The following e-filed documents, listed by NYSCEF document number (Motion 004) 71-84, 103, 108-111, 129 were read on this motion to/for JUDGMENT — SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 85-99, 104, 112-128 were read on this motion to/for JUDGMENT - SUMMARY.

Plaintiff Walter Garcia Leon moves pursuant to CPLR 3212 for partial summary judgment as to liability under Labor Law § 240 (1) against defendant-owner DMA Realty Corp. ("DMA") (seq. 004). DMA moves for summary judgment dismissing plaintiff's complaint, including his claims for common law negligence and for violations of Labor Law §§ 240 (1), 241 (6), and 200 (seq. 005). The motions are consolidated for disposition.

On August 29, 2019, plaintiff was working as a helper on a façade repair job at 400 East 167th Street, in the Bronx, employed by general contractor third-party defendant Sandha General Contracting Corp. ("Sandha"). Plaintiff's job was to pick up brick material and debris that fell onto a sidewalk bridge (Pl. Tr. at 53:15-54:6, 61:6-20 [NYSCEF Doc. 80]). Plaintiff testified that he was not told or instructed to stand out of the way while his coworkers removed bricks from the façade (id. at 43:22-44:6). Plaintiff's coworkers asked him to bring up five bricks, so he went up the ladder (id. at 66:22-25). As plaintiff was descending the ladder, a piece of brick struck him, causing him to fall to the ground (id. at 66:22-69:4). Plaintiff had purchased his own hard hat, but was not wearing it on the day of the accident (id. at 37:15-38:13).

Plaintiff's supervisor, Sandha Singh, testified that, on the morning of the accident, he told plaintiff not to go under the scaffold while the workers were removing bricks from the building (Singh Tr. at 79:15-82:25, 83:10-15, 98:9-22 [NYSCEF Doc. 82]). Brick debris was not supposed to be removed from a section until brick workers were finished with that section (id. at 75:7-19). Singh was breaking up the bricks above the accident location (id. at 75:20-76:17, 83:21-84:3). Singh did not see plaintiff go under the scaffold, but if he saw plaintiff standing too close to the scaffold, he would have reminded him to stay away (id. at 79:20-80:17, 82:3-25). Singh later testified that he saw plaintiff once under the scaffold cleaning up debris, and he told him to come out and to only clean outside the scaffold area (id. at 97:25-99:11, 102:23-103:13, 103:21-104:8). Singh testified that a different worker, Danillo, would bring up any needed supplies, such as bricks, by putting supplies in a bucket attached to a rope (id. at 121:15-122:16).

A party seeking summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (id.). Summary judgment is a drastic remedy and must be denied if there is any doubt as to the existence of a triable issue of material fact (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]).

Plaintiff does not oppose that part of DMA's motion seeking dismissal of his claims under Labor Law § 200 and for common law negligence. Therefore, those claims are dismissed as abandoned (see Gamez v Sandy Clarkson LLC, 221 AD3d 453, 454-455 [1st Dept 2023]; Martin Assoc., Inc. v Illinois Natl. Ins. Co., 188 AD3d 572, 573 [1st Dept 2020]; Saidin v Negron, 136 AD3d 458, 459 [2016], lv dismissed 28 NY3d 1069 [2016], cert denied 583 US 842 [2017]).

Labor Law § 240 (1) provides in relevant part that where a building is being demolished, repaired or altered, contractors and owners "shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and [*2]operated as to give proper protection to a person so employed." "The statute imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). "[W]here an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense; however, where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability" (id. [internal quotation marks omitted]). "Thus, in order to recover under section 240 (1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury" (id.). Labor Law § 240 (1) is to be liberally construed so as to accomplish its legislative purpose of protecting workers (Stoneham v Joseph Barsuk, Inc., 41 NY3d 217, 221 [2023]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

"Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). "[L]iability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (id., citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

"To raise a triable issue of fact as to whether plaintiff was the sole proximate cause of an accident, the defendant must produce evidence that adequate safety devices were available, that the plaintiff knew they were available and was expected to use them, and that the plaintiff unreasonably chose not to do so, causing the injury sustained" (Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d 402, 402-03 [1st Dept 2013]; see Biaca-Neto v Boston Road II Housing Dev. Fund Corp., 34 NY3d 1166, 1167-1168 [2020]).

Plaintiff has demonstrated his prima facie entitlement to judgment as a matter of law on his Labor Law § 240 (1) claim. However, there is conflicting testimony concerning whether plaintiff failed to heed his supervisor's instruction not to stand under or near the scaffold during the brick removal work, which goes to whether plaintiff was the sole proximate cause of the accident. Accordingly, defendant has raised an issue of fact sufficient to overcome summary judgment under Labor Law § 240 (1). Both parties' motions directed to plaintiff's Labor Law § 240 (1) claim are, therefore, denied.

Plaintiff pleads the following Industrial Code provisions in his supplemental bill of particulars: 23-1.7 (a) (1)[overhead protection] and 23-1.8 (c) (1)[safety hats](8/1/23 Supp BOP [NYSCEF Doc. 92]). These subsections are sufficiently concrete to support Labor Law § 241 (6) liability (see Rutkowski v New York Convention Ctr. Dev. Corp., 146 AD3d 686, 687 [1st Dept 2017] [23-1.8 (c) (1)]; Murtha v Integral Const. Corp., 253 AD2d 637, 639 [1st Dept 1998] [23-1.7 (a) (1)]). Defendant does not argue the inapplicability of either provision, only that plaintiff was the sole proximate cause of his accident. For the reasons discussed, supra, summary judgment dismissing plaintiff's Labor Law § 241 (6) claim is denied.

Accordingly, it is

ORDERED that the motion by plaintiff Walter Garcia Leon for partial summary judgment as to liability under Labor Law § 240 (1) is DENIED; and it is further

ORDERED that the motion by defendant/third-party plaintiff DMA Realty Corp. for summary judgment dismissing plaintiff's complaint is GRANTED IN PART as follows:

DMA's motion is GRANTED as directed to plaintiff's claims under Labor Law § 200 and [*3]for common law negligence, and those claims are DISMISSED as abandoned; and

DMA's motion is DENIED as directed to plaintiff's claims under Labor Law §§ 240 (1) and 241 (6); and it is further

ORDERED that all parties shall appear for a pre-trial conference to be calendared by the Clerk of the Court.

This constitutes the decision and order of the Court.