Stewart v. City of Port Jervis

ADDITIONAL CASES City of Port Jervis, Third-Party Plaintiff v. Hayward Baker, Inc., Third-Party Defendant City of Port Jervis, Second Third-Party Plaintiff v. D.A. Collins Construction Co., Second Third-Party Defendant City of Port Jervis, Third Third-Party Plaintiff v. Clough Harbour & Associates, LLP. Third Third-Party Defendant Hayward Baker, Inc., Fourth Third-Party Plaintiff v. D.A. Collins Construction Co., Inc., The following papers numbered 1-47 were read and considered along with oral argument on May 17, 2024¹ before the undersigned in connection with Plaintiff’s Notice of Motion (Motion #5) for an Order pursuant to Civil Practice Law and Rules §3212 granting Plaintiffs summary judgment on liability with respect to the cause of action for violation of Section 240 of the Labor Law against the Defendant CITY OF PORT JERVIS, as owner, together with such other and further relief as to the Court may seem just and proper; and is also considered as to Defendant/Third Third-Party Defendant CLOUGH HARBOUR & ASSOCIATES, LLP’s Notice of Cross Motion (Motion #6) for an Order pursuant to Civil Practice Law and Rules §3212 granting defendant/Third Third-Party Defendant CLOUGH GHARBOUR & ASSOCIATES, LLP summary judgment, dismissing Plaintiffs’ claims, all cross-claims by Defendant HAYWARD BAKER, INC. and Second Third-Party Defendant D.A. COLLINS CONSTRUCTION CO., and all third-party claims/cross-claims by Defendant/Third-Party Plaintiff the CITY OF PORT JERVIS and an Order pursuant to Civil Practice Law and Rules §3212 granting Defendant/Third Third-Party Defendant CLOUGH HARBOUR & ASSOCIATES, LLP summary judgment on its cross-claim for contractual and/or common law indemnification against Second Third-Party Defendant D.A. COLLINS CONSTRUCTION CO.; and also considered in connection with Defendant/Second Third-Party Defendant/Second Third-Party Plaintiff HAYWARD BAKER INC. k/n/a KELLER N.A.’s Notice of Motion (Motion #7) for an Order (1) granting them summary judgment as a matter of law pursuant to Civil Practice Law and Rules §3212 and dismissing CLOUGH HARBOUR & ASSOCIATES’ cross-claims and counterclaims as against the moving Defendants in its entirety with prejudice and (4) (sic) together with such other and further relief as this Court deems just, proper and equitable; and also considered in connection with Defendant/Third-Party Plaintiff/Second Third-Party Plaintiff/Third-Third Party Plaintiff CITY OF PORT JERVIS’s Notice of Motion (Motion #8) for an Order (1) pursuant to Civil Practice Law and Rules §3212, granting summary judgment in favor of PORT JERVIS on its claims for contractual indemnity, breach of contract, common law indemnity, and common law contribution against Defendant/Third Third-Party Defendant CLOUGH HARBOUR & ASSOCIATES, LLP; and (b) granting to Civil Practice Law and Rules §3212 granting summary judgment in favor of PORT JERVIS and dismissing all cross-claims and counter-claims alleged by defendant/Third Third-Party Defendant CLOUGH HARBOUGH & ASSOCIATES LLP against PORT JERVIS and (c) granting such other and further relief as this Court deems just and proper; and also considered in connection with Defendant/Third-Party Plaintiff/Second Third-Party Plaintiff/Third-Third Party Plaintiff CITY OF PORT JERVIS’s Notice of Motion (Motion #9) for an Order (a) pursuant to Civil Practice Law and Rules §2221(e) granting CITY OF PORT JERVIS leave to renew the motion underlying this court’s decision and order dated November 18, 2020, which denied CITY OF PORT JERVIS’ summary judgment motion to dismiss Plaintiff’s claims under Labor Law §200 and common-law negligence, and upon reconsideration vacating that portion of the Order; and (b) pursuant to Civil Practice Law and Rules §2221(e) granting CITY OF PORT JERVIS leave to renew the motion underlying this Court’s decision and order dated November 18, 2020, which denied CITY OF PORT JERVIS’ summary judgment motion to dismiss Plaintiff’s claims under Labor Law §240, and upon reconsideration vacating that portion of the Order; and (c) pursuant to Civil Practice Law and Rules §2221(e) granting CITY OF PORT JERVIS leave to renew the motion underlying this Court’s decision and order dated November 18, 2020, which partially denied CITY OF PORT JERVIS’s summary judgment motion to dismiss Plaintiff’s claims under Labor Law §241(6) as predicated upon Industrial Code §23-3.3 and upon reconsideration vacating that portion of the Order; and (d) for such other and further relief as this Court deems just and proper; and also considered in connection with Defendant/Second Third-Party Defendant/Second Third-Party Plaintiff HAYWARD BAKER, INC. k/n/a KELLER, N.A.’s Notice of Motion (Motion #10) for an Order (1) granting them summary judgment as a matter of law pursuant to Civil Practice Law and Rules §3212 and dismissing D.A. COLLINS CONSTRUCTION COMPANY’s cross-claims and counterclaims as against the moving Defendants in its entirety with prejudice; and (4) (sic) together with such other and further relief as this Court deems just, proper and equitable; and also considered in connection with Defendant/Third-Party Plaintiff/Second Third-Party Plaintiff/Third Third-Party Plaintiff CITY OF PORT JERVIS’s Notice of Motion (Motion #11) for an Order (a) pursuant to Civil Practice Law and Rules §3212 granting summary judgment in favor of PORT JERVIS on its claims for contractual indemnity, common law indemnity, and common law contribution against Second Third-Party Defendant/Fourth