The underlying accident occurred April 15, 2008 at 10:30 a.m. when the plaintiff who was employed by a third party was installing a security camera in a building located at 80 East End Avenue, New York, New York (hereafter "premises") managed by Douglas Elliman Property Management (hereafter "Elliman") and owned by 80 East End Owners Corp. (hereafter "Owners Corp")

As part of the installation the plaintiff needed to wrap wire onto an existing metal pipe "extending from the ceiling down and into the wall located behind the swing of the boiler room door". In order to perform the tie wrapping of the wire in the boiler room the plaintiff was provided with an 8 foot "A-frame" ladder by John Mercado, Jr., an employee of 80 East End Owners Corp.

The plaintiff Fritz LeConte testified at a pre-trial deposition on March 26, 2009. On April15, 2008 he was employed by Securecom a company that installs electronic security devices [10]. On April 15, 2008 he arrived at work with "Bradley" who was a co-employee [51]. There was also present the "super" and a handyman [51-52]. At 10:30 a.m. he was "wrapping wire in the boiler room" [54]. It was for a camera that was going to be installed in the lobby [54].The plaintiff was in the basement by himself [55]. "Q Can you explain for me, in layman's terms, what were you doing with the wire in the boiler room? A I was tie wrapping it. I was attaching it to the pipe coming down." [55-56] It was a silver pipe that was going through pre-existing holes [57]. "Q Where, physically, were you in the boiler room at the time of this incident? A Where [*2]was I? I was on the ladder." [57-58]. "Q At some point in time you needed a ladder? A Correct. Q. Where did this ladder come from? A It was provided to me by the building. Q When was it provided to you? A The morning of the incident." [59-60] The plaintiff could not remember whether he had used the ladder previously [60]. "Q Who provided the ladder to you? A It was either the super or the handyman. I don't remember which one." [60] There was only one Securecom ladder, a collapsible "Little Giant" ladder which was already being used by Bradly [60-62]. "Q Can you described the ladder that you were using in the basement? A No, I don't remember [62]". Although, he was able to state that it was an "A-frame" ladder. [63]. He could not recall whether it was given to him or whether it was merely pointed out by either the super or handyman [63]. He knew how to set up an A-Frame, but there were no mechanisms or latches to keep it in place [65]. He decided where to place the ladder. "Q And where was that ? Where did you wind up placing the ladder? A Against the wall where the pipe is. Q Why you say against the wall, the feet of the ladder were on the platform near the entrance door? A. Correct [66]." It was an eight-foot ladder [67]. He check to make sure it was secure. "Q How did you check that the ladder was secure? A Well, I first tried to open it. It would not open. I placed it on the wall and felt it, that I felt safe with it, that it securely planted by physically touching it and feeling. Q This is the type of ladder that when you open it up, it forms an A? A. Yes. Q But you were not using it in a configuration where it looked like an A? A No. Q You said you tried to open it? A Yes. Q And you could not open it? A No. Q Do you know why you could not open it? A There was not enough room. It was too big. Q. There would not have been enough space on the platform to open up the ladder completely? A. Yes. [68-69]". "Q Would the Securecom ladder have fit on that landing in the boiler room? A No, it would not. As you open it, it turns to the same size as an A-frame ladder would. When you open it, it widens. So it would be the same dimensions as the other ladder. So you would not be able to fit it there [69]". "When did you first discover that the ladder you were using was not going to fit on the landing? A That same morning right before the incident. Q Did you try to set that ladder up in an A configuration? A. Yes, I did. Q And it did not fit? A Correct. It did not fit. Q So then you tried to lean it up against the wall? A Yes, I did [69-70]." The plaintiff said that leaning it against the wall was a "recommended way" to use that type of ladder [70]. "Q So what happened next after you had the ladder leaning up against the wall? A I felt it to see if it is was secure, if it felt stable. I climbed up. I started tie wrapping the wire. I came down a little bit. I felt the ladder dip to one side. I felt the ladder move. The ladder dipped to one side. It fell in the slots on the floor. The floor was not solid. There was holes in it. I don't know if holes is the correct word. There were gaps in the floor. The ladder fell to the left cause me to fall [70-71]." One leg got caught in the ladder and it was bent and twisted [73]. The ladder had fallen to the left away from the door, and the plaintiff yelled for help [74-75]. Bradley, his co-worker was the first person to arrive [76]. After that the handyman entered the basement [77]. After twenty minutes the plaintiff's supervisor Robert Balino arrived [78]. There was no one else in the boiler room when the plaintiff was setting up the ladder [87]. He sustained leg and back injuries in the fall [19].

Patrick Downey testified at a pre-trial deposition held September 1, 2009. He is employed by the defendant 80 East End Owners Corporation as a Job Superintendent [5]. [pages 8 through 10 were not submitted]. "Q To your knowledge, the day you went down there with [*3]Dennis on the day of the accident, were those ladders there? A Yes, more or less in the same position [as shown in the picture exhibited to the witness]" [11-12]. He stated that he was there that day, but not at the time of the accident [16]. Downey stated that there was a space between the pieces of metal on the platform, but none of the workers ever requested anything to cover that space so that the ladder need not have been placed over the slates [20]. "Q Did the building at the time they were working have on the premises something that would have fit over the 36 by 42 without having to be cut? No."[23]. [pages 24 and 25 were not submitted].

