Laszlo Kalmar, Plaintiff, v. ABANNO WATERPROOFING INC (2026)

The following e-filed papers read herein: NYSCEF Doc Nos.:

Notice of Motion, Affirmations, and Exhibits Annexed 88-99, 115-129

Affirmations in Opposition and Exhibits Annexed 130-137, 138-141

Reply Affirmations and Exhibits Annexed 142-146, 147-149, 150

Other Filings

Upon the foregoing papers, defendants/third-party plaintiffs Abingdon Owners Corp. ("Abingdon") and Leemar Management Corp. ("Leemar") move (mot. seq. 5) for an order, pursuant to CPLR 3212, granting summary judgment (i) dismissing plaintiff's complaint in its entirety or, alternatively, (ii) granting summary judgment in their favor against third-party defendant Abanno Waterproofing Management Corp. ("Abanno") on the basis of contractual indemnity. Plaintiff Laszlo Kalmar moves (mot. seq. 6) for an order, pursuant to CPLR 3212, granting summary judgment against defendants on the issue of liability under Labor Law §§ 240 (1), 241(6) and 200.

Background

In his complaint, plaintiff asserts causes of action for common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241(6) based on injuries he suffered on October 21, 2014, while working on the fire escape platforms at premises known as 1801 Avenue N, Brooklyn, New York ("the property"). According to plaintiff's deposition testimony, the vertical, building-mounted fire escape ladder unexpectedly extended to the ground as he stepped onto it from an extension ladder, causing him to fall (Plaintiff tr at 26, lines 14-17; at 29, lines 8-21).

The property, a six-story residential cooperative apartment building, is owned by Abingdon and managed by Leemar pursuant to a Management Agreement dated May 1, 2018 (Kogan tr at 15, lines 14-17; at 115, lines 4-7; Exh D to aff of Ronai, NYSCEF Doc No. 120). Daniel Kogan testified on behalf of defendants. He was employed as a managing agent for Leemar (Kogan tr at 10, lines 23-25; at 24, lines 23-25) and appointed vice president and treasurer for Abingdon (Kogan tr at 15, lines 19-23). Plaintiff was employed by Abanno at the time of the accident (Plaintiff tr at 20, lines 13-24; at 22, lines 2-10) under the supervision of the owner, Costiel Mirauti (Plaintiff tr at 23, lines 4-5).

The Project

According to Kogan, at some point prior to plaintiff's accident, Leemar had advised Abingdon that the fire escapes at certain buildings within their real estate portfolio, which included the property, needed to be repainted ("fire escape project") (Kogan tr at 43, lines 7-13). With Abingdon's approval, Leemar retained Abanno as the sole company to work on the fire escape project (Kogan tr at 60:12-61:19; at 139:12-140:12; at 141, lines 8-12). The scope of work (as determined by Leemar) required Abanno to inspect the fire escapes and make associated repairs or replacements before scraping, painting, and refinishing them (Kogan tr at 70:14-71:22; at 96, lines 15-22; Mirauti tr at 29:21-30:3; at 33, lines 3-13; at 74, lines 11-21).

The Accident

The day of the accident, plaintiff and his co-worker Bogdan Grabowski were the only Abanno workers on site (Plaintiff tr at 35, lines 8-12; Mirauti tr at 33, lines 20-24; Grabowski tr at 45, lines 21-23). Plaintiff explained that the fire escape ladder is lowered to the ground by lifting it up off a curved metal hook that holds the ladder in its raised position (Plaintiff tr at 78, lines 7-22). Instead of extending the fire escape ladder to the ground, the workers placed a separate ladder next to the fire escape on the left side of the main entrance (id. at 37, lines 4-11). Plaintiff climbed up from that ladder to the fire escape ladder, onto the second-floor fire escape platform, and then took the stairs up to the third-floor fire escape platform where he began working (id. at 48, lines 13-23). While plaintiff scraped paint on the platform, Grabowski remained on the ground to monitor the area and pass plaintiff tools as needed (id. at 45:8-47:8; at 76, lines 10-23). When it was time for his lunch break, plaintiff again took the stairs between the second and third-floor platforms before climbing down the fire escape ladder onto the extension ladder (id. at 49, lines 10-17). He testified that the fire escape ladder felt stable the first and second times he stepped onto it that day (id. at 62, lines 6-11).

The accident occurred when plaintiff stepped on the fire escape ladder for the third time (id. at 50, lines 8-17). He testified that he "felt at that very same moment that [he] was falling down along with that ladder" (id. at 53, lines 7-15). He described it as a "brisk, fast" descent (id. at 79, lines 4-9). Plaintiff further testified that he was able to bring his other leg onto the fire escape ladder and grab the sides with both of his hands as the ladder was falling down (id. at 53:16-54:15; at 112, lines 6-10). He maintained both hands and feet on the fire escape ladder as it slid all the way down its vertical channel onto the brick walkway below (id. at 103, lines 16-24; at 110, lines 9-24). Plaintiff claimed he fell from the eighth rung of the ladder from the force of that impact (id. at 111:20-112:10).

