Motion by plaintiff for summary judgment and companion motion by the Authorities for summary judgment (together with cross-motion by the City for summary judgment) are consolidated for disposition.

Upon the foregoing papers it is orderedthat the motion and cross-motions are decided as follows:

Motion by plaintiff for summary judgment on the issue of liability as against Tully/Pegno, pursuant to Labor Law §240(1), is granted. Motion by the TA, MTA and Triborough is deemed a cross-motion. Motion by the TA, MTA and Triborough for summary judgment upon the ground that the complaint fails to state a cause of action against them in that said defendants are not proper parties is granted. Cross-motion by the City for summary judgment upon the ground that the complaint fails to state a cause of action against it in that it is not a proper party is granted.

Plaintiff, employed by third-party defendant Cornell as an ironworker, allegedly sustained personal injuries as a result of falling from a steel road beam at a construction site at the Whitestone Expressway in Queens County on September 13, 2004.

Plaintiff testified at his deposition that he was fastening X-bracing to the road beams and was standing on one of the flanges of a road beam. The width of the area of the flange upon which he was standing was approximately 12 inches, and it was elevated approximately 15 to 18 feet from the ground. He was working with two other workers who were opening up the beams with a hydraulic jack called a porter power in order to make the X-bracing fit. It was plaintiff's job to scurry down the beam, walking on its flange to put the porter power in place so the other workers could operate it. The X-bracing attaches to the flanges of each beam with bolts. The purpose of the porter power is to open up, or push apart the beams so the bolt holes in the flanges of the beams and the X-bracing line up. One side of the X-brace was already bolted to a beam. The other side, which was the side on the beam on which plaintiff was squatting, was not yet bolted and they needed to open up the two beams to align the bolt holes on that side (see transcript p. 166)

Plaintiff testified that he was wearing a harness attached to a six-foot long lanyard that he hooked around a beam called a cross bracing stiffener, which was also a type of X-bracing but is attached to the bottom of the beams (p. 35) and that is why he had to squat down on the beam. The stiffener is L-shaped, two by three inches and ten to 12 feet long. He said the stiffener was bolted on both ends to the bottom flanges of the two beams. He put the lanyard around the stiffener because he saw that the stiffener [*2]was attached at both ends to the flanges of the beams with bolts (p. 177). He stated that he saw bolts in the stiffener. He put his lanyard around the stiffener "because there was nothing else to tie off on, no fall protection anywhere" (p. 40) When the workers used the porter power to open up the beam, the stiffener moved and "it just came off", pulling plaintiff off the beam. The stiffener opened up and the lanyard came off the stiffener through the opening and plaintiff fell to the ground. After he had fallen and was on the ground, he saw the stiffener "hanging there." The end of the stiffener that had been bolted to the flange that he had been on "was down" (pp. 178-179).

Plaintiff contends that he is entitled to summary judgment under §240(1) upon the grounds that defendants failed to provide plaintiff with adequate safety devices and that said failure was the proximate cause of plaintiff's injuries.

It is undisputed that Labor Law §240(1) is clearly implicated in this case, since plaintiff fell from an elevated work site while engaged in the erection, demolition, repairing or alteration of a structure (see Beard v. State of New York, 25 AD3d 989 [3rd Dept 2006]).

Labor Law §240(1) is a strict liability provision that imposes upon owners and contractors absolute liability for any breach of the statutory duty that proximately causes injury (see Panek v. County of Albany, 99 NY2d 452 [2003]). What is meant by "strict" or "absolute" liability in the Labor Law context is that any negligence on the part of plaintiff which contributes to his injuries is not a defense and will not diminish the owner's or contractor's liability under Labor Law §240(1) if it is established both that there was a violation of the statute and that the violation was a proximate cause of the injury (see Blake v. Neighborhood Housing Services of New York, 1 NY3d 280 [2003]).

Plaintiff has established a prima facie entitlement to summary judgment by submitting evidence, in admissible form, that Tully/Pegno failed to provide plaintiff with a proper safety device and that such failure proximately caused plaintiff's injuries.

Whether a furnished device provided proper protection to the worker within the meaning of §240(1) is ordinarily a question of fact to be resolved at trial (see Canino v. Electronic Technologies Co., 28 AD3d 932 [3rd Dept 2006]). "However, where the uncontroverted evidence establishes that the safety device collapsed, slipped or otherwise failed to support him or her, the plaintiff demonstrates a prima facie entitlement to summary judgment under Labor Law §240(1) and the burden shifts to the [*3]defendant" (Ball v. Cascade Tissue Group-New York, Inc., 36 AD3d 1187, 1188 [3rd Dept 2007]; see also Nelson v. Ciba-Geigy, 268 AD2d 570 [2nd Dept 2000]).