Third-Party Defendant D.A. COLLINS CONSTRUCTION CO.; and (b) pursuant to Civil Practice Law and Rules §3212 granting summary judgment in favor of PORT JERVIS and dismissing all counter-claims alleged by Second Third-Party Defendant/Fourth Third-Party Defendant D.A. COLLINS CONSTRUCTION CO. against PORT JERVIS; and (c) granting such other and further relief as this Court deems just and proper; and also considered in connection with Defendant/Third-Party Plaintiff/Second Third-Party Plaintiff/Third Third-Party Plaintiff CITY OF PORT JERVIS’s Notice of Motion (Motion #12) for an Order (a) pursuant to Civil Practice Law and Rules §3212, granting summary judgment in favor of PORT JERVIS on its claims for contractual indemnity, breach of contract, common law indemnity, and common law contribution against Defendant/Third Party Defendant/Fourth Third-Party Plaintiff HAYWARD BAKER, INC.; and (b) Pursuant to Civil Practice Law and Rules §3212, granting summary judgment in favor of PORT JERVIS on its claims for contractual indemnity, breach of contract common law indemnity, and common law contribution against Defendant/Third-Party Defendant/Fourth Third-Party Plaintiff HAYWARD BAKER, INC.; and (c) granting such other and further relief as this Court deems just and proper; and is also considered in connection with Defendant/Second Third-Party Defendant/Second Third-Party Plaintiff HAYWARD BAKER, INC. k/n/a KELLER N.A.’s Notice of Motion (Motion #13) for an Order (1) granting them summary judgment as a matter of law pursuant to Civil Practice Law and Rules §3212 and dismissing the CITY OF PORT JERVIS’s cross-claims and third-party claims as against the moving Defendants in its entirety with prejudice; and (4) (sic) together with such other and further relief as this Court deems just, proper and equitable; and is also considered in connection with Second/Fourth Third-Party Defendant, D.A. COLLINS CONSTRUCTION CO.’s Notice of Motion (Motion #14) for an Order (1) granting DA COLLINS summary judgment dismissing HBI’s third, fifth, eighth, eleventh, and twelfth affirmative defenses; and/or (3) granting DA COLLINS such other and further relief that this Court deems just and proper; and also considered in connection with Second/Fourth Third-Party Defendant, D.A. COLLINS CONSTRUCTION CO.’s Notice of Motion (Motion #15) for an Order granting DA COLLINS summary judgment dismissing CHA’s crossclaim for contractual indemnification and/or granting DA COLLINS such other and further relief that this Court deems just and proper; and is also considered in connection with Second/Fourth Third-Party Defendant, D.A. COLLINS CONSTRUCTION CO.’s Notice of Cross Motion (Motion #16) for an Order (1) granting DA COLLINS summary judgment dismissing Plaintiffs’ claims under Labor Law §240(1) and/or Labor Law §241(6); (2) in the alternative to (1) denying Plaintiffs’ motion for partial summary judgment on Plaintiffs’ claim under Labor Law §240(1) because triable questions of material fact exist; and/or (3) granting DA COLLINS such other and further relief that this Court deems just and proper; and is also considered in connection with Defendant/Second Third-Party Defendant/Second Third-Party Plaintiff HAYWARD BAKER, INC. k/n/a KELLER N.A. for an Order (1) granting them summary judgment as a matter of law pursuant to Civil Practice Law and Rules §3212 and dismissing Plaintiff’s complaint as against the moving Defendants in its entirety with prejudice; and (4) (sic) together with such other and further relief as this Court deems just, proper and equitable: PAPERS² NUMBERED Notice of Motion (Motion #5)/Affirmation of Andrew L. Spitz, Esq./So Ordered Stipulation/NYSCEF Documents Page/Exhibits A-B/Affidavit of Ernest Gailor, P.E./Affidavit of John P. Coniglio, CSP, CHMM, CSG-Curriculum Vitae of John P. Coniglio, CSP, CHMM, CSG/Memorandum of Law/Exhibit H     1 Notice of cross Motion (Motion #6)/Affirmation of David M. Cost, Esq./ Exhibits A-D/Affidavit of Kevin V. Gorman, MSCE, PE, CCM-Exhibits A-B/ Affidavit of Kevin Dalton — Exhibit A/Statement of Material Facts/Memorandum of Law in Support    2 Statement of Undisputed Material Facts submitted by Hayward Baker (Motion #5)/ Affidavit of Casey Bunce/Affidavit of Kevin Dalton/Affirmation of Nicholas M. Lombard, Esq./Affidavit of Michael W. Oakland, P.E., Ph.D. — Exhibits A-B/ Affirmation of Stephen Pessiki, Ph. D. — Exhibit A/Affidavit of David Rakvica/ Affidavit of Daniel Wojnowski, Ph.D., P.E. — Exhibits A-B/Affidavit of Jonathan S. Zelig, Esq.-Exhibit A/Affirmation of Peter A. Gaudioso, Esq. in Opposition-Exhibits A/Memorandum of Law in Opposition/Response to Statement of Material Facts 3 Notice of Motion (Motion #7)/Statement of Material Facts/Affidavit of Casey Bunce/Affidavit of Kevin Dalton/Affirmation of Nicholas M. Lombard, Esq-Exhibit A/Affidavit of Michael W. Oakland, P.E., Ph.D. — Exhibits A-B/Affirmation of Stephen Pessiki, Ph.D. — Exhibit A/Affidavit of David Rakvica/ Affidavit of Daniel Wojnowski, Ph.D., P.E. — Exhibits A-D/Affidavit of Jonathan S. Zelig, Esq. — Exhibit A/Affirmation of Peter A. Gaudioso, Esq. — Exhibits A 4 Notice of Motion (Motion #17)/Statement of Material Facts/Affidavit of Casey Bunce/Affidavit of Kevin Dalton-Exhibit A/Affirmation of Nicholas M. Lombard, Esq.-Exhibit A/Affidavit of Michael W. Oakland. P.E., Ph. D. — Exhibit A-B/Affirmation of Stephen Pessikii, Ph.D. — Exhibit A/Affidavit of David Rakvica/Affidavit of Daniel Wojnowski, Phd.D., P.E. — Exhibits A-B/ Affidavit of Jonathan S. Zelig, Esq.