The plaintiff has moved, pursuant to Rule 3212 of the Civil Practice Law and Rules (the "CPLR") for an Order granting him Summary Judgment as to liability based upon the defendant's alleged violation of Section 240(1) of the Labor Law. The defendant has responded in opposition. Defendant and Third-Party Plaintiff Sharon Baptist Board of Directors, Inc. ("Sharon") has cross-moved pursuant to CPLR Rule 3212 for Summary Judgment as to liability as against the Third-Party Defendant S.M. Construction Co. as to which S.M. Construction has responded in opposition. For the reasons set forth hereinafter, the motion of the plaintiff is granted and that of defendant Sharon is denied.

Factual and Procedural History

Plaintiffs commenced the instant action for personal injuries sustained by the plaintiff Gerardo Gomez ^[FN1] on August 24, 2004 at the premises located at 509 East 165th Street in Bronx County (the "premises") and owned by the defendant Sharon. Plaintiff commenced this action by filing a Summons and Verified Complaint with the Office of the County Clerk of the County of the Bronx on October 7, 2004. Issue was joined by the service of Defendant Sharon's Verified Answer on or about December 21, 2004. Thereafter, on August 24, 2005 defendant Sharon commenced a third-party action against third-party defendant S. M. Construction as to which issue was joined on March 16, 2006.

On January 30, 2003 the defendant Sharon (under the name of Sharon Baptist Head Start) entered into a contract with third-party defendant S.M. Construction to perform certain work at the premises located at 509 East 165th Street, Bronx, New York. Specifically, the work involved "demolition, new partitions, new beams, new plumbing, new kitchen, new electrical fixtures, new fire alarm system, security system, sprinkler system, and new mechanical system" at the contract price of $1,796,400.00. Article XII of the contract specifically provided

(A) The Contractor shall supervise and direct the work

using the Contractor's best skill and ability. The

Contractor shall be solely responsible for all construction

means, methods, techniques, sequences and procedures

and for coordinating all portions of the work under the

Contract.

(B) The Contractor shall indemnify and hold harmless

the Agency and its agents and employees from and [*2]

against all claims, damage loss or expense caused in

whole or in part by any negligent or intentional act or

omission of the Contractor or Subcontractor including

anyone directly or indirectly employed by the Contractor

or Subcontractor(s) or anyone for whose acts any of

them may be liable.

In addition, the contract further provided, in Article XVIII, that the Contractor was to maintain various policies of insurance in specified limits. More specifically, the contract required that the Contractor maintain a Commercial General Liability Insurance policy with a "Combined Single Limit" for bodily injury and property damage of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate. Finally, the same article required that said policy "name ACS as an Additional Insured" and "cover the use of all equipment, hoists, and vehicles at the Premises not covered by the Automobile Liability Insurance requirements set forth in paragraph F below."

On August 24, 2004, while employed by the third-party defendant S.M. Construction in performing the work envisioned by the January 30, 2003 contract, the plaintiff (then 49 years of age with a fourth grade education) fell from a scaffold some twelve to fifteen feet above the floor at the premises. The plaintiff's injuries are not contested and include fractures of both ankles with surgery (involving open reduction and internal fixation as to both ankles and grafting to the right ankle) as well as associated injuries to his legs resulting in various secondary physical problems both present and anticipated as he ages.

On the day of plaintiff's accident, his first day of employment at this work site ^[FN2], he was picked up by Hugo, S. M. Construction's foreman and driven to the premises where he arrived at approximately 7:50 a.m. Although plaintiff saw other tradesmen on the premises, such as a carpenter and an electrician, as it was his first day on the job site, he did not know by whom they were employed. The foreman, Hugo, assigned the plaintiff to work on a scaffold along with another worker named Mike, using a screw-gun to install sheet rock on the first floor ceiling of the premises. The manner of the work was that two workers provided the sheet rock from the ground while the plaintiff and Mike installed it. When the plaintiff and Mike had finished with an area, the two workers on the ground would move the scaffold to the next area.

The scaffold from which the plaintiff fell was already in place on the site when he arrived and was approximately twelve feet high — it had no safety railings installed on it, nor any other protection around the sides. Plaintiff was not provided with any safety lines or harnesses or lanyards to perform his work while on the scaffold. After installing some six pieces of sheet rock (approximately forty minutes of work), and as plaintiff was pushing the next piece up against the ceiling before using the screw-gun, the scaffold moved, causing him to fall forward off and to the unfinished cement floor.

