DECISION AND ORDER The following e-filed documents, listed by NYSCEF document number (Motion 03) 71-80, 82, 88; (Motion 05) 83, 84 and 86 were read on the plaintiff’s motion and defendant’s cross motion seeking summary judgment. Plaintiff has moved for partial summary judgment, pursuant to CPLR §3212, on his causes of action under Labor Law §§240(1) and 241(6). The defendant cross moves for summary judgment, pursuant to CPLR §§3211 and 3212, seeking dismissal of the plaintiff’s verified complaint. For the reasons set forth below, the plaintiff’s motion is granted, and the defendant’s cross motion is denied. This action arises from an accident that occurred on November 9, 2015, while the plaintiff was working on a construction project at Sing Sing Correctional Facility in Ossining, New York. The plaintiff sustained serious injuries when steel fence panels toppled over from a cart, striking the plaintiff on his face, head, neck, left ear and shoulder. At the time, the plaintiff was employed by Luxury Construction Corporation (hereinafter Luxury), a nonparty, who was hired as a subcontractor by the defendant Maximum Security Products Corporation (hereinafter Maximum), for renovations inside the prison. Plaintiff’s verified complaint alleges causes of action for common law negligence and res ipsa loquitur, and violations of Labor Law §§200, 240(1), 241(6). In support of his motion for summary judgment, the plaintiff submits the pleadings, verified bill of particulars, various court orders, the deposition transcripts of plaintiff and James Niles (hereinafter Niles), an employee of defendant Maximum, as well as various photographs depicting the plaintiff’s injuries. The plaintiff testified that he had been working on the site for approximately five to six months prior to the accident. The plaintiff further testified that Maximum’s employee, Scott Weeden (hereinafter Weeden), was responsible for overseeing the work of Mr. Foyze and his co-workers. The plaintiff’s work included painting, replacing the steel fencing in the cell blocks, installing beams on the ceilings and whatever work he was instructed to perform. According to the plaintiff’s testimony, on the day of the accident the plaintiff was working with others to replace cell block bars, also referred to as “fencing” or “grilles,” in “B Block” of the prison. At the time of the accident, the plaintiff was standing with his co-worker, “Kumar,” on the first floor waiting for the crane to lift the fence sections to the third floor. The fences had not yet been loaded onto the crane’s hook, and the plaintiff was waiting for instructions from Weeden. Maximum supplied the fences, which were loaded onto a cart (also referred to as a “platform”) by Maximum’s employees outside the building from one of its trucks, and its employees would then wheel the fencing into the building. The cart was approximately three to four feet in length and four to five feet in width. Once inside the building, the fencing was to be hoisted up from the first floor to the second and third floors by a crane operated by Weeden. The cart had wheels on the ground upon which approximately ten to twelve sections of the fences were standing. Each section of the steel fences was stored in an upright position on the cart, and weighed approximately 200 to 250 lbs. The plaintiff further testified that each section of the fence was approximately five feet wide and between five to seven feet in length. Although the plaintiff was unsure of the exact height of the fences, he testified that he was five feet eight inches tall and that the fences were taller than him. The plaintiff further stated that he observed that the cart holding the subject fences had been on the premises one to two days before the incident. He testified that on prior occasions he observed that fence sections placed on the cart were secured with a chain. Either Weeden or “Kumar” would remove the chains with a key prior to hoisting the fences onto the crane. The plaintiff did not see a rope or a chain securing the subject fence sections in their standing position on the cart prior to the accident. The plaintiff testified that he was unaware of what caused the fences to fall over from the cart, and that he did not hear or see anything to indicate that the fences were falling just prior to the impact. All of the fence sections on the cart fell onto the plaintiff, striking him first on his left ear and head. The plaintiff further testified that he was not given a hard hat to wear that day, even though they were required to wear one while on the job. The workers were not responsible for providing their own protective safety equipment, and occasionally Maximum would provide protective gear such as hard hats and safety belts when safety inspections were conducted at the site. He further testified that Maximum never held any safety meetings with the workers. The plaintiff argues that he is entitled to summary judgment under Labor Law §240(1) because the accident occurred as a result of the fences not being properly secured with a safety device, and that given the weight of the panels and the force they were able to generate when they fell, the short elevation differential between the cart and the plaintiff was not de minimis. The plaintiff also contends that he is entitled to summary judgment under Labor Law §241(6), asserting that the defendant violated provisions of the Industrial Code that gave rise to a nondelegable duty to ensure that “[a]ll areas in which construction…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…” The plaintiff relies on Industrial Code sections 12 NYCRR §23-2.1(a)(1) relating to storage of materials or equipment; 12 NYCRR §23-1.7(e)(1) and (2) pertaining to protection from general hazards; and 12 NYCRR §23-3.3 requiring regular inspections during demolition by hand. The defendant opposes the motion, and cross moves for summary judgment seeking dismissal of the complaint (Motion 05). In opposition, the defendant argues that for Labor Law §240(1) to apply the plaintiff must show that the fences fell while being hoisted or secured because of the absence or inadequacy of a safety device enumerated in the statute, and that the fences did not fall from a