The opinion
Stewart v JMDH Real Estate Offs., LLC
2024 NY Slip Op 34166(U)
November 26, 2024
Supreme Court, New York County
Docket Number: Index No. 159073/2020
Judge: Sabrina Kraus
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
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This opinion is uncorrected and not selected for official
publication.
FILED: NEW YORK COUNTY CLERK 11/26/2024 04:34 PM INDEX NO. 159073/2020
NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 11/26/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. SABRINA KRAUS PART 57M
Justice
---------------------------------------------------------------------------------X INDEX NO. 159073/2020
MAX STEWART,
MOTION DATE 06/26/2024
Plaintiff,
MOTION SEQ. NO. 001 002 003
-v-
JMDH REAL ESTATE OFFICES, LLC, JETRO HOLDINGS,
DECISION + ORDER ON
LLC, BARR & BARR, INC.,
MOTION
Defendants.
---------------------------------------------------------------------------------X
JMDH REAL ESTATE OFFICES, LLC, JETRO HOLDINGS, Third-Party
LLC, BARR & BARR, INC. Index No. 595629/2021
Plaintiffs,
-against-
CAPITOL FIRE SPRINKLER CO., INC., CONSTRUCTION
RESOURCES CORP. OF NEW YORK
Defendants.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 68, 69, 70, 71, 72,
73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 118, 126, 129, 137, 138, 141,
142, 155, 156
were read on this motion to/for SUMMARY JUDGMENT .
The following e-filed documents, listed by NYSCEF document number (Motion 002) 92, 93, 94, 95, 96,
97, 98, 99, 100, 101, 102, 103, 104, 120, 121, 122, 123, 124, 125, 127, 130, 131, 133, 134, 135, 136,
139, 140, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 157, 158, 159, 160, 161, 162
were read on this motion to/for SUMMARY JUDGMENT .
The following e-filed documents, listed by NYSCEF document number (Motion 003) 105, 106, 107, 108,
109, 110, 111, 112, 113, 114, 115, 116, 117, 119, 128, 132, 143, 144
were read on this motion to/for SUMMARY JUDGMENT .
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BACKGROUND
On October 25, 2019, Plaintiff was employed by Capitol Fire Sprinkler Co. Inc.
(“Capitol”), working at a construction project located at 17-22 Whitestone Expressway,
Whitestone, New York (“the Project”). Barr & Barr, Inc. (“Barr”) hired Capitol to install fire
protection sprinkler systems at the premises.
Jetro Holdings, LLC (“Jetro”) is a grocery distribution warehouse company with many
locations each of which is typically held in separate entities. JMDH Real Estate Offices, LLC
(“JMDH”), was formed to be the deed owner of the subject premises.
Construction Resources Corp. of New York (“CRNY”) is a union paymaster that
dispatches union workers to job sites, in this case, on behalf of Barr.
Plaintiff alleges that while exiting the fire pump room, where Capitol stored its materials,
he was caused to trip and fall over a piece of unsecured Masonite board on the floor outside of
the doorway to the fire pump room. Plaintiff was injured when he was attempting to carry an
eight to ten foot long, two and a half inch pipe from the first floor fire pump room to another
location where it was going to be cut and fitted for installation.
PENDING MOTIONS
On July 24, 2024: Capitol moved for an order dismissing Plaintiff ’s claims pursuant to
Labor Law §241(6); dismissing JMDH’s, LLC, Jetro Holdings, LLC (“Jetro”) and Barr’s Third-
Party Complaint as to Capitol; and dismissing all crossclaims against Capitol (Mo Seq 1); and
JMDH, Jetro and Barrr moved for summary judgment on their contractual indemnification
claims and breach of contract claims against Capitol and CRNY, an order granting them
common law indemnity, an order dismissing Plaintiff’s complaint and related relief (Mo Seq 2);
and; Plaintiff cross-moved for an order granting plaintiff summary judgment on its Labor Law
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241(6), 200 and common law negligence claims; and CRNY moved for an order seeking
dismissal of the third-party complaint as well as cross claims asserted against it (Mo Seq 3).
On September 23, 2024, the motions were fully briefed. On November 25, 2024, the
Court heard oral argument and reserved decision. The motions are consolidated herein and
determined as set forth below.
