Perez v 1334 York, LLC

2024 NY Slip Op 31528(U)

April 30, 2024

Supreme Court, New York County

Docket Number: Index No. 156972/2020

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. 121 

INDEX NO. 156972/2020 

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SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. PAUL A. GOETZ 

Justice 

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PERCY PEREZ, 

Plaintiff, 

PART 

INDEX NO. 

MOTION DATE 

156972/2020 

06/20/2023, 

06/20/2023 

47 

- V - MOTION SEQ. NO. __ 0_0_2_0_0_3 __ 

1334 YORK, LLC,STRUCTURE TONE, LLC,SOTHEBY'S 

INC. 

Defendant. 

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DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 002) 81, 82, 83, 84, 85, 

86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99,100,101,102 

were read on this motion to/for JUDGMENT-SUMMARY 

The following e-filed documents, listed by NYSCEF document number (Motion 003) 70, 71, 72, 73, 7 4, 

75, 76, 77, 78, 79, 80,113,114,115,116 

were read on this motion to/for JUDGMENT-SUMMARY 

In this Labor Law personal injury action defendants move for summary judgment 

dismissing the complaint (motion sequence number 002) and plaintiff moves for summary 

judgment on his Labor Law§§ 240 (1) and 241 (6) claims (motion sequence number 003). The 

motions are consolidated for disposition. 

BACKGROUND 

Plaintiff, Percy Perez, seeks damages for personal injuries he allegedly sustained on April 

13, 2019 when he fell from a "Baker scaffold" (the "scaffold") while working on a construction 

project (the "Project") at a building located at 1334 York Avenue, New York, NY (the 

"Premises"). Plaintiff alleges that the scaffold did not have rails and that it moved causing him 

to fall. 

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At the time of the accident, the Premises was owned by 1134 York, LLC ("York"). 

Sotheby's, Inc. ("Sotheby's") leased the portion of the Premises where plaintiff was working at 

the time of the accident. Structure Tone, LLC ("Structure Tone") was the general contractor on 

the Project. Plaintiff was an employee of Commodore Construction Corp. ("Commodore"), a 

subcontractor doing drywall work on the Project. 

Plaintiffs Deposition Testimony 

Plaintiff appeared for a deposition on August 10, 2022 (NYSCEF Doc. No. 86). 1 At the 

time of the accident, plaintiff was working for Commodore as a wall taping mechanic (plaintiffs 

tr. at 34-35, 45). He testified that his foremen on the Project was "Michael," a Commodore 

employee (id. at 44-45). He further testified that he had never heard of York or Sotheby' s, nor 

did he know who owned the Premises (id. at 167, 168). 

Plaintiff testified that Commodore was the only entity that provided plaintiff with tools 

and materials for his work on the Project (id. at 169). He further testified that he had been 

trained in the assembly and movement of Baker scaffolds (id. at 26), and had also been trained to 

lock all four wheels of a scaffold before getting on it to work (id. at 26-27). Plaintiff further 

testified that he had been trained to install guardrails onto scaffolds and to use guardrails when 

working five feet or higher from the ground (id. at 27-28). Commodore did not provide Plaintiff 

with any of this training (id. at 63) 

Plaintiff testified that Commodore held a single safety meeting about the Project, which 

he attended (id. at 60-61) and that the safety meeting included directions as to scaffolds, 

1 Plaintiff also appeared for a deposition on September 15, 2022 (NYSCEF Doc. No. 87), which 

only addressed damages. All references to the plaintiffs deposition testimony in the instant 

decision shall refer to the August 10, 2022 deposition. 

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including making sure that scaffolds are locked before using them (id. at 62). The safety meeting 

also addressed the use of safety rails on scaffolds (id. at 62-63). 

On the date of the accident, plaintiff was working with a team of approximately six to 

eight other workers (id. at 48-49). Plaintiff was installing drywall in a large office space on the 

fifth floor of the Premises (id. at 65, 67). Plaintiffs foreman had directed him to do this work, 

which involved applying two coats of compound to the walls (id. at 55-67, 74). Plaintiff used 

Baker scaffolds to perform his work (id. at 68). 

