# Bogart v. Warner Media, LLC

> New York Supreme Court, New York County · April 21, 2025 · 2025 NY Slip Op 31393(U)

URL: https://www.frixlaw.com/law-library/cases/10851091

## Case

- **Court:** New York Supreme Court, New York County
- **Decided:** April 21, 2025
- **Citations:** 2025 NY Slip Op 31393(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion by David B. Cohen
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Bogart v Warner Media, LLC
2025 NY Slip Op 31393(U)
April 21, 2025
Supreme Court, New York County
Docket Number: Index No. 159183/2019
Judge: David B. Cohen
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
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 159183/2019
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. DAVID B. COHEN PART 58
Justice
---------------------------------------------------------------------------------X INDEX NO. 159183/2019
RYAN BOGART,
09/06/2024,
Plaintiff, 09/26/2024,
09/26/2024,
MOTION DATE 09/26/2024
-v-
WARNER MEDIA, LLC, ERY TENANT, LLC, TW NY 003 004 005
PROPERTIES, LLC, EUROTECH CONSTRUCTION MOTION SEQ. NO. 006
CORP., UNITY ELECTRIC CO., INC.,
DECISION + ORDER ON
Defendant. MOTION
---------------------------------------------------------------------------------X

WARNER MEDIA, LLC Third-Party
Index No. 595248/2020
Plaintiff,

-against-

STRUCTURE TONE, INC.

Defendant.
--------------------------------------------------------------------------------X

WARNER MEDIA, LLC, TW NY PROPERTIES, LLC Second Third-Party
Index No. 595439/2022
Plaintiff,

-against-

FOREST ELECTRIC CORP., UNITY ELECTRIC CO., INC.

Defendant.
--------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 91, 92, 93, 94, 95,
96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117,
118, 119, 120, 122
were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .

The following e-filed documents, listed by NYSCEF document number (Motion 004) 123, 124, 125, 126,
127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147,
148
were read on this motion to/for JUDGMENT - SUMMARY .

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The following e-filed documents, listed by NYSCEF document number (Motion 005) 149, 150, 151, 152,
153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173,
174, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 224, 225,
229, 230, 231, 232, 233, 234, 235, 236, 237
were read on this motion to/for JUDGMENT - SUMMARY .

The following e-filed documents, listed by NYSCEF document number (Motion 006) 175, 176, 177, 178,
179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199,
200, 201, 202, 221, 222, 223, 226, 227, 228
were read on this motion to/for JUDGMENT - SUMMARY .

Motion sequence numbers 003, 004, 005 and 006 are hereby consolidated for disposition.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff,

a union construction worker, on August 7, 2018, when, while working at a construction site

located on the 28th floor of 30 Hudson Yards, New York, New York (the Premises), he tripped

on an electrical conduit and fell.

In motion sequence number 003, second third-party defendant Forest Electric Corp

(Forest) moves, pursuant to CPLR 3212, for summary judgment dismissing the second third-

party complaint and all crossclaims against it.

In motion sequence number 004, defendant Eurotech Construction Corp. (Eurotech)

moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against it.

In motion sequence number 005, defendant ERY Tenant, LLC (ERY) defendant/second

third-party plaintiffs Warner Media, LLC (Warner) and TW NY Properties, LLC (TW) (together

the Warner defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the

complaint as against them, and for summary judgment in their favor on their contractual

indemnification claims against defendant/second third-party defendant Unity Electric Co. Inc.

(Unity).

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In motion sequence number 006, Unity moves, pursuant to CPLR 3212, for summary

judgment dismissing the complaint as against it.1

I. BACKGROUND

On the day of the accident, Warner was effectively the owner of the Premises, and its

subsidiary, TW, was the tenant thereof. Defendant ERY Tenant LLC was the property manager.

TW hired third-party defendant Structure Tone, Inc. (Structure) to provide general contracting

services for a project at the Premises that entailed an interior renovation. Structure, which

employed plaintiff, subcontracted carpentry work to Eurotech.

Plaintiff’s Deposition Testimony (NYSCEF Doc No. 160)

Plaintiff testified that on the day of the accident, he was employed by Structure as a

laborer (plaintiff’s tr at 24, 29). His foreman was also a Structure employee (id. at 29), and he

only received instruction and supervision from Structure (id. at 122). His duties included

removing debris and garbage at the job site (id. at 29-30). He would also perform “protection

work” so “as things get built, [they] protect them so that they don’t get damaged during the rest

of the construction” (id. at 30). For example, plaintiff would protect floors by placing

“Masonite” or “brown paper” down (id. at 30). If plaintiff ever saw a hazardous condition on the

Premises, he would inform the trade responsible for that condition (id. at 119).

