The following papers number 1 to 4 read herein: Papers Numbered Notice of Motion and Affidavits (Affirmations) Annexed 1-2 Opposing Affidavits (Affirmations) 3 Reply Affidavits (Affirmations) 4 DECISION/ORDER Upon the foregoing papers, plaintiff Koba Mushkudiani (“Mushkudiani”) moves for an order granting summary judgment on liability pursuant to Labor Law §§§240(1), 241(6) and 200/common law negligence, against defendants Racanelli Construction Group Inc. (“Racanelli”), X & Y Development Group (“X & Y”), and Fleet Financial Group Inc. (“Fleet”). Defendants Racanelli, X & Y, Fleet and Jiqing Development Inc.1 (collectively “Defendants”) oppose Plaintiff’s motion. BACKGROUND Plaintiff seeks to recover monetary damages for personal injuries allegedly sustained, during the course of his employment2, on January 27, 2017. On the day of the accident, Plaintiff’s job was to assist in the installation of windows at a building located at 42-31 Union Street, Queens, New York, which was under construction. Defendant X & Y is the owner of the subject premises. Defendant Fleet was the lessee of the subject premises. Fleet was also the developer of the project, and was responsible for hiring contractors to perform the construction work. Several general contractors worked on the job including, Racanelli and Perini Group Inc. (“Perini”). Racanelli hired sub-contractor, NASN, for curtain wall installation. On the day of the accident, plaintiff was working in the middle of the 18th floor in the interior of the building when he picked up a dolly and stepped on a piece of plywood which was covering a hole in the floor. The plywood broke and plaintiff fell through the hole from the 18th to the 16th floor. Plaintiff commenced this action against defendants, including Racanelli, X&Y, Fleet, and Jiqing, among others. Defendants Racanelli, X & Y, Fleet and Jiqing interposed answers with cross-claims. The instant motion for summary judgment followed. STANDARD FOR SUMMARY JUDGMENT Summary judgment is a drastic remedy that deprives a litigant of his day in court and thus, should only be employed when there is no doubt as to the absence of triable issues of material fact (see Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept 2005]); see also Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). “[T]he 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” (Manicone v. City of New York, 75 AD3d 535, 537 [2d Dept 2010], quoting Alvarez v. Prospect Hosp, 68 NY2d 320 [1986]; see also Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Winegrad v. New York Univ Med Ctr, 64 NY2d 851, 853 [1985]; Silllman v. Twentieth Century-Fox Film Corp, 3 NY2d 395, 404 [1957]). The motion should be granted only when it is clear that no material and triable issue of fact is presented (see Di Mena & Sons v. City of New York, 301 NY 118 [1950]). If the existence of an issue of fact is even arguable, summary judgment must be denied (see Phillips v. Kantor & Co, 31 NY2d 307, 311 [1972]; Museums at Stony Brook v. Vil of Patchogue Fire Dept, 146 AD2d 572 [2d Dept 1989]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman 49 NY2d at 557). Labor Law §240 (1) Claims Plaintiff moves for summary judgment on liability under Labor Law 240(1) against defendants. Labor Law 240 (1) provides, in pertinent part, that: “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, [or] altering…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.” “[T]he duty imposed by Labor Law 240 (1) is non-delegable and…an owner is subject to liability for violation thereof regardless of whether actual supervision or control over the work” has been exercised (see Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500 [1993]). “To establish liability pursuant to Labor Law 240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his injuries (see Viera v. WFJ Realty Corp., 140 AD3d 737, 738 [2d Dept 2016]; see Blake v. Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280, 286-87 [2003]; see Cabrera v. Bd. of Educ. of City of New York, 33 AD3d 641, 642 [2d Dept 2006]). “Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his own injuries, there can be no recovery under Labor Law 240(1)” (Garcia v. Mkt. Assoc., 123 AD3d 661, 663 [2d Dept 2014]; citing Blake v. Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280, 290 [2003]). Although any purported contributory or comparative negligence of the plaintiff is not a defense in an action brought under the statute (see Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 521 [1985]), the case law has held that the “recalcitrant worker” is a valid defense to a claim under Labor Law 240(1) (see Gordon v. Eastern Ry Supply Inc, 82 NY2d 555, 562 [1993]). This defense requires the defendant to show that the injured worker had safety devices available to him, provided by the owner or employer, yet plaintiff refused to use them (Id.). In the case at bar, plaintiff has demonstrated that defendants X&Y and Racanelli are covered defendants under Labor Law 240 (1), since X &Y is the owner of the subject building and Racanelli was the general contractor. Defendant Fleet, as lessee, is also a covered defendant under the Labor Law, since it is well settled that where a lessee acts in the place of an owner, it will be responsible as an owner under Labor Law 240(1) (see Buonassisi v. Sears, Roebuck & Co, 43 AD2d 701, 703 [2d Dept 1973]. Here, Fleet, as developer of the construction project, fulfilled the role of owner, since it was responsible for hiring both the general contractors and sub-contractors. As a result, defendants are subject to the requirements imposed by Labor Law 240(1). It is undisputed that plaintiff was tasked with installing windows in the exterior walls of the building otherwise known as curtain walls. Plaintiff testified that at the time of the accident he went to move a window, about 800 kilograms or 1,760 pounds in weight, from a stockpile located near the middle wall, which was approximately 24 to 25 feet from the edge of the building where the windows were to be installed into an exterior wall. Plaintiff testified that he had picked up a dolly with the intent of loading a window onto it, so that the window could be pushed to the edge of the building for installation. As plaintiff picked up the dolly, he turned around and stepped onto a piece of plywood that was covering a hole close to the middle wall. The plywood broke, causing plaintiff to fall through a three to four feet square hole from the 18th to 16th floor. Plaintiff was wearing his harness at the time of the incident, but his lanyard was not tied onto an anchor point or holder. Plaintiff testified that it was not necessary to be tied on where the plywood broke because it was a significant distance from the outside edge of the building. Plaintiff further testified that had he been tied on, he would not have reached the