Martinez v. 1380 Hous. Dev. Fund Corp.

Martinez v 1380 Hous. Dev. Fund Corp. 2024 NY Slip Op 30805(U) March 13, 2024 Supreme Court, New York County Docket Number: Index No. 158506/2016 Judge: Mary V. Rosado 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.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ..·-----------~.... _____________ -----------~~-------------------... ·---X INDEX NO. 158506/2016 JOSHUA MARTI NEZ, MOTION DA. TE 0112612023 Plait1tiff, MOTION SEQ. NO. 006 - V -

1380 HOUSING DEVELOPMENT FUND CORPORATlON, WINNRESIDENTIAL (NY) LLC,WFHA KING BOULEVARD l.P., INFINITI ESC PLUMBING CORP .. ERIN DECtSION + ORDER ON CONSTRUCTION ANO DEVELOPMENT CO., INC .. EASCO MOTION BOILER CORP.

Defendant. -------~- -.-~---------------------- ·-· ---------------- ---~-... ·-- ---- ----------X

The following e-frled documents, listed by NYSCEF document number (Motion 006} 1, 49, 54, 58.178, 179. 180, 181. 182, 183. 184, 18S. 186, 187. 188. 189. 190, 191. 192, 193, 194. 195. 196. 197, 198, 199, 200.201,202. 203,209,210,233,234,235,236,237.238, 244,248,249,250 251. 260.261, 262,263, 264,265,266,267,268,269.270, 271,272,273,274,275,276,291,297.298. 299. 306,312.313, 318 were read on thrs motion to/for _ _ _ _ _ _JUDC3_M ENT - SUMM~RY _ _ __

Upon the foregoing dornments, and after oral argument which took place on August 29,

2023 ,,,,,.ith Xavier Johnson, Esq. appearing for Plaintiff Joshua Martinez ("'Plaintiff'), Peter C.

Lucas, Lsq. appearing for Lkfcndant Frin Construction & Development Co., Inc. CErin"}, and

Courtney Swartz appearing for Defendants/Third-Party Plaintiffs 1380 Housing Development

Fund Corporation (" 1380"), W FHA King Boulevard LP. {"WFI IA''), and Winnrcsidential (NY)

I J .C ("Wiilll·')(togcther lhe ii 13 80 Defendants")( 1380 Defendants and .Erin hcrcinafo.::r referred lo

collectively as •·Dcfcndanb"), the 1380 Dcfondanls' motion for an Order granting summary

jl1dgmcnl in favor of 1380 Dt:tendants, (1) dismissing Plaintiff Joshua Martinez)s ("'Plaintifr')

common law negligence claims, Labor Law § 200 clai rn und Labor Law 241 (6) claims~ (2) granting

the 1380 Dckndants summary judgment on their cwss-cluim for contractual und/or common law

indcmni lirntion ond for breach of contract as againsl Defendant Erin Constrnction Dcvdopmenl

1555061"2{116 MARTINEZ, JOSHUA vs. 1380 HOUSING DEVELOPMENT P.ige 1 of 1.2 Motion No, 006

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Co., Inc. ("Erjn"}: and (3) dismissing Lrin' ':> cross-claims for common law indemnification and

contribution against the 1380 Dcfcn<lanls. is granted in part and denied in part. Plaintiffs crns':>-

motion for an Order granting Plaintiff summary judgment against the t 380 Ocfcnda.nls and

Dcfrrn.hmt Erin (together ,iDcfcndanls'') on Plaintifr~ Labor Law 240(1) dajm is denied.

¹.- Background :md Proc.edurar Histoff

·rhc procedural and factual background of this case was recited in the Decision and. Oruer

of this Court dated March 7, 2024 (NYSCEf Doc. 3 l 8) which is hereby incorporated by reference.

For c.::onveniencc, a synopsis of the proccduml hislory relevant to this motion is provided herein.

Plairuiff c:ommenced the within Labor Law action by filing a Summons and Verified

Complaint on October 10, 2016 (NYSCEF Do~. l ). Subsequently~ Plaintiff filed an Amended

Complaint on February 12. 2018 aUeging violations of Lahor Lmv Sections 240(?), 241(6), and

200 (NYSCEf Doc. 49).

