Andre Medina, Stefanie Medina, Plaintiff, v. Blueshore Engineering, L.L.C., H. M. White, R.L.A., P.C. D/B/A HMWhite, Socotec, Inc. D/B/A Vidaris, Inc., Socotec Engineering, Inc. D/B/A Vidaris, Inc. Defendant. (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 6) 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 392, 393, 394, 395, 396, 401, 402, 403, 408, 409, 410, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 443, 444, 513, 514, 515, 516, 517, 518, 519, 520, 521, 522, 523, 524, 525, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 536 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 7) 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 404, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 473, 474, 475, 476, 477, 488, 489, 490, 491, 492, 493, 496 were read on this motion to/for DISMISS.

The following e-filed documents, listed by NYSCEF document number (Motion 8) 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 377, 391, 397, 405, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 478, 479, 480, 481, 486, 495 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 9) 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 398, 400, 406, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 482, 483, 484, 485, 487, 494 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, the Decision and Order of this Court is as follows:

Third-party defendant/second third-party defendant, PBM, LLC d/b/a Perfect Building Maintenance ("PBM") moves for summary judgment dismissing the third-party complaint and second third-party complaint. Defendants/Second third-party plaintiffs, One State Street LLC ("One State") and ACTA Realty d/b/a The Wolfson Group ("Wolfson"), cross-move for summary judgment on their third-party claims for contractual indemnity and breach of contract (Motion Seq. 006).¹ One State and Wolfson also move, by separate notice of motion, for summary judgment dismissing the plaintiff's Labor Law § 200 claims against One State and Wolfson (Motion Seq. 007).² Defendant/Third-party plaintiff AquaFence USA, Inc., and defendants AquaFence AS, and AquaFence SIA LATVIA (hereinafter, all jointly referred to as the "AquaFence defendants") jointly move via separate notices of motion for summary judgment dismissing the plaintiff's complaint in its entirety (Motion Seq. 008 and 009). For purposes of judicial economy, the motions are consolidated and decided in accordance with this single decision and order.

Salient Facts

Plaintiff, Andre Medina ("plaintiff" or "Medina"), commenced this action to recover damages for personal injuries allegedly sustained in an accident that took place while he was in the course of his employment as a porter with PBM. PBM contracted with One State/Wolfson to provide maintenance services in multiple buildings in Manhattan. Although plaintiff was normally assigned to a different building nearby, on the date of the accident plaintiff was instructed by his supervisor at PBM, Osa Vukovic ("Vukovic"), to report to One State Street ("the subject building"). The subject building was owned by One State, managed by Wolfson, and also subject to a maintenance contract with PBM. It is undisputed that on the date of plaintiff's accident, Vukovic received a phone call from the chief engineer at One State, Jack Sullivan ("Sullivan"), requesting assistance from all personnel at the subject building. Plaintiff was sent in response to the call, though he was not provided with any information as to what that assistance would require.

It is undisputed that on that day of plaintiff's accident, Hurricane Isaias was making its way to the shores of New York City. Plaintiff testified that as he was walking to the subject building, which was about five blocks away, it was drizzling outside but the weather was not extreme. However, plaintiff testified that by the time he arrived at the location, the winds were extremely strong. Upon arrival, plaintiff observed other porters and employees of One State standing outside of the subject building trying to hold onto the "hurricane barriers" which were out of place and flying in the wind. Plaintiff immediately began to assist. After a few minutes, plaintiff testified that the wind became too strong and he stopped attempting to secure the panels, and instead hooked arms with a coworker to help keep himself grounded in the wind. Within a few seconds of doing so, plaintiff was struck with a hurricane barrier that was flying in the wind. Plaintiff was thrown into the side of a vehicle parked on the street after being struck. The entire incident was captured on film from multiple angles.

The "hurricane barrier" that struck plaintiff was one panel of a modular system with different component panels that link together to create a flood wall known as the AquaFence flood barrier system/flood wall. Defendant, AquaFence AS, designed the system and defendant, AquaFence SIA, manufactured it. Defendant, AquaFence USA, sold the system to One State/Wolfson. The system was delivered to the subject building in April 2018. Two "test runs" of deployment of the system were conducted by AquaFence with One State employees after delivery. However, the date of plaintiff's accident in August 2020, was the first time the system was deployed by One State/Wolfson for its actual intended purpose.

After sustaining damage due to flooding after Hurricane Sandy, One State/Wolfson retained Blueshore Engineering, LLC to ascertain flood mitigation options for the subject building.³ Sullivan testified that the decision was made to go with AquaFence because the system did not require anchoring. Instead, the flood barrier was designed to stay in place by using the weight of the water while anchors were marketed as optional. Notwithstanding said marketing, it is undisputed that there were various communications between One State/Wolfson and Adam Goldberg ("Goldberg"), the AquaFence USA employee who negotiated the sale regarding the installation of anchors at the location. One State/Wolfson also retained landscape architect, H. M. White, R.L.A., P.C. d/b/a HMWHITE for an assessment of outdoor renovations with plans reflecting anchors in place.⁴ Despite those conversations and/or alleged plans, it is undisputed that anchors were never installed prior to the accident. Instead, One State attempted to secure the panels by placing 50 pound sandbags on the base of each panel. The sandbags proved inadequate to anchor the panels in the storm, resulting in the same becoming airborne in the wind and ultimately striking plaintiff.

Plaintiff asserts causes of action sounding in Labor Law against One State and Wolfson; in strict products liability, design defect, failure to warn, and breach of warrranty against the AquaFence defendants; and in negligent/improper installation and maintenance, dangerous condition on the premises, and res ipsa loquitor ("res ipsa") against all defendants. After engaging in discovery, plaintiff certified that discovery is complete and that this matter is ready for trial by filing Note of Issue and certificate of readiness. The instant motions followed.

Applications

The AquaFence defendants move to dismiss plaintiff's claims for strict products liability, breach of warranty, negligent/improper installation and maintenance, and res ipsa, as well as plaintiff Stephanie Medina's claim for loss of consortium. Said defendants contend that there is nothing wrong with the AquaFence system, that it was reasonably safe as designed, and functions as intended. On that basis, they also argue that Stephanie Medina's claims should be dismissed. The AquaFence defendants argue that the accident was proximately caused by One State/Wolfson's decision not to purchase and install the optional anchors, deciding to use an inadequate weight of sandbags as an alternative, and in sending plaintiff out into an active storm to retrieve the panels. The AquaFence defendants further argue that they owed no duty to plaintiff, were not involved in deployment of the system, and did not have exclusive control over the same.

