Tierra v TDX Constr. Corp. (2014 NY Slip Op 50657(U))

Tierra v TDX Constr. Corp.

2014 NY Slip Op 50657(U) [43 Misc 3d 1216(A)]

Decided on April 23, 2014

Supreme Court, Kings County

Battaglia, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Recitation in accordance with CPLR 2219 (a) of the papers submitted on third-party defendant Navillus Tile Inc. d/b/a Navillus Contracting's motion for an order, pursuant to CPLR 3212, granting it summary judgment dismissal of the third-party complaint and the complaint; on defendants/third-party plaintiffs TDX Construction Corporation's and New York City Housing Authority's motion for an order, pursuant to CPLR 3212, granting them summary dismissal of Plaintiffs' complaint, and for an order granting them summary judgment on their claim for contractual indemnification as against third-party defendant Navillus Tile, Inc. d/b/a Navillus Contracting; and on Plaintiffs' cross-motion for an order, pursuant to CPLR 3212, granting them summary judgment on their Labor Law § 240(1) cause of action as against Defendants: [*2]

-Defendants TDX and NYCHA's Affirmation in Opposition to Plaintiffs' Cross-Motion for Summary Judgment and in Reply

-Defendants, TDX and NYCHA's, Affirmation in Partial Opposition to Third-Party Defendant, Navillus Contracting's, Motion for Summary Judgment

-Defendant TDX's and NYCHA's Affirmation in Partial Opposition to Motion for Summary Judgment by Third-Party Defendant, Navillus and in Further Support of Motion for Summary Judgment on Third-Party Claims

Plaintiffs Luis Tierra and Ruth Castilla Tierra were represented by Steven Aripotch, Esq. of O'Dwyer & Bernstien, LLP. Defendants/third-party plaintiffs TDX Construction Corporation and New York City Housing Authority were represented by Christina Brescia, Esq. of Traub Lieberman Straus & Shrewsberry LLP. Third-party defendant Navillus Tile, Inc. d/b/a Navillus Contracting was represented by Barbara Henderson, Esq. of Rubin, Fiorella & Friedman, LLP.

Third-Party Defendant Navillus's Motion (MS#4, Cal. No. 42)

On June 15, 2010, plaintiff Luis Tierra, a laborer employed by third-party defendant Navillus Tile Inc. d/b/a Navillus Contracting ("Navillus"), allegedly sustained personal injuries while working at a construction site located at 390 Lexington Avenue in Brooklyn. "At the time of the occurrence plaintiff Luis Tierra was removing and dismantling bricks from the exterior of the building working at a elevated work area, a sidewalk bridge being used as a scaffold/elevated work platform, approximately nine feet high at the exterior of the first floor of the project and was caused to fall from the elevated work area as he descended from the working platform via the use of a fire escape ladder". (Bill of Particulars, ¶ 5.) Plaintiff alleges that as he was descending the ladder, "his right leg fell between the ladder and a pipe of a sidewalk bridge positioned immediately adjacent to the fire escape ladder that obstructed and interfered with plaintiff's safe and proper egress from his elevated work area". (See id., at ¶ 6.) The property was [*3]allegedly owned by defendant New York City Housing Authority ("NYCHA"), and the general contractor was allegedly TDX Construction Corporation ("TDX").

Navillus contends that Plaintiff's Labor Law § 240(1) cause of action must be dismissed because Plaintiff's conduct was the sole proximate cause of the accident. In this regard, Navillus contends that "[t]he evidence in this case clearly shows that Navillus workers were admonished not to use the fire escape ladder to access the platforms of the fire escape because of fire safety issues and directions from TDX/NYCHA". Navillus fails to point to such evidence. It is not for the Court to review voluminous deposition transcripts among papers measuring more than a foot high to find portions therein that may support a summary judgment movant's position.

