Justice Jack Battaglia
Defendant Silvera drove a vehicle, owned by defendant Kruger, into a portion of Rockaway Boulevard that was under construction, striking plaintiff Keller, who was working as a "flagman" for defendant Tully Construction Co. Inc. The vehicle also struck plaintiff Hudson, who was a driver/equipment operator employed by a nonparty. The roadway was owned by the State of New York, which entered into a contract with defendants Tully and Lockwood to serve as a general contractor and consultant engineer, respectively. Keller and Hudson alleged, among other things, that Tully and Lockwood were negligent and violated Labor Law 241(6) in failing to take adequate measures to prevent vehicles from entering into the area of the roadway that was under construction. The court denied plaintiffs’ motion for summary judgment on their Labor Law claim, determining that they failed to make a prima facie showing that Keller’s positioning adjacent to the work area was a substantial factor in bringing about the accident.
