The following e-filed documents, listed by NYSCEF document number (Motion 2) 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 113, 114, 115, 116, 117, 118, 119, 120, 121 were read on this motion to/for JUDGMENT - SUMMARY.

Plaintiff moves for partial summary judgment pursuant to CPLR § 3212 on his Labor Law § 240(1) claim and his §241(6) claims predicated on alleged violations of Industrial Codes 12 NYCRR 23-1.21(b)(1) and 12 NYCRR 23-1.21(b)(4)(iv).

Plaintiff's complaint alleges that plaintiff was injured after one half of an extension ladder that he was working on, slipped out from beneath him. Plaintiff argues that because it is undisputed that the ladder slipped, he makes a prima facie showing of entitlement to partial summary judgment on the issue of liability under Labor Law §240(1). Plaintiff further contends that he makes a prima facie showing under LL §240(1)/ §23-1.21(b)(1) and §23-1.21(b)(4)(iv) because it is undisputed that: (1) the ladder upon which plaintiff was working was not capable of sustaining, without breakage, dislodgement or loosening of any component at least four times the maximum load intended to be placed thereon in violation of §23-1.21(b)(1), and (2) plaintiff was higher than ten feet above the ladder footing, and mechanical means for securing the upper end of the ladder against side slip were not used, and the lower end of the ladder was not tied to a secure anchorage nor held in place by a person in violation of § 23-1.21(b)(4)(iv).

In opposition, defendants argue that summary judgment must be denied because an issue of fact exists as to whether plaintiff was a recalcitrant worker, and the sole proximate cause of the accident. In support of this argument defendants allege that plaintiff was specifically instructed to use an A-Frame ladder, not an extension ladder, was shown, and provided with the A-Frame Ladder to use, and was further instructed not to commence work until the area where plaintiff was working was fully illuminated. Defendants continue that despite all of this, plaintiff improperly chose to use one half of an extension ladder, while the area was not fully illuminated, and is therefore a recalcitrant worker.

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 [*2]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]). A plaintiff may 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]; 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]).

Regarding the use of the top half on an extension ladder:

"[A] plaintiff's knowing use of half of the extension ladder without proper rubber footings goes to his culpable conduct and comparative negligence. Comparative negligence is not a defense to a claim based on Labor Law § 240(1), where defendants fail [to establish that they] provide[d] adequate safety devices and defendants [fail to establish that a] plaintiff refused to use the safety devices that were provided to him (Stankey v Tishman Const. Corp. of New York, 131 AD3d 430, 430 [1st Dep't., 2015]).

Moreover, summary judgment is proper under Labor Law §241(6) where it is undisputed that a plaintiff finds an extension ladder separated into two pieces and uses the top half of the ladder that does not have any ladder footing in that said factual scenario establishes violation of §23-1.21(b)(1) and (b)(4) (id.at 431).

Regarding the recalcitrant worker defense, a labor law defendant must make a showing [*3]that plaintiff deliberately refused to, "obey a direct and immediate instruction to use an available safety device or a standing order" not to act in the actual manner plaintiff acted resulting in the injury causing accident (Vitucci v Durst Pyramid LLC, 205 AD3d 441, 444 [1st Dep't., 2022]). In other words, to defeat summary judgment based on violations of the Labor Law, defendant would necessarily have to establish that plaintiff, "had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured" (Kosavick v Tishman Const. Corp. of New York, 50 AD3d 287, 288 [1st Dep't., 2008]). Moreover, summary judgment in any party's favor on Labor Law §§ 240(1) and 246(1) claims is precluded by issues of fact as to whether, and to what extent, a plaintiff was directed to use a safety device and whether a plaintiff's failure to abide by any such direction rendered plaintiff a recalcitrant worker, and thus, the sole proximate cause of the accident (Kolakowski v. 10839 Associates, 185 AD3d 427 [1st Dep't., 2020]).

Illustrative of the "immediacy of instruction" requirement of the recalcitrant worker defense, the Court of Appeals held in Cahill v Triborough Bridge and Tunnel Authority that where a worker was instructed to use safety lines "several weeks" before the day the accident occurred, and the record established that plaintiff could have readily used such safety line at the time of the accident, the recalcitrant worker defense was sufficiently established to warrant denial of plaintiff's motion for summary judgment on a §240(1) claim (Cahill, 4 NY3d 35, 40 [2004]).

Here, the Court finds that plaintiff has made a prima facia showing of entitlement to partial summary judgment on the issue of liability under §240(1) and §241(6) predicated on of §23-1.21(b)(1) and (b)(4). Notwithstanding, the Court also finds that defendants have sufficiently raised issues of fact as to whether plaintiff was a recalcitrant worker that preclude summary judgment. The issues of fact present are set forth immediately below.

Plaintiff's foreman, Jospeh LaRosa ("LaRosa") testified that on the morning of the accident, he met with the plaintiff and plaintiff's apprentice in the area where plaintiff was going to be working to explain their duties (Exhibit I to plaintiff's affirmation in support — NYSCEF DOC. 88, at p. 84). LaRosa testified that at the time and place of the meeting, there were two A-Frame ladders available, that one such ladder was twelve feet, "which was needed" and that the working space was not illuminated (id. at p. 84 — 85). LaRosa testified that he showed plaintiff the A-Frame ladder and said, "here is a 12-foot ladder you are going to be using that, make sure you tie yourself off with the harness, but don't do anything until we get the lights on" (id. at p. 88, lns. 21-25; and at pg. 89, ln. 2). LaRosa then reiterated that he showed plaintiff what needed to be done for the work, showed and provided plaintiff with the A-Frame ladder and again instructed plaintiff not to commence any work until the space was illuminated (id. at p. 89, lns. 8-10). LaRosa also testified that plaintiff was able to see the A-Frame ladder because they were using flashlights, and the front door was open to the space where they were meeting (id. at p. 93, lns. 4-9). Moreover, LaRosa testified that the wires plaintiff was assigned work on were nine to eleven feet high off the ground (id. lns. 23-24).

