Decision and Order

In this action alleging violations of Labor Law §§ 200, 240 (1), 241 (6) and common-law negligence, plaintiff moves for partial summary judgment in his favor as to liability only on his claim for violations of Labor Law § 240 (1) against defendants. Defendants oppose the motion.

Plaintiff alleges that, on October 25, 2010, he was working as a construction electrician for [*2]Dooley Electric at a major renovation project at Grand Central Terminal, when the ladder upon which he was working tipped and fell, causing him to fall to the concrete floor below.

At his deposition, plaintiff testified that, on October 25, 2010, he worked for Dooley Electric as a journeyman construction electrician. (Lynch Affirm., Ex C [Vitaliano EBT], at 34-35.) Plaintiff stated he was working in Grand Central Terminal in the D hall on the fourth floor. (Id. at 46.) According to plaintiff, he was "running a piece of EMT . . . from an electric closet down a hallway to an office space to supply the future office space with lighting circuits and power circuits and to install a junction box." (Id. at 45.) Plaintiff testified that the junction box required four anchors to be placed (id. at 58), and that the anchors had to be drilled into the ceiling. (Id. at 52.) When asked about the height of the ceiling, plaintiff answered, "Maybe 10 feet, maybe. 12 feet about, I don't know." (Id. at 56.)

Plaintiff testified that he had taken an eight foot ladder, made of fiberglass, and that he locked the spreaders of the ladder in place when he set up the ladder. (Id. at 50, 55-56.) Plaintiff stated that he got on the ladder about halfway up to drill the holes to the anchors. (Id. at 62.) According to plaintiff, "The drill bound up, my wrist twisted, and then the ladder tipped and fell, causing me to fall." (Id. at 64.) Plaintiff stated that he landed onto the concrete flooring "[o]n all 4s like a crawling position. Knees and my wrist." (Id. at 66.)

Plaintiff testified that he did not have any type of harness or safety belt when he was on the ladder, and that no one was holding the ladder. (Id. at 80.)

In the complaint, plaintiff alleges that defendant Metropolitan Authority (MTA) was a lessee of the premises. (See Lynch Affirm., Ex A [Complaint ¶ 21].) Defendants did not deny this allegation in their answer (See id. [Answer] See Sondhi Opp. Affirm., Ex C.) John Fitzpatrick, a field superintendent, testified on behalf of Sciame Construction, LLC and F.J. Sciame Construction, Inc. (See Lynch Affirm., Ex D [Fitzpatrick EBT].) According to Fitzpatrick, F.J. Sciame was the general contractor for the Grand Central Terminal Project, and that Sciame Construction ^[FN1] hired Dooley Electric to perform all the electrical work required. (Id. at 11-12.)

"Labor Law § 240(1) imposes liability on contractors and owners for the existence of certain elevation-related hazards and the failure to provide an adequate safety device of the kind enumerated in the statute. To establish a claim under this provision, a plaintiff must show that the [*3]statute was violated and that the violation proximately caused his injury.'"

Plaintiff established prima facie entitlement to summary judgment as a matter of law. Plaintiff testified that he was working on an unsecured ladder drilling anchors into the ceiling when the ladder tipped over, causing him to fall to the floor. (Goreczny v 16 Court St. Owner LLC, 110 AD3d 465, 466 [1st Dept 2013] Marquez v Trustees of Columbia Univ. in City of New York, 95 AD3d 588 [1st Dept 2012] Krejbich v Schimenti Constr. Co., Inc., 94 AD3d 668 [1st Dept 2012] Siegel v RRG Fort Greene, Inc., 68 AD3d 675 [1st Dept 2009] McCarthy v Turner Const., Inc., 52 AD3d 333 [1st Dept 2008].)

Plaintiff was not required to show that the ladder was defective in some way as part of his prima facie case for summary judgment. (Fanning v Rockefeller Univ., 106 AD3d 484 [1st Dept 2013].) " It is sufficient for purposes of liability under section 240(1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent.'" (McCarthy, 52 AD3d at 334, quoting Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289 [1st Dept 2002].)

Defendants argue that summary judgment should be denied because the incident was unwitnessed, citing Grant v Steve Mark, Inc. (96 AD3d 614 [1st Dept 2014].) Defendants indicate that accident reports did not specifically state that the ladder had tipped or fell, which defendants argue present a version of the incident that conflicts with plaintiff's account. (See Sondhi Affirm., Ex G.) Lastly, defendants contend that the binding of the drill was an unforeseen, superseding cause of the accident.

The Appellate Division, First Department has consistently ruled, "That plaintiff was the sole witness to the accident also does not bar summary judgment in his favor." (Humphrey v Park View Fifth Ave. Assocs. LLC, ___ AD3d ___, 979 NYS2d 317, 318 [1st Dept 2014] Goreczny, 110 AD3d at 466.) The Court disagrees with defendants' contention that the absence of details from an accident/incident report raises a reasonable inference of a contradictory version of the occurrence—that the ladder did not tip over. In the report submitted by Fitzpatrick, "lack of stability on ladder" was listed as a "primary cause" of the incident. (Sondhi Affirm., Ex G.)

