Plaintiff MD Rajab Ali moves for partial summary judgment against 645 Barretto Street Housing Development Fund Corporation ("645 Barretto") and Builders-R-Us Corp. ("Builders") under Labor Law §§ 240 (1) and 241 (6), the latter as predicated on Industrial Code § 23-1.16 (b) (mot. seq. 005). Defendants 645 Barretto, Finger Management Corp. ("Finger Management"), and Builders oppose the motion.

Builders moves for summary judgment dismissing plaintiff's claims under Labor Law §§ 200, 240 (1) and 241 (6), and for common law negligence (mot. seq. 004). Plaintiffs oppose, except as to dismissal of the common law negligence claim.

Builders separately moves for summary judgment against 645 Barretto on its cross-claim [*2]for contractual indemnification and "Additional Insured coverage," which the Court will treat as for summary judgment on its third cross-claim for breach of contract for failure to procure insurance (mot. seq. 003). 645 Barretto opposes.

According to plaintiff, on November 2, 2019, he was injured while performing demolition work at a project located at 645 Barretto Street, Bronx, New York. The building was owned by 645 Barretto, which hired plaintiff's non-party employer Mowla Construction Corp. ("Mowla") to perform demolition work. Builders was the general contractor and Finger Management was the property manager.

At the time of the accident, plaintiff was standing on a six-foot scaffold above the roof, using a jackhammer to demolish a brick wall which was part of the roof structure. Plaintiff's supervisor, Rafiqul Islam Mizan, had instructed plaintiff to clear or clean the wall. As plaintiff was working, the wooden planks in the scaffold separated and he fell through the hole onto the roof. Plaintiff had a waist harness but forgot the rope; Mizan instructed plaintiff to work without the rope.

645 Barretto hired Builders to perform "weatherization" work, including installing a new roof, restoring the masonry façade, and changing the boiler and windows (Stefanopoulos EBT Tr. at 12 [NYSCEF Doc. 126]; Barretto-Builders Contract at 36-48 [NYSCEF Doc. 152]; Change Work Order [NYSCEF Doc. 158]). While Builders was preparing to install pipe scaffolding, Finger Management hired Mowla to conduct emergency repair work to the roof bulkhead, in response to a reported leak (Mowla Contract [NYSCEF Doc. 107]; Bavaro EBT Tr. at 14-15 [NYSCEF Doc. 125]). Builders had not conducted any work on the roof at the time of the accident; did not retain Mowla to perform work at the accident location; did not have a scaffold or jackhammer on the roof at the time of the accident; and issued a credit to 645 Barretto as Mowla's work was originally part of its own contract (Stefanopoulos EBT Tr. at 21, 27 49-51, 53; Change Work Order [NYSCEF Doc. 158]). According to Finger Management's witness, the work contracted to Builders had nothing to do with the leak (Bavaro EBT Tr. at 14).

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 his Labor Law § 240 (1) claim, which Builders seeks to dismiss. In opposition to plaintiff's motion, 645 Barretto and Finger Management contend that the scaffold was in good working order, and that plaintiff was the sole proximate cause of his accident by applying "heavy pressure" to the jackhammer. [*3]Builders argues that Mowla's work was outside the scope of its own work as general contractor and, therefore, Builders is not statutorily liable under the Labor Law.

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

"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, 402-03 [1st Dept 2013]; see Biaca-Neto v Boston Road II Housing Dev. Fund Corp., 34 NY3d 1166, 1167-1168 [2020]).

Plaintiff's testimony established his prima facie entitlement to partial summary judgment under Labor Law § 240 (1) as against 645 Barretto and Finger Management. Plaintiff was not required to show that the scaffold was defective (Cafisi v L&L Holding Co., LLC, 219 AD3d 1215, 1216 [1st Dept 2023]). Defendants do not raise an issue of fact as to sole proximate cause in light of plaintiff's unrebutted testimony that he was instructed by his supervisor to clean the wall and work without a rope/lanyard, and was provided a jackhammer for the task (Asian v Flintlock Constr. Services, LLC, 225 AD3d 462, 462-463 [1st Dept 2024]; see Biaca-Neto, 34 NY3d at 1167-1168). At most, plaintiff's decision to use the jackhammer on the scaffold amounts only to comparative negligence, which is not a defense to Labor Law § 240 (1) liability (Vines v Judlau Contracting, Inc., 238 AD3d 557 [1st Dept 2025]; Dolcimascolo v 701 7th Prop. Owner, LLC, 232 AD3d 538, 539 [1st Dept 2024]; Mayorquin v Carriage House Owner's Corp., 202 AD3d 541, 542 [1st Dept 2022]).

Concerning Builders, a general contractor is entitled to dismissal of Labor Law claims asserted against it, where it can show that plaintiff's work at the time of the accident was outside the scope of the general contractor's contract (Ortiz v Igby Huntlaw LLC, 146 AD3d 682, 683 [1st Dept 2017], lv denied 29 NY3d 919 [2017]; Balthazar v Full Circle Constr. Corp., 268 [*4]AD2d 96, 98 [1st Dept 2000]). Liability under Labor Law §§ 240 and 241 is premised on an owner's and general contractor's right to control the work, irrespective of whether such control is exercised (Butt v Bovis Lend Lease LMB, Inc., 47 AD3d 338, 341 [1st Dept 2007]). Here, plaintiff has met his prima facie burden as to Builders, which in turn has raised an issue of fact as to whether, under its contract with 645 Barretto and the change order, it had the authority to control Mowla's work.

