The following e-filed documents, listed by NYSCEF under motion sequence 1 and 2 as: 28-6, were read on the motion filed under sequence 1 by Plaintiff for an order: pursuant to CPLR 3212 granting summary judgment with respect to liability in Plaintiff's favor and against Defendant pursuant to Labor Law 240(1) and 241(6); and dismissing Defendant's affirmative defenses of comparative negligence and/or culpable conduct; and on the motion filed under sequence 2 by Defendant for an order pursuant to CPLR 3212 granting summary judgment on the issue of liability dismissing all claims against Defendant.

Upon the foregoing papers, it is ordered that the motion filed by Plaintiff under sequence 1 and filed by Defendant under sequence 2 are consolidated for disposition and determined as follows:

According to the Amended Complaint, on October 10, 2020, Plaintiff was injured while working at a construction site at the premises located at 64-78 82nd Place, Middle Village, New York (hereinafter "the premises") when he fell more than twenty feet from the roof.

In the motion filed under sequence 1, Plaintiff moves for summary judgment on the issue of liability against Defendant pursuant to CPLR 240(1), as well as 241(6) for violating Industrial Code 23-1.24(b). Plaintiff also moves to dismiss Defendant's affirmative defenses of comparative negligence and/or culpable conduct. Plaintiff claims that he was working for non-party Sheridan Restoration (hereinafter "Sheridan") at the premises when he was injured. Plaintiff further claims that Defendant was the general contractor for the construction work being performed at the premises, and that Defendant subcontracted with Sheridan to perform roofing work at the premises. Plaintiff submitted, among other things, the following: Plaintiff's deposition transcript; Alejandro Martin's (hereinafter :Martin") deposition transcript; an affidavit from Ismael Guarneros (hereinafter "Guarneros", along with a translator's affidavit annexed thereto; deed; and an invoice from Extech Building Materials (hereinafter "Extech").

Plaintiff testified as follows: on October 10, 2020, Plaintiff was employed by Sheridan, and was working at the premises performing roofing work. Sheridan worked for Defendant, who gave projects to Sheridan. When Plaintiff arrived at the premises on October 10, 2020 at 7:30 am, there were five Sheridan employees on site, including Guarneros. When Guarneros arrived, he called Armand Rodriguez (hereinafter "Rodriguez"), the owner of Sheridan. Rodriguez told Guarneros that it was Defendant's project, and that Sheridan's employees should check the roof to see what work was needed on the roof. After inspecting the roof, Guarneros told Rodriguez that the roof was damaged and had to be removed. Rodriguez told Guarneros to not start any work until Martin (Defendant's employee) contacted Guarneros. When Martin called Guarneros, Martin told Guarneros not to perform any work at the premises until a supervisor from Defendant arrived at the site. Defendant's supervisor, Rafael Sanchez (hereinafter "Sanchez") came to the site and was there for two or three hours. Sanchez went up to the roof to check on what work had to be performed, but did not perform any work there. Sanchez talked to the owner of the premises and told the owner the work that needed to be performed at the premises. Based upon Martin's orders, Sanchez instructed Sheridan's workers on the scope of the work and repairs that the roof required. Plaintiff saw an invoice which showed that the roofing materials for the construction project at the site were provided by Defendant. The incident occurred at approximately 3:00 or 4:00 P.M., when Plaintiff and Guarneros were on the edge of the roof, using a rope to raise a metal hatch, weighing more than 70 pounds, up from the ground floor of the premises, approximately 23 - 25 feet below. Plaintiff had one end of the rope and Guarneros, about two feet away from Plaintiff, had the other end of the rope. When the hatch had passed the second floor, and was almost all the way up, Guarneros screamed that he lost the rope. Guarneros' rope came loose and detached from the hatch. When Guarneros' rope detached, the hatch started to swing back and forth, almost falling. Plaintiff tried to hold the weight by himself for about two minutes, holding the rope with both hands, while Guarneros laid down on the roof and tried to reach the hatch. Rodriguez, who was below the hatch on the ground floor, tried to move the ladder that went from the ground floor to the terrace and when he did, the hatch came loose and fell down, suddenly and unexpectedly pulling Plaintiff down with it. Plaintiff fell onto the three-foot tall black metal railing on the ground floor.

