In this construction accident case, plaintiff moves, pursuant to CPLR Rule 3212 and Labor Law § 240 (1), for partial summary judgment on liability. Defendants oppose. Plaintiff alleges that he suffered permanent injuries to his knees and back as the result of his July 24, 2003-accident, in a building being constructed as a student dormitory at the Iona College campus, New Rochelle, New York. Plaintiff, a union painter, claims that at the time of the accident he was hanging masking paper on a wall in preparation for "popcorn" spray painting, when the Baker scaffold upon which he was standing collapsed because of a defective leg. Defendant, Iona College ("Iona"), hired co-defendant, Holt Construction Corporation ("Holt"), to be its construction manager and/or general contractor for the construction of new dormitory facilities. Holt then hired plaintiff's employer, Brookside Painting, Inc. ("Brookside"), as the subcontractor for painting and related work.

Plaintiff demonstrates that he sustained an elevation-related accident in violation of Labor Law § 240 (1). Defendants failed to perform their non-delegable duty to provide plaintiff with an adequate safety device to protect him against an elevation related risk in the work he was performing at the time of the accident. Defendants' evidence in opposition is speculative and conclusory, and thus unable to refute plaintiff's evidence. Thus, the Court grants partial summary [*2]judgment on liability to plaintiff, finding that defendants are strictly liable for plaintiff's July 24, 2003-accident at Iona College.

On the day of the accident, plaintiff Rossi was taken by his foreman, WilliamNovini, to a room located on the first floor of a dormitory building under construction at

Iona. Mr. Rossi and Mr. Novini entered the room approximately 20 minutes before the accident occurred. An assembled Baker scaffold was present in the room. Mr. Novini remained in the room with Mr. Rossi for "five, ten minutes tops" but left as soon as Mr. Rossi climbed up onto the Baker scaffold [Exhibit G of motion - Rossi EBT, pp. 69-70].

Mr. Rossi, before climbing up onto the Baker scaffold, moved it from the center of the room to a corner of the room, so that he could tape masking paper to the walls, to protect the walls from over-spraying of "popcorn" paint, a texture of paint and mist, which was to be sprayed on the room's ceiling [Rossi EBT, p. 88]. Plaintiff, before ascending the Baker scaffold, inspected its plywood platform, legs, and wheels. He found the Baker scaffold in working order [Rossi EBT, pp. 82-84], but noticed that the scaffold failed to have any railings [Rossi EBT, pp. 91 - 92].

After climbing onto the Baker scaffold, plaintiff moved it five times without getting off the scaffold. He testified in his EBT, at p. 74, lines 4 - 9:

Q. How did you move the scaffold those five or so times before

your accident?

A. From the top, like shimmying across, like moving your legs and

putting your hands on the wall to just glide across.

Plaintiff testified in his EBT, pp. 79 - 80, that he was never instructed not to move the Baker scaffold in the manner that he described. He was asked at p. 80, lines 21 - 22, "did anyone specifically tell you to move it in that fashion?" He answered at p. 81, lines 9 - 12, "Just by everyone else doing it and the foreman telling me this is my job for the day. He pretty much told me this is what you have to do." Further, he testified at p. 81, line 20 - p. 82, line 10:

Q. About how many times had you used the Baker's scaffold before

working at this jobsite?

A. A hundred.

Q. In any of those hundred or so times, did you move the Baker's

scaffold in the same fashion that you previously described for

me, shimmying and moving your hands along the walls?

A. I might have done that a few times, yes.

Q. Has anyone instructed you that was not a proper way of moving

the scaffold?

A. No.

Plaintiff testified that immediately before the accident occurred the scaffold "was still," and plaintiff was standing in the center of the scaffold's plywood platform, about

6 ½ feet above the floor [Rossi EBT, pp. 92-93]. Plaintiff testified, at p. 96, lines 14 - 16, about how the accident occurred. He stated that "[o]ne of the legs of the scaffold just disconnected somehow, and one side of the plywood [the platform] fell, and I fell with it." Plaintiff then stated, at p. 96, line 19, that he noticed, after his fall, that one of the scaffold legs had become [*3]disconnected. He further testified, at p. 98, lines 9 - 21:

Q. Did the scaffold fall to the ground?

A. The whole thing fell to the ground.

Q. How did it fall to the ground?

A. One of the legs got disconnected and fell away from the scaffold,

and the plywood and myself fell straight down.

Q. In which direction did the scaffold fall? Was it away from the

wall, towards the wall or something else?

A. Both ends went away from the wall. One to the right, one to the

left, and I went straight down.

Plaintiff, in his EBT, at pp.102 - 107, identified photographs of the Baker scaffold with its bent front leg [exhibit A of motion - photographs], taken by the union shop steward, "Paul," after the Baker scaffold was reassembled. Plaintiff stated that after he fell, his foreman, Mr. Novini, came to his assistance and also observed that the front leg of the scaffold was bent. [Rossi EBT, p. 119].

