.) Again, as described above, because at this juncture Leardon cannot establish that it was free from negligence, Leardon is not entitled to summary judgment on its contractual indemnification claim against JRS. (Higgins v TST Hudson, LLC, 179 AD3d 508, 511 [1st Dept 2020].)

No party has demonstrated entitlement to common-law contractual indemnification at this point in time.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that plaintiff Francisco Rosario's motion for summary judgment pursuant to CPLR 3212 (MS 007) on his Labor Law § 240 (1) claim against each defendant is denied; and it is further

ORDERED that the branch of defendants Gentry Tenants Co-Op and Andrea Bunis Management, Inc.'s motion for summary judgment pursuant to CPLR 3212 (MS 008) is denied as to plaintiff's Labor Law § 240 (1) claim but granted as to his Labor Law §§ 200 and 241 (6) claims; and it is further

ORDERED that the branch of Gentry Tenants and Andrea Bunis's motion for summary judgment pursuant to CPLR 3212 (MS 008) for contractual indemnification against defendant Leardon Boiler Works, Inc. is granted; and it is further

ORDERED that the branch of Gentry Tenants and Andrea Bunis' motion for summary judgment on their common-law indemnification claim is denied; and it is further

ORDERED that the branches of Leardon's motion for summary judgment is denied as to plaintiff's Labor Law § 200 and § 240 (1) claims and Gentry and Andrea Buni's contractual indemnification claim; denied as to its contractual and common-law indemnification claims against JRS Boiler, Inc.; but granted as to plaintiff's Labor Law §241 (6) claim; and it is further

ORDERED that JRS Boiler's motion for summary judgment is denied in its entirety; and it is further

ORDERED that counsel for Gentry Tenant and Andrea Bunis shall serve a copy of this order on all parties, along with notice of entry, within twenty (20) days of entry.

This constitutes the Decision and Order of the Court.

DATE 4/22/2024

DAKOTA D. RAMSEUR, J.S.C.

Footnotes

Footnote 1:Plaintiff voluntarily discontinued his § 241 (6) claim. Accordingly, it is dismissed against each defendant.

Footnote 2:JRS Boiler acknowledges that plaintiff did not assert any actions against it. Given this, while the Court will consider the arguments raised therein with respect to plaintiff's underlying claims, it must deny the motion as moot.

Footnote 3:In his reply memorandum of law, plaintiff argues that the extent to which Policastro was directing work is immaterial for Labor Law § 240 (1) purposes. (See NYSCEF doc. no. 423 at 11.) Plaintiff presents this argument without explanation or citation.

Footnote 4:Because each defendant makes nearly identical arguments for summary judgment concerning plaintiff's three causes of action, the Court discusses each under this section.

Footnote 5:Ostensibly, Gentry and Andrea Bunis contend that "plaintiff has failed to demonstrate that a safety device enumerated in Labor Law § 240 (1) would have prevented the alleged accident." However, the substance of their argument is focused on whether plaintiff was injured by a significant gravity-related risk. (See NYSCEF doc. no. 276 at ¶ 51-54.) Had they pursued this line of argument, on this summary judgment motion where plaintiff is asserting that a hoist or other reasonable safety equipment would have prevented his accident, it is incumbent on defendants to show such safety devices would not have prevented the injury or were unavailable or were unreasonable. Defendants have made no such attempt; the most that can be said is that they argue Policastro "felt satisfied" with the measures used to secure the tank to the hand truck.

Footnote 6:If the Court understands Gentry and Andrea Gunis' argument, then they have misconstrued the meaning of "general workplace hazard" in their moving papers. They assert that "plaintiff's claim does not even rise to the level of that which was denied in Narducci, as plaintiff was not utilizing any device enumerated in the statute to move the water tank . . . Rather, the sole reason, per all relevant testimony, for the tank shifting is readily attributed to a general workplace hazard." (NYSCEF doc. no. 276 at 15.) As the cases they cite demonstrate, the term does not simply refer to injuries that may be common-place or ordinary. Instead, it refers to those accidents/injuries, whether common or not, that cannot be reasonably prevented through adequate safety protection. (See Wilinksi v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 8 [2011].) Here, plaintiff is specifically alleging that, because they did not use a strap or other like material to adequately secure the tank to the hand truck, his injury could have been prevented.

Footnote 7:Leardon contends that Gentry's counsel admitted this in his affirmation in support of this motion. (See NYSCEF doc. no. 276 at ¶ 63, Layer affirmation.)

Footnote 8:While Leardon correctly observes that Andrea Bunis was not a party to its contract with Gentry, the indemnification clause explicitly covers agents of Gentry.