The aforementioned testimony from LaRosa sharply contradicts plaintiff's testimony as to any instruction provided to him by LaRosa. Indeed, plaintiff testified that the wires he was assigned to work on were 22 feet high, not nine to eleven feet high as LaRosa claims. Additionally, plaintiff completely denies having been provided any instruction to use an A-[*4]Framed ladder and further contends that even if he was provided with such instruction and ladder, a twelve foot A-Frame ladder would be insufficient to reach his designated work area, which again, he testified was approximately 22 feet high (Exhibit "X" to plaintiff's affirmation in support — NYSCEF Doc. 103). Moreover, plaintiff asserts that because he needed both hands to perform the work he was assigned to complete, using a ladder of any height was not a proper safety device. Instead, plaintiff claims that he should have been provided with a man-lift to complete the task assigned to him (id.). Notably, on the issue of using a man-lift or a ladder to complete the task assigned to plaintiff, LaRosa testified that a man-lift was not needed for the work (NYSCEF Doc. 88 at p. 86, lns. 14-17). Of note, neither side submits the opinion of any expert, or other potential objective evidence of the sufficiency or insufficiency, for safety purposes, of a twelve-foot A-Frame ladder versus a man-lift for plaintiff's work assignment on the date of the accident. Therefore, the Court finds that an issue of fact is present as to whether plaintiff was instructed to and provided with a sufficient safety device (the A-Frame ladder) to complete plaintiff's work. Indeed, as discussed above, there is a dispute as to how high the plaintiff needed to be to complete his work.

To discount the inconsistent versions of events testified to by plaintiff and LaRosa, plaintiff argues that the testimony of LaRosa is not credible when comparing the same to photographs of the area where plaintiff's accident occurred. Plaintiff asserts that because said photographs only show two extension ladders in the space where plaintiff was working, defendants have not established that the A-Framed ladder LaRosa claims he instructed plaintiff to use was actually made available to plaintiff (photographs submitted as exhibit "1" to defendants' affirmation in opposition — NYSCEF Doc. 114). Plaintiff also posits that LaRosa's testimony is not credible because he did not include the fact that he instructed plaintiff to use the A-Frame ladder in the accident report he subsequently created.

The Court finds plaintiff's arguments relating to LaRosa's alleged lack of credibility to be unpersuasive. Initially, on a motion for summary issues of credibility may not be resolved, and all reasonable inferences must be drawn in favor of the nonmoving party (Prendergast v New York City Tr. Auth., 220 AD3d 583, 584 [1st Dep't., 2023]. The Court is not persuaded by plaintiff's argument relating to LaRosa's failure to note in the accident report that he instructed plaintiff to use an A-Frame ladder and plaintiff offers no case law in support of this contention. Moreover, the photographs plaintiff relies upon were presented to non-party witness, Steven Krug ("Krug"), during a deposition. Krug, who appeared at the accident site shortly after it occurred, testified after reviewing the photographs that there was a combination of A-Frame ladders and extension ladders of varying heights present in the space where the accident occurred (exhibit "N" to plaintiff's affirmation in support at p. 38-39). This testimony buttresses the testimony provided by LaRosa. Therefore, the Court finds that there is an issue of fact as to whether the A-Frame ladder that LaRosa testified he specifically instructed plaintiff to use and made available to plaintiff, was actually available to plaintiff at the time of the accident.

Again, summary judgment in any party's favor on Labor Law §§ 240(1) and 246(1) claims is precluded by issues of fact as to whether, and to what extent, a plaintiff was directed to use a safety device and whether a plaintiff's failure to abide by any such direction rendered plaintiff a recalcitrant worker, and thus, the sole proximate cause of the accident (Kolakowski v. 10839 Associates, 185 AD3d 427 [1st Dep't., 2020]).

Here, defendants have raised sufficient issues of fact as to (1) whether plaintiff was instructed to use an A-Frame ladder in light of the conflicting testimony of plaintiff and LaRosa [*5]on that topic; (2) whether such an A-Frame ladder was sufficient to perform the work, in light of conflicting testimony of plaintiff and LaRosa regarding how high up plaintiff's work was situated; (3) whether such an A-Frame ladder was actually available to plaintiff at the time of the accident, in light of the conflicting testimony of plaintiff, LaRosa and Krug on that subject; and (4) whether the accident would have occurred if plaintiff had not chosen to disregard any instruction to use the A-Frame ladder, as neither side has established as a matter of law, whether the A-Frame ladder would have been a sufficient safety device for plaintiff to complete his work. All of these issues are properly reserved for a jury's determination after trial.

The Court has considered all other argument in support and in opposition to the motion and finds them to moot in light of the analysis provided hereinabove.

Considering the foregoing, it is hereby:

ORDERED, that plaintiff's motion is denied is its entirety; and it is further,

ORDERED, that defendants shall serve a copy of this order with Notice of Entry upon plaintiff and third-part defendants within 30 days of the date this order is uploaded to NYSCEF by the County Clerk.

This constitutes the decision and order of the Court.