According to a Second Compliance Conference Order issued by the Honorable Justice [*3]Alison Y. Tuitt, on May 3, 2006, depositions of all parties were to be held on June 22, 2006. Although the deposition of the plaintiff was in fact taken by the defendant on December 5, 2005, no depositions of the other parties have been submitted to this court on this motion.^[FN3] Indeed, in its opposition papers to the defendant's cross-motion, the third-party defendant notes, without explanation, that the court-ordered deposition of itself has yet to take place. Accordingly, on the instant motions, there is no deposition testimony nor affidavit submitted by the defendant or third-party defendant save the affidavit authenticating the contract between the parties to the third-party action.

DISCUSSION

At the outset, it is axiomatic that the granting of summary judgment is an extreme form of relief that is the procedural equivalent of a trial. Therefore, such a grant is only appropriate when the evidence adduced leaves no material issue of fact unresolved. [See Andre v. Pomeroy, 35 NY2d 361, 362 NYS2d 131 (1974).]Thus, in order to obtain summary judgment it is necessary that the movant establish a cause of action or defense sufficient to warrant the court as a matter of law in directing judgment in his favor. Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067-1068, 416 NYS2d 790 (1979); see Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395,162 NYS2d 498. (1957); Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1986). The movant must show entitlement as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact. Zuckerman v. City of New York, 49 NY2d at 562.

Despite the heavy burden thus imposed upon the moving party, once that party has made a prima facie showing of entitlement to summary judgment, the burden shifts to the opposing party, who must produce sufficient evidence to require a trial of any issue of fact. Zuckerman v. City of New York, 49 NY2d at 562. Summary judgment is not appropriate where there is any doubt as to the existence of triable and material issues of fact. Moreover, summary judgment requires that the Court engage in an exercise of issue finding rather than issue determination. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d at 404. In addition, in making its determination, the court must scrutinize the papers on the motion carefully in the light most favorable to the party opposing summary judgment and should draw all reasonable inferences in favor of the non-moving party. Sosnoff v. Jason D. Carter, et al., 165 AD2d 486, 492, 568 NYS2d 43, 47 (1st Dept. 1991); Assaf, et al. v. Ropog Cab Corp., et al., 153 AD2d 520, 521, 544 NYS2d 834, 835 (1st Dept. 1989).

"It is incumbent upon a [litigant] who opposes a motion for summary judgment to assemble, lay bare and reveal [his, her, or its] proof, in order to show that the matters set up in [the pleadings] are real and are capable of being established at trial, Spearman v. Times Square Stores Corp., 96 AD2d 552, 553, 465 NYS2d 230 (2nd Dept. 1983). If the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant's papers, the movant's facts [*4]may be deemed admitted and summary judgment granted as no triable issue of fact exists. Kuehne & Nagel, Inc. v. F.W. Baiden et al., 36 NY2d 539, 544, 369 NYS2d 667, 671 (1975). It is not the court's function of a motion for summary judgment to assess credibility, to draw inferences, or to make findings of fact. Ferrante v. American Lung Association, 90 NY2d 623, 631, 665 NYS2d 25, 30(1997).

It is well settled that Labor Law Section 240(1) imposes on all contractors, owners and their agents liability for damages to workers who are injured in the course of their employment in the building and renovation trades when an elevation related hazard is a proximate cause of an injury. Section 240(1) of the Labor Law requires that:

"All contractors and owners and their agents ... 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,

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 by the Court]

Owners and contractors who fail to provide workers with these adequate and reliable height-related safety devices for use in the performance of such work are responsible under a strict liability theory to any worker who is injured as a result of a violation. (see, Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513 [1985], and its progeny.). Therefore, although a plaintiff is not required to prove negligence on the part of the defendant owner, contractor or subcontractor in order to sustain his claim under Labor Law §240, he must demonstrate that he was subjected to an elevation-related risk which the statute was designed to obviate and that there was a causal connection between a violation of the statute and the injury sustained. Thus, not all injuries sustained while working at a height are covered.( Gordon v. Eastern Railway Supply, Inc., 82 NY2d 555, 606 NYS2d 127 [1993]).