Plaintiff testified that on the day of the accident, he was working on the 28th floor of the

Premises (which is also known as the “42nd floor display level”) (id. at 39), along with a

coworker named “Rob” (id. at 43). They were assigned to “get prepared for a glass delivery . . .

which meant you were protecting the carpet, making sure the areas were clear and ready for the

1
By stipulation of discontinuance dated March 21, 2022, the third-party action was discontinued
without prejudice (NYSCEF Doc. No. 49).
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delivery” (id. at 44). This entailed placing “carpet mask” over the carpet and “put[ting] down

some Masonite” (id. at 45).

The accident location was the north side of the 28th floor (id. at 50). He described the

location as a “big area” (id. at 50), with an “open floor plan” (id. at 49), that was “rectangular in

shape” (id. at 50). It had been prepared for glass delivery. Plaintiff also confirmed that the

accident location was “not like a hallway” (id. at 51). He did not know the area’s dimensions.

Immediately prior to the accident, plaintiff was “finishing up” his end of day tasks and

“double checking the entire floor” (id. at 55), when he tripped over “something very hard,”

causing him to fall to the ground (id. at 126). After he fell, plaintiff “looked back and saw [a

piece of] conduit” (id. at 81) (the Conduit) sticking up approximately “2 inches” (id. at 123) from

the floor. He stated that “it was the only object in the area” that could have cause him to trip (id.

at 81). The accident was unwitnessed (id. at 96).

Plaintiff further testified that, on the day of the accident, the Conduit was not covered or

otherwise marked (id. at 98). He further testified that he had never seen covers or cones over the

Conduit at any time (id. at 115). Plaintiff explained that, in his experience, these types of

conduits were usually left higher and spray painted, to make them more visible (id. at 123 [“from

what [he] witnessed . . . the pipe is installed [and] usually left maybe a foot to 2 feet tall and

spray painted orange . . . to be . . . less of a hazard”).

Plaintiff was asked whether he had ever removed a cone or a barricade so he could access

a work area. He stated that it was “definitely possible” but if he ever had to do so he “would put

it back” when he finished (id. at 119). He testified that he did not remove a cone or barricade

from the subject Conduit (id. at 120).

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Prior to the accident, plaintiff had never seen a cone or barricade over the conduit (id. at

115, 121). He recalled that he “mentioned to Unity” – an electrical subcontractor – that it needed

“to protect those pipes with some sort of cone” (id. at 103). He did not know for certain that

Unity was the entity that installed the conduit (id. at 106, 115 [“It could have been [Unity], or it

could have been installed by other contractors”]).

At the deposition, plaintiff was shown several photographs and confirmed that he took

them the day after the accident. He further confirmed that the photographs depicted the accident

location (id. at 57), including pieces of “[e]lectrical conduit” (id. at 60) that were sticking up

from the floor. The conduit depicted in the photograph is what he tripped over (id. at 63-64).

The photographs also depicted Masonite and carpet masking that plaintiff and his coworker had

installed prior to the accident (id. at 71). The carpet masking around the Conduit had been cut

out to allow the masking to lie flat on the surrounding carpet (id. at 73).

Deposition Testimony of Warner (NYSCEF Doc. No. 161)

Anthony Buono testified that on the day of the accident he was Warner’s director of

media (id. at 11), and his duties on the Project included “[r]eview of design drawings,

observation of the actual construction of those design drawings, common recommendations . . .

punch list upon project completion, witnessing tests and commissioning” (id. at 22). He was not

personally involved in any construction, and he did not know who installed the Conduit (id. at

53).

TW was the tenant of the Premises, who acted as the owner for the Project “even though

[it did not] physically own the real estate” (id. at 18). The Project was an “interior fit-out”

meaning that TW and Warner were not changing anything structural in the Premises.

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TW hired Structure as the “construction manager and general contractor” for the Project

(id. at 28). Structure was responsible for hiring subcontractors for the Project (id. at 33-34).

Buono was not on site regularly, and he never communicated with any of the trades or

subcontractors (id. at 40). He would participate in weekly or bi-weekly progress meetings, often

over the telephone (id. at 39). Safety matters were never discussed, and Warner did not hire a

safety company.

Deposition Testimony of Forest (NYSCEF Doc. No. 162)

Drew Mino testified that on the day of the accident, he was Forest’s project manager

(Mino tr at 11). Forest performed work on the Project pursuant to a contract with Structure (id.

at 21), and specifically, installed data cables and “buil[t] out an IDF closet on all the floors” (id.

at 13); an IDF closet is an electrical junction room (id. at 33-34). Forest also installed

“equipment racks and riser cabling between all the floors” (id. at 28). Forest was not responsible

for the work that included bringing electrical cabling to other portions of the floor, such as

individual workstations (id. at 35). Mino did not know who was tasked with that work.

Mino was shown a photograph of the accident location, and identified the Conduit as a

“poke-through to bring power and data” to workstations (id. at 37-38). Forest was not involved

in that work (id. at 38).

