In this action alleging violations of Labor Law § 200, 240 (1) and 241 (6), plaintiff, a drill runner, alleges that, on June 23, 2011, he was struck by a falling blasting mat weighing between 1.5 and 4 tons, which an operating engineer, using a caterpillar excavator, had deliberately "knocked off" or "swatted off" a pile of mats. Plaintiff Anthony Cicillini now moves for partial summary judgment in his favor as to liability on his Labor Law § 240 (1) claim against defendants the New York City Transit Authority (the NYCTA) and the Metropolitan Transportation Authority (the MTA), sued herein as Metropolitan Transit Authority. Defendants oppose the motion. Defendants assert that plaintiff did not follow instructions to stay out of the area when the mat at issue was being removed from the stack of blasting mats.

On June 23, 2011, plaintiff, an employee of Yonkers Contracting Company, Inc. (Yonkers), was working at "Site J", as part of the extension of the Number 7 subway line. MTA, "acting by the New York City Transit Authority", had contracted with plaintiff's employer, Yonkers, to perform various excavation/construction work at Site J, pursuant to a contract known as MTACC Contract Number C-26510 (the Contract). (See Kelly Affirm., Ex G).^[FN1]

The "Information for Bidders Data Sheet" of the Contract states that Site J is "located in the Borough of Manhattan at the eastside of 11th Avenue between West 33rd Street and West 34th Street, within Block 705, Lot[s] 1, 5, and 54." (Contract, at i.)

According to an Easement Agreement made as of October 12, 2010, Strategic/Extell 34th Street LLC owns the parcel designated as Block 705, Lot 1 on the Tax Map of the Borough of Manhattan, County and State of New York; West 33rd Street LLC owns the parcel designated at Block 705, Lot 5, and part of Lot 54. (Kelly Affirm., Ex I, at 1.) Pursuant to the Easement Agreement, Strategic/Extell 34th Street LLC and West 33rd Street LLC (collectively, Extell) granted permanent, temporary, and interim easements to the City of New York "at, above, under, and through the subsurface of the Property for the construction and operation" of the [*2]extension of the Number 7 subway line. (Id. at 2.)

Sections 1 and 3 of the Easement state, in pertinent part:

"1. Grant of Permanent Easement; Grantor Reservations

***

Under a 1953 lease agreement between the City of New York and the New York City Transit Authority, the City "relinquished possession and control of all of its transit facilities to the [NYCTA]." (McGuire v City of New York, 211 AD2d 428, 429 [1st Dept 1995].) Article II, Section 2.1 of the 1953 lease agreement provides, in relevant part:

As discussed above, defendants contracted with plaintiff's employer, Yonkers, to perform various excavation/construction work at Site J.At his deposition, plaintiff testified, "We did the excavating through blasting from street level to subway." (Kelly Affirm., Ex E [Cicillini EBT], at 30.) According to plaintiff, he was working as a drill runner, a person who "drill[s] with machines to prepare dynamite blasting." (Id. at 19.) Plaintiff stated, "Dynamite would be put into the holes, they would wire the dynamite from hole to hole . . . and clear the job site" (id. at 38).

Plaintiff testified that blasting mats were used to muffle or contain the blast. (Id. at 38.) Plaintiff described the blasting mats, as follows:

Plaintiff testified that Tom Cambone ^[FN2] was the Yonkers supervisor on site on the date of the alleged incident. (Cicillini EBT, at 36.) Plaintiff stated that Cambone "was moving the mats," and "I had gotten clearance to grab the chains and bring them over" towards Cambone (Id. at 95-96.) According to plaintiff, "I started to drag them over, and that was the last thing that happened." (Id. at 96.) Plaintiff testified as follows:

(Cicillini EBT, at 99-100.) When asked about the height of the stack of blasting mats, plaintiff answered, "It was over my head, so I would say twelve feet, maybe fourteen." (Id. at 98.)