Plaintiff testified that prior to the accident he had been working on a scaffold for 

approximately two hours, applying the first coat of compound to the walls (id. at 82). The 

scaffold had already been assembled when he began using it (id. at 84). Plaintiff testified that 

during his work, he moved the scaffold around the room approximately ten times, "unlocking it, 

moving it, and then locking it again and doing it from part to part" (id. at 82). He further 

testified that he unlocked, moved, and relocked this Baker scaffold by himself. Plaintiff testified 

that there were three scaffolds in the work areas, but that he only used one of them when 

applying the first coat to the walls (id. at 82). After applying the first coat, plaintiff went to 

lunch (id. at 86). 

After lunch, plaintiff used the scaffold to apply the second coat to the upper section of the 

wall (id. at 87). He did not know if the scaffold was the same scaffold, he had used to apply the 

first coat (id. at 87). Plaintiff used the scaffold for approximately two to three hours before the 

accident, and it was the only scaffold he used while applying the second coat (id. at 87-88, 108). 

Plaintiff testified that the scaffold had safety railing on its short sides but not on its long 

sides (id. at 106-107). Prior to using the scaffold, he looked around his work area for safety 

railing that would fit on the scaffold's long sides but did not find any (id. at 119). Plaintiff did 

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not ask anyone if any safety railings were available (id. at 120). He testified that he did not 

know if there were any available safety railing that would have fit the scaffold (id. at 119). He 

further testified that he did not know where the scaffold parts were kept on the Project (id. at 

131). 

Plaintiff testified that he asked his foreman if there were any safety railings available, and 

his foreman told him that there were none (id. at 121-122). Plaintiff further testified that he 

specifically asked his foreman for safety railings because the scaffold did not have them (id. at 

124). Plaintiff testified that he worked on the scaffold without safety railings (on the long sides) 

because his foreman "commanded us to work, and we are only workers. We have to obey" (id. 

at 124). Plaintiff further testified that his foreman was the only person he could ask for safety 

railings (id. at 131-132). Plaintiff did not discuss the lack of safety railings with any other 

workers (id. at 122). 

Plaintiff testified that he did not have any issues with the scaffold for the two to three 

hours prior to the accident (id. at 108). He further testified that he had moved the Scaffold at 

least eight to ten times while applying the second coat (id. at 88). Each time he moved the 

scaffold, he would unlock the scaffold's wheels, move the scaffold, relock the wheels, and get 

back on the Scaffold (id. at 88-89). Plaintiff further testified that the wheels on the scaffold had 

never unlocked on their own (id. at 89). 

At the time of the accident, plaintiff was on the scaffold, applying the second coat to the 

upper portion of the wall (id. at 87-88). He testified that this work could have been done even if 

safety railings had been placed on the long sides of the scaffold (id. at 132). He further testified 

that he had personally locked the wheels on the scaffold before the accident occurred (id. at 109-

114). 

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Immediately before the accident, plaintiff was facing one of the long sides of the scaffold 

and did not have safety rails in front or behind him (id. at 106-107). The scaffold's platform was 

approximately four and a half feet above the ground (id. at 127). Plaintiff testified that the 

wheels on one of the short sides of the scaffold became unlocked and the scaffold moved away 

from the wall, causing him to fall (id. at 92-93, 142-143). Plaintiff testified that as he fell from 

the scaffold, he saw that the wheels had unlocked (id. at 143-144). He did not examine the 

scaffold's wheels after the accident (id. at 145). 

Deposition Testimony of Owen Santangelo, assistant superintendent for Structure Tone 

Owen Santangelo appeared for deposition on November 4, 2022 (NYSCEF Doc. No. 88). 

At the time of the accident, he was Structure Tone's assistant superintendent for the Project 

(Santangelo tr. at 14). Structure Tone was the Project's general contractor (id. at 20). The 

Project was an interior fit out of the first through fourth floors of the Premises (id. at 22, 60). 

Santangelo testified that apart from conducting orientations, Structure Tone had no role 

in insuring safety on the worksite (id. at 14). He further testified that he would orient the 

subcontractors to the worksite, but that they were responsible for their own safety (id. at 14-15). 