Mino was also shown a close-up photograph of a conduit sticking up from the floor, and

testified that Forest did not install conduits into any floors as part of any of its work on the

Project (id. at 40). Rather, those would have been installed by the electrical installer (id. at 41).

Mino reiterated that Forest was not “awarded the electrical contract for the floor. [It was]

only contracted to do data work” on the floor where the accident occurred (id. at 50). Forest’s

data work did not take place in the area where the accident occurred (id. at 50).

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Deposition Testimony of Unity (NYSCEF Doc. No. 163)

Gregory Valdner testified that on the day of the accident, he was Unity’s assistant general

superintendent at the Project (Valdner tr at 11), and was present at the Project approximately

once a week. Unity was responsible for the “electrical portion of the job, building out electrical

closets, lighting, electric to furniture” (id. at 12). Structure was the general contractor on the

Project (id. at 24).

He did not know whether Unity performed work on the floor where the accident took

place (id. at 55). He was shown a copy of a Structure daily journal for the day of the accident,

and confirmed that it noted that Unity was “installing all electrical” on several floors, including

the subject floor (id. at 66), though he did not know if the document was accurate.

Valdner was shown several photographs and confirmed that they depicted a floor of the

Premises, though he did not know which one (id. at 2-28). He confirmed that one photograph

depicted a “pathway” – a “way of getting from . . . the floor below to the floor above” (id. at 29).

He testified that they did not look like the type of “pathways” that Unity installed, because Unity

used “pipes and they’re round,” while the objects in the photograph were “either bent or some

other type of material” (id. at 29). He acknowledged that the tubing that Unity used could look

like what was depicted in the photograph “if somebody damaged it” (id. at 32). He did not know

who installed the subject Conduit (id. at 44). He believed, based on experience, that the conduit

“would be for data connectivity” (id. at 45).

Valdner testified that the Conduit, as depicted in the photograph, posed a safety hazard

because there was “no protection around it” (id. at 33). Unity placed “safety cones” over open

conduits immediately after installation (id.at 33-34), and they would be kept in place until Unity

was “ready to use it” (id. at 34). Unity provided the safety cones (id. at 40).

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At the deposition, Valdner reviewed a copy of Unity’s contract for the Project, and

confirmed that Unity’s duties included installing and finishing electrical conduits (if. At 51).

Deposition Testimony of Eurotech (NYSCEF Doc. No. 109)

Tomislav Pervan testified that on the day of the accident, he was Eurotech’s carpentry

foreman for the Project (Pervan tr at 9). Eurotech was responsible for “all of the carpentry” on

the subject floor, including “building of the offices, installation of ceilings, taping, finishes” (id.

at 15). Eurotech often coordinated its work with Unity, such as Eurotech framing a wall and

then Unity installing electrical devices after Eurotech was done (id. at 28).

Eurotech did not install conduits or any other form of electrical piping (id. at 30-31 [“We

had nothing to do with it”]), and it was not responsible for securing or otherwise protecting

conduits (id. at 35).

Pervan was shown a copy of several photographs and testified that they depicted a floor

in the Premises, though he could not identify what floor. One photograph depicted a conduit that

would be used to connect “furniture” such as workstations (id. at 36). He believed, but did not

know for certain, that Unity was responsible for furniture conduits (id. at 36), and that Forest was

responsible for fire alarm installation (id. at 54), not conduit installation (id. at 57-58).

II. DISCUSSION

“[T]he proponent of a summary judgment motion must make a prima facie showing of

entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the

absence of any material issues of fact. Failure to make such prima facie showing requires denial

of the motion, regardless of the sufficiency of the opposing papers” (Pullman v Silverman, 28

NY3d 1060, 1062 [internal quotation marks and citations omitted]).

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Once prima facie entitlement has been established, in order to defeat the motion, the

opposing party must “‘assemble, lay bare, and reveal his [or her] proofs in order to show his [or

her] defenses are real and capable of being established on trial . . . and it is insufficient to merely

set forth averments of factual or legal conclusions’” (Genger v Genger, 123 AD3d 445, 447 [1st

Dept 2014], quoting Schiraldi v U.S. Min. Prods., 194 AD2d 482, 483 [1st Dept 1993]).

“Summary judgment must be denied where there is any doubt as to the existence of a triable

issue . . . or where the issue is arguable” (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last

& Spellane, LLC, 157 AD3d 479, 482 [1st Dept 2018] [internal quotation marks and citations

omitted]).

A. Preliminary Issue (Motion Sequence Numbers 004 and 005)

Defendants ERY and Eurotech present arguments that they are not proper Labor Law

defendants and, therefore, the Labor Law claims against them should be dismissed (see

Rodriguez v Riverside Center Site 5 Owner LLC, 234 AD3d 623 [1st Dept 2025]).

ERY argues that it was not an owner/tenant, general contractor or agent of either such

that it could be a proper Labor Law defendant (see e.g., Nascimento v Bridgehampton Constr.

