### 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 RECEIVED NYSCEF: 04/30/2024 

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

---------------------------------------------------------------------------------X

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.

---------------------------------------------------------------------------------X 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, 74, 75, 76, 77, 78, 79, 80,113,114,115,116 were read on this motion to/for JUDGMENT-SUMMARY In this LaborLaw personal injury action defendants move for summaryjudgment dismissing the complaint (motion sequence number 002) and plaintiffmoves for summary judgmenton his LaborLaw§§ 240 (1) and 241 (6) claims (motion sequence number 003). The motions are consolidated for disposition. 

### BACKGROUND Plaintiff, PercyPerez, seeks damages for personal injuries he allegedly sustained on April 13, 2019 whenhe 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"). Plaintiffalleges that the scaffold did nothaverails and that it moved causing him to fall.

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### At the time ofthe accident, the Premises was ownedby 1134 York, LLC ("York"). Sotheby's, Inc. ("Sotheby's") leased the portion ofthe Premises where plaintiffwas working at the time ofthe accident. Structure Tone, LLC ("Structure Tone") was the general contractor on the Project. Plaintiffwas an employee ofCommodore Construction Corp. ("Commodore"), a subcontractor doing drywall work on the Project. 

### PlaintiffsDeposition Testimony Plaintiffappeared for a deposition on August 10, 2022 (NYSCEF Doc. No. 86). 1 

### Atthe time ofthe accident, plaintiffwas working for Commodore as a wall taping mechanic (plaintiffs tr. at 34-35, 45). He testified that his foremen on the Projectwas "Michael," a Commodore employee (id. 

### at 44-45). He further testified that he had never heard ofYork or Sotheby's, nor did he know who owned the Premises (id. 

### at 167, 168). Plaintifftestified that Commodore was the only entity that provided plaintiffwith 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 ofBaker scaffolds (id. 

### at 26), and had also been trained to lock all four wheels ofa scaffold before getting on it to work (id. 

### at 26-27). Plaintifffurther testified that he hadbeen 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 notprovide Plaintiff with any ofthis training (id. 

### at 63) Plaintifftestified that Commodore held a single safety meeting about the Project, which he attended (id. 

### at 60-61) and that the safetymeeting included directions as to scaffolds,

1

### Plaintiffalso 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 safetymeeting also addressed the use ofsafety rails on scaffolds (id. 

### at 62-63). On the date ofthe accident, plaintiffwas working with a team ofapproximately six to eight other workers (id. 

### at 48-49). Plaintiffwas installing drywall in a large office space on the fifth floor ofthe Premises (id. 

### at 65, 67). Plaintiffs foreman had directed him to do this work, which involved applying two coats ofcompound to the walls (id. 

### at 55-67, 74). Plaintiffused Baker scaffolds to perform his work (id. 

### at 68). Plaintifftestified that prior to the accident he had been working on a scaffold for approximately two hours, applying the first coat ofcompound to the walls (id. 

### at 82). The scaffoldhad already been assembled when he began using it (id. 

### at 84). Plaintifftestified 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 byhimself. Plaintifftestified that there were three scaffolds in the work areas, butthathe onlyused one ofthem when applying the first coat to the walls (id. 

### at 82). After applying the first coat, plaintiffwent to lunch (id. 

### at 86). After lunch, plaintiffused the scaffold to apply the second coat to the upper section ofthe wall (id. 

### at 87). He did notknow ifthe scaffold was the same scaffold, he had used to apply the first coat (id. 

### at 87). Plaintiffused 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). Plaintifftestified that the scaffoldhad safety railing on its short sides butnot 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). Plaintiffdid

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### not ask anyone ifany safety railings were available (id. 

### at 120). He testified that he did not know ifthere were any available safety railing that wouldhave 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). Plaintifftestified that he asked his foreman ifthere were any safetyrailings available, and his foreman told him that there were none (id. 

### at 121-122). Plaintifffurther testified that he specifically asked his foreman for safetyrailings because the scaffold did not have them (id. 

### at 124). Plaintifftestified that he worked on the scaffold without safety railings (on the long sides) because his foreman "commandedus to work, and we are only workers. We have to obey" (id. 

