United States District Court for the Middle District of Louisiana
January 13, 2022, Decided; January 13, 2022, Filed
CIVIL ACTION NO. 18-00660-BAJ-EWD

Reporter
2022 U.S. Dist. LEXIS 7605 *
JAMES R. RUSSELL VERSUS JOSE F. BONILLA ESCOBAR, ET AL.
Prior History: Russell v. Escobar, 2018 U.S. Dist. LEXIS 114265 (M.D. La., July 10, 2018)
Core Terms

endorsement, summary judgment, transportation of property, interstate commerce, coverage, insured, motor carrier, truck, alleged accident, motor vehicle, genuine, trailer, nonmoving party, material fact, transportation, financial responsibility requirements, alleges
Counsel: [*1] For James R. Russell, Plaintiff: Anne Marie Polk Muller, LEAD ATTORNEY, McKernan Law Firm, Baton Rouge, LA.
For Liberty Mutual Fire Insurance Company, Defendant: H. Minor Pipes, III, LEAD ATTORNEY, Alexis A. Polk, Pipes Miles Beckman, LLC, New Orleans, LA.
For Freightline Express Corp, Defendant: Julius W. Grubbs, Jr., LEAD ATTORNEY, Haik, Minvielle & Grubbs, New Iberia, LA.
For United Specialty Insurance Company, Defendant: James M Dill, LEAD ATTORNEY, The Dill Firm, APLC, Lafayette, LA; David P Vial, II, Gary Austin Love, The Dill Firm, Lafayette, LA.
Judges: BRIAN A. JACKSON, UNITED STATES DISTRICT JUDGE.
Opinion by: BRIAN A. JACKSON
Opinion

RULING AND ORDER
Before the Court is Defendant United Specialty Insurance Company’s Motion for Summary Judgment (Doc. 118). The Motion is opposed. (Doc. 129). United filed a Reply Brief. (Doc. 133). For the reasons stated herein, United’s Motion is GRANTED.

I. BACKGROUND

A. ALLEGED FACTS
The instant dispute arises out of an alleged motor vehicle collision between Plaintiff and Jose F. Bonilla Escobar on May 17, 2017. (Doc. 63, ¶¶ 4-8; Doc. 143, p. 6). Plaintiff alleges that Escobar’s truck, a 2006 Freightliner tractor-semitrailer, sideswiped Plaintiffs truck, a 2014 International [*2] tractor-semitrailer. (Doc. 63, ¶¶ 4-7). Plaintiff seeks damages resulting from this alleged accident. (Doc. 63).
Remaining Defendants in this matter include Freightline Express Corp., United Specialty Insurance Company, and Liberty Mutual Fire Insurance Company.1 (See id.; Doc. 141). First, Plaintiff alleges that Freightline is Escobar’s statutory employer and is therefore vicariously liable for Escobar’s negligence at the time of the collision. (Doc. 63, ¶¶ 11-13). Second, Plaintiff alleges that United, as Freightline’s insurer, must pay damages caused by Escobar’s negligence. (Id. at ¶¶ 16-17). Plaintiff alleges that Escobar was covered by United’s Policy issued to Freightline. (Id. at ¶ 17). Finally, Plaintiff alleges that Liberty, as Plaintiffs UMIUIM insurer, is liable to Plaintiff to the extent that remaining liability insurance limits are insufficient to compensate Plaintiff for his damages. (Id. at ¶ 19).
United now moves for summary judgment, arguing that its policy does not provide the coverage that Plaintiff seeks. (Doc. 118).

B. PROCEDURAL HISTORY
Plaintiff initially filed suit in the 19th Judicial District Court, Parish of East Baton Rouge. (Doc. 1-4). This matter was removed [*3] to the Court based on diversity jurisdiction, 28 U.S.C. § 1332. (Doc. 1). Plaintiff twice sought leave to file Amended Complaints. (Doc. 39; Doc. 40; Doc. 62; Doc. 63). The Second Amended Complaint is now the operative pleading in this matter. (Doc. 63).

II. LEGAL STANDARD
A court may grant summary judgment only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When ruling on motions for summary judgment, courts are required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Coleman v. Hous. Indep. School Dist., 113 F.3d 528, 533 (5th Cir. 1997).
To survive summary judgment, however, the nonmoving party must do more than allege an issue of material fact: “Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Auguster v. Vermilion Par. Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). “Rule 56 does not impose upon the district court a duty to sift through the record [*4] in search of evidence to support a party’s opposition to summary judgment.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citations and quotation marks omitted). A party that fails to present competent evidence opposing a motion for summary judgment risks dismissal on this basis alone. E.g., Broussard v. Oryx Energy Co., 110 F. Supp. 2d 532, 536 (E.D. Tex. 2000) (“Plaintiff produced no genuine issue of material fact to prevent the granting of Defendant’s Motion, and therefore, the Court could grant Defendant’s Motion for Summary Judgment on this basis alone.”).

III. DISCUSSION

A. Undisputed Facts
Escobar owned the truck he was driving and the trailer he was pulling at the time of the alleged accident.2 (Doc. 118-5, ¶ 1). Escobar leased the truck and trailer to Freightline. (Id. at ¶ 2). United issued a commercial auto policy to Freightline (“United Policy”), with coverage effective dates of March 6, 2017, through March 6, 2018. (Id. at ¶ 3). Under the United Policy, United agreed to:
[P]ay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto.”
(Id. at ¶ 4).
The United Policy limited liability coverage to “Covered Autos” [*5] designated by Symbol “67,” defined as:
Only those “autos” described in Item Three of the Declarations for which a premium charge is shown (and for Covered Auto Liability Coverage any “trailers” you don’t own while attached to any power unit described in Item Three).
(Id. at ¶ 5). There are three “Covered Autos” scheduled on the United Policy, none of which were involved in the alleged accident. (Id. at ¶¶ 6-7). Escobar’s truck was not scheduled on the United Policy on the date of the alleged accident. (Id. at ¶ 7).