Corp., 86 AD3d 189, 192-193 [1st Dept 2011]). No one opposes ERY’s status under the Labor

Law. Accordingly, ERY is entitled to summary judgment dismissing the Labor Law claims

against it.

Eurotech argues that it, too, is not an owner, general contractor or agent of either and,

therefore, it cannot be liable under Labor Law §§ 240(1) and 241(6). Notably, as discussed

more fully below (see common-law negligence discussion, infra), Eurotech has established that

as the carpentry subcontractor, its work did not involve installing or maintaining/securing

conduit. “If the subcontractor's area of authority is over a different portion of the work or a

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different area than the one in which the plaintiff was injured, there can be no liability under [the

statutory agent] theory” (Nascimento, 86 AD3d at 193).

The Warner defendants’ argument that a question of fact exists as to whether Eurotech

was delegated the responsibility for the Conduit is unpersuasive. Pervan’s testimony that

Eurotech and Unity coordinated work does not establish that Eurotech installed or was otherwise

responsible for the Conduit, such that it became an agent for the purpose of the Labor Law.

Accordingly, as Eurotech was not “delegated the supervision and control over . . . the

work which [gave] rise to the injury” it is not a statutory agent of the owner or general contractor

(Nascimento, 86 AD3d at 193). Thus, it is entitled to summary judgment dismissing the Labor

Law claims against it.

B. Labor Law § 240(1) Claim (Motion Sequence Numbers 004, 005 and 006)

As plaintiff “acknowledges that the facts here do not implicate Labor Law § 240(1)”

(NYSCEF Doc. No. 224), Eurotech, the Warner defendants and Unity are entitled to summary

judgment dismissing the Labor Law § 240(1) claims as against them.

C. Labor Law § 241(6) Claims (Motion Sequence Numbers 004, 005, 006)

Eurotech, the Warner defendants and Unity move for summary judgment dismissing the

section 241(6) claim as against them.

Labor Law § 241(6) provides, in pertinent part, as follows:

All contractors and owners and their agents, . . . when constructing
or demolishing buildings or doing any excavating in connection
therewith, shall comply with the following requirements:
***
(6) All areas in which construction, excavation or demolition
work is being performed shall be so constructed, shored,
[and] equipped . . . as to provide reasonable and adequate
protection and safety to the persons employed therein or
lawfully frequenting such places.

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Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and

contractors “‘to provide reasonable and adequate protection and safety’ to persons employed in,

or lawfully frequenting, all areas in which construction, excavation or demolition work is being

performed” (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]).

To sustain a Labor Law § 241(6) claim, it must be established that the defendant violated

a specific, “concrete specification” of the Industrial Code, rather than a provision that considers

only general worker safety requirements (Messina v City of New York, 300 AD2d 121, 122 [1st

Dept 2002]). Further, “a plaintiff must demonstrate that his or her injuries were

proximately caused by a violation of an Industrial Code regulation that is applicable to the

circumstances of the accident” (Yaucan v Hawthorne Vil., LLC, 155 AD3d 924, 926 [2d Dept

2017]]; see also Sutherland v Tutor Perini Bldg. Corp., 207 AD3d 159, 161 [1st Dept 2022]).

“Whether a regulation applies to a particular condition or circumstance is a question of law for

the court” (Harrison v State of New York, 88 AD3d 951, 953 [2d Dept 2011]).

As an initial matter, plaintiff lists multiple violations of the Industrial code in his

complaint and bill of particulars, but except for sections 23-1.7(e)(1) and (e)(2), plaintiff does

not oppose their dismissal. These uncontested provisions are deemed abandoned (Kempisty v

246 Spring St., LLC, 92 AD3d 474, 475 [1st Dept 2012] [“Where a defendant so moves, it is

appropriate to find that a plaintiff who fails to respond to allegations that a certain section is

inapplicable or was not violated be deemed to abandon reliance on that particular Industrial Code

section”]).

a. Industrial Code 12 NYCRR 23-1.7(e)(1)

Industrial Code 12 NYCRR 23-1.7(e)(1) provides the following:

(e) Tripping and other hazards

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(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.

Initially, the moving defendants argue that this provision is inapplicable because the

accident did not occur in a passageway, but a working area governed by section 23-1.7(e)(2).

A passageway, for the purpose of section 23-1.7(e)(1), is defined as “a typically long

narrow way connecting parts of a building, and synonyms include the words corridor or hallway.

In other words, it pertains to an interior or internal way of passage inside a building” (Quigley v

Port Auth. of N.Y. & N.J., 168 AD3d 65, 67 [1st Dept 2018] [internal quotation marks and

citation omitted]).

Here, plaintiff testified that the area where the accident occurred was a “big area” with an

“open floor plan,” and “not like a hallway.” None of the deposed witnesses testified that the area

was a passageway, corridor or hallway.