### at 124). Plaintifffurther testified that his foreman was the onlyperson he could ask for safety railings (id. 

### at 131-132). Plaintiffdid not discuss the lack ofsafety railings with any other workers (id. 

### at 122). Plaintifftestified 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 hadmoved the Scaffold at least eight to ten times while applying the second coat (id. 

### at 88). Each time he moved the scaffold, he wouldunlock the scaffold's wheels, move the scaffold, relock the wheels, and get back on the Scaffold (id. 

### at 88-89). Plaintifffurther testified that the wheels on the scaffoldhad
neverunlocked on their own (id. 

### at 89). At the time ofthe accident, plaintiffwas on the scaffold, applying the second coat to the upperportion ofthe 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 ofthe 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, plaintiffwas facing one ofthe long sides ofthe scaffold and did not have safety rails in front orbehindhim (id. 

### at 106-107). The scaffold's platform was approximately four and a halffeet above the ground (id. 

### at 127). Plaintifftestified that the wheels on one ofthe short sides ofthe scaffold became unlocked and the scaffoldmoved away from the wall, causing him to fall (id. 

### at 92-93, 142-143). Plaintifftestified that as he fell from the scaffold, he saw that the wheels hadunlocked (id. 

### at 143-144). He did not examine the scaffold's wheels afterthe accident (id. 

### at 145). Deposition Testimony ofOwen Santangelo, assistantsuperintendent forStructure Tone 

### Owen Santangelo appeared for deposition on November 4, 2022 (NYSCEF Doc. No. 88). At the time ofthe 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 Projectwas an interior fit out ofthe first through fourth floors ofthe 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 "competentpersons" to ensure the safety oftheir workers and their site conditions (id. 

### at 14-15). Structure Tone did notprovide any safety equipment to the Project, and the subcontractors kept track oftheir 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 oftheir 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 ofthe 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 ofthe accident (id. 

### at 35, 61). Affidavitof ChristopherSommes, general foremanfor Commodore 

### Defendants submit an affidavitby 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 ofthe accident (Sommes aff. at para. 6). On the date ofthe accident, Commodore was performing work on the 5th floor ofthe Premises thatrequired scaffolds, and Sommes personally inspected the scaffolds that were being used (id. 

### at para. 9, 12). Sommes states that he did not find any ofthe scaffolds used on the Project to be defective (id. 

### at 21). Sommes states that he did notreceive any reports that the scaffolds were defective (id. 

### at para. 14, 21). He states that all the scaffolds had safetyrailings and Commodore otherwise had safety railings available on the 5th floor ofthe Premises (id. 

