Plaintiff filed a motion, dated April 17, 2025, seeking summary judgment pursuant to CPLR 3212 against all defendants on the issue of liability pursuant to Labor Law §§ 240 (1) and 241 (6), dismissing the affirmative defenses raised in the defendants/third-party plaintiffs' answer alleging plaintiff's culpable conduct (second affirmative defense), assumption of risk (fifth and ninth), recalcitrance as a worker (tenth); that plaintiff's conduct was the sole proximate cause of his injuries (eleventh); and setting the matter down for an immediate assessment of damages (Motion Seq. No. 4).

Defendants/third-party plaintiffs filed a motion, dated April 29, 2025, seeking summary judgment pursuant to CPLR 3212 dismissing the plaintiff's entire complaint, including all common law negligence claims with prejudice, and granting a default judgment pursuant to CPLR3215 against third-party defendant, Allegro Homes LLC ("Allegro"), for failure to appear, or in the alternative, setting the third-party action down for an inquest (Motion Seq. No. 5).

The following documents filed to the New York State Court Electronic Filing System [*2](NYSCEF) were read and considered by the Court:

Plaintiff's notice of motion, affirmations, memorandum of law and exhibits (NYSCEF Doc. Nos. 100-126) 1

Defendants/third-party plaintiffs' affirmation in opposition to plaintiff's motion, memorandum of law (NYSCEF Doc. Nos. 158-159) 2

Plaintiff's affirmation in reply and memorandum of law and exhibits (NYSCEF Doc. Nos. 160-165) 3

Defendants/third-party plaintiffs' notice of motion, affirmation, memorandum of law and exhibits (NYSCEF Doc. Nos. 127-147) 4

Plaintiff's affirmation in opposition to defendants/third-party plaintiffs' motion and exhibits (NYSCEF Doc. Nos. 148-157) 5

The instant action arises from an accident at a construction site that occurred on February 3, 2022. On said date, plaintiff, Silvanei Araujo De Oliveira, was erecting a base perimeter wall during the construction of an approximately 13,000 square foot self-storage facility located at 54 Nardozzi Place in New Rochelle, New York, when he fell from an aluminum extension ladder from a distance of over six feet from the ground (NYSCEF Doc. No. 1). Plaintiff, who was employed as a carpenter's helper for third-party defendant, Allegro, was using an aluminum extension ladder propped up against a wall to carry bundles of rebar from the ground up to a platform. Plaintiff testified at his deposition that the subject ladder was not secured in any manner, nor was it tied to anything, and no one was holding the ladder at the time of the accident. Plaintiff made four trips up and down the ladder before the accident occurred. Plaintiff had deposited a bundle of rebar and was descending the ladder at the time of his fall. It had rained earlier that day, and it was drizzling at the time of the accident (NYSCEF Doc. Nos. 115 &116).

Defendant/third-party plaintiff New Rochelle, LLC (hereinafter "TAC") is the owner of the premises where the accident occurred. Defendant/third-party plaintiff Montar Group, LLC (hereinafter "Montar") is an agent of the owner, who entered into a contract with defendant/third- party plaintiff VCC General Contracting and Construction Management, LLC (hereinafter "VCC") to be the general contractor for the subject construction project (NYSCEF Doc. Nos. 137, 140 & 141).^[FN1]

Defendants/Third-Party plaintiffs filed a summons and complaint against Allegro on May 18, 2023 (NYSCEF Doc. No. 53). Allegro did not file an answer or seek an extension of time to submit an answer. Defendants/third party plaintiffs filed a motion for a default judgment against Allegro, pursuant to CPLR 3215 (NYSCEF Doc. No. 66). That motion was denied, and the third- party complaint was dismissed by Decision and Order of this Court, dated September 19, 2024 (NYSCEF Doc. No. 79). By Amended Decision and Order, dated October 4, 2024, the third-[*3]party complaint was restored, and defendants/third party plaintiffs were directed to re-serve the third- party summons and complaint by January 6, 2025, and to upload proof of service by January 8, 2025 (NYSCEF Doc. No. 80). Defendants/third-party plaintiffs filed proof of service of the third- party summons and complaint on October 17, 2024 (NYSCEF Doc. Nos. 83-88).

