Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion

Upon the foregoing papers, plaintiff's motion for summary judgment (Seq. 002) and defendants' cross-motion for summary judgment (Seq. 003) are decided as follows:

Plaintiff commenced this action to recover for damages he claims to have sustained when he slipped and fell at a construction site on December 20, 2019. The new school construction ("the site") was located at 2052 Linden Boulevard, Brooklyn, NY. The New York City School Construction Authority (NYCSCA) owned the premises and Turner Construction Company (Turner) was retained as the general contractor. Turner sub-contracted the HVAC and plumbing work to non-party WDF Inc. (WDF). WDF employed the plaintiff.

Plaintiff testified as follows: Plaintiff was a steamfitter engaged in the installation of [*2]sprinklers and a heating system at the site (Iglesia EBT at 28). The cutouts for the windows had been completed but the windows had not yet been installed and the second floor was open to the elements (id. at 34). The weather was cold with snow (Iglesia 50-h transcript at 12). Plaintiff was working on a "manlift," or scissor lift, installing pipes close to the ceiling (Iglesia EBT at 37). After exiting the lift and while walking to the gang box to get additional supplies, plaintiff slipped and fell on black ice (id. at 43). Plaintiff testified that he observed ice in his working area on the morning of his accident and claims that he reported the condition to his foreman, Derrick, but contends that no remedial measures were taken (id. at 48, 52—53). There are a series of text messages in the record which do indicate that plaintiff asked his foreman to "take care of the area," which include photographs of the area, although the plaintiff does not specifically mention ice in these messages.

On a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that there are no triable issues of material fact (Giuffrida v Citibank, 100 NY2d 72, 81 [2003]). Once a prima facie showing has been established, the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). As an initial matter, plaintiff does not oppose defendants' motion with respect to his Labor Law § 240 (1) claim; that claim is therefore deemed abandoned (see Medina v 1277 Holdings, LLC, 234 AD3d 839, 843 [2025]).

Labor Law § 241 (6)

To prevail on a cause of action pursuant to Labor Law § 241 (6), plaintiff must show that he was (1) on a job site, (2) engaged in qualifying work, and (3) suffered an injury, (4) the proximate cause of which was a violation of an Industrial Code provision (Moscati v Consolidated Edison Co. of NY, Inc., 168 AD3d 717, 718 [2d Dept 2019]). Plaintiff alleges that defendants violated 12 NYCRR 23-1.7 (d). Plaintiff does not oppose defendants' motion with respect to the other Industrial Code violations in his pleadings; all other alleged Industrial Code provisions are therefore deemed abandoned.

Rule 1.7 (d) reads: "Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." Plaintiff testified that the area he was working was exposed to the elements, that there was ice on the floor that was not remediated, and that the ice was a proximate cause of the plaintiff's accident. Plaintiff's testimony is sufficient to make out his prima facie entitlement to summary judgment.

In opposition to plaintiff's motion and in support of their own motion, defendants argue that there are issues of fact as to whether defendants had notice of the icy condition. In support of his argument, defendants cite Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343 (1998), apparently relying on the Court's language that "a jury could . . . have rationally concluded that someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard" (id. at 351) and extrapolating a requirement of "notice" that someone in the chain of construction was negligent. However, the opening lines of Rizzuto's analysis reject this assertion: "We conclude that the Appellate Division erred in dismissing the Labor Law § 241 (6) cause of action based on its determination that such a claim is defeated by the absence of notice, [*3]to the general contractor, of the hazardous condition causing the injury" (id. at 348). Additionally, this precise argument has been rejected by the Second Department (Reynoso v Bovis Lend Lease LMB, Inc., 125 AD3d 740 [2d Dept 2015]). Finally, defendants' contention that the plaintiff did not specifically text his foreman about an icy condition is insufficient to rebut plaintiff's direct testimony that ice was a proximate cause of his accident. Defendants do not argue that the icy condition may have been integral to the plaintiff's work.

Therefore, plaintiff's motion is granted with respect to his Labor Law § 241 (6) claim. Notably, defendants do not raise an argument that the plaintiff responsible for his accident. Therefore, defendants have waived the argument that there remains a triable issue of fact concerning plaintiff's comparative fault (see Medina, 234 AD3d at 843).

Labor Law § 200

The defendants move with respect to plaintiff's Labor Law § 200 claim; the plaintiff does not. Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work" (Pacheco v Smith, 128 AD3d 926, 926 [2d Dept 2015]). Thus, claims for negligence and for violations of Labor Law § 200 are evaluated using the same negligence analysis (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]). "Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" (id.). Because questions of negligence are ordinarily fact-specific, they do not usually warrant summary judgment (see Ugarriza v Schmieder, 46 NY2d 471 [1979]).

Defendants contend that they did not have actual notice of the dangerous condition and that plaintiff has not demonstrated the condition persisted for a sufficient amount of time to give defendants' constructive notice. However, plaintiff included copies of text messages with photos in his papers that provided notice of a premises condition at the site. Defendants' witnesses do not rebut the plaintiff's evidence and do not provide a counter-narrative concerning the condition of the premises.^[FN1] In the absence of affirmative evidence, defendants have failed to make out their prima facie entitlement to summary judgment, and their motion must be denied.

Plaintiff's motion for summary judgment (Seq. 002) is granted.

Defendants' cross-motion for summary judgment (Seq. 003) is granted to the extent of dismissing plaintiff's Labor Law § 240 (1) claim and his Labor Law § 241 (6) claim as predicated on all alleged Industrial Code violations except Rule 1.7 (d); the motion is otherwise denied.

This constitutes the decision and order of the court.