Wallace v. National Railroad Passenger Corp. (5 F. Supp. 3d 452, 2014)

MEMORANDUM & ORDER

ALISON J. NATHAN, District Judge:

Plaintiff Steven Wallace was injured when he fell from a floating platform that he was working on while repairing a bridge'owned by Defendant National Railroad Passenger Corp. d/b/a Amtrak (“Amtrak”). In this diversity action, Wallace brought several state law causes of action against Amtrak, seeking to recover for his injuries. Amtrak, in turn, filed a third-party complaint against Wallace’s employer, Weeks Marine, Inc. (“Weeks”), alleging that Weeks had indemnified it against Wallace’s claims. Weeks then brought a fourth-party complaint against Liberty Surplus Insurance Corp. (“Liberty”), Amtrak’s insurer, claiming that Liberty, not Weeks, should pay for Wallace’s injuries.

Following discovery, the parties filed motions for summary judgment, which are now before the Court. Wallace moves for summary judgment as to liability on his claims under New York Labor Law Sections 240(1) and 240(6), Dkt. No. 58; Amtrak and Weeks move for summary judgment on all of Wallace’s claims against Amtrak, Dkt. Nos. 46, 51; Amtrak and Weeks cross-move for summary judgment on Amtrak’s claims against Weeks, Dkt. Nos. 89, 95; and Liberty and Weeks cross-move for summary judgment on Weeks’s claims against Liberty, Dkt. Nos. 95, 102. For the following reasons, Wallace’s motion is granted in part and denied in part, Amtrak’s and Weeks’s motions against Wallace are granted in part and denied in part, Amtrak’s motion against Weeks is granted in part and denied in part, Weeks’s motion against Amtrak is granted in part and denied in part, Weeks’s motion against Liberty is denied, and Liberty’s motion against Weeks is granted in part and denied in part. In light of this disposition, Weeks’s cross-motion to strike portions of Wallace’s affidavit, Dkt. No. 63, is denied as moot.

I. BACKGROUND

Unless otherwise noted, the following facts are undisputed and are based on the Court’s review of the record, undertaken with particular attention to the evidence cited in the parties’ Local Rule 56.1 statements. See Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 292 (2d Cir.2000); Agence Fr. Presse v. Morel, 934 F.Supp.2d 547, 551 (S.D.N.Y.), superseded on other grounds on reconsideration, 934 F.Supp.2d 584 (S.D.N.Y.2013).

A. The Construction Project

The Pelham Bay Bridge is a railroad bridge that crosses the Hutchinson River. Amtrak 3/1 56.1 ¶¶ 5-6. Amtrak, which owns the bridge, engaged Weeks in September 2009 to be the general contractor for a construction project involving the rehabilitation of the bridge. Id.; Joseph 3/1 Decl. Ex. A. Specifically, Weeks’s task was to strengthen the structural piles (or columns) supporting the bridge. Amtrak 3/1 56.1 ¶ 6. This task involved encasing the piles with steel reinforcement bars, or “rebar,” which would support fiberglass and cement casing where the piles were damaged or deteriorated. Id.; Weeks 3/1 56.1 ¶ 5.

Amtrak stationed safety officers at the bridge to help prevent Weeks’s employees from being hit by trains. Amtrak 3/1 56.1 ¶24. Additionally, John Ramo, Amtrak’s project manager for the Pelham Bay Bridge project, attended about 50 meetings there to oversee the project and attend progress meetings. Ramo Dep., Hansen Aff. Ex. 4, at 14. He testified that he was at the bridge about once a week, and that Amtrak had several employees stationed there daily, including an inspector to ensure that “the contractors’ operations [would not] impact the safe passage of trains” and that the project was proceeding on schedule. Id. at 17-20.

B. Wallace’s Accident

Wallace, a Weeks employee, worked as a dock builder on the bridge project for several weeks during the spring of 2010. Amtrak 3/1 56.1 ¶ 5; Weeks 3/1 56.1 ¶ 4; Wallace Dep., Joseph 3/1 Decl. Ex. B, at 11. One of his tasks was installing rebar cages around the bridge pilings. Weeks 3/1 56.1 ¶¶ 5, 9. To allow its workers to access the pilings, Weeks used a series of wooden “float stages” that were set in the water. The float stages were composed of 12" by 12" or 16" by 16" wooden planks, approximately 20 feet long, which were pinned together side by side, for a total width of five to six feet. Amtrak 3/1 56.1 ¶¶ 9-11; Weeks 3/1 56.1 ¶¶ 6-7; Wallace 56.1 ¶8. These float stages acted as “sidewalks” along which Weeks workers could walk in order to access the piles. Amtrak 3/1 56.1 ¶ 10. The tops of the float stages were about three to four inches above the surface of the water, but could be lower depending on how much weight they were bearing at any given time. Id. ¶ 12. Weeks owned and maintained these float stages. Id. ¶ 13.

Wallace testified at his deposition that the float stages were in bad condition, in that they had pieces of wood missing and “were literally falling apart under your feet, a lot of them.” Wallace Dep., Joseph 3/1 Decl. Ex. B, at 60. Jason Monach, Wallace’s co-worker, also testified that Weeks employees often had to repair parts of the float stages “where the wood was not quite flush and it was awkward to walk on.” Monach Dep., Hansen Aff. Ex. 8, at 43. Additionally, Mark McMahon, a Weeks foreman, stated in his deposition that “moss” on the surface of the float stages was an “ongoing problem,” and that workers had complained to him that the stages were too slippery as a result. McMahon Dep., Hansen Aff. Ex. 7, at 42-43. However, Ramo, Amtrak’s project manager, testified that he never knew of any concerns regarding the safety of the float stages. Ramo Dep., Joseph 3/1 Decl. Ex. G, at 44.

On May 6, 2010, Wallace and his coworkers were in the process of installing a rebar cage. A crane initially lowered the cage from a barge onto a float stage. Weeks 3/1 56.1 ¶ 11; Wallace 3/1 56.1 ¶ 11. Then, Wallace and three others began carrying the cage along the float stages, with one worker holding each corner of the cage. Wallace Dep., Joseph 3/1 Decl. Ex. A, at 56. The workers walked on the outside of the cage, so that they were near the edge of the float stages, with the cage suspended between them over the center of the stages. Wallace 3/1 56.1 ¶ 13; Wallace Dep., Joseph 3/1 Decl. Ex. A, at 56. Wallace manned the front right corner of the cage, with his right side facing the water. Wallace Dep., Joseph 3/1 Decl. Ex. A, at 56; Quesada Dep., Joseph 3/1 Decl. Ex. J, at 79. The other Weeks employees carrying the cage were Monach, Peter Fitzpatrick, and Matthew Quesada. Amtrak 3/1 56.1 ¶ 15 n. 10.

