Preview
INDEX NO. 512446/2018
NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 02/28/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS: PART 17
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RONY ANDRADE and ALBA VANEGAS,
Index No.: 512446/2018
Plaintiffs, Motion Seq. Nos.: 07, 08, 09,
10
& 11
-against-
THE PORT AUTHORITY OF NEW YORK AND DECISION AND ORDER
NEW JERSEY, SKANSKA KOCH, INC., KIEWIT
INFRASTRUCTURE CO., and SKANSKA KOCH/KIEWIT,
Joint Venture,
Defendants.
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THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY, SKANSKA KOCH, INC., KIEWIT
INFRASTRUCTURE CO., and SKANSKA KOCH/KIEWIT,
Joint Venture,
Third-Party Plaintiffs,
-against-
ATLANTIC COAST DISMANTLING, LLC,
ENVIRONMENTAL AND INFRASTRUCTURE GROUP,
LLC, ATLANTIC COAST DISMANTLING
ENVIRONMENTAL AND INFRASTRUCTURE GROUP
JV, and AMS SAFETY LLC,
Third-Party Defendants.
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ATLANTIC COAST DISMANTLING, LLC,
ENVIRONMENTAL AND INFRASTRUCTURE GROUP,
LLC, ATLANTIC COAST DISMANTLING
ENVIRONMENTAL AND INFRASTRUCTURE GROUP
JV, and AMS SAFETY LLC,
Second Third-Party Plaintiffs,
-against-
CATERPILLAR, INC.,
Second Third-Party Defendant
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The following e-filed documents, listed by NY SCEF document number (Motion 07) 121-140,
175-191, 193; (Motion 08) 159-174, 194, 263-276; (Motion 09) 195-215, 294-317, 320-328;
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(Motion 10) 279-293, 331, 332; and (Motion 11) 249-262, 278, and 330 were read on these
motions for summary judgment.
The plaintiffs move for partial summary judgment (Motion 07) on liability based on
Labor Law §§ §240(1) and 241(6). The defendants, The Port Authority of New Y ork and New
Jersey (hereinafter PA), Skanska Koch, Inc. (hereinafter Skanska), Kiewit Infrastructure Co.
(hereinafter Kiewit) and Skanska K och/Kiewit, Joint V enture (hereinafter SKK), cross-move for
summary judgment (Motion 08) based on plaintiffs’ Labor Law §§ 200, 240(1) and 241(6)
claims, and seek summary judgment against third-party defendants A tlantic Coast Dismantling,
LLC (hereinafter ACD), Environmental and Infrastructure Group, LLC (hereinafter EIG) and
Atlantic Coast Dismantling Environmental and Infrastructure Group JV (hereinafter ACD/EIG)
for common-law indemnification and contribution, or alternatively, for a conditional judgment
for common-law indemnification and contribution, and for an order that ACD, EIG and
ACD/EIG are obligated to defend the direct defendants and for reimbursement of attorneys’ fees,
or alternatively, for a conditional judgment for defense costs and reimbursement of attorneys’
fees, and for dismissal of the cross-claims of second third-party defendant Caterpillar Inc.
(hereinafter Caterpillar) for common-law indemnification and contribution. Caterpillar moves
for summary judgment (Motion 09) and dismissal of ACD, EIG and ACD/EIG’s second third-
party complaint and all cross-claims, and ACD, EIG and ACD/EIG cross-moves for summary
judgment (Motion 10) on their negligent design and strict liability claims against Caterpillar, and
seek partial summary judgment (Motion 11) on the plaintiffs’ Labor Law § 240(1) claims. After
oral argument and upon careful consideration of the parties’ submissions, the motions are
decided as set forth below.
This action arises from an accident which occurred on November 28, 2017, while the
plaintiff was working on the Bayonne Bridge demolition project when his left leg was crushed
between a jersey barrier and the parapet wall of the bridge, necessitating a below-the-knee
amputation of the leg. The PA is the owner of the Bayonne Bridge, and SKK was retained by
PA as the general contractor. PA subcontracted with EIG, the plaintiffs employer, to conduct
demolition and excavation work. EIG then formed a joint venture with ACD.
According to the plaintiff’s testimony, at the time of the accident he was working with
another EIG employee, Jao Rodriguez, as well as John Wade, the operator of the Caterpillar
excavator. The scope of the work involved demolition of the bridge, and the plaintiffs role was
a signal person to the excavator operator. Michael Cadugan, the superintendent for ACD/EIG,
supervised the plaintiff’s work.
According to the plaintiff's testimony, at the time of the accident Wade was operating
the excavator to cut iron from the sidewalk of the bridge, and the plaintiff was acting as a signal
person, using hand signals to communicate with Wade. Just prior to the accident the plaintiff
signaled to Wade to stop the machine so he could move to a different position. The plaintiff was
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standing approximately four to five feet in front of the cab of the excavator and to the right, in
between the barrier and the parapet wall, where he could visually signal to Wade. Wade stopped
cutting and then moved the excavator in reverse. As the track of the excavator moved off the
barrier it moved up and tipped back toward the plaintiff, trapping his leg between the barrier and
the parapet wall. The plaintiff testified that he worked with Wade for approximately four months
prior to the accident and had never experienced any problems communicating with him while
assisting as a signal person. Wade had never instructed the plaintiff where to stand when acting
as a signal person, and he had never been asked to move to a different location because Wade
was unable to see him while operating the excavator.
The plaintiff testified that the excavator operator is trained not to move the machine
unless the signal person is in his line of vision. He further testified that he was never given
instructions as to where he should stand to perform his work, and that there was no designated
distance from the excavator that he was expected to be standing when assisting the operator.
However, as a signal person, he was trained to always stand somewhere visible to the operator.
The plaintiff also testified that “there is no blind spot between the operator and the signal man,”
and that in any event, he was never given instructions by his supervisor, Cadugan, that he should
not stand in the excavator’s blind spot.
Cadugan testified that he was unaware that the plaintiff was “signaling or spotting” for
Wade, and that the plaintiff's role was “to make sure John [Wade] did not back into anything or
let anybody else walk into the work area.” He further testified that he never had a conversation
with the plaintiff instructing him not to stand where he was prior to the accident. Cadugan
testified that the plaintiff received instructions at a toolbox meeting in the momings about crush
points and about not getting close to an excavator. He stated that operators of excavation
machines were instructed and trained not to move the machine if someone is within the swing
radius or pinch pint or near a crush hazard. Cadugan testified that other than the tool box
meetings which likely occurred months prior to the accident, no formal training was provided to
the plaintiff on spotting or signaling. He also testified that the barriers were originally secured to
the roadbed with steel pins, but the pins were removed by EIG and never replaced after the
barriers were moved.
According to the deposition testimony of Wade, he worked with the plaintiff for two
months prior to the accident. He described the plaintiff as a general laborer, who helped “core
drill the deck, saw cut, move stuff around as we needed it.” He testified that during the
demolition phase, which included using a hydraulic hammer to remove the concrete and cut the
rebar, the plaintiff used hand signals to direct Wade where to chop and cut, when to stop, and to
indicate whether debris was hanging or hitting the safety net below. Generally, no instructions
were given to the plaintiff as to where he should stand in relation to the excavator, and Wade
never instructed the plaintiff not to stand on the right side of the excavator. During the time that
he was using the excavator for “snipping and dropping the parapet” he was able to see the
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plaintiff, however from the time that he stopped cutting to when he backed up the excavator and
struck the barrier, a three-to-four-minute period, he did not see him. Wade testified that he
believed that a part of the excavator track slipped undemeath the barrier, and when he backed up,
the barrier tipped over. He testified that although he saw the plaintiff standing behind the barrier,
which was approximately two feet from the excavator track just prior to the accident, he never
instructed him to relocate to another position. He was unaware that the accident had occurred
until he saw the expression on the face of the plaintiffs co-worker, Jao Rodriguez, which caused
Wade to stop and exit the excavator, at which time he observed the plaintiff bleeding heavily.
Wade could not recall if Cadugan ever instructed the plaintiff not to stand on the right side of the
excavator or whether he told the plaintiff to move to the left side of it.
