Upon the foregoing papers, Czeslaw Tomczyk (plaintiff) and his wife Halina Tomczyk (collectively, plaintiffs) move for an order, pursuant to CPLR 3212, granting them partial summary judgment on the issue of liability under Labor Law § 240 (1).

On February 5, 2007, plaintiff commenced this action against defendant, 555 Park Avenue, Inc., by filing a summons and complaint seeking money damages for personal injuries [*2]and loss of consortium based upon claims of common law negligence as well as violations of Labor Law §§200, 240, and 241 (6). On March 28, 2007, issue was joined when defendant served an answer on plaintiff. On or about November 19, 2007, defendant served a third-party summons and complaint adding Upgrade Contracting Company, Inc. to the suit, and pleading claims for common law indemnity, contractual indemnity, and contribution. On or about February 7, 2008, issue was joined in the third-party action when Upgrade served its answer.

Plaintiffs motion consists of an attorney's affirmation and three exhibits. Exhibit A is plaintiff's summons and complaint, defendant's verified answer third-party complaint. Exhibit B is plaintiff's verified bill of particulars. Exhibit C is an affidavit of the plaintiff and copies of photographs of the accident site.

Defendant's affirmation in opposition consists of five exhibits. Exhibit A is third-party defendant's verified answer. Exhibit B is the transcript of plaintiff's deposition. Exhibit C is the transcript of defendant's deposition. Exhibit D is a copy of the preliminary conference order and plaintiff's response to the preliminary conference order. Exhibit E is plaintiff's supplemental response to the preliminary conference order.

Third-party defendant's affirmation in opposition consists of three exhibits. Exhibit A is third-party defendant's verified answer. Exhibit B is a copy of a non-party subpoena to conduct an examination before trial of Mr. Tadeusz Konarzewski. Exhibit C is an affidavit of the President of third-party defendant.

Plaintiff submitted a reply affirmation to defendant's affirmation in opposition.

This personal injury action, alleging violations of Labor Law §§ 200, 240 (1), and 241 (6), as well as common law negligence,^[FN1] stems from a December 7, 2006 construction accident that occurred at a 12-story residential building at 555 Park Avenue in Manhattan (the building) shortly after 3:00 P.M. Defendant 555 Park Avenue, Inc. (555 Park), the building owner, hired third-party defendant Upgrade Contracting Co., Inc. (Upgrade) to perform outside masonry work at the building. Plaintiff had been on this job for several months and had worked the entire time with Mr. Tadeusz Konarzewski, the foreman, and Mr. Piotr Kiszczak, the helper.

Plaintiff's pleadings allege that at the time of the accident, the three men were working on the east wall of the building and were using a scaffold owned by Upgrade to perform the work. Plaintiff and the foreman were working on the scaffold and the helper was working on the ground level. The scaffold was approximately two stories up and plaintiff was wearing his safety harness. The harness was attached to the safety line which, in turn, was secured on the roof. Plaintiff testified at his deposition that shortly before the accident, he wanted to get off the scaffold to go to the bathroom but that the foreman "didn't let him." Instead, the foreman told plaintiff "to enter a special basket and a . . . co-worker was supposed to lower [him] down." According to plaintiff, on prior occasions, the foreman would lower the scaffold to allow plaintiff to go to the bathroom, and plaintiff had never used a material bucket, which was not intended to transport people to the ground. [*3]However, the foreman said it was late in the day and they had to finish pointing the bricks that had been laid. The helper told the foreman that the foreman was "crazy" for making plaintiff use the material bucket.

During the deposition, plaintiff also testified that the material bucket was on the ground and that the helper had to pull it up with a rope that went through a pulley on the scaffold. The helper then pulled up the material bucket onto the scaffold. Plaintiff entered the bucket and he and the bucket were first pulled up and then pulled down. After descending approximately one-half story, the bucket dropped to the ground. The right side of plaintiff's body also hit the ground. Plaintiff was taken to the hospital, where he underwent surgery to repair a fracture of his right hip.

In opposition to the motion, defendant Upgrade submitted an affidavit from Joseph McCallion, its president, who stated that the day following the accident, he spoke to the foreman, who told him that plaintiff had never requested the scaffold to be lowered to the ground and that the foreman had never instructed plaintiff to use a material bucket. Mr. McCallion further stated in his affidavit that the foreman is no longer employed by Upgrade and is outside its control, but, "with additional time," the foreman could be located.^[FN2] Upgrade's counsel states in her affirmation that she first learned the foreman's name on November 19, 2007 when plaintiff was deposed, that she thereafter made numerous attempts to contact the foreman to obtain his affidavit in opposition to plaintiffs' motion, but has been unable to reach him, and that she issued a subpoena for the foreman's deposition returnable April 23, 2008. The record does not disclose whether such deposition took place as scheduled but for purposes of the motion, defendant's pleadings are deemed truthful and accurate.