Subcontractors had "competent persons" to ensure the safety of their workers and their site 

conditions (id. at 14-15). Structure Tone did not provide any safety equipment to the Project, 

and the subcontractors kept track of their own equipment (id. at 24-25,31 ). If Structure Tone 

saw a subcontractor's workers being unsafe, they would inform the subcontractor's foreman and 

instruct the subcontractor to correct the issue (id. at 18). The subcontractors' foremen were 

responsible for the day-to-day safety of their employees (id. at 18). Santangelo testified that 

Structure Tone was the only entity with control over the construction work being done on the 

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first four floors of the Premises and that Structure Tone was not required to maintain a safe 

worksite for all the workers onsite (id. at 60). 

Santangelo testified that Sotheby's was Structure Tone's client (id. at 25). Sotheby's was 

not involved in the day-to-day work on the Project (id. at 27). Santangelo further testified that 

Sotheby's inspected the premises approximately once a month (id. at 27) 

Santangelo testified that Commodore was responsible for carpentry on the Project, 

including framing, drywall, and floor layouts (id. at 37). He was unfamiliar with York (id. at 25) 

Santangelo did not witness the accident and did not know ifhe was on the worksite on 

the date of the accident (id. at 35, 61). 

Affidavit of Christopher Sommes, general foreman for Commodore 

Defendants submit an affidavit by Christopher Sommes, dated June 9, 2023 (NYSCEF 

Doc. No. 92). Sommes states that he was Commodore's general foreman for the Project on the 

date of the accident (Sommes aff. at para. 6). On the date of the accident, Commodore was 

performing work on the 5th floor of the Premises that required scaffolds, and Sommes personally 

inspected the scaffolds that were being used (id. at para. 9, 12). Sommes states that he did not 

find any of the scaffolds used on the Project to be defective (id. at 21). 

Sommes states that he did not receive any reports that the scaffolds were defective (id. at 

para. 14, 21). He states that all the scaffolds had safety railings and Commodore otherwise had 

safety railings available on the 5th floor of the Premises (id. at 15, 18). He further states that 

prior to the date of the accident, the workers were made aware that safety rails were available on 

the 5th floor (id. at para.18). 

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Sommes further states that on the date of the accident, plaintiff never asked him where 

the safety rails were, nor did he see plaintiff make any effort to obtain safety rails (id. at para. 19, 

20). 

Sommes states that plaintiff was trained to keep the scaffolds' wheels locked while in use 

and that Commodore prohibits scaffolds from being moved while in use (id. at para. 16, 17). 

Affidavit of Kirthley Williams, drywall taper foreman for Commodore 

Defendants submit an affidavit by Kirthley Williams, dated March 20, 2023 (NYSCEF 

Doc. No. 93). Williams states that on the date of the accident he was a Commodore drywall 

taper foreman, and plaintiff was a taper working on the 5th floor of the Premises (Williams aff. 

at para. 6, 7, 8). 

Williams states that all the scaffolds had safety railings and Commodore otherwise had 

safety railings available on the 5th floor of the Premises (id. at 14, 18). He further states that 

prior to the date of the accident, the workers were made aware that safety rails were available on 

the 5th floor (id. at para.18). 

Williams further states that plaintiff was trained to keep the scaffolds' wheels locked 

while in use and that Commodore prohibits scaffolds from being moved while in use (id. at para. 

15, 16). 

Affidavit of Michael Herron, drywall taper foreman for Commodore 

Defendants submit an affidavit by Michael Herron, dated June 9, 2023 (NYSCEF Doc. 

No. 94). Herron states that on the date of the accident he was a Commodore drywall taper 

foreman, and plaintiff was a taper working on the 5th floor of the Premises (Herron aff. at para. 

6, 7, 8). 

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Herron states that all the scaffolds had safety railings and Commodore otherwise had 

safety railings available on the 5th floor of the Premises (id. at 14, 18). He further states that 

prior to the date of the accident, the workers were made aware that safety rails were available on 

the 5th floor (id. at para.18). 

Herron states that plaintiff never asked him where he could find safety rails for the 

scaffolds, nor did Herron ever deny any such request (id. at para. 19, 20). Herron did not see 

plaintiff make any effort to obtain safety rails (id. at para. 20). 

Herron further states that plaintiff was trained to keep the scaffolds' wheels locked while 

in use and that Commodore prohibits scaffolds from being moved while in use (id. at para. 15, 

16). 

Affidavit of Andreas Villagra Viscarra, taper for Commodore 

Defendants submit an affidavit by Villagra Viscarra, dated June 9, 2023 (NYSCEF Doc. 