The four men had walked along two float stages and had crossed to a third when Wallace fell. Weeks 3/1 56.1 ¶¶ 12-13. At his deposition, Wallace stated that his fall resulted from his stepping on the side of the float stage, where a piece of the float stage was “missing.” Wallace Dep., Joseph 3/1 Decl. Ex. B, at 259, 262. After he stepped on the missing piece of the float stage, Wallace testified, his “leg rolled under where the piece was missing and then [he] went down to the float stage and into the water.” Id. at 259; Weeks 3/1 56.1 ¶ 13. Monach, Wallace’s co-worker, recalls Wallace stating at the time of the accident that he “he slipped on the float stage.” Monach Dep., Hansen Aff. Ex. 8, at 67; see also id. at 78-79 (“I do believe [Wallace] mentioned that he slipped.”). According to Monach, who examined the area where Wallace fell after the accident occurred, the float stage had “a small rounded edge to the side [Wallace] was walking on,” which “had a little bit of algae on the side and underneath part.” Id. at 67.

After falling from the float stage, Wallace ended up in the water, although it is unclear whether he was ever fully submerged. Compare Wallace Dep., Betanc-ourt 3/1 Decl. Ex. A, at 249 (fully submerged), with Monach Dep., Betancourt 3/1 Decl. Ex. E, at 76 (about two-thirds submerged). In any event, he bobbed to the surface because he was wearing a life vest, and his co-workers pulled him out. Wallace Dep., Betancourt 3/1 Decl. Ex. A, at 249. In all, Wallace was in the water for less than a minute. Amtrak 3/1 56.1 ¶ 19. He testified at his deposition that he did not know how deep he fell or whether he impacted the bottom of the river. Wallace Dep., Joseph 3/1 Decl. Ex. B, at 69-71, 250. The parties dispute how deep the water in the river was at the time Wallace fell: Amtrak and Weeks claim that, based on the tides, the water was no more than four and a half feet deep. Amtrak 3/1 56.1 ¶ 20; Weeks 3/1 56.1 ¶ 17. However, Que-sada stated at his deposition that he thought the water was about twelve feet deep. Wallace 56.2 3/1 ¶21. Wallace’s affidavit, submitted in connection with his motion for summary judgment, states that the water was approximately six to ten feet deep. Wallace Aff. ¶ 8.

After Wallace was removed from the water, his leg was bleeding and he was in pain, but he was not sure whether he was badly injured. Wallace Dep., Joseph 3/1 Decl. Ex. B, at 74, 77-78. He changed his clothes and continued working. Id. at 81. He reported his fall to McMahon, Weeks’s foreman, later that day. Amtrak 3/1 56.1 ¶ 2. He also filled out an accident report, which is dated May 13, 2011, although Wallace may have filled out the report as early as May 6. Wallace Dep., Hansen Aff. Ex. A, at 91-93. Wallace also sought medical care subsequent to the accident, possibly as late as May 14, 2011. Wallace Dep., Betancourt 3/1 Decl. Ex. A, at 101. He later underwent neck surgery. Id. at 145.

Following Wallace’s fall, his co-worker Fitzpatrick examined the float stage and saw that it was damaged where Wallace fell. Wallace 56.1 ¶ 24; Fitzpatrick Dep., Hansen Aff. Ex. 6, at 46-49. Additionally, a post-accident report prepared by Travis Iapicco, Weeks’s field engineer, stated that the cause of Wallace’s accident was a “small area of float stage missing on [the] outermost edge.” Iapicco Dep., Hansen Aff. Ex. 3, at 50. However, Iapicco also testified that the missing piece on the edge of the float stage was “nothing abnormal” and part of general wear and tear. Iapic-co Dep., Joseph 3/22 Opp. Decl. Ex. C, at 32. Moreover, Iapicco was pointed to the relevant area of float stage by McMahon, and there is no evidence that either Iapic-co or McMahon actually knew which float stage Wallace fell from, since the stages were frequently rearranged and had no identifying characteristics. Amtrak 3/22 56.1 Resp. ¶ 10.

C. The Parties’ Contracts

On or about September 17, 2009, Amtrak and Weeks entered into a contract (the “Construction Contract”), under which Weeks would be the general contractor for the bridge project. Weeks 8/14 56.1 Resp. (Amtrak) ¶¶ 6-8; Joseph 7/25 Decl. Ex. A. The contract provides that it is to be “governed by and construed in accordance with the laws of the District of Columbia without regard to choice of law consideration.” Joseph 7/25 Decl. Ex. A § 81.1.

The Construction Contract also contains a section titled “Indemnification.” That section provides:

68.1. Contractor [Weeks] agrees to defend, indemnify and hold harmless Amtrak, its officers, directors, employees, agents, servants, successors, assigns and subsidiaries (collectively “Indemnified Parties”) from and against any claims, losses, liabilities (including without limitation environmental liabilities), penalties, fines, causes of action, suits, costs, and expenses incidental thereto (including costs of defense and attorneys’ fees) (collectively “Claims”) which any of the Indemnified Parties may hereafter incur, be responsible for or pay as a result of breach of warranty, injury or death of any person, or damage to or loss (including loss of use) any property, including property of the parties hereto, arising out of or in any degree directly or indirectly caused by or resulting from materials or deliverables supplied by, or from activities of, or Work performed by Contractor, Contractor’s officers, employees, agents, subcontractors, or any other person acting for or with the permission of Contractor under the Contract, or as a result of Contractor’s failure to perform its obligations in compliance with the Contract Documents.

68.2. In addition to the foregoing, Contractor agrees to defend, indemnify and hold harmless the Indemnified Parties, irrespective of any negligence or fault on the part of the Indemnified Parties, from and against any Claims which any of the Indemnified Parties may hereafter incur, be responsible for or pay as a result of injuries (including death) to any of Contractor’s employees, agents or subcontractors.

68.3. The indemnification obligation under this Section shall not be limited by the existence of any insurance policy procured or maintained by Contractor or by any limitation on the amount or type of damages, compensation or benefits payable by or for Contractor or any subcontractor and shall survive the termination of the Contract.

Joseph 7/25 Decl. Ex. A § 68.

The Construction Contract also contains a section titled “Insurance,” which requires Weeks to “procure and maintain, at all times during the term of this Contract, at its own cost and expense, the types of insurance specified herein.” Joseph 7/25 Decl. Ex. A § 69.1. Two of those types were commercial general liability insurance and railroad protective liability insurance. The contract described those types of insurance, respectively, as follows:

(b) Commercial General Liability Insurance. A policy issued to and covering liability imposed upon Contractor arising out of the Work to be performed and all obligations assumed by Contractor under the terms of this Contract....

(e) Railroad Protective Liability Insurance .... A policy ... in the name of [Amtrak] (and any other railroad operating over the tracks). The policy shall have a combined single limit of liability of not less than two million dollars ($2,000,000) per occurrence for Coverages A and B with a six million dollar ($6,000,000) annual aggregate.... The original policy shall be submitted to Amtrak prior to commencement of Work.