height that could give rise to a gravity related risk under §240(1). Notably, the defendant does not annex any exhibits to its affirmation in opposition, and cross motion, and relies solely on the plaintiff’s deposition testimony. The defendant also contends that the plaintiff’s Labor Law §240(1) claim must fail because the fences were not stored at an elevated height. With regard to Labor Law §241(6), the defendant maintains that the Industrial Code sections the plaintiff alleges were violated lack specificity with respect to the facts of this case, and are therefore inapplicable. Finally, the defendant argues that the plaintiff’s Labor Law §200 and common law negligence claims must be dismissed because Maximum did not supervise, direct or control the work, and that Luxury employee “Kumar” was the supervisor on the worksite. As an initial matter, it should be noted that in support of his motion the plaintiff submits his own unsigned deposition transcript and the unsigned deposition transcript of nonparty witness Niles. CPLR §3116(a) generally requires that the party submitting a deposition transcript in support of a summary judgment motion establish that the transcript was either signed by the deponent or that the transcript was sent to the deponent for correction and it was not signed and returned within 60 days. However, an unsigned deposition transcript may be considered by the Court as admissible evidence under CPLR §3116(a) when it is submitted by the party deponent and was adopted as accurate. See David v. Chong Sun Lee, 106 AD3d 1044 (2d Dept 2013). Here, the plaintiff has adopted his deposition testimony and it is therefore admissible evidence on his summary judgment motion. With respect to the deposition transcript of Niles, the plaintiff has failed to establish that he sent the transcript to Niles for review, pursuant to CPLR §3116(a), and therefore it is inadmissible. The proponent of a summary judgment motion must make a prima facie showing of entitlement as a matter of law, and submit sufficient admissible evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr. 64 NY2d 851 (1985). The burden then shifts to the motion’s opponent to “present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact.” Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Moreover, an attorney affirmation alone is insufficient to raise a triable issue of fact. See Browne v. Castillo, 288 AD2d 415 (2d Dept 2001). Labor Law §240(1) imposes a nondelegable duty to protect workers from elevation-related hazards while they are conducting certain enumerated work activities. The statute provides in relevant part: All contractors and owners and their agents…in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect…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. The Court of Appeals has repeatedly held that Labor Law §240(1) must be construed liberally. See Rocovich v. Consolidated Edison Co., 78 NY2d 509 (1991); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993). However, this principle is to be applied only after a violation of the statute has been established. See Narducci v. Manhasset Bay Assocs., 96 NY2d 259 (2001). In order to impose absolute liability under Labor Law §240(1) the plaintiff must show that the owner or general contractor’s failure to provide proper protection to workers employed on a construction site proximately caused injury to a worker. See Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 (2011). “Whether a plaintiff is entitled to recovery under the statute requires a determination of whether the injury is the type of elevation-related risk to which the statute applies.” Id. at 3. Significantly, the single decisive question in determining whether Labor Law §240(1) applies is “whether plaintiff’s injuries were the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential.” Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603 (2009); see also Wilinski, 18 NY3d at 6. Labor Law §240(1) applies to both “falling worker” and “falling object” cases. Id. at 8. Liability under the statute for falling objects is not limited to cases in which the falling object is in the process of being hoisted or secured. See Escobar v. Safi, 150 AD3d 1081, 1083 (2d Dept 2017) (where unsecured sheet of plywood fell from roof 20 feet high and struck plaintiff, falling object liability was established under Labor Law §240(1) where the plaintiff demonstrated that the falling object “required securing for the purposes of the undertaking”); Andresky v. Wenger Constr. Co., Inc., 95 AD3d 1247 (2d Dept 2012) (finding liability under Labor Law §240(1) even though the falling object did not strike the worker because the object required securing for the purposes of the undertaking); Outar v. City of New York, 286 AD2d 671 (2d Dept 2001), affd 5 NY3d 731 (2005) (falling object liability established where the plaintiff was injured when an unsecured dolly fell on him from a bench wall 5½ feet above him as he was lifting pieces of track). Further, a short elevation differential between a worker and a falling object is not considered de minimis if the weight of the object and the force it is capable of generating on its descent is significant. See Wilinski, 18 NY3d at 6. In Wilinski, the Court of Appeals articulated that its “jurisprudence defining the category of injuries that warrant the special protection of Labor Law §240(1) has evolved over the last two decades,” and enunciated the core premise that “a defendant’s failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability.” Id. at 4. Wilinski involved an injury that occurred as a result of the fall of two unsecured metal vertical pipes which were 10 feet tall and were located on the same level as the plaintiff. The pipes fell four feet and landed on the plaintiff, who was five feet eight inches tall, striking him on his head, shoulder and arm. The Appellate Division, First Department, partially granted the defendants’ summary judgment motion, dismissing the plaintiff’s Labor Law §240(1) claim, finding that since both the pipes and the plaintiff were at the same level at the time of the collapse the elevation differential was not sufficient to impose liability. The Court of Appeals rejected the