For this reason, plaintiff’s reliance on Prevost v One City Block LLC (155 AD3d 531 [1st

Dept 2017]) is unpersuasive, as there, there was conflicting testimony about whether the area

where the plaintiff fell was a corridor or an open space. There is no such testimonial discrepancy

here. For the same reason, plaintiff’s reliance on Bopp v A.M. Rizzo Elec. Contrs., Inc. (19

AD3d 348, 350 [2d dept 2005] [question of fact as to whether accident location described as a

“corridor” was a passageway or open area]) is also unavailing.

Finally, plaintiff’s reliance on a photograph that purports to depict the accident location

as a passageway is also insufficient to raise a question of fact, as he cites to no testimony or

opinion regarding the photograph that would establish that the depicted area constituted a

passageway as contemplated by section 23-1.7(e)(1).

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Accordingly, section 23-1.7(e)(1) does not apply to plaintiff’s accident and the moving

defendants are entitled to summary judgment dismissing this part of the Labor Law § 241(6)

claim.

b. Industrial Code 12 NYCRR 23-1.7(e)(2)

Industrial Code 12 NYCRR 23-1.7(e)(2) provides:

(e) Tripping and other hazards

(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.

Here, the parties agree that the accident location was a working area such that this

provision would apply. It is also undisputed that the accident was not caused by an accumulation

of dirt, debris or scattered tools or materials. At issue is whether the Conduit constitutes a sharp

projection and, if so, whether it was integral to the work being performed.

While the Warner defendants argue that the Conduit was, as a matter of law, not a sharp

projection, they make no substantive arguments regarding it. Thus, they fail to establish, as a

matter of law, that the Conduit was not a sharp projection.

The First Department defines a sharp projection “to ‘include any projection that is

“sharp” in the sense that it is clearly defined or distinct’” (Kaufman v Capital One Bank [USA]

N.A., 188 AD3d 461, 462 [1st Dept 2020]; quoting Leonard v 1251 Ams. Assoc., 241 AD2d 391,

393 [1st Dept 1997]). Objects embedded into the floor that stick up have been found to be sharp

projections (Gervasi v FSP 787 Seventh LLC, 228 AD3d 459, 460 [1st Dept 2024] [“the steel pin

or nail left partially embedded in the floor was a ‘sharp projection’”]; Kaufman, 188 AD3d at

461-462 [door saddle sticking up from the surrounding concrete floor constituted a sharp

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projection]; Leonard, 241 AD2d at 393 [door stop attached to concrete floor was sharp

projection]).

Here, the Conduit was described as a piece of vertical conduit piping, jutting out of the

floor approximately two inches, and there is thus sufficient evidence demonstrating that it may

constitute a sharp projection.

Next, the moving defendants argue that the Conduit was an integral part of the work

being performed and, therefore, liability cannot attach under this provision. When a tripping

hazard, such as a sharp projection, is integral to the work, section 23-1.7(e)(1) and (2) will not

apply (see e.g. Conlon v Carnegie Hall Society, Inc., 159 AD3d 655, 655 [1st Dept

2018][dismissing claim based on violations of 23-1.7(e) where extension cord that plaintiff

tripped over was deemed integral part of work]; Solis v 32 Sixth Ave. Co. LLC, 38 AD3d 389,

390 [1st Dept 2007] [debris that the plaintiff tripped over was generated by his work and

“constituted an integral part of that work”]). However, the integral to the work defense “applies

only when the dangerous condition is inherent to the task at hand, and not . . . when a defendant

or third party’s negligence created a danger that was avoidable without obstructing the work or

imperiling the worker” (Bazdaric v Almah Partners LLC, 41 NY3d 310, 320 [2024]).

Defendants’ arguments that the Conduit was integral to the work rely on their assertion

that the presence of any safety device would have been inconsistent with plaintiff’s work of

laying down Masonite and carpet masking. However, they fail to establish that the presence of a

safety cone (or other protective device/paint markings) over the Conduit would have obstructed

plaintiff’s work such that it would have been impracticable or impossible for him to perform it.

To that end, plaintiff testified that, in the performance of his work, he could remove and

replace safety cones if necessary, and there is testimony that there were “other options that would

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have achieved the goal of protecting the worker from injuries” (Bazderic, 41 NY3d at 321) –

such as spray painting the Conduit to increase its visibility – that would not have impacted or

interfered with plaintiff’s work. In addition, Unity’s witness testified that conduit should be

covered, as uncovered conduit posed a safety hazard, while plaintiff testified that the Conduit

was never covered.

To the extent that the moving defendants argue that plaintiff was the sole proximate cause

of his accident, because he purportedly removed the safety cone from the Conduit, the record

contains no evidence supporting such a position. As noted above, plaintiff testified that there

were never safety cones over the conduits on the subject floor, and no one testified that cones

were, in fact, present, or that plaintiff removed them.

