Recitation as Required by CPLR §2219(a): The following papers were read on plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment (Motion Seq. 004):

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

Plaintiff moves for an order pursuant to CPLR §3212 granting partial summary judgment on the issue of liability as to plaintiff's Labor Law §200, §240(1) and §241(6) claims against defendants, DAGNYALROSE, LLC and DAGNY ENTERPRISES, LLC (collectively hereinafter referred to as the "DAGNY defendants") and further granting plaintiff summary judgment on the claims for common law negligence against defendant, DAGNYALROSE LLC (hereinafter "Alrose"), only. The DAGNY defendants oppose plaintiff's motion. Defendant, DAGNY ENTERPRISES, LLC (hereinafter, "Enterprises"), cross-moves for summary judgment contending that the complaint should be dismissed as against Enterprises in its entirety. For purposes of judicial economy, both the motion and cross-motion will be decided in this single decision and order.

Plaintiff commenced this action by filing a summons and complaint on July 20, 2020. The complaint sets forth, inter alia, alleged violations of the Labor Law as well as common law negligence claims. Plaintiff alleges that on March 13, 2020, plaintiff was engaged in construction/renovation work at 757 Concourse Village West in the Bronx ("757") and further that the adjacent premises, 751 Concourse Village West ("751"), served as a staging area for employees to sign in for the construction project. Plaintiff contends that on the date of the accident, after signing in for work and while walking out of the garage at 751, he was allegedly struck in the head by a falling brick. Plaintiff alleges that defendants are liable pursuant to the Labor Law because they failed to provide plaintiff with overhead protection and further that they were negligent in the ownership, operation, control and maintenance of the premises at 751. The complaint further alleges that the ongoing construction at 757 compromised the structural integrity of 751.

Defendant Enterprises joined issue by service of an answer dated November 17, 2020. Plaintiff moved by notice of motion for default judgment against the remaining defendants. Said relief was granted via order dated July 22, 2021 (Suarez, J.). The parties subsequently executed a stipulation vacating the default against defendant Alrose only (NYSCEF Doc. 34) and that defendant filed an answer on January 17, 2023. A preliminary conference order was issued on September 27, 2023. The parties engaged in discovery until July 23, 2024 when plaintiff filed Note of Issue certifying that discovery is complete and that the matter is ready for trial. The instant motion and cross-motion were filed thereafter.

On the date of accident, plaintiff was employed by non-party, Premier Advanced Contracting Inc. (Exhibit I at pg. 13). Plaintiff performed carpentry and painting jobs for that company and received all his assignments from the owner thereof, Claudio (id. at pg. 14), who would drop plaintiff and his coworkers off at jobsites (id. at pg. 16). On the morning of the accident, plaintiff arrived to work with Jorge Morocho (id.) Morocho parked in the street outside of a parking lot next to the construction site that was made into an office where employees sign in (id. at pg.27) Upon arrival, plaintiff checked in with Mike, but Mike did not give plaintiff any [*3]instructions or work assignment for the day, nor does plaintiff know who Mike works for (id.). While plaintiff was walking back out to the car to retrieve his personal tools (id. at pg. 29) something fell from above the garage (id. at pg. 31). Pieces of brick came off the garage and hit plaintiff (id. at pg. 32). Plaintiff did not see the pieces fall, but someone said "Look, that fell" and took photos (id. at pg. 32-33), although plaintiff does not know if he still has said photos (id.). Plaintiff never saw any loose materials or pieces of the building on the ground previously (id. at pg. 37). Plaintiff was not wearing any safety equipment besides a vest at the time of the accident because he was not in a work area (id. at pg.29-30). The accident occurred in the parking area, which is separate from the work area (id. at pg. 31). There were no ongoing construction activities at the time (id. at pg. 31) nor was there any netting or scaffolding in place (id. at pg. 37).

Penny Fern Hart appeared for a deposition on behalf of both DAGNY defendants (Exhibit L). Hart owns Enterprises (id. at pg. 7). Enterprises acquired both properties simultaneously with 757 consisting solely of a vacant lot and 751 already having a two-story garage on the lot (id. at pg. 13). Enterprises subsequently leased the land at 757 to non-party, Civic Builders ("Civic"), who in turn contracted with Kel-Mar Designs, Inc. ("Kel-Mar") to build a charter school on the vacant lot (id. at pg. 11). Thereafter, Enterprises sold the garage property (751) to Alrose (id. at 13) which Hart is also a managing member of. There was no managing agent for the property (id. at pg. 17) and Hart does not recall if there was an inspection of the garage when the property was first acquired (id. at pg. 13). Enterprises did not have any contractual relationship with the construction company defendant Kel-Mar (Id. at pg. 9-10). Hart denies knowledge of the existence of a lease between Alrose and Kel-Mar for the garage (Id. at pg. 10) but acknowledges that if Kel-Mar was renting space, then they would have had contact with Mr. Rosenberg, Hart's former partner (id. at pg. 19).

