Preview
FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JULIE AYALA, Index No.: 521818/2018
Plaintiff, AFFIRMATION IN SUPPORT
OF DEFENDANTS/THIRD-
- against - PARTY PLAINTIFF’S
MOTION FOR SUMMARY
94TH AVENUE JAMAICA, LLC, ARTIMUS JUDGEMENT
CONSTRUCTION INC., HP JAMAICA 94TH AVENUE
HOUSING DEVELOPMENT FUND COMPANY, INC.
AND 94TH AVENUE JAMAICA LI LLC,
Defendants.
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94TH AVENUE JAMAICA, LLC, ARTIMUS
CONSTRUCTION INC., HP JAMAICA 94TH AVENUE
HOUSING DEVELOPMENT FUND COMPANY, INC.
AND 94TH AVENUE JAMAICA LI LLC,
Third-Party Plaintiffs,
- against -
A& M PROFESSIONAL SECURITY CONSULTING CORP.,
Third-Party Defendant.
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ANCILLA H. DIAS-PINTO, an attorney duly licensed to practice law before the Courts
of the State of New York, hereby affirms the following under the penalties of perjury:
1. I am an associate with the law firm Gallo Vitucci Klar LLP, attorneys for
Defendants/Third-Party Plaintiffs 94TH AVENUE JAMAICA, LLC, ARTIMUS
CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT
FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC (hereinafter referred to
as “Defendants”) and as such I am fully familiar with the facts and circumstances surrounding this
matter.
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2. I make this affirmation in support of Defendants motion for an order seeking
s ummary judgment pursuant to CPLR §3212, dismissing all of plaintiff’s claims. There is no
evidence to suggest that Defendants had either actual or constructive notice of the alleged condition
or that the Defendants caused or created the condition where plaintiff's accident occurred at any
time prior to or the date of plaintiff’s accident and thereby no negligence can be attributed to
Defendants;
3. Pursuant to CPLR §3212, dismissing all counterclaims against Defendants on the
grounds that those claims are without merit and present no triable issue of fact for a jury, thereby
warranting direction of judgment as a matter of law;
4. Pursuant to CPLR §3212, granting summary judgment in favor of Defendants on
its Third-Party Summons and Complaint against A&M Professional Security Consulting Corp.
(“A&M”); and
5. For such other and further relief as this Court deems just and proper.
PRELIMINARY STATEMENT
6. This action stems from an alleged accident that took place on March 26, 2018,
during a construction project that was located at 147-20 94th Avenue, Jamaica, New York (“subject
premises”) when plaintiff, a security guard and employee of third-party defendant A&M was
allegedly injured during her patrol of the subject premises.
7. The subject construction project was an affordable housing project with tax
subsidies from the City. 94th Avenue Jamaica LI LLC was the beneficial owner of the low-income
units and the 94th Avenue Jamaica LLC was the beneficial owner of the market rate units. Artimus
Construction Inc. were the general contractors at the subject project.
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8. Artimus Construction Inc., contracted with A&M to provide security services at the
subject premises.
9. Plaintiff was employed as a security guard by A&M and her job function
consisted of doing hourly patrols and ensuring that no unauthorized individuals gained access to
the subject premises. Plaintiff was not involved in any construction work at the subject premises
and was only required to patrol the exterior and the basement and first floor in the interior areas
of the subject premises. During her patrol, plaintiff was descending down the subject stairway
when she allegedly slipped on what she described to be a metal bolt and slid to the bottom of the
stairway. Significantly, Mr. Dennis Normile, the site supervisor who was the first person onsite
the morning after plaintiffs’ accident, carried out an inspection of the subject stairway where
plaintiff was allegedly injured and did not observe any garbage and/ or debris whatsoever.
PROCEDURAL HISTORY
10. Plaintiff commenced this action by filing of a Summons & Complaint on or about
October 20, 2018. A copy is attached hereto as Exhibit A.
11. Issue was joined on behalf of Defendants on or about May 16, 2019. A copy is
attached hereto as Exhibit B.
12. Plaintiff served her Verified Bill of Particulars on or about May 30, 2019. See
attached hereto as Exhibit C.
13. Defendants commenced a third-party action against A&M Professional Security
Consulting Corp (A&M), on or about February 7, 2020. A copy is attached hereto as Exhibit D.
14. Plaintiff’s deposition was held on March 4, 2020. A copy is attached hereto as
Exhibit E.
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15. An answer was interposed on behalf of Third-Party Defendants on August 19, 2020.
A copy is attached hereto as Exhibit F.
16. Defendants appeared for their deposition on January 22, 2021 and March 2, 2021
respectively. A copy is attached hereto as Exhibit G.
17. Plaintiff served her Supplemental Verified Bill of Particulars on or about August
18, 2021. See attached hereto as Exhibit H.
18. Plaintiff initially filed her Note of Issue on May 17, 2022, which was returned by
the Courts. Thereafter, plaintiff did not refile their Note of Issue. On June 24, 2022, plaintiff ‘s
counsel then filed a motion to extend time to file their Note of Issue.
19. The motion was granted in an Order dated July 20, 2022, wherein plaintiff was
required to file their Note of Issue on or before August 12, 2023. A copy of the Order is attached
hereto as Exhibit I.
20. Despite all the outstanding discovery, Plaintiff filed their Note of Issue with
Certificate of Readiness on August 4, 2022. A copy is attached hereto as Exhibit J.
21. Subsequently, Third-Party Defendants A&M were deposed on September 20, 2022.
A copy is attached hereto as Exhibit K.
STATEMENT OF FACTS
22. In addition to the statement of facts set forth, Defendants offers the following:
23. On the night of her accident, when she arrived at the subject premises, she never
discussed the presence of any debris with her colleague Robert from the previous shift. See
Plaintiff’s testimony attached as Exhibit E at page 54, lines 20-22.
24. Plaintiff testified that she never observed any debris while she was working on the
night shift. See Plaintiff’s testimony attached as Exhibit E at page 66, line 2-6.
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25. Mr. Normile’s responsibilities included overseeing daily activities of construction
from all different trades, ensuring all construction activities were coordinated including the safe
running of the jobsite according to the project plans and specifications. See Normile testimony
attached as Exhibit G at page 15, lines 22-25, page 16, lines 2-4.
26. Mr. Normile testified that Artimus Construction was responsible for site clean -up
of the areas that were signed off by other trades. He further specified, that the contractors were
responsible for cleaning their own garbage and debris at the end of the night. The garbage was to
be placed in the container following which it was then emptied into trucks. See Normile
testimony attached as Exhibit G at page 20.
27. He would perform two walk throughs of the jobsite to ensure that there were no
issues with the work being performed as well as no debris or material near the staircases that
would cause a tripping hazard. See Normile testimony attached as Exhibit G at page 24, lines 13-
14.
