Recitation as Required by CPLR §2219(a): The following papers were read on this Motion and Cross Motion for Summary Judgment (Seq. 003):

Upon the foregoing cited papers, the Decision/Order of this Court is as follows:

Plaintiff, JUAN SANCHEZ ("plaintiff" or "Sanchez"), moves for partial summary judgment pursuant to CPLR § 3212 on the issue of liability in connection with plaintiff's claims under Labor Law §240(1) only. Defendants, BOP GREENPOINT D, LLC ("BOP") and NEW LINE STRUCTURE & DEVELOPMENT, LLC ("New Line") (collectively, "defendants") cross-move for summary judgment dismissing plaintiff's claims under Labor Law 240(1) only^[FN1] .

Plaintiff commenced this action by filing a summons and complaint on or about June 11, 2021 (Plaintiff's Ex. 1). Issue was joined when defendants interposed an answer on or about September 14, 2021 (Plaintiff's Ex. 2). A third-party complaint was filed by defendants against Third-Party Defendant, THUNDER F&E CONSTRUCTION CORP. ("Thunder") on or about December 21, 2021 (NYSCEF Doc. Nos. 13-17). Defendants moved for a default judgment against Thunder via Notice of Motion (Mot. Seq. 001) on or about June 20, 2022. Said motion for default judgment was denied without prejudice to refile via decision and order dated October 31, 2022 (Suarez, J.) (NYSCEF Doc. No. 27). A review of the court file reveals that no third-party answer was ever filed by Thunder and defendant never made subsequent motion for default judgment against Thunder. The parties engaged in discovery until a Note of Issue was filed on July 11, 2024 (NYSCEF Doc. No. 49). Plaintiff made the instant motion on September 9, 2024 and defendants cross-motion was made on December 6, 2024.

This Court's part rules provide that parties must submit a statement of material facts in accordance with 22 NYCRR §202.8-g. Subsection (a) of that statute provides the Court with authority to direct a short and concise statement of material facts to which the moving party contends there is no genuine issue to be tried. §202.8-g(b) provides that opposing papers shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate short and concise statement of material facts as to which it is contended that there are issues of facts to be tried. §202.8-(c) provides that each numbered paragraph in the statement of material facts required to be served by the moving party may be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the [*2]statement required to be served by the opposing party. However, the Court may allow any such admission to be amended or withdrawn on such items as may be just. Subsection (e) provides:

"In the event the proponent of a motion for summary judgment fails to provide a statement of undisputed facts though required to do so, the court may order compliance and adjourn the motion, may deny the motion without prejudice to renewal upon compliance, or may take such other action as may be just and appropriate. In the event that the opponent of a motion for summary judgment fails to provide any counter statement of undisputed facts though required to do so, the court may order compliance and adjourn the motion, may, after notice to the opponent and opportunity to cure, deem the assertions contained in the proponent's statement to be admitted for purposes of the motion, or may take such other action as may be just and appropriate."

In support of the motion, plaintiff submits, inter alia, a statement of material facts that plaintiff contends are not at issue (NYSCEF Doc. No. 63). In opposition to the motion and in support of the cross-motion, defendants submit a statement of material facts they contend are not at issue (NYSCEF Doc. No. 70). Defendants statement is not set forth as numbered paragraphs that correspond with plaintiff's initial statement. Plaintiff submitted a response to Defendants' statement that confirms with the directives of 22 NYCRR § 202.8-g(b) (NYSCEF Doc. No. 76).

After reviewing the deposition transcripts submitted in support of the motion and cross-motion, the following comprises the material facts salient to the instant applications.

