The following papers have been read on this motion: Plaintiff’s Notice of Motion for Summary Judgment and Supporting Papers [001] X Defendants’ Affirmation in Opposition and Supporting Papers [001] X Plaintiff’s Reply Affirmation [001] X DECISION AND ORDER ON MOTION Upon the foregoing e-filed papers, the motion filed by the Plaintiff, M.N., ["Plaintiff"], for an Order pursuant to CPLR 3212 granting him summary judgment on the issue of liability against the Defendants, THE MARCUS ORGANIZATION, INC. ["TMO"], STEEL CAMPUS, LLC ["STEEL CAMPUS"] and MARCUS ISP APTS HOLDINGS, LLC ["MARCUS ISP" and collectively "Defendants"], on the Plaintiff’s New York State Labor Law §240(1) cause of action and the Labor Law §200 and common law negligence causes of action, is determined as set forth below: The Plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when a wall collapsed upon him during an asbestos abatement and interior demolition phase of a large scale renovation project. The Plaintiff’s workplace accident occurred on October 25, 2021, inside of 300 C. Avenue, Building #3, which is located in the County of Suffolk, City of Central Islip and the State of New York [the "Building" or "Premises"], and is part of the Belmont at Eastview project. The Belmont at Eastview project involved a major renovation/reconstruction of approximately 14 buildings to create a luxury apartment complex [the "Project"]. The Plaintiff contends that STEEL CAMPUS and MARCUS ISP are liable as owners of the subject Building where the accident occurred, and that Defendant TMO was the general contractor for the subject Project, and failed to carry out its responsibilities of conducting and/or documenting site safety inspections to identify unsafe conditions. TMO hired nonparty PAL to perform asbestos abatement work on the Project. PAL, in turn, employed the Plaintiff to work on the Project at the time of the accident. The Plaintiff contends that the subject wall that collapsed was not secured or braced in any way to prevent its foreseeable collapse or to prevent workers from being injured by its foreseeable collapse; Plaintiff further contends that the wall collapsed while the Plaintiff was walking by it to retrieve a tool to work on a different, nearby wall; that the Plaintiff did not touch the wall that collapsed; and that the Plaintiff did not fail to heed any instruction and did not take any action contrary to his supervisor’s directives. The Plaintiff now seeks summary judgment on the issue of liability. In a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, by submitting sufficient evidence to demonstrate the absence of a material issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). The “[f]ailure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers”. (Alvarez, 68 NY2d at 324). “A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings, and by other available proof, such as depositions and written admissions”. (Poon v. Nisanov, 162 AD3d 804, 806 [2d Dept 2018]). The movant’s submissions “must show ‘that there is no defense to the cause of action or that the cause of action or defense has no merit’”. (Poon, 162 AD3d at 806). “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”. (Debennedetto v. Chetrit, 190 AD3d 933, 935 [2d Dept 2021][citations omitted]). “The burden then shifts to the defendant to raise a triable issue of fact”. (Id.; citations omitted). Labor Law §240(1) provides, in pertinent part, as follows: “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, 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.” (Labor Law §240[1]). In this case, the Court finds that the Plaintiff failed to establish, prima facie, that his injuries were caused by the type of “elevation-related” hazards which are covered by Labor Law §240(1). Accepting the Plaintiff’s testimony as true, the Plaintiff’s accident occurred when he walked by an unsecured wall and the wall collapsed on him. The wall that allegedly collapsed on the Plaintiff was not the wall he was working on, nor had he ever worked on that wall or been instructed to work on that wall that collapsed. The Plaintiff contends that the Defendants are liable because they failed to ensure that all walls were secured/braced before all asbestos-removal work in the area. However, the Court finds that under governing case law, the Plaintiff failed to establish that his worksite accident is covered by Labor Law §240. In Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 490-91 [1995], the Court of Appeals examined the intended scope of Section 240(1), and held that the statute did not apply to a case where a completed firewall collapsed on a mason hired to perform masonry work in the construction of certain townhouses. The collapse of the completed, concrete-block fire wall caused the mason’s injuries and, according to his lawsuit, his death two years later. Before the wall collapsed, the Decedent and his co-worker had dismantled scaffolding used to erect the completed fire wall and they were sweeping the flooring in the area. Masons had not yet vertically braced the wall with the 2 feet by 10 feet wooden planks that were on the worksite. The Court of Appeals held that the Decedent’s accident was not the type of “elevation-related” accident that Section 240(1) is intended to guard against, but is instead the type of peril a construction worker usually encounters on the job site. As the Court of Appeals explained: “Section 240, known as the ‘Scaffold Law,’ has historically been construed in the context of workers injured as a result of inadequate or missing safety equipment at elevated work sites…It is in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites that section 240(1) prescribes safety precautions for workers laboring under unique gravity-related hazards…Indeed, the type of protective devices enumerated by section 240(1) predominantly concern those used on elevated work sites ‘either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured’ (Rocovich v. Consolidated Edison Co., 78 NY2d, at 514, supra; see also, Labor Law §240[1] [listing "scaffolding," "hoists," "stays," "ladders," "slings," "hangers," "pulleys," "braces" and "ropes" to name a few of the devices]; cf., Labor Law §241 [6]). In this context, we construe the ‘braces’ referred to in section 240 (1) to mean those used to support elevated work sites not braces designed to shore up or lend support to a completed structure.” (Misseritti, 86 NY2d at 490-491; internal citations omitted, emphasis