Wade also testified that he was responsible for deciding where to place the barrier during
the course of the workday. Wade placed the barrier at its location prior to the plaintiff’s arrival
at the worksite that morning. The barrier stood four feet high and was generally secured to the
roadway with pins to prevent movement and to keep it from tipping over. Wade was aware that
the barrier was not secured to the bridge deck at the time of the accident.
Ronald Knott, the Environmental Health & Safety area manager for Skanska USA Civil
Northeast, confirmed at his deposition that no communication protocol, either hand and/or verbal
signals or radio communication had been established between the plaintiff and Wade, and that it
was an important safety issue to prevent the machine from coming into contact with workers or
adjacent structures. He also testified that based on the position of the boom and dipper on the
excavator the operator had clear sight of the signal person, and that the initial belief that the
plaintiff was in a blind spot was inaccurate. Based on his observations at the scene after the
accident, Knott believed that the track of the excavator came into contact with the barrier causing
it to tip and fall onto the plaintiff.
According to the deposition testimony of Leonard Iacoviello, who was employed by PA
as a Resident Engineer, a barrier was used to either regulate traffic or protect the leading edge,
and could be secured to the roadway with a pin to prevent it from sliding or tipping over. He did
not witness the accident, however he acknowledged that when the accident occurred the pins
were not installed to secure the barrier, and that installation of the pins was relatively easy and
could be done in 15 to 20 minutes. Iacoviello testified that the barrier weighed two to two-and-a-
half tons and was about two feet wide at its base. Based on photographs and his personal
observations of the scene after the accident, he estimated that the barrier fell two to three feet
after it was tipped. Viewing video stills depicting just before and at the time of the accident,
Iacoviello opined that there were no glaring issues with respect to the manner in which the work
was being done or where the plaintiff was standing, although he opined that the area was “a little
tight.” He noted that it would have been difficult for the operator to have seen the plaintiff
across the boom if he were standing on the left side rather than the right side of the excavator
where the work was being performed.
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Brad Minkovitz, the Project Manager who was employed by ACD/EIG, testified that the
plaintiff was not a signal person or spotter, and that there was no need for one because “the
operator knew what he needed to do.” Minkovitz, who did not witness the accident, testified that
he would not have allowed a worker to stand in the position where the plaintiff was located just
prior to the accident because it was “a bad spot for him to be as far as visual communication with
the operator.” Minkovitz testified that the plaintiff was a laborer who assisted Rodriguez with
the water hose for dust control, and that when not needed the plaintiff was standing out of the
way and was expected to stand by in the event that his co-worker needed assistance. Minkovitz
testified that he never instructed the plaintiff not to stand on the right side of the excavator while
it was in operation, and he claimed that Cadugan informed him that he instructed the plaintiff not
to stand in that area, but Cadugan did not know when the conversation had occurred. He
acknowledged that his report did not mention that the plaintiff was standing in an unsafe area at
the time of the accident.
Labor Law Motions — ions 07, 08 and 11)
The plaintiffs argue that they are entitled to summary judgment (Motion 07) pursuant to
Labor Law § 240(1), based on the defendants’ failure to pin the two-ton barrier to prevent it from
falling or tipping onto the plaintiff. Plaintiffs argue that unrefuted witness testimony establishes
that the barrier was not secured to the roadway with pins, which would have prevented the
barrier from moving or tipping, and is sufficient to establish a prima facie Labor Law §240(1)
violation.
In support of the motion, the plaintiffs submit the pleadings, the deposition transcripts of
the plaintiff, Iacoviello, Knott, Minkovitz, Cadugan, and Wade, and a number of reports that
were generated after the accident. These reports include a partially redacted Skanska Incident
Report prepared by Ron Knott; the Skanska interview of John Wade by Knott and two other
Skanska employees, from which a written report was made; a PA police report dated November
28, 2017 based on an interview with John Wade; a Workers’ Compensation First Report of
Injury; and the OSHA Investigation Report. The plaintiffs also submit numerous photographs
depicting the plaintiffs accident before and after it occurred; the PA-Skanska Kiewit contract;
and the Skanska-ACD/EIG subcontract; and the note of issue.
The plaintiffs contend that the “same-level” rule is inapplicable to the instant case, and
that Labor Law § 240(1) was designed to prevent the types of accidents in which the protective
device was inadequate to shield the worker from a falling object, even in circumstances where it
falls only a short distance. The plaintiffs also seek summary judgment based on Labor Law §
241(6), which is predicated on a violation of the Industrial Code 12 NY CRR § 23-4.2(k), which
states that “[p]ersons shall not be suffered or permitted to work in any area where they may be
struck or endangered by any excavation equipment or by any material being dislodged by or
falling from such equipment.” They contend that the statute was violated based on the
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undisputed witness testimony that the plaintiffs injuries occurred when the excavator struck the
unsecured barrier that tipped over and fell on his leg.
In opposition, defendants PA, Skanska, Kiewit and SKK, argue that the barrier was in
good working order and served its intended safety purpose as a temporary, free-standing concrete
construction barrier used “as a delineation for a fall hazard.” They further argue that expert
evidence refutes the plaintiffs’ allegation that the barrier should have been pinned because it
would have been impracticable and infeasible to pin and unpin the barrier every time it was
moved. Defendants contend that a pinned barrier usually results in damage to the bridge deck
and would compromise the structural integrity of the work area, leading to unsafe working
conditions.
In support of their arguments, the defendants, PA, Skanska, Kiewit and SKK, submit the
unswom report of LPI, Inc., Consulting Engineers, dated September 21, 2020, which concludes,
inter alia, that a barrier such as the one in the instant case, that is used in a free-standing
configuration “to provide a conspicuous means of demarcating the road deck trailing edge,” is
not required to have holes cast within its base. They further contend that the plaintiff’s actions in
standing in the excavator’s blind spot on the right side of the machine where the operator could
not see him was the sole proximate cause of his injury, and that he was aware of the tipping
hazard of the barrier when struck by an excavator. They maintain that there are no safety devices
that were necessary or expected to be utilized to keep the barrier from tipping over and falling.
Additionally, the defendants oppose the plaintiffs’ Labor Law § 241(6) claim, arguing
that the evidence shows that the plaintiff's actions were the sole proximate cause of the accident,
and not any alleged Industrial Code violation, and that 12 NY CRR § 23-4.2(k) is not sufficiently
specific, and inapplicable to the facts of this case.
The defendants, PA, Skanska, Kiewit and SKK cross-move for summary judgment
(Motion 08) based on plaintiffs’ claims under Labor Law §§ 200, 240(1) and 241(6). Further,
they seek summary judgment against third-party defendants ACD, EIG, ACD/EIG and AMS
Safety LLC for common law indemnification and contribution; or a conditional judgment for
common-law indemnification and contribution; and for an order that third-party defendants are
obligated to defend them and for reimbursement of attorneys’ fees, or alternatively for
conditional judgment for defense costs and reimbursement of attorneys’ fees. PA, Skanska,
Kiewit and SKK also seek dismissal of Caterpillar’s cross-claims for common-law
indemnification and contribution.
In their opposition papers the plaintiffs concede that the facts of this case do not support a
cognizable Labor Law § 200 or common law negligence claim. At oral argument, plaintiffs’
counsel withdrew those claims.
In support of their motion for dismissal of the plaintiffs’ Labor Law § 240(1) claim, the
defendants PA, Skanska, Kiewit and SKK repeat the arguments asserted in their opposition to the
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plaintiffs’ motion, i.e. that the plaintiff was the sole proximate cause of his injuries because he
placed himself in a pinch point position between the barrier and the bridge parapet wall, and in
the excavator operator’s blind spot while the operator was in the process of demolishing a
portion of the bridge deck. The defendants also contend that the barrier served its intended
safety purpose; the barrier was in good working order at the time of the accident; and that expert
evidence contained in the unsworn LPI report purportedly shows that it would be impracticable
and infeasible to pin and unpin the barrier every time it was moved, and would result in damage
to the bridge deck. As to that prong of their motion seeking dismissal of the plaintiffs’ Labor
Law § 241(6) claim, they assert the same arguments as presented in their opposition papers, i.e.,
that 12 NY CRR § 23-4.2(k) is too general and inapplicable to the facts of this case.
