Introduction

In Hernandez v. Port Authority of N.Y. & N.J., the Appellate Division, First Department, addressed a multi-party construction accident that occurred during the build-out of the Apple Store in the World Trade Center Oculus. The plaintiff, a sheet-metal worker employed by a sub-subcontractor, was injured when a dolly loaded with approximately 1,200 pounds of Masonite moved a short distance, abruptly stopped, and tipped onto him. Photographs showed cracked wheels with an embedded nail. The dolly was marked “CSS” (Centre Street Systems), but the load belonged to O’Kane, a subcontractor responsible for floor protection.

The decision resolves a dense cluster of Labor Law and indemnity issues among owners, a tenant, a general contractor, trade subcontractors, and a sub-subcontractor. Most notably, the court:

• Affirmed summary judgment for the plaintiff under Labor Law §240(1) (the Scaffold Law) despite the minimal elevation differential, emphasizing the load’s magnitude and the defective wheels.
• Clarified who is a “proper Labor Law defendant” under §§240(1) and 241(6), distinguishing entities with authority over the work or control of the accident area from those merely perceived as equipment owners.
• Enforced “arising out of” contractual indemnification up the chain in favor of the WTC Owners, Apple, and conditionally Sajo (Apple’s general contractor) against the HVAC subcontractor (PAI), while rejecting indemnity efforts that lacked clear naming language or were not properly pleaded.
• Tightened the application of Labor Law §200 and common-law negligence by dismissing those claims against PAI and CSS, but allowing them to proceed against Sajo based on potential notice.

The ruling will influence how courts analyze low-height, heavy-load tip-overs under §240(1), how borrowed or misappropriated tools affect liability, and how “arising out of” indemnity provisions operate across layered project contracts.

Summary of the Judgment

• Labor Law §240(1): Plaintiff granted partial summary judgment. The relatively small elevation difference did not preclude liability; the 1,200-pound load posed a gravity-related risk within §240(1) (citing Runner, Wilinski, Touray, Marrero).
• Labor Law §241(6): Technically academic given the §240(1) disposition, but the court nonetheless indicated plaintiff would prevail based on Industrial Code §23-1.28(b) (defective wheels of a hand-propelled vehicle) supported by photos and cross-trade testimony (citing Ahern; Freitas; distinguishing Ruggiero).
• Proper Labor Law defendants:
  • PAI (Precision-Aire, HVAC subcontractor): Proper §240/241 defendant due to authority over the HVAC scope and sub-subcontracting to PB Vent.
  • O’Kane (floor protection subcontractor): Labor Law claims reinstated; record raises triable issues whether it controlled the accident area by loading its materials onto the defective dolly.
  • CSS (drywall subcontractor): Not a proper Labor Law defendant; no privity with Apple or build-out contractors, no control of plaintiff or site area, and no proof it allowed or knew O’Kane used its dolly.
• Labor Law §200 and common-law negligence:
  • Sajo (Apple’s GC): §200 claim remains; triable issues as to notice of defective dolly on its project.
  • PAI: §200 and negligence claims dismissed; accident not due to means and methods PAI controlled and not PAI’s equipment.
  • CSS: §200 and negligence claims dismissed; no knowledge, control, or permission regarding the dolly’s use.
• Contractual indemnification:
  • Against PAI: WTC Owners, Apple, and Sajo granted summary judgment; indemnity triggered by “arising out of or resulting from” PAI’s work. Indemnity to Sajo is conditional because negligence claims remain against it.
  • Against O’Kane: WTC Owners and Sajo properly granted indemnity below; on appeal the court clarifies it is conditional as to both—Sajo because claims remain against it; WTC Owners because factual issues persist whether the accident arose out of O’Kane’s work.
  • Apple vs O’Kane: Denied; Apple not named in O’Kane’s indemnity clause (Tonking; Sicilia).
  • WTC Owners/Apple vs PB Vent: Denied; they never asserted indemnity claims against PB Vent.
  • Sajo vs PB Vent: Denied; Sajo not named or described as an indemnitee in the PAI–PB Vent agreement and not an “agent” for that indemnity (strict construction; Shah).
  • PAI vs PB Vent: Unresolved; issues of fact whether the indemnity trigger (“wrongful acts, errors, or omissions”) has been met.
  • Structure Tone vs CSS: Dismissed; no evidence the accident arose in whole or part from CSS’s acts or omissions as required by their indemnity clause.
• Procedural note: The court recalled and vacated its May 1, 2025 decision and order, issuing this substituted decision.