28. Mr. Normalie would conduct an initial walk through of the jobsite between the
hours of 8:30 a.m. and 10:30 a.m., and a second walk through either between 12:00 p.m. and
1:30 p.m. or 3:00 p.m. and 4:30 p.m., depending on a given days routine. See Normile testimony
attached as Exhibit G at page 29, lines 11-25 and page 30, line 30-11.
29. Mr. Normile testified that if he observed any debris condition that was a safety
hazard, he would have it cleaned immediately. See Normile testimony attached as Exhibit G at
page 30, lines 13-25.
30. When he got to the jobsite on the morning after plaintiff’s accident Mr. Normalie
went to visit the subject stairway where plaintiffs’ accident occurred and observed a clean
stairway with no garbage and/or debris and there was nothing present that would be considered a
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tripping hazard. See Normile testimony attached as Exhibit G at page 23, lines 22-25, page 24,
lines 2-5.
SUMMARY JUDGEMENT STANDARD
31. The law of summary judgment is well settled. Section 3212 (b) of the Civil Practice
Laws and Rules provides, in pertinent part:
A motion for summary judgment shall be supported by affidavit,
by a copy of the pleading and by other available proof, such as
deposition and written admissions. The affidavit shall be by a
person having knowledge of the facts; it shall recite all the
material facts; and it shall show that there is no defense to the
cause of action or that the cause of action or defense has no merit.
The motion shall be granted if, upon all the papers and proof
submitted, the cause of action shall be established sufficiently to
warrant the Court as a matter of law in directing judgment in
favor of any party. Except as provided in subdivision [c] of this
rule the motion shall be denied if any party shall show facts
sufficient to require a trial of any issue of fact. (McKinney 1992)
(emphasis added).
32. The issue on a motion for summary judgment “is not whether the movant can
ultimately establish liability, but rather, whether there exists a substantial issue of fact on the
issue of liability which requires a plenary trial.” See, Tri-Delta Aggregates, Inc. v. Chautauqua
County, 237 A.D.2d 880, 656 N.Y.S.2d 992 (4th Dept. 1997) (internal citations omitted). Since
the court’s role on a motion for summary judgment is to determine whether there is a material
factual issue to be tried, not to resolve it (Sillman, supra at 404), the motion should be granted
only if the movant is entitled to judgment as a matter of law (Ugarriza, supra at 474), and denied
where different conclusions can reasonably be drawn from the evidence.
33. On a motion for summary judgment pursuant to CPLR § 3212, the moving party
bears the burden of producing evidence sufficient to eliminate any questions of fact and to show
entitlement to judgment as a matter of law. See Winegrad v. New York Univ. Med. Ctr., 64
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N.Y.2d 851, 853 (1985); Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Zuckerman v.
City of New York, 49 N.Y.2d 557, 562 (1980); Sillman v. Twentieth Century-Fox-Fox Film Corp.,
N.Y.2d 395, 404 (1957). Once this burden has been met, the burden shifts to the party opposing
the motion to produce admissible evidence sufficient to show that a question of material fact
remains for the jury to decide. See Greenberg v. Coronet Prop. Co., 167 A.D.2d 291 (1990);
Zuckerman, 49 N.Y.2d at 557.
34. The testimony of the plaintiff is in insufficient to establish any culpable conduct
on behalf of the Defendants. There is no evidence to support any claim of negligence against the
Defendants. Moreover, there is absolutely no evidence that any negligence on behalf of the
Defendants was the proximate cause of the plaintiff's alleged accident.
DEFENDANTS DID NOT CREATE NOR HAD ACTUAL OR CONSTRUCTIVE
NOTICE OF ANY DEBRIS ACCUMULATION ON THE SUBJECT STAIRWAYS
AT ANY TIME PRIOR TO OR AT THE TIME OF PLAINTIFF’S ACCIDENT
35. For plaintiff to establish a breach of the duty of reasonable care, a plaintiff must
show that the defendant created the dangerous condition or had either actual or constructive notice
of the dangerous condition. Gordon v. The American Museum of Natural History, 670 N.Y.2d 836,
501 N.Y.S.2d 646 (1986); Bogart v. F.W. Woolworth Co., 24 N.Y.2d 936, 301 N.Y.S.2d 995 (1969).
36. A defendant who moves for summary judgment in a slip-and-fall action has the
initial burden of making a prima facie demonstration that it neither created the hazardous condition,
nor had actual or constructive notice of its existence. See Manning v. Americold Logistics, LLC, 33
A.D.3d 427 (1d Dept. 2006). Once a defendant establishes prima facie entitlement to such relief as
a matter of law, the burden shifts to Plaintiff to raise a triable issue of fact as to the creation of the
defect or notice thereof. See Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 500 (1d Dept. 2008).
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37. There is no evidence on the record to indicate that the Defendants caused or created
the debris condition on the stairway at the subject premises.
38. Mr. Denis Normalie specified that when he got the jobsite on the morning following
plaintiff’s alleged accident, he was the first to arrive onsite and besides plaintiff there was no one
else present at the jobsite. Significantly, after he was informed by plaintiff about her accident he
went to the subject stairway and observed a clean stairway with no garbage and/or debris that would
cause a tripping hazard. See Exhibit G at page 24.
39. Moreover, Mr. Normile testified that at the time this incident occurred, the
construction work in the basement was completed and there were no workers going to the basement
area to perform any work. He specified that the work in the basement would have been completed
in the first stage of construction following which they would continue with the construction work
at the higher levels. Even the first floor which was essentially the lobby and mail room would have
been completed prior to the subject incident. See Exhibit G at page 56, page 57.
40. When a plaintiff cannot establish notice or that the defendant created a dangerous
condition, it is improper for a Court to allow a jury to speculate that negligence on behalf of a
defendant caused the alleged injury. Catlyn v. Hotel & 33 Company, 230 A.D.2d 655, 646 N.Y.S.2d
655, 656 (1st Dept. 1996); and Trail West v. Wolfe, 3 N.Y.2d 207, 221, 344 N.Y.S.2d 863 (1973).
41. Actual notice may be found when defendant created the condition or was aware of
its existence. See Pianforini v. Kelties Bum Steer, 258 A.D.2d 634 (2d Dept. 1999). However,
detailed notice as to the specific hazard, including an exact location, must be provided to suffice.
See, Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972 (1994). It is incumbent upon the plaintiff
to demonstrate the "identity of the persons to whom notice of the condition was allegedly given and
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when and how it was given." Carlos v. New Rochelle Mun. Hous. Auth., 262 A.D.2d 515 (2d Dept.
1999).
42. Similarly, constructive notice is valid only when the defect is visible and apparent
and has existed "for a sufficient length of time prior to the accident to permit defendants to discover
and remedy it." Gordon v. Am. Museum of Natural History 67 N.Y.2d 836 (1986); see also Lopez v
Dagan, 98 A.D.3d 436, 438 (1st Dep't 2012). And even if a defendant has notice of a dangerous
condition, he must be afforded a reasonable period of time to remedy the hazard before liability
will attach. See Alami v. 215 East 68th Street, L.P., 88 A.D.3d 924, 925 (2d Dept. 2011).