Procedural History

Plaintiff commenced this action against defendants Abingdon and Leemar on December 28, 2021 (Verified Complaint, NYSCEF Doc No. 1). Defendants interposed a verified answer with affirmative defenses on April 26, 2022 along with a demand for a verified bill of particulars and various discovery demands (NYSCEF Doc No. 4). Plaintiff served a verified bill of particulars on September 12, 2022 (NYSCEF Doc No. 6). Defendants later impleaded Abanno, alleging causes of action for negligence, indemnification, breach of contract, and failure to procure liability insurance (Third-Party Summons and Complaint, NYSCEF Doc No. 5). Abanno served an amended answer with counterclaims on April 3, 2023 (NYSCEF Doc Nos. 10, 11, 16), which defendants answered on April 19, 2023 (NYSCEF Doc No. 18). Plaintiff subsequently filed the Note of Issue on July 23, 2025, certifying that discovery is complete and that this matter is ready for trial (NYSCEF Doc No. 61). The Court so-ordered the parties' stipulation extending the deadline to file dispositive motions to November 20, 2025 (NYSCEF Doc No. 84). The instant motions for summary judgment ensued.

Standard of Review

On a motion for summary judgment, the moving party bears the initial burden of proof that there are no triable issues of material fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY2d 941 [1957]; Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010]). Failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once established, however, the burden shifts to the non-moving party to rebut the movant's prima facie showing "with evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial" (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986], citing Zuckerman, 49 NY2d at 562).

Discussion

I. Plaintiff's Labor Law § 240 (1) Cause of Action

As to plaintiff's Labor Law § 240 (1) cause of action, this statute imposes a non-delegable duty upon owners, general contractors, and their agents to protect workers against "specific gravity-related accidents" such as falling from a height or being struck by a falling object due to the failure of a designated safety device (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500-501 [1993], citing Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]; see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]; Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 287 [2003]).

For "falling worker" cases, such as here, "[t]he mere fact that a plaintiff fell from a ladder does not, in and of itself, establish a violation of the statute; however, a plaintiff may establish prima facie entitlement to judgment as a matter of law by showing both that [they] fell from a defective or unsecured ladder, and that the defect or failure to secure the ladder was a proximate cause of [their] injuries" (Alvarez v 2455 8 Ave, LLC, 202 AD3d 724, 725 [2d Dept 2022]; see Cutaia v Board of Managers of 160/170 Varick St. Condominium, 38 NY3d 1037, 1038 [2022]; Araujo v Monadnock Constr., Inc., 241 AD3d 470, 472 [2d Dept 2025]).

To successfully dismiss a Labor Law § 240 (1) claim, a defendant must demonstrate that the worker was provided the proper protection required by the statute, that the worker's own conduct was the sole proximate cause of the accident, or raise a question of fact that there was no statutory violation (see Blake, 1 NY3d at 287; Salinas v 64 Jefferson Apartments, LLC, 170 AD3d 1216, 1222 [2d Dept 2019]). A plaintiff who "misused an otherwise proper safety device, chose to use an inadequate safety device when proper devices were readily available, or failed to use any device when proper devices were available," and would not have been injured otherwise, may be the sole proximate cause of the accident (see Araujo v Monadnock Constr., Inc., 241 AD3d 470, 472 [2d Dept 2025]). There is no recovery under Labor Law § 240 (1) where plaintiff is the sole proximate cause of their injuries (see Blake, 1 NY3d at 290; Restrepo v Bushwick Realty Holdings, LLC, 242 AD3d 1238, 1240 [2d Dept 2025]).

Here, the court finds that plaintiff has made a prima facie showing that the subject fire escape ladder, despite being permanently affixed to the property, was a "safety device" within the meaning of Labor Law § 240 (1) (see Crutch v 421 Kent Dev., LLC, 192 AD3d 977, 980 [2d Dept 2021], quoting Rocovich, 78 NY2d at 514; Gallagher v Andron Const. Corp., 21 AD3d 988, 989 [2d Dept 2005], citing Brennan v RCP Assocs., 257 AD2d 389, 391 [1st Dept 1999]). In addition, plaintiff established through his deposition testimony that his accident was a "direct consequence" of the fire escape ladder's malfunction (Plaintiff tr at 53, lines 7-10; see Runner, 13 NY3d at 603).