DISCUSSION
To prevail on a motion for summary judgment, the movant must establish, prima facie,
its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the
absence of any triable issues of fact. CPLR 3212(b); Matter of New York City Asbestos Litig., 33
NY3d 20, 25-26 (2019). If this burden is met, the opponent must offer evidence in admissible
form demonstrating the existence of factual issues requiring a trial; “conclusions, expressions of
hope, or unsubstantiated allegations or assertions are insufficient.” Justinian Capital SPC v
WestLB AG, 28 NY3d 160, 168 (2016), quoting Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d
966, 967 (1988). In deciding the motion, the evidence must be viewed in the “light most
favorable to the opponent of the motion and [the court] must give that party the benefit of every
favorable inference.” O’Brien v Port Auth. of New York and New Jersey, 29 NY3d 27, 37 (2017).
The §241(6) Claim
It is well-established that a plaintiff proceeding under Labor Law § 241(6) must
adequately allege that a defendant has violated a regulation containing specific directives and
standards promulgated by the Industrial Board of Appeals, as opposed to one that merely
incorporates general common law standards of care. See, e.g., Ross v. Curtis-Palmer Hydro-
Electric Co., 81 N.Y.2d 494, 502-503 (1993); White v. Sperry Supply and Warehouse, Inc., 225
A.D.2d 130 (3rd Dep’t 1996). To assert a viable cause of action against an owner or contractor
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pursuant to § 241(6), a plaintiff must refer to a violation of a specific standard set forth in
Industrial Code regulations contained in 12 NYCRR part 23. See Colucci v. Equitable Life
Assurance Society, 218 A.D.2d 513 (1st Dep’t 1995).
Plaintiff has alleged violations of the following Industrial Code provisions in his Bill of
Particulars: 23-1.5(a)-(c), 23-1.7(d), 23-1.7(e)(1) and (e)(2), 23-1.29(a), and 23-2.1(a)-(b).
However, in his motion papers Plaintiff does not oppose dismissal of the claims predicated on
any sections other than 23-1.7(e)(1), 23-1.7(e)(2) and 23-1.5(c)(3). Therefore, the part of the
claim based on the other sections is dismissed.
Section 23-1.5(c)(3) provides:
All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall
be immediately repaired or restored or immediately removed from the job site if damaged.
N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.5. The claim based on this section is also dismissed
as it is not applicable to the facts alleged herein which do not relate to safety devices safeguards
or damaged equipment.
Sections 23-1.7(e)(1) and (e)(2) deal with tripping and other hazards in passageways and
working areas respectively. They read as follows:
e) Tripping and other hazards.
(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and
from any other obstructions or conditions which could cause tripping. Sharp projections which
could cut or puncture any person shall be removed or covered.
(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass
shall be kept free from accumulations of dirt and debris and from scattered tools and materials
and from sharp projections insofar as may be consistent with the work being performed.
N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.7
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Defendants argue that since the Masonite board was purposely placed as a protective
covering during construction, it cannot constitute “debris” or any other obstruction listed in
Section 23-1.7(e)(2) citing Thomas v. Goldman Sachs Headquarters, LLC, 109 A.D.3d 421, 422
(1st Dep’t 2013) and Stier v. One Bryant Park LLC, 113 A.D.3d 551, 552 (1st Dep’t 2014). The
Court agrees that Section 23-1.7(e)(2) is inapplicable here based on the cited authority.
Defendants further argue that the Masonite Board Plaintiff tripped was an integral part of
the construction, purposely placed to protect the flooring, and therefore cannot support a Labor
Law w §241(6) claim predicated on an alleged violation of Sections 23-1.7(e)(1) of the Industrial
Code citing Krzyzanowski v. City of New York, 179 A.D.3d 479, 480-81 (1st Dep’t 2020).
Plaintiff counters that, based on a relatively recent decision issued by the Court of
Appeals, Bazdaric v Almah Partners LLC 41 NY3d 310 (2024), the covering meant to protect
the floor was not integral to the work being performed. In Bazdaric, plaintiff slipped on a plastic
covering on an escalator in an area he was assigned to paint. The plastic covering was placed to
protect the escalator from the paint. The Court held:
… (S)tanding on a stopped escalator while painting required that the steps be covered to
prevent the paint from falling on the escalator machinery and potentially damaging the
escalator, and also to prevent the work area from becoming slippery and thus hazardous
to (plaintiff) or any other worker who needed to walk on the steps. Thus, the use of some
cover was integral to (plaintiff's) assignment to paint around the escalator. But that does
not mean that any cover used—even one that was inherently slippery—was necessarily
“integral,” particularly where a safer alternative would have accomplished the same goal.