In support of their joint motions, the AquaFence defendants submit the affirmations of Professional Engineer, Shawn Rothstein (the "Rothstein affirmation"), and Professional Engineer Steven Pietropaolo (the "Pietropaolo affirmation"). In opposition, plaintiff submits the affirmation of meteorologist Steven Roberts (the "Roberts affirmation") and the affirmation of Professional Engineer Eric Heiberg (the "Heiberg affirmation"). One State opposes the motion and submits the affirmation of Professional Engineer Sean O'Brien (the "O'Brien affirmation). PBM also opposes the AquaFence defendants' motion and submits the affirmation of Principal Scientist Joseph Sala, Ph.D (the "Sala affirmation") (Motion Sequences 008 and 009).

One State/Wolfson move to dismiss plaintiff's Labor Law § 200 claims arguing that plaintiff was not engaged in a protected activity pursuant to the statute. Alternatively, One State/Wolfson argue that they had no notice of a hazardous condition, and with a storm in progress, there was insufficient time for notice of the same. One State further argues that they had no control over plaintiff's work. Regarding the decision to use sandbags, One State/Wolfson contend that they used the sandbags as an alternative method of anchoring based on guidance received from Goldberg (Motion Sequence 007).

PBM moves to dismiss the third-party complaint containing claims of contractual indemnification and contribution, as well as the second third-party complaint, which sets forth claims of contribution, common law indemnification, contractual indemnification, and breach of contract for failure to procure insurance against PBM. PBM contends that there is no basis for any of the claims against it because it was not negligent, and because it acted reasonably under emergency circumstances. As for the contractual claims, PBM argues that there is no language in the relevant contract to support the same. PBM further contends that based on its status as plaintiff's employer, common-law indemnification and contribution are barred by the Worker's Compensation Law. One State/Wolfson cross-move for summary judgment against PBM on their causes of action for contractual indemnity and breach of contract only (Motion Sequence 006).

Applicable Law and Analysis

The proponent of a motion for summary judgment must tender sufficient evidence in admissible form to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [NY 1986]; Winegrad v. New York University Medical Center, 64 NY2d 851 [NY 1985]). Once this showing has been made the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material facts which require a trial of the action (Zuckerman v. City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non-moving party (Assaf v. Ropog Cab Corp., 153 AD2d 520 [1st Dept. 1989]). It is well settled that issue finding, not issue determination, is the key to summary judgment (Rose v. Da Ecib USA, 259 AD2d 258 [1st Dept. 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [NY 1957]).

Strict Products Liability

Strict products liability claims can be premised on a mistake in the manufacturing process, defective design or inadequate warnings about the use of the product (See Smith v. 2328 Univ. Ave. Corp., 52 AD3d 216, 217 [1st Dep't., 2008]). Here, plaintiff alleges defective design and inadequate warnings.⁵

In order to establish a prima facie case premised on design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury" (Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 107 [1983]). The standard to be applied in determining whether or not a product is defectively designed is whether the product as designed was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner without compromising the utility of the product. In Voss, the Court of Appeals set forth seven nonexclusive factors to be considered in balancing the risks created by the product's design against its utility and cost (Voss, 59 NY2d at 108). Those factors are: (1) the product's utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer's ability to spread the cost of any safety-related design changes. This risk/utility analysis is rooted in a recognition that there are both risks and benefits associated with many products and that there are instances in which a product's inherent dangers cannot be eliminated without simultaneously compromising or completely nullifying its benefits (Denny v. Ford Motor Co., 87 NY2d 248, 257 [1995]).

Here, the AquaFence defendants met their initial prima facie burden of establishing that the product was reasonably safe through the submission of the Rothstein and Pietropaolo affirmations.⁶ Pietropaolo opines, that within a reasonable degree of engineering certainty, the subject AquaFence barriers were reasonably safe and not defective in regard to design, warnings or instructions. The Pietropaolo affirmation further sets forth that anchors were not a part of the contract with AquaFence. Therefore, Pietropaolo concludes that it was One State's responsibility to use the correct sandbag weight for each panel used as a substitute. The Rothstein affirmation confirms that it was the buyer's responsibility to purchase anchors, and further that AquaFence's decision not to include anchors with the system was not unreasonable, nor would it impose undue hardship on the purchaser.

Notwithstanding the above, plaintiffs' opposition to defendants' prima facie showing raises issues of fact through the submission of the Heiberg affirmation (See Reeps v. BMW of N. Am., LLC, 94 AD3d 475, 476 [1st Dep't., 2012]). Initially, the Heiberg affirmation explains that the defective product at issue is not the AquaFence flood wall system generally, but rather the custom system specifically designed for the subject building. Heiberg opines that the product as designed specifically for One State, did not have any potential for safe use without anchors. Heiberg explains that his conclusion is based on a review of flood records in New York City ("NYC") for the past 50 years. After reviewing said records, Heiberg extrapolates that this particular location would only require flood protection in situations that involve high winds because NYC does not flood except during severe storms that historically have always included high winds. Heiberg also cites to the testimony of AquaFence engineer Fred Dahl ("Dahl"), which sets forth in sum and substance that anchors are required in winds above 10 miles per hour to prevent the panels from moving and further that he would advise a client in an area known to be windy of that fact. Given these circumstances, Heiberg opines that AquaFence had no basis to believe that the product would ever be used in a situation where it was not exposed to high wind. Heiberg ultimately concludes that because AquaFence states that anchors are absolutely required to secure their flood barriers when wind speeds are above 10 mph, and because this wind speed can be expected under relatively normal weather conditions, anchors should not be optional equipment for the custom design for the subject building which is known to be in a particularly windy area. Heiberg further posits that because AquaFence was aware of the flying parts and impact hazard, and they were aware that One State would implement the system in high wind situations to prevent flooding, then it follows that Aquafence knew, or should have known, that it sold a defective product to One State. Heiberg also opines that a design including anchors as standard included equipment was feasible and would not have imposed a significant cost on AquaFence.