B. Analysis
United argues that summary judgment is warranted in its favor because the United Policy does not provide coverage for any of Plaintiff’s claims. (Doc. 118, p. 1). Specifically, United asserts that its Policy does not provide coverage because Escobar’s truck was not scheduled as a “Covered Auto.” (Doc. 118-6, p. 1), United asks the Court to apply the clear and unambiguous language of the Policy to find that the United Policy only provides coverage to “Covered Autos.” (Id. at p. 4).
Plaintiff responds that because Escobar was a named insured under the United Policy, the fact that he was operating an unscheduled auto is of “no consequence” to the question of coverage [6] under the MCS-90 Endorsement included in the United Policy. (Doc. 129, p. 8). Plaintiff argues that the MCS-90 Endorsement requires United to pay “any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980, regardless of whether or not each motor vehicle is specifically described in the policy . . .” (Id. at p. 7). In short, Plaintiff relies on the applicability of the MCS-90 Endorsement included in the United Policy to seek payment from United. “The MCS-90 [endorsement] is a federally mandated policy endorsement required to ensure a motor carrier’s compliance with federal minimum levels of financial responsibility for the transportation of property by a motor carrier within the United States.” Cutrer v. TWT Transp., L.L.C., 485 F. Supp. 3d 677, 683-84 (M.D. La. 2020) (citing Canal Ins. Co. v. Coleman, 625 F.3d 244 (5th Cir. 2010)). The MCS-90 endorsement must be attached to any liability policy issued to for-hire motor carriers operating motor vehicles transporting property in interstate commerce. Coleman, 625 F.3d at 247 (citing 49 C.F.R. §§ 387.3, 387.7). The endorsement creates a suretyship, which obligates an insurer to pay certain judgments against the insured arising from interstate commerce activities, [7] even though the insurance contract would have otherwise excluded coverage. Coleman, 625 F.3d at 247 (internal citations omitted). Whether the MCS-90 endorsement covers a given accident is a matter of federal law. Cutrer, 485 F. Supp. 3d at 684 (citing Coleman, 625 F.3d at 244).
To determine the scope of coverage provided by the MCS-90, the United States Court of Appeals for the Fifth Circuit directs the Court to first look to the plain language of the MCS-Endorsement. Here, the MCS-90 Endorsement provides in pertinent part:
The insurance policy to which this endorsement is attached provides automobile liability insurance and is amended to assure compliance by the insured, within the limits stated herein, as a motor carrier of property, with Section 29 and 30 of the Motor Carrier Act of 1980 and the rules and regulations of the Federal Motor Carrier Safety Administration (FMCSA).
In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirement of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless [8] of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere. (Doc. 118-4, p. 63). In short, the MCS-90 Endorsement requires United to pay any final judgment recovered against Freightliner for “public liability” resulting from the negligent operation, maintenance, or use of “motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980.” (Id.); see also Coleman, 625 F.3d at 248. Therefore, the Court must determine whether Escobar’s truck was “subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980” to determine whether the MCS-90 applies.3 (Doc. 118-4, p. 63); see also Coleman, 625 F.3d at 248. Looking to the relevant portion of the Motor Carrier Act to determine whether Escobar’s truck was subject to its financial responsibility requirements, Section 30 provides: The Secretary of Transportation shall prescribe regulations to require minimum levels of financial responsibility sufficient to satisfy liability amounts established by the Secretary covering public liability, property damage, and environmental restoration for the transportation of [9] property by motor carrier or motor private carrier (as such terms are defined in section 13102 of this title) in the United States between a place in a State and—
(A) a place in another State;
(B) another place in the same State through a place outside of that State; or
(C) a place outside the United States.
49 U.S.C. § 31139(b); see also Coleman, 625 F.3d at 248-49.
In interpreting Section 30 and a similar MCS-90 endorsement, the Fifth Circuit has held that the endorsement covered vehicles “only when they are presently engaged in the transportation of property in interstate commerce,” and explained that this is a “trip-specific” analysis. Id. at 249, 253 (emphasis added). The Fifth Circuit reasoned:
[T]he MCS-90 applies to vehicles subject to § 30 of the Motor Carrier Act. Section 30 requires minimum levels of financial responsibility, which must be sufficient to “satisfy liability . . . for the transportation of property in interstate commerce.” Thus, the MCS-90 is a way of conforming with statutory minimum-financial-responsibility requirements. And because those requirements exist to “satisfy liability . . . for the transportation of property,” it follows that the MCS-90 must cover liabilities “for the transportation of property.” Nothing in the MCS-90’s text indicates that it covers [10] other kinds of liabilities,i.e.,liabilities incurred outside of the transportation of property. Id. at 249 (emphasis added). Accordingly, the MCS-90 Endorsement applies in this case if Escobar’s truck was “presently engaged in the transportation of property in interstate commerce” at the time of the alleged accident. Id. at 249, 253 (“the `transportation of property’ limitation applies on a trip-specific basis.”). The term “transportation” includes: (A) a motor vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, regardless of ownership or an agreement concerning use; and (B) services related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property. 49 U.S.C. § 13102 (Section 30 of the Motor Carrier Act indicates that its terms are to be read as “defined in section 13102 of this title.”); see also Section 31139(b); see also Coleman, 625 F.3d at 252. The Fifth Circuit has noted the broad nature of the definition of “transportation.” Id. at 254. The Court has previously addressed the question of whether a vehicle was engaged in transportation [11] of property in interstate commerce to determine whether a similar MCS-90 endorsement applied in Cutrer v. TWT Transport, L.L.C. 485 F. Supp. 3d 677, 685 (M.D. La. 2020). Holding that the MCS-90 endorsement was inapplicable because the vehicle was not engaged in transportation of property in interstate commerce, the Court declared:
[T]he main fact question informing the applicability of the MCS-90 endorsement under the Fifth Circuit test: at the time of the accident, was the [vehicle] being used for-hire [] to transport the property of a third party in interstate commerce. Here, the record evidence provides a single answer: no.
Id. at 685. The Court reasoned that because there was no contract for work on the date of the accident, the only property being moved belonged to the driver and was being moved for personal use, and no compensation was received from a third party, the MCS-90 endorsement did not apply. Id. Here, as in Cutrer, the record evidence leads to the same conclusion. See id.
United offers Escobar’s deposition testimony to support its argument that Escobar was not transporting property of a third party in interstate commerce at the time of the alleged accident, but instead, was on a personal mission to get his trailer repaired. (Doc. 133, p. 4-6). Escobar testified [*12] that at the time of the alleged accident, Escobar had no load in his truck, was on a personal mission, was not doing anything employment related, and decided on his own to travel to Florida to get his trailer repaired. (Id. at p. 4-5 (citing Doc. 118-2, 47:2-10, 24:5-7, 24:17-21)). Escobar further testified that Freightline did not instruct Escobar to get his trailer repaired or to travel to Florida to get his trailer repaired. (Id. at p. 4 (citing Doc. 118-2, 24:7-21)).
In opposition, Plaintiff offers no evidence whatsoever to indicate that Escobar was presently engaged in the transportation of property in interstate commerce at the time of the alleged accident. (See generally Doc. 129). Rather, Plaintiff argues that the MCS-90 Endorsement is applicable because United denied coverage and because no other insurer is available to satisfy a judgment rendered against Freightline. (Id. at p. 5).
The Court has repeatedly admonished that “summary judgment is about evidence, and a party that fails to direct the Court’s attention to any evidence supporting his claims cannot carry his burden of showing a genuine, material dispute (or lack thereof).” Mitchell v. Diamond Plastics Corp., No. 18-cv-00919-BAJ-RLB, 2021 U.S. Dist. LEXIS 63291, 2021 WL 1234520, at *1 (M.D. La. Mar. 31, 2021) (Jackson, J.) (emphasis in original, quotation [*13] marks omitted); see also Gerkin v. McMurdo, No. 19-cv-00249, 2021 U.S. Dist. LEXIS 31714, 2021 WL 664840, at *1 (M.D. La. Feb. 19, 2021) (Jackson, J.) Combs v. Exxon Mobil Corp., No. 18-cv-00459, 2020 U.S. Dist. LEXIS 159457, 2020 WL 5121362, at 6 (M.D. La. Aug. 31, 2020) (Jackson, J.). To survive summary judgment, the nonmoving party must do more than allege an issue of material fact: “Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.”. Auguster v. Vermilion Par. Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). A party that fails to present competent evidence opposing a motion for summary judgment risks dismissal on this basis alone. E.g., Broussard v. Oryx Energy Co., 110 F. Supp. 2d 532, 536 (E.D. Tex. 2000) (“Plaintiff produced no genuine issue of material fact to prevent the granting of Defendant’s Motion, and therefore, the Court could grant Defendant’s Motion for Summary Judgment on this basis alone.”). “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citations and quotation marks omitted), Facing no competent record evidence to controvert United’s argument and summary judgment evidence indicating that Escobar was on a personal mission at the time of the alleged accident, the Court has nothing before it to find that Escobar was “presently engaged [14] in the transportation of property in interstate commerce” when the accident occurred. Accordingly, the MCS-90 Endorsement does not apply in this case.4 See Coleman, 625 F.3d at 252 (“Many other courts have similarly stated the MCS-90’s purpose as protecting the public from vehicles while they are being used for the transportation of property in interstate commerce.”). Because Plaintiff relies on the applicability of the MCS-90 Endorsement to obtain coverage from United, summary judgment is granted in United’s favor.

IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendant United Specialty Insurance Company’s Motion for Summary Judgment (Doc. 118) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs claims against Defendant United Specialty Insurance Company [*15] are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that United Specialty Insurance Company’s Motion to Adopt Freightline Express Corp.’s Motion In Limine, Memorandum In Support, And Exhibits (Doc. 139) is DENIED AS MOOT.
Baton Rouge, Louisiana, this 13th day of January 2022
/s/ Brian A. Jackson
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

4 To the extent Plaintiff argues that the MCS-90 Endorsement should apply “regardless of whether or not each motor vehicle is specifically described in the policy,” the Fifth Circuit has rejected this argument and held that the “regardless” language contained in the endorsement does not mean that the endorsement always applies. Canal Ins. Co. v. Coleman, 625 F.3d 244, 253 (5th Cir. 2010). Rather, “the MCS-90 applies to vehicles subject to the Motor Carrier Act’s financial-responsibility requirements. For those vehicles, and only for those vehicles, the MCS-90 provides coverage ‘regardless of whether or not each motor vehicle is specifically described in the policy . . .,”‘ Id. Because Escobar’s vehicle was not “presently engaged in the transportation of property in interstate commerce,” it was not subject to the Motor Carrier Act’s financial-responsibility requirements.

Supreme Court of New York, Kings County
January 12, 2022, Decided
Index No. 12355/14

Reporter
2022 N.Y. Misc. LEXIS 159 *; 2022 NY Slip Op 30078(U) **

[**1] IVAN VOLGASSOV, Plaintiff, -against- SILVERSTEIN PROPERTIES, INC., 4 WORLD TRADE CENTER LLC, TISHMAN CONSTRUCTION CORPORATION, TURNER CONSTRUCTION COMPANY, TISHMAN/TURNER A JOINT VENTURE, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, CLARKWESTERN DIETRICH BUILDING SYSTEMS LLC, PARK AVENUE BUILDING & ROOFING SUPPLIES, INC., PARK AVENUE BUILDING & ROOFING SUPPLIES, LLC, and NAVARRO TRUCKING LLC, Defendants,
Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
Core Terms

track, skid, trailer, loading dock, cause of action, indemnification, truck, Transportation, load, summary judgment, straps, unloading, delivery, common-law, drywall, flatbed, supervise, premised, Labor Law, contractual, fail to demonstrate, handling, bundles, factual issue, subcontractors, pieces, prima facie, contractor, securing, bed
Judges: [*1] PRESENT: HON. KAREN B. ROTHENBERG, Justice.
Opinion

