Supreme Court, New York County, October 27, 2021

Russo & Gould, LLP, New York City (Alan Russo and Matthew J. Shock of counsel), for EGK Realty, LLC, defendant.

Morgan Levine Dolan, P.C., New York City (Glenn P. Dolan of counsel), for plaintiff.

Fabiani Cohen & Hall, LLP, New York City (Melissa Callender of counsel), for Consolidated Edison Company of New York, Inc., defendant.

Plaintiff sues to recover damages for personal injuries sustained August 6, 2015, when he struck the back of his head and neck on an overhead plywood board as he ascended a basement staircase on premises owned by defendant EGK Realty, LLC, while he was working on a project to repair a gas leak. Defendant Consolidated Edison Company of New York, Inc., was the general contractor for the project and subcontracted work to plaintiff's nonparty employer.

Defendant EGK Realty moves for summary judgment dismissing plaintiff's claims for negligence and violation of{**74 Misc 3d at 353} Labor Law § 200. (CPLR 3212 [b], [e].) Plaintiff cross-moves for summary judgment on both defendants' liability for violation of Labor Law §§ 240 (1) and 241 (6). Consolidated Edison moves for summary judgment dismissing plaintiff's claims for violation of Labor Law §§ 240 (1) and 241 (6).

Although plaintiff cross-moved against Consolidated Edison before it served its motion, the court may disregard plaintiff's mislabelling his otherwise timely motion for summary judgment a "cross motion" as a mere irregularity that did not prejudice defendants. (CPLR 2001; JP Morgan Chase Bank, N.A. v White, 182 AD3d 469, 471 [1st Dept 2020].) Neither defendant opposes the court's consideration of the cross motion as a motion for summary judgment against both defendants.

EGK Realty separately moves for summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims and any cross claims, but provides no justification for the second motion for summary judgment. (Landis v 383 Realty Corp., 175 AD3d 1207, 1207 [1st Dept 2019]; Maggio v 24 W. 57 APF, LLC, 134 AD3d 621, 625 [1st Dept 2015]; Amill v Lawrence Ruben Co., Inc., 117 AD3d 433, 433 [1st Dept 2014]; Ferolito v Vultaggio, 99 AD3d 19, 29 [1st Dept 2012].) Although EGK Realty claims that "law office failure" under CPLR 2005 excuses EGK Realty's delay in moving for summary judgment dismissing plaintiff's additional claims and any cross claims, that provision applies only to motions pursuant to CPLR 3012 (d) or 5015 (a), not to motions pursuant to CPLR 3212. Moreover, the infirmity in this motion is not that it is late, but that it is a successive motion for summary judgment by EGK Realty.

Even were law office failure a cognizable justification, EGK Realty fails to explain what its attorney's "law office failure" was or how that failure prevented EGK Realty from initially moving for summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims and any cross claims along with his section 200 and negligence claims. In fact, EGK Realty admits that it intentionally omitted its defenses against the sections 240 (1) and 241 (6) claims from its first motion for summary judgment without further explanation. Therefore the court denies EGK Realty's second motion for summary judgment.

Labor Law § 200 codifies an owner's duty to maintain construction site safety. (Rizzuto v L.A. Wenger Contr. Co., 91{**74 Misc 3d at 354}NY2d 343, 352 [1998]; Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877-878 [1993].) Pursuant to principles of liability for ordinary negligence and under Labor Law § 200, EGK Realty owed plaintiff a duty to provide him a safe work environment. If a dangerous condition arising from plaintiff's work caused his injury, EGK Realty may be liable for negligently permitting that condition and violating Labor Law § 200, if the owner supervised or exercised control over the activity that caused plaintiff's injury. (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 352; Comes v New York State Elec. & Gas Corp., 82 NY2d at 877; Maggio v 24 W. 57 APF, LLC, 134 AD3d at 626; Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 144 [1st Dept 2012]; see Ocampo v Bovis Lend Lease LMB, Inc., 123 AD3d [*3]456, 457 [1st Dept 2014]; Francis v Plaza Constr. Corp., 121 AD3d 427, 428 [1st Dept 2014].) If a dangerous condition on the work site caused plaintiff's injury, liability depends on EGK Realty's creation or actual or constructive notice of the condition. (Armental v 401 Park Ave. S. Assoc., LLC, 182 AD3d 405, 407 [1st Dept 2020]; DeMercurio v 605 W. 42nd Owner LLC, 172 AD3d 467, 467 [1st Dept 2019]; Prevost v One City Block LLC, 155 AD3d 531, 534 [1st Dept 2017]; Maggio v 24 W. 57 APF, LLC, 134 AD3d at 626.)

