Pallet Jacks, Liftgates, and Conditional Indemnification:
Refining Labor Law § 240(1) and Contractual Risk Transfer in Bordonaro v. E.C. Provini Co., Inc.

I. Introduction

Bordonaro v. E.C. Provini Co., Inc., 2025 NY Slip Op 06805 (1st Dept Dec. 9, 2025), is a significant Appellate Division, First Department decision at the intersection of:

• New York’s “Scaffold Law” (Labor Law § 240(1));
• The more regulation-specific regime of Labor Law § 241(6);
• General negligence and Labor Law § 200 obligations; and
• Contractual risk transfer via broad construction indemnity clauses, constrained by Workers’ Compensation Law and public policy.

The case arises from a construction-related accident during a retail build-out for Bath & Body Works in a Manhattan building. The plaintiff, carpenter Steven Bordonaro, employed by subcontractor CBI Drywall Corp. (“CBI”), was injured while unloading a ~1,000-pound cabinet from a delivery truck using a pallet jack onto a truck liftgate roughly four feet above street level. As the cabinet “got away” from him during the maneuver, he was pushed, his foot became caught under the pallet jack, and he fell from the liftgate to the street.

The litigation involves multiple layers of parties:

• Plaintiff: Steven Bordonaro (carpenter/foreman employed by CBI).
• Employer / Subcontractor: CBI Drywall Corp. (third-party defendant).
• Non-owner defendants (construction / tenant side):
  • E.C. Provini Co., Inc. (“Provini”) – construction entity supervising the unloading;
  • Bath & Body Works, LLC (“BBW”) – retail tenant;
  • L. Brands, Inc. (“LBI”) – corporate affiliate;
  • L. Brands Store Design & Construction, Inc. (“LBSD&C”) – construction affiliate.
• Owner / Property Manager:
  • 441 Lexington Avenue Co. Limited Partnership (“441 Lexington”) – building owner;
  • Gordon Property Group, LLC (“Gordon”) – property manager.

The procedural posture is consolidated appeals from three separate January 24, 2025 orders of the Supreme Court, New York County (Rosado, J.), mostly denying defense motions for summary judgment and partially denying indemnification motions. The Appellate Division substantially re‑shapes the case by:

• Allowing the plaintiff’s Labor Law § 240(1) claim to proceed against key defendants;
• Dismissing all Labor Law § 241(6) claims predicated on Industrial Code §§ 23‑9.8 and 23‑6.1;
• Clarifying who can be liable for Labor Law § 200 and common-law negligence;
• Strongly enforcing broad contractual indemnification in favor of upstream parties (subject to limitations on indemnifying one’s own negligence); and
• Reaffirming the Workers’ Compensation Law § 11 bar to common-law indemnification and contribution claims against the employer absent a “grave injury.”

II. Summary of the Opinion

A. Outcome by Cause of Action

Claim	Key Rulings
Labor Law § 240(1)	Survives summary judgment against: Non-owner defendants (Provini, BBW, LBI, LBSD&C); 441 Lexington and Gordon; and CBI (employer/subcontractor). Appellate Division finds triable issues whether the pallet jack was an inadequate safety device for an elevation-related task (moving a 1,000-pound cabinet onto an elevated liftgate).
Labor Law § 241(6)	Dismissed in its entirety as against all moving defendants. The cited Industrial Code provisions (§ 23‑9.8[d], [e] and § 23‑6.1[d]) do not fit the facts: no evidence of defective automatic load-retaining device, uneven surface likely to cause upset, overweight load, or unsecured cargo needing trimming.
Labor Law § 200	Dismissed as to BBW, LBI, LBSD&C, 441 Lexington, and Gordon (no dangerous premises condition; no control over means and methods). Remains as to E.C. Provini and CBI (triable issues re supervision and decisions about equipment, especially refusal to provide a forklift).
Common-law Negligence	Dismissed as to BBW, LBI, LBSD&C, 441 Lexington, and Gordon for the same reasons as § 200. Remains as to Provini and CBI.