Go to table1
[2] Upon the foregoing papers, defendants Silverstein Properties, Inc. (Silverstein), 4 World Trade Center LLC (4WTC), Turner Construction Company (Turner) and Port Authority of New York and New Jersey (Port Authority) (collectively referred to as the World Trade Center Defendants) move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint and granting them summary judgment in their favor on their common-law indemnification claims (motion sequence “mot. seq.” 9). Defendants Tishman Construction Corporation (Tishman) and Tishman/Turner A Joint Venture (Tishman/Turner) moves for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint and all [2] cross claims asserted against them (mot. seq. 10). Defendant Navarro Trucking LLC (Navarro) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint as against it (mot. seq. 11). Defendant Clarkwestern Dietrich Building Services LLC (Clarkwestern) moves for an order: (1) pursuant to CPLR 3212, granting it summary judgment dismissing the complaint and all cross claims as against it; (2) pursuant to CPLR 3025 (b), granting it leave to amend its answer to assert crossclaims for contractual indemnification and for breach of contract for failure to obtain insurance as against Navarro; and (3) pursuant to CPLR 3212, granting it summary judgment in its favor on its cross claims for contractual indemnification and breach of contract for failure to obtain insurance (mot. seq. 12). [3] Plaintiff cross-moves for an order, pursuant to CPLR 3212, granting him partial summary judgment in his favor as against defendants Port Authority, Silverstein, 4WTC, Tishman, and Turner with respect to his Labor Law § 240 (1) cause of action, with respect to his Labor Law 241 (6) cause of action premised on violations of 12 NYCRR 23-1.7 (f) and 12 NYCRR 23-9.8 (h), and with respect to his common-law negligence and Labor Law § 200 causes of action (mot. seq. 13).
The World Trade Center Defendants’ motion (mot. seq. [3] 9) is granted only to the extent that plaintiff’s Labor Law § 241 (6) cause of action is dismissed as against them and the Labor Law § 200 cause of action is dismissed to the extent that is premised on a dangerous property condition theory of liability. Their motion is otherwise denied.
Tishman and Tishman/Turner’s motion (mot. seq. 10) is granted and the complaint and all cross claims against them are dismissed, the action is severed accordingly, and the clerk is directed to enter judgment accordingly.
Navarro’s motion (mot. seq. 11) is granted to the extent that plaintiff’s causes of action premised on Labor Law §§ 200, 240 (1), and 241 (6) are dismissed as against it. Navarro’s motion is otherwise denied.
Clarkwestern’s motion (mot. seq. 12) is granted to the extent that plaintiff’s causes of action premised on Labor Law §§ 200, 240 (1), and 241 (6) are dismissed as against it and to the extent that it is granted leave to amend its answer to assert a cross claim for [*4] contractual indemnification as against Navarro.2 Clarkwestern’s motion is otherwise denied. Plaintiff Ivan Volgassov’s motion (mot. seq. 13) is denied. In view of the dismissal of the action as against Tishman and Tishman/Turner, and in view of the stipulation, dated July 7, 2020, discontinuing the action as against [4] defendants Park Avenue Building & Roofing Supplies, Inc., and Park Avenue Building & Roofing Supplies, LLC, with prejudice, the caption is amended to read as follows:
IVAN VOLGASSOV, Plaintiff, -against- SILVERSTEIN PROPERTIES, INC., 4 WORLD TRADE CENTER LLC, TURNER CONSTRUCTION COMPANY, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, CLARKWESTERN DIETRICH BUILDING SYSTEMS LLC, and NAVARRO TRUCKING LLC, Defendants,
Index No.: 12355/14

Background
In this action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6), plaintiff Ivan Volgassov alleges that he was injured on March 26, 2014, when, while standing on a flatbed trailer helping unload drywall framing [5] and track, he cut a strap3 securing drywall track to a skid, and pieces of the drywall track fell off the skid onto plaintiff, pushing him off the side of the truck onto the ground. At the time of the accident, the flatbed trailer was parked at a loading dock at 4WTC’s building, which was then under construction. Port Authority was the owner of the premises, which it leased, pursuant to a 99-year lease, to 4WTC. Silverstein was an affiliate of 4WTC.4 4WTC hired Tishman as the general contractor for building the core and shell the building, [5] which work also encompassed the construction of the temporary loading dock at issue. 4WTC also hired Turner to act as the general contractor for the interior buildout of several floors of the building and Turner, in turn, subcontracted with plaintiff’s employer, non-party Jacobson & Company, Inc. (Jacobson), to install drywall and ceilings.5 The drywall framing material, which was ordered by Jacobson,6 was manufactured by Clarkwestern and was delivered to the construction site by Nazarro, a trucking company with which Clarkwestern had a long-term contract for delivering its products. On the morning of the accident, plaintiff, who was employed by Jacobson as a carpenter, was installing tracks in the ceiling of one of the floors on which Jacobson was working when he was instructed to assist with the unloading of drywall studs and drywall track from a flatbed trailer. When plaintiff reached the Liberty Street loading dock, the [6] flatbed trailer was already parked at the loading dock with the rear of the trailer abutting the loading dock platform. At that time, the truck driver had already taken off the straps securing the skids of material to the trailer, but the straps securing the studs [6] or track to the skids were still in place. The loading dock had no platform along the side of the trailer, the bed of which, according to plaintiff, was approximately five feet above the ground.7 Since Turner had informed Jacobson that it could not use forklifts in the street to unload material from the delivery trucks,8 plaintiff and his coworkers unloaded the trailer by cutting the straps securing the studs or track to the skids, hand carrying the studs and track off the trailer to A-frame carts sitting on the loading dock platform, and then rolling the carts to the material lift to the floors on which Jacobson was working.
After plaintiff and his coworkers had unloaded several skids in this manner, plaintiff then went to cut the straps securing a skid of drywall track that was located near the front (cab end) of the trailer. In order to reach the straps, plaintiff walked along the edge of the trailer, facing the skid, and his back to the sidewalk side of the trailer. Plaintiff cut the first two straps without incident, but when he cut the third strap, some bundles of the track pieces came off the skid and pushed plaintiff off the side of the [7] trailer as the track pieces9 fell to the [7] ground. Although plaintiff landed on his feet on the sidewalk next to the truck, his back struck a parking bollard as he fell. The track pieces that struck plaintiff were located near the top of a skid, which was at the same level as plaintiff’s chest, a height that plaintiff, in his deposition testimony, estimated to be five feet above the trailer bed.10 At his deposition, plaintiff testified that after the accident he observed that the dunnage — wooden pieces placed around the drywall track by Clarkwestern to help hold the track in place on the skid — appeared to be missing from the skid at issue. At his deposition, Thomas DePrima, a Jacobson shop steward who was standing on the truck at the time of the accident, asserted that the dunnage on the skid appeared to have been improperly placed. Both plaintiff and DePrima stated that the issue with the dunnage could have contributed to the drywall track falling when the straps were released. Shane Ouellette, a Jacobson supervisor, testified that, after the accident, he noticed that the pieces of drywall track that fell off of the truck appeared to be bent, suggesting to him that the straps used by the truck driver to hold the skids of track [8] onto the trailer were too tight, which he believed would have caused the track bundles to come loose when plaintiff cut the straps. Ouellette believed this possible cause of the accident was supported by a photograph that, according to Ouellette, shows dunnage out of kilter, [8] which he believes likely happened because the skid of drywall track was strapped too tightly onto the truck.
Clarkwestern’s witness, Charles Hahn, provided detailed testimony regarding the size and weight of the drywall track at issue. Hahn testified that the packing slip for the delivery at issue showed that there were two skids of drywall track on the flatbed. According to Hahn each piece of track was 10 feet long, and one of the skids was loaded with 150 pieces of two-and-one-half-inch track with a two-inch leg that weighed 669 pounds in total and another skid loaded with 200 pieces of three-and-five-eighth-inch track with one-and-one-quarter-inch leg that weighed 840 pounds in total. Hahn added that the pieces of track were bundled in six-piece units, which, based on the total weight of each kind of track on the respective skids, would have weighed 26.76 pounds for each bundle of the two-and-half-inch track, [*9] and 25.2 pounds for each bundle of the three-and-five-eighth-inch track.
Based on the deposition testimony of Clarkwestern and Navarro’s witness, it is apparent that it was Clarkwestern that packed the bundles of wallboard track onto the skid, placed the dunnage around the track on the skid, strapped the track onto the skid and loaded the skids onto the flatbed trailer. Navarro’s driver, however, would have been the one to inspect the load and attach the straps to hold the skids onto the trailer during the delivery. Similarly, it would have been the driver who would have removed the straps holding the skids onto the trailer at the delivery site.

[**9] Discussion

Consideration of Plaintiff’s Motion and Opposition Papers
Initially, defendants are correct that plaintiff’s cross motion, which was not made until April 27, 2021, is untimely under Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6, as it was made more than 60 days after the filing of the note of issue on February 28, 2020 (see Goldin v New York & Presbyt. Hosp., 112 AD3d 578, 579, 975 N.Y.S.2d 892 [2d Dept 2013]; CPLR 3212 [a]). Since defendants, however, have already timely moved for summary judgment with respect plaintiff’s causes of action under the common-law and Labor Law §§ 200 and 240 (1), and the Labor Law § 241 (6) cause of action to the extent it is [10] premised on 12 NYCRR 23-9.8 (h), this court may properly consider the portion of plaintiff’s cross motion seeking summary judgment in his favor on those claims (see Sikorjak v City of New York, 168 AD3d 778, 780, 91 N.Y.S.3d 186 [2d Dept 2019]; Sheng Hai Tong v K & K 7619, Inc., 144 AD3d 887, 890, 41 N.Y.S.3d 266 [2d Dept 2016]; Derrick v North Star Orthopedics, PLLC, 121 AD3d 741, 743, 994 N.Y.S.2d 159 [2d Dept 2014]; Wernicki v Knipper, 119 A.D.3d 775, 776, 989 N.Y.S.2d 318 [2d Dept 2014]; Paredes v 1668 Realty Assoc., LLC, 110 AD3d 700, 702, 972 N.Y.S.2d 304 [2d Dept 2013]).11 The court, however, will not consider plaintiff’s motion as it relates to his Labor Law § 241 (6) cause of action to the extent that it is premised on 12 NYCRR 23-1.7 (f). This is because defendants did not address that section (which was not alleged in plaintiff’s bill of particulars or supplemental bills) in [10] their respective motions (see Jarama v 902 Liberty Ave. Hous. Dev. Fund Corp., 161 AD3d 691, 691-692, 78 N.Y.S.3d 73 [1st Dept 2018]; Sheng Hai Tong, 144 AD3d at 890; Paredes, 110 AD3d at 702) and because plaintiff has otherwise failed to make any factual or legal arguments suggesting that he has good cause for his delay in moving (see Sheng Hai Tong, 144 AD3d at 890; Goldin, 112 AD3d at 579). The court additionally finds that it will consider plaintiff’s cross motion and opposition papers despite the fact that they were not filed on April 26, 2021 as was required by the March 19, 2021 scheduling order. In this regard, plaintiff’s papers were efiled and served at 2:40 a.m. on April 27, 2021, only hours after the deadline, plaintiff’s counsel has explained that the delay was the result of an issue with his scanner that prevented him from scanning the documents on the 26th, and defendants suffered no conceivable prejudice as the result of plaintiff’s delay in that [11] the scheduling order gave them until June 9, 2021 to submit opposition papers (see Skillings v City of New York, 173 AD3d 799, 800-801, 105 N.Y.S.3d 431 [2d Dept 2019], appeal dismissed 34 N.Y.3d 1088, 116 N.Y.S.3d 187, 139 N.E.3d 845 [2020], cert denied US , 141 SCt 1745, 209 L. Ed. 2d 510 [2021]; Hsu v Shields, 111 AD3d 674, 674, 974 N.Y.S.2d 800 [2d Dept 2013]; Bakare v Kakouras, 110 AD3d 838, 839, 972 N.Y.S.2d 710 [2d Dept 2013]; CPLR 2001, 2004). Plaintiff’s additional delay in serving the exhibits to the motion papers is immaterial as most, if not all, of those exhibits had previously been provided to the court by the defendants through their respective motion and opposition papers.

