ADDITIONAL CASES Doherty Breads. LLC, Third-Party Plaintiff, v. Aero Mechanical of New York, Inc., Third-Party Defendant Upon the following papers read on these motions for summary judgment: Notice of Motion and supporting papers by Third-Party Defendant Aero Mechanical of NY, Inc., dated December 7, 2018; Notice of Motion and supporting papers by Defendant KRE Broadway Owner LLC, dated December 31, 2018; Notice of Motion and supporting papers by Defendant Doherty Breads, LLC, dated January 10, 2019; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by Aero Mechanical of NY, Inc. to Doherty Breads, LLC. dated February 5, 2019; Answering Affidavits and supporting papers by KRE Broadway Owner LLC to Doherty Breads LLC, dated March 5, 2019; Answering Affidavits and supporting papers by Doherty Breads, LLC to Aero Mechanical of NY, Inc., dated June 19, 2019; Answering Affidavits and supporting papers by Doherty Breads, LLC to KRE Broadway Owner LLC, dated April 25, 2019; Answering Affidavits and supporting papers by plaintiff to KRE Owner LLC and Doherty Breads, LLC, dated June 4, 2019; Replying Affidavits and supporting papers by KRE Broadway Owner LLC to Doherty Breads, LLC, dated May 6, 2019; Replying Affidavits and supporting papers by KRE Broadway Owner LLC to plaintiff, dated June 6, 2019; Replying Affidavits and supporting papers by Aero Mechanical of NY, Inc., dated June 27, 2019; Replying Affidavits and supporting papers by Doherty Breads, LLC, dated July 3, 2019; it is ORDERED that the motion (001)by third-party defendant Aero Mechanical of NY, Inc., the motion (002) by defendant KRE Broadway Owner LLC, and the motion (003) by defendant/third-party plaintiff Doherty Breads, LLC are consolidated for purposes of a determination herein; and it is ORDERED that the motion by third-party defendant Aero Mechanical of NY, Inc. for summary judgment dismissing the third-party complaint is granted; and it is further ORDERED that the motion by defendant KRE Broadway Owner LLC, for, inter alia, summary judgment dismissing the complaint is granted to the extent indicated herein and is otherwise denied; and it is further ORDERED that the motion by defendant/third-party plaintiff Doherty Breads, LLC for, inter alia, summary judgment dismissing the complaint is granted to the extent indicated herein and is otherwise denied. Plaintiff John Signorello commenced this action to recover damages for personal injuries which he allegedly sustained on June 30, 2015, when he fell from a permanent ladder that he was using to access the rooftop of the Panera Bread located at the Broadway Mall in Hicksville, New York, for the purpose of performing HVAC work at that location. Defendant KRE, Broadway Owner LLC (KRE) is the owner of Broadway Mall and defendant/third-party plaintiff Doherty Breads. LLC (Doherty) operates a Panera Bread restaurant in the mall. Third-party defendant Aero Mechanical of NY (Aero) was plaintiff’s employer on the date of the incident. The accident allegedly occurred when plaintiff attempted to grasp the top rung of the ladder with his left hand, while carrying an acetylene torch and tank with his right hand, but missed the rung and fell to the floor. By his complaint, plaintiff alleges causes of action against KRE and Doherty based on common law negligence and violations of Labor Law §§240 (1), 200, and 241 (6). KRE and Doherty both joined issue denying plaintiff’s claims and asserting affirmative defenses, as well as cross claims against each other for indemnification. Doherty thereafter commenced a third-party action against Aero, asserting claims for common law and contractual indemnification, as well as for breach of contract based on the alleged failure to procure insurance. Aero now moves for summary judgment dismissing the third-party complaint, based on the argument that Doherty’s claims for common law and contractual indemnification are barred by the exclusivity provisions of the Workers’ Compensation Law, and that it was not contractually obligated to procure insurance naming Doherty as an additional insured. Specifically, Aero argues that the common law indemnity claims are barred, because plaintiff did not sustain a “grave injury” as defined by the Workers’ Compensation Law, and that the contractual indemnity claims are barred, because there was no written agreement obligating Aero to indemnify Doherty for plaintiff’s claims arising from the subject accident. In support of its motion. Aero submits, inter alia, copies of the pleadings, plaintiff’s deposition transcript, and the service contract between it and Doherty, Doherty opposes Aero’s motion, arguing that it is procedurally defective because Aero failed to submit a copy of the third-party complaint together with its moving papers. Doherty also argues that its contract with Aero requires that Aero indemnify Doherty for plaintiff’s claims in this matter. Notably, Doherty does not contend that the plaintiff suffered a “grave injury” as defined under the Workers’ Compensation Law, nor does it oppose the branch of Aero’s motion seeking dismissal of the third-party claims for failure to procure insurance. KRE moves for summary judgment dismissing the claims against it and for an order granting summary judgment in its favor on its cross claims against Doherty for contractual indemnity. With respect to