The plastic covering that was placed on the escalator was not integral to the paint job
because it made (plaintiff's) work area slippery, creating one of the hazards that the cover
was intended to avoid. Contrary to defendants' and the Appellate Division majority's
view, this was not merely a poor choice of material but an inherently dangerous one.
Defendant was in a position to avoid this danger because … there were alternative
coverings—drop cloths and wood panels—that were familiar, previously-used options
that would have achieved the goal of protecting the worker from injuries caused by a
slipping hazard and also protected the escalator from possible damage. A contrary
holding would absolve employers of liability for using any means of accomplishing a
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task, even if it is the most dangerous. This distorted interpretation finds no support in the
Industrial Code or our case law.
Bazdaric v. Almah Partners LLC, 41 N.Y.3d 310, 321 (2024).
In the case at bar, plaintiff cites to no evidence in the record that the Masonite board was
an improper covering to protect the floor or that there were other better ways to protect the floor
that had been used previously. Thus, the Court finds that Bazdaric is distinguishable from the
case at bar based on these facts. Therefore, Defendants’ motion for summary judgment
dismissing the 241(6) claims is granted and Plaintiff’s cross-motion for summary judgment is
denied.
The § 200 Claim & Common Law Negligence
Labor Law § 200 is a codification of the common-law duty imposed upon an owner or
general contractor to provide construction workers with a safe place to work. Lin v. Holy Family
Monuments, 18 A.D.3d 800 (2d Dep't. 2005).
A party “may be liable under the common law or Labor Law § 200 for a dangerous
condition arising from either the condition of the premises or the means and methods of the
work.” Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d 621, 626 (1st Dep’t 2015) quoting
Cappabianca v. Skanska USA Bldg., Inc., 99 A.D.3d 139, 143-44 (1st Dep’t 2012). Liability can
be established for an injury arising from the means and methods of the work if the owner
exercised supervisory control over the work or where a dangerous condition on the premises
caused the accident, if the owner created the condition or had actual or constructive notice of it
Id. at 626.
The Court finds that neither party made a prima facie showing of summary judgment and
there are questions of fact precluding an award of summary judgment to the parties on this claim.
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Plaintiff submits a photograph depicting the defect which he alleges caused the injury.
Defendants fail to make any claim as to when the area was last inspected.
Plaintiff argues that Barr created the condition. Plaintiff alleges that Barr was responsible
for providing the Masonite boards and laying them down on the floor and that once laid down on
the floor, the Masonite would be secured together and at the edges by duct tape. After the
Masonite was laid down, Barr would check to make sure it was secured properly. These
allegations are disputed.
Mr. Santorufo, Barr’s foreman, testified that if he observed a piece that was not secured
and appeared to be a tripping hazard, he would direct someone to secure it. When shown the
photograph of the raised and unsecured Masonite board, Mr. Santorufo conceded that it
presented a potential tripping hazard and that if he observed it, he would have directed one of the
Barr laborers to secure it to the ground.
Mr. Brownell, Barr’s safety director, when shown the same photograph of the raised and
unsecured Masonite board that Plaintiff tripped over, admitted that he considered it a tripping
hazard and that if observed such a condition he would discuss it with his superintendent and
would expect the superintendent would direct one of the laborers to remedy the situation.
Thus, the Court finds there are questions of fact as to whether defendants created the
condition and whether they knew or should have known of it prior to the accident. Based on the
foregoing, the parties’ respective motions for summary judgment on this claim are denied.
Additionally, Plaintiff’s cross-motion seeking dismissal of unidentified affirmative
defenses is also denied. Plaintiff’s moving papers seek dismissal of “all affirmative defenses
alleging comparative fault and culpable conduct on the part of Plaintiff”. However, Plaintiff’s
moving papers failed to specify with particularity which affirmative defenses in which pleadings
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are sought to be dismissed. It is not for the court to determine on plaintiff’s behalf which
affirmative defenses in which pleadings are encompassed by this request for relief. Based on the
foregoing the Court finds Plaintiff has failed to make a prima facie showing of entitlement to
dismissal of the insufficiently identified affirmative defenses.