Plaintiff's accident took place on May 27, 2021 at 1:30 p.m. at the premises known as 15 Eagle Street, Brooklyn, New York ("the premises") (plaintiff's Ex. 4 at pp. 37). At the time of the incident, the premises was owned by BOP (plaintiff's ex. 5, pg. 10) and a construction project was underway involving the construction of a multi-story residential tower (plaintiff's ex. 5, pp. 11-13) ("the project"). New Line was the construction manager of the project at the time of plaintiff's accident (plaintiff's ex. 5, pp. 12-13). An individual named, "Delfino^[FN2] " was the sole person who directed plaintiff on what work plaintiff was to complete on the project. Delfino directed plaintiff to do framing and sheetrock at the premises during the project (plaintiff's ex. 4 at p. 23, lns 2-6). Plaintiff testified that Delfino would direct him on when to wear a harness and that, "[i]t had to be a very specific and dangerous job for [Delfino] to instruct [plaintiff] to use a harness (id. at pp 27-28). Plaintiff testified that he attended a safety orientation program when he first started working on the project, and that during that orientation, the topic of wearing harnesses while working on ladders was not discussed (id. at pp 28 — 29). Plaintiff further testified that, "Delfino was the one who decided when you would wear a harness" and that plaintiff, "did not make that decision" (id. at p. 29). Plaintiff further testified that Delfino gave instructions, and that Delfino directed plaintiff that if a harness was not necessary, then plaintiff should not waste time looking for a harness (id. at pp. 30-31). When asked at the deposition whether plaintiff was able to get a harness whenever plaintiff needed one, plaintiff responded that plaintiff would, "have to request it" and that if Delfino, "considered that the harness was necessary, we could ask for it" (id. at p 31). Plaintiff testified that he never requested a harness when he was using a ladder (id. at p. 31). Plaintiff also testified that while there were yo-yo [*3]systems used in other areas of the premise during the project, there was no yo-yo system in the area plaintiff was instructed to work (id. at p. 34). Plaintiff also testified that Delfino would decide where to place a tie off for harnesses, because to install a tie-off, a hole would need to be made in the concrete (id.) On May 27, 2021, after lunch, plaintiff was directed by Delfino to close a wall and for that project plaintiff worked with Elder Alexander (id. at pp. 38-39). When plaintiff appeared to complete that task on the sixth floor, a ladder was already there (id. at p. 40). Delfino instructed plaintiff to close that wall and plaintiff testified that Delfino wanted to finish that particular job that day (id.at p. 42). Plaintiff testified that that he did not request a harness from Delfino at this time, because, "if [Delfino] didn't say that the harness was required, we shouldn't be bothering him requesting things that he didn't think [sic]"^[FN3] (id. at p. 42). Plaintiff testified that as he was screwing in a sheet, the ladder moved and plaintiff fell (id.) At the time of the fall, plaintiff was on a six-foot ladder on the last step and not on top of the ladder (id. at pp. 45, 46-47). Plaintiff testified that the ladder moved three to five inches while plaintiff was screwing in a sheet, and that the leg of the ladder went into a gap (id. at p. 47-48). Plaintiff testified that when the ladder moved forward, plaintiff fell back, plaintiff's legs got stuck on the ladder, then plaintiff fell to the ground and hit his back first on the ground (id.at p. 49). Plaintiff felt pain immediately but worked slowly for about an hour to complete the task (id. at pp 57-59). Plaintiff reported his accident to Delfino (id. at p. 60). Plaintiff went to hospital after work that day with complaints of pain to his back, right ankle, and both knees (id. at p. 61). The morning after the accident, plaintiff told Delfino via text message that he had the accident, and that plaintiff was unable to get up (id. at pp. 63 - 64).

Ehad Hamdan ("Hamden"), the lead superintendent employed by New Line was deposed and testified that while New Line would have safety meetings with the foremen of the subcontractors hired (defendant's Ex B at pp. 17-18) New Line did not provide any equipment, ladders, or harnesses (id at pp. 18-19). Hamden had no knowledge of plaintiff's accident (id. at p. 24 - 26).