Id. § 69.2(b), (e). Pursuant to these requirements, Weeks purchased a railroad protective liability policy (the “RPL Policy”) and a commercial general liability policy (the “CGL Policy”).

The RPL Policy was issued by Liberty. Weeks 8/14 56.1 Resp. (Amtrak) ¶ 13. The premium for the RPL Policy was $47,021. Joseph 7/25 Decl. Ex. H Item 9. In the RPL Policy, Amtrak is listed as the “Named Insured,” and Weeks, which procured the policy, is listed as the “Designated Contractor.” Id. Items 1, 3. The policy defines the term “insured” as the Named Insured (that is, Amtrak), its executive officers and directors, its stockholders, and railroads operating over its tracks. Id. § II.1-4. It provides that Liberty will cover “those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damages’ to which this insurance applies,” but that such coverage applies only to injuries and damages that “arise[] out of acts or omissions at the ‘job location’ which are related to or are in connection with the ‘work’ described in the Declarations” (in addition to several other exclusions not relevant here). Id. § I.A.l.a, b. (The declarations section makes clear that the “job location” is Pelham Bay Bridge, and the “work” is the rehabilitation project that Amtrak contracted with Weeks to perform. Id. Items 5, 8.)

In addition, the RPL Policy contains a section titled “Other Insurance.” That section provides in relevant part that “[t]he insurance afforded by this policy is ... [pjrimary insurance and we will not seek contribution from any other insurance available to you except if the other insurance is provided by a contractor other than the designated contract for the same operation and ‘job location.’ ” Joseph 7/25 Decl. Ex. E § IV.A.6. The RPL Policy also contains a transfer of rights provision, which states, “[i]f the insured has rights to recover all or part of any payment we have made under this policy, those rights are transferred to us.” Id. § IV.A.8.

The CGL Policy that Weeks purchased was issued by the Indemnity Insurance Company of North America (“ACE”). Be-tancourt 8/14 Opp. Decl. (Amtrak) Ex. A. The premium for the CGL Policy was $675,000. Id. at 1. Under that policy, Weeks is the “Named Assured.” Id. at 5. The policy provides that it will pay on Weeks’s behalf for bodily injury and property damage claims, subject to the policy’s terms. Id. at 14. Like the RPL Policy, the CGL Policy contains a provision titled “Other Insurance,” which states:

If other valid and collectible insurance with any other Insurer is available to the Assured covering a loss also covered by this policy, other than Insurance, that is excess of the Insurance afforded by this Policy, the Insurance afforded by this Policy shall be in excess of and shall not contribute with such other Insurance, either as double insurance or otherwise. Nothing herein shall be construed to make this Policy subject to the terms and conditions and limitations of other insurance.

Id. § 14, at 9.

D. Amtrak’s Communications with Weeks and Liberty

On September 13, 2011, Amtrak’s Director of Claims/Litigation, Paul Michalski, sent a letter to Weeks, notifying it of Wallace’s claims and demanding that Weeks “protect, defend, indemnify and save Amtrak harmless in this litigation.” Joseph 7/25 Decl. Ex. B. Weeks did not respond to that letter. On September 14, Ronald Betancourt of the law firm Betanc-ourt, Van Hemmen, Greco & Kenyon LLC (“BVGK”) wrote to Michalski, stating that BVGK had been engaged by Weeks to defend Amtrak against Wallace’s claims. However, Betancourt’s letter did not mention Weeks’s indemnification obligation. Joseph 7/25 Decl. Ex. C. In light of that silence, Michalski emailed Teresa Olivo, Weeks’s personal injury claims manager, on September 15, 2011, expressing confusion about BVGK’s letter insofar as it was silent regarding indemnification. Michal-ski expressed his “understanding that Weeks Marine WILL indemnify Amtrak,” and asked Weeks to confirm that understanding. Joseph 7/25 Decl. Ex. D. Weeks’s corporate risk manager, Tom Langan, replied to Michalski, copying Oli-vo. Langan wrote, “I’m not sure what you find confusing” about BVGK’s letter, stated his view that BVGK’s letter indicated that it was litigation counsel, not coverage counsel, and did not mention Weeks’s indemnification obligation. Joseph 7/25 Decl. Ex. E.

At' the same time, Amtrak was also communicating with Liberty regarding Wallace’s claims. After being informed of the lawsuit, Liberty engaged Railway Claims Services, Inc. (“RCS”) to act as its third-party claims administrator. Liberty 56.1 Resp. ¶¶ 18, 19. On September 22, 2011, Randal Little, RCS’s director of operations, emailed Amtrak’s Michalski on Liberty’s behalf. The email stated that “Liberty’s Policy is a Railroad Protective Policy that provides coverage for and on behalf of Amtrak, and is not intended to serve as primary insurance for this loss.” It indicated that the Construction Contract between Amtrak and Weeks “clearly requires Weeks Marine to indemnify Amtrak for any injuries to Weeks Marine Employees.” As a result, Little wrote, “Liberty does not wish to participate in the direction and defense of this loss by Weeks and the attorney Weeks has elected to retain.” Little’s email also stated that Liberty would fulfill its obligations to Amtrak under the RPL policy. Betanc-ourt 8/14 Opp. Decl. (Liberty) Ex. E. Attached to the email was a letter from RCS stating that a review was necessary to determine Liberty’s obligations, and reminding Amtrak of its own obligations under the RPL policy. Betancourt 8/14 Opp. Decl. (Liberty) Ex. F.

According to Michalski’s deposition testimony, Amtrak’s typical practice when faced with personal injury claims was to tender its defense to the contractor and await a reply. If the contractor agreed to defend and indemnify Amtrak, then the contractor would assume Amtrak’s defense and appoint counsel of its choosing to represent Amtrak. However, if the contractor “did not respond in a favorable manner as to their requirements pursuant to the indemnity,” Amtrak would seek to protect its own interests. Michalski Dep., Muilen-berg Opp. Decl. Ex. B, at 45.

Accordingly, following Amtrak’s initial communications with Weeks and Liberty, and in light of Weeks’s continued silence regarding its indemnification obligations, Liberty, Amtrak, and RCS agreed that Landman Corsi Ballaine & Ford P.C. (“LCBF”) should represent Amtrak, rather than BVGK, which had been chosen by Weeks. Little Dep., Joseph 8/14 Opp. Decl. Ex. I, at 22, 52-53; Little Dep., Muilenberg Decl. Ex. K, at 43. On September 28, 2011, LCBF called BVGK’s Betancourt, stating that Liberty had instructed LCBF to take over Amtrak’s defense. Liberty 56.1 Resp. ¶¶ 22, 23. On October 6, 2011, Amtrak filed a notice of substitution of counsel, endorsed by Amtrak, in which LCBF was formally substituted for BVGK. Dkt. No. 5.