Given the foregoing, the moving defendants have failed to establish entitlement to

summary judgment dismissing the Labor Law § 241(6) claim predicated upon a violation of 12

NYCRR 23-1.7(e)(2).

C. Common-Law Negligence and Labor Law § 200 Claims (Motion Sequence Number
004, 005 and 006)

Eurotech, the Warner defendants and Unity move for summary judgment dismissing the

common-law negligence and Labor Law § 200 claims against them.

“Labor Law § 200 is a codification of the common-law duty of landowners and general

contractors to provide workers with a reasonably safe place to work” (Rodriguez v Metro.

Transportation Auth., 191 AD3d 1026 [2d Dept 2021] citing Comes v New York State Elec. &

Gas Corp., 82 NY2d 876, 877 [1993]). Labor Law § 200(1) states, in pertinent part, as follows:

All places to which this chapter applies shall be so constructed,
equipped, arranged, operated and conducted as to provide
reasonable and adequate protection to the lives, health and safety of
all persons employed therein or lawfully frequenting such places.
All machinery, equipment, and devices in such places shall be so

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placed, operated, guarded, and lighted as to provide reasonable and
adequate protection to all such persons.

There are two distinct standards applicable to section 200 cases, depending on the

situation involved: (1) when the accident is the result of the means and methods used by a

contractor to do its work, and (2) when the accident is the result of a dangerous condition that is

inherent in the premises (see McLeod v Corporation of Presiding Bishop of Church of Jesus

Christ of Latter Day Sts., 41 AD3d 796, 797-798 [2d Dept 2007]; see also Griffin v New York

City Tr. Auth., 16 AD3d 202, 202 [1st Dept 2005]).

Where a plaintiff's claims implicate the means and methods of the work, an owner or a

contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise

or control the performance of the work (Andino v Wizards Studios N. Inc., 223 AD3d 508, 509

[1st Dept 2024]; DaSilva v Toll First Ave., LLC, 199 AD3d 511, 513 [1st Dept 2021]).

Specifically, “liability can only be imposed against a party who exercises actual supervision of

the injury-producing work” (Naughton v City of New York, 94 AD3d 1, 11 [1st Dept 2012]).

Where an injury stems from a dangerous condition on the premises, an owner may be

liable in common-law negligence and under Labor Law § 200 “‘when the owner created the

dangerous condition causing an injury or when the owner failed to remedy a dangerous or

defective condition of which he or she had actual or constructive notice’” (Mendoza v Highpoint

Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011], quoting Chowdhury v Rodriguez, 57 AD3d 121,

128 [2d Dept 2008]).

Here, the accident occurred when plaintiff tripped over the uncovered and unmarked

Conduit embedded into the floor. Accordingly, the accident implicates both the means and

methods of the work (the failure to cover and/or mark the Conduit), and a dangerous condition

(the presence of the embedded Conduit itself).

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a. The Warner defendants

Here, the record establishes that the Warner defendants (as owner/tenant) did not exercise

actual supervision or control over the installation and securing of the Conduit (Naughton, 94

AD3d at 11) or over plaintiff’s work (Andino v Wizards Studios N. Inc., 223 AD3d 508, 509 [1st

Dept 2024] [dismissing common-law and section 200 claims where “there is no evidence that

(the moving defendants) actually exercised control over the means and methods of plaintiff’s

work”]). Plaintiff does cite to any evidence that would give rise to a question of fact on this

issue.

As to the hazardous condition analysis, the Warner defendants did not create the subject

condition, nor is there any evidence that they had actual knowledge of the condition. Further, the

Warner defendants argue that they also did not have constructive notice of any hazard.

“A defendant is charged with constructive notice of a defective condition when the

condition is visible, apparent, and exists for a sufficient length of time prior to the happening of

an accident to permit the defendant to discover and remedy it” (Lopez v Dagan, 98 AD3d 436,

438 [1st Dept 2012]). To establish that a condition did not exist for a sufficient length of time, a

moving defendant must submit evidence of “when the site had last been inspected before the

accident” (Pereira v New School, 148 AD3d 410, 413 [1st Dept 2017]; Padilla v Touro Coll.

Univ. Sys., 204 AD3d 415, 415-416 [1st Dept 2022] [denying the defendant’s summary

judgment motion on the Labor Law § 200 claim where no evidence was provided of “the last

time the site was inspected”]).

The Warner defendants fail to submit evidence of the last time the accident location was

inspected before plaintiff’s accident. Moreover, the Warner defendants’ argument that

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constructive notice cannot be established because the Conduit was a latent defect that would not

have been discoverable upon reasonable inspection is unpersuasive.

“In moving for summary judgment on the ground that [a] defect was latent, a defendant

must establish, prima facie, that the defect was indeed latent – i.e. that it was not visible or

apparent and would not have been discoverable upon a reasonable inspection” (Doherty v 730

Fifth Upper, LLC, 227 AD3d 606, 608 [1st Dept 2024] [internal quotation marks and citations

omitted]). Here, the Warner defendants provide no proof that the Conduit would not have been

discoverable upon reasonable inspection.

