Ledonne v. 450 Partners LLC

Ledonne v 450 Partners LLC 2024 NY Slip Op 31359(U) April 18, 2024 Supreme Court, New York County Docket Number: Index No. 152279/2017 Judge: Alexander M. Tisch 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.

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ALEXANDER M. TISCH PART 18 Justice ---------------------------------------------------------------------------------X INDEX NO. 152279/2017 ROBERT LEDONNE, 02/28/2023, Plaintiff, 02/28/2023, MOTION DATE 02/28/2023 -v- MOTION SEQ. NO. 006 007 008 450 PARTNERS LLC, TISHMAN CONSTRUCTION CORP., LIMITED INTERIORS GROUP, BROOKFIELD PROPERTIES DEVELOPER LLC, BROOKFIELD FINANCIAL PROPERTIES LP, BROOKFIELD PROPERTIES W 33RD GP LLC, BROOKFIELD DECISION + ORDER ON PROPERTIES W 33RD HOLDINGS LLC, BROOFIELD MOTION PROPERTIES W 33RD CO. L.P.,

Defendants. --------------------------------------------------------------------------------X

LIMITED INTERIORS GROUP Third-Party Index No. 595434/2018 Plaintiff,

-against-

CONSENTINI ASSOCIATES, INC.

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

The following e-filed documents, listed by NYSCEF document number (Motion 006) 187, 188, 189, 190, 191, 192,193,194, 195, 196, 197, 198,199,200,201,202,203,204,205,206,209,210,213,216,219, 220,221,222,223,224,225,245,246,251,252,254,256,259,260,265,266,267,270 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)

The following e-filed documents, listed by NYSCEF document number (Motion 007) 155, 156, 157, 158, 159,160,161, 162, 163,164,165, 166, 167,168,169,170,207,211,214,217,226,227,228,229,230, 231,232,247,248,255,257,261,262,268 were read on this motion to/for JUDGMENT-SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 008) 171, 172, 173, 174, 175,176,177,178,179,180,181,182,183, 184, 185,186,208,212,215,218,233,234,235,236,237, 238,239,240,241,242,243,244,249,250,253,258,263,264,269 were read on this motion to/for JUDGMENT-SUMMARY

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 1 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

hired Tishman, pursuant to a construction management agreement, to perform exterior and

interior renovations of the Premises, including some renovations of the third floor (the Tishman

Project). Tishman hired non-party Cosentini Associates (Cosentini) to provide electrical design

services regarding the removal and installation of electrical service equipment at the Premises,

including on the third floor. 1 Plaintiff was employed by Cosintini.

Plaintiff's Deposition Testimony

Plaintiff testified that on the day of the accident, he was a field engineer for Cosentini.

His duties included "surveying a new project, seeing what exists in the field ... mostly

coordination when there's a job going up" (plaintiffs tr at 9; NYSCEF Doc. No. 195).

Surveying a project entails inspecting a property in order to prepare electrical or plumbing

drawings for the contractor in advance of construction work (id. at 10). Prior to the accident,

plaintiff had been to the Premises four or five times, at Tishman's request, to determine electrical

issues.

On the day of the accident, Tishman requested that plaintiff "get power for certain pieces

of equipment" (id. at 25). Specifically, plaintiff was asked to determine whether the Premises

had sufficient power to operate temporary construction equipment in advance of Tishman's

construction (id. at 25). To make these determinations, plaintiff had to access an electrical room

on the third floor of the Premises.

Plaintiff testified that the third floor was partially demolished, including portions of the

flooring (id. at 28). The flooring consisted of "raised floors" (id. at 26) made up of tiles resting

on four "stanches, one on each corner" (id. at 100). Part of the third floor's raised floor was

demolished (id. at 35), exposing the "concrete slab underneath" and "some pipes or ... conduits"

¹ Cosintini was a third-party defendant in this action. By decision and order, dated January 30, 2019, Cosintini was dismissed from this action.

15227912017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 3 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

Falciglia worked on the Tishman Project. He explained that Tishman was hired to

remove the exterior fa<;:ade, upgrade and redesign the lobby, upgrade elevators, mechanical and

electrical systems, create public spaces and redesign storefronts (id. at 9). Preconstruction began

in 2013. Actual construction did not start until "late summer, early fall of 2014," several months

after the accident (id. at 10).

Falciglia reviewed a construction management agreement between Tishman and

Brookfield, and confirmed it related to the Tishman Project (the Tishman/Brookfield

Agreement). He acknowledged that it was dated July 18, 2014 (id. at 12). Falciglia also noted

that, under the Tishman/Brookfield Agreement, Tishman's work included work in mechanical

and electrical rooms on the third floor (id. at 17). Falciglia also testified that, at the time of the

accident, Tishman's work was limited to "pre-construction services, bidding, estimating,

logistics, drawing reviews, etcetera" (id. at 19).

Tishman did not perform any demolition work on the third floor at the time of the

accident. The demolition was "a Brookfield operations through another entity who was doing

interior demolition on the third floor, not anything to do with Tishman" (id. at 18). Falciglia also

testified that Tishman did not supervise or provide safety oversight regarding the demolition

work on the third floor (id. at 29, 42). Finally, Falciglia testified that Tishman did engage in

limited demolition on the third floor, such as boring holes between floors to facilitate installing

new risers, but "by the time [Tishman] started, the previous contractor [had] finished the

demolition" of the third floor (id. at 41 ).

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 6 of 33 [* 6] 6 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

Deposition Testimony of Salvatore Alagna (Limited's President)

Salvatore Alagna testified that at the time of the accident, he was the president of

Limited, an interior demolition company (Alagna tr at 5; NYSCEF Doc. No. 198). He confirmed

that Brookfield hired Limited for the Limited Project, which entailed the demolition of the third

floor of the Premises (id. at 66). Specifically, Limited was hired to demolish the third floor

"from slab to slab, everything had to go ... ceiling, flooring, walls" (id. at 24). The exception

was the electrical closets. Limited did not "touch anything in the electrical closets" (id. at 25).

Further, Limited had no contact or relationship with Tishman (id. at 70).

The Limited Project included demolition of "computer flooring" - a type of raised

flooring that allows for electrical conduits and piping to run underneath it (id. at 34). Even

though the agreement between Limited and Brookfield called for the removal of all flooring,

Brookfield required Limited to leave the flooring "outside the electric closet" intact (id. at 35-

36). That area was cordoned off with caution tape. Algana did not know who put up the caution

tape.