43. Moreover, when a plaintiff cannot establish notice or that the defendant created a
dangerous condition, it is improper for a Court to allow a jury to speculate that negligence on behalf
of a defendant caused the alleged injury. Catlyn v. Hotel & 33 Company, 230 A.D.2d 655, 646
N.Y.S.2d 655, 656 (1d Dept. 1996); and Trail West v. Wolfe, 3 N.Y.2d 207, 221, 344 N.Y.S.2d 863
(1973).
44. In the present case, plaintiff is alleging that the Defendants were negligent as they
allowed debris to remain on the subject stairway thereby causing a hazardous condition despite
adequate actual and constructive notice. While plaintiff claims that she complained of debris being
present at the subject premises, there is in fact no written record of any such complaints being made.
In fact, even her own superior William Burgos had no knowledge of any such complaints being
made by plaintiff at any time prior to the incident occurring. Plaintiff used the subject stairway on
several occasions while carrying out her patrols and never had any problems with accessing it at
any time. See Plaintiff’s testimony at Exhibit E. Accordingly, plaintiff cannot establish prior actual
notice of the alleged condition.
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45. Significantly, there are also no facts that would support a finding that the
Defendants acquired constructive notice prior to the subject incident. Denis Normile, the site
supervisor testified that he performed two walkthroughs at different times every day throughout the
site to ensure that there were no issues with the construction work that was being performed and
also that there was no debris present that would cause a tripping hazard. See Exhibit G at page 24,
lines 13-14.
46. As such, the Defendants have established prima facie, that they neither created nor
had actual or constructive notice of the alleged defective condition on the stairway on which
plaintiff fell thus warranting summary judgement in favor of the Defendants. If Mr. Normile
observed any debris during his walkthrough, he would ensure that it was cleaned immediately.
THE PLAINTIFF FAILS TO CITE TO A SPECIFIC, APPLICABLE VIOLATION OF
THE INDUSTRIAL CODE THAT APPLIES TO THE FACTS OF THIS CASE OR
PROXIMATELY CAUSED THE ALLEGED ACCIDENT
47. While Plaintiff in her recently served Supplemental Bill of Particulars does not
allege violations Labor Law 240 and/or 241(6), she is in fact alleging that the Defendants violated
several sections of the New York Industrial Code 23 (12 NYCRR 23) including §§ 23-1.5; 23-1.7
(a); 23-1.7 (b); 23-1.7 (c); 23-1.7 (d); 23-1.7 (e); 23-1.7 (f); 23-1.15; 23-1.16; 23-1.17; 23-1.21; 23-
1.22; 23-1.24; 23-2.6 and 23-4.1.
48. Significantly, all of the industrial codes as being alleged by plaintiff and detailed
below in fact pertain to the protections afforded to workers engaged in construction, demolition
and/or excavation. Plaintiff was never involved in any phase of the construction and/or demolition
work that was performed at the subject premises. Plaintiff was employed as a security guard at the
subject premises and her responsibilities included patrolling the subject premises to ensure that no
unauthorized personnel gained access to the premises.
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49. Further, a plaintiff must plead and prove that a specific violation of the Industrial
Code was the proximate cause of his accident. See, Ross v. Curtis—Palmer Hydro-Electric Co., 81
N.Y.2d 494 (1993); Parisi v. Loewen Dev. of Wappinger Falls, LP, 5 A.D.3d 648 (2d Dep’t 2004);
Misicki v Caradonna, 12 N.Y.3d 511, 515 (2009) (To support a claim under §241(6), a plaintiff must
allege a violation of an applicable Industrial Code regulation which “mandate[s] compliance with
concrete specifications and [does] not simply declare general safety standards or reiterate common-
law principles”); Buckley v Columbia Grammar & Preparatory, 44 A.D.3d 263, 271 (1st Dept. 2007)
(the alleged Industrial Code violation must be the proximate cause of the plaintiff’s injury.
50. The statutory protection does not extend, to employees performing routine
maintenance tasks at a building that happens to be undergoing construction or renovation. See Agli
v. Turner Constr. Co., 246 A.D.2d 16, 676 N.Y.S.2d 54), or duties as a night watchman or security
guard. See Shields v. St. Marks Hous. Assocs., 230 A.D.2d 903 ( 2d Dep’t 1996).
51. A violation of the Industrial Code, however, does not establish negligence as a
matter of law, but is “merely some evidence to be considered on the question of a defendant’s
negligence.” See, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985).
52. Here, the plaintiff alleges that the defendants violated Industrial Code Regulation §
23-1.5. However, plaintiff has failed to specify which subsection if any of the Industrial Code are
applicable to the facts of this case. Even if considered § 23-1.5- discusses “General Responsibility
of Employers” which deals with health and safety protocol to be adopted during construction,
excavation or demolition or excavations. This section is inapplicable as plaintiff was not performing
construction, demolition or excavation work at the subject premises. More specifically, under
subsection 23-1.5(a) “Health and Safety Protection” clearly states: All places where employees are
suffered or permitted to perform work of any kind in construction, demolition or excavation
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operations shall be so constructed, equipped, arranged, operated and conducted as to provide
reasonable and adequate protection for the lives, health and safety of such persons as well as of
persons lawfully frequenting the area of such activity. This section is not applicable to the subject
accident given that plaintiff had no involvement with any phase of the construction and/or demolition
work
53. §23-1.7(a) discusses “Overhead hazards” that deals with protection from falling
objects and completely unrelated to the subject accident.
54. §23-1.7(b) discusses “Falling hazards” that deals with hazardous openings
protection into which a person may fall and completely unrelated to the subject accident.
55. §23-1.7(c) discusses “Drowning hazards” that deals with falling into water beneath
the work location also completely unrelated to the subject accident.
56. §23-1.7(d) discusses “Slipping hazards” due to a slippery condition caused by ice,
snow, water, grease and any other foreign substance. This subsection is completely unrelated to
plaintiff’s incident.
57. §23-1.7(e)(1) discusses “Tripping and other hazards in Passageways” which is yet
again unrelated to plaintiff’s accident as plaintiff was not using any kind of passageway when the
accident took place.
58. §23-1.7(e)(2) discusses “Tripping and other hazards in Working Areas” which
details accumulation of dirt and debris from scattered tools and materials and sharp projections, the
details of which have no bearing on plaintiff’s accident. Plaintiff’s testimony is very clear that there
was no construction work performed while on the night shift as the jobsite was closed.
59. §23-1.7(f) discusses “Vertical passage”. Stairways, ramps or runways that are
required to be provided as a means of access working levels above or below ground. Again, this
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subsection bears no relevance to the case at hand given that a well-maintained stairway with
handrails was in fact provided and more importantly plaintiff was not required to access the basement
to perform any construction related work.