The deposition testimonies indicate that the particular fire escape platform plaintiff was working upon was inaccessible from the roof (id. at 76, lines 3-6; Kogan tr at 187, lines 20-25). In this regard, the circumstances of this case are analogous to the line of cases holding that a permanently installed structure operates as a safety device when it was the only means of accessing a work area at the time of the accident (compare Verdi v SP Irving Owner, LLC, 227 AD3d 932, 936 [2d Dept 2024] ["permanent staircase from which the plaintiff fell was a normal appurtenance to the building and was not designed as a safety device to protect him from an elevation-related risk"] with Jaimes-Gutierrez v 37 Raywood Dr., LLC, 233 AD3d 761 [2d Dept 2024] [pull-down attic stairs]; Esquivel v 2707 Creston Realty, LLC, 149 AD3d 1040 [2d Dept 2017] [permanent ladder], and Beharry v Public Storage, Inc., 36 AD3d 574 [2d Dept 2007] [metal decking between second and third floor of worksite]). The assertion by defendants' expert that "[plaintiff] was provided with an extension ladder, which he could have used to access the fire escape," does not raise an issue of fact because it is unsupported by evidence in the record (Aff of Rothstein, NYSCEF Doc No. 139). Likewise, Abanno's contention that the fire escape ladder was merely a "passageway" to the work area is without merit (see Ramirez v Metro. Transp. Auth., 106 AD3d 799, 800 [2d Dept 2013] [Labor Law § 240 (1) applies to a passageway being used as the "functional equivalent of a safety device" at the time of the accident] [internal citations omitted]).

Furthermore, defendants are entities that may be held liable under Labor Law § 240 (1). Abingdon may be held liable as the fee owner of the property and Leemar as its statutory agent (see Gordan v Eastern Ry. Supply, 82 NY2d 555, 559 [1993] ["section 240(1) imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury"]; Russin v Picciano & Son, 54 NY2d 311, 318 [1981] ["Our interpretation of the statutory "agent" language appropriately limits the liability to the particular agency created."]). Pursuant to the management contract for the property that was in effect at the time of the accident, Leemar retained Abanno for the fire escape project and oversaw its work on behalf of Abingdon (Exh D to Aff of Ronai, NYSCEF Doc No. 120). The work that plaintiff was performing at the time of the accident was within the scope of work initially delegated from Abingdon to Leemar. Thus, as to his Labor Law § 240 (1) cause of action, plaintiff has made a prima facie showing that his injuries were proximately caused by the failure of the fire escape ladder to provide proper protection for the work being performed (see Carrion v City of New York, 111 AD3d 872, 873 [2d Dept 2013]; Zhu Wei Shi v Jun Lan Zhang, 76 AD3d 558, 559 [2d Dept 2010]).

Neither defendant nor Abanno has raised a triable issue of fact in opposition. There is also no evidence that plaintiff violated any directions regarding the proper use of fire escape ladders at the worksite to support defendants' assertion, by way of expert affidavit (NYSCEF Doc No. 139), that plaintiff was negligent in stepping on the fire escape ladder while in its raised position (see Zholanji v 52 Wooster Holdings, LLC, 188 AD3d 1300, 1302 [2d Dept 2020], citing Rico-Castro v Do & Co NY Catering, Inc., 60 AD3d 749, 750 [2d Dept 2009]; Silvas v Bridgeview Invs., LLC, 79 AD3d 727, 731 [2d Dept 2010] [affidavit insufficient to establish prima facie that plaintiff acted "in disobedience of any immediate, specific instructions given to him"], cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]). Moreover, whether plaintiff allegedly misused the fire escape ladder constitutes comparative negligence at most, which is not a defense to this strict liability statute (see Salinas v 64 Jefferson Apartments, LLC, 170 AD3d 1216, 1222 [2d Dept 2019], citing Blake, 1 NY3d at 286; Orellanas v 7 W. 34th St., LLC, 173 AD3d 886, 888 [2d Dept 2019]). Whether plaintiff's accident arose from the work he was retained to perform (namely, inspecting the fire escape for parts in need of minor repair and replacement) is also not a valid defense to a Labor Law § 240 (1) claim. Accordingly, plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1) is granted, and that branch of defendants' motion seeking to dismiss said claim is denied.

II. Plaintiff's Labor Law § 241 (6) Cause of Action

Under Labor Law § 241 (6), a plaintiff shall meet his summary judgment burden by establishing that the accident was proximately caused by a violation of an Industrial Code (12 NYCRR) section stating a "specific, positive command" applicable to the facts of the case (Ross, 81 NY2d at 504; see Misicki v Caradonna, 12 NY3d 511, 515 [2009]). The vicarious liability provisions of the statute apply to owners, general contractors, or their agents (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 349-350 [1998]); Ross, 81 NY2d at 501-502). To dismiss a Labor Law § 241 (6) claim on summary judgment, " 'a defendant must show that the plaintiff failed to identify a section of the Industrial Code that was allegedly violated, that any such section is insufficiently specific to support liability or is inapplicable to the facts of the case, or that the defendant complied with the requirements of the identified provision' " (see Kelly v RBSL Realty, LLC, 244 AD3d 1086, 1088 [2d Dept 2025], quoting Lopez v Kamco Servs., LLC, 231 AD3d 1142, 1144 [2d Dept 2024]).

