The following e-filed documents, listed by NYSCEF document number (Motion 003) 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 209, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 317, 321, 322, 323, 326, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 355, 356 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 314, 315, 316, 318, 319, 320, 324, 325, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 357, 358 were read on this motion to/for JUDGMENT - SUMMARY.

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

This is an action to recover damages for personal injuries allegedly sustained by plaintiff [*2]Petronilo Pena Cerda, a construction worker, on October 1, 2018, while working from exterior scaffolding at a construction site located at 350 West 71st Street, New York, New York (the Premises), he was struck in the head and shoulder by a falling wooden plank that came loose from the scaffolding above.

In motion sequence number 003, plaintiff moves, pursuant to CPLR 3212, for summary judgment in his favor on his Labor Law §§ 240 (1) and 241 (6) claims against defendant/third-party plaintiff Cydonia W71, LLC (Cydonia) and defendant/third-party plaintiff CCNY Construction Corp. (CCNY), (together, Building Defendants).^[FN1] ,^[FN2]

In motion sequence number 004, Building Defendants move, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross-claims against them, as well as for summary judgment in their favor on their contractual indemnification and breach of contract for the failure to procure insurance claims against third-party defendant/second-third-party plaintiff Standard Waterproofing Corp. (Standard) and second-third-party defendant Xuntos Construction Corp. (Xuntos).

In motion sequence number 005, Standard moves for summary judgment in its favor on its second-third-party claims against Xuntos, as well as for summary judgment dismissing all third-party claims and cross-claims against it.

On the day of the accident, the Premises was owned by Cydonia. Cydonia hired CCNY as the general contractor for a project that entailed the exterior and interior renovation of the Premises. CCNY, in turn, hired defendant Arsenal Scaffolding Corp. (Arsenal) to provide and erect scaffolding at the Premises. CCNY also hired Standard to provide exterior work for the Project and Standard subcontracted that work to Xuntos. Plaintiff was employed by Xuntos.

Plaintiff testified that his name is Petronilo Pena Cerda and that he has never gone by any other name (plaintiff's tr at 9). He further testified that on the day of the accident, he was employed by Xuntos as a laborer at the Premises (id. at 44). To obtain his job, he did not have to bring any documentation or fill out any paperwork.

Plaintiff testified that he regularly used the scaffolding around the Premises in the course of his work (id. at 70). His work included "cutting bricks," cleaning, mixing cement and "[w]hatever the foreman would send me to do" (id. at 45). His foreman was "Alejandro" (later identified as Alejandro Gonzales [hereinafter referred to as Gonzales]) (id. at 49). Gonzales would direct plaintiff's work, telling him where to go and what to do (id. at 69-70). Plaintiff also testified that he received his tools and personal protective equipment from Xuntos (id. at 63). [*3]That equipment included a hardhat and safety harness (id. at 73-4). To cut the bricks, he would use a "grinder" that was supplied by Xuntos (id. at 77).

The exterior of the Premises was covered by scaffolding that was erected prior to Xuntos starting its work. The scaffolding consisted of wooden planks. The scaffold was four planks wide, with an additional two "loose" planks on the "bicycle" — an extension of the scaffolding that allows workers to get close to the building (id. at 79). The four-plank width was secured and "tied", while the planks on the bicycle were not (id. at 79). Plaintiff did not know who provided, erected, or maintained the scaffolding (id. at 78). In the seven or eight months that he worked on the Project prior to the accident, he never had a problem with the scaffold (id. at 72),

Plaintiff further testified that at the time of the accident he was working on the fourth-floor exterior scaffolding at the Premises, using the grinder to remove bricks (id. at 90). Gonzales told him to work there. He was wearing his hard hat and safety harness. There were planks above him that were a part of the fifth floor of the scaffold (id. at 102); "four that are tied and two that are loose next to the building" (id. at 103). Plaintiff did not know of any problem with the planks (id. at 103).

Plaintiff's accident occurred around four in the afternoon. He was on the fourth floor of the scaffolding, when a piece of wood suddenly fell on him from above (id. at 53-54), striking his head, neck, and shoulder. Plaintiff further explained that he was kneeling down, grinding out bricks when he "saw, like a cloud. Like things were falling down. And then something hit [him]" in the head and shoulder (id. at 105). More specifically, one of the planks from "the bicycles" on the fifth floor came loose and fell on him (the Plank) (id. at 107). Plaintiff approximated that the Plank fell eight or nine feet (id. at 208).

Plaintiff testified that no one was working on the fifth floor at the time of the accident (id. at 137) and that no one saw the accident (id. at 114). No one took pictures of the Plank (id. at 146).

After the accident, plaintiff was able to walk off the scaffolding and find Gonzales. He then told Gonzales what happened (id. at 52, 116).

At the deposition, plaintiff was shown a copy of the worker's compensation file for his accident that included doctor's notes indicating that "plywood fell on his right shoulder" (id. at 145). Plaintiff stated that he told the doctor "plank."

William McIndoo testified that on the day of the accident, he was the senior project manager for CCNY. CCNY is a construction management and general contracting company. Cydonia contracted with CCNY for the Project, which was an interior and exterior gut renovation of the Premises. His duties with CCNY included overseeing the Project, including the budget and coordination of trades (McIndoo tr at 9). CCNY also had a construction superintendent on site every day who was responsible for overall site safety (id. at 18). McIndoo also did this work, as needed, as a fill in. CCNY had the authority to stop work if it believed work was being performed in an unsafe manner (id. at 34). CCNY also performed daily walkthroughs of the Project to review progress and check overall safety (id. at 39).

McIndoo testified that there was scaffolding on the outside of the Premises. The scaffold was erected by Arsenal (id. at 83). Arsenal was not regularly on site, though it would return to the Premises "for various other elements, inspections and repair" (id. at 95). Arsenal was not responsible for monitoring the stability of the scaffold, rather "[i]t was the responsibility of the user of the scaffolding" (id. at 110).