plaintiff’s claims pursuant to Labor Law §240(1), KRE argues that plaintiff’s work at the time of the accident constituted “routine maintenance” as opposed to “repair.” and therefore falls outside the scope of the statute. KRE further asserts that there were no violations of the statute which proximately caused plaintiff’s accident. Rather, KRE argues that the sole proximate cause of the accident was plaintiff’s method of climbing the ladder while holding tools and equipment in his right hand. With respect to plaintiff’s claims under Labor Law §241 (6), KRE argues that there were no Industrial Code violations which proximately caused the alleged accident, as required to predicate liability under the statute. KRE asserts that plaintiff’s claims under Labor Law §200 and common law negligence should also be dismissed, because it did not exercise any control or supervision over plaintiff’s work, and had no authority to do so. In addition, KRE argues that there was no dangerous condition on the property which caused the accident. With respect to its cross claims against Doherty, KRE alleges that the lease for the Panera Bread restaurant operated by Doherty contains an indemnification clause obligating Doherty to indemnify KRE for plaintiff’s claims. In support of its motion, KRE submits, inter alia, copies of the pleadings, the parties’ deposition transcripts, the lease agreement between Broadway Mall Partners, L.P. and Doherty, and expert reports exchanged by KRE and plaintiff. Doherty also moves for summary judgment dismissing the claims against it. Alternatively, Doherty requests a conditional order of indemnification requiring both KRE and Aero to indemnify it. In support of its motion, Doherty submits, inter alia, copies of the pleadings, the parties’ deposition transcripts, and a copy of the subject lease. Doherty argues that plaintiff’s claims against it under Labor Law §200 and common law negligence should be dismissed because the access room where the accident occurred, and the ladder from which plaintiff fell, were not located in a portion of the mall leased or controlled by Doherty. In addition, Doherty argues that it did not supervise, direct or control plaintiff’s work at the time of the alleged accident, and that it did not have actual or constructive notice of any dangerous condition alleged to have caused the accident. With respect to plaintiff’s claims under Labor Law §240 (1), Doherty argues that the work plaintiff was performing was “routine maintenance,” outside the scope of the statute. Doherty further argues that plaintiff’s work was outside the scope of Labor Law §241 (6), because it was not performed in connection with construction, excavation or demolition, and that the sections of the Industrial Code, which plaintiff alleges were violated, are inapplicable to the subject accident. Plaintiff opposes the motions of KRE and Doherty for dismissal of his claims under Labor Law §240 (1) and §200 and for common law negligence. Notably, plaintiff does not oppose the dismissal of his claims pursuant to Labor Law §241 (6). Plaintiff argues that questions of fact are present regarding whether his work at the time of the accident was a repair, which falls within the scope of Labor Law §240 (1), as opposed to routine maintenance. He also argues that neither defendant has established that the subject ladder was free of defects, or that the manner in which plaintiff ascended the ladder was the sole proximate cause of the accident. Plaintiff further argues that dismissal of his claims under Labor Law §200 and common law negligence is not appropriate, as questions of fact are present with respect to whether the subject ladder was safe and adequate, and whether the alleged unsafe condition of the ladder contributed to the accident. KRE and Doherty each oppose the other’s motion for summary judgment to the extent that they request dismissal of the cross claims for contractual indemnification. Plaintiff testified that, on the date of the alleged accident, he was employed as a service technician by Aero, and that his duties included maintaining and repairing commercial HVAC equipment. On the accident date, he was assigned to perform a service call at a Panera Bread restaurant in the Broadway Mall. The service call entailed a repair to an HVAC unit located on the roof. He had performed maintenance on that unit approximately one month prior to that date, and also had been on the roof of the restaurant during prior service calls at the subject location. When he arrived at the Broadway Mall, plaintiff spoke with the manager of Panera, told him that he was there to complete the installation of a compressor, and that he would be working on the roof. Plaintiff testified that he did not receive any instructions regarding his work from the Panera manager. Plaintiff then checked in with mall security, and was escorted to a room which contained a wall-mounted, steel ladder leading to the roof. Plaintiff testified that he climbed the ladder, which he estimated to be 21 feet high, and opened the hatch to the roof, where he inspected the HVAC unit. He then climbed back down the ladder to retrieve his hand tools and an acetylene torch and tank. Plaintiff testified that he carried his tools in a backpack on his back, and held the acetylene torch and tank in his right hand, as he climbed back