### at 15, 18). He further states that prior to the date ofthe 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 ofthe accident, plaintiffnever asked himwhere the safetyrails were, nor did he see plaintiffmake any effort to obtain safetyrails (id. at para. 19, 20). Sommes states that plaintiffwas 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). Affidavitof Kirthley Williams, drywalltaper foremanfor Commodore Defendants submit an affidavitby Kirthley Williams, dated March 20, 2023 (NYSCEF Doc. No. 93). Williams states that on the date ofthe accident he was a Commodore drywall taper foreman, andplaintiffwas a taper working on the 5th floor ofthe Premises (Williams aff. at para. 6, 7, 8). Williams states that all the scaffolds had safetyrailings and Commodore otherwise had safety railings available on the 5th floor ofthe Premises (id. at 14, 18). He further states that priorto the date ofthe accident, the workers were made aware that safety rails were available on the 5th floor (id. at para.18). Williams further states that plaintiffwas trained to keep the scaffolds' wheels locked while in use and that Commodore prohibits scaffolds from being movedwhile in use (id. at para. 15, 16). Affidavitof MichaelHerron, drywalltaper foremanfor Commodore Defendants submit an affidavitby Michael Herron, dated June 9, 2023 (NYSCEF Doc. No. 94). Herron states that on the date ofthe accident he was a Commodore drywall taper foreman, andplaintiffwas a taper working on the 5th floor ofthe 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 ofthe Premises (id. at 14, 18). He further states that prior to the date ofthe accident, the workers were made aware that safety rails were available on the 5th floor (id. at para.18). Herron states that plaintiffnever asked himwhere he could find safetyrails for the scaffolds, nor did Herron ever deny any such request (id. at para. 19, 20). Herron did not see plaintiffmake any effort to obtain safetyrails (id. at para. 20). Herron further states that plaintiffwas trained to keep the scaffolds' wheels locked while in use and that Commodoreprohibits scaffolds from being movedwhile in use (id. at para. 15, 16). Affidavitof Andreas Villagra Viscarra, taper for Commodore Defendants submit an affidavitby Villagra Viscarra, dated June 9, 2023 (NYSCEF Doc. No. 95). He states that on the date ofthe accidenthe was working with plaintiffas a taper on the 5th floor ofthe 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 priorto the accident, and plaintiffattempted to shift/move the scaffold using his bodyweight (id. at para 8). Viscarra states that when plaintiffattempted to
move the scaffold in this manner, plaintifflost his balance and fell to the ground (id. at para 9). He further states that on the date ofthe accident Commodore had safetyrailings available
on the 5th floor and that the employees were made aware ofthis (id. at 14, 15). Viscarra states thatplaintiffdid not equip the scaffoldwith safetyrailings prior to the accident (id. at para 10). He further states thatplaintiffdid not ask himwhere to find safety railings nor did he see plaintiffmake 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 tobe locked while in use, that Commodoreprohibits scaffolds from being moved while in use, and that Commodore requires the use ofsafety rails on scaffolds (id. at para 11, 12, 13). DISCUSSION It is 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 vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "Once such a primafacie showing has been made, the burden shifts to the party opposing the motion to produce evidentiaryproofin admissible form sufficient to raise material issues offact which require a trial ofthe action" (Cabrera vRodriguez, 72 AD3d 553, 553-54 [1st Dept 2010]). "The court's function on a motion for summaryjudgmentis merely to determine ifany triable issues exist, notto determine the merits ofany such issues orto 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 summaryjudgmentmotion mustbe examined "in the light most favorable to the non-moving party" (Schmidt v OneNew YorkPlaza Co. LLC, 153 AD3d427,428 [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]). Ifthere is any doubt as to the

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existence ofa triable fact, the motion for summaryjudgmentmustbe denied (Rotuba Extruders
v Ceppos, 46 NY2d 223,231 [1978]). 

### PlaintiffsLaborLaw§240 (1) claim Plaintiffmoves for summaryjudgment as to liability on his Labor Law§ 240 (1) claim. He argues thathe has methis prima facie burden as he fell from a scaffoldwhile doing construction work and defendants' failure to provide adequate safety rails and/or locking wheels
was the proximate cause ofthe accident. Defendants oppose plaintiffs motion and move for summaryjudgmentdismissing the claim arguing thatplaintiffwas the sole proximate cause ofthe accident. They note thatplaintiff hadbeen trained to use safety railings on scaffolds and to lock its wheels after moving it. They further argue that the scaffoldwas not defective, and that safetyrailings were readily available to the plaintiffin his work area. According to defendants plaintiffwas the sole proximate cause of the accident because he did not make use ofthe readily available safetyrailings 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 ofemployees 1. 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 ofa building or structure shall furnish or erect, or cause to be furnished or erected for the performance ofsuch 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 properprotection to aperson so employed. LaborLaw§ 240 (1) "imposes upon owners, contractors and their agents a nondelegable duty thatrenders them liable regardless ofwhether they supervise or control the work" (Barreto
vMetropolitan Transp. Auth., 25 NY3d426,433 [2015]). Liability is imposed when the

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"injuries [ ] 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]). "Themere fact that a worker falls from a ladder or a scaffolding is not enough, by itself, to establish that the device did notprovide sufficient protection. The workermust show that LaborLaw§ 240 (1) was violated and the violation was a proximate cause ofthe injury." 

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

### Blake v NeighborhoodHaus. Servs. ofN.Y City, I NY3d 280,289 [NY 2003]). "[T]he single decisive question is whetherplaintiff's injuries were the direct consequence ofa failure to provide adequate protection against a risk arising from a physically significant elevation differential" 

### (Runner vNew York StockExch., Inc., 13 NY3d 599, 603 [2009]). Further, an owner or contractor's breach ofLaborLaw§ 240 (1) is notthe proximate
cause ofan accident "ifadequate safety devices are available at thejob site, butthe worker either does notuse ormisuses them" 

### (Robinson v. EastMed. Ctr., LP, 6 NY3d 550, 554 [2006]). "[I]n determining whether there is a violation ofLabor Law § 240 (1), orwhether a worker is the sole proximate cause ofhis 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 notbe in a plaintiff's immediate vicinity in orderto be "readily available" to them. Liability under section 240 (1) does not attach when the safety devices that plaintiffalleges were absent were readily available at the work site, albeit not in the immediate vicinity ofthe accident, andplaintiffknew he was expected to use them but for no goodreason chose notto do so, causing an accident. In such cases, plaintiffs own negligence is the sole proximate cause ofhis injury. 