Plaintiff's injuries arose from a dangerous condition on the premises: a plywood board affixed overhead and projecting into a stairwell. EGK Realty insists it is entitled to summary judgment dismissing plaintiff's negligence and Labor Law § 200 claims because plaintiff has not established EGK Realty's negligence. To succeed on its motion for summary judgment, however, EGK Realty bears the burden to establish prima facie that the work site was not dangerous. Although EGK Realty emphasizes that the plywood board was open and obvious, the dangerous condition's visibility obviates only EGK Realty's duty to warn of the danger, not its duty to maintain safe premises. (Matos v Azure Holdings II, L.P., 181 AD3d 406, 407 [1st Dept 2020]; Farrugia v 1440 Broadway Assoc., 163 AD3d 452, 454-455 [1st Dept 2018]; Derix v Port Auth. of N.Y. & N.J., 162 AD3d 522, 522 [1st Dept 2018]; Polini v Schindler El. Corp., 146 AD3d 536, 536 [1st Dept 2017].) No evidence establishes that EGK Realty maintained reasonably safe premises. EGK Realty also insists that it lacked notice of the plywood board, but its owner Edmond Kolndreu testified at his deposition that he personally installed the board. (Aff of Matthew J. Shock, exhibit G at 37.){**74 Misc 3d at 355}

Moreover, in opposition, plaintiff demonstrates the danger that the plywood board posed through his deposition testimony and the opinion of his construction engineer, Scott Silberman. Because EGK Realty admits it created the condition that caused plaintiff's injury and fails to show that the condition was safe, and plaintiff demonstrates that the condition was in fact unsafe, the court denies EGK Realty summary judgment dismissing plaintiff's negligence and Labor Law § 200 claims. (CPLR 3212 [b].)

Based on the absence of any evidence that EGK Realty was not negligent by installing and maintaining the dangerous board projecting down into the stairwell, no factual issue precludes summary judgment on EGK Realty's liability to plaintiff for negligence and violation of Labor Law § 200. Although plaintiff did not move for summary judgment on these claims, the court may search the record and grant summary judgment in his favor because both claims are the subject of EGK Realty's motion for summary judgment. (CPLR 3212 [b]; Otto v Otto, 192 AD3d 517, 518 [1st Dept 2021]; see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996].) Therefore the court grants plaintiff summary judgment on EGK Realty's liability for negligence and violation of Labor Law § 200. (CPLR 3212 [b], [e].)

Labor Law § 240 (1) requires that all building owners and general contractors:

"in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

The statute imposes absolute liability on the owner and general contractor of a construction site if they fail to provide adequate protection against an elevation-related risk, and that failure is the proximate cause of plaintiff worker's injury. (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 97 [2015]; Rivas v Nestle Realty Holding Corp., 188 AD3d 430, 431 [1st Dept 2020]; Landi v SDS William St., LLC, 146 AD3d 33, 37 [1st Dept 2016].)

Plaintiff claims that defendants are liable under Labor Law § 240 (1) because they failed to provide him an adequate safety{**74 Misc 3d at 356} device: a safely constructed stairway to travel to and from the basement while performing work covered by the statute. He maintains that, although defendants provided the stairway, three dangerous defects rendered it inadequate as a safety device. (1) The stairway step that plaintiff stepped up to when he struck the board was excessively high in comparison to the surrounding steps. (2) The plywood board with sharp edges that EGK Realty installed projected down into the stairwell, impeding ascent and descent. (3) The stairway lacked handrails for plaintiff to use to arrest his fall.

Defendants insist that plaintiff's tasks classify as routine maintenance not protected by Labor Law § 240 (1) and that the stairway, as a normal appurtenance of the building, functioned as a passageway unrelated to plaintiff's work. Defendants further maintain that plaintiff's injuries did not arise from an elevation-related risk against which an adequate safety device would have protected.

