It is undisputed that while plaintiff was working on scaffolding, he slipped on the \vet plywood platform. However, the parties disagree about what happened after plaintiff slipped. Plaintiff contends that his leg foll into a hole in the plank on the scaffolding where he was working. which caused him to fall backwards onto the scaffolding. Defendants contend that he did not fall into this hole, but rather fell back onto the satne platform he was standing on and his foot e11ded up in the hole aftei' he fell. There is also a dispute as to \Vhethet plaintiff created the hole as a means of receiving materfrtls from his co-worker, Leuis, beneath him, or if the plank was defective and that the hole was a hazardous opening, in violation of Labor Law.
On a motion fol' stimmary judgment; the moving patty bears the initial burden of making a prfmafacie showing that there are no triableissues of material fact (see Git!ffrida v Citibank, I 00 .NY2d 72, 81 [2003]). Once a priina facie showing has been established, the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (see Alvarez v Prospect Hospital, 68 NY2d 320,324 [1986]). Since summary judgment is a drastic remedy, the motion papers are construed 1nost favorably to the party opposing the motion and the relief will not be granted to the moving party if"there is any doubt as to the e){istence of a triable issue' (see Rotuba Eitruders v, Ceppos; 46N.Y.2d223 [1978]).
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Labor.Law §.200
Defe11dants 206 Kent Investor LLC, Cornell Realty Management LLC and Seventh Floor Services, Inc; move for BUmrnary judgement to dismiss plaintiff's Labor Law§ 200 claim (Mot. Seq. 7)
"Labor Law § 200 is a codification of the comm9n-law duty of landowners and general c:011.tractors to provide workers with ateasonablysafe place to work'' (Pacheco vSmith, 128 AD3d 926,926 [2d Dept 20151). Thus, claims for negligence and for violations of Labor Law§ 200 are evaluated using the same negligence analysis (see Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]). Tei prove a violation of Labor Law § 200, a plaintiffmust show that the defendant O\Vner and/or contractor e4 ercised supervision or control over the work performed by the contractor's employees, or that it had actual or constructive notice ofthe unsafe condition causing the accident. (N.Y. Lab. Law§ 200 [McKinney]). Additionally, when a claim arises out ofalleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor Cai1i1ot be had under Labo!' Law § 200 u1iless it is shOVv'rl that the party to be charged had the authoritytO supervise or control the performance of the work: Although property owners.often have a generalauthorityto.oversec the progress of the work, mere general supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the ,vork ptoduct is insufficienitojmpose liability undet Labor Law § 200. "A defendant has the authority to supervise or control the work for purposes ofLabor Law§ 200 when that defendant bears the responsibility for the manner in Which the work is performed." (Ortega v. Puccia, 57 A.D.3d 54, 62, 866 N.YS.2d 323, 330[2008]).
PlaintiffLeopoldino claims he received his instructions and supervision from: his employer, Magellan, and it was his foreirtan Raphael who directed his work on the date of the incident. Plaintifftestified that Raphael told him to assemble the scaffold in the. elevator shaft after signing the safety meeting sign-in sheetai1d assigned Leuis to work with him (Leopoldino EBT at 17-18, 8(D. It appears that 119 orie from U1e defendants' companies directed or supervised Magellan's work and did not superv1se or direct any employee's work. 206 Kent was not responsible for supplying Magellan's workers with .equipme1it, tools, or personal protective equipment.that they utilized on site, nor did 206 Kent have any site safety responsibilities. (206 Kent EBT at 22 and 26-27). Thus, each .s,ub-contract foreman was responsible. for their workers
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l1sing safety equipment. Defendants contend that only Magellan, plaintiffs supervisor; had the authol'ity to direct, control, and supervise the plaintiff's work. Moreover, defendants deny ;:idual or constt:uctive notice of the dangerous condition, citing plaintiff's own testimony that he did not report the condition to anyone and the absence of ahy evidence about how long the condition had existed. Besides a condusory sentence in opp.os.ition (plaintiff's aff. in opp. at 3); plaintiff does not substantively oppose defendants' motion as to his Labor Law § 200 claims. Therefore, defendants' nioti011 for summary judgement dismissing plaintiff's Labor Law§ 200 claim is granted.