### (Gallagher vNew YorkPost, 14 NY3d 83, 88 [2010]).

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The question ofwhether aplaintiffis the sole proximate cause oftheir accident for failure to use specific safety equipment depends on whetherplaintiffknew where the safety equipment
was located and the ease ofobtaining the equipmentunder the given circumstances. The burden ofproviding 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 himselfbecause 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 thatplaintiffwas the sole proximate cause ofhis accident, defendants must showthat plaintiff"had adequate safety devices available; that he knew both that they were available and thathe was expected to use them; that he chose for no good
reason not to do so; and thathad he notmade that choice he would nothave been injured" (Kosavickv Tishman Constr. Corp. of NY, 50 AD3d 287,288 [1st Dept 2008] quoting Cahill v Triborough Bridge & TunnelAuth., 4 NY3d 35, 40 [2004] see also Biaca-Neto vBoston Rd. IIHaus. Dev. Fund Corp., 34 NY3d 1166, 1169 [2020]). Further, a plaintiffcan be found to be the sole proximate oftheir accident absent a finding ofrecalcitrance. (See Cahill v Triborough Bridge & TunnelAuth., 4 NY3d 35, 40 [2004] ["Even when a worker is not 'recalcitrant'
... there can be no liabilityunder section 240 (1) when there is no violation and the worker's actions (here, his negligence) are the 'sole proximate cause' ofthe accident"][intemal quotation marks and citations omitted]). Here, plaintiffhas established thathis accident falls within the scope ofLabor Law§ 240 in thathe was subjected to a gravity relatedrisk. However, there is conflicting evidence as to whetherplaintiffwas the sole proximate cause ofhis accident.

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### Plaintifftestified that the scaffold did nothave 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 himselfhad lockedbecame unlocked causing him to fall offthe scaffold (id. 

### at 92-93, 142- 143). Viscarra, plaintiffs coworker, stated that the scaffold's wheels were unlocked, and that the accident occurred when plaintiffattempted to move the scaffold while standing on top ofit, using his body to generate momentum (Viscarra aff. at para 8). Vicarra's description ofthe accident suggests that plaintiffleft 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 plaintiffhad 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 safetyrails 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 plaintiffnever asked about safety railings normade any effort to obtain them (Sommes aff. at para. 19, 20; Herron aff. at para. 19, 200). Consequently, issues offact remain as to whether the wheels ofthe scaffold were locked
orunlocked when plaintiffs accident occurred, whetherplaintiffintentionallymoved the scaffold while standing on it, whether there were safetyrails readily available to him, and whether he "knew he was expected to use thembut for no goodreason chose not to do so,

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causing an accident" (See Gallagher vNew YorkPost, 14 NY3d 83, 88 [2010]). Taken together, these contradictions create issues offact as to whetherplaintiffwas the sole proximate cause of his accident, both byimproperly moving the scaffold and failing to use readily available safety railings. Accordingly, plaintiff's motion for summaryjudgment on his LaborLaw §240 (1) claim and defendants' motion for summaryjudgment dismissing the same claim will be denied. 

### PlaintiffsLaborLaw§241 (6) claims Plaintiffmoves for summaryjudgment 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 ofthe accident. Defendants move for summaryjudgment 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 plaintiffdoes not oppose dismissal ofhis Labor Law§ 241 (6) claims basedupon 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 plaintiffwho fails to respond to allegations that a certain section is inapplicable orwas not violatedbe 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 ofthis subdivision, and the owners and contractors and their agents for such work, except owners ofone and two-family dwellings who contract for but do not direct or control the work, shall comply therewith. "LaborLaw § 241 (6) imposes a non-delegable duty on owners and contractors to providereasonable and adequate protection and safety for workers and to complywith the specific safetyrules andregulations promulgatedby the Commissioner ofthe Department of Labor" (Toussaint v PortAuth. 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 ofa subcontractor, even in the absence ofcontrol or supervision ofthe worksite" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348-349 [1998], citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d494, 502 [1993] [emphasis omitted]). "To establish liability under Labor Law § 241 (6), a plaintiffmust demonstrate that his orher injuries were proximately caused by a violation ofan 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-PalmerHydro-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 liabilitypursuant to Labor Law§ 241 (6) (See Ying Choy Chongv 457 W 22ndSt. Tenants Corp., 144 AD3d 591, 592 [1st Dept 2016]) and provides as follows: Manually-propelledmobile scaffolds