B. Outcome on Indemnification and Cross-Claims

• Provini’s contractual indemnification claim vs CBI:
  Summary judgment granted to Provini for conditional contractual indemnification from CBI. No proof of CBI’s negligence is required; the right is triggered “solely by virtue of plaintiff’s accident occurring while in the performance of CBI’s contractual duties,” subject to later reduction if Provini is found negligent.
• BBW, LBSD&C, LBI contractual indemnification vs CBI:
  Summary judgment granted for conditional contractual indemnification. LBSD&C’s contract with Provini extended indemnity to affiliates; the Provini/CBI subcontract incorporated those provisions by reference.
• 441 Lexington and Gordon contractual indemnification vs CBI:
  Their indemnity claims are reinstated (Supreme Court’s dismissal vacated), but summary judgment is denied. The record is unclear whether they are among the intended indemnitees under the Provini/CBI subcontract (ambiguity about “Owner”).
• Common-law indemnification and contribution cross-claims vs CBI:
  Dismissed. Plaintiff received workers’ compensation benefits and there is no indication of a “grave injury” under Workers’ Compensation Law § 11, so common-law indemnity and contribution are barred.

III. Analysis of the Court’s Reasoning

A. Labor Law § 240(1): Elevation Risks, Pallet Jacks, and Liftgates

1. Legal framework

Labor Law § 240(1), New York’s so‑called “Scaffold Law,” requires owners and contractors to furnish or erect safety devices (such as scaffolds, hoists, stays, ladders, slings, etc.) for work involving elevation-related risks. The statute imposes strict or absolute liability when:

1. The worker is engaged in one of the covered activities (e.g., erection, demolition, repairing, altering, painting, cleaning, pointing of a building or structure);
2. There is a risk related to the effects of gravity (a falling worker or falling object in a meaningful elevation differential); and
3. The failure to provide an adequate safety device, or a defect in such a device, is a proximate cause of the accident.

In many cases, defendants seek summary judgment by arguing that the accident is merely a routine workplace mishap, not the type of elevation-related risk § 240(1) is meant to address, or that the device furnished was adequate as a matter of law.

2. The facts as framed by the court

The court emphasizes key facts:

• The cabinet weighed approximately 1,000 pounds.
• Its dimensions (8' long × 3' wide × ~3' deep) roughly matched the dimensions of the truck’s liftgate platform.
• The liftgate was about four feet above street level.
• Plaintiff was walking backwards, pulling a pallet jack carrying the cabinet while a coworker pushed from inside the truck.
• The cabinet “got away”; in attempting to stop it, plaintiff was pushed, his foot was caught, and he fell from the liftgate to the street.
• He had requested a forklift for unloading, but that request was denied.

The combination of a large, heavy load; an elevated, relatively small liftgate platform; and the choice of a pallet jack rather than a more secure lifting or hoisting device sets the stage for the court’s analysis.

3. Triable issue: Was the pallet jack an “inadequate safety device”?

Even assuming the defendants made a prima facie showing that § 240(1) did not apply, the Appellate Division holds that plaintiff’s submissions in opposition raise a triable issue of fact. Specifically, the court finds that:

This evidence raises triable issues of fact as to whether the pallet jack was an inadequate safety device for the task of maneuvering the cabinet onto the liftgate (see Wilinski v 334 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10–11 [2011]; Schoendorf v 589 Fifth TIC I LLC, 206 AD3d 416, 417 [1st Dept 2022]; MacGregor v MRMD NY Corp., 194 AD3d 550 [1st Dept 2021]).

By citing these authorities, the panel signals that:

• § 240(1) is flexible enough to apply to nontraditional lifting scenarios, including unloading heavy items from trucks, provided the risk is gravity-related; and
• The adequacy of devices like pallet jacks, when used for elevated transfers of heavy objects (as opposed to simple ground-level transport), may be a question for the fact-finder.

4. Role of the precedents

• Wilinski v 334 92nd Hous. Dev. Fund Corp., 18 NY3d 1 (2011)
  The Court of Appeals in Wilinski rejected a rigid “same level” rule and held that § 240(1) could apply where stationary objects (pipes) fell due to a demolition-related elevation risk, even though the bases of the pipes and the worker were at similar levels. The key inquiry is whether the harm flowed directly from the “application of the force of gravity” to the object.
  
