Motion sequence numbers 006, 007 and 008 are hereby consolidated for disposition.

This matter arises out of personal injuries sustained by plaintiff Michael Ferrante when he fell approximately 25 feet from a roadheader (the roadheader) that was in the process of being moved by a low boy, or transport machine, while working on the tunnel excavation project known as the "MTA Long Island Railroad East Side Access Project" on September 10, 2010. As a result, Ferrante filed a notice of claim against defendants The City of New York, The New York City Transit Authority, The Long Island Railroad, Midtown Trackage Ventures, LLC, Midtown TDR Ventures, LLC and The Metropolitan Transportation Authority, The Metropolitan Transportation Authority — Long Island Railroad, The MTA Capital Construction Company & Metropolitan Transportation Authority Capital Construction Company (the MTA) (collectively, defendants).

In motion sequence number 006, third-party defendant Kelley Engineered Equipment, LLC (Kelley Engineered) moves, pursuant to CPLR 3212, for summary judgment dismissing defendants' third-party complaint against it. In the third-party complaint, defendants allege that, among other things, the accident occurred due to design flaws present in the roadheader transport system (the transport machine) designed by Kelley Engineered. Based on this allegation, defendants asserted third-party claims against Kelley Engineered sounding in professional negligence, design defect, strict product liability, breach of warranty and breach of implied warranty of fitness, contribution and common-law and contractual indemnification.

In motion sequence number 007, plaintiff Michael Ferrante moves, pursuant to CPLR 3212, for summary judgment in his favor as to liability on the Labor Law § 240 (1) claim against defendants. Defendants cross-move, pursuant to CPLR 3212, for summary judgment dismissing the Labor Law § 240 (1) claim against them.

In motion sequence number 008, defendants move, pursuant to CPLR 3212, for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 241 (6) claims against them. In addition, defendants move for summary judgment in their favor on the third-party claim against Kelley Engineered for contractual indemnification.

At his 50-H hearing, Ferrante explained that the roadheader was used for mining. On the day of the accident, it became necessary to move the roadheader from the Grand Central/Manhattan side to the Long Island side of the project. In order to do so, the roadheader was loaded on to the transport machine, which was then connected to a locomotive train (the train), which would pull the roadheader along the underground tracks through the tunnels.

Ferrante testified that, before moving the roadheader via the transport machine, his own foreman intended to align the roadheader's boom arm (the boom arm) with the center of the roadheader, in order to better balance it. So that the boom arm could be straightened out, Ferrante's foreman instructed the operating engineer on the project to obtain a battery charger necessary for this task. However, even though the battery charger was delivered to the work area, the roadheader was never charged. Nevertheless, Ferrante's foreman instructed him to climb onto the roadheader in order to check ahead for vertical clearance. As soon as the train began to pull the transport machine, the roadheader tipped over to the right, causing Ferrante to lose his footing. Ferrante was injured when he pushed off to his left in order to clear the roadheader and avoid being crushed by it.

Ferrante further testified that his work was supervised solely by his Dragados-Judlau supervisors, including his own Local 147 foreman, the Local 147 "walking boss" and the company superintendent (defendants' notice of motion, exhibit J, 50-H hearing, Ferrante's tr at 22).

Ferrante testified that when he began the graveyard shift on the night of the accident, he was assigned the job of connecting the transport machine to the train so that the roadheader could be moved through the tunnel. The prior shift had already secured the roadheader to the transport machine with chains and come-alongs. In addition, some parts of the [*3]roadheader had already been dismantled and removed in order to facilitate the move. After connecting the transport machine to the train, Ferrante's crew planned to walk along the train as it pulled the roadheader through the tunnel.

Ferrante testified that he connected the transport machine to the train with "a bar, a square tube" (the bar) (defendants' notice of motion, exhibit K, Ferrante's tr at 86). He explained that "[e]ither ends have holes in it, and you hook it up to one end and you plug a bolt through it, and the other end has a hole and you put a cotter pin through it on both ends" (id. at 87). Ferrante noted that the process by which he and his gang hooked up the transport machine to the train was "pretty self explanatory," and that he was confident that they hooked everything up correctly (id. at 268).

When he was asked where he got the subject six-to-eight-foot unmarked bar, Ferrante testified that "[i]t was laying on the ground in front of the [transport machine]" (id. at 268). Ferrante did not know the origin of the bar, though he believed that it was "part of the [transport machine] itself" (id.). Ferrante maintained that the bar was the only bar in the area available for use.

Ferrante further testified that his Dragados-Judlau supervisor, Al Lombardi, discussed the fact that the roadheader's 30-ton boom arm needed to be "straightened out," because it was resting "at an angle" (id. at 75). In order to properly align the boom arm, it was necessary to first charge the roadheader with electrically charged batteries. However, despite the fact that a worker was sent to retrieve the battery charger, "[t]hey never even hooked up the battery charger" (id. at 79). Ferrante testified, "[Lombardi's] words were, We could do it on the go'" (id. at 256). Ferrante also maintained that Lombardi "was in a rush to move the roadheader," because "they want[ed] production" (id. at 255).

After connecting the transport machine to the train, but before the train began to move, Lombardi instructed Ferrante to climb on top of the roadheader to check for clearance between the left-hand side of the roadheader and the tunnel wall, as well as the vertical clearance between the top of the roadheader and a ceiling fan. Someone called for the train operator to start up the train, and the train then began to move forward.