Capitol’s Motion for Summary Judgment
JMDH, Jetro, and Barr (“Third-Party Plaintiffs”) filed a Third-Party Summons and
Complaint against Capitol alleging causes of action sounding in contractual indemnification,
common-law indemnification, contribution and apportionment, and failure to procure insurance
coverage.
As noted above, on the date of the accident, Plaintiff was employed as a mechanic for
Capitol, a company that designs and installs fire sprinkler systems, inspects systems, and gets
building sprinkler systems up to code. Capitol installed sprinklers in both the office building and
the parking structure.
Pursuant to its contract with JMDH, Barr entered a subcontract with Capitol, wherein
Capitol agreed to provide fire protection work at the subject premises.
Article 21 of the contract states in relevant part:
To the fullest extent permitted by law, the Subcontractor shall defend, indemnify and
hold harmless the owner, Architect Construction Manager and all other additional
insureds referred to in the Insurance Coverage provisions hereof (collective, the
“Indemnitees”) from and against any and all claims, losses, costs, injuries, damages and
expenses, including reasonable attorneys’ fees brought or assumed against any of the
Indemnities by any person or firm, arising out of or in connection with or as a result of or
consequence of the performance of the Work of the Subcontractor under this Agreement,
or any additional work, extra work, or addon work, whether or not caused in whole or in
part by the Subcontractor or any person or entity employed, either directly or indirectly,
by the Subcontractor including any subcontractors thereof and their employees. The
parties expressly agree that this indemnification agreement contemplates: 1) full
indemnity in the event of liability imposed against an Indemnitee without negligence and
solely by reason of statute, operation of law or otherwise; and 2) partial indemnity in the
event of any actual negligence on the part of an Indemnitee either causing or contributing
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to the underlying claim in which case, indemnification will be limited to any liability
imposed over and above that percentage attributable to actual fault. Under no
circumstance shall this Agreement be interpreted to require Subcontractor to indemnify
any one Indemnitee for that Indemnitee’s own negligence or wrongdoing. Where partial
indemnity is provided under this Agreement, costs, professional fees, attorneys’ fees,
expenses, disbursements, etc. shall be indemnified on a pro rata basis. Indemnification
under this paragraph shall operate whether or not Subcontractor has placed and
maintained the insurance specified in this Agreement. Attorneys’ fees, court costs,
expenses and disbursements shall be defined to include those fees, costs, etc. incurred in
defending the underlying claim and those fees, costs, etc. incurred in connection with the
enforcement of this indemnity agreement.
Generally, a claim for contractual indemnification should be dismissed where the incident
did not arise out of the work performed by the indemnitor. See DeGidio v. City of New York, 176
A.D.3d 452, 454 (1st Dep’t 2019); see also Pepe v. Center for Jewish History, Inc., 59 A.D.3d
277, 278 (1st Dep’t 2009).
In a recent decision with similar facts, Sternkopf v. 395 Hudson New York, LLC, 2024
WL 2333662 (1st Dep’t 2024), plaintiff worked for third-party defendant, Par Fire, which was
responsible for installing sprinklers at a construction site. As plaintiff was walking in a hallway
at the construction site, he slipped on a piece of discarded carpeting and was caused to fall and
sustain injuries. The First Department held that the plaintiff’s employer was not required to
indemnify the general contractor because the incident, which was caused by the discarded piece
of carpet, did not arise out of the employer’s sprinkler work. Id. at 2. Therefore, the
indemnification provision was not triggered. Id. at 2.
The court finds this case, and Basile v. Legacy Yards Tenant LP, 205 A.D.3d 531, 531
(1st Dept. 2022), also relied on by Capitol, to be distinguishable from the case at bar because
here Plaintiff was actually in the process of doing his work when he tripped on the Masonite
board and the Masonite board, as held above, was integral to the work being performed.
Plaintiff, an employee of Capitol was injured when he was attempting to carry an eight to ten
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foot long, two-and-a-half-inch pipe from the first-floor fire pump room to another location where
it was going to be cut and fitted for installation. Plaintiff’s accident arose in connection with
Capitol’s work.
However, given that the only remaining claims are for common law negligence and
Labor Law 200, Barr can only be liable if it is found to have been negligent and would not be
entitled to contractual or common law indemnity in the event of such a finding.
