Papers Numbered

Notice of Motion - Affidavits - Exhibits ..........................................1-3

Notice of Cross Motion - Affidavits - Exhibits ................................4-7

Answering Affidavits - Exhibits .......................................................8-13

Reply Affidavits ................................................................................14-17

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff Stavros Katouchis, on January 10, 2008, as a result of a workplace accident which occurred when he fell from an A-Frame ladder, while painting a bathroom in a Comfort Inn [*2]Hotel owned by defendant Jeport Hotel Corp. ("Jeport Hotel").

The hotel was allegedly managed by defendants Interstate Hotels & Resorts, Inc. ("IHR") and Interstate Hotels Company ("IHC"). When the plaintiff arrived at the job site, someone employed by the hotel gave him everything he needed to perform his work, including the subject ladder. The plaintiff claims that he complained to the hotel staff about the ladder and requested a different one because the ladder he was given was old, shaky, and lacked the plastic feet at the bottom to keep it stable. He was told that all other ladders were in use and that the subject ladder was the only one available. At the time of the accident, the plaintiff was employed by Minoa Painting Company. As a result of the foregoing, the plaintiffs' complaint alleges common-law negligence and violations of Labor Law sections 200, 240(1), and 241(6). The claims of plaintiff Kathy Katouchis, the injured plaintiff's wife, are derivative in nature.

Upon the foregoing papers, the plaintiff moves for (1) a default judgment against defendants IHR and IHC and (2) an award of partial summary judgment in their favor on their Labor Law section 240(1) claim. Defendants IHR and IHC cross move to dismiss the complaint against them, pursuant to CPLR 3211(a)(1), (7) and (10), to vacate the note of issue, and to allow recently added defendant IHR an opportunity to conduct discovery.

The plaintiffs' motion for an award of partial summary judgment in their favor on their Labor Law section 240(1) claim against defendant property owner Jeport Hotel is granted.

Labor Law section 240(1) provides, in relevant part, as follows:

All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning . . . 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.

It is well-settled that the purpose of Labor Law section 240(1) is to protect workers by placing responsibility for safety practices at construction sites on owners and general contractors, "those best suited to bear that responsibility" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]), instead of on the workers, who are not in a position to protect themselves (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985]). This provision imposes absolute liability on owners, contractors, and their agents for any breach of the statutory duty which has proximately caused injury (see, Striegel v Hillcrest Heights Development Corp., 100 NY2d 974 [2003]; Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]; Keaney v City of New York, 24 AD3d 615 [2nd Dept. 2005]). The duty imposed by the statute is "nondelegable and . . . an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control [citations omitted]" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993], quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, supra; see also Amato v State of New York, [*3]241 AD2d 400, 401 [1st Dept. 1997], lv. to appeal denied 91 NY2d 805 [1998]).

As a matter of law, the work that was being performed by the plaintiff at the time of the accident falls within the purview of Labor Law section 240(1), which applies to work performed at heights and where the work performed involves risks related to differences in elevation (see, Groves v Land's End Hous. Co., 80 NY2d 978 [1992]; Rocovich v Consolidated Edison Co., 78 NY2d 509, supra). Moreover, the plaintiffs made a prima facie showing of entitlement to judgment as a matter of law against the defendants, pursuant to Labor Law section 240(1), by demonstrating that the injured plaintiff fell as a result of the absence of safety devices while engaged in a work-related activity involving an elevation-related risk (see, Hagins v State of New York, 81 NY2d 921, 922 [1993]; Mariani v New Style Waste Removal Corp., 269 AD2d 367 [2nd Dept. 2000]). In opposition, the defendants fail to raise a triable issue of fact (cf. Artoglou v Gene Scappy Realty Realty Corp., 57 AD3d 460 [2nd Dept. 2008]). Accordingly, the plaintiffs are entitled to partial summary judgment in their favor and against defendant Jeport Hotel on their Labor Law section 240(1) claim.

Defendants IHR's and IHC's cross motion to dismiss the complaint against IHC, pursuant to CPLR 3211(a)(1), (7) and (10), based upon their submission of a Management Agreement executed in 1995 by defendant owner Jeport Hotel and nonparty Crossroads Hospitality Company, and subsequent amendments thereto, must be denied. Standing alone, the agreement does not establish that defendants IHR and IHC were not responsible for the management of the subject premises on the date in question (Sullivan v State of New York, 34 AD3d 443 [2nd Dept. 2006]).

Therefore, the dismissal of the complaint against these defendants on grounds of documentary evidence or the purported absence of a person who should be a party is denied. Moreover, upon accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, as the Court must do on a motion to dismiss the complaint, it must only be determined whether the facts as alleged fit within any cognizable legal theory (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409 [2001]; Leon v Martinez, 84 NY2d 83 [1994]). Based upon this standard, the complaint is sufficient to withstand a motion to dismiss on CPLR 3211(a)(7) grounds. Accordingly, the cross motion to dismiss is in all respects denied.

The cross motion to vacate the note of issue is also denied. Any outstanding discovery should be provided within sixty (60) days after the date of entry of this order.

Finally, the plaintiffs' motion for a default judgment against defendants IHR and IHC for failing to serve an answer is denied as academic.

Dated: May 18, 2011 [*4]

J.S.C.