ADDITIONAL CASES Faiz Abbas, Third-Party Plaintiff v. Kamal Ghatas, Third-Party Defendant Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Answering Affidavits 2 Replying Affidavits 3 Exhibits Other DECISION/ORDER Upon the foregoing papers, defendant’s motion for summary judgment (Seq. 002) is decided as follows: Factual Background Plaintiff commenced this action to recover for damages he claims he sustained on March 19, 2022 when he was struck by a “metal stud” that “sprung out from the wall” while he was demolishing that wall (Khalil EBT at 59). Plaintiff was a self-identified handyman who was performing demolition work at a premises owned by defendant Faiz Abbas. Plaintiff testified that he was hired by and that his work was directed by Mr. Abbas (Khalil EBT at 25, 29, 30). Plaintiff also testified that asked for gloves to perform his work and that Mr. Abbas said he was going to get some, but directed plaintiff to continue working in the interim (id. at 151). Analysis On a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that there are no triable issues of material fact (Giuffrida v. Citibank, 100 NY2d 72, 81 [2003]). Once a prima 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 (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). Labor Law §240 (1) Defendant argues that plaintiff’s injury was not caused by his falling or by an object falling on him, or otherwise by the flow of gravity to his person, and that plaintiff therefore does not have a claim under Labor Law §240 (1) (see Runner v. New York City Stock Exchange,. Plaintiff also does not offer any opposition to this part of defendant’s motion. Defendant is therefore granted summary judgment dismissing the plaintiff’s Labor Law §240 (1) cause of action. Labor Law §241 (6) To prevail on a cause of action pursuant to Labor Law §241 (6), plaintiff must show that he was (1) on a job site, (2) engaged in qualifying work, and (3) suffered an injury (4) the proximate cause of which was a violation of an Industrial Code provision (Moscati v. Consolidated Edison Co., of N.Y., Inc., 168 AD3d 717, 718 [2d Dept 2019]). Defendant requests summary judgment dismissing the plaintiff’s Labor Law §241 (6) cause of action on the basis that plaintiff does not cite any specific violations of the New York Industrial Code. Plaintiff in opposition identifies a number of purported violations of OSHA safety regulations and the New York Fire Code. However, the sections listed as violations cannot support a Labor Law §241 (6) cause of action (Vernieri v. Empire Realty Co., 219 AD2d 593, 598 [2d Dept 1995]). Defendant’s motion is therefore granted dismissing plaintiff’s Labor Law §241 (6) cause of action. Labor Law §200 Labor Law §200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work” (Pacheco v. Smith, 128 AD3d 926, 926 [2d Dept 2015]). Thus, claims for negligence and for violations of Labor Law §200 are evaluated using the same negligence analysis (Ortega v. Puccia, 57 AD3d 54, 61 [2d Dept 2008]). “[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law §200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work. Although property owners often have a general authority to oversee 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 work product is insufficient to impose liability under Labor Law §200. A defendant has the authority to supervise or control the work for purposes of Labor Law §200 when that defendant bears the responsibility for the manner in which the work is performed” (id. at [internal citations omitted]). Plaintiff testified that defendant Abbas was present at the worksite and told plaintiff how he should perform his work (see e.g. Khalil EBT at 60). Defendant Abbas denied this allegation, testifying that the only worker he hired at the site was Kamal Ghatas and that Mr. Abbas did not give instructions to any other workers at the site (Abbas EBT at 31-32; 36). Plaintiff and defendant also disagree on the question of who hired plaintiff (Khalil EBT at 30; Abbas EBT at 36). There are further differences in plaintiff’s and defendant’s testimony as to whether Mr. Abbas was asked for gloves so that the plaintiff could perform his work. Plaintiff testified that he asked for gloves and was not given any (Khalil EBT at 69, 75). Defendant testified that he was not asked for gloves and that it was not his responsibility to provide them because he did not hire the plaintiff (Abbas EBT at 53-54, 75). Because questions of negligence are ordinarily fact-specific, they do not usually warrant summary judgment (see Ugarriza v. Schmieder, 46 NY2d 471 [1979]). Here, there is a material issue of fact about defendant-owner Abbas’ involvement in the project and therefore his liability under Labor Law §200. Therefore, defendant’s motion for summary judgment is denied. Indemnification and Contribution Due to the questions of fact about defendant’s negligence, he is not entitled to summary judgment on his third-party claims for common-law indemnification and contribution (see Anderson v. United Parcel Serv., Inc., 194 AD3d 675, 678 [2d Dept 2021]). Conclusion Defendant’s motion is granted to the extent of dismissing plaintiff’s claims under Labor Law §§240 (1) and 241 (6). Defendant’s motion is denied as to summary judgment on plaintiff’s Labor Law §200 and general negligence claims. This constitutes the decision and order of the court. Dated: March 11, 2024
