Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of Artem Kamyshin and Julie Lyubimova (hereinafter plaintiffs), filed on October 30, 2023, under motion sequence number three, for an order granting them partial summary judgment on liability on the Labor Law § 240 (1) claim of Artem Kamyshin (hereinafter injured plaintiff):

Exhibits A-J

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendants, Pizzarotti, LLC, RXR Realty, LLC, individually and d/b/a Rex Corp Ritz Carlton North Hill, RXR North Hills Phase II Owner LLC, individually and d/b/a Res Corp Ritz Carlton North Hill, RXR Corp Ritz Carlton North Hill, and Rexcorp Ritz Carlton North Hill filed on October 31, 2023, under motion sequence four, for an order pursuant to CPLR 3212 granting summary judgment to defendants dismissing plaintiffs' complaint.

Exhibits A—J

The verified complaint, bill of particulars and deposition transcripts allege the following salient facts. On May 6, 2019, the date of the accident, the injured plaintiff was employed by [*2]non-party Maccarone Plumbing Inc., as a union plumber. The injured plaintiff was working at a job site known as North Hills/Ritz Carlton, located at 3000-6000 Royal Court, North Hills, New York (hereinafter the premises). The construction manager on the site was Pizzarotti, LLC.^[FN1]

On the date of the accident, the injured plaintiff was attempting to lift a 38-gallon, 150-pound water heater off the ground to position it into a platform pan approximately five feet above the ground — without the use of any safety devices — while plaintiff's coworker was positioned on a ladder and attempting to pull the water heater into position. The water heater began to fall, rolled down onto the side of the plaintiff, leaving it to plaintiff to stabilize the water heater with his arms alone and causing plaintiff to suffer the resulting injuries. Plaintiff was not instructed to use any safety devices, specifically a hoist or pulley, to perform the subject work.

The verified complaint asserts causes of action alleging that the defendants are vicariously responsible for violations of Labor Law §§ 240 (1), 241 (6), and 200 as well as a cause of action for common-law negligence. The pleadings further state that the defendants are owners of the subject premises, contractors hired by the owners, and/or agents of owners or contractors, as those terms are defined in the Labor Law and interpreted by New York courts. The injured plaintiff also claims that, at all relevant times, he was engaged in work within the scope of the Labor Law. Therefore, he claims that the defendants are subject to vicarious liability, without regard to fault, pursuant to the Labor Law. The injured plaintiff also contends that the defendants breached their common-law duty to maintain a safe workplace and that these Labor Law violations and breaches of the common-law duty of care proximately caused his injuries.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material issues of fact (Giuffrida v Citibank, 100 NY2d 72, 81 [2003]). "[A] moving party must address the specific factual allegations set forth in the complaint and the bill of particulars" (Parrilla v. Saphire, 149 AD3d 856, 857 [2d Dept 2017], citing Terranova v Finklea, 45 AD3d 572, 572 [2d Dept 2007]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

Pursuant to CPLR 3212 (b), a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit" (CPLR 3212 [b]). Furthermore, all of the evidence "must be viewed in the light most favorable" to the [*3]opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 610 [2d Dept 1990]).

"Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute" (Soto v J. Crew Inc., 21 NY3d 562, 566 [2013], citing Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). "To recover, the plaintiff must have been engaged in a covered activity — the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure — and must have suffered an injury as the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Soto v J. Crew Inc., 21 NY3d 562, 566 [2013] [internal citations and quotation marks omitted]).

"To impose liability pursuant to Labor Law § 240 (1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries" (Corchado v 5030 Broadway Props., LLC, 103 AD3d 768, 768 [2d Dept 2013], quoting Nunez v City of New York, 100 AD3d 724, 724 [2d Dept 2012]). "Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240 (1)" (Canosa v Holy Name of Mary Roman Catholic Church, 83 AD3d 635, 637 [2d Dept 2011], quoting Treu v Cappelletti, 71 AD3d 994, 997 [2d Dept 2010]). This statute "is to be construed as liberally as may be" to protect workers for injury (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-521 [1985], quoting Quigley v Thatcher, 207 NY 66, 68 [1912]; see also Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. 18 NY3d 1, 7 [2011] ["a defendant's failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability"]).

"One of the hazards contemplated by the statute is the risk that a worker will be injured by an object falling from a height" (Isaac v Atlantic Yards B2 Owner, LLC, 65 Misc 3d 1229[a], 2019 NY Slip Op 51914[U], *7 [Kings County Ct 2019], citing Thompson v Ludovico, 246 AD2d 642, 642-643 [2d Dept 1998], and citing White v Dorose Holding, 216 AD2d 290, 290-291 [2d Dept 1995], and citing Rocovich, 78 NY2d at 514). "To recover in a 'falling object' case, a plaintiff must show that at the time the object fell, it was either was being 'hoisted or secured' or 'required securing for the purposes of the undertaking'" (Isaac, 2019 NY Slip Op 51914[U], *7, citing Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662-663 [2014]. The plaintiff must also demonstrate that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]).