Tishman/Turner
In moving, Tishman/Turner has submitted evidentiary proof demonstrating, prima facie, that the work of the Tishman/Turner joint venture was entirely unrelated to the [**11] premises, construction work, and material delivery at issue in this action. As such, in the absence of any opposition from any party in this regard, Tishman/Turner is entitled to the dismissal of the complaint and any cross claims as against it.

Labor Law Defendants
Tishman seeks summary judgment dismissing plaintiff’s causes of action premised on Labor Law §§ 200, 240 (1) and 241 (6) on the ground that it is not a proper Labor Law defendant. As a general rule, a separate prime contractor is not liable under Labor Law §§ 200, 240 or 241 for injuries caused to the employees of other contractors with whom they are not in privity of contract, so long as the contractor has not been delegated [12] the authority to oversee and control the activities of the injured worker (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318, 429 N.E.2d 805, 445 N.Y.S.2d 127 [1981]; Knab v Robertson, 155 AD3d 1565, 1566, 63 N.Y.S.3d 781 [4th Dept 2017]; Giovanniello v E.W. Howell, Co., LLC, 104 AD3d 812, 813-814, 961 N.Y.S.2d 513 [2d Dept 2013]; Delanoy v City of White Plains, 83 AD3d 773, 774, 923 N.Y.S.2d 116 [2d Dept 2011], leave dismissed 17 N.Y.3d 881, 957 N.E.2d 1138, 933 N.Y.S.2d 636 [2011]; Barrios v City of New York, 75 AD3d 517, 518, 905 N.Y.S.2d 255 [2d Dept 2010]; Everitt v Nozkowski, 285 AD2d 442, 443-444, 728 N.Y.S.2d 58 [2d Dept 2001]). However, where a separate prime contractor has been delegated the authority to supervise and control the plaintiff’s work, the contractor “becomes a statutory ‘agent’ of the owner or general contractor” (Russin, 54 NY2d at 318; see Walls v Turner Constr. Co., 4 NY3d 861, 863-864, 831 N.E.2d 408, 798 N.Y.S.2d 351 [2005]; Barrios, 75 AD3d at 518). In moving, Tishman relies on the undisputed fact that Tishman and Turner were each hired directly by 4WTC. Tishman also submits the deposition testimony of Dean Essen, its general superintendent/vice president, who stated that Tishman was responsible [12] for the construction of the shell and core of the building at 4 World Trade Center, that, by the end of 2013 and early 2014, Tishman’s work, other than a few punch list items, was essentially finished, that it had obtained a temporary certificate of occupancy by that time, and that Tishman’s authority only extended to its work and that of its own subcontractors.12 Although the loading dock was constructed by Tishman’s subcontractor Regional Scaffolding and Hoisting Co., Inc., (Regional) sometime in late 2013 or early 2014, Essen asserts that it was Turner, the build-out contractor for the interior, that had full control [13] over the loading dock after it was built. Similarly, Sean McNeary, Turner’s safety manager, testified that Turner was the general contractor for interior build-out work on 12 to 14 floors of the building, that Turner hired its own subcontractors for this work, that Tishman had no workers on the jobsite during the time he (McNeary) was there, and that he had no interaction with Tishman. Shane Ouellette, Jacobson’s general foreman, similarly testified that, by the time Jacobson started its interior work, Tishman’s phase on the project was complete, that he had no interaction with Tishman and that he had received no instruction from Tishman regarding how Jacobson should perform its work. Through this evidence, Tishman has demonstrated, prima facie, that it did not have authority to supervise and control plaintiff’s work (see Russin, 54 NY2d at 317; Knab, 155 AD3d at 1566; Bennett v Hucke, 131 AD3d 993, 995, 16 N.Y.S.3d 261 [2d Dept 2015], affd 28 NY3d [13] 964, 38 N.Y.S.3d 834, 60 N.E.3d 1200 [2016]; Giovanniello v E.W. Howell, Co., LLC, 104 AD3d 812, 813-814, 961 N.Y.S.2d 513 [2d Dept 2013]; Kelarakos v Massapequa Water Dist., 38 AD3d 717, 718, 832 N.Y.S.2d 625 [2d Dept 2007]; Kwoksze Wong v New York Times Co., 297 AD2d 544, 548-549, 747 N.Y.S.2d 213 [1st Dept 2002]; Lopes v Interstate Concrete, Inc., 293 AD2d 579, 579-580, 741 N.Y.S.2d 73 [2d Dept 2002]).
Although plaintiff is correct that Tishman’s contract with 4WTC required Tishman to supervise subcontractors, this supervision requirement was clearly limited to the supervision of subcontractors hired by it (see Tishman Contract § 3.2). Further, contrary to plaintiff’s contention, the fact that Tishman’s subcontractor built the loading dock does [14] not make Tishman a Labor Law defendant since Tishman did not have authority to supervise or control the work of Turner or its subcontractors in their use of the loading dock (see DeSimone v City of New York, 121 AD3d 420, 421-422, 993 N.Y.S.2d 551 [1st Dept 2014]; Poracki v St. Mary’s Roman Catholic Church, 82 AD3d 1192, 1195, 920 N.Y.S.2d 233 [2d Dept 2011]; Morales v Spring Scaffolding, Inc., 24 AD3d 42, 46, 802 N.Y.S.2d 41 [1st Dept 2005]; Lopes, 293 AD2d at 579-580). Plaintiff, in opposition, has submitted no evidentiary proof showing that Tishman had the authority to supervise plaintiff’s work at the time of the accident. As such, plaintiff has failed to demonstrate an issue of fact warranting denial of this aspect of Tishman’s motion, and Tishman is thus entitled to dismissal of the Labor Law causes of action against it. Navarro and Clarkwestern, in their respective motions, also assert that they are entitled to dismissal of the Labor Law causes of action as against them in that they are not owners, contractors or agents thereof for purposes of Labor Law §§ 240 (1) and 241 (6) and that they did not have authority to supervise plaintiff’s work for purpose of Labor Law § 200. [14] Here, it is undisputed that Clarkwestern’s role was limited to manufacturing the track and studs, packing the skids, and loading them onto the flatbed trailer, and that Navarro’s role was limited to transporting the material to the construction site. In view of their respective roles, and given that there no evidence in the record [15] suggesting that either Clarkwestern or Navarro had any authority to supervise Jacobson’s work, Clarkwestern and Navarro have each demonstrated their prima facie entitlement to dismissal of the Labor Law causes of action (see Ahern v NYU Langone Med. Ctr., 147 AD3d 537, 538, 48 N.Y.S.3d 39 [1st Dept 2017]; Brownell v Blue Seal Feeds, Inc., 89 AD3d 1425, 1427-1428, 932 N.Y.S.2d 623 [4th Dept 2011]; Gonzalez v Glenwood Mason Supply Co., Inc., 41 A.D.3d 338, 339, 839 N.Y.S.2d 74 [1st Dept 2007]; Kocurek v Home Depot, U.S.A.P., 286 AD2d 577, 580, 730 N.Y.S.2d 74 [1st Dept 2001]; Brooks v Harris Structural Steel, 242 AD2d 653, 653, 662 N.Y.S.2d 781 [2d Dept 1997]). As plaintiff has not addressed this aspect of Clarkwestern and Navarro’s motions, and has not submitted evidentiary proof demonstrating the existence of a factual issue in this respect, Clarkwestern and Navarro are entitled to summary judgment dismissing plaintiff’s Labor Law causes as against them.
As the World Trade Center defendants raise no contention that they are improper Labor Law defendants, the court turns to whether plaintiff can otherwise make out his Labor Law claims as against them.

