The following papers were read on this motion by plaintiff for an order, pursuant to CPLR 3212, granting summary judgment on the Labor Law §§240 (1) and 241 (6) causes of action; and cross-motion by defendants CLS Project Solutions, Inc., 88-12 Queens Boulevard, LLC, ZP Elmhurst LLC, AHC Medical Management, LLC and Zwanger & Pesiri Radiology Group, LLC (collectively defendants) for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint. Papers Numbered Notice of Motion, Affirmation, Affidavit, Exhibits E6-20 Opposition to Cross-Motion, Affirmation, Exhibits E25-28 Notice of Cross-Motion, Affirmation, Exhibits E29-36 Affirmation In Reply E37-47 ADDITIONAL CASES CLS Project Solutions, Inc., Third-Party Plaintiff, v. Alliance Welding Services Corp., Third-Party Defendant. CLS Project Solutions, Inc., Second Third-Party Plaintiff, v. Alliance Welding & Steel Fabricating, Inc., v. Second Third-Party Defendant. Upon the foregoing papers, it is ordered that the motion and cross-motion are determined as follows: Plaintiff alleges that he was injured in the course of his employment when he fell from a pipe scaffold approximately 6 feet in height without any guardrails, and which was improperly “decked” as the platform did not have an adequate number of planks, after his co-worker lost his grip on an angle iron they were installing, causing the deck of the scaffold to move. Plaintiff commenced this action against defendants alleging, inter alia, violations of Labor Law §§240 (1) and 241 (6). Defendant 88-12 Queens Boulevard LLC was the owner of the premises, defendants Zwanger-Pesiri Radiology Group, LLC and AHC Medical Management, LLC were tenants that contracted for the renovation work, and defendant CLS Project Solutions, Inc. was the general contractor, which hired plaintiff’s employer, Alliance Welding & Steel Fabricating, Inc., the steel subcontractor. Labor Law §240 (1) imposes a nondelegable duty upon owners, general contractors, and their agents, to provide scaffolding which is “so constructed, placed and operated as to give proper protection” to employees using it (Labor Law §240 [1]). To make a prima facie showing of liability under Labor Law §240 (1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries (see Felix v. Klee & Woolf, LLP, 138 AD3d 920, 921 [2d Dept 2016]). The burden then shifts to the defendant to raise a triable issue of fact (see Bermejo v. New York City Health & Hosps. Corp., 119 AD3d 500, 502 [2d Dept 2014]). A worker’s comparative negligence is not a defense to a cause of action under Labor Law §240 (1) (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 286 [2003]; Rapalo v. MJRB Kings Highway Realty, LLC, 163 AD3d 1023, 1024 [2d Dept 2018]). Rather, only where the worker’s own conduct is the sole proximate cause of the accident is recovery under Labor Law §240 (1) unavailable (see Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554 [2006]; Rapalo v. MJRB Kings Highway Realty, LLC, 163 AD3d at 1024). Here, plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of defendants’ liability on the Labor Law §240 (1) cause of action. Plaintiff’s fall from an inadequately constructed scaffold, based on the condition or placement of the planks and the absence of guardrails, inter alia, while engaged in an activity enumerated under the statute creates a presumption that the scaffold did not afford proper protection and was a proximate cause of his injuries (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at 289 n 8; Bland v. Manocherian, 66 NY2d 452, 461 [1985]; Bermejo v. New York City Health & Hosps. Corp., 119 AD3d 500 [2d Dept 2014]; Tapia v. Mario Genovesi & Sons, Inc., 72 AD3d 800 [2d Dept 2010]; Heffernan v. Bais Corp., 294 AD2d 401, 403 [2d Dept 2002]; Dos Santos v. State of New York, 300 AD2d 434, 434 [2d Dept 2002]; Klapa v. O&Y Liberty Plaza Co., 218 AD2d 635, 636 [1st Dept 1995]). In opposition, defendants have failed to raise a triable issue of fact. Defendants argue that plaintiff failed to utilize a harness, and that this conduct was the sole proximate cause of the accident. Additionally, defendants, in mere conclusory fashion, that had plaintiff used a harness, he would not have been injured. This bare assertion is insufficient to raise a triable issue of fact as to whether the absence of a harness was the sole proximate cause of the accident. Plaintiff testified at his deposition that there was no place to tie off a lanyard while he was working from the scaffolding and that the retractable lanyards were too long and would not have prevented him from falling even if he had been able to tie off (see Moniuszko v. Chaiham Green, Inc., 24 AD3d 638, 638-39 [2d Dept 2005]; Gaffney v. BFP 300 Madison II, LLC, 18 AD3d 403, 404 [1st Dept 2005]; Kouros v. State of New York, 288 AD2d 566, 567 [3d Dept 2001]). To recover under Labor Law §241 (6), a plaintiff must establish the violation of an Industrial Code provision, which sets forth specific, applicable safety standards, in connection with construction, demolition, or excavation work (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502-505 [1993]). Turning to the regulation at issue here, Industrial Code provisions 12 NYCRR 23-5.1 (c) (2) and (e) (1) provide that “[e]very scaffold shall be provided with adequate horizontal and diagonal bracing to prevent any lateral movement,” and “[s]caffold planks shall be laid tight and inclined planking shall be securely fastened in place.” In light of the evidence, that the scaffold was unsecured and lacked any guardrail, plaintiff made a prima facie showing of his entitlement to summary judgment under the statute with respect to 12 NYCRR 23-5.1 (c) (2). Plaintiff’s “deposition testimony establishe[d] that a proximate cause of his injury was the unsecured scaffold planks, which shifted when he stepped on the platform” because of missing planks (Kristo v. Board of Educ. of City of New York, 134 AD3d 550, 551 [1st Dept 2015]; see 12 NYCRR [e] [1]). In opposition, defendants failed to raise a triable issue of fact. Accordingly, plaintiff’s motion for summary judgment on the Labor Law §§240 (1) and 241 (6) causes of action is granted, defendants’ cross-motion for summary judgment dismissing the complaint is denied. This constitutes the decision and order of the court. Dated: December 9, 2020
