The following e-filed documents, listed by NYSCEF document number (Motion 2) 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing cited papers, the Decision and 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 the §240(1) cause of action. Defendants, Rester USA LP, AW Pelham LP, Marcal Contracting Co. LLC and Pelham So Tic LLC (hereinafter, collectively referred to as "defendants") oppose the motion.

Plaintiff commenced this action by filing a summons and complaint seeking damages for personal injuries allegedly sustained as a result of being struck in the head by plywood while working at a construction site. Plaintiff was employed as a carpenter by non-party, Capital Concrete ("Capital"), who was hired by defendant, Marcal Contracting Co. LLC ("Marcal"), to [*2]perform concrete work at the premises (NYSCEF Doc. 108). Defendant AW Pelham owns the premises and hired Marcal as the general contractor of the project, which was a new construction (id.). The complaint sets forth causes of action premised on Labor Law §§ 240(1), 241(6), 200 and common law negligence. Defendants joined issue by serving an answer denying the substantive allegations in the complaint. After engaging in discovery, plaintiff filed Note of Issue certifying that discovery is complete and that the matter is ready for trial. The instant motion followed.

Plaintiff testified that as a carpenter for Capital, he was responsible for building the wooden forms or molds that the concrete is poured into (NYSCEF Doc. No. 99 at pg. 31). Once the concrete is poured and has hardened, it is also plaintiff's job to remove the wooden forms, which is referred to as stripping (id.). Plaintiff testified that these are assembled to create the floor and the ceiling (id. at pg. 32). The floor is made of aluminum beams and plywood laid between the beams (id. at pg. 32). Typically, it takes 5-6 people to construct the form for a wall (id. at pg. 35). After the forms were constructed, they were moved by hand, and there was never any machinery provided by Concrete to lift forms (id. at pg. 37-38). On the date of accident, they were working on constructing the eighth floor (id. at pg. 39). The permanent staircases were only installed up to the fifth floor, where plaintiff's accident took place (id. at pg. 40). He was wearing a hard hat at the time (id. at pg. 48). To get from the fifth to the sixth floor, there were temporary stairs made of 2x4's (id. at pg. 50). There was no hoist or crane on site to move materials from floor to floor (id. at pg. 49-50). Plaintiff testified that during safety meetings it was discussed that the correct way to move materials was through the elevator and the use of a crane (id. at pg. 51). However, plaintiff also testified that the elevator was not working at the time of his accident and further that they were told there was no crane (id. at pg. 51-52).

On the day of the accident, plaintiff testified that he received instructions from the foreman to bring up plywood from the fifth floor to the sixth floor through a hole in the floor (id. at pg. 62). There were 20 sheets of plywood, each was 4 × 8 and weighed approximately 70-80 pounds (id. at pg. 72). The plywood was to be used for the decking on the seventh floor (id. at pg. 74). There was a temporary staircase nearby but it is not made for materials, only people (id. at pg. 63). Plaintiff acknowledged that he had witnessed this taking place previously but had never taken part in it (id. at pg. 64). The process took four people, with two people on the fifth floor and two people above on the sixth floor (id. at pg. 70). Plaintiff testified that a few seconds after lifting the last piece of plywood, while he was looking down removing his harness, he was struck in the head by a sheet of plywood that came back down through the hole (id. at pg. 77). The hole was two feet wide and more than eight feet long (id. at pg. 80).

Plaintiff moves for summary judgment on the issue of liability as to the §240(1) cause of action. Plaintiff contends that summary judgment is warranted because he was injured when he was struck by an object that fell as a result of defendants' failure to provide appropriate hoisting equipment. In support of the motion, plaintiff submits the affidavit of certified site safety manager Kathleen Hopkins (hereinafter, the "Hopkins affidavit"). The Hopkins affidavit sets forth, inter alia, that defendants violated §240(1) by failing to provide plaintiff with a hoist, and/or pulley, slings ropes, and/or other device to safely hoist the sheets of plywood.

In opposition to the motion, defendants argue that there is insufficient proof that any defendant violated the specific statute and further that there are triable issues of fact as to [*3]whether the plaintiff was the sole proximate cause of his accident. Defendants argue that the accident was caused solely by human error and the plaintiff's own conduct in failing to follow common sense measures and not paying attention. In support of that argument, defendants submit the affidavit of concrete safety manager James O'Donoghue (the "O'Donoghue affidavit"). The O'Donoghue affidavit sets forth that it is the normal and recognized industry custom to pass materials between floor penetrations and highlights that plaintiff was able to complete the hand-hoisting endeavor without difficulty. O'Donoghue further asserts that material hoists and cranes cannot be used because exterior decking on stripping floors extend past the perimeter of the building making it impossible (NYSCEF Doc. No. 107 at pg. 3). O'Donoghue further posits that no rope or other type of safety device could have been used and/or is needed to perform this type of transfer because any type of support would inhibit, if not prevent, the repositioning of the wooden forms. O'Donoghue opines that plaintiff was the cause of his own accident due to his inattention. Defendants also submit records from the Workers Compensation Board in support of their argument that there are issues of fact as to how plaintiff was injured.

