In these joined personal injury actions commenced pursuant to the Labor Law, a number of the defendants either move, or cross-move, for summary judgment to dismiss the complaint, while several of the plaintiffs cross-move for summary judgment on the complaint (motion sequence number 010). The court disposes of these motions as follows.

On July 16, 1999, plaintiffs Kory Kleinberg (Kleinberg), Ronald Villa (Villa) and Clarence White (White) suffered personal injuries while employed as electricians by third-party defendant Kleinberg Electric, Inc. (Kleinberg Electric). See Notice of Motion, Kowalski Affirmation, ¶ 6. The three plaintiffs allege that, on that date, they were riding in the service elevator located in Tower C of the Harlem River Lift Bridge (the bridge), which extends from Manhattan to Randall's Island in the County, City and State of New York. Id., ¶¶ 6, 8. Plaintiffs claim that, at approximately 11:30 a.m., the service elevator either free-fell or over-sped to the bottom of the elevator pit, and caused them to sustain various injuries in the resulting crash. Id.

At the time the plaintiffs were injured, the bridge was the subject of a renovation and repair project (the project). Id., ¶ 7. The entities that own and maintain the bridge, defendants Triboro Bridge and Tunnel Authority (TBTA) and Metropolitan Transportation Authority (MTA),^[FN1] had hired co-defendant Schiavone Construction Co., Inc. (Schiavone) as the general contractor for the project (collectively, the Triboro defendants). Id. Schiavone had, in turn, hired Kleinberg Electric as a subcontractor to perform electrical work on the project. Id.

Previously, in 1997, co-defendant Start Elevator, Inc. (Start) had entered into a separate service contract with the TBTA to perform monthly inspections and repairs of the bridge's four elevators. See Notice of Cross Motion (Start), Capece Affirmation, ¶ 8; Exhibit I. Start states that, as part of the project, the TBTA and Schiavone hired former co-defendant B&G Elevator Co., Inc. (B&G) to replace the bridge's elevators, and that Start's own responsibilities were [*2]limited to performing monthly inspections.^[FN2] Id., ¶¶ 12-13. Finally, Start notes that, on March 1, 2006, the Appellate Division, First Department, reversed this court's (Lippmann, J.) denial of B&G's motion for summary judgment to dismiss all of the plaintiffs' claims against it and remanded that motion for the entry of an order dismissing said claims. Id.; Exhibit E.

In January of 2001, the TBTA had also entered into a separate contract with second third-party defendant/third third-party defendant Washington Infrastructure Services, Inc. a/k/a Washington Group International, Inc. f/k/a Morrison Knudson Corporation d/b/a MK Centennial (Washington). See Notice of Cross Motion (Washington), Abrams Affirmation, ¶¶ 16, 20; Exhibit E. Pursuant to that contract, entitled a "construction services and support contract," Washington was to inspect all construction work and prepare progress reports for the TBTA. Id. Exhibit E.

Kleinberg was deposed on July 24, 2001. See Notice of Motion, Exhibit I. Kleinberg testified that, on the day he was injured, the Schiavone supervisor at the work site had directed his own supervisor, Brian McEntee (McEntee), Kleinberg Electric's foreman, to put the Kleinberg Electric workers to work in tower C instead of tower B (where they had originally been scheduled to work). Id. at 46-49. Kleinberg further testified that, at shortly after 7 a.m. on the day he was injured, he was standing at the bottom of tower C but could not ascend to the top because the elevator had stopped working. Id. at 79-83. Kleinberg stated that he then used his cell phone to call his supervisor, Mark Canella (Canella), Kleinberg Electric's sub-foreman, who was at the top of tower C, to tell him that he could not ascend the tower because the elevator was not working. Id. Finally, Kleinberg testified that he waited a short while and the elevator started working again. Id. Kleinberg stated that he did not observe anyone working on the elevator at that time. Id. He also stated that a Schiavone employee had related to him an incident that had occurred a year earlier in which the tower C elevator had malfunctioned and dropped 20 feet. Id. at 197.

Villa was deposed on May 17, 2001. Id.; Exhibit G. He testified that he was at the top of tower C at approximately 7 a.m. on the morning of July 16, 1999, and that the elevator had malfunctioned while he was riding it to the top, and had thereafter stopped working altogether. Id. at 47-57. Villa also testified that McEntee, Canella and a Schiavone employee later went into the elevator control room at the top of tower C and changed a fuse to make the elevator work again, although he was unclear as to exactly when during the day that they did this work. Id.

