Leon v DDG 100 Franklin LLC 2025 NY Slip Op 32044(U) June 9, 2025 Supreme Court, New York County Docket Number: Index No. 152361/2018 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 152361/2018 NYSCEF DOC. NO. 289 RECEIVED NYSCEF: 06/09/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 152361/2018 JONATHAN LEON, LILIANA LEON, MOTION DATE 04/10/2025 Plaintiffs, MOTION SEQ. NO. 004, 005 -v- DDG 100 FRANKLIN LLC, DDG PARTNERS LLC, DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X
DDG 100 FRANKLIN LLC Third-Party Index No. 595216/2019 Plaintiff,
-against-
FORWARD MECHANICAL, INC.
Defendant. --------------------------------------------------------------------------------X
DDG 100 FRANKLIN LLC Second Third-Party Index No. 595445/2021 Plaintiff,
EXTREME CONCRETE DESIGNS
Defendant. --------------------------------------------------------------------------------X
FORWARD MECHANICAL, INC. Third Third-Party Index No. 595323/2022 Plaintiff,
DDG PARTNERS LLC, DDG DEVELOPMENT LLC
Defendants. --------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 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,
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205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 216, 218, 222, 223, 224, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 266, 269, 270, 271, 272, 274, 275, 276, 277, 278, 279, 280, 281, 284, 286 were read on this motion to/for JUDGMENT – SUMMARY .
The following e-filed documents, listed by NYSCEF document number (Motion 005) 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 217, 220, 221, 225, 226, 227, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 267, 268, 273, 282, 283, 285, 287 were read on this motion to/for JUDGMENT – SUMMARY .
Motion Sequences 004 and 005 are consolidated for disposition and decided as described
below.
Background
In this Labor Law case, plaintiff Jonathan Leon, while employed by plumbing contractor
Forward Mechanical, Inc. (“Forward”), was injured while working at a construction site at 100
Franklin Street in Manhattan on March 12, 2018. Plaintiff was hit in the face when the cap of an
air-pressurized standpipe burst off while plaintiff was looking down through a hole on the fifth
floor. The pipe was about a foot below the floor. Plaintiff thought the pipe was, and the pipe
should have been, depressurized. Plaintiff insists he was instructed by Forward’s foreman to
stand by the hole to make sure nothing fell into the pipe once the cap was removed; once the cap
was removed, the rest of the team from Forward was supposed to come up from the fourth floor,
join plaintiff on the fifth floor, and run the pipe up through the hole.
Plaintiff’s uncontroverted testimony establishes that there was construction debris –
chunks of wood, metal, rocks, and concrete – by the hole, so he pushed the debris two or three
feet away. It was taking longer than usual to take the cap off the pipe, so plaintiff peered down
the hole to see what was happening and to communicate with his co-workers through the hole.
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At that point the cap burst off the pipe, and plaintiff was struck in the face by the cap. Plaintiff
then stumbled backwards, tripped over construction debris, hit his head, and lost consciousness.
Plaintiff was not wearing protective eye gear at the time of the accident. He sustained a partial
loss of vision from being hit in the face with the cap, and he sustained injuries to his head, neck,
right side, and hip when he fell.
There were no witnesses to or video footage of the accident. No investigation report has
been provided, and there are no accident-scene photographs from the day the accident occurred.
It is undisputed that Forward’s work on the sprinkler system resulted in the pressured pipe
bursting. However, there is a dispute regarding who was responsible for the debris that plaintiff
tripped over, whether it was an Extreme Concrete Designs (“Extreme”) working floor and
therefore Extreme should have cleared the debris, and whether the owner DDG 100 Franklin
LLC (“DDG”) had notice of the debris.
Plaintiff Leon and his wife (“plaintiffs”) bring claims against DDG pursuant to Labor
Law §§ 200 and 241(6) as well as for common-law negligence. Plaintiffs’ Labor Law § 241(6)
claim relies on DDG’s alleged violations of Industrial Code (12 NYCRR) §§ 23-1.7(3), 23-1.8,
and 23-1.25. DDG owned the property but did not technically employ anybody; among the three
DDG parties – DDG 100, DDG Partners LLC, DDG Development LLC – only DDG Partners
had employees and produced witnesses.