60. §23-1.5- that discusses the requirement of a safety railings. Yet again this section
deals with providing safety railings at various areas of the construction site. Ithas already been
established through the testimony of Mr. Dennis Normile that the subject stairway had the required
hand rails on either side. This is depicted in the previously exchanged image marked as Exhibit L.
61. §23-1.16- that discusses the requirement of a safety belts, harnesses, tail lines and
life lines also inapplicable to the subject incident given that plaintiff performed absolutely no
construction work at this jobsite.
62. §23-1.17- that discusses the requirement of a life nets. This section is not applicable
given that plaintiff was not involved in demolition or construction work at the subject jobsite.
63. Plaintiff goes on to allege violation of §23-1.21. While inapplicable to the case at
bar, plaintiff has failed to specify which subsection if any of the Industrial Code are applicable to
the facts of this case and should be thereby be dismissed.
64. §23-1.22- that discusses structural runways, ramps and platforms. While
inapplicable to the case at bar, plaintiff has failed to specify which subsection if any of the Industrial
Code are applicable to the facts of this case and should be thereby be dismissed.
65. §23-1.24- discusses work on roofs which is yet again unrelated to plaintiff’s accident
given that plaintiff did not perform any construction work.
66. §23-2.6- discusses requirement of catch platforms while performing exterior
masonry work. This is unrelated to plaintiff’s accident given that plaintiff did not perform any
construction work whatsoever.
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67. §23-4.1- discusses general requirements as to stability of structures when excavation
is to be performed. Yet again, this section is unrelated to plaintiffs’ accident given that plaintiff was
not involved in construction, demolition and/or excavation work at the subject jobsite.
68. Thereby, plaintiff’s allegations as to violation of the Industrial Codes as detailed
above should be disregarded in its entirety.
DEFENDANTS ARE ENTITLED TO CONTRACTUAL
INDEMNIFICATION FROM A& M PROFESSIONAL SECURITY
CONSULTING CORP.
69. A party's right to contractual indemnification depends upon the specific language of
the relevant contract. See Staron v. Decker Assocs. 130 A.D.3d 854, 855 (2d Dept. 2015); Campisini
v. Gambar Food Corp., 130 A.D.3d 854, 855 (2d Dept. 2015; Desena v. North Shore Hebrew
Academy, 119 A.D.3d 631, 636 (2d Dept. 2014).
70. It is well established that "[a] party is entitled to full contractual indemnification
provided that the intention to indemnify can be clearly implied from the language and purposes of
the entire agreement and the surrounding facts and circumstances." See Drzewinski v. Atlantic
Scaffold & Lad Life Ins. Co., 32 N.Y.2d. 149 (1973).
71. Defendants maintain that they bear no liability for the incident as the subject
stairway that was always maintained in good condition with appropriate lighting. The testimony
from Dennis Normalie makes it amply clear that the subject stairway was clean and debris free on
the morning of the accident. A&M is contractually obligated to indemnify Rock Group from all
claims related to the work they performed at the subject premises. A copy of the agreement is
attached hereto as Exhibit “M.”
72. During his deposition, William Burgos authenticated the Security Services
Agreement between Artimus Construction Inc., and A&M Professional Security Corporation. See
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Exhibit M above. The indemnification requirement of the agreement provides as follows:
“To the fullest extent permitted by law, the Subcontractor shall indemnify, defend,
protect and hold harmless the following:
94th Jamaica LLC, Artimus Construction Inc., Artimus Associates LLC; HP
Jamaica 94th Avenue Housing Development Fund Co. Inc.; Phoenix Realty Group LLC,
and PRG Management Co. LLC and the Architect (excluding with respect to the Architect,
claims arising out of (i) the preparation or approval maps, drawings, opinions, reports,
surveys, Change Orders, designs or specifications, or (ii) the giving of or failure to give
directions or instructions by the Architect, its agents or employees, provided such giving
or failure to give is the primary cause of the injury or damage), their respective partners,
officers, directors, shareholders, representatives, agents, employees, and anyone else
acting for or on be behalf of any of them (herein individually called “Indemnitee” and
collectively called “Indemnitees”) from and against all liabilities, damages, losses, claims,
demands, lawsuits, proceedings, arbitrations, and actions of any nature whatsoever (
“Claims”) unless caused by the sole negligence of the Indemnitee, which arise out of or
are connected with, or are claimed to arise out of or be connected with:
1. The performance of Subcontractor’s Work or any act or omission of the
Subcontractor, its Subcontractors, Sub-Subcontractors, suppliers,
materialmen or anyone directly or indirectly employed by any of them or
anyone for whose acts they may be liable;
2. Any accident or occurrence which happens, or is alleged to have happened, in or about
the place where Subcontractor’s Work is being performed either directly or indirectly
through a Subcontractor, Sub-Subcontractor, supply or material agreement, or while any
of the Subcontractor’s property, equipment or personnel are in or about such place or
vicinity thereof by reason of or as a result of the performance of the Work; or
3. The use, misuse, erection, maintenance, operation or failure of any machinery or
equipment (including, but no limited to, scaffolds, derricks, ladders, hoists, rigging,
support, etc.) whether or not such machinery or equipment was furnished, rented, or loaned
by the Owner or their officers, employees, agents, servants or other, to the Subcontractor.
73. As has been detailed above, A&M is contractually obligated to indemnify
Defendants for its work at this jobsite.
CONCLUSION
74. For the foregoing reasons, it is respectfully submitted that this motion should be
granted in its entirety because the Defendants neither created nor had actual or constructive notice
of the debris condition on the stairway where plaintiff allegedly fell. Additionally, none of the New
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York Industrial Code 23 (12 NYCRR 23) as alleged by the plaintiff have any bearing on the case
at hand. Thereby, the Court should issue an Order, pursuant to CPLR § 3212, (1) granting summary
judgment to Defendants/Third-Party Plaintiffs 94th Avenue Jamaica, LLC, Artimus
Construction Inc., HP Jamaica 94th Avenue Housing Development Fund Company, Inc. and
94th Avenue Jamaica LI LLC and dismissing plaintiff's Complaint; and (2) Pursuant to CPLR
§3212, granting summary judgment in favor of Defendants/Third-Party Plaintiffs on its Third-
Party Summons and Complaint against A&M Professional Security Consulting Corp., and for such
other and further relief this Court deems just and proper.
WHEREFORE, itis respectfully requested that the Court grant Defendants/Third-Party
Plaintiffs 94th Avenue Jamaica, LLC, Artimus Construction Inc., HP Jamaica 94th Avenue
Housing Development Fund Company, Inc. and 94th Avenue Jamaica LI LLC’s motion for
summary judgment in its entirety dismissing Plaintiff’s complaint and all counterclaims; and for
any and other further relief as this Court deems just and proper.
