Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiffs Scott Canfield and Caren Keller (hereafter, plaintiffs), served on April 3, 2014, under motion sequence number three, for an order granting them partial summary judgment on liability on the Labor Law §§ 240 (1) and 241 (6) claims of plaintiff Scott Canfield (hereafter, plaintiff):

Notice of Motion

Plaintiffs' counsel's supporting affirmation

Exhibits A-R to the supporting affirmation

Opposing affirmation of counsel to Forman Jay LLC

Plaintiffs' counsel's reply affirmation

Exhibit A to the reply affirmation.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of Forman Jay LLC, served on April 28, 2014, under motion sequence number four, for summary judgment, pursuant to CPLR 3212, dismissing all of plaintiffs' claims:

Notice of Motion

Defense counsel's supporting affirmation

Exhibits A-M to the supporting affirmation

Plaintiffs' counsel's affirmation in opposition

Defense counsel's reply affirmation.

New Year's Eve, was a motion picture released in December, 2011. It portrayed a panoply of characters hoping that this one night would change their lives forever —a workaholic secretary has a list of new year's resolutions to meet (Michelle Pfeiffer), a journalist dying of cancer wants to see the "ball" drop in Times Square one more time ( Robert De Niro), and so forth. Four scenes of that motion picture were filmed on a set^[FN2] inside a warehouse at 51 Jay Street in the DUMBO section of Brooklyn, New York (hereafter, the building). Intended to reproduce the island of Bali, the movie set consisted of a tiki hut — a cabana-style structure with thatched roof — built on a raised platform (hereafter, the tiki hut). A mock stone retaining wall flanked the sides of the tiki hut as it was facing the camera. A water bridge in front of the tiki hut crossed a lagoon that was fed by small waterfalls. Plants and rocks finished the scenery of this interior movie set (hereafter, the tiki-spa set).

The tiki-spa set, once fully assembled, occupied some 7,000 square feet of the building's 22,000-square-foot ground floor. The framing of the tiki-spa set was performed by a team of carpenters who had built the deck before the roof of the tiki hut could be covered with thatch tiles. The tiki hut's roof rose about 18 to 20 feet up from the ground-floor level. The roof frame was three-sided, with slats that were spaced about every 14 to 16 inches. The placement of roof tiles, together with the finishing and painting of the movie set, was to be performed by teams of set dressers and scenic artists.

Plaintiff was one of the set dressers for the tiki-spa set. He was injured on February 8, 2011, his second day on the set, at the time when it was about 60-70% complete. On that day, as well as on the day before it, he was attaching 1' x 3' x 1½" thatch tiles to the tiki hut's roof. To be able to reach the roof, he and his coworker had built an unenclosed work platform by screwing a piece of plywood to a 4' x 6' pallet and by using two ratchet straps to secure the platform to the forks of a hi-lo forklift to be operated by his coworker. The platform with plaintiff and several boxes of thatch tiles on it was held and raised up to the tiki hut's roof by the forks of the forklift. As plaintiff was lying on the platform, he was attaching the tiles to the roof frame, while his coworker was positioning the forklift. To attach the tiles, plaintiff approached the roof frame from the outside, rather than by reaching in through the slats. In the course of his work in the afternoon of February 8, 2011, he fell off the platform, landing about ten feet on the concrete ground below. In his own words, he "lost [his] whole life" on a movie set of New Year's Eve.^[FN3]

To work on this set, plaintiff, a member of Local 52 of the International Alliance of Theatrical Stage Employees, had been hired and supervised by his brother Philip Canfield (hereafter, the supervisor), who acted as the "leadman" or lead set dresser. New Line Productions, Inc. (hereafter, New Line) licensed the space for the tiki-spa set from the building owner, defendant Foreman Jay LLC (hereafter, the owner), pursuant to a Location Agreement, dated January 7, 2011, for a stated period of about two months, encompassing the date of the accident. New Line rented the forklift from the building tenant, the defendant Jon Goldstein, doing business as Vinegar Hill Studios (hereafter, the tenant). New Line also entered into an Access Location Agreement, dated January 11, 2011, with the tenant designating the latter as the "doorman" who would open and close the building while the tiki-spa set was being constructed.