Jerome Harrigan ("Harrigan") was produced for a deposition and testified that he owned Deadwood Construction, a drywall interior company (defendant's ex. C at p. 6). Deadwood was hired by New Line (id at p. 7). Harrigan testified that Delfino worked for Deadwood and that Delfino would direct a few of the workers on what to do (id. at p. 10). Harrigan did not know about plaintiff's accident prior to the commencement of the instant lawsuit (id. at p. 11). Harrigan testified that he was at the project on a weekly basis to check progress (id at p. 12). In terms of protective equipment Harrigan testified that he "probably would have provided it" to Thunder workers (id. at p. 13). Harrigan testified that there were harnesses available for use during the project, that workers would be provided with harnesses if they asked, (id at p 13-14) and that items like ladders and harnesses would have been in Deadwood's shanty located on the first floor or in the basement (id. at p. 16-17). Harrigan testified he was not familiar with the sixth-floor location, but that if a Deadwood or Thunder employee needed a harness when working over a six-foot ladder they would absolutely be provided with one (id. at p. 17). [*4]However, Harrigan also testified that he did not know if Deadwood would require that workers be tied off with a harness when working on the fifth step of a six-foot ladder (id at p. 18).

The proponent of a motion for summary judgment must tender sufficient evidence in admissible form to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [NY 1986]; Winegrad v. New York University Medical Center, 64 NY2d 851 [NY 1985]). Once this showing has been made the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material facts which require a trial of the action (Zuckerman v. City of New York, 49 NY2d 557 [1980]). A mere conclusory assertion devoid of evidentiary facts, is insufficient to defeat a well-supported summary judgment motion as is reliance upon surmise, conjecture or speculation (Grullon v. City of New York, 297 AD2d 261 [1st Dep't. 2002]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non-moving party (Assaf v. Ropog Cab Corp., 153 AD2d 520 [1st Dept. 1989]). It is well settled that issue finding, not issue determination, is the key to summary judgment (Rose v. Da Ecib USA, 259 AD2d 258 [1st Dept. 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [NY 1957]).

Labor Law § 240(1) imposes a duty upon owners and contractors to furnish proper safety devices and protection during construction and related activities. The statute aims to protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility (Ross v. Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494, 500[1993]; see Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 520 [1985]). To achieve that goal, the statute "imposes absolute liability where the failure to provide proper protection is a proximate cause of a worker's injury" (Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662[2014]). It is well established that the duty imposed by Labor Law § 240(1) is nondelegable and that an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work (see, e.g., Haimes v. New York Tel. Co., 46 NY2d 132, 136—137 [1978]). Labor Law § 240(1) relates only to "special hazards" presenting "elevation-related risk[s]" (Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514 [1991]). Where an injury results from a separate hazard wholly unrelated to the risk, no liability exists (Nieves v. Five Boro Air Conditioning & Refrigeration Corp., 93 NY2d 914, 916 [1999]).

A plaintiff moving for partial summary judgment on the issue of liability under a §240(1) claim must establish that §240(1) was violated and that the violation was a proximate cause of plaintiff's injuries (Soriano v St. Mary's Indian Orthodox Church of Rockland, Inc., (118 AD3d 524, 526 [1st Dep't., 2014]). The plaintiff need not demonstrate that the safety device was defective or failed to comply with applicable safety regulations, but only that it "proved inadequate to shield plaintiff from harm directly flowing from the application of the force of gravity to an object or person" (Id.). It is well settled that, "the failure to secure a ladder to insure that it remains stable and erect while the plaintiff was working on it constitutes a violation of Labor Law § 240 (1) as a matter of law (Hill v City of New York, 140 AD3d 568, 569 [1st Dept 2016]); see also MacNair v Salamon, 199 AD2d 170, 171 [1st Dep't., 1993]). A plaintiff may [*5]establish that a ladder did not provide adequate protection by demonstrating that the device collapsed, slipped, tipped or otherwise failed to perform its function of supporting the workers (see Tuzzolino v. Consolidated Edison Co. of NY, 160 AD3d 568 [1st Dep't., 2018] [where plaintiff established liability under §240(1) through plaintiff's testimony that they were cased to fall when an unsecured ladder on which they were standing suddenly slipped out from under plaintiff]); see also Kebe v. Greenpoint-Goldman Corp., 150 AD3d 453 [1st Dep't., 2017] [where plaintiff established liability under §240(1) through testimony that the ladder plaintiff was using wobbled during its use]).