Given the foregoing, the Warner defendants have not established a lack of constructive

notice and are not entitled to summary judgment dismissing the common-law negligence and

Labor Law § 200 claims against them.

b. Eurotech

Eurotech establishes that it was a carpentry contractor for the Project, and as mentioned

previously, testimony further establishes that Eurotech did not install conduit. Similarly, the

record is silent with respect to whether Eurotech created or had any knowledge (actual or

constructive) of any hazard. Further, there is no evidence establishing that Eurotech had any

duty to protect with respect to the Conduit or the accident location, such that it could be found

negligent for failing to cover it.

Accordingly, Eurotech is entitled to summary judgment dismissing the common-law

negligence and Labor Law § 200 claims against it.

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c. Unity

As to Unity, there is testimony supporting that it was the entity responsible for the Conduit, as

well as testimony raising questions as to whether the Conduit was the type of conduit that Unity

installed.

Given the foregoing conflicting testimony, there remain questions of fact as to whether

Unity was responsible for securing the subject Conduit, and whether it created the condition that

caused the accident. Accordingly, Unity is not entitled to summary judgment dismissing the

common-law negligence and Labor Law § 200 claims against it.

D. Second Third-Party Contractual Indemnification Claim Against Unity (Motion
Sequence Number 005)

The Warner defendants move for summary judgment in their favor on their second third-

party contractual indemnification claim against Unity.

“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., 70 NY2d

774, 777 [1987], quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]; see

also Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486, 490 [2004]).

“In contractual indemnification, the one seeking indemnity need only establish that it was

free from any negligence and was held liable solely by virtue of the statutory liability” (Correia v

Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]; see also Murphy v WFP 245 Park

Co., L.P., 8 AD3d 161, 162 [1st Dept 2004]). Unless the indemnification clause explicitly

requires a finding of negligence on behalf of the indemnitor, “[w]hether or not the proposed

indemnitor was negligent is a non-issue and irrelevant” (Correia, 259 AD2d at 65).

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Structure and Unity entered into a subcontract agreement, dated November 3, 2017

(NYSCEF Doc. No. 167) (the Structure/Unity Agreement), which contains an indemnification

provision that provides:

To the fullest extent by Law, [Unity] will indemnify and hold
harmless [Structure], the owner of the project, the owner of the
property where the job/project is located, and all parties required to
be indemnified by the prime contract entered into by [Structure] in
connection with the job/project work . . . arising in whole or in part
and in any manner from the acts, omissions, breach or default of
[Unity] . . . in connection with the performance of any work by
[Unity].

(id. ⁋ 11.2).

The Agreement also includes a scope of work provision which references “conduit” and

“stub-ups,” and specifically mentions that Unity “shall furnish and install all conduits and

sleeves dedicated for each fitout floor from the connection point that has been previously

installed” (id. at 3, 5).

Here, the testimony regarding Unity’s work at the Project is conflicting. While plaintiff

and Pervan testified that Unity was likely the entity responsible for the Conduit, they were not

certain. Similarly, while the Agreement includes the installation of conduits as Unity’s

responsibility, no one definitively testified that the subject Conduit was the type of conduit that

fell within Unity’s scope of work, and Unity’s witness testified that it did not look like the type

of conduit Unity typically installed.

Given the foregoing, there remains an unresolved question of fact as to whether the

Conduit fell within Unity’s scope of work and, therefore, whether the accident arose “in

connection with the performance” of Unity’s work. Accordingly, the Warner defendants are not

entitled to summary judgment in their favor on their contractual indemnification claim against

Unity.

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E. Second Third-Party Contractual Indemnification Claim Against Forest (Motion
Sequence Number 003)

Forest moves for summary judgment dismissing the Warner defendants’ contractual

indemnification claim as against it.

Forest and Structure entered into a “Master Subcontract Agreement”, dated December 17,

2015 (but countersigned by Forest on January 19, 2016) (NYSCEF Doc. No. 116) (the

Forest/Structure Master Agreement). Pursuant to the Forest/Structure Agreement, Forest and

Structure entered into a subcontractor agreement for the Project, dated May 16, 2017 (id. p 2-7)

(the Forest/Structure Agreement). Both agreements have indemnification provisions, but the

active provision is found in the master agreement (Forest/Structure Agreement, ⁋ 11).

The Forest/Structure Master Agreement’s indemnification provision provides the

following:

To the fullest extent permitted by law, [Forest] shall indemnify,
defend and hold harmless [Structure], the Owner, the Architect and
all of their parents, subsidiaries, affiliates, agents, officers and
employees from and against all claims . . . arising out of, or
resulting from the performance, or failure in performance, of
[Forest’s] Work and obligations . . . [which] is caused in whole or
in part by any acts, omissions or negligence of [Forest] or anyone
directly or indirectly employed by [Forest] . . .