White was deposed on May 16, 2001. See Affirmation in Opposition to Motion (TBTA, MTA and Schiavone), Exhibit B. He testified that, on the morning of July 16, 1999, the tower C elevator stopped working after Villa had ridden it to the top of the tower. Id. at 31-33. White also testified that Kleinberg (with whom he was standing) then called Canella, and that Canella told them both not to get into the elevator until it was fixed. Id. White also testified that the elevator began working again within about an hour, after which Canella directed him and Kleinberg to ride it to the top and begin working. Id. Finally, White testified that McEntee told him that he had changed a fuse to fix the elevator. Id.

The TBTA was deposed on December 11, 2002 by John Passarella (Passarella), one of its [*3]maintenance superintendents. Id.; Exhibit D. Passarella testified that he believed that the weight capacity of the tower C elevator was 500 pounds. Id. at 14. He also confirmed that Start had been engaged as the TBTA's maintenance contractor for the bridge's elevators and that B&G had been engaged as Schiavone's subcontractor to replace those elevators. Id. at 25-26.

The MTA was deposed on February 14, 2002 by James Hughes (Hughes), one of its employees. See Affirmation in Opposition to Motion (Villa and White), Exhibit I. Hughes testified that Passarella and the TBTA were responsible for inspecting Start's work. Id. at 25.

Schiavone was deposed on March 5, 2002 by Joseph Materano (Materano), one of its superintendents at the project. See Notice of Motion, Exhibit H. Materano testified that he coordinated bridge traffic for, made work schedules and kept time sheets for, and attended progress meetings with, Schiavone's subcontractors. Id. at 8, 29. Materano also testified that, at several progress meetings that were held before plaintiffs were injured, he notified Schiavone's subcontractors that they had to abide by the weight limits posted on the bridge's tower elevators, which was "1000 or 1500 pounds." Id. at 12, 31-32. Materano confirmed that, at shortly after 7 a.m. on July 16, 1999, McEntee had called him to say that he had been informed by his workers that the tower C elevator was not working, and to request that Materano make a service call to B&G. Id. at 52-54. Materano stated that he thereafter made a service call to B&G (Schiavone's subcontractor in charge of elevator repair). Id. at 52-54. Materano next testified that either McEntee or Canella called him back a short time later to inform him that the tower C elevator had started working again. Id. at 54-56. Finally, Materano testified that he thereafter called B&G back to cancel the service call. Id. Materano denied that neither himself nor any other employees of Schiavone or the TBTA had attempted to perform repair work on the tower C elevator on July 16, 1999. Id.

Kleinberg Electric was deposed on February 11, 2002 by McEntee. See Affirmation in Opposition to Motion (Kleinberg), Exhibit E. McEntee confirmed that Canella had informed him that the tower C elevator had stopped working for a period of time on the morning of July 16, 1999. Id. at 80-83. However, he stated that he only spoke to Canella after plaintiffs had been injured, and denied either performing or having any knowledge of any work that had been done to get the elevator back into service that morning. Id.

Start was deposed on October 24, 2002 by its vice president, Kevin Shea (Shea). Id.; Exhibit C. Shea testified that Start performed monthly inspections and necessary repairs on the bridge's elevators, as well as inspecting and repairing (as needed) the elevators' safety devices every six months. Id. at 23-24, 29. Shea also testified that the weight capacity of the bridge's C elevator was 500 pounds. Id. at 79. Shea further testified that Start did not respond to service calls for elevator "shutdowns" in connection with the work being performed on the project, and that such service calls were B&G's responsibility. Id. at 67-68. Shea stated, however, that Start mechanic Kevin Monahan (Monahan) did perform repair work on the "heating elements, bad machine limits and corroded thrust bearing" of the bridge's tower C elevator on December 17, 1998 (i.e., approximately six months before the date of plaintiffs' accident). Id. at 46-50.