Ferrante allegedly became injured when, within 10 to 20 seconds, the transport machine and the roadheader tipped over to the right, causing Ferrante to push off to the left and land between the transport machine and the tunnel wall. Specifically, Ferrante testified that, as the roadheader began to tip, he began to feel himself start to slip because of all the "grease, mud and muck on top of that machine" (Ferrante's notice of motion, exhibit I, Ferrante tr at 107). Ferrante further explained that, "[a]s it was tipping . . . I started slipping down, and I tried to get my footing, and I kind of caught my footing and I pushed away from the machine . . . I was trying to get away from it" (id. at 107-108). Ferrante asserted that he pushed away because he did not want to end up under the machine when it tipped over.

William Ury testified that he was the senior quality engineer for URS Corporation on the day of the accident. URS Corporation was hired by the MTA to provide safety oversight over Dragados-Judlau's work on the project. He testified that the MTA did not perform any work in the tunnels, nor did it have any employees supervising any of the tunnel work.

Ury testified that, in order to maintain stability, it was necessary to position the boom arm directly behind the roadheader when it was being moved. In this way, the boom arm was used to balance the roadheader. He explained that "[i]f they are shifting the roadheader to the right, they may shift the boom to the left to balance the roadheader" (defendants' notice of motion, exhibit L, Ury tr at 107). Ury also testified that it was unsafe for anyone to ride on top of the roadheader while it was in transit.

Brian Kelley (Kelley) testified that he was the owner, president and chief engineer of Kelley Engineered on the day of the accident. He stated that in 2007, he was contacted by Mr. Julio Velez, a Dragados-Judlau engineer, about designing an equipment transporter for the project. Kelley designed the transport machine pursuant to Dragados-Judlau's specifications. It was important that the transport machine's design made it possible for the roadheader and the transport machine to be able to [*4]move through the project's underground tunnels without hitting obstructions. Kelley testified that, after brainstorming together, he and Velez settled on a mechanism wherein the roadheader's boom arm compensated for the shifting of the transport machine's center of gravity during transport.

Kelley testified that, throughout the designing process, he was concerned about the possibility of the transport machine "tipping over" (MTA's notice of motion, exhibit M, Kelley tr at 115). In fact, Kelley talked to workers about the dangers of walking alongside the transport machine, "[b]ecause in the unlikely event that it did tip, that's not where you want to be" (id. at 212). He explained that if the transport machine "did become unstable, the tracks would hit the tunnel" (id. at 127). When asked if having "the roadheader [transport] system shifted to the right and having the cutter boom arm angled in the same direction to the right" created a tip-over risk, Kelley replied, "Absolutely" (id. at 240).

Kelley further explained that any side-shifting of more than four inches would require the boom arm to compensate by swinging to the opposite side so as to maintain the proper center of gravity. In fact, if the roadheader was loaded on to the transport machine such that its center of gravity was to the left or right a mere three inches, "that four-inch zone [would be] reduced . . . down to one inch" (id. at 163). When asked if he was comfortable with that margin of error, Kelley replied, "I would like to have more. I wasn't ever really comfortable with it. But me and other job site personnel understood that there was some risk there. But you don't put a guy on top of a machine in a situation like that" (id. at 200).

Kelley testified that when the roadheader transport system was initially put to use on the project, he visited the tunnels to observe whether it was being utilized safely. Kelley also noted that an instruction manual was not created for use with the transport machine. Kelley claimed that he verbally advised a Dragados-Judlau foreman as to how to operate the roadheader transport system, and that, in turn, the foreman was supposed to train the Dragados-Judlau workers as to the same. However, once the transport machine was put to work on the project, Kelley Engineered was no longer involved with it. In addition, Kelley had no role in the supervision, maintenance, repair or assemblage of the transport machine for a year prior to the accident.

After the accident, Dragados-Judlau advised Kelley that it was possible that the accident was caused due to Ferrante connecting the transport machine to the train with an improper bar. Upon Kelley's inspection, Kelley determined that, in fact, Ferrante used the wrong bar to connect the transport machine to the train. Specifically, Kelley testified as follows:

The MTA accident report, dated September 10, 2010 and prepared by MTA safety engineer and supervisor, Deon Bryant, stated that Ferrante was injured when the roadheader that he was standing on at the time of the accident tilted to the left side, causing him to jump to the ground. Under the heading "Primary Cause," Bryant listed the cause of Ferrante's accident as "[n]o fall protection" (MTA Notice of Motion, exhibit I, MTA accident report).

In his report, John D. Zolock stated that Kelley Engineered designed the transport machine using accepted mechanical design practices "per design requirements and specifications provided by Dragados/Judlau" (MTA's notice of motion, exhibit N, Zolock report, at 7). In addition, "[p]reparations for moving and loading the roadheader on the subject equipment transporter were directed by Dragados/Judlau Engineers" (id. at 10).

Zolock opined that the cause of the roadheader's tipping over was the improper position of the boom arm. He explained that "[a]s movement of the equipment was initiated, dynamic forces acting on the roadheader, irregularities in track super elevation as well as the cutter boom being swung in the direction of the side shift caused the center of gravity of the roadheader to move from a stable position to an unstable position, causing the roadheader and equipment transporter to tip in the direction of the cutter boom side shift" (id. at 11). Zolock noted that if the boom arm had properly shifted in the opposite direction of the side shift, or if it had been more centered with respect to the body of the roadheader, "this incident would not likely have occurred because the margin to instability would have been greater" (id. at 15).