Defendants PA, Skanska, Kiewit and SKK contend that they are entitled to common-law
indemnification and contribution from third-party defendants ACD, EIG and ACD/EIG because
they have demonstrated their freedom from fault. They further argue that in cases involving a
grave injury, under implied indemnity principles one held vicariously liable solely on account of
the negligence of another is permitted to shift the entire burden of the loss to an actual
wrongdoer. They maintain that at most, they are exposed to statutory liability based upon the
actions of ACD/EIG, who exclusively controlled, directed, and supervised the plaintiff's work
and its equipment operators. In the alternative, the defendants seek a conditional order of
implied indemnity pending determination of the primary action. The defendants argue that
second third-party defendant Caterpillar’s cross claims for indemnity and contribution should be
dismissed because the defendants were not actively negligent, and because any liability would be
purely vicarious.
ACD, EIG and ACD/EIG oppose that prong of the defendants’ motion seeking common-
law indemnification and contribution arguing that there are issues of fact as to the defendants’
negligence in the happening of the accident. They argue that in the event that the Court denies
the defendants’ motion for summary judgment on the plaintiffs’ Labor Law claims there is an
issue of fact as to the negligence of PA Skanska, Kiewit and SKK in failing to secure the barrier
with metal pins. ACD, EIG and ACD/EIG maintain that defendant PA knew that the barrier
involved in the plaintiff's accident was being used to protect the “leading edge” of the bridge and
was not secured to the roadway with the metal pins, and the PA officials conducted three
walkthroughs each week of the plaintiff’s work area. ACD, EIG and ACD/EIG also assert that
they are not obligated to defend Caterpillar in this action, as such a claim has no basis in law,
was not pled in the third-party complaint, and no arguments in support of this contention were
included in the moving papers.
Third-party defendants ACD, EIG and ACD/EIG cross-move and seek dismissal of the
plaintiffs’ § 240(1) Labor Law claims (Motion 11), arguing that the injury was not caused by an
elevation-related risk because the barrier was not a falling object, as it was situated on the
roadway. The defendants rely on an Appellate Division, Third Department case, Oakes v Wal-
Mart Real Estate Bus. Trust., 99 AD3d 31 (3d Dept 2012), to support their argument that the
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statute was not violated because the barrier was situated at the same level as the plaintiff when it
tipped over.
ACD, EIG and ACD/EIG, also assert that Labor Law § 240(1) does not apply because the
barrier was not an object being hoisted or moved as part of the work that the plaintiff was doing
at the time of the accident. The defendants contend that the safety devices, the metal pins used to
secure the barrier to the roadway, are not similar to the safety devices enumerated in the statute.
The plaintiffs oppose the motion, arguing that the third-party defendants’ reliance on
Oakes is misplaced. They contend that this Court is required to follow binding precedent from
the Appellate Division, Second Department, which holds that a height differential may not be
considered de minimis, in light of a falling object’s weight and the force it is able to generate
over its short descent. The plaintiffs cite to well-settled A ppellate Division, Second Department
case law involving falling objects from the same level or slightly higher in which the height
differential was not considered to be de minimis, including McCallister v 200 Park, L.P., 92
AD3d 927 (2d Dept 2012); Gutman v City of New York, 78 AD3d 886 (2d Dept 2010) and
Kandatyan v 400 Fifth Realty, LLC, 155 AD3d 848 (2d Dept 2017). The plaintiffs also contend
that undisputed deposition testimony establishes that the barrier was an object that should have
and could have been secured to the roadway with pins to prevent it from tipping and falling onto
the plaintiff. According to the plaintiffs, the LPI Report is inadmissible, as it is unsworn, and
should not be considered by the Court.
Summary judgment is a drastic remedy and may be granted only when it is clear that no
triable issue of fact exists. Alvarez v Prospect Hosp., 68 NY 2d 320 (1986). The moving party is
required to make a prima facie showing of entitlement to judgment as a matter of law, and
evidence must be tendered in admissible form to demonstrate the absence of any material issues
of fact. Alvarez v Prospect Hosp., 68 NY 2d at 324; see also Zuckerman v City of New York, 49
NY 2d 557 (1980). The papers submitted in the context of the summary judgment application are
always viewed in the light most favorable to the party opposing the motion. Marine Midland
Bankv Dino & Artie’s Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). If the prima
facie burden has been met, the burden then shifts to the opposing party to present sufficient
evidence to establish the existence of material issues of fact requiring a trial. CPLR § 3212(b);
see also Alvarez v Prospect Hosp., 68 NY 2d at 324; Zuckerman v City of New York, 49 NY 2d at
562.
In the context of summary judgment motions based on Labor Law, the Court of Appeals
has repeatedly held that Labor Law § 240(1) must be construed liberally. See Rocovich v
Consolidated Edison Co., 78 NY 2d 509 (1991); Ross v Curtis-Palmer Hydro-Elec. Co., 81
NY 2d 494 (1993). In order to impose absolute liability under Labor Law § 240(1) the plaintiff
must show that the owner or general contractor’s failure to provide proper protection to workers
employed on a construction site proximately caused injury to a worker. See Wilinski v 334 E.
92" Hous. Dev. Fund Corp., 18 NY3d 1 (2011). “Whether a plaintiff is entitled to recovery
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under the statute requires a determination of whether the injury is the type of elevation-related
risk to which the statute applies.” Id. at 3. Significantly, the single decisive question in
determining whether Labor Law § 240(1) applies is “whether plaintiff's injuries were the direct
consequence of a failure to provide protection against a risk arising from a physically significant
elevation differential.” Runner v New York Stock Exch., Inc., 13 NY 3d 599, 603 (2009); see also
Wilinski, 18 NY 3d at 6.
Labor Law § 240(1) applies to both “falling worker” and “falling object” cases. See
Wilinski, 18 NY 3d at 8. Liability under the statute for falling objects is not limited to cases in
which the falling object is in the process of being hoisted or secured. See Escobar v Safi, 150
AD3d 1081, 1083 (2d Dept 2017) (where unsecured sheet of plywood fell from roof 20 feet high
and struck plaintiff, falling object liability was established under Labor Law § 240(1) where the
plaintiff demonstrated that the falling object “required securing for the purposes of the
undertaking”); Andresky v Wenger Constr. Co., Inc., 95 AD3d 1247 (2d Dept 2012) (finding
liability under Labor Law § 240(1) even though the falling object did not strike the worker
because the object required securing for the purposes of the undertaking); Outar v City of New
York, 286 AD2d 671 (2d Dept 2001), affd 5 NY 3d 731 (2005) (falling object liability established
where the plaintiff was injured when an unsecured dolly fell on him from a bench wall 5% feet
above him as he was lifting pieces of track).
Further, a short elevation differential between a worker and a falling object is not
considered de minimis if the weight of the object and the force it is capable of generating on its
descent is significant. See Wilinski, 18 NY 3d at 6. In Wilinski, the Court of Appeals articulated
that its “jurisprudence defining the category of injuries that warrant the special protection of
Labor Law § 240(1) has evolved over the last two decades,” and enunciated the core premise that
“a defendant’s failure to provide workers with adequate protection from reasonably preventable,
gravity-related accidents will result in liability.” Id. at 4. Wilinski involved an injury that
occurred as a result of the fall of two unsecured metal vertical pipes which were 10 feet tall and
were located on the same level as the plaintiff. The pipes fell four feet and landed on the
plaintiff, who was five feet eight inches tall, striking him on his head, shoulder and arm. The
Appellate Division, First Department, partially granted the defendants’ summary judgment
motion, dismissing the plaintiff's Labor Law § 240(1) claim, finding that since both the pipes
and the plaintiff were at the same level at the time of the collapse the elevation differential was
not sufficient to impose liability. The Court of Appeals rejected the reasoning of the A ppellate
Division in Wilinski, as well as other intermediate appellate courts that had previously found that
no liability can attach where the plaintiff and the base of the falling object stood on the same
level. The Court concluded that the height differential between the unsecured pipes was not de
minimis given the amount of force the pipes were able to generate as they fell.
In soundly rejecting the same-level rule, the Court adopted the reasoning set forth in
Runner v New York Stock Exch., Inc., 13 NY 3d 599. Runner involved a novel set of
circumstances that did not involve a falling worker or a falling object. The plaintiff was injured
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while moving an 800-pound reel of wire down a flight of four stairs using a 10-foot length of
rope wrapped around a metal bar. As the reel descended, the plaintiff was pulled into the metal
bar, injuring his hands as they jammed against it. The Court of Appeals held that “the relevant
inquiry ... is whether the harm flows directly from the application of the force of gravity to the
object.” Id. at 604. The Court found that the “elevation differential... [could not] be viewed as
de minimis, particularly given the weight of the object and the amount of force it was capable of
generating, even over the course of a relatively short descent.” Id. at 605.