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]).

Plaintiff argues that summary judgment on liability is warranted on all of plaintiff's Labor Law claims because it is undisputed that defendants failed to provide plaintiff with overhead protection to guard against elevation-related dangers of construction in violation of the [*4]Labor Law. Plaintiff specifically alleges violations of Industrial Code sections pertaining to overhead hazards, personal protective equipment, life nets, and sidewalk sheds. Plaintiff argues that both DAGNY defendants are owners under the Labor Law because there is a nexus between them as owners of the properties and the injury producing work that plaintiff was subcontracted to perform.

Plaintiff alleges that Enterprises is liable as the fee owner of the construction site (757) where plaintiff was employed at the time of his accident. Plaintiff further posits that Alrose, the fee owner of the adjacent garage (751), is liable because it leased the premises to the construction company Kel-Mar and plaintiff alleges that he was required to enter that premises to sign in as a condition of his employment. Plaintiff also argues that Hart's ownership of both DAGNY defendants demonstrates negligence on the part of both owner entities because Hart could not establish if or when any inspections of the properties had taken place prior to plaintiff's accident.

As to its common law negligence claims against defendant Alrose, plaintiff argues that Alrose is under an additional common-law duty to maintain its garage property in a safe condition. Plaintiff surmises that because the brick fell from the facade of the building, which plaintiff contends is not a normally occurring event absent negligence, the doctrine of res ipsa loquitor should apply and Alrose should be held liable under a common-law negligence theory.

Alrose opposes the plaintiff's motion and argues that plaintiff was not engaged in construction related activity at the time of the accident. Alrose further argues that the motion is legally defective because Alrose did not own the construction site, nor did it contract for or exercise control over the alleged injury producing work. Therefore, Alrose continues, it is not a proper Labor Law defendant. Alrose further contends that plaintiff's account of the accident is inconsistent and undermines plaintiff's credibility. Alrose avers that the Worker's Compensation Board findings underscore the absence of a valid Labor Law claim and reveal a different version of events regarding the plaintiff's accident, as provided by plaintiff's coworker, Morocho.

Enterprises also opposes the motion and argues that it did not own the garage located at 751 and therefore cannot be held liable for any conditions relating to that property. Enterprises contends that the 751 property was sold to Alrose prior to plaintiff's accident and submits a copy of the deed reflecting the same. Enterprises further argues that plaintiff fails to submit any evidence that the garage was a staging area or otherwise involved in the construction project at 757. Enterprises submits a copy of a 2019 construction contract for 757 (Exhibit B to opposition) between Civic as owner and Kel-Mar as construction manager. Enterprises argues that Civic, as evidenced in the contract, had the authority to control the site and was the owner of the work that they contracted out to Kel-Mar, and not Enterprises.

In reply, plaintiff argues that the Workers Compensation records are inadmissible hearsay. Plaintiff further alleges that it is irrelevant that Hart separated ownership into two distinct entities since Hart leased the 751 property as a staging area for the contractor of the 757 property and is therefore responsible for the workers on site as a Labor Law defendant. As to the activity that plaintiff was performing, plaintiff argues that it is irrelevant that he was not engaged in construction at the time of his accident because the intent of the statute was to protect workers employed in enumerated acts, even while performing duties ancillary to those acts, such as signing in.

Labor Law § 240(1) imposes a duty upon owners and contractors to furnish proper safety [*5]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] ). Labor Law § 240(1) relates only to "special hazards" presenting "elevation-related risk[s]" (Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514 [1991]). It applies to workers "employed" in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Dahar v. Holland Ladder & Mfg. Co., 18 NY3d 521, 524-525, [2012]).

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 [1998]).

Labor Law §§ 240 (1) and 241(6) afford protection to those injured in the performance of construction work (See Balbuena v. 395 Hudson New York, LLC, 214 AD3d 586, 587 [1st Dep't., 2023]). Here, the Court finds that plaintiff fails to establish, as a matter of law, that plaintiff was performing covered work at the time of his accident, therefore the motion for summary judgment on plaintiff's Labor Law §240(1) claim must be denied (see Melendez v. Truffles II, LLC, 224 AD3d 509, 510[1st Dep't., 2024]). Plaintiff testified that his job with the company was "carpentry and painting", but there was no testimony elicited from plaintiff as to exactly what work he was performing at this specific job site. Without knowledge of what work was being performed, the Court cannot make a determination as to whether plaintiff was engaged in a protected activity. Moreover, without first establishing that plaintiff was engaged in a protected activity, plaintiff's argument that his trip to the car to retrieve tools is covered because it was in furtherance of a protected activity, is not convincing.

