ADDITIONAL CASES Kew Gardens Hills, LLC, A & E Real Estate Holdings, LLC, A & E Real Estate Management, Inc., and JW Development Holdings, LLC, Third-Party Plaintiffs, v. Alpine Construction & Renovation Corp., Third-Party Defendant. Motion sequence numbers 003 and 004 are consolidated for disposition. In this action arising out of a construction site accident, third-party defendant Alpine Construction & Renovation Corp., Inc. (Alpine) moves, pursuant to CPLR 3212, for: (1) summary judgment dismissing the complaint; and (2) summary judgment dismissing the third-party complaint (motion sequence number 003). Defendants/third-party plaintiffs Kew Gardens Hills, LLC, A & E Real Estate Holdings, LLC, A & E Real Estate Management, Inc., and JW Development Holdings, LLC move, pursuant to CPLR 3212, for summary judgment on their third-party claims for common-law indemnification, contractual indemnification, and breach of contract for failure to procure insurance against Alpine. In addition, defendants/third-party plaintiffs seek summary judgment dismissing Alpine’s counterclaims asserted against them (motion sequence number 004). Plaintiff Jose Gamez cross-moves, pursuant to CPLR 3212, for partial summary judgment on the issue of liability under Labor Law §§240 (1) and 241 (6) as against defendants/third-party plaintiffs. BACKGROUND Plaintiff was injured on July 18, 2016 at 153-31 75th Avenue in Flushing, New York. Plaintiff alleges that he fell while scraping a window in a hallway area of the building. It is undisputed that Kew Gardens Hills, LLC was the owner of the premises. According to plaintiff, A & E Real Estate Holdings, LLC and A & E Real Estate Management, Inc. were the managing agent of the premises. Kew Gardens Hills, LLC subsequently hired JW Development Holdings, LLC as a general contractor. On July 5, 2016, JW Development Holdings, LLC hired Alpine as a subcontractor to paint the hallways at the premises. Plaintiff was an employee of Alpine on the date of his accident. Plaintiff testified at his deposition that, in July 2016, he was employed by Alpine (NY St Cts Electronic Filing [NYSCEF] Doc No. 108, plaintiff tr at 10). Alpine remodeled apartments and hallways (id. at 11). Plaintiff did painting and plastering work, and worked in approximately 70 buildings (id. at 23). Alpine’s supervisors gave him instructions as to how to perform his work (id.). According to plaintiff, he had an accident on a Monday, either July 17, 2016 or July 18, 2016 (id. at 28). On the Thursday before his accident, his boss Tony told him that he was going to scrape and paint a hallway at 75 Flushing Avenue on the following Monday (id. at 20, 28, 29). Plaintiff had never worked in that building before (id. at 30). According to plaintiff, Alpine stored its equipment in the Bronx (id. at 21). Previously, plaintiff had used a six-foot A-frame ladder and a 25-foot ladder to perform his work with Alpine (id. at 24-25). Plaintiff also stated that Alpine had five-foot A-frame ladders that were available on the date of his accident (id. at 106, 206). Plaintiff further testified that, in the event an Alpine employee needed another ladder, “[y]ou have to call and tell them you needed a ladder and they will buy it” (id. at 106). Plaintiff also used a spatula, a hammer, a drill, and rollers and brushes to do his work (id. at 26). He described the procedure to scrape and paint the walls as follows: he covered the floor, scraped the walls, and then did some cleaning, and after that, he put plaster and compound on the wall, and, finally, he sanded and painted (id. at 30). On the day of his accident, plaintiff scraped from the first floor to the second floor (id. at 42). He was working alone (id.). The dimensions of the landing between the first and second floors were about two feet by two-and-a-half feet (id. at 52). Plaintiff used a ladder before he reached the landing (id. at 54). According to plaintiff, at some point, he needed to scrape the upper part of a window (id. at 55). The window was about six feet tall and two feet wide, and the window sill was about six inches deep (id. at 60). He then took the ladder back down to the first floor (id. at 54). Plaintiff explained that he would not have been able to open the ladder completely to access the upper part of the window because of the dimensions of the landing (id. at 55). Even if he had been able to open the ladder, he would not have been able to reach the top of the window; “[t]he only option [he] had was standing up on this part of the window” (id. at 56, 57). Plaintiff said of the area near the landing that it “was kind of wet around there” (id. at 58). He testified that “[i]t made a balloon. Once [they] started scraping, it gets sort of damp, wet because the windows are open and water comes through that. Also, the marble gets slippery” (id. at 58-59). Plaintiff testified that the building’s residents had opened the