Tuming to the instant matter, the plaintiffs have demonstrated their prima facie
entitlement to summary judgment on their Labor Law § 240(1) claim. The plaintiffs have
established that the plaintiff is a worker covered under the Labor Law statute. The defendant,
PA, was the owner of the Bayonne Bridge, and Skanska was the general contractor of the
project. According to the testimony of Wade and Iacoviello, the barrier weighed approximately
two tons and stood four feet high, falling two to three feet onto the plaintiff's leg after it tipped.
There is ample evidence on this record that the barriers used were routinely secured to the
roadway with metal pins to ensure that they would not tip over and injure a worker on the
construction site, and that the barrier that struck the plaintiff had not been pinned before the
demolition work began. Clearly, this was a risk that was well-known in the construction
industry, as evidenced by the deposition testimony of the plaintiff and the defendants’ witnesses.
In opposition, the defendants have failed to raise a triable issue of fact that the plaintiffs’
claim is not covered by § 240(1) of the statute. The LPI Report, relied upon heavily by
defendants PA, Skanska, Kiewit and SKK in opposing the plaintiffs’ motion and in support of
their summary judgment motion, is unsworn and constitutes inadmissible hearsay. See Utica
First Ins. Co. v Gristmill Earth Realty Corp., 145 AD3d 1059 (2d Dept 2016); Guanopatin v
Flushing Acquisition Holdings, LLC, 127 AD3d 812 (2d Dept 2015); 1212 Ocean Ave. Hous.
Dev. Corp. v Brunatti, 50 AD3d 1110 (2d Dept 2008).
Further, this Court declines to adopt the holding in Oakes, as urged by ACD, EIG and
ACD/EIG. As the plaintiffs point out, the Court is required to follow precedent from the
Appellate Division, Second Department and the New Y ork Court of Appeals. See Mountain
View Coach Lines v Storms, 102 AD2d 663 (2d Dept 1984). Moreover, the facts in Oakes are
clearly distinguishable from those presented here. The Appellate Division, Second Department,
has repeatedly found liability under Labor Law § 240(1) in circumstances where either the
plaintiff and the falling object were on the same level or the object traveled only a short distance
before striking the worker. See McCallister v 200 Park, L.P., 92 AD3d at 928-929 (“although
the base of the scaffold was at the same level as the plaintiff and the scaffold only fell a short
distance, given the combined weight of the device and its load, and the force it was able to
generate over its descent, this difference was not de minimis”); Pritchard v Tully Constr. Co.,
Inc., 82 AD3d 730 (2d Dept 2011) (finding liability under Labor Law § 240(1) when an
unsecured motor weighing 300 to 350 pounds fell two to three feet onto the plaintiff who was
standing beneath it); Gutman v City of New York, 78 AD3d at 887 (the rail that fell on the
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plaintiff traveled only 12 to 16 inches before striking him, however the elevation differential was
not de minimis given the weight of the object and the amount of force it was capable of
generating “even over the course of a relatively short descent”). The Court of Appeals has
rejected the same-level rule in cases involving facts similar to those presented here, as
demonstrated in Runner and Wilinski, and the defendants have failed to show that those cases are
not controlling in the case at bar.
Additionally, the argument of third-party defendants ACD, EIG and ACD/EIG, that
liability under Labor Law § 240(1) based on falling objects is limited to cases in which the object
is in the process of being hoisted or secured is without merit. See Escobar v Safi, 150 AD3d at
1083 (falling object liability was established under Labor Law § 240(1) where the plaintiff
demonstrated that the falling object “required securing for the purposes of the undertaking”
where unsecured sheet of plywood fell from roof 20 feet high and struck plaintiff); Andresky v
Wenger Constr. Co., Inc., 95 AD3d 1247 (finding liability under Labor Law § 240(1) even
though the falling object did not strike the worker because the object required securing for the
purposes of the undertaking).
Likewise, the contentions of defendants PA, Skanska, Kiewit and SKK, that the plaintiff
was the sole proximate cause of the accident is unavailing. Their assertion that the plaintiff
improperly placed himself in the operator’s blind spot and in a pinch point position between the
barrier and the bridge parapet wall at best rises to the level of comparative negligence, which is
not a defense to a claim under Labor Law § 240(1). See Garzon v Viola, 124 AD3d 715 (2d
Dept 2015); see also Smith v Yonkers Contr. Co., 238 AD2d 501 (2d Dept 1997). Once it has
been established that the defendants’ failure to provide proper protection was causally related to
the accident, in this case the failure to secure the barrier to the roadway, a plaintiff has
demonstrated prima facie entitlement to judgment as a matter of law. See Roblero v Bais Ruchel
High Sch., Inc., 175 AD3d 1446 (2d Dept 2019). Based on the facts presented here, and
prevailing Appellate Division, Second Department and Court of A ppeals case law, the plaintiffs
are entitled to summary judgment on their Labor Law § 240(1) claim.
Those prongs of the motion of PA, Skanska, Kiewit and SKK seeking common-law
indemnification and contribution against ACD, EIG and ACD/EIG, and dismissal of
Caterpillar’s cross-claims for common-law indemnification and contribution are denied. The
Court of Appeals has held that “a party cannot obtain common-law indemnification unless it has
been held to be vicariously liable without proof of any negligence or actual supervision on its
own part.” See McCarthy v Turner Const., Inc., 17 NY 3d 369, 377-378 (2011). In McCarthy,
the Court found that an obligation to indemnify may only be imposed on “parties who were
actively at fault in bringing about the injury.” Id at 377. In opposition, third-party defendants
and Caterpillar have raised triable issues of fact as to whether defendants PA, Skanska, Kiewit
and SKK were actively at fault in bringing about the injury. Specifically, PA, Skanska, Kiewit
and SKK had general supervisory authority with respect to site safety, and should have ensured
that the concrete barrier at issue was pinned, based on the close proximity of the workers to the
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barrier and the active excavator. See Roblero v Bais Ruchel High Sch., Inc., 175 AD3d 1446
(upholding the trial court’s denial of summary judgment to the owner defendant on its common-
law contribution and indemnification claims because the owner failed to show there were no
triable issues of fact regarding its negligence); Mendelsohn v Goodman, 67 AD3d 753, 754 (2d
Dept 2009) (“an award of summary judgment on a claim for common-law indemnification is
appropriate only where there are no triable issues of fact conceming the degree of fault
attributable to the parties”); see also Tarpey v Kolanu Partners, LLC, 68 AD3d 1099 (2d Dept
2009). That branch of the motion seeking a conditional order of implied indemnity is also
denied as premature. See Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807 (2d Dept
2009).
The plaintiff also seeks summary judgment based on Labor Law § 241(6), predicated on
a violation of the Industrial Code, 12 NY CRR § 23-4.2k, which is entitled “Trench and area type
excavations,” and states:
(k) Persons shall not be suffered or permitted to work in any area where
they may be struck or endangered by any excavation equipment or by any
material being dislodged by or falling from such equipment.
In opposition, the defendants PA, Skanska, Kiewit and SKK contend that 12 NYCRR §
23-4.2k is too general to support a Labor Law § 241(6) claim, and is inapplicable to the facts of
this case. They further argue that the plaintiff's broad definition of “construction work” used to
apply Industrial Code § 23-4.2k conflicts with the plain meaning of excavations that the
Industrial Code specifically covers.