Similarly, Section 241 of the Labor Law provides in relevant part, "[a]ll contractors, owners, and their agents...when constructing or demolishing buildings shall comply with the following " (emphasis added). While plaintiff contends that defendants violated several Industrial Code sections that were promulgated in furtherance of the statute, plaintiff fails to establish that the statute itself is applicable because there is no admissible evidence in the record before this Court to establish that the DAGNY defendants were engaged in the construction or demolition of buildings so as to bring them within the scope of the statute. Plaintiff submits no construction contract or an employment contract, nor has any individual with personal knowledge of the construction project given testimony in this case. Additionally, Hart's testimony that 757 was an empty lot sheds no light on what, if anything, was happening "construction-wise", at the time of plaintiff's accident. Moreover, plaintiff's own testimony that the location of the accident was not the construction site (Exhibit I at pg. 61) and that there were no ongoing construction activities at the time of the accident (id. at pg.32) create an issue of fact as to whether §240(1) and §241(6), which are both limited to a construction context, are applicable to this case.

Plaintiff also fails to establish a prima facie case as to its Labor Law §200 claims. Section 200 codifies the common-law duty of an owner or employer to provide employees with a safe [*6]place to work, and is not limited to the construction context (See Jock v. Fien, 80 NY2d 965, 967 [1992]). However, plaintiff fails to establish that plaintiff was an employee of either DAGNY defendant. As discussed above, plaintiff fails to establish that he was an employee engaged in construction on the 757 property. As to the 751 property, while plaintiff argues that Hart admits (on behalf of Alrose) to leasing out that property to the general contractor, that is a mischaracterization of Hart's testimony. Hart denied any knowledge of a lease, but did acknowledge that "rumor has it" there was one (Exhibit L at pg. 10). Hart further set forth that if there had been a lease, her former partner would have handled it (id. at pg. 19). There was no follow up questioning regarding this rumored lease. Speculative testimony regarding who would have handled a potential lease is hardly the same as confirmation that there was an actual lease in effect for the premises. Plaintiff does not submit a lease to substantiate its argument or otherwise connect Alrose to the alleged construction project as an employer. Accordingly, the branch of plaintiff's motion seeking summary judgment on the §200 claims is also denied.

The Court finds that plaintiff likewise fails to meet its prima facie burden for summary judgment on the basis of the doctrine of res ipsa loquitor. Res ipsa, a form of circumstantial evidence, creates a permissible inference of negligence that may be accepted or rejected by the triers of fact (Tora v. GVP AG, 31 AD3d 341, 342 [1st Dep't., 2006]). A plaintiff seeking a charge on the theory of res ipsa loquitur must establish three elements: (1) the event must be of a kind that ordinarily would not occur absent negligence of the defendant; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not be due to any voluntary action or contribution on the part of the plaintiff (Banca Di Roma v. Mut. of Am. Life Ins. Co., 17 AD3d 119, 120 [1st Dep't., 2005]).

Here, plaintiff fails to establish the first element. Plaintiff alleges that Alrose, as owner, was in exclusive control of the maintenance of the exterior of the 751 property, and further that bricks do not fall off the facade of the building absent negligence on the part of the owner. However, plaintiff simultaneously alleges in the complaint that the construction activity going on at the 757 property caused damage to the structural integrity of the garage on the 751 property. Plaintiff sets forth two alternate theories of what allegedly caused the brick to fall, but fails to submit any evidence to establish which of the theories, each of which imparts liability on a different defendant, is more likely than not the cause. While plaintiff need not conclusively eliminate all other possible explanations, plaintiff must present evidence that it is more likely than not that defendant's negligence caused the injury (See Pavon v. Rudin, 254 AD2d 143, 145 [1st Dep't., 1998]). Contrary to plaintiff's argument, Hart's ownership status of both DAGNY defendants does not equate them as essentially one defendant. Each DAGNY defendant is a distinct entity with distinct rights and responsibilities.

