The following papers were read on this motion and cross-motion (motion seq. 003) for summary judgment noticed on August 27, 2024.

Defendants, TISHMAN CONSTRUCTION CORPORATION ("Tishman"), HUDSON YARDS TOWER NORTH TENANT LLC ("Hudson North"), HUDSON YARDS CONSTRUCTION LLC ("Hudson Yards") and METROPOLITAN TRANSPORTATION AUTHORITY ("MTA") (collectively referred to as "defendants"), move for summary judgment pursuant to CPLR §3212(b) dismissing plaintiff's complaint against defendants. Plaintiff partially opposes the motion as more fully set forth below, and further cross-moves for partial summary judgment on the issue of liability in connection with plaintiff's claims under Labor Law §§ 200 and 241(6).

Plaintiff's amended complaint sets forth causes of action sounding in negligence, and under Labor Law §200, §240(1) and §241(6). Initially, and for purposes of judicial economy, plaintiff's opposition to defendants' motion does not address defendants' contention that plaintiff's cause of action under Labor Law §240(1) should be dismissed. Likewise, plaintiff's opposition does not address defendants' argument that the causes of action asserted under Labor Law §241(6) predicated on alleged violations of New York State Industrial Code sections other than §§23-1.22(c)(1), 23-1.7(e)(1), and 23-1.7(e)(2) should be dismissed. Plaintiff's cross-motion also only seeks summary judgment on plaintiff's causes of action for common law negligence, and the claims asserted under Labor Law §200 and §241(6) premised on alleged violations of New York State Industrial Code §§ 23-1.22(c)(1), 23-1.7(e)(1), and 23-1.7 (e)(2). In failing to address those sections of defendants' motion for summary judgment, said causes of action are deemed abandoned (Cardenas v. One state St. LLC, 68 AD3d 436, 438 [1st Dep't., 2009]; Rodriguez v. Dormitory Auth. of the State of NY, 104 AD3d 529 [1st Dep't., 2013]). Therefore, plaintiff's causes of action asserted under Labor Law §240(1) and §241(6) predicated on alleged violations of Industrial Code sections other than §§ 23-1.22(c)(1), 23-1.7(e)(1), and 23-1.7(e)(2) are hereby dismissed as abandoned.

Additionally, while defendants correctly highlight that plaintiff's cross-motion was filed late, the Court finds no prejudice in considering this late filing as the arguments raised in support of the cross-motion are the same as the arguments raised in opposition to defendants' motion and defendant has had a full opportunity to oppose, and has opposed, plaintiff's cross-motion. Additionally, the Court notes that the parties herein stipulated to adjourn defendants' motion twice on consent prior to plaintiff's cross-motion and opposition to defendants' motion being filed. Therefore, the Court will consider and rule upon plaintiff's cross-motion.

In accordance with this Court's part rules, defendants submitted a statement of material facts in support the motion (NYSCEF doc. no. 55). Plaintiff submitted a counter statement of material facts with plaintiff's opposition to defendants' motion (NYSCEF doc. no. 59). Plaintiff also submitted a statement material facts in support of plaintiff's cross-motion (NYSCEF doc. no. 63) and defendants submitted a counter statement of material facts in opposition to plaintiff's cross-motion (NYSCEF doc. no. 78).

On November 28, 2017 (the date of the incident) plaintiff was employed by ADCO [*2]Electrical Corporation ("ADCO"),^[FN1] was working on a construction project at Hudson Yards - Tower A and had been working at the project for approximately three to four years by that point in time (ex. I to defendants' motion at pp. 50 and 53-54). Defendant, Hudson Yards, was named as the Executive Construction Manager, and Tishman was named as General Contractor at the project pursuant to the relevant Construction Agreement (ex. K to plaintiff's cross-motion). ADCO was hired to perform work at the project (ex. I to plaintiff's cross-motion at p. 37). Plaintiff worked as a "locker pup" for ADCO and plaintiff's duties and responsibilities included unloading deliveries and transporting the materials to the correct floors where work was being performed (ex. G to defendants' motion at p. 22 and pp. 47-48). Plaintiff reported to Phillip Simone ("Simone") and Vinny Silencione ("Silencione"), the two ADCO foremen at the site (ex. G to defendants' motion at pp. 18 and 26). Simone and Silencione provided plaintiff with direction and instructions as to what work plaintiff was required to do and plaintiff received no instructions from anyone else at the work site (ex. G to defendants' motion at pp. 18, 21-26). No one at the site specifically told plaintiff how to perform plaintiff's tasks. Instead, the means and methods were at plaintiff's discretion (ex. I to defendants' motion at pp. 65 add 73). However, if Richard Tiberi Jr. ("Tiberi") or Tiberi's supervisor, Anthony Fedor ("Fedor") observed any activities taking place at Tower A that were in violation of site safety guidelines, they had the authority to stop work being performed (ex. K to the motion at pp. 36). The owner also had the ability to stop work in violation of the safety guidelines (id. at p. 37). ADCO provided plaintiff with all the necessary tools and equipment to perform his work (ex. G to defendants' motion at p. 29 and ex. I to defendants' motion at p. 66). Plaintiff testified that he attended safety meetings held by ADCO and Tishman (ex. E to plaintiff's cross-motion at pp. 34 and 36).