Finally, Alagna testified that he was unsure whether, at the time of the accident, Limited

had finished its work (id. at 64).

Deposition Testimony of Manuel Moreno (Limited's Foreman)

Manuel Moreno testified that on the day of the accident, he was Limited's foreman on the

Limited Project. His duties included directing and supervising Limited's workers (Moreno tr at

8; NYSCEF Doc. No. 199). Moreno testified that he did not have any training in how to remove

raised flooring, but he learned how to do so on several occasions prior to the Project (id. at 24).

The job proceeded normally - first the ceilings were demolished, then the walls, and

finally the floors were removed. The floor removal consisted of removing the floor tiles, as well

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 7 of 33 [* 7] 7 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

as the conduits and plumbing beneath them (id. at 43). He was not told to keep any portion of

the flooring intact at the time Limited began removing the floor (id. at 43). No one from "the

building" directed his work (id. at 50, 58). He also never saw or interacted with any Tishman

employees at the Premises.

As part of his job, Moreno inspected the floor as it was being removed and did not find

anything wrong or unsafe about the remaining flooring as it was demolished (id. at 51 ).

Moreno was unaware of the accident. He learned of it only the day before his deposition

and did not know any of the specifics of how it happened.

Deposition of Michael Lillis (Brookfield's Mechanical Supervisor)

Michael Lillis testified that on the day of the accident, he was the mechanical supervisor

for Brookfield at the Premises. His duties included overseeing the building engineers and to be a

point of contact for Brookfield (Lillis tr at 14; NYSCEF Doc. No. 200).

Lillis was present at the initial walkthrough with Limited. He testified that, at the

walkthrough, he or Greco informed Limited that removal of the raised flooring was part of the

job. Lillis also testified that the Limited Project required a six-to-eight-foot-wide portion of the

raised floor to be left intact "in order to be able to walk around the floor and get to the four

electric closets, and to the tenant's space" (id. at 33). This specification was not written in the

contract, but it was discussed at the walkthrough (id. at 34). Ultimately, that part of the floor

would also be removed.

Lillis generally oversaw the Limited Project and monitored its progress. He was present

at the Premises every day during demolition. He walked the site daily along with the building's

chief engineer (id. at 39) and observed the Limited Project's progress (id. at 58). He never

observed Limited's work, as Limited worked during the night. Lillis also testified that

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 8 of 33 [* 8] 8 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

Brookfield did not direct or supervise Limited's work (id. at 57). Further, Lillis testified he did

not inspect for safety as "that was Limited's responsibility" (id. at 40).

Finally, Lillis testified "no" when asked whether there was "any type of employees

employed by Brookfield that would perform inspections on any type of regular basis" of

Limited's work (id. at 57). He further confirmed that no one employed by Brookfield "would

inspect or evaluate the quality of Limited's work" on a regular basis (id. at 58).

Affidavit of Joseph Danatzko, P.E. (Limited's Expert)

Joseph Danatzko states he is an engineering consultant licensed in the State of New York.

He also states he reviewed the pleadings and depositions in this matter and based his opinion

thereon. He notes he did not have the ability to inspect the subject floor tile as it had been

demolished.

He opines that the subject floor tiles were properly secured because they were "fastened

with screws at the time of the incident and secured with a mastic cement to a concrete subfloor

below" (Danatzko aff, at 5; NYSCEF Doc. No. 204). He opines that there is nothing in the

documents he reviewed that would indicate that the subject floor tile that collapsed under

plaintiff had been worked on by Limited or otherwise "made structurally unstable by the

demolition activity performed by Limited" (id. at 5).

Affidavit of Robert Fuchs, M.S.M.E, P.E., DFE, CFEI, CSP (Plaintiff's Expert)

Robert Fuchs states that he is a professional engineer, licensed in the State of New York.

He reviewed the pleadings and depositions in this matter and based his opinion thereon. He

noted that the subject raised flooring was originally constructed in accordance with the New

York City Building Code and was capable of supporting a load of 2000 pounds.

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 9 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 PM] INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

be liberally construed to accomplish the purpose for which it was framed" (Valensisi v Greens at

Half Hollow, LLC, 33 AD3d 693, 695 [2d Dept 2006] [internal citations omitted]).

That said, not every worker who is injured at a construction site is afforded the

protections of Labor Law § 240 ( 1), and "a distinction must be made between those accidents

caused by the failure to provide a safety device ... and those caused by general hazards specific

to a workplace" (Makarius v Port Auth. ofN.Y & N. J, 76 AD3d 805,807 [1st Dept 2010];

Buckley v Columbia Grammar & Preparatory, 44 AD3d 263,267 [1st Dept 2007] [section 240

( 1) "does not cover the type of ordinary and usual peril to which a worker is commonly exposed

at a construction site"). Instead, liability "is contingent upon the existence of a hazard

contemplated in section 240 ( 1) and the failure to use, or the inadequacy of, a safety device of the

kind enumerated therein" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001 ]).

Therefore, to prevail on a Labor Law § 240 ( 1) claim, a plaintiff must establish that the

statute was violated, and that this violation was a proximate cause of the plaintiff's injuries

(Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]).

As an initial matter, Limited and Tishman argue that they are not proper Labor Law

defendants, such that liability under the Labor Law would not apply to them.

Limited

Limited argues that it is not a proper Labor Law defendant as it was neither an owner or

general contractor, nor an agent of either for the purposes of the Labor Law.

"When the work giving rise to these [Labor Law] duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory 'agent' of the owner or general contractor. Only upon obtaining the authority to supervise and control does the third party fall within the class of those having nondelegable liability as an 'agent' under sections 240 and 241."

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 12 of 33

12 of 33 [* 12]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

(Russin v Louis N Picciano & Son, 54 NY2d 311, 318 [ 1981 ]; see also Nascimento v

Bridgehampton Constr. Corp, 86 AD3d 189, 193 [1st Dept 2011] [an entity becomes a statutory

agent under the Labor Law when it has been "delegated the supervision and control either over

the specific work area involved or the work which [gave] rise] to the injury"] internal quotation

marks and citation omitted]).

