er devices which shall be so constructed, placed and operated as to give proper protection to a person so employed" (Morin v Heritage Bldrs. Group, LLC, 211 A.D.3d 1138, 1140 [3d Dept 2022] [internal quotation marks, brackets, ellipses and citation omitted]; see Barreto v Metropolitan Transp. Auth., 25 N.Y.3d 426, 433 [2015]). "[L]iability under [this statute] arises when a worker's injuries are the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Wood v Baker Bros. Excavating, 205 A.D.3d 1113, 1114 [3d Dept 2022] [internal quotation marks and citations omitted]; see DeGraff v Colontonio, 202 A.D.3d 1297, 1299 [3d Dept 2022], lv dismissed 39 N.Y.3d 1150 [2023]). "The statute is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed, and should be construed with a commonsense approach to the realities of the workplace at issue" (Crutch v 421 Kent Dev., LLC, 192 A.D.3d 977, 979-980 [2d Dept 2021] [internal quotation marks and citations omitted]; see Nicometi v Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 101 [2015]). "To this end, the safety devices prescribed by Labor Law § 240 (1) 'are for the use or protection of persons in gaining access to or working at sites where elevation poses a risk'" (Crutch v 421 Kent Dev., LLC, 192 A.D.3d at 979-980 [citations omitted], quoting Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514 [1991]).

Although the Appellate Division, Second Department does not mention the depth of the hole at issue in Balfe, plaintiff, in his reply brief on appeal, states that the hole was two feet deep (see Reply Brief, 2021 WL 10365302, *4). Here, the scaffold stairs, wood platform and step, which together served as the only means to access the scaffold platform being used in the performance of the work, constitute a safety device within the meaning of Labor Law § 240 (O'Brien v Port Auth. of N.Y. &N.J., 29 N.Y.3d 27, 33-34 [2017]; Crutch v 421 Kent Dev., LLC, 192 A.D.3d 977, 980 [2d Dep't 2021]; Esquivel v 2707 Creston Realty, LLC, 149 A.D.3d 1040, 1041 [2d Dep't 2017]). Further, under these circumstances, the 18-inch elevation differential constitutes a significant elevation differential for purposes of a section 240 (1) cause of action (Abreo, 60 A.D.3d at 880; McGarry, 55 A.D.3d at 441; Latino, 300 A.D.2d at 632-633).

On the other hand, in light of the factual issues with respect to OSIB/Rinaldi's own negligence under plaintiffs Labor Law § 200 and common-law negligence claims, OSIB/Rinaldi have failed to demonstrate their prima facie entitlement to contractual indemnification as they have failed to establish that they are themselves free from any negligence with respect to this accident (see Crutchv 421 Kent Dev., LLC, 192 A.D.3d 977, 982 [2d Dept 2021]; Tarpey v Kolanu Partners, LLC, 68 A.D.3d 1099, 1100-1101 [2d Dept 2009]; General Obligations Law § 5-322.1). The court notes that, although OSIB/Rinaldi would be barred from recovering under the provision if they are found liable to plaintiff, if they are successful in defending the action, they may obtain indemnification for expenses, including attorney's fees, arising from their defense of the action (see Aliceav Medjugorje Realty, LLC, 210 A.D.3d 835, 842 [2d Dept 2022]).

Concerning common law indemnification, it is impossible for a defendant to recover under this theory if the defendant seeking relief was negligent (see Fedrich v Granite Bldg. 2. LLC, 165 A.D.3d 754, 756 [2d Dept 2018]; see also Santoro v Poughkeepsie Crossings. LLC, 180 A.D.3d 12, 16 [2d Dept 2019]). The analysis ends here if the defendant seeking relief was negligent (see e.g. Crutch v 421 Kent Dev., LLC, 192 A.D.3d 977, 981 [2d Dept 2021]), i.e., a defendant cannot point to his or her codefendant's negligence as a way to circumvent the requirement that the party seeking indemnification be free of negligence. As discussed above, Builders was found negligently liable for plaintiffs injuries (see supra at 9-10), thereby precluding Builder's common-law indemnity claim. Accordingly, Pizza is entitled to summary judgment dismissing Builder's common-law indemnity claim as against it.