  By citing Wilinski, the court in Bordonaro underscores that the critical issue is not simply whether the plaintiff fell from a tall height, but whether there was a gravity-related failure of a safety device—here, arguably the use of a pallet jack in an elevated loading context.
• Schoendorf v 589 Fifth TIC I LLC, 206 AD3d 416 (1st Dept 2022)
  In Schoendorf, the First Department addressed a falling-object scenario involving safety devices and heavy materials. While the opinion here does not detail the facts of Schoendorf, the citation signals that where heavy items are being lifted, hoisted, or otherwise positioned at elevation, the sufficiency of safety measures often presents a jury question under § 240(1).
• MacGregor v MRMD NY Corp., 194 AD3d 550 (1st Dept 2021)
  MacGregor likewise involved § 240(1) liability in a scenario where the adequacy of safety devices for moving or holding heavy objects at elevation was in dispute.

Collectively, these precedents support the court’s refusal to take the adequacy of the pallet jack away from the jury. The court recognizes that a forklift or other more secure lifting apparatus might have been necessary to safely perform this elevated unloading task. Whether the failure to provide such a device violated § 240(1) is thus a factual issue.

5. Practical import

This part of the decision reinforces that:

• § 240(1) can apply to truck unloading operations when they involve elevation differentials and heavy materials being moved to or from a raised platform; and
• Devices typically thought of as ground-transport tools (like pallet jacks) may be inadequate when used as makeshift lifting or positioning devices for heavy loads at elevation.

For owners, contractors, and subcontractors, this signals the need to evaluate whether appropriate hoisting/lifting devices—such as forklifts or other mechanized equipment—are provided when heavy materials must be handled at heights, even modest ones (here, four feet).

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B. Labor Law § 241(6) and Industrial Code §§ 23‑9.8, 23‑6.1

1. Legal framework

Labor Law § 241(6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers engaged in construction, excavation or demolition. Liability under § 241(6) requires:

1. A violation of a specific, concrete provision of the Industrial Code (not a mere general safety standard); and
2. That the violation is a proximate cause of the plaintiff’s injury.

Here, plaintiff relied on Industrial Code:

• § 23‑9.8(d) and (e) – governing certain aspects of power-operated material handling equipment (including requirements that any automatic device for retaining a raised load be maintained in proper working order, and that such equipment not be operated on uneven surfaces that make upsetting likely); and
• § 23‑6.1(d) – requiring that loads handled by material hoisting equipment not exceed the manufacturer’s safe load rating and be properly “trimmed” and secured against displacement.

2. Why § 241(6) fails on these facts

The court holds that the defendants established their prima facie entitlement to summary judgment on § 241(6) and that plaintiff failed to raise a triable issue of fact:

• As to § 23‑9.8(d) and (e), the record lacked evidence that:
  • The pallet jack’s “automatic device for retaining a raised load” was faulty; or
  • The pallet jack was being operated on an uneven surface such that upsetting it was “likely.”
  Plaintiff could not recall whether the truck bed varied in height relative to the truck’s mechanical lift platform, which undercut any claim that unevenness contributed to the accident.
• As to § 23‑6.1(d), the record showed:
  • The pallet jack had an estimated load capacity of 2,000 pounds, so the ~1,000-pound cabinet did not exceed the manufacturer’s rating; and
  • No evidence suggested that the cabinet required “trimming” (i.e., rebalancing or adjustment for safer hoisting) or that it was prone to dislodgement on the pallet jack.

Without proof of defective equipment, uneven terrain, or improper loading in the specific ways targeted by the regulations, the court concludes that § 241(6) cannot provide a viable claim.

3. Significance: § 240(1) vs § 241(6)

The opinion highlights a common pattern in New York construction litigation:

• § 240(1) is conceptually broad but focuses on elevation risks and failures of protective devices; courts look at the overall context to determine whether gravity-related protection was adequate.
• § 241(6) is narrow and regulation-specific; the plaintiff must match precise Industrial Code language to specific, supported facts.