Indeed, plaintiff also cannot establish the second element because plaintiff never actually saw the brick that he alleges hit him and therefore cannot identify the instrumentality that allegedly caused plaintiff's injury. Plaintiff testified that he was walking when something fell from above but admits that he never actually saw it (id. at pg. 31). Only in the rarest of cases when the plaintiff's circumstantial proof is so convincing that the inference of defendant's negligence is inescapable should summary judgment be granted under res ipsa loquitor (Morejon v. Rais Const. Co., 7 NY3d 203, 209 [2006]). This is not such a case. Here, there are multiple material questions of fact for trial. Accordingly, the branch of plaintiff's motion seeking summary judgment on its common law negligence claims on the basis of res ipsa loquitor is denied. In accordance with the above, plaintiff's motion for summary judgment is denied in its [*7]entirety.

Enterprises cross-moves for summary judgment. Enterprises contends that summary judgment is warranted because Enterprises does not own the 751 property where plaintiff's accident occurred, nor did it contract for the work that was being performed at the 757 property. In support of its motion, Enterprises submits the affidavit of Penny F. Hart (the "Hart affidavit"). The Hart affidavit sets forth that Hart is a managing member of both DAGNY defendants. Hart explains that prior to the accident, Enterprises sold the 751 property to Alrose. Hart sets forth that Hart had never been to either site and was not aware of the need for any repair to the garage structure on the 751 property, nor that any bricks had allegedly fallen from the same. Hart avers that the 757 property was open land when it was purchased, and later became the subject of a construction project, but argues that the contract was not with Enterprises. In support of this argument, Enterprises submits a copy of the lease between it and Civic, as well as a subsequent construction contract between Civic and Kel-Mar.

Plaintiff opposes the cross-motion. Plaintiff argues that Enterprises owns the site where the work plaintiff was engaged in was being performed, and further that the Hart affirmation confirms the 751 property was being used as a staging area for that construction. Plaintiff further avers that Hart indicated her awareness of the fact that the construction manager was leasing out the 751 garage at her deposition. Plaintiff argues that this creates a nexus between Enterprises and plaintiff, making Enterprises liable to plaintiff pursuant to the Labor Law for the injuries he sustained at the 751 property. Plaintiff further argues that because Hart owned both properties, Hart had the ability and obligation to provide protection to the plaintiff.

Here, the Court finds that Enterprises fails to make a prima facie showing of entitlement to summary judgment. As discussed hereinabove, the record before this Court regarding the construction project is exceedingly sparse, and while plaintiff fails to establish that he is entitled to the protections of the Labor Law, defendants likewise have failed to submit sufficient evidence to establish, as a matter of law, that he is not. The record before this Court conclusively establishes that Enterprises owns the location where the alleged construction project was situated. It is also undisputed that plaintiff's accident took place on property owned by Alrose. However, Enterprises has not established that the 751 property was not an extension of the construction project. As noted above, Hart denies knowledge of a lease, but Hart's testimony falls short of affirmatively closing the door on the possibility that there was indeed a lease that required plaintiff to be on the 751 property. Issues of fact regarding the liability of the parties of precludes summary judgment on the claim (Rodriguez v. Dormitory Auth. of State, 104 AD3d 529, 531[1st Dep't., 2013])

The Court is also not persuaded by Enterprises' argument that it did not contract for the construction work. While Enterprises submits a purported construction contract in support of its motion, the same is not in admissible form. The contract has not been authenticated by any of the signatories thereto, nor are any of the entities referenced in the contract actual parties in this litigation. 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]). Even assuming arguendo that this Court were to take the contract at face value, it still would not justify awarding Enterprises summary judgment. Enterprises cites to no case law supporting its position that where a lessor of land contracts for work to be performed on the land, the owner of the land is free from any liability relating to that [*8]work. Moreover, a cursory review of the documents submitted by Enterprises reveals that the owner reserved the right of approval of the tenant's construction plans. In accordance with the above, Enterprises fails to establish prima facie entitlement to summary judgment, therefore the Court will not address plaintiff's arguments in opposition to the extent not already done so hereinabove. Where the movant fails to meet its initial burden, the motion is properly denied regardless of the sufficiency of the opposition (Nova v. K & B Furniture Co., 262 AD2d 243, 244 [1st Dep't., 1999]).

Accordingly, it is hereby:

ORDERED, that Plaintiff's motion for summary judgment is denied in its entirety; and it is further,

ORDERED, that the Defendant's cross-motion for seeking summary judgment is denied in its entirety; and it is further,

ORDERED that all parties shall appear for a pre-trial conference on Monday, May 5, 2025 at 9:30 am in Room 405; and it is further,

ORDERED, that Plaintiff shall serve a copy of this Order with Notice of Entry upon Defendants within thirty (30) days of the upload of this Order in NYSCEF.

This constitutes the Decision and Order of this Court.