Plaintiff's testimony is uncontroverted that he was wearing a harness and lanyard and that he had secured the lanyard around the stiffener. It is also uncontroverted that when the hydraulic jack called a porta power was used to move the beams, the stiffener moved, dislocated and separated from the road beam and plaintiff fell. It is also uncontroverted that the lanyard slipped off the now open end of the stiffener that was hanging and, thus, did not arrest plaintiff's fall. Plaintiff was not provided with any other safety devices, such as safety lines or nets.

Therefore, plaintiff satisfied his prima facie burden by showing that Tully/Pegno failed to provide him with an adequate safety device (see Rudnik v. Brogor Realty Corp., 45 AD3d 828 [2nd Dept 2007]).

Counsel for Tully/Pegno and Cornell contend that there was no violation of §240(1) because plaintiff was provided with a proper safety device, to wit, a harness and lanyard that was not defective, and that plaintiff improperly tied-off to an unbolted lateral brace (stiffener) and, therefore, the sole proximate cause of his injuries was his improper use of the safety device. Counsel also contend that instead of using the beam or stringer as a work platform, he could have sat upon planking, as his two co-workers had done, or utilized a ladder. However, counsel provide no competent admissible evidence in support of their contentions.

The opposition papers do not include any affidavits. Annexed to the opposition papers of Cornell is a copy of an engineer's daily project diary for September 13, 2004. The engineer in charge wrote that he was informed by one Bill Ryan of Tully/Pegno that plaintiff fell, that plaintiff was wearing a full body harness and lanyard which he had connected to the diagonal brace and which he thought was a proper tie off and that plaintiff's error was that the diagonal brace had not yet been bolted up, so that when the other worker jacked the angle brace, the diagonal brace dislodged from the flange, causing plaintiff along with his lanyard to slide off the brace and fall. This document essentially is in agreement with plaintiff's testimony, except that it states that the stiffener was not bolted up. It is not notarized, consists of hearsay statements and, thus, is inadmissible.

The opposition papers also rely upon the depositions annexed to plaintiff's moving papers. Counsel for Tully/Pegno and Cornell rely upon the deposition testimony of 1) David Meche, general [*4]foreman for Cornell at the job site, 2) Larry Morris, vice president of safety and risk management of Cornell and 3) Stephen Bellantoni, project superintendent of Tully. Also annexed to plaintiff's moving papers and also referred to in the opposition papers is Meche's witness statement.

None of these individuals were witnesses to the accident and none had any personal knowledge of the facts surrounding plaintiff's accident. Their deposition testimony as to how the accident happened is based entirely upon hearsay. They were told about the accident by Sammy Lucas, plaintiff's foreman. There is no deposition or affidavit of Sammy Lucas annexed to any of the papers. The deposition testimony that the stiffener or diagonal brace was not bolted in on one side is based solely upon the unsubstantiated hearsay statement of this individual. Indeed, even this hearsay testimony concerning whether the stiffener was bolted is contradictory. Morris testified that he was told by Lucas that this piece of steel moved "because it wasn't bolted in on the opposite side" (p. 50). However, Morris later testified that according to his recollection he was told that it was "loosely bolted" (p. 87).

Thus, no competent, admissible proof has been proffered to contradict plaintiff's testimony that the stiffener to which he attached his lanyard was bolted to the flange of the beam. Moreover, no competent , admissible evidence has been proffered to show that the stiffener in question was not a proper tie-off point.

Counsel for Tully/Pegno and Cornell rely upon the report prepared by Meche (annexed to the motion as Exhibit "M")and his deposition testimony explaining his report, in which he wrote "improper tie-off point" in item number 7 of the form which asked, "Describe what employee was doing at the time of the accident." However, Meche had no personal knowledge in this regard and merely wrote down what he was told (p. 114). When asked what he meant when he wrote "improper tie-off", he responded, "From the information given to me at that time, I said he was tied-off, so I don't remember, so whatever he was tied off to, didn't work right" (p.80). When asked again what he meant by "tie-off properly", he said, "What I was told, it wasn't a good enough tie-off." Whereupon, when asked what would be a good enough tie-off, he responded with the completely meaningless statement, "Anything that it may not have his lanyard hooked to something good enough." He was then asked, "But as you sit here today, you don't know what he was tied-off to or what the problem was with his tie-off?" He responded, "No" (p.83). Thus, not only did Meche have no knowledge as to whether plaintiff's tie-off was proper, or what a proper tie-off actually was, but he had absolutely no idea what plaintiff tied [*5]off to in the first place.

Therefore, Meche's opinion, based upon being shown a photograph of the construction site, that plaintiff could have tied off to the cross frame attached to the top flanges of the beams is irrelevant, since he did not know whether the stiffener to which plaintiff tied off was proper.