window because of the smell of the dust and plaster (id. at 59). When plaintiff arrived that morning, the window was open about eight inches (id. at 61). Plaintiff did half of the window while standing next to it, and then stood on the window sill in order to reach the top (id. at 62, 63). In order to stand upon the window sill, plaintiff stepped onto his compound bucket and grabbed onto the corner of the window (id. at 63). The window sill was “clean” and “smooth” (id.). However, “[i]t was always kind of damp because it had three layers of paint” (id.). Plaintiff wiped off the window sill with a towel before he stepped onto it (id.). Plaintiff stated that, while he was scraping, “something came out of the scraper,” “[s]and fell down” into his eyes, causing plaintiff’s right foot to slip and plaintiff to fall down (id. at 66). Plaintiff hit his forehead on the wall, and his knees and hand hit the marble on the landing (id. at 69). Anthony Marcellino (Marcellino), Alpine’s vice president, testified that the company does plastering, painting, and apartment renovations (NYSCEF Doc No. 113, Marcellino tr at 7, 8). Alpine had a contract to perform plastering, painting, and renovations at the Kew Gardens Hills location, which contained approximately 100 buildings (id. at 24, 25, 26). Marcellino testified that Alpine employees were provided with, among other things, stepladders and extension poles (id. at 17). A scraper could be attached to an extension pole; ” [t]hey could makeshift it” (id. at 72). Each employee had an extension pole (id. at 73). Alpine had two-foot, five-foot, and six-foot extension poles (id. at 20). When Alpine employees requested tools, they were delivered “[w]ithin a day or so” (id. at 20-21). Alpine employees also had step stools (id. at 54). Alpine also had four-foot, five-foot, and six-foot A-frame ladders (id. at 56, 92-93). According to Marcellino, the three-step step stools would have been able to open completely on the landing (id. at 71). Marcellino arrived at the building right after plaintiff had his accident (id. at 39). Marcellino did not observe any wetness in the area (id. at 58). Marcellino was told that plaintiff was standing on a five-gallon compound bucket when he slipped and fell (id. at 52-53). Marcellino testified that the storage room was in one of the basements of the complex (id. at 53). However, he stated that “it could have been changed from location to location because sometimes you were two, three blocks away” (id.). Louis Cutri (Cutri) testified that he was a senior project manager employed by A & E Real Estate Management, Inc. (NYSCEF Doc No. 110, Cutri tr at 7). A & E Real Estate Management, Inc. oversaw and managed the properties for the owners (id. at 9). He did not have any dealings with Alpine (id. at 19). A & E Real Estate Management, Inc. did not provide any equipment for the project (id. at 21). Nicholas Vlantes (Vlantes), a property manager employed by A & E Real Estate Management, Inc., testified that he oversaw the maintenance of the Kew Gardens Hills complex location (NYSCEF Doc No. 112, Vlantes tr at 7). He supervised handymen who plastered and painted apartments, but not the common areas of the building (id. at 9). Vlantes avers that he measured the landing near where plaintiff fell, and that the landing is approximately three feet by three feet or 36.5 inches side-to-side and 37 inches deep (NYSCEF Doc No. 200, Vlantes aff, 6). According to Vlantes, the landing has not changed since July 2016 (id., 4). Sunaj Asanov (Asanov), JW Development Holdings, LLC’s construction manager, testified that JW Development Holdings, LLC selected the paint color, but Alpine provided ladders, paint brushes, and materials for the work (NYSCEF Doc No. 111, Asanov tr at 27, 31, 41-42). Asanov did walkthroughs on the project to check the building’s condition (id. at 41-42). A C-2 report dated July 18, 2016 states that plaintiff “slipped on step and hit leg on banister” (NYSCEF Doc No. 209, Goutzounis affirmation in opposition, exhibit B at 7). An incident investigation report dated July 18, 2016, which was completed by Joy Talavera, indicates that “Mr. Gamez used compound bucket as a stepping stool to perform plaster work to window wall area, stepped down and missed step and fell down stairs approx. 