B&G was first deposed on December 11, 2001 by its president, Daniel Grund (Grund), and later again on May 6, 2004 by Michael Reilly (Reilly), one of its mechanics. See Affirmation in Opposition to Motion (Villa and White), Exhibits G, H. As previously mentioned, B&G had executed its contract with the TBTA on June 24, 1998. See Notice of Cross Motion (Start), Exhibit K. Grund testified that B&G had performed repair work on the [*4]bridge's tower C elevator prior to plaintiffs' accident whenever Schiavone called B&G to report an elevator "shutdown" problem, but was unclear about the time frame. See Affirmation in Opposition to Motion (Villa and White), Exhibit G, at 14-20. B&G work tickets produced during the course of discovery disclose that Schiavone made several "shutdown" calls to B&G during March of 1999, to which B&G responded and performed repair work. See Affirmation in Opposition to Motion (Villa and White), Exhibit L. Grund also confirmed that B&G had received a shutdown call from Shiavone on the morning of July 16, 1999, but did not dispatch a mechanic because Schiavone also called later (at approximately 8 a.m.) to report that the tower C elevator was working again. See Affirmation in Opposition to Motion (Villa and White), Exhibit G, at 26-29. Reilly also confirmed that B&G had received a service call from Schiavone on that morning. Id.; Exhibit H at 52, 63-64, 68-69. Reilly further testified that, after plaintiffs' accident, he had gone to inspect the bridge's tower C elevator and found that a coil had burnt out which, he opined, had caused the elevator's safety mechanism to fail. Id. at 52-53. Finally, Reilly testified that he replaced that coil as well as a relay in the elevator's control room at the top of the C tower. Id. at 60-62.

Washington was deposed on March 3, 2005 by Michael Martin (Martin), one of its construction engineers. See Affirmation in Opposition to Washington Cross Motion, Kowalski Affirmation, Exhibit A. Martin testified that he was at the bridge on an almost daily basis during the project, that it was Washington's responsibility to promulgate a safety plan for the project, that he observed the manner in which Schiavone's subcontractors were carrying out their work in his role as safety consultant, that he frequently observed the subcontractors violating the weight restrictions that the safety plan proscribed for the bridge's elevators, and that he recounted these observations to Schiavone frequently. Id. at 20, 49-61.

Prior Proceedings

Kory Kleinberg and his wife Rose initially commenced their action on December 3, 1999 by serving a summons and complaint that named the City, the TBTA and Schiavone as defendants (the first action). See Notice of Motion, Exhibit A. The Kleinbergs later served an amended summons and complaint on February 20, 2002 that named all of the defendants herein. See Notice of Cross Motion (Start), Exhibit B. That complaint asserts one cause of action for negligence on behalf of Kory Kleinberg, and one cause of action for loss of services on behalf of Rose Kleinberg. Id. In their bill of particulars, the Kleinbergs state that the defendants' purported negligence involved "violating the provisions of the New York State Industrial Code and Labor Law Sections 200, 240, 241 and 241a," and that said negligence may also be proven by the doctrine of res ipsa loquitur. Id., Exhibit E.

Villa and White initially commenced their action on June 19, 2000 by serving a summons and complaint that named the City, the TBTA, the MTA and Schiavone as defendants (the second action). See Notice of Motion, Exhibit C. Villa and White also later served an amended summons and complaint on February 25, 2002 that named all of the defendants herein. See Notice of Cross Motion (Start), Exhibit B. In that complaint, Villa and White each assert one cause of action for negligence. Id. In their bill of particulars, Villa and White assert that defendants' purported negligence consisted of violating "§§ 200, 240 and 241 (6) of the Labor [*5]Law" as well as certain provisions of the Industrial Code, OSHA and the Building Code.^[FN3] Id.; Exhibit F.

The TBTA, MTA and Schiavone commenced the first third-party action herein on December 21, 2000 by impleading Kleinberg Electric. See Notice of Motion, Exhibit K. The first third-party complaint sets forth one cause of action for indemnification. Id.

Start commenced the second third-party action herein on February 10, 2003 by impleading Washington. See Notice of Cross Motion (Washington), Exhibit A. Its second third-party complaint sets forth causes of action for indemnification and contribution. Id. Washington raised counterclaims for indemnification and contribution against Start in its answer, and asserted cross claims for the same thing against Kleinberg Electric. Id.; Exhibit B.

Finally, TBTA, MTA and Schiavone commenced the third third-party action herein on September 2, 2003 by impleading Washington. Id.; Exhibit C. The third third-party complaint sets forth causes of action for indemnification, contribution and attorneys' fees. Washington raised counterclaims for indemnification and contribution against the TBTA, MTA and Schiavone in its answer, and asserted cross claims for the same things against Kleinberg Electric. Id.; Exhibit D.