DDG brings two third-party actions. DDG’s first third-party action asserts claims against
Forward, plaintiff’s employer and the subcontractor responsible for piping and sprinkler work at
the time of the accident, for contractual indemnification and breach of agreement to procure
liability insurance. DDG’s second third-party action is against Extreme, a subcontractor
responsible for constructing the superstructure including concrete work; it asserts claims for
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contractual indemnification, common-law indemnification and contribution, and breach of
contract for failure to procure insurance.
DDG brings MS 004 and seeks 1) summary judgment dismissing plaintiffs’ claims
pursuant to NY Labor Law §§ 200 and 241(6) as well as for common-law negligence, 2) in the
alternative, summary judgment against Extreme for contractual indemnification, common-law
indemnification, and breach of contract for failure to procure insurance, 3) summary judgment
on its claim for contractual indemnification against Forward to the extent that the coverage
afforded to DDG under Forward’s insurance policies are exhausted, and 4) dismissing Extreme’s
and Forward’s counterclaims against DDG which seek common-law indemnification and
contribution.
Plaintiffs cross-move for summary judgment granting their 241(6) claim and contend that
there are questions of fact surrounding their Labor Law § 200 and common-law negligence
claims which preclude summary judgment.
Forward opposes the part of DDG’s motion seeking summary judgment against Forward
for contractual indemnification and opposes plaintiffs’ cross-motion seeking summary judgment
on their 241(6) claim.
Discussion
To be entitled to the remedy of summary judgment, the moving party “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 from the case” (Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima
facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers
(id.). When deciding a summary judgment motion, the court views the alleged facts in the light
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most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492 [1st Dept
2012]).
Once a movant meets its initial burden, the burden shifts to the opponent, who must then
produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City
of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court’s task in deciding a
summary judgment motion is to determine whether there are bona fide issues of fact and not to
delve into or resolve issues of credibility (Vega v Restani Constr. Corp., 18 NY3d 499, 505, 942
NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably
conclude that fact is arguable, the motion must be denied (Tronlone v Lac d'Amiante Du Quebec,
Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96
[2003]).
Plaintiff’s Common-Law Negligence and Labor Law § 200 Claims
Labor Law § 200 “codifies landowners’ and general contractors’ common-law duty to
maintain a safe workplace” (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY3d 494, 505, 601
NYS2d 49 [1993]). “[R]ecovery against the owner or general contractor cannot be had unless it
is shown that the party to be charged exercised some supervisory control over the operation . . .
[A]n owner or general contractor should not be held responsible for the negligent acts of others
over whom the owner or general contractor had no direction or control” (id. [internal quotations
and citation omitted]).
“Claims for personal injury under this statute and the common-law fall under two broad
categories: those arising from an alleged defect or dangerous condition existing on the premises
and those arising from the manner in which the work was performed” (Cappabianca v Skanska
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USA Bldg. Inc., 99 AD3d 139, 143-44, 950 NYS2d 35 [1st Dept 2012]). “Where an existing
defect or dangerous condition caused the injury, liability attaches if the owner or general
contractor created the condition or had actual or constructive notice of it” (id. at 144).
Plaintiffs argue that this is a dangerous condition case and claim there is an issue of fact
concerning whether DDG had constructive notice which precludes summary judgment
dismissing this cause of action.
