& Casey, LLP, New York (Douglas R. Rosenzweig of
counsel), for appellants.
Zeitlin & Zeitlin P.C., Brooklyn (Nathan Belofsky of
counsel), for Janina Wilk, respondent.
Office of Steven G. Fauth, LLC, New York (Kim H. Townsend of
counsel), for A.C.T. Abatement Corporation, respondent.
Gruvman Giordano & Glaws, New York (Charles T. Glaws of
counsel), for Total Safety Consulting, LLC, respondent.
Sweeny, J.P., Renwick, Andrias, Feinman, Gesmer, JJ.
Supreme Court, New York County (George J. Silver, J.),
entered December 22, 2015, which, to the extent appealed from
as limited by the briefs, granted plaintiff's motion for
summary judgment as to liability under Labor Law §
240(1) against defendants/third-party plaintiffs Columbia
University, the Trustees of Columbia University in the City
of New York (collectively, Columbia) and Bovis Lend Lease,
LMB, Inc. (Bovis); denied the branch of Columbia and
Bovis's cross motion for summary judgment dismissing
plaintiff's claims under Labor Law §§ 200,
240(1) and 241(6); denied the branch of Columbia and
Bovis's cross motion seeking summary judgment on
Bovis's claim for contractual indemnification against
third-party/fourth-party plaintiff A.C.T. Abatement
Corporation (ACT); denied the branch of Columbia and
Bovis's cross motion seeking summary judgment on their
common-law indemnification and contribution claims against
ACT; denied the branch of Columbia and Bovis's cross
motion seeking summary judgment on their claims for
contribution and contractual and common-law indemnification
against defendant/second third-party/fourth-party
defendant/third third-party plaintiff Total Safety
Consulting, LLC (Total Safety); and granted Total
Safety's cross motion for summary judgment dismissing all
claims, cross claims, and counterclaims against it; and
order, same court and Justice, entered September 27, 2016,
which, upon reargument, granted ACT's cross motion for
summary judgment dismissing all claims against it, thereby
effectively denying both Columbia and Bovis summary judgment
on their contractual indemnification claim against ACT, and
otherwise adhered to the prior order, unanimously modified,
on the law, to grant the branch of Columbia and Bovis's
cross motion seeking summary judgment on their contractual
indemnification claim against ACT, and deny ACT's cross
motion for summary judgment dismissing that claim, and
otherwise affirmed, without costs. Appeal from order, same
court and Justice, entered September 27, 2016, which denied
the motion by third third-party defendant Breeze National,
Inc. to sever ACT's third-party action against Breeze,
unanimously dismissed, without costs, as abandoned.
decedent fell off an exterior scaffold and through a third
floor window opening to an elevator shaft, suffering fatal
motion court correctly granted plaintiff summary judgment on
her Labor Law § 240(1) claim against Columbia (the
building owner) and Bovis (the construction manager). It is
uncontested that the scaffolding lacked a guardrail on the
side adjacent to the window opening through which decedent
fell (see Celaj v Cornell, 144 A.D.3d 590, 590 [1st
Dept 2016]; Crespo v Triad, Inc., 294 A.D.2d 145,
146 [1st Dept 2002]; Barnaby v A. & C. Props.,
188 A.D.2d 958, 959 [3d Dept 1992]). Given this violation of
the Labor Law, decedent's alleged failure to tie his
lanyard to the scaffold is not the sole proximate cause of
his fall (Blake v Neighborhood Hous. Servs. of N.Y.
City, 1 N.Y.3d 280, 290 ; Guaman v 1963 Ryer
Realty Corp., 127 A.D.3d 454, 455 [1st Dept 2015];
Hill v Stahl, 49 A.D.3d 438, 442 [1st Dept 2008]).
the grant of partial summary judgment on plaintiff's
Labor Law § 240(1) claim, Columbia and Bovis's
arguments regarding plaintiff's Labor Law §§
200 and 241(6) claims are academic (Cronin v New York
City Tr. Auth., 143 A.D.3d 419, 420 [1st Dept 2016]).
and Bovis are entitled to summary judgment on their
contractual indemnification claim against ACT, based on
paragraph seven of ACT's contract with Breeze, which
provides for indemnification for claims arising out of
ACT's work even if ACT is not negligent (Brown v Two
Exch. Plaza Partners, 76 N.Y.2d 172, 178 ; see
Keena v Gucci Shops, 300 A.D.2d 82, 82 [1st Dept 2002]).
The accident arose out of ACT's work, since ACT removed
the window through which decedent fell (see Murphy v
Columbia Univ., 4 A.D.3d 200, 203 [1st Dept 2004];
see also Urbina v 26 Ct. St. Assoc., LLC, 46 A.D.3d
268, 274 [1st Dept 2007]). Given the foregoing, we need not
reach Columbia and Bovis's claims against ACT for
common-law indemnification and contribution (see McGurk v
Turner Constr. Co., 127 A.D.2d 526, 530 ). In any
event, the motion court correctly dismissed those claims
(see Martinez v 342 Prop. LLC, 89 A.D.3d 468, 469
[1st Dept 2011]).
absence of evidence of Total Safety's negligence, the
motion court correctly granted Total Safety summary judgment
dismissing Columbia and Bovis's claims for contribution
and for contractual and common-law indemnification, all of
which require a finding of negligence (see Martinez,
89 A.D.3d at 469). To the extent that Columbia and Bovis
argue that Total Safety negligently performed its contract
with Columbia, "[c]laims based on negligent or grossly
negligent performance of a contract are not cognizable"
(Kordower-Zetlin v Home Depot U.S.A., Inc., 134
A.D.3d 556, 557 [1st Dept 2015] [internal quotation marks
considered Columbia and Bovis's remaining arguments ...