Labor Law § 241(6) imposes a nondelegable duty on owners and contractors to “provide
reasonable and adequate protection and safety to persons employed in, or lawfully frequenting,
all areas in which construction, excavation or demolition work is being performed.” See Lopez v
New York City Dept. of Envtl. Protection, 123 AD 3d 982, 983 (2d Dept 2014); see also Perez v
286 Scholes St. Corp., 134 AD3d 1085, 1086 (2d Dept 2015). To prevail on a Labor Law §
241(6) cause of action, a plaintiff must allege and prove a violation of a concrete specification
promulgated by the Commissioner of the Department of Labor in the Industrial Code. See
Misicki v Caradonna, 12 NY 3d 511 (2009); Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY 2d
494. However, even if a plaintiff establishes as a matter of law that the defendant violated a
concrete specification of the Industrial Code, granting summary judgment on that claim is not
appropriate. In Rizzuto v L.A. Wenger Contr. Co., 91 NY 2d 343, 351 (1998), the Court of
Appeals held that a violation of the Industria
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INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 02/28/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 17 eee eee ee eee eee ee eee eee eee eee eee nee eee een en een eeeeee RONY ANDRADE and ALBA VANEGAS, Index No.: 512446/2018 Plaintiffs, Motion Seq. Nos.: 07, 08, 09, 10 & 11 -against- THE PORT AUTHORITY OF NEW YORK AND DECISION AND ORDER NEW JERSEY, SKANSKA KOCH, INC., KIEWIT INFRASTRUCTURE CO., and SKANSKA KOCH/KIEWIT, Joint Venture, Defendants. eee een eee eee nee ene eee eee eee ene ene eee en eee enen eee eeee THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, SKANSKA KOCH, INC., KIEWIT INFRASTRUCTURE CO., and SKANSKA KOCH/KIEWIT, Joint Venture, Third-Party Plaintiffs, -against- ATLANTIC COAST DISMANTLING, LLC, ENVIRONMENTAL AND INFRASTRUCTURE GROUP, LLC, ATLANTIC COAST DISMANTLING ENVIRONMENTAL AND INFRASTRUCTURE GROUP JV, and AMS SAFETY LLC, Third-Party Defendants. eee nen eee eee nee eee eee eee eee een een n eee e eee ee ee ee neeenee ATLANTIC COAST DISMANTLING, LLC, ENVIRONMENTAL AND INFRASTRUCTURE GROUP, LLC, ATLANTIC COAST DISMANTLING ENVIRONMENTAL AND INFRASTRUCTURE GROUP JV, and AMS SAFETY LLC, Second Third-Party Plaintiffs, -against- CATERPILLAR, INC., Second Third-Party Defendant eee een nee eee eee eee ee een ene eee eee een eneenene The following e-filed documents, listed by NY SCEF document number (Motion 07) 121-140, 175-191, 193; (Motion 08) 159-174, 194, 263-276; (Motion 09) 195-215, 294-317, 320-328; 1 of 19 1 of 19 INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF 02/20/2024 (Motion 10) 279-293, 331, 332; and (Motion 11) 249-262, 278, and 330 were read on these motions for summary judgment. The plaintiffs move for partial summary judgment (Motion 07) on liability based on Labor Law §§ §240(1) and 241(6). The defendants, The Port Authority of New Y ork and New Jersey (hereinafter PA), Skanska Koch, Inc. (hereinafter Skanska), Kiewit Infrastructure Co. (hereinafter Kiewit) and Skanska K och/Kiewit, Joint V enture (hereinafter SKK), cross-move for summary judgment (Motion 08) based on plaintiffs’ Labor Law §§ 200, 240(1) and 241(6) claims, and seek summary judgment against third-party defendants A tlantic Coast Dismantling, LLC (hereinafter ACD), Environmental and Infrastructure Group, LLC (hereinafter EIG) and Atlantic Coast Dismantling Environmental and Infrastructure Group JV (hereinafter ACD/EIG) for common-law indemnification and contribution, or alternatively, for a conditional judgment for common-law indemnification and contribution, and for an order that ACD, EIG and ACD/EIG are obligated to defend the direct defendants and for reimbursement of attorneys’ fees, or alternatively, for a conditional judgment for defense costs and reimbursement of attorneys’ fees, and for dismissal of the cross-claims of second third-party defendant Caterpillar Inc. (hereinafter Caterpillar) for common-law indemnification and contribution. Caterpillar moves for summary judgment (Motion 09) and dismissal of ACD, EIG and ACD/EIG’s second third- party complaint and all cross-claims, and ACD, EIG and ACD/EIG cross-moves for summary judgment (Motion 10) on their negligent design and strict liability claims against Caterpillar, and seek partial summary judgment (Motion 11) on the plaintiffs’ Labor Law § 240(1) claims. After oral argument and upon careful consideration of the parties’ submissions, the motions are decided as set forth below. This action arises from an accident which occurred on November 28, 2017, while the plaintiff was working on the Bayonne Bridge demolition project when his left leg was crushed between a jersey barrier and the parapet wall of the bridge, necessitating a below-the-knee amputation of the leg. The PA is the owner of the Bayonne Bridge, and SKK was retained by PA as the general contractor. PA subcontracted with EIG, the plaintiffs employer, to conduct demolition and excavation work. EIG then formed a joint venture with ACD. According to the plaintiff’s testimony, at the time of the accident he was working with another EIG employee, Jao Rodriguez, as well as John Wade, the operator of the Caterpillar excavator. The scope of the work involved demolition of the bridge, and the plaintiffs role was a signal person to the excavator operator. Michael Cadugan, the superintendent for ACD/EIG, supervised the plaintiff’s work. According to the plaintiff's testimony, at the time of the accident Wade was operating the excavator to cut iron from the sidewalk of the bridge, and the plaintiff was acting as a signal person, using hand signals to communicate with Wade. Just prior to the accident the plaintiff signaled to Wade to stop the machine so he could move to a different position. The plaintiff was 2 of 19 2 of 19 INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 02/28/2024 standing approximately four to five feet in front of the cab of the excavator and to the right, in between the barrier and the parapet wall, where he could visually signal to Wade. Wade stopped cutting and then moved the excavator in reverse. As the track of the excavator moved off the barrier it moved up and tipped back toward the plaintiff, trapping his leg between the barrier and the parapet wall. The plaintiff testified that he worked with Wade for approximately four months prior to the accident and had never experienced any problems communicating with him while assisting as a signal person. Wade had never instructed the plaintiff where to stand when acting as a signal person, and he had never been asked to move to a different location because Wade was unable to see him while operating the excavator. The plaintiff testified that the excavator operator is trained not to move the machine unless the signal person is in his line of vision. He further testified that he was never given instructions as to where he should stand to perform his work, and that there was no designated distance from the excavator that he was expected to be standing when assisting the operator. However, as a signal person, he was trained to always stand somewhere visible to the operator. The plaintiff also testified that “there is no blind spot between the operator and the signal man,” and that in any event, he was never given instructions by his supervisor, Cadugan, that he should not stand in the excavator’s blind spot. Cadugan testified that he was unaware that the plaintiff was “signaling or spotting” for Wade, and that the plaintiff's role was “to make sure John [Wade] did not back into anything or let anybody else walk into the work area.” He further testified that he never had a conversation with the plaintiff instructing him not to stand where he was prior to the accident. Cadugan testified that the plaintiff received instructions at a toolbox meeting in the momings about crush points and about not getting close to an excavator. He stated that operators of excavation machines were instructed and trained not to move the machine if someone is within the swing radius or pinch pint or near a crush hazard. Cadugan testified that other than the tool box meetings which likely occurred months prior to the accident, no formal training was provided to the plaintiff on spotting or signaling. He also testified that the barriers were originally secured to the roadbed with steel pins, but the pins were removed by EIG and never replaced after the barriers were moved. According to the deposition testimony of Wade, he worked with the plaintiff for two months prior to the accident. He described the plaintiff as a general laborer, who helped “core drill the deck, saw cut, move stuff around as we needed it.” He testified that during the demolition phase, which included using a hydraulic hammer to remove the concrete and cut the rebar, the plaintiff used hand signals to direct Wade where to chop and cut, when to stop, and to indicate whether debris was hanging or hitting the safety net below. Generally, no instructions were given to the plaintiff as to where he should stand in relation to the excavator, and Wade never instructed the plaintiff not to stand on the right side of the excavator. During the time that he was using the excavator for “snipping and dropping the parapet” he was able to see the 3 of 19 3 of 19 INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 02/28/2024 plaintiff, however from the time that he stopped cutting to when he backed up the excavator and struck the barrier, a three-to-four-minute period, he did not see him. Wade testified that he believed that a part of the excavator track slipped undemeath the barrier, and when he backed up, the barrier tipped over. He testified that although he saw the plaintiff standing behind the barrier, which was