Limited is not an owner or general contractor. However, Limited is the entity responsible

for the demolition of the entirety of the subject raised floor. Brookfield, acting on behalf of 450

Properties, by the Purchase Order, delegated to Limited the supervision and control over that

specific demolition work.

While Limited argues that it did not have any authority over plaintiff or plaintiff's work,

that is not the focus of the agent analysis. The relevant inquiry is whether Limited had authority

over the injury producing work- here alleged to be the demolition of the raised flooring (see e.g.

Lazarou v Turner Constr. Co., 18 AD3d 398,399 [1st Dept 2005] [determining agency pursuant

to Labor Law§ 240 (I) based on whether an entity had "control over the injury-producing

work"]). Based on the above information, the record establishes that Limited was an agent of the

Building Defendants and, therefore, it is a proper Labor Law defendant.

Tishman

Tishman argues that it is not a proper Labor Law defendant because the injury producing

work- the demolition of the third floor's raised floor that purportedly caused plaintiff's accident

- was outside the scope of its contract with the Building Defendants. Specifically, Tishman

argues that it was a construction manager for the Tishman Project, which did not encompass the

demolition of the third floor's floor. That demolition was a part of the Limited Project, which

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 13 of 33

13 of 33 [* 13]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

was controlled by the Building Defendants directly. Therefore, Tishrnan contends that it had no

authority to supervise or control the injury producing work or to oversee the safety of that area.

"Where a party had no authority to supervise or control the activity that caused the

plaintiffs injury, that party may not be held liable" under Labor Law§§ 240 (1) or 241 (6)

(Balthazar v Full Circle Constr. Corp., 268 AD2d 96, 98 [1st Dept 2000] citing Filchukv Lehrer

McGovern Bovis Constr., 232 AD2d 329,330 [1st Dept 1996] [general contractor not liable

where the injury producing work was not performed by the contractor's employees or its

subcontractors]). "[I]f the work leading to the accident is outside the scope of what is contracted

for, there is no right of control on the part of the contractor and thus no liability under [Labor

Law§§ 240 (1) and 241 (6)]" (Butt v Bovis Lend Lease LMB, Inc., 47 AD3d 338, 341 [1st Dept

2007]).

There is no dispute in the testimony that Tishman had no authority to supervise or control

the demolition of the raised floor. Falciglia, Tishman's project director, testified that the

demolition of the floor was "a Brookfield operation through another entity who was doing

interior demolition on the third floor" (Falciglia tr at 18) and that such demolition did not have

"anything to do with Tishrnan" (id. at 18). Similarly, Greco, Brookfield's property manager,

testified that Tishman's work did not involve the demolition of the third floor's raised floor

(Greco tr at 44). Rather, Greco testified that he, on behalf of Brookfield, "bid that work out" to

Limited (id. at 12). Also, Lillis, Brookfield's mechanical supervisor, testified that he and Greco

provided Limited with their work scope and parameters (Lillis tr at 33-34). In addition, Alagna,

Limited's principal, testified that Brookfield hired Limited to demolish the third floor "from slab

to slab, everything had to go ... ceiling, flooring, walls" (Alagna tr at 24), and Moreno,

Limited's foreman, confirmed that he directed Limited's demolition work.

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 14 of 33

14 of 33 [* 14]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

In opposition, plaintiff argues the Tishrnan/Brookfield Agreement (plaintiff's notice of

cross-motion, exhibit 3, NYSCEF Doc. No. 231) delegated a general authority to Tishman to

correct any defective work at the Premises, citing several sections within article 4 of that

agreement. Those sections provide as follows:

"4.1 Scope of Services

"4.1.1 The Construction Manager shall administer, manage, supervise, direct, coordinate and cause the proper and efficient performance and furnishing, through Subcontractors or its own forces, of all work, labor, materials, equipment, tools and General Conditions Work required for the complete construction and/or installation of the Project"

(id. at 15),

"4.11 Performance of Work; Correcting Defective Work

"4.11.1 [Tishman] shall observe, monitor, oversee and supervise the Work so that it is performed in accordance with the requirements of the Contract Documents ... " (id. at 23).

The term "Work" as discussed in section 4.1 is a defined term. "Work" encompasses "all

work and other Services required to be performed by [Tishman] under the Contract Documents,

and includes all labor, materials, equipment and services to be provided by [Tishrnan] under the

terms of this Agreement to complete the Project" (id., Article 1, p. 11). Further, as noted above,

the uncontroverted testimony establishes that Tishman's "Project" did not involve the demolition

work on the third floor.

Tishrnan is not an owner, and contractually, it was not a general contractor for Limited's

demolition work on the third floor of the Premises. Further, there is no evidence that Tishman

was delegated supervision or control over that demolition. Therefore, it was not an agent of the

Building Defendants with respect to that work (see Nascimento, 86 AD3d at 193).

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 15 of 33 [* 15] 15 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

Tishman has established, primafacie, that it is not a proper Labor Law defendant with

respect to the subject accident, and plaintiff has failed to raise a question of fact as to this issue.

Therefore, this Court grants Tishman summary judgment dismissing the Labor Law§§ 240 (1)

and 241 (6) claims as against it (see Butt, 47 AD3d at 341), and denies plaintiff summary

judgment in his favor on the same claims.

Turning to the substance of the section 240 (1) claim with respect to the remaining

defendants, plaintiff's accident occurred when, while walking on raised floor tiling, a tile

unexpectedly came loose, moved, and caused his foot to fall through the opening created by the

shifted tile.

The facts presented here are similar to those found in Romeo v Property Owner (USA)

LLC, 61 AD3d 491 (1st Dept 2009), a case relied upon by defendants in their motions. In

Romeo, the plaintiff was walking on completed raised flooring when he stepped on a "floor tile

that suddenly and unexpectedly dislodged, causing his right foot to fall through the two-foot-by-

two-foot opening created by the missing tile and strike the concrete subfloor 18 inches below"

(id. at 491 ). That court, in dismissing the section 240 (1) claim, held that "walking on the

permanent floor did not involve an elevation-related hazard of the type contemplated by the

statute and did not necessitate the provision of the type of safety devises set forth in the statute"

(id. at 491). Defendants argue that, in light of Romeo, plaintiff's accident falls outside the scope

of section 240 (1 ), and that claim should be dismissed.