15″ and hit leg on banister” (id. at 11). The report further states that “Mr. Gamez used bucket instead of step stool because he didn’t get the step stool from storage room” (id.). A Queens Hospital Center emergency room record dated July 18, 2016 states that: “37 y.o. M denies any pmhx, presents to the ER s/p fall from a ladder, states that he was up 2-3 steps up the ladder, tripped on step and fell on the right lower extremity. Denies any numbness, tingling, weakness. Denies any chest pain, shortness of breath, palpitations. Denies any head trauma/falls, dizziness or loss of consciousness” (NYSCEF Doc No. 211, Goutzounis affirmation in opposition, exhibit D at 3). Plaintiff’s complaint asserts four causes of action against defendants, seeking recovery for common-law negligence and for violations of Labor Law §§200, 240, and 241, and 241- a. Defendants brought a third-party action against Alpine, seeking: (1) contractual indemnification; (2) common-law indemnification; (3) contribution; and (4) damages for failure to procure insurance. Defendants/third-party plaintiffs seek attorneys’ fees and costs incurred in defending the action from Alpine. In its answer to the third-party complaint, Alpine asserted the following three counterclaims against defendants/third-party plaintiffs: (1) contractual indemnification; (2) common-law indemnification and/or contribution; and (3) breach of contract for failure to obtain adequate insurance. DISCUSSION It is well settled that “[t]he proponent of summary judgment must establish its defense or cause of action sufficiently to warrant a court’s directing judgment in its favor as a matter of law” (Ryan v. Trustees of Columbia Univ. in the City of NY, Inc., 96 AD3d 551, 553 [1st Dept 2012] [internal quotation marks and citation omitted]). “Thus, the movant bears the burden to dispel any question of fact that would preclude summary judgment” (id.). “Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution” (Giuffrida v. Citibank Corp., 100 NY2d 72, 81 [2003]). The court’s function on a motion for summary judgment is “issue-finding, rather than issuedetermination” (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY3d 941 [1957] [internal quotation marks and citation omitted]). A. Timeliness of Plaintiff’s Cross Motion for Partial Summary Judgment Plaintiff cross-moves for partial summary judgment under Labor Law §§240 (1) and 241 (6). In response to plaintiff’s cross motion, defendants/third-party plaintiffs and Alpine argue that the cross motion should not be considered because it is untimely. In reply, plaintiff argues that he has good cause for the delay in filing his cross motion. According to plaintiff, Alpine was directed to produce one of plaintiff’s coworkers, Erol Melendez, for deposition by December 12, 2018. However, Alpine did not advise plaintiff that Melendez was no longer employed by Alpine until December 7, 2018. The preliminary conference order directed that motions for summary judgment were to be made within 60 days after the filing of the note of issue (NYSCEF Doc No. 17). Plaintiff filed the note of issue on March 21, 2018 (NYSCEF Doc No. 45). Subsequently, the court soordered a stipulation extending the time for making summary judgment motions until July 27, 2018 (NYSCEF Doc No. 94). Plaintiff made his cross motion for partial summary judgment on August 30, 2018 (NYSCEF Doc No. 157), over a month after the court-imposed deadline. Thus, plaintiff’s cross motion is untimely. Plaintiff has failed to establish any good cause for the delay in making his cross motion for partial summary judgment (see Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill v. City of New York, 2 NY3d 648, 652 [2004] ["'good cause' in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion --- a satisfactory explanation for the untimeliness…"]). Plaintiff does not provide any explanation in his moving papers as to why his cross motion is untimely. “No excuse at all, or a perfunctory excuse, cannot be ‘good cause’” (Brill, 2 NY3d at 652). In any event, plaintiff does not explain why his coworker’s testimony was necessary to support his cross motion. “Although a court may decide an untimely cross motion, it is limited in its search of the record to those issues or causes of action ‘nearly identical’ to those raised by the opposing party’s timely motion” (Guallpa v. Leon D. DeMatteis Constr. Corp., 121 AD3d 416, 419 [1st Dept 2014], quoting Filannino v. Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]; see also Maggio v. 24 W. 57 APF, LLC, 134 AD3d 621, 628 [1st Dept 2015]). “An otherwise untimely cross motion may be made and adjudicated because a court, in the course of deciding the timely motion, may search the record and grant summary judgment to any party without the necessity of a cross motion” (Filannino, 34 AD3d at 281). Here, the court may consider the entirety of plaintiff’s cross motion, since it addresses the same issues and causes of action as Alpine’s timely motion for summary judgment. Indeed, Alpine moved for summary judgment dismissing plaintiff’s Labor Law §§241 (6), 240 (1), 200 and common-law negligence claims. B. Labor Law §240 (1) Alpine argues that plaintiff’s Labor Law §240 (1) cause of action should be dismissed, because he was the sole proximate cause of his accident. According to Alpine, plaintiff chose not to use the ladder and step stools that it provided for plaintiff to perform his work. In addition, Alpine contends that plaintiff’s work was not elevation-related. In this regard, Alpine