-Exhibit A/Affirmation of Peter A. Gaudioso, Esq.-Exhibit A/Memorandum of Law in Support     5 Notice of Motion (Motion #8)/Affirmation of Krystina Maola, Esq./Statement of Material Facts/Memorandum of Law in Support/Agreement Between City of Port Jervis and CHA/Signed Affirmation of Steven Duryea/Affirmation of Shawn Rothstein, P.E.     6 Notice of Cross Motion (Motion #16)/Affirmation of Phillip A. Oswald, Esq./ Affidavit of Alex Bekkering/Affidavit of Craig Valente/Affidavit of Malcolm G. McLaren, P.E./Exhibits A-T/Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment (Motion #5)          7 Notice of Motion (Motion #13)/Statement of Material Facts/Affidavit of Casey Bunce/Affidavit of Kevin Dalton-Exhibit A/Affirmation or Nicholas M. Lombard, Esq./Affidavit of Michael W. Oakland, P.E., Ph.D./Affirmation of Stephen Pessiki, Ph.D./Affidavit of David Rakvica-Exhibit A/Affidavit of Daniel Wojnowski, Ph.D., P.E. — Exhibits A-B/Affidavit of Jonathan S. Zelig, Esq./Affirmation of Peter A. Gaudioso, Esq./Memorandum of Law In Support 8 Notice of Motion (Motion #10)/Statement of Material Facts/Affidavit of Casey Bunce/Affidavit of Kevin Dalton-Exhibit A/Affirmation of Nicholas M. Lombard, Esq.-Exhibit A/Affidavit Michael W. Oakland, P.E., Ph.D. — Exhibit A-B/Affirmation of Stephen Pessiki, Ph.D.-Exhibit A/Affidavit of David Rakvica-Exhibit A/Affidavit of Daniel Wojnowski, Ph.D., P.E.-Exhibits A-B/ Affidavit of Jonathan S. Zelig, Esq.-Exhibit A/Affirmation of Peter A. Gaudioso, Esq.-Exhibit A/Memorandum of Law in Support     9 Notice of Motion (Motion #14)/Phillip A. Oswald, Esq./Exhibits A-E/ Memorandum of Law in Support   10 Notice of Motion (Motion #11)/Affirmation of Krystina Maola, Esq./ Statement of Material Facts/Memorandum of Law in Support/Affirmation of Steven Duryea/Exhibit PJ B              11 Notice of Motion (Motion #12)/Affirmation of Krystina Maola, Esq./ Memorandum of Law in Support     12 Notice of Motion (Motion #9)/Affirmation of Krystina Maola, Esq.³/ Exhibits PJA-PJB/Memorandum of Law           13 Affirmation of Krystina Maola, Esq.in Opposition to Plaintiff’s Motion For Partial Summary Judgment (Motion #5)/Exhibits PJA-PJB/Memorandum of Law in Opposition            14 Notice of Motion (Motion #15)/Affirmation of Phillip A. Oswald, Esq./ Memorandum of Law in Support 15 Statement of Material Facts (Motion #12)        16 Affirmation of Andrew L. Spitz, Esq. (Motion #5)/Memorandum of Law in Reply        17 Affirmation of Andrew L. Spitz, Esq. in Opposition (Motions #9 and 16) And in Reply (Motion #5)/Memorandum of Law in Opposition (Motions #9 and 16) and in Reply (Motion #5)  18 Affirmation of Andrew L. Spitz, Esq. in Opposition (Motions #6 and #17)  19 Letter from Phillip A. Oswald, Esq. withdrawing Motion #15        20 Affirmation of David N. Cost, Esq. in Conditional Opposition (Motion #7) 21 Response to Statement of Material Facts (Motion #11) 22 Affirmation of David N. Cost, Esq. in Opposition (Motion #8)/Exhibits A-B/Response to Statement of Material Facts/Memorandum of Law in Opposition 23 Affirmation of Krystina Maola, Esq. in Opposition to Clough Harbor Cross Motion for Summary Judgment (Motion #6)/Exhiits PJA-PJC/ Memorandum of Law in Opposition/Response to Statement of Material Facts              24 Affirmation of Peter A. Gaudioso, Esq. of Hayward Baker’s Conditional Opposition to Clough Harbor & Associates’ Motion for Summary Judgment (Motion #6)          25 Memorandum of Law in Opposition (Motion #12)/Affirmation of Alexander Britton/Affirmation of Michael W. Oakland, P.E., Ph.D.-Exhibits A/Affirmation of Stephen Pessiki, Ph.D.- Exhibits A-B       26 Memorandum of Law in Opposition (Motion #14)/Affirmation of Alexander Britton/Affirmation of Michael W. Oakland, P.E., Ph.D.-Exhibits A/Affirmation of Richard W. Gibbs, AIC-Exhibit A/Affirmation of Stephen Pessiki, Ph.D.-Exhibit A-B           27 Affirmation of Krystina Maola, Esq. (Motion #7)/Exhibits PJA and PJD/ Response to Statement of Material Facts 28 Affirmation of Krystina Maola, Esq. (Motion #10)/Exhibits PJD/Memorandum of Law in Opposition/Response to Statement of Material Facts       29 Affirmation of Krystina Maola, Esq. in Partial Opposition to Hayward Baker, Inc.’s Motion for Summary Judgment against Plaintiffs (Motion #17)/ Exhibits PJD/Memorandum of Law in Opposition/Response to Statement of Material Facts              30 Affirmation of Krystina Maola, Esq. in Opposition to Hayward Baker Inc.’s Motion for Summary Judgment against City of Port Jervis (Motion #13)/ Exhibit PJD/Memorandum of Law in Opposition/Response to Statement of Material Facts  31 Response to Statement of Material Facts (Motion #10)/Affirmation of Phillip A. Oswald, Esq./Affidavit of Craig Valente/Affidavit of Alex Bekkering/ Memorandum of Law on Behalf of Third-Party Defendant DA Collins Construction Co., Inc. in Opposition to the Motion for Summary Judgment Brought by Defendant/Third-Party Plaintiff Hayward Baker, Inc.   32 Response to Statement of Material Facts (Motion #6)/Affirmation of Phillip A. Oswald in Opposition to CHA’s Cross-Motion for Summary Judgment/Affidavit of Craig Valente/Affidavit of Alex Bekkering/ Memorandum of Law in Opposition to CHA’s Cross Motion for Summary Judgment 33 Affirmation of Phillip A. Oswald, Esq. in Opposition (Motion #11)/Response to Statement of Material Facts/Memorandum of Law in Opposition to Motion for Summary Judgment by Defendant/Third Party Plaintiff City of Port Jervis, LLP  34 Statement of Material Facts (Motion #12)        35 Reply