The TBTA, MTA and Schiavone now move for summary judgment to dismiss both the first action and the second action as against them, and also for summary judgment on their own third-party complaint against Kleinberg Electric (motion sequence number 010). Kleinberg opposes that motion, as do Villa and White who also cross-move for summary judgment on the issue of liability against the TBTA, MTA and Schiavone in the second action. Separately, Start cross-moves for summary judgment to dismiss all of the claims, counterclaims and cross claims asserted against it in any of the within actions, and Washington cross-moves for summary judgment to dismiss the complaints of Start in the second third-party action, and of the TBTA, MTA and Schiavone in the third third-party action, as well as for summary judgment on its counterclaims against those parties and its cross claims against Kleinberg Electric.

When seeking summary judgment, the moving party bears the burden of proving, by competent, admissible evidence, that no material and triable issues of fact exist. See e.g. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985); Sokolow, Dunaud, Mercadier & Carreras LLP v Lacher, 299 AD2d 64 (1st Dept 2002). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action. See e.g. Zuckerman v City of New York, 49 NY2d 557 (1980); Pemberton v New York City Tr. Auth., 304 AD2d 340 (1st Dept 2003). Conclusory assertions which are unsupported by evidence are insufficient to sustain a motion for summary judgment. See e.g. Mason v Dupont Direct Financial Holdings, 302 AD2d 260 (1st Dept 2003). Similarly, " averments merely stating conclusions, of fact or of law, are insufficient' to defeat summary judgment [citations omitted].'" [*6]Banco Popular North America v Victory Taxi Management, 1 NY3d 381, 383 (2004). The court's function, on a motion for summary judgment, is one of issue identification, not issue determination. See e.g. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957); Grullon v City of New York, 297 AD2d 261 (1st Dept 2002). Further, it is well settled that " on a motion for summary judgment, the construction of an unambiguous contract is a question of law for the court to pass on, and ... circumstances extrinsic to the agreement or varying interpretations of the contract provisions will not be considered, where ... the intention of the parties can be gathered from the instrument itself'." Maysek & Moran v S.G. Warburg & Co., 284 AD2d 203, 204 (1st Dept 2001), quoting Lake Constr. & Development Corp. v City of New York, 211 AD2d 514, 515 (1st Dept 1995). "An attorney's affidavit is of no probative value on a summary judgment motion unless accompanied by documentary evidence which constitutes admissible proof [emphasis in original]." Adam v Cutner & Rathkopf, 238 AD2d 234, 239 (1st Dept 1997). "[A]n attorney's affirmation ... is of no probative value in opposition to a motion for summary judgment." Ramnarine v Memorial Center for Cancer and Allied Diseases, 281 AD2d 218, 219 (1st Dept 2001). It is axiomatic that issues of witness credibility are not appropriately resolved on a motion for summary judgment. See e.g. Santos v Temco Service Industries, 295 AD2d 218 (1st Dept 2002). Here, the court disposes of the instant summary judgment motions as follows.

The Triboro Defendants' Motion

In their motion, the TBTA, MTA and Schiavone (hereinafter, the Triboro defendants) argue that they are entitled to summary judgment dismissing all plaintiffs' negligence claims because each of the statutory bases that plaintiffs invoke in support of those claims fails, as a matter of law. The Triboro defendants first argue that Labor Law § 240 (1) cannot serve as a predicate for any of plaintiffs' negligence claims because their injuries did not result from the absence or malfunction of a "safety device," as the statute defines that term. See Notice of Motion, Kowalski Affirmation, ¶¶ 11-12. The Triboro defendants are correct. Labor Law § 240 (1) provides that:

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 shall be so constructed, placed and operated as to give proper protection to a person so employed.