No. 95). He states that on the date of the accident he was working with plaintiff as a taper on the 

5th floor of the Premises (Viscarra aff. at para. 3, 4, 5). 

Viscarra states that he witnessed plaintiffs accident (id. at para 7). He further states that 

the Scaffold's wheels were unlocked prior to the accident, and plaintiff attempted to shift/move 

the scaffold using his bodyweight (id. at para 8). Viscarra states that when plaintiff attempted to 

move the scaffold in this manner, plaintiff lost his balance and fell to the ground (id. at para 9). 

He further states that on the date of the accident Commodore had safety railings available 

on the 5th floor and that the employees were made aware of this (id. at 14, 15). 

Viscarra states that plaintiff did not equip the scaffold with safety railings prior to the 

accident (id. at para 10). He further states that plaintiff did not ask him where to find safety 

railings nor did he see plaintiff make any effort to obtain safety railings (id. at para 15, 16). 

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Viscarra states that all Commodore employees are aware that Commodore requires that 

scaffolds' wheels to be locked while in use, that Commodore prohibits scaffolds from being 

moved while in use, and that Commodore requires the use of safety rails on scaffolds (id. at para 

11, 12, 13). 

DISCUSSION 

It is well settled that 'the proponent of a summary judgment motion must make a prima 

facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to 

demonstrate the absence of any material issues of fact"' (Pullman v Silverman, 28 NY3d 1060, 

1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "Failure to make 

such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" 

(Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "Once such a prima facie 

showing has been made, the burden shifts to the party opposing the motion to produce 

evidentiary proof in admissible form sufficient to raise material issues of fact which require a 

trial of the action" (Cabrera v Rodriguez, 72 AD3d 553, 553-54 [1st Dept 2010]). 

"The court's function on a motion for summary judgment is merely to determine if any 

triable issues exist, not to determine the merits of any such issues or to assess credibility" 

(Meridian Mgt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508, 510-11 [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 York Plaza 

Co. LLC, 153 AD3d 427,428 [2017], quoting Ortiz v Varsity Holdings, 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 

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existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders 

v Ceppos, 46 NY2d 223,231 [1978]). 

Plaintiffs Labor Law§ 240 (1) claim 

Plaintiff moves for summary judgment as to liability on his Labor Law§ 240 (1) claim. 

He argues that he has met his prima facie burden as he fell from a scaffold while doing 

construction work and defendants' failure to provide adequate safety rails and/or locking wheels 

was the proximate cause of the accident. 

Defendants oppose plaintiffs motion and move for summary judgment dismissing the 

claim arguing that plaintiff was the sole proximate cause of the accident. They note that plaintiff 

had been trained to use safety railings on scaffolds and to lock its wheels after moving it. They 

further argue that the scaffold was not defective, and that safety railings were readily available to 

the plaintiff in his work area. According to defendants plaintiff was the sole proximate cause of 

the accident because he did not make use of the readily available safety railings and attempted to 

improperly move the scaffold while he was working on it (and the wheels were unlocked). 

Labor Law§ 240 (1), also known as the Scaffold Law reads as follows: 

Scaffolding and other devices for use of employees 

1. All contractors and owners and their agents, except owners of one and 

two-family dwellings who contract for but do not direct or control the work, 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. 

Labor Law§ 240 (1) "imposes upon owners, contractors and their agents a nondelegable 

duty that renders them liable regardless of whether they supervise or control the work" (Barreto 

v Metropolitan Transp. Auth., 25 NY3d 426,433 [2015]). Liability is imposed when the 

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"injuries [ ] are proximately caused by the failure to provide appropriate safety devices to 

workers subject to gravity-related risks" (Ladd v Thor 680 Madison Ave LLC, 212 AD3d 107, 

111 [1st Dept 2022]). 

"The mere fact that a worker falls from a ladder or a scaffolding is not enough, by itself, 

to establish that the device did not provide sufficient protection. The worker must show that 

Labor Law§ 240 (1) was violated and the violation was a proximate cause of the injury." 

(Nazario v 222 Broadway, LLC, 135 AD3d 506, 508 [1st Dept 2016] citing Blake v 

Neighborhood Haus. Servs. ofN.Y City, I NY3d 280,289 [NY 2003]). "[T]he single decisive 

question is whether plaintiff's injuries were the direct consequence of a failure to provide 

adequate protection against a risk arising from a physically significant elevation differential" 

(Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). 