John Mercado testified at a pre-trial deposition held May 12, 2009. He is employed by defendant 80 East End Avenue, Douglas Elliman Property Management [5]. He works in maintenance [5]. [pages 7 through 33 were not submitted]. He was shown the picture admitted as an exhibit which displayed three ladders plus a step ladder. "Q The three ladders plus the stepladder that appears in that picture, do you know if they were there on the day of the accident? A Yes. Q. Yes, they were, or no, they were not? A Yes, they were against the wall"[34]. However, there was no chain around the ladders at the time of the accident [35]. [pages 39 through 54 were not submitted]. Neither he nor Patrick Downey provided the plaintiff with any type of equipment before the accident [56-57].

Dennis Lalicic testified at a pre-trial deposition held July 10, 2009. He is employed by defendant Douglas Elliman as a handyman at the premises [5]. [pages 6 through 20 were not submitted]. He stated that no one asked to use the ladders [21]. [pages 23 through 31 were not submitted]. No request was made to him for the use of plywood [32].

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.

Labor Law 241(6) provides:

All contractors and owners and their agents, expect owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

6.All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The Commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, expect owners of [*4]one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

12 NYCRR 23-1.7(f) states:

Vertical passage. Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground expect where the nature of the progress of the work prevent their installation in which case ladders or other safe means of access shall be provided.

12 NYCRR 23-2.32(4)ii states:

All ladder footings shall be firm. Slippery surfaces and insecure object such as bricks and boxes shall not be used as ladder footings.

There is an affidavit submitted by Kathleen V. Hopkins, R.M., CSSM dated January 20, 2010. Ms. Hopkins represents that she is a "Certified Site Safety Manager" whose specialty is "site accident investigations". She states that the plaintiff was not provided with a "safe elevation device such as a scaffold or straight ladder of sufficient height". The plaintiff was not "provided with any fall protection in the form of a safety harness, tail line (lanyard), and lifeline." Ms. Hopkins stated that "[t]he A-frame ladder was not the proper or safe elevation device to provide fall prevention. A straight ladder with safety feet (shoes) used in conjunction with a tight fitting firm/hard cover for the slatted stairway platform or a scaffold used in conjunction with a tight fitting firm/hard cover for the slatted stairway would have provided proper Fall Protection."

Ms. Hopkins further noted that the "plaintiff was not provided with a safe means of vertical access to his working level that was above the boiler room's stairway top landing and floor."

It is Ms. Hopkins professional opinion as a Certified Site Safety Manager that the defendants failed to comply with Labor Law 240(1) and Labor Law 241(6), and failed to meet the Industrial Standards as set forth in 12 NYCRR 23-1.7(f) and 12 NYCRR 23-1.21(4)(ii) as well as OSHA Regulations and ANSI Standards.

There is an affidavit submitted by Joseph C. Cannizzo, P.E., a civil engineer, dated March 29, 2010. He represents that he is a professional engineer who has expertise with the New York State Labor Law. Mr. Cannizzo opines that with regard to Labor Law 240(1) that he sees "no evidence that the ladder was on the platform or that the aluminum ladder was damaged when it fell", the "steel slats provided a more than sufficiently hard surface" and "the alleged incident would not have occurred in the manner described by plaintiff." With regard to Labor Law 241(6) he states, referring to Ms. Hopkin's affidavit, that she is incorrect in her assertions that the defendants failed to comply with Labor Law 240(1) and Labor Law 241(6), and failed to meet the Industrial Standards as set forth in 12 NYCRR 23-1.7(f) and 12 NYCRR 23-1.21(4)(ii) as well as [*5]OSHA Regulations and ANSI Standards. It is his opinion that the plaintiff's "misplacement of the ladder in an unsafe position where it could not be opened and then his causing it to tilt and fall by apparently leaning beyond the left rail of the ladder."

Labor Law 200 is a codification of the common-law duty imposed on owners and managers to provide workers with a safe place to work (Ross v Curtis-Palmer Hydro-Electric Co, 81 NY2d 494). In the instant case the defendants have failed to demonstrate the absence of triable issues of fact at to their liability (Schult v Hi-Tech Construction & Management Services, Inc, 69 AD3d 701).

Summary judgment may be granted only when its proponent has demonstrated the absence of triable issues of fact. In the instant case neither the plaintiff nor the defendants have demonstrated that such state of facts exist to permit granting of summary judgment (Alvarez v Prospect Hospital, 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557)

Accordingly both the plaintiff's motion for summary judgment and the defendants' cross-motion for summary judgment are denied.

So Ordered.

Dated:April 30, 2010

_________________________

Robert J. McDonald, J.S.C.