On April 24, 2018, Erin filed a. V~rified Amended Answer asserting cross-claim~ against

the 1380 Defendants, !n fini Li Esc Plumhing Corp., \Vindsor \kchanical Corporation (''Windsor''),

EASCO Boiler Corp and Erin for contractual and commo11-law indemnification and breach of

contract (N YSCLF Doc. 54). 1

On June t3, 2018, the 1380 Defend(mts filed a Vcrifil!d Answer asserting cross-claims

again~l Co-Defendants Infinity, Windsor, Erin, ar1d Easco for contractual and common-law

indemnification and contribution~ and breach of contract (:--.iYSCEF Doc. 5 8 ).

1 Plaintiff,~ daim~ were discontinued as agatnst Defendant Windsor by Stipulation of Discontinuance datt:d March l S, 2017 (NYSCFF Doc. 209), Plaintiff's cl~ims we-re siibsequenrly di~conlinucrl. as against Defcndanb [nlinity and Easco pursuant 10 Slipulatiom of Discontinuam.:t: J~tcd October 23. 2020 and April 20, 2020, respectively (NYSC:EF Doc. 210).

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in response to I.he 1380 lJcfr:ndants· motion, Plaintiff "agree[dJ to dis.cnnlinue the common law

and labor l ,aw § 200 claims as against the 1380 fDefendants r {NYSCFF Doc. 248 at ' 7 ). Accordingly, Plaintiffs T.abor Law 200 and common law negligence claims are dismissed

as against lhe 1380 Defendants.

13. The 1380 Defendant.'>· Morion for S urnmary Judgment Against Defendant Erin on their Cross-Claims for Contractual/Common Law lndcmnilication and Bread, of Contract Clai_m.s. is Denied

Erin failed to submit any opposition to the 1380 Defendant'. molion for summMy jll<lgrn~nt

However. the First Department has held that "where a party fails to submit opposition to a motion

for summary judgment, the c:ourt is required to "a:;;sess whether the moving party has fu.l fi.Hed i ls

burden of demonstrating that there i-; no genuine issue of material fact and its entitlement to

judgment as a matter of law" (Ramos v City ofNew York, 61 AD3d 51, 5711 st Dept 2009] quoting

VJ. Teddy Bear Co. v 1-800 BEAH.GRAA4 Co., 373 F3d 241, 244 12d Cir 2004 ]).

1. The 1380 Oef"cn<lants · Motion for Summary Judgment Against Defendant Erin on th~ir Cross-Claims for Common Law Indcmnificatiun i.".> Denied

11 is wdl established that a daim for common law indemnification should be di;(.:.missed

where the defendant "was not actively at fault in bringing about tht dmnagcs caused to

plaintiff... and it did not exercise actual supervision or contrnl over the damage producing \vork"

(87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540, 542 [1st Ucpt 20l4J). As slated in this

Court's Decision and Order on Motion Sequence 5 dated March 7, 2024, 'lmatcriaJ questions of

fact remain regarding whether or not Plain ti ff s injury causing work was within the scope of the

c:himney instaUation work designated to Windsor by Erin, and thus, whether Erin possessed the

requisite authority to control the injury causing activity" (NYSCEF Doc. 318 at 8). Accordingly,

the 13 80 Defendant:,; motion for srnnmary judgment against Erin on their cross-claim for common

Ja\v jndcmnificalion is denied.

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-11. The l.180 Defendants' Motion for Summary Judgment Agains.t Defondanl Erin on !heir Cross-Uaim for Contrn(j\1fd lndcmnification is D~nic<l

PreHminarHy. the l:\ 80 De f~ridan Ls' motion for summary judgment against lirin on the

1380 Defendants.• cross~claims for contractual indemnification is not opposed. Erin failed Lo

suhmit any papers in opposition to the 1J 80 Defendants: motion. and although Plaintiff submitted

papers in partial opposition to the l 3 80 Defendants' motion, Plaintiff expfa::itly slall!s that

"plaintiff takes no position concerning the contractual claims and the obligation:'i to defend and

indemnity~· (I\~YSCEf Doc. 248 at if 5).

The Court or Appeals ha..<; hel<l lhat "la J part)' is enlitled to full contractual indemnification

provided that the 'intention to indemnify can be dearly implied from the language and purposes

of the entire agreement and the surrounding facts and circumstances:" (Drze.rinski v Atlantic

Scaffold & ladder Co., 70 l\Y2d 774. 777 fl 987] quoting lvfargolin v N,n,r York life Ins. Co., 32

NY2d 149, 153 f19731).