The Triboro defendants next argue that Labor Law § 241 cannot serve as a predicate for any of plaintiffs' negligence claims, either. See Notice of Motion, Kowalski Affirmation, ¶¶ 13-18. With respect to Kleinberg, the Triboro defendants note that his bill of particulars fails to specify which provision or provisions of Labor Law § 241 that they are purported to have violated, but that "clearly, the only section of Labor Law § 241 that could even apply to this matter is Labor Law § 241 (6)." Id. ¶ 13. The court notes that Kleinberg does not contest this conclusion in his opposition papers, or even address the point. The Triboro defendants then argue that this statute cannot support Kleinberg's negligence claim, as a matter of law, because "in order to prevail under Labor Law § 241 (6), a plaintiff is required to plead and prove that the defendant(s) violated a specific provision or provisions of the Industrial Code." Id. This is an accurate statement of the law. See e.g. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993); Carty v Port Authority of New York and New Jersey, 32 AD3d 732 (1st Dept 2006). A review of the extensive pleadings herein discloses that Kleinberg has indeed failed to specify any Industrial Code provisions as predicates for his Labor Law § 241 (6) argument. See Notice of Motion, Kowalski Affirmation, ¶ 15. The court finds that this failure precludes Kleinberg from relying upon that statute, as a matter of law. Accordingly, the court also finds that as much of the Triboro defendants' motion as seeks summary judgment dismissing Kleinberg's negligence claim on the ground that it is unsupported by Labor Law § 241 (6), should be granted.

With respect to Villa and White, the Triboro defendants argue that none of the Industrial Code provisions that they cited in support of their respective negligence claims is sufficient to support those claims, as a matter of law. See Notice of Motion, Kowalski Affirmation, ¶¶ 15-16. As previously mentioned, the cited Industrial Code provisions include: 12 NYCRR 23-1.2, 23-1.3, 23-1.4, 23-1.5 and 23-7.^[FN4] The Triboro defendants specifically argue that violations of these Industrial Code provisions have each been held to be insufficient grounds to support a claim under Labor Law § 241 (6). Id., ¶ 15. They appear to be correct with respect to the first four of the cited provisions. See e.g. McGrath v Lake Tree Village Associates, 216 AD2d 877, 878 (4th Dept 1995) ("Sections 23-1.2, 23-1.3 and 23-1.5 of the Industrial Code are general provisions and are not a basis for liability under section 241 [6]"); Dombrowski v Schwartz, 217 AD2d 914, 915 (4th Dept 1995) (Sections 23-1.4 and 23-1.5 of the Industrial Code are not sufficiently specific to support a Labor Law § 241[6] cause of action.). With respect to 12 NYCRR 23-7, et seq., the court has been unable to discover any case law that holds whether or not a violation of this Industrial Code provision is a sufficient ground upon which to claim a violation of Labor Law § 241 (6). Nevertheless, that provision plainly states that it applies to "temporary workmen's hoists [that] are provided to transport persons to and from their working levels in the construction of buildings or other structures," and to "passenger or freight elevators [that are] being installed in buildings or other structures for permanent use [which] may be used before completion of the building or other structure during construction to carry persons or material, or both." Here, however, the elevator in tower C of the Harlem River Lift Bridge was neither a "temporary workmen's hoist" nor a "passenger or freight elevator being installed in a building or [*8]other structure for permanent use." The Code provision's intent is clearly to afford protection to workers who must use such elevators precisely because the temporary or unfinished condition of such elevators renders them less safe than fully built and installed elevators. The instant elevator, however, was a preexisting elevator that had been installed for the sole purpose of permitting workers to ascend the bridge's tower to perform maintenance. The fact that it may or may not have become unsafe with age and/or overuse does not place it among the types of elevator contemplated in 12 NYCRR § 23-7 et seq. Thus, the court finds that that Industrial Code provision is inapplicable to the facts of this case, and therefore agrees that Villa and White have failed to specify any Industrial Code provisions to support their Labor Law § 241 (6) claims, as New York law requires. Indeed, Villa and White's opposition papers do not even address this issue.^[FN5] Accordingly, the court finds that as much of the Triboro defendants' motion as seeks summary judgment dismissing Villa's and White's negligence claims on the ground that they are unsupported by Labor Law § 241 (6) should be granted.