A Note of Issue was filed on February 28, 2025 (NYSCEF Doc. No. 95). The two instant motions seeking summary judgment ensued.

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The party opposing the motion must then come forward with sufficient evidence in admissible form to raise a triable issue of fact (Zuckerman, supra). If the proponent fails to make out its prima facie case for summary judgment, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Ayotte v Gervasio, 81 NY2d 1062 [1993]).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore, it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue of fact (see Rotuba Extruders v Ceppos, 46 NY2d 223 [1977]). The court's function on these motions is limited to "issue finding," not "issue determination" (see Sillman v Twentieth Century Fox Film, 3 NY2d 395 [1957]).

1. Plaintiff's motion for summary judgment under Labor Law § 240 (1) (Motion Seq. No. 4)

Labor Law § 240 (1) provides, in relevant part:

All contractors and owners and their agents . . . who contract for but do not direct or control the work, 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, block, 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 legislative purpose of the statute is to protect workers by placing the ultimate and absolute responsibility for safety practices on the owner and general contractor and is to be construed as liberally as possible to accomplish that purpose. The duty is nondelegable, and a violation imposes strict liability upon owners and general contractors irrespective of whether they exercised supervision or control over the work or without regard for the negligence, if any, of the injured worker so long as the breach was the proximate cause of the injury." (Buckley v Radovich, 211 AD2d 652, 654 [2d Dept 1995].)

"Although '[a] fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240 (1)', liability will be imposed when the evidence shows 'that the subject ladder was . . . inadequately secured and that . . . the failure to secure the ladder was a substantial factor in causing the plaintiff's injuries' " (James DeSerio v City of New York, 171 AD3d 867, 868 [2d Dept 2019] citing Baugh v New York City Sch. Constr. Auth., 140 AD3d 1104, 1105, quoting Melchor v Singh, 90 AD3d 866, 868; see Canas v Harbour at Blue Point Home Owners Assn., Inc., 99 AD3d 962).

Here, the Court finds that plaintiff made a prima facie showing that Labor Law § 240 (1) was violated and that this violation was the proximate cause of his accident. In that regard, the testimony adduced at the depositions of the parties is undisputed and demonstrates that plaintiff fell from an extension ladder after it shifted or moved causing him to sustain personal injuries. The ladder was not secured, no spotter was holding it while plaintiff used it, and defendants failed to supply safety devices or fall protection for the use of the ladder by plaintiff. The plaintiff's deposition testimony further revealed that it had rained earlier that day and that it was drizzling at the time of the accident.

Defendants/third-party plaintiffs argue that summary judgment in the plaintiff's favor should be denied because there is a question of fact regarding the plaintiff's culpability and that the plaintiff was a "recalcitrant worker." However, the record is devoid of any evidence that plaintiff was a "recalcitrant worker" by failing to utilize safety equipment available to him. Instead, the plaintiff's deposition testimony revealed that there was no safety equipment available to the workers at the job site. Thus, there was no safety equipment that the plaintiff failed to use. Additionally, the deposition testimony of defendants' witnesses did not contradict plaintiff's testimony that the ladder was unsecured and that a spotter was not used.

Defendants/third-party plaintiffs' reliance on Molyneaux v City of New York, 28 AD3d 438 (2d Dept 2006), lv denied 7 NY3d 705 (2006), is misplaced. In that case, the plaintiff fell off a scaffold while inspecting new windows. In granting summary judgments to the defendants, the Appellate Division, Second Department, ruled that Supreme Court had properly concluded that plaintiff's injuries were beyond the reach of Labor Law § 240 (1). The Appellate Division premised its ruling on the fact that the scaffold and its ladder neither collapsed nor malfunctioned, and the substance that caused the slipping of the ladder was unknown and was not observed prior to or at the time of the accident therein, prompting a finding that this was "tantamount to a slipping 'without more' scenario" (id. at 439). Those facts are distinguishable from the case at bar. Here, there is no allegation that an unobserved substance caused the accident. The plaintiff's deposition testimony revealed that the ladder was placed on dirt, that it rained earlier that day, and that it was drizzling at the time of the accident. As importantly, there are other substantial contributing causes of the shifting of the ladder in this case that were not present in Molyneaux, including the failure to have a spotter or to secure the ladder that caused the accident.