Affirmation of David M. Cost, Esq. (Motion #6) to Plaintiffs’ & City of Port Jervis’s Opposition/Supplemental Affidavit of Kevin V. Gorman, MSCE, PE, CCM/Memorandum of Law in Reply to Plaintiffs’ and City of Port Jervis’s Oppositions/Affirmation of David M. Cost to D.A. Collins’ Opposition/ Memorandum of Law in Reply to D.A. Collins’ Opposition   36 Memorandum of Law in Reply and in Further Support of Motion for Summary Judgment (Motion #13) 37 Memorandum of Law in Reply and in Further Support of Motion for Summary Judgment (Motion #10)/Reply Affirmation of Michael W. Oakland, P.E., Ph.D./ Affidavit of Dennis Pochiari             38 Memorandum of Law in Reply to Plaintiff’s Affirmation in Opposition to Hayward Baker’s Motion for Summary Judgment (Motion #17)       39 Reply Affirmation of Phillip Oswald (Motion #14) /Exhibits A/Memorandum of Law in Reply   40 Affirmation of Phillip A. Oswald in Further Support of D.A. Collins Cross-Motion For Summary Judgment and in Reply to Plaintiffs’ Reply to D.A. Collins’s Cross-Motion for Summary Judgment (Motion #16)/Memorandum of Law in Reply         41 Affirmation of Krystina Maola, Esq. in Reply to Clough Harbour & Associates, LLP Opposition and in Further Support of Motion for Summary Judgment against Clough Harbour (Motion #8)/Memorandum of Law in Reply/Response to Statement of Material Facts      42 Response to City of Port Jervis’s Counterstatement of Material Facts        43 Affirmation of Krystina Maola, Esq. in Reply to Plaintiffs’ Opposition and In Further Support of City of Port Jervis Motion to Renew (Motion #9)/Memorandum of Law in Reply       44 Memorandum of Law in Reply (Motion #12)   45 Affirmation of Krystina Maola, Esq. in Reply to D.A. Collins Construction Co. Opposition to and in Further Support of Motion for Summary Judgment against D.A. Collins Construction Co. (Motion #11)/Memorandum of Law in Reply   46 So-Ordered Stipulation Regarding Record on Summary Judgment Motions for Appellate Proceedings               47 DECISION & ORDER PROCEDURAL HISTORY⁴ Plaintiff commenced the instant action on December 18, 2019, against only Defendant CITY OF PORT JERVIS [hereinafter the CITY] by the filing of a Summons and Verified Complaint seeking to recover damages due to personal injuries sustained by Plaintiff DAVID GEOFF STEWART in an accident that occurred on August 3, 2019, in the vicinity of 291 East Main Street, City of Port Jervis, New York. Defendant CITY joined issue with the filing of a Verified Answer on February 7, 2020. On August 8, 2020, Plaintiff filed a motion seeking summary judgment (Motion #1) pursuant to Civil Practice Law and Rules §3212 on liability against Defendant CITY as the property owner with respect to the cause of action for violation of Labor Law §240. Prior to filing opposition Defendant CITY filed a Third-Party action against HAYWARD BAKER, INC. [hereinafter HBI]. On September 25, 2020, Defendant CITY filed opposition to Plaintiff’s motion and a cross motion (Motion #2) pursuant to Civil Practice Law and Rules §3123(b) to withdraw purported admissions in connection with Plaintiff’s May 3, 2020, Notice to Produce and to grant Defendant CITY summary judgment pursuant to Civil Practice Law and Rules §3212 as to Plaintiff’s negligence and Labor Law §§200, 241(6) and 240(1) claims. On November 19, 2020, the Honorable Catherine M. Bartlett, A.J.S.C. issued a Decision and Order denying Plaintiff’s motion for partial summary judgment under Labor Law §240(1), granting Defendant CITY’s motion to withdraw its admissions to items No. 2 and 3 of Plaintiff’s May 5, 2020 Notice to Admit and granting Defendant CITY’s summary judgment motion to “the limited extent that Plaintiff’s Labor Law §241(6) claim, insofar as it is predicated on a purported violation of 12 NYCRR §23-1.7(a)” and denying the motion otherwise. On November 30, 2020, Third-Party Defendant HBI joined issue as to the Third-Party Complaint and raised sixteen (16) Affirmative Defenses. On December 14, 2020, Defendant CITY filed a Second Third-Party action against Defendant D.A. COLLINS CONSTRUCTION CO. [hereinafter COLLINS]. On December 29, 2020, Third-Party Defendant HBI filed a summons and counterclaim/cross-claim against Second-Third Party Defendant COLLINS with two (2) causes of action: (1) contribution and (2) common law indemnification. On January 27, 2021, Second Third-Party Defendant COLLINS filed a motion to dismiss the crossclaims of Third-Party Defendant HBI (Motion #3). On February 26, 2021, Third-Party Defendant HBI filed a cross motion (Motion #4) pursuant to Civil Practice Law and Rules §3205(b) permitting Defendant HBI to file a verified amended answer with cross claims. On April 19,2021, the Honorable Catherine M. Bartlett, A.J.S.C. issued a Decision and Order granting Second Third-Party Defendant COLLINS’ motion (Motion #3) and dismissing the filing by Defendant HBI entitled “Cross Claim Against Second-Third-Party Defendant D.A. Collins Construction Co., Inc.” and granting Defendant HBI’s motion for leave to file an amended answer (Motion #4). The amended answer annexed to Defendant HBI’s motion was deemed electronically file as of April 19, 2021. On June 29, 2021, Defendant/Third-Party Plaintiff CITY filed a Third Third-Party action against Defendant CLOUGH HARBOUR & ASSOCIATES, LLP [hereinafter CHA]. Third Third-Party Defendant CHA joined issue with the filing of a Verified Answer on August 27, 2021, with cross claims. On February 23, 2022, Plaintiff filed an Amended Summons and Complaint