Laboi-Law §241-a, §240(1) and§ 241(6)
PJaintiff alleges.that defendants violated applicable sections of the New York State Labor Law, including sections 240(1),241(6) and 241-a, and Part23 of the Indtisttial Code; including sections 23-1.S(c)(3), 23-1.7(b)(i), 23~2.S(a) and (b), 23-5.1 (e)(l), 23-5.1 (f), and 23-5. l(h). The plaintiff moves for partial summary judgment on the-issue of liability against.defendants 206 Investor LLC and Seventh Floor 9n his claims arising under Labor Law § 240( 1) and § 24 l (6) (Mot. Seq. 5). Defendants 20'6 Kent Investor LLC, Cornell Realty Management LLC and Seventh Floor Services; Inc. move for summary judgement to dismiss plaintiff's claims tmder Labor Law§ 24L-a, § 240(1}and § 241(6) (Mot. Seq. 7}. Third-party defendantMagellan moves for sli1nmary judgement to dismiss plaintiff's claims mtder Labor Law§ 240(1} and§ 241(6) (Mot. Seq. 6).
Labor Law§241-a
Labor Law §241-a states, "Any men wodcing in or at elevatoi· shaft ways, hatchways and stairwell."i of buildings in the course of constrnction or demolition shall be protected by sound planki11g at least two inches thick laid across the opening at levels not more than two stories above and not more than one story below .such meri; or by other niearts :Specified in the rules of the board.j; Here,.the·plajntiff did·nqt fall from a height. LaborLaw§.2.41 -_a is no.t applicable unless ti1e plainti:ff tall s mote than one story (Rf ley V John Ji Stick! Con.th: Co. , 24 2 AD2d 93 6' 946 [4th Dept. I 997]; ;vev ins v E.i·sr/x Ow i1ers. Corp.; 259 AD2d 3 84, 3 85 [1st Dept 1999]). Thus,
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defendants' motiot1 for slimmaryjudgment dismissing plaintiff's clai1n undet Labor Law§ 241-a (Mot. Seq. 7) is granted.
Labor Law§ 240(1)
§ 240(1} of the Labor Law imposes absolute liability on owners, contractors and their agents and requites that they''furnish or erect, ot cause to be futnished.ot 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." Labot Law§ 240(1) was designed to protect workers from elevation/gravity-relatedrisks, (Ross·v. Curris~Palmer Hydro-Elec, Co., 81 N.Y.2d 494, 618 N.E.2d 82 [1993]).
Defendants 206 Kent Investor LLC, Cornell Realty Management LLC and Seventh Floor Services; Inc., as welI as third-party defendant Magellan, move for summary judgment to dismiss plaintiff's Labor Law§ 240(l)claimbecause they allege plaintiff was exposed to the usual arid ordinary dangers ofa construction site, and not the extraordinary elevation risks envisioned by Labor Lmv § 240(1 ). Defendants contend that because plaintiff fell onto and remained on the very piece of plywood on which he allegedly slipped, he is not entitled to summary judgment ciri his Labor Law §240(1) claim. Defendants also contend that; even if plaintiff did step into the hole, he ,vas the sole-proximate cause of his accident. The defenses of sole proximate cause and recalcitrant worker only apply where the plaintiff's conduct alone was the sole proximate cause of the harm suffered (Blake v Neighborhood Hous. Servs. ofN Y City; 1 NY3d 280,291 [2003]). Tt is "conceptually irnpossible for a statutory violation (which serves as a proximate cause for a plaintifTs injury) to occupy the same ground as a plaintifrs sole proximate cause for the injury'; (id. at 291). Thus, if a violation of Labor Lmv § 240(1}is partly to b\an1e for plaintiff's injury, the defenses M\:ecai dtrant v,ror~er and sole proximate cause are :unavailable (id).
Plaintiff contends that after he slipped and fell on the plywood, a portion of his rjgh t leg went into the.opening, indicating tlmt an eievatian difterential caused his injuries. ·PlairitifI further argues that his sHp and fall was a result of defendants' fa,ihlre to r~move a defective plank from the j oh site, the die feet. in q_ucstion being the ho Ie in the plywood. \Vhile plaintiff clatms that
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the hole in the plyv-iood oh the -scaffold was a defect, defendants contend that the hole was cteated by plaintiff and was being used to pass. materials up to the leve I where plaintiff was working. The evidence before the Court, including_plaintiff's deposition testimony, isunc;lear as to whether the hole plaintiff claims he fell into \Vas the same hole that he had been using to receive scaffold materials from his co-worker. There is also a question of fact as to whether plaintiff himself created the hole. Due to these questions of fact, plaintiff's partial motion for summary judgement as to their Labor Law§ 240(1) claim is· denied (Mot. Seq. 5), and ·defendants' (Mot Seq. 7) and third..party defendant's (Mot. Seq. 6) motions for summary judgment to dismiss plaintiff's Labor Law§ 240(1) claim ate also denied.