Finally, defendants/third-party plaintiffs posit that there is a question of fact as to how the accident occurred because the plaintiff changed his testimony during the deposition regarding the direction that the ladder shifted or moved. However, the precise direction that the ladder shifted or moved does not raise a material issue of fact precluding an award of summary judgment to plaintiff where, as here, the proximate cause of his accident has been established (see Doto v Astoria Energy II, et al, 129 AD3d 660 [2d Dept 2015]).

Accordingly, the Court finds that plaintiff has made a prima facie showing of entitlement to summary judgment against defendants/third-party plaintiffs under Labor Law § 240 (1). Thus, this portion of the plaintiff's motion is GRANTED.

2. Plaintiff's motion for summary judgment under Labor Law § 241 (6) (Motion Seq. No. 4)

Labor Law § 241 (6) imposes a nondelegable duty of reasonable care upon an owner or general contractor to provide reasonable and adequate protection to workers (see Rizzuto v L.A. Wenger Construction Co., 91 NY2d 343, 348 [1998]). A violation of a specific and applicable [*4]provision of the Industrial Code must be alleged (see Grabowski v Board of Managers of Avonova Condominium, 147 AD3d 913 [2d Dept 2017]).

In his bill of particulars, plaintiff alleges over ten (10) Industrial Code violations. However, in plaintiff's motion for summary judgment, plaintiff makes his argument in favor of summary judgment based on only two Industrial Code violations, Industrial Code §§ 1.21 (b) (3) (iv) and 1.21 (b) (4) (ii).

Industrial Code § 23-1.21 (b) (3) (iv) reads in pertinent part:

(b) General requirements for ladders.

. . .

(3) Maintenance and replacement. All ladders shall be maintained in good condition. A ladder shall not be used if any of the following conditions exist:

. . .

(iv) If it has any flaw or defect of material that may cause ladder failure.

Plaintiff argues that since the ladder was unsecured, positioned on wet dirt, and moved while he was descending the ladder, causing his fall, this is evidence that the ladder had a material flaw and failed, thus entitling him to summary judgment. Plaintiff relies upon the holding in Melchor v Singh, supra. However, Melchor is distinguishable from the case at bar. In Melchor, there was ample testimony from the plaintiff that the ladder he used had significant and obvious defects, such as the feet of the ladder were old and "weren't any good" (id. at 868). In the case at bar, plaintiff testified that the only thing wrong with his ladder was that it "moved." He did not testify as to any visible flaws to the ladder or the rungs on it. Therefore, plaintiff's argument that the subject ladder had a material flaw is conclusory and unsupported by his own testimony.

Significantly, plaintiff failed to provide an expert affidavit attesting to any material defects to the subject ladder that could have contributed to his accident. As such, the Court finds that Industrial Code § 23-1.21 (b) (3) (iv) is inapplicable. Accordingly, plaintiff's motion for summary judgment based on a violation of Industrial Code § 23-1.21 (b) (3) (iv) is DENIED.

Plaintiff further argues that he is entitled to summary judgment under Labor Law § 241 (6) based on a violation of Industrial Code § 23-1.21 (b) (4) (ii), which reads, in pertinent part:

(b) General requirements for ladders.

. . .

(4) Installation and use.

. . .

(ii) All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings.

