Plaintiff Christian Vasquez moves pursuant to CPLR 3212 for partial summary judgment as to liability on his Labor Law §§ 240 (1) and 241 (6) claims asserted against defendant Manhattan College, and for dismissal of defendant's affirmative defense of comparative negligence (mot. seq. 004). Manhattan College opposes.

Defendant moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint, including claims for violation of Labor Law §§ 240 (1), 241 (6) and 200, for common law negligence, and for respondeat superior and res ipsa loquitur (mot. seq. 005). Plaintiff opposes only the dismissal of his claims under Labor Law §§ 240 (1), 241 (6) and 200.

On June 1, 2019, plaintiff was injured while working in the basement of Leo Hall on Manhattan College's campus in the Bronx, New York. Plaintiff was employed by former third-party defendant Environmental Maintenance Contractors Inc. ("EMC"), which was retained by [*2]Manhattan College for an asbestos abatement project. At the time of the accident, plaintiff was standing on a closed six-foot A-frame ladder, which he had leaned against a wall to reach two holes from which he and his colleague, Lucio Rodriguez ("Rodriguez"), had removed asbestos. Plaintiff was placing foam covers over the holes when the ladder shifted beneath him, causing him to fall and sustain injuries.

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 does not oppose that part of defendant's motion seeking dismissal of his claims for common law negligence, respondeat superior, and res ipsa loquitur. Those claims are accordingly dismissed as abandoned (see Gamez v Sandy Clarkson LLC, 221 AD3d 453, 454-455 [1st Dept 2023]; Martin Assoc., Inc. v Illinois Natl. Ins. Co., 188 AD3d 572, 573 [1st Dept 2020]; Saidin v Negron, 136 AD3d 458, 459 [1st Dept 2016], lv dismissed 28 NY3d 1069 [2016], cert denied 583 US 842 [2017]).

Plaintiff moves for partial summary judgment as to liability on his Labor Law 240 (1) claim, and Manhattan College seeks summary judgment dismissing that claim.

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 [*3]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, 402-403 [1st Dept 2013]).

Here, plaintiff has met his prima facie burden under Labor Law 240 (1). He testified that he was working atop a closed A-frame ladder leaning against a wall when the ladder shifted beneath him, causing him to fall (Pl. EBT Tr. at 150, 154-155 [NYSCEF Doc. 154]; see Plaku v 1622 Van Buren LLC, 198 AD3d 431 [1st Dept 2021] [granting summary judgment to plaintiff where "a closed, unsecured A-frame ladder—upon which he stood to cast debris into a dumpster—shifted from its propped position against the dumpster and caused him to lose his balance and suffer an injurious fall"]). Defendant's argument that plaintiff was the sole proximate cause of his injury is unavailing, because "if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it" (Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003]). Moreover, "[a] worker's decision to use an A—frame ladder in the closed position is not a per se reason to declare him the sole proximate cause of an accident" (Noor v City of New York, 130 AD3d 536, 540 [1st Dept 2015], lv dismissed 27 NY3d 975 [2016]).

Defendant submits a report of its expert, professional engineer John T. Whitty, who opines that plaintiff's use of the ladder in the closed position violates standards of the Occupational Safety and Health Administration (OSHA) (Whitty Aff. ¶¶ 13-16, 23[g][NYSCEF Doc. 185]). However, compliance or lack thereof with industry standards does not determine the inquiry under Labor Law 240 (1) (see O'Brien v Port Auth. of New York and New Jersey, 29 NY3d 27, 34 [2017]).

Defendant's argument that plaintiff was a "recalcitrant worker" also fails. The recalcitrant worker defense "requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer" (Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]). Defendant argues that plaintiff disregarded the instruction of his supervisor, Joffre Marin, not to use the ladder for the job, and that he failed to wait for Rodriguez or Marin to hold the ladder for him. However, a coworker is not a safety device under the statute, and plaintiff's failure to wait for Rodriguz or Marin to hold the ladder for him goes only to plaintiff's possible comparative negligence, which is not a defense to Labor Law 240 (1) liability (Noor, 130 AD3d at 541). Similarly, plaintiff's failure to follow Marin's instruction not to use the ladder is, at most, evidence of comparative negligence (see Plaku, 198 AD3d at 432; see also Vasquez v Cohen Bros. Realty Corp., 105 AD3d 595, 598 [1st Dept 2013] ["an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device"]). The Court notes that neither Rodriguez nor Marin testified that Marin had given such an instruction (Marin EBT Tr. at 91:5-9 [NYSCEF Doc. 156]; Rodriguez EBT Tr. at 100:10-17 [NYSCEF Doc. 157]).