up the ladder to perform his work. Because he was holding the torch and tank in his right hand, he could not use that hand to hold onto the ladder as he climbed. He testified that, when he reached the top of the ladder, he attempted to grab the highest rung with his left hand, but missed, causing him to fall from the ladder to the floor. Plaintiff stated that the space between the top rung of the ladder and the rung below it was approximately two inches greater than the spaces between the other rungs of the ladder. He believes that the height differential between the rung he was attempting to grab and the rung below it caused him to miss the top rung. Plaintiff testified that he had gone up and down the ladder at least 100 times prior to the accident, and that he never had any difficulty reaching for the highest rung on those occasions. He further testified that there was no problem with the ladder on the date of his accident, other than the inconsistent height differential between the rungs. Daniel Sodikoff testified on behalf of Doherty in this matter. Sodikoff testified that, on the date of the alleged accident, he was an area director for Doherty, and made weekly visits to the Panera Bread restaurant located at the Hicksville Mall. Prior to becoming an area director, Sodikoff was the general manager of the Panera Bread restaurant at that location. He testified that Doherty had a contract with Aero for repair and preventative maintenance of three HVAC units located on the roof. The units were owned by Doherty. When performing maintenance or repair of the units, an Aero technician would first speak to the restaurant manager, who would direct them to the security stand inside the mall. Mall security would then escort the Aero technician to the roof access room. The restaurant manager would not accompany the Aero technician to the roof access room. Sodikoff testified that he was never on the roof of the premises or inside the roof access room, and that he never observed the ladder in the roof access room. He further testified that he was not aware of any problems or complaints regarding the ladder used to access the roof, and he was not aware of any prior accidents involving that ladder. Sodikoff stated that Aero would charge Doherty for parts and labor if replacement of a part of one of the units, such as a compressor, was necessary. John Rossi testified on behalf of KRE, the owner of Broadway Mall. Rossi testified that he was the general manager of the mall on the date of the alleged accident and that Doherty was a tenant of the mall. On the date of the accident, Rossi was informed by John Marro of Professional Security Consultants, the security contractor for the mall, that there was an incident at the roof access involving a service worker performing work for the Panera Bread restaurant. Rossi visited the area where the accident occurred later that day, but he did not have any contact with Doherty regarding the incident. Rossi testified that each tenant of the mall owns their own HVAC units, which are located on the roof of the mall. Rossi was not familiar with Aero Mechanical, Doherty’s HVAC service contractor. He stated that the room where plaintiff’s accident occurred contains a permanently affixed ladder providing access to the roof of Building 2 at the mall, and that such room is not part of the demised premises for Doherty pursuant to its lease. Rossi further testified that the subject ladder is owned by KRE, and that the room containing the ladder is in the exclusive control of the owner and manager of Broadway Mall. The door to the room is located on the exterior of the mall, and is kept locked when the room is not in use. Rossi stated that he periodically climbed the ladder to gain access to the roof for site inspections prior to the date of the accident. In addition, certain members of his staff, including the mall operations manager and the building engineers, went to the roof to perform inspections, general cleaning and light maintenance of mall mechanical equipment located on the roof. Mall security, the mall operations manager, and the building engineers have keys to the ladder access room. Rossi testified that he did not receive any complaints regarding the condition of the ladder prior to the date of the accident and that he was not aware of any prior injuries sustained by anyone accessing the roof. Quarterly inspections of the entire mall, including the subject ladder, are performed. An internal staircase, and a ladder in another part of the mall, also provide access to the roof of the premises, but the subject ladder is closest to the Panera Bread restaurant. Rossi testified that he was not aware that one of Doherty’s HVAC units was malfunctioning on the date of the accident. However, in the event that a tenant’s HVAC equipment was malfunctioning, the procedure would be for the tenant’s service contractor to first check in with customer service in the mall. Mall security would then escort the contractor to the area where they needed to go. Based on his review of the incident report regarding the subject accident, Rossi testified that Security Officer Hennessey accompanied plaintiff to the roof access ladder on the morning of the incident, and that plaintiff was involved in an accident while accessing the roof. The security officer was not required