At his deposition, Cambone described blasting mats as follows:

According to Cambone, immediately prior to Cicillini's accident, mats were being slid off a stack by an operating engineer with an excavator. (Cambone EBT, at 45, 51.) Cambone stated,

I saw the function that the operator was doing, unaware of the man being there, being facilitated. I saw the mat, and Anthony in the work zone he was not supposed to be in.

When Cambone was asked about the height of the stack of blasting mats, he testified as follows:

At his deposition, Cambone stated that a seven-page document, marked as Plaintiff's Exhibit 1, "was created the day after the incident. " (Cambone EBT, at 8.) Cambone testified that the information came from "[m]y own records. My own observation." (Id. at 11.) The "Injury Report Form" contains a section called "Witness Report Form", which names the witness as Tom Cambone. That section states, in relevant part,

According to plaintiff, there were complaints about how the mats were being moved. Plaintiff testified as follows:

(Cicillini EBT, at 47.) According to Cicillini, no written complaint was ever filed, but complaints were made at a safety meeting in 2011, from "[m]ost likely one of the operating engineers" (Id. at 49-50.)

According to plaintiff, on the day of the accident, me complained to Cambone about the manner in which the mats were moved:

Cambone testified that, prior to plaintiff's accident, he observed operating engineers slide the blasting mat off the stack. (Cambone EBT, at 45.) When asked, "Is it a normal and accepted procedure in your business?", Cambone answered, "Yes." (Id. at 46.) According to Cambone, the mat lands and lies flat on the ground, or could bounce. He stated,

Cambone also testified that he has seen an operating engineering using a "hook-and-ring method" to take the mat of the stack as well. (Id. at 50.) According to Cambone, each mat has a metal ring, and that if one wanted to transport the mat using the ring, "I would either use the tooth, on the bucket of the excavator, to move it into place, or I would or could use a chain to do the same." (Id. at 44.) Cambone testified as follows:

According to Cambone,

When asked if anyone commented to him about the safety of the procedure of sliding the mats off the stack, Cambone answered, "I did not hear anyone complain, to the best of my memory." (Cambone EBT, at 47.) When asked why he had asked plaintiff to get the chain and hook, Cambone answered, "Because we were preparing to set the mats." (Id. at 52.)

The standards for summary judgment are well-settled.

"The meaning of owners' under Labor Law § 240 (1) has not been limited to titleholders but has been held to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit.'" (Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 618 [2d Dept 2008] quoting Copertino v Ward, 100 AD2d 565, 566 [2d Dept 1984]; see also Lacey v Long Is. Light. Co., 293 AD2d 718, 718-719 [2d Dept 2002].) "Owner" withing the meaning of Labor Law § 240 (1) includes the holder of an easement where the accident occurred. (Copertino, 100 AD2d at 566.)

Here, plaintiff has made a prima facie showing that defendants are "owners" withing the meaning of Labor Law § 240 (1). As indicated on the accident report, the accident occurred on "Site J" of the extension of the Number 7 line subway train. (Kelly Affirm., Ex H.) According to the Contract, Site J is located on Block 705, Lots1, 5, and 54 (Contract, at i), and Extell granted permanent, temporary and interim easements on those parcels to the City and its designees, pursuant to the Easement Agreement. Contrary to defendants' argument, defendants are also holders of the easements that Extell granted. The Easement Agreement specifically mentions the "MTA" as a designee of the City, and according to the recitals of the Easement Agreement, "MTA" collectively refers to the Metropolitan Transportation Authority, the New York City Transit Authority, and non-party Metropolitan Transportation Authority Capital Construction. (Kelly Affirm., Ex I, at 1-3.)

Moreover, any easement interests acquired by the City became leased to the NYCTA, by operation of the 1953 lease agreement between the City and the NYCTA.

