The following numbered papers were read on this motion: Submitted by Defendants NYSCEF Doc No. 133: Notice of Motion NYSCEF Doc No. 134: Affirmation of Inderjit Dhami, Esq. in Support of Motion NYSCEF Doc No. 135: Summons and Complaint NYSCEF Doc No. 136: Defendants’ Verified Answer NYSCEF Doc No. 137: Plaintiff’s Verified Bill of Particulars NYSCEF Doc No. 138: Preliminary Conference Order and Subsequent Discovery Orders NYSCEF Doc No. 139: Plaintiff’s Deposition Transcripts NYSCEF Doc No. 140: Deposition Transcript of Defendant Triton Construction Company, LLC (Iniubong Usen) NYSCEF Doc No. 141: Deposition Transcript of Defendant Triton Construction Company, LLC (Daniel Gordon) NYSCEF Doc No. 142: Note of Issue and Certificate of Readiness for Trial NYSCEF Doc No. 143: Plaintiff’s Statement NYSCEF Doc No. 144: Statement of Plaintiff’s Supervisor, Kristjan Haxhari NYSCEF Doc No. 145: Statement of Medic Saidou Niampa NYSCEF Doc No. 146: Accident Reports NYSCEF Doc No. 147: Photographs of Accident Location NYSCEF Doc No. 148: Triton Construction Company, LLC Project Manual NYSCEF Doc No. 149: StructureTech Corporate Health and Safety Plan NYSCEF Doc No. 150: Construction Management Agreement NYSCEF Doc No. 151: Statement of Authorization for Electronic Filing NYSCEF Doc No. 152: Affidavit of Eyewitness Luis Sarmiento NYSCEF Doc No. 153: Defendants’ Statement of Undisputed Facts NYSCEF Doc No. 154: Defendants’ Memorandum of Law NYSCEF Doc No. 155: Order with Notice of Entry, Entered on February 23, 2024 NYSCEF Doc No. 156: Defendants’ Statement of Undisputed Facts NYSCEF Doc No. 157: Defendants’ Memorandum of Law NYSCEF Doc No. 158: Order with Notice of Entry, Entered on February 23, 2024 Submitted by Plaintiff NYSCEF Doc No. 159: Affirmation of Anthony M. Deliso, Esq. in Opposition to Motion NYSCEF Doc No. 160: Plaintiff’s Post-EBT Demands, Dated February 21, 2023 NYSCEF Doc No. 161: Defendants’ Response to Plaintiff’s Post-Deposition Demands NYSCEF Doc No. 162: Affidavit of Euferlia Hernandez NYSCEF Doc No. 163: Plaintiff’s Affidavit with Affidavit of Translation NYSCEF Doc No. 164: Plaintiff’s Counter-Statement of Materials Facts Submitted by Defendants NYSCEF Doc No. 165: Reply Affirmation of Inderjit Dhami, Esq. in Further Support of Motion DECISION AND ORDER Upon the foregoing papers and having heard oral argument on the record from appearing counsel, the within motion is determined as follows. Preamble The present action features an oft-recurring paradigm in the Labor Law arena, namely, a plaintiff sustaining injuries tangentially attendant to the use of a ladder. This case serves as a cautionary tale of sorts for the practitioner that the mere presence of a ladder on a construction site does not ineluctably cloak an injured worker’s case with the panoply of statutory protective accoutrements afforded construction workers under the auspices of our State’s beneficent Labor Laws. As this case aptly illustrates, a plaintiff’s most formidable foe in the Byzantine Labor Law context frequently resides not in the defense, but, rather, in the faint specter hovering over scores of Labor Law cases, to wit, the workers’ compensation bar afforded employers, which operates to immunize from liability the entity typically best suited as a litigation target for the injured worker. The Relief Sought by Defendants Defendants 11 Hoyt Property Owner, L.P. and Triton Construction Company, LLC (“Defendants”) move for an order granting summary judgment dismissing Plaintiff Abimael Trujillo Cruz’s (“Plaintiff”) complaint as to his Labor Law 200, 240 and 241 (6) claims as well as to his common law negligence claims (see NYSCEF Doc No. 133, Notice of Motion). Summary Judgment Standards Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v. AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez, 68 NY2d at 324). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978]). The Parties’ Inter-Relationships Plaintiff claims that on July 11, 2018, he sustained injuries during the course of his employment with non-party StructureTech New York (“StructureTech”) (see NYSCEF Doc No. 156, Statement of Undisputed Facts 1). On March 24, 2016, Defendant 11 Hoyt Property Owner, L.P. (“11 Hoyt”) entered into a Construction Management Agreement with Defendant Triton Construction Company, LLC (“Triton”) to construct a residential tower at 11 Hoyt Street in Brooklyn, New York (“11 Hoyt Street Residential Project”) (see id. 2). Pursuant to the agreement in question, Triton was tasked with hiring subcontractors for the project and coordinating various trades (see id. 3). In turn, Triton entered into a subcontract on January 18, 2018 with StructureTech, Plaintiff’s employer, for superstructure concrete work at 11 Hoyt Street. The contract was for the construction of a new mixed-use commercial, residential, and retail building (see id. 5). The Duties of Plaintiff’s Employer, StructureTech StructureTech was the concrete superstructure contractor for the jobsite and was responsible for erecting the concrete superstructure (see NYSCEF Doc No. 152, Sarmiento Aff 5). To construct the concrete superstructure, StructureTech poured concrete into wooden forms (see NYSCEF Doc No. 156, Statement of Undisputed Facts 7). Once the forms were erected, they would have to be braced or shored, which could be accomplished by means of wood or metal (see NYSCEF Doc No. 152, Sarmiento Aff 7). The purpose of bracing was to secure the forms and lock them tightly to ensure that when the concrete is poured, the force of the concrete being placed does not destroy