against the CITY, HBI and CHA as Defendants in the primary action. Defendant/Third Third-Party Defendant CHA joined issue by filing a Verified Answer to Plaintiff’s Amended Complaint raising twenty (20) Affirmative Defenses and two (2) cross claims for common law and/or contractual indemnification and contribution. Defendant/Third-Party Plaintiff/Second Third-Party Plaintiffs/Third Third-Party Plaintiff CITY joined issue by filing a Verified Answer to Plaintiff’s Amended Complaint raising thirteen (13) Affirmative Defenses and four (4) cross claims against the co-Defendants. Defendant/Third-Party Defendant HBI joined issue by filing a Verified Answer to Plaintiff’s Amended Complaint raising fourteen (14) Affirmative Defenses and two (2) cross claims against co-Defendants CITY and CHA. Second Third-Party Defendant COLLINS joined issue with the filing of a Verified Answer as to Defendant/Third-Party Plaintiff HBI’s Third-Party Complaint raising twenty-five (25) Affirmative Defenses and five (5) counterclaims. On April 21, 2022⁵ Defendant/Third-Party Defendant HBI filed a “Corrected” “Second Third-Party”⁶ action against “Third-Party” Defendant COLLINS.⁷ On May 17, 2022, Third-Party Defendant COLLINS joined issued as to the Fourth Third-Party Complaint by filing a Verified Answer raising twenty-five (25) Affirmative Defenses and five (5) counterclaims.⁸ On October 12, 2022, Second Third-Party Defendant COLLINS filed an Amended Verified Answer to the Fourth Third-Party Complaint.⁹ On March 17, 2023, Plaintiff filed a Note of Issue indicating all discovery had been completed and that the matter was ready for trial on all issues before a jury. Subsequently, on April 3, 2023, counsel for Defendant/Second Third-Party Defendant/Fourth Third-Party Plaintiff HBI sent a letter to the Court regarding a joint stipulation entered into by the parties concerning the summary judgment motions to be filed. The Stipulation was filed to be “So Ordered” and sets forth the procedural history and “certain stipulated facts” along with the examination before trial [hereinafter EBT] transcripts and all of the exhibits to the EBTs. See NYSCEF Doc. No. 212. The Stipulation was “So Ordered” by the undersigned on April 13, 2023. The Stipulation includes Exhibits A — CC as agreed upon EBTs to be considered by the undersigned as part of all of the motions for summary judgment filed by the parties. Further, the Stipulation provides that the parties agreed to present to the Court as exhibits to the aforementioned EBTS, Exhibit 1-190. The parties by their counsel all provided oral argument as to the submitted motions on May 17, 2024. This Court obtained a copy of the transcript of the aforementioned oral argument and the Court will also consider the arguments raised in Court as part of the pending summary judgment motions. FACTS Facts According to the Plaintiff (Motion #5)¹⁰ At the time of the accident the Plaintiff was working on a construction project to replace the Tri-State Bridge which included the complete removal and replacement of two (2) box culverts and a portion of the highway installation of a new drainage system, and curb reconstruction. As part of the project the Defendant CITY retained Second Third-Party Defendant COLLINS as the general contractor for this project. COLLINS was also the Plaintiff’s employer at the time of the accident. According to Plaintiff at the time of the accident workers from COLLINS, who included the Plaintiff, were constructing a box culvert where Clove Brook runs under East Main Street in the City of Port Jervis, New York. Plaintiff states that a large pit had been excavated around the culvert and within the area that was excavated there were two (2) rows each with thirteen (13) vertical micropile columns about five (5) feet apart from each other. The Plaintiff states that Defendant COLLINS had subcontracted the construction and installation of the micropiles to Defendant HBI. Plaintiff also states that Defendant CITY hired CHA as project engineer and the owner’s representative. The Plaintiff states that when the accident happened the Plaintiff and other workers from Defendant COLLINS were cutting the micropile columns as part of the construction and replacement process. According to the Plaintiff each micropile that was being cut was about thirteen (13) feet tall, approximately ten (10) inches in diameter and weighed about sixteen hundred to seventeen hundred (1600-1700) pounds. Further, Plaintiff states that the micropile was supposed to have a steel reinforcing rod [hereinafter rebar] embedded in the middle of its interior grout and the rebar was to extend about nine (9) inches above the cutoff elevation. Plaintiff states that the purpose of the placement of the rebar was to “provide stability to the column.”