Therefore, plaintiff's motion under Labor Law 240 (1) is granted only as directed to 645 Barretto; that part of plaintiff's motion directed to Builders, and Builder's motion seeking dismissal of plaintiff's Labor Law 240 (1) claim, are 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 cites Industrial Code (12 NYCRR) § 23-1.16 (b) to support his Labor Law § 241(6) claim, therefore, abandoning all other predicates not raised in his legal arguments (see 87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540, 542 [1st Dept 2014]).

Industrial Code § 23-1.16 (b) provides:

"(b) Every approved safety belt or harness provided or furnished to an employee for his personal safety shall be used by such employee in the performance of his work whenever required by this Part (rule) and whenever so directed by his employer. At all times during use such approved safety belt or harness shall be properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline. Such attachments shall be so arranged that if the user should fall such fall shall not exceed five feet."

While plaintiff was provided with a safety harness, he was not provided with a line or proper place to tie off his harness (see Anderson v MSG Holdings, L.P., 146 AD3d 401, 405 [1st Dept 2017]). Therefore, plaintiff is entitled to summary judgment as to liability on his Labor Law § 241 (6) claim as against 645 Barretto only. Due to the issues of fact discussed supra, that part of plaintiff's motion directed to Builders, and Builders' motion seeking dismissal of the Labor Law § 241 (6) claim, are both denied.

Builders seeks dismissal of plaintiff's Labor Law § 200 claim and common law negligence claims. Labor Law § 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 [*5]contractor exercised some supervisory control over the operation" (Toussaint v Port Auth. of NY & N.J.,, 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, 143-144 [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" (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 supervisory control over the injury-producing work" (id.).

By not opposing dismissal of the common law negligence claim, plaintiff is deemed to have abandoned that claim, which is dismissed (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 [2016], lv dismissed 28 NY3d 1069 [2016], cert denied 583 US 842 [2017]).

As to Labor Law § 200, the accident arose out of the manner and means of the work. Builders has shown that it did not exercise supervisory control over the injury-producing work, and plaintiff fails to raise an issue of fact. Therefore, dismissal of plaintiff's Labor Law § 200 claim against Builders is granted.

In support of its motion, Builders contends that ¶ 6.1.4 of its contract with 645 Barretto applies, since 645 Barretto directly hired Mowla to perform the work. 645 Barretto was therefore required to indemnify Builders for Mowla's work (Barretto-Builders Contract ¶¶ 6.1.4, 3.18 [NYSCEF Doc. 152]).

645 Barretto argues that the ¶ 3.18 indemnification provision applies, reasoning that the accident arose out of Builders' negligent omissions and misrepresentations under the Contract, specifically that Builders was negligent in failing to properly examine the bulkhead and to timely perform its contractual obligations (Baxter Memo of Law in Opp. at 7 [NYSCEF Doc. 135]). Barretto further contends that Section (1) (a) of the Owner's Rider requires that the "conflict" between paragraphs 3.18 and 6.1.4 be resolved in favor of the 645 Barretto.

Construing the contract according to the plain meaning of its terms (Brad H. v City of New York, 17 NY3d 180, 185-86 [2011]), Builders meets its prima facie burden by demonstrating that 645 Barretto directly hired Mowla, plaintiff's employer, to perform the bulkhead repair work. In response, 645 Barretto's unsupported allegations that Builders' performance under the contract was negligent are insufficient to overcome summary judgment. Thus, summary judgment is granted to Builders on its contractual indemnification claim against 645 Barretto.

"A party moving for summary judgment on its claim for failure to procure insurance meets its prima facie burden by establishing that a contract provision requiring the procurement of insurance was not complied with" (Benedetto v Hyatt Corp., 203 AD3d 505, 506 [1st Dept 2022]). "The burden then shifts to the opposing party, who may raise an issue of fact by tendering the procured insurance policy in opposition to the motion" (id.). "[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the [*6]plain meaning of its terms" (Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 559-560 [2014]).

Builders has met its burden on its motion by submitting the contract with 645 Barretto, which requires that when 645 Barretto directly hires a contractor to perform work related to the project at issue, 645 Barretto will procure insurance covering the work, and to name Builders as an additional insured (645 Barretto-Builders Contract at ¶ 6.1.4, Article 11, Exhibit 3). 645 Barretto does not provide proof of an insurance policy covering Builders, and its argument that ¶ 6.1.4 is not triggered or is in conflict with another provision of the contract is rejected for the reasons discussed supra. Therefore, Builder's motion for summary judgment on its breach of contract claim is granted.

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment as to liability under Labor Law §§ 240 (1) and 241 (6) is GRANTED IN PART only against defendant 645 Barretto Street Housing Development Fund Corporation, and is DENIED against defendant Builders-R-US Corp. (mot. seq. 005); and it is further

ORDERED that the motion by defendant Builders-R-Us Corp. for summary judgment dismissing plaintiff's claims is GRANTED IN PART, only as directed to plaintiff's Labor Law § 200 and common law negligence claims, which are DISMISSED, and the motion is DENIED as directed to plaintiff's claims under Labor Law §§ 240 (1) and 241 (6); and it is further

ORDERED that the motion by defendant Builders-R-Us Corp. for summary judgment on its cross-claims for contractual indemnification and breach of contract against 645 Barretto Street Housing Development Fund Corporation is GRANTED (mot. seq. 003); 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.