A. Covered Activities under Labor Law § 240 (1)

Labor Law § 240 (1) does "not cover workers engaged in routine maintenance. The determination of whether a worker was engaged in a covered activity is not made at the moment of injury, but in the context of the entire project." (Gaston v Trustees of Columbia Univ. in the City of N.Y., 190 AD3d 551, 552 [1st Dept 2021] [citation omitted].) Defendants insist that plaintiff performed only "routine maintenance," but this label trivializes plaintiff's assignment. Plaintiff testified at his deposition that his work required him to locate the source of a gas leak and repair gas service to two buildings. Over the course of four days, he performed excavations throughout the street, inspected the underlying gas lines, disassembled and constructed gas meters, conducted pressure tests, and reviewed the meters and gas service to the buildings. No evidence contradicts this [*5]description.

Thus plaintiff's work did not only involve "replacing components that require replacement in the course of normal wear and tear." (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]; see Banner v Rockland Home for the Aged Hous. Dev. Fund Co., Inc., 129 AD3d 641, 642 [1st Dept 2015]; Picaro v New York Convention Ctr. Dev. Corp., 97 AD3d 511, 512 [1st Dept 2012]; Santiago v Fred-Doug 117, L.L.C., 68 AD3d 555, 555, 556 [1st Dept 2009].) The entire project included alterations and repairs to the street, gas lines, and gas meters within EGK Realty's premises. Therefore plaintiff's tasks were covered activities under Labor Law § 240 (1).{**74 Misc 3d at 357}

B. Stairways as a Safety Device

Plaintiff claims the stairway qualifies as a safety device because it provided the sole means of access to the gas meter located in the building's basement. Defendants insist the stairway did not function as a safety device because it was not the only entrance to the basement, and plaintiff performed no work on the stairway. Defendants further claim the stairway served as a passageway, as opposed to a safety device, because it was a normal appurtenance of the building.

A stairway may qualify as a safety device when it provides the sole means of access to a designated work area. (Rivas v Nestle Realty Holding Corp., 188 AD3d at 431; Conlon v Carnegie Hall Socy., Inc., 159 AD3d 655, 655 [1st Dept 2018]; Gory v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 AD3d 550, 550-551 [1st Dept 2014]; Ramirez v Shoats, 78 AD3d 515, 517 [1st Dept 2010].) Although defendants maintain there were two entrances to plaintiff's work site in the basement, an entrance other than the stairway that plaintiff used does not diminish the stairway's function as a safety device when defendants provided him access only to the stairway. No evidence shows he was even aware of a second entrance, let alone provided access to this entrance, which according to defendants would have required plaintiff to enter a tenant's apartment.

The fact that plaintiff performed no work on the stairway also does not remove it from a protected part of the work site. (Hoyos v NY-1095 Ave. of the Ams., LLC, 156 AD3d 491, 494 [1st Dept 2017]; Alarcon v UCAN White Plains Hous. Dev. Fund Corp., 100 AD3d 431, 432 [1st Dept 2012].) Therefore the stairway qualifies as a safety device under Labor Law § 240 (1).

C. Elevation-Related Risk

To constitute a violation of section 240 (1), the condition that caused plaintiff's injury must fit within the "special hazards" contemplated by the statute. (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d at 97; Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 916 [1999]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993].) The "special hazards" to which section 240 (1) applies "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Rather, the 'special hazards' referred to are limited to such specific gravity-related accidents as falling from a height." (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2dat{**74 Misc 3d at 358}501 [emphasis omitted]; see Nicometi v Vineyards of Fredonia, LLC, 25 NY3d at 97; Brown v New York-Presbyt. HealthCare Sys., Inc., 123 AD3d 612, 612 [1st Dept 2014].)

Thus an injury covered by Labor Law § 240 (1) must flow directly not only "from the application of the force of gravity to an object or person," but also from a harm against which an adequate "scaffold, hoist, stay, ladder or other protective device" would have shielded the injured worker. (Salazar v Novalex Contr. Corp., 18 NY3d 134, 139 [2011]; see Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501.) If the evidence meets these companion requirements, a "defendant's failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability." (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]; Hoyos v NY-1095 Ave. of the Ams., LLC, 156 AD3d at 495; Ortega v City of New York, 95 AD3d 125, 128 [1st Dept 2012].)