In any event, Navillus attaches the deposition transcript of plaintiff Luis Tierra, who testified, among other things, that he received instructions from his co-worker "Joey"; that "Joey" received instructions from a supervisor; and that Joey directed him to use the fire escape ladder. (See Affirmation in Support, ¶ 12.) As such, Navillus fails to demonstrate prima facie the absence of a triable issue of fact as to whether Mr. Tierra was "admonished" not to use the fire escape ladder.

Navillus also contends that the fire escape ladder provided proper protection under Labor Law § 240. Labor Law § 240 (1) provides:

In support, Navillus submits Plaintiff's deposition testimony that he was a laborer employed by Navillus; that he was doing demolition work; that he was directed to use the fire escape ladder by his coworker Joey, who had more experience working for Navillus; that he had only been working at the job for two to three weeks; that Joey received instructions from a supervisor from Navillus; that at the time of the accident, he was descending the fire escape ladder; that he "felt that [his] right foot hit something or felt something"; that "[his] leg went in and [he] was just left hanging there"; that his foot hit a tube; that he had taken three steps down before he hit the tube; that the distance between the "pole" and the "ladder rungs" "could be ten inches, eight inches, twelve inches"; that he did not measure the distance between the tube and the ladder rungs; that his foot did not slip off the ladder rung, but twisted when he hit the "tube or pole"; the "tube prevented [him] or did not let [him] touch [his] foot with the step"; that he wears size 8 ½ shoes; that he did not have a problem going up the ladder; and that neither he nor Joey [*4]had descended that ladder at any time prior to the accident.

Navillus also proffers the expert affidavit of Anthony Dolhon, P.E., who avers that he is a licensed professional engineer; that it is his opinion "with reasonable degree of certainty in the field of professional engineering, and custom and practice in the construction industry, that there was no violation of Labor Law § 240(1)"; that his opinion is based upon Plaintiff's deposition testimony that the "blue pipe was eight to twelve inches from the ladder and an unknown distance higher than the ladder rung"; that the "blue pipe was located a sufficient distance from the rungs of the fire escape ladder so as not to interfere with the fall protection provided by the ladder"; and "that this is particularly the case given plaintiff's testimony that he had a shoe size of 8.5".

"An expert's affidavit - - offered as the only evidence to defeat summary judgment - - must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor'." (Ramos v Howard Indus., Inc., 10 NY3d 218, 224 [2008][quoting Adamy v Ziriakus, 92 NY2d 396, 402 (1998)].) An expert opinion that is "speculative and conclusory" does not constitute evidence in admissible form. (See Arredondo v Valente, 94 AD3d 920, 922 [2d Dept 2012].)

Since Plaintiff testified that he did not measure the distance between the blue pipe and the ladder rungs, and only testified that the distance between the pole and the ladder rungs "could be" between eight to twelve inches, the expert opinion of Anthony Dolhon lacks sufficient foundation, and is without any probative value. Indeed, the expert does not aver that he ever conducted an on-site inspection or took any of his own measurements as would be expected of a professional engineer who would render an opinion "with reasonable degree of certainty in the field of professional engineering". (See Rabon-Willimack v Robert Mondavi Corp., 73 AD3d 1007, 1009-10 [2d Dept 2010] Kingston v Hunter Highlands, 222 AD2d 952, 953 [3d Dept 1995] ["expert did not inspect either the actual ladder or the work site"].) The expert cites to no evidence as to the work boots or shoes Plaintiff was wearing as he descended the ladder, and offers no suggestion as to why such evidence would not be material. As such, by relying upon the approximations of a lay person who only viewed the condition immediately after he fell, and the failure of the expert to take any measurements or provide any explanation for not taking any measurements, the Court finds the affidavit to be speculative and conclusory, and insufficient to make Navillus's prima facie showing on this motion.

Navillus does not point to any evidence from any person with personal knowledge contradicting the version of the accident as described by Plaintiff.

Accordingly, the branch of Navillus's motion seeking summary dismissal of Plaintiffs' Labor Law § 240 cause of action is DENIED.