Plaintiff testified he had observed the debris on the fifth floor on the day before the
accident date (NYSCEF Doc. No. 231 at 71-76). He further testified that the clean-up crew was
not doing their job (id. at 171) and that debris was a recurring condition at the job site (NYSCEF
Doc. No. 232 at 239). DDG does not point to any testimony that refutes this, only arguing that
none of the higher-ups specifically recalled issues with debris and were not aware of any
complaints about the debris. DDG Senior Vice President Ridoutt testified that he had observed
debris at the job site, although he considered it “an acceptable amount” and that he did “nothing”
when he observed the debris (NYSCEF Doc. No. 198 at 79). Ridoutt also confirmed that
Extreme generated “a lot” of debris, specifically lumber (id. at 86). Ridoutt further testified that
DDG’s project manager, Jarrod Morris, and site superintendent, Joel Carrico, both of whom were
at the site on the day of the accident, were present at the site every day (id. at 45-49). When
Joseph Milohnic, part owner of Forward, was asked if he noticed any concrete debris on the
ground in the area where his employees were working, he testified that “…there is always
something on the ground. I mean, I don’t recall specifically, but, you know, it’s not out of the
realm to see concrete debris or something on a construction site” (NYSCEF Doc. No. 197 at 59).
Plaintiff’s uncontroverted testimony contends that there was a persistent issue with
debris, and there is a question of fact about whether DDG had constructive notice of the debris.
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A factfinder could conclude that the purported recurring debris issue provided sufficient notice
for DDG such that they should have ensured a safe work environment. The Court therefore
denies the part of DDG’s motion which seeks summary judgment dismissing plaintiff’s Labor
Law § 200 and common-law negligence causes of action.
Plaintiffs’ Labor Law § 241(6) Claim
“The duty to comply with the Commissioner’s safety rules, which are set out in the
Industrial Code (12 NYCRR), is nondelegable. In order to support a claim under section 241(6) .
. . the particular provision relied upon by a plaintiff must mandate compliance with concrete
specifications and not simply declare general safety standards or reiterate common-law
principles” (Misicki v Caradonna, 12 NY3d 511, 515, 882 NYS2d 375 [2009]). “The regulation
must also be applicable to the facts and be the proximate cause of the plaintiff’s injury” (Buckley
v Columbia Grammar and Preparatory, 44 AD3d 263, 271, 841 NYS2d 249 [1st Dept 2007]).
“Section 241(6) subjects owners and contractors to liability for failing to adhere to
required safety standards whether or not they themselves are negligent. Supervision of the work,
control of the worksite, or actual or constructive notice of a violation of the Industrial Code are
not necessary to impose vicarious liability against owners and general contractors, so long as
some actor in the construction chain was negligent” (Leonard v City of New York, 216 AD3d 51,
55-56, 188 NYS3d 471 [1st Dept 2023]). Furthermore, “[t]here may be more than one proximate
cause of a plaintiff's injuries” (Gray v Air Excel Serv. Corp., 171 AD3d 1026, 1028 [2d Dept
2019] [internal citation omitted]).
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As an initial matter DDG argues that Industrial Code section 23-1.25, which concerns
welding and flame cutting operations, is inapplicable. Plaintiffs do not address or rebut this
point, so the Court dismisses this section and will focus on sections 23-1.7 and 23-1.8.
Industrial Code section 23-1.7(e)(2) states in part that “[t]he parts of floors, platforms and
similar areas where persons work or pass shall be kept free from accumulations of dirt and debris
and from scattered tools and materials and from sharp projections insofar as may be consistent
with the work being performed.”
DDG claims that plaintiff was the sole proximate cause of his accident, as plaintiff
testified that he had moved the debris that he eventually stumbled over a few feet away from the
hole. Plaintiffs counter that plaintiff is not responsible by virtue of moving the debris away, and
that even if he is, this amounts to a comparative negligence defense which does not preclude
summary judgment on liability in favor of plaintiff. Plaintiffs also argue that DDG’s alleged
constructive notice of the debris defeats a sole proximate cause defense.
The Court finds that there was a violation of Industrial Code Provision 23-1.7(e)(2). The
part of the floor where plaintiff was working was not kept free from accumulations of debris.
DDG did not meet its burden to establish that plaintiff was the sole proximate cause of his own
accident. That plaintiff may have some comparative negligence is not a basis to grant DDG’s
motion or to deny plaintiff’s cross-motion (Treu v Cappelletti, 71 AD3d 994, 998, 897 NYS2d
199 [2d Dept 2010] [observing that a plaintiff’s purported comparative negligence did not
absolve the defendant of liability under Labor Law § 241(6)]).