In instances where it is alleged that a ladder failed to provide proper protection, plaintiff's failure to use a harness amounts, at most, to comparative negligence, which is not a defense to a Labor Law §240(1) claim (Kehoe v. 61 Broadway Owner LLC, 186 AD3d 1143 [1st Dep't., 2020]). Where a defendant fails to submit evidence that a plaintiff knew that he was supposed to use a harness for climbing ladders or that he disregarded "specific instructions" to do so, the defendant fails to establish that the plaintiff was the sole proximate cause of the accident (Id.).

Further, a "recalcitrant worker" defense to a §240(1) claim requires a defendant to establish that the injured worker deliberately refused to use available and visible safety devices in place at the workstation (Harris v. Rodriguez, 281 AD2d.158 [1st Dep't., 2001]). Where there is no evidence submitted that the injured worker deliberately refused such a safety device, the recalcitrant work defense does not apply to shield against liability under a §240(1) claim (id.).

After review of the record before it, the Court finds that plaintiff makes a prima facie showing of entitlement to partial summary judgment on the issue of liability under the §240(1) claim.

Initially the Court notes that there is no contention that plaintiff is not included in the class of workers the statute aims to protect, nor is there any argument presented that the type of work plaintiff was performing at the time of the accident, is not work covered by the statute. Further, the Court finds that the plaintiff establishes that §240(1) was violated because "the failure to secure a ladder to insure that it remains stable and erect while the plaintiff was working on it constitutes a violation of Labor Law § 240 (1) as a matter of law (Hill v City of New York, 140 AD3d 568, 569 [1st Dept 2016]). Here, it is undisputed that the ladder upon which plaintiff was working suddenly moved and fell into a gap causing plaintiff to fall. Additionally, the court finds that said violation was a proximate cause of plaintiff's fall and resulting injuries claimed.

The court finds that defendants' opposition to the motion fails to raise any issue of fact. Defendants content that plaintiff's motion should be denied, or that the §240(1) claim should be dismissed because plaintiff own action (failing to wear a safety harness) was the sole proximate cause of the accident, and that plaintiff was a recalcitrant worker because plaintiff failed to wear a safety harness. The Court finds these arguments to be unpersuasive.

Initially, plaintiff's failure to use a harness amounts, at most, to comparative negligence, which is not a defense to a Labor Law §240(1) claim (Kehoe v. 61 Broadway Owner LLC, 186 AD3d 1143 [1st Dep't., 2020]). Therefore, defendants' sole proximate cause defense is without merit.

Regarding the recalcitrant worker defense, defendants would need to establish that plaintiff deliberately refused to use available and visible safety devices in place at the workstation (Harris v. Rodriguez, 281 AD2d.158 [1st Dep't., 2001]). Here, a review the record [*6]reveals that defendant fails to establish either of these two prongs. First, defendant fails to establish that plaintiff was ever specifically instructed to wear a harness when he was working on a ladder. Instead, plaintiff undisputed testimony establishes that during the safety orientation program, harnesses were not discussed. Further plaintiff repeatedly testified that Delfino would decide when harnesses were necessary, and instructed plaintiff not to ask for harnesses so as to avoid wasting time. Additionally, Harrigan testified that he was not familiar with the sixth-floor area where plaintiff's accident occurred, and further testified that the things like harnesses were kept in a shanty located in the basement or the first floor. Therefore, defendant has failed to present any evidence that plaintiff deliberately refused to use a harness that was available and visible on the sixth-floor workstation where plaintiff's accident occurred.

In light of the foregoing, plaintiff's motion is granted, and defendants cross-motion is denied. Thus, it is hereby:

ORDERED, that plaintiff is granted partial summary judgment on the issue of liability against defendants on plaintiff's claim under Labor Law §240(1); and is further,

ORDERED, that the clerk shall enter a partial judgment accordingly; and it is further:

ORDERED, that the parties shall appear for a pre-trial conference in part 21, room 405 at 9:30 a.m. on March 31, 2025, and it is further:

ORDERED, that plaintiff shall serve a copy of this order with notice of entry, upon defendants, within 30 days of the entry date hereof.

This constitutes the decision and order of the Court.