The opinion of the court was delivered by: William C.CONNER, Senior D.J.
Plaintiff Emil Pollack brings this action against defendants Safeway Steel Products, Inc., ("Safeway"), March Associates ("March"), Orangeburg Holding, LLC ("Orangeburg") and Lowe's Home Centers, Inc. ("Lowe's") (collectively, the "defendants") for violations of New York State Labor Law §§ 240(1), 241(6) and 200, common law negligence and strict products liability.*fn1 In addition, both Lowe's and Safeway brought third-party actions against CMC Concrete Masonry ("CMC") for contribution and indemnification. Plaintiff moves for summary judgment pursuant to FED. R. CIV. P. 56 against March, Orangeburg and Lowe's on the claims under §§ 240(1) and 241(6).
March, Orangeburg and Lowe's move for summary judgment on the claims under the Labor Law and common law negligence. Safeway moves for summary judgment on all claims under the Labor Law and common law negligence. March also seeks contractual and common law indemnification against CMC. For the reasons stated herein, plaintiff's motion for summary judgment on the claims under § 240(1) and § 241(6) against March, Lowe's and Orangeburg is denied. The motion of March, Lowe's and Orangeburg for summary judgment is denied. The motion of Safeway for summary judgment is granted with respect to the § 200 claim but denied as to the claims under §§ 240(1) and 241(6). March may seek claims for contractual and common law indemnification; however, to the extent it seeks summary judgment on these claims, this motion is denied.
The basic underlying facts are uncontroverted. There are, however, additional facts regarding the responsibilities of the parties that are highly disputed. These facts will be addressed where appropriate. This case involves an accident that occurred when plaintiff fell from scaffolding while constructing a Lowe's store located in Orangeburg, New York (the "construction site"). (Pollack Dep. at 8, 10, 32-34.) March was the general contractor on the construction site. (Sette Dep. at 6.) CMC subcontracted to perform certain concrete masonry work such as erecting block walls. (Caravella Dep. at 7.) Apparently, Orangeburg owned the land on which the Lowe's store was being built, while Lowe's either owned or was the prospective tenant and developer of the store under construction. (Def. Safeway Rule 56.1 Stmt. ¶ 4; Pl. Rule 56.1 Stmt. ¶ 4.)
Plaintiff, a union laborer, was working as a mason tender for CMC. (Pollack Dep. at 6-7.) As a mason tender, Pollack would supply masons building the wall with "block and cement and mud." (Id. at 10.) As the wall was being built, scaffolding was erected to allow workers access to greater heights. (Id. at 13.) Safeway provided CMC with scaffolding for the construction site. (Caravella Dep. at 8.) Apparently, there was no written agreement between Safeway and CMC for the scaffolding per se. (Id. at 8-10.) However, there were several invoices provided by Safeway to CMC outlining the rental terms for the scaffolds. (Def. March Mot. Summ. J., Ex. A.)
On September 25, 2002, plaintiff was working on scaffolding approximately fourteen feet high situated alongside a partially erected back wall. (Pollack Dep. at 16-17, 19, 21.) Plaintiff was working where two completed levels of scaffolding were erected: each approximately six feet high, resting on two-foot high "jack stands." (Id. at 19.) A third level was being assembled that had not been completely filled with planks. (Id. at 23.) Each level has planks, approximately twelve inches wide, that the workers stand on, with six planks covering the area between the building and the outer edge of the scaffold. (Id. at 23-24.) In addition, each frame has metal cross braces and is equipped with mid railings (or "safety railing"), which run on the side opposite to the wall being built. (Id. at 24, 25, 29.) There was a one-by-two pine mid rail where plaintiff was working on the date of the accident. (Id. at 25-26, 28.) The workers would construct a section of the wall and, once completed, move the frame to complete the next section of wall. (Id. at 24.)
During the afternoon of September 25, 2002, plaintiff was on the scaffolding distributing cement from a large mortar tub. (Id. at 31-32.) While facing the building, plaintiff grabbed a shovel of cement to distribute when he lost his balance. He leaned on the safety railing, which gave way, causing him to fall. (Id. at 32, 34.) Although there were others present at the site, there were no eye witnesses to the accident. (Kolasa Dep. at 12; Sette Dep. at 13.)
I. Motion for Summary Judgment Standard
Summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c)); Anderson v. Liberty Lobby, 477 U.S. 242, 247-50 (1986). A fact is material only if, based on that fact, a reasonable jury could find in favor of the nonmoving party. Anderson, 477 U.S. at 248. The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See Anderson, 477 U.S. at 255. To defeat summary judgment, the non-movant must go beyond the pleadings and "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court's role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994).
II. New York Labor Law § 240(1)
Section 240(1) of the New York Labor Law, commonly referred to as the scaffold law, provides protection for construction workers who are injured while working in elevated locations. See Wojcik v. 42nd St. Dev. Project, 386 F. Supp. 2d 442, 450 (S.D.N.Y. 2005). In pertinent part, this statute provides:
All contractors and owners and their agents, . . . 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 ...