3939. MARTIN GJEKA plf-res, v. IRON HORSE TRANSPORT, INC. def-res, RE-STEEL SUPPLY COMPANY, INC., Defendant-res-ap, 108-110 EAST 116TH STREET LLC, def-ap — IRON HORSE TRANSPORT, INC. Third-Party plf-ap, v. 108-110 EAST 116TH STREET LLC, Third-Party def-res, RICKY & SONS CONSTRUCTION CORP. Third-Party def — Milber Makris Plousadis & Seiden, LLP, White Plains (Otto Cheng of counsel), for appellant/res — Simonson Hess Leibowitz & Goodman, PC, New York (Steven Hess of counsel), for Martin Gjeka and Drite Gjeka, res — Thomas Torto, New York (Jason Levine of counsel), for Iron Horse Transport, Inc. and Michael Busch, res — Jaffe & Kourmourdas, LLP, New York (Jean H. Kang of counsel), for Re-Steel Supply Company, Inc., res-res — Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about June 21, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiffs’ cross motion for partial summary judgment on the issue of liability on the Labor Law §§240(1) and 241(6) claims as against defendant 108-110 East 116th Street LLC (LLC) and for leave to amend the bill of particulars to allege violations of Industrial Code (12 NYCRR) §§23-1.7(b)(1) and 23-4.2(h), denied LLC’s motion for summary judgment dismissing the Labor Law §§240(1) and 241(6) claims, and granted LLC’s motion for summary judgment dismissing the Labor Law §200, common-law negligence, and common-law indemnification claims as against it, unanimously affirmed, without costs.
Plaintiff Martin Gjeka made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law §240(1) claim, by submitting his and other witnesses’ testimony that he was directing traffic around an unguarded trench in the road measuring approximately five to eight feet deep, which was being excavated to allow new sewer lines to be installed for a building owned by LLC, when a truck owned by defendant Iron Horse Transport, Inc. and driven by defendant Michael Busch, traveling about 25 or 30 miles per hour, struck plaintiff, causing him to fall into the trench. Such testimony, as well as plaintiff’s two expert affidavits, established that his work exposed him to an extraordinary gravity-related risk, and that the absence of any safety device such as a barrier or safety railing around the trench was a violation of Labor Law §240(1) (see Dias v. City of New York, 110 AD3d 577 [1st Dept 2013]). The testimony and plaintiff’s expert affidavits further showed that a barrier on the west side of the pit, where plaintiff was working, would not have impeded the work of excavating dirt from the pit (compare Dias at 578, with Salazar v. Novalex Contr. Corp., 18 NY3d 134, 140 [2011]), notwithstanding the conclusory assertion to the contrary by LLC’s expert. LLC’s argument that the collision was unforeseeable is also unavailing (see Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315-316 [1980]).
