ERICK WILLIAMS v. << (2026)

 _ [And Other Actions]

. 150936/18 595067/19 595834/19 595173/21 595554/21

.2024–07539 2025–02349

Maroney O'Connor LLP, New York (Darian A. Bryan of counsel), for RXR SL Owner LLC and RXR Realty LLC, respondents-appellants.

Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for United Glass Systems, respondent-appellant.

Gallo Vitucci Klar LLP, New York (Nate Drexler of counsel), for National Wall Corp., respondent-appellant.

Chirico Law PLLC, Brooklyn (Vincent Chirico of counsel), for Erick Williams, respondent.

Perry, Van Etten, Rainis & Kutner, LLP, New York (Kevin Brennan of counsel), for Super G Corporation, respondent.

_

Order, Supreme Court, New York County (Nicholas W. Moyne, J.), entered on or about December 2, 2024, which, to the extent appealed from as limited by the briefs, (1) denied the branches of the motions of defendants RXR SL Owner LLC (RXR Owner), RXR Realty LLC, RXR Construction & Development LLC (RXR Construction), and third-party defendant United Glass Systems that sought summary judgment dismissing plaintiff's claims pursuant to Labor Law §§ 240(1) and 241(6);  (2) denied the branches of the motions of RXR Owner, RXR Realty, and RXR Construction that sought summary judgment on their claims for contractual indemnification against second third-party defendant National Wall Corp.;  (3) denied the branch of the motion of RXR Construction that sought summary judgment dismissing the third-party claims of United Glass, National Wall, and third third-party defendant Super G Construction Corporation against it;  (4) denied the branch of the motion of United Glass that sought summary judgment dismissing the claims of RXR Owner, RXR Realty and RXR Construction for contractual indemnification;  (5) granted the branch of the motions of RXR Owner, RXR Realty, and RXR Construction that sought summary judgment on their claims against United Glass for contractual indemnification;  (6) denied the branch of the motion of National Wall for summary judgment dismissing the counterclaims against it by RXR Realty, RXR Construction, and United Glass;  (7) granted the branch of the motion of United Glass for summary judgment on its claim for contractual indemnification against National Wall;  (8) denied the branches of the motions of RXR Owner, RXR Realty, and RXR Construction for common-law indemnification against Super G;  and (9) granted the motion of Super G for summary judgment dismissing all claims as against it, unanimously modified, on the law, to the extent of (1) denying the branch of the motions by RXR Realty, RXR Owner, and RXR Construction for summary judgment on their claims for contractual indemnification against United Glass, and granting the branch of the motion by United Glass that sought summary judgment dismissing those claims;  (2) denying Super G's motion;  (3) granting the branch of National Wall's motion for summary judgment dismissing the claims for contractual indemnification against it by RXR Owner and RXR Realty;  (4) granting the branch of RXR Construction's motion for summary judgment as sought dismissal of the claims for contractual indemnification and common-law indemnification and contribution against it by United Glass, National Wall, and Super G, and otherwise affirmed, without costs.

Order, Supreme Court, New York County (Nicholas W. Moyne, J.), entered on or about March 31, 2025, which, to the extent appealed from as limited by the briefs, (1) granted the motion of National Wall for reargument of its motion for summary judgment dismissing the third-party claims against it and, upon reargument, adhered to its determination that National Wall is not entitled to dismissal of the claims against it but denied the branch of United Glass' motion as sought summary judgment on its claim for contractual indemnification against National Wall, and (2) granted plaintiff's motion for reargument of his motion for summary judgment on his claims pursuant to Labor Law §§ 240(1) and 241(6) and, upon reargument, granted plaintiff summary judgment on the Labor Law § 240(1) claim, unanimously affirmed, without costs.

On reargument, the motion court correctly granted summary judgment to plaintiff on his claim pursuant to Labor Law § 240(1).  While the unsecured stack of windows that fell upon plaintiff was only elevated 3 to 12 inches off the ground, their weight of 150 to 200 pounds, their height of 96 inches, and the manner in which they were stacked, leaning on their edges, places the accident within the ambit of the statute (see Grigoryan v 108 Chambers St. Owner, LLC, 204 AD3d 534, 534 [1st Dept 2022];  Touray v. HFZ 11 Beach St. LLC, 180 AD3d 507, 507 [1st Dept 2020];  Jordan v. City of New York, 126 AD3d 619, 620 [1st Dept 2015] ).  Plaintiff's Labor Law § 241(6) claim is academic in light of the grant of partial summary judgment on his Labor Law § 240(1) claim (see e.g. Malan v. FSJ Realty Group II LLC, 213 AD3d 541, 542 [1st Dept 2023] ).

The court erred in granting summary judgment to Super G. Its principal testified that its role was limited to window installation and that it never stacked any of the windows in the storage room where plaintiff's accident occurred.  However, the president of National Wall testified that Super G's workers helped National Wall unload every truckload of windows, transport them to the storage area, and tie them up with ropes, and that Super G and National Wall worked “in conjunction” in a “joint effort.”  While the United Glass project manager who oversaw the work testified that Super G did not handle the loading or unloading of deliveries, he then equivocated, stating that, while 90 to 95 percent of the windows were physically removed from trucks and placed on dollies by National Wall, Super G helped if National Wall needed extra hands.  Thus, there is a question of fact as to which subcontractor stacked the windows involved in plaintiff's accident and failed to secure them by tying them off with a rope or in some other manner.  However, since Super G had no contract with any of the parties, we only restore the common-law claims against it.

RXR Realty and RXR Owner were not entitled to summary judgment on their contractual indemnity claims against United Glass as neither was named as an indemnitee in the contract between RXR Construction and United Glass or in the contract between United Glass and National Wall. While RXR Realty and RXR Owner may own and manage the subject premises, the party referred to as “Owner” in each of those contracts was defined as RXR Construction (see Padron v. Granite Broadway Dev. LLC, 209 AD3d 536, 538 [1st Dept 2022] ).  RXR Construction is not entitled to contractual indemnification against United Glass at this stage, since the indemnity provision in their contract requires a showing of negligence on the part of United Glass.  While there are triable issues of fact as to whether United Glass, Super G, and National Wall were negligent, there has been no finding of negligence as a matter of law (see Vargas v. 622 Third Ave. Co. LLC, 233 AD3d 522, 524 [1st Dept 2024] ).  Similarly, while United Glass is a named indemnitee in its contract with National Wall, there has been no finding that it was National Wall that stacked the windows at issue, that the manner in which its workers stacked them was negligent, or that negligence was a cause of the accident.  Thus, the motion court was correct, upon reargument, to deny United Glass' motion for summary judgment on its claim for contractual indemnification against National Wall.

The claims for contractual indemnification by United Glass, National Wall, and Super G against RXR Construction should have been dismissed.  There is no contract between RXR Construction and either National Wall or Super G, and there was no indemnity provision in RXR Construction's contract with United Glass obligating RXR

Contraction to indemnify United Glass (see Astrakan v. City of New York, 184 AD3d 444, 445–446 [1st Dept 2020] ).  In any event, United Glass, National Wall, and Super G did not oppose RXR Construction's request for dismissal.