WILLIAMS v. BEN ART INC (2025)

The following e-filed documents, listed by NYSCEF document number (Motion 010) 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 473, 474, 475, 485, 486, 487, 512, 513, 514, 516 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER).

The following e-filed documents, listed by NYSCEF document number (Motion 011) 355, 356, 357, 358, 359, 360, 361, 362, 470, 476, 477, 479, 480, 488, 492, 493, 494, 495, 496, 497, 504, 505, 507, 508, 509, 510 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER).

The following e-filed documents, listed by NYSCEF document number (Motion 012) 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 468, 471, 481, 482, 506 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 013) 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 469, 472, 478, 483, 484, 498, 499, 500, 501, 502, 503, 511 were read on this motion to/for JUDGMENT - SUMMARY.

Motion sequence numbers 010, 011, 012 and 013 are hereby consolidated for disposition.

This is an action to recover damages for personal injuries allegedly sustained by an exterminator on February 8, 2018, when, while performing his work at 15 Park Row, New York, New York (the Premises), he slipped and fell on dust generated by construction work occurring in the lobby.

In motion sequence number 010, second third-party defendant/third third-party plaintiff Zonca Terrazzo and Mosaic, LLC (Zonca) moves, pursuant to CPLR 3212, for summary judgment dismissing the first-party Labor Law claims as well as dismissing the crossclaims for contractual indemnification and breach of contract by defendant Guardian Realty Management, Inc. (Guardian), defendant Park Row Realty, L.P. (Park Row) and defendant/third-party plaintiff Townhouse Builders, Inc. (Townhouse), dismissing the contractual indemnification crossclaim of second third-party defendant CML Painting Corp., d/b/a CML Construction (CML), and dismissing all third-party claims by defendant/third-party defendant/second third-party plaintiff Ben Art, Inc. (Ben Art).

In motion sequence number 011, CML moves, pursuant to CPLR 3212, for summary judgment dismissing the second third-party complaint and all crossclaims against it.

In motion sequence number 012, Ben Art moves for summary judgment dismissing the complaint, the third-party complaint, and all crossclaims against it.

In motion sequence number 013, Guardian, Park Row and Townhouse (together, the Building Defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint, as well as all crossclaims against it, and for summary judgment in its favor on its contractual indemnification crossclaim against Zonca.

BACKGROUND

At the time of the accident, Park Row owned the Premises. Park Row hired Townhouse as the general contractor for a project at the Premises that entailed, inter alia, the renovation of the Premises' lobby (the Project) (Park Row/Townhouse agreement; NYSCEF Doc. No. 414). Townhouse (d/b/a “Promont”), in turn, hired Zonca to install new terrazzo flooring in the lobby (Townhouse/Zonca agreement; NYSCEF Doc. No. 417). Townhouse also hired Ben Art to, inter alia, install “lobby stonework” at the Premises (Townhouse/Ben Art agreement, art. 1, NYSCEF Doc. No. 391). Townhouse also hired CML to demolish air conditioning units on the roof (Townhouse/CML agreement, NYSCEF Doc. No. 501). Plaintiff was employed as an exterminator by non-party Global Pest Control (Global). Global was hired by Park Row to provide monthly extermination services for the Premises that were unrelated to the Project.

Plaintiff's Deposition Testimony (NYSCEF Doc. No. 404, 405, 406)

Plaintiff testified that on the day of the accident, he was employed by Global performing extermination services at the Premises (plaintiff's tr at 7). He worked alone (id. at 14). He worked at the Premises several times while it was under construction (id. at 18). The first time he went to the Premises, he met with the building superintendent who showed him what floors needed extermination services (id. at 90). He was not hired to perform any construction work (plaintiff's third tr at 57). He would start with the 26th floor and work his way down (plaintiff's second tr at 12). After the first time he worked at the Premises, plaintiff was not escorted while working (plaintiff's third tr at 11-12).

On the day of the accident, plaintiff arrived at the Premises between 11:00 am and 12:30 pm (plaintiff's second tr. at 10). There was “construction going on” outside the Premises as well as immediately inside (id. at 14). Plaintiff signed in with the security guard in the lobby and was authorized to enter (id. at 22). He could not remember if he met with the superintendent. He “believe[d] [he] got the okay from the guard” (id. at 21). No one escorted him through the building.

