The following e-filed documents, listed by NYSCEF document number (Motion 11) 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 327, 328, 329, 330, 331, 332, 333, 334 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, the Decision and Order of this Court is as follows:

Plaintiff, Benjamin Faulmino ^[FN1] , moves for an order pursuant to CPLR §3212 granting plaintiff summary judgment against defendants/second third-party plaintiffs, 450 Partners LLC ("450 Partners") and Tishman Construction Corporation of New York ("Tishman") (hereinafter, jointly referred to as "450/Tishman"), only on plaintiff's Labor Law §241(6), §200 and common law negligence causes of action. Defendants/third-party plaintiffs, City Harvest, Inc. ("City Harvest") and Dante Moore ("Moore") (hereinafter, jointly referred to as "Harvest/Moore"), cross-move for summary judgment dismissing the complaint and all cross-claims against them. Defendants/second third-party plaintiffs, 450/Tishman, oppose both motions.

Plaintiff commenced this action by filing a summons and complaint seeking damages for personal injuries sustained as a result of being struck by a vehicle while in the course of his employment at a construction site. The complaint sets forth, inter alia, causes of action pursuant to Labor Law §§ 200, 240(1), 241(6), common law negligence, negligent ownership, operation and maintenance of motor vehicles, as well as various alleged violations of the Vehicle and Traffic Law of the State of New York. All defendants appeared by filing their respective answers denying the substantive allegations in the complaint. Defendant Hu and third-party defendant Ballo were precluded from testifying at trial or offering affidavits in support of or in response to any dispositive motions.^[FN2] Plaintiff filed Note of Issue, certifying that this matter is ready for trial. The instant motion and cross-motion followed.

At the time of the accident, plaintiff was employed as an ironworker with a non-party construction company. 450 owned the premises where the construction was taking place and Tishman was the general contractor on the project. The record establishes that this construction project included the closure of two lanes of traffic to accommodate project operations at certain times. It is undisputed that there were Yodock barriers lined up to separate the lanes that were closed as part of the construction, and the remaining open lanes of traffic. Plaintiff contends that he was helping to unload a truck of construction materials within the construction site's closed lanes at the time of the accident. Plaintiff further alleges that a box truck, owned by defendant City Harvest and operated by defendant Moore (within the traffic lanes that were open to the public), collided with an unfilled Yodock street barricade, causing that barricade to strike plaintiff and throw him against the truck he was unloading. Moore alleges that a taxi-cab, owned by defendant Ricky Hu ("Hu") and operated by defendant Mamadou Ballo ("Ballo"), struck the barrier first. Moore further contends that the contact made by Hu's vehicle dislodged the Yodock barrier causing it to come spinning directly into the path of Moore's vehicle, making it impossible for Moore to avoid.

Plaintiff moves for summary judgment on the issue of liability against only defendants [*2]450/Tishman on the §241(6), §200 and common law negligence causes of action. Plaintiff argues that 450/Tishman violated §1.29 of the Industrial Code by failing to ensure that the Yodock barriers remained full of water, capped, and interlocked in violation of the Yodock product instructions. Plaintiff further alleges that said inactions constitute a known dangerous condition as acknowledged by Tishman project director at his deposition and as documented in the Tishman Construction Safety Guidelines. In further support of the motion, plaintiff submits the affirmation of professional engineer Nicholas Bellizzi ("Bellizzi") which sets forth, inter alia, that unfilled or partially filled barricades that are not interlocked constitute a known safety hazard. Bellizzi opines that the Yodock barriers could have and should have been filled with water, capped, and moved into position via a forklift on a daily basis. Bellizzi further opines that if defendants had done so, the barriers would not have moved on impact and struck the plaintiff. Bellizzi sets forth that defendants violated Section 23-1.29 of the Industrial Code by failing to provide Mr. Faulmino with a safe area to work adjacent to street traffic and by failing to prevent traffic from entering that designated work area. Plaintiff further sets forth that the §200 claim is premised on a dangerous condition and that Tishman employees created said condition because they set up the barriers the morning of the accident and were on constructive notice that the barriers lacked water, had a history of leaking, lacked caps, and were not properly interlocked.

Harvest/Moore adopt plaintiff's arguments regarding Tishman's liability for the proper condition, placement, filling and interlocking of the barricades but take no position on plaintiff's motion for summary judgment against 450/Tishman. Harvest/Moore argue that the complaint should be dismissed as against them because they were not the proximate cause of the accident and there is no evidence of negligence on their part. Harvest/Moore contend that it was Hu and Ballo that initially struck the barricade propelling it into motion and sending it into the City Harvest truck's path. Harvest/Moore argue that Moore's unrebutted testimony regarding the accident establishes that Harvest/Moore are entitled to the emergency doctrine defense and further that Moore's actions were reasonable under the circumstances.