The branch of Navillus's motion seeking summary dismissal of Plaintiffs' Labor Law § 241(6) cause of action is GRANTED without opposition. (See Affirmation [in support of [*5]Plaintiffs' Cross-Motion], ¶ 3.)

Navillus contends that Plaintiffs' common-law negligence and Labor Law § 200 causes of action must be dismissed as against Defendants on the ground that "they did not supervise or control Plaitniff's work and there was no defect".

Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (see Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2d Dept 2000]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed." (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008].) "These two categories should be viewed in the disjunctive." (Id.)

"Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident." (Id.; see also Reyes v Arco Wentworth Management Corp., 83 AD3d 47, 51 [2d Dept 2011].) "A contractor on a construction site will be liable for an injury caused by a dangerous condition on the site where it created the condition, or where, with sufficient control over the conditions on the site, the contractor failed to remedy the dangerous condition, or to prevent the injured worker's exposure to it, within a reasonable time after the contractor had actual or constructive notice of the condition." (Delishi v Property Owner [USA], LLC, 31 Misc 3d 661, 671 [Sup Ct, Kings County 2011] see also Astarita v Flintlock Construction Services, LLC, 69 AD3d 888, 888-889 [2d Dept 2010].)

"[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or . . . contractor cannot be had . . . unless it is shown that the party to be charged had the authority to supervise or control the performance of the work." (Ortega v Puccia, 57 AD3d at 61; see also Delishi v Property Owner [USA], LLC, 31 Misc 3d at 669-70.) "The determinative factor on the issue of control is not whether a [defendant] furnishes equipment but whether he has control of the work being done and the authority to insist that proper safety practices be followed". (Eldoh v Astoria Generating Co., L.P., 81 AD3d 871, 875 [2d Dept 2011] [quoting Everitt v Nozkowski, 285 AD2d 442, 443-444 (2d Dept 2001)].)

When an accident is alleged to involve defects in both the premises and methods and materials used at the work site, the property owner or contractor is "obligated to address the proof applicable to both liability standards." (See Reyes v Arco Wentworth Management Corp., 83 AD3d at 52.)

Here, Plaintiffs' allegations involve both defects in the premises, as well as the methods and materials used at the work site. The use of a fire escape ladder in proximity to the protruding pipe or tube from the sidewalk bridge may be fairly characterized as a danger in the method or materials of the work, and the subject tube or pole that Plaintiff's foot struck while descending [*6]the fire escape ladder may also be fairly characterized as a dangerous condition on the premises with respect to the use of the fire escape ladder that is affixed to the building.

In its motion, Navillus contends that "the evidence shows that TDX/NYCHA did not supervise and control plaintiff's work and therefore no liability can arise pursuant to that theory of liability". Navillus fails to point to any such evidence in support of its motion. It is not for the Court to review voluminous deposition transcripts to find portions that may support the movant's position.

Navillus also contends that the proximity of the pipe to the ladder was not a dangerous condition. In support, Navillus again points to the opinion of Anthony Dolhon, P.E., which lacks foundation and is, therefore, without any probative value. Navillus also points to other deposition testimony, to the effect that other workers using the subject ladder did not have "difficulties" as a result of the position of the pipe. Even so, such evidence does not establish that the position of the pipe in proximity to the ladder did not constitute a dangerous condition, and Navillus does not point to any legal authority to the contrary. Navillus does not point to any evidence that Defendants did not have actual or constructive notice of the dangerous condition, or did not create the dangerous condition in their construction or placement of the sidewalk bridge. As a result, Navillus fails to demonstrate prima facie that Plaintiffs' Labor Law § 200 or common-law negligence causes of action must be dismissed as against Defendants.

Accordingly, Navillus's motion for summary dismissal of Plaintiffs' common-law negligence and Labor Law § 200 causes of action is DENIED.