In his affidavit, Guarneros stated: on October 10, 2020, he was employed by Sheridan and worked with Plaintiff at the premises. The general contractor for the construction project at [*2]the premises was Defendant. Defendant subcontracted the job to Sheridan to perform roofing work. Defendant had employees at the site working on the roof, including Sanchez. During the course of the roof construction at the premises, Guarneros would call Martin, Defendant's foreman, regarding details concerning the roof work at the site whereupon Martin provided Guarneros instructions and direction concerning the roof work.

Martin testified as follows: Martin has been employed as a project manager by Defendant for the last fifteen years. Defendant's business involves building restoration for commercial buildings in New York City. Defendant did not contract for, nor did Defendant perform any work at the subject premises on the date of the accident or prior to the accident. Defendant did not directly supply any tools or equipment for the roof work, nor did it provide any labor for the project. Rather, in the Summer of 2020, Robert Lichtenberger (hereinafter "Lichtenberger"), the owner of the premises, contacted Martin to get a quote for roof repairs to Lichtenberger's home. Martin advised Lichtenberger that Defendant does not perform residential work and recommended Rodriguez, the owner of Sheridan, for the job. Martin was familiar with Rodriguez because Defendant had previously used a company named Samantha Construction, owned by Rodriguez, as a subcontractor for other commercial projects. Rodriguez also worked for Defendant a number of years ago before Rodriguez started his own companies. Sheridan was never retained by Defendant. After Sheridan accepted the Lichtenberger job, Rodriguez asked Martin if Rodriguez could use Defendant's account to purchase certain materials for Sheridan's work at the premises. Rodriguez provided Martin with a list of materials that Sheridan needed for the project, and Martin purchased these materials on behalf of Sheridan which were delivered to the premises by Extech. Martin did this "[t]o help [Rodriguez] out". Defendant back-charged the cost of this order to Rodriguez on an unrelated project. On the date of the accident, Guarneros, a Sheridan employee, called Martin asking ". . . a couple of questions, technical questions, on how to do stuff and [Martin] gave [Guarneros] advice". Martin did not give Guarneros any instructions or directions on how to perform the roof work, rather Martin only provided his opinion to Guarneros. Martin never went to the premises at any time prior to and including the date of the accident. Sanchez, Defendant's supervisor, went to the premises once to provide Rodriguez ". . . help deciding what to do. Like [Rodriguez] needed [Sanchez's] opinion about some things". Sanchez did not provide any directions or instructions to any of Sheridan's workers on how to perform the roof work.

In opposition, Defendant argues that the affidavit Plaintiff submitted from Guarneros is inadmissible because it failed to comply with CPLR 2101(b). Defendant also argues that it is not subject to any provisions of the Labor Law since it was neither an owner, general contractor, nor an agent for the work performed at the premises, because Defendant did not have authority to control the activity bringing about the Plaintiff's injury to enable Defendant to avoid or correct any alleged unsafe condition. Even if the Court finds that Defendant provided consulting services to Sheridan, Defendant argues that any advice its employees provided is insufficient to impose liability under the Labor Law because Defendant did not have the authority to supervise, direct or control the work.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once this showing has been made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see Alvarez v Prospect [*3]Hosp., supra; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Under CPLR 3211 (b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." Therefore, a plaintiff moving to dismiss a defense, pursuant to CPLR 3211 (b), has the prima facie burden of establishing that affirmative defense(s) is(are) without merit as a matter of law (see Lewis v US Bank N. A., 186 AD3d 694, 697 [2d Dept 2020]; Edwards v Walsh, 169 AD3d 865, 870 [2d Dept 2019]; Mazzei v Kyriacou, 98 AD3d 1088, 1089 [2d Dept 2012]). '"In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference'" (Mazzei, 98 AD3d at 1089, quoting Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2d Dept 2008]).

"Labor Law §§ 200, 240, and 241 apply to owners, general contractors, or their 'agents' (Labor Law § 200 [1], § 240 [1]; § 241). A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has the 'ability to control the activity which brought about the injury' " (Guclu v Eighth Ave. Condominium, LLC, 81 AD3d 592 [2d Dept. 2011]). "A defendant that is not an owner, general contractor, or agent pursuant to the Labor Law with regard to a plaintiff's work may nonetheless be held liable to the plaintiff under a theory of common-law negligence 'where the work' the defendant 'performed created the condition that caused the plaintiff's injury' " (Delaluz v Walsh, 228 AD3d 619 [2d Dept. 2024]).