Further, an owner or contractor's breach of Labor Law§ 240 (1) is not the proximate 

cause of an accident "if adequate safety devices are available at the job site, but the worker either 

does not use or misuses them" (Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554 [2006]). "[I]n 

determining whether there is a violation of Labor Law § 240 (1 ), or whether a worker is the sole 

proximate cause of his injuries, the issue to be addressed first is whether adequate safety devices 

were provided, 'furnished' or 'placed' for the worker's use on the work site." (Cherry v Time 

Warner, Inc., 66 AD3d 233,236 [1st Dept 2009]). A safety device need not be in a plaintiff's 

immediate vicinity in order to be "readily available" to them. 

Liability under section 240 (1) does not attach when the safety devices that 

plaintiff alleges were absent were readily available at the work site, albeit not in 

the immediate vicinity of the accident, and plaintiff knew he was expected to use 

them but for no good reason chose not to do so, causing an accident. In such 

cases, plaintiffs own negligence is the sole proximate cause of his injury. 

(Gallagher v New York Post, 14 NY3d 83, 88 [2010]). 

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The question of whether a plaintiff is the sole proximate cause of their accident for failure 

to use specific safety equipment depends on whether plaintiff knew where the safety equipment 

was located and the ease of obtaining the equipment under the given circumstances. 

The burden of providing a safety device is squarely on contractors and owners 

and their agents ... Thus, a worker is expected, as a 'normal and logical response,' 

to obtain a safety device himself (rather than having one provided to him) only 

when he knows exactly where a safety device is located, and there is a practice of 

obtaining the safety device himself because it is easily done. 

(Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 10-11 [1st Dept 2011] quoting Cherry, 

66 AD3d 233, 238 [additional citations omitted]). 

To establish that plaintiff was the sole proximate cause of his accident, defendants 

must show that plaintiff "had adequate safety devices available; that he knew both that 

they were available and that he was expected to use them; that he chose for no good 

reason not to do so; and that had he not made that choice he would not have been injured" 

(Kosavickv Tishman Constr. Corp. of NY, 50 AD3d 287,288 [1st Dept 2008] quoting 

Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004] see also Biaca-Neto v Boston 

Rd. II Haus. Dev. Fund Corp., 34 NY3d 1166, 1169 [2020]). 

Further, a plaintiff can be found to be the sole proximate of their accident absent a 

finding ofrecalcitrance. (See Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004] 

["Even when a worker is not 'recalcitrant' ... there can be no liability under section 240 (1) 

when there is no violation and the worker's actions (here, his negligence) are the 'sole proximate 

cause' of the accident"][intemal quotation marks and citations omitted]). 

Here, plaintiff has established that his accident falls within the scope of Labor Law§ 240 

in that he was subjected to a gravity related risk. However, there is conflicting evidence as to 

whether plaintiff was the sole proximate cause of his accident. 

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Plaintiff testified that the scaffold did not have railings on the long sides (plaintiffs tr. at 

106-107) and that his foreman told him there were none available (id. at 121-122). He further 

testified that while he was working on the scaffold on the side missing railings, the wheels that 

he himself had locked became unlocked causing him to fall off the scaffold (id. at 92-93, 142-

143). 

Viscarra, plaintiffs coworker, stated that the scaffold's wheels were unlocked, and that 

the accident occurred when plaintiff attempted to move the scaffold while standing on top of it, 

using his body to generate momentum (Viscarra aff. at para 8). Vicarra's description of the 

accident suggests that plaintiff left the scaffold's wheels unlocked and purposefully misused an 

otherwise adequate scaffold. Further, Sommes, Commodore's general foreman, Williams, a 

Commodore drywall taper foreman, and Herron, another Commodore drywall taper foreman, all 

state that plaintiff had been trained to keep the scaffolds' wheels locked while he was using it 

and not to move a scaffold while working on it (Sommes aff. at para. 16, 17; Williams aff. at 

para. 15, 16; Herron aff. at para. 15, 16). Sommes, Williams, Herron, and Viscarra, also each 

state that Commodore workers knew that safety rails were available on the 5th floor (Sommes 

aff. at para. 15, 16; Williams aff. at para. 14, 18; Herron aff. at para. 14, 18; Viscarra aff. at para. 

