On July 18, 2005, plaintiff Kenneth Johnson, a carpenter employed by third-party defendant Deb-Tone General Contracting Corp., allegedly sustained personal injuries when he fell through a floor opening for a stairway from the ground floor into the basement at premises located at 2136 Rockaway Parkway in Brooklyn. Defendant 2136 Rockaway Realty LLC ("Rockaway Realty") owned the construction site, and defendant Pinmark Contracting Co., LLC ("Pinmark") was the general contractor.

In his motion, Plaintiff contends that he is entitled to partial summary judgment on the issue of liability against defendants Rockaway Realty and Pinmark on his Labor Law § 240(1) cause of action. In their cross-motion, Defendants contend, among other things, that they are entitled to summary judgment dismissal of Plaintiff's cause of action alleging violation of Labor Law § 240(1). [*2]

Labor Law § 240 (1) provides:

"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, 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."

The statute "protects workers from elevation-related hazards when they are injured while involved in [the] enumerated work activities. " (Panek v County of Albany, 99 NY2d 452, 455 [2003].) The statute "applies to both falling worker' and falling object' cases." (Narducci v Manhasset Bay Associates, 96 NY2d 259, 267 [2001].) Although the statute imposes "strict" or "absolute" liability of a type (see Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 286-89 [2003]), "an accident alone does not establish a Labor Law § 240(1) violation or causation" (id., at 289.) "In order to establish prima facie entitlement to judgment as a matter of law on a cause of action pursuant to Labor Law § 240(1), a plaintiff must provide evidence that the statute was violated and that the violation was the proximate cause of his or her injuries." (Wosczyna v BJW Associates, 31 AD3d 754, 755 [2d Dept 2006]; see also Chacon v New York University, 258 AD2d 430, 431 [2d Dept 1999].) "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." (Ross v Curtis-Palmer Hydro-Elec Co., 81 NY2d 494, 501 [1993].)

In support of his motion, Plaintiff proffers his own deposition testimony that he and his boss "Tony" were leveling the second floor and first floor ceiling of the subject building; that to do the job, Plaintiff would be on the first floor, and Tony would be on the second floor; that he had to look up at the ceiling and utilize a two-by-four beam to raise the second-floor beams; that at the time of the accident, he was holding the two-by-four in the air; and that as he stepped to the left to start working on another beam, he fell through an unprotected hole into the basement of the building.

Plaintiff also submits the affidavits of Tyrone Williams, an employee of Deb-Tone, who avers that he heard Tony scream that Plaintiff fell through the stairwell opening into the basement; that he immediately went to the first floor, and observed that there was no guardrail or other protection for the opening; that three days prior to the accident, he observed that there was a guardrail around the opening; and that a guardrail was erected after the accident.

Plaintiff also submits the affidavit of Clement Nichols, an employee of Deb-Tone, who avers that when he started work that day, he observed that the stairwell hole was completely unguarded; that he heard a loud noise, and heard Tony scream that Plaintiff fell; that he immediately went to the basement, and saw Plaintiff lying on the floor; and that he observed that [*3]there "was absolutely no guard rail at all around the opening through which he fell."

Plaintiff also submits the affidavit Marc Thomas, an employee of Deb-Tone, to the effect that he also, upon reporting to the accident scene after hearing Tony scream, noticed that there was "absolutely no guard rail or other protection at all around the opening through which [Plaintiff] fell."

In opposition, Defendants submits, among other things, the deposition testimony of site supervisor Paul Flecker that railings were placed around all floor openings; that the railings were constructed of 2-by-4's and 1-by-6's; that the railings were screwed into the bottom decking; that the railings were 36 inches high; that he observed a railing around the perimeter of the subject hole ten minutes prior to Plaintiff's accident; that he observed the accident scene 15 minutes after the accident; that he observed that Plaintiff "broke through the railings"; and that he found a portion of the railing in the basement where Plaintiff fell.

Initially, contrary to Defendants' contention, Plaintiff's fall through a stairwell hole on the first floor of a construction site, causing him to fall into the basement, is sufficiently "gravity-related" for purposes of Labor Law § 240(1). (See e.g. Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2d Dept 2006]; Brandl v Ram Builders, 7 AD3d 655, 655 [2d Dept 2004] [plaintiff fell through unprotected opening from the first floor into the basement]; Perkins v Ken Lowentheil & Daughters, Inc., 282 AD2d 510, 511 [2d Dept 2001]; John v Franklin Baharestani, 281 AD2d 114, 117 [1st Dept 2001]; Skinner v Oneida-Herkimer Solid Waste Management Authority, 275 AD2d 890, 890 [4th Dept 2000]; Serpe v Eyris Productions, Inc., 243 AD2d 375, 377 [1st Dept 1997]; Carpio v Tishman Construction Corp. of New York, 240 AD2d 234, 235 [1st Dept 1997] ["Plaintiff's partial fall through a hole at a construction site can hardly be characterized as only tangentially related to the effects of gravity."].)