The injured plaintiff has demonstrated that Pizzarotti, LLC, as construction manager for the aforementioned construction project, is subject to the protections of Labor Law § 240 (1) as a contractor and statutory agent as it had "the ability to control the activity which brought about the injury" (Ramirez v Pace Univ., 230 AD3d 811, 812 [2d Dept 2024], quoting Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]).

The injured plaintiff has also demonstrated prima facie entitlement to judgment as a matter of law for liability under Labor Law § 240 (1) with respect to the defendant Pizzarotti, [*4]LLC. Although Labor Law § 240 (1) "does not automatically apply simply because an object fell and injured a worker" (Gurewitz v City of New York, 175 AD3d 658, 662 [2d Dept 2019], quoting Fabrizi, L.L.C., 22 NY3d at 663), plaintiff herein has shown that the subject water heater — which weighed approximately 150 pounds — was a load that required securing for the work performed. Moreover, the plaintiff has shown that the absence of a safety device — specifically, a pulley or hoist — would have prevented the accident (see Gurewitz, 175 AD3d at 662).

The accident occurred while plaintiff lifted the 150-pound water heater from the ground and attempted to position it onto a platform pan approximately five feet off of the ground — without the use of any devices — while plaintiff's coworker was positioned on a ladder and attempted to pull the water heater into position. The water heater began to fall and rolled down onto the side of the plaintiff, leaving it to plaintiff to stabilize the water heater with his arms alone and injuring plaintiff's left arm. A hoist or pulley would have, at least, prevented the water heater from falling, thereby not requiring plaintiff to stabilize it. Since this is what caused plaintiff to injure his arm, the absence of a hoist or pulley constitutes a violation of Labor Law § 240 (1), which proximately caused his injuries.

This accident was, as the Court of Appeals stated in Runner, "the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential" (Runner v New York Stock Exchange, Inc., 13 NY3d 599, 605 [2009]). The court rejects the defendants' contention that plaintiff was not subjected to a significant or extraordinary elevation-related risk.

The burden now shifts to the general contractor, Pizzarotti, LLC, to come forward with sufficient evidence to raise a triable issue of fact (see Ernest v Pleasantville Union Free School Dist., 28 AD3d 419, 419 [2d Dept 2006]). Pizzarotti, LLC asserts that even if the water heater required securing, plaintiff was the sole proximate cause of his accident. In order for Pizzarotti, LLC to defeat plaintiff's motion on the basis that plaintiff was the sole proximate cause, it must raise a triable 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]). Pizzarotti, LLC fails to submit any evidence which raises an issue of fact as to whether plaintiff was the sole proximate cause of the accident. Accordingly, Pizzarotti, LLC has failed to raise a triable issue of fact.

Plaintiff alleges that RXR Realty, LLC, individually and d/b/a Rex Corp Ritz Carlton North Hill, RXR Corp Ritz Carlton North Hill, and Rexcorp Ritz Carlton North Hill are liable under Labor Law § 240 (1) as the owners of the premises and seeks summary judgment against them. However, they provide no admissible evidence in the form of an affidavit or deposition from someone with personal knowledge as to the ownership of the premises. Nor was this fact admitted in the parties' pleadings. The plaintiff has failed to meet his burden establishing that RXR Realty, LLC, individually and d/b/a Rex Corp Ritz Carlton North Hill, RXR Corp Ritz Carlton North Hill, and Rexcorp Ritz Carlton North Hill are statutory defendants under Labor Law § 240 (1) as owners. Accordingly, the motion for summary judgment is denied, regardless of the sufficiency of defendants' opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 [*5]NY2d 851, 853 [1985]).

Plaintiffs confirmed at oral argument that they have withdrawn their Labor Law § 241 (6) claims as to all parties. Therefore, it is not necessary for this Court to address the merits of the moving parties' claims.

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.). "[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 54, 61 [2d Dept 2010]). "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]). Accordingly, in order to be held liable for an injury, the defendant must have had the authority to supervise or control the performance of the work.

Defendants fail to present evidence that they did not have the authority to supervise or control the performance of the injured plaintiff's work. As such, the defendants failed to make a prima facie showing that they are entitled to summary judgment and dismissal of plaintiff's claims premised upon common law negligence and violations of Labor Law§ 200.

The branch of the motion by plaintiffs Artem Kamyshin and Julie Lyubimova for summary judgment in their favor on the issue of liability on the Labor Law § 240 (1) claim is granted as against defendant Pizzarotti, LLC only and is denied as to the remaining defendants.

The branch of the motion by plaintiffs Artem Kamyshin and Julie Lyubimova sounding in Labor Law § 241 (6) is withdrawn.

The branch of the motion by plaintiffs Artem Kamyshin and Julie Lyubimova for partial summary judgment in their favor on the issue of liability on the Labor Law § 200 claim is denied.

The motion by defendants Pizzarotti, LLC, RXR Realty, LLC, individually and d/b/a Rex Corp Ritz Carlton North Hill, RXR Corp Ritz Carlton North Hill, and Rexcorp Ritz Carlton North Hill's joint motion for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing the plaintiffs' complaint is denied in its entirety.

The foregoing constitutes the decision and order of the Court.