Herc, the 13 80 Defendants contend that they are entitled to contractual indemni n~ation

from Erin pursuanl lo a Standard Form of Agreement Bcnvccn Owner and Contractor (the

"Contracf} executed by Wf'IIA as Owner and Erin (l.S Contra(;lor (NYSCFF Dot. 187 at 66).

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With respect to indcmnirication, Section 3.18. I of the Contrad slates that:

To the fullest extent permitted by law the Contractor !Erin Constrnction j shall indemnit\ and hold ham1!ess the Owner ! l .180 Defendants J, Architect. Architect's consultants. and agents and cmploye~s of any of them from and against claims) damages, losses. and expenses. incl u<ling: but not Jimited to attorneys' fees, arising out of or resulting !rom pel'formancc of the Work, provided that such claim~ damage, !oss or expense i:'i attrihutable to bodily injury) sickness, disease or death. or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the neg] igent acts or omissions or the Contractor, a Subcontractor, anyone d[rectly nr indirectly employed by them or anyone for whose ads tli~y may he ljable. regardless of whether or not ~u(;h claim, damage, Ioss or expense i~ eause;:<l in part by a party indemnified hereunder (NYSCF.F Doc. 187 at 43 ).

The 1380 Defendants conlend that the indemnification prov1s10n m the Contract is

triggered because Plaintiffs incident arose out of the \vnrk that Erin subcontracted out to Windsor,

and Plaintiffs injuries \Vere due to lhc nl!gligence of'Windsor ()JYSCLJ: Doc. l 8l at 8). However,

as outlined in the Court's 11ecision and Order on Motion Sequence 5 {NYSCFF Doc. 318), material

questions of fact remain regarding v,,:bcthcr ()lainti rr s injury c.::au\ir1g work was within the scope of

the chimney installation work designated to Windsor by Lrin. Accordingly, the l.'180 Defendants

motion for summary judgment against Erin on their cross-claim for contractuaJ indemnification is

denied.

m. lhc 1380 Defendants Motion for Summary Judgment Against Erin on the 1380 pcfr:ndants' Cross-Claim ('or Rreach of Contract is Denied

It is well cst.ahlished that "[a] party moving for summary judgment on its daim for failure

to procure insurnnce meets its primo fhcie bur<lcn hy estahlishing that a contract provision

rey_uiring the procurement of insurance \Vas not complied with .... The burden then shifts to the

opposing pmiy, \vho may raise an issue of fact by tcmkring the prornred insurance policy in

opposition to the motion" (Be.nedeuo v Hyau Corp., 203 AD3d 505, 506 [1st Dept 20221).

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Pursuant to the Section I 1.1.1 of the Contract hetween fain and the Wfl IA, Erin was

ohhg'1ted lo procure insurance for the henefi l of the 1380 Defendants (NY SCFF Doc. 187 at 5 5).

Specifically) the Contract states that:

[T]hc Contractor :'ihall pun.::hase from and maintain in a company or companie:;; lavd'ul ly authori z~d lo do business jn the _jurisdiction in whic:h th~ Proj cct is located such insurance as \Vi ll protect lhe Contractor from claims set forth below which muy arist out of or res.ult from th~ Contrw:tor's operations and completed operations under the Contract and for which the Contractor may· he legally liable, v,,.hether such operations be by the Contractor or hy a Subcontractor or by anyone directly or in<lireclly ~mployed by any of them. or by anyone for who_'je a.cl::; any of them may be liable (>JYSCEF Do~. 187 al 55).

The Certificate of Insurance issued to Erin indicates that WFHA is named as an addi1ional insured

under Lrin',; applic.abk policy (NYSCF.F Doc. 187 '1l 83). Despite this, the I 380 Defendants

contend that Erin "'ha'j failed to defend and provide additional insured coverage to the 1380

Defendants.'' in breach of the Contract (NYSCFF Doc. 18 l al 1 l ).