Navillus contends that defendants/third-party plaintiffs TDX's and NYCHA's claims for common-law indemnification and contribution must be dismissed as against it on the ground that Plaintiff did not sustain a "grave injury" as defined by Workers' Compensation Law § 11. (See Baginski v Queen Grand Realty, LLC, 68 AD3d 905, 907 [2d Dept 2009] Soto v Alert No. 1 Alarm Systems, Inc., 272 AD2d 466, 468 [2d Dept 2000].) Again, Navillus fails to point to any admissible evidence in support of its position. It is not for the Court to review voluminous exhibits to find portions therein to support a movant's contentions on summary judgment. As such, Navillus fails to demonstrate prima facie entitlement to summary judgment.

Accordingly, the branch of Navillus's motion seeking summary dismissal of TDX's and NYCHA's common-law contribution and indemnification claims as against it is DENIED.

Since Plaintiffs' Complaint only purports to allege causes of action for violation of Labor Law §§ 200, 240(1), and 241(6), as well as common-law negligence, the remaining branch of Navillus's motion, seeking dismissal of a cause of action under OSHA, is DENIED.

In sum, Navillus's motion is denied in its entirety.

TDX's and NYCHA's Motion [*7]

In their motion, TDX and NYCHA contend that "as a threshold matter, Plaintiff's Labor Law claims against TDX must be dismissed because the Labor Law does not apply to TDX as the project's construction manager who did not supervise or control the Plaintiff's activities which led to his alleged injuries".

"Liability for violations of Labor Law §§ 240(1) and 241(6) may be imposed against contractors and those parties who have been delegated to supervise and control the work giving rise to the duties imposed under those statutes such that they become the statutory agents of owners." (Natoli v City of New York, 32 AD3d 507, 507-08 [2d Dept 2006].) "The title by which a party is known is not determinative, and a party with the ability to control the activity which brought about the injury' may be vicariously liable as an owner's agent or contractor under those provisions of the Labor Law." (Id. [quoting Walls v Turner Constr. Co., 4 NY3d 861, 863 (2005)] see also Guclu v 900 Eighth Avenue Condominium, LLC, 81 AD3d 592, 593 [2d Dept 2011].)

Here, in support of their contention that TDX is not a statutory agent of the owner or general contractor, movants submit the contract between TDX and NYCHA. The contract provides, among other things, that TDX's services "shall include, without limitation, investigation, planning, pre-construction, construction, construction management, supervision and coordination of all work necessary and required for the Project, to effectuate its timely completion, in compliance with the Contract Documents and all applicable Laws." (See Affirmation, Exhibit K, Standard Requirements Contract Construction Management Services, ¶ 7.1)

The contract requires that TDX shall "provide all required construction services for the Project" (see id., ¶ 10.1), including entering "into subcontracts for all construction services required for the Project" (See id., ¶ 10.2); and that TDX shall "pay all Subcontractors for and on account of work performed by such Subcontractors" (see id., ¶ 10.2.3[a]). Most significantly, under the section entitled "Means and Methods of Construction", the contract provides, among other things, that "the means and methods of construction shall be such as [TDX] may choose, subject, however, to NYCHA's right to reject means and methods proposed by [TDX] that: (1) will constitute or create a hazard to the Work, or to persons or property".

Movants also point to the deposition testimony of Plaintiff, to the effect that a supervisor from Navillus controlled the means and methods of his work. They point to the deposition testimony of John Barrera, who testified that he is TDX's "project manager"; that he was present at the site on a daily basis; and that he and his "superintendents" were there to make daily inspections of the progress of the work. Movants also point to testimony of Olabode Otusile, who testified that he was a "construction project manager" who was responsible for overseeing and monitoring the construction activities of TDX; that TDX submitted Navillus's plans for the construction of the sidewalk bridge; that NYCHA and TDX both had authority to stop work if they saw a hazardous work condition or work practice. (See Barraco v First Lenox Terrace Associates, 25 AD3d 427, 428 [1st Dept 2006]). [*8]