Plaintiff, and his wife suing derivatively, brought this action against the owner and the tenant asserting as to each of them claims under (1) Labor Law § 240 (1), (2) Labor Law § 241 (6) to the extent premised on the alleged violation of 23 NYCRR (hereafter, the Industrial Code) § 23-1.16 (safety belts, harnesses, tail lines and lifelines), (3) Labor Law § 200/common-law negligence, and (4) a derivative claim for loss of consortium (see summons and verified complaint filed with the Kings County Clerk on June 29, 2012). The owner and the tenant joined issue (see owner's verified answer, dated Aug. 1, 2012, and tenant's verified answer, dated Nov. 26, 2012). After discovery was completed and a note of issue was filed on February 27, 2014, the instant motions were timely served.

Plaintiffs seek partial summary judgment on liability on (1) plaintiff's Labor Law § 240 (1) claim and (2) on his Labor Law § 241 (6) to the extent premised on the alleged violations of Industrial Code § 23-5.1 (j) (1) (general provisions for all scaffolds — safety railings) and § 23-1.15 (safety railing). The owner seeks summary judgment dismissing all of plaintiffs' claims against it.

In the course of the motion practice, plaintiffs conceded that the facts of this case do not support plaintiff's claim against the owner based on an alleged violation of Labor Law § 200 or under common-law negligence (see plaintiffs' affirmation in opposition, dated June 17, 2014, n 1). Plaintiffs further conceded that Industrial Code § 23-1.16 (safety belts, harnesses, tail lines and lifelines) is not relevant (id. at 29).

The Court construes plaintiffs' motion as seeking relief solely against the owner. Although plaintiffs' motion does not specify whether they seek relief against the owner only or against both the owner and the tenant, their papers focus exclusively on the issues that are relevant to the owner and avoid any discussion of the issues that are specific to the tenant.

The only issues before the Court are the merits of plaintiff's claims against the owner under (1) Labor Law § 240 (1), and (2) Labor Law § 241 (6) claim to the extent premised on the alleged violations of Industrial Code § 23-5.1 (j) (1) (general provisions for all scaffolds — safety railings) and § 23-1.15 (safety railing).

Labor Law § 240 (1) provides, in relevant part, that:

Statutory liability arises when a property owner's breach of its statutory duty to provide safety measures proximately causes the worker's injury (see Albanese v City of New York, 5 NY3d 217, 219 [2005]). If established, a property owner's failure to provide a safety device is a per se violation of the statute for which the owner is strictly liable (see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 523-524 [1985], rearg denied 65 NY2d 1054 [1985]).

Here, plaintiffs have made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability on so much of their complaint as alleged that the owner violated Labor Law § 240 (1). Plaintiffs have submitted admissible deposition transcripts^[FN4] demonstrating that (1) plaintiff was working at an elevation; (2) the makeshift platform constituted a scaffold contemplated by § 240 (1); and (3) he fell off the platform sustaining injuries. It is self-evident that plaintiff was not provided with (1) an adequate work platform (i.e., scaffolding), which is one of the protective devices enumerated in § 240 (1); and/or (2) a safety harness and a lanyard, secured and tied off to an anchor point, which is another type of the protective device within the ambit of § 240 (1) (see Tabickman v Batchelder St. Condominiums By Bay, LLC, 52 AD3d 593, 595 [2d Dept 2008]; Dzieran v 1800 Boston Rd., LLC, 25 AD3d 336, 337 [1st Dept 2006]).

The burden now shifts to the owner to come forward with sufficient evidence to raise a triable issue of fact (see Ernest v Pleasantville Union Free School Dist., 28 AD3d 419 [2d Dept 2006]). Answering the question of whether the owner has met this burden is dependent on the resolution of the three issues listed here.

The first issue is whether the tiki hut was a "structure" within the meaning of § 240 (1). The owner argues that it was not, noting that it was unsecured to the building floor and that it existed only for the duration of the movie shoot. A structure is "any production or piece of work artificially built up or composed of parts joined together in some definite manner" (Joblon v Solow, 91 NY2d 457, 464 [1998] [internal quotation marks omitted]). The Second Department instructed that whether an item is a "structure" requires an examination of "the item's size, purpose, design, composition, and degree of complexity; the ease or difficulty of its assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnecting parts; and the amount of time the item is to exist" (McCoy v Abigail Kirsch at Tappan Hill, Inc., 99 AD3d 13, 17 [2012]).