The decisive question is whether plaintiff has produced enough evidence for a jury to find that the product was "not reasonably safe" (Adams v. Genie Indus., Inc., 14 NY3d 535, 543 [1st Dep't., 2010]). Here, the Court finds that plaintiffs have done so to warrant denial of the motion. The conflicting opinions cited above present a battle of the experts for the jury to resolve (Shillingford v. New York City Transit Auth., 147 AD3d 465 [1st Dep't., 2017]).

The Court is likewise not persuaded that liability shifted to One State because of its decision not to purchase the optional anchors that they knew were available. A seller of equipment whose buyer refused to purchase an optional safety feature is, under certain conditions, immune from a claim that the product without the safety feature was defectively designed. In Scarangella v. Thomas Built Buses, Inc., 93 NY2d 655, 661 [1999], the Court of Appeals set forth the governing principles in cases where a plaintiff claims that a product without an optional safety feature is defectively designed because the equipment was not standard. The product is not defective where the evidence and reasonable inferences therefrom show that: (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product (id.)[emphasis added].

Here, the AquaFence defendants fail to make a prima facie showing that the three factor test set forth in Scarangella has been satisfied. Initially, while the AquaFence defendants argue that One State/Wolfson is a knowledgeable professional landlord, there is no evidence that One State/Wolfson was thoroughly knowledgeable regarding the AquaFence flood panel wall and its use. On the contrary, the evidence in the record supports the position that One State was not knowledgeable regarding the same and relied on AquaFence's representations regarding the capabilities of its product.

As to the second factor, the AquaFence defendants fail to establish normal circumstances of use in which the product specifically designed for One State is not unreasonably dangerous without the use of anchors. While Pietropaolo relies on the FM rating given by the Army Corp of Engineers, the Court finds that argument to be unavailing since the rating was specifically premised on the use of anchors with the panels. Defendants rely on the fact that some testing was done without the use of anchors to support their argument. However, a review of the report issued by the Army Corp of Engineers reveals that the report does not set forth such a conclusion. On the contrary, the results of that testing reveals both a higher rate of movement of the barriers and a higher rate of seepage of water without anchors, which is consistent with the product's approval being conditioned on the use of the same.

As to the third factor, AquaFence contends that One State is a sophisticated entity and in a position to balance the benefits and the risks of not having the anchors. However, said argument is misplaced in light of the record before the Court. Notwithstanding Dahl's testimony that the panels would require anchoring at winds above 10 miles per hour, Sullivan testified that Goldberg advised him that a sandbag would be sufficient protection for winds up to 70 miles per hour. Given the AquaFence defendants' current position, that advice did not prove true. Goldberg acknowledged having the conversation regarding the use of sandbags, though he was unable to confirm exactly what was said. However, there is also an email thread between Goldberg and Sullivan submitted to the Court in which Sullivan inquires as to how many miles per hour of wind the panels are rated for with the use of sandbags. Goldberg responds that he would have to "get facts" on that, but nonetheless responded "The more sand you use, the more wind resistant it will be". While Goldberg testified that he gave this advice in an emergency situation, there is no language in the email to support that claim. Indeed, Dahl (AquaFence's engineer) testified that Goldberg should have communicated to One State not to use the system at all without anchors and further that he should have communicated the dangers associated with doing so, so that the customer could make an informed judgment. In light of the evidence discussed above, the AquaFence defendants fail to establish that One State was in a position to balance the benefits and the risks of using the anchors when even according to AquaFence's own witnesses, those risks were not properly communicated.

In accordance with the reasoning set forth above, the branch of the AquaFence defendants' motion seeking dismissal of plaintiff's strict liability claim premised on defective design is denied.

Failure to Warn

A product may be defective due to inadequate warnings of the risks and dangers involved in its foreseeable use (Liriano v. Hobart Corp., 92 NY2d 232, 237 [1998]). The duty also extends to foreseeable product misuse (id.). A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its products of which it knew or should have known (Rastelli v. Goodyear Tire & Rubber Co., 79 NY2d 289, 297 [1992]). A manufacturer's duty typically extends to the original or ultimate purchasers of the product, to employees of those purchasers, and to third persons exposed to a foreseeable and unreasonable risk of harm by the failure to warn (McLaughlin v. Mine Safety Appliances Co., 11 NY2d 62, 68 [1962]). Although juries determine whether and to what extent a particular duty was breached, it is for the courts first to determine whether any duty exists (see, Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222 [2001]).

To be actionable, the absence of warnings must be a proximate cause of the claimed injuries (Howard v. Poseidon Pools, 72 NY2d 972 [1988]). Even if a duty to warn otherwise exists, recovery may be denied to a knowledgeable user, i.e. one who was fully aware of the specific hazard without receiving the warning (see Travelers Ins. Co. v. Federal Pac. Elec. Co., 211 AD2d 40, 43 [1st Dept. 1995]). Even if a product user "has some degree of knowledge of the potential hazards in the use of a product, summary judgment will not lie where reasonable minds might disagree as to the extent of the knowledge" (Public Adm'r of Bronx County v. 485 E. 188th St. Realty Corp., 116 AD3d 1, 10 [1st Dep't., 2014]).

A defendant establishes its prima facie entitlement to summary judgment dismissing a failure to warn claim by demonstrating either that the product's warnings were adequate or that any allegedly inadequate warnings were not a proximate cause of the plaintiff's injuries (see Reis v. Volvo Cars of N. Am., Inc., 73 AD3d 420, 423 [1st Dept. 2010]). AquaFence's expert Pietropaolo relies on the product manual in support of his opinion that One State was adequately warned regarding the use of anchors with the system in high wind situations. The Pietropaolo affirmation specifically cites to the anchoring provision contained therein which states, "The AquaFence system can be anchored to the ground as an extra security against skidding and overturning where the panels may be affected by high winds." Pietropaolo further opines that One State knew or should have known that Isaias' winds coupled with deploying the flood barriers with one sandbag per panel was an obvious hazard given the size, weight, and configuration of the barriers. Based on that premise, Pietropaolo concludes that the warnings were adequate and further that manufacturers are not required to provide warnings for risks and risk avoidance measures that should be obvious to the end user.