Dated: New York, New York
October 1, 2022
_________________________________
ANCILLA H. DIAS-PINTO
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CERTIFICATION OF COUNSEL REGARDING WORD COUNT PURSUANT TO
UNIFORM RULE 202.8-b
For execution above, Ancilla H. Dias-Pinto, an Attorney duly licensed to practice law before the
Courts of the State of New York, does hereby certify pursuant to Uniform Rule 202.8-b, that this
Affirmation complies with the word count limit of 7,000 words set forth therein. The total
number of words in this Affirmation, exclusive of any captions, tables of contents, tables of
authorities and signature blocks is 4,635 words. The undersigned relies on the word count
function of Microsoft Word in making this determination.
Dated: New York, New York
October 1, 2022
______________________________
Ancilla H. Dias-Pinto
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS INDEX NO.: 521818/2018
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JULIE AYALA,
Plaintiff,
Preview
FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------x JULIE AYALA, Index No.: 521818/2018 Plaintiff, AFFIRMATION IN SUPPORT OF DEFENDANTS/THIRD- - against - PARTY PLAINTIFF’S MOTION FOR SUMMARY 94TH AVENUE JAMAICA, LLC, ARTIMUS JUDGEMENT CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC, Defendants. --------------------------------------------------------------------x 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC, Third-Party Plaintiffs, - against - A& M PROFESSIONAL SECURITY CONSULTING CORP., Third-Party Defendant. --------------------------------------------------------------------x ANCILLA H. DIAS-PINTO, an attorney duly licensed to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am an associate with the law firm Gallo Vitucci Klar LLP, attorneys for Defendants/Third-Party Plaintiffs 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC (hereinafter referred to as “Defendants”) and as such I am fully familiar with the facts and circumstances surrounding this matter. 1 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 2. I make this affirmation in support of Defendants motion for an order seeking s ummary judgment pursuant to CPLR §3212, dismissing all of plaintiff’s claims. There is no evidence to suggest that Defendants had either actual or constructive notice of the alleged condition or that the Defendants caused or created the condition where plaintiff's accident occurred at any time prior to or the date of plaintiff’s accident and thereby no negligence can be attributed to Defendants; 3. Pursuant to CPLR §3212, dismissing all counterclaims against Defendants on the grounds that those claims are without merit and present no triable issue of fact for a jury, thereby warranting direction of judgment as a matter of law; 4. Pursuant to CPLR §3212, granting summary judgment in favor of Defendants on its Third-Party Summons and Complaint against A&M Professional Security Consulting Corp. (“A&M”); and 5. For such other and further relief as this Court deems just and proper. PRELIMINARY STATEMENT 6. This action stems from an alleged accident that took place on March 26, 2018, during a construction project that was located at 147-20 94th Avenue, Jamaica, New York (“subject premises”) when plaintiff, a security guard and employee of third-party defendant A&M was allegedly injured during her patrol of the subject premises. 7. The subject construction project was an affordable housing project with tax subsidies from the City. 94th Avenue Jamaica LI LLC was the beneficial owner of the low-income units and the 94th Avenue Jamaica LLC was the beneficial owner of the market rate units. Artimus Construction Inc. were the general contractors at the subject project. 2 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 8. Artimus Construction Inc., contracted with A&M to provide security services at the subject premises. 9. Plaintiff was employed as a security guard by A&M and her job function consisted of doing hourly patrols and ensuring that no unauthorized individuals gained access to the subject premises. Plaintiff was not involved in any construction work at the subject premises and was only required to patrol the exterior and the basement and first floor in the interior areas of the subject premises. During her patrol, plaintiff was descending down the subject stairway when she allegedly slipped on what she described to be a metal bolt and slid to the bottom of the stairway. Significantly, Mr. Dennis Normile, the site supervisor who was the first person onsite the morning after plaintiffs’ accident, carried out an inspection of the subject stairway where plaintiff was allegedly injured and did not observe any garbage and/ or debris whatsoever. PROCEDURAL HISTORY 10. Plaintiff commenced this action by filing of a Summons & Complaint on or about October 20, 2018. A copy is attached hereto as Exhibit A. 11. Issue was joined on behalf of Defendants on or about May 16, 2019. A copy is attached hereto as Exhibit B. 12. Plaintiff served her Verified Bill of Particulars on or about May 30, 2019. See attached hereto as Exhibit C. 13. Defendants commenced a third-party action against A&M Professional Security Consulting Corp (A&M), on or about February 7, 2020. A copy is attached hereto as Exhibit D. 14. Plaintiff’s deposition was held on March 4, 2020. A copy is attached hereto as Exhibit E. 3 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 15. An answer was interposed on behalf of Third-Party Defendants on August 19, 2020. A copy is attached hereto as Exhibit F. 16. Defendants appeared for their deposition on January 22, 2021 and March 2, 2021 respectively. A copy is attached hereto as Exhibit G. 17. Plaintiff served her Supplemental Verified Bill of Particulars on or about August 18, 2021. See attached hereto as Exhibit H. 18. Plaintiff initially filed her Note of Issue on May 17, 2022, which was returned by the Courts. Thereafter, plaintiff did not refile their Note of Issue. On June 24, 2022, plaintiff ‘s counsel then filed a motion to extend time to file their Note of Issue. 19. The motion was granted in an Order dated July 20, 2022, wherein plaintiff was required to file their Note of Issue on or before August 12, 2023. A copy of the Order is attached hereto as Exhibit I. 20. Despite all the outstanding discovery, Plaintiff filed their Note of Issue with Certificate of Readiness on August 4, 2022. A copy is attached hereto as Exhibit J. 21. Subsequently, Third-Party Defendants A&M were deposed on September 20, 2022. A copy is attached hereto as Exhibit K. STATEMENT OF FACTS 22. In addition to the statement of facts set forth, Defendants offers the following: 23. On the night of her accident, when she arrived at the subject premises, she never discussed the presence of any debris with her colleague Robert from the previous shift. See Plaintiff’s testimony attached as Exhibit E at page 54, lines 20-22. 24. Plaintiff testified that she never observed any debris while she was working on the night shift. See Plaintiff’s testimony attached as Exhibit E at page 66, line 2-6. 4 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 25. Mr. Normile’s responsibilities included overseeing daily activities of construction from all different trades, ensuring all construction activities were coordinated including the safe running of the jobsite according to the project plans and specifications. See Normile testimony attached as Exhibit G at page 15, lines 22-25, page 16, lines 2-4. 26. Mr. Normile testified that Artimus Construction was responsible for site clean -up of the areas that were signed off by other trades. He further specified, that the contractors were responsible for cleaning their own garbage and debris at the end of the night. The garbage was to be placed in the container following which it was then emptied into trucks. See Normile testimony attached as Exhibit G at page 20. 