approximately two feet from the excavator track just prior to the accident, he never instructed him to relocate to another position. He was unaware that the accident had occurred until he saw the expression on the face of the plaintiffs co-worker, Jao Rodriguez, which caused Wade to stop and exit the excavator, at which time he observed the plaintiff bleeding heavily. Wade could not recall if Cadugan ever instructed the plaintiff not to stand on the right side of the excavator or whether he told the plaintiff to move to the left side of it. Wade also testified that he was responsible for deciding where to place the barrier during the course of the workday. Wade placed the barrier at its location prior to the plaintiff’s arrival at the worksite that morning. The barrier stood four feet high and was generally secured to the roadway with pins to prevent movement and to keep it from tipping over. Wade was aware that the barrier was not secured to the bridge deck at the time of the accident. Ronald Knott, the Environmental Health & Safety area manager for Skanska USA Civil Northeast, confirmed at his deposition that no communication protocol, either hand and/or verbal signals or radio communication had been established between the plaintiff and Wade, and that it was an important safety issue to prevent the machine from coming into contact with workers or adjacent structures. He also testified that based on the position of the boom and dipper on the excavator the operator had clear sight of the signal person, and that the initial belief that the plaintiff was in a blind spot was inaccurate. Based on his observations at the scene after the accident, Knott believed that the track of the excavator came into contact with the barrier causing it to tip and fall onto the plaintiff. According to the deposition testimony of Leonard Iacoviello, who was employed by PA as a Resident Engineer, a barrier was used to either regulate traffic or protect the leading edge, and could be secured to the roadway with a pin to prevent it from sliding or tipping over. He did not witness the accident, however he acknowledged that when the accident occurred the pins were not installed to secure the barrier, and that installation of the pins was relatively easy and could be done in 15 to 20 minutes. Iacoviello testified that the barrier weighed two to two-and-a- half tons and was about two feet wide at its base. Based on photographs and his personal observations of the scene after the accident, he estimated that the barrier fell two to three feet after it was tipped. Viewing video stills depicting just before and at the time of the accident, Iacoviello opined that there were no glaring issues with respect to the manner in which the work was being done or where the plaintiff was standing, although he opined that the area was “a little tight.” He noted that it would have been difficult for the operator to have seen the plaintiff across the boom if he were standing on the left side rather than the right side of the excavator where the work was being performed. 4 of 19 4 of 19 INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 02/28/2024 Brad Minkovitz, the Project Manager who was employed by ACD/EIG, testified that the plaintiff was not a signal person or spotter, and that there was no need for one because “the operator knew what he needed to do.” Minkovitz, who did not witness the accident, testified that he would not have allowed a worker to stand in the position where the plaintiff was located just prior to the accident because it was “a bad spot for him to be as far as visual communication with the operator.” Minkovitz testified that the plaintiff was a laborer who assisted Rodriguez with the water hose for dust control, and that when not needed the plaintiff was standing out of the way and was expected to stand by in the event that his co-worker needed assistance. Minkovitz testified that he never instructed the plaintiff not to stand on the right side of the excavator while it was in operation, and he claimed that Cadugan informed him that he instructed the plaintiff not to stand in that area, but Cadugan did not know when the conversation had occurred. He acknowledged that his report did not mention that the plaintiff was standing in an unsafe area at the time of the accident. Labor Law Motions — ions 07, 08 and 11) The plaintiffs argue that they are entitled to summary judgment (Motion 07) pursuant to Labor Law § 240(1), based on the defendants’ failure to pin the two-ton barrier to prevent it from falling or tipping onto the plaintiff. Plaintiffs argue that unrefuted witness testimony establishes that the barrier was not secured to the roadway with pins, which would have prevented the barrier from moving or tipping, and is sufficient to establish a prima facie Labor Law §240(1) violation. In support of the motion, the plaintiffs submit the pleadings, the deposition transcripts of the plaintiff, Iacoviello, Knott, Minkovitz, Cadugan, and Wade, and a number of reports that were generated after the accident. These reports include a partially redacted Skanska Incident Report prepared by Ron Knott; the Skanska interview of John Wade by Knott and two other Skanska employees, from which a written report was made; a PA police report dated November 28, 2017 based on an interview with John Wade; a Workers’ Compensation First Report of Injury; and the OSHA Investigation Report. The plaintiffs also submit numerous photographs depicting the plaintiffs accident before and after it occurred; the PA-Skanska Kiewit contract; and the Skanska-ACD/EIG subcontract; and the note of issue. The plaintiffs contend that the “same-level” rule is inapplicable to the instant case, and that Labor Law § 240(1) was designed to prevent the types of accidents in which the protective device was inadequate to shield the worker from a falling object, even in circumstances where it falls only a short distance. The plaintiffs also seek summary judgment based on Labor Law § 241(6), which is predicated on a violation of the Industrial Code 12 NY CRR § 23-4.2(k), which states that “[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment.” They contend that the statute was violated based on the 5 of 19 5 of 19 INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 02/28/2024 undisputed witness testimony that the plaintiffs injuries occurred when the excavator struck the unsecured barrier that tipped over and fell on his leg. In opposition, defendants PA, Skanska, Kiewit and SKK, argue that the barrier was in good working order and served its intended safety purpose as a temporary, free-standing concrete construction barrier used “as a delineation for a fall hazard.” They further argue that expert evidence refutes the plaintiffs’ allegation that the barrier should have been pinned because it would have been impracticable and infeasible to pin and unpin the barrier every time it was moved. Defendants contend that a pinned barrier usually results in damage to the bridge deck and would compromise the structural integrity of the work area, leading to unsafe working conditions. In support of their arguments, the defendants, PA, Skanska, Kiewit and SKK, submit the unswom report of LPI, Inc., Consulting Engineers, dated September 21, 2020, which concludes, inter alia, that a barrier such as the one in the instant case, that is used in a free-standing configuration “to provide a conspicuous means of demarcating the road deck trailing edge,” is not required to have holes cast within its base. They further contend that the plaintiff’s actions in standing in the excavator’s blind spot on the right side of the machine where the operator could not see him was the sole proximate cause of his injury, and that he was aware of the tipping hazard of the barrier when struck by an excavator. They maintain that there are no safety devices that were necessary or expected to be utilized to keep the barrier from tipping over and falling. Additionally, the defendants oppose the plaintiffs’ Labor Law § 241(6) claim, arguing that the evidence shows that the plaintiff's actions were the sole proximate cause of the accident, and not any alleged Industrial Code violation, and that 12 NY CRR § 23-4.2(k) is not sufficiently specific, and inapplicable to the facts of this case. The defendants, PA, Skanska, Kiewit and SKK cross-move for summary judgment (Motion 08) based on plaintiffs’ claims under Labor Law §§ 200, 240(1) and 241(6). Further, they seek summary judgment against third-party defendants ACD, EIG, ACD/EIG and AMS Safety LLC for common law indemnification and contribution; or a conditional judgment for common-law indemnification and contribution; and for an order that third-party defendants are obligated to defend them and for reimbursement of attorneys’ fees, or alternatively for conditional judgment for defense costs and reimbursement of attorneys’ fees. PA, Skanska, Kiewit and SKK also seek dismissal of Caterpillar’s cross-claims for common-law indemnification and contribution. In their opposition papers the plaintiffs concede that the facts of this case do not support a cognizable Labor Law § 200 or common law negligence claim. At oral argument, plaintiffs’ counsel withdrew those claims. In support of their motion for dismissal of the plaintiffs’ Labor Law § 240(1) claim, the defendants PA, Skanska, Kiewit and SKK repeat the arguments asserted in their opposition to the 6 of 19 6 of 19 INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF 02/20/2024 plaintiffs’ motion, i.e. that the plaintiff was the sole proximate cause of his injuries because he placed himself in a pinch point position between the barrier and the bridge parapet wall, and in the excavator operator’s blind spot while the operator was in the process of demolishing a