Luis Sanchez, E Plaintiff–Respondent, v. 404 Park Partners, LP, et al., Defendants–Respondents–Appellants, Cord Contracting Co. Inc., Defendant–Appellant–Respondent.
404 Park Partners, LP, et al., Third–Party Plaintiffs–Respondents–Appellants, v. United Air Conditioning Corp. II, Third–Party Defendant–Respondent–Appellant, Cord Contracting Co. Inc., Third–Party Defendant–Appellant–Respondent.—–—–—[And a Second Third–Party Action]
‘s injuries under Labor Law § 240(1) as the property owner and general contractor, respectively (see Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 AD3d 446, 449–50 [1st Dept 2013] ). Cord, a subcontractor, is also liable, because it “was charged with the duty to provide [c]overs over all floor openings, properly cleated to the floor,” and thus “was an agent of the contractor, having been delegated the duties imposed by the statute upon the contractor” (O'Connor v Lincoln Metrocenter Partners, 266 A.D.2d 60, 61 [1st Dept 1999] [internal quotation marks omitted]; see Walls v. Turner Constr. Co., 4 NY3d 861, 863–864  ).
‘s injuries under Labor Law § 241(6), because, contrary to their contention, plaintiff established that the Industrial Code provisions on which his claim is predicated—12 NYCRR 23–1.7(b)(1)(i), (ii), and (iii)—were violated and that the violations were a proximate cause of his accident (see Alonzo, 104 AD3d at 450).
As plaintiff's motion for summary judgment did not address his common-law negligence and Labor Law § 200 claims, the court correctly declined to consider the parts of Cord's untimely cross motion that sought dismissal of those claims (see Golubowski v. City of New York, 131 AD3d 900, 901 [1st Dept 2015] ).
The court correctly denied 404 Park and Sciame's motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims as against Sciame, because issues of fact exist as to whether Sciame breached its duty to provide the construction workers with a safe place to work (Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 316–317  ). Its contract with 404 Park delegated to Sciame the sole responsibility for, and control over, the means and methods of construction at the project site. In addition, Cord's foreman testified that he and a Sciame employee decided to use plywood boards with cleats to cover openings in the floor, instead of nailing the boards to the floor.
Sciame should have been awarded conditional full contractual indemnification from United, i.e., subject to the determination of its liability to plaintiff on the common-law negligence and Labor Law § 200 claims. Sciame's subcontract with United contemplates full indemnification if Sciame is held vicariously liable by reason of statute and partial indemnification if Sciame is found to have been negligent.
Based upon a plain reading of Sciame's subcontract with Cord, both 404 Park and Sciame are entitled to conditional contractual indemnification from Cord, to the extent plaintiff's injuries were caused by the negligent acts or omission of Cord or anyone directly or indirectly employed by it (see Torres v. Love Lane Mews, LLC, 156 Ad3d 410, 411 [1st Dept 2017] ).
We have considered defendants' remaining arguments for affirmative relief and find them unavailing.