[15] Labor Law § 240 (1) Labor Law § 240 (1)13 imposes absolute liability on owners and contractors or their agents when they fail to protect workers employed on a construction site from injuries proximately caused by risks associated with falling from a height or those associated with falling objects (see Wilinski v 334 East 92nd Housing Dev. Fund Corp., 18 NY3d 1, 3, 959 N.E.2d 488, 935 N.Y.S.2d 551 [2011]; Narducci v Manhasset Bay Assocs., 96 N.Y.2d 259, 267-268, 750 N.E.2d 1085, 727 N.Y.S.2d 37 [2001]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500, 618 N.E.2d 82, 601 N.Y.S.2d 49 [1993]).14 For a defendant to be held liable under Labor Law § 240 (1), a plaintiff’s injuries must be “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation [16] differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603, 922 N.E.2d 865, 895 N.Y.S.2d 279 [2009]; see Wilinski, 18 NY3d at 10). For accidents involving falling workers, a worker’s fall is generally, in an of itself, insufficient to demonstrate that proper protection was not provided (see O’Brien v Port Auth. of N.Y. & N.J., 29 NY3d 27, 33, 52 N.Y.S.3d 68, 74 N.E.3d 307 [2017]; Berg v Albany Ladder Co., Inc., 10 NY3d 902, 903-904, 891 N.E.2d 723, 861 N.Y.S.2d 607 [2008]; Torres v New York City Hous. Auth., 199 AD3d 852, 854 [2d Dept 2021]). Similarly, with respect to accidents involving falling objects, the “plaintiff must show more than simply that an [16] object fell causing injury to a worker” (Narducci, 96 NY2d at 268; see also Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 663, 985 N.Y.S.2d 416, 8 N.E.3d 791 [2014]). A plaintiff must show that, at the time the object fell, it was “being hoisted or secured” (Narducci, 96 NY2d at 268) or “required securing for the purposes of the undertaking” (Outar v City of New York, 5 NY3d 731, 732, 832 N.E.2d 1186, 799 N.Y.S.2d 770 [2005]; see Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758, 896 N.E.2d 75, 866 N.Y.S.2d 592 [2008]) and that the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute” (Narducci, 96 NY2d at 268; see Fabrizi, 22 NY3d at 663).
Importantly, in assessing liability under Labor Law § 240 (1) here, the Court of Appeals has specifically held that a four-to-five-foot fall from the bed of a flatbed trailer is not the sort of elevation risk that implicates the protections of Labor Law § 240 (1) (see Toefer v Long Is. R.R., 4 NY3d 399, 408-409, 828 N.E.2d 614, 795 N.Y.S.2d 511 [2005]; Berg, 10 NY3d at 903-904). Indeed, this rationale also applies and section 240 (1) is not implicated when a plaintiff’s fall from a flatbed is precipitated by the upward or lateral movement of an object (see Toefer, 4 NY3d at 408; Brownell v Blue Seal Feeds, Inc., 89 AD3d 1425, 1426, 932 N.Y.S.2d 623 [4th Dept 2011]). Nevertheless, where a plaintiff falls from on top of a load or material that is significantly above the four-to-five-foot height of [17] the truck or trailer bed (see Myiow v City of New York, 143 AD3d 433, 436, 39 N.Y.S.3d 1 [1st Dept 2016]; Intelisano v Sam Greco Constr., Inc., 68 AD3d 1321, 1322-1323, 890 N.Y.S.2d 683 [3d Dept 2009]; Ford v HRH Constr. Corp., 41 AD3d 639, 640-641, 838 N.Y.S.2d 636 [2d Dept 2007]; cf. Berg, 10 NY3d at 903-904) or where a plaintiff’s fall from the truck or trailer bed is caused by a falling object that should have been secured or was improperly secured (see Medouze v Plaza Constr. LLC, 199 AD3d 465, 465-466, 154 N.Y.S.3d 232 [1st [17] Dept 2021]; Shaw v Scepter, Inc., 187 AD3d 1662, 1664-1665, 133 N.Y.S.3d 709 [4th Dept 2020]; Flores v Metropolitan Transp. Auth., 164 AD3d 418, 419, 84 N.Y.S.3d 434 [1st Dept 2018]; Treile v Brooklyn Tillary, LLC, 120 AD3d 1335, 1336-1337, 992 N.Y.S.2d 345 [2d Dept 2014]; Hyatt v Young, 117 AD3d 1420, 1420-1421, 984 N.Y.S.2d 533 [4th Dept 2014]; cf. Rodriguez v D & S Bldrs., LLC, 98 AD3d 957, 958-959, 951 N.Y.S.2d 54 [2d Dept 2012]), the Appellate Division has recognized that section 240 (1) is or may be implicated. Here, the fact that the skid was on the same level as plaintiff does not bar application of section 240 (1) (see Wilinski, 18 NY3d at 9-10; Natoli v City of New York, 148 AD3d 489, 489, 49 N.Y.S.3d 663 [1st Dept 2017]; McCallister v 200 Park, L.P., 92 AD3d 927, 928-929, 939 N.Y.S.2d 538 [2d Dept 2012]). However, the top of the skid at issue was only at plaintiff’s chest level, and, to the extent that the track fell onto plaintiff’s chest, it did not fall a significant distance (see Narducci, 96 NY2d at 267; Wright v Ellsworth Partners, LLC, 173 AD3d 1409, 1410, 104 N.Y.S.3d 360 [3d Dept 2019], lv denied 34 N.Y.3d 907, 115 N.Y.S.3d 778, 139 N.E.3d 400 [2019]; Kuhn v Giovanniello, 145 AD3d 1457, 1458, 43 N.Y.S.3d 628 [4th Dept 2016]; Grygo v 1116 Kings Highway Realty, LLC, 96 A.D.3d 1002, 1003, 947 N.Y.S.2d 586 [2d Dept 2012]). On the other hand, the bundles of track undoubtedly continued to generate force as they slid off the skid while pushing against plaintiff and, although each bundle only weighed 25 or 26 pounds, it is apparent from the video showing the accident that at least a few bundles fell onto plaintiff. In view of the combined weight of the track bundles and the force they may have generated despite the limited distance at issue (see Wilinski, 18 NY3d at 10; Outar, 5 NY3d at 732; Tropea v Tishman Constr. Corp., 172 AD3d 450, 451, 100 N.Y.S.3d 237 [1st Dept 2019], affirming 2017 N.Y. Misc. LEXIS 13379, 2017 WL 6731869, 2 [U] [Sup Ct, New York County 2017]; Rutkowski v New York Convention [18] Ctr. Dev. Corp., 146 AD3d 686, 686, 46 N.Y.S.3d 54 [1st Dept 2017]; Pritchard v Tully Constr. Co., Inc., 82 AD3d 730, 730-731, 918 N.Y.S.2d 154 [2d Dept 2011]; Cardenas v One State St., LLC, 68 AD3d 436, 437-438, 890 N.Y.S.2d 41 [1st Dept 2009]; Mendoza v Bayridge Parkway Assoc., LLC, 38 AD3d 505, 506, 831 N.Y.S.2d 485 [2d Dept 2007]; cf. Kuhn, 145 AD3d at 1458; but see Rodriguez, 98 AD3d at 958),15 this court finds that there are factual issues with respect to whether plaintiff was faced with a significant elevation differential for purposes [18] of section 240 (1) (see Wiski v Verizon N.Y., Inc., 186 AD3d 1590, 1591, 129 N.Y.S.3d 341 [2d Dept 2020]; Smiley v Allgaier Constr. Corp., 162 AD3d 1481, 1483, 77 N.Y.S.3d 808 [4th Dept 2018]; Rutkowski, 146 AD3d at 686; Wright v Ellsworth Partners, LLC, 143 AD3d 1116, 1117-1118, 39 N.Y.S.3d 289 [3d Dept 2016]; Farrington v Bovis Lend Lease LMB, Inc., 51 AD3d 624, 625-626, 857 N.Y.S.2d 236 [2d Dept 2008]). For similar reasons, there are also factual issues as to whether a section 240 (1) securing device was required under the circumstances (see Fabrizi, 22 NY3d at 663-664; Wilinski, 18 NY3d at 10-11; O’Brian v 4300 Crescent L.L.C., 180 AD3d 437, 438, 118 N.Y.S.3d 588 [1st Dept 2020]; Carlton v City of New York, 161 AD3d 930, 932, 77 N.Y.S.3d 445 [2d Dept 2018]; Romero v 2200 N. Steel, LLC, 148 AD3d 1066, 1068, 50 N.Y.S.3d 158 [2d Dept 2017]; Farrington, 51 AD3d at 625-626), and as to whether the dunnage [19] may be considered a section 240 (1) safety device that failed to perform its proper function (cf. Medouze, 199 A.D.3d 465, 154 N.Y.S.3d 232, 2021 NY Slip Op 06094, *1).16 Contrary to the contentions of the World Trade Center Defendants, plaintiff’s failure to inspect the load prior to cutting the straps and his performing that task while standing on the edge of the trailer does not constitute the sole proximate cause of the accident. Namely, the World Trade Center Defendants have failed to identify evidentiary proof that safety devices that would have allowed plaintiff to perform his work in a safer manner were readily available, that plaintiff was instructed to use such devices, or that he was ever instructed to perform his work in a different manner (see Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 34 NY3d 1166, 1167-1168, 121 N.Y.S.3d 753, 144 N.E.3d 363 [2020]; Cioffi v Target Corp., 188 AD3d 788, 791-792, 134 N.Y.S.3d 408 [2d Dept 2020]; Zholanji v 52 Wooster Holdings, LLC, 188 AD3d 1300, 1302, 132 N.Y.S.3d 787 [2d Dept 2020]). At most, the World Trade Center Defendants have established that plaintiff was comparatively at fault for the accident, which is not a defense to a Labor Law § 240 (1) cause of action (see Orellana v 7 West 34th St., LLC, 173 AD3d 886, 887-888, 103 N.Y.S.3d 496 [2d Dept 2019]; see also Wu v 34 17th St. Project LLC, 155 N.Y.S.3d 85, AD3d , 2021 NY Slip Op 06934, *1 [1st Dept 2021]; DaSilva v Toll First Ave., LLC, 199 AD3d 511, 512-513 [1st Dept 2021]). In view of the factual issues relating to whether the accident involved a significant elevation differential for purposes of Labor Law § 240 (1) and [*19] whether a section 240 (1) [20] safety device was required under the circumstances, both plaintiff’s cross motion and the World Trade Center Defendants’ motion must be denied with respect to liability under section 240 (1).