Initially, the Court notes that language setting forth that the system "may" be anchored as "extra security" against skidding and overturning is not the equivalent of stating the system must or shall or should be anchored in any situation involving winds above 10 miles per hour to avoid the panels becoming unstable and potentially becoming hazardous flying objects (as testified to by Dahl). Notwithstanding, given One State's position that they never received the manual and consequently that plaintiff did not read it, the failure to warn claim based on alleged deficiencies in said manual should be dismissed as they cannot be the proximate cause of the accident ( Vasquez v. Ridge Tool Pattern Co., 205 AD3d 657, 659 [1st Dep't., 2022]). Accordingly, the branch of the AquaFence defendants' motion to dismiss the failure to warn claims premised on the written manual is granted.

Notwithstanding the above, the AquaFence defendants fail to establish that a warning label on each of the panels would not have deterred the product's misuse. While the AquaFence defendants contend that plaintiff would not have seen the warning label prior to the accident, said argument is speculative at best. Moreover, the Rothstein affirmation raises an issue of fact as to whether a warning label would have prevented plaintiff's accident altogether. Rothstein opines within a reasonable degree of certainty, that AquaFence failed to provide any warning of the dangerous flying object and impact hazard. Rothstein explains that said failure includes not identifying the hazard, the level of hazard seriousness, the probable consequence of involvement with the hazard, and how the hazard can be avoided. Rothstein contends that AquaFence could have and should have employed such a warning label, that warning labels are common and inexpensive and would not have imposed an undue cost on AquaFence. Rothstein concludes that if the AquaFence defendants had placed such a warning, readily visible to anyone using the panels, then the panels would not have been set up without anchors and the accident would not have occurred.

The O'Brien affirmation also raises an issue of fact. O'Brien opines that AquaFence did not require anchoring of the flood barrier panels during deployment at the time of the incident, stated that anchors were the customer's choice in their proposal, and that AquaFence did not adequately warn customers of the dangers associated with not anchoring the panels.

It is also plaintiff's burden to adduce proof that the user of a product would have read and heeded a warning had one been given (Sosna v. Am. Home Prods., 298 AD2d 158, [1st Dep't., 2002]). As evidence of this fact, plaintiff highlights that once the hazard was known by One State after his accident, the anchors were installed. The O'Brien affirmation also highlights the change in AquaFence's literature to require anchoring after the accident.

In addition to the above, defendants fail to set forth any evidence to establish that plaintiff was a knowledgeable user of the product given his unrefuted testimony that the day of the accident was the first time he ever worked with the system. Nor have they established that that the use of the system without anchors was not foreseeable. Despite their prior discussions regarding the installation of anchors, on two post-delivery occasions, AquaFence went to One State to train its employees on deployment of the system. Anchors were absent on both occasions. Furthermore, both written and verbal communications with Goldberg indicated that One State was exploring the use of sandbags as an alternative to anchoring. Rather than explicitly stating that sandbags were not a feasible option, which is AquaFence's current position, Goldberg implied that they were. Given this knowledge, it cannot be said as a matter of law that the use of sandbags was not foreseeable. It is defendant's burden on a motion for summary judgment dismissing a claim premised on a failure to warn to demonstrate that additional or different warnings would not have deterred the product's misuse (See Hempstead v. Hammer & Steel, Inc., 234 AD3d 407, 408 [1st Dep't., 2025]). Here, AquaFence has failed to do so. Accordingly, the branch of the AquaFence defendant's motion seeking dismissal of the failure to warn premised on a warning label on the product itself is denied.

In light of the AquaFence defendants' failure to establish as a matter of law that the product was reasonably safe, the branch of the motion seeking dismissal of plaintiff Stephanie Medina's derivative claims on that basis is also denied.

Res Ipsa Loquitor

Res ipsa, a form of circumstantial evidence, creates a permissible inference of negligence that may be accepted or rejected by the triers of fact (Tora v. GVP AG, 31 AD3d 341, 342 [1st Dep't., 2006]). A plaintiff seeking a charge on the theory of res ipsa loquitur must establish three elements: (1) the event must be of a kind that ordinarily would not occur absent negligence of the defendant; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not be due to any voluntary action or contribution on the part of the plaintiff (Banca Di Roma v. Mut. of Am. Life Ins. Co., 17 AD3d 119, 120 [1st Dep't., 2005]).

AquaFence moves to dismiss the res ipsa claim, arguing that they did not have exclusive control over the panels. In opposition plaintiff argues that sole physical access to the instrumentality is not a requirement, but rather evidence that the cause of the accident was probably such that the defendant would be responsible for any negligence connected to it. Plaintiff further argues that AquaFence was the exclusive designer and manufacturer of the product and there is no evidence that it was modified after delivery.

The Court is not persuaded by plaintiff's argument that exclusive control is not necessary for the doctrine to be applicable. Plaintiff's reliance on the holding in Jeanty v. New York City Housing Auth., 176 AD3d 502 [1st Dep't., 2019] to support that contention is misplaced. In Jeanty, plaintiff was injured after the armature of a door fell and struck her in the head as she was crossing through the threshold of the door. In assessing plaintiff's claim under res ipsa, the First Department opined that there was an issue of fact regarding exclusive control "even though defendant did not have sole physical access to the door"(id.). Notably, the defendant in Jeanty was the property owner and the door at issue was located at the public entrance of the building and was undoubtedly used by and accessible to the public daily. Here, there is no issue as to who had exclusive control or access to the panels. It is undisputed that One State had exclusive physical control of the panels for over two years prior to the accident and that the panels were stored in a secured area of the building not generally accessible to the public. There is also no evidence that AquaFence had any further contact with or independent access to the panels once they were delivered to One State and deployment training was completed. Also unlike Jeanty, AquaFence does not own the subject building where the panels were stored or being used.

Nor is the Court persuaded by plaintiff's reliance on Lear v. Upali (USA), Inc., 205 AD2d 360, [1st Dep't., 1994]). Lear was a wrongful death action involving an unexplained, mid-flight disappearance of a recently purchased jet. The jet was manufactured by defendant and plaintiffs' decedent was a passenger. The First Department found that the doctrine of res ipsa loquitur was applicable to the claim of pilot error and further that the element of control was satisfied with proof that the defendant had trained the pilot. Here, while there are issues of fact regarding product design and warnings, it is undisputed that AquaFence did not train One State to place five pound sandbags on the panels as a means of securing them. Therefore, the holding in Lear is not applicable to this matter since there is no evidence to support the claim that AquaFence's training caused the accident. Indeed, neither of the cases cited to by plaintiff involve an instrumentality that was in the exclusive custody and control of a third-party for years prior to and including the date of the accident. As such, the holdings are not persuasive in this matter. In accordance with the reasoning above, the branch of the AquaFence defendants' motion seeking dismissal of the res ipsa claim is granted.