In Bordonaro, the same accident that survives under the flexible gravity-based approach of § 240(1) fails under § 241(6) because the particular Industrial Code provisions invoked do not fit the evidence. This is an important drafting and proof lesson for practitioners:

• Meticulous selection of Industrial Code sections is critical;
• Each element of the regulation (capacity, surface condition, mechanical defect, etc.) must be supported by record evidence; and
• Memory gaps (such as inability to describe relative heights or conditions) can be fatal to regulatory-based claims.

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C. Labor Law § 200 and Common-Law Negligence

1. Legal framework

Labor Law § 200 codifies the common-law duty imposed on owners and contractors to provide workers with a safe work environment. In practice, § 200 and common-law negligence are analyzed together. The First Department, consistent with other departments, applies a two-branch framework (as summarized in Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139 [1st Dept 2012]):

1. Dangerous or defective conditions on the premises (e.g., unsafe property conditions like holes, defective floors, etc.):
   Liability attaches if the owner/contractor created the condition or had actual or constructive notice of it and failed to remedy it.
2. Methods and means of the work (operational negligence):
   Liability attaches only if the owner or contractor had the authority to supervise or control the manner in which the work was performed.

2. Dismissal as to BBW, LBI, LBSD&C, 441 Lexington, and Gordon

For these defendants, the court identifies two decisive points:

• No dangerous premises condition.
  Plaintiff’s accident did not arise from a hazard inherent in the building or premises themselves; it arose from the method of unloading the cabinet. There is no allegation that the liftgate or the street presented a defective property condition within the owner’s or tenant’s duty to maintain.
• No supervision or control over plaintiff’s work.
  The record showed that these entities (retail tenant, corporate affiliates, owner, property manager) did not direct or control how the cabinet was unloaded. They did not choose the pallet jack, arrange the manner of unloading, or refuse the forklift request.

Accordingly, under Cappabianca and similar authority, they cannot be liable under § 200 or common-law negligence. The court explicitly holds:

The motion court properly dismissed plaintiff’s Labor Law § 200 claim as against defendants BBW, LBI, LBSD&C, 441 Lexington and Gordon upon a finding that there was no evidence that plaintiff’s accident was caused by a dangerous condition existing on the premises. Further, the facts demonstrated as a matter of law that these defendants did not exercise any direct control or supervision over the means and methods of plaintiff’s work … For the same reasons, the common-law negligence claims as against these defendants also should have been dismissed.

3. Triable issues as to E.C. Provini

The analysis differs significantly for E.C. Provini. The court notes:

• Provini made the decision not to provide a requested forklift for unloading cabinetry and millwork;
• Provini supervised the unloading process; and
• Provini was present at the time of the accident.

These facts create issues of fact as to whether Provini:

• Had the authority to supervise or control the means and methods of the work (which it appears to have exercised in deciding equipment and procedures); and
• Was operationally negligent in not supplying a safer lifting device, which may have been a proximate cause of the accident.

The court cites Jarvis v Crotona Assoc., LLC, 14 AD3d 423 (1st Dept 2005), where liability under § 200 was upheld in circumstances where the defendant’s direct involvement in work methods and equipment decisions contributed to a worker’s injury. By analogy, Provini’s active role in the unloading operation distinguishes it from passive owners and tenants.

4. CBI’s position

Although not elaborated at length, the Appellate Division does not disturb Supreme Court’s denial of CBI’s motion with respect to Labor Law § 200 and common-law negligence. As plaintiff’s employer in control of his daily work activities, CBI naturally remains a potentially liable party under these theories (subject to workers’ compensation limitations on indirect claims).

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D. Contractual Indemnification and Risk Transfer

1. Contractual vs common-law indemnification

In New York:

• Contractual indemnification arises from express agreements where one party (indemnitor) agrees to defend and/or hold harmless another (indemnitee) for claims “arising out of” or “in connection with” specified work.
• Common-law indemnification is implied, generally based on differences in fault levels (e.g., vicariously liable party seeking full reimbursement from the primarily negligent actor).