The cases cited by Defendants are either not good law in the Second Department (see Schneider v Hanover East Estates, Inc., 237 AD2d 274, 275 [2d Dept 1997] [abrogating Spinelli v St. John Nepmucene Roman Catholic Church, 140 AD2d 427 (2d Dept 1988) and disagreeing with Marcellino v Nigro, 149 AD2d 775 (3d Dept 1989) and Riley v John W. Stickl Construction Co., Inc., 242 AD2d 936, 936 (4th Dept 1997)]; or are not applicable to the facts of this case (see Riccio v Shaker Pine, Inc., 262 AD2d 746, 747 [3d Dept 1997] [involving a fall down a permanent stairway as opposed to an unprotected hole meant for a stairwell].)

Plaintiff's deposition testimony, as well as his coworker's averments, that Plaintiff fell through an unprotected hole at a construction site, and that there were no safety devices present to prevent the fall, sufficiently demonstrate Plaintiff's prima facie entitlement to summary judgment on his Labor Law § 240(1) cause of action. (See Brandl v Ram Builders, 7 AD3d at 655; Perkins v Ken Lowentheil & Daughters, Inc., 282 AD2d at 511.)

In opposition, Defendants fail to raise a triable issue of fact. Even assuming the truth of Paul Flecker's testimony that there was a railing around the subject hole, he fails to demonstrate that the railing was so constructed as to give Plaintiff "proper protection" as required by the [*4]statute. (See Valensisi v Greens at Half Hollow, LLC, 33 AD3d at 695 [plaintiff granted summary judgment when he fell through a hole that was protected only by unsecured plywood boards].) Defendants fail to submit any other evidence demonstrating that any railing around the subject hole constituted "proper protection". In the absence of any evidence that any railing afforded Plaintiff "proper protection", this case is no different than other cases in which plaintiffs have been awarded summary judgment where plaintiffs have been injured due to the failure of a safety device. (See e.g. Moller v City of New York, 43 AD3d 371, 372 [1st Dept 2007] [hoist]; Beesimer v Albany Avenue/Route 9 Realty, Inc., 216 AD2d 853, 854 [3d Dept 1995][scaffold]; Mingo v Lebedowicz, 57 AD3d 491, 493 [2d Dept 2008][ladder].)

In other words, contractors and owners do not comply with the statute by merely providing a safety device (see Kijak v 330 Madison Ave. Corp., 251 AD2d 152, 153 [1st Dept 1998]); rather the device must be "so constructed, placed and operated as to give proper protection." (See Labor Law § 240[1].) Where a plaintiff establishes prima facie that a safety device failed to prevent injury, the defendant must raise a triable issue with evidence in admissible form that, nonetheless, the safety device was "so constructed, placed and operated as to give proper protection." (See id.) Such a showing might require expert testimony, which might appropriately be provided by the defendant, and reference to standards, custom or practice."In cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, . . . plaintiffs [are aided] by a presumption that the ladder or scaffolding device was not good enough to afford proper protection." (Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d at 289 n 8.) The collapse of a guardrail warrants the same presumption. (See De Jara v 44-14 Newtown Rd. Apt. Corp., 307 AD2d 948, 949-50 [2d Dept 2003].) Even if, therefore, the testimony of Defendant's site supervisor is accepted, it is clear that any railings did not provide proper protection. Indeed, that Plaintiff "broke through the railings", in the supervisor's words, would itself establish prima facie a violation of the statute.

"Once the plaintiff makes a prima facie showing the burden then shifts to the defendant, who may defeat plaintiff's motion for summary judgment only if there is a plausible view of the evidence - - enough to raise a fact question - - that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident." (See Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d at 289 n 8; see also Ernest v Pleasantville Union Free Sch. Dist., 28 AD3d 419, 419 [2d Dept 2006].) Stated differently, "[w]hether the device provided proper protection is a question of fact, except when the device collapses, moves, fails, or otherwise fails to support the plaintiff and his materials." (See Nelson v Ciba-Geigy, 268 AD2d 570, 572 [2d Dept 2000].)

