Plaintiff Luis Aulla Yambay moves pursuant to CPLR § 3212 for partial summary judgment as to liability on his claims under Labor Law §§ 240 (1) and 241 (6) (motion seq. 005). Defendant/third-party plaintiff Palette Pro Painting & Renovation Inc. ("Palette Pro") opposes plaintiff's motion and separately moves for summary judgment dismissing all claims asserted against it (motion seq. 004). Plaintiff opposes, except as to dismissal of his Labor Law § 200 and common law negligence claims.

On June 10, 2020, plaintiff was injured while working on a renovation project located at 9 Whippoorwill Lane, Armonk, New York. According to plaintiff, he was standing on an elevated header beam, removing nails from the roof of a house, when the beam collapsed (Pl. EBT Tr. 8/9/22 [NYSCEF Doc. 64] at 68:16-21, 70:10-71:19). Plaintiff's boss, Fabio, provided a ladder, but on the day of the accident, Fabio stood on the beams and instructed plaintiff on how to do the work (id. at 56:10-57: 24; 66:22-67:2, 75:2-10).

Non-party Rodrigo Vasconcellos owns the general contractor, Palette Pro, as well as the subject home (Vasconcellos Aff. ¶¶ 1-2 [NYSCEF Doc. 42]). Palette Pro subcontracted with plaintiff's employer, third-party defendant JR One Construction, LLC, to perform demolition work (id. ¶ 4; Vasconcellos EBT Tr. at 22:21-22:3 [NYSCEF Doc. 50]).

Plaintiff asserts claims against Palette Pro under Labor Law §§ 200, 240, and 241 (6), and for common law negligence (Complaint [NYSCEF Doc. 43]).

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]).

By not opposing dismissal of the Labor Law § 200 and common law negligence claims, plaintiff is deemed to have abandoned the claims (DeStefano Aff. in Opp. ¶ 4 [seq. 004] [NYSCEF Doc. 75]; 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]). Therefore, dismissal of plaintiff's Labor Law § 200 and common law negligence claims is granted.

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]).

Defendant contends that plaintiff's failure to use the available ladder to perform his work was the sole proximate cause of his accident, and that plaintiff's version of events is inconsistent (Monaco Aff. in Opp ¶¶ 30, 44-46 [seq 005] [NYSCEF Doc. 74]). However, the uncontroverted evidence shows that plaintiff was following his supervisor's instructions at the time of the accident, and did not, on his own initiative, take a foolhardy risk, which resulted in injury (Fernandez v BBD Developers, LLC, 103 AD3d 554, 555-556 [1st Dept 2013]; see Velez v LSG 105 W. 28th, LLC, 236 AD3d 617, 618 [1st Dept 2025]; Asian v Flintlock Constr. Services, LLC, 225 AD3d 462, 462-463 [1st Dept 2024]; DaSilva v Toll GC LLC, 224 AD3d 540, 541 [1st Dept 2024]; Martinez v Kingston 541, LLC, 210 AD3d 556, 557 [1st Dept 2022]). Further, the Court is unpersuaded that plaintiff provided inconsistent statements about the circumstances of the accident (Ping Lin v 100 Wall St. Prop. L.L.C., 193 AD3d 650, 652 [2021]).

Therefore, that part of plaintiff's motion seeking summary judgment as to liability on his Labor Law § 240 (1) claim is granted, and that part of Palette Pro's motion seeking dismissal of 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 cites Industrial Code (12 NYCRR) §§ 23-1.16 (b) and 23-3.3 (c) and (l) to support his Labor Law § 241 (6) claim, thereby 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]). Although plaintiff has not alleged a violation of Industrial Code §§ 23-3.3 (c) and (l) as predicates for his Labor Law § 241 (6) claim, Palette Pro does not oppose on this basis. Here, plaintiff's failure to previously allege violations of Industrial Code §§ 23-3.3 (c) and (l) is not fatal, in the absence of unfair surprise or prejudice (Marte v Tishman Constr. Corp., 223 AD3d 527 [1st Dept 2024]; Simmons v City of New York, 165 AD3d 725, 729 [2d Dept 2018]).

Industrial Code § 23-1.16, which sets standards for safety belts, does not apply because plaintiff was not provided with a safety belt (Varona v Brooks Shopping Centers LLC, 151 AD3d 459, 460 [1st Dept 2017]; Dzieran v 1800 Boston Rd., LLC, 25 AD3d 336, 337 [1st Dept 2006]).Industrial Code § 23-3.3 (l), which sets the standards for ground or first floor-level demolition, does not apply to this accident.

Industrial Code § 23-3.3 (c) provides that:

"During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means."

Issues of fact exist as to whether Palette Pro violated Industrial Code § 23-3.3 (c), and if so, whether any such violation proximately caused plaintiff's injury (Leveron v Prana Growth Fund I, L.P., 181 AD3d 449, 450 [1st Dept 2020]; Garcia v 225 E. 57th St. Owners, Inc., 96 AD3d 88, 89-92 [1st Dept 2012]). Also, Palette Pro's sole proximate cause argument is rejected for the reasons discussed supra. Therefore, plaintiff's motion for summary judgment as to liability on his Labor Law § 241 (6) claim is denied and Palette Pro's motion for summary judgment dismissing such claim is denied insofar as predicated on Industrial Code §§ 23-3.3 (c) and (l), and is otherwise granted.

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment as to liability on his claims under Labor Law §§ 240 (1) and 241 (6) is GRANTED IN PART, insofar as the motion is GRANTED as directed to plaintiff's Labor Law § 240 (1) claim and DENIED as directed to his Labor Law § 241 (6) claim; and it is further

ORDERED that the motion by defendant Palette Pro Painting & Renovation Inc. for Summary judgment dismissing the complaint is GRANTED IN PART as follows:

•Summary judgment dismissing plaintiff's claims under Labor Law § 200 and common law negligence is GRANTED without opposition, and such claims are DISMISSED,

•Summary judgment dismissing plaintiff's claim under Labor Law § 241 (6) is DENIED only as predicated on a violation of Industrial Code §§ 23-3.3 (c), and is GRANTED as to all other predicates; 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.