to remain with plaintiff after escorting him to the ladder access room. The cause of the accident was not reported to Rossi. He was not aware of any prior incidents involving injury resulting from the use of the subject ladder. Joseph Matera, the owner of Aero, also testified in this matter. Matera testified that, in June 2015, Aero had an HVAC maintenance and service agreement with Doherty for several Panera Bread locations including the one at Broadway Mall. Pursuant to the contract. Aero provided quarterly maintenance, filter and belt replacement and preventative maintenance, as well as repairs of the heating and cooling equipment owned by Doherty. Plaintiff was an employee of Aero on the date of the accident, and was sent to the Panera Bread restaurant located at the Broadway Mall to fix and repair a compressor which was leaking refrigerant. Matera testified that the compressor had previously been installed by another employee of Aero, but plaintiff needed to re-braze, or re-solder, the copper piping to the compressor. The tools required for that task included plaintiff’s hand tools and an acetylene torch and brazing rod. Matera testified that the industry custom was to carry hand tools in a bag, and to use a rope to lift any other tools onto the roof, rather than carrying them up. He periodically checked the Aero trucks to ensure that they were each equipped with ropes for that purpose. The tank for the acetylene torch plaintiff was carrying on the date of the accident was a cylinder which measured two feet by six inches in size, and weighed approximately 20 pounds. Matera did not instruct plaintiff regarding how to transport the acetylene torch and tank up the ladder, but he testified that the understanding was that it should be transported by rope to the roof. Matera further testified that he has used the subject ladder approximately ten times, and that he never had any difficulty going up and down the ladder. He never made any complaints regarding the ladder or the roof access room and he was unaware of any such complaints by any other individuals. Matera further testified that plaintiff had been sent to the Panera Bread restaurant at the Broadway Mall on service calls prior to the date of the accident and that he never reported any unsafe condition regarding the subject ladder to Aero. It is well settled that on a motion for summary judgment the function of the court is to determine whether issues of fact exist and not to resolve issues of fact or determine matters of credibility (see Doize v. Holiday Inn Ronkonkoma, 6 AD3d 573, 574, 774 NYS2d 792 [2d Dept 2004]). The 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 climinate any material issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]; Andre v. Pomeroy, 35 NY2d 361, 362 NYS2d 131 [1974]). Once the movant meets this burden, the burden shifts to the opposing party to show by tender of sufficient facts in admissible form that triable issues remain which preclude summary judgment (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316). However, in opposing a summary judgment motion, mere conclusions, unsubstantiated allegations or assertions are insufficient to raise triable issues of fact (Zuckerman v. New York, 49 NY2d 557, 427 NYS2d 595[1980]). Aero’s motion for summary judgment dismissing the claims against it is granted. Initially, the Court notes that while a movant’s failure to include a complete copy of the pleadings is ordinarily grounds for denial of a summary judgment motion (see Wider v. Heller, 24 AD3d 433, 805 NYS2d 130 [2d Dept 2005]), such a procedural defect may be overlooked if the record is sufficiently complete and the opposing party has not been prejudiced (see CPLR 2001; Sensible Choice Contr., LLC v. Rodgers, 164 AD3d 705, 83 NYS3d 298 [2d Dept 2018]; Wade v. Knight Transp., Inc., 151 AD3d 1107, 58 NYS3d 458 [2d Dept 2017]; Long Is. Pine Barrens Socy., Inc. v. County of Suffolk, 122 AD3d 688, 996 NYS2d 162 [2d Dept 2014]; Welch v. Hauck, 18 AD3d 1096, 795 NYS2d 789 [3d Dept 2005]). “The record is sufficiently complete when, although the movant has not attached all of the pleadings to the motion, a complete set of the papers is available from the materials submitted” (Washington Realty Owners, LLC v. 260 Wash. St., LLC. 105 AD3d 675, 675, 964 NYS2d 137 [1st Dept 2013]; see also Pandian v. New York Health & Hosps. Corp., 54 AD3d 590, 591, 863 NYS2d 668 [1st Dept 2008]). Therefore, notwithstanding the failure of Aero to include a copy of the third-party complaint with its moving papers, where, as in this case, more than one movant has submitted a copy of the complete set of pleadings with their moving papers, the record is sufficiently complete and the motion may be decided on its merits (see Sensible Choice Contr., LLC v. Rodgers, supra; Pandian v. New York Health & Hosps. Corp., supra). Dismissal of the third-party common law indemnification claims against Aero is granted, as it is undisputed that plaintiff did not suffer a grave injury as a result of the alleged accident (see Masiello v. 21 E. 79th St. Corp., 126 AD3d 596, 7 NYS3d 35 [1st Dept 2015]; Lue v. Finkelstein & Partners, LLP, 94 AD3d 1386, 943 NYS2d 636 [3d Dept 2012]). Claims for common law indemnification and contribution are statutorily barred against an employer in the absence of a grave injury (see Fleming