Contrary to NYCHA's and TDX's contentions, the contract and deposition testimony establishes prima facie that TDX was either the general contractor, or at the least an agent of the owner, since it had "the ability to control the activity which brought about the injury" (see Walls v Turner Constr. Co., 4 NY3d at 863; Natoli v City of New York, 32 AD3d at 507-08). The contract expressly gives TDX the authority to control the methods and means of the work, and obligates TDX to hire and pay subcontractors to complete the work. The testimony of Mr. Otusile establishes that TDX had the authority to stop the work, and also establishes that TDX was responsible for submitting Navillus's plans to be approved. The fact that TDX failed to execute such contractual authority over the means and methods of Navillus's work, or did not in fact stop the work, does not establish its entitlement to summary judgment.

Accordingly, the branch of NYCHA's and TDX's motion seeking dismissal of the Labor Law §§ 240(1) and 241(6) causes of action as against TDX is DENIED.

Indeed, upon a search of the record (see CPLR 3212[b]), including the contract submitted by movants as well as the testimony Olabode Otusile, Plaintiffs are entitled to summary determination that TDX was the general contractor, or agent of the owner, for purposes of liability pursuant to Labor Law §§ 240(1) and 241(6). (See CPLR 3212[e].)

Relying upon Cohen v Memorial Sloan-Kettering Cancer Ctr. (11 NY3d 823 [2008]), NYCHA and TDX contend that Plaintiffs' Labor Law § 240(1) cause of action must be dismissed on the ground that Plaintiff's accident was the "result of a mere general hazard of the workplace". In Cohen, the plaintiff sustained injury as he "began to step down to the floor from the second rung with his right foot; his left foot got caught between the second rung and a [protruding rod] behind it" and "his knee twisted and, while grabbing his knee, he fell to the concrete floor". (See Cohen v Memorial Sloan-Kettering Cancer Center, 50 AD3d 227, 228-229 [1st Dept 2008], revd 11 NY3d 823[2008].) In its memorandum opinion, the Court of Appeals, citing to Nieves v Five Boro A.C. & Refrig. Corp. (93 NY2d 914 [1999]), held that "the presence of two unconnected pipes protruding from a wall was not the risk which brought about the need for the ladder in the first instance, but was one of the usual and ordinary dangers of the worksite." (See Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 NY3d at 825 [internal quotation marks and citation omitted].)

In Nieves v Five Boro A.C. & Refrig. Corp. (93 NY2d 914 [1999]), the plaintiff allegedly sustained injury when he "stepped from the bottom rung of a ladder onto a drop cloth covering the carpeted floor", and, as he did so, "he allegedly tripped over a concealed portable light located underneath the cloth." (See id. at 915). "Only his right foot remained on the ladder and his left foot hit the concealed object on the floor, causing him to twist his ankle, fall and incur injuries". (Id.) Based upon those facts, the Court of Appeals held that the Labor Law § 240(1) cause of action must be dismissed since "there was no evidence of any defective condition of the ladder or instability in its placement" (see id. at 916.) and that "plaintiff's injury resulted from a separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance - - an unnoticed or concealed object on the floor" (see id.), which was [*9]deemed to be one of "the usual and ordinary dangers at a construction site" (see id.).

In both Cohen and Nieves, the workers sustained injuries as a result of making contact with an obstruction as the worker attempted to step off the ladder onto the ground, no longer subject to an elevation-related risk against which the ladder was required to provide proper protection. (See Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936, 936-37 [2d Dept 2010].) Here, in contrast, Plaintiff encountered the obstruction while descending the ladder at an elevation.