On October 7, 2011, after LCBF had taken over Amtrak’s defense, LCBF’s Ronald Joseph sent a letter to Weeks’s Langan. In the letter, Joseph summarized the earlier communications between Michalski and Weeks, and pointed to Weeks’s silence regarding its indemnification obligation. Joseph then quoted at length from the Construction Contract, and indicated that under the contract, Weeks was required to indemnify Amtrak against Wallace’s claims. Joseph asked Langan to sign a statement that ‘Weeks Marine will defend, indemnify and hold harmless” Amtrak in Wallace’s lawsuit. Joseph 7/25 Decl. Ex. F. The next day, Langan responded to Joseph by email. He wrote,

I have no intention of signing the statement at the bottom of your letter. The indemnification section of the contract speaks for itself.... I reserve the right to see if Wallace can prove that his alleged injuries were the result of the sole negligence or gross misconduct of Amtrak (which I recognize is highly unlikely). Nevertheless, if Wallace can make such a showing, I believe Amtrak’s indemnification clause can be challenged on public policy grounds as this was a construction contract.

Joseph 7/25 Decl. Ex. G.

E. Procedural History

Wallace filed a complaint against Amtrak on August 4, 2011, and the case was initially assigned to Judge Koeltl. Dkt. No. 1. Amtrak answered on October 7, and filed a third-party complaint against Weeks on October 20, which Weeks answered. Dkt. Nos. 8, 12. On February 14, 2012, the case was reassigned to the undersigned. On March 1, 2013, the parties filed their motions for summary judgment on Wallace’s claims, which were fully submitted as of March 29. On April 11, Weeks amended its answer to Amtrak’s third-party complaint in order to assert a fourth-party complaint bringing Liberty into the case. Dkt. Nos. 77, 83. Amtrak, Weeks, and Liberty filed their cross-motions for summary judgment with respect to their claims against each other on July 25. The motions are fully submitted.

II. LEGAL STANDARD

Summary judgment is appropriate when, after reviewing the evidence in the light most favorable to the non-moving party, Nabisco v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir.2000), “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 is not ‘genuine’ unless ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Nabisco, 220 F.3d at 45 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

Although Rule 56 places the burden on the moving party to demonstrate that no genuine issue of material fact exists, “[w]hen the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence ... on an essential element of the nonmovant’s claim.” Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir.2009). “Where the moving party demonstrates ‘the absence of a genuine issue of material fact,’ the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir.2011) (citations omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Specific evidence means more than “conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998).

Finally, much of this case centers on the interpretation of contractual provisions. “Summary judgment is generally proper in a contract dispute only if the language of the contract is wholly unambiguous.” Compagnie Financiere de CIC et de L’Union Europeenne v. Merrill Lynch, Pierce, Fenner & Smith Inc., 232 F.3d 153, 157 (2d Cir.2000). However, “the court may resolve ambiguity in contractual language as a matter of law if the evidence presented about the parties’ intended meaning [is] so one-sided that no reasonable person could decide the contrary.” Id. at 158 (alteration in original) (quoting 3Com Corp. v. Banco do Brasil, S.A., 171 F.3d 739, 746-47 (2d Cir.1999)) (internal quotation marks omitted).

III. DISCUSSION

The Court first addresses Wallace’s claims against Amtrak, then Amtrak’s claims against Weeks, and finally Weeks’s claims against Liberty.

A. Wallace’s Claims Against Amtrak

Wallace asserts claims under New York law for common law negligence and violations of New York Labor Law Sections 200, 240(1), and 241(6). Compl. ¶¶ 19, 27; Wallace Opp. at 1. Weeks and Amtrak both move for summary judgment in Amtrak’s favor on all of these claims, and Wallace moves for summary judgment on his claims under Labor Law Sections 240(1) and 241(6). Dkt. Nos. 46, 51, 58. Wallace has briefed only his Section 240(1) claims separately, leaving his Section 241(6) arguments for his opposition brief. But this irregularity is of no moment, since in any event “a court may grant summary judgment to a non-moving party, provided that party has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried.” First Fin. Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109, 115 (2d Cir.1999).

1. Local Rule 56.1

Before turning to the merits of Wallace’s claims, the Court addresses Amtrak’s contention that because Wallace failed to file a response to its Local Rule 56.1 statement of undisputed facts, the allegations in its statement should be deemed true for purposes of this motion. See, e.g., Galasso v. Eisman, Zucker, Klein & Ruttenberg, 310 F.Supp.2d 569, 572 (S.D.N.Y.2004) (McMahon, J.). A district court has discretion whether to conduct its own review of the record, and if “the record does not support the assertions in a Local Rule 56.1 statement, those assertions should be disregarded and the record reviewed independently.” Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir.2001), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175-77, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). The Court has taken that approach here and examined whether the record supports Amtrak’s factual assertions. Moreover, it would be particularly formalistic to deem all of Amtrak’s claims admitted given that Wallace filed a Rule 56.1 statement along with his own motion, thereby allowing the Court to focus on the pertinent factual issues. See id. (“The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.”).

2. Common Law Negligence and Labor Law Section 200

Labor Law Section 200 is “a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site,” Rizzuto v. Wenger Contracting Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 (1998); Cun-En Lin v. Holy Family Monuments, 18 A.D.3d 800, 796 N.Y.S.2d 684, 686 (2d Dep’t 2005), and New York courts analyze common law claims alleging an unsafe workplace under the same framework as Section 200 claims, see, e.g., Comes v. N.Y. State Elec. & Gas. Corp., 189 A.D.2d 945, 592 N.Y.S.2d 478, 479 (3d Dep’t 2005). The Court will do the same here, since the negligence allegations in Wallace’s complaint center on Amtrak’s alleged failure to “provide plaintiff with an adequately safe place to work” and the like. Compl. ¶ 20; cf. Palen v. ITW Mortg. Invs. III, Inc., No. 99 Civ. 3850(GBD), 2003 WL 1907980, at *5 (S.D.N.Y. Apr. 17, 2003) (analyzing common law and Section 200 claims together given similarity between “the facts and theories of liability alleged in support of plaintiffs claims”).

Ordinarily, “there is no liability under the common-law or Labor Law § 200 unless the owner or general contractor exercised supervision or control over the work performed.” Cun-En Lin, 796 N.Y.S.2d at 686. However, as Wallace points out, New York courts have recognized an exception to this principle: where a plaintiffs claims are “based not on the injured plaintiffs employer’s methods or materials but on a dangerous condition on the [work] site,” the question is not whether the defendant “exercised supervisory control over the manner of performance of the injury-producing work,” but rather whether it “had notice of the condition.” Minorczyk v. Dormitory Auth. of New York, 74 A.D.3d 675, 675, 904 N.Y.S.2d 383 (1st Dep’t 2010); see also Seda v. Epstein, 72 A.D.3d 455, 455, 900 N.Y.S.2d 6 (1st Dep’t 2010) (where plaintiffs claim involves “defective condition of the premises, ... [t]he issue is whether defendants either created or had notice of’ the condition). Thus, courts have drawn a distinction between “manner” cases, in which supervisory control is required for liability, and “premises” cases, in which notice of a dangerous condition is sufficient. Zapata v. Riverside Study Ctr., Inc., No. 10 Civ. 6283(CM), 2012 WL 1744792, at *10 (S.D.N.Y. May 16, 2012); Ortega v. Pucia, 57 A.D.3d 54, 866 N.Y.S.2d 323, 329 (2d Dep’t 2008).