As evidenced by the Contract, defendants contracted with plaintiff's [*6]employer, Yonkers, and thus "fulfilled the role of owner by contracting to have work performed for [their] benefit" (Copertino, 100 AD2d at 566.)

Contrary to defendants' assertion, plaintiff has sufficiently established that the accident occurred on Site J. Although defendants point out that the accident report is unsigned, Cambone stated that the accident report "was created the day after the incident", that he provided the information to Russ Turner, the safety officer for Yonkers, in the job trailer on site, and that the information on the report came from "[m]y own records. My own observation." (Cambone EBT, at 8-11.) Cambone testified that he requested the copy of accident report from Turner. (Id. at 13.)Thus, defendants are "owners" within the meaning of Labor Law § 240 (1).

Plaintiff testified that the mat that struck him was removed from a stack of blasting mats that was "twelve feet, maybe fourteen" feet high. (Cicillini EBT, at 98.) Cambone did not initially remember the height of the stack, but after additional questioning stated that the height was "[l]ower than ten feet, to my best recollection." (Cambone EBT, at 47.) The height from which the blasting mat fell presents the threshold issue of whether plaintiff was exposed to elevation-related risks covered under Labor Law § 240 (1).

"Whether a plaintiff is entitled to recovery under Labor Law § 240 (1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies." (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011].)

An elevation differential "cannot be viewed as de minimis, particularly [*7]given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent." (Runner v New York Stock Exch., Inc., 13 NY3d 599, 605 [2009].) Thus, Labor Law § 240 (1) applied where a slab weighing more than one ton fell just three feet (Harris v City of New York, 83 AD3d 104 [1st Dept 2011]). In Marrero v 2075 Holding Co., LLC (106 AD3d 408, 409 [1st Dept 2013]), the Appellate Division, First Department ruled that, although the record did not specify the height, Labor Law § 240 (1) applied where steel beams weighing a total of 1,000 pounds fell "a short distance" onto the plaintiff's leg, because of "the force they were able to generate during their descent ."

Here, plaintiff and Cambone gave differing accounts as to the height of the stack of blasting mats and different estimates as to the weight of the mat that struck plaintiff. However, these differences do not raise material issues of fact as to whether plaintiff was exposed to an elevation-related risk. Assuming the truth of Cambone's testimony, the blasting mat that struck plaintiff weighed between 4,000 and 6,000 pounds. (Cambone EBT, at 79.)

Even if height of the stack is not known, given the force that would be generated by the substantial weight of the falling blasting mat (Marrero, 106 AD3d at 409), plaintiff was exposed to an elevation-related risk within the contemplation of Labor Law § 240 (1).

It is undisputed that, at the time of the accident, the method used to retrieve blasting mats from the stack entailed intentionally slapping or sliding it off the stack, and then allegedly allowing it to free-fall to the ground. Plaintiff was injured when the mat, which was "slap[ped]" off the stack of mats by the bucket of a caterpillar excavator, struck plaintiff as it free-fell to the ground. (Cicillini EBT, at 47.)

Plaintiff contends that the mat should have been secured for the purpose of the undertaking, and that other safer methods of lowering the mat existed that could have and should have been used. According to plaintiff, had the mat been hoisted to the ground using a hook and chain, or even controlled by the caterpillar's bucket during its descent, rather than haphazardly swatted from a stack of other mats and allowed to free-fall, the accident could have been prevented.

In opposition, defendants argue plaintiff is not entitled to summary judgment in his favor, because the alleged violation is not the cause of the accident; rather, defendants maintain that plaintiff's failure to follow standard operating procedure caused the accident. Cambone testified at his deposition that whatever the method of mat removal, for safety reasons, persons "shouldn't be in the area. They have been instructed not to be." (Cambone EBT, at 49.) He further explained that it was standard operating procedure that no worker was to move within the work zone of the machine unless and until the operating engineer made eye contact with the worker.

