VARGAS v. [And Third-Party Actions] (2026)

Order, Supreme Court, Bronx County (Matthew Parker–Raso, J.), entered on or about June 24, 2025, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim as against defendant I & G Group, Inc., denied I & G Group's motion for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims as against it and all contractual and common-law indemnification, contribution, and breach of contract claims against it by defendants Park Premium Enterprise Inc. and Park Developers & Builders (collectively, the Park defendants), denied the Park defendants' motion for summary judgment dismissing the complaint as against them and I & G Group's cross-claims for contractual and common-law indemnification and contribution against them, and denied their motion for summary judgment on their common-law indemnification and contribution claims against I & G Group, unanimously modified, on the law, to grant the motions of the Park defendants and I & G Group for summary judgment dismissing their respective contractual indemnification cross-claims, and to grant I & G Group's motion for summary judgment dismissing the Park defendants' cross-claim against it for breach of contract for failure to procure insurance, and otherwise affirmed, without costs.

Plaintiff's unrebutted testimony established that he was using a chipping hammer to remove concrete on the first floor at a construction project when the floor he was standing on collapsed, causing him to fall approximately 25 feet down to the basement.  Prior to falling, plaintiff had tied off to a beam on the first floor, using the harness and rope that were provided to him.  As he lay on the basement floor after his fall he saw that the rope had broken and that part of it was dangling from the beam above him on the first floor.  At the time of plaintiff's accident he worked for E.N. Modern Style, Inc., a subcontractor that was hired by I & G Group, which, in turn, was hired by the property owner to perform demolition services at the project.

The record contains an agreement between the property owner and Park Developers & Builders that identifies Park Developers & Builders, doing business as Park Premium Enterprise, as general contractor/subcontractor and does not define Park's scope of work.  The record contains conflicting testimony concerning the scope of the Park defendants' work, with the Park defendants' owner Aaron Lebovits, maintaining that the Park defendants' work only included the third floor and up, and Lilly Sirkin, an employee of a nonparty real estate development company associated with the project, maintaining that the Park defendants served as construction manager for the project and oversaw all stages of construction, including demolition.  In addition, an employee of I & G Group testified that I & G Group's project manager supervised E.N. Modern Style's work on the project, which included removal of existing concrete slab on the first floor.  Moreover, an employee of the Park defendants testified to his observation before plaintiff's accident of unsafe working conditions, including workers working without harnesses, that exposed workers to elevation-related hazards on the first floor and in the basement at the project site.

Supreme Court correctly granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim as against I & G Group.  I & G Group qualifies as a proper Labor Law defendant given its delegation of work to plaintiff's employer, and I & G Group failed to rebut plaintiff's testimony concerning how his accident involving rope failure happened (see Badzio v. East 68th St. Tenants Corp., 200 A.D.3d 591, 592, 161 N.Y.S.3d 32 [1st Dept. 2021];  Nascimento v. Bridgehampton Constr. Corp., 86 A.D.3d 189, 193, 924 N.Y.S.2d 353 [1st Dept. 2011];  see also Ciaurella v. Trustees of Columbia Univ. in the City of N.Y., 228 A.D.3d 555, 557, 212 N.Y.S.3d 639 [1st Dept. 2024] ).

I & G Group was not entitled to summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims against it due to the existence of triable issues of fact concerning I & G Group's actual or constructive notice of hazardous conditions at the worksite, including elevation risks and the structural deficiency of the floor (see Bernardez v. 70 Franklin Place LLC, 205 A.D.3d 642, 643, 169 N.Y.S.3d 615 [1st Dept. 2022];  Lopez v. Dagan, 98 A.D.3d 436, 438, 949 N.Y.S.2d 671 [1st Dept. 2012], lv denied 21 N.Y.3d 855, 2013 WL 1876504 [2013] ).  I & G Group's “integral to the work” defense is unavailing (see Bazdaric v. Almah Partners LLC, 41 N.Y.3d 310, 321, 209 N.Y.S.3d 310, 232 N.E.3d 1244 [2024] ).

Supreme Court also correctly denied the Park defendants' motion for summary judgment dismissing the complaint as against them.  There are issues of fact as to whether the Park defendants are statutory agents under the Labor Law based on their supervision and control over the work.  The record contains conflicting testimony from Lebovits and Sirkin concerning the Park defendants' conduct with respect to demolition activities at the project (see Kosovrasti v. Epic [217] LLC, 96 A.D.3d 695, 695–696, 948 N.Y.S.2d 260 [1st Dept. 2012] ).

Due to the existence of triable issues concerning the Park defendants' and I & G Group's negligence and supervisory authority, the court correctly denied their respective motions for summary judgment on their common-law indemnification cross-claims (see Naughton v. City of New York, 94 A.D.3d 1, 10, 940 N.Y.S.2d 21 [1st Dept. 2012] ).

Similarly, the court correctly denied I & G Group's motion and Park's motion for summary judgment on the contribution claims against each other, as outstanding questions remain concerning the Park defendants' role in plaintiff's accident (see Raquet v. Braun, 90 N.Y.2d 177, 183, 659 N.Y.S.2d 237, 681 N.E.2d 404 [1997] [contribution will apply where the parties are allegedly liable for the injury under different theories];  Lucas v. City of New York, 236 A.D.3d 523, 525, 230 N.Y.S.3d 131 [1st Dept. 2025] [party not entitled to summary judgment where issues of fact remain whether party against whom contribution is sought was negligent] ).

Finally, the court should have dismissed the Park defendants' and I & G Group's cross-claims for contractual indemnification and breach of contract for failure to procure insurance because, as they acknowledge, there was no contract between them (see Astrakan v. City of New York, 184 A.D.3d 444, 445–446, 125 N.Y.S.3d 709 [1st Dept. 2020] ).