¹¹ Plaintiff states the process by which the micropile columns were being cut by Defendant COLLINS’ workers was formulated by COLLINS. According to Plaintiff the procedure included trimming the micropiles so that only three-quarters of the circumference of the outer casing was cut and then the interior grout was chipped to expose the rebar. Further, Plaintiff states that the remaining circumference of the exterior casing was not to be severed until after a sling had been attached to the micropile. At the time of the accident, Plaintiff states he was working as a jobsite superintendent for Defendant COLLINS at the subject location and was cutting a micropile in the excavation pit while another worker from Defendant COLLINS was cutting the next column over from where the Plaintiff was located. The Plaintiff states that the column next to him being cut by his co-worker was missing rebar in its interior and the worker “violated Collins’ prescribed procedure by cutting the entire circumference of the outer casing without first attaching a nylon sling connected to a rigging machine to prevent the completely severed column from falling.” As a result of the actions, Plaintiff states that the unsecured sixteen hundred to seventeen hundred (1600-1700) pound micropile fell and struck Plaintiff injuring him. MOTIONS PENDING BEFORE THE UNDERSIGNED Summary Judgment Standard The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case and to warrant a court to direct judgment in its favor, as a matter of law. See Civil Practice Law and Rules §3212(b); See also Giuffrida v. Citibank Corp., et al, 100 NY2d 72 (2003), citing Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980)]. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985). Motion #5 — Plaintiff’s Motion for Summary Judgment with Respect to the Cause of Action for a Violation of Labor Law §240 against Defendant CITY OF PORT JERVIS Labor Law §240(1)-Plaintiff’s Motion for Summary Judgment (Motion #5) The Court first considers the Labor Law §240(1) claim by Plaintiff against Defendant CITY as alleged in the First and Second Causes of Action of the Amended Complaint filed on February 23, 2022. See NYSCEF Doc. No. 170. Labor Law §240(1) requires that all contractors and owners “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, place and operated as to give proper protection to a person so employed.” Section 240(1) also imposes absolute liability where the failure to provide such protection is a proximate cause of a worker’s injury.” Fabrizi v. 1095 Ave. of Americas, LLC, 22 NY3d 658, 662 (2014). Further, “[t]o recover, the plaintiff must have been engaged in a covered activity — ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.’” Soto v. J. Crew Inc., 21 NY3d 562, 566 (2013) quoting Labor Law §240(1). Additionally, the Court of Appeals noted that the plaintiff “must have suffered an injury as ‘the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” Soto v. J. Crew Inc., 21 NY3d at 566 quoting Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603 (2009). Labor Law §240(1) is applicable to both “falling worker” and “falling object cases.” Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 267 (2001) Labor Law §240(1) is to be “construed as liberally as may be for the accomplishment of the purpose for which it was framed.” Quigley v. Thatcher, 207 NY 66, 68 (1912). The negligence of the injured worker is “of no consequence.” Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513 (1991) Further, the statute “should be construed with a commonsense approach to the realities of the workplace at issue.” Salazar v. Novalez Contr. Corp., 18 NY3d 134, 140 (2011). The intent of the legislature in enacting §240(1) was to protect the “workers by placing ‘ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor’ (1969 NY Legis Ann, at 407), instead of on workers, who ‘are scarcely in a position to protect themselves from accident’ Koenig v. Patrick Constr. Co., 298 NY 313, 318 (1948).” Rocovich v. Consolidated Edison Co., 78 NY2d at 513 quoting Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 520 (1985). Therefore, Labor Law §240(1) “imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-relation risks in circumstances specified by the statute.” Soto v. J. Crew Inc., 21 NY3d at 566. According to the Court of Appeals since the duty under §240(1) is nondelegable it results in an owner being liable for a violation of §240(1) even though the job was performed by an independent contractor over which the owner exercised no supervision or control. See Rocovich v. Consolidated Edison Co., 78 NY2d at 513 citing Haimes v. New York Tel. Co., 46 NY2d 132, 136-137 (1978). The Court of Appeals opined in Rocovich that “a violation of the statute cannot ‘establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury.” Rocovich v. Consolidated Edison Co., 78 NY2d at 513 quoting DeHaen v. Rockwood Sprinkler Co., 258 NY 350, 353 (1932). Absolute liability is only imposed after a violation of §240(1) has been established. See Narducci v. Mangasset Bay Associates, 96 NY2d at 267. Therefore, the threshold determination is whether the occupational hazard that caused a plaintiff’s injury is of the type that the Legislature intended should warrant the absolute protection that the statute affords. See Rocovich v. Consolidated Edison Co., 78 NY2d at 513. Liability under Labor Law §240(1) arises only when “the risk of injury from an elevation-related hazard was foreseeable.” Shipkoski v. Watch Case Factory Assoc., 292 AD2d 587, 588 (2d Dept 2002). Labor Law §240(1) and Falling Objects — Plaintiff’s Motion for Summary Judgment (Motion #5) Labor Law §240(1) is violated when the accident is caused by the force of gravity upon a falling object that fell “while being hoisted or secured.” The statute is also violated “when an object that is improperly hoisted or inadequately secured falls.” Gallegos v. Bridge Land Vestry, LLC, 188 AD3d 566 (1st Dept 2020). As to the application of Labor Law §240(1) to “falling object” cases the Court of Appeals stated in Fabrizi “[i]n order to prevail on summary judgment in a…’ falling object’ case, the injured worker must demonstrate the existence of a hazard contemplated under that statute ‘and the failure to use, or