The scaffolding on the Premises was "[s]tandard pipe scaffolding with bicycle and frames and planks" (id. at 82), with "[e]very third frame [] fully planked to prevent stuff from falling from above to below" (id. at 83). The bicycles were also covered with planks. According to McIndoo, "Arsenal provided the initial planks for the setup of the scaffolding . . . . And [Standard] . . . brought additional planks on their own" for use on the bicycles (id. at 46-47).

McIndoo testified that the planks on the frame were wired together and nailed into place so they would not move (id. at 85). The planks on the bicycles were fastened in a manner that allowed them to be moved from one section of the scaffolding to another as needed for the work (id. at 86). The bicycle planks were "tied down and secured prior to a worker accessing them" (id. at 86). Properly tying down the bicycle planks "was the responsibility of the subcontractor using the scaffolding, and their competent person" (id. at 86).

Standard was the subcontractor using the scaffolding, so it would have been responsible for moving the bicycle planks (id. at 109) and the safety of those planks (id. at 87). Before CCNY would allow them to begin work from scaffolding, a subcontractor such as Standard would need to provide a "check list to confirm that they were working on the scaffolding and that it was in safe order" (id. at 87-88).

McIndoo testified that he was only aware of the general safety of the scaffold, but he could not "100 percent confirm" that the planking was properly secured on the day of the accident (id. at 91). If CCNY noticed that planking was not properly tied down, CCNY "would have noted it at some point in our documents" (id. at 92).

McIndoo testified that he was unfamiliar with Xuntos, and he was unaware that Standard subcontracted out any of its contracted work under Standard's contract with CCNY (id. at 96). He thought that Gonzales was a Standard employee.

McIndoo did not learn of the accident until the start of litigation. CCNY was unaware of the accident and, therefore, did not prepare an incident report (id. at 99).

Philip Susi testified that on the day of the accident he was the owner and president of Arsenal, a scaffold rental and installation company. Arsenal provided and erected the scaffolding at the Premises, as a part of the Project, beginning in February of 2017 (Susi tr at 25), 18 months prior to the accident. While some scaffolding was erected by a prior contractor, the subject scaffolding was installed by Arsenal (id. at 38-39). Susi testified that the scaffolding it installed at the Premises was "regular pipe scaffolding" (id. at 55).

Typically, when Arsenal finishes installation, it performs a walkthrough inspection with the hiring entity, who will then sign off on it. Once the sign off occurs, Arsenal "releases" the scaffold to that entity (id. at 41). It is then the responsibility of whatever company that uses the scaffolding to inspect it (id. at 44 ["they perform the daily inspections"]). Otherwise, Arsenal would only perform six-month inspections, as required by contract and New York law (id. at 49). Susi testified that he had no knowledge of whether the subject scaffold was so inspected (id. at 49).

Susi testified that, when installing a scaffold, Arsenal would secure planking with "a combination of nails, toe nails and a combination of nine wire" (id. at 60). This securing method was for planking on both the primary scaffold sections and on the bicycles. According to Susi, it is common for subcontractors to remove parts of the scaffolding and put it elsewhere as the work required (id. at 63-65 ["Most likely it is the guys doing the work that create it because they are moving planks around to . . . repoint the building"]). If Arsenal inspected a scaffold that was [*4]altered in this manner, it would direct the general contractor or owner to remedy the issues (id. a 64).

Arsenal was never informed of the accident and, therefore, did not prepare an accident report or investigate (id. at 77).

Marcos Villaverde testified that on the day of the accident, he was the owner of Xuntos, a waterproofing and brickwork subcontractor company (Villaverde tr at 13). Xuntos was Standard's subcontractor for the Project (id. at 39). Xuntos's foreman was Gonzales. Gonzales directed and supervised the Xuntos workers (id. at 55).

Xuntos employs two classes of workers, bricklayers and helpers. Bricklayers install brickwork, while helpers "clean and mix[] the cement" (id. at 14). Villaverde explained that, as a general practice Xuntos helpers were not allowed on scaffolding (id. at 70). He later testified that helpers might use the scaffolding to bring cement to the bricklayers, but he did not know whether that was done at the Project (id. at 140).

Xuntos only did work for Standard, and Xuntos workers wore Standard t-shirts. Villaverde would receive job information from Standard and get contracts to sign from Standard's office (id. at 24). Standard would provide the materials for the jobs while Xuntos would provide the manpower and tools (id. at 44). Villaverde also testified that "[m]ost of [Xuntos's] work is scaffolding work" (id. at 28). Only scaffold certified Xuntos employees were allowed on the scaffolds (id. at 33), and he checked whether his employees had OSHA certificates "most of the time" (id. at 34). Xuntos workers were sent to scaffold training by Standard (id. at 111).

Standard was not on site all the time, but a Standard employee would "check [] out the job like every week or every few days" and would check on the progress of Xuntos's work (id. at 37), which included exterior brickwork and pointing (id. at 41). For "most of the work, [Xuntos workers] work[ed] on pipe scaffolds" (id. at 42). He did not know who constructed the scaffold, as it was fully installed prior to the start of Xuntos's work. Xuntos did not have any riggers, they relied on Standard's riggers regarding the scaffolding (id. at 84).

Villaverde further testified that Xuntos workers did not install planking or ever bring planks to the Premises. Villaverde believed that there was someone on site who was responsible for inspecting the scaffolding every day (id. at 95), but he did not know for sure, as Villaverde was rarely at the Premises (id. at 52). He also testified that when installing planks on a bicycle, he saw his workers use wire to secure the planks, but never nails (id. at 113-114).