450/Tishman oppose plaintiff's motion and argue that there are issues of fact as to whether §1.29 was violated because plaintiff fails to establish that the barriers had to be filled or interlocked and that without establishing the same, there are issues of fact regarding the existence and/or notice of a dangerous condition. 450/Tishman further argue that the product specifications relied on by plaintiff are not admissible but nevertheless contend that said specifications do not require the barricades to be filled, nor does the DOT permit for the lane closure require the barricades to be filled or interlocked. 450/Tishman also oppose Harvest/Moore's cross-motion arguing that there are issues of fact as to Moore's contributory negligence which renders the emergency doctrine inapplicable.

In further support of their arguments, defendants submit the affirmation of accident reconstructionist and engineer John A. Desch, P.E. (the "Desch affirmation"). The Desch affirmation sets forth that the same model barrier used at this location, without water and without being interconnected, is a crashworthy traffic control device for use in work zones on the National Highway system and further that it is an acceptable channeling device to channelize vehicle traffic away from work zones. Desch further opines that in light of the size of the buffer zone between the barricades and the workspace at this location, the barricades were not required to be filled, and that the DOT permit does not require that they be filled. With regard to the accident itself, Desch opines that Moore failed to adhere to the minimum recommended vehicle spacing as set forth in the NYS Driver's Manual, which recommends a two second gap between [*3]vehicles. Desch explains that his calculation, using a conservative speed estimate of 15 miles per hour (mph), equates to a vehicle traveling at 22 feet per second, which requires vehicle spacing of 44 feet for a vehicle traveling at that speed. Desch also sets forth that one car length spacing is 20 feet. Desch posits that Moore's testimony that he was driving no more than 20 mph, and possibly a car length or less behind the cab raises an issue of fact as to whether Moore failed to maintain sufficient space between his vehicle and the taxi by more than half the recommended amount. Desch further opines, within a reasonable degree of engineering certainty, that if the right front part of the taxi made contact with the barrier with sufficient force to cause the barricade to spin into the truck and cause damage to the truck steps (as Moore testified) there would be visual evidence of such an impact at the right front part of the taxi. Desch opines that no such evidence is visible in the photos of the taxi, nor is any damage to the taxi indicated in the report, suggesting that the barricade did not make contact with that portion of the taxi (as Moore testified), and therefore, summary dismissal against Harvest/Moore is not appropriate.

The court's function on a motion for summary judgment is issue finding rather than issue determination or assessing credibility (Genesis Merchant Partners LP v Gilbride, Tusa, Last & Spellane LLC, 157 AD3d 479 [1st Dept 2018]; Meredian Mgt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508 [1st Dept 2010]). Summary judgment is a drastic remedy and is to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact (CPLR § 3212[b]; Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039 [2016]; Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The moving party's "burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party" (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). If the movant fails to make such prima face showing, then the motion must be denied regardless of the sufficiency of the opposing papers (Winegrad v NY Univ. Med. Ctr, 64 NY2d 851 [1985]).

Once the movant has made a prima facie showing, 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 (Zuckerman v City of New York, 49 NY2d 557 [1980]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Pemberton v New York City Tr. Auth., 304 AD2d 340 [1st Dept 2003]). Mere conclusions of law or fact are insufficient to defeat a motion for summary judgment (Banco Popular N. Am. v Victory Taxi Mgmt., 1 NY3d 381 [2004]).

Labor Law §241(6) is a "hybrid" statute, as the first sentence, "reiterates the general common-law standard of care," while the second sentence imposes a nondelegable duty with respect to compliance with rules of the Commissioner which contain "specific, positive command[s]" (Ross v. Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494, 503—504 [1993]). Thus, an owner or general contractor, "is vicariously liable without regard to [their] fault," and, "even in the absence of control or supervision of the worksite," where a plaintiff establishes a violation of a specific and applicable Industrial Code regulation (Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 348—350 [1998]). In addition, Labor Law § 241 (6) requires that a plaintiff establish that the violation of the safety regulation was the proximate cause of the accident (see Gonzalez v Stern's Dep't Stores, 211 AD2d 414 [1st Dep't., 1995]).

Here, plaintiff alleges that 450/Tishman violated §1.29(a) of the Industrial Code, which [*4]provides:

"Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons." (emphasis added)

The Court finds that there is an issue of fact as to whether the Yodock barriers provided were adequate to direct public traffic away from the work area.^[FN3] Plaintiff's expert opines that defendants were required to fill the subject barriers with water, while defendants' expert sets forth that the barriers are adequate for use without water. These contradictory affidavits, each based upon the expert's relevant experience in the field, are sufficient to raise a disputed issue regarding whether the alleged lack of water in the barriers created a dangerous condition (Mitrovic v. Silverman, 104 AD3d 430, 430, 961 N.Y.S.2d 75, 76 [1st Dep't., 2013]). Additionally, and notwithstanding the admissibility of the product manual, the Court's review of the same reveals that it does not set forth that the barricades must be filled with water to achieve their intended purpose as argued by plaintiff. Indeed, the document reads "When assembled as a work zone device or road closure, the units may be used empty or ballasted with water" (NYSCEF Doc. No. 291). Moreover, neither the product guide, nor Tishman's construction guidelines can form a basis for liability under §241(6).