Plaintiff successfully sprayed all the floors of the Premises and then headed towards what he described as the stairway to the basement (id. at 34). Plaintiff noticed a worker on the stairway “to [his] right” (id. at 38). He walked around the worker and proceeded down the stairs. As he was “leaving the steps to land on the floor” he heard another individual “scream ‘[d]ont step on the tile’ ” (id. at 41). He did not know who said this (id. at 55).

To avoid the tile, plaintiff “stepped over” what he believed was the tile (id. at 39) and then he “slipped and fell” (id. at 44). When asked if his foot slipped on something, plaintiff testified that he “believe[d] [he] slipped” (id. at 46). When asked what he slipped on, plaintiff testified: “I don't know. I guess it was dust on the floor” (id. at 46; plaintiff's third tr at 123 [“I'm assuming it was dust that made the floor slippery”]). He did not see dust on the floor prior to the accident (plaintiff's third tr at 147). After the accident, plaintiff got up and saw that there “was dust on the floor” (id. at 130). Plaintiff also testified that he never saw the tile he was told to step over (id. at 95); he assumed there was tile present because he was told to not step on it (id. at 102).

After testimony analyzing several photographs depicting different stairways and discussions regarding which constitutes the basement of the Premises (Plaintiff's second tr at 50-55), plaintiff identified one photograph, timestamped 11:09 a.m., that he testified depicted the accident location (id. at 56-57). While plaintiff had initially testified that he slipped on the basement floor (id. at 47), at his third deposition, plaintiff clarified that the accident did not occur while walking from the lobby to the basement, but from a mezzanine level to the lobby (plaintiff's third tr at 62), as depicted in the relevant photographs.

Plaintiff did not report the accident to anyone at the building (id. at 148). At the end of the day, he reported the accident to his boss at Global (id. at 148).

Plaintiff testified that no one directed him to avoid any areas (id. at 23). He was not told to avoid the construction areas (id. at 25). There were no signs warning of construction or hazardous conditions (id. at 34).

DISCUSSION

“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [internal citations omitted]). Once prima facie entitlement has been established, in order to defeat the motion, the opposing party must “ ‘assemble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real and capable of being established on trial ․ and it is insufficient to merely set forth averments of factual or legal conclusions’ ” (Genger v Genger, 123 AD3d 445, 447 [1st Dept 2014], quoting Schiraldi v U.S. Min. Prods., 194 AD2d 482, 483 [1st Dept 1993]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).

Initial Procedural Discussions

Whether plaintiff is a worker protected by the Labor Law (Motion Sequence Numbers 010, 012 and 013)

Building Defendants, Ben Art and Zonca move for summary judgment dismissing the Labor Law § 241 (6) claims against Building Defendants and Ben Art on the ground that plaintiff is not a covered worker under the Labor Law.

Labor Law § 241 (6) provides, in pertinent part, as follows:

“All contractors and owners and their agents, ․ when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

* * *

(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped ․ as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”

Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors “ ‘to provide reasonable and adequate protection and safety’ to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]).

That said, not all people on a construction site fall within the “class of persons entitled to protections of the statute” (Spadola v 260/261 Madison Equities Corp., 19 AD3d 321, 323 [1st Dept 2005]; leave denied 6 NY3d 880 [2006]). Where a plaintiff “did not perform work integral or necessary to the completion of the construction project,” was not “a member of a team that undertook an enumerated activity under a construction contract” or was not “employed by a company engaged under a contract to carry out an enumerated activity,” Labor Law § 261 (6) will not apply (id. at 323 [section 241 (6) claims dismissed where the plaintiff, a computer technician, slipped on construction materials in an under construction office space]; see also Coombs v Izzo Gen. Contr., Inc., 49 AD3d 468, 468-469 [1st Dept 2008] [building superintendent responsible for general maintenance of premises was not “responsible for performing any work related to the construction, and his job duties did not change after the project commenced” and, therefore, he was not a protected worker under Labor Law §§ 240 (1) and 241 (6)]).

Here, plaintiff's work entailed the monthly extermination of the Premises. Global, plaintiff's employer, was hired to provide periodic extermination services at the Premises pursuant to an “Annual Monthly Extermination Agreement” (Global contract, attached to Building Defendants' notice of motion, exhibit V; NYSCEF Doc. No. 416).