Here, plaintiff initially cited ten Industrial Code regulations in his verified bill of particulars as the basis for his Labor Law § 241 (6) claim.¹ His opposition papers, however, only address sections 23-1.16(b), 23-1.21(b)(1) and 23-1.21(b)(3). As such, sections 23-1.5, 23-1.7, 23-1.8, 23-1.15, 23-1.17, 23-1.18, 23-1.19, and 23-2.6 are deemed abandoned by plaintiff's failure to address them in his opposition papers. Accordingly, the portion of defendants' motion to dismiss plaintiff's Labor Law § 241(6) claim as predicated upon these abandoned sections is granted (see Debennedetto v Chetrit, 190 AD3d 933, 936 [2d Dept 2021]; Pita v Roosevelt Union Free Sch. Dist., 156 AD3d 833, 835 [2d Dept 2017]; Sanchez v BBL Constr. Servs., LLC, 202 AD3d 847, 851 [2d Dept 2022]; see also Lacruise v Mem. Sloan-Kettering Cancer Ctr., 245 AD3d 645, 646 [1st Dept 2026]).

As to the remaining sections (23-1.16[b], 23-1.21[b][1] and 23-1.21[b][3]), which are also the basis of plaintiff's motion for summary judgment, these regulations have the required specificity to support a cause of action under Labor Law § 241(6) and are applicable herein (see King v Villette, 155 AD3d 619, 623 [2d Dept 2017] [section 1.16]; Przyborowski v A & M Cook, LLC, 120 AD3d 651, 654 [2d Dept 2014] [sections 1.21(b)(1) and 1.21(b)(3)(i), (iv)]).

Industrial Code 23-1.16 (b)

Contrary to defendants' contentions, the applicability of section 23-1.16(b), concerning safety belts, turns on whether plaintiff was provided an enumerated safety device (see e.g., Santos v Leeward Living, LLC, 241 AD3d 717, [2d Dept 2025] [23-1.16 inapplicable where plaintiff testified that he was not provided any safety devices]; Clavijo v Universal Baptist Church, 76 AD3d 990, 991 [2d Dept 2010]; Riccio v NHT Owners, LLC, 13 Misc 3d 1209(A) [Sup Ct, Kings County 2006], affd 51 AD3d 897 [2d Dept 2008]; Kim v D & W Shin Realty Corp., 47 AD3d 616, 619 [2d Dept 2008]). According to his own deposition testimony, plaintiff had a safety harness which he had secured while working on the fire escape platform (Plaintiff tr at 51, lines 6-18). That the plaintiff's safety harness remained on the third-floor fire escape platform at the time of the accident does not preclude the applicability of this section (id. at 50:22-51:5; at 108, lines 6-8). However, whether plaintiff could have worn his safety harness at all times remains a triable issue of fact (see Ochoa v JEM Real Estate Co., LLC, 223 AD3d 747, 749 [2d Dept 2024]; McNamara v Gusmar Enters., LLC, 204 AD3d 779, 782-783 [2d Dept 2022]). Plaintiff's expert opinion that defendants failed to provide "a safe, proper anchor to tie off his harness safety belt" is conclusory in this regard (Aff of Silverberg, NYSCEF Doc No. 131, p. 7). Thus, issues of fact preclude summary judgment as based upon section23-1.16 (b).

Industrial Code 23-1.21

The plain language of subsection 23-1.21(b)(1), addressing ladder strength, applies equally to fire escape ladders. Failure of a ladder to sustain "without breakage, dislodgement, or loosening of any component at least four times the maximum load intended to be placed thereon" is a prima facie violation of this subsection (see Jaimes-Gutierrez v 37 Raywood Drive, LLC, 233 AD3d 761 [2d Dept 2024]; Kozlowski v Ripin, 60 AD3d 638 [2d Dept 2009]; Beckford v 40th St. Assoc. (NY Partnership), 287 AD2d 586 [2d Dept 2001]). Here, plaintiff met his prima facie burden as to this section with his testimony that the fire escape ladder unexpectedly slid down when he stepped on it and caused him to fall from the eighth rung of the ladder to the ground (Plaintiff tr at 109, lines 2-21; at 111:20-112:10).

Plaintiff also established the applicability of section 23-1.21(b)(3),² which pertains to the maintenance and replacement of ladders. Mirauti discovered a rusted nut and bolt on the ground near where plaintiff had fallen (Mirauti tr at 45-47), which he believed was part of the hook mechanism holding the fire escape ladder upright (id. at 46, lines 10-16). He testified that Abanno later replaced this component following the accident (id. at 50, lines 16-20).