Contractual indemnification is limited by General Obligations Law § 5‑322.1, which invalidates agreements purporting to indemnify an indemnitee for its own sole negligence in construction-related contracts. Courts respond by:

• Interpreting such clauses to allow indemnification only to the extent permitted; and
• Granting conditional summary judgment, subject to a later allocation of fault to ensure that an indemnitee is not indemnified for its own negligence.

2. E.C. Provini’s indemnification from CBI

The court holds that:

No evidence of negligence on CBI’s part was required to grant E.C. Provini’s motion for summary judgment on its contractual indemnification claim against CBI (see Estevez v SLG 100 Park LLC, 215 AD3d 566, 570–571 [1st Dept 2023]). E.C. Provini’s right to conditional contractual indemnification from CBI was established by the broad indemnification language in the E.C. Provini/CBI subcontract and “was triggered solely by virtue of plaintiff’s accident occurring while in the performance of [CBI’s] contractual duties” (Newman v New York City Hous. Auth., 231 AD3d 443, 444 [1st Dept 2024]).

Two key precedents guide this holding:

• Estevez v SLG 100 Park LLC, 215 AD3d 566 (1st Dept 2023)
  Affirmed that broad indemnity provisions can support summary judgment for the indemnitee even without proof of negligence by the indemnitor, so long as the injury arises out of the indemnitor’s work.
• Newman v New York City Hous. Auth., 231 AD3d 443 (1st Dept 2024)
  Clarified that such broad indemnity language is “triggered solely by virtue of” the occurrence of an accident during the indemnitor’s work, and that summary judgment can be granted on a conditional basis, later adjusted if the indemnitee’s own negligence is proven.

The court also notes:

E.C. Provini would be entitled to “conditional” contractual indemnification from CBI even though negligence on its part might ultimately be found to have contributed to plaintiff’s injury, and in that instance, E.C. Provini would be precluded from being indemnified to the extent that its own negligence contributed to the loss claimed (see Newman, 231 AD3d at 444; Winkler v Halmar Intl., LLC, 206 AD3d 458, 463 [1st Dept 2022]).

Thus, the Appellate Division:

• Embraces a generous view of when indemnity obligations are triggered (simply by the accident occurring during the indemnitor’s performance of the work), and
• Uses the “conditional indemnity” framework to harmonize broad indemnity language with GOL § 5‑322.1’s prohibition on indemnifying an indemnitee for its own negligence.

3. Indemnification for BBW, LBSD&C, and LBI

The court extends the logic of Winkler v Halmar Intl., LLC, 206 AD3d 458 (1st Dept 2022), to the retail and affiliate defendants:

• LBSD&C’s construction contract with Provini contained indemnification language extending protection to LBSD&C’s affiliates.
• The subcontractor agreement between Provini and CBI incorporated by reference the terms of the Provini/LBSD&C contract documents.

Therefore, although CBI never contracted directly with BBW or LBI, it is nonetheless contractually bound to indemnify them because:

1. They fall within the class of “affiliates” protected by the upstream contract; and
2. The downstream subcontract explicitly adopted those obligations.

This is a classic example of “flow-down” contractual risk transfer: the subcontractor inherits the obligation to indemnify all parties designated in the prime contract, not just the immediate counterparty. The court grants summary judgment for conditional indemnification in their favor.

4. 441 Lexington and Gordon: Ambiguity over “Owner”

The situation is more complex for the building owner (441 Lexington) and its property manager (Gordon). The contractual documents use the term “Owner,” but it is unclear:

• Whether “Owner” in the Provini/CBI subcontract was intended to refer to 441 Lexington (the building’s fee owner); or
• Whether “Owner” in project documents referred instead to LBSD&C as the “Owner” of the particular retail build-out project; or
• Whether 441 Lexington and/or Gordon otherwise fit within another class of indemnitees described in the indemnification provision.