v. Graham, 10 NY3d 296, 857 NYS2d 8 [2008]; Flores v. Lower East Side Serv. Ctr., Inc., 4 NY3d 363, 795 NYS2d 491 [2005]; Ironshore Indem., Inc. v. W&W Glass, LLC, 151 AD3d 511, 58 NYS3d 10 [1st Dept 2017]; Grech v. HRC Corp., 150 AD3d 829, 54 NYS3d 433 [2d Dept 2017]). It is further noted that, as Doherty failed to oppose the branches of Aero’s motion seeking dismissal of the third-party claims for common law indemnification and failure to procure insurance, Doherty is deemed to have abandoned those causes of action (see Rodriguez v. Dormitory Auth. of the State of N.Y., 104 AD3d 529, 962 NYS2d 102 [1st Dept 2013]; Kronick v. L.P. Thebault Co., Inc., 70 AD3d 648, 892 NYS2d 895 [2d Dept 2010]). In addition, the branch of Aero’s motion for summary judgment requesting dismissal of Doherty’s third-party claims for contractual indemnification is granted. New York’s Worker’s Compensation Law §11 permits third-party indemnification claims against employers where such claims are based upon a provision in a written contract entered into prior to the accident pursuant to which the employer expressly agreed to indemnification (see Rodrigues v. N&S Blg. Contrs. Inc., 5 NY3d 427, 805 NYS2d 299 [2005]; Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 673 NYS2d 966 [1998]; Gikas v. 42-51 Hunter Street, LLC, 134 AD3d 987, 24 NYS3d 87 [2d Dept 2015]). Here, the service contract entered between Aero and Doherty did not contain any provision whereby Aero expressly agreed to indemnify Doherty. The agreement contains the following language, Aero Mechanical of New York, Inc.’s responsibility for injury to persons or property shall be limited to injury caused directly by Aero Mechanical of New York, Inc.’s negligence while performing operations under this agreement. In no event shall Aero Mechanical of New York, Inc. be liable for incidental or consequential damages of any nature whatsoever. Contrary to Doherty’s contention, the above language does not contain any express agreement on the part of Aero to indemnify Doherty for claims arising from the work under the contract. Accordingly, Doherty’s claims for contractual indemnification against Aero, plaintiff’s employer, are barred under the New York’s Worker’s Compensation Law and are dismissed (see Tonking v. Port Auth. of New York and New Jersey, 3 NY3d 486, 787 NYS2d 708 [2004]; Hooper Assoc, v. AGS Computers, Inc., 74 NY2d 487, 549 NYS2d 365 [1989]; Gikas v. 42-51 Hunter Street, LLC, supra). In addition, the branch of Doherty’s motion for summary judgment requesting a conditional order of indemnification requiring Aero to indemnify Doherty is denied. Turning to KRE’s motion for summary judgment, it is noted that, as plaintiff failed to oppose the branch of the motion seeking dismissal of his claims under Labor Law §241 (6), plaintiff is deemed to have abandoned those causes of action (see Rodriguez v. Dormitory Auth. of the State of New York, 104 AD3d 529, 962 NYS2d 102 [1st Dept 2013]; Kronick v. L.P. Thebault Co., Inc., 70 AD3d 648, 892 NYS2d 895 [2d Dept 2010]). Thus, plaintiff’s claims against KRE under Labor Law §241 (6) are dismissed. KRE argues that dismissal of plaintiff’s claims under Labor Law §240 (1) is warranted because the work plaintiff was performing at the time of the accident falls outside of the scope of the statute, and because there were no violations of the statute which proximately caused plaintiff’s accident. “The critical inquiry in determining coverage under the [Labor Law] is ‘what type of work the plaintiff was performing at the time of injury’” (Panek v. County of Albany, 99 NY2d 452, 457, 758 NYS2d 267 [2003], quoting Joblon v. Solow, 91 NY2d 457, 465, 672 NYS2d 286 [1998]). Labor Law §240 (1) provides protection to employees engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law §240 [1]; see Esposito v. New York City Indus. Dev. Agency, 1 NY3d 526, 770 NYS2d 682 [2003]; Martinez v. City of New York, 93 NY2d 322, 690 NYS2d 524 [1999]; Enos v. Werlatone, Inc., 68 AD3d 713, 890 NYS2d 109 [2d Dept 2009]). While repair work is among the enumerated tasks covered under Labor Law §240 (1), courts have distinguished such work from routine maintenance, which falls outside the purview of the statute (see Esposito v. New York City Indus. Dev. Agency, 1 NY3d 526, 528, 770 NYS2d 682 [2003]). In seeking to distinguish between what constitutes repair work as opposed to routine maintenance, courts should consider whether the object being replaced was a “worn-out component” in something that was otherwise “operable” (Gonzalez v. Woodbourne Arboretum, Inc., 100 AD3d 694, 697, 954 NYS2d 113 [2d Dept 2012]), and whether the object was intended to have a limited life span or require periodic adjustment or replacement (Picaro v. New York Convention Ctr. Dev. Corp., 97 AD3d 511, 512, 949 NYS2d 374 [1st Dept 2012]). “Even if the item to be repaired is malfunctioning or inoperable, when the work involves only component replacement or adjustment necessitated by normal wear and tear, it constitutes routine maintenance, rather than ‘repairing’ or any other enumerated activity” (Barbarito v. County of Tompkins, 22 AD3d 937, 938-939, 803 NYS2d 208 [3d Dept 2005]; see Konaz v. St. John’s Preparatory Sch., 105 AD3d 912, 963 NYS2d 337 [2d Dept 2013]; Gonzalez v. Woodbourne Arboretum, Inc., 100 AD3d 694, 954 NYS2d 113 [2d Dept 