Finally, the Triboro defendants argue that plaintiffs' claims are unsupported by either Labor Law § 200 or principles of common-law negligence. See Notice of Motion, Kowalski Affirmation, ¶¶ 19-23. Labor Law § 200 codifies the common-law duty of an owner or employer to provide employees with a safe place to work, and applies to owners and contractors who either created a dangerous condition or had actual or constructive notice of it.^[FN6] See e.g. Linares v United Management Corp., 16 AD3d 382 (2d Dept 2005). The Court of Appeals has long held that "to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Further, "[t]he notice must call attention to the specific defect or hazardous condition and its specific location, sufficient for corrective action to be taken." Mitchell v New York University, 12 AD3d 200, 201 (1st Dept 2004). "[A] general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition." Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 (1994), citing Gordon v American Museum of Natural History, 67 NY2d at 838. The Triboro defendants deny that they had actual or constructive notice that the tower C elevator was in a "dangerous or defective condition." See [*9]Notice of Motion, Kowalski Affirmation, ¶¶ 22-23. Plaintiffs argue that the Triboro defendants did have such notice. Kleinberg cites Passarella's deposition testimony as an admission that "the TBTA had actual notice of the dangers of overloading the elevator." See Affirmation in Opposition to Motion (Kleinberg), Paris Affirmation, ¶ 73; Exhibit D. Villa and White argue that "the TBTA and Schiavone both knew about the deteriorating condition of the sixty (60) year-old elevators and still made the decision to replace them at the end of the bridge renovation project knowing that they would undergo heavy usage." See Memorandum of Law in Opposition to Motion (Villa and White), at 4. The Triboro defendants reply that Kleinberg has mischaracterized Passarella's testimony, and that he made no admission that he was aware of any specific problems with the tower C elevator. See Kowalski Affirmation in Opposition and Reply, ¶ 22. After reviewing all of the deposition testimony heretofore had herein, the court agrees. Passarella merely testified as to the TBTA's retention of Start to perform monthly and six-monthly elevator preventive maintenance and of B&G to perform service on the bridge's elevators during the project and, later, to replace them. See Affirmation in Opposition to Motion (TBTA, MTA and Schiavone), Exhibit D, at 24-25. Materano testified as to Schiavone's practice of making service calls to B&G whenever one of its subcontractors on the project reported an elevator "shutdown." See Notice of Motion, Exhibit H, at 50-54. Finally, Martin testified that he frequently observed Schiavone's subcontractors violating the weight restrictions of the bridge's elevators, and that he recounted his observations to Schiavone. See Affirmation in Opposition to Washington Cross Motion, Kowalski Affirmation, Exhibit A, at 20, 49-61. The court finds that this testimony indicates, at most, a "general awareness" that the bridge's elevators were prone to breaking down whenever they were overloaded. However, as previously discussed, such "general awareness" is insufficient evidence of constructive notice pursuant to the Court of Appeals' holdings in Gordon v American Museum of Natural History and its progeny. This absence of constructive notice means that that there is no triable issue of fact as to the "duty of care element" of plaintiffs' negligence claims. Accordingly, the court finds that so much of the Triboro defendants' motion as seeks summary judgment dismissing Villa's and White's negligence claims on the ground that they are unsupported by Labor Law § 200 or principles of common-law negligence should also be granted.

Finally, plaintiffs' opposition papers also raise the argument that the Triboro defendants' summary judgment motion should be denied pursuant to the doctrine of res ipsa loquitur. See Affirmation in Opposition to Motion (Kleinberg), Paris Affirmation, ¶¶ 51-67; Memorandum of Law in Opposition to Motion (Villa and White), at 9-11. In Mejia v New York City Transit Authority (291 AD2d 225 [1st Dept 2002]), the Appellate Division, First Department, observed that:

Res ipsa loquitur does not create a presumption in favor of plaintiff, but instead permits the inference of negligence to be drawn from the circumstances of the occurrence. The doctrine creates a prima facie case of negligence sufficient for submission to a jury, and the jury may, but is not required to, draw the permissible inference. The submission of a case to a jury on the theory of res ipsa loquitur is warranted when the plaintiff can establish the following elements: (1) the accident is of a type that does not occur in the absence of negligence; (2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary [*10]action or contribution on the part of the plaintiff [internal citations omitted].

The balance of the Triboro defendants' motion seeks summary judgment on their third-party claims against Kleinberg Electric for contractual indemnification and costs. However, "having determined that [defendant] is entitled to summary judgment dismissing the complaint, the issue ... [of] indemnification from plaintiff's employer is academic." Frisbee v Cathedral Corp., 283 AD2d 806, 807-808 (3d Dept 2001). Therefore, the court finds that this branch of the Triboro defendants' motion should be denied. Accordingly, the court concludes that the Triboro defendants' motion should be granted in part and denied in part, and awards those defendants a summary judgment that dismisses the complaints in the first and second actions,^[FN7] but denies - as moot - defendants' request for a summary judgment on their third-party claim for contractual indemnification.