On November 28, 2017, plaintiff was assigned to work at the loading dock of Tower A (ex. I to defendants' motion at p. 76). Plaintiff testified that there were instances where trucks would back up to the loading dock but would not be level with the loading dock, and that in those instances, sometimes, either a ramp or piece of wood or other materials would be used to make the surface between the truck and the loading dock flush (id. at pp. 81-83). On the date of the accident, plaintiff did not use any such material between the truck and the loading dock (id. at p. 98), the delivery truck had backed up flush against the loading dock (ex. E to plaintiff's cross-motion at p. 61). Plaintiff testified that he was using a pallet jack to retrieve materials (id.) and he tripped when he was pulling the pallet jack up behind him (id. at pp. 63-64). Plaintiff identified broken concrete and a piece of exposed rebar as the cause of his accident and indicated that he tripped over both (ex. G to defendants' motion at p. 64). When shown a photograph ^[FN2] of the area where the accident occurred, plaintiff testified that he had previously walked over that specific area maybe more than twenty times (id. at pp. 110-111), but that he never saw the piece of rebar prior to the incident (id. at p. 65). Plaintiff testified that photographs of the loading dock presented during his 50-h hearing were an accurate depiction of the condition of the dock since [*3]he started work at the project (id. at pp. 66-67). When asked if anyone had ever complained about the condition of the loading dock, plaintiff testified that he personally made verbal complaints about the loading dock numerous times to different people who wore white hats and who plaintiff surmised were foremen of the different companies that were on the job site (id. at 85). Plaintiff further testified that he made complaints to Tishman about the safety of the loading dock, including the broken concrete, rebar and dirt (ex. G to plaintiff's cross-motion at p. 114-115). However, plaintiff subsequently acknowledged that he did not specifically talk to anyone from Tishman, but rather that he reported the complaints to "our foreman" during the safety meetings and that "they present it to Tishman" (id. at 115). Tiberi testified that he never received any such complaints about the loading dock (ex. I to defendants' motion at p. 41).

Defendants assert several arguments in support of their motion. As stated above, plaintiff's causes of action asserted under Labor Law §240(1) and §241(6) predicated on alleged violations of Industrial Code sections other than §§ 23-1.22(c)(1), 23-1.7(e)(1), and 23-1.7(e)(2) have been dismissed as abandoned. Therefore, defendants' arguments relating to those abandoned and dismissed claims are not addressed by the Court.

First, defendants contend that plaintiff's claim under §241(6) premised on alleged violations of Industrial Code §23-1.22(c)(1) must fail because that section pertains to the material and integrity of the flooring of platforms. Defendants contend that this section does not apply here because the loading dock where plaintiff tripped should not be considered a "platform" for purposes of §23-1.22(c)(1). In opposition, plaintiff contends that §23-1.22(c)(1) does apply because the loading dock where plaintiff tripped constitutes a platform and further that the condition of the loading dock did not provide the safe footing required by §23-1.22(c)(1) because it did not have the required integrity and uniform thickness in violation of 23-1.22(c)(1).

Second, defendants posit that plaintiff's claim under §241(6) premised on alleged violations of Industrial Code §23-1.7(e)(1) must be dismissed because plaintiff's accident did not occur in a "passageway" and that the loading dock where the accident occurred should not be considered a "passageway" for purposes of that section. Defendants further contend that the §241(6) claims predicated on a violation of Industrial §23-1.7(e)(2) should be dismissed because that section regulates, "floors, platforms and other similar areas" and prohibits the accumulation thereon of, "dirt, debris, scattered tools or materials or sharp projection." Defendants argue that because plaintiff tripped on the edge of the loading dock, this section of the code is inapplicable. Plaintiff argues in opposition that §23-1.7(e)(1) is applicable because the area where the accident occurred was indeed a passageway and that §23-1.7(e)(2) applies because plaintiff's accident occurred within a "working area," which plaintiff's asserts is covered by the code.