Defendants were "required to present some evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may [have been] the sole proximate cause of his . . . injuries'." (See Evans v Syracuse Model Neighborhood Corp., 53 AD3d 1135, 1137 [4th Dept 2008][quoting Ball v Cascade Tissue Group—N.Y., Inc., 36 AD3d 1187, 1188 (3d Dept 2007)].) All that Defendants present on this motion is a description of the railings that their supervisor asserts were placed around all floor openings, unsupported by expert [*5]opinion of a third-party or the site supervisor himself, with adequate foundation, that the railings were "so constructed, placed and operated as to give proper protection", and that some conduct of Plaintiff was the sole proximate cause of his fall. (Compare Kok Choy Yeen v NWE Corp., 37 AD3d 547, 549 [2d Dept 2007]; Heffernan v Bais Corp., 294 AD2d 401, 403 [2d Dept 2003].)

If, as Defendants contend, there were railings around all floor openings, there can be no conclusion on this record but that the railings were not "so constructed, placed and operated as to give proper protection." (See Labor Law § 240[1]; Godoy v Baisley Lumber Corp., 40 AD3d 920, 923 [2d Dept 2007].)

Accordingly, Plaintiff's motion for an order, pursuant to CPLR 3212, granting him summary judgment on his Labor Law § 240(1) cause of action is GRANTED.

In their cross-motion, Defendants also seek an order granting them summary judgment dismissal of Plaintiff's Labor Law § 241(6) cause of action on the grounds that the Industrial Code provisions alleged to have been violated are inapplicable to the facts of the case, and that the Industrial Code provisions are not sufficiently specific to sustain a Labor Law § 241(6) cause of action. Plaintiff's Bill of Particulars alleges violation of 12 NYCRR 23-1.7(b)(1), 12 NYCRR 23-1.15, and 12 NYCRR 23-2.7(e) to support his Labor Law § 241(6) cause of action.

Defendants' contention that 12 NYCRR 23-1.7(b)(1) is inapplicable because Plaintiff did not fall through a hazardous opening that required a cover, barrier or safety railing is without merit. Since Plaintiff fell through the hole from the first floor into the basement, 12 NYCRR 23-1.7(b)(1) is clearly applicable. (See Wells v British American Development Corp., 2 AD3d 1141, 1144 [3d Dept 2003]; Alvia v Teman Electrical Contracting, Inc., 287 AD2d 421, 423 [2d Dept 2001] [holding that 12 NYCRR 23-1.7(b)(1) is "intended to protect workers from falling through an opening to the floor below"].) The case cited by Defendants, Marcellino v Nigro (149 AD2d 775) does not even address the applicability of 12 NYCRR 23-1.7(b)(1); rather it addresses the applicability of Labor Law § 241-a.

Defendants' contention that 12 NYCRR 23-1.15, is inapplicable because "this permanent stairwell opening at ground level did not require a safety railing", and that "there is no evidence that the lack of a safety railing caused plaintiff's accident" are similarly meritless. 12 NYCRR 23-1.15 "discusses what constitutes an adequate safety railing when one is required under the Industrial Code", and may be read in conjunction with the failure to comply with 12 NYCRR 23-1.7(b)(1). (See Wells v British American Development Corp., 2 AD3d at 1144.) In light of Plaintiff's allegation that there was no safety railing, and in light of Defendants' claim that there was a safety railing but that Plaintiff broke through it, this section is clearly applicable to the facts herein.

However, the branch of Defendants' motion for summary judgment dismissal of Plaintiff's Labor Law § 241(6) cause of action is GRANTED to the extent that Plaintiff may not rely upon 12 NYCRR 23-2.7(e), which applies only to staircases. Here, Plaintiff fell down a stairwell hole, [*6]not a staircase. (See e.g. Smith v McClier Corp., 38 AD3d 322, 323 [1st Dept 2007] [noting distinction between a fall down a hazardous opening and a fall down a staircase for purposes of 12 NYCRR 23-2.7(e)].) Plaintiff does not oppose this branch of Defendants' cross-motion.

In their cross-motion, Defendants also seek summary judgment dismissal of Plaintiff's Labor Law § 200 and common law negligence claims since "there was no direction or control", and since there was "no notice of any defective condition." "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004][quoting Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 (4th Dept 1992)].) Here, Defendants fail to point to any evidence in support of this branch of their motion. As such, they fail to demonstrate prima facie entitlement to summary judgment dismissal of Plaintiff's Labor Law § 200 and common law negligence causes of action. Accordingly, the branch of Defendants' motion seeking summary judgment dismissal of Plaintiff's Labor Law § 200 and common law causes of action is DENIED.

In sum, Plaintiff's motion is granted in its entirety. Defendants' cross-motion is granted only to the extent that Plaintiff may not rely upon 12 NYCRR 23-2.7(e) in support of his Labor Law § 241(6) cause of action, but is otherwise denied.

May 27, 2009____________________

Jack M. Battaglia

Justice, Supreme Court