The following e-filed documents, listed by NYSCEF document number (Motion 003 were read on this motion to/for JUDGMENT - SUMMARY.

Defendants/third-party plaintiffs, 206 Kent Investor LLC i/s/h/a 206 Kent Investors LLC (hereinafter, "206 Kent"), and Seventh Floor Services, Inc. (hereinafter, "Seventh Floor"), (collectively "defendants") move for an order pursuant to CPLR §3212 granting defendants summary judgment dismissing the complaint. Plaintiff opposes the motion and argues that defendants fail to meet their prima facie burden. Plaintiff also moves for an order pursuant to CPLR §602 consolidating this matter with another action commenced under a separate index number and amending the caption herein to reflect the same. For purposes of judicial economy, both motions are resolved pursuant to this single decision and order.

Plaintiff commenced this action by filing a summons and complaint on September 17, 2019. The complaint alleges, inter alia, personal injuries sustained as a result of alleged violations of Labor Law §§241(6), 200 and common law negligence. Defendants joined issue by service of answer on December 20, 2019. Thereafter, defendants commenced a third-party action against Best Super Cleaning LLC, ("Best Super"), alleging causes of action for common law indemnity, contribution, contractual indemnification and breach of agreement to secure liability insurance. Best Super failed to appear or answer and a default judgment was entered against it by order dated April 9, 2021(Suarez, J.). The parties engaged in discovery until plaintiff filed note of issue certifying that discovery is complete and that this matter is ready for trial.

Plaintiff was employed by Best Super and was in charge of cleaning all debris and garbage (Exhibit H at pg. 13-14). On the date of the accident, plaintiff's co-worker Adrian translated (from Spanish to English) instructions from an individual named "Monchi" that plaintiff should go to the basement, grab all of the tubes and pieces of wood and carry them to the parking lot (Id. at pg. 40-41). Plaintiff understood Monchi to be the manager or person in charge (Id. at 37). According to plaintiff, an individual named Danny was also in charge and was on site everyday (Id. at pg. 38). After making three or four trips, plaintiff slipped and fell on the stairs climbing up from the basement (Id. at pg. 41). Plaintiff testified that the step and the [*2]staircase in general was dirty from a compound left behind by prior workers (Id. at pg. 53-55). Overall, the pieces of compound were dry, but some were wet (Id.). The stairway that plaintiff fell on did not have a handrail (pg. 58).

Moshe Rosen appeared for a deposition on behalf of 206 Kent (See Exhibit L). 206 Kent is the owner of the premises where a five-story commercial building was being constructed (Id. at pg. 7, 10-11). Seventh Floor was the general contractor but was not involved in the day-to-day operations (Id. at pg. 18). Cornell Realty, which is owned by the same owners as 206 Kent, ran the site (Id. at pg. 8) and supervised Best Super laborers on behalf of 20 Kent and Seventh Floor when needed (Id. at pg. 22). Individuals named Spitz and Goldstein were both employees of Cornell (Id. at pg. 13-14) and had the authority to stop the work of any subcontractors if they saw them performing work in an unsafe manner (Id. at pg. 29). Other than Cornell Realty, no one representing the owners was on the job site on a day-to-day basis (Id. at pg. 34).

Leon Zanvel, the President of Seventh Floor, appeared for a deposition (See Exhibit M). Zanvel testified that Seventh Floor did not enter into any contracts with subcontractors, but rather only provided supervision for the job (Id. at pg.10). No one from Seventh Floor was physically working at the premises, but Zanvel himself provided consulting services (Id. at pg. 15-16) and had been to the building two to three times during construction (Id. at pg. 18). Zanvel testified that he "thinks" the building has four stairwells and "thinks" they all go to the basement (Id. at pg. 19). Zanvel understood Cornell Realty and Isaac Hager to be the owners of the property (Id. at pg. 20). Zanvel denied that Seventh Floor hired Best Super Cleaning (Id. at pg. 32) and further denies that it is his signature that appears on the contract he was shown at his deposition (Id. at pg. 31).

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]).

Defendants argue that plaintiff was the sole cause of his accident and therefore is not entitled to the protections of the Labor Law. In support of this argument, defendants submit an accident report from plaintiff's employer which sets forth that plaintiff was taking garbage from the third floor to the second floor when, "[H]e sat down on the floor since it was too heavy and his back was hurting him." Defendants further argue that there is no evidence that the subject staircase was defective, dangerous or had debris thereon, nor that defendants had actual or constructive notice of any alleged defective or dangerous condition at the premises.