Although Wallace argues that this is a premises case, Weeks — and not Amtrak— owned and provided the float stages at Wallace’s work site. Amtrak (Wallace) Reply at 3; Amtrak 3/1 56.1 ¶ 13. Therefore, because a float stage is analogous to a ladder or scaffold, see Dooley v. Peerless Imps., Inc., 42 A.D.3d 199, 837 N.Y.S.2d 720, 724 (2d Dep’t 2007), this may be better characterized as a manner case; the New York Court of Appeals has held that “if the contractor furnishes such appliances, the [property owner] does not thereby become responsible for their sufficiency,” Persichilli v. Triborough Bridge & Tunnel Auth., 16 N.Y.2d 136, 146, 262 N.Y.S.2d 476, 209 N.E.2d 802 (1965) (quoting Hess v. Bernheimer & Swartz, Pilsener Brewing Co., 219 N.Y. 415, 419, 114 N.E. 808 (1916)); see Ortega, 866 N.Y.S.2d at 330 (claims of a defective scaffold “involved the manner in which the plaintiff performed his work”). The Court need not decide this question, however, because Wallace’s claims fail under either rubric.

There is no evidence from which a jury could conclude that Amtrak supervised or controlled the manner of Wallace’s work. “[M]ere general supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the work product is insufficient” for liability; the defendant must “bear[] the responsibility for the manner in which the work is performed.” Ortega, 866 N.Y.S.2d at 330. The record indicates that Weeks, as contractor, was responsible for the manner in which Wallace’s work was performed. Amtrak 3/1 56.1 ¶¶ 6-13, 19, 22; Wallace Dep., Joseph 3/1 Deck Ex. B, at 264 (“Q: Nobody from Amtrak told you how to do your job, did they? A: No.”). Amtrak’s day-to-day involvement consisted of ensuring that the project was proceeding according to schedule and that Weeks’s workers would not be hit by trains. Amtrak 3/1 56.1 ¶¶ 24-25; Ramo Dep., Hansen Aff. Ex. 4, at 17-20. That is insufficient.

Wallace appears to concede as much, as his chief argument against summary judgment is that Amtrak and Weeks have not pointed to any evidence that Amtrak knew of a defective condition on the premises. Wallace Opp. at 2-5. But even if this is a premises ease, Wallace misunderstands the parties’ burdens under Rule 56. Whether Amtrak had notice of a defective condition is an element of Wallace’s case that he would be required to prove at trial. See, e.g., Custer v. Cortland Housing Auth., 266 A.D.2d 619, 697 N.Y.S.2d 739, 740 (3d Dep’t 1999). On summary judgment, it is “sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim.” Cordiano, 575 F.3d at 204; see Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548 (summary judgment is proper where there is a “complete failure of proof concerning an essential element of the nonmoving party’s case”). Wallace cites only New York cases, which require the movant to make a prima facie factual showing concerning the elements of the non-movant’s claims. E.g., Spector v. Cushman & Wakefield, Inc., 87 A.D.3d 422, 928 N.Y.S.2d 9, 10 (1st Dep’t 2011); see Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 734, 853 N.Y.S.2d 526, 883 N.E.2d 350 (2008) (“[T]he proponent of a summary judgment motion must ... tender[ ] sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” (emphasis omitted) (quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986))). That principle has no application in federal court. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (“[Federal courts sitting in diversity apply state substantive law and federal procedural law.”).

There is no evidence that Amtrak had notice of any defects that may have afflicted the float stage where Wallace’s accident occurred. Wallace denies that he ever told Amtrak about such conditions. Wallace Dep., Joseph 3/1 Decl. Ex. B, at 264. Under the misimpression that this lack of proof works to his benefit in this procedural posture, Wallace has not “come forward with admissible evidence sufficient to raise a genuine issue of fact for trial.” Cordiano, 575 F.3d at 204. Indeed, what evidence there is suggests that Amtrak did not have notice of any unsafe condition. See Amtrak 3/1 56.1 ¶ 26; Ramo Dep., Joseph 3/1 Decl. Ex. G, at 44 (testimony of Amtrak project manager who occasionally inspected the work site that he was not aware of or told about any issues concerning the condition of the float stages). Accordingly, the Court grants summary judgment to Amtrak on Wallace’s common law negligence and Labor Law Section 200 claims.

3. Labor Law Section 2íl(6)

Labor Law Section 241(6) requires owners and contractors to comply with regulations promulgated by New York’s Commissioner of the Department of Labor. See Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 501-02, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993). A private party may bring suit under Section 241(6) if she alleges that “a specific and concrete provision of the Industrial Code was violated and that the violation proximately caused ... her injuries.” Rosado v. Briarwoods Farm, Inc., 19 A.D.3d 396, 399, 796 N.Y.S.2d 394 (2d Dep’t 2005) (citations omitted). In his opposition brief, Wallace clarifies that he is alleging violations of two such provisions: subsections (d) and (e)(2) of Industrial Code Section 23-1.7. Wallace Opp. at 5-6. Subsection (d) provides:

Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

N.Y. Comp.Codes R. & Regs. tit. 12, § 23-1.7(d). Subsection (e)(2) provides:

Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be- consistent with the work being performed.

Id. § 23-1.7(e)(2). An owner’s duties under Section 241(6) are nondelegable, so Wallace “need not show that [Amtrak] exercised supervision or control over his worksite in order to establish his right of recovery.” Ross, 81 N.Y.2d at 502, 601 N.Y.S.2d 49, 618 N.E.2d 82.

The Court concludes that factual issues preclude Amtrak’s and Weeks’s motions for summary judgment with respect to Wallace’s claim under subsection (d). Weeks initially argues that under O’Sullivan v. IDI Construction Co., 7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 (2006), there can be no violation of Industrial Code Section 23-1.7 if the construction equipment causing the plaintiffs fall was an “integral part of the construction operation,” and that the float stage was an integral part of Wallace’s work site. Weeks (Wallace) Reply at 9. However, O’Sullivan exclusively concerned subsection (e), see 7 N.Y.3d at 806, 822 N.Y.S.2d 745, 855 N.E.2d 1159, and its holding makes sense only if confined to that context. An integral part of a construction project neither resembles the stray objects listed in subsection (e) nor can be easily removed to prevent a worker from tripping. By contrast, if O’Sullivan applied to subsection (d), that provision would become toothless: common sense suggests that a “floor, passageway, walkway, scaffold, [or] platform” will often be an integral part of a construction operation. The New York Court of Appeals cannot have meant to foreclose protection against slipping hazards in such a broad array of circumstances.