The First Department has held that an insmer':'i r~fu~al lo indemnify or lend~r coverage i::;

notprnofora failure lo procure insurance (sec Sicilia .., Cityof}./ew York, 127 AD3d 628 fist Dept

2015]). As the 1380 Defendants' claim for brc-ach of contract against Erin is soldy hascd on Erin's

alleged ··failurcto defend and provide addjtional insured t.:overage," lhe l .'180 Dt:f"endants have not

met their prima facie burden of estabJishing that a contract provision requiring the procurement of

insurance was not l:omplie<l wiLh. Ac:cordingly, Lh~ 1380 Defend(mts' motion for summary

judgmen1 against Erin on the 13 80 De fondants cross-cJaim for breach of contract for failure to

procure insurance, is denied.

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C. The l ~ 80 Defendants· Motion for Summary J uJgment Dismjssing Erin's Cross•Claims for Common Law lnJemnificati_on_and ConLribution is Denied

The Fir;(;t Department has he!J th(1l a defendant is entitled to summary judgment dismissing

u cause of action for common law indcmni f1l:ation when either 1) the parly seeking indemnification

was itseff negligent, or 2} the Jc(eridant is free from negligence (Correia v Pnfes.\·ional Data

:Hgmf., Inc., 259 AD2d 60, 65 [1st Dept 1999J (holding that "the one seeking indemnity must

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

prove lhat the proposed indcmnitor was guilty of .some negligcm:e that contributed to the causation

of the accident"). Further, the Court of Appeals has held that '"[a] claim for contribution exists only

when L\YO or more tort-fcasors ~hare in responsibiJity for an injury, in violation of dutjcs they

rcspcctivdy owed to the injured person"' (Smith l' Sapienza, 52 NY2d 82) 87 l 1981 J).

Herc, the ! 3 80 Defendants argue that they are entitled to dismissal of Erin's cross-claims

for common law indemnification and nmtrihution because •·[rJhcre is no active negligence on the

parl of the 1380 Defendants, land] Frin Cons.1ruction \Vas demonstrably negligent'' (KYSCEf Doc.

181 at 12).

This Court's Dccisior1 and Order on Motion Sequence 005 {N YSCEF Dol: . .'.\ t R) denied

Plaintiffs cro;(;s-molion for summary judgment against the l 380 Der·enJants for violation of their

statutory duties imposed by Lahor T,aw 240(1) on the ground that material question~ of fact remain

regarding lhe source of Plaintiffs injuries (NYSCEF Drn;. 318 at 10-12). Without a resolution of

this factual issue. the 13 80 Oe fendants cannot sufficiently demon~trate that they are free from

ncglig~nce. As such, the 1380 Defondanls motion for summary judgment dismissing Erin's cross-

dairn-:; for common law indemnification and contribution is denied.

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D. Plaintitrs Crn~s-Motion for an Order Granting Plaintiff Summary Judgment Against Defondanls on Plaintiffs Lab9.r_ Law 240(.lJ_Claim i~ Denied

CPLR }212(a) requires that 'iummary judgment motion~ ·'be made no later than one

hundred twenty Jays after lhe fi ljng of the note of issue, except with leave of the court on good

cause ~hown." The Court of Appeals has held tha1 ··CPLI{ 32 l 2(a) rcquin.:::s a shm,ving o!" good

cause for the delay in making I.he mo lion - a ~atisJactory explunallon for the untimeliness - rather

than '>imply pern1iuing meritorious, nonprejudiciaJ filings, however tardy ... No excuse at all. or a

p erfunclory excuse, cannot be •good ca u sc' ,. ( !Jr ill v City of New York, 2 N Y3 d 648) 65 2 l2 0 04 J). . ~ .. Here, the 120-day deadline for the filing of summary judgment motions was January 27,

2023) accruing from the lifting of the stay un the note of issue which occurred automatically on

(kwher 1, 2022, pursuant to the So-Ordered Stipulation filed August 22, 2022 (NYSCEf Doc.

175). Plaintiff did not file their cross-motion seeking summary judgment until February 14~ 2023

(NYSCEF Doc. 234}. Further. Plaintiff ha;(; foiled io provide the Court \vith any explanation for

their untimeliness in bringing his cross-motion. As Plaintiffs cross-motion for summary judgment

was not timeJy filed pursuant to CPLR 3212(a), and Plaintiff failed to provide the Court \Vith any

~xplunation for the untimeliness, Plaintiffs cross-motion for an Ord cl' Granting Plaintiff summary

judgment against Defendants on Plain ti fr s I .ahor T.aw 240( 1) claim, is denied.