Liability under Labor Law § 240 (1)

"does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall . . . . Rather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." (Runner v New York Stock Exch., Inc., 13 NY3d at 603; see Hill v City of New York, 140 AD3d 568, 569 [1st Dept 2016].)

Plaintiff, relying on Gory v Neighborhood Partnership Hous. Dev. Fund Co., Inc. (113 AD3d at 551), insists that falling on a stairway without handrails automatically implicates liability under section 240 (1). Gory v Neighborhood Partnership Hous. Dev. Fund Co., Inc. (113 AD3d at 550-551) held that

"the fact that the stairway on which plaintiff was working when he was injured was originally constructed as a permanent structure does not remove it from the reach of Labor Law § 240 (1). Not only had the stairway provided the sole means of access to the floors of the building during the demolition phase, but, in addition, it was an elevated surface on which plaintiff was required to work to complete his task of breaking up the marble pieces covering each step. The surrounding walls had been demolished,{**74 Misc 3d at 359} and the staircase had no guard rails. Thus, 'plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.' " (Quoting Runner v New York Stock Exch., Inc., 13 NY3d at 603.)

In contrast to plaintiff here, the plaintiff in Gory did not simply fall on a stairway; he was injured because the stairway collapsed underneath him. (Gory v Neighborhood Partnership [*6]Hous. Dev. Fund Co., Inc., 2013 NY Slip Op 34252[U], *2-3 [Sup Ct, Bronx County 2013].) Thus the defendants in Gory were liable because they exposed the plaintiff to an elevation-related risk not only by requiring him to work on the stairway, but also by failing to provide him an adequate safety device to protect against a stairway at risk of collapse, whose "surrounding walls had been demolished," and which lacked guard rails, during a "demolition process." (Gory v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 AD3d at 551.)

To determine liability, "the relevant and proper inquiry is whether the hazard plaintiff encountered . . . was a separate hazard wholly unrelated to the hazard which brought about [the] need [for a safety device] in the first instance." (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d at 98 [internal quotation marks omitted]; see Serrano v Consolidated Edison Co. of N.Y. Inc., 146 AD3d 405, 406 [1st Dept 2017]; Andrade v Triborough Bridge & Tunnel Auth., 51 AD3d 517, 517 [1st Dept 2008].) Here, Consolidated Edison demonstrates that neither of plaintiff's alleged injuries was caused by an elevation-related risk: (1) his neck fracture was caused by striking the plywood board, and (2) the herniated disc in his cervical spine was caused by his impact with the ground. Although plaintiff's ascension up the staircase involved an elevation, his injuries were not a direct consequence of an elevation differential; he would have sustained the same injuries in a level passageway.

Plaintiff maintains that the excessively high step that he stepped up to before he struck the board created an elevation differential, but concedes that the board caused him to lose his balance and fall. He does not claim that he lost his balance in pulling himself up onto the step. His affidavit further attests that the lack of a handrail as well as the board caused him to lose his balance, but he never attests that he attempted to grab anything to arrest his fall or that he actually fell down the steps so that he needed a handrail to arrest his fall. Rather,{**74 Misc 3d at 360} plaintiff testified that he fell forward, onto his hands and knees, on the same step that he ascended before striking the board. Thus his collision with the board does not fall within the ambit of Labor Law § 240 (1). Nor does he demonstrate that the absence of a handrail was the proximate cause of either the fracture or the herniation in his cervical spine. (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d at 97; Rivas v Nestle Realty Holding Corp., 188 AD3d at 431; Landi v SDS William St., LLC, 146 AD3d at 37.)

The stairway may have functioned as a safety device for plaintiff's required travel between different levels, but the risk of injury associated with ascending a staircase is wholly unrelated to the risk of injury that the board projecting down into the staircase posed. (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d at 99; Melber v 6333 Main St., 91 NY2d 759, 763 [1998]; see Serrano v Consolidated Edison Co. of N.Y. Inc., 146 AD3d at 406.) Similarly, a handrail is "simply not designed to avert the hazard plaintiff encountered" here: to [*7]have prevented his impact when falling forward onto the step he was ascending. (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d at 99; Melber v 6333 Main St., 91 NY2d at 763.)

