Barreto v Board of Mgrs. of 545 W. 110th St. Condominium 2024 NY Slip Op 30489(U) February 14, 2024 Supreme Court, New York County Docket Number: Index No. 160421/2017 Judge: Louis L. Nock 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.160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 1 of 13 The following e

- filed documents, l isted by NYSCEF document number s (Motion 003) 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 113, 143, 144, 145, 146, 149, 150, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 174, 175, 179, 180, 183, 184, a n d 190 were read on this motion for SUMMARY JUDGMENT

. The following e

- filed documents, l isted by NYSCEF document number s (Motion 004) 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 147, 151, 168, 169, 170, 176, 181, 185, a n d 186 were read on this motion for S U M M A R Y JUDGMENT

. The following e

- filed documents, l isted by NYSCEF document number s (Motion 005) 136, 137, 138, 139, 140, 141, 142, 148, 152, 164, 165, 166, 167, 171, 172, 173, 177, 178, 182, 187, a n d 188 were read on this motion for S U M M A R Y JUDGMENT

. L O U I S L

. N O C K , J

. Upon the foregoing documents, plaintiff’s motion for summary judgment on its claims under Labor Law §§ 240(1) and 241(6) (Mot. Seq. No. 003) ; t h e m o t i o n b y defendants Board of Managers of 545 West 110 th Street Condominium (the “Board”), 545 West 110 th Street Condominium (the “Owner”) , and Residential Management Group, LLC (the “Manager,” and collectively, the “Board defendants”) for summary judgmen t dismissing the complaint and all

cross - claims (Mot. Seq. No. 004) ; and the motion of defendant Chelsea Cleaning Services, Inc.



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY
PRESENT: HON. LOUIS L. NOCK PART 38M Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 160421/2017

MOTION DATE 08/19/2022,

10/14/2022, 10/14/2022
MOTION SEQ. NO. 003 004 005

DECISION + ORDER ON MOTION EDUARDO BARRETO, Plaintiff,

- v - THE BOARD OF MANAGERS OF 545 WEST 110TH STREET CONDOMINIUM, 545 WEST 110TH STREET CONDOMINIUM, RESIDENTIAL MANAGEMENT GROUP, LLC, CHELSEA CLEANING SERVICES, INC., a n d CHELSEA WINDOW CLEANING, INC. , Defendant s

.

------------------------------------------------------------------- -- ------------ X INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

1 of 13 

### [* 1]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 2 of 13 d/b/a Chelsea Window Cleaning , incorrectly sued hereunder as Chelsea Window Cleaning, Inc. (“Chelsea”) , for summary judgment dismissing the complaint and all cross

- claims (Mot. Seq. No. 005), are consolidated for disposition in accordance with the following memorandum

. Background Plaintiff is a window washer, employed by nonparty Mark Prince LLC (Barreto 2018
E BT tr, NYSCEF Doc. No. 102 at 71). On the day of the accident, plaintiff was dispatched to the building located at 545 West 110th Street, New York, New York , to wash the exterior windows ( id. )

. Plaintiff was to ra ppel down the side of the building , for whic h he was given a rope main line and a boatswain’s chair (Barreto 2019 EBT tr, NYSCE F Doc. No. 103 at 21, 27 , 69

- 70 )

. Additionally, plaintiff had a safety line, which was anchored to the roof to prevent him from falling in the event of a break or other prob lem with the main l ine ( Barreto 2018 EBT tr, NYSCEF Doc. No. 102 at 57; Barreto 2019 EBT tr, NYSCEF Doc. No. 103 at 21). The safety line was attached to plaintiff’s harness with a lanyard , and a rope grab between the safety line and the lan 1 yard was meant to lock in place and arrest any potential fall ( Barreto 2018 EBT tr,
NYSCEF Doc. No. 102 at 56

- 5 § 7 ; Barreto 2019 EBT tr, NYSCEF Doc. No. 103 at 21)