Analysis

A. Precedents Cited and Their Influence

• Runner v New York Stock Exch., Inc. (13 NY3d 599) and Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. (18 NY3d 1): These cases broaden §240(1) beyond classic “falls from ladders” to dynamic elevation hazards where gravity acts on heavy loads even over small distances. Hernandez applies this framework to a heavy Masonite stack tipping off a cart—minimal drop, maximal force—squarely within Runner/Wilinski.
• Touray v HFZ 11 Beach St. LLC (180 AD3d 507) and Marrero v 2075 Holding Co. LLC (106 AD3d 408): First Department authorities sustaining §240(1) liability for heavy falling or tipping objects despite modest height differentials. The court cites these to reinforce that load magnitude can render a short drop a protected risk.
• Blake v Neighborhood Hous. Servs. (1 NY3d 280) and Kielar v Metropolitan Museum of Art (55 AD3d 456): Even if a worker was arguably careless, defective equipment breaks the chain for a “sole proximate cause” defense. Hernandez uses that logic: cracked wheels with an embedded nail preclude sole proximate cause.
• Hayek v MTA (195 AD3d 568) and Biaca-Neto v Boston Road II (34 NY3d 1166): The court rejects the notion that the worker’s choice to move an obstruction bars recovery, particularly where coworkers said they would have done the same.
• Ahern v NYU Langone (147 AD3d 537) and Freitas v NYCTA (249 AD2d 184): Industrial Code §23-1.28(b) violations for defective hand-propelled vehicles can support §241(6). The court indicates plaintiff would win on §241(6) even though the §240(1) ruling made it academic. Ruggiero (16 AD3d 342) is distinguished.
• Weber v Baccarat (70 AD3d 487) and Nascimento v Bridgehampton (86 AD3d 189): A subcontractor with authority to supervise the injury-producing work (or that actually sub-subcontracts it) may be a “contractor/agent” for §§240/241. Applied to find PAI a proper Labor Law defendant.
• Vargas v Peter Scalamandre (105 AD3d 454): A trade that places or controls materials at the accident location can be a proper §241(6)/§240(1) defendant. Supports reinstating claims against O’Kane.
• Tonking v Port Auth. (3 NY3d 486) and Sicilia v City of New York (127 AD3d 628): Contractual indemnity must be strictly construed; only named or clearly described indemnitees recover. Used to deny Apple indemnity under O’Kane’s contract.
• Shah v 20 E. 64th St. LLC (230 AD3d 405 [2024]): Emphasizes strict construction; “agent” status cannot be stretched to capture entities not clearly intended by the contract—used to reject Sajo’s indemnity claim under the PAI–PB Vent agreement.
• Favaloro v Port Auth. (191 AD3d 524): Appellate relief is unavailable for claims not sought below; used to decline O’Kane’s attempt to dismiss plaintiffs’ common-law claims on appeal.

B. The Court’s Legal Reasoning

The First Department’s reasoning moves through three principal inquiries: liability under the Labor Law, negligence under §200, and the reach of contractual indemnification.