Weeks and Amtrak also challenge Wallace’s assertion that his accident was caused by a slipping hazard. See Amtrak (Wallace) Reply at 4; Weeks (Wallace) Reply at 10. Upon reviewing the record, however, the Court concludes that there is sufficient evidence supporting Wallace’s claim to create a material factual issue.

In his Rule 56.1 statement, Wallace asserts that the side of the float stage that he fell off of was slippery and covered in algae. Wallace 56.1 ¶¶ 26-27. The basis for this statement is the deposition testimony of Monach, who was helping Wallace carry the rebar cage along the float stage when Wallace fell. Monach testified that when Wallace fell in the water, “he said he slipped on the float stage. And when we looked at it, there was a small rounded edge to the side he was walking on. It had a little bit of algae on the side and underneath part.” Monach Dep., Hansen Aff. Ex. 8, at 67; see also id. at 78-79 (“I do believe [Wallace] mentioned that he slipped. And we collectively looked where he was standing and we saw a rounded part of the stage. You could see the algae on the side.”). This testimony is corroborated, in a general way, by the deposition of Weeks foreman McMahon, who stated that “moss” on the surface of the float stages was an “ongoing problem,” and that workers had complained to him that the stages were too slippery as a result. McMahon Dep., Hansen Aff. Ex. 7, at 42-48. Based on this evidence, a jury could conclude that the float stage on which Wallace was working was in a “slippery condition.”

A jury could also find that this condition proximately caused Wallace’s fall. See Mack v. Altmans Stage Lighting Co., 98 A.D.2d 468, 470, 470 N.Y.S.2d 664 (2d Dep’t 1984) (to establish proximate cause, a plaintiff must show that the defendant’s act was a “substantial factor” behind his injury). Amtrak claims that Wallace “denied that he slipped ... at the time of the alleged incident.” Amtrak (Wallace) Reply at 4 (citing Amtrak 3/1 56.1 ¶ 15). But that is not accurate. Wallace denied during his deposition that he tripped, and he did not explicitly state that he slipped, but he never denied that he slipped. See Wallace Dep., Joseph 3/1 Decl. Ex. B, at 261-63. Nor is his deposition testimony necessarily inconsistent with a finding that he slipped. Cf. Baklous v. Amtrak, 933 F.Supp.2d 444, 453-54 (E.D.N.Y.2013) (finding factual issue where plaintiff did not testify that he slipped but did not deny that he did so, and other evidence suggested that his worksite was slippery). Wallace stated that he stepped on the side of the float stage, where a piece was missing, “and my leg just folded and that was it, I was off, gone.” Wallace Dep., Joseph 3/1 Decl. Ex. B, at 69. He also said that his leg “rolled under and I fell over the side.” Wallace Dep., Betancourt 3/1 Decl. Ex. A, at 248. Read alongside Monach’s testimony that Wallace said he slipped at the time of the accident, Wallace’s descriptions are simply too vague for the Court to conclude at this stage that a slippery condition was not a substantial factor behind his fall. Summary judgment is therefore denied with respect to Wallace’s claims under subsection (d).

On the other hand, viewing the evidence in the light most favorable to Amtrak and Weeks, the Court cannot conclude as a matter of law that a slippery surface was a substantial factor behind Wallace’s fall. In particular, the fact that Wallace’s own testimony fails to mention that he slipped could be a basis for questioning Monach’s recollection. Therefore, Wallace’s motion for summary judgment on his subsection (d) claim is also denied.

However, the Court grants Amtrak’s and Weeks’s motions for summary judgment with respect to Wallace’s claim under subsection (e)(2), because that subsection is inapplicable where the “plaintiffs fall was not caused by a tripping hazard.” Farrell v. Blue Circle Cement, Inc., 18 A.D.3d 1178, 1179, 787 N.Y.S.2d 773 (4th Dep’t 2004); accord Ryan v. Freidman Decorating Co., No. 01 Civ. 0385(MHD), 2005 WL 1802861, at *20 (S.D.N.Y. July 28, 2005) (“the fact remains that [plaintiff] did not trip, and under those circumstances the regulation does not apply”); Ventura v. Lancet Arch, Inc., 5 A.D.3d 1053, 1054, 773 N.Y.S.2d 683 (4th Dep’t 2004) (“Plaintiff testified at his deposition that he slipped on ... wet mortar as he attempted to move the mixer, and thus he may not contend that he tripped due to a violation of subdivision (e)”); Bale v. Pyron Corp., 256 A.D.2d 1128, 1128, 684 N.Y.S.2d 393 (4th Dep’t 1998) (“plaintiff slipped on ice and did not trip as the result of an obstruction such as dirt or debris within the meaning of subdivision (e)”). Although there is sufficient evidence to raise a triable issue as to whether Wallace slipped, there is no evidence in the record that he tripped. Indeed, at his deposition, he denied that he did so. Wallace Dep., Joseph 3/1 Decl. Ex. B, at 261.

4. Labor Law Section 240(1)

Labor Law Section 240(1) states, in relevant part:

All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

Read literally, this statute would afford broad protection against all manner of workplace risks. However, because liability under Section 240(1) is strict — in that “contractors and owners are liable under the statute whether or not they supervise or control the work” and “the plaintiffs own negligence does not furnish a defense,” Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439 (2004)— courts have been careful to avoid extending the statute’s protections beyond what the legislature intended, see Heidelmark v. State, 1 A.D.3d 748, 766 N.Y.S.2d 742, 743-44 (3d Dep’t 2003). Thus, Section 240(1) protects only against hazards “related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured.” Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 (1991). The New York Court of Appeals has recently clarified that “the single decisive question” in determining liability “is whether plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” Runner v. N.Y. Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 (2009).