The purported dangerous condition, which was an allegedly unsecured piece of Masonite
board, was created by Barr and Barr had the responsibility for that Masonite. Therefore, Third-
Party Plaintiffs’ motion for indemnification from Capitol should be denied and all claims against
Capitol should be dismissed.
Additionally, Third-Party Plaintiffs’ claims for common-law contribution and
indemnification and the cross-claims of CRNY cannot be sustained against Capitol. Here,
Plaintiff’s Verified Bills of Particulars and Supplemental Bills of Particulars do not allege a
"grave injury" as narrowly defined in Workers’ Compensation Law § 11 for which Capitol, as
Plaintiff’s employer, may be liable to third parties for common-law contribution or
indemnification. See Meis v. ELO Organization, LLC, 97 N.Y.2d 714 (2002); Castro v. United
Container Machinery Group, Inc., 96 N.Y.2d 398 (2001); Picaso v. 345 East 73 Owners Corp.,
101 A.D.3d 511 (1st Dep't 2012). Third-Party Plaintiffs have not opposed this aspect of Capitol’s
motion, and CRNY has not opposed Capitol’s motion at all.
CRNY’s Motion
A party cannot obtain common-law indemnification unless it has been held to be
vicariously liable without proof of any negligence or actual supervision on their own part.
McCarthy v. Turner Const., Inc., 17 N.Y.3d 369 (2011). To establish a claim for common-law
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indemnification, the record must show the third-party plaintiffs are not negligent and the
indemnitor was responsible for the negligence that contributed to the accident, or in the absence
of any negligence, the proposed indemnitor had the authority to direct, supervise, and control the
work giving rise to the injury. Benedetto v. Carrera Realty Corp., 32 A.D.3d 874, 875 (2nd
Dep’t 2006). “The critical requirement … is that the breach of duty by the contributing party
must have had a part in causing or augmenting the injury for which contribution is sought.”
Nassau Roofing v. Dev Corp., 71 N.Y.2d 599, 603 (1988).
Therefore, a claim of contribution may only be asserted if there has been a breach of a
duty that runs from the contributor to the defendant who has been held liable. Raquet v. Braun,
90 N.Y.2d 177, 182 (2nd Dept. 1997). There is some evidence in the record Barr was potentially
negligent. The record established that Santorufo was Barr’s superintendent and he testified that
Barr was solely responsible for safety at the worksite. The evidence is that Castelli, Barr’s
supervisor, directed Barr’s laborers to place the Masonite board that Plaintiff claims he tripped
over. There is no evidence that CRNY was negligent.
Barr’s claims for contractual and common-law indemnification, contribution, and the
failure to procure insurance cannot be sustained as a matter of law. The express language of the
contractual indemnification provision states that the Plaintiff’s claim should arise out of and in
connection with or as a result of the performance of CRNY’s work under the Agreement with
Barr. CRNY is entitled to summary judgment dismissing Barr’s third-party claims because there
is no evidence that CRNY performed work, controlled laborers or provided materials employed
at the project.
As the injury causing activity arose solely out of Barr’s work there is no basis for
sustaining the claims of JDMH and Barr for contractual indemnification from CRNY. Nor is
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there a basis for sustaining a claim by any party for common-law indemnification or contribution
since the record contains evidence that it may have been Barr’s negligence that caused the
accident, and the facts and law show CRNY was not negligent.
As a result, the claim for failure to procure insurance is rendered academic and is
dismissed. Accordingly, the Third-Party Complaint and Crossclaims as asserted against CRNY
cannot be sustained as a matter of law and are dismissed.
CONCLUSION
WHEREFORE it is hereby:
ORDERED that Motion Sequence No 1 is granted in its entirety and all claims against
Capitol Fire Sprinkler Co are dismissed and the clerk shall enter judgment accordingly; and it is
further
ORDERED that plaintiff’s cross-motion is denied in its entirety; and it is further
ORDERED that Motion Seq No 2 except as to dismissal of Plaintiff’s Labor Law 241(6)
claims; and it is further
ORDERED that Motion Seq No. 3 is granted in its entirety and all claims against
Construction Resources Corp are dismissed and judgment shall be entered accordingly.
This constitutes the decision and order of the Court.
11/26/2024
DATE SABRINA KRAUS, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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