Acc:ordingly, il is hereby,

ORDER.ED that Ocfcndants/Third~Party Plaintiffs 1380 Housing Development Fund

Corporation, WFHA King Roulevard LP., and Winnresidential ()iY) LLCs motion for an Order

granting summary judgment again.st Plainti IT Joshua i\-faninez dismissing Plaintiffs common law

negligence and Labor Law~ 200 claim, is granted; and it is further

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ORDERED that Defendants/Third-Party Plaintiffs 1380 Housing Development 1.-und

Corporation, WFHA King Boulevard LP., and Winnresidential (NY) LLC's motion for an Order

granting, summary judgment against Plaintiff Joshua Martinez dismissing PJaintiff s Labor Law

24 l (6) claim, is denied as moot; an<l it is further

ORDER~D that Defendants/Third-Party Plaintiffs 1380 Housing Development Fund

Corporation, WHL\ King Boulevard LP., and Winnre~i<lenlial (NY) LLC's motion for an Order

grnnting summary j uJgmenl on their c:ross-clairns for contractual and,.-or common law

indi.;mnification and breach of contract as against Defendant Erin Construction Development Co.•

Inc. i~ denied; and it i~ further

ORDERED that Defendants/Third-Party Plaintiffs 1380 Housing Development Fund

Corporation, \VFl·lA King Boulevard LP .• and \Vinnrcstdcntial (J\Y) Li.C's motion for summary

judgment dismissing Defendant Erin Construction Development Co., Inc.· s cross-claims for

common law indemnification and contribution, is denied~ and i L is (urther

ORDERED that Plaintiff Joshua Martinez's cross-motion for an Order granting summmy

judgment in Plaintiffs favor and against Defendants/Third-Party Plaintiffs 1380 Housing

Development Fund Corporation) WFHA King Houkvard I.. P ., Winnrcsidential (NY) LI .C) and

Erin Conslruclion Development Co. on PJaintiif s I .abor J,aw 240(1) claim, is denied~ and it is

farther

ORDERED that on or before April 2, 2024, the remaining parties are directed to submit a

proposed Stanis Conference Order to the Court via e-mail to SFC-Part33-Clcrk<cJ::nycourts.gov. If

the parties arc unable 10 agree to a proposed Starns Conference Order. the parties arc directed to

appear for an in-person status conference with the Coun in room 442. 60 Centre Street, on April

3, 2024 ad 9:30 a.m.~ and it is further

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ORDERED that within ten (10) days of entry, counsel for Movant shall senic a ~opy of

thi S, De(;ision and Or<ler with no lice or entry upon all parties to this action; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

"Ibis constitutes the Decision and Order of the Court.

3/13/2024 DATE HON. ARY V. ROSADO, J.S.C.