Plaintiff opposes the motion and argues that defendants fail to meet their prima facie burden on summary judgment because the accident report is not in admissible form and has not been authenticated by any of defendants' witnesses. Plaintiff further contends that, at best, the accident report creates an issue of fact as to how the accident occurred. With regard to Seventh Floor, plaintiff cites to the contract between Seventh Floor and 406 Kent, which sets forth Seventh Floor's responsibilities for maintaining a safe jobsite for all subcontractors.

As an initial matter, the Court notes that defendants move for summary judgment on a cause of action pursuant to Labor Law §240(1). Plaintiff does not address that portion of the defendants' motion in its opposition, therefore defendants argue that the same should be dismissed. A review of the verified complaint in this matter reveals that plaintiff plead causes of action pursuant to Labor Law §200 and §241(6) but did not plead a cause of action pursuant to Labor Law §240(1). As such, the Court will not address the merits of a claim not properly before it. However, to the extent that any cause of action under §240(1) is asserted, the same is dismissed as abandoned.

Additionally, while plaintiff alleges several Industrial Code violations in the bill of particulars, plaintiff only addresses Industrial Code §§23-1.7 (d), (e)(1), (e)(2), and 2.7(e) in its opposition. It is appropriate to find that a plaintiff who fails to respond to allegations that a certain section is inapplicable or was not violated be deemed to abandon reliance on that particular Industrial Code section (Kempisty v. 246 Spring St., LLC, 92 AD3d 474, 475 [1st Dept., 2012]). Accordingly, all other Industrial Code sections plead in the bill of particulars are deemed abandoned and are consequently hereby dismissed as predicates to the §241(6) claims.

Labor Law §241(6) is a "hybrid" statute, as the first sentence, "reiterates the general common-law standard of care," while the second sentence imposes a nondelegable duty with respect to compliance with rules of the Commissioner which contain "specific, positive command[s]" (Ross v. Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494, 503—504 [1993]). Thus, an owner or general contractor, "is vicariously liable without regard to [their] fault," and, "even in the absence of control or supervision of the worksite," where a plaintiff establishes a violation of a specific and applicable Industrial Code regulation (Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 348—350, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998]). In addition, Labor Law § 241 (6) requires that a plaintiff establish that the violation of the safety regulation was the proximate cause of the accident (see Gonzalez v Stern's Dep't Stores, 211 AD2d 414 [1st Dep't., 1995]).

In its opposition to the motion plaintiff alleges that defendants violated §23-1.7 (d), (e)(1) and (e)(2), and §23-2.7(e) of the Industrial Code, and that said violations caused plaintiff's injuries. §23-1.7(d) provides, in relevant part, that employers shall not permit any employee to use a passageway which is in a slippery condition (See 12 NYCRR § 23—1.7[d]). A "staircase used to provide access to a job site is not a passageway or other working surface within the meaning of the provision unless it is the sole means of access" (Bradley v. NYU Langone Hosps., 223 AD3d 509, 510—11 [1st Dep't., 2024]). Here, defendants argue that Zanvel's testimony establishes that the stairway plaintiff fell on was not the only means of access to the basement and therefore this section of the code is not applicable. However, a review of the testimony reveals that the same was hardly conclusive. Zanvel testified that he "thinks" all four stairways in the building lead to the basement, but he was not sure because many years had elapsed. The question was never asked of plaintiff at his deposition. The Court finds Zanvel's testimony is [*3]insufficient to establish as a matter of law that there were other stairways to reach the basement. As such, defendants have failed to make a prima facie showing that the stairway is not a passageway for purposes of this section. Therefore, the branch of defendants' motion for summary judgment on the §241(6) claim premised on §23—1.7 (d) is denied.