Plaintiff contends that while working from an elevated height, he was not provided with a necessary safety device to enable him to lower himself to the ground, that he was instructed to use a material bucket by his foreman and had no other alternative to reach the ground, and that the material bucket was not intended to transport people. Thus, plaintiff argues that summary judgment as to liability is warranted.

555 Park

555 Park contends that plaintiff was provided with, and used, adequate equipment to perform his job: a scaffold with the guard rails, a safety harness, and a secured safety line. Thus, 555 Park argues that it satisfied the requirements of Labor Law § 240 (1) by providing plaintiff with necessary and adequate safety devices. 555 Park also asserts that plaintiff's use of a material bucket in place of the scaffold as a means of reaching the ground was unforeseeable, and that the foreman's oral direction to plaintiff to use the bucket constituted an inadmissible hearsay. 555 Park contends that plaintiffs' motion should be denied as premature pursuant to CPLR 3212 (f)^[FN3] pending the completion of discovery from Upgrade.

[*4]Upgrade

Upgrade echoes 555 Park's arguments and further contends that plaintiff was a "recalcitrant worker"^[FN4] who refused to use the scaffold to lower himself to the ground. Through an affidavit of its president, Upgrade denies that the foreman instructed plaintiff to use the bucket. Upgrade asserts that while its president's affidavit is hearsay, it should nevertheless be admissible in opposition to plaintiffs' motion for summary judgment.

Summary judgment will only be granted if there are no material issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Issue finding, as opposed to issue determination, is the key to summary judgment (see Krupp v Aetna Life & Cas. Co.,103 AD2d 252, 261 [1984]) and the court should determine whether there exists a factual issue or if, arguably, there is a genuine issue of fact rather than resolve issues of credibility. " This is so because the granting of such a motion is the procedural equivalent of a trial'" (S.J. Capelin Assocs., Inc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974], quoting Falk v Goodman, 7 NY2d 87, 91 [1959]). Furthermore, the moving papers should be scrutinized carefully in the light most favorable to the party opposing summary judgment (see Garnham & Han Real Estate Brokers, 148 AD2d at 494).

Labor Law § 240 (1) provides, in pertinent part, that:

"All contractors and owners and their agents ... 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 [*5]to give proper protection to a person so employed."

Labor Law § 240 (1) was enacted to "prevent those types of accidents in which a 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]). "[N]ot every hazard or danger encountered in a construction zone falls within the scope of Labor Law § 240 (1) as to render the owner or contractor liable for an injured worker's damages" (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490 [1995]). Thus, the "protections of Labor Law § 240 (1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity'" (Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915-916 [1999], quoting Ross, 81 NY2d at 501). To prevail on a section 240(1) claim, the plaintiff must show that the statute was violated and that this violation was a proximate cause of the plaintiff's injuries (see Blake v Neighborhood Housing Servs. of New York City, 1 NY3d 280, 287 [2003]). Accordingly, "there can be no liability under section 240 (1) when the workers' actions (their negligence) are the sole proximate cause of the accident" (Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 290 [2003]) or, alternatively, where their actions are "unforeseeable, independent, intervening act[s]" as to constitute a "superseding cause" of their accidents (see Vouzinas v Bonasera, 262 AD2d 553 [1999]).

Applying the foregoing principles, plaintiffs have made a prima facie showing of their entitlement to summary judgment. In this regard, evidence that the bucket in which plaintiff was standing, while it was being lowered, dropped approximately one story to the ground, causing plaintiff's injury, establishes a prima facie showing of liability under the statute (see Alomia v NY City Transit Auth., 292 AD2d 403, 405 [2002] [vehicle struck scaffold's support cables, thereby causing scaffold to collapse]; Morales v Spring Scaffolding, Inc., 24 AD3d 42, 43 [2005] [collapse of sidewalk bridge]; Sharp v Scandic Wall Limited Partnership, 306 AD2d 39 [2003] [drop of elevator 30 feet while plaintiff on top]). Accordingly, it is incumbent upon 555 Park to raise a triable issue of fact on liability in order to defeat the motion.