. The ropes were tied off at iron anchors on the roof of the building (Barreto 2018 EBT tr, NY SCEF Doc No. 102 at 66, 75, 101). The balconies of the buildings were surrounded by smooth railings, under which were stainless steel mesh panel s ( balcony photographs, NYSCEF Doc. No. 127). While cleaning the upper windows of the building, plaintiff’s mai n rope parted and he fell approximately 12

- 15 feet to a terrace below (Barreto 2018 EBT tr, NYSCEF Doc. No. 102 at 92 ; Barreto 2019 EBT tr, NYSCEF Doc. No. 103 at 42 )

. Plaintiff testified that the lanyard did not grab the safety line and arrest his fall , e ven though the rope grab was positioned above his head (Barreto 2018 EBT tr, NYSCEF Doc. No. 102 at 144; Barreto 2019 EBT tr, NYSCEF Doc. INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

2 of 13 

### [* 2]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 3 of 13 No. 103 at 57

- 58 ). While he testified that he had not encountered anything sharp while cleaning, he confirmed that the ropes had been touching metal, which he observed from his boatswain’s chair (Barreto 2018 EBT tr, NYSCEF Doc. No. 102 at 135, 151

- 153, 156). He also testified that he had with him a rope guard , used to protect the ropes from rubbing on metal surfaces, but had not been using it when he fell (Barreto 2019 EBT tr, NYSCEF Doc. No. 103 at 45

- 48). Johnny Guevara, the building’s resident manager, testified on behalf of Owner. After plaintiff fell, G uevara went to the eleventh floor of the building with plaintiff’s employer Mark
Pr ince

. Upon arriving at the balcony on the eleventh floor, he saw two ropes, one of which had been severed ( Guevara EBT tr, NYSCE F Doc. No. 104 at 102; photo marked Def.’s exh ibit J, NYSCEF Doc. No. 109). Prince testified that he inspected plaintiff’s rope at the point where it
was cut on the eleventh floor , and noticed fragments of cut rope on the stainless steel panel , from which he deduced that the rope was cut from rubbing back and forth on the steel panel (Prince EBT tr, NYSCEF Doc. No. 123 at 88

- 91, 94

- 97). In addition, Prince stated that he was told by plaintiff’s coworker that plaintiff’s rope grab was in fact positioned by his hip, and , therefore ,

c ould not arrest his fal l ( id. at 101

- 102). Further, he observed in a video recording taken of the scene that the size of the safety line did not match the rope grab, meaning that the rope grab might not have functioned correctly even if it had been above plaintiff’s head ( id. at 152

- 154). Standard of Review Summary judgment is appropriate where there are no disputed material facts ( Andre v Pomeroy , 35 NY2d 361, 364 [1974]). The moving party must tender sufficient evidentiary proof to warrant judgment as a matter of law ( Zuckerman v City of N

. Y

. , 49 NY2d 557, 562 [1980]). “Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers” ( Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

3 of 13 

### [* 3]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 4 of 13 [internal citations om itted]). Once a movant has met this burden, “the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial” ( Kershaw v Hosp ital for Special Surgery , 114 AD3d 75, 82 [1st Dept 2013]). “[I]t is insufficient to merely set forth averments of factual or legal conclusions” ( Genger v Genger , 123 AD3d 445, 447 [1st Dept 2014 ] [internal citation omitted] ). Moreover , the reviewing court should accept the opposing party's evidence as true ( Hotopp Assoc s . v Victoria's Secret Stores , 256 AD2d 285, 286

- 287 [1st Dept 1998]), and give the opposing party the benefit of all reasonable inferences ( Negri v Stop & Shop , 65 NY2d 625, 626 [1985]). Therefore, if there is any doubt as to the existence of a triab le fact, the motion for summary judgment must be denied ( Rotuba Extruders v Ceppos , 46 NY2d 223, 231 [1978]). Discussion
Common Law Negligence and Labor Law § 200 Labor Law § 200 “is a codification of the common