Here, defendants have established that there is nothing in the record linking plaintiff's extermination work to the construction project, nor is there any claim that plaintiff was a member of a team engaging in “construction, excavation or demolition work” (Labor Law § 241 [6]; Spadola, 19 AD3d at 323). Further, there is no evidence that plaintiff was directed to perform any work by the construction companies (see e.g. Velasquez v Biltmore Const. Corp., 13 Misc 3d 1220(A), *3 [Sup. Ct. Bronx County 2006] [that a construction superintendent directed a building employee to “place salt on the snow and ice on the walkway, to make it safer for workers' passage” established that the building employee performed work that was necessary and integral to the construction project]). Finally, plaintiff acknowledged that he did not perform any work on behalf of the construction companies (plaintiff's third tr at 57).

In opposition, plaintiff does not directly address this issue and fails to raise a question of fact as to the applicability of Labor Law § 241 (6) to his alleged accident.

Given the foregoing, defendants and Zonca have established that plaintiff was performing routine maintenance entirely unrelated to the Project at the Premises. Accordingly, plaintiff is not a protected worker pursuant to Labor Law § 241 (6), and Building Defendants and Ben Art are entitled to summary judgment dismissing the Labor Law § 241 (6) claims against them.

The Common-law Negligence and Labor Law § 200 Claims

(Motion Sequence Numbers 010, 012 and 013)

Building Defendants, Ben Art and Zonca move for summary judgment dismissing the common-law negligence and Labor Law § 200 claims against Building Defendants and Ben Art.

Labor Law § 200 “is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work” (Singh v Black Diamonds LLC, 24 AD3d 138, 139 [1st Dept 2005], citing Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). Labor Law § 200 (1) requires that construction sites “shall be so constructed, equipped, arranged, operated and conducted to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places” (Labor Law § 200 [1]).

There are two distinct standards applicable to section 200 cases, depending on the situation involved: (1) when the accident is the result of the means and methods used by a contractor to do its work, and (2) when the accident is the result of a dangerous condition that is inherent in the premises (see Herrero v 2146 Nostrand Ave. Assoc., LLC, 193 AD3d 421 [1st Dept 2021]; McLeod v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 797-798 [2d Dept 2007]).

As section 200 is a codification of the common-law, the elements of a common-law claim are relevant, and any defenses thereto apply.

Initially, Ben Art and Zonca argue that plaintiff's section 200 and common-law negligence claims must be dismissed as speculative. Specifically, they argue that plaintiff's testimony amounts only to speculation as to the cause of his fall (see e.g. Haibi v 790 Riverside Dr. Owners, Inc., 156 AD3d 144 [1st Dept 2017] [“To survive summary judgment the evidence must identify the defect or hazard itself and provide sufficient facts and circumstances from which causation may be reasonably inferred”]).

“Although plaintiff need not identify precisely what caused him to fall, mere speculation about causation is inadequate to sustain [a] cause of action” for common-law negligence (DaSilva v KS Realty, L.P., 138 AD3d 619, 620 [1st Dept 2016] [internal citation and quotation marks omitted]; Ash v City of New York, Trump Vil. Section 3, Inc., 109 AD3d 854, 855 [2d Dept 2013] [“[A] plaintiff's inability to identify the cause of the fall is fatal” to a negligence claim “because a finding that the defendant's negligence, if any, proximately caused plaintiff's injuries would be based on speculation”] [internal quotation marks and citation omitted]).

With that said, speculation as to causation may be overcome with “sufficient facts and circumstances from which causation may be reasonably inferred” (Schulman v Alliance Energy LLC, 238 AD3d 471, 472 [1st Dept 2025]).

Schulman is instructive. The Schulman plaintiff alleged that he tripped and fell. The defendants argued that plaintiff offered only speculation about the cause of his fall. The plaintiff's testimony included that he “remember[ed] getting enslarled [and] tangled” in something before he fell; that he later identified a hose and an air pump as being the likely cause of his accident; and photographs “of the hose and its placement” (id. at 471-472). The court held that this evidence constituted sufficient evidence from which a jury could reasonably infer causation (id. at 472).

