Plaintiff Noelvi Cortorreal moves pursuant to CPLR 3212 for partial summary judgment as to liability on his claim under Labor Law § 240 (1) asserted against defendants W&HM Realty Partners Co., LLC ("W&HM Realty"), William Moses Co. Inc. ("William Moses"), and Empire NY Installations Inc. ("Empire"). W&HM Realty, William Moses, and Empire separately oppose.

On September 11, 2020, plaintiff was injured while working at a construction site at 837 7th Avenue, New York, New York. Plaintiff was working as a helper for third third-party defendant RHG Manpower Inc. ("RHG"), replacing wooden planks on a sidewalk bridge. W&HM Realty owned the premises, and Empire was the scaffolding contractor. William Moses, which sold the premises to W&HM Realty on or about June 20, 1997 (see Correction Deed [NYSCEF Doc. 229]), admits it was the managing agent for the premises, and that maintenance and repairs were performed there on its behalf (Answer to Second Am. Compl. at ¶¶ 6, 7, 10 [NYSCEF Doc. 220]).

According to plaintiff, he was walking on a sidewalk bridge when a rotten plank collapsed and he fell into a 3-to-4-foot-wide opening, up to his chest (Cortorreal Tr. at 41:12-42:22, 49:6-15, 83:7-13 [NYSCEF Doc. 196]). Plaintiff's coworkers, except for Nelson Matteo, witnessed the accident (id. at 44:17-20). One of plaintiff's coworkers helped him out of the hole (id. at 44:24-25). Plaintiff testified that he took a photograph of the accident location about 10 to [*2]15 minutes after the accident, but that the hole in the photograph is covered by green plywood (id. at 45:14-47:7; Photo [NYSCEF Doc. 197]).

John Kalles, a supervisor for Empire, testified that when erecting the sidewalk bridge, Empire places steel lamina on top of the junior beams, and then covers the junior beams with wooden planks (Kalles Tr. at 61:23-64:13 [NYSCEF Doc. 202]). Kalles explained that it would be "difficult" for someone to fall through a wooden plank, due to the underlying laminate layer:

Q. If the planks would get wet and they would rot out, they would become unsafe, right?

A. Yes.

Q. And if you step on it, they can just break or collapse because they're rotted out?

A. No, they don't break because they have laminate and holding the plank. It is a little difficult to fall inside [id. at 37:16-25].

Empire's witness, Maria Giakoumatos, testified that it was "impossible" for plaintiff to fall through a wooden scaffold plank, because there is an underlayer of corrugated sheet metal supporting the planks (Giakoumatos Tr. at 28 [NYSCEF Doc. 28]).

An incident report prepared by Kalles on the day in question provides that "[t]here was no accident," and describes that plaintiff was "found sitting on the sidewalk bridge platform" with no injuries and refused assistance (Incident Report [NYSCEF Doc. 225]).

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 § 240 (1) provides in relevant part that where there is 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, 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]).

Defendants argue that (1) plaintiff was performing routine maintenance, and not covered work, at the time of the accident; (2) plaintiff was provided all necessary equipment to perform his work; and (3) the accident could not have occurred in the manner alleged (NYSCEF Doc. 227 [Mason Memo of Law in Opp]; NYSCEF Doc. 210 [Messina Memo of Law in Opp]). W&HM and William Moses rely in part on signed, unsworn statements from plaintiff's co-workers, describing that plaintiff simply tripped and fell on the surface of the scaffold plank and did not fall through a plank, as alleged (Lopez, Zuñiga, Santos, and Mateo Statements, Ex. B [NYSCEF Doc. 53]). The Court can consider these hearsay statements in opposition to summary judgment, together with all other proof offered in opposition (Gonzalez v 1225 Ogden Deli Grocery Corp., 158 AD3d 582, 584 [1st Dept 2018]).

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]). However, through the testimony of Kalles and Giakoumatos, as well as the accident report, and the statements from plaintiff's co-workers reflecting that plaintiff simply tripped on the surface of the scaffold, defendants raise a triable issue of fact as to whether plaintiff's injuries were proximately caused by a violation of Labor Law 240 (1) (see Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 99 [2015][Labor Law 240(1) liability does not arise from an ordinary tripping or slipping hazard]; see also Healy v Trinity Hudson Holdings, — AD3d —, 2025 NY Slip Op 06278, * [1st Dept Nov. 18, 2025][no elevation-related risk]; Santiago v Genting, 241 AD3d 1097, 1099 [1st Dept 2025][accident did not flow from application of force of gravity]).

Accordingly, it is hereby

ORDERED, that plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240 (1) claim 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.

This constitutes the decision and order of the Court.