Initially, the Court finds, contrary to Defendant's claims, that Guarneros' affidavit, along with the translator's affidavit annexed thereto, is admissible pursuant to CPLR 2101(b). Next, the Court finds that Plaintiff failed to establish his prima facie entitlement to summary judgment on his Labor Law 240(1) and 241(6) claims. Plaintiff's submissions failed to resolve all issues of fact concerning whether Defendant was the general contractor for the construction performed at the premises and is subject to liability under Labor Law 240(1) and 241(6). Accordingly, the branch of Plaintiff's motion seeking summary judgment against Defendant on Plaintiff's Labor Law 240(1) and 241(6) claims is denied. The Court grants the branch of Plaintiff's motion seeking to dismiss Defendant's affirmative defense asserting Plaintiff was contributory and/or contributorily negligent pursuant to Labor Law 240(1) because contributory negligence on the part of a worker is not a defense to a Labor Law 240 (1) cause of action (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280 [2003]). Accordingly, the branch of Plaintiff's motion seeking to dismiss Defendant's affirmative defense asserting Plaintiff was contributory and/or contributorily negligent pursuant to Labor Law 240(1) is granted. The Court does find that Plaintiff established his prima facie entitlement to dismissal of Defendant's affirmative defense asserting that Plaintiff was comparatively and/or contributorily negligent pursuant to Labor Law 241(6) by violating Industrial Code 23-1.24, and that Defendant failed to raise any triable issues of fact. Accordingly, the branch of Plaintiff's motion seeking to dismiss Defendant's affirmative defense asserting Plaintiff was contributory and/or contributorily negligent pursuant to Labor Law 241(6) is denied.

In the motion filed under sequence 2, Defendant moves to dismiss Plaintiff's Complaint, arguing that it is not subject to liability pursuant to Labor Law 200, 240(1) and 241(6). Defendant submits that it is entitled to dismissal for the same reasons it asserted in opposition to Plaintiff's motion. Defendant submits, among other things, the following: Plaintiff's deposition [*4]transcript; Martin's deposition transcript; as an affirmation from Sanchez, and an affidavit from Lichtenberger along with an invoice from Sheridan annexed thereto.

Sanchez stated that: Rodriguez, Sheridan's owner, contacted Sanchez for advice about the subject roof. Sanchez went to the premises two to three times for a total of one to two hours, including on the date of the subject accident, to provide advice about the roof. Sanchez was not at the premises at the time of Plaintiff's accident. Sanchez was never at the premises in his capacity as an employee of Defendant, nor did he ever assist and/or consult with Rodriguez or Sheridan in Sanchez's capacity as an employee of Defendant at the premises. Sanchez was only at the premises "as a friend" to Rodriguez to give Rodriguez advice about the roof. Sanchez did not direct, control or supervise any of the work at the premises, nor did Sanchez give any instructions as to the means and methods of the work. Defendant was not contracted or retained to perform any work at the premises.

Lichtenberger stated that: prior to and on the date of the accident he was the owner of the subject residential premises. In or around October of 2020, Lichtenberger retained Sheridan to furnish and install a new roof on his home. Sheridan provided Lichtenberger an invoice for roof work at the premises that involved furnishing and installing a roof hatch, and installing "new ply of roof on main roof work area". Sheridan was solely responsible for this work. Sheridan began the roof work on October 10, 2020 and completed the work by November of 2020. At no time did Lichtenberger retain Defendant to perform any roof work on his home, nor was Defendant involved in any the work Sheridan performed at the premises..

In opposition, Plaintiff argues, among other things, that Defendant is subject to liability pursuant to Labor Law 200, 240(1) and 241(6).

The Court finds that Defendant failed to establish its prima facie entitlement to summary judgment dismissing Plaintiff's Labor Law 200, 240(1) and 241(6) claims because Defendant's submissions failed to eliminate all issues of fact concerning whether Defendant was a general contractor for the construction at the premises and subject to the Labor Law. Accordingly, Defendant's motion is denied.