Lastly, defendants argue that plaintiff's claims under labor law §200 and based upon common law negligence must be dismissed because according to defendants, there is no evidence that an unsafe condition existed, nor that an unsafe condition caused plaintiff's accident. Defendants also argue that if the location where plaintiff tripped is deemed to be unsafe, there is no evidence that said condition resulted from defendants' lack of reasonable care, or that defendants caused or created such condition. Defendants also assert that there is no evidence that defendants had constructive or actual notice of the alleged unsafe condition. Finally, defendants contend that plaintiff walked over the same area possibly 20 times before the accident, but failed to use an available metal plate to cover it up so as to avoid the alleged unsafe condition.

In opposition to defendants' §200 and common law arguments, plaintiff asserts that first, there is evidence of a dangerous tripping hazard, and that there is evidence that defendants had both actual and constructive notice of said condition. Plaintiff further contends that there is no evidence in the record to establish that any metal plate was actually made available for plaintiff to use to cover up the alleged unsafe condition.

The Court notes that the arguments in support of plaintiff's cross-motion seeking partial summary judgment on the Labor Law §241(6) claims - predicated on alleged violations of Industrial Code §§23-1.22(c)(1), and 23-1.7(e)(1) and (2) - and plaintiff's Labor Law §200 and common law negligence claims, are the same arguments submitted in opposition to defendants' motion seeking summary judgment dismissing those claims. Likewise, defendants' arguments in opposition to plaintiff's cross-motion are the same arguments submitted by defendants in support of their motion for summary judgment dismissing those claims. Therefore, for purposes of judicial economy, the Court will not re-summarize those arguments herein.

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]). 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 §241(6) provides in relevant part, as follows:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: (6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."

§23-1.22(c)(1), entitled "Structural Runways, Ramps and Platforms" provides, in [*4]relevant part, as follows:

(c) Platforms.

(1) Any platform used as a working area or used for the unloading of wheelbarrows, power buggies, hand carts or hand trucks shall be provided with a floor of planking at least two inches thick full size, exterior grade plywood at least three-quarters inch thick or metal of equivalent strength. Platforms used for motor trucks or heavier vehicles shall be provided with floors of planking at least three inches thick full size or metal of equivalent strength.

Plaintiff posits that the loading dock where the accident took place constitutes a "platform" because the same was used as a working area for the unloading of items from delivery trucks. In support of that argument plaintiff cites to two cases as follows: Cassidy v. Highrise Hoisting, 89 AD3d 510 (1st Dep't., 2011) and Marte v. Tishman Constr. Corp., 223 AD3d 527 (1st Dep't., 2024). Defendants contend that §23-1.22(c)(1), by its plain language, does not apply.

In Cassidy, the plaintiff was injured when he fell off a temporary loading dock at a construction site. The temporary loading dock consisted of a wooden platform measuring 20 feet by 40 feet and was raised 48 to 60 inches off of the ground (See Cassidy v. Highrise Hoisting, 89 AD3d 510 [1st Dep't., 2011]). In dismissing the §241(6) claim, the First Department opined that the temporary loading dock was an "elevated platform" governed by Industrial Code §23-1.22(c), as opposed to a scaffold, for purposes of §241(6) liability.

In Marte, the plaintiff was injured when he slipped between the openings of an exposed rebar mat, causing him to fall at least 18 inches to the plywood floor below. Under these facts, the First Department permitted plaintiff to amend their Bill of Particulars to add a claim for violation of Industrial Code § 23-1.22 (c)(1) and, in doing so, opined that, "[t]he platforms contemplated by that section are those used to transport vehicular and/or pedestrian traffic" (Marte v Tishman Constr. Corp., 223 AD3d 527, 528 [1st Dep't., 2024]) and that there was at least an issue of fact as to whether the rebar mat qualified.

In each of the cases cited by plaintiff in support of its contention, the plaintiffs therein faced an elevation-related hazard based on their position either standing on or walking on a surface that was alleged to be a platform. In Cassidy, the plaintiff was on a temporary wooden platform 48 to 60 inches off of the ground. In Marte, plaintiff was walking across an exposed rebar mat that was elevated at least 18 inches above the ground when he was injured. Here, plaintiff was standing on a flat concrete floor and faced no elevation differential based on his testimony that the truck backed all the way up flush to the loading dock. Moreover, while Cassidy involved a loading dock, said loading dock was not similar to the one at issue here in that it was a temporary structure and made of wood. Here, the loading dock is a permanent part of the building, with a floor consisting of concrete. The Court is likewise unpersuaded by plaintiff's argument that under Marte, there is an issue of fact as to whether the loading dock is a platform because it was used for pedestrian traffic. As set forth above, plaintiff fails to establish that there was an elevation related risk working on the loading dock and sets forth no other basis for the Court to deem it a platform. Essentially, plaintiff's interpretation would have this Court use the word "floor" interchangeably with platform. The Court finds that this interpretation of the caselaw cited by plaintiff, while creative, is too broad and not within the intended and limited confines of Industrial Code § 23-1.22 (c)(1).