Industrial Code section 23-1.8(a) states in part that “[a]pproved eye protection equipment
suitable for the hazard involved shall be provided for and shall be used by all persons while
employed in welding, burning or cutting operations or in chipping, cutting or grinding any
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material from which particles may fly, or while engaged in any other operation which may
endanger the eyes.”
Plaintiff, whose eye was damaged resulting in an alleged partial loss of vision, was not
wearing goggles at the time of the accident. He testified that he was not provided goggles and
that there were no goggles in the Forward Mechanical gang box (NYSCEF Doc. No. 231, at 53-
56). Joseph Milohnic, part owner of Forward, testified that all of Forward’s employees always
received glasses, and they were supposed to be wearing them at all times (NYSCEF Doc. No.
233 at 27). Anthony Milohnic, another part-owner of Forward, testified that generally the type of
equipment Forward would provide included “[v]est, goggles, something – yes. That was
basically it” (NYSCEF Doc. No.234 at 31). However, when asked specifically about the goggles,
Anthony Milohnic stated that he did not remember purchasing goggles for the 100 Franklin
Street project, he did not have any receipts or purchase orders for the goggles, that nothing was
placed in writing that would detail that goggles were present, that he did not know what type of
goggles they were or where he would have purchased them, and he did not know if anyone
would have supplied 100 Franklin Street with goggles for Forward employees to use (id. at 49-
50). Anthony Milohnic further testified that he did not know if plaintiff had been offered any
goggles to use, or if plaintiff was made aware that goggles were available (id. at 54).
DDG’s argument centers around the contention that plaintiff was the sole proximate
cause of his accident, as he chose to look into the hole despite it not being strictly necessary and
despite the fact that he was not specifically instructed to look through the hole. Plaintiff disagrees
and argues that even if plaintiff bears any responsibility for his injuries, comparative fault is not
necessary for a Court to impose liability at the summary judgment stage.
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The Court finds that Industrial Code section 23-1.8(a) was violated. Mr. Leon testified
that he was not provided glasses or goggles and did not know of any that were available to him.
This testimony is uncontradicted. Forward’s part-owner Joseph Milohnic admitted that all
workers should have been wearing protective eyewear, yet was unable to prove and did not even
specifically allege that Mr. Leon was provided with protective eyewear. As noted above, to the
extent that plaintiff may have some comparative fault for looking into the hole without wearing
proper protection, that does not absolve DDG of its liability for violating this Industrial Code
section.
Contractual Indemnification as to Extreme
DDG seeks summary judgment for contractual indemnification in MS 004. Extreme
opposes and moves for summary judgment dismissing DDG’s claim for contractual
indemnification in MS 005.
“In contractual indemnification, the one seeking indemnification need only establish that
it was free from negligence . . . Whether or not the proposed indemnitor was negligent is a non-
issue and irrelevant” (Correia v Professional Data Mgt., Inc., 259 AD2d 60, 65, 693 NYS2d 596
[1st Dept 1999]).
Extreme does not dispute that the parties had an indemnification provision in the relevant
contract. Extreme claims, however, that the fifth floor was no longer an Extreme working floor,
and the responsibility to clean up the debris therefore fell on DDG. On the other hand, DDG
claims that Extreme created the debris, that the fifth floor was an Extreme working floor at the
time of the accident, and it was therefore Extreme’s responsibility to keep the floor free from
debris. The relevant part of the contract states that at the time of the floor turn over, “[a]ll
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protection, cleaning, etc. is the responsibility of [Extreme] until the floor has been signed off by
[DDG]. At that time maintenance of protection and debris removal becomes the responsibility of
[DDG]. Sign-off and acceptance requires a broom swept floor…” (NYSCEF Doc. No. 174 at
30).