Villaverde first learned of the accident by telephone from Gonzales (id. at 59). He learned that a Xuntos worker named Ramon Almonte was hurt in an unwitnessed accident (id. at 60). He understood that Almonte was "a helper" (id. at 60) and, therefore, Almonte was not allowed on the scaffold. Sometime later, Gonzales told him that Almonte was plaintiff (id. at 71).

Two days after learning of the accident, he met with plaintiff just outside Premises and the two spoke (id. at 61). In that conversation, plaintiff requested "to stay home for . . . maybe one, two, three, four weeks" (id. at 63). Villaverde agreed and continued paying plaintiff his full salary for "16, 18 weeks" while plaintiff did not work (id. at 67). He never spoke with plaintiff again (id. at 70). Villaverde only stopped paying plaintiff when he learned of the instant lawsuit.Villaverde did not know all the Xuntos workers, and he did not know who hired them (id. [*5]at 127). At the deposition, Villaverde was shown a Certificate of Fitness for certain types of scaffold work dated September of 2018 (prior to the accident), signed by Standard's president. The certificate included the name "Petronilo Pena" and a photograph of plaintiff (id. at 129). Villaverde was also shown two Certificates of Completion for scaffold safety courses bearing the name Petronilo Pena, dated August 2018 (prior to the accident) (id. at 145). After reviewing these documents, Villaverde testified that he did not recall plaintiff.

Villaverde was not present at the Premises at the time of the accident, and he had no personal knowledge of it (id. at 139). He never told plaintiff not to use the scaffolding and was unaware of whether anyone had ever told him that (id. at 154).

Alejandro Gonzales stated that at the time of the accident, he was the Xuntos foreman at the Project. He oversaw plaintiff's work. He stated that Standard provided Xuntos direction "on a weekly basis . . . as to how the work should be completed" (Gonzales Aff, 4; NYSCEF Doc. No. 307). Gonzales also stated that Xuntos never altered or otherwise maintained the scaffolds at the Project (id., 7).

Gonzales stated that plaintiff's "job responsibilities did not include him performing any work on scaffolding" (id., 19) and that he "never instructed [plaintiff] to perform any work on the scaffolding" (id., 20).

Gonzales also stated that plaintiff did not inform him of the accident until the day after it happened (id., 24-25). Finally, Gonzales stated that he never saw plaintiff working on a scaffold, nor did he witness the accident (id., 30-34).

"'[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'" (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [emphasis 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'" (Schiraldi v U.S. Min. Prods., 194 AD2d 482, 483 [1st Dept 1993]). "If there is any doubt as to the existence of a triable issue, the motion [for summary judgment] should be denied" (Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]; citing Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).

Building Defendants argue, pursuant to CPLR 3212 (f), that plaintiff's motion is untimely and should not be considered. Specifically, they claim that the outstanding deposition of Gonzalez is necessary to address the common-law negligence and Labor Law § 200 claims in this action. Building Defendants further argue that they became aware of the need for this deposition only after plaintiff filed his summary judgment motion.

Importantly, plaintiff's motion does not seek relief on the common-law negligence or Labor Law § 200 claims against any defendant.

Building Defendants argue that it was not known that Gonzalez's deposition would be necessary until the deposition of Villaverde which occurred two months after plaintiff filed his motion. However, Gonzalez's name was known to Building Defendants as early as plaintiff's deposition, taken July 1, 2021, and plaintiff's testimony contained explicit statements that Gonzalez directed his work and specifically directed him to work from the scaffolding. Building Defendants cannot in this motion — made over a year after plaintiff's deposition — claim surprise that Gonzalez has knowledge of the scope of plaintiff's work responsibilities.

Further, considering plaintiff's motion does not address negligence, Building Defendants fail to articulate or "demonstrate that facts essential to justify opposition to [plaintiff's] motion might exist but could not then be stated" (Alcor Life Extension Found. v Johnson, 136 AD3d 464, 464 [1st Dept 2016]). Further, Building Defendants obtained Gonzalez's affidavit, and filed it in support of their own motion (which does include relief on the negligence and section 200 claims).

Accordingly, the court will consider plaintiff's motion.

Plaintiff moves for summary judgment in his favor on the Labor Law § 240 (1) claim against defendants. Building Defendants move for summary judgment dismissing 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 gravity to an object or person'" (Anderson v MSG Holdings, L.P., 146 AD3d 401, 402 [1st Dept 2017], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

Section 240 (1) provides absolute liability, but that 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" (Kebe v Greenpoint-Goldman Corp., 150 AD3d 453, 453-54 [1st Dept 2017] [internal quotation marks and citation omitted]). However, not all workers injured at a construction site fall within the scope of Labor Law § 240 (1). "[A] [*6]distinction must be made between those accidents caused by the failure to provide a safety device required by Labor Law § 240 (1) and those caused by the general hazards of a workplace" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268 [2001]). General hazards do not fall within the scope of the Labor Law (see Thompson v St. Charles Condominiums, 303 AD2d 152, 153 [1st Dept 2003]). Instead, to establish liability, a plaintiff must establish "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, 96 NY2d at 267).

Here, plaintiff alleges that a plank fell from the scaffold on his head. Accordingly, plaintiff's accident contemplates "falling object" liability. "In order to prevail on summary judgment in a section 240 (1) 'falling object' case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein. Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured or required securing for the purposes of the undertaking (Fabrizi v 1095 Ave. of Ams., L.L.C., 22 NY3d 658, 662-63 [2014] [internal quotation marks and citations omitted]).

Plaintiff's testimony establishes that at the time of the accident, he was working on the fourth floor of a scaffold when the Plank— a plank from the "bicycles" on the fifth floor of the scaffolding, directly above where plaintiff was working — fell and struck him (plaintiff's tr at 107). Plaintiff further testified that the Plank was unsecured in that it was "loose," i.e. not properly tied or otherwise secured to the scaffold supports (id. at 103).