maintains that plaintiff could have performed his work while standing on the landing using extension poles. To support its position, Alpine submits an affidavit from George H. Pfreundschuh, P.E. (Pfreundschuh), who states, based upon his review of the record, that “plaintiff had available to him ladder(s) or a step stool(s) that would have provided proper protection for him to perform his work safely” (NYSCEF Doc No. 148, Pfreundschuh aff, 10). Pfreundschuh bases his opinion on Marcellino’s testimony that Alpine workers had step stools and four-foot and five-foot stepladders (A-frame ladders) available to them if needed and that those ladders were kept in a storage room at the Kew Gardens Hills work site (id.). Pfreundschuh states that four-foot and five-foot A-frame ladders could have been set up properly on the subject landing, and that plaintiff could have used such equipment to perform his work (id.). In particular, Pfreundschuh notes, plaintiff testified that a five-foot ladder, when opened, had a two-foot span from the front to the rear, which was less than the dimensions of the landing (id.). In addition, Pfreundschuh indicates that plaintiff could have reached up with a bent arm while standing on an appropriate step stool or ladder that fit on the landing directly in front of the window sill (id., 11). Plaintiff argues, in opposition to Alpine’s motion, and in support of his cross motion, that he is entitled to judgment as a matter of law under section 240 (1) because he fell from the window sill because he did not have appropriate safety devices. As argued by plaintiff, the window sill was not an adequate safety device. Plaintiff further contends that Pfreundschuh’s affidavit should not be considered, because it is speculative and conclusory. Additionally, plaintiff argues, his actions were not the sole proximate cause of his accident, since step stools and extension poles were not readily available. According to plaintiff, there is no evidence that defendants ever possessed an appropriate safety device. In opposing plaintiff’s cross motion, defendants/third-party plaintiffs argue that the following issues of fact preclude summary judgment to plaintiff: (1) how the accident occurred, in light of Alpine’s accident report and the emergency room record; (2) whether plaintiff was required to work at an elevation, given Marcellino’s testimony that plaintiff could have performed his work with extension poles; (3) whether any foreign substances were involved in the accident; and (4) whether plaintiff had an available ladder that fit on the landing. Labor Law §240 (1), commonly known as the Scaffold Law, provides, in relevant part, as follows: “All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect or cause, 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.” Labor Law §240(1) “imposes absolute liability on building owners and contractors whose failure to ‘provide proper protection to workers employed on a construction site’ proximately causes injury to a worker” (Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011], quoting Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 490 [1995]). “[I]n 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” (Barreto v. Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015], rearg denied 25 NY3d 1211 [2015]). “[T]he protections of Labor Law §240 (1) ‘do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’” (Nicometi v. Vineyards of Fredonia, LLC, 25 NY3d 90, 97 [2015], rearg denied 25 NY3d 1195 [2015], quoting Ross v. Curtis — Palmer Hydro — Elec. Co., 81 NY2d 494, 501 [1993]). “Liability under Labor Law §240 (1) depends on whether the injured worker’s ‘task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against’” (Salazar v. Novalex Contr. Corp., 18 NY3d 134, 139 [2011], quoting Broggy v. Rockefeller Group, Inc., 8 NY3d 675, 681 [2007]). “The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured. It is because of the special hazards in having to work in these circumstances…that the Legislature has seen fit to give the worker the exceptional protection that section 240 (1) provides” (Toefer v. Long Is. R.R., 4 NY3d 399, 407 [2005] [internal quotation marks and citation omitted]). “The single decisive question in determining whether Labor Law §240 (1) is applicable is whether the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). “Liability under section 240 (1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff’s own negligence is the sole proximate cause of his injury” (Gallagher v. New York Post, 14 NY3d 83, 88 [2010], citing Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]; see e.g. Gallagher, 14 NY3d at 88 [ironworker was not the sole proximate cause of his accident where there was no evidence in the record that he knew where to find other safety devices or that he was expected to use them]; Robinson v. East Med. Ctr., LP, 6 NY3d 550, 555 [2006] [plaintiff's choice to