the inadequacy if, a safety device of the kind enumerated therein.” Fabrizi v. 1095 Ave. of Americas, LLC, 22 NY3d at 662 quoting Narducci v. Manhasset Bay Assoc., 96 NY2d at 267. “Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being ‘hoisted or secured’ [Narducci, 96 NY2d at 268], or ‘required securing for the purposes of the undertaking” [Outar v. City of New York, 5 NY3d 731, 732 (2005)." Fabrizi, 22 NY3d at 662-663. Section 240(1) does not automatically apply to a situation in which a falling object injures a worker. See Id. "Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law §240(1)." Narducci v. Manhasset Bay Associates, 96 NY2d at 267. Rather, "[a] plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute.” Narducci v. Manhasset Bay Associates, 96 NY2d at 268; Keaney v. City of New York, 24 AD3d 615, 617 (2d Dept 2005); Turczynski v. City of New York, 17 AD3d 450 (2d Dept 2005); Sierputowski v. City of New York, 14 AD3d 606, 607 (2d Dept 2005). Here, although the micropile that struck the Plaintiff was not being hoisted or secured at the time the COLLINS worker was trimming the excess above the elevation cut off, based upon the procedure developed by COLLINS as to how the trimming was to be conducted the micropile required securing from a sling attached to an excavator before the entire circumference of the micropile was cut during the trimming process. Thus, Labor Law §240(1) applies in this action. However, the arguments made by Plaintiff that the rebar embedded in the micropiles was also considered safety device to ensure stability of the micropile during the trimming process are not grounded in any admissible evidence, either documentary or deposition. As delineated by COLLINS’ Project Manager Craig Valente and their Field Engineer Alex Bekkering in their EBT testimony, there was no design provided by STOPEN, the designer of the micropile, that required a specific amount of rebar to be embedded in the micropile above the elevation. Instead the testimony from Casey Bunce, HBI’s Field Engineer, and the design from STOPEN demonstrated that HBI in constructing the micropiles needed to ensure sufficient rebar was imbedded in the micropiles to ensure the pile could hold the required load and displace the weight into the ground in which the pile was placed as required by the NYDOT Special Specifications. The testimony and admissible evidence provided by the parties has not demonstrated that the alleged “absence” of the nine (9) inches of rebar above the elevation cut off was considered a securing device of the kind enumerated under §240(1). Moreover, based upon the EBT testimony of Valente, Bekkering and Bunce and the designs of the micropile there is no evidence that any of the COLLINS workers were relying on any amount of rebar, or even the alleged nine (9) inches of excess rebar, to be embedded in the micropile above the elevation for the purpose of securing the pile during the trimming process. Based upon the testimony and evidence presented the Court finds that Labor Law §240(1) was a falling object, as it fell with the force of gravity into the excavation pit where the Plaintiff was working and himself severing another micropile. The evidence presented demonstrates that the subject micropile did not fall while it was being hoisted or secured, and instead it fell while it was being “trimmed” at the time during the process in which the micropile fell it was not secured by a sling, a securing device enumerated in §240(1). In fact, as demonstrated by EBT testimony of the COLLINS employee Scott Volino, CHA employee Barry Johnson the micropile fell during the trimming process after an employee of Defendant COLLINS severed the entire circumference of the micropile instead of following the procedure requiring severance to about seventy-five percent (75%) and then securing the micropile with a sling attached to an excavator before cutting the final twenty-five (25%) of the micropile circumference. The evidence presented by the Plaintiff has demonstrated that the absence of the sling when the COLLINS employee was chipping at the grout after cutting the casing circumference caused the micropile to fall into the excavation pit where Plaintiff was working demonstrating that the violation of Labor Law §240(1) was the proximate cause of the subject accident. Plaintiff has demonstrated both elements of a cause of action under Labor Law §240(1); (1) a statutory violation and (2) that the violation was the proximate cause of the accident. As to the first element, the falling of the micropile was a hazard that is contemplated to be the subject of Labor Law §240(1) and Defendant COLLINS was aware of this as noted by their own trimming process requiring a sling to be placed on the pile before it was fully severed to ensure it would not be a falling risk. The procedure itself contemplated the use of an enumerated safety device as set forth in §240(1) making the risk of injury from a falling micropile during the trimming process foreseeable. Therefore, the type of hazard that Defendant COLLINS sought to prevent with the sling being attached to the pile during the final stages of the cutting process is the type that the Legislature intended should warrant the absolute protection that the statute affords. Turning to the second element, Plaintiff has demonstrated through the expert affidavit of John P. Coniglio, CSP, CHMM, CSC that in his expert opinion that cutting the micropile without a sling or a hook attached to it created a hazardous