Daniel Harm, defendant Holt's superintendent, in his EBT [exhibit J of motion]

testified that he was present at the job site on a daily basis, from the time this project started through its completion, which included the accident date, July 24, 2003. He testified that he would walk through the project daily to check on construction progress, and to see if the work complied with plans and specifications. He testified at pp. 31- 32 that if he observed a subcontractor's workers performing work in an unsafe fashion he would tell them. He further testified that plaintiff's employer, Brookside, supplied its workers with the scaffolds they utilized at the site, as "everybody supplies their own stuff" [Harm EBT, p. 43, line 7]. Mr. Harm at p. 53, lines 3 - 6, was asked, "Did Holt Construction Corp. ever provide Mr. Rossi with any type of safety equipment such as safety lines, fall arrest devices, safety nets, or any other device?" He answered, after objections, at p. 53, line 14, "No." He further testified, at p. 53, of his EBT, that Brookside never requested safety equipment from Holt.

Robert Blum, Senior Project Manager for Holt, testified in his EBT [exhibit I of motion], at p. 17, that Iona did not provide any equipment to the subcontractors on the project, and, at p. 33, that Holt did not provide subcontractors with any safety equipment. He further testified, in his EBT, at pp. 43-45, that on July 24, 2003 he probably had been informed by Mr. Harm of plaintiff's accident, and that Mr. Harm had driven plaintiff to the hospital. With respect to plaintiff's Baker scaffold, Mr. Blum testified in is EBT, p. 47, line 4 - p. 48, line 4:

Q. Have you ever been advised that the accident involving Dominick

Rossi allegedly involved the use of a bakers scaffold?

A. I know that this is what is discussed, but I don't recall when or how

I was advised of that.

Q. Okay, did you or anyone on behalf of Holt ever inspect the bakers

scaffold following the accident involving Dominick Rossi?

A. I did not.

Q. Did anyone on behalf of Holt?

A. I don't know. [*4]

Q. Did you have any discussion with Dan Harm regarding inspecting

equipment at this job site following notification of this accident.

A. No.

Q. Did Dan Harm or anyone from Holt ever advise you that they had

looked at the bakers scaffold that Dominick Rossi was allegedly on

just prior to the accident?

A. I don't recall any conversation.

Rich Murray, Iona's Assistant Director of Projects at the time of the accident, testified in his EBT [exhibit H of motion], at p. 19, that Iona never provided any equipment to the project's subcontractors. He testified, at p. 32, that Daniel Harm and Robert Blum, both Holt supervisors, were the persons he observed giving directions to individual workers of subcontractors. At pp. 43 - 44 of his EBT, he testified that Iona's employees never assembled or inspected Baker scaffolds at the job site.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenberg v Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985).

CPLR 3212 (b) requires that for a court to grant summary judgment the court must

Labor Law § 240 (1), the "scaffold law" states in pertinent part:

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, 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, [*5]

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. [Emphasis added]

The Court of Appeals, in Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 284-285 (2003), observed that:

[t]he first scaffold law, an ancestor of our Labor Law 240 (1), was

enacted . . . in response to the Legislature's concern over unsafe

conditions that beset employees who worked at heights (see L. 1885,

ch. 314) In promulgating the statute, the lawmakers reacted to

widespread accounts of deaths and injuries in the construction

trades . . . Most tellingly, the lawmakers fashioned the pioneer

legislation to "give proper protection" to the worker. These words are

at the heart of the statute and have endured through every amendment.

Further, at 286, the Court instructed that, "[t]he Legislature looked to employers (and later, contractors and owners) as the entities best able to control the workplace and provide for its safety, casting them in liability for their failure to obey the law. The objective was—and still is—to force owners and contractors to provide a safe workplace, under pain of damages."

In Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 (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'. (See Quigley v Thatcher, 207 NY 66, 68).' (Koenig v Patrick Constr. Corp., 298 NY 313, 319)." The Rocovich Court, at 513, looked at the "the nature of those occupational hazards which the Legislature intended should warrant the absolute protection that the statute affords." Further, at 514, the Court finds that "[t]he contemplated hazards are those related to the effects of gravity where protective devices are called for. . . ." [Emphasis added]In a subsequent case, Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993), the Court held, at 501, that "Labor Law 240 (1) was designed 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."

More recently, in Panek v County of Albany, 99 NY2d 452, 457 (2003), the Court instructed, that: [*6]

We have repeatedly observed that the purpose of the statute is to

protect workers by placing ultimate responsibility for safety practices

on owners and contractors instead of on workers themselves (see

Martinez v City of New York, 93 NY2d 322, 325-326 [1999]; Zimmer

v Chemung County Performing Arts, 65 NY2d 513, 520 [1985], rearg.

denied 65 Ny.Y.2d 1054 [1985]). Consistent with this objective, the

section imposes absolute liability on owners, contractors and their

agents for any breach of the statutory duty that proximately causes

a plaintiff's injury. As a result, this strict liability provision "is to be

construed as liberally as may be for the accomplishment of the purpose

for which it was thus framed" (Gordon v Eastern Ry. Supply, 82 NY2d

555, 559 [1993]).