portion of the bridge deck. The defendants also contend that the barrier served its intended safety purpose; the barrier was in good working order at the time of the accident; and that expert evidence contained in the unsworn LPI report purportedly shows that it would be impracticable and infeasible to pin and unpin the barrier every time it was moved, and would result in damage to the bridge deck. As to that prong of their motion seeking dismissal of the plaintiffs’ Labor Law § 241(6) claim, they assert the same arguments as presented in their opposition papers, i.e., that 12 NY CRR § 23-4.2(k) is too general and inapplicable to the facts of this case. Defendants PA, Skanska, Kiewit and SKK contend that they are entitled to common-law indemnification and contribution from third-party defendants ACD, EIG and ACD/EIG because they have demonstrated their freedom from fault. They further argue that in cases involving a grave injury, under implied indemnity principles one held vicariously liable solely on account of the negligence of another is permitted to shift the entire burden of the loss to an actual wrongdoer. They maintain that at most, they are exposed to statutory liability based upon the actions of ACD/EIG, who exclusively controlled, directed, and supervised the plaintiff's work and its equipment operators. In the alternative, the defendants seek a conditional order of implied indemnity pending determination of the primary action. The defendants argue that second third-party defendant Caterpillar’s cross claims for indemnity and contribution should be dismissed because the defendants were not actively negligent, and because any liability would be purely vicarious. ACD, EIG and ACD/EIG oppose that prong of the defendants’ motion seeking common- law indemnification and contribution arguing that there are issues of fact as to the defendants’ negligence in the happening of the accident. They argue that in the event that the Court denies the defendants’ motion for summary judgment on the plaintiffs’ Labor Law claims there is an issue of fact as to the negligence of PA Skanska, Kiewit and SKK in failing to secure the barrier with metal pins. ACD, EIG and ACD/EIG maintain that defendant PA knew that the barrier involved in the plaintiff's accident was being used to protect the “leading edge” of the bridge and was not secured to the roadway with the metal pins, and the PA officials conducted three walkthroughs each week of the plaintiff’s work area. ACD, EIG and ACD/EIG also assert that they are not obligated to defend Caterpillar in this action, as such a claim has no basis in law, was not pled in the third-party complaint, and no arguments in support of this contention were included in the moving papers. Third-party defendants ACD, EIG and ACD/EIG cross-move and seek dismissal of the plaintiffs’ § 240(1) Labor Law claims (Motion 11), arguing that the injury was not caused by an elevation-related risk because the barrier was not a falling object, as it was situated on the roadway. The defendants rely on an Appellate Division, Third Department case, Oakes v Wal- Mart Real Estate Bus. Trust., 99 AD3d 31 (3d Dept 2012), to support their argument that the 7 of 19 7 of 19 INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 02/28/2024 statute was not violated because the barrier was situated at the same level as the plaintiff when it tipped over. ACD, EIG and ACD/EIG, also assert that Labor Law § 240(1) does not apply because the barrier was not an object being hoisted or moved as part of the work that the plaintiff was doing at the time of the accident. The defendants contend that the safety devices, the metal pins used to secure the barrier to the roadway, are not similar to the safety devices enumerated in the statute. The plaintiffs oppose the motion, arguing that the third-party defendants’ reliance on Oakes is misplaced. They contend that this Court is required to follow binding precedent from the Appellate Division, Second Department, which holds that a height differential may not be considered de minimis, in light of a falling object’s weight and the force it is able to generate over its short descent. The plaintiffs cite to well-settled A ppellate Division, Second Department case law involving falling objects from the same level or slightly higher in which the height differential was not considered to be de minimis, including McCallister v 200 Park, L.P., 92 AD3d 927 (2d Dept 2012); Gutman v City of New York, 78 AD3d 886 (2d Dept 2010) and Kandatyan v 400 Fifth Realty, LLC, 155 AD3d 848 (2d Dept 2017). The plaintiffs also contend that undisputed deposition testimony establishes that the barrier was an object that should have and could have been secured to the roadway with pins to prevent it from tipping and falling onto the plaintiff. According to the plaintiffs, the LPI Report is inadmissible, as it is unsworn, and should not be considered by the Court. Summary judgment is a drastic remedy and may be granted only when it is clear that no triable issue of fact exists. Alvarez v Prospect Hosp., 68 NY 2d 320 (1986). The moving party is required to make a prima facie showing of entitlement to judgment as a matter of law, and evidence must be tendered in admissible form to demonstrate the absence of any material issues of fact. Alvarez v Prospect Hosp., 68 NY 2d at 324; see also Zuckerman v City of New York, 49 NY 2d 557 (1980). The papers submitted in the context of the summary judgment application are always viewed in the light most favorable to the party opposing the motion. Marine Midland Bankv Dino & Artie’s Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). If the prima facie burden has been met, the burden then shifts to the opposing party to present sufficient evidence to establish the existence of material issues of fact requiring a trial. CPLR § 3212(b); see also Alvarez v Prospect Hosp., 68 NY 2d at 324; Zuckerman v City of New York, 49 NY 2d at 562. In the context of summary judgment motions based on Labor Law, the Court of Appeals has repeatedly held that Labor Law § 240(1) must be construed liberally. See Rocovich v Consolidated Edison Co., 78 NY 2d 509 (1991); Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY 2d 494 (1993). In order to impose absolute liability under Labor Law § 240(1) the plaintiff must show that the owner or general contractor’s failure to provide proper protection to workers employed on a construction site proximately caused injury to a worker. See Wilinski v 334 E. 92" Hous. Dev. Fund Corp., 18 NY3d 1 (2011). “Whether a plaintiff is entitled to recovery 8 of 19 8 of 19 INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 02/28/2024 under the statute requires a determination of whether the injury is the type of elevation-related risk to which the statute applies.” Id. at 3. Significantly, the single decisive question in determining whether Labor Law § 240(1) applies is “whether plaintiff's injuries were the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential.” Runner v New York Stock Exch., Inc., 13 NY 3d 599, 603 (2009); see also Wilinski, 18 NY 3d at 6. Labor Law § 240(1) applies to both “falling worker” and “falling object” cases. See Wilinski, 18 NY 3d at 8. Liability under the statute for falling objects is not limited to cases in which the falling object is in the process of being hoisted or secured. See Escobar v Safi, 150 AD3d 1081, 1083 (2d Dept 2017) (where unsecured sheet of plywood fell from roof 20 feet high and struck plaintiff, falling object liability was established under Labor Law § 240(1) where the plaintiff demonstrated that the falling object “required securing for the purposes of the undertaking”); Andresky v Wenger Constr. Co., Inc., 95 AD3d 1247 (2d Dept 2012) (finding liability under Labor Law § 240(1) even though the falling object did not strike the worker because the object required securing for the purposes of the undertaking); Outar v City of New York, 286 AD2d 671 (2d Dept 2001), affd 5 NY 3d 731 (2005) (falling object liability established where the plaintiff was injured when an unsecured dolly fell on him from a bench wall 5% feet above him as he was lifting pieces of track). Further, a short elevation differential between a worker and a falling object is not considered de minimis if the weight of the object and the force it is capable of generating on its descent is significant. See Wilinski, 18 NY 3d at 6. In Wilinski, the Court of Appeals articulated that its “jurisprudence defining the category of injuries that warrant the special protection of Labor Law § 240(1) has evolved over the last two decades,” and enunciated the core premise that “a defendant’s failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability.” Id. at 4. Wilinski involved an injury that occurred as a result of the fall of two unsecured metal vertical pipes which were 10 feet tall and were located on the same level as the plaintiff. The pipes fell four feet and landed on the plaintiff, who was five feet eight inches tall, striking him on his head, shoulder and arm. The Appellate Division, First Department, partially granted the defendants’ summary judgment motion, dismissing the plaintiff's Labor Law § 240(1) claim, finding that since both the pipes and the plaintiff were at the same level at the time of the collapse the elevation differential was not sufficient to impose liability. The Court of Appeals rejected the reasoning of the A ppellate Division in Wilinski, as well as other intermediate appellate courts that had previously found that no liability can attach where the plaintiff and the base of the falling object stood on the same level. The Court concluded that the height differential between the unsecured pipes was not de minimis given the amount of force the pipes were able to generate