In opposition to the motion, 555 Park argues that plaintiff was provided with the proper and operating safety devices (the scaffold, safety harness and safety line) to perform his work and that plaintiff's use of a material bucket to descend from the scaffold was unforeseeable. These arguments are rejected. First, defendant's argument that the scaffold, safety harness and safety line worked properly does not negate the fact that the bucket dropped while lowering plaintiff to the ground, causing plaintiff injury. In this regard, the record reveals that the devices provided to plaintiff were inadequate to provide him with the proper protection from a fall while being lowered to the ground in the material bucket. As to defendant's latter argument, while it is correct that a plaintiff's unforeseeable act may relieve defendants of liability,^[FN5] such action must be "of such an extraordinary [*6]nature or so attenuated from the defendants' conduct that responsibility for the injury should not reasonably be attributed to them" (Gordon v Eastern Ry. Supply, Inc., 82 NY2d 555, 562 [1993]). Such is not the case here. In this regard, plaintiff testified that his foreman instructed him to enter the bucket.^[FN6] Summary judgment has been granted to plaintiff-employees where the choice in the use of safety devices was made by their employers on their behalf (see Pichardo v Aurora Contrs., Inc., 29 AD3d 879, 881 [2006] [the plaintiff was not the sole proximate cause of his injuries when his use of the ladder in question on the date of his accident "was consistent with his supervisor's instructions and with the manner in which he had performed the same activities during the three weeks preceding his accident"]; Cupidon v Zlatich, 15 Misc 3d 1137 [A],*4, 2007 NY Slip Op 51015 [U] [2007], citing Pichardo, 29 AD3d at 881 ["where an inadequate and unsecured ladder has been set up by the employer and routinely used on the job, the plaintiff cannot be said to have chosen' to use the inadequate device, nor can the plaintiff be considered the sole' proximate cause of the accident for using that ladder"]).^[FN7] Thus, 555 Park's argument that it is not liable because plaintiff's actions were not foreseeable is rejected.

In further opposition to plaintiffs' motion, Upgrade has submitted the affidavit of its president, Mr. McCallion who, as noted above, states that he spoke to the foreman the day after the accident. According to Mr. McCallion, the foreman told him that plaintiff had never asked him to lower the scaffold and that he had never told plaintiff to use the material bucket to be lowered to the ground. Further, Mr. McCallion asserts that the foreman is no longer employed by Upgrade but that "with additional time," the foreman could be located. Upgrade argues that this evidence raises an issue of fact as to whether plaintiff was a recalcitrant worker.

As an initial matter, Mr. McCallion's statements as to what the foreman told him constitute inadmissible hearsay. "Although hearsay evidence may be considered in opposition to a motion for summary judgment, it is insufficient to bar summary judgment if it is the only evidence submitted" (Rodriguez, 4 AD3d at 407). Here, aside from Mr. McCallion's affidavit, Upgrade has failed to submit any additional admissible evidence which raises a question of fact as to whether plaintiff was a recalcitrant worker. Thus, Mr. McCallion's affidavit may not be used to raise an issue of fact to bar summary judgment. In any event, even assuming the truth of Mr. McCallion's hearsay [*7]statements, they would not raise an issue of fact as to whether plaintiff was a recalcitrant worker since Mr. McCallion did not say the foreman said that plaintiff refused to use any available safety devices (see Hagins v State, 81 NY2d 921, 923 [1993]).

Finally, although plaintiffs have demonstrated their prima facie entitlement to summary judgment on their Labor Law 240(1) claim, the court agrees with 555 Park and Upgrade that the motion should be denied as premature. "CPLR 3212(f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated" (Ruiz v Griffin, ___ AD3d ___, 2008 NY Slip Op 3625, 2 [2008]). "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (id.).

Here, the record reveals that plaintiff served the summons and complaint upon 555 Park on or about February 5, 2007, and that 555 Park joined issue on or about March 28, 2007. On or about August 10, 2007, plaintiff provided 555 Park with three names of his co-workers. An investigation of these individuals revealed that none of them was working with plaintiff at the time of the accident. In early September, 2007, plaintiff served 555 Park with his bill of particulars, which identified his employer. On November 19, 2007, plaintiff was deposed and identified two individuals with whom he worked on the day of the accident, one of which was his foreman. On November 21, 2007, the superintendent for 555 Park was deposed. On that same date, 555 Park served a third-party summons and complaint upon Upgrade. Shortly thereafter, on or about January 8, 2008, plaintiff moved for summary judgment. On or about February 7, 2008, Upgrade served its answer. Counsel for Upgrade states that she has attempted to contact plaintiff's foreman without success and that she has issued a deposition subpoena for him returnable April 23, 2008. Finally, no note of issue has been filed in this action.

While the court finds that counsel for 555 Park and Upgrade should have made more diligent efforts to locate plaintiff's foreman, in light of the short time period which existed to conduct discovery, and the somewhat disjointed nature in which this action has unfolded, 555 Park and Upgrade are granted an additional 60 days to complete discovery, after which time plaintiffs may move to renew their motion for summary judgment.

Plaintiffs' motion for partial summary judgment on the issue of liability on the Labor Law § 240 (1) cause of action is denied with leave to renew upon the expiration of 60 days after service of this decision and order with notice of entry.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.