In addition to the argument addressed above regarding the staircase, defendants further contend that §23—1.7 (e)(1) and (e)(2), which relate to tripping hazards in passageways and working areas respectively, are not applicable because plaintiff testified that he slipped. In support of that argument, defendants cite to Harasim v. Eljin Const. of New York, Inc., 106 AD3d 642, 643 [1st Dep't., 2013]).^[FN1] In Harasim, the First Department dismissed the §241(6) claim predicated on Industrial Code §23-1.7(e)(2), finding that section inapplicable because plaintiff alleged that he slipped on a stairway, not that he tripped over an accumulation of dirt and debris. However, the defendants in Harasim established that the staircase where the accident occurred was the only means of access to the work area and was therefore governed by §23—1.7 (d). No such showing has been made by defendants here. Moreover, although Harasim appears to support defendants' argument, the First Department clarified in subsequent decisions that the distinction between trip and slip is not fatal to plaintiff's case on this type of claim. "[T]hat plaintiff 'slipped,' rather than 'tripped' ... does not render 12 NYCRR 23—1.7(e)(2) ... inapplicable to his case"(See Serrano v. Consol. Edison Co. of New York Inc., 146 AD3d 405, 406, 44 N.Y.S.3d 392, 394 (1st Dep't., 2017] citing (DeMaria v. RBNB 20 Owner, LLC, 129 AD3d 623, 625, 12 N.Y.S.3d 79 [1st Dep't., 2015]).

Indeed, this matter is analogous to Ohadi v. Magnetic Constr. Grp. Corp., 182 AD3d 474, 476 [1st Dep't., 2020]), which plaintiff cites in opposition. In Ohadi, the plaintiff slipped and fell down a staircase at a building undergoing renovation. The First Department held that plaintiff's testimony that he could see that the stairs were dusty, his clothes were dusty, and his jacket was wet with paint after he fell, combined with testimony in the record that the walls of the hallway had been painted and sanded prior to his accident, created an issue of fact as to whether dust and paint from the work performed in the stairway caused him to slip and fall. Consequently, the Ohadi Court also found that an issue of fact existed as to whether the staircase on which plaintiff fell was a work area, regardless of whether work was being performed there at the exact moment of his accident. Here, plaintiff's testimony that the compound he slipped on was left behind by other workers, and further that some was wet while other portions were dry and had turned to dust, raises issues of fact as to whether an accumulation of that compound is what caused him to slip and fall and further whether the stairway constituted a working area.

As discussed above, the Appellate Court held that Industrial Code § 23-1.7(e)(2) may serve as a predicate for a plaintiff's Labor Law § 241(6) claim, as it applies to slipping as well as tripping hazards. Additionally, defendants fail to establish that the subject staircase was not a passageway and therefore subject to the provisions of § 23-1.7(e)(1). Accordingly, defendants' argument that these sections do not apply is not persuasive. In accordance with the reasoning set forth above, the branch of defendants' motion for summary judgment dismissing the §241(6) claims predicated on §23—1.7 (e)(1) and (e)(2) is denied.

§ 23-2.7 entitled "Stairway requirements during the construction of buildings" sets forth, [*4]in relevant part, that every stairway and landing shall be provided with handrails. Defendants' argument in support of dismissal that there is no evidence that the subject stairway required handrails is disingenuous. The subject regulation sets forth that every stairway (emphasis added) shall be provided with a handrail not less than 30 inches nor more than 40 inches in height. Here, plaintiff's testimony, as well as the photographs taken immediately after the accident, demonstrate that there were no handrails on the subject stairway. Defendants fail to offer any proof to the contrary. Conversely, plaintiff's testimony that he was carrying materials in both hands at the time that he fell raises an issue of fact as to whether the lack of the hand rail was the proximate cause of the accident. Based on the foregoing, the portion of defendant's motion to dismiss the §241(6) claim premised on §23-2.7 is also denied.

Section 200(1) of the Labor Law codifies an owner's or general contractor's common-law duty of care to provide construction site workers with a safe place to work (Perrino v. Entergy Nuclear Indian Point 3, LLC, 48 AD3d 229, 230, 850 N.Y.S.2d 428 [2008]). Claims for personal injury under the statute and the common law fall into two broad categories: (1) those arising from an alleged defect or dangerous condition existing on the premises and (2) those arising from the manner in which the work was performed (see Cook v. Orchard Park Estates, Inc., 73 AD3d 1263, 1264 [2010]).

Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work (Foley v. Consolidated Edison Co. of NY, Inc., 84 AD3d 476, 477, 923 N.Y.S.2d 57 [2011]). Where the accident was caused by a defective premises condition, rather than the method or manner in which work was performed, liability depends on whether the owner or contractor created or had actual or constructive notice of the hazardous condition (See Bayo v. 626 Sutter Ave. Assoc., LLC, 106 AD3d 648, 648, 966 N.Y.S.2d 390 [1st Dep't., 2013]).

