ALTAMIRANO TORRES v. [And a Third-Party Action] (2026)

Order, Supreme Court, Bronx County (Myrna Socorro, J.), entered December 18, 2025, which, to the extent appealed from as limited by the briefs, denied defendant Supreme Builders, Corp.’s motion for summary judgment dismissing the action as against it on the ground that it is not a proper Labor Law defendant, along with all cross-claims against it, unanimously modified, on the law, without costs, to grant Supreme summary judgment dismissing defendant/third-party plaintiff Tinton Realty Group LLC's cross-claims for common-law indemnification and contribution, and otherwise affirmed, without costs.

Plaintiff was using stilts to apply compound to the walls and ceiling of a bathroom on the sixth floor of a new building under construction.  While plaintiff was working, his stilts slipped on plastic floor covering, causing him to fall backwards and sustain multiple injuries.  Tinton owned the construction project and had retained Supreme to excavate and install the building's foundation and superstructure.

Supreme established prima facie that a cost sheet it prepared relative to its excavation and superstructure work obligations on the subject construction project represented a contract between it and the property owner, defendant Tinton.  Indeed, Tinton, in response to Supreme's discovery demands, produced the cost sheet – which was on Supreme's letterhead and dated September 24, 2019 – as an agreement between the two parties.

The cost sheet does not state that Supreme assumed general contractor responsibilities for the construction project.  However, plaintiff and Tinton raised a triable issue of fact as to whether Supreme was the general contractor by submitting the deposition testimony of Tinton's principal, who testified that Supreme coordinated the trade contractors and hired a site safety contractor.  Further, plaintiff submitted a photograph of the project's streetside construction-disclosure signage that identified Supreme as the general contractor and also submitted Department of Buildings (DOB) documents, which reflected that Supreme obtained the projects’ permits and resolved DOB-issued work safety violations, (see Kosovrasti v Epic [217] LLC, 96 AD3d 695, 696 [1st Dept 2012] ).  To the extent Supreme argues that the DOB documents were inadmissible as hearsay because they were not certified or authenticated, the motion court had discretion to consider hearsay in opposition to the motion because it was not the only evidence submitted in opposition (see Gonzalez v 1225 Ogden Deli Grocery Corp., 158 AD3d 582, 584 [1st Dept 2018] ).  Further, the motion court had discretion to consider DOB records obtained from the DOB website, even though they were uncertified (see Gibson v U'SAgain Holdings, LLC, 167 AD3d 536, 537 [1st Dept 2018] ).

Supreme's argument that the parol evidence rule precludes consideration of extrinsic evidence that conflicts with the language as to Supreme's responsibilities in the cost sheet is unavailing.  Supreme resolved DOB violations related to project fencing and site safety (which is consistent with the exclusion terms found in the cost sheet).  Thus, factual issues were raised as to whether the parties intended the cost sheet to govern all aspects of their relationship on the project (see Kosovrasti, 96 AD3d at 696).

While Supreme is not entitled to dismissal of the complaint as against it, it is entitled to summary judgment dismissing Tinton's cross-claims for common-law indemnification and contribution.  The motion court granted the unopposed branch of Supreme's motion that sought dismissal of plaintiff's Labor Law § 200 and common-law negligence claims as against it, which were based on the allegations that Supreme exercised supervisory control over the worksite.  Thus, liability could not be attributed to Supreme vicariously, even if it were a general contractor (see DaSilva v Haks Engrs. Architects & Land Surveyors, P.C., 125 AD3d 480, 481 [1st Dept 2015] ).

However, Supreme did not establish its entitlement to summary judgment dismissing Tinton's cross-claims against it for contractual indemnification and breach of contract for failure to procure insurance.  The cost sheet referred to a $40,000 insurance requirement for Supreme to fulfill, yet contained no further elaboration.  Tinton's principal, Yakubov, testified at his deposition that this $40,000 insurance provision referred to a contractual obligation on the part of Supreme Builders to procure insurance naming Tinton as an additional insured.  Yakubov's testimony and the insurance language in the cost sheet raise an issue of fact as to whether the parties intended for Supreme to contractually indemnify Tinton and, if so, whether Supreme breached this contract provision.  Thus, the motion court properly denied Supreme's summary judgment motion as to the cross-claims for contractual indemnification and breach of contract for failure to procure insurance claims (see e.g. Millennium Holdings LLC v Glidden Co., 146 AD3d 539, 545–546 [1st Dept 2017] [summary judgment denied as to contractual indemnification-related issues given the ambiguities in the relevant agreements, which required consideration of the provisions “in light of the extrinsic evidence”] ). (see Hooper Assoc. v AGS Computers, 74 NY2d 487, 491–492 [1989] ).

We have considered Supreme's remaining contentions and find them unavailing.