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Decided on July 21, 2008
Supreme Court, Bronx County
Ladislav Denci and Jana Denci, Plaintiff(s),

against
Bovis Lend Lease, Inc., BOVIS LEND LEASE LMB, INC., NEW
YORK CITY HEALTH AND HOSPITALS CORP. CITY OF NEW
YORK, and DORMITORY AUTHORITY OF THE STATE OF NEW
YORK, Defendant(s). BOVIS LEND LEASE, INC., BOVIS LEND
LEASE LMB, INC., NEW YORK CITY HEALTH AND HOSPITALS
CORP. CITY OF NEW YORK, and DORMITORY AUTHORITY OF
THE STATE OF NEW YORK, Third -Party Plaintiffs, BG NATIONAL
PLUMBING & HEATING, INC., Third -Party Defendant.










14097/2005
Appearances: Plaintiff: Samuel J. Lurie 475 Park Avenue South New York, New York. 10016 Defendant: Bovis Lend Lease/NYCHHC/City of New York/Dormitory Authority Newman Fitch Altheim & Meyers 14 Wall Street, 22nd Floor New York, New York 10007 Third-Party Defendant: BG National Plumbing & Heating Mintzer Sarowitz Zeris Ledva & Meyers, LLP 39 Broadway, Suite 950 New York, New York 10006 Paul A. Victor, J.


RELIEF SOUGHT
Plaintiff Ladislav Denci [hereinafter plaintiff] moves for summary judgment under Section 240
(1) of the Labor Law.
Defendants Bovis Lend Lease, Inc.[ hereinafter Bovis LL], Bovis Lend Lease LMB, Inc., [hereinafter Bovis LMB], New York City Health and Hospitals Corporation, City of New York and Dormitory Authority of the State of New York each oppose the plaintiff's motion for summary judgment, and cross move to dismiss plaintiff's causes of action brought under Sections 200 and 241(6) of the Labor Law; and each also moves for contractual indemnification from third-party defendant BG National Plumbing and Heating, Inc. [hereinafter BG] pursuant to the contract between the Dormitory Authority and said third-party-defendant.
BG opposes the plaintiff's motion, but submits no opposition to the defendant's motion for contractual indemnification.