14, 15). In addition, Sommes and Herron both state that plaintiff never asked about safety 

railings nor made any effort to obtain them (Sommes aff. at para. 19, 20; Herron aff. at para. 19, 

200). 

Consequently, issues of fact remain as to whether the wheels of the scaffold were locked 

or unlocked when plaintiffs accident occurred, whether plaintiff intentionally moved the 

scaffold while standing on it, whether there were safety rails readily available to him, and 

whether he "knew he was expected to use them but for no good reason chose not to do so, 

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causing an accident" (See Gallagher v New York Post, 14 NY3d 83, 88 [2010]). Taken together, 

these contradictions create issues of fact as to whether plaintiff was the sole proximate cause of 

his accident, both by improperly moving the scaffold and failing to use readily available safety 

railings. 

Accordingly, plaintiff's motion for summary judgment on his Labor Law §240 (1) claim 

and defendants' motion for summary judgment dismissing the same claim will be denied. 

Plaintiffs Labor Law§ 241 (6) claims 

Plaintiff moves for summary judgment as to liability on his Labor Law § 241 ( 6) claim. 

He argues that defendants violated Industrial Code § 23-5 .18 (b ), and that the violation was the 

proximate cause of the accident. 

Defendants move for summary judgment dismissing plaintiffs Labor Law § 241 ( 6) 

claim arguing that the alleged Industrial Code violations are insufficient to form a basis for 

Labor Law§ 241 (6) claim and/or are inapplicable to the alleged facts. 

Since plaintiff does not oppose dismissal of his Labor Law§ 241 (6) claims based upon 

any alleged violations other than Industrial Code § 23-5 .18 (b ), these claims are dismissed as 

abandoned (See Kempisty v 246 Spring St., LLC, 92 AD3d 474, 475 [1st Dept 2012] ["Where a 

defendant so moves, it is appropriate to find that a plaintiff who fails to respond to allegations 

that a certain section is inapplicable or was not violated be deemed to abandon reliance on that 

particular Industrial Code section."]). Consequently, only defendants' alleged violation of 

Industrial Code§ 23-5.18 (b) remains. 

Labor Law §241 (6) provides in relevant part: 

Construction, excavation and demolition work 

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6. All areas in which construction, excavation or demolition work is being 

performed shall be so constructed, shored, equipped, guarded, arranged, operated 

and conducted as to provide reasonable and adequate protection and safety to the 

persons employed therein or lawfully frequenting such places. The commissioner 

may make rules to carry into effect the provisions of this subdivision, and the 

owners and contractors and their agents for such work, except owners of one and 

two-family dwellings who contract for but do not direct or control the work, shall 

comply therewith. 

"Labor Law § 241 ( 6) imposes a non-delegable duty on owners and contractors to 

provide reasonable and adequate protection and safety for workers and to comply with the 

specific safety rules and regulations promulgated by the Commissioner of the Department of 

Labor" (Toussaint v Port Auth. of NY & NJ, 38 NY3d 89, 93 [2022] [internal quotations marks 

and citations omitted]). 

The non-delegable duty is absolute and "imposes liability upon a general contractor for 

the negligence of a subcontractor, even in the absence of control or supervision of the worksite" 

(Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348-349 [1998], citing Ross v Curtis-Palmer 

Hydro-Elec. Co., 81 NY2d 494, 502 [1993] [emphasis omitted]). "To establish liability under 

Labor Law § 241 ( 6), a plaintiff must demonstrate that his or her injuries were proximately 

caused by a violation of an Industrial Code provision 'mandating compliance with concrete 

specifications"' (Ennis v Noble Constr. Group, LLC, 207 AD3d 703, 704 [2d Dept 2022], 

quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). 

Industrial Code 23-5.18 (b) 

Industrial Code 23-5 .18 (b) is sufficiently specific to form a basis for liability pursuant to 

Labor Law§ 241 (6) (See Ying Choy Chong v 457 W 22nd St. Tenants Corp., 144 AD3d 591, 

592 [1st Dept 2016]) and provides as follows: 

Manually-propelled mobile scaffolds 

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(b) Safety railings required. The platform of every manually-propelled mobile 

scaffold shall be provided with a safety railing constructed and installed in 

compliance with this Part (rule). 

