Plaintiff Anita Palmer moves pursuant to CPLR 3212 for partial summary judgment as to liability on her claim under Labor Law § 200 asserted against defendant/third-party plaintiff C&R Construction/Ren Inc. ("C&R"), and on her common-law negligence claim asserted against defendants Guido Montali s/h/a Guido Montalil ("Montali") and Taylor Oil Co. ("Taylor"). Defendants separately oppose the motion.

On November 9, 2017, plaintiff was injured at a construction site located at 440 Washington Street, New York, New York, where she was employed as a flagger by non-party Marin Laborers. Defendant C&R served as the construction manager for the project.

On the day of the accident, Montali drove a Taylor fuel truck to the construction site to make an oil delivery. Plaintiff observed Montali throw a 150-foot-long hose over the fence. After the oil was delivered, Montali began to pull the hose back over the fence, while standing behind plaintiff. As he did so, the metal nozzle struck plaintiff in the head, injuring her.

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 her Labor Law § 200 claim against C&R. Labor Law 200 codifies the common-law duty of landowners and general contractors to maintain a safe workplace (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). Claims under this statute 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 (Winkler v Halmar Intl., LLC, 206 AD3d 458, 459 [1st Dept 2022]; Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-144 [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" (Cappabianca 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.).

Here, plaintiff has met her prima facie burden against C&R for summary judgment as to liability under Labor Law 200. C&R's witness testified that C&R's site supervisor coordinated both the schedule of fuel deliveries and the procedure for letting delivery trucks into the premises (Czyszkiewicz EBT Tr. at 28-29, 32, 42-43, 91 [NYSCEF Doc. 117]). In addition, when Taylor delivered fuel oil to the construction site, C&R's superintendent instructed Taylor's workers on how to make their deliveries (id. at 32, 37). Accordingly, C&R supervised and controlled the means and methods of the work that caused plaintiff's injuries (see Hammer v ACC Constr. Corp., 193 AD3d 455, 456 [1st Dept 2021] [denying summary judgment to [*2]defendant where superintendent "coordinated work areas"]).

In opposition, C&R raises a triable issue of material fact as to its conduct and that of Montali. Montali testified that he was frequently unable to access the construction site and that plaintiff, after speaking to someone from C&R, would tell him to throw the hose over the fence (Montali EBT Tr. at 17, 22-23 [NYSCEF Doc. 116]). He also testified that he had complained that this procedure was unsafe to C&R and to his dispatcher at Taylor (id. at 17, 25-26). By contrast, C&R's witness denies that C&R's superintendent directed Montali to throw the hose over the fence (Czyszkiewicz EBT Tr. at 52-55). Further, she denied that C&R had ever received any complaints from Taylor drivers about being able to access the job site (id. at 84-87). Plaintiff also testified that when she reported the accident to the C&R superintendent, he stated that C&R had instructed Montali to wait, and someone would let him into the construction site (Pl. EBT Tr. at 79-80 [NYSCEF Doc. 115]). Thus, there is a triable issue of fact as to whether C&R controlled Montali's work, such that C&R would be liable to plaintiff under Labor Law § 200, precluding judgment as a matter of law.

Plaintiff seeks partial summary judgment on her claim for common law negligence against Montali, arguing that he was negligent in throwing the hose over the fence. Plaintiff also moves on that claim as against Taylor, arguing that it is vicariously liable for Montali's negligence, and is independently negligent for failing to act on Montali's complaint about having to deliver oil by throwing the hose over the fence.

Specifically, plaintiff argues that Taylor, as a contractor undertaking to deliver fuel oil to the premises pursuant to an agreement with third-party defendant Griffin Dewatering LLC, is liable to her as a third-party, because Taylor and Montali "in failing to exercise reasonable care in the performance of [their] duties, launche[d] a force or instrument of harm" which injured plaintiff (Espinal v Melville Snow Contrs., 98 NY2d 136, 141 [2002]).

Plaintiff has established prima facie entitlement to summary judgment against Montali on the grounds that he failed to exercise reasonable care in performing his duties. It is undisputed that Montali launched a "force or instrument of harm" by pulling the hose over the fence with such speed that the nozzle struck plaintiff in the head. Taylor's accident report describes the cause of the accident as "unsafe work practices" and recommends that all fueling be done inside the construction site (Taylor Accident Report [NYSCEF Doc. 120]). Further, plaintiff has established prima facie that Taylor, as Montali's employer, is vicariously liable for Montali's acts carried out in the course of his duties (see generally Rivera v State, 34 NY3d 383, 389-390 [2019]). However, in opposition, Montali and Taylor raise issues of fact mirroring those discussed above, which overcome summary judgment.

Accordingly, it is hereby

ORDERED that the motion by plaintiff Anita Palmer for partial summary judgment as to liability on her claim under Labor Law § 200 asserted against defendant/third-party plaintiff C&R Construction/Ren Inc., and on her common-law negligence claim asserted against defendants Guido Montali s/h/a Guido Montalil and Taylor Oil Co. is DENIED due to issues of fact; and it is further

ORDERED that the 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.