MORALES v. HUDSON VIEW GARDENS INC LLC (2025)

Defendant Hudson View Gardens, Inc. (“Hudson”) moves for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims; granting its contractual indemnification claim against defendant/third-party plaintiff Titan Construction Services LLC (“Titan”) and against third-party defendant MUCU Contracting Corp (“MUCU”), including defense costs and attorneys' fees; and granting its breach of contract claim against Titan for failure to procure insurance (motion seq. 003). Titan opposes the relief sought against it.¹

Plaintiff timely moves for partial summary judgment as to liability on his Labor Law § 240(1) claim against Hudson and Titan (seq. 004). Hudson and Titan oppose.

BACKGROUND

On April 4, 2019, plaintiff was injured when he fell from a six-foot A-frame ladder while working at a construction site at 116 Pinehurst Avenue, New York, New York. At the time of the accident, plaintiff was standing on the third rung of the ladder, performing cutting and grinding work to a sidewalk bridge above his head, when plaintiff felt the ladder move, causing him to fall backwards. Hudson was the owner of the premises and hired Titan as the general contractor. Plaintiff was employed by subcontractor MUCU.

DISCUSSION

A party seeking summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat summary judgment (id.). Summary judgment is a drastic remedy and must be denied if there is any doubt as to the existence of a triable issue of material fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).

I. Labor Law § 240 (1)

Labor Law § 240 (1) provides in relevant part that where a building is being erected, contractors and owners “shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” “The statute imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work” (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). “[W]here an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense; however, where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability” (id. [internal quotation marks omitted]). “Thus, in order to recover under section 240 (1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury” (id.). Labor Law § 240 (1) is to be liberally construed so as to accomplish its legislative purpose of protecting workers (Stoneham v Joseph Barsuk, Inc., 41 NY3d 217, 221 [2023]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

“Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). “[L]iability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” (id., citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

Plaintiff stated that he was working on the ladder, using a grinder to point the brick façade of the building in a side-to-side motion directly in front of him, when the ladder started moving backwards and fell over, causing plaintiff to fall with it (Plaintiff's EBT Tr. at 60:17-61:5, 63:21-64:19, 65:16-68:2, 69:7-19, 73:12-19, 84:5-15, 95:20-23). The foreman told plaintiff to retrieve the ladder from a storage room at the back of the building (id. at 95:24-96:17). The ladder was in good condition (id. at 97:11-25). While plaintiff does not remember many details concerning the accident (see, e.g., id. at 22:6-25, 27:25-28:6, 41:4-42:8, 44:3-46:2, 48:24-49:14, 55:21-24, 56:20-23, 73:5-9, 74:17-77:6, 80:3-6), plaintiff has met his prima facie burden under Labor Law 240 (1) against Hudson and Titan, and those defendants have not raised an issue of fact to defeat summary judgment.²

II. Labor Law § 200 and Common Law Negligence

Hudson seeks dismissal of plaintiff's Labor Law § 200 claim and common-law negligence claims. Because plaintiff does not oppose dismissal of those claims, they are dismissed as abandoned (see Gamez v Sandy Clarkson LLC, 221 AD3d 453, 454-455 [1st Dept 2023]; Martin Assoc., Inc. v Illinois Natl. Ins. Co., 188 AD3d 572, 573 [1st Dept 2020]; Saidin v Negron, 136 AD3d 458, 459 [1st Dept 2016], lv dismissed 28 NY3d 1069 [2016], cert denied 583 US 842 [2017]).

III. Contractual Indemnification

Hudson seeks summary judgment on its contractual indemnification claim against Titan and MUCU. “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’ ” (Drzewinski v Atlantic Scaffold & Ladder Co., Inc., 70 NY2d 774, 777 [1987] [citation omitted]). “The right to contractual indemnification depends upon the specific language of the contract” (DiBrino v Rockefeller Ctr. N., Inc., 230 AD3d 127, 136 [1st Dept 2024] [citation omitted]). “Indemnification provisions are strictly construed and a promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances” (Madison Hospitality Mgt. LLC v Acacia Network Hous., Inc., 230 AD3d 1063 [1st Dept 2024] [internal quotation marks and citation omitted]).

Here, the broad indemnification provision in the contract between Hudson and Titan was triggered by plaintiff's accident in the course of Titan's and/or its subcontractor's work (see Asian v Flintlock Constr. Servs., LLC, 225 AD3d 462, 463 [1st Dept 2024]; Titan Contract at ¶ 11 [NYSCEF Doc. 116]). The subject indemnification provision also does not run afoul of General Obligations Law § 5-322.1 as it sufficiently contains the savings language “to the fullest extent permitted by law” (Brooks v Judlau Contr., Inc., 11 NY3d 204, 210 [2008]; see Guzman v 170 W. End Ave. Assoc., 115 AD3d 462, 463-464 [1st Dept 2014]; Dutton v Pankow Bldrs., 296 AD2d 321, 322 [1st Dept 2002]). Titan fails to raise an issue of fact sufficient to overcome summary judgment.