The elements for common-law and contractual indemnification are found in Crutch v 421 Kent Dev., LLC, 192 A.D.3d 977, 981, 146 N.Y.S.3d 155, 159, 2021 NY Slip Op 01751, 2021 WL 1112925 (AD 2d Dept 2021):

The subcontract between SHS Ralph and Thyssenkrupp included a rider that stated, in part, that Thyssenkrupp must indemnify SHS Ralph "to the fullest extent permitted by law" against all liability "or claimed liability for bodily injury or death to any person(s)... arising out of or resulting from the Work covered by this Contract Agreement to the extent such Work was performed by or contracted through" Thyssenkrupp, "excluding only liability created by the sole and exclusive negligence of the Indemnified Parties." In moving for summary judgment on the third-party cause of action, SHS Ralph failed to "affirmatively demonstrate that it was free from negligence" (Crutch v 421 Kent Dev., LLC, 192 A.D.3d 977, 982).

, their motion for summary judgment on their contractual indemnification claim must be denied. See Rodriguez v Waterfront Plaza, LLC, 207 A.D.3d 489, 491 (2d Dept 2022); Crutch v 421 Kent Dev., LLC, 192 A.D.3d 977, 982 (2d Dept 2021); General Obligations Law § 5-322.1 . See Brown v Two Exch. Plaza Partners, 76 N.Y.2d 172, 178 (1990); Mogrovejo v HG Hous. Dev. Fund Co., Inc., 207 A.D.3d 461, 463-464 (2d Dept 2022); Bellreng v Sicoli & Massaro, Inc., 108 A.D.3d 1027, 1031 (4th Dept 2013).

Since Plaintiffs' claim arises from Defendant Howell's work that it subcontracted to Defendant Unitech, the broad indemnification requirements of the first paragraph of Article 11 are applicable for injury to an employee of one of Defendant Howells' subcontractors. However, given that there are factual issues with respect to the City Defendants' own negligence, their motion for summary judgment on their contractual indemnification claim must be denied. See Rodriguez v Waterfront Plaza, LLC, 207 A.D.3d 489, 491 (2d Dept 2022); Crutch v 421 Kent Dev., LLC, 192 A.D.3d 977, 982 (2d Dept 2021); General Obligations Law § 5-322.1. See Brown v Two Exch. Plaza Partners, 76 N.Y.2d 172, 178 (1990); Mogrovejo v HG Hous. Dev. Fund Co., Inc., 207 A.D.3d 461, 463-464 (2d Dept 2022); Bellreng v Sicoli & Massaro, Inc., 108 A.D.3d 1027, 1031 (4th Dept 2013).

, their motion for summary judgment on their contractual indemnification claim must be denied. See Rodriguez v Waterfront Plaza, LLC, 207 A.D.3d 489, 491 (2d Dept 2022); Crutch v 421 Kent Dev., LLC, 192 A.D.3d 977, 982 (2d Dept 2021); General Obligations Law § 5-322.1 . See Brown v Two Exch. Plaza Partners, 76 N.Y.2d 172, 178 (1990); Mogrovejo v HG Hous. Dev. Fund Co., Inc., 207 A.D.3d 461, 463-464 (2d Dept 2022); Bellreng v Sicoli & Massaro, Inc., 108 A.D.3d 1027, 1031 (4th Dept 2013).

"Common-law indemnification is generally available ‘in favor of one who is held responsible solely by operation of law because of his [or her] relation to the actual wrongdoer’ " ( McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 375, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011], quoting Mas v. Two Bridges Assoc., 75 N.Y.2d 680, 690, 555 N.Y.S.2d 669, 554 N.E.2d 1257 [1990] ). "In order to establish a claim for common-law indemnification, a party must prove not only that it was not negligent, but also that the proposed indemnitor's actual negligence contributed to the accident" ( Crutch v. 421 Kent Dev., LLC, 192 A.D.3d 977, 981, 146 N.Y.S.3d 155 [2d Dept. 2021] [internal quotation marks and citation omitted]; seeHackert v. Emmanuel Cong. United Church of Christ, 130 A.D.3d 1292, 1295, 14 N.Y.S.3d 191 [3d Dept. 2015] ).