Moreover, as highlighted by defendants, a plain reading of the section, which sets forth [*5]thickness requirements for the flooring of platforms, does not apply to the facts of this case. Accordingly, plaintiff's motion for summary judgment on its §241(6) cause of action premised on a violation of §23-1.22(c) is denied and defendants' cross-motion is granted.

Industrial Code § 23-1.7(e) (1) & (2) provide as follow:

"(e) Tripping and other hazards. (1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered. (2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."

Again, for purposes, of §23-1.7(e)(1), defendants contend that the loading dock should not be considered a "passageway" while plaintiff argues it should be. In support of defendants' position, they contend that the loading dock should be considered an "open area" and that the First Department has repeatedly dismissed §241(6)/ §23-1.7(e)(1) claims where the accident takes place in an open area. Defendants rely heavily on Quigley v. Port Auth., of NY & N.J., 168 AD3d 65, (1st Dept. 2018), where the Court held that, "[a]lthough the regulations do not define the term 'passageway' . . . , courts have interpreted the term to mean a defined walkway or pathway used to traverse between discrete areas as opposed to an open area." In Quigley, the plaintiff slipped on snow covered pipes located directly outside the entrance door of plaintiff's employer's work site shanty. The First Department held that because the accident in Quigley occurred entirely in an outside area, §23-1.7(e)(1) did not apply, and those claims were dismissed.

However, the Quigley Court also reminded us that there have been instances where doorways and the areas immediately adjacent to them have been found to constitute passageways, where the accidents occurred in the interior of the buildings (see McCullough v. One Bryant Park, 132 AD3d 491[1st Dep't., 2015] and Thomas v. Goldman Sachs Headquarters, LLC, 109 AD3d 421 [1st Dep't., 2013]).

Here, the plaintiff testified that he tripped on broken concrete and an exposed rebar when he was unloading items from a truck that had backed up flush against the loading dock. Defendants contend that the area where plaintiff tripped was at the edge of the flooring of the loading dock and use the photographs presented at plaintiff's deposition to support this claim.

In reviewing the record, the Court finds that there is an issue of fact as to whether the precise location and mechanism of plaintiff's trip occurred/was located within the loading dock, or on the outside edge of the loading dock. Consequently, an issue of fact is present as to whether the loading dock should not be deemed a passageway under Quigley or should be deemed a passageway under McCullough and Thomas. Defendants' reliance on Singh v Manhattan Ford Lincoln, Inc., 188 AD3d 506 (1st Dep't., 2020) is misplaced as it appears the accident in that case occurred on an exterior street near a dumpster where debris had accumulated. Likewise in Guido v. Dormitory Auth. of the State of NY, 145 AD3d 591 (1st Dep't., 2016) the plaintiff was injured in an outdoor area outside the gate to a loading dock. In Barrios v. Bos Props. LLC, 55 AD3d 339, 340 (1st Dept. 2008), the accident appears to have occurred on an exterior loading dock, and not within a somewhat interior loading dock. The rest of the cases defendants cite to support their connection that the loading dock here should not be considered a passageway seem to involve areas that lead from the within a premises to areas firmly outside of [*6]the premises. That is not the case here. Additionally, plaintiff's opposition and cross-motion likewise do not settle this issue of fact. Consequently, both the motion and the cross-motion seeking summary judgment on the §241(1)/§23-1.7(e)(1) cause of action are both denied.

Regarding the §241(6)/§23-1.7(e)(2) claim, the Court finds that this section does not apply to the facts of this case. The plain words of the statute protect workers from hazards resulting from, "accumulations of dirt and debris and from scattered tools and materials." Here, while plaintiff testified that he tripped over broken concrete, there is nothing in the record to suggest that there was an accumulation of broken concrete pieces, or an accumulation of pieces of rebar that would qualify as an accumulation of debris or materials for purposes of the statute. Nor do the photographs of the location depict such an accumulation. According, plaintiff fails to establish a violation of this section and §241(6)/ §23-1.7(e)(2) cause of action is dismissed.