The first question that the Court must resolve is whether, as a matter of law, Wallace faced a risk covered by the statute. Amtrak initially argues that Section 240(1) does not apply because the float stage where Wallace fell was not being used in the performance of his work; instead, it was being used only as a “walkway” for Wallace and his co-workers to get from the barge to the piles where they would install the rebar cage. Amtrak. (Wallace) Br. at 11. New York courts have held that Section 240(1) does not apply to areas used as “passageway[s],” and not “as a ladder, scaffold, hoist or other safety device for the benefit of the injured plaintiff in his work.” Donohue v. CJAM Assoc., LLC, 22 A.D.3d 710, 712, 803 N.Y.S.2d 132 (2d Dep’t 2005); accord Creese v. Long Island Lighting Co., 98 A.D.3d 708, 710, 950 N.Y.S.2d 167 (2d Dep’t 2012); Salcedo v. Swiss Ranch Estates, 79 A.D.3d 843, 844, 913 N.Y.S.2d 701 (2d Dep’t 2010). Amtrak’s argument is unpersuasive. First, no reasonable jury could find that Wallace was not using the float stages for his work: when he fell, he was transporting a heavy rebar cage with the assistance of three other men. Where a passageway is used to perform work, Section 240(1) has been held to apply. See Missico v. Tops Mkts., 305 A.D.2d 1052, 1052, 758 N.Y.S.2d 890 (4th Dep’t 2003) (ramp up which plaintiff pushed debris-filled wheelbarrow was a “tool used in the performance of the plaintiffs work” (quoting Ryan v. Morse Diesel, Inc., 98 A.D.2d 615, 616, 469 N.Y.S.2d 354 (1st Dep’t 1983)) (internal quotation marks omitted)). Second, where a passageway provides the “sole means of access” for a plaintiffs worksite, Section 240(1) applies as well. Arrasti v. HRH Constr. LLC, 60 A.D.3d 582, 583, 876 N.Y.S.2d 373 (1st Dep’t 2009); Conklin v. Triborough Bridge & Tunnel Auth., 49 A.D.3d 320, 321, 855 N.Y.S.2d 54 (1st Dep’t 2008). Even assuming that the float stages were not used in the performance of Wallace’s work, there is no evidence that Wallace had any other way to access the bridge piles, see Weeks 3/1 56.1 ¶ 6, so the “passageway” principle that Amtrak relies on is inapplicable as a matter of law.

Dooley v. Peerless Importers, Inc., 42 A.D.3d 199, 837 N.Y.S.2d 720, a closely on-point New York case, further establishes that Wallace was protected by the statute because he faced a risk arising from physically significant elevation differential. In Dooley, the plaintiff was working on a floating platform while repairing the bulkhead of a dock. When the platform shifted beneath his feet, he grabbed the bulkhead and hung above the water while the platform floated away. After trying to pull himself onto the dock, the plaintiff fell in the water, hit his arm on the edge of the platform, and was injured. Id. at 722-23. He sued under Section 240(1), and the trial court granted summary judgment to the defendants. The Second Department reversed, holding that Dooley’s case “fits comfortably within the scope of’ Section 240(1). Id. at 724. Critically, the court analogized the floating platform to a scaffold: while the latter prevents a worker from falling through the air to the ground, the former was intended to keep the plaintiff from falling through the water to the “bottom of the creek.” Id. As a result, a defect that “clearly” would be actionable in the context of a scaffold — the lack of “a harness or a guardrail” to prevent falls— was also actionable where a floating platform was concerned. Id. Because the plaintiffs platform had no guardrails or tie lines to prevent his accident, the court granted summary judgment in his favor. Id. Dooley thus establishes as a matter of law that Section 240(1) entitles workers to adequate protection against risks arising from the elevation differential between the water’s surface and its bottom. See also Pipia v. Turner Constr. Co., 114 A.D.3d 424, 980 N.Y.S.2d 392, 396 (1st Dep’t 2014) (relying on Dooley for the proposition that falling from a float stage into the water is an “elevation-related risk”). That holding is squarely applicable here.

Amtrak’s and Weeks’s herculean efforts to distinguish Dooley fail. First, they argue that Dooley's, finding of an elevation differential turned on the fact that after the platform floated from beneath the plaintiffs feet, he hung from the bulkhead, about one to two and a half feet above the water’s surface. Weeks (Wallace) Opp. at 19; Amtrak (Wallace) Opp. at 8-9. But that argument finds no support in the Second Department’s opinion, which held that the relevant elevation differential lay between the floating platform, which was “at or near the surface of a creek,” and “the bottom of the creek.” Dooley, 837 N.Y.S.2d at 724. The court simply placed no emphasis on the height at which the plaintiff hung from the bulkhead. For similar reasons, the assertion that the relevant height differential is between the top of the float stage and the surface of the water is incorrect. Weeks (Wallace) Opp. at 9; Amtrak (Wallace) Opp. at 7.

Amtrak and Weeks also point out that the plaintiff in Dooley fell about eight feet, while in this case, based on the tides at the time of Wallace’s accident, the float stage was at most four and a half feet above the bottom of the water. Weeks (Wallace) Opp. at 19; see also Amtrak (Wallace) Opp. at 7 (“plaintiff averred that he was unable to identify how far he fell”). However, the distance that Wallace fell is irrelevant. It is true that in assessing whether a plaintiff is subject to an elevation-related risk, the distance from the level of his work to a lower level may bear on whether the kind of protective device listed in the statute is required. See Rocovich, 78 N.Y.2d at 514-15, 577 N.Y.S.2d 219, 583 N.E.2d 932 (plaintiffs proximity to eighteen-inch trough did not “calif ] for” a protective device). But the underlying question is whether such a device is, in fact, required. See id. at 514, 577 N.Y.S.2d 219, 583 N.E.2d 932. If it is, then it must be “so constructed, placed and operated as to give proper protection” against the risks it is designed to prevent. The numerous cases that Weeks and Amtrak cite denied liability under Section 240(1) because no protective device was called for in the first place, so there could be no actionable absence or failure of such a device. By contrast, the risk that workers would fall in the water at Wallace’s worksite without a float stage is undisputed — they could not have done their jobs without something to stand on — so a platform was clearly called for. See Dooley, 42 A.D.3d at 204, 837 N.Y.S.2d 720 (“An elevated platform ... was necessary to enable the plaintiff to do his job precisely because gravity otherwise would have been a hindrance to his work, much as it would be, for example, in a situation where a worker has to perform work enumerated in Labor Law § 240(1) on a building with the help of a scaffold.”).

Moreover, New York courts often impose liability under Section 240(1) when a plaintiff working on an elevated platform is injured as a result of falling from that platform, even though he does not fall to the ground. In these cases, the distance that the plaintiff falls is necessarily limited, as he is able to arrest his fall. Nonetheless, Section 240(1) has been held to apply as a matter of law. See, e.g., Adams v. North-Star Constr. Co., 249 A.D.2d 1001, 1002, 672 N.Y.S.2d 166 (4th Dep’t 1998) (reversing denial of summary judgment to plaintiff who fell against wall and landed on scaffold when right foot broke through floor of scaffold); Noble v. AMCC Corp., 277 A.D.2d 20, 20, 714 N.Y.S.2d 495 (1st Dep’t 2000) (upholding summary judgment for plaintiff who fell off boiler and suffered injuries despite being able to “hoist himself back onto the boiler”); Franklin v. Dormitory Auth., 291 A.D.2d 854, 854, 736 NY.S.2d 816 (4th Dep’t 2002) (upholding summary judgment for plaintiff who stepped on faulty scaffold plank and fell backward but did not fall to ground because leg was entangled in scaffold); Siago v. Garbade Constr. Co., 262 A.D.2d 945, 945, 701 N.Y.S.2d 538 (4th Dep’t 1999) (upholding summary judgment for plaintiff where defective plank in platform on top of scaffold caused plaintiff to fall eighteen inches to top of scaffold); Becerra v. City of New York, 261 A.D.2d 188, 189, 690 N.Y.S.2d 52 (1st Dep’t 1999) (reversing denial of summary judgment to plaintiff who was trapped at his shoulders after falling through elevated plywood board); see also Bonocore v. Vornado Realty Trust, No. 05 Civ. 6422(LTS)(GWG), 2009 WL 691933, at *10 (S.D.N.Y. Mar. 13, 2009) (collecting cases). Although the statute does not protect workers who merely slip and fall on the surface of an elevated platform, see, e.g., Milligan v. Allied Builders, Inc., 34 A.D.3d 1268, 1268, 824 N.Y.S.2d 524 (4th Dep’t 2006), that principle does not defeat liability in this case, because it is undisputed that Wallace ended up off the float stage and in the water.