Plaintiff argues that since the ladder was on a slippery surface because the ground was wet due to rainfall earlier in the day and the drizzle at the time of the accident, he is entitled to summary judgment under this section of the Industrial Code. In opposition, defendants/third-party plaintiffs contend that summary judgment is unwarranted due to plaintiff's conflicting deposition testimony. While defendants/third-party plaintiffs strenuously argue that there is no corroborating proof that the subject ladder was unsecured, their own witnesses' testimony failed to contradict plaintiff's testimony regarding how the accident occurred. In this vein, the mere fact that a plaintiff is the sole witness to his accident does not preclude summary judgment (see Klien [*5]v City of New York, 89 NY2d 833 [1996]).

Furthermore, defendants/third-party plaintiffs' argument that "it is well settled that comparative fault is a defense to Labor Law § 241 (6)" is misplaced. In Rodriguez v City of New York, 31 NY3d 312 (2018), the Court of Appeals explicitly held that a plaintiff is not required to prove the absence of comparative negligence to prevail on a motion for summary judgment. The Rodriguez Court reasoned that:

"Placing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the plain language of CPL 1412 because it flips the burden, requiring the plaintiff, instead of the defendant, to prove an absence of comparative fault in order to make out a prima facie case on the issue of defendant's liability." (id. at 318.)

In the case at bar, the undisputed facts are that the plaintiff fell off an unsecured extension ladder which moved causing the plaintiff to fall and sustain personal injuries. The deposition testimony further established that it had rained earlier in the day and that it was drizzling at the time of the accident. It is undisputed that the ladder moved or shifted with these conditions present. Thus, the Court finds that the undisputed facts evidence a violation of the Industrial Code requirement that ladder footings shall be firm. Accordingly, summary judgment under Labor Law § 241 (6) based on a violation of Industrial Code § 23-1.21 (b) (4) (ii) is GRANTED.

Defendants further argue that since the plaintiff only moved for summary judgment on two of the alleged Industrial Code violations, he has abandoned all claims pertaining to those other remaining sections of the Industrial Code. As such, defendants argue that the Court should dismiss the causes of action as they relate to the remaining sections. The Court addresses this argument and the other arguments made by defendants/third-party plaintiffs in their motion seeking summary judgment against the plaintiff in section 5, infra.

3. Plaintiff's motion seeking to dismiss defendants' affirmative defenses (Motion Seq. No. 4)

Plaintiff seeks dismissal of the affirmative defenses asserted in defendants/third-party plaintiffs' answer alleging plaintiff's culpable conduct (second affirmative defense), assumption of risk (fifth and ninth), recalcitrance as a worker (tenth); and that plaintiff's conduct was the sole proximate cause of his injuries (eleventh). Plaintiff argues that even though plaintiff need not establish his freedom from comparative negligence to establish his entitlement to summary judgment on liability, dismissal of the affirmative defenses is warranted. In that regard, plaintiff cites several Second Department cases supporting that proposition (see Sapienza v Harrison, 191 AD3d 1028 [2d Dept 2021] [reversing order of Kings County Supreme Court denying plaintiff's motion for summary judgment on issue of liability and dismissal of defendant's affirmative defenses alleging comparative negligence and liability on plaintiff's part]; Ng v West, 195 AD3d 1006, 1008 [2d Dept 2021] [affirming the order of Queens County Supreme Court granting summary judgment on the issue of liability to plaintiff and dismissal of defendant's affirmative defenses alleging plaintiff's culpable conduct]; Higashi v M&R, 176 AD3d 788, 789 [2d Dept 2019] [reversing the order of Westchester County Supreme Court denying plaintiff's motion for summary judgment on the issue of liability and dismissal of defendant's affirmative defenses alleging comparative negligence and liability on plaintiff's part]. These decisions are all post- [*6]Rodriguez decisions, whereby a plaintiff is not required to demonstrate freedom from comparative fault. (See Rodriguez v City of New York, 31 NY3d 312 [2018].) Significantly, these cases support the plaintiff's argument that the granting of summary judgment on the issue of liability also allows for the dismissal of any affirmative defenses which allege a plaintiff's culpable conduct.

