HASAN v. MACERICH COMPANY (2025)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about March 19, 2024, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim;  denied the motions of third-party defendant ABC Imaging, Inc. and defendants Macerich Property Management Company, LLC (i/s/h/a The Macerich Company, Macerich Property Management Company, The Macerich Partnership, L.P. and The Cadillac Fairview Corporation Limited), Queens Center SPE LLC (i/s/h/a Macerich Queens Center Limited Partnership), and M.A.C. Cosmetics, Inc. (collectively, Macerich or defendants) for summary judgment dismissing plaintiff's Labor Law § 240(1) claim;  denied Macerich's motion for summary judgment on its breach of contract claim against ABC, but granted Macerich's motion on its contractual indemnification claim against ABC;  granted ABC's motion for summary judgment dismissing Macerich's breach of contract claim against it, but denied ABC's motion as to Macerich's contractual indemnification and common-law indemnification and contribution claims, unanimously modified, on the law, to deny ABC's motion for summary judgment dismissing Macerich's breach of contract claim against it, and otherwise affirmed, without costs.

The court correctly granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim.  Plaintiff made a prima facie showing that the ladder provided to him was inadequate in that he needed to stand on the top rung in order to reach his work (see Felker v. Corning Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950 [1997];  Saavedra v. 89 Park Ave. LLC, 143 A.D.3d 615, 615, 39 N.Y.S.3d 462 [1st Dept. 2016];  Keenan v. Simon Prop. Group, Inc., 106 A.D.3d 586, 588, 966 N.Y.S.2d 378 [1st Dept. 2013]).  Stills taken from the CCTV footage of the January 8, 2020 accident clearly show that the ladder's height was insufficient.  Defendants’ argument that plaintiff was the sole proximate cause of his accident, because he was moving the ladder from side to side by wiggling it, is unavailing.  Plaintiff learned that method of moving the ladder from his supervisor, who was present that day (see Hayek v. Metropolitan Transp. Auth., 195 A.D.3d 568, 568, 146 N.Y.S.3d 479 [1st Dept. 2021];  Vucetic v. NYU Langone Med. Ctr., 173 A.D.3d 527, 100 N.Y.S.3d 521 [1st Dept. 2019]).  Moreover, plaintiff testified that he fell when he placed a “Gerry board” on top of a wall, after the ladder had settled.

The court correctly granted Macerich summary judgment on the contractual indemnification claim against ABC. The contract between Macerich and ABC, which was dated as of March 2, 2020, after the accident, specified that the term of the agreement commenced on January 6, 2020 (see Pena v. Chateau Woodmere Corp., 304 A.D.2d 442, 443–444, 759 N.Y.S.2d 451 [1st Dept. 2003], appeal dismissed 2 A.D.3d 1488, 774 N.Y.S.2d 851 [2003];  Elescano v. Eighth–19th Co., LLC, 13 A.D.3d 80, 81, 785 N.Y.S.2d 447 [1st Dept. 2004]).  ABC's vice president and its comptroller testified that they did not recall any contract negotiations.  Both claimed unfamiliarity with retroactive clauses, but such purported ignorance does not defeat the clear and unambiguous contract (see Karsah Intl., Inc. v. Jong Soo Kim, 225 A.D.3d 425, 426, 207 N.Y.S.3d 48 [1st Dept. 2024]).  General Obligations Law § 5–322.1 does not bar enforcement of the clause, as there is no evidence of any negligence on the part of Macerich, plaintiff's Labor Law § 200 and common-law negligence claims against Macerich having been dismissed (see Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 795 n 5, 658 N.Y.S.2d 903, 680 N.E.2d 1200 [1997] [“We would note that without a finding of negligence on the part of the (general contractor), the agreements as applied would not run afoul of the proscriptions of General Obligations Law § 5–322.1”)], citing Hawthorne v. South Bronx Community Corp., 78 N.Y.2d 433, 576 N.Y.S.2d 203, 582 N.E.2d 586 [1991], and Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 179, 556 N.Y.S.2d 991, 556 N.E.2d 430 [1990];  DaSilva v. Toll First Ave., LLC, 199 A.D.3d 511, 513, 157 N.Y.S.3d 423 [1st Dept. 2021]).

Macerich's claim that ABC breached the insurance procurement clause in the contract between them should not have been dismissed, since a certificate of insurance generated by a broker is not conclusive evidence that the required insurance was procured (see Shala v. Park Regis Apt. Corp., 192 A.D.3d 607, 608, 146 N.Y.S.3d 31 [1st Dept. 2021]).  Summary judgment in favor of Macerich on the claim, however, is not warranted.  In addition to the certificate, correspondences between ABC's carrier and Macerich raise questions of fact as to whether ABC purchased such insurance.

The motion court should not have denied ABC's motion seeking dismissal of Macerich's common-law claims on the grounds of timeliness, there being a so-ordered stipulation extending the parties’ time to file cross-motions.  Nevertheless, ABC's argument on appeal that Workers’ Compensation Law requires dismissal is a fact-based argument that was not raised before the motion court, and we decline to consider it (see McGarr v. Guardian Life Ins. Co. of Am., 19 A.D.3d 254, 255, 799 N.Y.S.2d 19 [1st Dept. 2005]).