However, plaintiff's motion for partial summary judgment on the Labor Law § 241 (6) claim, insofar as it is predicated on sections 23-1.21(b)(1) and 23-1.21(b)(3), must be denied because the differing expert conclusions raise triable issues of fact as to whether the alleged violations proximately caused plaintiff's accident (see Melchor v Singh, 90 AD3d 866, 871 [2d Dept 2011]). Plaintiff's expert provided an affidavit stating that the ladder's structurally compromised support component and specifically the malfunction of the hook and bolt holding up the fire escape ladder constitute a prima facie violation of sections 23-1.21(b)(1) and 23-1.21(b)(3). According to defendants' expert, however, the fire escape ladder was only meant to be used when fully extended to the ground as "the releasable hook for the drop ladder is only intended to support the self-weight of the ladder" (Aff of Rothstein, NYSCEF Doc No. 139 at p. 3). Accordingly, triable issues of fact preclude summary judgment in either party's favor on the Labor Law § 241(6) claim, insofar as predicated upon alleged violations of Industrial Code sections 23-1.16(b), 23-1.21(b)(1), and 23-1.21(b)(3).

III. Plaintiff's Labor Law § 200 and Common Law Negligence Claims

Labor Law § 200 is a codification of the common law duty imposed on general contractors and owners (or their agents) to provide construction site workers with a safe place to work (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Haider v Davis, 35 AD3d 363 [2d Dept 2006]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]; see Seem v Premier Camp Co., LLC, 200 AD3d 921, 924-925 [2d Dept 2021]; Chowdhury v Rodriguez, 57 AD3d 121, 130 [2d Dept 2008]). "Where, as here, a plaintiff contends that an accident involves defects in both the premises and the manner in which the work was performed, a defendant moving for summary judgment dismissing a cause of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards" (Marquez v L &M Dev. Partners, Inc., 141 AD3d 694, 699 [2d Dept 2016]; see Reyes v Arco Wentworth Mgmt. Corp., 83 AD3d 47, 52 [2d Dept 2011]).

Dangerous Premises Condition

"In cases involving a dangerous condition on the premises, 'property owners may be held liable for a violation of Labor Law § 200 if the owner either created or had actual or constructive notice of the dangerous condition that caused the accident' " (Simmons v City of New York, 165 AD3d 725, 728 [2d Dept 2018], quoting Ortega, 57 AD3d at 61; see Estrella v ZRHLE Holdings, LLC, 218 AD3d 640, 648 [2d Dept 2023]; Mitchell v Caton on the Park, LLC, 167 AD3d 865, 867 [2d Dept 2018], quoting Abelleira v City of New York, 120 AD3d 1163, 1164 [2d Dept 2014]; Nicoletti v Ircane, 122 AD3d 811, 812 [2d Dept 2014]). "A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Hamm v Review Assoc., LLC, 202 AD3d 934, 937-938 [2d Dept 2022]; see Curiale v Sharrotts Woods, Inc., 9 AD3d 473, 475 [2d Dept 2004]). "The general awareness that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused the plaintiff's injury" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

Here, it is undisputed that defendants did not create or have actual notice of the defective fire escape ladder (Kogan tr at 109, lines 17-21; at 121, lines 14-19; at 123, lines 2-8; at 128, lines 3-18). As for constructive notice, plaintiff contends that defendants' obligation under Labor Law § 200 to provide him a safe worksite "encompasses the duty to make reasonable inspections" (McLean v 405 Webster Ave. Assocs., 98 AD3d 1090, 1093 [2d Dept 2012]) and to maintain fire escapes in good working order as required by Multiple Dwelling Law 53(8)(b). As relevant herein, "a property owner's duty of reasonable care entails periodic inspection of the area of potential defect" with regard to objects capable of deterioration, such as the rusted hook mechanism (Hoffman v United Methodist Church, 76 AD3d 541, 542 [2d Dept 2010]). Kogan testified that defendants never performed any inspections of the subject fire escape, its components, or its structural integrity prior to the accident (Kogan tr at 52; at 56-58; at 72, lines 7-10; at 75, lines 16-17; at 80, lines 9-14; at 122, lines 8-17; at 151, lines 15-24).

Nevertheless, the defendants cannot meet their prima facie burden regarding constructive notice without submitting evidence of when the fire escape ladder was last cleaned or inspected, or establishing that the hook mechanism was a latent defect that would not be discoverable upon reasonable inspection (see Catalano v Tanner, 23 NY3d 976, 977 [2014], reversing 112 AD3d 1299, 1299-1300 [4th Dept 2013]; Agosto v Museum of Modern Art, 219 AD3d 674, 675-676 [2d Dept 2023]; Arevalo v Abitabile, 148 AD3d 658, 660 [2d Dept 2017]; Gairy v 3900 Harper Avenue, LLC, 146 AD3d 938, 939 [2d Dept 2017]; James v Orion Condo-350 W. 42nd St., LLC 138 AD3d 927 [2d Dept 2016]; Bergin v Golshani, 130 AD3d 767, 768 [2d Dept 2015]). Plaintiff's testimony that he did not notice any defects with the fire escape ladder before the accident (Plaintiff tr at 61, lines 14-16; at 81:22-82:11) does not satisfy the moving defendants' prima facie burden as to whether that condition was visible and apparent (see Jones v 234-236 Elmendorf St., LLC, 235 AD3d 957, 958 [2d Dept 2025]; Kowalczyk v Time Warner Entertainment Co. L.P., 121 AD3d 630, 631 [1st Dept 2014]). Moreover, whether the workers' visit to the property the previous day was an inspection intended to identify minor repairs is a triable issue of fact.³ For the same reasons, plaintiff cannot impute constructive notice of the alleged dangerous condition (the rusted hook mechanism) to defendants (see Lukovenko v Annonio, 211 AD3d 1022, 1023 [2d Dept 2022]). To the extent plaintiff's Labor Law § 200 claims are based on a dangerous premises condition, the evidence submitted does not establish, as a matter of law, that defendants had constructive notice.