27. He would perform two walk throughs of the jobsite to ensure that there were no issues with the work being performed as well as no debris or material near the staircases that would cause a tripping hazard. See Normile testimony attached as Exhibit G at page 24, lines 13- 14. 28. Mr. Normalie would conduct an initial walk through of the jobsite between the hours of 8:30 a.m. and 10:30 a.m., and a second walk through either between 12:00 p.m. and 1:30 p.m. or 3:00 p.m. and 4:30 p.m., depending on a given days routine. See Normile testimony attached as Exhibit G at page 29, lines 11-25 and page 30, line 30-11. 29. Mr. Normile testified that if he observed any debris condition that was a safety hazard, he would have it cleaned immediately. See Normile testimony attached as Exhibit G at page 30, lines 13-25. 30. When he got to the jobsite on the morning after plaintiff’s accident Mr. Normalie went to visit the subject stairway where plaintiffs’ accident occurred and observed a clean stairway with no garbage and/or debris and there was nothing present that would be considered a 5 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 tripping hazard. See Normile testimony attached as Exhibit G at page 23, lines 22-25, page 24, lines 2-5. SUMMARY JUDGEMENT STANDARD 31. The law of summary judgment is well settled. Section 3212 (b) of the Civil Practice Laws and Rules provides, in pertinent part: A motion for summary judgment shall be supported by affidavit, by a copy of the pleading and by other available proof, such as deposition and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action shall be established sufficiently to warrant the Court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision [c] of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. (McKinney 1992) (emphasis added). 32. The issue on a motion for summary judgment “is not whether the movant can ultimately establish liability, but rather, whether there exists a substantial issue of fact on the issue of liability which requires a plenary trial.” See, Tri-Delta Aggregates, Inc. v. Chautauqua County, 237 A.D.2d 880, 656 N.Y.S.2d 992 (4th Dept. 1997) (internal citations omitted). Since the court’s role on a motion for summary judgment is to determine whether there is a material factual issue to be tried, not to resolve it (Sillman, supra at 404), the motion should be granted only if the movant is entitled to judgment as a matter of law (Ugarriza, supra at 474), and denied where different conclusions can reasonably be drawn from the evidence. 33. On a motion for summary judgment pursuant to CPLR § 3212, the moving party bears the burden of producing evidence sufficient to eliminate any questions of fact and to show entitlement to judgment as a matter of law. See Winegrad v. New York Univ. Med. Ctr., 64 6 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 N.Y.2d 851, 853 (1985); Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980); Sillman v. Twentieth Century-Fox-Fox Film Corp., N.Y.2d 395, 404 (1957). Once this burden has been met, the burden shifts to the party opposing the motion to produce admissible evidence sufficient to show that a question of material fact remains for the jury to decide. See Greenberg v. Coronet Prop. Co., 167 A.D.2d 291 (1990); Zuckerman, 49 N.Y.2d at 557. 34. The testimony of the plaintiff is in insufficient to establish any culpable conduct on behalf of the Defendants. There is no evidence to support any claim of negligence against the Defendants. Moreover, there is absolutely no evidence that any negligence on behalf of the Defendants was the proximate cause of the plaintiff's alleged accident. DEFENDANTS DID NOT CREATE NOR HAD ACTUAL OR CONSTRUCTIVE NOTICE OF ANY DEBRIS ACCUMULATION ON THE SUBJECT STAIRWAYS AT ANY TIME PRIOR TO OR AT THE TIME OF PLAINTIFF’S ACCIDENT 35. For plaintiff to establish a breach of the duty of reasonable care, a plaintiff must show that the defendant created the dangerous condition or had either actual or constructive notice of the dangerous condition. Gordon v. The American Museum of Natural History, 670 N.Y.2d 836, 501 N.Y.S.2d 646 (1986); Bogart v. F.W. Woolworth Co., 24 N.Y.2d 936, 301 N.Y.S.2d 995 (1969). 36. A defendant who moves for summary judgment in a slip-and-fall action has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence. See Manning v. Americold Logistics, LLC, 33 A.D.3d 427 (1d Dept. 2006). Once a defendant establishes prima facie entitlement to such relief as a matter of law, the burden shifts to Plaintiff to raise a triable issue of fact as to the creation of the defect or notice thereof. See Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 500 (1d Dept. 2008). 7 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 37. There is no evidence on the record to indicate that the Defendants caused or created the debris condition on the stairway at the subject premises. 38. Mr. Denis Normalie specified that when he got the jobsite on the morning following plaintiff’s alleged accident, he was the first to arrive onsite and besides plaintiff there was no one else present at the jobsite. Significantly, after he was informed by plaintiff about her accident he went to the subject stairway and observed a clean stairway with no garbage and/or debris that would cause a tripping hazard. See Exhibit G at page 24. 39. Moreover, Mr. Normile testified that at the time this incident occurred, the construction work in the basement was completed and there were no workers going to the basement area to perform any work. He specified that the work in the basement would have been completed in the first stage of construction following which they would continue with the construction work at the higher levels. Even the first floor which was essentially the lobby and mail room would have been completed prior to the subject incident. See Exhibit G at page 56, page 57. 40. When a plaintiff cannot establish notice or that the defendant created a dangerous condition, it is improper for a Court to allow a jury to speculate that negligence on behalf of a defendant caused the alleged injury. Catlyn v. Hotel & 33 Company, 230 A.D.2d 655, 646 N.Y.S.2d 655, 656 (1st Dept. 1996); and Trail West v. Wolfe, 3 N.Y.2d 207, 221, 344 N.Y.S.2d 863 (1973). 41. Actual notice may be found when defendant created the condition or was aware of its existence. See Pianforini v. Kelties Bum Steer, 258 A.D.2d 634 (2d Dept. 1999). However, detailed notice as to the specific hazard, including an exact location, must be provided to suffice. See, Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972 (1994). It is incumbent upon the plaintiff to demonstrate the "identity of the persons to whom notice of the condition was allegedly given and 8 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 when and how it was given." Carlos v. New Rochelle Mun. Hous. Auth., 262 A.D.2d 515 (2d Dept. 1999). 42. Similarly, constructive notice is valid only when the defect is visible and apparent and has existed "for a sufficient length of time prior to the accident to permit defendants to discover and remedy it." Gordon v. Am. Museum of Natural History 67 N.Y.2d 836 (1986); see also Lopez v Dagan, 98 A.D.3d 436, 438 (1st Dep't 2012). And even if a defendant has notice of a dangerous condition, he must be afforded a reasonable period of time to remedy the hazard before liability will attach. See Alami v. 215 East 68th Street, L.P., 88 A.D.3d 924, 925 (2d Dept. 2011). 43. Moreover, when a plaintiff cannot establish notice or that the defendant created a dangerous condition, it is improper for a Court to allow a jury to speculate that negligence on behalf of a defendant caused the alleged injury. Catlyn v. Hotel & 33 Company, 230 A.D.2d 655, 646 N.Y.S.2d 655, 656 (1d Dept. 1996); and Trail West v. Wolfe, 3 N.Y.2d 207, 221, 344 N.Y.S.2d 863 (1973). 