The following e-filed documents, listed by NYSCEF document number (Motion 002) 19-41 were read on this motion to/for JUDGMENT - SUMMARY.

Plaintiff Dany Adames moves pursuant to CPLR § 3212 for partial summary judgment as to liability on his Labor Law § 240(1) claim asserted against defendants. Defendants oppose the motion.

On June 30, 2016, plaintiff was injured while working at a construction site at Congregation Kehilath Jeshurun, located at 117 East 85th Street, New York, New York. Plaintiff was standing at the top of the scaffold, when the unsecured plank on which his left foot was planted suddenly slipped and moved forward, causing him to fall approximately five feet before he was able to stop his fall and be helped back onto the scaffold. Defendant Congregation Kehilath Jeshurun ("CKJ") owned the premises, and defendant ZDG LLC ("ZDG") was the general contractor who subcontracted plaintiff's employer, third-party defendant/second third-party defendant S&E Bridge and Scaffold, LLC ("S&E"), to erect the pipe scaffold.^[FN1] Plaintiff was S&E's foreman assigned to the project.

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 [*2]existence of a triable issue of material fact (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]).

Labor Law § 240(1) provides in relevant part that where a building is being erected, 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, 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]).

Defendants do not contest that plaintiff fell from an elevated scaffold, after a plank, which was not tied off, shifted, causing an opening. Further, plaintiff stated that although he wore a harness and his co-workers were using six-foot "lines," plaintiff was building a section of scaffolding across a long area, and there were no points at which he could attach his harness, nor was there a long enough line (or lanyard) he could use (Pl's EBT Tr. at 62-64, 99, 107 [NYSCEF Doc. 27]; Pl's EBT Tr. at 144-145, 152-154 [NYSCEF Doc. 28]). Plaintiff has met his prima facie burden under Labor Law § 240 (1) (Wilson v AC 320 Hotel Partners LLC, 238 AD3d 581, 582 [1st Dept 2025]; Carpentieri v 309 Fifth Ave., LLC, 180 AD3d 571, 571-572 [1st Dept 2020]; Keena v Gucci Shops, Inc., 300 AD2d 82, 82-83 [1st Dept 2002]; Correia v Professional Data Mgt., Inc., 259 AD2d 60, 63 [1st Dept 1999]).

In opposition, defendants contend there are issues of fact as to whether plaintiff was the sole proximate cause of his accident. Plaintiff's former General Foreman, Gregg Luchese, affirmed that he instructed plaintiff to make sure all workers, including himself, needed to tie themselves off with their harnesses and lanyards to the scaffold during the project (Luchese Aff. ¶ 5 [NYSCEF Doc. 39]). Luchese further affirmed that "[t]here were several available methods for [plaintiff] to tie himself off at the site and on the scaffolding, he was working on[, and a]ll equipment allowing him to do so were provided to him on this site" (id.). Luchese additionally stated that plaintiff needed to tie off the boards he was standing on, and that there was wire available to do so (id. ¶ 7). As foreman, plaintiff was responsible for safety decisions, including the decision to wear a harness and tie off his lanyard while working, and tying off boards (id. ¶¶ 9-11). Damian Farez, then a laborer on plaintiff's crew, affirmed that plaintiff was standing on the top level of the scaffold, receiving planks from another worker, which plaintiff would hand to Farez to create the top level of the platform (Farez Aff. ¶¶ 3, 7 [NYSCEF Doc. 40]). Farez noted that plaintiff, as the project foreman, "was charged with, and made the decision not to attach a lanyard to a portion of the scaffold platform while he was working on the top of the platform" (id. ¶ 11). Farez does not indicate whether his harness or lanyard was attached at the time of the accident, or whether it was possible for plaintiff to attach his own harness or lanyard. Farez further affirmed that plaintiff "was charged with, and made the decision, not to tie down the two planks he was standing on" at the time of the accident (id. at ¶ 12).

Here, there is evidence that plaintiff, a foreman, was instructed to and expected to use a harness, and/or lanyard while working on the scaffolding, and failed to do so (see Gallagher v New York Post, 14 NY3d 83, 88-89 [2010]; cf. Agurto v One Boerum Dev. Partners LLC, 221 AD3d 442, 443 [1st Dept 2023]; Rubio v New York Proton Mgt., LLC, 192 AD3d 438, 439 [1st Dept 2021]). There is further evidence that plaintiff was instructed and expected to tie off scaffolding planks before standing on them. On this record, defendants raise issues of fact as to whether plaintiff was the sole proximate cause of his accident by failing to tie off the planks before stepping on them, and by failing to attach his harness or lanyard while building the scaffold (Radeljic v Certified of NY, Inc., 161 AD3d 588, 589 [1st Dept 2018]; cf. Ruiz v BOP 245 Park LLC, 231 AD3d 683, 684 [1st Dept 2024]; Lemache v Elk Manhasset LLC, 222 AD3d 591, 592 [1st Dept 2023]). Accordingly, it is hereby

ORDERED, that plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240(1) claim, asserted against defendants Congregation Kehilath Jeshurun and ZDG LLC, is DENIED; and it is further

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