The court therefore holds:

The record does not make clear that 441 Lexington, as “Owner,” and Gordon, the owner’s property manager, would be entitled to contractual indemnification under the broad language in the E.C. Provini/CBI subcontract agreement …

It reinstates their contractual indemnity claims (vacating that part of Supreme Court’s order that had dismissed them), but denies their motions for summary judgment, leaving the meaning of “Owner” and other potential indemnitee labels to be resolved by further factual development or contract interpretation at a later stage.

5. Takeaway on indemnification

The decision continues a strong First Department line enforcing broad construction indemnity clauses as follows:

• Indemnity is triggered by the occurrence of an accident in the course of the indemnitor’s work, not by a finding of the indemnitor’s negligence;
• Upstream clauses extending indemnity to affiliates and others will readily be given effect, especially where downstream contracts incorporate them by reference; but
• Ambiguities in identifying indemnitees (e.g., two different “Owners”) may preclude summary judgment until the parties’ intent is clarified.

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E. Workers’ Compensation Law § 11: Bar to Common-Law Indemnity and Contribution

Finally, the court addresses cross-claims against CBI for common-law indemnification and contribution. Under Workers’ Compensation Law § 11:

• If an employer secures workers’ compensation coverage, third-party tortfeasors generally cannot seek contribution or common-law indemnity from that employer; and
• The only exception is when the employee has suffered a statutorily defined “grave injury” (e.g., death, certain amputations, total blindness or deafness, severe brain injury, paraplegia or quadriplegia, etc.).

In Bordonaro:

• CBI established that plaintiff received workers’ compensation benefits; and
• No evidence was offered that he suffered a “grave injury.”

Citing Clarke v Empire Gen. Contr. & Painting Corp., 189 AD3d 611, 612 (1st Dept 2020), the court holds that common-law indemnity and contribution cross-claims against CBI must be dismissed. Notably, the other parties did not oppose this branch of CBI’s motion.

This leaves contractual indemnification as the primary avenue for upstream parties to shift liability to CBI. It underscores the practical importance of:

• Well-drafted indemnification provisions in construction contracts; and
• Ensuring that employers are explicitly bound to provide contractual indemnity if risk transfer to them is desired, since common-law indemnity and contribution are largely foreclosed by Workers’ Compensation Law § 11 absent a grave injury.

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IV. Simplifying Key Legal Concepts

1. Labor Law § 240(1) – “Scaffold Law”

This statute protects construction workers from elevation-related risks (falls from heights or objects falling from heights). It imposes a high level of responsibility (often described as “absolute liability”) on owners and contractors when:

• The worker is performing covered construction-related activities; and
• A safety device should have been provided (or should have been better designed or used) to guard against gravity-related harm.

If such protection is missing or inadequate and that failure contributes to the injury, the owner/contractor is liable even if the worker was also careless.

2. Labor Law § 241(6) and the Industrial Code

Section 241(6) gives workers another way to recover, but it is narrower:

• The worker must show that a specific regulation in the New York Industrial Code was violated; and
• That violation must have contributed to the accident.

General safety provisions are not enough. The plaintiff must identify the exact Industrial Code section, prove it applies, and show how it was violated by the facts.

3. Labor Law § 200 and Common-Law Negligence

Labor Law § 200 simply restates an ordinary negligence rule: owners and contractors must exercise reasonable care to provide a safe place to work. Courts analyze:

• Whether there was an unsafe condition on the property (e.g., broken stairs, holes); or
• Whether the defendants had the right to control how the work was done (e.g., telling workers what tools to use, where to stand, how to lift items).

If an owner merely provides the workplace but does not direct the work or create a hazardous condition, it is usually not liable under § 200.

4. Contractual Indemnification

Contractual indemnification is a promise in a contract that one party will bear some or all of the costs if another party is sued over an incident related to the work. These clauses often say that the subcontractor will indemnify the owner and contractors for any claims “arising out of” the subcontractor’s work.

Because New York law forbids a party from being indemnified for its own sole negligence on a construction job, courts grant “conditional” indemnification:

• The right to indemnity is recognized now (e.g., on summary judgment);
• But if the indemnitee (the party asking for indemnity) is later found partly at fault, indemnity will be reduced or limited so that it does not cover the indemnitee’s own negligence.