2012]). “However, delincating between routine maintenance and repairs is frequently a close, fact-driven issue” (Pakenham v. Westmere Realty, LLC, 58 AD3d 986, 987, 871 NYS2d 456 [3d Dept 2009]). The evidence submitted in support of KRE’s motion fails to eliminate questions of fact regarding whether plaintiff’s work was “routine maintenance” as opposed to “repair,” and thus, whether it falls under the protections of Labor Law §240 (1). Based on the testimony of plaintiff and Matera, plaintiff was at the mall to complete the installation of a compressor in one of the HVAC units, which was work that had previously been inadequately performed by one of his co-workers. Matera also testified that plaintiff’s work involved re-brazing or re-soldering copper piping. However, there is no indication as to whether additional work was required, whether the unit was functioning on the date of the accident, and whether the compressor was an item which required periodic replacement due to normal wear and tear. Thus, issues of fact are present regarding whether plaintiff’s work was routine maintenance, which is outside the scope of Labor Law §240 (1), or repair, which is an activity covered under the statute (see Wass v. County of Nassau, 173 AD3d 933, 103 NYS3d 478 [2d Dept 2019]; Ferrigno v. Jaghab, Jaghab & Jaghab, 152 AD3d 650, 59 NYS3d 115 [2d Dept 2017]; Roth v. Lenox Terrace Assoc., 146 AD3d 608, 44 NYS3d 763 [1st Dept 2017]; Santiago v. Fred-Doug 117, LLC, 68 AD3d 555, 891 NYS2d 59 [1st Dept 2009]; Weisman v. Duane Reade, Inc., 64 AD3d 643, 883 NYS2d 137 [2d Dept 2009]). The evidence submitted by KRE also reveals issues of fact regarding whether a violation of Labor Law §240(1) proximately caused the alleged accident. Labor Law §240(1) “imposes absolute liability upon an owner or contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure” (Bland v. Manocherian, 66 NY2d 452, 459, 497 NYS2d 880 [1985]; see Sprague v. Peckham Materials Corp., 240 AD2d 392. 658 NYS2d 97 [2d Dept 1997]). Specifically, Labor Law §240 (1) requires that safety devices, such as ladders, be so “constructed, placed and operated as to give proper protection to a worker” (Klein v. City of New York, 89 NY2d 833, 834, 652 NYS2d 723 [1996]). Thus, a statutory violation is established where a ladder collapses, slips or otherwise fails to perform its safety function of supporting a worker (see O’Connor v. Enright Marble & Tile Corp., 22 AD3d 548, 802 NYS2d 506 [2d Dept 2005]; Wasilewski v. Museum of Modern Art, 260 AD2d 271, 688 NYS2d 547 [1st Dept 1999]). However, if a plaintiff is injured in a fall from a ladder which is not otherwise shown to be defective, the issue of whether the ladder provided the plaintiff with the proper protection required under Labor Law §240 (1) is usually a question of fact (see Olberding v. Dixie Contr., Inc., 302 AD2d 574, 757 NYS2d 565 [2d Dept 2003]; Williams v. Dover Home Improvement, Inc., 276 AD2d 626, 714 NYS2d 318 [2d Dept 2000]; Moreta v. State of New York, 272 AD2d 593, 709 NYS2d 829 [2d Dept 2000]; Benefield v. Halmar Corp., 264 AD2d 794, 695 NYS2d 394 [2d Dept 1999]). In addition, a plaintiff is not required to demonstrate the precise manner in which the accident happened, and any alleged contributory negligence on plaintiff’s part is irrelevant to liability under Labor Law §240 (1)(see McGill v. Qudsi, 91 AD3d 1241, 937 NYS2d 460 [3d Dept 2012]; Klapa v. O&Y Liberty Plaza Co., 218 AD2d 635, 631 NYS2d 21 [1st Dept 1995]). Here, the evidence submitted in support of KRE’s motion for summary judgment raises triable issues of fact regarding whether there was a defect in the subject ladder which proximately caused plaintiff’s accident (see Ellerbe v. Port Authority of New York and New Jersey. 91 AD3d 441, 936 NYS2d 39 [1st Dept 2012]; Rheyes v. Khan, 90 AD3d 734, 934 NYS2d 328 [2d Dept 2011]; Hamill v. Mutual of America Investment Corp., 79 AD3d 478, 913 NYS2d 62 [1st Dept 2010]. KRE submitted both the report of its own expert, Robert L. Grunes, as well as the report of plaintiff’s expert, Robert T. Fuchs, in support of its motion. Both experts found the spacing between the rungs of the ladder to be uniform intervals of approximately twelve inches, including the spacing between the top rung of the ladder and the rung below it. However, while KRE’s expert opines that the ladder was “structurally sound and did not cause the incident.” Plaintiff’s expert opines that the clearance between the top rung of the ladder and the adjoining bulkhead wall was only 1 1/2 inches, which is “inadequate and does not conform to generally accepted industry standards…which require at least 7 inches of clearance.” Plaintiff’s expert further opines that “the inadequate clearance prevents the rung from being readily graspable, thereby resulting in an inherently dangerous and defective ladder that can be cited as a factor that contributed to the reported circumstances of [plaintiff's] accident.” Although plaintiff testified that he believes his accident occurred because the distance between the rungs of the ladder was not uniform, based on his expert’s report, questions of fact are present regarding whether insufficient spacing between the top rung and the adjacent wall was a proximate cause of the accident. In light of these issues of fact, KRE has failed to meet its burden of establishing prima facie