In his affidavit, MTA's engineering expert, Fred Smith, P.E., stated that he reached his conclusions regarding the cause of the accident after reviewing, among other things, the deposition and exhibits of Kelley and Zolock's expert report. Smith stated that "if design and safeguarding are insufficient to eliminate or sufficiently reduce the hazard, then warnings should be placed on the equipment alerting the user to the hazards" (Kelley's opposition, exhibit 1, Smith aff). Smith noted that Kelley "did not write down any kind of instructions, and did not recommend or make any warnings to be put on the equipment transport to inform the workers who would actually be loading and operating the machine" (id.). In addition, no visible warnings or instructions appeared on the transport machine.

Smith also stated that "Kelley's intent as to whether workers should be in or on the equipment is unclear. On the one hand they are supposed to get in the equipment to move it, but on the other hand they are not supposed to get on it. Even if there were a clear understanding, it was not communicated to the sandhogs that were working on the equipment at the [*5]time of the accident" (id.). As such, the workers were "unaware that Mr. Kelley did not intend for anyone to be on top of the equipment for safety reasons" (id.).

Importantly, Smith stated that "[a]lthough Mr. Kelley found what he thought to be a safe way to move the roadheader, his method was very intricate and particular" (id.). It was Smith's opinion that Kelley "did not communicate the particulars of his transportation method clearly with the people that would be moving the equipment, and that there was an evident hazard" (id.). As such, "[t]he workers were unaware that if not done in the precise manner that Mr. Kelley calculated, that there was an unacceptable amount of risk involved in transporting the roadheader" (id.).

Smith asserted that Kelley should have prepared instructions and warnings advising how to load the roadheader onto the transport machine and forbidding workers from climbing onto the roadheader once loaded. He also maintained that the transport machine should have been marked to indicate that a specific draw bar was needed to connect the transport machine to the train. Smith concluded, "It is in my opinion that within a reasonable degree of safety and engineering certainty, if appropriate warnings or tags had been provided and heeded . . . this accident would not have happened" (id.).

" The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case'" (Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]).

Initially, it should be noted that Ferrante has agreed to withdraw his claims against the City of New York, the New York City Transit Authority, the Long Island Railroad, Midtown Trackage Ventures, LLC and Midtown TDR Ventures, LLC. Thus, these defendants are entitled to dismissal of the complaint as against them. Accordingly, the remainder of this decision will address only Ferrante's claims as against the MTA (Metropolitan Transportation Authority, Metropolitan Transportation Authority — Long Island Rail Road, MTA Capital Construction Company & Metropolitan Transportation Authority Capital Construction Company).

Third-party defendant Kelley Engineered moves to dismiss the third-party claims against it. The third-party complaint alleges that the transport machine was defectively designed, did not contain necessary instructions for its use and failed to warn that riding on top of it could result in the transport machine tipping over. "A party injured as a result of a defective product may seek relief against the product manufacturer or others in the chain of distribution if the defect was a substantial factor in causing the injury" (Rabon-Willimack v Robert Mondavi Corp., 73 AD3d 1007, 1008 [2d Dept 2010]; Merritt v Raven Co., 271 AD2d 859, 860 [3d Dept 2000]). "A product may be defective because of a mistake in the manufacturing process resulting in a manufacturing flaw, because of an improper, defective design, or because the manufacturer failed to provide adequate warnings regarding the use of the product" (Rabon-Willimack v Robert Mondavi Corp., 73 AD3d at 1008; Liriano v Hobart Corp., 92 NY2d 232, 237 [1998]; Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106-107 [1983]).

In a products liability case, " if a defendant comes forward with any evidence that the accident was not necessarily attributable to a defect, the plaintiff must then produce direct evidence of a defect' to defeat the [*7]motion" (Rabon-Willimack v Robert Mondavi Corp., 73 AD3d at 1008, quoting Schneidman v Whitaker Co., 304 AD2d 642, 643 [2d Dept 2003]; Galletta v Snapple Beverage Corp., 17 AD3d 530, 530 [2d Dept 2005]).

In support of its motion, third-party defendant Kelley Engineered argues that it should not be held liable for a design defect, because the transport machine was not defective in design. Rather, it was used incorrectly by Dragados-Judlau employees, experienced workers who knew that the position of the boom arm was a critical stability feature of the system's design. In addition, Kelley Engineered argues that the design of the transport machine was not the proximate cause of the roadheader and the transport machine tipping over. To that effect, Kelley Engineered argues that Ferrante caused the accident by using the wrong draw bar to connect the transport machine to the train, as well as by riding on top of the unbalanced roadheader.

Further, Kelley Engineered argues that the danger of climbing on to the transport machine during transport of the roadheader was open and obvious. "[W]here the injured party was fully aware of the hazard through general knowledge, observation or common sense, or participated in the removal of the safety device whose purpose is obvious, lack of a warning about that danger may well obviate the failure to warn as a legal cause of an injury resulting from that danger" (Liriano v Hobart Corp., 92 NY2d at 241; Hall v Husky Farm Equip., Ltd., 92 AD3d 1188, 1191 [3d Dept 2012] [As the plaintiff was a knowledgeable user of the pump that he was operating at the time of the accident, the defendants "were relieved from any obligation to warn him of latent dangers that existed when the agitator was operating and the pump was in use"]).

