Upon the notice of motion dated March 8, 2010 of defendant and the affirmations (2) and exhibits submitted in support thereof; the notice of cross-motion dated May 31, 2010 of plaintiff and the affirmation and exhibits submitted in support thereof; the reply affirmation dated June 22, 2010 of defendant; the reply affirmation dated June 30, 2010 of plaintiff; and due deliberation; the court finds:

Defendant Pelham Realty, LLC ("defendant" or "Pelham") moves for summary judgment and discovery-related relief. Plaintiff cross-moves for summary judgment as to liability under [*2]Labor Law § 240(1) and for discovery-related relief. Plaintiff had been performing renovation work on Pelham's property when he fell from a wood plank supported by two A-frame ladders.

Defendant moves for summary judgment on the ground that plaintiff is a special employee of Pelham through JFA, LLC ("JFA"), and thus his action is barred by Worker's Compensation Law §§ 11 and 29(6). A special employee is one who is transferred for a limited time to another employer, and whether an employee may be categorized as a special employee is a question of fact. See Thompson v. Grumman Aerospace Corp., 78 NY2d 553, 557, 585 N.E.2d 355, 358 (1991). However, where there are undisputed facts, the determination can be made as a matter of law. Id., at 558.

None of the evidence submitted by defendant in support of its motion demonstrates that plaintiff was a special employee as a matter of law. Plaintiff testified that he was employed by Abro Management ("Abro") at the time of the incident. He received his daily tasks from the building's superintendent, Zecir Sinanovic ("Sinanovic"), who paid plaintiff in cash. Plaintiff did not know who employed Sinanovic.

Sinanovic testified that he was employed by Abro as the superintendent of the building at the time of plaintiff's incident; however, he did not know who plaintiff's employer was. Sinanovic confirmed that he directed plaintiff's work, but plaintiff was not his employee. He did not recognize the name JFA other than as a name that appeared on his own paychecks

Sinanovic's testimony contradicts the testimony of property manager Issac Widroff. Widroff testified that he was employed by Abro but plaintiff and Sinanovic were employed by JFA. Widroff testified that JFA was a payroll company that operated out of the same office as Abro, but he did not describe the relationship between Abro and Pelham or the relationship between plaintiff, JFA and Pelham. Moreover, in light of the conflicting testimony, the Workers' Compensation Board finding that plaintiff was employed by JFA is not dispositive. See Vera v. NYC Partnership Hous. Dev. Fund Co., 40 AD3d 472, 837 N.Y.S.2d 47 (1st Dep't 2007).

Plaintiff cross-moves for partial summary judgment on liability on the basis that Pelham, as owner, is liable pursuant to Labor Law § 240(1). Labor Law § 240(1) places a non-delegable duty upon owners and contractors to provide proper protection to workers where the work site is either elevated or positioned below areas where materials are being hoisted or secured. See Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 (1993). Such work includes repairing, altering and painting of a building or structure. See Labor Law § 240(1).

There is no dispute that plaintiff was directed to plaster and repaint an apartment located on the property. Sinanovic testified that plaintiff was provided with six-foot step ladders to perform his work. Plaintiff was not given any additional safety equipment. When a safety device is furnished and collapses, this constitutes a prima facie case of liability under Labor Law § 240(1). See Thompson v. St. Charles Condominiums, 303 AD2d 152, 756 N.Y.S.2d 530 (1st Dep't 2003).

Defendant contends that plaintiff was a recalcitrant worker, and his actions were the sole proximate cause of the accident. Specifically, defendant contends that the makeshift scaffold plaintiff improvised was the reason he fell. Its arguments that plaintiff was a recalcitrant worker are without merit. See McCarthy v. Turner Constr., Inc., 52 AD3d 333, 859 N.Y.S.2d 648 (1st Dep't 2008). There has been no testimony elicited that plaintiff refused to use the equipment provided. Stolt v. General Foods Corp., 81 NY2d 918, 613 N.E.2d 556 (1993). Defendant also [*3]fails to establish that plaintiff's own actions in improvising a scaffold were the sole proximate cause of the incident, as defendant does not rebut plaintiff's testimony that he fell when an arm on the aluminum ladder broke. See Mata v. Park Here Garage Corp., 71 AD3d 423, 896 N.Y.S.2d 57 (1st Dep't 2010). Nor is contributory negligence a defense to a Labor Law § 240(1) claim. See Smizaski v. 784 Park Ave. Realty, 264 AD2d 364, 366, 694 N.Y.S.2d 371, 373 (1st Dep't 1999). Defendant has raised no triable issue of fact in opposition.

Given the parties' protracted history with respect to discovery-related disputes, the balance of the motion and cross-motion is respectfully referred to the Justice presiding over the Differentiated Case Management Part.

Accordingly, it is

ORDERED, that defendant's motion for summary judgment is denied; and it is further

ORDERED, that plaintiff's cross-motion for partial summary judgment on liability on the Labor Law § 240(1) claim is granted; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment in favor of plaintiff against defendant as to liability on plaintiff's Labor Law § 240(1) claim only.

ORDERED, that the discovery-related facets of the motion and cross-motion are respectfully referred to the Justice presiding over the Differentiated Case Management Part.

This constitutes the decision and order of the court.

Dated: August 6, 2010

____________________________

Lucindo Suarez, J.S.C.