Labor Law§ 241 (6)
The plaintiff's motion fot summmy judgment under Labor Law § 241 ( 6) (Mot. Seq. 5) is predicated upon the alleged violation of New York Jndustrial Code provisions 23.-1.S(c)(3 ), 23- l. 7(b)(i), 23-2.S(a) and (b), 23.,5.l(e)(l ), (f) and (h). Due to the existence of triable issues offact as to the incident, and as to whether the alleged Industl'ial Code provisions were violated and \vhether they are applicable, and in turn, whether there was an actual violation of Labor Law § 24L(6), plaii1tiff's. partial motion for summary judgement as to liability und
To prevail on a cause of action pursuari.t to Labor Law§ 241(6), plaintiff must show that he was: I) on ajob site; 2} ei1gaged in qualifying wotk; 3) suffered an injury; and 4) the proximate cause of which was a violation of an Industrial Code provision (see Mosca ti v Consolidated Edison C'o. of N. Y, Inc., 168 AD3d. 717 ,. 718 [2d Dept 2019]\
§ 2J .. J.5(c){3)
the plaintii-t subtni ts that Industrial Code § 23;. i .S(c)(3) is applicable to the case .at bar. 12 NY CRR § 23-1.5, en tit! ed ;'General 1;esponsibility of employers" prnvides the following at § l.5(c)(3):
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''Condition of equip1hent and safeguards, All safety devices; safeguards and equipment in use shall be kept sound and operable, and. shall be immediately repaired or restored m immediately reri10,.;,ed from the job.site if damages." Plaintiff alleges that the plank located beneath the• plywood sheets constitutingthe scaffolding platform had a hole iri it that was not discernible to plai11tiff. A:s required for ~rviolatioi1 pursuant to § 23-1 :5(c)(J), plaintiff asserts that the defective plank should have been reinoved from the job site immediate!)' p1for to plaintiff's ac:cident. Deferidants argue that the only opening present was the one plaintiffhimseif created inorder to receive matedals through from his co-worker belo,;v him. Questions of fact exist as to whether the plank in plaintiff's work area was defective or damaged, thHs, while it niay he applicable, the plaintiff has i1ot alleged with certainty that there was a violation oflndustrial Code § 23-1.5 (c)(3).
Therefore,·smnmary judgement is denied as to § 23--1.5(c)(3), as there.are outstanding material issues of fact
§ 23-1. 7(b)(i)
IndustTial Code § 23-l .7(b)(i) addresses protection from ''Falling Hazards and Hazardous Openings''and states:
"[EJvery hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed incompliance with this· Part (rule)." As previously indicated, there is a question of fact as to whether there was a "hazardous opening" in plaintiff's working atea as contemplated by the Irtdusttial Code. Thetefore, while§ 23-1.7 (b)(i) may be applicable, plaintiff cannot allege with certainty that this section was violated as thete exist triable issues offact.
Therefore, smnmaryjudgement is denied as to§ 23-1. 7(bJ(i}, as there are outstanding material issues of fact
§ 23-2.S(a) i111d (h)
·NY Industrial·Code sections 23-2.~(a) and (bj addre.ss protection ofpersonsin shafts, with (a)(2) spedtically adcfressing protection fromJalling :\\-;ithin the shaft. These provisions are not applicable to the facts hereit1..
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§ 23-2.5(a) specifically states that it is applicable to ' 1petsons required to pedorm work in or at shafts, other than elevator shafts; .. " As plaintiff was installing a scaffold within an elevatol' shaft, this provision is not applicable.
§ 23-2.S(b )· is specific to '·protection of persons irt elevator shafts." Howevet; Suh-section (b) provides for platforms that are to be in place "during the installation, tepair or replacement of any elevator where persons are working in tbe elevator shafts.'' It is not applicable to the facts hetein; '\,vhere plaititiff was in the process of installing the very platform and scaffolding as required by this section, and the elevator shaft had not been constructed yet.