In its opposition, the MTA agues that the transport machine designed by Kelley Engineered was defective in design, not because there was anything wrong with the machine itself, but because it called for very particularized methods of operation to ensure that it was safe, and yet, no manual, instructions or operating booklet was provided for the workers using the equipment. In addition, the courts have recognized that "a manufacturer may have a duty to warn of dangers associated with the use of its product even after it has been sold . . . where a defect or danger is revealed by user operation and brought to the attention of the manufacturer (Liriano v Hobart Corp., 92 NY2d at 240). "A manufacturer [*8]also has a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable" (id. at 237; Barker v Mobile Pallet Truck, Inc., 71 AD3d 1542, 1543 [4th Dept 2010]).

As a review of the record reveals that Kelley was fully aware that if the boom arm of the roadheader is angled in the same direction as the transport machine's side shift, a possibility of tipping is likely; Kelley had a professional duty to instruct the manufacturer to place clear and prominent warnings of that fact on the transport machine. As noted by Smith in his report, "[a]lthough Mr. Kelley found what he thought to be a safe way to move the roadheader, his method was very intricate and particular" (Kelley's opposition, exhibit 1, Smith aff). In addition, Kelley "did not communicate the particulars of his transportation method clearly with the people that would be moving the equipment, and that there was an evident hazard" (id.). Therefore, "[t]he workers were unaware that if not done in the precise manner that Mr. Kelley calculated, that there was an unacceptable amount of risk involved in transporting the roadheader" (id.).

In light of the particularized and complex method of operation needed to safely operate the transport machine without tipping it over, it was simply not enough for Kelley only to relay direction to the foreman and expect this warning to reach the end users of the product, in this case, Ferrante and his coworkers working the graveyard shift at the project (see Barker v Mobile Pallet Truck, Inc., 71 AD3d at 1543 [where the plaintiff was injured while helping his supervisor move an air compressor on a pallet jack without the benefit of an underlying pallet, the Court held that the instruction on the warning label of the pallet jack to be careful when handling wide or high loads was an inadequate warning in regard to the hazard associated with moving oversized items without an underlying pallet]).

Kelley Engineered also had a duty to warn against certain unintended uses for the transport machine, which it claims caused the accident, and which were arguably foreseeable. As stated by Smith in his report, the transport machine should have been clearly labeled to indicate that a specific draw bar is needed to safely connect the transport machine to the train, so as to prevent a worker, like Ferrante in this case, from using the wrong bar.

Moreover, it is also arguably foreseeable that workers, like Ferrante, might climb onto the roadheader once the transport machine is secured to the train. As noted by Smith, "Kelley's intent as to whether workers should be in or on the equipment is unclear. On the one hand they are supposed to get in the equipment to move it, but on the other hand they are not supposed to get on it. Even if there were a clear understanding, it was not communicated to the sandhogs that were working on the equipment at the time of the accident" (Kelley's opposition, exhibit 1, Smith aff). Thus, the workers were "unaware that Mr. Kelley did not intend for anyone to be on top of the equipment for safety reasons" (id.). Therefore, Kelley Engineered had a duty to include language on the transport machine warning workers that mounting machinery which has been loaded onto the transport machine might result in the transport machine and the machinery tipping over.

As to Kelley Engineered's argument that the danger of climbing on to the transport machine during transport of the roadheader was open and obvious, in light of the complexity of the balancing act required to keep the transport machine and the roadheader from tipping over, the danger cannot be said to be open and obvious. "[T]he open and obvious defense generally should not apply when there are aspects of the hazard which are concealed or not reasonably apparent to the user" (Liriano v Hobart Corp., 92 NY2d at 242).

Thus, Kelley Engineered is not entitled to summary judgment dismissing the MTA's third-party claims against it.

Kelly Engineered also moves for dismissal of the MTA's third-party contribution and common-law indemnification claims against it. "Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person [internal quotation marks and citations omitted]" (Godoy v Abamaster of Miami, Inc., 302 AD2d 57, 61 [2d Dept 2003]).

"To establish a claim for common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident'" (Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685 [2d Dept 2005], quoting Correia v Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]; Priestly v Montefiore Med. Ctr./Einstein Med. Ctr., 10 AD3d 493, 495 [1st Dept 2004]). "It is well settled that an owner who is only vicariously liable under the Labor Law may obtain full indemnification from the party wholly at fault" (Chapel v Mitchell, 84 NY2d 345, 347 (1994).

Here, as discussed previously, Kelley Engineered's failure to provide instructions and warnings necessary for the transport machine to be safe contributed to the causation of the accident. Thus, Kelley Engineered is not entitled to dismissal of the third-party claims for contribution and common-law indemnification against it.

The MTA moves for summary judgment in its favor on the third-party contractual indemnification claim against Kelley Engineered. Kelly Engineered moves for dismissal of said claim against it. "A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987], quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]; see Torres v Morse Diesel Intl., Inc., 14 AD3d 401, 403 [1st Dept 2005]).

With respect to contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of its vicarious liability, and that " [w]hether or not the proposed indemnitor was negligent is a non-issue and irrelevant' [citation omitted]" (De La Rosa v Philip Morris Mgt. Corp., 303 AD2d 190, 193 [1st Dept 2003]; Keena v Gucci Shops, 300 AD2d 82, 82 [1st Dept 2002]).

