Upon the foregoing cited papers, and after reassignment of this matter from Justice Patricia Anne Williams on March 21, 2011, Defendants DPA WALLACE AVENUE I, LLC and DPA WALLACE AVENUE II, LLC (hereinafter "DPA") seek an Order pursuant to CPLR §3212 granting summary judgment and dismissing Plaintiff ELADIO GARCIA's Complaint and all related cross-claims with prejudice and granting them contractual and common law indemnity over and against Third-Party Defendant START ELEVATOR, INC. (hereinafter "Start"). [*2]Plaintiff GARCIA cross moves seeking an Order pursuant to CPLR §3212 granting him summary judgment on liability pursuant to Labor Law §§240-a and 240(1). The motion and cross motion are hereby granted solely to the extent as Ordered below.This is an action to recover damages for personal injuries allegedly sustained by Plaintiff Eladio Garcia while he was working at the bottom of an elevator pit when a selector tape snapped and cut Plaintiff's left hand on November 16, 2006. The accident took place at Defendants DPA's high-rise apartment building located at 2131 Wallace Avenue, Bronx, New York. The Defendants hired the Plaintiff's employer, Third-Party Defendant Start to remove the old elevators in the building and install new elevators and retained a consulting firm, non-party Sierra Consulting to oversee the work. It is claimed in this action that Plaintiff Garcia's injuries were caused by the Defendants' violation of Labor Law §§200, 240(1), 241-a and 241(6).

On a motion for summary judgment, the moving party has the initial burden of demonstrating, by admissible evidence, their right to judgment. The burden then shifts to the opposing party, who must proffer evidence in admissible form establishing that an issue of fact exists warranting a trial. CPLR §3212(b); Zuckerman v. City of New York, 49 NY2d 557 (1980); Singer v. Friedman, 220 AD2d 574 (2nd Dept. 1995). Further, issue finding rather than issue determination is the function of the court on motions for summary judgment. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957); Clearwater Realty Co. v. Hernandez, 256 AD2d 100 (1st Dept. 1998).

Labor Law §200 is a codification of the common law duty of an owner or employer to provide employees with a safe place to work. Cun-En Lin v. Holy Family Monuments, 18 AD3d 800 (2nd Dept. 2005); Comes v. New York State Elec. and Gas Corp., 82 NY2d 876 (1993). Liability under Labor Law §200 cannot be imposed unless Plaintiff establishes that the owner or general contractor had actual or constructive notice of the condition complained of...and exercised supervision or control over the work performed by the Plaintiff. Wilson v. City of New York, 89 F.3d 32 (1996); also see Comes v. New York State Elec. and Gas Corp., supra.

The evidence in this case establishes that the Plaintiff obtained his assignment from his supervisor Alexis Torres (an employee of Third-Party Defendant Start) and not from any employee of Defendants DPA. Defendants DPA retained Start to perform the work in which Plaintiff was engaged at the time the accident. The contract between DPA and Start explicitly states that Start is responsible for supervising and directing the work, and "shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the work." Plaintiff testified that no one from the landlord (DPA) gave Plaintiff instruction in performing his work and that any equipment was supplied to him by Start. [See Plaintiff's EBT, pp. 41,144.] In addition, Start never discussed the means and methods of its work, or any materials it needed with DPA. [See Torres' EBT, pp. 29-30.] In opposition, Plaintiff argues that Defendants DPA had notice of the dangerous and defective condition of the subject elevator that caused the accident, however, Mr. Garcia's evidence is not sufficient to demonstrate that the Defendants had any input in directing or controlling the work which led to his injury, or that the Defendants had actual or constructive notice of the unsafe condition which precipitated Plaintiff's injury. Therefore, liability under Labor Law §200 cannot be imposed.

Labor Law §240(1) imposes absolute liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards. Striegel v. Hillcrest Hgts. Dev. Corp., 100 NY2d 974 (2003). It is generally [*3]agreed that the purpose of the strict liability statute is to protect workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials, and, accordingly, that there will be no liability under the statute unless the injury producing accident is attributable to the latter sort of risk. Rocovich v. Consolidated Edison Co., 78 NY2d 509 (1991).