Manner of Work

As is relevant herein, where the plaintiff's injuries arise from the manner in which the work is performed, "there is no liability unless the owner or general contractor exercised supervision or control over the work performed" (Carranza v JCL Homes, Inc., 210 AD3d 858, 860 [2d Dept 2022], quoting Cun-En Lin v Holy Family Monuments, 18 AD3d 800, 801 [2d Dept 2005]; see Lombardi v Stout, 80 NY2d 290, 295 [1992]). " '[T]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient' " (Marquez v L & M Dev. Partners, Inc., 141 AD3d 694, 698 [2d Dept 2016], quoting Austin v Consolidated Edison, Inc., 79 AD3d 682, 684 [2d Dept 2010]; see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; McFadden v Lee, 62 AD3d 966, 967 [2d Dept 2009]).

Here, defendants established their prima facie burden of demonstrating a lack of authority to supervise or control the plaintiff's work so as to subject them to liability under Labor Law § 200 and/or common-law negligence(see Carranza v JCL Homes, Inc., 210 AD3d 858, 860 [2d Dept 2022], quoting Cun-En Lin v Holy Family Monuments, 18 AD3d 800, 801 [2d Dept 2005]; see also Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 435 [2015]; Kefaloukis v Mayer, 197 AD3d 470, 471 [2d Dept 2021]; Marquez, 141 AD3d at 697).

The record demonstrates that the defendants lacked the requisite level of authority over the injury-producing work to sustain a claim under Labor Law § 200 or common-law negligence. After contracting out the fire escape project to Abanno, defendants did not assign staff or retain an outside entity to supervise the work that Abanno's workers were performing at the time of the accident (Kogan tr at 97:14-98:2; at 151, lines 2-14).⁴ Kogan did not know how many workers were on site, what equipment the workers were using to perform the work, or what safety equipment the workers were wearing (Kogan tr at 82, lines 7-19; at 98, lines 3-11; at 101, lines 2-5; at 152, lines 6-16). Abanno, not Leemar, provided the tools and equipment for the project (Kogan tr at 80, lines 15-18; Mirauti tr at 75, lines 3-7).

Contrary to plaintiff's assertions, the evidence fails to demonstrate that defendants excluded Abanno's workers from accessing the fire escapes through tenants' apartments, prohibited them from using the extension ladder, or otherwise coordinated the work activity in a manner that could have prevented either the creation of the unsafe condition or the plaintiff's exposure to it (see Carballo v. 444 East 87th Street Owners Corp., 14 AD3d 526 [2d Dept 2005]).⁵ Although Kogan was aware that the fire escape the plaintiff was climbing toward when he fell had to be accessed from the building's exterior (Kogan tr at 187, lines 8-13), he expressly denied instructing Abanno regarding how the workers "were to access the fire escapes to perform its work" (Kogan tr at 150, lines 12-21; at 186, lines 13-21). Furthermore, plaintiff testified that he worked solely under the direction of his supervisor, Mirauti (Plaintiff tr at 55, lines 5-8), and Grabowski testified that his directions came from the plaintiff (Grabowski tr at 19, lines 12-20; at 22, lines 5-14; at 23, lines 8-21; at 51, lines 4-15; at 52:14-53:2).

In opposition, the plaintiff has failed to raise a triable issue of fact that defendants bore responsibility for the manner in which the work was performed (see Moscati v Consol. Edison Co. of New York, Inc, 168 AD3d 717, 720 [2d Dept 2019]; Ortega v Puccia, 57 AD3d 54, 62 [2d Dept 2008]; Chowdhury v Rodriguez, 57 AD3d 121, 130 [2d Dept 2008]; Wilson v Bergon Constr. Corp., 219 AD3d 1380, 1383 [2d Dept 2023]; Kefaloukis v Mayer, 197 AD3d 470, 471 [2d Dept 2021]; Lopez v Edge 11211, LLC, 150 AD3d 1214, 1215-1216 [2d Dept 2017]; Przyborowski v A & M Cook, LLC, 120 AD3d 651, 652-653 [2d Dept 2014]). The fact that Leemar would not issue payments to Abanno before approving the work completed, and had the authority to stop Abanno's work (Kogan tr at 106:20-109:15) are, at most, general supervisory authority over plaintiff's work (see Gasques v State of New York, 59 AD3d 666, 668 [2d Dept 2009], affd on other grounds 15 NY3d 869 [2010]; see also Murphy v 80 Pine, LLC, 208 AD3d 492, 496 [2d Dept 2022]; Abelleira v City of New York, 201 AD3d 679, 680 [2d Dept 2022]; Goldfien v County of Suffolk, 157 AD3d 937, 938 [2d Dept 2018]; Messina v City of New York, 147 AD3d 748, 749-750 [2d Dept 2017]).