as they fell. In soundly rejecting the same-level rule, the Court adopted the reasoning set forth in Runner v New York Stock Exch., Inc., 13 NY 3d 599. Runner involved a novel set of circumstances that did not involve a falling worker or a falling object. The plaintiff was injured 9 of 19 9 of 19 INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 02/28/2024 while moving an 800-pound reel of wire down a flight of four stairs using a 10-foot length of rope wrapped around a metal bar. As the reel descended, the plaintiff was pulled into the metal bar, injuring his hands as they jammed against it. The Court of Appeals held that “the relevant inquiry ... is whether the harm flows directly from the application of the force of gravity to the object.” Id. at 604. The Court found that the “elevation differential... [could not] be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent.” Id. at 605. Tuming to the instant matter, the plaintiffs have demonstrated their prima facie entitlement to summary judgment on their Labor Law § 240(1) claim. The plaintiffs have established that the plaintiff is a worker covered under the Labor Law statute. The defendant, PA, was the owner of the Bayonne Bridge, and Skanska was the general contractor of the project. According to the testimony of Wade and Iacoviello, the barrier weighed approximately two tons and stood four feet high, falling two to three feet onto the plaintiff's leg after it tipped. There is ample evidence on this record that the barriers used were routinely secured to the roadway with metal pins to ensure that they would not tip over and injure a worker on the construction site, and that the barrier that struck the plaintiff had not been pinned before the demolition work began. Clearly, this was a risk that was well-known in the construction industry, as evidenced by the deposition testimony of the plaintiff and the defendants’ witnesses. In opposition, the defendants have failed to raise a triable issue of fact that the plaintiffs’ claim is not covered by § 240(1) of the statute. The LPI Report, relied upon heavily by defendants PA, Skanska, Kiewit and SKK in opposing the plaintiffs’ motion and in support of their summary judgment motion, is unsworn and constitutes inadmissible hearsay. See Utica First Ins. Co. v Gristmill Earth Realty Corp., 145 AD3d 1059 (2d Dept 2016); Guanopatin v Flushing Acquisition Holdings, LLC, 127 AD3d 812 (2d Dept 2015); 1212 Ocean Ave. Hous. Dev. Corp. v Brunatti, 50 AD3d 1110 (2d Dept 2008). Further, this Court declines to adopt the holding in Oakes, as urged by ACD, EIG and ACD/EIG. As the plaintiffs point out, the Court is required to follow precedent from the Appellate Division, Second Department and the New Y ork Court of Appeals. See Mountain View Coach Lines v Storms, 102 AD2d 663 (2d Dept 1984). Moreover, the facts in Oakes are clearly distinguishable from those presented here. The Appellate Division, Second Department, has repeatedly found liability under Labor Law § 240(1) in circumstances where either the plaintiff and the falling object were on the same level or the object traveled only a short distance before striking the worker. See McCallister v 200 Park, L.P., 92 AD3d at 928-929 (“although the base of the scaffold was at the same level as the plaintiff and the scaffold only fell a short distance, given the combined weight of the device and its load, and the force it was able to generate over its descent, this difference was not de minimis”); Pritchard v Tully Constr. Co., Inc., 82 AD3d 730 (2d Dept 2011) (finding liability under Labor Law § 240(1) when an unsecured motor weighing 300 to 350 pounds fell two to three feet onto the plaintiff who was standing beneath it); Gutman v City of New York, 78 AD3d at 887 (the rail that fell on the 10 of 19 10 of 19 INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 02/28/2024 plaintiff traveled only 12 to 16 inches before striking him, however the elevation differential was not de minimis given the weight of the object and the amount of force it was capable of generating “even over the course of a relatively short descent”). The Court of Appeals has rejected the same-level rule in cases involving facts similar to those presented here, as demonstrated in Runner and Wilinski, and the defendants have failed to show that those cases are not controlling in the case at bar. Additionally, the argument of third-party defendants ACD, EIG and ACD/EIG, that liability under Labor Law § 240(1) based on falling objects is limited to cases in which the object is in the process of being hoisted or secured is without merit. See Escobar v Safi, 150 AD3d at 1083 (falling object liability was established under Labor Law § 240(1) where the plaintiff demonstrated that the falling object “required securing for the purposes of the undertaking” where unsecured sheet of plywood fell from roof 20 feet high and struck plaintiff); Andresky v Wenger Constr. Co., Inc., 95 AD3d 1247 (finding liability under Labor Law § 240(1) even though the falling object did not strike the worker because the object required securing for the purposes of the undertaking). Likewise, the contentions of defendants PA, Skanska, Kiewit and SKK, that the plaintiff was the sole proximate cause of the accident is unavailing. Their assertion that the plaintiff improperly placed himself in the operator’s blind spot and in a pinch point position between the barrier and the bridge parapet wall at best rises to the level of comparative negligence, which is not a defense to a claim under Labor Law § 240(1). See Garzon v Viola, 124 AD3d 715 (2d Dept 2015); see also Smith v Yonkers Contr. Co., 238 AD2d 501 (2d Dept 1997). Once it has been established that the defendants’ failure to provide proper protection was causally related to the accident, in this case the failure to secure the barrier to the roadway, a plaintiff has demonstrated prima facie entitlement to judgment as a matter of law. See Roblero v Bais Ruchel High Sch., Inc., 175 AD3d 1446 (2d Dept 2019). Based on the facts presented here, and prevailing Appellate Division, Second Department and Court of A ppeals case law, the plaintiffs are entitled to summary judgment on their Labor Law § 240(1) claim. Those prongs of the motion of PA, Skanska, Kiewit and SKK seeking common-law indemnification and contribution against ACD, EIG and ACD/EIG, and dismissal of Caterpillar’s cross-claims for common-law indemnification and contribution are denied. The Court of Appeals has held that “a party cannot obtain common-law indemnification unless it has been held to be vicariously liable without proof of any negligence or actual supervision on its own part.” See McCarthy v Turner Const., Inc., 17 NY 3d 369, 377-378 (2011). In McCarthy, the Court found that an obligation to indemnify may only be imposed on “parties who were actively at fault in bringing about the injury.” Id at 377. In opposition, third-party defendants and Caterpillar have raised triable issues of fact as to whether defendants PA, Skanska, Kiewit and SKK were actively at fault in bringing about the injury. Specifically, PA, Skanska, Kiewit and SKK had general supervisory authority with respect to site safety, and should have ensured that the concrete barrier at issue was pinned, based on the close proximity of the workers to the 11 of 19 11 of 19 INDEX NO. 512446/2018 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 02/28/2024 barrier and the active excavator. See Roblero v Bais Ruchel High Sch., Inc., 175 AD3d 1446 (upholding the trial court’s denial of summary judgment to the owner defendant on its common- law contribution and indemnification claims because the owner failed to show there were no triable issues of fact regarding its negligence); Mendelsohn v Goodman, 67 AD3d 753, 754 (2d Dept 2009) (“an award of summary judgment on a claim for common-law indemnification is appropriate only where there are no triable issues of fact conceming the degree of fault attributable to the parties”); see also Tarpey v Kolanu Partners, LLC, 68 AD3d 1099 (2d Dept 2009). That branch of the motion seeking a conditional order of implied indemnity is also denied as premature. See Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807 (2d Dept 2009). The plaintiff also seeks summary judgment based on Labor Law § 241(6), predicated on a violation of the Industrial Code, 12 NY CRR § 23-4.2k, which is entitled “Trench and area type excavations,” and states: (k) Persons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment. In opposition, the defendants PA, Skanska, Kiewit and SKK contend that 12 NYCRR § 23-4.2k is too general to support a Labor Law § 241(6) claim, and is inapplicable to the facts of this case. They further argue that the plaintiff's broad definition of “construction work” used to apply Industrial Code § 23-4.2k conflicts with the plain meaning of excavations that the Industrial Code specifically covers. Labor Law § 241(6) imposes a nondelegable duty on owners and contractors to “provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed.” See Lopez v New York City Dept. of Envtl. Protection, 123 AD 3d 982, 983 (2d Dept 2014); see also Perez v 286 Scholes St. Corp., 134 AD3d 1085, 1086 (2d Dept 2015). To prevail on a Labor Law § 241(6) cause of action, a plaintiff must allege and prove a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code. See Misicki v Caradonna, 12 NY 3d 511 (2009); Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY 2d 494. However, even if a plaintiff establishes as a matter of law that the defendant violated a concrete specification of the Industrial Code, granting summary judgment on that claim is not appropriate. In Rizzuto v L.A. Wenger Contr. Co., 91 NY 2d 343, 351 (1998), the Court of Appeals held that a violation of the Industria