- law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work” ( Singh v Black Diamonds LLC , 24 AD3d 138, 139 [ 1st Dept 2005], citing Comes v New York State Elec. & Gas Corp. , 82 NY2d 876, 877 [1993]). Labor Law § 200 (1) states, in per tinent part, as follows:

All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such place s. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. There are two distinct standards applicable to section 200 cases, dependin g on the kind of situation involved: (1) when the accident is the result of the means and methods used by a contractor to do its work, and (2) when the accident is the result of a dangerous condition that is INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

4 of 13 

### [* 4]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 5 of 13 inherent in the premises ( see McLeod v Corporati on of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 797

- 798 [2d Dept 2007]; see also Griffin v N e w Y o r k City Tr. Auth. , 16 AD3d 202, 202 [ 1st Dept 2005]). “Wh ere a plaintiff's claims implicate the means and methods of the work , an owner or a contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise

or cont rol the performance of the work” ( LaRosa v Internap Network Servs. Corp ., 83 AD3d 905 , 909 [ 2d Dept 2011] ). Specifically, “l iability ca n only be imposed against a party who exercises actual supervision of the injury

- producing work” ( Naughton v City of New York , 94 AD3d 1, 11 [ 1st Dept 2012] ). However, where an injury stems from a dangerous condition inherent in the premises, an owner or c ontractor may be liable in common

- law negligence and under Labor Law § 200 when the owner or contractor “‘created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice’” ( Mendoza v Highpoint Assoc., IX, LLC , 83 AD3d 1, 9 [1st Dept 2011], quoting Chowdhury v Rodriguez , 57 AD3d 121, 128 [2d Dept 2008] )

. Here, neither theory of liability avails plaintiff. It is undisputed in the record that none of the defendants actually supervised plaintiff’s work. Indeed, plaintiff raises only a dangerous condition theory of liability, specifically , with regard to the steel pa nel that severed the rope

. The court is skeptical that the steel panel constitutes an inherently dangerous condition on the premises. Assuming arguendo that it does, however, defendants adequately establish that they had no actual or constructive notice of the alleged defect, and plaintiff does not raise a material issue of fact requiring trial. As to actual notice , ne one discovered the severed rope, or that tha t the rope had been severed by repeated contact with the panel, until after plaintiff fell, whic h is undisputed

. As to constructive notice, “[t] o constitute constructive notice, a defect must be INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

5 of 13 

### [* 5]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 6 of 13 visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it ” ( Gor don v Am erican Museum of
Nat ural History , 67 NY2d 836, 837 [1986] ). Guevara, the resident manager, testified that the panel was in the condition it was supposed to be in at the time of the accident (Guevara EBT tr,
NYSCEF Doc. No. 104 at 107). Moreover, th ere had never been any prior complaints regarding the panel by any of the window washers ( id. at 122

- 23). Finally, it is largel y undisputed that the rope severed due to the repeated contact of the rope with the panel and the commensurate friction caused by the two objects rubbing together as plaintiff rappelled down the building

. “ W here the alleged defect or dangerous condition ari ses from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200 ” ( Comes v New York State Elec. and Gas Corp. , 82 NY2d 876, 877 [1993] ). Ba sed upon the foregoing, so much of defendants’ motions as seek summary judgment dismissing this claim are granted. Labor Law § 202 Labor Law § 202 provides, in relevant part : The owner, lessee, agent and manager of every public building and every contrac tor involved shall provide such safe means for the cleaning of the windows and of exterior surfaces of such building as may be required and approved by the [industrial board of appeals ] . . . [and] shall not require, permit, suffer or allow any window or e xterior surface of such building to be cleaned unless such means are provided to enable such work to be done in a safe manner for the prevention of accidents and for the protection of the public and of persons engaged in such work in conformity with the re quirements of this chapter and the rules of the board of standards and appeals. A person engaged at cleaning windows or exterior surfaces of a public building shall use the safety devices provided for his protection. Every employer and contractor involved shall comply with this section and the rules of the board and shall require his employee, while engaged in cleaning any window or exterior surface of a public building, to use the equipment and safety devices required by this chapter and rules of the [indu strial board of appeals ]

. INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

6 of 13 

### [* 6]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 7 of 13 By its terms, Labor Law § 202 “ protects the cleaning of only windows and exterior surfaces ” ( Bataraga v Burdick , 261 AD2d 106, 107 [1st Dept 1999] ). “ Labor Law § 202 requires the application of comparative negligence principles because statutory liability is predicated on a violation of the Industrial Cod e” ( Brown v Christopher St. Owners Corp. , 2 AD3d 172, 173 [1st Dept 2003] ). The rules promulgated by the Industrial Board of Appeals are set forth at 12
NYCRR 21 ” ( Pad

ovano v Teddy's Realty Assoc., Ltd. , 56 AD3d 444, 446 [2d Dept 2008] )

. Here, 12 NYCRR 21 .3 provides that “[n] o owner shall suffer or permit a cleaner to clean a window of his building unless it has the structural features and the anchors or other fixed de vices required by this Part in respect to the authorized means and methods of cleaning used by the cleaner ” ( 12 NYCRR 21.3 [b][1])

. As set forth above, the anchors were present and utilized by plaintiff (Barreto 2018 EBT tr, NYSCEF Doc No. 102 at 66, 75, 10 1). The statute does not impose further requirements on Owner ( Berrios v 1115 Fifth Ave. Corp. , 160 AD2d 655, 656 [1st Dept 1990] [“ The Legislature did not impose a coextensive responsibility on owners to require and ensure the use of safety devices. If it had intended to make owners and their agents responsible for a window cleaner's failure to use the safety devices provided, it would have so provided ”]). P laintiff makes no argument in opposition to defendants’ motions for summary judgment dismissing this claim. Accordingly, so much of defendants’ motions for summary judgment seeking dismissal of this claim are granted. Labor Law § 240(1) 1 Labor Law § 240 (1), also known as the Scaffold Law, provides, as relevant:

1 Plaintiff also alleges a cause of action pursuant to Labor Law § 240(2), but makes no argument in opposition to defendants’ motions for summary judgment dismissing said claim

. The statute also has no relevance to this action ( see Gaffney v BFP 300 Madison II, LLC , 18 AD3d 403, 404 [1st Dept 2005] [“ Summary judgment was also appropriate under § 240(2), as the float scaffold was elevated more than 20 feet and lacked guardrails ”]). Accordingly, so much of defendants’ motions seeking dismissal of the claim are granted. INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

7 of 13 

### [* 7]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 8 of 13 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 p erson so employed. “Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold . . . or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” ( Ross v Curtis

Palmer Hydro

- Elec. Co ., 81 NY2d 494, 501 [1993]). Importantly, Labor Law § 240 (1) “is designed to protect workers from gravity

- related hazards . . . and must be liberally construed to accomplish the purpose for which it was framed” ( Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2d Dept 2006] [internal citations omitted])

. Not every worker who falls or is struck by a falling object at a construction site is afforded the protections of Labor Law § 240(1), and “a distinction must be made between those accidents caused by the failure to provide a safety device . . . and those caused by general hazards specific to a workplace” ( Makarius v Port Auth. of N.Y. & N. J. , 76 AD3d 805, 807 [1st Dept 2010]). Instead, liability “is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” ( Narducci v Manhasset Bay Assoc. , 96 NY2d 259, 267 [2001]).
Th erefore, to prevail on a section 240 (1) claim, a plaintiff must show that the statute was violated, and that this violation was a proximate cause of the plaintiff’s injuries ( Cahill v Triborough Bridge & Tunnel Auth. , 4 NY3d 35, 39 [2004]). As an initial matter , Chelsea argues that this claim should be dismissed against it because it is not a proper Labor Law defendant

. “ When the work giving rise to [the duty to conform to the requirements of section 240 (1)] has been delegated to a third party, that third party then INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