In opposition and in support of his cross-motion for summary judgment, plaintiff argues

that rationale set forth in Romeo cannot apply (and should not remove plaintiff's accident from

the scope of section 240 [1]) because the subject floor was not a "permanent floor." Plaintiff

argues that, because the floor was slated for demolition and a separate portion of the floor was

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 16 of 33

[* 16] 16 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

demolished prior to the accident, the once permanent floor became a temporary floor. Temporary

flooring may fall within the ambit of protections provided for by section 240 (1) (see e.g.

Robertti v Powers Chang, 227 AD2d 542, 542-543 [2d Dept 1996] [collapse of temporary floor,

exposing a hole that plaintiffs leg fell through was within the scope of section 240 (1)]).

In reply, defendants argue that there is no evidence in the record that any demolition

work had been done on or within several feet of the subject floor tile or that the tile had in any

way been altered or undermined.

After reviewing the record, this Court agrees. The record does not establish the exact

location of the accident. There is no testimony that the accident occurred adjacent to the

demolished area or that the subject floor tile had been undermined or otherwise unsecured from

its pedestals by Limited. Plaintiffs expert testimony that "screws that fastened the floor panels

to the underlying support pedestals may have been removed" (Fuchs aff, Jr 13) is speculative and

insufficient to establish that the floor in the area of plaintiffs accident had been subject to any

actual demolition work (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002] ["Where

the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, ...

the opinion should be given no probative force"]). While plaintiffs expert opines that removing

tiles could cause the tile system to lose its lateral support (Fuchs aff, Jr 13 ), there is no evidence

that the subject tile shifted because it lost lateral support.

Further, plaintiffs argument that the subject raised floor became temporary because it

was slated for demolition at a future time is unavailing as it is unsupported by any caselaw

supporting this assertion. Moreover, accepting plaintiffs assertion would create an excessively

overbroad definition of the term "temporary" as meaning any portion of a building slated for

demolition at a later time.

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 17 of 33 [* 17] 17 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

Finally, plaintiffs argument that the Court should treat the subject floor as akin to a

raised rebar lattice, which has been held to create an elevation related hazard, is unpersuasive

given the accident location (see Brown v 44 th St. Dev., LLC, 48 Misc 3d. 234, 236 [Sup Ct, NY

County 2015], affd 137 AD3d 703 [1st Dept 2016] [holding that section 240 (1) applied where

the plaintiff was required to walk on "a steel tightrope" of rebar because "there were no planks or

anything else laid down to walk on"]). Specifically, the lattice ofrebar, described in Brown as

steel bars approximately 12 inches apart and five-eights of an inch wide with spaces "a foot or

more wide in all directions" (id. at 237), is in no way analogous to the tile floor present here.

Given the foregoing, plaintiffs accident does not fall within the scope of Labor Law

§ 240 (1) (Romeo, 61 AD3d at 491 ). Therefore, the Court grants Limited and the Building

Defendants summary judgment dismissing the section 240 (1) claims against them, and denies

plaintiff summary judgment in his favor on the same claims.

The Labor Law§ 241 (6) Claims (Motion Sequence Numbers 006, 007, 008 and Plaintiffs Cross-Motions)

Limited, Tishman and the Building Defendants move for summary judgment dismissing

the Labor Law § 241 ( 6) claims against them. Plaintiff cross-moves for summary judgment in

his favor on the same claims.

As an initial matter, as discussed above, Tishman is not a statutory agent under the Labor

Law. For the reasons discussed above, this Court also grants Tishman summary judgment

dismissing the Labor Law § 241 ( 6) claim as against it (Russin, 54 NY2d at 318).

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: ***

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 18 of 33

[* 18] 18 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

(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."

Labor Law§ 241(6) imposes a nondelegable duty ofreasonable 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]; see also Ross v

Curtis-Palmer Hydro-Electric Co., 81 NY2d at 501-502).

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

a specific, "concrete" implementing regulation of the Industrial Code, rather than a provision

containing only generalized requirements for worker safety (Ross, 81 NY2d at 505). Such

violation must be a proximate cause of the plaintiffs injuries (Yaucan v Hawthorne Vil., LLC,

155 AD3d 924, 926 [2d Dept 2017] ["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"]; 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]).

Here, plaintiff sets forth claims predicated upon multiple violations of the Industrial

Code. 2 Defendants move for summary judgment dismissing each claim. Except for 12 NYCRR

23-3 .³ (c ), plaintiff does not move for relief in his favor on those claims or contest their

2 W~ile the B_uilding De~en_dants argue plaintiff failed to plead any violations of the Industrial Code in his complaint or bill of ~art1culars, plai_nt1ff served an amended bill of particulars several months in advance of the filing of summary Judgment that 1~cluded several _alleged violations of Industrial Code provisions (see NYSCEF Doc. No. 201, p. 115-127). Accordmgly, these claims are properly pleaded. 152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 19 of 33

19 of 33 [* 19]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

dismissal. These uncontested provisions are deemed abandoned (see 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"]). Defendants

are entitled to summary judgment dismissing those parts of plaintiff's Labor Law§ 241 (6) claim

predicated on the abandoned provisions.

Industrial Code I 2 NYCRR 23-3.3 (c)

As an initial matter, section 23-3.3 (c) is sufficiently specific to support a Labor Law

§ 241 (6) claim (Cardenas v One State St., LLC, 68 AD3d 436,438 [1st Dept 2009]).

Section 23-3.3 governs demolition by hand. Subsection 3.3 (c) governs "Inspections"

and provides the following:

"During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means."

Here, Limited argues that it fulfilled its inspection obligations and, therefore, did not

violate this section. In support Limited refers to the testimony of its foreman, Moreno, who

testified "yes" when he was asked whether he "perform[ed] a full inspection of the third floor on

a daily basis when [he] was there" (Moreno tr at 50). He further testified "no" when asked ifhe

found "anything wrong with the flooring or the process of the flooring being removed" (id. at

51 ).

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 20 of 33

[* 20] 20 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

In opposition, plaintiff argues that Moreno's inspections did not involve hazard detection

and, therefore, did not constitute an inspection as required by section 23-3.3 (c). In support,

plaintiff relies on the following testimony:

"Q. You mentioned earlier that you did I guess daily inspections when you arrived to the job site. What did those daily inspections, what did they entail generally?