stockpile in the middle of the floor. Here, plaintiff was injured while engaged in a task that entailed an elevation-related risk, since the planks from which the plaintiff fell were being utilized in the performance of his work and were, under the circumstances, the functional equivalent of a scaffold meant to prevent the plaintiff from falling (see De Jara v. 44-14 Newtown Rd. Apt. Corp., 307 AD2d 948, 950 [2d Dept 2003]). While plaintiff’s reliance on violation of Occupational Safety and Health Regulation, 29 CFR 1926.501 is misplaced in the context of a Labor Law 240(1) violation, the Court finds that plaintiff has established prima facie entitlement to summary judgment since plaintiff demonstrated that the accident resulted from 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, 605 [2009]). However, relying on deposition testimony, defendants have raised triable issues of fact as to whether plaintiff’s conduct was the sole proximate cause of his injuries and whether plaintiff is a recalcitrant worker under Labor Law 240(1). According to the deposition testimony in support of the motion, Gocha Modebadze (“Modebadze”), plaintiff’s co-worker, testified that workers did not need to tie on when they were in the interior of the building, and that workers tied on when they were near the edge of the building. By contrast, Carlos Coto (“Coto”), the assistant superintendent at the construction site, and employee of Perini, testified that he told all workers performing window installations, to tie on their harness, even if workers were working inside the building. Although not a mandatory requirement, Coto testified that he instructed workers to develop the habit of being tied onto the harness, so that once they got to the edge of the building, they were already tied on. Coto testified that plaintiff, who does not speak English, understood this direction. Coto’s testimony is consistent with the testimony of Xi Verfenstein (“Verfenstein”), on the issue of whether or not harnesses were required to be tied on when doing interior work. Verfenstein, owner of non-party Perini, also testified. She stated that curtain wall workers, were supposed to be tied onto the fall protection system, even when they were not installing the curtain wall because the 18th floor had a very small footprint and as a worker moved around the floor, he might come closer to the edge of the building. Additionally, Verfenstein testified that a person working right in the middle of the floor, equidistant from all four corners of the 18th floor could reach up and find an anchor point. The Court finds that the deposition testimony raises triable issues of fact as to: 1) whether workers tasked with window installation were required to clip onto their harnesses with lanyards, in the interior the building and thus, whether plaintiff was the sole proximate cause of his accident by performing the window installation work in the interior of the building without a tie-on to his harness; and 2) whether plaintiff refused to connect his lanyards to the anchor points inside the building, and thus, was a recalcitrant worker. Labor Law 241(6) Claims Plaintiff moves for summary judgment against defendants under Labor Law 241(6), which imposes a nondelegable duty on owners and contractors to provide reasonable protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-02 [1993]). In the case at bar, plaintiff contends defendants violated Labor Law 241(6) violation based on non-compliance with the Industrial Code Rule 23, 12 NYCRR 23-1.7 [b][1][i], which states that “every 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 in compliance with this Part [rule].” The Court finds that plaintiff has established prima facie entitlement to summary judgment as a matter of law, since the floor opening in which the plywood covered was large enough for plaintiff’s body to fall from the 18th to 16th Floor. Defendants, in opposition, have raised triable issues of fact through the deposition testimony of Coto and co-worker Modebadze which indicate that the plywood was fastened in place by nails. Labor Law 200 Claims Labor Law 200 (1) provides, in pertinent part, that: “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 common-law negligence which imposes a duty upon owners and general contractors or their agents to provide workers with a safe place to work. It is well settled that an implicit precondition to this duty is that the party to be charged with that obligation “have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition” (Russin v. Picciano & Son, 54 NY2d 311, 317 [1981] [emphasis supplied][internal citations omitted]; see also, Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 505-506; Lombardi v. Stout, 80 NY2d 290, 295 [1992]). Where, as alleged here, a defendant property owner provides a worker with a dangerous or defective piece of equipment, having either created the dangerous or defective condition or having actual or constructive notice of it, the defendant is possessed of the authority, as owner, to remedy the condition (Chowdhury v. Rodriguez, 57 AD3d 121, 130 [2d Dept 2008]). Plaintiff argues that defendants failed to adequately cover the hole and, thus, created a dangerous condition. Additionally, plaintiff cites the testimony of Coto to establish actual notice. In this regard, Coto stated that he was aware of the plywood covering the hole, it was affixed by nails because he had checked it, and even tripped over it, multiple times prior to the accident. Based on these circumstances, plaintiff has established prima facie entitlement to summary judgment under Labor Law 200. In opposition, defendants indicate that Coto was not an employee of either defendant Fleet or defendant X & Y, but instead was employed by Perini. Defendants point to Perini’s contract with Fleet, which shows that Perini was responsible for providing supervision, materials, and scaffolding at the construction site. Defendants also rely on Coto’s testimony to show that they did not have notice since Coto was only responsible for fire safety on the construction site and was not the site safety manager, and that, in any event, Coto did not inform them that the hole was not adequately covered and presented a dangerous condition. Accordingly, the Court finds a triable issue of fact exists as to whether defendants directed, supervised, and controlled plaintiff’s work and whether defendants had actual or constructive notice of the of the dangerous condition (i.e uncovered hole) at the time of the accident. Based on the foregoing, plaintiff’s motion for summary judgment on liability pursuant to Labor Law §§§240(1), 241(6) and 200 against defendants Racanelli Construction Group Inc., X & Y Development Group and Fleet Financial Group Inc. is denied in its entirety. This constitutes the decision/order of the Court. Dated: June 23, 2020