Indeed, the speculative opinions of Meche, Morris and Bellantoni as to where, from looking at the photograph, plaintiff could have tied off to do not raise any question of fact as to whether plaintiff's choice of using the stiffener was patently improper and constituted the sole proximate cause of the accident.

Moreover, Morris stated that the stiffener, if bolted, was a proper tie-off point (p. 85).

Counsel for Tully/Pegno and Cornell fail to provide any factual basis for their contention that the stiffener or lateral brace was not bolted and was an improper tie-off location.

Counsel also contend that plaintiff could have utilized a plank or a ladder as a work platform instead of the beam. However, whether or not plaintiff could have done so is irrelevant. The basis of Tully/Pegno's and Cornell's defense is that plaintiff mis-used an otherwise proper safety device — the harness and lanyard. Their argument is that §240(1) does not apply because plaintiff's improper tie-off of his lanyard was the sole proximate cause of his fall. No evidence is adduced by way of deposition testimony or otherwise that it was improper for plaintiff to have stood on the beam to do his work instead of on a plank or ladder. No argument is made that plaintiff's failure to use a plank or ladder as his work platform was the sole proximate cause of his fall. Moreover, no evidence was proffered to show that plaintiff either was provided with a plank or that he could have performed his work from a ladder.

Although plaintiff's co-workers were sitting on wood, plaintiff testified, "I had no wood" (p. 45). There is no evidence to suggest that plaintiff was provided with or had available to him a plank to sit on. Bellantoni merely identified a plank in a photograph and described what it was and how much it cost and the procedure used by workers to cut the planks to length to fit their work area. Moreover, it is pure speculation on the part of counsel that plaintiff could have sat with his co-workers on their plank. Plaintiff's job duty was different from that of his co-workers and there is no evidence that he was working in the same location.

With respect to the use of a ladder, plaintiff testified that [*6]he had to climb up a ladder to get to the beam (p.144). He had used ladders to get up to the beams on prior days and on the morning of the day of the accident. The ladders were not put up by him, but were already hooked up to the beam (p.143). He had been working on the beam in the morning of the day of the accident and then came down and took a break. After the break, the ladder was no longer attached to the beam, but "it was attached to where the road had entered where the new road was starting, there was the old road, that's where the ladder was, we walked up the ladder and walked across the top of the I-beams where we were supposed to work, that's the only way to get there" (pp. 155-156). The deposition testimony merely indicates that the ladder was used to reach the work site, not that plaintiff could have performed his work from the steps of the ladder. Indeed, it is uncontroverted that from the point where he and his co-workers had climbed up, they then had to walk across the beams to reach their respective work sites. Moreover, it is uncontroverted that plaintiff had to scurry along the beam to perform his work.

Therefore, it is pure conjecture that he could have used a ladder or sat on a plank to perform his work and that, had he done so, he would not have fallen. The deposition testimony also establishes that plaintiff's use of the beam and stiffener as a work platform was his normal procedure. There is nothing, on the record on this motion, to suggest that such use was prohibited or improper. The deposition testimony and reports, although hearsay, support plaintiff's account that he was caused to fall by the fact that the stiffener gave way under the stress of the hydraulic jack.

Therefore, not only do the opposition papers fail to show that plaintiff's negligence was the sole proximate cause of his fall, they fail to show that plaintiff was negligent at all.

Although plaintiff's counsel does not rely upon the point, the opposition papers argue that the stiffener was part of plaintiff's work platform. Although plaintiff alleges that he was standing on the I-beam and does not state that he was standing on the stiffener, the opposition papers argue that the stiffener was his work platform by pointing out the hearsay deposition testimony that plaintiff had his foot on the lateral brace or was otherwise on the lateral brace.

If such was the case, then said work platform could be viewed as the functional equivalent of a scaffold, the collapse of which, in and of itself, also constituted prima facie proof that §240(1) was violated and that the violation of that section of the Labor Law was the proximate cause of plaintiff's injuries (see Lagzdins v. United Welfare Fund-Security Div. Marriott Corp., 77 AD2d 585 [*7][2nd Dept 1980]; Borland v. Sampson Steel Fabricators, Inc., 298 AD2d 831 [4th Dept 2002]; McGurk v. Turner Construction Co., 127 AD2d 526 [1st Dept 1987]).