BACKGROUND
The incident underlying this matter occurred on March 5, 2004, at a building contained within Jacobi Medical Center, located at 1400 Pelham Parkway in the Bronx. Plaintiff was employed by third-party defendant BG, and was doing work installing fireproofing around pipes in a building which was owned, operated and controlled by the defendant New York City Health [*2]and Hospitals Corporation. The City of New York is named as a defendant because of its ownership of the underlying land upon which the hospital is built.
Plaintiff alleges that he was using an "A frame" wooden ladder to work on overhead pipes; that he was standing on the third step from the top when the ladder fell forward; and that
he was injured when his body fell to the floor . He testified further that he had been told by his supervisor to use this ladder, despite the fact that he had previously complained to the supervisor that this ladder was "shaky"; that he was not provided with any safetybelt, harness or line; and that there were no additional workers there to hold the ladder for him while he was working. Plaintiff, therefore, moves for summary judgment pursuant to section 240(1) of the Labor Law claiming that defendants have breached a nondelegable duty by failing to provide him with proper protection. Defendants and third-party defendant BG each argue that in view of testimony provided by plaintiff's supervisor, a question of fact exists as to how the accident occurred, and that therefore summary judgment under section 240(1) should be denied.
Specifically, plaintiff's immediate supervisor testified that the plaintiff had never complained to him about the ladder, and that the plaintiff told him, immediately after the accident, that he had jumped from the third step and had fallen to the floor, not that the ladder itself had collapsed or fallen. This version of the accident was memorialized in the report prepared by the supervisor immediately after the incident; which said report was identified by him when he was deposed by the plaintiff.
Bovis LMB [FN1] was the construction manager; it was hired by the Dormitory Authority of the State of New York, which was also overseeing the entire project pursuant to a "memorandum of understanding" between the New York City Health and Hospitals Corporation and the Dormitory Authority. (This memorandum has not been provided to the Court.) Plaintiff's employer, BG National, was hired directly by the Dormitory Authority to perform plumbing work on the premises. In both its contracts with Bovis LMB and BG National, the Dormitory Authority is referred to as the "owner".
The Contract Between the Dormitory Authority and Bovis
In this contract with the Dormitory Authority, Bovis LMB, Inc. is named as the "construction manager"; and the contract sets forth the responsibilities delegated by "the owner" and assumed by Bovis LMB in its role as construction manager.
In Article XII of the contract entitled "accident prevention" it is stated:
"The construction manager shall, at all times, take every precaution against injuries to persons or damage to property and for the safety of persons engaged in the performance of the work on the job site. The construction manager shall establish and maintain, at all times, safety procedures in connection with the work as required by the current New York Labor Law and regulations of the Occupational Safety and Health Act (OSHA)."
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Under subdivision C. (1)( c) of that article it is further stated:
"The construction manager assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatsoever, including death resulting therefrom, to all persons, whether employees of the construction manager or otherwise, and to all property, caused by, resulting from, arising out of, or occurring in connection with the negligent or alleged negligent execution of the work."
Finally, under subdivision D of that same article, labeled "Protection of Lives and Health" it is stated
1. The construction manager shall make daily observations of the safety practices of all prime contractors and subcontractors work activities on the job site and check their compliance with municipal, state and federal safety requirements. If a safety violation is found, the construction manager shall give the prime contractor and subcontractor immediately notice of deficiency, and require correction of the safety violation before work continues. If the prime contractor or subcontractor does not correct the deficiency within three hours of notice of the construction manager, the construction manager may require the prime contractor or subcontractor to leave the job site or may authorize a separate prime contractor or subcontractor to erect or provide the required safety structures, equipment, or procedures...
3. The owner or owners representatives may inspect the job site at any time without notice to the construction manager. If the owner finds that the construction manager is not complying with sections A through D,[ the sections of the contract that deal with accidents and their prevention] the owner may send written notice to the construction manager to correct any deficiency. If upon the inspection, the owner finds the deficiencies have not been corrected, the owner may let a separate contract to correct any deficiencies and charge back the cost of a separate contract to the construction manager at a premium rate...
The Contract Between the Dormitory Authority andBG National
BG National was hired directly by the Dormitory Authority; and in the contract BG National
is described as "contractor", and the Dormitory Authority is described as " the owner". The
agreement sets forth the plumbing work that BG National was to perform on behalf of "the owner"
between April 5, 2002 and January 30, 2004. The contract also sets out the rights retained by the
owner and the responsibilities assumed by BG National with reference to safety and accidents:
In Article 7of the contract entitled "Inspection and Acceptance", subsection 7.01 states :
"The owner or the owner's representative shall at all times have access to the work and
the contractor shall provide proper facilities for said access."
In Article 14 of the contract entitled "Protection of Rights, Persons and Property",
subsection 14.01 states : [*4]
"The contractor shall, at all times, take every precaution against injuries to persons or damage to property and for the safety of persons on or about the site or engaged in the performance of the work".
In that same article, subsection 14.05 entitled "Risks Assumed by the Contractor"states in
pertinent part:
"A. The contractor solely assumes the following distinct and several risks whether said risks arise from acts or omissions, whether supervisory or otherwise, of the owner, of the client, of any subcontractor, of the third persons or from any other cause, including unforeseen obstacles and difficulties which may be encountered in the prosecution of the work, whether said risks are within or beyond the control of the contractor and whether said risks involve any legal duty, primary or otherwise, imposed upon the owner, excepting only risks which arise from faulty designs as shown by the plans and specifications or from the negligence of the owner or the owners members, officers, representatives or employees that caused the loss, damage or injuries... [and] A(3) The contractor assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatsoever , including death resulting therefrom, to all persons, whether employees of the contractor or otherwise, and to all property, caused by, resulting from, arising out of, or occurring in connection with the execution of the work. If any person shall make said claim for any damage or injury, including death resulting therefrom, or any of alleged breach of any statutory duty or obligation on the part of the owner, the client, the owners representatives, construction manager, servants and employees, the contractor shall assume the defense and pay on the behalf of the owner... any and all costs, expense, damage or injury that the owner... may sustain as the result of any claim, provided however, the contractor shall not be obligated to indemnify the owner... for [its] own negligence, if any ..." [emphasis added]
Defendants Bovis and Dormitory Authority argue that the common-law negligence claim made pursuant to Section 200 of the Labor Law should be dismissed because they exercised no direct supervision of the plaintiff's work; they did not control the plaintiff's work; they provided no tools or equipment to the plaintiff; and they had received no notice of any defect in the ladder the plaintiff was utilizing. They argue that they did not have the requisite control of the manner of construction necessary to be liable under that section merely because they had access to the worksite; had coordinated the various contractors; and could review site safety plans and practices.
In response to all of the above plaintiff concedes that the actions based on an alleged violation of Labor Law

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