entitlement to summary judgment with respect to plaintiff’s claims under Labor Law §240 (1). Thus, the branch of its motion for dismissal of those claims is denied (see Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v. New York Univ. Med, Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]; Rheyes v. Khan, supra; Hamill v. Mutual of America Investment Corp., supra). The branch of KRE’s motion for summary judgment with respect to plaintiff’s claims under Labor Law §200 and common law negligence likewise is denied. Labor Law §200 is a codification of the common-law duty imposed upon an owner or general contractor to provide workers with a safe place to work (see Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 609 NYS2d 168 [1993]; Shaughnessy v. Huntington Hosp. Assoc., 147 AD3d 994, 997, 47 NYS3d 121 [2d Dept 2017]; Quituizaca v. Tucchiarone, 115 AD3d 924, 925, 982 NYS2d 524 [2d Dept 2014]). Where a claim arises out of alleged dangers in the method of the work, there can be no recovery unless it is shown that the owner had the authority to control the means and manner of the plaintiff’s work (see Rizzuto v. LA. Wenger Contr. Co., Inc., 91 NY2d 343, 352, 670 NYS2d 816 [1998]; Persichilli v. Triborough Bridge & Tunnel Auth., 16 NY2d 136, 262 NYS2d 476 [1965]; Mitchell v. Caton on the Park, LLC, 167 AD3d 865, 866-867, 90 NYS3d 316 [2d Dept 2018]). By contrast, where the claim arises out of an alleged dangerous condition on the premises, there can be no recovery unless it is shown that the owner possessed actual or constructive notice of said condition (see Mitchell v. Caton on the Park, LLC, 167 AD3d 865, 867, 90 NYS3d 316; Kuffour v. Whitestone Const. Corp., 94 AD3d 706, 941 NYS2d 653 [2d Dept 2012]; Selak v. Clover Mgt., Inc., 83 AD3d 1585, 1587, 922 NYS2d 891 [4th Dept. 2011]; Azad v. 270 Realty Corp., 46 AD3d 728, 730, 848 NYS2d 688 [2d Dept 2007]). While the deposition testimony of the parties establishes that KRE did not control the means and manner of plaintiff’s work, as noted above, the report of plaintiff’s expert raises triable issues of fact regarding whether a defect in the construction of the ladder was a proximate cause of plaintiff’s accident. In addition, the evidence submitted by KRE reveals issues of fact regarding whether KRE had prior notice of that condition. John Rossi testified on behalf of KRE that the ladder itself, and the access room where it was located, were owned and controlled by KRE. In addition, Rossi testified that the ladder was inspected by KRE on a quarterly basis, and that he himself, and members of his staff had used the ladder to access the roof prior to the date of plaintiff’s accident. Thus, KRE has failed to establish the absence of issues of fact regarding whether it had actual or constructive notice of a defect in the ladder which allegedly caused plaintiff’s accident. As such it has failed to meet its burden of establishing prima facie entitlement to summary judgment with respect to plaintiff’s claims under Labor Law §200 and common law negligence (see Alvarez v. Prospect Hosp., supra; Winegrad v. New York Univ. Med. Ctr., supra; Shaughnessy v. Huntington Hosp. Assoc., supra; Quituizaca v. Tucchiarone, supra). The branch of KRE’s motion for summary judgment on its cross claims against Doherty for contractual indemnification, as well as the branch of Doherty’s motion for a conditional order of indemnification against KRE, also are denied. “The right to contractual indemnification depends upon the specific language of the contract” (Roldan v. New York Univ., 81 AD3d 625, 628, 916 NYS2d 162 [2d Dept 2011]; see Reyes v. Post & Broadway, Inc., 97 AD3d 805, 949 NYS2d 141 [2d Dept 2012]), and will not be enforced “unless the intention to indemnify can be clearly implied from the language and purposes of the entire agreement, and the surrounding facts and circumstances” (see Hooper Assoc. v. AGS Computers, 74 NY2d 487, 491-492, 549 NYS2d 365 [1989]; Shaughnessy v. Huntington Hosp. Assn., 147 AD3d 994, 47 NYS3d 121 [2d Dept 2017]). The indemnification provisions in the subject lease state, in relevant part, (a) Except for the negligence or willful misconduct of Landlord, Tenant shall indemnify. save harmless, and, at Landlord’s option, defend Landlord…from and against all claims, actions, damages, liability and expense, including without limitation reasonable attorneys’ fees and expenses incurred by Landlord in connection with any…personal injury…arising out of or in any way connected with [P]remises or Tenant’s operations, the condition, use, maintenance, repair or occupancy of the Premises, or in any way arising out of the activities in the Premises, Common Areas, or other portions of the Center, of the Tenant or its sublessees or their respective agents, employees, servants, invitees or contractors. (b) Except for the negligence or willful misconduct of Tenant, Landlord shall indemnify, save harmless and at Tenant’s option, defend Tenant from and against all claims, actions, damages, liability and expense, including without limitation reasonable attorneys’ fees and expenses incurred by Tenant, in connection with any…personal injury…arising out of or in any way connected with Landlord’s use or occupancy of the Common Areas or Landlord’s operations, conduct or activities in the Center. The lease obligates Doherty, as