supplied). The Court finds that the facts of the two cases cited by the Plaintiff involving wall collapses are distinguishable from the facts of the Plaintiff’s case. The Plaintiff acknowledges that the Misseritti case addresses the issue of whether the Plaintiff was exposed to an elevation-related risk. However, the Plaintiff fails to distinguish the wall collapse in this case from the wall collapse involved in Misseritti, and under the analysis employed by the Court of Appeals in Misseritti, the Court finds that the Plaintiff has failed to establish, prima facie, that he was exposed to a covered elevation-related risk in connection with his workplace accident. Additionally, even if, arguendo, the Plaintiff was exposed to the type of elevation-related risk that is covered under Labor Law §240(1), the Court finds that the Plaintiff failed to establish prima facie that the subject “building was in such an advanced state of disrepair and decay…that the Plaintiff’s work…exposed him to a foreseeable risk of injury from an elevation-related hazard, and whether the absence of a type of protective device enumerated under Labor Law §240(1) was a proximate cause of his injuries”. (Shipkoski v. Watch Case Factory Associates, 292 AD2d 587, 589 [2d Dept 2022][citations omitted][emphasis supplied). Therefore, the portion of the Plaintiff's motion which seeks summary judgment on the issue of the Defendants' liability on the Plaintiff's Labor Law §240(1) cause of action shall be DENIED. The Plaintiff also seeks summary judgment on his Labor Law §200 and common law negligence causes of action. "Labor Law §200 codifies the common-law duty…to provide employees with a safe place to work"…and applies to owners, contractors, and their agents… 'Cases involving Labor Law §200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed'… '[W]hen the manner and method of work is at issue in a Labor Law §200 analysis’ the issue is ‘whether the defendant had the authority to supervise or control the work’…On the other hand, ‘[w]hen a claim arises out of an alleged dangerous premises condition, a property owner or general contractor may be held liable in common-law negligence and under Labor Law §200 when the owner or general contractor has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it’”. (Rodriguez v. HY 38 Owner, LLC, 192 AD3d 839, 841 [2d Dept 2021] [internal citations omitted]). The Plaintiff argues that this case involves a “dangerous or defective premises condition at a work site”, so that the standard is whether the Defendants “either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident. (Ramirez v. Metro. Transp. Auth., 106 AD3d 799, 801 [2d Dept 2013]). However, the Plaintiff must also establish, prima facie, that “the owner or general contractor has control over the work site”, and that the owner or general contractor created or had actual or constructive notice of the condition. (Rodriguez v. HY 38 Owner, LLC, 192 AD3d 839, 841 [2d Dept 2021]; see also, Abelleira v. City of New York, 120 AD3d 1163, 1164 [2d Dept 2014]). The Plaintiff failed to establish, prima facie, that the Defendants had control over the work site. To the contrary, the Plaintiff’s statement of facts acknowledges that the Defendants were not permitted to enter the worksite due to the nature of the asbestos abatement work being performed. (Plaintiff’s statement of facts asserts that “For PAL to perform its asbestos-abatement work, the PAL work area was made into a containment zone; as is required for asbestos work; it is not disputed that only PAL workers were permitted to be in their work area at the moment that the accident occurred”). The Plaintiff also submitted the deposition testimony of D.A., who testified on behalf of the Defendants and is employed by the Marcus Organization as Construction Field Manager. Mr. A. testified that the Defendants were not even allowed in the building after the accident because the building had been sealed off by PAL due to the nature of the work, and that no one was allowed in the building, except for employees of PAL. (Plaintiff’s Exhibit 6, p. 68). The deposition testimony relied upon by the Plaintiff in support of his motion failed to establish that, as a matter of law, the Defendants had control over the subject worksite. Likewise, the Plaintiff failed to establish, prima facie, that the Defendants had actual or constructive notice of the subject hazardous condition. The Plaintiff put forth no evidence that the Defendants had actual notice of the condition of the subject wall. “To provide constructive notice, the defect must be visible and apparent and exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it”. (Vella v. One Bryant Park, LLC, 90 AD3d 645, 646 [2d Dept 2011]). The Plaintiff contends that the Defendants had constructive notice of the hazardous condition of the subject wall based on, inter alia, the photograph that was shown to Mr. A. at his deposition. However, Mr. A. testified that he had never seen any photographs depicting the accident scene, and when shown the photograph attached as Exhibit 9 to the Plaintiff’s motion, he could not tell where on the project was depicted in the photo. Likewise, the Plaintiff has failed to establish when the photograph was taken and who took the photograph, and the Plaintiff could only recall that photographs were sent to him. (Plaintiff Exhibit 4, pp. 73-74). The Plaintiff also argues that the expert affidavit establishes that the Defendants had constructive notice of the subject wall. However, the expert affidavit submitted by the Defendants reaches different opinions from the same photograph and, at minimum, raises an issue of fact in opposition thereto. As the Plaintiff failed to establish, prima facie, that the Defendants “ha[d] control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it”, the portion of the Plaintiff’s motion which seeks summary judgment on his Labor Law §200/common law negligence causes of action shall also be DENIED. Accordingly, it is hereby ORDERED, that the Plaintiff’s motion for an Order pursuant to CPLR 3212 granting him summary judgment on the issue of liability against the Defendants on the Plaintiff’s Labor Law §240(1) cause of action and the Labor Law §200/common law negligence causes of action is DENIED; and it is further, ORDERED, that all other requests for relief not specifically addressed herein shall be deemed DENIED. This constitutes the decision and Order of this Court. Dated: June 5, 2024