In opposition and in support of their cross-motion, Plaintiffs correctly contend that Juchniewicz v Merex Food Corp. (46 AD3d 623 [2d Dept 2007]) is analogous to the instant facts. In Juchniewicz, the worker "lost his balance because of the presence of a steel object that interfered with his grabbing hold of the next rung on the ladder, not because the ladder, which all agree was anchored to the wall, moved or gave way". (See id., at 625.) The Second Department affirmed the trial court's granting of summary judgment on a Labor Law § 240(1) cause of action. Similarly, here, Plaintiff, who was a descending a ladder that was anchored to the wall, lost his balance because of the presence of a pipe or pole protruding from the sidewalk bridge that interfered with his foot reaching down to the rung below it. (See also Ruiz v WDF, Inc., 45 AD3d 758, 758 [2d Dept 2007] [ladder improperly placed on recently waxed floor at a distance of about 18 inches from wall due to protruding radiator].)

In Seepersaud v City of New York (38 AD3d 753 [2d Dept 2007]), the plaintiff allegedly sustained injuries "when, after inspecting work that had been performed on a bulkhead roof that was raised 10 to 12 feet above the main roof, he fell when he placed his left foot on a ladder in order to descend to the main roof, and his right foot became caught in a gutter adjacent to the ladder". (See id., at 754.) The Second Department held that "the plaintiffs raised a triable issue of fact by demonstrating the placement of the ladder in proximity to the rain gutter, and the absence of any device protecting a worker descending the ladder from tripping on the gutter." (See id.). It should further be noted that the Second Department, however, denied the plaintiffs' cross-motion for summary judgment on the ground that they did not establish that the ladder did not provide proper protection.

The caselaw articulates no standards or tests for determining whether a risk is a "separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance" and one of the "usual and ordinary dangers at the construction site" (see Nieves v Five Boro A.C. and Refrig. Corp., 93 NY2d at 916.) Understood too broadly, those limitations on the scope of Labor Law § 240(1) would eviscerate the statute. The statute is clearly not limited to risks encountered by the worker at an elevation, since its requirements apply while the worker is descending a ladder. (See Seepersaud v City of New York, 38 AD3d at 754; see also Bataraga v Burdick, 261 AD2d 106, 107 [1st Dept 1999][worker descending fire escape].)

It is also clear that a plaintiff may make a prima facie showing of a violation of § 240(1) by submitting evidence of injuries resulting from improper placement of a ladder. (See Wicks v [*10]Leemilt's Petroleum, Inc., 103 AD3d 793, 795 [2d Dept 2013] Ruiz v WDF, Inc., 45 AD3d at 758; Izzo v AEW Capital Mgt., 288 AD2d 268, 269 [2d Dept 2001].) Improper placement necessarily involves interface with the worksite and some condition that renders the ladder insufficient to provide proper protection.

A fair accommodation of these principles would preclude coverage under Labor Law § 240(1) only where the condition would present a risk of injury to workers at the site who are not using a safety device to protect against an elevation-related risk. Both the light concealed under a drop cloth on the floor in Nieves (see Nieves v Five Boro A.C. and Refrig. Corp., 93 NY2d at 915), and the unconnected plumbing pipes protruding from the wall in Cohen (see Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 NY3d at 825), would present such a danger, or so the Court of Appeals thought.

On the other hand, the pipe or pole protruding from the sidewalk bridge in this case, which appears to have been "inaccessible" to all but a worker descending the fire escape (and, according to movants, not even him), presented no danger to other workers.

TDX and NYCHA also contend that "it is undisputed that the blue scaffold pipe/tube was positioned so far back from the rungs that it is physically impossible for plaintiff's right foot to have made contact with it if his foot were on the rungs, except that he simply had a misstep, and accidentally put his right foot through the space between the two ladder rungs, which he totally admits." However, movants point to Plaintiff's testimony that his foot "hit the tube or pole" while descending the ladder rungs, which undermines their contention that "it is physically impossible" for Plaintiff's right foot to have made contact with the pole or tube. Nor do movants provide any evidence in admissible form demonstrating that the pole/tube was "recessed approximately 10 inches back toward the wall in relation to the fire escape ladder rungs", as they assert. As explained above, Plaintiff's approximation at the deposition was speculative, and Defendants offer no evidence from any person who made any actual measurements, and provide no explanation why no such measurements were made. Defendants had control of the work site, and would have been in a better position to obtain the actual measurements.