tenant, to indemnify KRE, as landlord, for claims arising out of Doherty’s operations, as well as for claims “in any way connected” with Doherty’s use, maintenance and repair of the leased premises, and for claims “in any way arising out of the activities” of Doherty’s contractors. However, the provision specifically states that Doherty’s indemnification obligation will not arise where there is “negligence or willful misconduct of Landlord.” As discussed above, the evidence submitted in support of KRE’s motion reveals questions of fact regarding whether plaintiff’s accident was proximately caused by a defect in the subject ladder, which was owned and controlled by KRE, and thus, whether plaintiff’s claims resulted from any negligence on the part of KRE in maintaining the ladder. As such, KRE has failed to establish prima facie entitlement to summary judgment with respect to its claims for contractual indemnification against Doherty, and that branch of its motion for summary judgment is denied (see Alvarez v. Prospect Hosp., supra; Winegrad v. New York Univ. Med. Ctr., supra; Shaughnessy v. Huntington Hosp. Assn., supra). In light of such issues of fact, the branch of Doherty’s motion for summary judgment dismissing KRE’s claims for contractual indemnification also is denied. Similarly, questions of fact are present regarding KRE’s contractual obligation to indemnify Doherty for plaintiff’s claims herein. Pursuant to the lease, KRE agreed to indemnify Doherty for claims “arising out of or in any way connected with Landlord’s use or occupancy of the Common Areas or Landlord’s operations, conduct or activities in the Center.” The access room where the accident allegedly occurred is not specifically designated as a “common area” in the lease. However, based on the parties’ deposition testimony, which was submitted in support of Doherty’s motion, questions of fact are present regarding whether any negligence of KRE in maintaining the ladder caused plaintiff’s accident, and thus, whether plaintiff’s claims are connected to KRE’s operations, conduct or activities at the mall. As such, the branch of Doherty’s motion requesting a conditional order of indemnification requiring KRE to indemnify Doherty is denied (see Alvarez v. Prospect Hosp., supra; Winegrad v. New York Univ. Med. Ctr., supra; Shaughnessy v. Huntington Hosp. Assn., supra). In addition, the branch of KRE’s motion to dismiss Doherty’s claims for contractual indemnification against it is denied. Doherty also moves for summary judgment dismissing plaintiff’s claims against it. As noted above, plaintiff failed to oppose the branch of Doherty’s motion seeking dismissal of his claims under Labor Law §241 (6). Accordingly, plaintiff is deemed to have abandoned those causes of action (see Rodriguez v. Dormitory Auth. of the State of N.Y., supra; Kronick v. L.P. Thebault Co., Inc., supra), and plaintiff’s claims against Doherty under Labor Law §241 (6) are dismissed. As asserted by KRE, Doherty also moves for summary judgment dismissing plaintiff’s claims under Labor Law §240 (1), based on the argument that plaintiff was engaged in “routine maintenance” rather than “repair” at the time of the accident, and that his work was therefore outside the scope of the statute. As discussed above, however, issues of fact are present regarding whether plaintiff was engaged in “routine maintenance” or “repair” at the time of the accident. Accordingly, the branch of Doherty’s motion for summary judgment dismissing plaintiff’s claims under Labor Law §240 (1) is denied (see Alvarez v. Prospect Hosp., supra; Winegrad v. New York Univ. Med. Ctr., supra; Wass v. County of Nassau, supra; Ferrigno v. Jaghab, Jaghab & Jaghab, supra; Roth v. Lenox Terrace Assoc., supra; Santiago v. Fred-Doug 117, LLC, supra; Weisman v. Duane Reade, Inc., supra). However, Doherty has established prima facie entitlement to summary judgment dismissing plaintiff’s claims against it under Labor Law §200 and common law negligence (see Mitchell v. Caton on the Park, LLC, supra). The deposition testimony of the parties establishes that Doherty did not supervise or direct the method in which plaintiff performed his work. In addition, Doherty’s submissions in support of its motion establish that the accident occurred on a ladder in an access room, which was not part of the premises leased or controlled by Doherty, and that Doherty did not have actual or constructive notice of any defect in the ladder prior to the accident. In opposition to Doherty’s motion, plaintiff failed to present any evidence raising a triable issue of fact in this regard. Accordingly, plaintiff’s claims against Doherty under Labor Law §200 and common law negligence are dismissed (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316; Wejs v. Heinbockel, 142 AD3d 990, 992, 37 NYS3d 569 [2d Dept 2016]). Accordingly, third-party defendant Aero’s motion for summary judgment is granted in its entirety. The branch of defendant KRE’s motion for summary judgment dismissing plaintiff’s claims under Labor Law §241 (6) is granted, and the motion is otherwise denied. The branches of defendant Doherty’s motion for summary judgment dismissing plaintiff’s claims under Labor Law §241 (6) and §200 are granted, and the motion is otherwise denied. ___FINAL DISPOSITION ___X___ NON-FINAL DISPOSITION Dated: April 15, 2020