The summary judgment record, including the authenticated photographs of the tiki-spa set, conclusively establishes that the tiki hut, which was the central piece of the tiki-spa set, was a structure, as evidenced by the set's size, purpose, design, composition, and complexity. The [*4]assembly of the tiki hut itself and of the tiki-spa set required the use of numerous tools and separate teams of carpenters, set dressers, and scenic painters.^[FN5] Although the tiki-spa set remained in the building for no more than two months, this factor, in and of itself, is insufficient to outweigh the other factors which strongly support an inference that the tiki hut, either alone or as the central element of the tiki-spa set, was a structure within the meaning of § 240 (1) (see Kharie v South Shore Record Mgt., Inc., 118 AD3d 955, 956 [2d Dept 2014] [a set of shelves which were connected in a tongue-and-groove fashion, some of which required the use of a hammer to separate the pieces, constituted a structure]; McCoy, 99 AD3d at 17 [a ritual canopy at a Jewish wedding ceremony was a structure]; Sinzieri v Expositions, Inc., 270 AD2d 332, 333 [2d Dept 2000] [an exhibit of windows at a trade show constituted a structure]). The decisions on which the owner relies to support its argument to the contrary are factually inapposite, as set forth more fully in the margin.^[FN6] The owner's position that it had nothing to do with the construction of the set inside the building does not absolve it from liability under § 240 (1), given that such construction was a permitted use under the Location Agreement between the building owner and New Line. While the owner's argument might have been relevant to plaintiff's claims against it under Labor Law § 200 and in common law negligence, such argument is no longer relevant because these claims against the owner have been withdrawn.

The second issue is whether, at the time of the accident, plaintiff was engaged in the

The third and final issue is whether plaintiff was a recalcitrant worker and, hence, the sole proximate cause of his accident. "[T]o defeat the plaintiff's motion for partial summary judgment, the defendants must raise an issue of fact as to whether the plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured" (Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 10 [1st Dept 2011] [internal quotation marks omitted]).

Even viewed in the light most favorable to the owner, there is no evidence in the record that plaintiff had any safety device available, knew that he was expected to use it, and unreasonably chose not to do so. What clinches the case is that the supervisor, while observing plaintiff working on the makeshift platform on the morning of the day of the accident, took no [*5]steps to provide him with any safety equipment. Instead, all that the supervisor did for plaintiff in terms of safety at that time was to warn him "to just be careful."^[FN7] The supervisor's warning to use caution does not render plaintiff a recalcitrant worker, since it has not been shown that he (plaintiff) was provided with an adequate safety device that he refused to use (see Guaman v New Sprout Presbyterian Church of NY, 33 AD3d 758, 759 [2d Dept 2006]).

The owner tries to extrapolate from the snippets of the supervisor's deposition testimony to show that an A-frame ladder that was available on the set was adequate for plaintiff's work, while ignoring the overall context and the supervisor's clarifying statements to the contrary. It is true that the supervisor generally indicated that plaintiff could use an A-frame ladder to install the roof tiles, characterizing such work as "hard" but "not impossible" (see Philip Canfield tr at page 25, lines 20-21). But the force of the supervisor's general statement is qualified by his other deposition testimony and by his post-accident affidavit. He indicated at his pretrial deposition that there were "certain rows [of the roof tiles] where wood slats were narrower," and that "there [were] some spots that you couldn't get to[ ] with a ladder" (see Philip Canfield tr at page 68, lines 12:13 [emphasis added]). Further, he authenticated and reaffirmed at his pretrial deposition the correctness of his post-accident affidavit, dated July 8, 2013, in which he averred that:

The supervisor was specifically asked at his pretrial deposition to explain what he meant by the aforementioned italicized sentence in his affidavit that "[t]here were ladders and a Baker's scaffold on site, but the roof was in a spot that utilizing these were not options." The supervisor's response and the ensuing colloquy confirm that an A-frame ladder was inadequate to permit the placement of the tiles for the entire roof of the tiki hut:

The supervisor's pretrial deposition testimony, as corroborated by his post-accident affidavit, establishes that an A-frame ladder that was made available to plaintiff to install the tiles on the tiki hut's roof was inadequate. In the circumstances of this case where no adequate safety devices were made available to plaintiff, there was nothing extraordinary or unanticipated in his using a makeshift platform to install the roof tiles. Plaintiff's use of such a platform amounted, at most, to negligence, which is "of no consequence" in the context of § 240 (1) (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

The "recalcitrant worker/sole proximate cause" decisions on which the owner relies are inapposite to the facts of this case. These decisions either (1) involve the use of an improper piece of equipment or other objects despite the availability of adequate equipment on the construction site (see Robinson v East Med. Ctr., 6 NY3d 550 [2006]; Montgomery v Federal Express Corp., 4 NY3d 805 [2005]; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]; Palacios v Lake Carmel Fire Dept., Inc., 15 AD3d 461, 463 [2d Dept 2005]); (2) present a failure to properly use safety equipment that was otherwise adequate (see Blake v Neighborhood Hous. Servs. of New York City, Inc., 1 NY3d 280 [2003]); or (3) concern an improper assembly of a piece of safety equipment by the injured plaintiff (see Kuntz v WNYG Hous. Dev. Fund Co., 104 AD3d 1337, 1338-1339 [4th Dept 2013]).