"A. Yes I am there every single day .... I just see what we are going to throw away at that point, what we can do first to make the job easier. Things like that"

(id. at 78).

Notably, the testimony relied on by both parties fails to establish,primafacie, whether

Limited performed "inspections ... to detect any hazard ... resulting from weakened or

deteriorated floors" created by the demolition (12 NYCRR 23-3.3 [c]). Specifically, Moreno

was never asked if he performed this type of hazard inspection. Rather, he was only asked a

general question about whether he performed a "full inspection" - with no clarification on what a

"full inspection" entailed. Further, the testimony plaintiff relies on does not support a

determination that Moreno never inspected for hazardous conditions, as the question Moreno

was asked focused solely on "daily inspections when [he] arrived to the job site" (id. at 78) and

did not clarify if that was his sole inspection for the day, or merely the type of inspection he

performed at the beginning of the workday.

Moreno's testimony is insufficient to establish, as a matter of law, whether section 23-3.3

(c) was fulfilled or violated. Thus, Limited is not entitled to summary judgment dismissing the

Labor Law§ 241 (6) claim predicated on a violation of Industrial Code 23-3.3 (c), and plaintiff

is not entitled to summary judgment in his favor on the same claim.

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 21 of 33

21 of 33 [* 21]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

As to the Building Defendants, plaintiff argues they did not perform any inspections.

They rely on Lillis's testimony that Brookfield did not have "any type of employees ... that

would perform inspections [of Limited's work] on any type ofregular basis" (id. at 57) and that

Brookfield did not employ anyone who would "inspect or evaluate the quality of Limited's

work" on a regular basis (id. at 58). This testimony establishes that Brookfield did not perform

"continuing inspections" of the demolition work as required by section 23-3.3 (c).

In opposition, the Building Defendants fail to raise a question of fact as to this issue.

That said, there are questions of fact regarding the proximate cause of the accident ( Yaucan, 15 5

AD3d at 926; Sutherland, 207 AD3d at 161). Specifically, the proffered expert affidavits of the

parties assert two dueling theories of plaintiff's accident - one of which would implicate this

Industrial Code provision (instability created by demolition work), and one which would not (a

preexisting defect in the raised tiling) (Ellerbe v Port Auth. ofN Y & NJ, 91 AD3d 441,442

[1st Dept 2012] ["Where credible evidence reveals differing versions of the accident, one under

which defendants would be liable [under the Labor Law] and another under which they would

not, questions of fact exist making summary judgment inappropriate"]). Further, the resolution

of differing expert opinions is a credibility determination best left to a jury to resolve (see Vosper

v Fives 160th, LLC, 110 AD3d 544, 545 fl st Dept 2013] ["Defendant's expert's disagreement

with plaintiffs expert's findings or methodology presents issues of fact and credibility for a jury

to resolve"]).

Thus, this Court denies both the Building Defendants' motion and plaintiff's cross-

motion for summary judgment on this claim.

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 22 of 33

22 of 33 [* 22]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

The Common-Law Negligence and Labor Law § 200 Claims (Motion Sequence Number 006, 007, 008)

Limited, Tishman, and the Building Defendants each 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 imposed upon an owner or general contractor to

provide construction site workers with a safe place to work" (Cruz v Toscano, 269 AD2d 122,

122 [1 st Dept 2000] [citation omitted]). 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 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 kind of

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 Cappabianca v Skanska USA Bldg Inc., 99 AD3d 139, 143-144

[1st Dept 2012] ["Claims for personal injury under [section 200] and the common law fall into

two broad categories: those arising from an alleged defect or dangerous condition existing on the

premises and those arising from the manner in which the work was performed"]).

Here, plaintiff was injured when a tile unexpectedly shifted and/or moved, causing his

foot to fall through the opening created by the shifted floor tile. As noted above, there are

questions of fact that remain regarding what caused the accident. With respect to section 200

liability, plaintiff's accident may have arisen from either a dangerous condition inherent in the

Premises (a preexisting defect in the raised tiling) or from the means and methods of the work

(the failure to properly brace, support and inspect the remaining tiles while the demolition work

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 23 of 33

[* 23] 23 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

was ongoing). Reflecting these differing positions, plaintiff and defendants provide dueling

expert affidavits regarding the cause of the accident (Fuchs Aff; NYSCEF Doc. No. 221;

Danatzko aff; NYSCEF Doc. No. 204 ). As discussed above, the resolution of differing expert

opinions is a matter for a jury (see Vosper, 110 AD3d at 545).

That said, if a defendant cannot be found liable under both the hazardous condition and

means and methods analyses, it would be entitled to summary judgment dismissing the common-

law negligence and Labor Law § 200 claims against it. Therefore, this Court must address both

analyses.

Means and Methods

Where a plaintiffs 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 actually exercised

supervisory control over the injury-producing work" (Jackson v Hunter Roberts Constr., L.L. C.,

205 AD3d 542, 543 [1st Dept 2022] [internal quotation marks and citation omitted]; Naughton v

City ofNew York, 94 AD3d 1, 11 [1st Dept 2012] ["liability can only be imposed against a party

who exercises actual supervision of the injury-producing work"]). "General supervisory

authority is insufficient to constitute supervisory control" (Hughes v Tishman Constr. Corp., 40

AD3d 305,306 [1st Dept 2007]).

Here, the record is devoid of any evidence that Tishman or the Building Defendants

actually directed and supervised Limited's work. Plaintiff provides no evidence that Tishman

interacted with, supervised or controlled Limited at all. Plaintiffs argument that Tishman, as the

entity that hired Cosentini (plaintiffs employer), had the authority to supervise and control

plaintiff is unavailing. Plaintiffs work was not the injury producing work (see Jackson, 205

AD3d at 543).

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 24 of 33

24 of 33 [* 24]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

As to the Building Defendants, the record establishes that they directed Limited's work

insofar as they provided Limited its scope of work and coordinated when it was to perform its

work (informing Limited as to when it could demolish certain areas). However, they did not

provide actual supervision or control over Limited's demolition work (and any shoring work that

may have been necessary). Accordingly, the Building Defendants' general direction over the

scope and coordination of Limited's work only establish a general supervisory control over

Limited's work. General supervisory authority is insufficient to impute liability under section

200 (see Bisram v Long Is. Jewish Hosp., 116 AD3d 475,476 [1st Dept 2014]; Hughes, 40

AD3d at 306).