Significantly, the authenticated photographs depicted that the top step of the section of the basement staircase on which plaintiff fell led into an outside, open, concrete yard, where another set of stairs led up to the street. Thus a handrail along the three steps that plaintiff ascended before he fell would not have provided him the means to arrest his fall, because the handrail would not have extended beyond the staircase into the level area.

Finally, while the excessively high step, the board, and the absence of a handrail all were unsafe conditions, neither of plaintiff's injuries flowed "directly . . . from the application of the force of gravity to an object or person." (Salazar v Novalex Contr. Corp., 18 NY3d at 139; Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10; Runner v New York Stock Exch., Inc., 13 NY3d at 604.) Plaintiff fell because he rose too quickly and struck his neck against the overhanging board. Unlike a worker who falls down the stairs because a defective condition causes him to lose his balance, plaintiff's injury occurred from his upward force.

[1] For all these reasons, the circumstances of plaintiff's injuries do not afford him protection under Labor Law § 240 (1). Therefore the court grants Consolidated Edison summary{**74 Misc 3d at 361} judgment dismissing plaintiff's claim under Labor Law § 240 (1) against Consolidated Edison and denies plaintiff summary judgment on that claim against both defendants. (CPLR 3212 [b].) Since plaintiff also moves for summary judgment on his Labor Law § 240 (1) claim against EGK Realty, but, for the reasons explained above, fails to sustain a viable claim, the court searches the record and grants EGK Realty summary judgment dismissing that claim against EGK Realty. (Id.; Canning v Barneys N.Y., 289 AD2d 32, 35 [1st Dept 2001]; see Edwards v Aponte, 181 AD3d 484, 485 [1st Dept 2020]; Estate of Mirjani v DeVito, 135 AD3d 616, 618 [1st Dept 2016].)

Labor Law § 241 provides in part that

"[a]ll contractors and owners . . . , when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: . . . .

"6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners [*8]and contractors . . . shall comply therewith."

Labor Law § 241 (6) thus imposes a nondelegable duty on owners and general contractors to provide reasonable and adequate protection for workers and to comply with specific safety regulations promulgated under the statute. (St. Louis v Town of N. Elba, 16 NY3d 411, 413 [2011]; Balbuena v IDR Realty LLC, 6 NY3d 338, 361 n 8 [2006]; Comes v New York State Elec. & Gas Corp., 82 NY2d at 878; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502-503.)

Consolidated Edison moves for summary judgment dismissing plaintiff's claim under Labor Law § 241 (6) based on 12 NYCRR 23-1.7, 23-1.8, 23-1.15, 23-1.16, 23-1.17, 23-1.21, 23-1.22, and 23-5, all alleged in plaintiff's bill of particulars. Plaintiff does not oppose dismissal of his Labor Law § 241 (6) claim based on each of these regulations except 12 NYCRR 23-1.7 (e) (1) and limits his claim to defendants' violation of section 23-1.7 (e) (1). Therefore the court considers all the other claimed violations{**74 Misc 3d at 362} abandoned and grants both Consolidated Edison and EGK Realty summary judgment dismissing plaintiff's claim under Labor Law § 241 (6) to the extent that the claim is based on any regulation other than 12 NYCRR 23-1.7 (e) (1). (Norris v Innovative Health Sys., Inc., 184 AD3d 471, 471 [1st Dept 2020]; Leveron v Prana Growth Fund I L.P., 181 AD3d 449, 450-451 [1st Dept 2020]; Henry v Carr, 161 AD3d 424, 425 [1st Dept 2018]; Ng v NYU Langone Med. Ctr., 157 AD3d 549, 550 [1st Dept 2018].)

A. Covered Activities under Labor Law § 241 (6)

Plaintiff's assigned tasks, as explained above, included the construction of gas meters and excavations along the road, both of which are specified activities under Labor Law § 241. Therefore plaintiff's work was covered by Labor Law § 241 (6).