In the service agreement between Kelley Engineered and the MTA, Kelley Engineered agreed to defend and indemnify the MTA with regard to claims of bodily injury "arising out of its work" on the project (MTA opposition, exhibit 2, April 28, 2009 MTA/Kelley Engineered written service agreement). Specifically, the service agreement states, in pertinent part, as follows:

Here, the accident was caused as a result of the transport machine's lack of instruction for its safe use, as well as its lack of a warning that riding on top of it might cause tipping. As such, the accident arose out of Kelley Engineered's work as designer of the transport machine. In addition, the accident was not the result of either the MTA or Dragados-Judlau's negligence, much less its "sole and exclusive negligence," as required by the subject indemnification provision (id.). Thus, Kelley Engineered is not entitled to dismissal of the MTA's claim for contractual indemnification against it. In addition, the MTA is entitled to summary judgment in its favor on the contractual indemnification claim against Kelley Engineered.

Ferrante moves for summary judgment in his favor as to liability on the Labor Law § 240 (1) claim against the MTA. The MTA cross-moves for dismissal of this claim against it. Labor Law § 240 (1), also known as the Scaffold Law (Ryan v Morse Diesel, 98 AD2d 615, 615 [1st Dept 1983]), provides, in relevant part:

" Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold . . . or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'" (John v Baharestani, 281 AD2d 114, 118 [1st Dept 2001], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

To prevail on a section 240 (1) claim, the plaintiff must show that the statute was violated and that this violation was a proximate cause of the plaintiff's injuries (Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287 [2003]; Felker v Corning Inc., 90 NY2d 219, 224-225 [1997]; Torres v Monroe Coll., 12 AD3d 261, 262 [1st Dept 2004]).

Initially, it should be noted that the MTA does not dispute its potential liability as an owner under the Labor Law. In addition, Labor Law § 240 (1) may apply to the facts of this case, because Ferrante was utilizing the [*10]roadheader as the functional equivalent of a scaffold at the time of the accident (see Gomez v City of New York, 63 AD3d 511, 512 [1st Dept 2009] [fire escape that the plaintiff was working on when he fell was the functional equivalent of a scaffold]; Beard v State of New York, 25 AD3d 989, 991 [3d Dept 2006] [bridge on which the plaintiff was working as it was being taken apart was a "functional equivalent of a scaffold"]; John v Baharestani, 281 AD2d at 119 [board placed atop a metal beam was "the functional equivalent of a scaffold" for the purposes of Labor Law § 240 (1)]; Becerra v City of New York, 261 AD2d 188, 190 [1st Dept 1999] [unsecured plywood boards supporting the plaintiff four stories above ground level constituted a scaffold]; Ciancio v Woodlawn Cemetery Assn., 249 AD2d 86, 88 [1st Dept 1998] [plank placed across burial vault opening fell "within the general scope of scaffolding'"]). To that effect, Ferrante's foreman instructed him to climb onto the roadheader, so that he could check ahead for vertical clearance.

Important to the facts of this case, the tipping of the work site itself, i.e., the roadheader, which was being utilized as a scaffold, constitutes a prima facie violation of Labor Law § 240 (1) (see Beard v State of New York, 25 AD3d at 991). "[A] presumption in favor of plaintiff arises when a scaffold or ladder collapses or malfunctions for no apparent reason'" (Quattrocchi v F.J. Sciame Constr. Corp., 44 AD3d 377, 381 [1st Dept 2007], quoting Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d at 289). "Whether the device provided proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his materials" (Nelson v Ciba-Geigy, 268 AD2d 570, 572 [2d Dept 2000]; Cuentas v Sephora USA, Inc., 102 AD3d 504, 505 [1st Dept 2013]; Peralta v American Tel. and Tel. Co., 29 AD3d 493, 494 [1st Dept 2006] [unrefuted evidence that the unsecured ladder moved, combined with evidence that no other safety devices were provided, warranted a finding that the owners were liable under Labor Law § 240 (1)]; Chlap v 43rd St.-Second Ave. Corp., 18 AD3d 598, 598 [2d Dept 2005]). Here, the accident was caused when the roadheader tipped, causing Ferrante to lose his footing and push off to his left in order to avoid being crushed by it.

In opposition, and in support of its cross motion, the MTA argues that Ferrante may not assert a claim under Labor Law § 240 (1) for his injuries, because they were caused by his intentional act of jumping, a separate [*11]and unforeseeable hazard not related to an elevation-related risk, rather than from a piece of defective equipment designed to protect him from elevation-related risks.

In support of its argument, the MTA cites the case of Fenty v City of New York (71 AD3d 459 [1st Dept 2010]). In Fenty, a construction worker was working inside a bucket lift when a steam pipe next to the lift ruptured, causing hot steam to emanate from the pipe and onto the plaintiff. The plaintiff intentionally jumped from the bucket lift to the ground to escape the hot steam, sustaining injuries. The First Department held that the "plaintiff's injury-producing accident was not attributable to the risk arising from the elevation differentials at his work site that brought about the need for the safety device in the first place, but rather was caused by the separate, unforeseeable hazard of hot steam emanating from a ruptured pipe, leading to plaintiff's decision to jump from the bucket lift" (id. at 460).

However, the facts of Fenty can be distinguished from those of the instant case. In Fenty, the hazard, i.e., the hot steam, was only tangentially related to elevation. Here, Ferrante's accident was directly attributable to a risk arising from an elevation differential. To that effect, the roadheader was already in the process of tipping, and Ferrante was already in the process of falling, when he was forced to push off or risk being crushed by the falling machine.

