In this personal injury action alleging violations of Labor Law §§ 200, 240 (1) and 241 (6), plaintiff JF was allegedly injured on April 2, 2009 when he was struck by a conduit or pipe while working as a laborer on the South Ferry Subway Renovation Project. JF was allegedly paralyzed as a result of the construction accident. JF moves, pursuant to CPLR 3212, for an order: (1) granting partial summary judgment on the issue of liability under Labor Law §§ 240 (1) and 241 (6) as against defendants City of New York (City), MTA/New York City Transit Authority (NYCTA), Manhattan and Bronx Surface Transit Authority (MABSTOA), Metropolitan Transportation Authority (MTA) (together, the Authorities), and MTA Capital Construction Company (MTACC) (collectively, the MTA defendants); and (2) setting this matter down for an immediate trial on damages.
Defendant/second third-party plaintiff FS Electric Corp. (FS) moves for an order: (1) dismissing the complaint as against it; (2) converting the cross claims of the MTA defendants into third-party claims; (3) dismissing the cross claims of third-party defendant JCI as against it; (4) granting it conditional summary judgment on its cross claim for common-law indemnification against third-party defendant JCI; (5) dismissing all claims against second third-party defendant NEI and deleting said second third-party defendant from the caption pursuant to a stipulation of discontinuance executed by all counsel; and (6) amending the caption accordingly.
Defendant FS cross-moves, pursuant to CPLR 3212, for conditional contractual indemnification over and against second third-party defendant EEI.
Defendants/third-party plaintiffs MTA defendants move, pursuant to CPLR 3212, for an order: (1) granting them summary judgment on their contractual indemnification claim against JCI; (2) granting them summary judgment on their common-law indemnification claim against JCI; and (3) dismissing the complaint as against defendant MABSTOA.
The complaint alleges that, on April 2, 2009, JF, a laborer employed by JCI, was injured while clearing construction debris from an underground ventilation facility known as the “fan plant” at the South Ferry subway station.
JF testified that, on the date of his injury, his foreman, RP, instructed him to report to the fan plant and clean it out. The fan plant was an underground facility located approximately 30 feet below street level. Workers could access the fan plant via a set of stairs leading from street level to an underground hallway area. JF and his co-worker, MSM, proceeded to the hallway area in the fan plant. In the hallway, JF observed various materials and debris, including aluminum pipes of various lengths and diameters used as electrical conduit. JF carried all of the garbage up the stairs to the street, while his co-worker dragged all the pipes together in the hallway to get them ready for removal from the fan plant. RP came to the fan plant after JF had removed the garbage, observed the pipes still lying in the hallway, and told JF and MSM that the pipes had to come out as well. RP brought a JCI truck driver, CT, to the fan plant. RP told JF to tie a rope to the pipes one at a time and to tie the other end of the rope to a truck, so that the pipes would be pulled up with the rope through the hatch.1 JF testified that the workers had removed eight pipes prior to his accident. JF stated that he was struck by one of the pipes that they were removing from the fan plant; when he stepped away to make sure everything was clear, all he knew, all of a sudden, he was on the floor. JF testified that he was not given any ties, slings, chokers, fasteners or similar devices to secure the pipes.
MSM, JF’s co-worker, testified that he stood at street level to signal the truck driver and receive the pipes at the hatchway. JF rigged the rope to the pipes, signaled to MSM, who then signaled to JCI’s truck driver to move the truck. Four or five pipes were successfully removed from the fan plant using this method. MSM saw the pipe fall and hit JF. The pipe was about five or 10 feet from the top when it fell. MSM did not know how the pipe dislodged from the rope.
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