On June 5, 2003, Anthony Olsovi, a plumber's helper employed by P.R. Plumbing & Heating, Inc. (hereinafter, PR Plumbing), fell when the extension ladder on which he had been standing slid out from underneath him as he attempted to close the main waste line trap that he was snaking/jet pumping at the Shore Hill senior citizen apartment building, located at 9000 Shore Road, in Brooklyn, NY.

The defendant, Shore Hill Housing Company, Inc. (Hereinafter Shore Hill), owner of the mentioned property, has moved this court for an order granting summary judgment, pursuant to CPLR §3312, dismissing the plaintiff's causes of action based on Labor Law §§200, 240 (1), and 241 (6) on the grounds that it did not control or supervise the plaintiff, who was not engaged in the type of work to which these labor law provisions apply. Shore Hill, based on the deposition testimony of the plaintiff and affidavits of its director of maintenance, notes that the plaintiff was trained, directed, and supervised by P.R. Plumbing, which had been contracted by it to "provide preventive maintenance for the main waste lines by electrically snaking and jet pumping the sanitary house sewer from cleanouts up to the house trap and also from the trap out to the street," so as to keep them clean and prevent backups in said lines. Said contract did not include stoppages, required PR Plumbing to furnish all labor and materials, and did not entail any construction, excavation, alteration, repair, or demolition of any kind. Additionally, Shore Hill was not charged with the use of the jet pump, or the control, direction, and supervision of any PR Plumbing employee. With regards to the fall, Shore Hill notes that Mr. Olsovi did not have his co-employee hold the ladder for him when he climbed it, as directed by his supervisor, and that neither of them had made complaints to Shore Hill or any of its employees, and that they had safely gone up and down said ladder on numerous occasions prior to Mr. Olsovi's fall. Photographs of the purported subject ladder, a Davidson, model 405-28 aluminum extension ladder, show that its foot pads were in place, yellow in color, and in good condition.

In further support of its request for summary judgment, Shore Hill offered the affidavit of a product safety engineer from Louisville Ladder Corp., who designs climbing equipment. His conclusion was that the ladder was in conformity with the American National Standards Institute (ANSI), a non-profit organization that promulgates safety standards for ladders and various other products. After reviewing the relevant case materials, he concluded that Mr. Olsovi had neither complied with his training in the use of said ladder nor the instructions and warnings posted thereon which both required that he always have someone hold it when being climbed. In addition, despite the explicit posted warning not to use the ladder on slippery surfaces without [*2]having someone hold the ladder or otherwise secure the feet, Mr. Olsovi continued to stand on the un-held ladder even after the floor on which it stood became wet from the jet pumping activity that he and his co-worker were performing. In fact, it was not until his co-worker was cleaning up the area and hosing off the floor that Mr. Olsovi fell. Shore Hill's product safety engineer concluded from his overview that ". . .plaintiff's own acts and omissions were the cause of the incident. There is no evidence of any deficiency with the ladder and the evidence contradicts that allegation. Had the instructed work methods of securing the ladder been employed by the plaintiff both his on the job training and adherence to information provided on the warning and instruction labels this incident would not have occurred."

Not only does Shore Hill attribute the cause of the accident to the plaintiff, but it asserts that, one, Labor Law §200 does not pertain since it did not direct, supervise, or control the plaintiff's work (citing, Paciente v. MBG Develop., Inc., 276 AD2d 761, 715 NYS 436 [2d Dept., 2000]; two, that Labor Law §240 is inapplicable since it only requires the furnishing or erection of 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 employed in instances of erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure that is not a one or two family dwelling. In the matter sub judice, the plaintiff was engaged exclusively in routine preventive maintenance, and therefore does not fall within the purview of Labor Law §240 (citing, e.g., Esposito v. NYC Industrial Develop. Agency, 1 NY3d 526, 770 NYS2d 682 [2003], fall from ladder while removing air conditioner cover; Smith v. Shell Oil company, 85 NY2d 1000 [1995], changing bulbs to fix a sign; Jock v. Fine, 80 NY2d 965 [1962], molds manufacturing; and Manent v. Ropost, Inc., 136 AD2d 681, 524 NYS2d 96 [2nd Dept., 1988], replacement of bulb by electrician hired to repair malfunctioning light fixture). As per the matter of Wilson v. City of NY, et al., 89 F3d 32 [2d Cir., 1996], Shore Hill asserts that a repair only occurs when the equipment in the building is not functioning, whereas, maintenance occurs when work is being performed on equipment that is functioning and the work is performed so as to make sure the equipment continues to function properly [as in pumping/snaking routine preventive maintenance];" and, three, that the Labor Law §246 (1) sections asserted by the plaintiff are generalized provisions that fail to establish any specific infraction of the Industrial code.