44. In the present case, plaintiff is alleging that the Defendants were negligent as they allowed debris to remain on the subject stairway thereby causing a hazardous condition despite adequate actual and constructive notice. While plaintiff claims that she complained of debris being present at the subject premises, there is in fact no written record of any such complaints being made. In fact, even her own superior William Burgos had no knowledge of any such complaints being made by plaintiff at any time prior to the incident occurring. Plaintiff used the subject stairway on several occasions while carrying out her patrols and never had any problems with accessing it at any time. See Plaintiff’s testimony at Exhibit E. Accordingly, plaintiff cannot establish prior actual notice of the alleged condition. 9 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 45. Significantly, there are also no facts that would support a finding that the Defendants acquired constructive notice prior to the subject incident. Denis Normile, the site supervisor testified that he performed two walkthroughs at different times every day throughout the site to ensure that there were no issues with the construction work that was being performed and also that there was no debris present that would cause a tripping hazard. See Exhibit G at page 24, lines 13-14. 46. As such, the Defendants have established prima facie, that they neither created nor had actual or constructive notice of the alleged defective condition on the stairway on which plaintiff fell thus warranting summary judgement in favor of the Defendants. If Mr. Normile observed any debris during his walkthrough, he would ensure that it was cleaned immediately. THE PLAINTIFF FAILS TO CITE TO A SPECIFIC, APPLICABLE VIOLATION OF THE INDUSTRIAL CODE THAT APPLIES TO THE FACTS OF THIS CASE OR PROXIMATELY CAUSED THE ALLEGED ACCIDENT 47. While Plaintiff in her recently served Supplemental Bill of Particulars does not allege violations Labor Law 240 and/or 241(6), she is in fact alleging that the Defendants violated several sections of the New York Industrial Code 23 (12 NYCRR 23) including §§ 23-1.5; 23-1.7 (a); 23-1.7 (b); 23-1.7 (c); 23-1.7 (d); 23-1.7 (e); 23-1.7 (f); 23-1.15; 23-1.16; 23-1.17; 23-1.21; 23- 1.22; 23-1.24; 23-2.6 and 23-4.1. 48. Significantly, all of the industrial codes as being alleged by plaintiff and detailed below in fact pertain to the protections afforded to workers engaged in construction, demolition and/or excavation. Plaintiff was never involved in any phase of the construction and/or demolition work that was performed at the subject premises. Plaintiff was employed as a security guard at the subject premises and her responsibilities included patrolling the subject premises to ensure that no unauthorized personnel gained access to the premises. 10 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 49. Further, a plaintiff must plead and prove that a specific violation of the Industrial Code was the proximate cause of his accident. See, Ross v. Curtis—Palmer Hydro-Electric Co., 81 N.Y.2d 494 (1993); Parisi v. Loewen Dev. of Wappinger Falls, LP, 5 A.D.3d 648 (2d Dep’t 2004); Misicki v Caradonna, 12 N.Y.3d 511, 515 (2009) (To support a claim under §241(6), a plaintiff must allege a violation of an applicable Industrial Code regulation which “mandate[s] compliance with concrete specifications and [does] not simply declare general safety standards or reiterate common- law principles”); Buckley v Columbia Grammar & Preparatory, 44 A.D.3d 263, 271 (1st Dept. 2007) (the alleged Industrial Code violation must be the proximate cause of the plaintiff’s injury. 50. The statutory protection does not extend, to employees performing routine maintenance tasks at a building that happens to be undergoing construction or renovation. See Agli v. Turner Constr. Co., 246 A.D.2d 16, 676 N.Y.S.2d 54), or duties as a night watchman or security guard. See Shields v. St. Marks Hous. Assocs., 230 A.D.2d 903 ( 2d Dep’t 1996). 51. A violation of the Industrial Code, however, does not establish negligence as a matter of law, but is “merely some evidence to be considered on the question of a defendant’s negligence.” See, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985). 52. Here, the plaintiff alleges that the defendants violated Industrial Code Regulation § 23-1.5. However, plaintiff has failed to specify which subsection if any of the Industrial Code are applicable to the facts of this case. Even if considered § 23-1.5- discusses “General Responsibility of Employers” which deals with health and safety protocol to be adopted during construction, excavation or demolition or excavations. This section is inapplicable as plaintiff was not performing construction, demolition or excavation work at the subject premises. More specifically, under subsection 23-1.5(a) “Health and Safety Protection” clearly states: All places where employees are suffered or permitted to perform work of any kind in construction, demolition or excavation 11 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 operations shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection for the lives, health and safety of such persons as well as of persons lawfully frequenting the area of such activity. This section is not applicable to the subject accident given that plaintiff had no involvement with any phase of the construction and/or demolition work 53. §23-1.7(a) discusses “Overhead hazards” that deals with protection from falling objects and completely unrelated to the subject accident. 54. §23-1.7(b) discusses “Falling hazards” that deals with hazardous openings protection into which a person may fall and completely unrelated to the subject accident. 55. §23-1.7(c) discusses “Drowning hazards” that deals with falling into water beneath the work location also completely unrelated to the subject accident. 56. §23-1.7(d) discusses “Slipping hazards” due to a slippery condition caused by ice, snow, water, grease and any other foreign substance. This subsection is completely unrelated to plaintiff’s incident. 57. §23-1.7(e)(1) discusses “Tripping and other hazards in Passageways” which is yet again unrelated to plaintiff’s accident as plaintiff was not using any kind of passageway when the accident took place. 58. §23-1.7(e)(2) discusses “Tripping and other hazards in Working Areas” which details accumulation of dirt and debris from scattered tools and materials and sharp projections, the details of which have no bearing on plaintiff’s accident. Plaintiff’s testimony is very clear that there was no construction work performed while on the night shift as the jobsite was closed. 59. §23-1.7(f) discusses “Vertical passage”. Stairways, ramps or runways that are required to be provided as a means of access working levels above or below ground. Again, this 12 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 subsection bears no relevance to the case at hand given that a well-maintained stairway with handrails was in fact provided and more importantly plaintiff was not required to access the basement to perform any construction related work. 60. §23-1.5- that discusses the requirement of a safety railings. Yet again this section deals with providing safety railings at various areas of the construction site. Ithas already been established through the testimony of Mr. Dennis Normile that the subject stairway had the required hand rails on either side. This is depicted in the previously exchanged image marked as Exhibit L. 61. §23-1.16- that discusses the requirement of a safety belts, harnesses, tail lines and life lines also inapplicable to the subject incident given that plaintiff performed absolutely no construction work at this jobsite. 