Importantly, "[i]n cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, the Court of Appeals has applied a presumption that the ladder or scaffolding device was not good enough to afford proper protection" (Kebe, 150 AD3d at 454 [internal quotation marks omitted]; quoting Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 289, n8 [2003]).

Here, plaintiff's testimony establishes, prima facie, that the Plank that fell on him was a part of the scaffold, and that it was insufficiently secured. Being a part of the scaffold, it required securing for the purpose of the undertaking — i.e. to prevent an object from falling onto plaintiff (see e.g., Outar v City of New York, 5 NY3d 731, 731 [2005]; Medouze v Plaza Constr. LLC, 199 AD3d 465, 465 [1st Dept 2021] ["the inadequacy or failure of a device meant to secure an object is sufficient to impose liability on a defendant under section 240 (1)"]).

Further, the fact that the scaffold malfunctioned when the insufficiently secured Plank fell on plaintiff establishes that the scaffold itself did not afford proper protection to plaintiff (Kebe, supra; see generally Arnaud v 140 Edgecomb LLC, 83 AD3d 507, 508 [1st Dept 2011] [wooden plank required securing for the purpose of the undertaking]; see also Thompson v St. Charles Condominiums, 303 AD2d 152, 154 [1st Dept 2003] [section 240 (1) applies "regardless of whether the employee was on or under the scaffold when it collapsed"] [emphasis omitted]). Accordingly, plaintiff has met his prima facie burden for summary judgment in his favor on the section 240 (1) claim.

In opposition, defendants first argue that a question of fact exists regarding whether plaintiff is Almonte or Pena Cerda. This is immaterial as there is no dispute that the worker — whether known as Almonte or Pena Cerda — was the employee involved in the subject accident, and defendants raise no alternate version of said accident (see Bessa v Anflo Indus., Inc., 148 AD3d 974, 976 [2d Dept 2017] ["The appellants failed to articulate how the use of the wrong name would have garnered the plaintiff any advantage in this litigation. Furthermore, the [*7]appellants learned of the plaintiff's correct legal name during the course of discovery, and they failed to establish that they suffered any prejudice by the plaintiff's use of the wrong name"]). Accordingly, any confusion as to plaintiff's proper name, without more, does not raise an issue of fact as to whether the accident occurred, or how it occurred.

Next, defendants argue that plaintiff was the sole proximate cause of his accident because he was not supposed to be on the scaffold and, but for his choice to be there, his accident would not have happened. This argument is unavailing as plaintiff has established the existence of a section 240 (1) violation that proximately caused his accident (Blake, 1 NY3d at 290]["it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury"]; Cazho v Urban Bldrs. Group, Inc., 205 AD3d 411, 412 [1st Dept 2022], quoting Kielar v Metropolitan Museum of Art, 55 AD3d 456, 458 [1st Dept 2008] ["[T]he Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence. It is absolutely clear that if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it"] [internal quotation marks and citations omitted]).

Therefore, as plaintiff has established that section 240 (1) was violated, he cannot be the sole proximate cause of the accident. This is so, "even if . . . plaintiff was in an area of the worksite where he was not supposed to be at the time of his accident" (Hewitt v NY 70th St. LLC, 187 AD3d 574, 575 [1st Dept 2020]). Being where he was not supposed to be "would at most constitute comparative negligence, which is not a defense to a Labor Law § 240 (1) claim" (id. at 575).

Defendants also argue that plaintiff was recalcitrant because he ignored a direct order to stay off the scaffolding. However, there is no evidence that plaintiff was ever actually informed of this purported restriction (Kristo v Board of Ed. of the City of NY, 134 AD3d 550 (1st Dept. 2015) ("defendants' recalcitrant worker defense, predicated on plaintiff's alleged entry into an area of the scaffold that had been cordoned off, is unavailing, as there was no evidence that plaintiff had been instructed on the day of the accident not enter or use the cordoned off area"]).

Here, Gonzalez did not state that he informed plaintiff that it was forbidden for plaintiff to work on the scaffold. Rather, he stated only that he never specifically told plaintiff to work on the scaffold (Gonzalez aff; 19-20). Similarly, Villaverde's testimony that, generally, "helpers" were not allowed on scaffolding (Villaverde tr at 70) does not establish that he, or anyone else, ever directed plaintiff to stay off the scaffolding (see e.g. Rivera v Ambassador Fuel & Oil Burner Corp., 45 AD3d 275, 276 [1st Dept 2007] ["A worker does not become recalcitrant merely by disobeying a general instruction not to use certain equipment, if safer alternatives are not supplied"]). In any event, as noted above, plaintiff being someplace where he was not supposed to be at the time an insufficiently secured object fell on his head constitutes, at most, comparative negligence (Hewitt, 187 AD3d at 575). Moreover, Villaverde testified that he never personally told plaintiff not to use the scaffolding, and he was unaware of whether anyone had ever told plaintiff that information (Villaverde tr at 154).

To the extent that there is a lack of certainty as to exactly what caused the Plank to fall, this does not raise an issue of fact as to proximate causation (Arnaud, 83 AD3d at 508). In addition, the argument that plaintiff failed to identify what safety device would have prevented the accident is meritless, as a plaintiff is not required to make such a determination where the very safety device provided failed (see e.g. Pinzon v Royal Charter Props., Inc., 211 AD3d 442, 444 [1st Dept 2022]).

Further, inconsistencies in the worker's compensation file and medical records regarding whether plaintiff was struck by a falling plank or a falling piece of plywood are also immaterial as under either version of the accident, section 240 (1) would be violated (see Valdez v City of New York, 189 AD3d 425, 425 [1st Dept 2020]). Moreover, statements in uncertified medical records about the specifics of an accident are "not germane to plaintiff's diagnosis and treatment" and, therefore, insufficient to raise an issue of fact as to how the accident occurred (Ging v F.J. Sciame Constr. Co., Inc., 193 AD3d 415, 417 [1st Dept 2021] [internal quotation marks and citation omitted]).