~ CHECK ONE: CASE DISPOSED NON -Fl N.A L CllS POSITION

GRANT ED □ DENIED GRANTrn IN PART □ OTHER APPL.ICb. Tl ON: SETTLE 0R □ ER SUBMIT ORDER

CHi=Cl'i; II' AP PRO PrUA Te: INC L.U D 1;:S TRANSFERIREASS5GN FIDUCIARY AP PO INT M ENT □ REfE.RENCE

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Footnotes

[1] 5S506J201-6 MA RT INEZ, JOSHUA vs. 13-80 HOUSING D!;;VE LO PME NT Pag~ 2 of 12 flll-otion No. 006 [* 2] 2 of 12 On January 26. 2023 th~ 1380 lJcfondants brought the instanl motion for an Order granting summary judgment in fovor of the l 380 Defendants (1) dismis~ing Plaintiff's claims under Lahor Luw 200 and 241 (6)\ as \vell as common la\,: negligence a~ against the 1380 Defonda:nts; (2) granting the 13 80 Defendants summary judgment against De fondant Erin on their cross-claims for contractual and/or common law indemnification and breach of c:ont.ract; and (3) dismissing Defendant Erin's cross-claims as against the l 3~0 Defendants (l\-YSCEF Ooc. ! 78). On f ebruary 14, 2023, Plaintiff rik:J u cross-motion f<n un Order granting Plaintjff summary judgment against lhe Defendants on their Labor I .aw 240( 1) claims (NYSCEF Ooc. 234). II. Discussion Summary judgment is a drastic remedy~ tu be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact.)• (Vega v Restani Const. Corp., Ul NYJd 499~ 50312012]). The moving party's '!burden is a heavy one and on a motion for summary judgment, facts. must be vic\ved in the light most favorable to the non- moving party.,: (Jacobsen v New York City Jleallh and Hmps. Corp., 22 >-iY3d 824. 833 l2014]). One~ this sho\ving is made, the hurdcn shifts to the party opposing the motion to produce cvidcntiary pwof, in admissih le r·orm, sufficient 10 cslablish the existence or· material issues or Jic:t w'hich require a trial. (See e.g., Zuckerman v City of l\.'ew York, 49 NY2d 557, 562 [19801; Pemherton v NeH' York City Tr. Aufh, 304 i\D2d 340, 342 [1st Dcpl 2003J). T\.lere conclusion;,;; of law or fact are insufficient to defeat a motion for summary j udgmcnt (see Banco Popular Nonh Am. v Vicrory "J'axi ;\4:,;;t .. Inc., 1 :--JYJd 38 l !2004]). I The remainder ofthis page is intenrtonally le.ft hhmk] 2 Plaimifl,s Labor L.-iw 2,i l (6) claims were previously dismissed pursuant to this Court's Decision and Order on Motion Sc4urnce 5 dated March 7, 2024 (?-.1YSCH. Doc. 318). As such, the 1.38U Defendants' motion to dis.mis.~ ' !-']aintiffs Labor Law 241(6) claims. c~ denied as moot. MARTINEZ, JOSHUA vs. 1380 I-IOUSIJIIG DEVELOPMENT

[158] 5-0 6./2016 P.-ge 3 of 12 Motion No. 00fi [* 3] 3 of 12 A Th~ 13 80 Defendants' Motion for Summury Judgment Oismissing Plaintiffs Common Law KcQ.]luence and Labor I .aw '}00 Claim~ as Against the 1380 Dcfc:ndants 1~ Grwiled Section 200 of the ! ,abor Law "is a coc.ll fication of the common-law duty imposed upon an OVl-'11Cr or general contractor to provide construction slte workers with a safe place to v.·ork.'~ (Comes v ;v, Y. .\'rare f..'lec. & Gas Corp., 82 NY2d 876, 877 [1993"1). 11te First Department has held thal to prevail on a claim pursuant to Labor Law 200 or common ]a\V negligence a ..plaintiff must dcmomtratc that defendant had the authority to ~contro] the activity bringing about the injury to enable it lo avoid or correct an unsafe con<litlon" (Singh v Block Diamonds LLC, 24 AD3d 138, 140 [P' Dept 20051 citing (Ri:::zuto 1' LA. Wenger Contr. Co. 92 NY2d 343, 3 52 [19981). Further: i1 is well established that on a motion for :-1ummary j uJgment, a plaintiff ahandoris (1 claim by failing to address in lts opposjtion papers the defendant's arguments in support of its motion Sl:cking dismissal of that claim (sec Jamie Ng v A/YU hmgune J\rfed Crr., 157 AD3d 549, 550 [ht Dept 2018] holding that "PlaintifPs fallure to oppose so much of the motion as sought dismissal of the lack ol" inl<mned Lonsent claim, constituted an abandonment of the claim") (see also Saidin v .?1/egron, 136 A.D3d 458,459 j 1st Dept 2016_1 holding that "'Plaintjff abandoned his claim against the individual police o f'licer by failing to oppose that part of the motion to dismiss the daim us against him'). Here, the 1380 Defendants contend that they are entitJed to summary judgment dismissing l)bintifl~ _., 1abor law 200 and common law negligence claims "sine~ there is no evidence and no issues of fact that the 13 80 Defendants did not supen:ise, direct, or control the means and methods of the plaintiffs work. nor did the 1380 Dckndanlscause or n~ale the alleged defective condition" (NYSCEF Doc. 180 at ii 57). Plaintiff declined to oppose the portion of 1380 Defendants' motion ~eeking dismissal of Plaintiffs claim for ~omrn0n iaw negJigence (]\YSCEF Doc. 260). Further, 1585061201-Ei MARTINEZ, JOSHUA v5. 1 J80 HOUSING DEVELOPMENT Page 4of 12 Motion No. 006 [* 4] 4 of 12