Here, defendants contend that plaintiff was the sole cause of his accident due to the manner in which he chose to perform his work. Specifically, defendants rely on the aforementioned accident report purportedly created by plaintiff's employer which sets forth that plaintiff merely sat down on the stairs because the load he was carrying was too heavy and his back hurt. Initially, the report submitted by defendants is not signed, nor does it contain the name of the author. Neither of the defendants' witnesses created the document, nor could they testify as to who did. Uncertified and unauthenticated documents submitted in support of a motion constitute inadmissible hearsay and are properly disregarded by the court (See Coleman v. Maclas, 61 AD3d 569, 569 [1st Dep't., 2009]). Accordingly, defendant fails to make a prima facie showing to warrant dismissal of the §200 and common law negligence claims based on the manner and means of the work. Moreover, plaintiff argues in opposition that the accident was caused by a dangerous condition on the steps, as opposed to the manner and means of the work. Defendants offer no proof of when the area was last inspected prior to the accident, or what work, if any, was being performed in the staircase. Therefore, defendants fail to establish prima facie that they neither created nor had constructive notice of a hazardous condition resulting in the plaintiff's injuries to support dismissal of the Labor Law 200 and common-law negligence claims against them (see Padilla v Touro Coll. Univ. Sys., 204 AD3d 415 [1st Dept 2022];see also Kolakowski v 10839 Assoc., 185 AD3d 427 [1st Dept 2020]; Pereira v New Sch., 148 AD3d 410 [1st Dept 2017]). In accordance with the above, the portion of defendants' motion to dismiss [*5]the §200 and common law negligence claims is also denied.

Plaintiff moves pursuant to CPLR §602 to consolidate this action (hereinafter, "Action 1") with another action also filed in the Supreme Court, Bronx County, captioned Angel Rodriguez v. Cornell Realty Management LLC, bearing Index Number 802713/2022E (hereinafter, "Action 2") and further to amend the caption accordingly. Defendants filed an affirmation which takes no position on the consolidation. The Court notes that a default judgment was issued in Action 2 against defendant therein and that said default judgment has not been vacated.

CPLR §602(a) gives the trial court discretion to consolidate actions involving common questions of law or fact (Progressive Ins. Co. v. Vasquez, 10 AD3d 518, 519 [1st Dep't., 2004]) Consolidation is generally favored in the interest of judicial economy and ease of decision-making where cases present common questions of law and fact, "unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right" (Raboy v. McCrory Corp., 210 AD2d 145, 147 [1st Dep't., 1994]). Here, a review of the pleadings in both matters reveals that both actions stem from the same accident and therefore contain common issues of law and fact. Moreover, defendants do not oppose the consolidation and offer no evidence of prejudice as a result of the same.^[FN2] Accordingly, the plaintiff's motion to consolidate is granted.

In accordance with the above, it is hereby:

ORDERED, that the branch of Defendants' motion for summary judgment (Seq. 003) dismissing plaintiff's Labor Law §241(6) claim predicated on §§23-1.7 (d), (e)(1), (e)(2), and 2.7(e) is denied; and it is further,

ORDERED, that all other predicates to plaintiff's Labor Law §241(6) claims alleged in the bill of particulars are deemed abandoned and dismissed; and it is further,

ORDERED, that Defendants' motion for summary judgment (Seq. 003) dismissing plaintiff's Labor Law §200 and/or common law negligence claim is denied; and it is further,

ORDERED, that the Clerk of the Court is directed to enter partial judgment accordingly; and it is further,

ORDERED, that Plaintiff's motion to consolidate and amend the caption is granted and the above-captioned action is hereby consolidated with Angel Rodriguez vs. Cornell Realty Management LLC., Index No. 802713/2022E, pending in this Court; and it is further,

ORDERED, that the consolidation shall take place under Index No. 30889/2019E and the consolidated action shall bear the following caption:

ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it is further,

ORDERED that the Clerk of the Court shall consolidate the documents in the actions hereby consolidated and shall mark the official records to reflect the consolidation; and it is further,

ORDERED that all parties shall appear for a pre-trial conference on Monday, August 4, 2025 at 9:30 am in Room 405; and it is further,

ORDERED, the movants of each motion shall serve a copy of this order with notice of entry upon all parties within thirty (30) days of the upload of this order in NYSCEF.

This constitutes the decision and order of this court.