Here, plaintiff testified that he “slipped” (plaintiff's second tr at 44) or “believed he slipped” on something (id. at 46). When asked what he slipped on, plaintiff testified: “I don't know. I guess it was dust on the floor (id. at 46). At his third deposition, plaintiff reiterated that he “assum[ed] it was dust that made the floor slippery” (plaintiff's third tr at 123). There was no testimony that plaintiff saw the subject hazard before the accident (see id. at 147). Further, there is no testimony from any defense witness with actual knowledge of the conditions at the time of the accident indicating that they saw dust at the accident location. The testimony relied on by plaintiff — from the building superintendent who testified that he “would assume” that work done on the day of the accident would involve dust — is also speculative (Sanchez tr, at 83; NYSCEF Doc. No. 415).

In addition, though plaintiff testified that after the accident he saw there was “dust on the floor” (id. at 130), there is no photographic evidence supporting such a condition. The photographic evidence provided of the accident location, taken at most 17 minutes prior to the accident,¹ does not appear to depict dust at the base of the stairway where the accident allegedly occurred (progress photographs, attached to Building Defendants notice of motion, exhibit N; NYSCEF Doc. No. 408).

In sum, the record is devoid of sufficient evidence to allow for the inference that a dusty condition proximately caused plaintiff's accident (Schulman, 238 AD3d at 472). Accordingly, plaintiff's Labor Law § 200 claim (both means and methods and hazardous condition) and the common-law negligence claim predicated upon premises liability are speculative.

With that said, plaintiff notes in opposition that premises liability is only one negligence theory alleged. Plaintiff argues that he also alleges that the Building Defendants and Ben Art failed to warn him against entering the under-construction Lobby area, failed to identify the construction zone, failed to post warning signs, failed to cordon off the construction zone, and failed to safely escort him through the building, as per building guidelines. A review of the verified bill of particulars establishes that these theories of the accident have been sufficiently presented and were not addressed in the Building Defendants' or Ben Art's motion. Accordingly, those parts of plaintiff's common-law negligence claims survive.

Thus, the Building Defendants and Ben Art are entitled to summary judgment dismissing the Labor Law § 200 claims against them, and that part of the common-law negligence claim predicated upon a premises liability theory.

Building Defendants' Crossclaims for Contractual Indemnification Claims against Zonca

(Motion Sequence Numbers 010 and 13)

Zonca moves for summary judgment dismissing the Building Defendants' indemnification crossclaims against it. Building Defendants move for summary judgment in their favor on the same claim.

“A party is entitled to full contractual indemnification provided that the ‘intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances’ ” (Karwowski v 1407 Broadway Real Estate, LLC, 160 AD3d 82, 87-88 [1st Dept 2018], quoting Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987]).

“In contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of the statutory liability” (Correia v Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]; see also Lexington Ins. Co. v Kiska Dev. Group LLC, 182 AD3d 462, 464 [1st Dept 2020] [denying summary judgment where indemnitee “has not established that it was free from negligence”]).

The contractual indemnification provision at issue between Zonca and Townhouse requires Zonca to indemnify Townhouse for any claim “arising out of or resulting from the performance of [Zonca's] Work ․ provided that such claim ․ [is] cause [sic] in whole or in part by negligent acts or omissions of [Zonca]” (Building Defendants' notice of motion, exhibit W, at 41; NYSCEF Doc. No. 417).

The scope of work of Zonca's contract with Townhouse includes the installation of terrazzo flooring. The contract's scope of work clause does not include a requirement to install warning signs or barricade or otherwise cordon off the construction site. There is no testimony presented that would establish Zonca had any such contractual duty to do so.

To the extent that the claims against Zonca by Townhouse are premised on the theory that Zonca's work created the dust that allegedly caused plaintiff's accident, as discussed above, whether plaintiff slipped on dust is too speculative to support a negligence claim.

As there is no contractual duty to install warnings or cordon off the construction site, the remaining claims cannot arise from Zonca's work as defined by the contract, and the contractual indemnification provision will not trigger. Accordingly, Zonca is entitled to summary judgment dismissing the Building Defendants' contractual indemnification claims against it. Building Defendants are not entitled to summary judgment in their favor on the same claim.

Townhouse's Third-Party Contractual Indemnification Claim Against Ben Art

(Motion Sequence Number 012)

Ben Art moves for summary judgment dismissing Townhouse's third-party contractual indemnification claim against it.