As such, both sections § 23-2.S(a) and (b) are not applicable to the facts ofthis case; ai1d are therefore dismissed,
§ 23-5.1 (e)(l) d.li<{(/) lll'ltl (It)
Industrial Code §·23-5. I (e)( I) and (f} and (h) addtess the genetal provisions for all scaffolds;
Subdivision (e)(1) provides retpfoements for scaffold planking installation and fastei1ing; such as the size.and placement of planks on a scaffold. Courts have previously dismissed this cause of action, finding thent inapplicable because the plaintiff's accident did not occur''because of any problems with the planks on the scaffold.'. (Klimo}i icz v Pmvell Cove Associates, LLC, 1
111 A.D.3d 605 [2d Dept. 201J]). ln the instantcase, it appears that plaintiff's accident did not occur due to the size or placement of the planks. Rather, he alleges thatthe plank was wet and had a hazardous opening, both of which contdbuted to his slip and fall. Therefore, thislndusttial Code sectionis not applicable, and therefore, dismissed.
Subdivisioll (£)addresses scaffold maintenance and repair, stating "every scaffold sha:llbe maintained in good repair and every defect, unsafe condition or noncompliance with this Part (rule) shall· be immediately corrected before further use of such scaffold." This se.c ti oh is. ncit applicable as the scaffold on which plaintiffs alleged incident occurred was only in the process .of being installed at the time of the incident and did not yd require mai ntenaiwe or repair. Therefore, this sectioi1 is disinissed.
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Subdivision (h) addresses '"scaffold erection and removal" stating that, ''every scaffold shall be erected and removed under the supetvision of a desi'gnated person.'' Plaintiff alleges the violation of this provision, but however, admitted that there was a foreman and other managers on site at the time of the incident (Leopoldino's EBT.at 10). 206Kent had a project manager,
Construction Consulting Company of New York LTD., assignedto this construction, and a site supervisor, SeventhFloor's Phil Spritz (206 Kent EBTat 1J and 20}. Magellan itselfalso had numerous supervisors arid fotem:en assigned to the work being performed, including the general foreman:, Da Cunha, the sub~foreman in charge on the date of loss, Raphael Candido 1 aitd a supervisor, Filippo. Both the general foreman and the supervisor were present at the time of the incident (Magellan's EBT at. I 5, 19, 23,..24). Magellan's Da Cunha specifically inspected the lower level of the decking that had been installed the day prior by Magellan, on top ofwhich the plaintiff and his ca-wol'ker, Leuis, were installing the next level on the date·ofthe alleged incident, inclt1dinga11·the componentsofsamesuch asthe decking material and OSHA planks {Magellan's EBT at 38). Da Cunha also inspected thatsame elevator shaft the day after the incident and found no concerns (id at 64-65}. Thus, this section is inapplicable, as in consideration of the record before the Cornt, there is no evidence of a violation ofindustrial Code-§ 23-5. l (h). Therefore, this section is dismissed.
As the plaintiff has not demonstrated the via lation of a specific section of the Indt1stria.l Code and there are outstanding triable issues of fact, and some of the Industrial Code sectioos are inapplicable to the facts of this case, plaintiff's 1i1otion for partial smnmary judgnient as to liability on his Labor Law§ 241(6) claini is denied. (Mot Seq. 5)
The defendants' (Mot. Seq. 7) and third-party defendant's (Mot. Seq. 6) respective motions to dismiss pla.intiff's Labor Law § 241 (6)claim as predicated upon NY Industtial Code sections 23-2.5(.a), 23.;2.5(b), 23-5. l(e)( 1), 23-5 .1 (t), and 23-5.1 (h) are granted, as they are inapplicable to the facts herein. Defendants' (Mot. Seq. 7) and third-party defendant's (Mot. Seq. 6) respecti,ie motions for si..n11tTlaty judgeme1it dismissing plaintiff's Labor Law § 241 (6) cJaim as predicated upon.sections. 23~l .5{c)(3) and.23wl .7(b)(i) are denied, as there.are outstanding material issues. of fact.
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Contractual Indemnification
The right to contractual indemnification is established by the "specific language· of the contract'; (Dos Santosv Power Auth ofState (~fNetti York, 85 AD3d 718, 722 [2d Dept 2011]; quoting George v lv!ai•shalls oflv!A, l11i:,, 61 AD3d 925, 930 [2d Dept 2009]). "In addition, a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor'' (Anderson v U11ited Parcel Serv., Inc., 194 AD3d 675 1 678 [2d Dept2021]).
With respect to.· the contractual indemnity claims and M_agel Ian's: breach of contract for their alleged failute to prnctire insurance, the requirements and obligatioris of Magella:n are set forth in the con ttact between 206 Kent and Mag~! Ian {206 Kent - Magellan Contract a:t 14-15) at A1ticles 13 at1d 14, and the Owner/Contractorrider at pages 80-83therein.