reasoning of the Appellate Division in Wilinski, as well as other intermediate appellate courts that had previously found that no liability can attach where the plaintiff and the base of the falling object stood on the same level. In soundly rejecting the “same-level” rule, the Court of Appeals adopted the reasoning set forth in Runner v. New York Stock Exch., Inc., 13 NY3d 599, with respect to falling object cases. Runner involved a novel set of circumstances that did not involve a falling worker or a falling object. The plaintiff in Runner was injured while moving an 800-pound reel of wire down a flight of four stairs using a 10-foot length of rope wrapped around a metal bar. As the reel descended, the plaintiff was pulled into the metal bar, injuring his hands as they jammed against it. The Court of Appeals held that “the relevant inquiry…is whether the harm flows directly from the application of the force of gravity to the object.” Id. at 604. In Runner, the Court of Appeals found that the “elevation differential…[could not] be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent.” Id. at 605. The Court of Appeals in Wilinski concluded that the height differential between the unsecured pipes, which stood 10 feet tall and toppled over to fall at least four feet before striking the plaintiff, was not de minimis given the amount of force the pipes were able to generate over their descent. However, the Court determined that under the unique set of facts presented, there was a question of fact as to whether the plaintiff’s injury “was the direct consequence of [defendants'] failure to provide adequate protection against [that] risk.” Wilinski, 18 NY3d at 7, quoting Runner, 13 NY3d at 603 (internal quotation marks omitted). The Appellate Division, Second Department, has regularly found liability under Labor Law §240(1) in circumstances where either the plaintiff and the falling object were on the same level or the object traveled only a short distance before striking the worker. See McCallister v. 200 Park, L.P., 92 AD3d 927, 928-929 (2d Dept 2012) (“although the base of the scaffold was at the same level as the plaintiff and the scaffold only fell a short distance, given the combined weight of the device and its load, and the force it was able to generate over its descent, this difference was not de minimis”); Pritchard v. Tully Constr. Co., Inc., 82 AD3d 730 (2d Dept 2011) (finding liability under Labor Law §240(1) when an unsecured motor weighing 300 to 350 pounds fell two to three feet onto the plaintiff who was standing beneath it); Gutman v. City of New York, 78 AD3d 886, 887 (2d Dept 2010) (the rail that fell on the plaintiff traveled only 12 to 16 inches before striking him, however the elevation differential was not de minimis given the weight of the object and the amount of force it was capable of generating “even over the course of a relatively short descent”). In the case at bar, the plaintiff has submitted admissible evidence establishing his prima facie entitlement to summary judgment as a matter of law based on Labor Law §240(1). The defendant has failed to raise a triable issue of fact in opposition. The affirmation of defense counsel is insufficient to defeat the plaintiff’s prima facie case. Likewise, the defendant has failed to establish its prima facie entitlement to summary judgment seeking dismissal of the complaint on its cross motion. The facts of the instant case are analogous to those presented in Wilinski and Runner. The plaintiff’s injuries were the direct consequence of the defendant’s failure to properly secure the fences to prevent them from falling, and the harm flowed directly from the application of the force of gravity to the fences. The plaintiff testified that on previous occasions he had observed that when the fences were placed on the cart they were secured with a chain, which either Weeden or “Kumar” would remove with a key prior to placing the fences on the crane. On the day of his accident, the plaintiff did not see a rope or a chain securing the fences. Furthermore, the cases cited by the defendant in opposition, and in support of its cross motion, are inapposite to the facts of the instant case. Contrary to the defendant’s contentions, it is well-settled that in order to maintain a Labor Law §240(1) claim the plaintiff need not establish that the falling object was in the process of being hoisted or secured. See Escobar v. Safi, 150 AD3d 1081; Andresky v. Wenger Construction Co., Inc., 95 AD3d 1247; Outar v. City of New York, 286 AD2d 671. Likewise, the defendant’s argument that liability cannot be established because the plaintiff and the fences were at the same level is also without merit. As discussed supra, in Wilinski the Court of Appeals clarified the issue of what constitutes a physically significant elevation differential. The determinative factor is not whether there was a sufficient height differential between the plaintiff and the falling object, but rather whether the height differential is de minimis in light of the weight and size of the falling object. Here, the plaintiff testified that each of the eleven fences that fell on him weighed between 200 and 250 pounds, and stood taller than the plaintiff’s height. Given the weight of the unsecured fences and the amount of force they were capable of generating as they fell onto the plaintiff, the elevation differential was not de minimis. As such, the plaintiff’s motion for summary judgment on the issue of liability under Labor Law §240(1) is granted. In light of the foregoing, it is unnecessary to address the remaining prong of plaintiff’s motion based on Labor Law §241(6) and those prongs of the defendant’s cross motion seeking dismissal of the plaintiff’s complaint based on Labor Law §§241(6) and 200. The remaining contentions are without merit. Accordingly, it is hereby ORDERED, the plaintiff’s motion for summary judgment on the issue of liability under Labor Law §240(1) is GRANTED; and it is further ORDERED, that the remaining branches of plaintiff’s motion and defendant’s cross motion are DENIED as moot. Note: This signature was generated electronically pursuant to Administrative Order 86/20 dated April 20, 2020. Dated: February 18, 2021