Defendants/third-party plaintiffs oppose this request and argue that comparative negligence is a valid defense to a cause of action alleging a violation of Labor Law §§ 240 (1) and 241 (6). Defendants/third-party plaintiffs rely upon Rizzuto v Wenger Contr. Co., 91 NY2d 343 (1998) and Lorefice v Reckson Operating P'ship, L.P., 269 AD2d 572 (2000) to support their position.

In Rizzuto, the Court of Appeals reversed the granting of defendant's motion for summary judgment on Labor Law §§ 200 (1) and 246 (1), finding that the lower courts erred in concluding that the general contractor did not have actual or constructive notice of the alleged dangerous condition which "may have caused the accident" (id. at 348). This ruling does not apply to affirmative defenses but, rather, to whether there were questions of fact as to the negligence of each of the parties, including all defendants and the plaintiff himself. Therefore, the Court found that since questions of fact still existed as to each party's liability, summary judgment was not warranted.

In Lorefice, the Appellate Division, Second Department, reversed the granting of defendant's motion for summary judgment and dismissal of the plaintiff's complaint based on Labor Law §§ 200 and 246 (1). Specifically, the Court held that the lower court erred in granting the defendant's summary judgment motion based on an assumption of risk doctrine (id. at 573). The Court found that while the plaintiff established entitlement to summary judgment on the issue of liability under Labor Law § 246 (1) and the pleaded Industrial Code violation, there was still a question of fact as to whether the plaintiff was negligent in failing to use an insulated mat which was available on the premises. Here, despite defendants/third-party plaintiffs' arguments to the contrary, there is no deposition testimony or evidence that safety equipment and/or spotters were available at the work site to secure the ladder.

Therefore, this Court finds that pursuant to the Rodriguez decision and its progeny, the plaintiff's motion seeking dismissal of the second, fifth, ninth, and eleventh affirmative defenses related to plaintiff's alleged culpable conduct and assumption of risk is hereby GRANTED. With respect to plaintiff's motion as seeks to dismiss the tenth affirmative defense alleging that plaintiff was a recalcitrant worker, the motion is also GRANTED, as the record is devoid of any testimony or evidence supporting this affirmative defense.

4. Defendant's motion for summary judgment under Labor Law § 240 (1) (Motion Seq. No. 5)

Defendants/third-party plaintiffs argue that they are entitled to summary judgment because they made a prima facie showing that there were no defects with the subject ladder used at the time of the accident, that the plaintiff fell because "he lost his balance", and that plaintiff's culpable conduct was the proximate cause of his accident (Motion Seq. No. 5). Defendants/third-party plaintiffs specifically request that the Court grant summary judgment dismissing plaintiff's entire complaint, including all Labor Law and common law negligence claims, pursuant to CPLR 3212, with prejudice.

Plaintiff opposes the motion and argues that dismissal of his Labor Law claims should be denied because defendants/third-party plaintiffs have failed to satisfy their evidentiary burden of [*7]eliminating materials issues of fact for trial, and thus the burden has not shifted to plaintiff to submit evidentiary facts or material raising a triable issue of fact.

Addressing the defendants/third-party plaintiffs' argument related to Labor Law § 240 (1) first, since the Court has already found that the plaintiff made a prima facie showing of entitlement to summary judgment under Labor Law § 240 (1), and the defendant/third-party plaintiff failed to raise any material questions of fact, this portion of the motion is DENIED, for the reasons set forth in point 1, supra.