Contrary to movants' contentions, the photographs alone are not sufficient to establish such measurements. (See e.g. Davidson v Sachem Central School District, 300 AD2d 276, 277 [2d Dept 2002].) Indeed, the photographs of the alleged condition do show that the pole or tube was recessed from the ladder rungs, but was in close proximity to the ladder rungs.

TDX and NYCHA also contend that "there can be no argument that the fire escape ladder was improperly placed or positioned, since the fire escape ladder is part of a permanently affixed structure on the building". In support of their contention, movants cite to, among other cases, Acosta v Kent Bently Apartments, Inc. (298 AD2d 124 [1st Dept 2002]), which stands for the opposite proposition for which it is cited. Indeed, in Acosta, the First Department held that "it is manifest that the ladder did not function properly as a device to afford plaintiff safe access to his elevated work site", and the fact "that the ladder was permanently affixed to the building does [*11]not require a different result". The First Department awarded the plaintiff summary judgment in that case. Acosta is consistent with well-settled precedent. (See De Jara v 44-14 Newtown Rd. Apt. Corp., 307 AD2d 948, 950 [2d Dept 2003] Bataraga v Burdick, 261 AD2d 106, 107 [1st Dept 1999] see also Ciraolo v Melville Ct. Assoc., 221 AD2d 582, 583 [2d Dept 1995].)

Here, since the cases relied upon by TDX and NYCHA are factually inapposite, and since movants fail to otherwise point to any evidence establishing prima facie that, despite its proximity to the pole or pipe protruding from the sidewalk bridge, the fire escape ladder was so "placed" as to give Plaintiff "proper protection" (see Labor Law § 240[1] Juchniewicz v Merex Food Corp., 46 AD3d at 624-625; Seepersaud v City of New York , 38 AD3d at 754), movants fail to demonstrate prima facie entitlement to summary dismissal of Plaintiffs' Labor Law § 240(1) cause of action.

TDX and NYCHA also point to deposition testimony, including the testimony of Plaintiff's coworker, to the effect that other ladders were available for Plaintiff and his coworker to use. Even so, movants fail to point to any evidence rebutting Plaintiff's testimony that his coworker received instructions from a supervisor, and that his coworker told him to use the fire escape ladder. Plaintiff testified that the supervisor never gave him directions. Since there is no evidence that Plaintiff was told to use any other ladder other than the fire escape ladder, TDX's and NYCHA's contention that Plaintiff's conduct in using the fire escape ladder was the sole proximate cause of the accident is without merit. (See Rico-Castro v Do & Co New York Catering, Inc., 60 AD3d 749, 751 [2d Dept 2009]["the plaintiff appears to have been following the example of his coworkers and acting with the tacit approval of his supervisor"] Beharry v Public Storage, Inc., 36 AD3d 574, 575 [2d Dept 2007]["the injured plaintiff's conduct was not the sole proximate cause of his injuries, because he neither engaged in unforeseeable, reckless activities nor misused a safety device that was provided to him"].)

Accordingly, the branch of TDX's and NYCHA's motion for summary dismissal of Plaintiffs' Labor Law § 240(1) cause of action is DENIED.

The branch of TDX's and NYCHA's motion for summary dismissal of Plaintiffs' Labor Law § 241(6) cause of action is GRANTED without opposition.

TDX and NYCHA contend that they are entitled to summary dismissal of Plaintiffs' Labor Law § 200 and common-law negligence causes of action.

As elaborated above, when an accident is alleged to involve defects in both the premises and methods and materials used at the work site, the property owner or contractor is "obligated to address the proof applicable to both liability standards." (See Reyes v Arco Wentworth Management Corp., 83 AD3d at 52.)