In support of the contention that the fifth floor was an Extreme working floor, DDG
points to the deposition of Waylon DeCanio, part owner of Extreme. The relevant part of
Waylon DeCanio’s testimony revolves around two pictures that he took, one from March 6, 2018
(six days before the accident) and the other from March 16, 2018 (four days after the accident)
which are attached at NYSCEF Doc. No. 212. Both photos are taken from street level, and both
photos show that the first five floors have orange safety netting secured around the perimeter. In
his deposition, Waylon DeCanio indicates that, based on the photos, the fifth floor was an
Extreme working floor on March 6, 2018, and was still an Extreme working on March 16, 2018
due to the presence of two-by-fours throughout the entire fifth floor and the fact that the four
lower floors have metal cables running between the columns to which the netting is attached for
safety, indicating that the floor has been handed over (NYSCEF Doc. No. 200 at 36-42, 89).
DDG also points to the deposition of Gary DeCanio, the president of Extreme (NYSCEF Doc.
No. 195 at 92-94, 124) and of Waylon DeCanio (NYSCEF Doc. No. 200 at 27-28 and 105-108)
where both witnesses testify that Extreme’s work created concrete and wood debris.
Extreme disputes that the accident was caused by, arising out of, resulting from, or
occurring in connection with its work, and that the indemnification clause is therefore not
applicable.
Extreme points to Waylon DeCanio’s affidavit which was prepared in support of
Extreme’s motion for summary judgment dismissing DDG’s claim for contractual
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indemnification at NYSCEF Doc. No. 150. There, based on different photos that Waylon
DeCanio allegedly took on March 16, 2018 and attached at NYSCEF Doc. No. 179, Waylon
DeCanio concludes that the photographs show about two days of work performed by masonry
contractors and that before the masonry contractors can work on any floor, Extreme would have
to hand the floor over to DDG; DDG would then have to provide updated drawings which “could
take a day or more,” that the mason would have to mobilize its materials which would also take
at least a day, and that therefore, the masonry contractor began their work, on the fifth floor, on
March 12, 2018, “or prior to that” and Extreme did not have control over the fifth floor since at
least March 12, 2018, the day of plaintiff’s accident (NYSCEF Doc. No. 150 at ¶¶ 25-32). Based
on Waylon DeCanio’s affidavit and these photos, Extreme claims that the debris may have been
created by the masonry contractors and that it is therefore only speculation that the debris
plaintiff allegedly tripped over was created by Extreme.
In reply, DDG says that it is not speculation that the concrete debris was created by
Extreme, as Extreme performed all concrete work on the premises, that Extreme was solely
responsible for cleanup until the floor was turned over to the construction manager and other
trades. DDG says that Waylon DeCanio’s affidavit is “self-serving,” contradicts his deposition
testimony, and that the affidavit should therefore be disregarded and is insufficient to raise a
question of fact (NYSCEF Doc. No. 280).
Forward points out in opposition to Extreme’s MS 005 that the meeting minutes from the
following day, March 13, 2018 (NYSCEF Doc. No. 244), show that Extreme still had not poured
the concrete on the sixth floor. Forward also raises the issue of Mr. DeCanio’s knowledge of the
masonry timelines. Forward further points out that in Waylon DeCanio’s deposition, he stated
that Extreme kept daily logs of when the floors were turned over (NYSCEF Doc. No. 171 at
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pages 83-84). Forward then claims that Extreme did not produce these records despite request.
True, Forward’s opposition was submitted late; Extreme, however, had the time to put in a reply
to Forward’s opposition – in which Extreme did not refute this allegation and did not provide
proof of turnover – only arguing that the Court should not consider Forward’s opposition since it
was untimely.
The Court grants the branch of DDG’s motion that seeks contractual indemnification
from Extreme. If there was a turnover of the fifth floor from Extreme to DDG, then it was
Extreme’s burden to produce proof that there was such a turnover. Here, Extreme wholly failed
to do so. In fact, Extreme did not point to any documents, such as the logs highlighted by Mr.
DeCanio at his deposition, that show that there was a sign off and acceptance as required by the
parties’ contract.