The MTA also argues that there are triable issues of fact as to whether Ferrante's decision to jump from the top of the roadheader, which ultimately did not tip over, but rather, came to rest at a slight angle, was a normal and foreseeable response to the circumstances. In any event, this argument goes to the issue of comparative fault, and comparative fault is not a defense to a Labor Law § 240 (1) cause of action, because the statute imposes absolute liability once a violation is shown (Bland v Manocherian, 66 NY2d 452, 460 [1985]; Velasco v Green-Wood Cemetery, 8 AD3d 88, 89 [1st Dept 2004] ["Given an unsecured ladder and no other safety devices, plaintiff cannot be held solely to blame for his injuries"]; Klein v City of New York, 222 AD2d at 352). "[T]he Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence. It is absolutely clear that if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it'" (Hernandez [*12]v Bethel United Methodist Church of NY, 49 AD3d 251, 253 [1st Dept 2008], quoting Blake v Neighborhood Hous. Servs. of NY, 1 NY3d at 290).

Where "the owner or contractor fails to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff's injury, the negligence, if any, of the injured worker is of no consequence [internal quotation marks and citations omitted]" (Tavarez v Weissman, 297 AD2d 245, 247 [1st Dept 2002]; see Velasco v Green-Wood Cemetery, 8 AD3d at 89 ["(p)laintiff's use of the ladder without his coworker present amounted, at most, to comparative negligence"]; Ranieri v Holt Constr. Corp., 33 AD3d 425, 425 [1st Dept 2006] [Court found that failure to supply plaintiff with a properly secured ladder or any safety devices was a proximate cause of his fall, and there was no reasonable view of the evidence to support defendants' contention that plaintiff was the sole proximate cause of his injuries]; Lopez v Melidis, 31 AD3d 351, 351 [1st Dept 2006]; Torres v Monroe Coll., 12 AD3d at 262 [Court noted that, even if another cause of the accident was plaintiff's own improper use of an unopened A-frame ladder leaned against the wall from atop the scaffold, defendant's failure to ensure that the scaffold plaintiff needed to use to perform his assigned task provided proper protection, and was properly secured and braced, constituted a proximate cause of the accident]).

Further, in light of multiple testimonies regarding the potential instability of the transport machine, the roadheader was not the proper safety device for the job at hand in the first place. " [T]he availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures'" (Nimirovski v Vornado Realty Trust Co., 29 AD3d 762, 762 [2d Dept 2006], quoting Conway v New York State Teachers' Retirement Sys., 141 AD2d 957, 958-959 [3d Dept 1988]; Lightfoot v State of New York, 245 AD2d 488, 489 [2d Dept 1997]; Pritchard v Murray Walter, Inc., 157 AD2d 1012, 1013 [3d Dept 1990]).

Here, other means of vertical elevation, like a device with rails, such as a Baker scaffold, and/or other fall protection, such as a harness and horizontal safety line, would have been more suitable for the job in order to prevent plaintiff from falling (see Nimirovski v Vornado Realty Trust Co., 29 AD3d at 762-763 [as it was foreseeable that pieces of metal being dropped [*13]to the floor could strike the scaffold and cause it to shake, additional safety devices were required to satisfy Labor Law § 240 (1)]; Bush v Goodyear Tire & Rubber Co., 9 AD3d 252, 253 [1st Dept 2004]).

Importantly, Labor Law § 240 (1) "is designed to protect workers from gravity-related hazards such as falling from a height, and must be liberally construed to accomplish the purpose for which it was framed [internal citations omitted]" (Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2d Dept 2006]). "As has been often stated, the purpose of Labor Law § 240 (1) is to protect workers by placing responsibility for safety practices at construction sites on owners and general contractors, those best suited to bear that responsibility' instead of on the workers, who are not in a position to protect themselves" (John v Baharestani, 281 AD2d at 117, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 500).

Thus, Ferrante is entitled to summary judgment in his favor on the issue of liability under Labor Law § 240 (1) against the MTA. Accordingly, the MTA is not entitled to dismissal of the Labor Law § 240 (1) claim against it.

Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety to workers (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502). However, Labor Law § 241 (6) is not self-executing, and in order to show a violation of this statute, and withstand a defendant's motion for summary judgment, it must be shown that the defendant violated a specific, applicable, implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (id.).

Although Ferrante lists multiple violations of the Industrial Code in his bill of particulars, with the exception of Industrial Code sections 23-1.7 (d) and 23-5.1 (f) (h) and (j), Ferrante does not address these alleged Industrial Code violations in his opposition papers, and thus, they are deemed abandoned (see Genovese v Gambino, 309 AD2d at 833; Musillo v Marist College, 306 AD2d 782, 784 n [3d Dept 2003]). Accordingly, the MTA is entitled to summary judgment dismissing those parts of plaintiff's Labor Law § 241 (6) claim predicated on those abandoned provisions.

Industrial Code 12 NYCRR 23-1.7 (d) provides:

Industrial Code 12 NYCRR 23-1.7 (d) contains specific directives that are sufficient to sustain a cause of action under Labor Law § 241 (6) (Lopez v City of NY Tr. Auth., 21 AD3d 259, 259-260 [1st Dept 2005]).