Here, as explained with respect to Navillus's motion, Plaintiffs' allegations may be fairly characterized as involving both defects in the premises, as well as the methods and materials [*12]used at the work site. To the extent that the condition involves defects in the premises, neither TDX nor NYCHA attempt to make any showing that it did not have actual or constructive notice of the alleged dangerous condition, i.e., the protruding pole/tube obstructing the ladder. Indeed, both the ladder and sidewalk bridge are structural elements rather than transient conditions and, therefore, would have been present for a period of time prior to the accident. Movants again contend that the condition was not dangerous, without pointing to any admissible evidence in support.

Accordingly, the branch of TDX's and NYCHA's motion for summary dismissal of Plaintiffs' Labor Law § 200 and common-law negligence cause of action is DENIED.

Plaintiffs seek an order granting them summary judgment on their Labor Law § 240(1) cause of action as against TDX and NYCHA. In support of their motion, Plaintiffs rely upon, among other things, plaintiff Luis Tierra's description of how the accident occurred, as well as the photographs relied upon by all parties that purportedly show the position of the pole or tube of the scaffold bridge in relation to the ladder rung. Plaintiff's testimony that he was unable to reach the ladder rung due to his foot striking the subject/pole, and that he lost his balance as a result, establishes prima facie that the ladder was not placed so as to give him proper protection, as required by the statute. (See Labor Law § 240[1] Juchniewicz v Merex Food Corp., 46 AD3d at 624-625; Seepersaud v City of New York , 38 AD3d at 754.)

Although Plaintiff submits affidavits of Louis Di Meglio and Andrew R. Yarmus, P.E., they are not necessary to establish Plaintiffs' prima facie case. Moreover, since the affidavits were both based upon a site inspection that occurred more than three and half years after the accident, when the alleged conditions clearly had changed, the affidavits are of limited probative value in any event. (See e.g. Amini v Arena Construction Co., Inc., 110 AD3d 414, 415 [1st Dept 2013] Avella v Jack

LaLanne Fitness Centers, Inc., 272 AD2d 423, 423 [2d Dept 2000].) The Court notes, however, that unlike Mr. Dohlon, Mr. Di Meglio actually took measurements, and Mr. Yarmus bases his expert opinion on those actual measurements. [*13]

In opposition to the cross-motion, TDX and NYCHA do not point to any evidence establishing an issue of fact as to how the accident occurred. They again point to, among other things, Plaintiff's coworker's deposition testimony that he was told to use extension ladders, and not the fire escape ladder. However, they fail to point to any evidence that plaintiff Luis Tierra was ever told to do so by anyone.

For reasons already stated herein, TDX's and NYCHA's, as well as Navillus's, contentions in opposition to Plaintiffs' cross-motion are insufficient to raise triable issues on Plaintiffs' Labor Law § 240(1) cause of action.

Accordingly, Plaintiffs' cross-motion for an order, pursuant to CPLR 3212, granting them summary judgment on their Labor Law § 240(1) cause of action as against TDX and NYCHA is GRANTED.

In sum, third-party defendant Navillus Tile, Inc. d/b/a Navillus Contracting's motion is granted only to the extent that Plaintiff's Labor Law § 241(6) cause of action is dismissed without opposition, and the remaining branches of its motion are denied. Defendants TDX Construction Corporation's and New York City Housing Authority's motion is granted only to the extent that Plaintiffs' Labor Law § 241(6) cause of action is dismissed without opposition, and the remaining branches of their motion are denied. Plaintiffs are granted summary determination of the status of TDX Construction Corporation as the general contractor or agent of the owner for purposes of Plaintiffs' Labor Law § 240(1) cause of action; and Plaintiffs' cross-motion for summary judgment on that cause of action as against defendants TDX Construction Corporation and New York City Housing Authority is granted.

April 23, 2014___________________