As to Limited, it only argues it did not have the authority to control plaintiffs work, but,

as noted above, plaintiffs work was not the injury producing work. To the extent the accident

may have been caused due to instability created from the demolition of the surrounding raised

tiles, the record establishes that Limited was the entity that performed that work. Further,

testimony shows that Limited was also responsible for inspecting its own work. Accordingly,

should it be determined that the accident was caused due to the demolition of the surrounding

floor tiles, it cannot be said that Limited did not have actual supervision or control over the

subject injury producing work. Therefore, Limited has not established its entitlement to

dismissal of the common-law negligence and Labor Law§ 200 claims under a means and

methods analysis.

Therefore, Tishman and the Building Defendants would be entitled to summary judgment

dismissing these claims under a means and methods analysis, while Limited would not be

entitled to dismissal of the same.

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 25 of 33

[* 25] 25 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

Hazardous Condition

Where "a plaintiffs injuries stem not from the manner in which the work was being

performed, but, rather, from a dangerous condition on the premises, a general contractor may be

liable in common-law negligence and under Labor Law § 200 if it has control over the work site

and actual or constructive notice of the dangerous condition" (Keating v Nanuet Bd. of Educ., 40

AD3d 706, 708 [2d Dept 2007]; Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept

2011]).

Here, as discussed above, Tishman did not have control over the work done on the third

floor of the Premises. Specifically, it was not contractually delegated control over the work site

(or the work performed) where the accident occurred, and the record establishes that it did not

have any knowledge of a hazard, or a duty to inspect any of Limited's work. Therefore, it cannot

be liable for plaintiff's accident under the hazardous condition analysis (Keating, 40 AD3d at

708). Accordingly, Tishman would be entitled to summary judgment dismissing the common-

law negligence and Labor Law§ 200 claims under this theory.

The Building Defendants, as the owner/manager of the Premises, had overall control over

the Premises, including the work site. Limited, as the entity hired to perform the work at the

work site, also had control over that work site. Accordingly, it must be determined whether the

Building Defendants and Limited had actual or constructive notice of a hazardous condition -

namely loose tiles - in the accident area.

While there is no evidence of actual knowledge of any hazardous/defective tiles in the

subject area, there remain questions of fact as to whether the Building Defendants or Limited had

constructive notice of a loose tile hazard at the accident location.

"A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 26 of 33

26 of 33 [* 26]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

the accident such that it could have been discovered and corrected . . . . When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed"

(Carrillo v Circle Manor Apts., 131 AD3d 662,664 [2d Dept 2015] [internal citations and

quotation marks omitted]).

To establish a lack of constructive notice of a hazardous condition, a party must establish,

inter alia, that it inspected the accident location and when it last did so. Failing to do so raises

triable issues of fact (see Pereira v New Sch., 148 AD3d 410, 412-13 [1st Dept 2017] [the

defendants failed to establish lack of constructive notice of a dangerous condition "since they

submitted no evidence of ... when the site had last been inspected before the accident"], citing

Ladignon v Lower Manhattan Dev. Corp., 128 AD3d 534, 535 [1st Dept 2015] ["There are

triable issues as to constructive notice of the defective condition of the staircase since the record

is unclear as to when the staircase was last inspected prior to plaintiffs fall"]).

Here, neither the Building Defendants or Limited establish when they last inspected the

area where the accident occurred, nor do they present sufficient evidence that the defect was

latent, such that the defect would not have been discovered by an inspection. The dueling expert

testimony on the nature of the defect - how it came to be, whether it would have been identified

by an inspection, and how it caused the accident - underscore the questions of fact that remain

under the hazardous condition analysis. Accordingly, the Building Defendants and Limited have

not established their prima facie entitlement to summary judgment dismissing the common-law

negligence and Labor Law § 200 claims against them under the hazardous condition analysis.

In light of the foregoing, under either theory of the accident, Tishrnan has established it is

entitled to summary judgment dismissing the common-law negligence and Labor Law § 200

claims as against it. The Building Defendants and Limited, however, may still be liable under at

152279/2017 LEDONNE V 450 PARTNERS ET Al Motion No. 006 007 008 Page 27 of 33 [* 27] 27 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

least one theory of the accident. Accordingly, they are not entitled to summary judgment

dismissing the same claims as against them.

Building Defendants' Cross-claims for Contractual Indemnification (Motion Sequence Numbers 006 and 008)

Building Defendants move for summary judgment in their favor on their crossclaim for

contractual indemnification against Limited. Limited moves for summary judgment dismissing

the same crossclaim.

Additional Facts Relevant to This Issue

450 Partners and Limited entered into the Purchase Order, dated November 22, 2013, for

the work related to the Limited Project (Building Defendants' notice of motion, exhibit M;

NYSCEF Doc. No. 186). The Purchase Order identifies Limited as the "Seller" and 450 West

33rd Street as the "Buyer." It contains an "Seller's Indemnity" provision that provides the

following, as relevant:

"To the extent permitted by Laws, [Limited] will indemnify and hold Buyer and Buyer's affiliates, agents ... (an "Indemnitee" harmless from, and at Buyer's option, defend any claim ... incurred by any Indemnitee arising out of or related to: (i) [Limited's] performance of this order (except to the extent the same is caused by the gross negligence or willful misconduct of Buyer or its employees, agents or contractors), (ii) the negligence or willful misconduct of fLimited] or its agents ... "

(id.' Jr 8).

"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"' (Karwowski v 1407 Broadway Real Estate, LLC, 160

AD3d 82, 87-88 (1st Dept 2018], quoting Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d

774, 777 [1987]). "In contractual indemnification, the one seeking indemnity need only establish

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 28 of 33

28 of 33 [* 28]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

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 Lexington Ins. Co.

v Kiska Dev. Group LLC, 182 AD3d 462,464 [1st Dept 2020][denying summary judgment

where indemnitee "has not established that it was free from negligence"]). Further, 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).

As an initial matter, as noted above, there remain questions of fact as to whether the

accident "arose out of or related to" Limited's work (or whether the cause of the accident was a

latent defect in the subject tile). Further, as discussed above, even if the accident arose from

Limited's work, there remain questions of fact regarding whether Building Defendants were

negligent in failing to inspect the subject accident area. Therefore, Building Defendants are not

entitled to summary judgment in their favor on this claim.