Given the issues of fact regarding plaintiff's dangerous premises condition theory of liability, the evidence submitted does not "exonerate[ ] [defendants] as a matter of law for all potential concurrent causes of injury" (Cagua v Bushwick Holdings, LLC, 238 AD3d 698, 701 [2d Dept 2025] [internal citations omitted]; see Rodriguez v HY 38 Owner, LLC, 192 AD3d 839, 841 [2d Dept 2021], quoting Reyes, 83 AD3d at 52). As a result, plaintiff and defendants' motions as to the Labor Law § 200 cause of action are both denied.

IV. Indemnification Issues as to Subcontractor Abanno

The right to contractual indemnification depends on the express language of the contract, purpose of the entire agreement, and surrounding circumstances (see Tonking v Port Auth. Of New York & New Jersey, 3 NY3d 486, 490 [2004] [the contractual right must be unambiguous]; Hooper Assocs., Ltd. v AGS Computers, Inc., 74 NY2d 487, 491 [1989] ["Words in a contract are to be construed to achieve the apparent purpose of the parties This is particularly true with indemnity contracts."]). A party seeking contractual indemnification must prove itself free from negligence, because "to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Jamieson v Noble Constr. Grp., LLC, 248 AD3d 1203, 1205 [2d Dept 2026]; see McCarthy v Turner Const., Inc., 17 NY3d 369, 377—78 [2011]; Cunha v City of New York, 45 AD3d 624, 625 [2d Dept 2007], aff'd 12 NY3d 504 [2009]; Brown v Two Exchange Plaza Partners, 76 NY2d 172 [1990]; Nassau Roofing & Sheet Metal Co., Inc. v Facilities Dev. Corp., 125 AD2d 754 [3d Dept 1986), aff'd 71 NY2d 599 [1988]; Chapa v Bayles Props., Inc., 221 AD3d 855, 857 [2d Dept 2023]; Hirsch v Blake Hous., LLC, 65 AD3d 570, 571 [2nd Dept. 2009]).

"In order to establish a claim for common-law indemnification, a party must prove not only that it was not negligent, but also that the proposed indemnitor's actual negligence contributed to the accident, or, in the absence of any negligence, that the indemnitor had the authority to direct, supervise, and control the work giving rise to the injury" (Jamieson, 248 AD3d at 1206 [internal quotation marks omitted]; see Curreri v Heritage Prop. Inv. Tr., Inc., 48 AD3d 505, 507 [2d Dept 2008]).

Here, there is no dispute that the indemnification agreement between defendants and Abanno, dated January 7, 2021 (Agreement) was in effect at the time of plaintiff's accident (exh H to aff of Bruch, NYSCEF Doc No. 97). The Agreement contains a broadly worded provision requiring Abanno to indemnify defendants for damages and costs, including attorney's fees, "arising out of or resulting from the performance of work or provision or services, or failure to perform work, or failure to provide services" at the subject property "without negligence or solely by reason of statute, operation of law, or otherwise" (id.) As a secondary basis of liability, the Agreement provides that Abanno is liable for partial indemnification "in the event of any actual negligence" by defendants (id.).

To prevail on summary judgment for contractual indemnification, defendants must show that they were not negligent, that their liability will be vicarious only, and that the accident arose out of or in connection with the execution of defendants' work that it had subcontracted to Abanno (see Cedillo v Nautilus Realty Ltd. Partnership, 219 AD3d 1300, 1301-1302 [2d Dept 2023]; Mogrovejo v HG Hous. Dev. Fund Co., Inc., 207 AD3d 461, 463 [2d Dept 2022]; De Souza v Empire Tr. Mix, Inc., 155 AD3d 605, 605-606 [2d Dept 2017]).

As an initial matter, the court notes that this Agreement does not violate General Obligations Law ("GOL") § 5-322.1 due to the inclusion of the phrase "to the fullest extent permitted by law" (see Brooks v Judlau Contracting, Inc., 11 NY3d 204 [2008]; Feliz v Citnalta Construction Corp., 217 AD3d 750 [2d Dept 2023]; Caballero v Benjamin Beechwood, LLC, 67 AD3d 849 [2d Dep't 2009]; Giangarra v Pav-Lak Contracting, Inc., 55 AD3d 869, 870—71 [2d Dept 2008]). However, as discussed in the preceding section, summary judgment on the issue of liability is denied with respect to plaintiff's common-law negligence and Labor Law § 200 causes of action due to existing triable issues of fact. Consequently, because the defendants failed to demonstrate, prima facie, that they were free from negligence or that Abanno was negligent, those portions of their motion seeking common-law and contractual indemnification against Abanno under either prong of the Agreement must be denied, without regard to the sufficiency of Abanno's opposition papers (see Chuqui v Amna, LLC, 203 AD3d 1018, 1023 [2d Dept 2022]; Pereira v Hunt/Bovis Lend Lease Alliance II, 193 AD3d 1085 [2d Dept 2021]; Moss v McDonald's Corp., 34 AD3d 656, 657 [2d Dept 2006] ["The indemnification provision herein is triggered only in the event of a finding of negligence on the part of the appellant or its employees or subcontractors. Since the Supreme Court dismissed the causes of action premised upon violations of Labor Law § 200 and common-law negligence insofar as asserted against the appellant, there is no basis in the record to find such negligence (cf. Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179 [1990])."]; Jamindar v Uniondale Union Free Sch. Dist., 90 AD3d 612, 616 [2d Dept 2011]).

