The opinion of the court was delivered by: Barbara S. Jones, District Judge
Plaintiff Christian Ambrosi, an Ecuadorian citizen,*fn1 brings this diversity action against Defendants 1085 Park Avenue LLC, Rudin Management Company (individually "1085" and "Rudin," respectively; collectively "Movants"), and Rockledge Scaffold Corporation ("Rockledge"), all New York businesses, for violations of New York State Labor Law sections 240(1), 241(6), 200, and common law negligence. Included among the damages Plaintiff seeks are future lost wages. Defendants Rudin and 1085 have made cross-claims against Rockledge for contribution, common law and contractual indemnity, and breach of contract. Rockledge has set forth cross-claims against 1085 and Rudin for contribution and common-law indemnity. Furthermore, Rudin and 1085, as third-party plaintiffs, bring cross-claims against third-party defendant AM & G Waterproofing, LLC ("AM & G") for contribution, contractual indemnity, and breach of contract.
Presently before the Court is the motion of Defendants 1085 and Rudin for summary judgment pursuant to Federal Rule of Civil Procedure 56. Movants seek summary judgment granting their contractual indemnification claim against AM & G and dismissing Plaintiff's claims under Labor Law sections 240(1), 241(6), 200, as well as his negligence claim. Furthermore, should Plaintiff's substantive claims survive summary judgment, Movants ask that the Court grant them summary judgment dismissing his claim for lost wages. For the reasons set forth below, 1085 and Rudin's motion is GRANTED with respect to their contractual indemnification against AM & G, GRANTED with respect to Plaintiff's negligence and Labor Law § 200 claims, DENIED with respect to Plaintiff's and Labor Law sections 240(1) and 241(6) claims, and GRANTED with respect to Plaintiff's claim for lost wages.*fn2
On September 13, 2006, Plaintiff-who was at that time an employee of AM & G-suffered severe and permanent injuries when he fell from a sidewalk bridge, the surrounding enclosure of which gave way. Movants' Rule 56.1 Stmt. ¶ 1; Pl.'s Rule 56.1 Stmt, ¶ 1; see Pl.'s Affirmation in Opp'n Ex. 11 at 3. AM & G had contracted with Rockledge to build this sidewalk bridge-a twelve-foot high temporary platform above the sidewalk serving a residential apartment complex at 1085 Park Avenue in Manhattan. Movants' Rule 56 .1 Stmt. ¶ 4; Pl.'s Rule 56.1 Stmt. ¶ 4; Pl.'s Affirmation in Opp'n Ex. 1 at 1-2; Harrington Dep. 13:3-11, 41:14- 19, Apr. 9, 2007. Defendant 1085 was the corporate owner of the apartment complex, and Rudin, as 1085's agent, had contracted with AM & G for brick restoration and waterproofing work near the roof of the building. Movants' Rule 56.1 Stmt. ¶¶ 2, 3; Pl.'s Rule 56.1 Stmt. ¶¶ 2, 3; Hargadon Dep. 12:20-13:2, Mar. 29, 2007.
At least one purpose of the sidewalk bridge, also called a "sidewalk shed," was to protect pedestrians from falling objects. Movants' Rule 56.1 Stmt. ¶ 24; Pl.'s Rule 56.1 Stmt. ¶ 24. At the time of his fall, however, Plaintiff was atop the sidewalk bridge, using it as a staging area for materials as per instructions from AM & G employees. Movants' Rule 56.1 Stmt. ¶¶ 6-10, 19-20; Pl.'s Rule 56.1 Stmt. ¶¶ 6-10, 19-20. Using a rope and a bucket, Plaintiff and his co-workers had manually hoisted bricks up from the sidewalk to the deck of the sidewalk bridge. Movants' Rule 56.1 Stmt. ¶¶ 9-10; Pl.'s Rule 56.1 Stmt. ¶¶ 9-10. Plaintiff's co-workers would tie one end of the rope to the ground-level bucket filled with about 10 bricks, and then sling the rope over the "parapet wall," i.e., the plywood enclosure surrounding the sidewalk bridge. Movants' Rule 56.1 Stmt. ¶¶ 9-10; Pl.'s Rule 56.1 Stmt. ¶¶ 9-10; Ambrosi Dep. 52:18-53:11, 121:9-121:23, Mar. 21, 2007; Leonard Dep. 22:15-24:12, 80:7-81:3, Nov. 20, 2006. Plaintiff, along with other co- workers atop the sidewalk bridge, would pull the other end of the rope until the bucket was up to the sidewalk bridge. Movants' Rule 56.1 Stmt. ¶ 10; Pl.'s Rule 56.1 Stmt. ¶ 10. The AM & G workers used this technique successfully to lift about 1,500 bricks onto the sidewalk bridge. Leonard Dep. 23:21-22.
Once all the bricks were atop the sidewalk bridge, the workers attempted to use the same manual hoisting technique to lift a handcart onto the sidewalk bridge. Movants' Rule 56.1 Stmt, ¶¶ 7-8; Pl.'s Rule 56.1 Stmt. ¶¶ 7-8; Leonard Dep. 24:18-25:10; Ambrosi Dep. 60:19-61:12. However, as Plaintiff was pulling the rope, the wall gave way while the handcart was suspended in mid-air, and Plaintiff fell to the ground below. Movants' Rule 56.1 Stmt. ¶¶ 6-7; Pl.'s Rule 56.1 Stmt. ¶¶ 6-7; Leonard Dep. 25:3- 26:14; Ambrosi Dep. 65:14-67:13. Ropes and harnesses were not available at the worksite to anchor the workers. Pl.'s Rule 56.1 Stmt. ¶ 53; Vogler Dep. 21:6-19, 59:14-25, Apr. 10, 2007; Ambrosi Dep. 120:3-13; Leonard Dep. 76:16-24; Hargadon Dep. 40:8-22.
I. Standard of Review on Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir.1995). The substantive law governing the case will identify those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994).
II. New York Labor Law Section 240(1)
New York's Scaffold Law, as set forth in New York Labor Law section 240(1) entitled "Scaffolding and other devices for use of employees," reads:
All contractors and owners and their agents ... in the ... repairing,
altering, ... 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, placed and operated as to give proper protection to a
person so employed.
N.Y. Lab. Law § 240(1) (McKinney 2008). Since its enactment, New York courts have read the Scaffold law liberally to comport with the legislative mandate: placing "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor." Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 513 (1991) (quoting 1969 N.Y. Legis. Ann., at 407) (internal quotation marks omitted).
Where construction workers are at risk of falling from an elevation while performing their work, section 240(1) places an absolute, non-delegable duty on owners to protect workers with appropriate safety devices. See id. at 513-14. The liability imposed is "absolute" in the sense that a plaintiff's comparative fault will not reduce his award, and liability does not require that an owner or general contractor exercise any control or supervision over the worksite, or have notice of an unsafe condition. See Pollack v. Safeway Steel Prods., Inc., 457 F.Supp.2d 444, 450-51 (S.D.N.Y.2006); Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 287-88 (2003). However, the statute does not impose liability without fault. See Blake, 1 N.Y.3d at 289-90. Liability requires that a culpable defendant's violation of the statute be a proximate cause of the plaintiff's injury. Id. at 289.
A. Section 240(1) applies.
Rudin and 1085 argue that, unlike the devices listed in the statute, the sidewalk bridge here was never intended to protect workers from falling. Rather, it was "designed and installed for the purpose of protecting pedestrians." Morfopoulos Aff. ¶ 5; see Harrington Dep. 21:11-22:6. From this, Movants assert that the sidewalk bridge is distinct from the devices listed in the statute, and ought not to be counted among them.