use a six-foot ladder that he knew was too short for the work and standing on ladder's top cap were the sole proximate cause of his accident]; Montgomery v. Federal Express Corp., 4 NY3d 805, 806 [2005] [plaintiff was sole proximate cause of his accident where he stood on an inverted bucket; "since ladders were readily available, plaintiff's 'normal and logical response' should have been to go get one"]; Cahill, 4 NY3d at 40 [a jury could have concluded that worker was the sole proximate cause of his accident when he was injured while climbing without a safety line, where safety lines had been made available to him and he had been instructed to use them several weeks before the accident]). The First Department has held that a worker “is expected, as a normal and logical response, to obtain a safety device himself” when the worker “knows exactly” where it is located, and “there is a practice of obtaining the safety device himself because it is easily done” (Auriemma v. Biltmore Theatre, LLC, 82 AD3d 1, 10-11 [1st Dept 2011] [internal quotation marks omitted]; accord DaSilva v. Everest Scaffolding, Inc., 136 AD3d 423, 424 [1st Dept 2016]; Cherry v. Time Warner, Inc., 66 AD3d 233, 238-239 [1st Dept 2009]). However, “[t]he mere presence of [safety devices] somewhere at the worksite does not establish ‘proper protection’” (Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 524 [1985], rearg denied 65 NY2d 1054 [1985]). 1. Whether Defendants/Third-Party Plaintiffs Are Responsible Parties Under the Labor Law As a preliminary matter, the court notes that defendants/third-party plaintiffs admitted in their answer that Kew Gardens Hills, LLC was the owner of the premises (NYSCEF Doc No. 120, answer, 6). In addition, defendants/third-party plaintiffs admitted that JW Development Holdings, LLC was the general contractor on the project (id., 11). Thus, these defendants may be held liable under Labor Law. Plaintiff, though, has not demonstrated that A & E Real Estate Holdings, LLC or A & E Real Estate Management, Inc. may be held liable under section 240 (1). A managing agent may be held liable under the statute as an agent (see Fox v. Brozman-Archer Realty Servs., 266 AD2d 97, 98 [1st Dept 1999]). Plaintiff makes no arguments as to how A & E Real Estate Holdings, LLC or A & E Estate Management, Inc. may be held liable under the statute. Moreover, plaintiff has not submitted the management contract. 2. Statutory Violation and Proximate Cause Here, plaintiff testified that he had to scrape the top part of the window (NYSCEF Doc No. 161 at 55-56). He did not use the ladder that he had been using because he would not have been able to open the ladder completely, and because he could not reach the top of the window (id.). Thus, plaintiff has demonstrated that he was not provided adequate safety devices, and that the lack of such devices was a proximate cause of his accident (see Peters v. Kissling Interests, Inc., 63 AD3d 1519, 1520 [4th Dept 2009], lv denied 13 NY3d 903 [2009] [plaintiff was injured while standing on window sill attempting to remove window trim with pry bar; "plaintiff met his burden of establishing that the lack of an appropriate safety device to protect him 'from harm directly flowing from the application of the force of gravity" was the proximate cause of his injuries as a matter of law"] [internal quotation marks and citation omitted]). Contrary to Alpine’s and defendants/third-party plaintiffs’ contention, plaintiff was subjected to “an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against” (Broggy, 8 NY3d at 681). As previously noted, plaintiff testified that he was required to scrape the hallway, and had to reach the upper part of a window (NYSCEF Doc No. 108 at 55). He stated that he could not use the ladder that he had because it did not fit on the landing and because he could not reach the top of the window (id. at 55-57). Although Alpine and defendants/third-party plaintiffs contend that Alpine employees had extension poles, and that plaintiff could have scraped from the landing, an extension pole is not a safety device of the kind enumerated in the statute. In any event, plaintiff testified that he tried attaching the scraper to the extension pole, but it did not work (id. at 198). Moreover, Alpine and defendants/third-party plaintiffs have failed to demonstrate that plaintiff was the sole proximate cause of his accident. Alpine and defendants/third-party plaintiffs argue that there were five-foot ladders and step stools on the site. However, as noted above, plaintiff was not given an adequate safety device, and thus could not have been the sole proximate cause of his accident. Additionally, Alpine and defendants/third-party plaintiffs have not pointed to any evidence indicating that plaintiff knew that he was expected or instructed to use those ladders or step stools to scrape the window (see Dwyer v. Central Park Studios, