Steven Bordonaro v. E.C. Provini Co., Inc., et al.
Attorneys and Parties
Brief Summary
Construction/workplace safety—unloading heavy millwork from a truck using a pallet jack and liftgate at a retail buildout.
The motion court largely denied defense motions, keeping plaintiff’s Labor Law § 240(1) [imposes absolute/strict liability on owners and contractors for elevation-related risks where proper safety devices are required] and § 241(6) [imposes a nondelegable duty on owners and contractors to comply with specific Industrial Code safety regulations] claims alive against multiple defendants, declined to dismiss negligence and § 200 [codifies the common-law duty of owners and contractors to provide workers with a safe place to work] claims in several respects, and deemed certain contractual indemnification claims premature.
The Appellate Division dismissed all Labor Law § 241(6) claims (including those premised on Industrial Code §§ 23-9.8 and 23-6.1 [provisions addressing safe operation of powered/material handling equipment, including devices to retain raised loads, level/secure operating surfaces, load limits, and securing/trimming of loads]), dismissed common-law negligence claims against BBW, LBI, and LBSD&C, dismissed common-law negligence and § 241(6) claims against 441 Lexington and Gordon, granted conditional contractual indemnification to E.C. Provini against CBI, granted contractual indemnification to BBW, LBSD&C, and LBI against CBI, reinstated (but did not grant) the contractual indemnification claims of 441 Lexington and Gordon against CBI, and dismissed cross-claims against CBI for common-law indemnification and contribution.
Section 241(6) failed because the record showed no device defect, uneven surface likely to cause upsetting, excess load, or unsecured/dislodging load as required by the cited Industrial Code provisions; owners/affiliates exercised no supervision or control and no dangerous condition existed, defeating § 200 and common-law negligence; § 240(1) survives due to triable issues that a pallet jack was an inadequate safety device for maneuvering a 1,000-pound cabinet onto an elevated liftgate; contractual indemnification flowed from broad clauses triggered by the accident occurring in the course of CBI’s work, subject to apportionment for any negligence of indemnitees; common-law indemnity/contribution against CBI was barred by Workers’ Compensation exclusivity absent a grave injury.
Background
Plaintiff, a carpenter and CBI Drywall, Corp. (CBI) foreman, was unloading 1,000-pound cabinets for a Bath & Body Works, LLC (BBW) retail buildout. While walking backwards pulling a pallet jack as a coworker pushed a cabinet toward the truck’s unguarded liftgate about four feet above street level, the cabinet "got away," pushing plaintiff, trapping his foot under the jack, and causing him to fall off the liftgate. Plaintiff had requested but was denied a forklift. Defendants included contractor E.C. Provini Co., Inc. (E.C. Provini), BBW, L. Brands, Inc. (LBI), L. Brands Store Design & Construction, Inc. (LBSD&C), property owner 441 Lexington Avenue Co. Limited Partnership (441 Lexington), property manager Gordon Property Group, LLC (Gordon), and Elite Delivery Systems. Plaintiff asserted claims under Labor Law § 240(1) [imposes absolute/strict liability on owners and contractors for elevation-related risks where proper safety devices are required], § 241(6) [imposes a nondelegable duty on owners and contractors to comply with specific Industrial Code safety regulations], § 200 [codifies the common-law duty of owners and contractors to provide workers with a safe place to work], and common-law negligence, relying on Industrial Code §§ 23-9.8 and 23-6.1 [provisions addressing safe operation of powered/material handling equipment, including devices to retain raised loads, level/secure operating surfaces, load limits, and securing/trimming of loads].
Lower Court Decision
The Supreme Court largely denied the defense motions: it refused to dismiss plaintiff’s § 240(1) and § 241(6) claims against the non-owner defendants (E.C. Provini, BBW, LBI, LBSD&C), declined to dismiss negligence claims against BBW, LBI, and LBSD&C, declined to dismiss § 200 and negligence claims against E.C. Provini, denied as premature the non-owner defendants’ contractual indemnification claims against CBI, denied CBI’s motion to dismiss plaintiff’s § 240(1), § 241(6), § 200, and negligence claims and to dismiss the third-party action/counterclaims/cross-claims, and denied 441 Lexington and Gordon’s motion to dismiss plaintiff’s § 200, § 240(1), and § 241(6) claims and their contractual indemnification claims.
Appellate Division Reversal
Modified. Section 240(1): Claims survive due to triable issues that a pallet jack may have been an inadequate safety device for maneuvering a 1,000-pound cabinet onto a four-foot-high liftgate. Section 241(6): Dismissed in its entirety because the record showed no faulty automatic load-retaining device, no uneven surface likely to upset the jack, no excess load beyond the jack’s capacity, and no need for trimming or evidence of likely dislodgment under Industrial Code §§ 23-9.8(d), (e) and 23-6.1(d). Section 200/common-law negligence: Dismissed as to BBW, LBI, LBSD&C, 441 Lexington, and Gordon for lack of supervision/control and absence of a dangerous premises condition; triable issues remain against E.C. Provini because it denied a forklift request, supervised unloading, and was present. Contractual indemnification: Granted conditional indemnification to E.C. Provini from CBI under the subcontract; granted contractual indemnification to BBW, LBSD&C, and LBI from CBI via incorporation of the LBSD&C/E.C. Provini contract; reinstated (but did not grant) the contractual indemnification claims of 441 Lexington and Gordon because the record did not clearly establish their status under the subcontract’s indemnity provision. Common-law indemnity/contribution: Dismissed all such cross-claims against CBI due to Workers’ Compensation exclusivity and no grave injury.
Legal Significance
Clarifies that a pallet jack can be deemed an inadequate safety device for elevation-related tasks under Labor Law § 240(1) where heavy loads are maneuvered onto elevated liftgates, sustaining § 240(1) claims despite denials of additional equipment. Simultaneously, it narrows § 241(6) exposure by demanding specific proof of violations of Industrial Code §§ 23-9.8 and 23-6.1. Reinforces that § 200 and common-law negligence liability require supervision/control of the work or a dangerous premises condition, typically shielding owners/affiliates absent such proof. Affirms the availability of conditional contractual indemnification triggered by the occurrence of an accident within the subcontractor’s work, notwithstanding potential comparative negligence of the indemnitee, and underscores the Workers’ Compensation bar to common-law indemnity/contribution absent a grave injury.
Section 240(1) claims may proceed where the method and equipment for moving heavy materials at elevation are arguably inadequate, but § 241(6) claims premised on Industrial Code §§ 23-9.8 and 23-6.1 fail without concrete evidence of device defects, unsafe surfaces, excessive or unsecured loads; owners who neither control the work nor create a hazard avoid § 200/common-law liability, while broad contractual indemnity provisions can yield conditional indemnification against the subcontractor.