### Szczesiak v Ery Tenant LLC 2024 NY Slip Op 33090(U) September 4, 2024 Supreme Court, New York County Docket Number: Index No. 153101/2020 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 123 INDEX NO. 153101/2020 RECEIVED NYSCEF: 09/04/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY PRESENT: HON. PAUL A. GOETZ Justice

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MIKOLAJ SZCZESIAK, Plaintiff,

- V - ERY TENANT LLC,ERY NORTH TOWER RHC TENANT LLC,HUDSON YARDS CONSTRUCTION LLC,TISHMAN CONSTRUCTION CORPORATION, CONSIGLI & ASSOCIATES, LLC F/K/A G. NICKEL & ASSOCIATES, LLC,T.G. NICKEL & ASSOCIATES, LLC,ECLIPSE DEVELOPMENT INC.,EQUINOX HOLDINGS, INC. Defendants.

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INDEX NO. 153101/2020 MOTION DATE 06/26/2023 MOTION SEQ. NO. 003

DECISION + ORDER ON MOTION 47

The following e-filed documents, listed by NYSCEF document number (Motion 003) 90, 91, 92, 93, 94, 95, 96, 97, 98, 99,100,101,102,103,104,105,106,107,108,109,111,112,113,114,115,116,117, 118, 120, 121 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER In this personal injury Labor Law action, plaintiffmoves pursuant to CPLR § 3212 for summaryjudgment on his LaborLaw§ 240(1) claim as against defendants s ERY NORTH TOWERRHC TENANT LLC ("ERY"), EQUINOXHOLDINGS, INC. ("Equinox"), ECLIPSE DEVELOPMENT INC. ("Eclipse"), CONSIGLI & ASSOCIATES, LLC F/K/A T.G. NICKEL & ASSOCIATES, LLC I/S/H/A CONSIGLI & ASSOCIATES, LLC F/K/A G. NICKEL & ASSOCIATES, LLC AND T.G. NICKEL & ASSOCIATES, LLC ("Consigli/Nickel"). 

### BACKGROUND Defendant, ERY, owned the building located at 35 Hudson Yards/560 West 33rd Street, New York, New York (NYSCEF DocNo 94 

### ,i 10). DefendantEquinox was the lessee who, through its agent/"subentity" defendant Eclipse, contracted defendant, Consigli/Nickel for the construction project (NYSCEF Doc No 99 at 12:9
- 12:24, 16:7
- 16:20, 18:3
- 18:7; see also

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NYSCEF Doc No 103 at 54:2
- 54:6). Consigli/Nickel was the general contractor for the project and they hired subcontractornon-party Crana Electric, who employedplaintiffas an electrician (NYSCEF Doc No 99 at 16:12- 16:14; NYSCEF Doc 103 at 20:8-20:16; NYSCEF Doc No 97 at 67:22
- 68:8). On September 11, 2019 plaintiffwas tasked with troubleshooting some nonfunctioning lights on the 11th floor ofthe building (NYSCEF Doc No 97 at 209: 18
- 210:6). Plaintiff testified that in order to perform this work he had to access a panel within a ceiling hatch which
was about 11 feet offthe ground. Plaintifftestified that he had to use a 10 floor A-frame ladder which he claims was the only available equipment suited for this task (id. at 122:2
- 123: 11, 242:9
- 242: 17, 330: 12
- 330:25). Plaintifftestified that while he was three steps from the top of the ladder, and his torso was through the access panel, he received an electric shock to his hand, then felt the ladderwobble and shift, causing him to fall (id. at 273:23
- 275: 11, 302:6
- 303: 13). DISCUSSION SummaryJudgment Standard "Itis well settled that 'the proponent ofa summaryjudgmentmotion mustmake a prima facie showing ofentitlement tojudgment as a matter oflaw, tendering sufficient evidence to demonstrate the absence ofany material issues offact."' (Pullman v Silverman, 28 NY3d 1060, 1062 [2016], quotingAlvarezv ProspectHosp., 68 NY2d 320,324 [1986]). "Failure to make such showing requires denial ofthe motion, regardless ofthe sufficiency ofthe opposing papers." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [internal citations omitted]). "Once such a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proofin admissible form sufficient to raise material

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### issues offact which require a trial ofthe action." (Cabrera v Rodriguez, 

### 72 AD3d 553, 553-554 [1st Dept 2010], citingAlvarez, 

### 68 NY2d at 342). "The court's function on a motion for summaryjudgment is merely to determine if any triable issues exist, not to determine the merits of any such issues or to assess credibility." (Meridian Mgmt. Corp. v Cristi Cleaning Serv. Corp., 