Conclusion

Accordingly, it is hereby

ORDERED that in Seq. No. 5, defendants Abingdon Owners Corp. and Leemar Management Corp.'s motion for summary judgment is granted to the extent that plaintiff's Labor Law § 241(6) cause of action, insofar as predicated upon Industrial Code sections 23-1.5, 23-1.7, 23-1.8, 23-1.15, 23-1.17, 23-1.18, 23-1.19, and 23-2.6, is dismissed and the remainder of defendants' motion is otherwise denied; and it is further

ORDERED that in Seq. No. 6, plaintiff Laszlo Kalmar's motion for summary judgment on the issue of liability is granted in plaintiff's favor on his Labor Law § 240(1) claim, and the remainder of plaintiff's motion is otherwise denied.

Any relief not expressly granted herein has been considered and is denied. This constitutes the Decision and Order of this Court.

E N T E R,

Hon. Kerry J. Ward

A. J. S. C.

FOOTNOTES

1.   These regulations include the following: 12 NYCRR §§ 23-1.5, 23-1.7, 23-1.8, 23-1.15, 23-1.16, 23-1.17, 23-1.18, 23-1.19, 23-1.21, 23-2.6 (Plaintiff's Verified Bill of Particulars, dated September 12, 2022, NYSCEF Doc No. 6 ¶ 3).

2.   Section 23-1.21(b)(3) provides as follows: (3) Maintenance and replacement. All ladders shall be maintained in good condition. A ladder shall not be used if any of the following conditions exist: (I) If it has a broken member or part. (ii) If it has any insecure joints between members or parts. (iii) If it has any wooden rung or step that is worn down to three-quarters or less of its original thickness. (iv) If it has any flaw or defect of material that may cause ladder failure.

3.   The day before the accident, plaintiff and Grabowski visited the property to assess the general condition of the fire escapes (Grabowski tr at 98, lines 4-6; Mirauti tr at 33, lines 14-24; at 98, lines 7-11) and determine what tools would be needed (Plaintiff tr at 31, lines 5-23; at 74, lines 5-15). According to Mirauti, workers would need to climb onto the fire escapes to conduct this visual inspection (Mirauti tr at 34, lines 17-21; at 37:20-38:23; at 42, lines 3-9). Grabowski testified that plaintiff had climbed up the extension ladder to the fire escape ladder, and then onto the fire escape platform (Grabowski tr at 28, lines 13-15, 20-23; at 42, lines 10-11; at 48:6-49:11; at 50, lines 3-8). In contrast, plaintiff testified that he only observed the fire escapes from the ground level and the roof (Plaintiff tr at 31:24-32:4; at 32, lines 23-25; at 34, lines 5-24; at 74, lines 14-15). Plaintiff did not observe any problems with the fire escape ladder (Plaintiff tr at 61, lines 10-17; at 81-82).

4.   The management contract appointing Leemar as agent for Abingdon provides that Leemar "shall cause to be hired, paid and supervised, all persons necessary to be employed in order to properly maintain and operate the building" such as the retention of Abanno for the fire escape project (NYSCEF Doc No. 120, p. 1 ¶ 2[a]). Abingdon, as property owner, and Leemar, as its agent, had a general duty to maintain the fire escapes at the property in a safe manner (Kogan tr at 110:17-111:11). Leemar exclusively retained Abanno for this purpose (Kogan tr at 96, lines 15-22; at 139:12-140:12; at 141, lines 8-12). With regard to fire escapes, the Abingdon superintendent's "responsibility was limited to identifying anybody who left anything on the fire escape and making sure it's removed" (Kogan tr at 110, lines 2-16; at 112, lines 8-23). His monitoring of Abanno's work was limited to protecting the landscaping and ensuring proper cleanup of the area (Kogan tr at 128, lines 20-25; at 173:21-174:4).

5.   Grabowski's testimony that the fire escape ladder was not fully extended to the ground to avoid blocking the dentist's office (located in the building) is insufficient to demonstrate that this configuration resulted from the defendants' instructions (Grabowski tr at 42, lines 12-21).

Kerry J. Ward, J.