condition in which the micropile was a falling risk and the missing sling was the proximate cause for the subject micropile falling on the Plaintiff and causing his injuries. The Court finds that the Plaintiff in their motion (Motion #5) has met their prima facie entitlement as to judgment as a matter of law as to Defendant CITY. There is no dispute that the instant accident occurred based upon an object falling from a location above the Plaintiff and by everyone’s admission the micropile that fell was not secured by a sling or any other safety device enumerated in §240(1) as it should have been per COLLINS’ safety protocol. Further, there is also no dispute based upon the contracts between Defendant CITY and Defendants COLLINS and CHA that the CITY is the owner of the property. Therefore, as the owner of the property on which the subject accident occurred Defendant CITY is strictly liable for any actions of Defendants CHA and COLLINS which occurred in violation of Labor Law §240(1). As such, Plaintiff’s motion seeking summary judgment against Defendant CITY (Motion #5) solely for a violation Labor Law §240(1) is granted. Defendant CHA’s Cross-Motion for Summary Judgment (Motion #6) Defendant CHA seeks summary judgment dismissing the cross-claims by Defendant HBI and Second Third-Party Defendant COLLINS and all third-party claims/cross-claims by Defendant/Third-Party Plaintiff CITY. CHA contends that the statutory nondelegable duties apply only to contractors and owners and their agents. Specifically, Defendant CHA seeks summary judgment as to Plaintiff’s claims against them pursuant to Labor Law §§240(1) and 241(6) based upon the fact that the statutes’ nondelegable duties do not apply to CHA as the engineer. In the same motion Defendant CHA seeks summary judgment pursuant to Civil Practice Law and Rules §3212 on their cross-claims for contractual and/or common law indemnification against Second Third-Party Defendant COLLINS. Labor Law §§240(1), 241(6) and 200 “Labor Law §241(6) places on owners, contractors, and their agents a nondelegable duty to keep areas in which construction work is being performed safe for those employed at such places.” Everitt v. Nozkowski, 285 AD2d 442, 443 (2d Dept 2001). The express terms of Labor Law §240(1) and §241(6) state that the nondelegable duties imposed apply only to “contractors and owners and their agents.” The Appellate Division, Second Department has stated that “[a] party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured.” Samaroo v. Patmos Fifth Real Estate, Inc., 102 AD3d 944, 946 (2d Dept 2013) quoting Delahaye v. Saint Anns School, 40 AD3d 679, 683 (2d Dept 2007) quoting Linkowski v. City of New York, 22 AD3d 971, 974-975 (2d Dept 2005); Williams v. Dover Home Improvement, Inc., 276 AD2d 626 (2d Dept 2000). Further, “[t]o impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition.” Samaroo v. Patmos Fifth Real Estate, Inc., 102 AD3d at 946 quoting Delahaye v. Saint Anns School, 40 AD3d at 638. The determinative factor of “a defendant’s potential liability is….whether it had the right to exercise control over the work, not whether it actually exercised that right.” Samaroo v. Patmos Fifth Real Estate, Inc., 102 AD3d at 946 citing Williams v. Dover Home Improvement, 276 AD2d at 626; Johnsen v. City of New York, 149 AD3d 822 (2d Dept 2017). Similarly, Labor Law §200 is a codification of “landowners’ and general contractors’ common-law duty to maintain a safe workplace.” Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 (1993); See Cambizaca v. New York City Transit Authority, 57 AD3d 701 (2d Dept 2008). “To be held liable under Labor Law §200 and for common-law negligence arising from the manner in which work is performed at a work site, a general contractor must have actually exercised supervision and control over the work performed at the site.” McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 41 AD3d 796, 798 (2d Dept 2007). Specifically, the Appellate Division, Second Department has recently stated that “[g]eneral supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law §200.” Dos Santos v. STV Engineers, Inc., 8 AD3d 223, 224 (2d Dept 2004). Further, the Court stated that “[t]o impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition.” Id. citing Russin v. Picciano & Son, 54 NY2d 311, 318 (1981). Additionally, the “retention of the right to generally supervise the work, to stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations, does not amount to the [authority to] supervise and control…necessary to impose liability on an owner or general contractor pursuant to Labor Law §200.” Cambizaca v. New York City Transit Authority, 57 AD3d 701, 702 (2d Dept 2008) quoting Dennis v. City of New York, 304 AD2d 611, 612 (2d Dept 2003). Turning first to CHA’s motion for summary judgment as to Plaintiff’s claims against CHA. As per the Amended Complaint filed by Plaintiff on February 23,2022, the Plaintiff alleges in the seventh (7th) Cause of Action CHA “was a sub-contractor of a certain demolition, excavation and construction project” at the subject location, that prior to August 3, 2019 COLLINS entered into a contract/agreement with CHA “to perform inspection, direction, supervision, and monitoring of the demolition, excavation and construction work being performed,” at the subject location, “which included worker safety.” See NYSCEF Doc. No. 170,

88-90. Plaintiff also alleges the reverse, that CHA entered into a contract/agreement with COLLINS. See NYSCEF Doc. No. 170,