Finally, the fact that the accident was unwitnessed "does not preclude summary judgment in [plaintiff's] favor, since nothing in the record controverts his account of the accident or calls his credibility into question" (Rroku v West Rac Contr. Corp., 164 AD3d 1176, 1177 [1st Dept 2018]).

Given the foregoing, plaintiff is entitled to summary judgment in his favor on his Labor Law § 240 (1) claim as against defendants and defendants are not entitled to summary judgment dismissing the same.

Building Defendants move for summary judgment dismissing the Labor Law § 241 (6) claim as against them. Plaintiff moves for summary judgment in his favor on certain parts of the Labor Law § 241 (6) claim, as discussed more fully below.

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

"All contractors and owners and their agents, . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

* * *

(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped . . . as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."

Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors "'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]; 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 specification" of the Industrial Code, rather than a provision that considers only general worker safety requirements (Messina v City of New York, 300 AD2d 121, 122 [1st Dept 2002]). Such violation must be a proximate cause of the plaintiff's 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 [*8]circumstance is a question of law for the court" (Harrison v State of New York, 88 AD3d 951, 953 [2d Dept 2011]).

As an initial matter, plaintiff lists multiple violations of the Industrial Code in the bill of particulars. Except for sections 23-1.7 (a) (1), 23-5.1 (e) (1), 23-5.1 (i), 23-5.3 (d) (3) and 23-5.6 (e), plaintiff did not seek relief in his favor or oppose their dismissal. These uncontested provisions are deemed abandoned (Kempisty v 246 Spring St., LLC, 92 AD3d 474, 475 [1st Dept 2012] ["Where a defendant so moves, it is appropriate to find that a plaintiff who fails to respond to allegations that a certain section is inapplicable or was not violated be deemed to abandon reliance on that particular Industrial Code section"]). The court will now address the remaining claims.

Industrial Code section 23-1.7 (a) (1) is sufficiently specific to support a Labor Law § 241 (6) claim (Murtha v Integral Constr. Corp., 253 AD2d 637, 639 [1st Dept 1998]). Section 23-1.7 (a) (1) provides, in pertinent part, the following:

"(a) Overhead hazards. (1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection."

Section 23-1.7 (a) (1) requires that the accident area must be normally exposed to falling objects (Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 271 [1st Dept 2007] ["where an object unexpectedly falls on a worker in an area not normally exposed to such hazards, the regulation does not apply"]).

Here, the record contains no facts or testimony establishing that the accident area is one that was normally exposed to falling objects as contemplated by section 1.7 (a) (1). Accordingly, this provision is inapplicable to plaintiff's accident (id.).

Industrial Code 12 NYCRR 23-5.1 (e) (1) is sufficiently specific to support a Labor Law § 241 (6) claim (Susko v 337 Greenwich LLC, 103 AD3d 434, 436 [1st Dept 2013]). It provides, the following:

"Except on needle beam and pole scaffolds, scaffold planks shall extend not less than six inches beyond any support nor more than 18 inches beyond any end support. Such six inch minimum requirement shall not apply when such planks are securely fastened in place. Scaffold planks shall be laid tight and inclined planking shall be securely fastened in place."

Here, there is no testimony regarding whether the planks extended less than six inches or more than 18 inches beyond any support. Plaintiff argues that the planks were not "laid tight" based on Susi's testimony that some planks in a photograph looked loose. However, there was no testimony that the subject photograph depicted the scaffolding at the accident location, or the condition of the scaffold at the time of plaintiff's accident. Plaintiff's argument that the Plank could not have been laid tight because it fell is conclusory and insufficient to establish his [*9]entitlement to summary judgment on this claim.

Accordingly, plaintiff has failed to meet his prima facie entitlement to summary judgment on this claim.

In opposition, Building Defendants argue that there is no evidence supporting that the Plank was insufficiently "laid tight" in violation of the statute, or that such insufficiency was a proximate cause of the accident. Building Defendants arguments only point to gaps in plaintiff's proof, and a "defendant cannot obtain summary judgment by pointing to gaps in plaintiff['s] proof" (Bryan v 250 Church Assoc., LLC, 60 AD3d 578 [1st Dept 2009] [internal quotation marks and citation omitted]).

Accordingly, Building Defendants are not entitled to summary judgment dismissing that part of the section 241 (6) claim predicated on a violation of section 23-5.1 (e) (1), and plaintiff is not entitled to summary judgment in his favor on the same claim.

12 NYCRR 23-5.1 (i) is sufficiently specific to support a Labor Law § 241 (6) claim (Zervos v City of New York, 8 AD3d 477, 480 [2d Dept 2004]). It provides the following:

"Overhead protection when required for any scaffold shall consist of planking not less than two inches thick full size, exterior grade plywood not less than three-quarters inch thick or material of equivalent strength. Such planks used for overhead protection shall be laid tight, shall extend the full length and width of the working platform. Such overhead protection shall be located not more than 10 feet above the surface of the working platform. Such overhead protection shall not be used to support any person, material, tools or equipment."

Building Defendants argue that this provision does not apply to scaffold planks that are part of a scaffold's work surface. The court agrees. This provision specifically governs "overhead protection" and explains that "[s]uch overhead protection shall not be used to support any person, material, tools or equipment" (12 NYCRR 23-5.1 [i]).

Here, the planking above plaintiff was a part of the fifth floor of the scaffolding — meant to support workers, materials, tools and equipment. In other words, it was not designed as overhead protection as contemplated by this provision.