62. §23-1.17- that discusses the requirement of a life nets. This section is not applicable given that plaintiff was not involved in demolition or construction work at the subject jobsite. 63. Plaintiff goes on to allege violation of §23-1.21. While inapplicable to the case at bar, plaintiff has failed to specify which subsection if any of the Industrial Code are applicable to the facts of this case and should be thereby be dismissed. 64. §23-1.22- that discusses structural runways, ramps and platforms. While inapplicable to the case at bar, plaintiff has failed to specify which subsection if any of the Industrial Code are applicable to the facts of this case and should be thereby be dismissed. 65. §23-1.24- discusses work on roofs which is yet again unrelated to plaintiff’s accident given that plaintiff did not perform any construction work. 66. §23-2.6- discusses requirement of catch platforms while performing exterior masonry work. This is unrelated to plaintiff’s accident given that plaintiff did not perform any construction work whatsoever. 13 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 67. §23-4.1- discusses general requirements as to stability of structures when excavation is to be performed. Yet again, this section is unrelated to plaintiffs’ accident given that plaintiff was not involved in construction, demolition and/or excavation work at the subject jobsite. 68. Thereby, plaintiff’s allegations as to violation of the Industrial Codes as detailed above should be disregarded in its entirety. DEFENDANTS ARE ENTITLED TO CONTRACTUAL INDEMNIFICATION FROM A& M PROFESSIONAL SECURITY CONSULTING CORP. 69. A party's right to contractual indemnification depends upon the specific language of the relevant contract. See Staron v. Decker Assocs. 130 A.D.3d 854, 855 (2d Dept. 2015); Campisini v. Gambar Food Corp., 130 A.D.3d 854, 855 (2d Dept. 2015; Desena v. North Shore Hebrew Academy, 119 A.D.3d 631, 636 (2d Dept. 2014). 70. It is well established that "[a] party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances." See Drzewinski v. Atlantic Scaffold & Lad Life Ins. Co., 32 N.Y.2d. 149 (1973). 71. Defendants maintain that they bear no liability for the incident as the subject stairway that was always maintained in good condition with appropriate lighting. The testimony from Dennis Normalie makes it amply clear that the subject stairway was clean and debris free on the morning of the accident. A&M is contractually obligated to indemnify Rock Group from all claims related to the work they performed at the subject premises. A copy of the agreement is attached hereto as Exhibit “M.” 72. During his deposition, William Burgos authenticated the Security Services Agreement between Artimus Construction Inc., and A&M Professional Security Corporation. See 14 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 Exhibit M above. The indemnification requirement of the agreement provides as follows: “To the fullest extent permitted by law, the Subcontractor shall indemnify, defend, protect and hold harmless the following: 94th Jamaica LLC, Artimus Construction Inc., Artimus Associates LLC; HP Jamaica 94th Avenue Housing Development Fund Co. Inc.; Phoenix Realty Group LLC, and PRG Management Co. LLC and the Architect (excluding with respect to the Architect, claims arising out of (i) the preparation or approval maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (ii) the giving of or failure to give directions or instructions by the Architect, its agents or employees, provided such giving or failure to give is the primary cause of the injury or damage), their respective partners, officers, directors, shareholders, representatives, agents, employees, and anyone else acting for or on be behalf of any of them (herein individually called “Indemnitee” and collectively called “Indemnitees”) from and against all liabilities, damages, losses, claims, demands, lawsuits, proceedings, arbitrations, and actions of any nature whatsoever ( “Claims”) unless caused by the sole negligence of the Indemnitee, which arise out of or are connected with, or are claimed to arise out of or be connected with: 1. The performance of Subcontractor’s Work or any act or omission of the Subcontractor, its Subcontractors, Sub-Subcontractors, suppliers, materialmen or anyone directly or indirectly employed by any of them or anyone for whose acts they may be liable; 2. Any accident or occurrence which happens, or is alleged to have happened, in or about the place where Subcontractor’s Work is being performed either directly or indirectly through a Subcontractor, Sub-Subcontractor, supply or material agreement, or while any of the Subcontractor’s property, equipment or personnel are in or about such place or vicinity thereof by reason of or as a result of the performance of the Work; or 3. The use, misuse, erection, maintenance, operation or failure of any machinery or equipment (including, but no limited to, scaffolds, derricks, ladders, hoists, rigging, support, etc.) whether or not such machinery or equipment was furnished, rented, or loaned by the Owner or their officers, employees, agents, servants or other, to the Subcontractor. 73. As has been detailed above, A&M is contractually obligated to indemnify Defendants for its work at this jobsite. CONCLUSION 74. For the foregoing reasons, it is respectfully submitted that this motion should be granted in its entirety because the Defendants neither created nor had actual or constructive notice of the debris condition on the stairway where plaintiff allegedly fell. Additionally, none of the New 15 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 York Industrial Code 23 (12 NYCRR 23) as alleged by the plaintiff have any bearing on the case at hand. Thereby, the Court should issue an Order, pursuant to CPLR § 3212, (1) granting summary judgment to Defendants/Third-Party Plaintiffs 94th Avenue Jamaica, LLC, Artimus Construction Inc., HP Jamaica 94th Avenue Housing Development Fund Company, Inc. and 94th Avenue Jamaica LI LLC and dismissing plaintiff's Complaint; and (2) Pursuant to CPLR §3212, granting summary judgment in favor of Defendants/Third-Party Plaintiffs on its Third- Party Summons and Complaint against A&M Professional Security Consulting Corp., and for such other and further relief this Court deems just and proper. WHEREFORE, itis respectfully requested that the Court grant Defendants/Third-Party Plaintiffs 94th Avenue Jamaica, LLC, Artimus Construction Inc., HP Jamaica 94th Avenue Housing Development Fund Company, Inc. and 94th Avenue Jamaica LI LLC’s motion for summary judgment in its entirety dismissing Plaintiff’s complaint and all counterclaims; and for any and other further relief as this Court deems just and proper. Dated: New York, New York October 1, 2022 _________________________________ ANCILLA H. DIAS-PINTO 16 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 CERTIFICATION OF COUNSEL REGARDING WORD COUNT PURSUANT TO UNIFORM RULE 202.8-b For execution above, Ancilla H. Dias-Pinto, an Attorney duly licensed to practice law before the Courts of the State of New York, does hereby certify pursuant to Uniform Rule 202.8-b, that this Affirmation complies with the word count limit of 7,000 words set forth therein. The total number of words in this Affirmation, exclusive of any captions, tables of contents, tables of authorities and signature blocks is 4,635 words. The undersigned relies on the word count function of Microsoft Word in making this determination. Dated: New York, New York October 1, 2022 ______________________________ Ancilla H. Dias-Pinto 17 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 18 of 19 FILED: KINGS COUNTY CLERK 10/01/2022 02:55 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 10/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS INDEX NO.: 521818/2018 ------------------------------------------------------------------ JULIE AYALA, Plaintiff,