Breach of Warranty

While the strict products liability concept of a product that is "not reasonably safe" requires a weighing of the product's dangers against its over-all advantages, the UCC's concept of a "defective" product requires an inquiry only into whether the product in question was "fit for the ordinary purposes for which such goods are used" (Denny v. Ford Motor Co., 87 NY2d 248, 259 [1995]). While there is often significant overlap between the substance of the two claims, they are distinct causes of action.

The AquaFence defendants move to dismiss the breach of warranty claims arguing that the same are not timely. In support of that argument, the AquaFence defendants cite to the contract of sale between AquaFence USA and One State. Said contract contains a provision setting forth that the warranty is limited to a period of two years from the date of delivery. It further sets forth that no other warranty, whether expressed or implied (including any warranty of fitness for a particular purpose) shall exist in connection with the sale or use of the product. Because plaintiff's accident occurred beyond that two year period, the AquaFence defendants argue that the breach of warranty claim is time-barred.

Plaintiff contends that the statute of limitations set forth in UCC § 2-725 governs the breach of warranty claims in this case and sets the same at four years. Plaintiff further argues that since the accident took place within that four year time period, the action is timely. Moreover, plaintiff contends that he was not a party to the contract and therefore any modifications to the statute of limitations contained in the contract cannot limit his time to recover thereunder.

The Court is not persuaded by plaintiff's argument that the statute of limitations of four years as set forth in UCC § 2-725 is applicable to this case. While the first line of the statute does impose said time limitation, the very next sentence sets forth, "By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it" (Unif.Commercial Code § 2-725). Here, the evidence submitted by AquaFence establishes that the parties agreed to lower that time period to two years, which is permitted pursuant to the statute plaintiff relies on. Moreover, the Court further finds that the disclaimer language was sufficient to warrant dismissal of the remaining warranty claims. The language to exclude all implied warranties of fitness is sufficient if it states, for example, that 'There are no warranties which extend beyond the description on the face hereof.'' (Velez v. Craine & Clark Lumber Corp., 33 NY2d 117, 124 [1973]). The language in the disclaimer at issue here meets that test. Therefore, even assuming that plaintiff has standing to sue as an intended third-party beneficiary of a contract for the purchase of the panels, the broad, express, and conspicuous disclaimer of all warranties set forth in the document memorializing the sale is fatal to plaintiff's claims for breach of the implied warranties of merchantability and fitness for a particular purpose (See W. 63 Empire Assocs., LLC v. Walker & Zanger, Inc., 107 AD3d 586, 586 [1st Dep't., 2013]). In accordance with the above reasoning, the branch of the AquaFence defendants' motion to dismiss the plaintiff's claims for breach of warranty is granted.

Negligent/Improper Installation and Maintenance

The AquaFence defendants move to dismiss the negligent/improper installation and maintenance claims arguing that they have no duty to plaintiff, they were not present on the date of accident when the system was deployed, nor did they maintain the system after it was delivered to One State. Since they were not physically present, the AquaFence defendants contend that they cannot be held liable for the actions of a third-party, namely One State, whose actions they could not control. The AquaFence defendants further argue that the system was not deployed in accordance with the deployment plan that it provided.

In opposition, plaintiff concedes that AquaFence was not physically present for the deployment, but nevertheless contends that AquaFence's improper and misleading instructions regarding deployment of the product without anchors were substantial factors in causing One State to improperly install it on the date plaintiff was injured. Plaintiff further argues that defendants had a duty to provide a product that was fit for the purposes for which such products are ordinarily employed and breached this duty by selling a defective product to One State and training them to install it improperly.

It is well settled that a finding of negligence requires the breach of a duty because, in the absence of a duty, there is no breach and, without a breach, there is no liability (see DiBrino v. Rockefeller Ctr. N., Inc., 230 AD3d 127, 132 [1st Dep't., 2024] citing Pulka v. Edelman, 40 NY2d 781, 782 [1976]). That is, if a defendant owes no duty to a plaintiff, "there can be no liability in damages, however careless the conduct or foreseeable the harm" (id.). Concepts of reasonable care and foreseeability are not divorced from a negligence theory of liability, as they may be under other strict products liability predicates (Enright by Enright v. Eli Lilly & Co., 77 NY2d 377, 387 [1991]). However, the claims can be indistinguishable (id.).

Initially, plaintiff in opposition only addresses the claim for improper installation. Failure to oppose dismissal of a claim warrants dismissal of said claim as abandoned. Accordingly, the claims for negligent/improper maintenance are dismissed.

As to the improper installation claim, the Court is not persuaded by the lack of duty argument. Indeed, as the designer, manufacturer, and seller of the product in question, the AquaFence defendants owed a duty to the plaintiff under both strict liability and a negligence theory of liability. In addition to strict products liability, manufacturers and sellers in the normal course of business are liable for injuries caused by ordinary negligence, and are therefore under a duty to exercise reasonable care so as to avoid the occurrence of injuries by any product which can reasonably be expected to be dangerous if negligently manufactured or sold (Gebo v. Black Clawson Co., 92 NY2d 387, 394 [1998]). However, in light of the conflicting expert testimony regarding the safety and foreseeable uses of the product noted above, the Court finds that there is an issue of fact regarding whether that duty was breached. Issues of credibility and accuracy are matters within the province of the jury (Cokeng v. Ogden Cap Props., LLC, 104 AD3d 550, 550—51 [1st Dep't., 2013]). Accordingly, the motion to dismiss the common law negligence claim is denied.

Labor Law § 200

Section 200(1) of the Labor Law codifies an owner's or general contractor's common-law duty of care to provide construction site workers with a safe place to work (Perrino v. Entergy Nuclear Indian Point 3, LLC, 48 AD3d 229, 230, 850 N.Y.S.2d 428 [2008]). Claims for personal injury under the statute and the common law fall into two broad categories: (1) those arising from an alleged defect or dangerous condition existing on the premises and (2) those arising from the manner in which the work was performed (see Cook v. Orchard Park Estates, Inc., 73 AD3d 1263, 1264 [2010]).

Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work (Foley v. Consolidated Edison Co. of NY, Inc., 84 AD3d 476, 477, 923 N.Y.S.2d 57 [2011]). Where the accident was caused by a defective premises condition, rather than the method or manner in which work was performed, liability depends on whether the owner or contractor created or had actual or constructive notice of the hazardous condition (See Bayo v. 626 Sutter Ave. Assoc., LLC, 106 AD3d 648, 648, 966 N.Y.S.2d 390 [1st Dep't., 2013]). A defendant establishes prima facie entitlement to summary judgment on a common-law negligence claim by proffering evidence that they neither created the accident-causing condition, nor had prior notice, actual or constructive, of it (Lopez v. Dagan, 98 AD3d 436, 438, 949 N.Y.S.2d 671, 673 (1st Dep't., 2012).

One State/Wolfson moves to dismiss plaintiff's Labor Law § 200 cause of action on the grounds that the subject building was not under construction and plaintiff was not performing an enumerated activity or covered work as proscribed by the Labor Law statute. In the alternative, One State/Wolfson argues that it did not supervise, direct or control plaintiff's work, nor did it create or have notice of the alleged defective condition within a reasonable period of time so as to give sufficient time for them to have cured it. One State/Wolfson additionally argues that plaintiff cannot recover against the building owner under Section 200 because he was injured by same dangerous condition that he was called on to fix.

Contrary to One State/Wolfson's argument, the protections afforded a worker under Labor Law § 200 are not limited to construction work and apply to all work places (Paradise v. Lehrer, McGovern & Bovis, Inc., 267 AD2d 132, 134 [1999]). To be sure, an individual need not actually be engaged in physical labor to be entitled to coverage under the Labor Law, coverage also extends to those who perform work integral or necessary to the completion of the project (See Coombs v. Izzo Gen. Contracting, Inc., 49 AD3d 468, 468-69 [1st Dep't., 2008]). Moroever, while One State/Wolfson argues that Prats v. Port Authority of New York & New Jersey, 100 NY2d 878 (2003), is controlling on this matter and mandates dismissal of the claim because plaintiff was not engaged in a set of enumerated activities, the Court disagrees. Prats did not discuss Labor Law § 200 at all. Instead, the Court solely analyzed a cause of action under § 240 of the Labor Law, which is admittedly much more restrictive in its application since it is a strict liability statute. Here, plaintiff is not bringing a claim under Labor Law § 240(1) therefore the Court is not persuaded that the holding in Prats is binding on this case.

In order to invoke the protections afforded by the Labor Law and to come within the special class for whose benefit liability is imposed upon contractors, owners and their agents a "plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent" (Mordkofsky v. V.C.V. Dev. Corp., 76 NY2d 573, 576—77 [1990]).

Here, plaintiff raises an issue of fact in opposition to One State/Wolfson's motion as to whether the above standard is met through the submission of the Heiberg affirmation. Heiberg opines that the Aquafence system meets the definition of a temporary structure as that term is used in the New York City Building Code and further that plaintiff was performing work relating to that temporary structure that fits the definition of "construction" or "demolition" as defined by the Industrial Code. § 1.4(b)(13) of the Code defines "construction work" as "[a]ll work of the types performed in the . . . repair, maintenance . . . or moving of buildings or other structures[.]"[emphasis added] and further that "equipment installation" also qualifies as construction work. § 1.4(b)(16) defines "demolition work" as "work incidental to or associated with the total or partial dismantling of a building or other structure including the removing or dismantling of machinery or other equipment." [emphasis added]. Based on the above cited sections of the Industrial Code, Heiberg opines that the workers were engaged in the activity of dismantling and removing the flood barrier equipment. Plaintiff was participating in the work that was part and parcel to the installation of equipment, the "moving" of an "other structure" and the "dismantling" of a temporary "structure" that was also "equipment". Therefore, his work constituted both "construction work" and "demolition work." The Court finds that the Heiberg affirmation raises an issue of fact as to whether § 200 of the Labor Law is applicable to this matter based on the work he was performing at the time of the accident. One State/Wolfson fails to address the Heiberg affirmation in its reply, accordingly the branch of the motion seeking dismissal of the claim on that basis is denied.

To the extent that Labor Law § 200 is applicable to this matter, One State/Wolfson fail to make a prima facie showing of entitlement to dismissal of said claim. Here, plaintiff argues that One State created the condition by failing to properly to secure the panel with anchors. One State/Wolfson does not deny that they failed to anchor the panels, but rather offers an explanation for not doing so. Where defendants created the condition, an inquiry into notice is irrelevant (Ohanessian v. Chase Manhattan Realty Leasing Corp., 193 AD2d 567, 567[1st Dep't., 1993]). As such, One State/Wolfson's argument that the condition did not last long enough for it to be corrected is not persuasive.

Nor is the Court persuaded by the argument that One State/Wolfson did not control plaintiff's work. It is undisputed that the only reason plaintiff was sent to the subject building was at the direction and request of One State. Moreover, when plaintiff arrived at the subject building, his PBM supervisor was not yet present. These circumstances present an issue of fact as to who was in control of the means and methods of the work that was already in progress upon plaintiff's arrival. In accordance with the above, One State/Wolfson's motion to dismiss the Labor Law § 200 claim is denied in its entirety.

Emergency Doctrine

The common-law emergency doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context (Amaro v. City of New York, 40 NY2d 30, 36 [1976]). A party requesting the emergency instruction is entitled to have the jury so charged if some evidence of a qualifying emergency is presented and under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making (Rivera v. New York City Transit Auth., 77 NY2d 322, 327 [1991]).

Here, PBM argues that it was not negligent and that pursuant to the emergency doctrine, its actions were reasonable under the circumstances. The Court finds that PBM fails to establish that there was a qualifying emergency based on sudden and unforeseen circumstances that would warrant the charge being given to the jury. Given the parties' admitted knowledge of the worsening weather conditions, the fact that it was windy cannot be deemed a sudden and unexpected emergency (See Caristo v. Sanzone, 96 NY2d 172, 175 [2001]). PBM offers no other argument regarding its conduct on the day of the accident. In light of the above, PBM fails to establish as a matter of law that it was not negligent.

