This action arises out of personal injuries suffered by plaintiffs. While working at a school construction site, plaintiff Rafael Rodriguez fell from a scaffold supporting him while he was placing cement insulation material onto two large boilers in the basement of Public School [*2]104.

Plaintiffs now move for partial summary judgment, contending that Labor Law §240(1), and 241(6) apply to the instant matter. Defendants move to strike the plaintiff's note of issue. The defendants/Third-Party plaintiffs also cross-move for summary judgment, seeking indemnification from Third-Party defendant Triad Corporation.

After oral argument, this court decided the defendants' motion to strike the note of issue as follows: (1) Plaintiff is to provide defendants and Third-Party defendant with HIPPA compliant authorizations by July 12, 2006; (2) The IME of the plaintiff is to be scheduled by July 12, 2006; and the IME of the plaintiff is to be conducted no later than August 9, 2006 or the IME is waived. The court reserved on the other motions.

Plaintiffs move for partial summary judgment, contending that the actions taken by the worker do fall under the purview of Labor Law §240(1). Labor Law §240(1) provides in pertinent part that:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, [or] altering . . . 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."

It is well settled that Labor Law § 240(1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person." Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]. In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners, general contractors, and their agents who "are best situated to bear that responsibility" id. at 500. "The duty imposed by Labor Law § 240(1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" Ross at 500. Furthermore, not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law §240(1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein. Ross v. Curtis-Palmer Hydro-Elec., supra . Lastly, in Rocovich v. Consolidated Edison Co., 78 NY2d 509 (1991), the Court held that "[it] is settled that section 240(1) 'is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed'".

It is well settled that "the availability of a particular safety device will not shield an owner [*3]or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures"Conway v. New York State Teachers Retirement Sys., 141 AD2d 957, 958-959 (3rd Dept., 1988). Here, under the circumstances, where the scaffold "was inadequate in and of itself to protect [the plaintiff] against hazards encountered' " in the course of his work, and "additional safety devices were necessary to satisfy Labor Law § 240(1)"Quackenbush v. Gar-Ben Assoc., 2 AD3d 824, 825, 769 NYS2d 387; DeSousa v. Dayton T. Brown, Inc., 280 AD2d 447, 448, 721 NYS2d 69; Mooney v. PCM Dev. Co., 238 AD2d 487, 488, 656 NYS2d 655; Boice v. Jegarmont Realty Corp., 204 AD2d 674, 675, 612 NYS2d 431.

Here, the plaintiffs established their prima facie entitlement to summary judgment on the issue of liability pursuant to Labor Law § 240(1) by showing, based on the testimony of the plaintiff and plaintiff's expert that plaintiff was not provided with the proper protection required under the statute, and that the failure to provide such protection was a proximate cause of his injuries ( see Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39, 790 NYS2d 74, 823 NE2d 439; Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287, 771 NYS2d 484, 803 NE2d 757; cf. Tylman v. School Constr. Auth., 3 AD3d 488, 489, 770 NYS2d 433; Alava v. City of New York, 246 AD2d 614, 615, 668 NYS2d 624). In opposition, the defendants failed to raise a triable issue of fact as to whether plaintiff's actions were the sole proximate cause of the accident, i.e., that the inadequate safety device was not a proximate cause of the injuries. Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 524, 493 NYS2d 102, 482 NE2d 898. Therefore, this court must grant plaintiff's motion for partial summary judgment pertaining to Labor Law 240(1).

Plaintiffs also cross-move for summary judgment under Labor Law § 241(6). In so moving, plaintiff maintains that the New York State Industrial Code regulations which form the basis of plaintiff's Labor Law § 241(6) claims are applicable in this case.

Labor Law §241(6) provides in pertinent part that:

"All areas in which construction, excavation or demolition 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 persons employed therein or lawfully frequenting such places."

Labor Law § 241(6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a non-delegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross, 81 NY2d at 501-502). Accordingly, in order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct [*4]rather than a mere reiteration of common-law principals (Ross at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]).

Plaintiffs contend Industrial Code Sections 23-5.18(b) and 23-5.18(g) apply to the instant action. 23-5.18(b) states that scaffolds require safety railings without reference to the height of the scaffold. Plaintiff Rafael Rodriguez testified that there were no safety railings on the scaffold to prevent him from falling. The evidence presented by the defendants provides proof that there were safety railings. Therefore, there are issues of fact pertaining to 23-5.18(b).

23-5.18(g) states in pertinent part that whenever a scaffold is in use and is occupied by any person, such scaffold shall rest upon a stable footing, the platform shall be level and the scaffold shall stand plumb. All casters or wheels shall be locked in position. Plaintiffs' expert found that the surface on which the scaffold plaintiff Rodriguez was standing on was not level. In opposition, defendants provide testimony from plaintiff, stating that the that the wheels of the scaffold were locked at the time of the incident, which would imply that the scaffold was on stable footing. Therefore, this court must deny plaintiff's motion for partial summary judgment for Labor Law 241(6) pertaining to 23-5.18(b) and 23-5.18(g).

Turning to the defendants' cross-motion for summary judgment on its common-law indemnification cross claim against Triad, defendants contend that any liability that it faces in this action will be purely vicarious in nature. In addition, defendants argue that Triad had the authority to control and supervise plaintiff's work and the safety of the workers as well. In support of this claim, defendants point to the deposition testimony of Christopher Horan, employee of Trio Asbestos Removal Corporation, the firm who hired Triad to perform reconstruction services. Specifically, defendants note that Mr. Horan testified that Triad employees were required by Triad to wear safety equipment. Defendants also point to the deposition testimony of Alexander Lampert, an employee of the New York City School Construction Authority ("SCA"). Mr. Lampert testified that the safety concerns at the instant work site would be determined by the construction contractor and not the defendants.

In opposition to the City's motion for common-law indemnification, Triad fails to raise an issue of fact sufficient to preclude summary judgment "To establish a claim for common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident or in the absence of any negligence that the proposed indemnitor had the authority to direct, supervise, and control the work giving rise to the injury" (Perri v Gilbert Johnson Enterprises, LTD., 14 AD3d 681, 684-685 [2005] [citations omitted]). Here, it is clear that the defendants was not guilty of any

negligence. Furthermore, the fact that City personnel visited the work site in order to monitor the progress of the project is insufficient to establish that it had control or supervision over the work [*5](Dos Santos v STV Engineers, Inc., 8 AD3d 223, 224 [2004]). Accordingly, the defendants' motion for partial summary judgment on the issue of liability for common-law indemnification on their cross claim against Triad is granted..

In summary, the court rules as follows: (1) plaintiffs' motion which seeks summary judgment is granted; (2) that branch of plaintiffs' motion seeking summary judgment dismissing plaintiff's Labor Law § 241(6) cause of action is denied; and (3) defendants' motion to dismiss under common law indemnity is granted.



Dated:August 14, 2006Hon. Martin M. Solomon

J.S.C.