Accordingly, this provision is inapplicable to plaintiff's accident. Building Defendants are, therefore, entitled to summary judgment dismissing that part of plaintiff's Labor Law § 241 (6) claim predicated upon a violation of Industrial Code 12 NYCRR 23-5.1 (i).

Industrial Code 12 NYCRR 23-5.3 governs general provisions for metal scaffolds. Subsection (d) governs "minimum uniform live loads." Section 23-5.3 (d) (3) provides, as relevant, that "metal scaffolds shall be designed and constructed to support the dead loads, such as platforms, frames, safety railings and other members."

Here, there is no testimony, expert or otherwise, that the scaffold collapsed due to a failure to support a dead load. Rather, the testimony is that a loose plank fell.

Accordingly, this provision does not apply to plaintiff's accident.

Industrial Code 12 NYCRR 23-5.6 governs "Pole Scaffolds." Subsection (e) governs planking on pole scaffolds. There is, however, no testimony as to whether the subject scaffold [*10]was a "pole scaffold," or whether — provided the subject scaffolding was "pipe scaffolding" — pole scaffolding is materially different from pipe scaffolding. In the absence of such testimony, the court cannot determine whether this provision applies.

In addition, neither party has cited an applicable case regarding whether section 23-5.6 (e) is sufficiently specific to support a claim. Further, plaintiff has not articulated any argument as to the sufficiency of this provision's specificity. Accordingly, plaintiff is not entitled to summary judgment in his favor on this claim and Building Defendants are not entitled to dismissal of the same.

Building Defendants 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" (Singh v Black Diamonds LLC, 24 AD3d 138, 139 [1st Dept 2005], citing Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). Labor Law § 200 (1) states, in pertinent part, as follows:

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

"Liability pursuant to Labor Law § 200 may be based either upon the manner in which the work is performed or actual or constructive notice of a dangerous condition inherent in the premises" (Markey v C.F.M.M. Owners Corp., 51 AD3d 734, 736 [2d Dept 2008]; see also Griffin v New York City Tr. Auth., 16 AD3d 202, 202 [1st Dept 2005]).

"Where a plaintiff's claims implicate the means and methods of the work, an owner or a contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work" (LaRosa v Internap Network Servs. Corp., 83 AD3d 905, 909 [2d Dept 2011]; Andino v Wizards Studios N. Inc., 223 AD3d 508, 509 [1st Dept 2024]). Specifically, "liability can only be imposed against a party who exercises actual supervision of the injury-producing work" (Naughton v City of New York, 94 AD3d 1, 11 [1st Dept 2012])

However, where an injury stems from a dangerous condition inherent in the premises, an owner or contractor may be liable in common-law negligence and under Labor Law § 200 when the owner or contractor "'created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice'" (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011], quoting Chowdhury v Rodriguez, 57 AD3d 121, 128 [2d Dept 2008]).

Here, plaintiff's accident was caused when an insufficiently secured scaffold plank came loose and fell on to him. Accordingly, plaintiff's accident was caused by the means and methods of the work — specifically the maintenance and securing of the planks on the scaffold's bicycles.

A review of the record establishes that Cydonia (as the owner) and CCNY (as the general contractor) did not have the actual authority to supervise or control the maintenance or securing of the planks on the scaffold.

Plaintiff provides no opposition with respect to these claims, though Xuntos does. In its opposition, Xuntos argues that CCNY had the authority to maintain and secure the subject scaffold because it possessed the general duty to keep the Premises in a safe condition. This argument is incorrect, as general supervisory authority is insufficient to establish liability under section 200 (see Bisram v Long Is. Jewish Hosp., 116 AD3d 475, 476 [1st Dept 2014] [where a contractor "may have coordinated the subcontractors at the work site or told them where to work on a given day, and had the authority to review onsite safety . . . those responsibilities do not rise to the level of supervision or control necessary to hold the [contractor] liable for plaintiff's injuries under Labor Law § 200"]; Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept 2007] ["it must be demonstrated that the contractor controlled . . . how the injury-producing work was performed"]).

Xuntos's reliance on Pardo v Bialystoker Ctr. & Bikur Cholim, Inc., 10 AD3d 298[1st Dept 2004] is misplaced. In Pardo, questions of fact as to whether the contractor has actual control over the maintenance of the scaffold existed, because its' owner "testified that his company provided the scaffold" and "that [the owner] would 'check to see how [the scaffolds] were tied back to the building, if they were properly secured" (id. at 301).

Finally, to the extent it is argued that the accident was caused by a dangerous condition inherent in the Premises, it was not. "Where a defect is not inherent but is created by the manner in which the work is performed, the claim under Labor Law § 200 is one for means and methods and not one for a dangerous condition existing on the premises" (Villanueva v 114 Fifth Ave. Assoc. LLC, 162 AD3d 404, 406 [1st Dept 2018]). Here, the condition was caused by the way the scaffold planks were maintained and secured at the Premises — i.e. the means and methods of scaffold maintenance.

Accordingly, Building Defendants have established their entitlement to summary judgment dismissing the common-law negligence and Labor Law § 200 claims against them.

The Building Defendants move for summary judgment in their favor on their third-party contractual indemnification claim against Standard. Standard moves for summary judgment dismissing the same claim.

CCNY and Standard entered into a "Standard Form of Agreement Between Contractor and Subcontractor" (the CCNY/Standard Agreement) on October 6, 2017 (Building Defendants' notice of motion, exhibit V; NYSCEF Doc. No. 305). The agreement is for work on the Project, and lists Cydonia as the owner (id. at 1). It contains an indemnification provision that provides, as relevant:

"To the fullest extent permitted by law, [Standard] shall indemnify and hold harmless [Cydonia], [CCNY], . . . and agents and employees of any of them from and against claims . . . including but not limited to attorney's fees, arising out of or resulting from performance of [Standard's] Work under this Subcontract . . . but only to the extent caused by the negligent acts or omissions of [Standard], [Standard's] Sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be [*11]liable . . ."