8 of 13 

### [* 8]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 9 of 13 obtains the concomitant authority to supervise and control that work and becomes a statutory ‘agent’ of the owner or general contractor” ( Walls v Turner Const. Co. , 4 NY3d 861, 864 [2005] ). “ Thus, unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law ” ( id. ). Here, Chelsea had no supervis ory authority over plaintiff’s work

. Chelsea was not the

“ coordinator and overall supervisor for all the work being performed on the job site ” ( id. ) . No written contract providing that Chelsea retained supervisory authority over plaintiff’s employer ’s work exists ( cf. Rooney v D.P. Consulting Corp. , 204 AD3d 428, 429 [1st Dept 2022] [“ Although no documentary evidence of Edge's subcontract with DP was submitted, there is testimonial evidence that the subcontract made Edge responsible for performing all aspects of the sidewalk excavation, including safety procedures ”]). There is no meaningful dispute in the record as to the fact that Chelsea had no employees at the building and did not direct plaintiff’s work or provide materials and safety devices for it. Plaintiff and the Board defendants argue in opposition that Chelse a may not delegate its potential liability away , but the cases they cite are distinguishable. In Nascimento v Bridgehampton Const. Corp. ( 86 AD3d 189, 194 [1st Dept 2011] ), the contractor specifically retained the authority to direct the work in its contra ct with the subcontractor. A similar provision existed in White v 31

- 01 Steinway, LLC ( 165 AD3d 449, 450

- 51 [1st Dept 2018] ). The decision in Timmons v Lynx Contr. Corp. (49 AD3d 382 [1st Dept 2008]) is light on detail , but enough is set forth to suggest t hat the contractor seeking to evade liability had also retained some level of responsibility for the injury causing work. Since Chelsea did not retain such responsibility or supervision, this claim must be dismissed against it. 2

2 Plaintiff and the Board defen dants argue that the Workers’ Compensation Board has already deemed Chelsea a general contractor, but “here is no indication in the record that this was a disputed issue at the Workers' INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

9 of 13 

### [* 9]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 10 of 13 As to the merits of this claim, there are three points of dispute regarding the happening of plaintiff’s accident: his failure to use a rope guard to prevent the steel panel from severing the rope; his use of a different size safety rope than the rope grab ; and the positioning of the rope grab. Plaintiff argues that these issues are essentially irrelevant, as they at most establish comparative negligence on plaintiff’s part, which is not a defense to a claim under Section 240(1). In this regard, comparative negligence is not available as a defense to such a claim because the statute holds responsible persons or entities strictly liable; allowing such persons to avoid liability because the injured worker was to some degree also negligence is contrary to the

s tatutes purpose ( Blake v Neighborhood Hous. Serv s . of New York City, Inc. , 1 NY3d 280, 289 [2003] ). Nevertheless, where adequate safety devices were provided and the fault lies entirely with plaintiff’s use, misuse, or lack of use thereof , a defendant ma y establish that plaintiff should be barred from recovering as the “sole proximate cause of the accident” ( id. at 290). Here, issues of fact preclude summary judgment

. With respect to the rope guard, which all agree plaintiff did not use, plaintiff and hi s coworker testified that the rope guard was not needed because of the smooth railing above the steel panel ( Barreto 2018 EBT tr , NYSCEF Doc.
No. 102 at 135, 151

- 53; Barreto 2019 EBT tr, NYSCEF Doc. No. 103 at 45

- 47; Cardenas EBT tr, NYSCEF Doc. No. 128 at 54, 141). While hindsight may indicate that plaintiff perhaps should have used the rope guard, the Board defendants offer only speculation that the rope guard would have prevented the severing of the rappellin g line ( Zuckerman , 49 NY2d at 562 [“ mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient ” ] )

. In this regard, the court notes the testimony of Cardenas, plaintiff’s coworker, that the rope guards were made of n ylon or hose (Cardenas EBT tr, NYSCEF Doc. No. 128 at 26, 45

- 46).