It is also well settled that in order to impose absolute liability upon a responsible

entity, the injured plaintiff must establish by admissible evidence that a violation of the relied upon section of the Labor Law has occurred, and that this violation was the proximate, if not the only, cause of the plaintiff's injuries. (Smith v. Hooker Chemicals, 89 AD2d 361, 455 NYS2d 446, app. dismissed, 58 NY2d 824,(4th Dept.1982)). Thus, it is the plaintiff's burden of proof to establish that Labor Law §240(1) was violated and that said violation was the proximate cause of the consequent injuries. (See, e.g., Meade v. Rock-McGraw, Inc., 307 AD2d 156 (1st Dept., 2003) and Kyle v. City of New York, 268 AD2d 192 (1st Dept.,2000); lv den. 97 NY2d 608 (2002)). For example, "Labor Law §240 (1) requires that safety devices such as ladders be so 'constructed, placed and operated as to give proper protection' to a worker" (Klein v City of New York, 89 NY2d 833, 834-835 [1996]).

It is with these legal precepts in mind that the instant motions must be analyzed.

The plaintiff has made out his burden with respect to the absence of any factual issues. Moreover, the defendant does not dispute that there was an elevation-related risk involved in the [*5]situs and circumstances of plaintiff's accident. Accordingly, the defendant, as an owner of the premises is strictly liable pursuant to Labor Law §240(1). The defendant's opposition appears to ignore the fact that the failure to provide safety devices in and of itself establishes a prima facie case under Labor Law §240(1). Ramos v. Port Authority of New York and New Jersey, 306 AD2d 147, 761 NYS2d 57 (1st Dept., 2003), Smith v. Xaverian High School, 270 AD2d 246, 703 NYS2d 526 (1st Dept. 2000); Anderson v. International House, 222 AD2d 337, 635 NYS2d 13 (1st Dept. 1995) [ fall from a scaffold where were no safety railings , work platform or toe boards, safety belt, lifeline, or other safety device found to constitute a proximate cause of the accident].

In sum, the defendant's opposition to the instant motion rests upon a claim that the motion is premature because witnesses to the accident have not been identified by the plaintiff and the third-party employer has not yet been deposed. Based upon those facts, the defendant seeks to have this court deny the instant motion because it rests upon the plaintiff's credibility — an issue which this court is expressly forbidden to consider on such a motion. Indeed, as the court found in Anderson v. International House, supra , "[T]here is no bar to granting partial summary judgment as to liability, on plaintiff's statement alone, since no bona fide issue as to his credibility exists." Accordingly, the motion by the plaintiff for Summary Judgment as to liability against the defendant is granted in all respects.

Turning now to the cross-motion of the defendant seeking summary judgment as against the third-party defendant based upon the terms of the contract, the position of the parties is now somewhat reversed. The defendant Sharon contends that the terms of the contract in and of themselves provide that the third-party defendant was to control all work and indemnify it for any claims, losses, etc. caused by the negligence of the third-party defendant. The third-party defendant S. M. Construction opposes this motion on the grounds that it is premature, since it has not been deposed, and because there has as yet been no finding of negligence on its part. The cross-motion is denied.

Given the testimony of the plaintiff that he was unaware of who was in control of the renovation and the absence of any testimony as to who actually controlled and directed the work, the provisions of the contract simply constitute issues of fact. The affidavit of defendant's Director authenticating the January 30, 2003 contract does not include any allegations or statements denying any involvement by the defendant in the supervision and direction of the renovation work. Indeed, there is no evidence submitted by anyone as to who provided the scaffolding from which the plaintiff fell. Finally, neither the defendant nor the third-party defendant have offered any explanation as to why their depositions have not yet been taken and now, at least eight months subsequent to the last court-ordered date, are apparently not even scheduled. While the third-party defendant offers no expectation of what these depositions might reveal, it would appear that there are sufficient issues of fact to deny the defendant's cross-motion at this time.

CONCLUSION

The foregoing constitutes the decision and order of this Court.

DATED: FEBRUARY 22, 2007 [*6]

_______________________

PATRICIA ANNE WILLIAMS

ACTING JUSTICE OF THE

SUPREME COURT