Plaintiff Julio Moulier moves pursuant to CPLR 3212 for partial summary judgment as to liability on his Labor Law § 240 (1) claim against defendants-building owners 2264 Morris Avenue Owner LLC, 2264 Morris Avenue Housing Development Fund Corp., 2264 Morris Avenue Partners, LLC (collectively, "Morris Defendants"), and defendant-general contractor Notias Construction Inc. ("Notias") (seq. no. 002). Defendants jointly oppose.

Defendants move for summary judgment dismissing plaintiff's complaint, which includes claims under Labor Law §§ 200, 240 (1)-(3), and 241 (6), and for common law negligence (seq. no. 003). Plaintiff discontinues his Labor Law § 200 and common law negligence claims against the Morris Defendants only, and otherwise opposes defendants' motion (Shaw Aff. in Opp. ¶ 3 [NYSCEF Doc. 92]).

Plaintiff alleges that he was injured on May 16, 2018, while working at a construction site at 2264 Morris Avenue, Bronx, New York. Plaintiff was employed by non-party HVAC subcontractor Ikotun Associates, LLC ("Ikotun"). Defendant Notias was the general contractor for the project, and the Morris Defendants owned the premises.

At the time of the accident, plaintiff was climbing up onto scaffolding through an open window when the scaffold planks moved, causing him to fall. Plaintiff testified that he did not [*2]know of any staircase to access the scaffold, and that "all of us," including his supervisor, Darwin Tenesaca, climbed out through the window.

Tenesaca testified that he witnessed the accident. Both he and plaintiff were going to the scaffold to work, and Tenesaca told plaintiff to follow him to the stairs and informed plaintiff that he could not exit through the window. Rather than follow Tenesaca to the stairs, plaintiff "did not listen" and "went out the other way," through the window. Tenesaca contends that plaintiff did not make it onto the scaffold and fell back into the interior of the apartment (Tenesaca Tr. at 21-24 [NYSCEF Doc. 84]).

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 v Ceppos, 46 NY2d 223, 231 [1978]).

Plaintiff seeks partial summary judgment as to liability on his claim under Labor Law § 240(1), and defendants move to dismiss that claim. Defendants argue that the accident did not involve a significant elevation-related differential; and that plaintiff's failure to follow Tenesaca's instruction to use the stairs, rather than exiting through the window, was the sole proximate cause of the accident and/or rendered plaintiff a recalcitrant worker.^[FN1] Plaintiff argues that the fall flowed from the application of the force of gravity, and that he cannot be the sole proximate cause of the accident where the scaffold planks separated, the windowsill was not a proper safety device, and defendants did not provide him with a harness.

Labor Law § 240 (1) provides in relevant part that where there is the erection, demolition, repairing, or altering of a building, 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 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, [*3]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 met his prima facie burden under Labor Law § 240 (1). However, defendants have raised an issue of fact as to whether plaintiff's own conduct in disregarding his supervisor's instructions to use the stairwell, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of his accident (Padilla v Touro Coll. Univ. Sys., 204 AD3d 415, 416 [1st Dept 2022]; Batlle v NY Developers & Mgt., Inc., 193 AD3d 562 [1st Dept 2021]). Therefore, the parties' respective motions for summary judgment directed to the Labor Law § 240 (1) claim are both denied.

Defendants seek dismissal of plaintiff's claims for violation of Labor Law § 200 and common law negligence on the grounds that accident arose out of the means and method of plaintiff's work, over which they did not exercise supervisory control. Plaintiff withdraws his Labor Law § 200 and common law negligence claims against the Morris Defendants, but plaintiff argues, in opposition, that the accident arose out of a dangerous condition and that Notias exercised supervisory control over the work based on the contract.

Labor Law section 200 (1) "codifies the common law duty to maintain a safe workplace, but to recover under this provision, a plaintiff must show that an owner or general contractor exercised some supervisory control over the operation" (Toussaint v Port Authority of New York and New Jersey, 38 NY3d 89, 94 [2022]). "Claims for personal injury under the statute and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-44 [1st Dept 2012]). "Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it" (id. at 144). "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 control over the injury-producing work" (id.).

Plaintiff has failed to identify a specific dangerous condition, nor prove Notias' actual or constructive notice thereof. Therefore, summary judgment dismissing plaintiff's claims under Labor Law § 200 and for common law negligence is granted.

Labor Law § 241(6) "imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]). "[T]o state a claim under [Labor Law] section 241 (6), plaintiff must allege that defendant violated an Industrial Code regulation that sets forth a specific standard of conduct and is not simply a recitation of common-law safety principles" (Toussaint v Port Auth. of NY & N.J., 38 NY3d 89, 94 [2022] [internal quotation marks and citations omitted]). Labor Law § 241(6) requires that a plaintiff establish that a violation of a safety regulation was the proximate cause of the accident (Gonzalez v Stern's Dept. Stores, 211 AD2d 414, 415 [1st Dept 1995] [citation omitted]).

Plaintiff argues in opposition to defendants' motion that Industrial Code (12 NYCRR) §§ 23-1.5 (c) (3) and 23-5.1 (b), (e), and (g) support his Labor Law § 241 (6) claim (Shaw Aff. in Opp ¶ 99 [seq. 003] [NYSCEF Doc. 92]), thereby abandoning all other predicates not raised in his legal arguments (see 87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540, 542 [1st Dept 2014]). Moreover, in his bill of particulars, plaintiff alleges violations of Industrial Code §§ 23-1.5 and 23-5.1, without specifying the relevant subdivision(s) or subsection(s), resulting in plaintiff's abandonment of those predicates (Caminiti v Extell W. 57th St. LLC, 166 AD3d 440, 441 [1st Dept 2018]; McLean v Tishman Constr. Corp., 144 AD3d 534, 535 [1st Dept 2016]; Bill of Part. ¶ 15 [NYSCEF Doc. 83]). As there are no remaining predicates, defendants' motion to dismiss plaintiff's claim under Labor Law § 241 (6) is granted and such claim is dismissed.

The Court has considered parties' remaining contentions and finds them to be unavailing.

Accordingly, it is

ORDERED that the motion by plaintiff Julio Moulier for partial summary judgment as to liability on his claim under Labor Law § 240(1) is DENIED due to issues of fact (seq. no. 002); and it is further

ORDERED that the motion by defendants 2264 Morris Avenue Owner LLC, 2264 Morris Avenue Housing Development Fund Corp., 2264 Morris Avenue Partners, LLC, and Notias Construction INC. for summary judgment dismissing the complaint is GRANTED IN PART as directed to plaintiff's claims under Labor Law §§ 200, 240 (2), 240 (3), and 241 (6), and for common law negligence, and such claims are DISMISSED; and the motion is DENIED as direct to plaintiff's claim under Labor Law § 240 (1); 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.