At page 463 opposition to CW Equities’ motion, and CW Equities claims no prejudice from the late invocation of the provision (see Latchuk v Port Auth. of N.Y. & N.J., 71… · 5 citing cases
- Amante v. Pavarini McGovern, Inc., 127 A.D.3d 516 (N.Y. App. Div. 1st Dep't 2015).The broad indemnification clause provides for indemnification for injuries arising out of or in connection with the performance of the work of the subcontractor Scalamandre under the subcontract, whether caused in whole or in part by the s…
- Cerverizzo v. City of New York, 116 A.D.3d 469 (N.Y. App. Div. 1st Dep't 2014). The broad indemnification clause provides for indemnification for injuries “arising out of or in connection with . . . , the Work of the Subcontractor under this Subcontract . . . whether caused in whole or in part by the Subcontractor” an…
- Cuomo v. 53rd & 2nd Assocs., 111 A.D.3d 548 (N.Y. App. Div. 1st Dep't 2013). Although, as third-party plaintiffs concede, there are issues of fact as to Plaza’s active negligence, Plaza is entitled to conditional summary judgment on its claim for contractual indemnification; the extent of its indemnification depend…
- Wood v. Lefrak SBN Ltd. P'ship, 111 A.D.3d 532 (N.Y. App. Div. 1st Dep't 2013). The order directs Benihana “to indemnify Lefrak for any liability arising out of the accident that was not the result of Lefrak’s own negligence” (emphasis added) (see Burton v CW Equities, LLC, 97 AD3d 462, 463 [1st Dept 2012]).
- Flynn v. 835 6th Avenue Master L.P., 107 A.D.3d 614 (N.Y. App. Div. 1st Dep't 2013). The court properly permitted plaintiff to amend the bill of particulars, since no prejudice accrued from plaintiff’s late invocation of violations of 12 NYCRR 23-1.7 (e) (2) and 23-2.1 (a) (1), and the claims entailed no new factual allega…
At page 462 Contrary to defendants’ contention, the fact that the concrete walkway from which plaintiff John Burton fell was a permanent structure does not remove it from… · 4 citing cases
- Leveron v. Prana Growth Fund I, L.P., 121 N.Y.S.3d 242 (N.Y. App. Div. 1st Dep't 2020).Fund Corp. , 100 AD3d 431 , 432 [1st Dept 2012]; Burton v CW Equities, LLC , 97 AD3d 462, 462-463 [1st Dept 2012]).
- Mayer v. Conrad, 122 A.D.3d 1366 (N.Y. App. Div. 4th Dep't 2014). The record establishes that defendant visited the construction site every morning, including on the date of the accident (see Burton v CW Equities, LLC, 97 AD3d 462, 462 [2012]); that he engaged in regular conversations about the project w…
- DePaul v. NY Brush LLC, 120 A.D.3d 1046 (N.Y. App. Div. 1st Dep't 2014).This evidence raises triable issues of fact concerning Holt’s constructive notice (see Picaso v 345 E. 73 Owners Corp., 101 AD3d 511 [1st Dept 2012]; Burton v CW Equities, LLC, 97 AD3d 462, 462 [1st Dept 2012]).
- DePaul v. Coastal Elec. Constr. Corp., 114 A.D.3d 609 (N.Y. App. Div. 1st Dep't 2014). This evidence raises triable issues of fact about Holt’s constructive notice (see Picaso v 345 E. 73 Owners Corp., 101 AD3d 511 [1st Dept 2012]; Burton v CW Equities, LLC, 97 AD3d 462, 462 [1st Dept 2012]).
v.
CW Equities, LLC, and T.F.N. Development Corp., Doing Business as East Coast Construction Group, (And Other Third-Party Actions.)
Contrary to defendants’ contention, the fact that the concrete walkway from which plaintiff John Burton fell was a permanent structure does not remove it from the coverage of Labor Law § 240 (1). The walkway provided access to the rear yard of the building under construction, extending over an approximately 15-foot-deep vaulted area below grade level. However, it had no guard rails or other barriers. Thus, “plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).
Since plaintiffs injury did not arise from the method he used to perform his work, but from- a dangerous condition of the workplace, it is not dispositive of his Labor Law § 200 claim that CW Equities did not control the work at the building site (see Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 555 [2009]; Hernandez v Columbus Ctr., LLC, 50 AD3d 597, 598 [2008]). Whether CW Equities had the requisite notice of the dangerous condition is an issue of fact raised by its principal’s testimony that he visited the site approximately every other day (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). Similarly, as to plaintiffs common-law negligence claim, the record presents an issue of fact whether the dangerous condition should have been apparent upon visual inspection (see Urban, 62 AD3d at 555).
Although in his bill of particulars plaintiff did not allege a violation of Industrial Code (12 NYCRR) § 23-1.7 (b) (1) as a predicate for his Labor Law § 241 (6) claim, he identified it in[*463] opposition to CW Equities’ motion, and CW Equities claims no prejudice from the late invocation of the provision (see Latchuk v Port Auth. of N.Y. & N.J., 71 AD3d 560, 560-561 [2010]; Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 233 [2000]).
Notwithstanding the above-discussed issues of fact as to negligence on its part, CW Equities should have been granted summary judgment on its claim for indemnification, since the indemnification provision at issue does not require T.F.N. to indemnify CW Equities for CW Equities’ own negligence (see Brooks v Judlau Contr., Inc., 11 NY3d 204 [2008]; Hughey v RHM-88, LLC, 77 AD3d 520, 522-523 [2010]; Minorczyk v Dormitory Auth. of the State of N.Y., 74 AD 3d 675, 675-676 [2010]).
The decision and order of this Court entered herein on February 14, 2012 is hereby recalled and vacated (92 AD3d 509 [2012]; see 2012 NY Slip Op 78975[U] [2012] [decided simultaneously herewith]). Concur — Mazzarelli, J.P., Saxe, Moskowitz, Freeds man and Manzanet-Daniels, JJ.