Nor is the fact that Wallace was wearing a life vest a meaningful basis for distinguishing Dooley, in which the plaintiff was not wearing one. Weeks suggests that because of his flotation device, Wallace never faced a risk of hitting the river bottom. Weeks (Wallace) Reply at 15. However, the flotation device does not affect whether the float stage was “called for” because of the differential between the bottom of the water and the level of Wallace’s work — it clearly was. As a result, the float stage was required to offer adequate protection from all falls, not just those in which a worker risked hitting bottom; as noted above, injuries suffered during falls from an elevated platform are actionable whether or not the plaintiff hits the ground. Indeed, even without a flotation device, the Dooley plaintiff did not come into contact with the riverbed. See 837 N.Y.S.2d at 723. In short, the Court concludes as a matter of law that Wallace faced a risk covered by Section 240(1).

Nor is there sufficient evidence to conclude that the float stage on which Wallace was working offered him adequate protection against that risk. Amtrak and Weeks emphasize that in Dooley, the court’s finding of liability was based on the absence of guardrails or tie lines, and Wallace denied that such protections could or should have been installed on the Weeks float stages. Amtrak (Wallace) Br. at 12; Amtrak 3/1 56.1 ¶ 22; Weeks 3/1 56.1 ¶25. Wallace also testified that he had all the safety gear necessary to do his job. Weeks 3/1 56.1 ¶ 24. True, Wallace admitted that extra planking on the side of the float stage would not have prevented his fall, nor would a lifeline, or a harness, or a safety net. Wallace Dep., Joseph 3/1 Decl. Ex. B, at 259-63. But he never deviated from his testimony that the float stages were unsafe because they had pieces missing, and “were literally falling apart under your feet, a lot of them.” Id. at 60. This claim is corroborated by Monach, who testified at his deposition that Weeks employees often had to repair parts of the float stages “where the wood was not quite flush and it was awkward to walk on.” Monach Dep., Hansen Aff. Ex. 8, at 43. That testimony is undisputed. See Amtrak 3/22 56.1 Resp. ¶ 30; Weeks 3/22 56.1 Resp. ¶ 30. Moreover, the conditions at the edge of the float stage were particularly relevant to Wallace’s risk of falling, because carrying the rebar cage along the float stage involved treading very close to the edge. Wallace 56.1 ¶ 13. Monach’s testimony suggests that if the float stages had been wider, they would have provided better protection to the workers carrying rebar cages. See. Monach Dep., Hansen Aff. Ex. 8, at 112-13. There is also evidence that slippery algae was a problem on the float stages, including where Wallace fell.

Weeks and Amtrak dispute that the float stage was defective, see Amtrak 3/22 56.1 Resp. ¶¶ 28, 31; Weeks 3/22 56.1 Resp. ¶ 28, because Iapicco, Weeks’s field engineer, testified that the missing piece on the edge of the float stage was “nothing abnormal” and part of general wear and tear. Iapicco Dep., Joseph 3/22 Opp. Decl. Ex. C, at 32. But whether the float stage’s condition was normal or abnormal is irrelevant to the legal question of whether the float stage — in whatever condition it was in — adequately protected Wallace against the risk of falling. Amtrak and Weeks point to no evidence suggesting that the float stage was in a condition to provide such protection, given that pieces were missing from its edges. Cf. Siago, 262 A.D.2d at 945, 701 N.Y.S.2d 538 (affirming summary judgment for plaintiff whose “accident was caused by a defective wooden plank that caused plaintiff to lose his balance and fall”); Ray v. Niagara Mohawk Power Corp., 256 A.D.2d 1070, 1071, 682 N.Y.S.2d 758 (4th Dep’t 1998) (reversing denial of summary judgment for plaintiff who “slipped from [a] utility pole” when “a portion of the utility pole on which his left foot was placed came loose”).

Indeed, there can be no dispute that the float stage gave Wallace inadequate pro-teetion against falling, given that he fell. Cf. Gordon v. E. Ry. Supply, 82 N.Y.2d 555, 561, 606 N.Y.S.2d 127, 626 N.E.2d 912 (1993) (“The ladder did not prevent plaintiff from falling; thus the ‘core’ objective of section 240(1) was not met.”). Neither Weeks nor Amtrak ever argues that Wallace fell in the water for a reason other than “a misstep into a ‘carved out’ or ‘missing’ piece on the float stage.” Amtrak 3/22 56.1 Resp. ¶ 22; see also id. ¶¶ 23, 26; Weeks 3/22 56.1 Resp. ¶ 22. Consistent with that account of Wallace’s accident, Fitzpatrick, another Weeks dock worker, testified that the float stage was damaged where Wallace fell. Wallace 56.1 ¶ 24; Fitzpatrick Dep., Hansen Aff. Ex. 6, at 46-49. And a post-accident report prepared by Iapicco stated that the cause of Wallace’s accident was a “small area of float stage missing on [the] outermost edge.” Iapicco Dep., Hansen Aff. Ex. 3, at 50. While there is a dispute over whether Iapicco had sufficient personal knowledge to say which float stage Wallace actually fell from, see Amtrak 3/22 56.1 Resp. ¶ 25, Iapicco’s testimony at least shows that the missing piece of the float stage he inspected could have caused a fall, and therefore that the float stages did not provide adequate protection.

Furthermore, because a careful review of the record has revealed nothing to contradict Wallace’s testimony that he fell because he stepped on a “carved out” or “missing” piece of the float stage, or that his injuries resulted from his fall, the Court concludes that there is no genuine issue of fact that the defect in the float stage proximately caused Wallace’s injuries. See Hendrickson v. Marriott Int’l, Inc., No. 00 Civ. 5280(LLS), 2001 WL 789296, at *2 (S.D.N.Y. July 12, 2001) (summary judgment for plaintiff may be granted “even when the plaintiff is the sole witness to the accident” if his testimony is uncontradicted and his credibility is not undermined). Wallace is therefore entitled to summary judgment on his Section 240(1) claim.

B. Amtrak’s Claims Against Weeks

Amtrak’s third-party complaint against Weeks contains claims for breach of contract, contractual indemnity, implied indemnity, and failure to procure insurance. Third-Party Compl. at 7-12. Amtrak move