Contractual Indemnification sClaims

"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]). In general, an indemnification contract "will be enforced so long as the intent to assume such role is sufficiently clear and unambiguous" (Suazo v. Maple Ridge Assoc., LLC., 85 AD3d 459, 460 [1st Dep't., 2011]). A contractual indemnification clause may shift liability from an owner or contractor to an employer even where the employer was not negligent (Cackett v. Gladden Props., LLC, 183 AD3d 419, 422 [1st Dep't., 2020]).Where an entity is held strictly liable based solely on its status as owner of the premises the owner is entitled to contractual indemnification where such has been agreed to between the parties." (Velez v Tishman Foley Partners, 245 AD2d 155, 156 [1st Dep't., 1997].)

PBM moves to dismiss the contractual indemnification claims asserted by One State and Wolfson and said defendants cross-move for summary judgment on said claims. PBM argues that Wolfson's claim should be dismissed because there is no contract between PBM and Wolfson, nor is Wolfson listed as an additional insured under the contract between PBM and One State. PBM also argues that One State's contractual indemnification claim must be dismissed because it is barred by the General Obligations Law. PBM contends that its decision to send plaintiff over to the building in response to an emergency call from PBM's client was reasonable, that it did not breach its duty of care to plaintiff and was not negligent. Therefore, PBM argues, One State's claim for indemnification would be to indemnify One State for their own negligence in setting up the panels and calling PBM employees for assistance. One State and Wolfson cross-move and argue that they are entitled to full and complete indemnification from PBM based on the language of the agreement regardless of any allegation or finding of negligence against One State.

Both motions initially relied on NYSCEF Doc. 246 in support of their respective arguments. Said document is a contract for cleaning and maintenance services, listing PBM as contractor and One State as owner. The contract further sets forth that PBM will furnish cleaning service to Wolfson as agent for One State. Paragraph 14.2 of the contract sets forth the parties' agreement regarding indemnification and provides in pertinent part:

"Contractor shall indemnify and hold harmless the Owner, and its employees from and against claims . . . arising out of or resulting from bodily injury . . . to any of your employees . . . regardless of whether or not such claim is caused in part by a party indemnified hereunder."

Several months after submission of the motions for decision and after the Court commenced settlement negotiations with the parties, One State and Wolfson submitted an amended copy of the One State/PBM contract. The new copy of the contract includes an additional page titled "Building Standards and Insurance Requirements" and is dated July 8, 2008. The additional page sets forth specific insurance requirements, including the requirement that Wolfson be named as an additional insured. Also submitted are affidavits of two Wolfson employees who purport to explain the reason for the belated exchange. Said explanation includes setting forth that the document was revised in July 2008, but backdated to April 2008 to coincide with the contract date. Given the belated exchange, the Court permitted the parties time to respond to the new submission. In response, PBM's account executive submits an affirmation explaining that PBM's copy of the 2008 contract never had the document at issue attached, nor did the witness recall ever seeing it.

Initially, the Court is not persuaded by PBM's argument that the indemnification agreement in the contract is barred by the General Obligations Law. An owner may seek contractual indemnification from a subcontractor although it may have been partly at fault for an accident as long as the indemnification provision at issue is prefaced by language specifying that the duty extends, "to the fullest extent of the law," thereby precluding any potential violation of General Obligations Law § 5—322.1 (See Munoz v. JDS Seagirt LLC, 227 AD3d 547, 548 [1st Dep't., 2024]). However, the Court finds that the clause calls for partial, not full, indemnification of the owner for personal injuries partially caused by its negligence in view of the phrases limiting the obligation to that permitted by law (See Dutton v. Charles Pankow Builders, Ltd., 296 AD2d 321, 322 [1st Dep't., 2002]). Notwithstanding, the Court finds that the contract provision cited above governs this case rather than a subsequent provision containing a negligence trigger since it is undisputed that plaintiff was an employee of PBM.

Pursuant to the terms of the contract, PBM agreed to indemnify One State for injuries to PBM's employee to the extent that the same were not completely attributable to One State. However, since liability in this matter has not been determined, any claims for indemnification are premature. To obtain conditional relief on a claim for contractual indemnification, the one seeking indemnity must establish that it was free from any negligence and may be held liable solely by virtue of statutory or vicarious liability (Spielmann v 170 Broadway NYC LP, 187 AD3d 492, 494 [1st Dept 2020]). Conversely, "where a triable issue of fact exists regarding the indemnitee's negligence, a conditional order of summary judgment for contractual indemnification must be denied as premature" (id. [internal quotations and citation omitted]). Here, there are issues of fact regarding One State's negligence that preclude even conditional indemnification at this time. Accordingly, both the motion and cross-motion regarding the issue of indemnification between PBM and One State is denied.

Regarding Wolfson, the Court finds that there are issues of fact regarding whether PBM agreed to indemnify Wolfson. Based on the contract submitted to the Court and exchanged in discovery, there is no specific language identifying Wolfson as an indemnitee thereunder. Despite that very argument being set forth in the moving papers, One State/Wolfson failed to produce the document that purports to impose that duty until several months after the motions were being considered. While One State/Wolfson is correct that they are under an ongoing duty to disclose information contained in their discovery responses upon learning of their inaccuracies, that does not discount the prejudice to the opposing party that has not had time to properly address the new information. Indeed, here PBM contests the validity of the document in the sur-reply permitted by the Court and the contents of the document are relevant to the outcome of the motions already pending prior to its belated disclosure.

The proper analysis regarding late disclosure can be gleamed from CPLR§ 3101(h). CPLR § 3101(h) provides that where a party obtains such information in an insufficient period of time before the commencement of trial appropriately to amend or supplement the response, the party shall not thereupon be precluded from introducing evidence at the trial solely on grounds of noncompliance with this subdivision. It further sets forth that in that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just (CPLR § 3101(h)). Here, while the parties are not at trial, the Court finds the section is nevertheless applicable since discovery in this matter has been certified as complete. The Court further finds that the just outcome is not to permit this late disclosure to form the basis of a motion for summary judgment. However, it is sufficient to raise a triable issue of fact in opposition to dismissal of the claims premised on conditions set forth therein. Accordingly, the branches of both PBM's motion and One State/Wolfson's cross-motion seeking dismissal of the claim for contractual indemnification on behalf of Wolfson, as well as the claim for breach of contract for failure to procure insurance as set forth in the document are both denied.