In response to the foregoing, plaintiff's counsel (referencing the deposition testimonies), counters that it was the ladder's defective feet (which had been worn paper thin) that caused it to slip out from underneath the plaintiff, and that the provision of a defective ladder or similar device invokes the protection of Labor Law §200 and common law negligence (citing, Cruz v. Kowal Industries, 267 AD2d 271 [2d Dept., 1999], et seq.). Liability under Labor Law §240 (1) arises in many instances; to wit, if a ladder collapses (Braun v. Dormitory Authority of the State of NY, 118 AD2d 614 [2d Dept., 1986], et seq.); if the ladder falls because it is not properly secured (Rodriguez v. NYCHA, 191 AD2d 460 [1st Dept., 1993], et seq.); and, if the plaintiff falls from a ladder with no safety equipment to prevent or cushion the fall (Draiss v. Ira S. Salk Constr. Corp., 201 AD2d 698 [2d Dept., 1994], et seq.). The plaintiff stresses the fact that it was Shore Hill which furnished the defective ladder which had black foot guards that were worn paper thin; that the reason his co-worker was not holding the ladder was because the defendant's employee (director of maintenance) had instructed them to clean up the mess on the floor; and, [*3]that he was engaged in cleaning of a commercial building, not a one or two family structure, which is a protected activity under Labor Law §241. Therefore, Mr. Olsovi requests that he be granted partial summary judgment on the issue of liability, pursuant to Labor Law §240 (1).

Finally, Shore Hill replied by underscoring its prior assertions that Mr. Olsovi was not engaged in the type of work envisioned by the subject Labor Law sections and the absence of any direction or supervision on its part, facts which it maintains should result not only in the grant of its motion for dismissal of all three Labor Law counts, but in denial of Mr. Olsovi's limited demand for partial summary judgment, pursuant to Labor Law §240 (1), as well, which in any event was untimely filed after the lapse of the sixty day limit for the filing thereof.

The objective of a motion for summary judgment is "issue-finding, not issue-determination." In assessing such a motion, the "court should draw all reasonable inferences in favor of the non-moving party" (see Assaf v. Ropog Cab Corp., 153 AD2d 520, 544 NYS2d 834 [1989]). "A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v. Grevasioi, 81 NY2d 1062, 601 NYS2d 463; Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923). Once a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact (see Alvarez v. Prospect Hosp., supra ).

"Labor Law §200 codifies the common law duty imposed on an owner or general contractor to provide construction site workers with a safe work site" (See Nevins v. Essex Owners Corp., 276 AD2d 315, 714 NYS2df 38; Bessinger v. The Estee Lauder Co., 271 AD2d 343, 707 NYS2d 78). However, an explicit precondition to this duty is that the party charged with that responsibility have the authority to control the activity bringing about the injury." (See Russin v. Picciano & Son, 54 NY2d 311, 445 NYS2d 127). In Court of Comes v. New York State Electric and Gas Corporation, 82 NY2d 876, the New York Court of Appeals ruled that "[w]here the alleged defect and/or dangerous condition arises from a contractor's methods and an owner and/or general contractor exercises no supervisory control over the operation, no liability will attach to the owner and/or general contractor under common law or under the Labor Law Section 200" (see also, Landa v. City of New York, 17 AD3d 180 and Mitchell v. New York University, 12 AD3d 200). "[B]oth owners and general contractors are strictly liable for providing the necessary devices to protect workers' safety under Labor Law §240(1)" (see Thompson v. St. Charles Condominiums, 303 AD2d 152, 756 NYS2d 530). In order to establish liability under §240(1), a violation of the statute must be demonstrated and shown to have been a proximate cause of the injuries sustained (see Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 771 NYS2d 484). Afterall, "liability is contingent upon the existence of a hazard contemplated in §240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (see Narducci v. Manhasset Bay Assocs., 96 NY2d 259). Hence, ". . .where a safety device has been furnished, and it collapses, a prima facie case of liability under Labor Law §240(1) is established" (see Aragon v. 233 W. 21st St., Inc., 201 AD2d 353, 607 NYS2d 642). Under Labor Law §241(6), contractors and owners are charged with the non-delegable duty to provide reasonable and adequate protection and safety to construction workers. Accordingly, a violation of an Industrial Code provision which sets forth specific safety standards is required to [*4]result in liability thereunder (see Ross v. Curtis-Palmer Hydro-Elec Co., 81 NY2d 494, 601 NYS2d 49).

In the matter sub judice, the plaintiff argues that his injury was dually caused by the defective foot pad guards on the ladder that he was utilizing and the absence of any safety equipment to prevent or cushion his fall. To the contrary, the defendant asserts that Mr. Olsovi's own carelessness resulting from his failure to have followed his training and the posted instructions on the ladder; to wit, to have someone hold it, was the proximate cause of his injury, particularly since the floor on which he was working was wet.

While the photographs offered by Shore Hill tend to refute the assertion by Mr. Olsovi that the subject ladder's foot pads were in any way defective, they do not definitively resolve the color and/or condition of the pads on the accident date. Questions of fact also abound as to whether or not Shore Hill's director of maintenance exercised any supervisory control over the operation sufficient to attach liability under the common law or under Labor Law §200, or whether the ladder purportedly furnished by Shore Hill was adequate for the contemplated cleaning (of a structure of a non-one or two family dwelling); i.e., whether a hazard contemplated in §240(1) existed.

Clearly, however, Mr. Olsovi has failed to establish any violation of an Industrial Code provision which sets forth specific safety standards required to result in liability under §246, or to give good cause for the late submission of his request for partial summary judgment under Labor Law §240(1).

Wherefore, on the basis of all of the foregoing, Mr. Olsovi's request for partial summary judgment on the issue of liability, pursuant to Labor Law §240 (1) is denied. Shore Hill's motion, pursuant to CPLR 3212, for summary judgement on the issue of liability under Labor Law §§ 200 and 240(1) are likewise denied. Its request, however, for dismissal of the plaintiff's claim pursuant to Labor Law §246 is granted. This constitutes the decision and order of this Court.

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