Defendants argue that Labor Law §240(1) is not triggered in this case since Plaintiff was not working in an elevation, he did not fall, and nothing fell on him. Rather, Plaintiff was working at the bottom of an elevator pit when a selector tape affixed to the floor snapped and came from the bottom up striking Plaintiff's hand. Plaintiff, in opposition, argues that he is covered under Labor Law §240(1) since Defendants failed to provide safety devices required to protect him from a risk of injury created by a direct consequence of gravity. According to Mr. Torres' testimony, Plaintiff's supervisor, Start made available adequate safety devices on site to carry out the removal of tension, including cinder blocks. [Torres' EBT, pp. 46-47.] Mr. Torres testified that the proper way to remove a selector unit requires the removal of the tension that keeps the tape taut prior to cutting the tape. [p. 44.] He further testified that the act of removing the tension was the responsibility of the mechanic, but that Mr. Garcia had not taken the necessary precautions as he confirmed that the tension had not been removed after the accident. [p. 46.] Where Plaintiff's own actions are the sole proximate cause of the accident, there can be no liability under Labor Law §240(1). Cahill v. Triborough Bridge and Tunnel Authority, 4 NY3d 35 (2004). In this instance, Plaintiff may not recover under Labor Law §240(1) for injuries caused solely by his own actions.

Labor Law §241-a provides in pertinent part: "Any men working in or at elevator shaftways, hatchways and stairwells of buildings in course of construction or demolition shall be protected by sound planking at least two inches thick laid across the opening at levels not more than two stories above and not more than one story below such men..." Defendants claim that Labor Law §241-a is inapplicable to this action since the Plaintiff was working at ground level within the elevator pit and thus there could not have been any planking one story below him. Also, placing planking two floors above the Plaintiff would have been irrelevant protection since the selector tape that caused the injury was at the same level as the Plaintiff. In opposition, Plaintiff claims that safety planking would have prevented the accident in question and proffers the affidavit of Mr. Joseph McHugh, construction expert and licensed engineer. Mr. McHugh asserts that planking placed two stories above Plaintiff would have stopped the selector tape from springing up and injuring Plaintiff's hand. However, Mr. McHugh's affidavit shall be disregarded as it sets forth no industry standards, independent testing results, or even any scientific or technical literature in the field to support the conclusions he reaches. See Romano v. Stanley, 90 NY2d 444 (1997). Thus, Labor Law §241-a is inapplicable to this action.

Labor Law §241(6) imposes a nondelegable duty upon owners, contractors and their agents to provide reasonable and adequate protection and safety for construction workers. Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993). As the duty to comply with the regulation is nondelegable, it is not necessary for the Plaintiff to show that a Defendant exercised supervision or control over the work-site in order to establish a Labor Law §241(6) claim. Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343 (1998); Ross v. Curtis-Palmer Hydro-Elec. Co., supra at 502. What is necessary for Plaintiff to establish is the existence of a violation of a specific regulatory provision in the Industrial Code which resulted in injury to the Plaintiff. If Plaintiff demonstrates a breach of such regulation, the general contractor and owner are [*4]vicariously liable for the resulting injury without regard to fault. Armer v. General Elec. Co., 241 AD2d 581 (3rd Dept. 1997); Rizzuto v. L.A. Wenger Contr. Co., supra at 343.

In the instant case, Plaintiff cites violations of Industrial Code §§23-1.5 and 23.1.7(a)(1), however, none of them are sufficient to support a cause of action under Labor Law §241(6) and/or are inapplicable to the facts herein. Therefore Plaintiff's claim under Labor Law §241(6) is dismissed.

With regard to Defendants' claims for contractual and common law indemnity over and against Start, the Court notes that the indemnity provision in §8.13.1 of the contract between Defendants and Start has not been triggered since Defendants' papers have not sufficiently established negligence on the part of Start or its employees. Based upon the evidence and testimony submitted, the Court finds that the Defendants have met their burden and are entitled to summary judgment on their Labor Law claims. The burden shifted to the Plaintiff who failed to establish that an issue of fact exists warranting a trial. Zuckerman v. City of New York, 49 NY2d 557 (1980); Singer v. Friedman, 220 AD2d 574 (2nd Dept. 1995).Therefore it is

ORDERED that Defendants DPA WALLACE AVENUE I, LLC and DPA WALLACE AVENUE II, LLC's motion for an Order pursuant to CPLR §3212 granting summary judgment and dismissing Plaintiff ELADIO GARCIA's Complaint and all related cross-claims with prejudice and granting them contractual and common law indemnity over and against Third-Party Defendant START ELEVATOR, INC is Granted to the extent that Plaintiff's Complaint is dismissed and Defendants' motion for contractual and common law indemnity over and against Third-Party Defendant START is Denied; and it is further

ORDERED that Plaintiff GARCIA's cross motion seeking an Order pursuant to CPLR §3212 granting him summary judgment on liability pursuant to Labor Law §§240-a and 240(1) is Denied.

The foregoing constitutes the Decision and Order of this Court.

Dated: April 19, 2011

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Hon. Ben R. Barbato, A.J.S.C.