It has been held that surfaces which consist of the work itself cannot constitute a scaffold within the meaning of §240 (see Broderick v. Cauldwell-Wingate Co., 301 NY 182 [1950]; see also Futo v. Brescia Building Company, Inc., 302 AD2d 813 [3rd Dept 2003]). Although the Court of Appeals has never overruled its holding in Broderick, a narrow exception is recognized in situations where the work itself becomes part of the place to work. In Kennedy v. McKay, (86 AD2d 597, 598 [2nd Dept 1982]), the Second Department held, "The old rule, that anything which constituted a part of the work itself could not at the same time constitute a scaffold within section 240 [citing Broderick], appears to have given way to the extent that the work itself may now become part of the place to work and may fall within the statute (see Lagzdins v. United Welfare Fund-Security Div. Marriott Corp., supra, p 588)."

Labor Law §240(1) is to be construed as liberally as necessary to accomplish its purpose (see Rocovich v. Consolidated Edison Co, 78 NY2d 509 [1991]). That purpose is to provide exceptional protection for workers against elevation-related hazards (id.) by placing the ultimate responsibility for their safety upon the owner and general contractor instead of the workers who are not in a position to protect themselves from accident (see Zimmer v. Chemung County Performing Arts, 65 NY2d 513 [1985]).

A scaffold is one of the safety devices listed in §240(1). The collapse of scaffolding constitutes a failure of the safety device and, thus, establishes a prima facie showing of proximate cause linking the violation to plaintiff's injuries(see Manning v. P.J. Kenneally Construction Company, Inc., 168 AD2d 861 [3rd Dept 1990]). Therefore, where the uncontroverted evidence establishes that the device collapsed or otherwise failed to safely support the worker, a prima facie entitlement to summary judgment under §240(1) has been demonstrated (see Ball v. Cascade Tissue Group-New York, Inc., 36 AD3d 1187 [3rd Dept 2007]).

Since it is the position of Tully/Pegno that the stiffener was being used by plaintiff as his work platform and since it is undisputed that the stiffener collapsed or moved and such event caused plaintiff to fall, such would establish a prima facie case of liability under §240(1) (see Zimmer v. Chemung County Performing Arts, supra).

Additionally, the collapse of a work site itself constitutes a prima facie violation of §240(1) (see Richasrdson v. Matarese, [*8]206 AD2d 353 [2nd Dept 1994]). Since the stiffener or lateral brace which collapsed was part of the structure being demolished or constructed, it not only served as the equivalent of a scaffold, and was thus a "safety device" pursuant to §240(1), but it also constituted the work site itself.

The sole opposition consists of the argument that the accident would not have occurred but for plaintiff's failure to tie off properly and that such failure was the sole proximate cause of his death.

Since a plaintiff, in order to recover under §240(1), must establish that there was a violation of the statute and that such violation was a proximate cause of his injuries, if plaintiff's own conduct is the sole proximate cause of his injuries no liability can attach under Labor Law §240(1) (see Weininger v. Hagedorn & Company, 91 NY2d 958 [1998]). Conversely, it is axiomatic that if a violation of the statute is a proximate cause of plaintiff's injury, plaintiff cannot also be solely responsible for it and, therefore, even were plaintiff also negligent in the manner in which he tied off and such negligence contributed to his injuries, such would not serve as a defense to absolve defendants of their liability under Labor Law §240(1)(see Blake v. Neighborhood Housing Services of NYC, 1 NY3d 280 [2003]).

Since plaintiff has met his prima facie burden under §240(1), and Tully/Pegno and Cornell, in opposition, have failed to raise an issue of fact, plaintiff is entitled to summary judgment on the issue of liability pursuant to Labor Law §240(1).

Finally, counsel for Tully/Pegno contends they are not proper parties and, therefore, the Court should sua sponte dismiss the complaint as against Tully/Pegno in their individual capacities. However, since Tully/Pegno have not cross-moved for such relief, this issue is not properly before the Court (see CPLR 2215).

Motion by the TA, MTA and Triborough for summary judgment dismissing the complaint and any cross-claims as against them upon the ground that plaintiff fails to state a cause of action against them, in that they are not proper parties, is granted. Said defendants have established, by evidence in admissible form, that they neither owned, managed or had anything whatsoever to do with the highway constituting the subject construction work. In opposition, plaintiff failed to raise an issue of fact. The opposition papers fail to establish that the Authorities exercised any control or supervision over the construction work or plaintiff.

Accordingly, the motion of the Authorities must be granted. [*9]

Cross-motion by the City for summary judgment dismissing the complaint and any cross-claims as against it is also granted, there appearing no opposition, for the same reasons.

Accordingly, plaintiff's motion for partial summary judgment against Tully/Pegno as to the issue of liability is granted, motion by the Authorities for summary judgment dismissing the complaint as against them is granted and cross-motion by the City for summary judgment dismissing the complaint as against it is granted and the complaint and any cross-claims are dismissed as against defendant Authorities and the City.

Dated: January 23, 2008

KEVIN J. KERRIGAN,, J.S.C.