The MTA argues that it is entitled to dismissal of that part of the Labor Law § 241 (6) claim predicated on an alleged violation of Industrial Code section 23-1.7 (d), because the accident was not proximately caused by Ferrante slipping, but rather, because Ferrante intentionally jumped from the top of the roadheader. However, a review of Ferrante's testimony reveals that at least a question of fact exists as to whether Ferrante's [*14]slipping was also a proximate cause of the accident. To that effect, Ferrante testified that it was very greasy and wet on top of the roadheader. In addition, he specifically testified that "[a]s [the roadheader] was tipping . . . I started slipping down, and I tried to get my footing, and I kind of caught my footing and I pushed away from the machine . . . I was trying to get away from it" (MTA's notice of motion, exhibit K, Ferrante's tr at 107-108).

Thus, the MTA is not entitled to dismissal of that part of the Labor Law § 241 (6) claim predicated on an alleged violation of this rule.

Industrial Code 12 NYCRR 23-5.1 sets forth the "[g]eneral provisions for all scaffolds." Section 23-5.1 (f), which deals with scaffold maintenance and repair, requires that "[e]very scaffold shall be maintained in good repair and every defect, unsafe condition or noncompliance with this Part (rule) shall be immediately corrected before further use of such scaffold." Section 23-5.1 (h), which deals with scaffold erection and removal, requires that "[e]very scaffold shall be erected and removed under the supervision of a designated person." Section 23-5.1 (j), which deals with safety railings, requires that "[t]he open sides of all scaffold platforms . . . shall be provided with safety railings constructed and installed in compliance with this Part (rule)" (Industrial Code § 23-5.1 [j] [i]).

Initially, section 23-5.1 (f) is not sufficiently specific to support a Labor Law § 241 (6) claim (Moutray v Baron, 244 AD2d 618, 619 [3d Dept 1997]). Thus, the MTA is entitled to dismissal of that part of the Labor Law § 241 (6) claim predicated on an alleged violation of this section.

In addition, while sections 23-5.1 (h) and (j) are sufficiently specific to support a Labor Law § 241 (6) claim (see Macedo v J. D. Posillico, Inc., 68 AD3d 508, 510 [1st Dept 2009]; Abreo v URS Greiner Woodward Clyde, 60 AD3d 878, 880 [2d Dept 2009]), Industrial Code 12 NYCRR 23-5.1 and its subsections only apply to scaffolds. As Ferrante was standing atop a roadheader, and not a scaffold, at the time of the accident, sections 23-5.1 (f), (h) and (j) (i) do not apply to the facts of this case (see Mutadir v 80-90 Maiden Lane Del LLC, 110 AD3d 641, 643 [1st Dept 2013] [sections 23-5.1 (c) and (d) inapplicable where plaintiff was standing on stacked milk crates at the time of the fall, rather than on a scaffold]; Pilato v Nigel Enters., Inc., 48 AD3d 1133, 1135 [4th Dept 2008]).

Thus, the MTA is entitled to dismissal of those parts of the Labor Law § 241 (6) claim predicated on alleged violations of Industrial Code sections 23-5.1 (f), (h) and (j).

The MTA moves to dismiss the common-law negligence and Labor Law § 200 claims against it. Labor Law § 200 is a " codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work' [citation omitted]" (Cruz v Toscano, 269 AD2d 122, 122 [1st Dept 2000]; see also Russin v Louis N. Picciano & Son, 54 NY2d 311, 316-317 [1981]). Labor Law § 200 (1) states, in pertinent part, as follows:

There are two distinct standards applicable to section 200 cases, depending on the kind of situation involved: when the accident is the result of the means and methods used by the contractor to do its work, and when the accident is the result of a dangerous condition (see McLeod v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 797-798 [2d Dept 2007]).

"Where an existing defect or dangerous condition caused the injury, liability [under Labor Law § 200] attaches if the owner or general contractor created the condition or had actual or constructive notice of it" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 144 (1st Dept 2012); Murphy v Columbia Univ., 4 AD3d 200, 202 [1st Dept 2004] [to support a finding of a Labor Law § 200 violation, it was not necessary to [*15]prove general contractor's supervision and control over plaintiff's work, because the injury arose from the condition of the work place created by or known to contractor, rather than the method of the work]).

It is well-settled that, in order to find an owner or his agent liable under Labor Law § 200 for defects or dangers arising from a subcontractor's methods or materials, it must be shown that the owner or agent exercised some supervisory control over the injury-producing work (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993] [no Labor Law § 200 liability where the plaintiff's injury was caused by lifting a beam and there was no evidence that the defendant exercised supervisory control or had any input into how the beam was to be moved]).

Moreover, "general supervisory control is insufficient to impute liability pursuant to Labor Law § 200, which liability requires actual supervisory control or input into how the work is performed" (Hughes v Tishman Constr. Corp., 40 AD3d 305, 311 [1st Dept 2007]; see also Bednarczyk v Vornado Realty Trust, 63 AD3d 427, 428 [1st Dept 2009] [Court dismissed common-law negligence and Labor Law § 200 claims where the deposition testimony established that, while the defendant's "employees inspected the work and had the authority to stop it in the event they observed dangerous conditions or procedures," they "did not otherwise exercise supervisory control over the work"]; Burkoski v Structure Tone, Inc., 40 AD3d 378, 381 [1st Dept 2007] [no Labor Law § 200 liability where the defendant construction manager did not tell subcontractor or its employees how to perform subcontractor's work]; Smith v 499 Fashion Tower, LLC, 38 AD3d 523, 524-525 [2d Dept 2007]).