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### (b) Safetyrailings required. The platform ofevery manually-propelled mobile scaffold shall be providedwith a safety railing constructed and installed in compliance with this Part (rule). 12 NYCRR23-5.18. As previously shown, there are issues offact as to whether defendants provided plaintiff with adequate safety railings. Accordingly, plaintiff's motion for summaryjudgment on his LaborLaw§ 241 (6) claim basedupon an alleged violation oflndustrial Code 23-5.18 (b) and defendants' motion for summaryjudgment dismissing same are denied. PlaintiffsLaborLaw§200andcommon law negligence claims Defendants move for summaryjudgment dismissing plaintiff's LaborLaw § 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 ofany unsafe condition as to the scaffold. Plaintiffdoes not address defendants' arguments to dismiss his Labor Law§ 200 and
common law negligence claims. Labor Law§ 200 (1) states, in pertinentpart, 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 ofall 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 ofthe 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 vNY StateElec. & Gas Corp., 

### 82 NY2d 876, 877 [1993]). "[T]here are 'twobroad categories' ofpersonal 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 47E. 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 ifthe owner or general contractor created the condition orhad actual or constructive notice ofit. Where the injurywas causedby the manner and means [ means and methods] ofthe work, including the equipment used, the owner or general contractor is liable ifit 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 PortAuth. ofNY &NY, 38 NY3d at 94 [to recoverunderLaborLaw§ 200 "a plaintiffmust show that an owner or general contractor exercised some supervisory control over the operation"]). Further, "when a worker's injury results from his orher employer's own tools or methods, itmakes sense that a defendantproperty owner be liable only ifpossessed ofauthority to supervise or control the work, since such defendant is vested with the authority to remedy any dangers in the methods ormanner ofthe work" (Chowdhury vRodriguez, 57 AD3d 121, 130 [2d Dept 2007]). Here, plaintiff's accident may have arisen from eitherthe means and methods ofhis work (i.e. plaintiffusing the scaffoldwithout locking the wheel and/or attaching the additional safety rails) or from a defective tool (i.e. the scaffold's wheels coming unlocked while plaintiffwas on it). As such, defendants are onlynegligent ifthey actually exercised supervisory control over plaintiff's work at the time ofthe accident. Defendants have establishedprima facie that they did not exercise supervisory control
over plaintiff's work at the time ofthe accident. Plaintifftestified that his foreman, a

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Commodore employee, directed his work (Plaintiffstr. at 55-67, 74). He further testifiedthathe
never spoke to any ofdefendants' employees (Plaintiffs tr. at 168, 169). There is nothing from the recordto suggestthat defendants exercised supervisory control
overplaintiffs work. Further, plaintiffdoes not oppose defendants' motionto dismiss his Labor Law § 200 and common law negligence claims. Accordingly, defendants are entitledto summaryjudgmentdismissing plaintiffs Labor Law § 200 and common law negligence claims. The parties' remaining arguments have been considered and found unavailing. CONCLUSION Forthe foregoing reasons, itis hereby ORDERED thatplaintiff, Percy Perez's, motion for summaryjudgmentpursuantto CPLR § 3212 as to liability inhis favor onhis Labor Law§§ 240 (1) & 241 (6) claims (motion sequence number 003) is denied; andit is further ORDERED that defendants' motion for summaryjudgmentpursuant to CPLR § 3212 dismissing the complaint (motion sequence number 002) is grantedto the extentthatplaintiffs
common law negligence claims, Labor Law § 200 claims, and Labor Law § 241 claims based upon violations ofthe Industrial Code, otherthan 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

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18 of 18 PAUL A. GOETZ, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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