### 70 AD3d 508, 510-511 [1st Dept 2010] [internal citations omitted]). The evidence presented in a summary judgment motion must be examined "in the light most favorable to the non-moving party" (Schmidt v One New YorkPlaza Co., 

### 153 AD3d427,428 [2017], quoting Ortizv VarsityHoldings, LLC, 

### 18 NY3d 335,339 [2011]) and bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba Extruders v Ceppos, 

### 46 NY2d 223,231 [1978]). If

### there is any doubt as to the existence ofa triable fact, the motion for summaryjudgmentmust be denied (id.). LaborLaw § 240(1) ' 

### Plaintiffargues that he is entitled to summaryjudgment on his Labor Law § 240(1) claim because he has submittedundisputedproofthat the ladderhe was standing on suddenly wobbled and shifted which causedhis injuries. Defendants argue that there is a triable issue offact as to whether the ladder was defective and thus a violation ofLabor Law§ 240(1). They also argue that there is a triable issue offact as to whether the ladder was the proximate cause ofplaintiffs injury, as they argue that the electric shockplaintiffreceived was the cause ofhis fall and thus an alleged violation ofLabor Law§ 240 could not be the proximate cause ofhis injury. Labor Law § 240(1) states: All contractors and owners and their agents, except owners ofone and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning orpointing ofabuilding 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,
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### 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. "[T]he LaborLaw imposes absolute liability on owners and general contractors for injuries that are proximately causedby the failure to provide appropriate safety devices to workers subject to gravity-related risks" (Ladd v Thor 680MadisonAveLLC, 

### 212 AD3d 107, 111 [1st Dept 2022]). "In order to prevail on a Labor Law § 240(1) cause ofaction, aplaintiff must establish that the statute was violated and that the violation was a proximate cause ofhis or her injuries" (Rudnik vBrogorRealty Corp., 

### 45 AD3d 828, 829 [2d Dept 2007]). "[A]n accident alone does not establish a Labor Law§ 240(1) violation or causation" (Blake vNeighborhood Haus. Services of New York City, Inc., 

### I NY3d 280,289 [2003]). "[T]he single decisive question is whether plaintiffs injuries were the direct consequence ofa failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York StockExch., Inc., 

### 13 NY3d 599, 603 [2009]). "Plaintiff[can] establish[] his prima facie entitlement to summaryjudgment on the issue ofliability on his Labor Law§ 240(1) claim

... testimony that the ladder on which he was standing at the time ofhis accident moved from underhim for no apparentreason" (Pinzon vRoyal CharterProperties, Inc., 

### 211 AD3d 442,443 [1st Dept 2022]). Here, plaintiffsubmits deposition testimony that he was performing work on the 10 foot ladder, that the ladder suddenly shifted, and that because ofthat sudden shifting he fell from the ladder. While "[i]tis well settled that a statutory violation is established ifa scaffold or ladder shifts, slips, or collapses, thereby causing injury to a worker" (Castillo v TRM Contr. 

### 626, LLC, 211 AD3d 430 [1st Dept 2022], here there is a triable issue offact as to whetherthe electrical shockreceived byplaintiffcaused him to fall from the ladder. While, plaintifftestified that he

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turned offthe electricity before starting his work, defendants submitthe testimony ofplaintiff's supervisor Edgar Chavez, who avers that whenhe arrived at the site ofthe accidenthe noticed that the lighting and electricity inthe area was on (NYSCEF Doc 114 at , 6). He further states thathe then testedthe wires plaintiffwas working onusing a voltmeter and confirmedthat they
were live (id. at , 9). Chavez avers that Crana Electric employees were instructedto always turn offthe electricity andto neverwork onlive wires (id. at , 8). Therefore, defendants have raised a triable issue offact as to whetherplaintiffwas the sole proximate cause ofhis injurybynot turning the electricity offpriorto performing his requiredtasks. Accordingly, plaintiff'smotion for summaryjudgment onhis Labor Law § 240 (1) claim will be denied. Accordingly it is, ORDERED thatplaintiff's motion for summaryjudgment onhis Labor Law§ 240 claim is denied.

9/4/2024

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

153101/2020 SZCZESIAK, MIKOLAJ vs. ERV TENANT LLC Motion No. 003
5 of 5 PAUL A. GOETZ, J.S.C. 

# 8 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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