The contract and agl'eeinennidet set forth that all certificates shall contain an endorsement that the policies me primary, non-contiibutory and shall contain a \Vaiver of subrogation. The terms and conditions of insurance to be provided by the contractor, Magellan, are also defined in the contract. The contract certifies that neither o\vner, nor any otheradditional insureds; nor their agents, employees or assigns, shall be liable to contractoror its agents, employees bi" assigns fat any loss or damage covered by the insurance policy. Moreover; Article 14, the "Indem11ity" provision on page 15, also sets forth thatthe contractor has an obligation to defend, indemnify mi.d hold harmless the owner and its agents against any and all losses) liabilities, claims and causes of actions "arising out of' Magellan's work, tmless the mvner is negligent in part for the action in question.
The indemnity/hold harmless ptovisioi1s ii1 the Conti"act between defend ants and Magellan aredear and unambiguous and apply to any claim arising out of the worl<. that Magellan was contracted to perform. Plaintiff's accident arose out of and happened during the performance of his work that his employer was contracted to perform and tt'iggered the indemr1ity oh ligation; TherefMe., defimdants' motion for summary judgment with regard t9 its .contractual indemnification elm m (tvfot. Seq. 7) is· granted.
1.0
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Breach of Cori tract
Third-party defendant Magellan moves for smi.unary judgment to dismiss the claim asserted against it by third-party plaintiffs206 Kent Investor LLC, Cornell Realty Mmrngement LLC, and Seventh Floor Services Inc, for breach of contract as a result of failure to procure insurance (Mot. Seq, 6). Magellan was hired by 206 Kent. The agreement between 206 Kent and Magellan stated that Magellan was required to maintain commercial general liability coverage, ioduding contractual liability, with niinimuni limits of$2 million for each occurre11Ce and $4 million in the aggregate, and $1 million umbrella/access liability or commercial genetal liability coverage i11.Cltiding contractual liability v..rith mii1imum limits of$ I million each occmtence and $2 miHi on in the aggregate and umbrella excess Iiabili ty of $3 million. Magellan sub111 itted proof ofa certificate of insurance and the inswance policy they obtained, which appears to be in compliai1ce \Vith their contractual obligations. Magellan procured all the required insurance pqlicies pursuant to said contract, thus; third-party plaintiffs' claim for Magellan's breach of contractfor failure to procure insurance (Mot Seq. 7) is denied, and third-'party defendant Magellan's motion to dismiss (Mot. Seq. 6) is granted;
Conclusion
Plaintiff's motion for partial summary judgement pursuant to Labor Law§ 240(1) and§ 241(6) are both denied (Mot.Seq. 5).
The branch of third-party defendantMageUan's summary judgement motioi1 to disi11iss plaintiff's Labor Law § 240( 1) claim is denied. The branch ofthird-party defendant's motion for summary judgement seeking to dismiss plaintiff's Labor Law § 241 (6) clairnis gtanted to the extent that said claim is predicated uponJndustrial Code sectioi1s 23-:2.S(a), 23-2.S(b), 23- 5. l(e)Cl ), 23-5. l (f), and 23'"5. l(h), and denied as based ~pon Industrial Code sections.23- l .5(c}(3) and 23-l. 7(b )(i). The motion to dismiss. third~party pl~intiffs' 206 Kel'1t Investor LLC, CornelfRealty Mµnagement LLC, a11d Seventh Flo.or Services Inc. 1s breach ofconfract claim against them is granted as . dedded herein (Mot. Seq. 6).
Defend ants' 206 Kent Investor LLC, Corn.ell Realty Mai1agement LLC,. and Seventh .Floor Services Inc. 1s motion for summaryjudgme:nt dismissing plaintiff's claims is granted as to
ll
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Labor Law§ 200 mid § 241-a, and the branch of defetidants' motion for summary judgeh1ent seeking to dismiss plaintiff's Labor Law§ 241 (6) daimis granted to the extent that said claim is predicated upon li1dustrial Cocle sections 23-2.S(a), 23-2.S(b); 23-5. l{e)(I}, 23-5.J(f), and 23- 5.I(h), atiddeniedas based upon Industrial C,lde sections 23-l,5(c)(3) and 23-1.?(b)(i). Defendants' motion is denied as to Labor Law§ 240( 1), denied as to their claim for breach of contract against third-party defend ant Magel !an,. and gl'an ted as to contractual indemnity· against third~party defendant Magellai1 (Mot Seq. 7).
This constitutes the decision an:d order of the Court.
DATED:7 /2 l:)/2 Lf ENTER:
RON, KERRY J. wARD A.J.S.C. Hon. Kerry J. VVard, A.J.s.c.
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