12 NYCRR23-5.18. 

As previously shown, there are issues of fact as to whether defendants provided plaintiff 

with adequate safety railings. 

Accordingly, plaintiff's motion for summary judgment on his Labor Law§ 241 (6) claim 

based upon an alleged violation oflndustrial Code 23-5 .18 (b) and defendants' motion for 

summary judgment dismissing same are denied. 

Plaintiffs Labor Law§ 200 and common law negligence claims 

Defendants move for summary judgment dismissing plaintiff's Labor Law § 200 and 

common law negligence claims. They argue that they did not control the means and methods of 

plaintiff's work, nor did they have actual or constructive notice of any unsafe condition as to the 

scaffold. 

Plaintiff does not address defendants' arguments to dismiss his Labor Law§ 200 and 

common law negligence claims. 

Labor Law§ 200 (1) states, in pertinent 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 places. 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. 

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 NY State Elec. & Gas Corp., 

82 NY2d 876, 877 [1993]). "[T]here are 'two broad categories' of personal injury claims: 'those 

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arising from an alleged defect or dangerous condition existing on the premises and those arising 

from the manner in which the work was performed."' (Rosa v 47 E. 34th St. (NY), L.P., 208 

AD3d 1075, 1081 [1st Dept 2022], quoting Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 

139, 144 [1st Dept 2012]). 

Where an existing defect or dangerous condition caused the injury, liability 

attaches if the owner or general contractor created the condition or had actual or 

constructive notice of it. Where the injury was caused by the manner and means 

[ means and methods] of the work, including the equipment used, the owner or 

general contractor is liable if it actually exercised supervisory control over the 

injury-producing work. 

(Cappabianca v Skanska USA Bldg. Inc., 99 AD3d at 144 [internal citations omitted]; see also 

Toussaint v Port Auth. ofN Y & NY, 38 NY3d at 94 [to recover under Labor Law§ 200 "a 

plaintiff must show that an owner or general contractor exercised some supervisory control over 

the operation"]). 

Further, "when a worker's injury results from his or her employer's own tools or 

methods, it makes sense that a defendant property owner be liable only if possessed of authority 

to supervise or control the work, since such defendant is vested with the authority to remedy any 

dangers in the methods or manner of the work" (Chowdhury v Rodriguez, 57 AD3d 121, 130 [2d 

Dept 2007]). 

Here, plaintiff's accident may have arisen from either the means and methods of his work 

(i.e. plaintiff using the scaffold without locking the wheel and/or attaching the additional safety 

rails) or from a defective tool (i.e. the scaffold's wheels coming unlocked while plaintiff was on 

it). As such, defendants are only negligent if they actually exercised supervisory control over 

plaintiff's work at the time of the accident. 

Defendants have established prima facie that they did not exercise supervisory control 

over plaintiff's work at the time of the accident. Plaintiff testified that his foreman, a 

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Commodore employee, directed his work (Plaintiffs tr. at 55-67, 74). He further testified that he 

never spoke to any of defendants' employees (Plaintiffs tr. at 168, 169). 

There is nothing from the record to suggest that defendants exercised supervisory control 

over plaintiffs work. Further, plaintiff does not oppose defendants' motion to dismiss his Labor 

Law § 200 and common law negligence claims. 

Accordingly, defendants are entitled to summary judgment dismissing plaintiffs Labor 

Law § 200 and common law negligence claims. 

The parties' remaining arguments have been considered and found unavailing. 

CONCLUSION 

For the foregoing reasons, it is hereby 

ORDERED that plaintiff, Percy Perez's, motion for summary judgment pursuant to 

CPLR § 3212 as to liability in his favor on his Labor Law§§ 240 (1) & 241 (6) claims (motion 

sequence number 003) is denied; and it is further 

ORDERED that defendants' motion for summary judgment pursuant to CPLR § 3212 

dismissing the complaint (motion sequence number 002) is granted to the extent that plaintiffs 

common law negligence claims, Labor Law § 200 claims, and Labor Law § 241 claims based 

upon violations of the Industrial Code, other than Industrial Code 23-5.18 (b) are dismissed and 

the motion is otherwise denied. 

4/30/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

~ CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

156972/2020 PEREZ, PERCY vs. 1334 YORK, LLC 

Motion No. 002 003 

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PAUL A. GOETZ, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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