Plaintiffs' Cross Motion

As previously mentioned, Villa and White cross-move for summary judgment on their negligence claims against the Triboro defendants in the second action. Apart from the matters [*11]discussed in the preceding portion of this decision, Villa and White argue that Labor Law § 240 (1) affords a viable basis for those claims because the tower C elevator in which they were injured should be deemed to be a "hoist" within the statute's coverage. See Notice of Cross Motion (Villa and White), Miller Affirmation, ¶¶ 10-25. The Triboro defendants respond that the Appellate Divisions have already ruled unequivocally that passenger elevators are not within the statute's coverage. See Affirmation in Opposition and in Reply (TBTA, MTA and Schiavone), Kowalski Affirmation, ¶¶ 5-10. Villa and White reply that the decisions that the Triboro defendants cite are distinguishable because they involved "passenger" elevators used by the general public while the bridge's tower C elevator was used only by workers seeking ingress and egress from their work site. See Reply Affirmation (Villa and White), Miller Affirmation, ¶¶ 7-17. The court finds that Villa and White's distinction is unpersuasive.

In DiPilato v H. Park Cent. Hotel, L.L.C. (17 AD3d 191, supra), the Appellate Division, First Department, squarely held that an elevator is "not an inadequate ... protective device designed "to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'," within the ambit of Labor Law § 240 (1). 17 AD3d at 192, quoting Lindstedt v 813 Associates, 238 AD2d 386, 387 (2d Dept 1997) (emphasis in original). The only departure from this rule (i.e., when an elevator was deemed a "hoist" for statutory purposes) that the court could discover was set forth in Sharp v Scandic Wall Ltd. Partnership (195 Misc 2d 254 [Sup Ct, NY County 2002], affd 306 AD2d 39 [1st Dept 2003]) in which the court (Kapnick, J.) reasoned that

the instant case—where the plaintiff was standing on the elevator car itself with no alternate planking or platform—is distinguishable from Lindstedt where the injured plaintiff was riding inside an elevator which failed to stop at the designated floor [emphasis in original].

Start's cross motion seeks summary judgment dismissing the plaintiffs' negligence claims against it. At the outset, Start argues that, because it was not involved in the renovation of the bridge's elevators, plaintiffs' claims for Labor Law violations are inapplicable to it. See Notice of Motion (Start), Capece Affirmation, ¶ 17. The court notes that plaintiffs did not respond to this point, and therefore deems that they have conceded the argument. Instead, plaintiffs proceed on the theories that Start is liable pursuant to principles of common-law negligence and the doctrine of res ipsa loquitur. See Affirmation in Opposition to Motion (Kleinberg), Paris Affirmation, ¶¶ 51-67; Memorandum of Law in Opposition to Motion (Villa and White), at 7-11.

Pursuant to New York law, "the traditional common-law elements of negligence" are: "duty, breach, damages, causation and foreseeability." Hyatt v Metro-North Commuter R.R., 16 AD3d 218 (1st Dept 2005). Regarding the "duty" element, the Court of Appeals has long held that: [*12]

An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found.

Speaking to the issue of causation in the context of negligence claims against elevator maintenance contractors, the Court of Appeals has noted that:

Although generally referring to the doctrine of res ipsa loquitur, the courts have, independently of the classic doctrine requiring in its purest form exclusiveness of control, possession, and operation of harm-causing instrumentalities, often found circumstantial evidence sufficient to permit the inference of negligent inspection and repair against an elevator maintenance company [emphasis in original]

in [the case of] Otis Elevator Co. v Robinson (287 F2d 62 [5th Cir 1961]) where plaintiff was injured when an elevator fell at an excessive speed and then came to a sudden stop, evidence of prior complaints to and maintenance checks by the elevator company was held sufficient circumstantial evidence of negligent repair, without reliance on the doctrine of res ipsa loquitur [emphases added].

The circumstantial evidence in this case [i.e., Rogers v Dorchester Associates,] was sufficient to permit the jury to infer negligence by [defendant]. [Defendant] had undertaken, for a substantial fee, to handle exclusively all maintenance on the elevator. It was thus in exclusive control of maintenance, although it obviously was not in exclusive continuous control of the possession and operation of the elevator. The owner and manager were ill-equipped to service the complicated, delicate, and potentially dangerous elevator apparatus. In case of trouble, their employees were instructed to leave all repair work to [defendant]. ... Whether the door could have malfunctioned, absent negligence in the inspection and maintenance by [defendant], was properly a question for the jury, and their verdict against [defendant] should not have been disturbed [emphasis added].