Compensation proceeding or that the WCB specifically adjudicated this issue ( Torres v Perry St. Dev. Corp. , 104 AD3d 672, 674

- 75 [2d Dept 2013]) INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

10 of 13 

### [* 10]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 11 of 13 With respect to whether the rope grab was appropriately matched to the safety line, the sole support for that argument is Prince’s testimony that an inappropriately sized rope grab “might

no t have done anything anyway ” (Prince EBT tr , NYSCEF Doc. No. 123 at 152). Such testimony is too speculative to create a triable issue of fact. There is , however, a dispute in the testimony regarding the rope grab and how plaintiff had positioned it. Contra ry to the Board defendants ’ argument , plaintiff did not offer conflicting testimony as to the location of the rope grab , having testified that it was positioned properly above his head (Barreto 2019 EBT tr, NYSCEF Doc. No. 103 at 57

- 58)

. At an earlier deposition, he had testified that the lanyard which connected his harness to the safety line was located at his shoulders , which the Board defendants interpret to mean his rope grab was placed there as well (Barreto 2018 EBT tr, NYSCEF Doc. No. 102 at 144). There is no basis in the record for the court to make such an interpretation. Cardenas testified that he did not know where the rope grab had been positioned, but did testify that the rope grab was in good working order prior to the accid ent , and should have caught plaintiff if it were correctly positioned (Cardenas EBT tr, NYSCEF Doc. No. 128 at 67

- 68 )

. Such a dispute must be resolved by the jury. Accordingly, the motion s related to this claim are both denied. Labor Law § 241(6) Labor La w § 241 (6) provides, in pertinent part, as follows: All contractors and owners and their agents, . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: * * * (6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped . . . as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting su ch places. INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

11 of 13 

### [* 11]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 12 of 13 Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors “‘to provide reasonable and adequate protection and safety’ to persons employed in, or lawfully frequenting, all areas in which construction, excavat ion or demolition work is being performed” ( Rizzuto v L.A. Wenger Contr. Co. , 91 NY2d 343, 348 [1998 ]). However, cases where the work performed was “routine exterior window washing” are not within the ambit of Section 241(6) ( Wowk v Broadway 280 Park Fee, LLC , 94 AD3d 669, 671 [1st Dept 2012]). Thus, plaintiff’s motion for partial summary judgment on this claim is denied, defendants’ motions for summary judgment dismissing the claim are granted, and the claim is dismissed. Accordingly, it is hereby
ORDERE D that plaintiff’s motion for partial summary judgment (Mot. Seq. No. 003) is denied ; and it is further ORDERED that the Board defendants’ motion for summary judgment dismissing the complaint and cross

- claims (Mot. Seq. No. 004) is granted to the extent that the first, second, third, fifth, and so much of the fourth cause of action as relates to Labor Law § 240(2) , as well as Chelsea’s cross

- claims, are severed and dismissed, and the motion is otherwise denied ; and it is further ORDERED that Chelsea’s motion for summary judgment dismissing the complaint and

cross - claims (Mot. Seq. No. 005) is granted in its entirety, the complaint and cross

- claims against Chelsea severed and dismissed , and the Clerk of the Court is directed to en ter judgment in favor Chelsea dismissing the action against it; and it is further ORDERED that the action shall continue as to plaintiff’s claim against the Board defendants for violation of Labor Law § 240(1); and it is further INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

12 of 13 

### [* 12]160421/2017 BARRETO, EDUARDO vs. BOARD OF MANAGERS OF 545

Motion No. 003 004 005 Page 13 of 13 ORDERED that this matter is respectfully referred to the Clerk of the Trial Assignment
Part to be scheduled for trial. This constitutes the decision and order of the court.
E N T E R :

2/ 1 4 /2024 $SIG$ DATE LOUIS L. NOCK, J.S.C.
CHECK ONE: CASE DISPOSED X NON - FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE INDEX NO. 160421/2017 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 02/14/2024

13 of 13

# □**□**

[* 13]