Labor Law § 241 (6)
Regarding plaintiff’s Labor Law § 241 (6) cause of action, under that section an owner, general contractor or their agent may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case (Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 349-350, 693 N.E.2d 1068, 670 N.Y.S.2d 816 [1998]; Honeyman v Curiosity Works, Inc., 154 AD3d 820, 821, 62 N.Y.S.3d 183 [2d Dept 2017]). Here, plaintiff, in his bill of particulars, premises his section 241 (6) cause of action on violations of Industrial Code sections 12 NYCRR 23-1.15 (a-e), 23-1.22 (c), 23-6.1 (d), 23-9.2 (a), 23-9.7 (c), and 23-9.8 (h). To the extent that 12 NYCRR 23-1.15 (a-e), 23-1.22 (c), 23-6.1 (d), 23-9.2 (a), 23-9.7 (c) state specific standards, they are inapplicable to the facts of this case or any violation thereof was not a proximate cause of plaintiff’s accident. Plaintiff has abandoned reliance on these regulations, other than 12 NYCRR 23-9.8 [h], by failing to address them in his moving and opposition papers (see Debennedetto v Chetrit, 190 AD3d 933, 935, 140 N.Y.S.3d 569 [2d Dept 2021]; Pita v Roosevelt Union Free Sch. Dist., 156 AD3d 833, 835, 68 N.Y.S.3d 84 [2d Dept 2017]).
While plaintiff does address 12 NYCRR 23-9.8 (h) (part of an Industrial Code section addressing the use of lift and fork trucks), that section is inapplicable to the facts here because plaintiff and his coworkers were not using a forklift [20] at the time of the [21] accident (see e.g. Toefer, 4 NY3d at 409-410 [Industrial Code sections setting standards for use of hoists or cranes inapplicable were no such device was used on the job at issue]; Georgakopoulos v Shifrin, 83 AD3d 659, 660, 920 N.Y.S.2d 383 [2d Dept 2011]). Contrary to the World Trade Center Defendants’ contentions, plaintiff can rely on 12 NYCRR 23-1.7 (f) in opposing the World Trade Center Defendants’ motion despite the fact that plaintiff identified that section for the first time in his opposition papers (see Shaw, 187 AD3d at 1665; Doto v Astoria Energy II, LLC, 129 AD3d 660, 664, 11 N.Y.S.3d 201 [2d Dept 2015]).17 However, the bed of a flatbed trailer during unloading is not a working level within the meaning of that section (see Molloy v Long Is. R.R., 150 AD3d 421, 422, 51 N.Y.S.3d 405 [1st Dept 2017]; Brownell, 89 AD3d at 1427; Lavore v Kir Munsey Park 020, LLC, 40 AD3d 711, 713, 835 N.Y.S.2d 708 [2d Dept 2007], lv denied 10 N.Y.3d 701, 883 N.E.2d 369, 853 N.Y.S.2d 542 [2008]). To the extent that the bed may nevertheless be seen as a working level (see Intelisano, 68 AD3d at 1323 [3d Dept 2009]; Akins v Baker, 247 AD2d 562, 562, 669 N.Y.S.2d 63 [2d Dept 1998]), plaintiff’s accident was not proximately caused by the absence of a stairway, ramp or runway to access the bed of the trailer as the accident did not occur while plaintiff was ascending or descending to a different level (see Gielow v Rosa Coplon Home, 251 AD2d 970, 971-972, 674 N.Y.S.2d 551 [4th Dept 1998], appeal dismissed & lv. denied 92 N.Y.2d 1042, 708 N.E.2d 172, 685 N.Y.S.2d 416 [1999]; see also Smiley, 162 AD3d at 1483; Miranda v NYC Partnership Hous. Dev. Fund Co., Inc., 122 AD3d 445, 446, 996 N.Y.S.2d 256 [1st Dept 2014]). [22] Accordingly, the World Trade Center Defendants have demonstrated their prima facie entitlement to dismissal of the Labor Law § 241 (6) cause of action, and plaintiff has failed to demonstrate an issue of fact warranting denial of this aspect of their motion. Plaintiff’s cross motion must be denied for [21] the reasons stated herein.

Labor Law § 200 and Common-Law Negligence
When a common-law negligence and Labor Law § 200 claims arise out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged with liability had the authority to supervise or control the performance of the work (see Rizzuto, 91 NY2d at 352; Hart v Commack Hotel, LLC, 85 AD3d 1117, 1118, 927 N.Y.S.2d 111 [2d Dept 2011]; Shaw, 75 AD3d at 635-636, 906 N.Y.S.2d 574). Where a premises condition is at issue, property owners and general contractors may be held liable under common-law negligence and for a violation of Labor Law § 200 if they either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident (see Abelleira v City of New York, 120 AD3d 1163, 1164, 992 N.Y.S.2d 324 [2d Dept 2014]; Baumann v Town of Islip, 120 A.D.3d 603, 605, 992 N.Y.S.2d 276 [2d Dept 2014]; Ortega v Puccia, 57 AD3d 54, 61, 866 N.Y.S.2d 323 [2d Dept 2008]).
Initially, in this respect, the World Trade Center Defendants have demonstrated, prima facie, that the loading dock area did not constitute a dangerous property condition through the affidavit of its own engineer expert and that of the architect submitted by [23] Tishman,18 the later of whom asserted, as is relevant here, that the sidewalk shed area and loading dock complied with the requirements of New York City’s building code and of the Occupational Safety and Health Administration (OSHA), and [*22] that there was no requirement for the erection of guardrails or platforms to allow access from the side of a flatbed truck (see McGrath v George Weston Bakeries, Inc., 117 AD3d 1303, 1304, 986 N.Y.S.2d 644 [3d Dept 2014]). Although the record includes deposition testimony from plaintiff and other witnesses to the effect that the limitations posed by design of the loading dock and ramp meant that plaintiff and his coworkers had to unload the flatbed manually while standing on the flatbed, this evidence, at best, demonstrates that the loading dock design furnished the occasion for the occurrence of the accident and fails to show that the design was its proximate cause (see Liquori v Brown, 172 AD3d 1354, 1356, 101 N.Y.S.3d 147 [2d Dept 2019]; Rattray v City of New York, 123 AD3d 688, 689-690, 997 N.Y.S.2d 707 [2d Dept 2014]; Hersman v Hadley, 235 AD2d 714, 717-718, 651 N.Y.S.2d 754 [3d Dept 1997]; Souffrant v Quality Wholesale Veal Ctr., 135 AD2d 398, 400, 521 N.Y.S.2d 696 [1st Dept 1987]). The conclusory assertions of Anthony Corrado, a project superintendent, in an affidavit submitted by plaintiff, fail to demonstrate an issue of fact as he identifies no authority, code treatise, standard, building code or other basis in support of his assertions that the design of the loading dock was improper (see Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 8-9, 831 N.E.2d 960, 798 N.Y.S.2d 715 [2005]; Warshak v City of New York, AD3d , 2021 NY Slip Op 06974, *1 [1st Dept 2021]; [24] Pomilla v Bangiyev, 197 A.D.3d 1187, 1188, 151 N.Y.S.3d 372 [2d Dept 2021]; Jones v City of New York, 32 AD3d 706, 707, 821 N.Y.S.2d 548 [1st Dept 2006]). As such, plaintiff has failed to demonstrate an issue of fact as to whether the loading dock constituted a dangerous property condition.
There are factual issues with respect to whether the World Trade Center Defendants supervised and controlled plaintiff’s work, however, that [23] require denial of both the motion by the World Trade Center Defendants and plaintiff’s cross motion. Although the testimony in the record shows that the World Trade Center Defendants generally did not direct or control Jacobson’s means and methods of performing its work, Turner’s own witness testified that it was Turner who informed Jacobson that it could not use forklifts to unload trucks at the loading dock and that this direction came from Silverstein. This restriction, and the concomitant awareness that subcontractor employees would have to manually unload the truck deliveries presents an issue of fact as to whether the World Trade Center Defendants supervised and controlled the work at issue (see Valle v Port Auth. of N.Y. & N.J., 189 AD3d 594, 596, 137 N.Y.S.3d 350 [1st Dept 2020]; Pouso v City of New York, 22 AD3d 395, 396, 804 N.Y.S.2d 24 [1st Dept 2005]; Carballo v 444 E. 87th St. Owners Corp., 14 AD3d 526, 527, 789 N.Y.S.2d 170 [2d Dept 2005], lv denied 5 N.Y.3d 710, 837 N.E.2d 733, 804 N.Y.S.2d 34 [2005]; Gonzalez v Stern’s Dep’t Stores, 211 A.D.2d 414, 415, 622 N.Y.S.2d 2 [1st Dept 1995]; see also Rizzuto, 91 NY2d at 353). While a reasonable inference may be drawn from the testimony in the record that the bar on using forklifts was imposed because the loading dock was located on a narrow street, was across from a firehouse, and that there was significant pedestrian traffic in the area — all factors outside the control of the World Trade Center Defendants — the World Trade [25] Center Defendants have failed to present evidentiary proof that other areas at the worksite without [24] such restrictions were unavailable for unloading. Factual issues also exist as to whether manual unloading presented a foreseeable danger under the circumstances here (compare Pouso, 22 AD3d at 396, with Rosen v McGuire, 189 AD2d 966, 968, 592 N.Y.S.2d 477 [3d Dept 1993]).19

