In this action to recover damages for personal injury arising out of an alleged construction accident, plaintiff Dennis McCloskey timely moves pursuant to CPLR 3212 for partial summary judgment as to liability on his Labor Law § 241 (6) claim, and to dismiss defendants' affirmative defenses of comparative fault and culpable conduct. Defendants oppose the motion, arguing that issues of fact preclude summary judgment in plaintiff's favor.

On November 14, 2018, plaintiff was injured while working on a construction site at LaGuardia Airport. It is undisputed that defendants Port Authority of New York and New Jersey [*2]and LaGuardia Gateway Partners, LLC (collectively "Port Authority") are the owners of the property, and that defendants Skanska USA Building Inc., Skanska USA Civil Northeast Inc., Walsh Construction Company II, LLC, Skanska Walsh Joint Venture (collectively "Skanska") served as general contractor. Skanska hired plaintiff's non-party employer, Welsbach Electric ("Welsbach"), to perform certain electrical work at the project.

On the day of the accident, plaintiff was completing a night shift spent cable pulling in manholes (Pl. EBT Tr. at 24, 28-30, 34 [NYSCEF Doc. 115]). He was working in an area of the airport known as the West Annex, where Skanska was building a substation (id. at 26-27, 34). He had been previously working inside a manhole and he had gone to his truck to put away some items as the shift was wrapping up (id. at 34, 36-37). The area was poorly lit, and he had not walked through the area previously that night (id. at 36). Plaintiff testified that he saw a piece of Welsbach's equipment that needed to be put away and walked toward it through an area where other construction work had previously been done (id. at 38, 39). As he was passing through the area, he "stepped on something" and fell forward, feeling a pop in his arm (id. at 40). When he looked around, there was wood all over the area; plaintiff stated that it looked as though cut pieces of wood had been scattered around the area, and he knew he had stepped on one of them (id. at 41).

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]).

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 alleges a violation of Industrial Code 12 NYCRR 23-1.7(e)(2), which provides that "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed." A "working area," for purposes of the Industrial Code, is any physically defined area "that workers routinely cross[] to access equipment and materials" (Castaldo v F.J. Sciame Constr. Co. Inc., 222 AD3d 579, 579 [*3][1st Dept 2023]). Plaintiff's undisputed testimony is that he was clearing his company's equipment from a working area when he tripped over construction debris left behind by another company. Defendants do not dispute that Skanska was responsible for maintaining the work site in a clean and orderly manner (Skanska Contract §§ 10.11 [b], 16.4 [NYSCEF Doc. 113]) or that Skanska was responsible for the acts and omissions of its subcontractors (id., § 12.1 [b]).

Defendants argue that the part of the construction area where plaintiff fell should not be considered a "working area" because plaintiff has not established that he had to pass through the area to do his work. Defendants cite no authority limiting the definition of a working area in this manner. Further, as set forth above, plaintiff's uncorroborated testimony is that he was walking through the area where he fell to retrieve a piece of equipment belonging to his company (Pl. EBT Tr. at 38-39). Defendants speculate further as to whether the specific area was currently undergoing construction, or indeed whether plaintiff's accident happened, but they offer no evidence to rebut plaintiff's testimony on these matters. Moreover, the fact that plaintiff's accident happened without witnesses does not preclude summary judgment in plaintiff's favor (see Rivera v 712 Fifth Ave. Owner LP, 229 AD3d 401, 402 [1st Dept 2024]).

Accordingly, that part of plaintiff's motion for partial summary judgment as to liability on his Labor Law § 241 (6) claim is granted.

Plaintiff seeks summary judgment dismissing defendants' affirmative defenses to the extent that they allege culpable conduct or comparative fault by plaintiff. When moving to dismiss an affirmative defense, "the plaintiff bears the heavy burden of showing that the defense is without merit as a matter of law" (Alpha Capital Anstalt v. General Biotechnology Corp., 191 AD3d 515, 516 [1st Dept 2021][internal quotation omitted]). An affirmative defense should not be dismissed where there remain triable issues of fact (Granite State Ins. Co. v. Transatlantic Reins. Co., 132 AD3d 479, 481 [1st Dept 2015]; 534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick, 90 AD3d 541, 542 [1st Dept 2011]). Plaintiff has established prima facie entitlement to summary judgment dismissing these affirmative defenses by testifying that he was walking as normally through a poorly lit area when he tripped over a piece of wood that he could not identify without a closer look (Pl. EBT Tr. at 36, 40-41).

Defendants argue that the pieces of wood on the ground were open and obvious, and therefore there is an issue of fact as to whether plaintiff should have avoided them. Defendants rely on plaintiff's testimony regarding a photograph that plaintiff discussed at his deposition. While plaintiff testified that the photograph accurately depicted the area in which he fell, he also testified that it was taken some time after his accident (Pl. EBT Tr. at 53-55). The photograph appears well lit (NYSCEF Doc. 125), in contrast to plaintiff's testimony that at the time of the accident the area was poorly lit (Pl. EBT Tr. at 36). Accordingly, the photograph does not raise an issue of fact requiring trial, and defendants offer no other evidence in support of their affirmative defenses. That part of plaintiff's motion to dismiss defendants' affirmative defenses of culpable conduct and/or comparative fault is, therefore, granted.

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment as to liability on his Labor law 241 (6) claim against defendants, and to dismiss defendants' affirmative defenses of culpable conduct or comparative fault, is GRANTED in its entirety; 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.