Turning to Limited's motion, Limited first argues that the indemnification provision

violates General Obligations Law (GOL) § 5-322.1 (see Itri Brick & Concrete Corp. v Aetna

Cas. & Sur. Co., 89 NY2d 786, 795 [1997] [a clause in a construction contract which purports to

indemnify a party for its own negligence is void under GOL § 5-322.1 ]). However, the

indemnification provision contains language that limited indemnification "[t]o the extent

permitted by Laws" (Purchase Order; NYSCEF Doc. No. 186). Therefore, the indemnification

provision does not violate GOL § 5-322.1 (see e.g. Brooks v Judlau Contr., Inc., 11 NY3d 204,

210 [2008]).

Next, Limited argues the accident did not arise from Limited's work and , therefore , the

indemnification provision cannot be invoked. This argument is unpersuasive as questions of fact

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 29 of 33

/ [* 29] 29 of 33

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

remain regarding whether the subject tile was undermined, loosened or otherwise damaged by

Limited's work. Accordingly, Limited is not entitled to summary judgment dismissing Building

Defendants' contractual indemnification claims against it.

Building Defendants' Cross-claims for Common-Law Indemnification and Contribution (Motion Sequence Numbers 006 and 008)

Building Defendants move for summary judgment in their favor on their cross-claim for

common-law indemnification and contribution against Limited. Limited moves for summary

judgment dismissing the same claims.

"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"' (Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685 [2d

Dept 2005], 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]).

Here, as discussed above, questions of fact remain as to whether Limited and/or Building

Defendants may have been negligent with respect to plaintiff's accident. Accordingly, neither

Building Defendants nor Limited are entitled to summary judgment on the common-law

indemnification and contribution claims against Limited.

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 30 of 33

30 of 33 [* 30]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

Building Defendants' Claim for Breach of Contract for the Failure to Procure Insurance as

against Limited (Motion Sequence Numbers 006 and 008)

Building Defendants move for summary judgment in their favor on their claims for

breach of contract for the failure to procure insurance as against Limited. Limited moves for

summary judgment dismissing the same claim.

Notably, Building Defendants do not address this claim in their brief. Accordingly, they

have failed to establish a prima facie entitlement to judgment in their favor. Limited failed to

annex a copy of its insurance policy to its motion papers and, therefore, has not established that it

procured the required insurance (see Castillo v Port Auth. of N. Y & NJ., 159 AD3d 792, 797 [2d

Dept 2018] [movants failed to establish entitlement to judgment on the failure to procure claim

"as neither of them submitted any evidence demonstrating that they procured an insurance policy

as required by their respective contracts").

The parties' remaining arguments have been considered and were determined to be

unavailing. Neither party is entitled to summary judgment on this claim.

CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED that motion of defendant Limited Interiors Group (Limited) (motion

sequence number 006), pursuant to CPLR 3212, for summary judgment dismissing the

complaint, as well as all cross-claims against it is granted to the extent that the Labor Law

§§ 240 and 241 (6) claims are dismissed, except for that portion of the section 241 (6) claim

predicated upon a violation of 12 NYCRR 23-3.3 (c), and the remainder of the motion is denied;

and it is further

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 31 of 33

31 of 33 [* 31]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

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

(motion sequence number 007), pursuant to CPLR 3212, for summary judgment dismissing the

complaint as against it is granted, and the complaint against it is dismissed with costs and

disbursements as taxed by the Clerk of the Court upon the submission of an appropriate bill of

costs; and the Clerk of the Court is directed to enter judgment accordingly; and it is further

ORDERED that the motion of defendants 450 Partners LLC , Brookfield Properties

Developer LLC, Brookfield Financial Properties LP, Brookfield Properties W 33rd GP LLC,

Brookfield Properties W 33rd Holdings LLC and Brookfield Properties W 33rd CO., L.P.

(collectively the Building Defendants) (motion sequence number 008), pursuant to CPLR 3212,

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

their favor on their on their cross-claims against Limited is granted to the extent that the Labor

Law §§ 240 and 241 ( 6) claims are dismissed, except for that portion of the section 241 ( 6) claim

predicated upon a violation of 12 NYCRR 23-3.3 (c), and the remainder of the motion is denied;

and it is further

ORDERED that plaintiff Robert Ledonne's cross-motion (in relation to motion sequence

number 006), pursuant to CPLR 3212, for summary judgment in his favor on his Labor Law

§ § 240 ( 1) and 241 ( 6) claims against Limited is denied; and it is further

ORDERED that plaintiff Robert Ledonne's cross-motion (in relation to motion sequence

number 007), pursuant to CPLR 3212, for summary judgment in his favor on his Labor Law

§§ 240 (1) and 241 (6) claims against Tishman is denied; and it is further

ORDERED that plaintiff Robert Ledonne's cross-motion (in relation to motion sequence

number 008), pursuant to CPLR 3212, for summary judgment in his favor on his Labor Law

§§ 240 ( 1) and 241 (6) claims against Building Defendants is denied; and it is further

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 32 of 33

32 of 33 [* 32]

[FILED: NEW YORK COUNTY CLERK 04/18/2024 04:59 P~ INDEX NO. 152279/2017 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 04/18/2024

ORDERED that the remainder of this action will continue.

This constitutes the decision and order of the Court.

⁴/18/2024 DATE

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 33 of 33

33 of 33 [* 33]

Footnotes

[1] of 33 [* 1] This is an action to recover damages for personal injuries allegedly sustained by a field engineer on May 14, 2014, when, shortly after exiting an electrical room at a construction site located at 450 West 33rd Street, New York, New York (the Premises), a floor tile came loose and moved when he stepped on it, causing his foot to fall partway through to the concrete subfloor, approximately 12 to 18 inches below. In motion sequence number 006, defendant Limited Interiors Group (Limited) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross-claims as against it. In motion sequence number 007, defendant Tishman Construction Corp. (Tishrnan) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against it. In motion sequence number 008, defendants 450 Partners LLC (450 Partners), Brookfield Properties Developer LLC, Brookfield Financial Properties LP, Brookfield Properties W 33rd GP LLC, Brookfield Properties W 33rd Holdings LLC and Brookfield Properties W 33rd CO., L.P. (collectively Brookfield) (together the Building Defendants), move, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against them, and for summary judgment in their favor on their on their cross-claims against Limited. In relation to each of the above motions, plaintiff cross-moves, pursuant to CPLR 3212, for summary judgment in his favor as to liability on his Labor Law§§ 240 (1) and 241 (6) claims as against all defendants. BACKGROUND On the day of the accident, the Premises was owned by 450 Properties and managed by Brookfield. Brookfield hired Limited to perform a gut demolition of the third floor of the Premises, including removal of the raised tile floor (the Limited Project). Separately, Brookfield 152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 2 of 33 [* 2] 2 of 33