5. Defendant's motion for summary judgment under Labor Law § 241 (6) (Motion Seq. No. 5)

Defendants/third-party plaintiffs argue that they are entitled to summary judgment under Labor Law § 241 (6) because: a) the various Industrial Code violations alleged by plaintiff do not apply to the case at bar, b) plaintiff testified at his deposition that there were no defects to the ladder he was using at the time of the accident, c) plaintiff was unaware of anyone making any complaints regarding defects to the ladder, d) plaintiff used the ladder several times prior to the accident without any issues, and e) plaintiff's claim that the ladder was unsecured was "conclusory" (Motion Seq. No. 5). Specifically, defendants/third-party plaintiffs contend that the following sections of the Industrial Code are inapplicable to plaintiff's Labor Law § 241 (6) claim: 12 NYCRR §§ 23-1.5 (a) and (c); 23-1.7 (f); 23-1.11 (a) - (c); 23-1.16; 23-1.21 (b) (1); 23-1.21(b) (3) (i) - (iv); 23-1.21(b) (4) (i) - (iv); 23-1.21(b) (5) (i) - (ii); 23-1.2 l (c); 23-1.21 (d); and 23-1.30.

Plaintiff's opposition papers do not address defendants/third-party plaintiffs' arguments regarding the inapplicability of the aforenoted sections of the Industrial Code, except that plaintiff premised his motion for summary judgment under Labor Law 241 (6) solely on Industrial Code §§ 23- 1.21 (b) (3) (iv) and 23-1.21 (b) (4) (ii) and relies on the same arguments in opposition (Motion Seq. No. 4).

Inasmuch as the Court denied so much of plaintiff's motion for summary judgment under Labor Law § 241 (6) based on Industrial Code § 23-1.21 (b) (3) (iv), and found it to be inapplicable, and granted plaintiff's motion plaintiff for summary judgment under Labor Law § 241 (6) based on Industrial Code § 23-1.21 (b) (4) (ii), defendant/third party plaintiffs' motion for summary judgment based on 12 NYCRR §§ 23-1.5 (a) and (c); 23-1.7 (f); 23-1.11 (a) - (c); 23-1.16; 23-1.21 (b) (1); 23-1.21(b) (3) (i) - (iv); 23-1.21(b) (4) (i) and (iii) - (iv); 23-1.21(b) (5) (i) -(ii); 23-1.2 l (c); 23-1.21 (d); and 23-1.30 is GRANTED, and DENIED as to Industrial Code § 23-1.21 (b) (4) (ii).

6. Defendant's motion for summary judgment under Labor Law § 200 (Motion Seq. No. 5)

Labor Law § 200 codifies the common law duty to provide employees a safe place to work (see Bradley v Morgan Stanley & Co., Inc., 21 AD3d 866, 868, [2d Dept 2005]; and Ross v Curtis— Palmer Hydro—Elec. Co., 81 NY2d 494, 505 [1993]). This duty applies to owners, contractors and their agents (see Everitt v Nozkowski, 285 AD2d 422, 423 [2d Dept 2001]).

For a plaintiff to prevail on a Labor Law § 200 claim, the plaintiff must establish one of two categories: that a dangerous condition existed at the work site created by the owner, contractor or their agents, or that they had notice of the actual condition (see Everitt, at 422; Rojas v Schwartz, 74 AD3d 1046 [2d Dept 2010]).

Defendants/third-party plaintiffs argue that they are entitled to summary judgment under Labor Law § 200 because "the documentary and testimonial evidence clearly establishes that: i) [*8]the Defendants/Third-Party Plaintiffs did not direct, supervise or control the means and methods of Plaintiff's work; and ii) the Defendants/Third-Party Plaintiffs did not cause, create or have actual or constructive notice of any ladder condition that led to Plaintiff's accident" (NYSCEF Doc. No. 129).

Plaintiff opposes the motion and argues that "dismissal of plaintiff's Labor Law § 200 and common law negligence claims against VCC is inappropriate because there are triable issues of fact as to whether VCC had supervisory authority and control over Plaintiff's work but nonetheless failed to provide him with a safe place to work" (NYSCEF Doc. No. 149).

Here, the deposition testimony established that the third-party defendant Allego provided the subject ladder used by plaintiff at the time of his accident. However, the Court finds that there are questions of fact as to whether defendants/third-party plaintiffs had knowledge of the dangerous condition, i.e., an unsecured extension ladder being used by plaintiff on slippery ground and the lack of a spotter, and the extent to which they could have directed corrective measures.