Common Law Indemnification

"[T]o establish a claim for common-law indemnification, 'the one seeking indemnity must prove not only that it was not guilty of any negligence, but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident.' " (Priestly v Montefiore Med. Ctr., 10 AD3d 493, 495, [1st Dep't., 2004]). The predicate of common law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine (Trs. of Columbia Univ. in City of NY v. Mitchell/Giurgola Assocs., 109 AD2d 449, 453, 492 [1st Dep't., 1985]). "[A] party cannot obtain common-law indemnification unless it has been held to be vicariously liable without proof of any negligence . . . on its own part" (McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378 [2011]).

PBM argues that AquaFence's claim for common-law indemnification over and against PBM should be dismissed as a matter of law because the AquaFence defendants are only being sued for their own negligence as opposed to being held vicariously liable for the conduct of PBM. PBM further argues that there is no contractual or fiduciary relationship with any of the AquaFence defendants which could give rise to vicarious liability. In opposition, the AquaFence defendants argue that dismissal of the claim at this juncture is premature since liability has not been decided. The Court finds that argument to be unavailing. A review of the remaining claims against the AquaFence defendants, in light of the rulings hereinabove, reveals that said claims relate to the design and warnings regarding the product, as well as its installation. It is evident that PBM was not involved in the design or manufacturing of the panels themselves. Moreover, it is undisputed that PBM's involvement with the installation of the panels was limited to bringing them out of storage and placing them on the sidewalk to be installed by One State engineers. The AquaFence defendants fail to identify any circumstance where they would be held liable to plaintiff on the remaining causes of action based on actions taken by PBM. Where the only claims asserted against a defendant seek to hold it liable for its own negligence rather than vicariously liable for the conduct of another, common-law indemnification is not appropriate (See Ramirez v. Almah, LLC, 169 AD3d 508, 509—10 [1st Dep't., 2019]). Accordingly, the branch of PBM's motion for summary judgment dismissing the AquaFence defendants' claims for common-law indemnification is granted.

Breach of Contract Failure to Procure Insurance

To plead a cause of action for breach of contract, a plaintiff usually must allege that: (1) a contract exists ; (2) plaintiff performed in accordance with the contract; (3) defendant breached its contractual obligations; and (4) defendant's breach resulted in damages (See 34-06 73, LLC v. Seneca Ins. Co., 39 NY3d 44, 52 [2022]).

Here, PBM moves to dismiss One State/Wolfson's breach of contract claims premised on the failure to procure the required amount of insurance. PBM denies that those requirements were a part of the contract and instead argues that its contractual insurance requirement was fulfilled pursuant to the contract in evidence. As discussed above, there is an issue of fact regarding the document that purports to set forth PBM's insurance obligations under the contract between it and One State. Moreover, One State/Wolfson fail to establish what if any damages were incurred as a result of the breach. Accordingly, both the motion and cross-motion regarding the breach of contract claim for failure to procure insurance are denied.

Contribution

The right to contribution and apportionment of liability among alleged multiple wrongdoers arises when they each owe a duty to plaintiff or to each other and by breaching their respective duties they contribute to plaintiff's ultimate injuries (Trs. of Columbia Univ. in City of NY v. Mitchell/Giurgola Assocs., 109 AD2d 449, 454 [1st Dep't., 1985]). This is so regardless of whether the parties are joint tortfeasors, or whether they are liable under different theories, so long as their wrongdoing contributes to the damage or injury involved (id.). An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment unless proven through competent medical evidence that such employee has sustained a "grave injury" (NY CLS Work Comp § 11).

PBM's argument that the third-party claims for contribution and indemnification are barred by the Worker's Compensation law because plaintiff did not sustain a grave injury is unavailing. In light of the conflicting medical evidence submitted, the Court finds that there is an issue of fact as to whether plaintiff sustained a grave injury. Accordingly, PBM's motion to dismiss the third-party claims on that basis is denied.

The court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by any movant was not addressed by the court, it is hereby denied.

Accordingly, it is hereby,

ORDERED, that PBM's motion for summary judgment dismissing the third-party claims against it is granted only to the extent of dismissing the AquaFence defenants' third-party claim for common-law indemnification over and against PBM and the motion is otherwise denied (Motion Seq. 006); and it is further,

ORDERED, that One State and Wolfson's motion to dismiss the Labor Law § 200 claim is denied in its entirety; and it is further (Motion Seq. 007),

ORDERED, that the AquaFence defendants' motions for summary judgment are granted to the extent that the failure to warn premised on the product manual, res ipsa loquitor, breach of warranty and negligent/improper maintenance claims are dismissed as against the AquaFence defendants and the motions are otherwise denied (Motion Seq. 008 and 009); and it is further,

ORDERED, that the AquaFence defendants serve a copy of this order with Notice of Entry on all parties within 30 days of the date this order is uploaded to NYSCEF by the County Clerk; and it is further,

ORDERED, that the parties appear for a settlement conference in Part 21 on May 11, 2026 at 2:15 pm.

This constitutes the Decision and Order of the Court.

DATE 3/31/2026

Hon. Matthew Parker-Raso, J.S.C.

FOOTNOTES

1.   Pursuant to Business Law Section 130, a Certificate of Assumed Name was filed on behalf of ACTA Realty Corp. for use of the name the Wolfson Group( NYSCEF Doc. No. 293) As such, the Wolfson Group will be used in this decision as the assumed name of ACTA Realty Corp.

2.   The Court notes that while One State/Wolfson's Notice of Motion and affirmation in support seek summary judgment on "all claims and plaintiff's complaint" the moving papers only set forth arguments regarding the Labor Law § 200 claim. Therefore that is the only claim that will be addressed by the Court in considering the motion.

3.   Third-party claims against Blueshore were discontinued via stipulation (NYSCEF Doc. No. 107).

4.   Third-party claims against H.M. White, RLA P.C. and Socotec Engineering Inc. were discontinued via stipulation (NYSCEF Doc. No. 332).

5.   Plaintiffs voluntarily discontinued the claim for manufacturing defects via stipulation dated January 16, 2025 (NYSCEF Doc. No. 311).

6.   The Court notes that while the AquaFence Defendants moved via separate notices of motion, each motion includes the same affirmation in support and memorandum of law. Moreover, there is no specific arguments set forth regarding the roles of the different entities therefore both motions will be resolved together.

Matthew Parker-Raso, J.