The Court is likewise not persuaded by any of the cases cited to by plaintiff where there were no barriers or flagmen present at all. Similarly unpersuasive is the plaintiff's reliance on Andreasyan v. Espinal, No. 513407/2018, 2024 WL 343932 (NY Sup. Ct. Jan. 16, 2024). Initially, Andreasyan is not binding on this Court, and while it may be instructive, the facts here are distinguishable. In Andreasyan, plaintiff was working on a manlift that was level with the fifth floor of a building when a vehicle struck the base of the lift. Defendants therein admitted receiving violations from the DOB after an OATH hearing for not having a flagman, as well as improper installation and placement of the barriers around the lift. The defendants' witness also testified that the barriers were not continuous, but rather left an opening large enough for a machine to drive in and out of every day. Here, there are no such violations, nor is there any testimony that the barriers were not continuous prior to the accident. On the contrary here, as set forth above, there are conflicting expert opinions before the Court regarding the sufficiency of the barriers, including whether they were required to be full of water. Accordingly, the branch of plaintiff's motion for summary judgment on the §241(6) cause of action is denied.

Section 200(1) of the Labor Law codifies an owner's or general contractor's common-law duty of care to provide construction site workers with a safe place to work (Perrino v. Entergy Nuclear Indian Point 3, LLC, 48 AD3d 229, 230 [2008]). Claims for personal injury under the statute and the common law fall into two broad categories: (1) those arising from an alleged defect or dangerous condition existing on the premises and (2) those arising from the manner in which the work was performed (see Cook v. Orchard Park Estates, Inc., 73 AD3d 1263, 1264 [*5][2010]).

Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work (Foley v. Consolidated Edison Co. of NY, Inc., 84 AD3d 476, 477 [2011]). Where the accident was caused by a defective premises condition, rather than the method or manner in which work was performed, liability depends on whether the owner or contractor created or had actual or constructive notice of the hazardous condition (See Bayo v. 626 Sutter Ave. Assoc., LLC, 106 AD3d 648, 648 [1st Dep't., 2013]).

Here, plaintiff argues that the accident was caused by a dangerous condition, and further that Tishman created said condition because it was in charge of setting up the Yodock barriers every day. However, as discussed above, there is an issue of fact as to whether the barriers were required to be filled as there is contradictory expert testimony regarding that subject. Accordingly, there is also an issue of fact as to whether the alleged lack of water constituted a dangerous condition, irrespective of any issues regarding notice. Accordingly, the branch of plaintiff's motion for summary judgement on the §200 and common law negligence claims against 450/Tishman is denied.

The common-law emergency doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency (Caristo v. Sanzone, 96 NY2d 172, 174 [2001]). A party requesting the emergency instruction is entitled to have the jury so charged if some evidence of a qualifying emergency is presented, then the reasonableness of the conduct in the face of the emergency is for the jury (Rivera v. New York City Transit Auth., 77 NY2d 322, 327 [1991]). Whether a person's reaction to an emergency was reasonable is often a jury question, but summary resolution is possible when the individual presents sufficient evidence to support the reasonableness of his actions and there is no evidentiary showing from the opposition sufficient to raise a legitimate issue of fact on the issue (Dattilo v. Best Transp. Inc., 79 AD3d 432, 433[1st Dep't., 2010]).

Here, the Court finds that Moore has presented sufficient evidence that he was faced with an emergency situation so as to warrant the emergency instruction to the jury. Notwithstanding, the Court also finds that defendants' expert raises an issue of fact as to whether Moore contributed to the creation of the emergency by failing to maintain a safe distance between his vehicle and the taxi in front of him. Whether Moore's actions were reasonable under the circumstances is a matter best suited for the jury. Accordingly, the Moore/Harvest cross-motion to dismiss is also denied.

Based on the foregoing, it is hereby

ORDERED, that plaintiff's motion for summary judgment and defendants City Harvest and Moore's cross-motion to dismiss are both denied in their entireties; and it is further

ORDERED, that plaintiff shall serve a copy of this order with notice of entry on all parties within 30 days of the entry date hereof; and it is further,

ORDERED, that the parties appear for a pre-trial conference in Part 21 on December 15, 2025 at 9:30 am.

This constitutes the decision and order of the Court.