The Townhouse/Ben Art contract contains an indemnification provision identical to the Townhouse/Zonca contract, requiring Ben Art to indemnify Townhouse for any claim “arising out of or resulting from the performance of [Ben Art's] Work, provided that such claim ․ [is] cause [sic] in whole or in part by negligent acts or omissions of [Ben Art]” (Ben Art's notice of motion, exhibit Y; NYSCEF Doc. No. 391).

Here, as with Zonca, the Townhouse/Ben Art contract does not include any requirement to provide warnings or otherwise cordon off the area. Accordingly, the remaining claims cannot arise from Ben Art's work as defined by the contract, and the contractual indemnification provision will not trigger.

Accordingly, Ben Art is entitled to summary judgment dismissing the third-party contractual indemnification claims against it.

Building Defendants' Contractual Indemnification Crossclaims against CML

(Motion Sequence Number 011)

CML moves for summary judgment dismissing the Building Defendants contractual indemnification claims against it.

The Townhouse/CML contract (NYSCEF Doc. No. 501), dated December 4, 2017, contains an indemnification provision which provides that CML must indemnify Townhouse for “claims ․ arising out of or resulting from performance of [CML's] Work ․ provided that the claim ․ [is] cause [sic] in whole or in part by negligent acts or omissions of [CML]” (id. at 4).

The agreement's scope of work section requires CML to “Demo AC Machines on roof” (id. at 2). It also contains a requirement that any additional work requested would be considered a change order and would be “considered part of the scope of work herein” (id. at 2).

Testimony from Alan Globerman, Townhouse's project manager, sets forth that in addition to the work on the roof, Townhouse obtained the “proper signage” and “would give it to the CML workers to post” (Globerman tr at 79; NYSCEF Doc. No. 358; see also id. at 99 [“miscellaneous work, signage, cleaning, et cetera would be assigned to [CML] and [Globerman] would have them do it and they would do it”]).

Plaintiff's remaining theories of negligence include the failure to place warning signs and properly cordon off the construction zone.

Given the foregoing, there is a question of fact as to whether CML's scope of work included installing warnings such as signs, and whether it failed to do so. Therefore, there remains a question of fact as to whether this indemnification provision is attributable to plaintiff's accident.

Accordingly, CML is not entitled to summary judgment dismissing the second third-party contractual indemnification claim as against it.

CML's Second Third-Party Crossclaim for Contractual Indemnification Against Zonca

(motion sequence number 010)

Zonca moves for summary judgment dismissing CML's contractual indemnification claim against it on the ground that there is no contract between them that requires indemnification. CML does not oppose this part of Zonca's motion.

Accordingly, Zonca is entitled to summary judgment dismissing CML's crossclaim for contractual indemnification against it.

Crossclaims for Contractual Indemnification Against Building Defendants

(Motion Sequence Number 013)

Building Defendants move for summary judgment dismissing all crossclaims for contractual indemnification against them on the ground that there is no contract that requires Building Defendants to indemnify any other party.

This part of Building Defendants motion is unopposed, and dismissal of these claims is warranted.

The Building Defendants and Townhouse's Common-law Indemnification and Contribution Claims Against Zonca, CML and Ben Art (Motion Sequence Number 010, 011 and 012)

Zonca and CML move for summary judgment dismissing the Building Defendants common-law indemnification and contribution crossclaims against them. Ben Art moves for summary judgment dismissing Townhouse's third-party common-law indemnification and contribution claims against it.

“To establish a claim for common-law indemnification, ‘the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident’ ” (Pena v Intergate Manhattan LLC, 194 AD3d 576, 578 [1st Dept 2021], quoting Correia, 259 AD2d at 65).

“Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person” (Godoy v Abamaster of Miami, 302 AD2d 57, 61 [2d Dept 2003] [internal quotation marks and citations omitted]).

Here, as discussed above, the remaining theories for liability arise from several alleged failures to warn of hazards and/or prevent entry into a restricted/hazardous area. The moving parties address only that part of plaintiff's claim relating to premises liability (i.e. the alleged slipping hazard). As they do not address the remaining claims, they have not established their prima facie entitlement to summary judgment on these claims.

Accordingly, Zonca and CML are not entitled to summary judgment dismissing the Building Defendants' common-law indemnification and contribution claims against them. Ben Art is also not entitled to summary judgment dismissing Townhouse's common-law indemnification and contribution claims against it.