Titan's argument that questions of fact exist as to the extent of Hudson's control over the work, whether the premises was in a dangerous condition, and whether Hudson had actual or constructive notice of a dangerous condition are unsupported by the record, rely on conjecture, and, ultimately, do not raise an issue of fact as to whether Hudson was the sole proximate cause of the accident. Titan's argument that the indemnification clause is narrow and requires a finding of negligence is meritless (see NYSCEF Doc. 116 at 50 ¶ 11[e] [“any and all claims arising under Sections 240/241 of the NYS Labor law, in strict liability or otherwise, (except to the extent arising from the actual negligence or willful misconduct an Indemnified Party)”]). Therefore, Hudson's motion for summary judgment on its contractual indemnification cross-claim against Titan is granted.

Hudson also seeks contractual indemnification against MUCU, though it asserts no such claim against that party. That application is therefore denied.

IV. Breach of Contract — Failure to Procure Insurance

Hudson seeks summary judgment based on Titan's failure to obtain liability insurance covering Hudson in this action, as required by their contract. However, Hudson has not asserted a cross-claim for breach of contract against Titan (Hudson Answer to Am. Compl. [NYSCEF Doc. 108]). Generally, a party may not obtain summary judgment on an unpleaded cause of action (Weinstock v Handler, 254 AD2d 165, 166 [1st Dept 1998]). However, summary judgment may be awarded if the proof supports it and if the opposing party has not been misled to its prejudice (id.). Titan did not raise in its opposition papers Hudson's failure to plead a breach of contract claim and, rather, addressed Hudson's argument on its merits. Therefore, the Court will consider Hudson's requested relief on the merits (see Bloom v Helmsley Spear, LLC, 237 AD3d 418, 418 [1st Dept 2025]).

“A party moving for summary judgment on its claim for failure to procure insurance meets its prima facie burden by establishing that a contract provision requiring the procurement of insurance was not complied with” (Benedetto v Hyatt Corp., 203 AD3d 505, 506 [1st Dept 2022]). “The burden then shifts to the opposing party, who may raise an issue of fact by tendering the procured insurance policy in opposition to the motion” (id.). “[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 559-560 [2014]).

Hudson met its prima facie burden by submitting its contract with Titan, which requires Titan and any subcontractor performing work under the contract to procure insurance, which shall name Hudson, Titan, and identify the contract (Hudson-Titan Contract at B-1 ¶ 1 [NYSCEF Doc. 116]). In response, Titan submits its insurance policy issued by Colony Insurance Company, which names as additional insureds “[a]ll persons or organizations as required by written contract with the Named Insured [Titan]” (Titan Insurance Policy at pp. 7, 34 [NYSCEF Doc. 138]). As Hudson does not dispute that the insurance policy includes Hudson as an additional insured, there is no merit to Hudson's claim against Titan for failure to procure insurance (Chunn v New York City Hous. Auth., 83 AD3d 416, 417 [1st Dept 2011]). Therefore, Hudson's motion for summary judgment insofar as it seeks relief for Titan's unplead failure to procure insurance is denied, and the Court will not amend Hudson's pleading to include such a counterclaim (see Weinstock v Handler, 254 AD2d at 166).

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240(1) claim against defendants Hudson View Gardens, Inc. and Titan Construction Services LLC is GRANTED (motion seq. 004); and it is further

ORDERED that that part of the motion by defendant Hudson View Gardens, Inc. for summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence claims is GRANTED without opposition, and such claims are DISMISSED (motion seq. 003); and it is further

ORDERED that that part of the motion by defendant Hudson View Gardens, Inc. for summary judgment on its contractual indemnification claim against defendant/third-party plaintiff Titan Constructions Services LLC is GRANTED, and that part of the motion for summary judgment on a breach of contract claim against Titan is DENIED (motion seq. 003); and it is further

ORDERED that that part of the motion by defendant Hudson View Gardens, Inc. for summary judgment on an indemnification claim against third-party defendant MUCU Contracting Corp. is DENIED (motion seq. 003); and it is further

ORDERED that the parties shall appear for a pre-trial conference to be calendared by the Clerk of the Court.

This constitutes the decision and order of the Court.

FOOTNOTES

1.   By prior order dated May 12, 2022, the Court (Suarez, J.) granted Titan's motion for default judgment against MUCU (NYSCEF Doc. 88).

2.   The Court rejects Titan's arguments seeking dismissal of this action based on a pending federal RICO action against plaintiff's counsel, for the reasons discussed in numerous recent Labor Law decisions of this Court (see NYSCEF Doc. 143 at 6-8). Separately, the inclusion by plaintiff's counsel, Mr. Moran, of the unrelated litigation history of opposing counsel is irrelevant, beneath the dignity of the legal profession, and deeply distasteful to the Court (see NYSCEF Doc. 151 ¶¶ 37-42; Doc. 153). However, because there is no formal application for sanctions, the Court will not address that issue at this time.

Ashlee Crawford, J.