Extreme did not claim that the documents proving Extreme turned over the fifth floor to
DDG were destroyed in a fire or flood or otherwise lost. The facts on this motion show that
Extreme was doing concrete work, that there was concrete debris left in the immediate area
where plaintiff was working (which required plaintiff to move it away from his work area) and
when he got hit in the face, he stumbled away from his immediate work area and tripped over the
concrete debris. If Extreme had already turned over the fifth floor, then it was Extreme’s burden
to show it with specific proof. Instead, Extreme only offered innuendo that the pictures showed
masonry work which means that therefore Extreme had turned over the floor and that the masons
may have caused the debris. Of course, these arguments were not raised at any of the depositions
for Extreme and they cannot be raised for the first time in an affidavit opposing the instant
motion to raise an issue of fact.
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DDG’s Claim for Common-Law Indemnification from Extreme
“In order to establish a claim for common-law indemnification, a party must prove not
only that [it was] not negligent, but also that the proposed indemnitor ... was responsible for
negligence that contributed to the accident (Zubaidi v Hasbani, 136 AD3d 703, 704, 136 NYS3d
202 [2d Dept 2016]).
For the reasons stated above, the Court grants this branch of DDG’s motion against
Extreme. The fact is that Extreme was, at least on this record, still on the subject floor and it did
not raise anything other than mere speculation that the debris was from a different subcontractor.
DDG’s Claim Against Extreme for Breach of Contract for Failure to Procure Insurance
DDG’s contract with Extreme obligated Extreme to procure a commercial general
liability policy in the amount of $5,000,000 (satisfied through primary and excess coverage),
naming, DGG 100 as an additional insured. DDG argued that Extreme failed to provide evidence
of procurement of the required primary and excess policies.
Extreme counters that it did procure the insurance as required by the contract and attaches
copies of the primary and excess policies at NYSCEF Doc. Nos. 177 and 178. Extreme moves to
dismiss DDG’s claim against Extreme for failure to procure insurance in MS 005. DDG did not
reply to Extreme’s opposition to this part of its motion under MS 004 and does not oppose the
part of Extreme’s motion to dismiss this claim under MS 005. The Court therefore denies DDG’s
motion seeking summary judgment for breach of contract for failure to procure insurance under
MS 004 and grants the part of Extreme’s motion seeking to dismiss this claim under MS 005. In
other words, Extreme demonstrated that it procured the proper insurance.
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DDG’s Claim for Contractual Indemnification Against Forward
DDG claims that it is entitled to contractual indemnification from Forward to the extent
the insurance policies issued to Forward which provide additional coverage to DDG are
exhausted. It is undisputed that Forward’s contract also contains an indemnification provision for
work that arises out of, results from, or occurs in connection with the work performed by
Forward unless the accident is shown to be the result of the sole negligence of DDG (NYSCEF
Doc. No. 210 at 10).
Forward claims that it has not been demonstrated that Forward violated the Industrial
Code or that or that the violation was a proximate cause of plaintiff’s injuries and agrees with
DDG that plaintiff was the sole proximate cause of his accident.
Mr. Leon testified that he was not provided glasses and did not know of any that were
available to him. This testimony is uncontradicted. Forward’s part-owner Joseph Milohnic
admitted that all workers should have been wearing protective eyewear, yet was unable to prove
and did not even specifically allege that Mr. Leon was provided with protective eyewear. As a
result of being struck in the face without protective eyewear, Mr. Leon has permanent damage to
his vision. Therefore, the Court finds that Forward violated Industrial Code 23-1.8 which was the
proximate cause of at least some of plaintiff’s injuries – his vision loss.
Furthermore, Forward was performing the work on the pipe, and the pipe should have
been depressurized. Since the accident clearly arose out of the work being performed by Forward
and was not solely caused by DDG’s negligence, the Court grants the part of DDG’s motion
seeking summary judgment for contractual indemnification from Forward to the extent the
insurance policies issued to Forward which provide additional coverage to DDG are exhausted.
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Counterclaims against DDG for Common-Law Indemnification or Contribution
DDG moves to dismiss Extreme’s and Forward’s counterclaims against DDG seeking
common-law indemnification and contribution.