Because the mat that struck plaintiff was being deliberately slid off the stack to free-fall, the Court must also consider whether a judicially created exception to the Labor Law § 240 (1) applies in this case. Some courts have held that Labor Law § 240 (1) is inapplicable when the falling object is deliberately dropped or thrown, apparently as part of the method of the work. (See Roberts v General Elec. Co., 97 NY2d 737, 738 [2002] [no Labor Law § 240 (1) protection where the plaintiff, an employee of an asbestos removal company, was injured when a piece of asbestos, which had been cut and deliberately dropped from above him, fell on him]; Fried v Always Green, LLC, 77 AD3d 788, 789 [2d Dept 2010] [no Labor Law § 240 (1) liability where the plaintiff was injured when a laborer tossed a bag of construction debris from the roof of the building onto the plaintiff's head]; Solano v City of New York, 77 AD3d 571, 572 [1st Dept 2010]; Harinarain v Walker, 73 AD3d 701, 702 [2d Dept 2010] [no Labor Law § 240 (1) liability where the plaintiff was struck with a piece of plywood which was either thrown, or fell from, the hole in the roof]; Isabel v U.W. Marx, Inc., 299 AD2d 701, 702 [3d Dept 2002] [no Labor Law § 240 (1) liability where the [*9]beam that struck the plaintiff was "deliberately dropped to accomplish the task of flipping it"]; Belcastro v Hewlett-Woodmere Union Free School Dist. No. 14, 286 AD2d 744, 745-746 [2d Dept 2001] [piece of wood that allegedly struck the plaintiff in the head was not a material in need of securing where it was allegedly thrown from the roof].)

However, the Appellate Division, First Department recently ruled in Mora v Sky Lift Distributor Corporation ( AD3d , 2015 WL 1292988, 2015 NY App Div LEXIS 2427 [1st Dept 2015]) that Labor Law § 240 (1) applied in a situation where a falling object had been intentionally dropped. In Mora, a general contractor's employee was injured when he was struck by a falling fan cowl cover on a cooling tower. At the time of the accident, the cooling tower had been removed from the roof of a building and placed on a flatbed truck. An employee of the Skylift Contractor Corp. began to remove the fan cowl cover off the tower, to prevent it from hitting the traffic lights during transport. The employee pushed the fan cowl cover off the tower, and the falling cover, which weighed 250 pounds, bounced off the flatbed truck and struck the plaintiff, who was standing in the street and directing traffic.

The plaintiff cross-moved for summary judgment in his favor as to liability on his Labor Law § 240 (1) claim against the owner of the building; the building owner cross-moved for summary judgment dismissing the [*10]Labor Law § 240 (1) claim. The motion court rejected the building owner's argument that Labor Law § 240 (1) was inapplicable, stating:

On appeal, the Appellate Division, First Department affirmed the motion court, stating:

Mora is similar to the instant case. Like the fan cowl cover in Mora, which weighed 250 pounds, plaintiff here was struck by a very heavy falling object weighing between 3,000 and 8,000 pounds.^[FN3] Like the fan cowl [*11]cover that bounced off the flatbed truck, the mat in this case, which had been folded under the bucket, unfurled as it hit the ground. Thus, like the fan cowl cover in Mora, the falling mat that struck plaintiff here constituted "a load that required securing for the purposes of the undertaking." (Narducci, 96 NY2d at 268.)

Runner (13 NY3d 599) is also instructive. There, the plaintiff and his co-workers were moving a large reel of wire, weighing some 800 pounds, down a set of about four stairs. The workers were instructed to tie one end of a 10—foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel. As it descended, the reel pulled the plaintiff and his co-workers, acting as counterweights, toward the metal bar. The plaintiff was drawn into the bar, injuring his hands as they jammed against it, because "[t]he expedient of wrapping the rope around the bar proved ineffective to regulate the rate of the reel's descent." (Runner, 13 NY3d at 602.) Experts testified at trial that a pulley or hoist should have been used to move the reel safely down the stairs and that the jerry-rigged device actually employed was inadequate.