Initially, the accident was proximately caused by the means and methods of Ferrante's work, as Ferrante not only connected the transport machine to the train with the wrong bar, he climbed onto the roadheader before it was properly balanced. As the evidence in the case establishes that Ferrante's work was solely supervised by Dragados-Judlau supervisors and employees, the MTA is entitled to summary judgment dismissing the common-law negligence and Labor Law § 200 claims on a means and methods theory.

In addition, as discussed previously, the accident was also proximately caused by defectively designed equipment, i.e., the transport machine, which was being utilized as a scaffold at the time of the accident, [*16]and which was prone to tipping. "Under either liability standard, the common-law duty of the owner to provide a safe place to work, as codified by Labor Law § 200 (1), has been extended to include the tools and appliances without which the work cannot be performed and completed" (Chowdhury v Rodriguez, 57 AD3d 121, 128-129 [2d Dept 2008]). It is "well settled that the duty to provide a safe place to work is not breached when the injury arises out of a defect in the subcontractor's own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work" (Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145 [1965]). For example, "[i]f the employer furnishes a ladder or a scaffold for the contractor's employees to work on he must be careful to furnish a safe appliance, but if the contractor furnishes such appliances the employer does not thereby become responsible for their sufficiency" (id.at 146).

Accordingly, where a defendant owner provides the worker with a piece of defective equipment, it must be shown that said defendant either created or had actual or constructive notice of the defective condition (Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 959 [2d Dept 2013]; Cevallos v Morning Dun Realty, Corp., 78 AD3d 547, 549 [1st Dept 2010]; Navarro v City of New York, 75 AD3d 590, 592 [2d Dept 2010]; Chowdhury v Rodriguez, 57 AD3d at 131). As in the case of other dangerous premises conditions, "it logically follows that a property owner's liability should be predicated upon evidence of the owner's creation of the condition or actual or constructive notice of it, since the property owner in charge of the site has authority to remedy any dangers or defects existing at its own premises" (Chowdhury v Rodriguez, 57 AD3d at 130).

Here, Ferrante's employer, Dragados-Judlau not only supplied the transport machine for the project, it also assisted in its design and operation. In fact, Kelley testified that in 2007, after being contacted by Mr. Julio Velez, a Dragados-Judlau engineer, he designed the transport machine pursuant to Dragados-Judlau's specifications. In his report, Zolock also stated that Kelley Engineered designed the transport machine "per design requirements and specifications provided by Dragados/Judlau" (MTA's notice of motion, exhibit N, Zolock report, at 7). Importantly, he also stated that "[p]reparations for moving and loading the roadheader on the subject equipment transporter were directed by Dragados/Judlau Engineers" (id. at 10).

Where, as here, "a worker's injury results from [the plaintiff's] employer's own tools or methods . . . a defendant property owner [will] be liable only if possessed of authority to supervise or control the work" (Chowdhury, 59 AD3d at 130; see Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d at 146). "[I]t makes sense that a defendant property owner be liable only if possessed of authority to supervise and control the work, since such defendant is vested with the authority to remedy any dangers in the methods or manner of the work" (Chowdhury, 57 AD3d at 130).

Thus, as it has not been established that the MTA had any authority to supervise or control the work at issue in this case, the MTA is entitled to dismissal of the common-law negligence and Labor Law § 200 claims against it. In addition, even in the event that the MTA did supply the transport machine, it would still be entitled to dismissal of these claims, as no evidence has been put forth to create an issue of fact regarding whether it had actual or constructive notice that the transport machine was defective.

For the foregoing reasons, it is hereby

ORDERED that third-party defendant Kelley Engineered Equipment, LLC's (Kelley Engineered) motion (motion sequence number 006), pursuant to CPLR 3212, for summary judgment dismissing defendants/third-party plaintiffs The Metropolitan Transportation Authority, The City of New York, The New York City Transit Authority, The Long Island Railroad, MTA Capital Construction Company & Metropolitan Transportation Authority Capital Construction Company, Midtown Trackage Ventures, LLC and Midtown TDR Ventures, LLC's (defendants) third-party complaint against it is denied; and it is further

ORDERED that plaintiff Michael Ferrante's motion (motion sequence number 007), pursuant to CPLR 3212, for summary judgment in his favor as to liability on the Labor Law § 240 (1) claim as against the MTA is granted; and it is further

ORDERED that the part of defendants' motion for summary judgment, pursuant to CPLR 3212, dismissing the complaint against defendants The City of New York, The New York City Transit Authority, [*17]The Long Island Railroad, Midtown Trackage Ventures, LLC and Midtown TDR Ventures, LLC is granted, and the complaint is dismissed as against these defendants, with costs and disbursements to these defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of these defendants; and it is further

ORDERED that the action is severed and continued against the remaining defendants; and it is further

ORDERED that the parts of defendants' motion, pursuant to CPLR 3212, for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 241 (6) claims against them (Motion Seq. No. 008) is granted, with the exception of that part of the Labor Law § 241 (6) claim predicated on an alleged violation of Industrial Code 12 NYCRR 23-1.7 (d), and these claims are severed and dismissed as against defendants; and it is further

ORDERED that the part of defendants' motion, pursuant to CPLR 3212, for summary judgment in their favor on the third-party claim for contractual indemnification against third-party defendant Kelley Engineered (Motion Seq. No. 008) is granted; and it is further

ORDERED that the remainder of the action shall continue.