Labor Law §200 codifies the common-law duty of an owner or employer to provide employees with a safe place to work and is not limited to the construction context (Jock v. Fien, 80 NY2d 965, 967 [1992]). In order to establish liability against an owner or general contractor pursuant to Labor Law § 200 and common law negligence, plaintiff must prove that they exercised control or supervision over the work and had actual or constructive notice of the purportedly unsafe condition (Singh v. Black Diamonds LLC, 24 AD3d 138, 140, 805 N.Y.S.2d 58 [1st Dep't., 2005]).

Regarding actual notice, there is an issue of fact. While plaintiff testified that he complained about the condition of the loading dock to this foremen, and that plaintiff's understanding was that the foremen would relay those complaints to the defendants, Tiberi from Tishman, testified that Tishman never received any such complaints. Therefore, there is an issue of fact as to whether defendants had actual notice of the condition of the loading dock prior to plaintiff accident.

Regarding constructive notice, plaintiff avers that the condition existed for a sufficient amount of time for defendants to have noticed and remedied it. However, "[a] defendant is charged with constructive notice of a defective condition when the condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy it" (Lopez v Dagan, 98 AD3d 436, 438 [1st Dep't., 2012]). Plaintiff testified that the condition existed since his employment began and further that the photographs demonstrate that the condition did not occur overnight. However, there is evidence in the record establishing that the area was or could be covered at various times, whether by a ramp, a piece of wood, a metal plate, or a truck backed up flush against the location of the condition upon which plaintiff claims he tripped. Accordingly, there are issues of fact as to whether and how long the condition was visible and apparent, that preclude finding that defendants had constructive notice of the condition.

On the other hand, as for defendants' motion, in the absence of evidence as to the last time the alleged defective area was inspected before a plaintiff's accident, a defendant fails to demonstrate that they lacked constructive notice of the condition (Ohadi v. Magnetic Constr. Grp. Corp., 182 AD3d 474, 476, 122 N.Y.S.3d 612, 616 [1st Dep't., 2020]). Here, defendants fail to present any evidence as to when the loading dock was last inspected, and therefore have not established that defendants did not have constructive notice of the defect.

Based on the foregoing, the motion and cross-motion in relation to the §200 and common law negligence claims are denied as issued of fact remain as to notice.

The Court addresses two more items brought up by the parties. First, defendant's argument that there is nothing in the record to establish that an unsafe condition existed is belied by the testimony of their own witness. During his deposition, Tiberi admitted when presented with photographs of the condition, that he would have someone go and correct some of the conditions shown in the photographs (ex K to defendants' motion at p. 46). Tiberi also testified that the condition "may possess a risk" but that a piece of metal located in the loading dock could be used to cover the transition between the trucks and the loading dock so that the condition would not be exposed, and further that if the metal plate was not being used, "you could have an unsafe condition" (id. at pp. 46-47). Second defendants' argument that plaintiff failed to proceed with caution in failing to use a metal plate to transition between the loading dock and the truck is not persuasive because it is unclear whether such a plate was actually made available at the time of the accident.

In light of the foregoing, it is hereby

ORDERED, that plaintiff's causes of action asserted under Labor Law §240(1) and §241(6) predicated on alleged violations of Industrial Code sections other than §§ 23-1.22(c)(1), 23-1.7(e)(1), and 23-1.7(e)(2) are hereby dismissed as abandoned by plaintiff; and is further,

ORDERED, that the branch of defendants' motion seeking summary judgment dismissing plaintiff's Labor Law §241(6) claims, predicated on alleged violations of Industrial Code §§23-1.22(c)(1), and 23-1.7(e)(2) is granted; and it is further

ORDERED, that the remainder of defendants' motion seeking summary judgment dismissing plaintiff's Labor Law §241(6) claims, predicated on alleged violations of Industrial Code § 23-1.7(e)(1) and plaintiff's Labor Law §200 and plaintiff's common law negligence claims is denied; and it is further

ORDERED, that plaintiff's cross-motion seeking partial summary judgment on the issue of liability on plaintiff's Labor Law §241(6) claims, predicated on alleged violations of Industrial Code §§23-1.22(c)(1), and 23-1.7(e)(1) and (2), and plaintiff's Labor Law §200 and common law negligence claims, is denied; and it is further,

ORDERED, that the parties shall appear for a Pre-Trial conference on July 14, 2025 at 9:30 am; and it is further,

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

This constitutes the decision and order of the Court.