FERNANDEZ v. LLC (2012)

Order, Supreme Court, New York County (Debra A. James, J.), entered February 25, 2011, which, to the extent appealed from as limited by the briefs, granted in part and denied in part defendant Stratis Builders LLC's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Order, same court and Justice, entered January 30, 2012, which to the extent appealed from (and brought up for review pursuant to CPLR 5517[b] ) as limited by the briefs, granted plaintiff's and defendant Stockbridge Homes LLC's motions for reargument, and upon reargument, adhered to its prior order dismissing plaintiff's Labor Law § 241(6) claim, and denied so much of Stockbridge's motion for summary judgment as sought dismissal of plaintiff's Labor Law § 240 claim as against it, or, in the alternative, indemnification by co-defendant Stratis Builders LLC and third-party defendant Sanita Construction Company, unanimously affirmed, without costs. Appeal by Sanita Construction Company from the February 25, 2011 order, unanimously dismissed, without costs, as abandoned.

The motion court correctly granted defendants summary judgment dismissing plaintiff's Labor Law § 241(6) claim, in support of which plaintiff alleged a violation of the Industrial Code § 23–1.16, which sets protocols and standards for certain safety devices. An alleged violation of this section cannot be maintained as a predicate for § 241(6) liability where there is no evidence that a plaintiff has been provided with any of the safety devices enumerated therein (see D'Acunti v. New York City School Constr. Auth., 300 A.D.2d 107, 107–108, 751 N.Y.S.2d 459 [1st Dept. 2002] ).

The motion court also correctly denied defendants' motions for summary judgment on plaintiff's Labor Law § 240(1) claim. There are questions of fact concerning how the accident occurred, and whether there were adequate safety devices provided to plaintiff that he elected not to use. Insofar as defendant Stratis contends that despite being the general contractor, it exercised no supervision or control over plaintiff's work, there is, at the very least, at question of fact concerning whether Stratis was authorized to exercise such supervision or control. The broad language of the agreement between Stratis and the property owner authorized Stratis to supervise all work on the construction project at issue (see Walls v. Turner Constr. Co., 4 N.Y.3d 861, 863–864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005] ).

The motion court properly denied that branch of Stockbridge's motion seeking summary judgment on its cross claim against Stratis and its third-party claim against Sanita for contractual indemnification since Stockbridge did not establish, as a matter of law, that the plaintiff's accident resulted from “negligent acts or omissions” on the part of Stratis or Sanita, as required by the defense and indemnification clause of its contracts with them (see Coque v. Wildflower Estates Dev., 31 A.D.3d 484, 488–489, 818 N.Y.S.2d 546 [2nd Dept.2009]; cf. Pope v. Supreme–K.R.W. Constr. Corp., 261 A.D.2d 523, 690 N.Y.S.2d 632 [2nd Dept.1999] [indemnification clause did not require proof of negligence] ).

We have considered the remaining arguments and find them unavailing.