Common-Law Negligence – Other Defendants
With respect to the common-law negligence claims against it, Tishman has provided evidentiary proof that it was Regional, Tishman’s subcontractor, that designed and constructed the loading dock area at issue. Such evidence is sufficient to demonstrate, prima facie, that Tishman did not owe plaintiff a duty of care, since any contractual duty it may have owed to 4WTC is insufficient to create a duty of care owing to plaintiff (see Guzman v Jamaica Hosp. Med. Ctr., 190 AD3d 705, 706, 135 N.Y.S.3d 886 [2d Dept 2021]; Kenny v Turner Constr. Co., 155 AD3d 479, 480, 65 N.Y.S.3d 17 [1st Dept 2017]). Even if it could be found to owe plaintiff a duty, Tishman, as noted above with respect to the World Trade Center Defendants, has demonstrated that the loading dock was not a dangerous property condition (see McGrath, 117 AD3d at 1304), and that, in any event, any defect with the loading dock only provided the occasion for the accident (see Liquori, 172 AD3d at 1356; Rattray, 123 AD3d at 689-690; Souffrant, 135 AD2d at 400). Since plaintiff has failed to demonstrate an issue of fact in this respect, and since Tishman is also entitled to [26] summary judgment dismissing the Labor Law causes of action as against it, Tishman is entitled to [*25] summary judgment dismissing the complaint as against it. While Navarro and Clarkwestern have demonstrated that they are entitled to dismissal of the Labor Law causes of action as against them, they have each failed to demonstrate their prima facie entitlement to dismissal of plaintiff’s common-law negligence claims as against them. In this respect, both Clarkwestern and Navarro appended the deposition testimony of plaintiff, DePrima and Ouellette to their respective motions, and the testimony of plaintiff and DePrima suggest that an issue with respect to the dunnage, which was placed by Clarkwestern, may have contributed to the accident, while that of Ouellette suggests that Navarro’s tightening of the load may have contributed to the accident (see Ciaravino v Bulldog Natl. Logistics, LLC, 146 AD3d 927, 928, 45 N.Y.S.3d 540 [2d Dept 2017]; Zwolak v Phoenix Steel Serv., 2015 U.S. Dist. LEXIS 139922, 2015 WL 5971128, *6 [WDNY 2015]).20 Moreover, Navarro’s witness, while he could testify to the general procedures Navarro’s drivers would follow, had no personal knowledge relating to the securing and transportation of this particular load (see McGrath, 117 AD3d at 1304-1305). Similarly, Clarkwestern’s deposition witness could only testify regarding Clarkwestern’s general practices for loading skids and placing them on Navarro’s flatbeds and he had no personal knowledge relating to the packing and [*26] loading of the skid at issue (id.; Brownell, [27] 89 AD3d at 1428; cf. Ciaravino v Bulldog Natl. Logistics, LLC, 146 AD3d 925, 926, 46 N.Y.S.3d 127 [2d Dept 2017]). Although Clarkwestern also submits an affidavit from a safety consultant for trucking carriers, this expert’s assertions are largely conclusory, and fail to demonstrate that Clarkwestern was not negligent as a matter of law (see Lynch v C&S Wholesale Grocers, Inc., 157 AD3d 471, 472, 69 N.Y.S.3d 15 [1st Dept 2018]; Farrington, 51 AD3d at 626). In sum, both Navarro and Clarkwestern have failed to demonstrate, prima facie, that they were not negligent, and their respective motions must thus be denied regardless of the sufficiency of plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]).

Indemnification and Contribution
The reasons that warrant dismissing the common-law negligence causes of action against Tishman and Tishman/Turner likewise warrant the dismissal of the claims for contribution and common-law indemnification as against Tishman/Turner (see Debennedetto, 190 AD3d at 939; Cutler v Thomas, 171 AD3d 860, 861-862, 98 N.Y.S.3d 230 [2d Dept 2019]; Kane v Peter M. Moore Constr. Co., Inc., 145 AD3d 864, 869, 44 N.Y.S.3d 141 [2d Dept 2016]; see also McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378, 953 N.E.2d 794, 929 N.Y.S.2d 556 [2011]).
On the other hand, factual issues with respect to the whether the World Trade Center Defendants, Navarro, and Clarkwestern were themselves negligent requires denial of the portions of their respective motions seeking dismissal of the contribution and common-law indemnification claims as against them (see Robles v 635 Owner, LLC, 192 AD3d 604, 605, 146 N.Y.S.3d 34 [1st Dept 2021]; State of New York v Defoe Corp., 149 AD3d 889, 890, 49 N.Y.S.3d 897 [2d Dept 2017]; Chilinski v LMJ Contr., Inc., 137 AD3d 1185, 1187-1188, 28 N.Y.S.3d 390 [2d Dept [*28] 2016]; see also Abreu v Rodriguez, 195 AD3d 1277, 1279, 150 N.Y.S.3d 805 [3d Dept 2021]; Lam v Sky Realty, Inc., 142 AD3d 1137, 1138-1139, 37 N.Y.S.3d 627 [2d Dept 2016]). Similarly, the factual issues with respect to the World [27] Trade Center Defendant’s own negligence and as to whether either Navarro or Clarkwestern were negligent requires denial of the portion of the World Trade Center Defendants’ seeking summary judgment on its common-law indemnification claims as against them (see McDonnell v Sandaro Realty, Inc., 165 AD3d 1090, 1097-1098, 87 N.Y.S.3d 86 [2d Dept 2018]; Shaughnessy v Huntington Hosp. Assn., 147 AD3d 994, 999, 47 N.Y.S.3d 121 [2d Dept 2017]; Wahab v Agris & Brenner, LLC, 102 AD3d 672, 674-675, 958 N.Y.S.2d 401 [2d Dept 2013]).