the formwork (see id. 8). When wooden braces were used to secure the forms, they would be nailed down (see NYSCEF Doc No. 156, Statement of Undisputed Facts 8). Neither 11 Hoyt nor Triton performed any work with regard to the construction of the concrete form work, including the installation of any wood or metal bracing or shoring (see id. 9). StructureTech’s superintendent foreman, Kristjian Haxhari, was onsite daily (see id. 10). StructureTech was exclusively responsible for the means and methods of the superstructure concrete work (see id. 11). Defendants allege that neither 11 Hoyt nor Triton directed, supervised, provided tools or controlled the means or methods of Plaintiff’s work on the jobsite at any time (see NYSCEF Doc No. 152, Sarmiento Aff 12). Defendants assert that Plaintiff received all of his direction, supervision, tools, as well as the means or methods of his work, from StructureTech and, specifically, from StructureTech Superintendent Kristjian Haxhari (see NYSCEF Doc No. 156, Statement of Undisputed Facts 13). Prelude to the July 11, 2018 Occurrence Plaintiff began working at the 11 Hoyt Street Residential Project in June 2018 as a carpenter for StructureTech (see id. 14). Before beginning work on site, Plaintiff attended a site safety orientation class (see id. 15). On July 11, 2018, Plaintiff was directed to assemble concrete framework supports with his co-worker, Luis Sarmiento (see id. 16). At approximately 7:30 a.m., Plaintiff went to the location of the alleged accident to set up an A-frame ladder to install a brace to provide additional horizontal support to the concrete shoring posts (see id. 17). Plaintiff’s co-worker at StructureTech, Luis Sarmiento, an eyewitness to the occurrence, attests in an affidavit that Plaintiff selected the location to set up the A-frame ladder on the date of the occurrence (see NYSCEF Doc No. 152, Sarmiento Aff 16). The July 11, 2018 Occurrence Plaintiff did not fall off the ladder at any time (see NYSCEF Doc No. 139, Plaintiff EBT Tr. at 105-110, 124-125). As Plaintiff admitted during his examination before trial: Okay. So I came down. After I came down I stepped on that 2 by 4 and I fell down. And I fell down. (Id. at 105 [emphasis added].) Plaintiff climbed the A-frame ladder to hammer the horizontal bracing into place (see NYSCEF Doc No. 156, Statement of Material Facts 22). After accomplishing this task, Plaintiff descended the ladder (see NYSCEF Doc No. 139, Plaintiff EBT Tr. at 105). As Plaintiff testified during his examination before trial, the ladder did not fall in connection with the occurrence: Q: Okay. Did the ladder fall after your accident? A: Don’t believe so, no. Don’t believe so. (Id. at 124-125.) As Plaintiff’s left foot was either on the last rung of the ladder or on the floor, he stepped with his right foot onto a piece of formwork support nailed into the concrete floor (see NYSCEF Doc No. 156, Statement of Undisputed Facts 25). The nailed down 2″ x 4″ formwork featured in a photograph (see NYSCEF Doc No. 156, Statement of Material Facts 26) was identified by eyewitness Luis Sarmiento, Plaintiff’s co-worker at StructureTech, as the item that caused Plaintiff to twist his ankle after having descended the ladder (see id. 26). As Mr. Sarmiento attests in his affidavit: 15. I witnessed Mr. Trujillo Cruz’s incident. 16. Shortly after 7:40 a.m. Mr. Trujillo Cruz twisted his right ankle on a 2″ x 4″ that was nailed to the ground. Just before his accident, Mr. Trujillo Cruz was working on a ladder. Mr. Trujillo Cruz chose the location to set up the ladder and had set up the ladder properly. 17. After Mr. Trujillo Cruz came off of a ladder and was standing on the ground, he then turned around and stepped on a 2″ x 4″ with his right foot twisting his ankle. He did not fall to the ground. He was not struck by any falling objects. 18. The photograph attached hereto as Exhibit “A” depicts the location where Mr. Trujillo Cruz [sic] incident took place. 19. The 2″ x 4″ bracing that was nailed to the ground that Mr. Trujillo Cruz tripped over is circled in red and attached to my affidavit as Exhibit “A.” 20. After the incident I inspected the 2″ x 4″ bracing and it [sic] secured to the ground with nails and was being used to buttress the adjacent concrete form panels as depicted in Exhibit “A.” 21. The 2″ x 4″ was not debris. The 2″ x 4″ was necessary to secure the concrete form panels so that they would remain straight and not “blow out.” (NYSCEF Doc No. 152, Sarmiento Aff
15-21.) Defendants’ Position Defendants allege that Plaintiff was instructed by his supervisor, Kristjian Haxhari, not to work on A-frame ladders near where the form work was secured to the concrete flooring (see NYSCEF Doc No. 156, Statement of Undisputed Facts 27). Notwithstanding this admonition, Defendants allege that Plaintiff chose for no good reason to work on an A-frame ladder directly near the framework secured below (see id. 28). Defendants’ position is delineated in the affidavit submitted by eyewitness Luis Sarmiento, Plaintiff’s co-worker at StructureTech, who attests as follows in his affidavit after describing the 2″ x 4″ bracing that he alleges led to the occurrence: 22. There were no other conditions which caused Mr. Trujillo Cru’s [sic] right ankle to twist. 23. Mr. Trujillo Cruz never complained to me of any dangerous condition while working at the project. 24. The ladder Mr. Trujillo Cruz was using prior to the incident was in good working order. 25. The ladder was not in any way involved in his accident. (NYSCEF Doc No. 152, Sarmiento Aff