1. Labor Law §240(1): Low height, heavy load, defective wheels
   The court recognized a classic Runner/Wilinski scenario: the Masonite stack, at roughly 1,200 pounds, created a gravity-driven hazard even though the movement and tip-over occurred over a short distance (“a foot, maybe two”). The focus is not the vertical distance measured in inches but the gravitational forces exerted by a heavy load that lacked adequate securing devices. Photographs confirmed the wheels were cracked and contaminated by a nail, and the record suggested a defect-induced stop that precipitated the tip. Against that backdrop:
   • Protective devices: The dolly functioned as a hand-propelled vehicle, not an adequate safety device for a load of this magnitude; the accident “arose from” the absence or inadequacy of devices needed to secure or safely move the load.
   • Defenses rejected: The notion that the plaintiff pulled the cart “the wrong way” or should not have moved it fails both factually and legally. Factually, testimony contradicted the “misuse” theory; legally, co-worker/foreman testimony that anyone would move the obstruction undercuts a “sole proximate cause” theory, which fails anyway given the defective condition of the wheels.
2. Labor Law §241(6): Industrial Code §23-1.28(b)
   Even though §241(6) became academic, the court stated it would affirm summary judgment for plaintiff on the Industrial Code violation for defective hand-propelled vehicles. Cross-trade witness testimony and photographic proof showed cracked wheels and an embedded nail—precisely the kind of disrepair §23-1.28(b) forbids.
3. Identifying “proper” Labor Law defendants
   The court drew fine lines among several entities:
   • PAI (HVAC subcontractor) was a proper §240/241 defendant because it had authority over the HVAC scope, demonstrated by hiring PB Vent, the plaintiff’s employer. Under Weber/Nascimento, authority to supervise the injury-producing work suffices, regardless of on-the-ground day-to-day control.
   • O’Kane (floor protection) faced reinstated Labor Law claims because the evidence suggested it placed its materials on the dolly, thereby exercising control over the accident area—enough under Vargas to raise triable issues.
   • CSS was not a proper Labor Law defendant. Although the dolly bore its marking, there was no proof it lent the dolly, knew of its use, or controlled the accident location after its pre-buildout work ended. Mere ownership markings, without permission or control, did not create Labor Law exposure.
4. Labor Law §200/common-law negligence: Control and notice
   The court applied §200’s two familiar prongs—means and methods vs. dangerous condition on the premises—and allocated exposure accordingly:
   • Sajo (GC): The defective dolly’s presence suggested a dangerous condition on Sajo’s project, and the record did not eliminate triable issues as to notice. Summary judgment for Sajo was properly denied.
   • PAI: No liability under §200 or negligence because the accident was not caused by the means and methods of plaintiff’s HVAC work or by equipment PAI furnished or controlled. PAI’s authority over its scope did not equate to control over the defective cart or general site conditions.
   • CSS: No §200 or negligence exposure where the equipment was allegedly taken without knowledge or permission, post-turnover, by unrelated trades. The court emphasized the absence of privity to the build-out and lack of control over the accident location.
5. Contractual indemnification: “Arising out of” and strict construction
   The court enforced “arising out of or resulting from” indemnity language against PAI in favor of upstream parties (WTC Owners, Apple, and conditionally Sajo), reasoning that the accident occurred during performance of PAI’s HVAC scope by its sub-subcontractor, PB Vent. This broad causation phrasing—requiring only a connection or origin-in-facts rather than strict fault—triggered indemnity despite the defective dolly being associated with another trade.
   • Conditional indemnity was applied where negligence claims remained against the would-be indemnitee (e.g., Sajo) or where factual questions persisted about whether the accident “arose out of” the indemnitor’s work (e.g., WTC Owners vs. O’Kane). Conditional awards postpone allocation until fault is resolved.
   • Strict construction barred indemnity attempts by parties not named or clearly described in the contract. Apple could not recover from O’Kane, and Sajo could not recover from PB Vent under the PAI–PB Vent contract. “Agent” labels cannot be retrofitted absent clear contractual intent (Tonking; Sicilia; Shah).
   • Pleading matters: WTC Owners and Apple could not secure indemnity from PB Vent because they never pleaded those claims. Appellate arguments cannot supply missing pleadings (Favaloro).
   • No causal link, no trigger: Structure Tone’s indemnity claim against CSS failed due to lack of evidence that CSS’s acts or omissions contributed to the accident, as required by their clause.