Plaintiffs' last possible recourse against Start is, thus, under the doctrine of res ipsa loquitur. As previously mentioned, a negligence claim may be submitted to a jury on the theory of res ipsa loquitur when the plaintiff can establish:

(1) the accident is of a type that does not occur in the absence of negligence; (2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff [citations omitted].

We do not question the well-settled principle that circumstantial evidence will suffice to support an inference of negligence where the defendant company has "exclusive control" of elevator maintenance. That principle is limited, however, to cases where such "exclusive control" by the defendant exists at the time of the [*14]accident, as was true in [Rogers v Dorchester Associates].

The balance of Start's cross motion seeks summary judgment dismissing all the cross claims for indemnification that the Triboro defendants asserted against it in the first and second actions, and the counterclaims for indemnification that Washington asserted against it in the second third-party action. With respect to the Triboro defendants (Start's employer), the court previously noted that "having determined that [defendant] is entitled to summary judgment dismissing the complaint, the issue ... [of] indemnification from plaintiff's employer is academic." Frisbee v Cathedral Corp., 283 AD2d at 807-808. Therefore, the court finds that the branch of Start's cross motion that seeks summary judgment dismissing the Triboro defendants' cross claims should be denied as moot. The court makes the same determination with respect to Washington's counterclaim for the reasons discussed in the next section of this decision. Accordingly, the court concludes that Start's cross motion should be granted in part and denied in part, and awards Start a summary judgment dismissing the complaints in the first and second actions against it,^[FN9] but denies - as moot - Start's request for a summary judgment dismissing the various cross claims and counterclaims against it for indemnification.

The Washington Group Defendants' Cross Motion

Finally, Washington's cross motion seeks summary judgment dismissing the indemnification claims set forth against it in the second third-party action by Start, and in the third third-party action by the Triboro defendants. However, those indemnification claims are now moot because the court has already dismissed plaintiffs' respective negligence claims against the Triboro defendants and Start. Therefore, the court also finds that the indemnification claims that those defendants raised against Washington in the second third-party action and third third-party action should also be dismissed as moot. Accordingly, the court grants the portion of Washington's cross motion that seeks such relief. [*15]

The balance of Washington's cross motion seeks summary judgment on its own indemnification counterclaims against Start in the second third-party action and against the Triboro defendants in the third third-party action, as well as its own indemnification cross claims against Kleinberg Electric in both of those third-party actions. However, since the court has already dismissed those actions, there is no need for it to consider the counterclaims and cross claims that Washington asserted therein, and it declines to do so. Accordingly, the court finds that Washington's cross motion should be granted in part and denied in part, and awards Washington a summary judgment dismissing the complaints in the second third-party action and third third-party actions, but denies - as moot - Washington's request for a summary judgment on its counterclaims and cross claims for indemnification from, inter alia, the Triboro defendants, Start and Kleinberg Electric.

ACCORDINGLY, for the foregoing reasons, it is hereby

ORDERED that the motion, pursuant to CPLR 3212, of defendants Triborough Bridge and Tunnel Authority i/s/h/a Triboro Bridge and Tunnel Authority, Metropolitan Transportation Authority and Schiavone Construction Co., Inc. is granted and the complaints in the first and second actions herein are dismissed against them with costs and disbursements to defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs, but is otherwise denied as moot; and it is further

ORDERED that the cross motion, pursuant to CPLR 3212, of plaintiffs Ronald Villa and Clarence White is in all respects denied; and it is further

ORDERED that the cross motion, pursuant to CPLR 3212, of defendant/second third-party plaintiff Start Elevator, Inc. is granted solely to the extent that the complaints in the first and second actions herein are dismissed against it with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs, but is otherwise denied as moot; and it is further

ORDERED that the cross motion, pursuant to CPLR 3212, of second third-party defendant/third third-party defendant Washington Group International, Inc. f/k/a Morrison Knudson Corporation d/b/a MK Centennial s/h/a Washington Infrastructure Services, Inc. is granted and the complaints in the second third-party action and third third-party actions herein are dismissed against it with costs and disbursements to this defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs, but is otherwise denied as moot; and it is further; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: New York, New York

September, 2007

ENTER:

____________________

Hon. Donna Mills, J.S.C.