B. Sharp Projections under 12 NYCRR 23-1.7 (e) (1)

Consolidated Edison nonetheless contends that 12 NYCRR 23-1.7 (e) (1) does not apply to plaintiff's injury because it did not result from a tripping hazard. Section 23-1.7 provides:

"(e) Tripping and other hazards.

"(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered."

Contrary to Consolidated Edison's contention, neither the title nor the plain meaning of 12 NYCRR 23-1.7 (e) (1) requires a tripping hazard to implicate liability under Labor Law § 241 (6). (Kerins v Vassar Coll., 293 AD2d 514, 515 [2d Dept 2002].) While section 23-1.7 (e) (1)'s first sentence identifies tripping hazards as one type of hazard, the second sentence separately addresses "sharp projections." Section 23-1.7 (e)'s title likewise distinguishes tripping hazards "and other hazards." The hazards encompassed in section 23-1.7 (e) (1) are independent of each other. No canon of statutory or regulatory construction supports Consolidated Edison's interpretation of the regulation. Nor does Consolidated Edison cite any authority that limits section 23-1.7 (e) (1) to tripping hazards or that prohibits the [*9]plywood board from being considered a projection under the regulation.

Consolidated Edison further contends, however, that the board was not a projection because it was a permanent part of the premises that Kolndreu installed by screwing it into the{**74 Misc 3d at 363} vertical sides of the stairwell's wooden doorjambs. Kolndreu's very testimony demonstrates that the board was not integrated into the stairwell so as to render the board's removal impossible or even difficult. In fact, before plaintiff's injury, Kolndreu removed two of three similar plywood boards that covered the doorway into the stairwell and then removed the remaining board after plaintiff's injury.

Finally, Consolidated Edison contends that the edges of the projecting board were blunt, not sharp, based on the opinion of Consolidated Edison's engineer, Martin Bruno, after inspecting the premises and finding the board's condition the same as depicted in photographs authenticated as depicting the board's condition August 6, 2015. In contrast, however, plaintiff's engineer Silberman, after his inspection of the premises and a similar comparative review of the authenticated photographs, concludes that the board's edges were sharp. Plaintiff also attests that the board's edges lacerated his neck. Even defendants' inadmissible medical evidence indicates that plaintiff complained of neck pain, numbness, and tingling from striking the board, consistent with having struck a sharp projection. (See Kaufman v Capital One Bank [USA] N.A., 188 AD3d 461, 462 [1st Dept 2020].)

[2] Although the court may not consider the engineers' opinions on the applicable law or whether it was violated (Morris v Pavarini Constr., 9 NY3d 47, 51 [2007]; Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 7 [2005]; Lopez v Chan, 102 AD3d 625, 626 [1st Dept 2013]; McCoy v Metropolitan Transp. Auth., 53 AD3d 457, 459 [1st Dept 2008]), their conflicting opinions raise a factual issue whether defendants violated the regulation by allowing plaintiff to use a stairway with a sharp projection. (Feiner & Lavy, P.C. v Zohar, 195 AD3d 411, 413 [1st Dept 2021]; Shatsky v Highpoint Assoc. V, LLC, 170 AD3d 497, 498 [1st Dept 2019]; Gyamfi v Citywide Mobile Response Corp., 146 AD3d 612, 612 [1st Dept 2017]; Hernandez v 21 Realty Co., 113 AD3d 503, 503 [1st Dept 2014].) Therefore the court denies both plaintiff and Consolidated Edison, as well as EGK Realty, summary judgment on plaintiff's Labor Law § 241 (6) claim.

For the reasons explained above, the court grants the motion by defendant Consolidated Edison Company of New York, Inc., for summary judgment dismissing plaintiff's Labor Law § 240{**74 Misc 3d at 364}(1) claim and his Labor Law § 241 (6) claim, except based on violation of 12 NYCRR 23-1.7 (e) (1), and grants defendant EGK Realty, LLC, summary judgment dismissing the same claims. (CPLR 3212 [b], [e].) The court also grants plaintiff summary judgment on EGK Realty's liability for negligence and violation of Labor Law § 200. The court otherwise denies the parties' motions. (CPLR 3212 [b].)