Contractual Indemnification and Insurance Issues
Clarkwestern seeks to amend its answer to add cross claims for contractual indemnification and breach of contract to obtain insurance and seeks summary judgment in its favor on those claims. The court initially finds that Navarro, in opposing the motion with respect to the proposed breach of agreement to obtain insurance claim, has demonstrated that the breach of contract claim is untimely under the six-year statute of limitations for contract actions (CPLR 213 [2]). Although Navarro and Clarkwestern would both appear to be residents of Connecticut, and their contract contains an Ohio choice of law provision, CPLR 202 precludes a claim that is untimely under New York law even if it would be timely where the claim accrued (see Overall v Estate of Klotz, 52 F3d 398, 402-403 [2d Cir 1995]; see also 2138747 Ontario, Inc. v Samsung C&T Corp., 31 N.Y.3d 372, 376-377, 78 N.Y.S.3d 703, 103 N.E.3d 774 [2018]; Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528, 715 N.E.2d 482, 693 N.Y.S.2d 479 [29] [1999]).21 Contrary to Clarkwestern’s contentions, its breach of contract claim accrued when Navarro purportedly failed to obtain the requisite insurance covering it [28] as an additional insured (see Port Auth. of N.Y. & N.J. v Brickman Group Ltd., LLC, 181 AD3d 1, 11, 115 N.Y.S.3d 246 [1st Dept 2019]; Wright v Emigrant Sav. Bank, 112 AD3d 401, 402, 976 N.Y.S.2d 47 [1st Dept 2013]; St. George Hotel Assocs. v Shurkin, 12 A.D.3d 359, 360, 786 N.Y.S.2d 56 [2d Dept 2004]).22 As Navarro obtained the policy at issue in July 2013, Clarkwestern’s breach of contract claim accrued no later than July 2013 (see Wright, 112 AD3d at 402; St. George Hotel Assocs., 12 AD3d at 360), and, since Clarkwestern did not seek leave to add the contract claim until September 2020, its contract claim is untimely under the applicable statute of limitations. Because the breach of contract claim is untimely, the portion of Clarkwestern’s motion to seeking leave to amend the answer to add it is patently devoid of merit and must thus be denied (see Wright, 112 AD3d at 402; see also Deutsche Bank Natl. Trust Co. v McAvoy, 188 AD3d 808, 810, 136 N.Y.S.3d 134 [2d Dept 2020]; Schwartz v Walter, 171 AD3d 969, 970, 95 N.Y.S.3d 879 [2d Dept 2019]). With respect to Clarkwestern’s contractual indemnification claim, the September 12, 2011 Transportation Agreement between Navarro and Clarkwestern (Transportation Agreement) provides that: [30] “Carrier [Navarro] further agrees that it shall indemnify and hold the Shipper [Clarkwestern] harmless from and against all loss, damage, expense, actions and claims for injury to persons including injury resulting in death and damage to property (collectively “Claims”) arising out of or in connection with Carrier’s handling of commodities, excluding, however, any such claims arising out of the deliberate acts or omissions, or the acts or omissions [29] caused by the gross negligence of the Shipper, its agents, servants, employees or consignees” (Transportation Agreement ¶ 10).
In considering Clarkwestern’s motion, this court initially finds that Clarkwestern’s delay in seeking to add the contractual indemnification claim against Navarro is not a ground for denying this aspect of its motion, as Navarro — which addressed the contractual indemnification provision in its own motion papers and was undoubtedly on notice that Clarkwestern would likely seek contractual indemnification from it — has failed to demonstrate that it would suffer prejudice as the result of the amendment (see Lui v Town of E. Hampton, 117 AD3d 689, 690, 985 N.Y.S.2d 611 [2d Dept 2014]; Simon v Granite Bldg. 2, LLC, 114 AD3d 749, 756, 980 N.Y.S.2d 489 [2d Dept 2014]; Schiavone v Victory Mem’l Hosp., 300 A.D.2d 294, 295-296, 751 N.Y.S.2d 287 [2d Dept 2002]).
On the merits, Navarro initially argues that section 11 of the Transportation Agreement acts as a limitation on the indemnification rights provided under section 10. Contrary to Navarro’s contentions, however, any limitation imposed by section 11 of the agreement has no impact on Clarkwestern’s right to indemnification here since section 11 only applies where the loss or damage at issue relates to the commodity being shipped.23 Further, by only barring indemnification where the claim arises “out of the deliberate acts [31] or omissions” or “gross negligence” of Clarkwestern, the Transportation [30] Agreement clearly expresses an intent that Clarkwestern be indemnified for its own negligence (see Total Quality Logistics, L.L.C. v JK & R Express, L.L.C., 164 Ohio St.3d 495, 499-500, 2020- Ohio 6816, 173 NE3d 1168, 1173 [2020]; Niagara Frontier Transp. Auth. v Tri-Delta Constr. Corp., 107 AD2d 450, 451-452, 487 N.Y.S.2d 428 [4th Dept 1985], affd for the reasons stated below 65 NY2d 1038, 484 N.E.2d 1047, 494 N.Y.S.2d 695 [1985]). Since the Transportation Agreement is an agreement for the transportation of goods and is not a construction contract, the limitations imposed by Ohio Revised Code § 2305.31 – which, like New York’s General Obligations Law § 5-322.1, bars indemnification for a party’s own negligence with respect to construction contracts – are inapplicable (see Lamb v Armco, Inc., 34 Ohio App3d 288, 289-291, 31 Ohio B. 610, 518 NE2d 53, 54-55 [Ct App 1986]; Goll v ABC, Inc., 10 A.D.3d 672, 674, 783 N.Y.S.2d 599 [2d Dept 2004], affirming, as modified 2003 WL 25519845 [Sup Ct, Queens County 2003]). Still at issue, however, is the scope of the indemnification provided under the provision. Although the “arising out of or in connection with” language in this provision does not require a showing of negligence on Navarro’s part and suggests that the right to indemnification under the provision is quite broad, the full scope of this indemnification provision turns on what is encompassed within the term “handling.” Handling is not defined in the Transportation Agreement. As such, this court must turn to the general rules of contract interpretation to determine its meaning. These rules require that “particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties [31] as manifested thereby. Form should not prevail over substance and a sensible [32] meaning of words should be sought” (Atwater & Co. v Panama R. R. Co., 246 NY 519, 524, 159 N.E. 418 [1927]; see Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 13 NY3d 398, 404, 920 N.E.2d 359, 892 N.Y.S.2d 303 [2009]; Kass v Kass, 91 NY2d 554, 566, 696 N.E.2d 174, 673 N.Y.S.2d 350 [1998]; see also Ellington v EMI Music, Inc., 24 NY3d 239, 244, 997 N.Y.S.2d 339, 21 N.E.3d 1000 [2014]). “Where the document makes clear the parties’ over-all intention, courts examining isolated provisions ‘should then choose that construction which will carry out the plain purpose and object of the [agreement]'” (Kass, 91 NY2d at 567, quoting Williams Press v State of New York, 37 NY2d 434, 440, 335 N.E.2d 299, 373 N.Y.S.2d 72 [1975] [internal quotations omitted]). The words and phrases used by the parties must generally be given their plain meaning, although, where an industry employs distinct terminology, known industry practices may be considered to help define a term (see Beardslee v Inflection Energy, LLC, 25 N.Y.3d 150, 157, 8 N.Y.S.3d 618, 31 N.E.3d 80 [2015]; Last Time Beverage Corp. v F&V Distrib. Co., LLC, 98 AD3d 947, 951-952, 951 N.Y.S.2d 77 [2d Dept 2012]; see also; Dryden Mut. Ins. Co. v Goessl, 117 AD3d 1512, 1514-1515, 985 N.Y.S.2d 782 [4th Dept 2014], affd 27 NY3d 1050, 34 N.Y.S.3d 406, 54 N.E.3d 78 [2016]; J.P. Morgan Inv. Mgt. Inc. v AmCash Group, LLC, 106 AD3d 559, 559-560, 966 N.Y.S.2d 23 [1st Dept 2013]; Hoag v Chancellor, Inc., 246 A.D.2d 224, 230-231, 677 N.Y.S.2d 531 [1st Dept 1998]).24
Here, ordinary dictionary definitions of the word “handling” suggest that handling is complete when an item is turned over or delivered.25 Further, the Transportation [33] Agreement provides, as is relevant, that “the shipper [Clarkwestern] agrees to tender commodities to Carrier for transportation by Carrier [Navarro] or it’s agent and Carrier agrees to accept and deliver the commodities promptly and efficiently at Shippers direction at Carrier’s sole cost and expense, the Shipper shall designate the point or points where stop-off, if any, shall be made by partial [32] unloading” (Transportation Agreement ¶ 2). As is clear from this language, Navarro’s transportation obligations under the Transportation Agreement end upon delivery. It would thus be incongruous to hold that handling for purposes of the Transportation Agreement places a broader obligation on Navarro. Thus, Navarro’s handling of a load, for indemnification purposes, ends upon delivery. Central to the dictionary definition of delivery is the turning over of items or goods to the intended recipient.26 In shipping context, unless the parties’ contract for delivery to encompass other acts, delivery is complete when the load is made accessible for unloading by the recipient (who is generally referred to as the consignee) and the [34] unloading of items from a truck is normally not part of a delivery (see Secretary of Agriculture of United States v United States, 347 US 645, 647, 74 S. Ct. 826, 98 L. Ed. 1015 [1954]; Intech, Inc. v Consolidated Freightways, Inc., 836 F2d 672, 674-675 [1st Cir 1987]; Oshkosh Storage Co. v Kraze Trucking LLC, 65 F Supp3d 634, 639 [ED Wisc 2014]; Medeiros v Whitcraft, 931 F Supp 68, 74 [D Mass 1996]; Total Quartet Logistics, LLC v Balance Transp., LLC, 122 NE3d 691, 696 [Ohio Ct Common Pleas 2019]).
In applying this construction of the Transportation Agreement to the facts here, this court finds that, in the absence of any evidence that bill of lading at issue imposed any further obligations on Navarro to effectuate delivery, and since the accident occurred during the unloading process by the recipient of the delivery, the record facts show that the load had already [33] been delivered at the time of the accident. As such, the fact that the accident happened on Navarro’s trailer does not show, in and of itself, that the accident resulted from Navarro’s “handling” of the load. Nevertheless, given the broad language allowing indemnification where the accident arises from or is connected with Navarro’s handling of the load, Clarkwestern may still be entitled to indemnification if it can demonstrate that any of Navarro’s acts during the acceptance, transportation or delivery of the load were causally related to the accident (see Karwowski v 1407 Broadway Real Estate, LLC, 160 A.D.3d 82, 87-88, 73 N.Y.S.3d 30 [1st Dept 2018]; Muevecela v 117 Kent Ave., LLC, 129 AD3d 797, 798, 11 N.Y.S.3d 224 [2d Dept 2015]; see also Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 472, 839 N.E.2d 886, 805 N.Y.S.2d 533 [2005]; cf. Vasquez v City of New York, AD3d , 2021 NY Slip Op 06824, 2 [1st Dept 2021]; Murray v City of New York, 43 AD3d 429, 431, 841 N.Y.S.2d 341 [2d Dept 2007]; Beltran v Navillus Tile, Inc., 108 AD3d 414, 416, 970 N.Y.S.2d 4 [1st Dept 2013]). Further, [35] contrary to Navarro’s contention, Clarkwestern’s arguments that plaintiff’s acts were the sole proximate cause of the accident do not, under the circumstances here, preclude Clarkwestern from seeking indemnification under the contract since, as noted above, factual issues remain as to whether Navarro’s acts may have contributed to the accident, and Clarkwestern has a right to plead in the alternative (see George Cohen Agency, Inc. v Donald S. Perlman Agency, 51 NY2d 358, 366, 414 N.E.2d 689, 434 N.Y.S.2d 189 [1980]; Gray Line N.Y. Tours, Inc. v Big Apple Moving & Stor., Inc., 140 AD3d 478, 478, 31 N.Y.S.3d 881 [1st Dept 2016]; CPLR 3014; see also People v Brown, 98 NY2d 226, 232 n.2, 774 N.E.2d 186, 746 N.Y.S.2d 422 [2002]; cf. Worth Constr. Co., Inc. v Admiral Ins. Co., 10 NY3d 411, 413-416, 888 N.E.2d 1043, 859 N.Y.S.2d 101 [2008]). Accordingly, Clarkwestern’s contractual indemnification claim as against Navarro is not palpably insufficient or patently devoid of merit and it is thus entitled to [34] the grant of leave to amend its answer to add that claim (see Lui, 117 AD3d at 690; Simon, 114 AD3d at 756; Schiavone, 300 AD2d at 295-296).
Finally, the portion of Clarkwestern’s motion seeking summary judgment on the indemnification claim is denied, however, as Clarkwestern has failed to demonstrate, as a matter of law, that the accident was causally related to Navarro’s handling of the load (see Winegrad, 64 NY2d at 853).
This constitutes the decision and order of the court.