"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]; see also Bradley v NYU Langone Hosps., 223 AD3d 509, 511 [1st Dept 2024]).

"In contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of the statutory liability" (Correia v Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]; see also 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).

Here, the CCNY/Standard Indemnification Provision requires a finding that the accident arose from Standard's negligent acts or omissions. Accordingly, for this indemnification provision to apply, there must be a determination that Standard, or its subcontractors were negligent. Building Defendants do not address whether Standard, or its subcontractor Xuntos, were negligent with respect to plaintiff's accident, and there has been no judicial determination on this point.

Accordingly, Building Defendants have failed to meet their prima facie burden as to indemnification from Standard, and are not entitled to summary judgment in their favor on this claim. As to Standard, it fails to address this issue in its own motion and, therefore, Standard is not entitled to summary judgment dismissing this claim.

Standard moves for summary judgment in its favor on its second third-party contractual indemnification claim against Xuntos.

Standard and Xuntos entered into a "Construction Sub-Contractor Agreement" (the Standard/Xuntos Agreement) on September 25, 2017, for the Project (Building Defendants' notice of motion, exhibit W; NYSCEF Doc. No. 306). The scope of work included that Xuntos would provide "all of the labor and materials to perform work" for Standard at the Premises (id., Art. 1.1).

The Standard/Xuntos Agreement contains two indemnification provisions, one in the main agreement and one in a rider (the Rider). The Rider is fully executed and dated the same date as the Standard/Xuntos Agreement. By its' terms, the Rider's indemnification provision "shall supersede and govern any inconsistent terms" (id., Rider). Accordingly, the Rider's indemnification provision is the active provision herein.

The Rider's indemnification provision provides the following, as relevant:

"[T]o the fullest extent permitted by law, [Xuntos] shall defend and shall indemnify . . . [*12][Standard], all entities [Standard] is required to indemnify and hold harmless, the Owner of the property . . . from and against all liability or claimed liability for bodily injury . . . including attorney's fees . . . arising out of or resulting from the Work covered by this Contract Agreement, to the extent such Work was performed by or contracted through [Xuntos] . . ."

As this provision applies to any injury "arising out of" Xuntos's work under the Standard/Xuntos Agreement, it is applicable to plaintiff's accident (see Worth Const. Co., Inc. v Admiral Ins. Co., 10 NY3d 411, 415 [2008] ["The phrase arising out of has been interpreted by this Court to mean originating from, incident to, or having connection with"] [internal quotation marks and citations omitted]; see also Weidtman v Tremont Renaissance Hous. Dev. Fund Co., Inc., 224 AD3d 488, 491 [1st Dept 2024]). Specifically, plaintiff was injured while he was performing work originating from and in connection with the Standard/Xuntos Agreement.

That said, in order to obtain indemnification at this time, Standard must establish its freedom from negligence (Lexington Ins. Co., 182 AD3d at 464 [denying summary judgment where indemnitee "has not established that it was free from negligence"]).

While Standard argues that it is free from negligence, questions of fact remain as to who was responsible for maintaining and securing the subject Plank. Specifically, McIndoo testified that Standard brought planks on site for use on the scaffolding (McIndoo tr at 46-47["Arsenal provided the initial planks for the setup of the scaffolding . . . . And [Standard] . . . brought additional planks on their own"]). In addition, McIndoo testified that scaffold safety was the responsibility of the scaffold user (McIndoo tr at 110), and it has not been established whether Standard retained that responsibility for its subcontracted work. This is underscored by Villaverde's testimony that Xuntos relied on Standard's riggers for scaffolding matters (Villaverde tr at 84).

Given the foregoing, there remains a question of fact as to whether Standard was negligent with respect to the installation or securing of the plank. Accordingly, Standard has not met its prima facie burden and is not entitled to summary judgment on its indemnification claim against Xuntos at this time (Lexington Ins. Co., 182 AD3d at 464).

The Building Defendants move for summary judgment in their favor on their second third-party contractual indemnification cross-claim against Xuntos. Building Defendants argue that the Standard/Xuntos Indemnification Provision applies to them as well as to Standard, and that Xuntos owes it direct indemnification.

In opposition, Xuntos does not challenge that the indemnification provision applies to the Building Defendants. Rather, it argues that the accident did not arise from its negligence.

Importantly, unlike the CCNY/Standard Indemnification Provision, the Standard/Xuntos Indemnification Provision does not require a finding of negligence before it triggers. Accordingly, whether Xuntos was negligent is immaterial (Correia, 259 AD2d at 65).

As noted above, plaintiff was working for Xuntos on work that was the subject of the Standard/Xuntos Agreement. Therefore, the accident arose from Xuntos's work (see e.g. Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 15 NY3d 34, 38 [2010]).

Xuntos next argues that the Building Defendants are not free from negligence as they had a general authority to keep the Premises in a safe condition. However, as discussed above, such [*13]a general authority does not constitute the type of authority and control over the injury producing work that would give rise to liability under common-law negligence or Labor Law § 200 (Bisram, 116 AD3d at 476; Hughes, 40 AD3d at 306).

Accordingly, as Building Defendants were not liable for plaintiff's accident under the common-law or Labor Law § 200, they are entitled to summary judgment on their contractual indemnification claims against Xuntos, and Xuntos is not entitled to summary judgment dismissing the same.

Building Defendants move for summary judgment in their favor on their cross-claims against Standard and Arsenal.

"To establish a claim for common-law indemnification, 'the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident'" (Pena v Intergate Manhattan LLC, 194 AD3d 576, 578 [1st Dept 2021], quoting Correia, 259 AD2d at 65).

"Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person" (Godoy v Abamaster of Miami, 302 AD2d 57, 61 [2d Dept 2003] [internal quotation marks and citations omitted]). Importantly, only a "negligent party who is subject to liability under Labor Law § 240 may seek contribution from another party whose culpable fault was also a cause of the injury" (Shelton v Chelsea Piers, L.P., 214 AD3d 490, 490 [1st Dept 2023], quoting Burgos v 213 W. 23rd St. Group LLC, 48 AD3d 283, 284 [1st Dept. 2008]).

Here, as discussed above, Building Defendants have established their freedom from negligence. However, there remain questions of facts as to who was responsible for maintaining and securing the subject Plank.

While Arsenal was responsible for the initial installation and inspection of the subject Scaffold, it has not been established, as a matter of law, that the subject Plank was installed by Arsenal in an unsafe manner when the scaffold was first installed. Nor has it been established that Arsenal maintained any continuing inspection duties once the subcontractors began working from the scaffolding. This issue is underscored by CCNY's own witness testimony that Arsenal was not responsible for monitoring scaffold stability (McIndoo tr at 110 [stating that continuing scaffold safety "was the responsibility of the user of the scaffolding"]).

Similarly, while there is testimony that Standard brought planks to the Premises, there is no proof sufficient to establish, as a matter of law, that the subject Plank was one of Standard's planks, or that the Plank had been manipulated or altered by Standard.

Accordingly, as Building Defendants have failed to establish who was responsible for maintaining and securing the subject Plank, or their relative culpability (if any), Building Defendants are not entitled to common-law indemnification at this time.

As to contribution, as Building Defendants were not negligent parties to the subject accident, their contribution claim is inapplicable to this action (Shelton, 214 AD3d at 490). Accordingly, they are not entitled to summary judgment in their favor on this claim.

Standard moves for summary judgment in their favor on their breach of contract for the failure to procure insurance claim against Xuntos.

Standard argues that Xuntos's insurer's failure to accept tender of the claim related to plaintiff's accident establishes Xuntos's failure to procure insurance. This is incorrect (Martinez v Tishman Constr. Corp., 227 AD2d 298, 299 [1st Dept 1996] [an insurance company's refusal to indemnify under a procured policy does not give rise to breach of contract for the failure to procure insurance, where the insured "fulfilled its contractual obligation to procure proper insurance . . ."]; see also Perez v Morse Diesel Intl., Inc., 10 AD3d 497, 498 [1st Dept 2004] [denying a breach of contract for the failure to procure insurance claim where a policy was procured, noting that "[t]he insurer's refusal to indemnify [the contractor] under the coverage purchased by [the subcontractor] does not alter this conclusion"]).

In addition, Xuntos provides a copy of its policy (Xuntos affirmation in opposition, exhibit D; NYSCEF Doc. No. 332).

Accordingly, Standard is not entitled to summary judgment in its favor on this claim.

Building Defendants move for summary judgment dismissing all cross-claims against them for common-law indemnification and contribution.

As it has been determined that Building Defendants were free from negligence with respect to the accident, they are entitled to summary judgment dismissing these claims (Pena, 194 AD3d at 578).

Standard moves for summary judgment dismissing Xuntos's common-law indemnification and contribution claims against Standard.

As noted above, there remain questions of fact as to whether several defendants, including both Standard and Xuntos were responsible for properly maintaining the scaffold planking at the Premises. Accordingly, Standard is not entitled to summary judgment dismissing these claims.

Standard moves for summary judgment dismissing Xuntos's claims for contractual indemnification and breach of contract for the failure to procure insurance against Standard.

Standard argues, correctly, that the Standard/Xuntos Agreement does not contain an indemnification provision requiring Standard to indemnify Xuntos, nor does it contain an insurance procurement provision requiring Standard to procure such insurance with respect to [*15]Xuntos.

Accordingly, Standard is entitled to summary judgment dismissing Xuntos's cross-claims for contractual indemnification and breach of contract for the failure to procure insurance.

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

For the foregoing reasons, it is hereby

ORDERED that the motion of plaintiff Petronilo Pena Cerda (motion sequence number 003), pursuant to CPLR 3212, for summary judgment in his favor on his Labor Law § 240 (1) and 241 (6) claims against defendant/third-party plaintiff Cydonia W71, LLC and defendant CCNY Construction Corp, (together, Building Defendants) is granted with respect to the Labor Law § 240 (1) claim and is otherwise denied; and it is further

ORDERED that the branch of Building Defendant's motion (motion sequence number 004), pursuant to CPLR 3212, for summary judgment dismissing the common-law negligence and Labor Law §§ 200, 240 (1) and 241 (6) claims, and all cross-claims and counterclaims against it is granted to the extent that the common-law negligence and Labor Law § 200 and all Labor Law § 241 (6) claims, except that portion of the claim predicated upon a violation of Industrial Codes 12 NYCRR 23-5.1 (e) (1) and 23-5.6 (e), as well as all cross-claims and counterclaims against it are dismissed; and that branch of the motion is otherwise denied; and it is further

ORDERED that the branch of Building Defendants' motion (motion sequence number 004), pursuant to CPLR 3212, for summary judgment in their favor on their third-party claims against third-party defendant/second-third-party plaintiff Standard Waterproofing Corp. (Standard) and second-third-party defendant Xuntos Construction Corp. (Xuntos) is granted to the extent that its contractual indemnification claim is granted as against Xuntos; and this branch of the motion is otherwise denied; and it is further

ORDERED that Standard's motion (motion sequence number 005), pursuant to CPLR 3212, for summary judgment in its favor on its second third-party claims against Xuntos, and for summary judgment dismissing all cross-claims and counterclaims against it is granted to the extent that Xuntos's claims against Standard for contractual indemnification and breach of contract for the failure to procure insurance are dismissed; and the motion is otherwise denied; and it is further

ORDERED that the remainder of this action will continue.

This constitutes the decision and order of the court.