Accordingly, since defendants/third-party plaintiffs failed to make out a prima facie entitlement to summary judgment under Labor Law § 200, this portion of the motion is DENIED.

7. Defendant's motion for a default judgment against third-party defendant, Allegro (Motion Seq. No. 5)

Defendants/third-party plaintiffs seek a default judgment against Allegro for a failure to file an answer the complaint, pursuant to CPLR 3215. "On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default in answering or appearing" (Knudsen v Green Machine Landscaping, Inc., 223 AD3d 792, 792-793 (2d Dept 2024).

A previous motion, seeking the same relief, was denied by this Court for failure to provide sufficient proof of service of the third-party complaint. The Court directed the defendants/third- party plaintiffs to serve the third-party complaint by January 6, 2025, and provide proof of said service to NYSCEF by January 8, 2025 (NYSCEF Doc. No. 80).

Defendants/third-party plaintiffs effectuated service upon the registered agent of Allegro, Albert Chwedczuk, in Pensacola, Florida on October 8, 2024. Proof of service was uploaded to NYSCEF on October 17, 2024 (NYSCEF Doc. Nos. 83-85). Third-party defendant has not filed an answer, nor have they sought permission from the Court seeking additional time to file an answer. Pursuant to CPLR 320, the twenty days by which a defendant must make an appearance, file an answer, and/or seek additional time to file an answer has lapsed.

Defendants/third-party plaintiffs' have made a prima facie showing of entitlement to a default judgment against Allegro. Therefore, defendants/third-party plaintiffs' motion for a default judgment against Allegro, pursuant to CPLR 3215, is GRANTED, and an inquest shall be conducted following the trial of the main action.

All other arguments raised on these motions and evidence submitted by the parties in connection thereto have been considered by this court notwithstanding the specific absence of reference thereto.

Accordingly, it is hereby

ORDERED, that the plaintiffs' motion seeking summary judgment against the [*9]defendants/third-party plaintiffs under Labor Law § 240 (1) is GRANTED (Motion Seq. No. 4); and it is further

ORDERED, that the plaintiffs' motion seeking summary judgment against defendants/third- party plaintiffs under Labor Law § 241 (6) as it pertains to Industrial Code § 23-1.21 (b) (3) (iv) is DENIED, and that the plaintiffs' motion seeking summary judgment against the defendants/third- party plaintiffs on Labor Law § 241 (6) as it pertains to Industrial Codes § 23-1.21 (b) (4) (ii) is GRANTED (Motion Seq. No. 4); and it is further

ORDERED that the plaintiff's motion seeking to dismiss the defendants/third-party plaintiffs' second, fifth, ninth, tenth and eleventh affirmative defenses is GRANTED (Motion Seq. No. 4); and it is further

ORDERED, that the defendants/third party plaintiffs' motion seeking summary judgment against plaintiff under Labor Law § 240 (1) is DENIED (Motion Seq. No. 5); and it is further

ORDERED, that defendants/third party plaintiffs' motion seeking summary judgment against plaintiff under Labor Law § 246 (1) based on 12 NYCRR §§ 23-1.5 (a) and (c); 23-1.7 (f); 23-1.11 (a) - (c); 23-1.16; 23-1.21 (b) (1); 23-1.21(b) (3) (i) - (iv); 23-1.21(b) (4) (i) and (iii) - (iv); 23- 1.21(b) (5) (i) - (ii); 23-1.2 l (c); 23-1.21 (d); and 23-1.30 is GRANTED, and DENIED as to Industrial Code § 23-1.21 (b) (4) (ii) (Motion Seq. No. 5); and it is further

ORDERED that the defendants/third-party plaintiffs' motion seeking summary judgment against plaintiff under Labor Law § 200 is DENIED (Motion Seq. No. 5); and it is further

ORDERED, that defendants/third-party plaintiffs' motion for a default judgment against third- party defendant Allegro is GRANTED, and an inquest shall be held after the trial of the main action.

The foregoing constitutes the Decision and Order of this Court.