At his deposition, plaintiff was asked if he was leaning just prior to the ladder tipping and falling, and plaintiff answered, "No." (Vitaliano EBT, at 71.) Although Fitzpatrick wrote in his accident report under "Recommended Corrective Action" that [*4]plaintiff should "position himself in a better way as not to be leaning away from his ladder to work" (Sondhi Affirm., Ex G), Fitzpatrick testified at his deposition that he lacked knowledge that plaintiff was leaning on the ladder:

"Q. You don't have any knowledge that Mr. Vitaliano was leaning at the time of his accident, do you?

A. No.

Q. You're just basing that on a number of assumptions that you've made; is that correct?

A. Correct. In the area where he was working."

Grant is distinguishable. Although the Appellate Division, First Department ruled in Grant that the plaintiff established prima facie liability under Labor Law § 240 (1), the Appellate Division affirmed denial of summary judgment in the plaintiff's favor, and ruled that the defendants should have the opportunity to subject plaintiff's testimony to cross-examination to explore whether she misused the ladder and was the sole proximate cause of the accident, and to have her credibility determined by a trier of fact. Unlike Grant, in this case there is no competent evidence in the record that plaintiff misused the ladder. The assertion that the trier of fact might disbelieve plaintiff's testimony is not, in itself, a basis for denying summary judgment. (Bachrach v Farbenfabriken Bayer AG, 36 NY2d 696, 697 [1975] Folson v Marrero, 308 AD2d 399 [1st Dept 2003].)

The Court rejects defendants' argument that the binding of the drill was an intervening cause of plaintiff's fall. As plaintiff indicates, the Court of Appeals rejected a similar argument in Gordon v Eastern Railway Supply, Inc. (82 NY2d 555 [1993].) In Gordon, the plaintiff was standing on a ladder that tipped when plaintiff activated the trigger of a sandblaster he was using to clean the exterior of a railroad car. In falling, the plaintiff lost control of the sandblaster and it sprayed him with sand and continued to spray sand, apparently because of a defective trigger, after he hit the ground. The Court of Appeals rejected the defendants' argument that the plaintiff's injury was solely caused by the defective sandblaster. The Court of Appeals stated,

"Defendants are liable for all normal and foreseeable consequences of their acts. To establish a prima facie case plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendants' conduct was foreseeable. An [*5]independent intervening act may constitute a superseding cause, and be sufficient to relieve a defendant of liability, if it is of such an extraordinary nature or so attenuated from the defendants' conduct that responsibility for the injury should not reasonably be attributed to them."

Given all the above, plaintiff is entitled to partial summary judgment, as a matter of law, as to liability only in his favor on his Labor Law § 240 (1) claims against F.J. Sciame Construction Co., Inc., the general contractor for the Grand Central Terminal Project.

Plaintiff did not meet his prima facie burden of summary judgment under Labor Law § 240 (1) against MTA Metro-North Railroad or the MTA. MTA Metro-North Railroad denied plaintiff's allegations that it was an owner or lessee of the premises where the incident allegedly occurred. (See Sondhi Opp. Affirm., Ex C [paragraphs "SIXTH" and "SEVENTH"].) Plaintiff did not prove otherwise. The MTA did not deny plaintiff's allegation that it was the lessee of the premises where plaintiff was injured, but its status of as a lessee is not, in itself, sufficient to establish its liability as an "owner" within the meaning of Labor Law 240 (1).

"Appellate Division cases have said that lessees who hire a contractor, and thus have the right to control the work being done, are owners' within the meaning of the statute." (Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320 [2009][collecting cases].) Here, plaintiff did not demonstrate that the MTA hired F.J. Sciame Construction Co., Inc. Plaintiff does not submit any written contract or agreement between the MTA and F.J. Sciame Construction Co., Inc., and Fitzpatrick's testimony does not conclusively establish that the MTA hired F.J. Sciame Construction Co., Inc. Fitzpatrick testified as follows:

"Q. Was F.J. Sciame the general contractor for the Grand Central Terminal Project?

A. Yes.

Q. Who was the owner?

A. MTA Metro-North. I'm not sure.

Q. Was Sciame working under a written contract on the Grand Central Terminal project?

A. I believe so, yes.

Q. Are you familiar with that contract in any way?

A. No.

Q. Did you have any role in the negotiation and drafting of any portions of the contract between Sciame and either the MTA or Metro-North?

A. No.

Q. Do you know who from Sciame would be involved in the negotiation and drafting of any portions of the contract between Sciame and Metro-North?

A. Steve Colletta, C-O-L-L-E-T-T-A."

Finally, in reply, plaintiff requests summary judgment in his favor on his claims under Labor Law § 241 (6), based on violations of 12 NYCRR 23-1.21 (b) (1), (3), and (4) (i)-(iv). This request is denied as improperly brought. Summary judgment in plaintiff's favor under Labor Law § 241 (6) was not sought in the notice of motion nor raised in plaintiff's moving papers.

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment is granted in part, and plaintiff is granted partial summary judgment in his favor as to liability only on his Labor Law § 240 (1) claims against defendant F.J. Sciame Construction Co., Inc., and his motion is otherwise denied; and it is further

ORDERED that the remainder of the action shall continue.

Dated: April 9, 2014New York, New YorkENTER:

/s/

J.S.C.