[3] of 33 [* 3] (id. at 36). The undemolished portion of the raised floor led from the freight elevator to the electrical room (id. at 35). Plaintiff testified that prior to the accident he had taken the freight elevator to the third floor, walked on the undemolished portion of the raised flooring, and entered the electrical room along with two coworkers. After performing his work, he left the electrical room and took four steps on the undemolished portion of the raised floor when, suddenly, his "right foot went down" through a tile (id. at 33). He later clarified that "the whole tile moved" when he stepped on it, causing his foot to drop through the raised floor and his knee to twist sideways (id. at 101). After his foot went through the raised floor, he fell to the ground. A coworker helped him back up and he continued working. Deposition Testimony of Jim Greco (Brookfield's Property Manager) Jim Greco testified that at the time of the accident, he was a senior property manager employed by Brookfield. Brookfield is an owner and manager of commercial real estate (Greco tr. at 5; NYSCEF Doc. No. 196). At the time of the accident, it managed the Premises. 450 Partners was the owner and is also a subsidiary of Brookfield (id. at 7). Greco was the property manager at the Premises. His duties included overseeing tenant relations and maintenance, and general coordination of trades, specifically "trades that [he] would call and give a contract to" (id. at 33). Greco testified that at the time of the accident, Brookfield had hired Tishman as the general contractor for a major renovation project - the Tishman Project - that was underway at the Premises. It included replacing the "outer skin" of the entire building, roof work and tenant space work (id. at 7). Greco also testified that he was not involved with the Tishman Project (id. at 9), and that the Tishman Project did not involve the demolition on the third floor (id. at 44). 15227912017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 4 of 33

[4] of 33 [* 4] Greco testified that there was a separate demolition project on the third floor that he was involved with. He "bid that work out" to Limited (id. at 12). The demolition project on the third floor entailed removing all the "finishes from the prior tenant" including "[w]alls, floors, ceiling, furniture" (id. at 13). There were no plans to build out the empty space; a new tenant would design and build out the "raw space" before they moved in (id. at 13). Specifically, the demolition project included removing raised flooring and the plumbing and electrical conduit beneath it (id. at 25). The demolition would ultimately leave the concrete floor bare. Greco did not know why the subject raised tile floor had not been demolished by the time of the accident (id. at 42). At his deposition, Greco was shown a copy of a purchase order between 450 Partners and Limited and confirmed that it was the purchase order related to the demolition of the third floor (the Purchase Order) (see Building Defendants' notice of motion, exhibit M; NYSCEF Doc. No. 186. Greco also confirmed that he signed the purchase order. He also testified that Limited served as the general contractor for the demolition project (id. at 24). Deposition Testimony of Salvatore Falciglia (Tishman 's Project Director) Salvatore Falciglia testified that on the day of the accident, he was Tishman's project director and a vice president of the company. His duties as a project director included managing daily aspects of construction and being a point of contact between the owner and Tishman. Falciglia was familiar with raised flooring, explaining that raised flooring is typically used to allow for wires and pipes to run underneath the flooring. The tiles were typically metal and secured to an "interlocking system, usually like a channel system that creates the rectangle or square" that the tile will rest in (Falciglia tr at 8; NYSCEF Doc. No. 197). 152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 5 of 33 [* 5] 5 of 33

[9] of 33 [* 9] Based on that, Fuchs opined that the flooring should not have collapsed under plaintiffs weight and, therefore, the system must have been "improperly supported, inadequately braced, or otherwise made unstable by the demolition activity within the third floor space" (Fuchs aff, Jr 13; NYSCEF Doc. No. 221 ). He also opined that "during the demolition work the screws that fastened the floor panels to the underlying support pedestals may have been removed, thereby rendering the remaining floor panels susceptible to movement" (id., Jr 13 ). Fuchs further opined that "the partial removal of the flooring system increased the potential for eccentric (off-center) loads and/or inadequate lateral restraint of the portion of the floor that remained, thereby increasing the risk for instability and failure" (id., Jr 13). Finally, he opined that, had there been bracing or supports, the flooring would not have collapsed and "plaintiff's accident would not have occurred" (id., Jr 17). 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" (Alvarez v Prospect Hosp.,

[68] NY2d 320, 324 [1986] [internal citations omitted]). "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]). "[I]t 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 US. Min. Prods., 194 AD2d 482,483 [1st Dept 1993]). If there is any doubt as to 152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 10 of 33 [* 10] 10 of 33 the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). The Labor Law§ 240 (1) Claims (Motion Sequence Numbers 006, 007, 008, and PlaintifFs Cross-Motions) Limited, Tishrnan, and the Building Defendants move for summary judgment dismissing the Labor Law § 240 (I) claim as against them. Plaintiff cross-moves as against each defendant for summary judgment in his favor on the same claim. Labor Law § 240 (1 ), known as the Scaffold Law, provides as relevant: "All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." Labor Law § 240 (1) "imposes a nondelegable duty on owners and contractors to provide devices which shall be so constructed, placed and operated as to give proper protection to those individuals performing the work" (Quiroz v Memorial Hosp. for Cancer & Allied Diseases, 202 AD3d 601, 604 [1st Dept 2022] [internal quotation marks and citations omitted]). It "was designed to prevent those types of accidents in which the scaffold ... or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person"' (John v Baharestani, 281 AD2d 114, 118 [1st Dept 2001], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). The absolute liability found within section 240 "is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (O'Brien v. Port Auth. ofNY & NJ, 29 NY3d 27, 33 [2017] [internal quotation marks and citation omitted]). In addition, Labor Law§ 240 (1) "must 152279/2017 LEDONNE V 450 PARTNERS ET AL Motion No. 006 007 008 Page 11 of 33 11 of 33 [* 11]