C. Impact and Practical Significance

• Scaffold Law coverage for low-height tip-overs is reaffirmed: Hernandez underscores that §240(1) applies to heavy-load tip-over events, even when the movement or drop is minimal. Contractors should treat large, mobile loads as gravity hazards requiring appropriate securing and safe conveyance devices—especially where carts or dollies show wear or contamination.
• Borrowed equipment does not automatically tag the “owner” with liability: The court’s treatment of CSS shows that branding on a tool is not enough; the key is permission, knowledge, control, and privity at the relevant phase. This narrows exposure for entities whose equipment is misappropriated by unrelated trades post-turnover.
• Who is a “proper Labor Law defendant” gets sharper edges:
  • Subcontractors with authority to supervise the injury-producing work (or who sub-subcontract that work) remain within §240/241 exposure (PAI).
  • Trades that physically place materials in the accident zone may face exposure (O’Kane).
  • Entities with no control or privity and no role in the build-out phase are not proper defendants (CSS).
• Indemnity drafting and litigation strategy:
  • “Arising out of” language continues to be powerful for upstream parties, particularly where injuries involve a subcontractor’s or sub-subcontractor’s employee performing the indemnitee’s scope.
  • Strict construction endures: name and define indemnitees (owners, tenants, construction managers, general contractors, “agents”) with precision. Do not rely on generic “agent” wording unless the contract unmistakably includes the entity seeking indemnity.
  • Plead every contemplated indemnity claim early. Courts will not award indemnity to parties that never asserted it against the indemnitor.
• Section 200 exposure for general contractors: Where a dangerous condition (like a defective cart) exists on site, general contractors must have systems to inspect, tag-out, and remove defective rolling equipment. Notice—actual or constructive—can keep §200 claims alive.

Complex Concepts Simplified

• Labor Law §240(1) (Scaffold Law): Imposes strict liability on owners, contractors, and their agents for gravity-related risks when proper safety devices are not provided. It covers more than falls from heights; it includes heavy objects moved or suspended where gravity-related forces cause injury.
• Labor Law §241(6): Requires compliance with specific Industrial Code regulations. A violation of a concrete rule (like defective wheels under §23-1.28(b)) can support liability if it proximately caused the injury.
• Labor Law §200: A codification of common-law negligence for construction sites. Liability can arise if:
  • The defendant controlled the means and methods of the plaintiff’s work (then the focus is on supervisory control); or
  • There was a dangerous premises condition and the defendant had actual or constructive notice of it (then the focus is on site safety and inspections).
• “Proper Labor Law defendant”: An “owner,” “contractor,” or their “agent” that either owns the site, contracts for the work, or has authority to supervise/control the injury-producing work or the accident area.
• “Sole proximate cause” defense: A defendant’s escape hatch under §240(1) if the worker was the only cause of the accident and failed to use available, adequate safety devices. Defective equipment generally defeats this defense.
• Contractual indemnification: A contract-based promise to pay another party’s losses. Strictly construed—only named or clearly described beneficiaries can recover. Phrases like “arising out of” are broad and require only a factual nexus to the indemnitor’s work, not fault.
• Conditional indemnification: Courts can grant indemnity subject to later findings about the indemnitee’s negligence or factual issues about causation. It preserves rights without prematurely fixing ultimate responsibility.

Conclusion

Hernandez advances three notable propositions in New York construction law. First, under §240(1), a heavy load tipping from a short distance is a gravity hazard where defective conveyance or inadequate securing devices are present, aligning with Runner and Wilinski. Second, being a “proper” Labor Law defendant depends on authority or control over the injury-producing work or accident area—not mere equipment markings or prior-phase involvement. Third, broad “arising out of” indemnity language will be enforced up the contractual chain when an injury occurs within the indemnitor’s scope, but indemnity is strictly construed: only parties expressly named or described can benefit, and every indemnity claim must be timely pleaded.

For project participants, the case is a reminder to maintain and police rolling equipment rigorously; to define indemnity beneficiaries with precision; to assert all indemnity claims in the pleadings; and to understand that authority to supervise a scope—or placing materials in a work area—can carry Labor Law consequences even when another trade’s tool fails. The decision thus recalibrates responsibility across complex project hierarchies while reinforcing worker protections against gravity-driven risks posed by heavy, mobile loads.