Accordingly, that part of plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240 (1) claim is granted, and that part of defendant's motion to dismiss that claim is denied.

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 only moves on, and contests the dismissal of, the predicate of Industrial Code 12 NYCRR § 23-1.21 (b)(3)(i). All other predicates not raised in plaintiff's legal arguments are therefore dismissed as abandoned (87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540, 542 [1st Dept 2014]; see Ver. Bill of Part. at ¶ 6 [NYSCEF Doc. 153]).

Industrial Code 12 NYCRR § 23-1.21 (b)(3)(i) provides that "[a]ll ladders shall be maintained in good condition. A ladder shall not be used if . . . it has a broken member or part." The record does not reflect that the subject ladder had a broken member or part. Plaintiff argues that the fact that the ladder fell is sufficient to establish a violation of this provision, but the cases he cites are inapposite. In Soodin v Fragakis, the Court found that the ladder was "old, weak, and shaky" (91 AD3d 535 [1st Dept 2012]). Similarly, in Kozlowski v Ripin, the Court held that "[t]he evidence that the bolt was missing from the ladder's stabilizing bar after the ladder fell established, prima facie, that the bolt was either missing, damaged, or loose when the plaintiff used the ladder" (60 AD3d 638, 639 [2d Dept 2009]). Here, by contrast, plaintiff testified that he could not remember the subject ladder having any problems (Pl. EBT Tr. at 147:15-22).

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

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.).

Here, defendant has established prima facie entitlement to dismissal of these claims. [*4]Plaintiff's claim arises from the means and methods of his work, rather than a dangerous condition on the premises. Marin, of EMC, is the only person who supervised plaintiff's work (Pl. EBT Tr. at 121-122, 135, 148; Rodriguez EBT Tr. at 74-77 [NYSCEF Doc. 157]). Manhattan College did not have employees present at the construction site, and did not supervise or control EMC's work (Ryan EBT Tr. at 96-97, 137-140 [NYSCEF Doc. 155]; Rodriguez EBT Tr. at 78). Moreover, Rodriguez testified that the subject ladder belonged to EMC (Rodriguez EBT Tr. at 87), and the record indicates that defendant's ladders were under lock and key (Ryan EBT Tr. at 92-93).

In opposition, plaintiff fails to raise a triable issue of fact. Plaintiff testified that the ladder came from Manhattan College, but he also testified that Marin found the ladder in the basement (Pl. EBT Tr. at 140). He also testified that EMC had provided ladders for previous jobs he had worked on (id. at 141). Marin testified that EMC brought its own ladders to the basement (Marin EBT Tr. at 78-79 [NYSCEF Doc. 156]). Moreover, plaintiff testified that the ladder did not have an EMC label on it and was otherwise unmarked (Pl. EBT Tr. at 140). In contrast, Ryan testified that defendant's ladders were all stamped with either "MC physical plant" or "physical plant" (Ryan EBT Tr. at 94). Plaintiff's testimony is, therefore, speculative at best.

Accordingly, that part of defendant's motion to dismiss the Labor Law § 200 and common law negligence claims is granted.

Finally, defendant's affirmative defense of comparative negligence must be denied. Plaintiff's only remaining claim against defendant is Labor Law § 240 (1), to which comparative negligence is not a valid defense (see Mayorquin v Carriage House Owner's Corp., 202 AD3d 541, 542 [1st Dept 2022]). Accordingly, that part of plaintiff's motion to dismiss defendant's affirmative defense of comparative negligence is granted.

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment is GRANTED IN PART to the extent of awarding summary judgment as to liability on plaintiff's claim under Labor Law § 240 (1) and dismissing defendant Manhattan College's affirmative defense of comparative negligence, and the motion is otherwise DENIED; and it is further

ORDERED that motion by defendant Manhattan College for summary judgment dismissing plaintiff's claims is GRANTED IN PART to the extent of dismissing plaintiff's claims under Labor Law §§ 200 and 241 (6), and for common-law negligence, respondeat superior, and res ipsa loquitur, and the motion is otherwise 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.