Therefore, the branch of plaintiffs' motion for partial summary judgment on liability on plaintiff's Labor Law § 240 (1) claim against the owner is granted. Conversely, the branch of the owner's motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim against it is denied.

Labor Law § 241 (6) imposes a nondelegable duty of reasonable care upon owners to provide reasonable and adequate protection and safety to persons employed in all areas in which construction work is being performed (see Lopez v New York City Dept. of Envtl. Protection, 2014 NY Slip Op 08963 [2d Dept 2014]). The statute requires owners to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Misicki v Caradonna, 12 NY3d 511, 515 [2009]). The duty to comply with the Commissioner's safety rules, which are set out in the Industrial Code is nondelegable (id.). To support a § 241 (6) claim, however, the injured worker must establish that the accident was proximately caused by a violation of a Code provision stating a specific positive command that is applicable to the facts of the case (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350 [1998]). Comparative negligence is a valid defense to a § 241 (6) claim; "moreover, breach of a duty imposed by a rule in the Code is merely some evidence for the factfinder to consider on the question of a defendant's negligence" (Misicki, 12 NY3d at 515).

Here, plaintiffs and the owner both move for summary judgment on plaintiff's § 241 (6) claim. In support of their motion, plaintiffs cite to Industrial Code § 23-5.1 (j) (1) (general provisions for all scaffolds — safety railings) and § 23-1.15 (safety railing). These provisions require that the open sides of all scaffold platforms must be equipped with a safety railing in the form of a hand rail, mid-rail, and toeboard. Read in conjunction, these provisions are specific enough to support a § 241 (6) claim (see Macedo v J.D. Posillico, Inc., 68 AD3d 508, 510 [1st [*7]Dept 2009]; Donohue v CJAM Assoc., LLC, 22 AD3d 710, 712 [2d Dept 2005]). These provisions also appear relevant to the facts of this case, considering that the platform that plaintiff was using at the time of his accident was unenclosed. This does not end the inquiry, however.

As the owner points out in its opposition to this branch of plaintiffs' motion, plaintiffs have cited these provisions for the first time in their motion and have not sought leave to amend their bill of particulars. The Court need not reach the merits of the owner's opposition, however, because plaintiffs have failed to eliminate all material issues of fact regarding plaintiff's alleged negligence in constructing and using a makeshift platform on top of the forklift (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Thus, this branch of plaintiffs' motion is denied. For the same reason, the branch of the owner's motion for dismissal of this claim is denied (see Sanders v St. Vincent Hosp., 95 AD3d 1195, 1196 [2d Dept 2012]).

Accordingly, it is

ORDERED that the branch of plaintiffs' motion for partial summary judgment on liability on plaintiff's Labor Law § 240 (1) claim against the owner is granted; and it is further

ORDERED that the remaining branch of plaintiffs' motion for partial summary judgment on liability against the owner on plaintiff's Labor Law § 241 (6) claim to the extent premised on an alleged violation of Industrial Code § 23-5.1 (j) (1) and § 23-1.15 is denied; and it is further

ORDERED that the branch of the owner's motion for summary judgment dismissing, insofar as asserted against it, plaintiff's Labor Law § 240 (1) claim is denied; and it is further

ORDERED that the branch of the owner's motion for summary judgment dismissing, insofar as asserted against it, plaintiff's Labor Law § 241 (6) claim is granted without opposition to the extent that such claim is premised on an alleged violation of Industrial Code § 23-1.16, and is denied to the extent that such claim is premised on an alleged violation of Industrial Code § 23-5.1 (j) (1) and § 23-1.15; and it is further

ORDERED that the branch of the owner's motion for summary judgment dismissing, insofar as asserted against it, plaintiff's Labor Law § 200/common-law negligence claim is granted without opposition; and it is further

ORDERED that the remaining branch of the owner's motion for summary judgment dismissing plaintiffs' derivative claim against it is denied.

The parties are reminded of their scheduled appearance in JCP-1 on February 3, 2015.

The foregoing constitutes the decision and order of the Court.