Based on the analysis above, the Court finds that Extreme was still in control of the floor,
and therefore the Court dismisses Extreme’s indemnification and contribution claims against
DDG.
As to Forward’s claims for common-law indemnification, it is clear that Forward cannot
show that DDG’s negligence was the sole cause for plaintiff’s injury when it was Forward’s
workers who failed to depressurize the pipe, and where Forward has not rebutted plaintiff’s
assertion that Forward failed to provide him with protective eyewear. The Court therefore grants
the part of DDG’s motion seeking to dismiss Forward’s claims for common-law indemnification
and contribution.
Summary
The Court denies the part of DDG’s motion seeking to dismiss plaintiffs’ causes of action
pursuant to Labor Law § 200 and for common-law negligence. The Court grants plaintiffs’ cross-
motion pursuant to Labor Law § 241(6) on liability only – the Court finds that Industrial Code
provisions §§ 23-1.7 and 1.8 were violated, and that DDG, as owner, is therefore liable. The
Court therefore denies the part of DDG’s motion seeking to dismiss plaintiffs’ Labor Law §
241(6) claim.
The Court grants summary judgment on DDG’s claim for contractual and common-law
indemnification as to Extreme and therefore denies the part of Extreme’s motion seeking to
dismiss DDG’s claims for contractual and common-law indemnification and contribution against
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Extreme. The Court grants the part of DDG’s motion seeking to dismiss Extreme’s claim for
common-law indemnification and contribution against DDG.
The Court dismisses DDG’s claim against Extreme for breach of contract for failure to
procure insurance as Extreme provided copies of the policies.
The Court grants DDG’s claim for contractual indemnification against Forward as
described above; the evidence clearly shows that plaintiff’s damages resulting from the bursting
pipe and the lack of eye protection arose out of Forward’s work, which was the contractual
trigger for DDG to be indemnified by Forward.
Lastly, the Court grants the part of DDG’s motion seeking to dismiss Forward’s claim for
common-law indemnification and contribution against DDG; the evidence clearly shows that
DDG’s negligence was not the sole cause of plaintiff’s accident regarding the bursting pipe and
lack of eye protection.
Accordingly, it is hereby
ORDERED that the part of DDG’s motion seeking to dismiss plaintiffs’ causes of action
pursuant to Labor Law § 200 and for common-law negligence is denied; and it is further
ORDERED that plaintiffs’ cross-motion seeking summary judgment against DDG on
plaintiffs’ claim pursuant to Labor Law § 241(6) based upon the violation of Industrial Code §§
23-1.7 and 23-1.8 is granted as to liability only; and it is further
ORDERED that the part of DDG’s motion seeking to dismiss plaintiffs’ Labor Law §
241(6) claim is granted to the extent that plaintiffs’ claim relied upon the violation of Industrial
Code § 23-1.25 and is otherwise denied; and it is further
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ORDERED that the parts of DDG’s motion seeking summary judgment on its claims of
contractual and common-law indemnification against Extreme are granted; and it is further
ORDERED that the parts of DDG’s motion seeking to dismiss Extreme’s claims for
common-law indemnification and contribution against DDG are granted; and it is further
ORDERED that the parts of Extreme’s motion to dismiss DDG’s claims of contractual
indemnification and common-law indemnification and contribution are denied; and it is further
ORDERED that the part of Extreme’s motion seeking to dismiss DDG’s cause of action
for breach of contract for failure to procure insurance against Extreme is granted; and it is further
ORDERED that the part of DDG’s motion seeking summary judgment on its claim for
breach of contract for failure to procure insurance against Extreme is denied; and it is further
ORDERED that the part of DDG’s motion seeking summary judgment on its claim for
contractual indemnification against Forward is granted; and it is further
ORDERED that the part of DDG’s motion seeking to dismiss Forward’s claim for
common-law indemnification and contribution against DDG is granted.
6/9/2025 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
152361/2018 LEON, JONATHAN vs. DDG 100 FRANKLIN LLC Page 18 of 18 Motion No. 004 005
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