In Saheed v NY/Enterprise City Home Housing Development Fund Corp., 303 AD2d 484 (2d Dept 2003), the collapse of a scaffold resulted in the death of a subcontractor's employee. The Court affirmed the granting of summary judgment by Supreme Court, Kings County for plaintiff, holding at 485, that "the collapse of the scaffold constituted a prima facie case of liability under Labor Law § 240 (1)." In O'Connor v Spencer (1997) Inv. Ltd. Partnership, 2 AD3d 513 (2d Dept 2003), plaintiff, a demolition worker, was injured after he fell from a six-foot tall Baker scaffold. The Court held, at 515, that plaintiff "suffered a gravity-related' accident within the meaning of Labor Law § 240 (1), which applies to both falling worker' and falling object' cases (see Narducci v Manhaset Bay Assocs., 96 NY2d 259, 267 [2001]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [2001])."

Two months ago, in both Lenair v Metropolitan Transit Authority, 37 AD3d 425, 426 (2d Dept 2007), and Aversano v JWH Contracting, LLC, 37 AD3d 745, 746 (2d Dept 2007), the Court instructed, utilizing the same language, that, "Labor Law § 240 (1) imposes a nondelegable duty upon owners, contractors, or their agents to provide proper protection to a worker performing certain types of construction work."

In the instant case, the evidence is clear that the subject Baker scaffold, which collapsed, was not assembled by plaintiff. Viewing the evidence in the light most favorable to the nonmoving party, plaintiff has met his burden of establishing a prima facie case for entitlement to judgment as a matter of law. See Alvarez, supra; Zuckerman, supra; Sillman, supra. Defendants have violated their nondelegable duty, pursuant to Labor Law § 240 (1) to provide proper protection to a worker engaged in painting, who suffered a gravity-related accident, in which he was not the sole proximate [*7]cause of the accident. See Blake v Neighborhood Housing Services of New York City, Inc., supra.

With plaintiff having established a prima facie case for summary judgment on liability, the burden shifts to defendants Holt and Iona to demonstrate that there are triable issues of fact with respect to plaintiff's claim that Labor Law § 240 (1) was violated by defendants. The only evidence presented by defendants in opposition is an affidavit by a safety expert, Howard Edelson. It also appears that Mr. Edelson was retained only after the Court granted defense counsel an additional adjournment to prepare opposition papers. Mr. Edelson states in his affidavit that he reviewed: the pleadings; plaintiff's EBT; an incident report; copies of photographs of the subject Baker scaffold; the New York Industrial Code and various OSHA regulations [exhibit A of affirmation in opposition - Edelson affidavit]. It is undisputed that Mr. Edelson never personally inspected the subject scaffold nor the accident site, or read the depositions of anyone who controverts plaintiff's testimony. Yet, somehow, Mr. Edelson renders an opinion that plaintiff's moving of the scaffold by shimmying caused the scaffold to collapse. Without any objective measurements or findings, Mr. Edelson concludes in ¶ 7 that "[i]n my professional opinion, the manner in which plaintiff chose to move the baker scaffold was unsafe and was the sole proximate cause of his accident." The Court wonders how Mr. Edelson could have reached these conclusions without being present at the time of the accident, without ever having inspected the subject scaffold or accident site, and without any EBT testimony confirming his opinion.

The court finds Mr. Edelson's affidavit totally speculative, conclusory and unsubstantiated. Thus it is insufficient to defeat plaintiff's motion for partial summary judgment on liability. Reddy v 369 Lexington Avenue Co., L.P., 31 AD3d 732 (2d Dept 2006). In Diaz v New York Downtown Hospital, 99 NY2d 542, 544 (2002), the Court of Appeals instructed that:

[w]here the expert's ultimate assertions are speculative or unsupported

by any evidentiary foundation, however, the opinion should be given

no probative force and is insufficient to withstand summary judgment

(see Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Amatuli v

Delhi Constr. Corp., 77 NY2d 525, 533-534 n. 2 [1991].)

In Mayer v Mahopac Central School District, 29 AD3d 653 (2d Dept 2006), the Court instructed that "speculative and conclusory opinions contained in the expert's affidavit were insufficient to defeat summary judgment." Last November, in Courtney v Port Authority of New York and New Jersey, 34 AD3d 716, 718 (2d Dept 2006), the Court instructed that:

Where a plaintiff's expert's ultimate assertions are speculative or [*8]

unsupported by any evidentiary foundation, the opinion should be

given no probative force and it is insufficient to withstand a motion for

summary judgment (see Diaz v New York Downtown Hosp., 99 NY2d

542, 544 [2002]; DiMitri v Monsouri, 302 AD2d 420, 421 [2003];

Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359 [1998]).

Therefore, defendants' evidence in opposition to plaintiff's motion for partial

summary judgment on liability fails to raise any triable issues of fact. The evidence presented requires the Court to grant partial summary judgment on liability in favor of plaintiff as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., supra.

Accordingly, it is

ORDERED, that plaintiff's motion for partial summary judgment on liability,

pursuant to CPLR Rule 3212 and Labor Law § 240 (1), is granted.

This constitutes the Decision and Order of the Court.

ENTER

__________________________

HON. ARTHUR M. SCHACK

J. S. C.