5. Workers’ Compensation Law § 11 and “Grave Injury”

When an employee is injured on the job, the employer generally pays through workers’ compensation insurance. In exchange, the employer is shielded from most lawsuits relating to the same accident.

Third parties (like owners or general contractors) usually cannot sue the employer for reimbursement (common-law indemnity or contribution) unless:

• The employee suffered a “grave injury” (a very serious, narrowly defined set of injuries); or
• There is a separate, valid contractual indemnity obligation.

In most cases, only contractual indemnity remains available against the employer, as in Bordonaro.

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V. Broader Impact and Practical Implications

A. For Owners, Tenants, and Property Managers

• Limiting § 200 and negligence exposure: The decision reinforces that owners and tenants can often avoid liability if they:
  • Do not supervise or control how contractors perform their work; and
  • Ensure that the premises themselves are free from dangerous conditions.
• Clarity in contract drafting: The ambiguity over whether “Owner” in the subcontract meant 441 Lexington or LBSD&C illustrates the importance of precisely identifying all intended indemnitees by legal name and capacity (e.g., “building owner,” “tenant,” “property manager”).

B. For Contractors and Subcontractors

• Equipment selection and § 240(1): Using a pallet jack on an elevated liftgate to handle a 1,000‑pound cabinet can create § 240(1) exposure. Contractors should:
  • Evaluate whether forklifts, hoists, or other lifting devices are necessary for unloading heavy materials at elevation; and
  • Document safety decisions and equipment requests (e.g., whether a forklift request was made, denied, and why).
• Understanding indemnity obligations: Subcontractors must recognize that:
  • They may be contractually obligated to indemnify not only the entity they directly contract with, but also upstream owners, tenants, and affiliates;
  • Indemnity can be triggered by any accident occurring in the course of their work, regardless of their actual fault; and
  • Insurance coverage should be aligned with these indemnity risks.

C. For Litigators and Risk Managers

• Strategic pleading of § 241(6): Counsel must carefully select Industrial Code provisions that fit both the equipment and the circumstances. Overbroad or ill-fitting citations (like § 23‑9.8 and § 23‑6.1 here, without the necessary supporting facts) are vulnerable to dismissal.
• Use of conditional indemnification motions: Defendants should move early for summary judgment on contractual indemnification, even when their own negligence is disputed. The First Department is receptive to granting conditional indemnity, subject to trial findings.
• Workers’ comp and employer shield: When the injured plaintiff is an employee of a subcontractor that has provided workers’ compensation, common-law indemnity and contribution claims against that employer are almost always barred absent “grave injury.” Contractual indemnity becomes the main vehicle for risk transfer.

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VI. Conclusion

Bordonaro v. E.C. Provini Co., Inc. clarifies and refines several important doctrines in New York construction law:

• It confirms that moving heavy materials using a pallet jack on an elevated truck liftgate can present an elevation-related risk within the ambit of Labor Law § 240(1), leaving the adequacy of the chosen equipment as a triable issue of fact.
• It strictly applies Labor Law § 241(6)’s requirement that the facts match specific, concrete Industrial Code provisions, leading to dismissal where no such match exists.
• It reaffirms the two-prong approach to Labor Law § 200 and common-law negligence, exonerating passive owners and tenants while preserving claims against active construction supervisors like Provini.
• It strengthens the First Department line of cases enforcing broad contractual indemnification, triggered by the occurrence of accidents during a subcontractor’s work, and grants conditional summary judgment even where indemnitee negligence is still in dispute.
• It underscores that, absent a “grave injury,” Workers’ Compensation Law § 11 bars common-law indemnity and contribution claims against the employer, leaving contractual indemnity as the primary risk-transfer mechanism.

Taken together, the decision is a powerful reminder of how New York courts balance worker protection (especially through § 240(1)) with sophisticated contractual risk allocation among the entities that design, own, manage, and construct New York’s buildings. For practitioners, Bordonaro offers concrete guidance on how equipment choices, contract language, and evidentiary detail can significantly shape liability outcomes in construction accident litigation.