Ben Art's Common-Law Indemnification and Contribution Claims Against Zonca and CML

(Motion Sequence Number 010 and 011)

Zonca and CML move for summary judgment dismissing Ben Art's common-law indemnification and contribution claims against them.

For the same reasons discussed above, Zonca and CML have not established its prima facie entitlement to summary judgment with respect to the remaining theories of liability. Accordingly, they are not entitled to summary judgment dismissing the common-law indemnification and contribution claims against it.

Zonca and CML's Common-Law Indemnification and Contribution Claims Against Each Other (Motion Sequence Number 010 and 011).

Zonca and CML each move for summary judgment dismissing their common-law indemnification and contribution claims against each other. For the same reasons as discussed above, neither party has established prima facie entitlement to summary judgment with respect to plaintiff's remaining theories of negligence. Accordingly, neither party is entitled to summary judgment in its favor dismissing these claims (Pena, 194 AD3d at 578; Godoy, 302 AD2d at 61).

The Common-Law Indemnification and Contribution Claims Against Building Defendants

(Motion Sequence Number 013)

Building Defendants move for summary judgment dismissing all common-law indemnification and contribution claims as against them. They do not identify which entities interposed claims against them. Nor do they address plaintiff's remaining negligence theories. Accordingly, Building Defendants are not entitled to summary judgment dismissing these claims as against them.

Building Defendants' Second Third-Party Claim for Breach of Contract for the Failure to Procure Insurance Against Zonca (Motion Sequence Number 010)

Zonca moves for summary judgment dismissing Building Defendants' claim for breach of contract for the failure to procure insurance. In support, Zonca provides a copy of an insurance policy that it argues would cover Building Defendants in this action (Zonca's notice of motion, exhibit TT; NYSCEF Doc. No. 465).

Building Defendants do not oppose this part of Zonca's motion.

Accordingly, Zonca has established its entitlement to summary judgment dismissing the breach of contract for the failure to procure insurance claims against it.

The parties remaining arguments have been considered and were unavailing.

CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED that the part of the motion of second third-party defendant/third third-party plaintiff Zonca Terrazzo and Mosaic, LLC (Zonca) (motion sequence 010), pursuant to CPLR 3212, for summary judgment dismissing plaintiff Alan Williams (plaintiff) Labor Law claims as against defendant Guardian Realty Management, Inc. (Guardian), defendant Park Row Realty, L.P. (Park Row), defendant/third-party plaintiff Townhouse Builders, Inc. (Townhouse) (together, the Building Defendants), and defendant/third-party defendant/second third-party plaintiff Ben Art, Inc. (Ben Art) is granted; the part of the motion seeking summary judgment dismissing all contractual indemnification and breach of contract claims against it is granted; and the motion is otherwise denied; and it is further

ORDERED that the motion of second third-party defendant CML Painting Corp., d/b/a CML Construction (CML) (motion sequence 011), pursuant to CPLR 3212, for summary judgment dismissing the second third-party complaint and all crossclaims against it is denied; and it is further

ORDERED that Ben Art's motion (motion sequence 012) for summary judgment dismissing the complaint, the third-party complaint and all crossclaims against it is granted to the extent that the Labor Law §§ 200 and 241 (6) claims, as well as the common-law negligence claims premised on premises liability, are dismissed, and the third-party claim for contractual indemnification is dismissed, and the motion is otherwise denied; and it is further

ORDERED that the part of Building Defendants motion (motion sequence 013), pursuant to CPLR 3212, for summary judgment dismissing the complaint, as well as all crossclaims against it is granted to the extent that the Labor Law §§ 200 and 241 (6) claims, as well as the common-law negligence claims premised on premises liability, and all crossclaims for contractual indemnification against them are dismissed; and the motion is otherwise denied.

This constitutes the Decision and Order of the Court.

FOOTNOTES

1.   According to Global's records, plaintiff “clocked out” from the Premises at 11:50 A.M. (Global payroll report, attached to Building Defendants' notice of motion, exhibit O; NYSCEF Doc. No. 409). The photograph plaintiff identified as depicting the accident location is time-stamped 11:33 A.M. (progress photographs, attached to Building Defendants notice of motion, exhibit N; NYSCEF Doc. No. 408).

James G. Clynes, J.