However, the prerequisite for application of section 240(1) is that a construction worker face a risk of falling from a significant height in performing his work. See Rocovich, 78 N.Y.2d at 514 ("[Section 240 contemplates] risks related to elevation differentials."). Here, there is no dispute that the Plaintiff's task was to hoist bricks and a handcart onto the twelve-foot high sidewalk bridge, which was used as a staging area. Thus, Plaintiff's "particular ... task create[d] an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against." Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 681 (2007).
Moreover, the Appellate Division has applied section 240(1) to sidewalk bridges on several occasions. See, e.g., Jablonski v. Everest Constr. & Trade Corp., 693 N.Y.S.2d 229, 229 (App.Div.1999) (per curiam). In Jablonski, the Appellate Division characterized the sidewalk bridge as a "form" of scaffolding for purposes of section 240(1). Id. Sheltering pedestrians and protecting workers are not mutually exclusive. See id. This is especially true here, where Rockledge designed the sidewalk bridge to support material storage and attending workers. Pl.'s Affirmation Opp'n ¶ 3; see Movants' Affirmation Ex. V (mechanical drawing of "heavy duty" sidewalk bridge capable of withstanding 300 pounds per square foot). Thus, whether the sidewalk bridge is called "scaffolding" or one of the "other devices" mentioned in the statute, Movants had an absolute duty under section 240(1) to ensure the sidewalk bridge's adequacy as a safety device.*fn3
B. A question of fact exists as to whether Movants violated the statute, precluding summary judgment.
Movants next argue that there were no shortcomings in the sidewalk bridge's (or its parapet wall's) construction of the sort that New York courts recognize as violating Labor Law section 240(1). Relying on Morales v. Spring Scaffolding, Inc., 802 N.Y.S.2d 41 (App.Div.2005), Movants assert that a violation requires a finding of improper materials. Movants' Mem. L. at 6. However, in that case, the court did not find that violations must be predicated on improper materials. Indeed, that court granted the plaintiff's motion for summary judgment on his section 240(1) claim, citing the parapet wall's deficient height and use of wooden framing thinner than that specified in its design plans. See Morales, 802 N.Y.S .2d at 45-46. The Morales court never characterized either violation as a use of improper materials, or even used that phrase. See id.
Instead, there are two ways in which an elevation device may fail to provide proper protection, and thus violate the statute. First, a required safety device may be absent from the worksite entirely. See Blake, 1 N.Y.3d at 289. Or, the device may "prove[ ] inadequate to shield the injured worker from harm" occasioned by a fall. Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 (1993); see Gordon v. E. Ry. Supply, Inc., 82 N.Y.2d 555, 561 (1993). Here, Plaintiff has adduced evidence to show that the parapet wall was only twenty-nine inches, contravening the forty-two inch requirement set forth in New York's Industrial Code. See, e.g ., Rubinstein Aff. ¶¶ 5-6; Pl.'s Affirmation Opp'n Ex. 6; see also New York Industrial Code, N.Y. Comp.Codes R. & Regs. tit. 12, § 23-1.18(b)(2) (2008). Plaintiff has also pointed to evidence supporting his assertion that the wall was inadequately braced, or not braced at all, contrary to New York City Building Code requirements.*fn4 See Vogler Dep. 48:16-49:5, 106:14- 107:10; Pl.'s Affirmation Opp'n Ex. 6; Rubinstein Aff. ¶¶ 5-6; see also Building Code, N.Y. City, N.Y., Code § 27-1021(b)(1) (2004). Finally, Plaintiff directs the Court to evidence bearing on his claim that no other safety devices that would have prevented Plaintiff's fall-such as ropes or harnesses-were present at Plaintiff's worksite at the time of his injury. See Ambrosi Dep. 120:3-9; Leonard Dep. 76:16-24.
In their submissions, Movants dispute nearly all of those facts that Plaintiff identified as giving rise to statutory violations. See Morfopoulos Aff. ¶ 3 ("[T]he sidewalk bridge ... was erected in accordance with all applicable codes, laws, and standards, including the New York City Administrative Code and New York City Buildings Code."). However, these issues are for a jury. Plaintiff's evidence has introduced genuine issues of material ...