(NYSCEF Doc. No. 116).

Here, Forest argues that its contractual scope of work does not include installing the type

of conduit that caused plaintiff’s accident, relying on its witness’s testimony. In addition, no one

testified that Forest was responsible for installing or securing the subject conduit, and no one

identifies the installation and securing of such conduit as within Forest’s scope of work.

Absent evidence establishing that Forest was responsible for the installation or securing

of the subject Conduit, the accident did not “aris[e] out of, or result[] from the performance, or

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failure in performance, of [Forest’s] Work and obligations” (id.) (see DeGidio v City of New

York, 176 AD3d 452, 454 [1st Dept 2019] [dismissing contractual indemnification claim where

subcontractor “played no role” in “maintenance or operation” of accident-causing object]).

Accordingly, Forest is entitled to summary judgment dismissing the contractual indemnification

claim against it.

F. The Warner Defendants’ Second Third-Party Common-Law Indemnification and
Contribution Claims Against Forest (Motion Sequence Number 003)

Forest moves for summary judgment dismissing the second third-party common-law

indemnification and contribution claims against it.

“To establish a claim for common-law indemnification, ‘the one seeking indemnity must

prove not only that it was not guilty of any negligence beyond the statutory liability but must

also prove that the proposed indemnitor was guilty of some negligence that contributed to the

causation of the accident’” (Pena v Intergate Manhattan LLC, 194 AD3d 576, 578 [1st Dept

2021], quoting Correia, 259 AD2d at 65).

“Contribution is available where two or more tortfeasors combine to cause an injury and

is determined in accordance with the relative culpability of each such person” (Godoy v

Abamaster of Miami, 302 AD2d 57, 61 [2d Dept 2003] [internal quotation marks and citations

omitted]).

As discussed above, as there is no testimony or evidence that establishes that Forest had a

duty of care with respect to the subject condition, or the securing thereof, or that it breached any

duty that caused plaintiff’s accident, Forest is entitled to summary judgment dismissing the

Warner defendants’ common-law indemnification and contribution claims against it.

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G. The Warner Defendants’ Second Third-Party Breach of Contract for the Failure to
Procure Insurance Claim Against Forest (Motion Sequence Number 003)

Forest moves for summary judgment dismissing the breach of contract for the failure to

procure insurance claim brought by the Warner defendants. As the Warner defendants do not

oppose dismissal of this claim, it is dismissed.

H. Unity and Eurotech’s Cross-claims Against Forest (Motion Sequence Number 003)

Forest moves for summary judgment dismissing the cross-claims against it. As Eurotech

and Unity do not oppose this part of Forest’s motion (NYSCEF Doc. No. 122), the cross-claims

are dismissed.

The parties’ remaining arguments have been considered and were unavailing.

III. CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED that the motion of second third-party defendant Forest Electric Corp.

(motion sequence number 003), pursuant to CPLR 3212, for summary judgment dismissing the

second third-party complaint and all cross-claims against it is granted, and the second third-party

complaint is severed and dismissed as against Forest Electric Corp.; and it is further

ORDERED that the motion of defendant Eurotech Construction Corp. (Eurotech)

(motion sequence number 004), pursuant to CPLR 3212, for summary judgment dismissing the

complaint as against it is granted, and the complaint is dismissed as against Eurotech; and it is

further

ORDERED that the branch of the motion of defendant ERY Tenant, LLC, and

defendant/second third-party plaintiffs Warner Media, LLC (Warner) and TW NY Properties,

LLC (TW) (together the Warner defendants) (motion sequence number 005), pursuant to CPLR

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3212, for summary judgment dismissing the complaint as against ERY, is granted and the

complaint is severed and dismissed as against ERY; and it is further

ORDERED that the branch of the Warner defendants’ motion, pursuant to CPLR 3212,

for summary judgment dismissing the complaint as against them, and for summary judgment in

their favor on their contractual indemnification claims against defendant/second third-party

defendant Unity Electric Co. Inc. (Unity) is granted to the extent that the Labor Law § 240(1)

claim and all Labor Law § 241(6) claims except for the claim predicated upon a violation of

Industrial Code 12 NYCRR 23-1.7(e)(2) are dismissed as to the Warner defendants; and the

motion is otherwise denied; and it is further

ORDERED that Unity’s motion (motion sequence number 006), pursuant to CPLR

3212, for summary judgment dismissing the complaint as against it is granted to the extent that

the Labor Law § 240(1) claim and all Labor Law § 241(6) claims except for the claim predicated

upon a violation of Industrial Code 12 NYCRR 23-1.7(e)(2) are dismissed as to Unity; and the

motion is otherwise denied.

4/21/25
DATE DAVID B. COHEN, 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10851091. Public record. Not legal advice.