The Court of Appeals ruled that Labor Law § 240 (1) applied, stating, "the causal connection between the object's inadequately regulated descent and plaintiff's injury was, as noted, unmediated or, demonstrably, at least as unmediated as it would have been had plaintiff been situated paradigmatically at the rope's opposite end." (Id. at 605.)

Given all of the above, this Court is persuaded that, under the circumstances of this case and under Mora and Runner, the unmediated descent of a blasting mat weighing between 1½ and 4 tons gives rise to a cause of action under Labor Law § 240 (1). As in Runner, where the Court of Appeals concluded that a safety device should have been used to regulate the descent of the 800 pound reel of wire, this Court similarly concludes that a safety device should have been used to regulate the descent of the blasting mat. The methodology (or rather, the lack of methodology) employed here—deliberately swatting mats and allowing them to free-fall, rather than securing the mats using a "hook-and-ring method" to regulate their descent—constitutes a violation of Labor Law § 240 (1).

The applicability of Labor Law § 240 (1) in this case is consistent with the underlying purpose and policy behind the enactment of Labor Law § 240 (1).

Although one might argue that requiring the mat to be secured while being lowered might increase construction time (and consequently increase construction costs), commercial expediency does not trump the protective purpose of the Labor Law. (See Runner, 13 NY3d at 602 "[t]he expedient of wrapping the rope around the bar proved ineffective to regulate the rate of the reel's descent"].)

In conclusion, plaintiff has met his prima facie burden of demonstrating a violation of Labor Law § 240 (1), based on the absence of a safety device to regulate the descent of the blasting mat. Because it is undisputed that the falling blasting mat struck plaintiff, the violation of Labor Law § 240 (1) was a substantial factor in causing plaintiff's injuries, as matter of law.

Defendants maintain that, as part of standard operating procedure, plaintiff was instructed to stay out of the area when the subject mat removal method was underway. Defendants argue that plaintiff's failure to follow standard operating procedure was the sole proximate cause of the accident.

Defendants' sole proximate cause argument fails. First, "an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely" (Vasquez v Cohen Bros. Realty Corp., 105 AD3d 595, 598 [1st Dept 2013]; Luna v Zoological Socy. of Buffalo, Inc., 101 AD3d 1745, 1746 [4th Dept 2012] [although the defendant put forth evidence that the plaintiff violated instructions not to work in a particular area, plaintiff was not "a recalcitrant worker whose own actions were the sole proximate cause of the accident", because "Labor Law § 240 (1) is not met merely by providing [*13]safety instructions but by furnishing, placing and operating such [safety] devices so as to give [a worker] proper protection").

Moreover, as discussed above, plaintiff demonstrated, as a matter of law, a violation of Labor Law § 240 (1). "It is absolutely clear that if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it'" (Hernandez v Bethel United Methodist Church of NY, 49 AD3d 251, 253 [1st Dept 2008], quoting Blake, 1 NY3d at 290). Where "the owner or contractor fails to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff's injury, the [n]egligence, if any, of the injured worker is of no consequence." (Tavarez v Weissman, 297 AD2d 245, 247 [1st Dept 2002] [internal quotation marks and citations omitted].)Plaintiff's alleged failure to follow instructions would be, "at most, comparative negligence, which is not a defense under § 240(1)." (Dias v City of New York, 110 AD3d 577, 578 [1st Dept 2013]).

Thus, plaintiff is granted partial summary judgment in his favor as to liability on the Labor Law § 240 (1) claim.

For the foregoing reasons, it is hereby

ORDERED that plaintiff Anthony Cicillini's motion, pursuant to CPLR 3212, for partial summary judgment in his favor as to liability on his Labor Law § 240 (1) claim against defendants the New York City Transit Authority and the Metropolitan Transit Authority is granted; and it is further

ENTER:

J.S.C.