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 § 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]). 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]).

In moving for summary judgment on his Labor Law § 240(1) claim, plaintiff's testimony that he was manually hoisting 70-80 pound plywood sheets through a hole in 10 foot ceilings, is sufficient evidence to establish that the plywood, whether it was dropped or fell in some other manner, was material requiring securing (See Pados v. City of New York, 192 AD3d 596, 146 N.Y.S.3d 41 [1st Dep't., 2021]). The fact that plaintiff did not see the plywood fall does not preclude partial summary judgment in his favor, as the testimony demonstrates that the plywood came from somewhere above plaintiff and was a proximate cause of his injuries (See Humphrey [*4]v. Park View Fifth Ave. Assocs. LLC, 113 AD3d 558, 559 [1st Dep't., 2014]). Moreover, a plaintiff's prima facie case in a Labor Law § 240(1) action involving falling objects is not dependent on whether the plaintiff observed the object that hit him (Malan v. FSJ Realty Group II LLC, 213 AD3d 541, 542, 185 N.Y.S.3d 5 [1st Dep't., 2023]).

This matter is analogous to Diaz v. Raveh Realty, LLC, 182 AD3d 515, 515 (1st Dep't., 2020). In Diaz, plaintiff was injured when he was hit by 4 × 8 plywood form that fell or was dropped by co-workers who were stripping plywood forms from the cured concrete-poured ceiling. The First Department reversed the trial court's decision and granted plaintiff summary judgment on the §240(1) cause of action. The Appellate Court held that the plaintiff's injury was the foreseeable consequence of the risk of performing the task without any safety device of the kind enumerated in § 240(1). Here, plaintiff was engaged in the same type of work and moving the same type of materials.

Defendants' argument that plaintiff had already completed the hoisting is unavailing. Falling object liability under Labor Law § 240 (1) is not limited to cases in which the falling object is in the process of being hoisted or secured (Quattrocchi v. F.J. Sciame Const. Corp., 11 NY3d 757, 758—59 [2008]). Plaintiff's proof showed that the plywood was a load that required securing for the purposes of the undertaking (See Fromel v. W2005/Hines W. Fifty-Third Realty, LLC, 232 AD3d 513, 514 [1st Dep't., 2024]).

None of the defendants raise an issue of fact as to how the accident occurred because none of them were present and therefore lack personal knowledge of what occurred. Moreover, the Court is not persuaded by the argument that plaintiff lacks credibility because his accident was allegedly unwitnessed. On the contrary, plaintiff testified that three other co-workers were assisting with the hoisting which occurred seconds prior and further that the worker on his level was a witness to his accident and checked on him afterwards. Notwithstanding, that the accident was unwitnessed does not preclude summary judgment (Casabianca v. Port Auth. of New York & New Jersey, 237 AD2d 112, 113, 655 N.Y.S.2d 2, 3 [1st Dep't., 1997]).

Nor is the Court persuaded by the O'Donoghue affidavit that industry standards do not require a protective device. The Appellate Division has repeatedly ruled that the contractors' failure to provide any safety devices to protect the plaintiff-worker from an elevation-related risk constitutes a statutory violation irrespective of whether "industry custom" dictated that one or more safety devices be provided (Celaj v Cornell, 144 AD3d 590, 591 [1st Dep't., 2016]). Moreover, plaintiff's alleged "failure to use common sense" and move away from the hole is at most contributory negligence, which is not a defense to a Labor Law§240(1) claim (Crespo v. Triad, Inc., 294 AD2d 145, 147 [1st Dep't., 2002]).

Defendants' reliance on the medical and other records from the Worker's Compensation carrier to argue that there is an issue of fact regarding how the accident occurred is not persuasive since defendants fail to establish the admissibility of said records. The copies submitted are not certified, nor has a business record foundation been laid for them. Moreover, there is no dispute as to plaintiff's employment status to make the records otherwise admissible.

Defendants also fail to raise an issue of fact with respect to the recalcitrant worker defense. This argument is unavailing in the absence of any evidence that plaintiff was specifically instructed to do something and chose for no good reason not to do so (Pirozzo v. Laight St. Fee Owner LLC, 209 AD3d 596, 597 [1st Dep't., 2022]).

Based on the foregoing, it is hereby

ORDERED, that plaintiff's motion for summary judgment on the issue of liability on the §240(1) cause of action is granted in its entirety and the clerk is directed to enter partial judgment accordingly; and it is further,

ORDERED, that plaintiff serve a copy of this order with Notice of Entry on all defendants within 30 days of the entry date hereof; and it is further,

ORDERED, that the parties appear for a pre-trial conference in Part 21 on December 8, 2025 at 9:30 am.

This constitutes the Decision and Order of the Court.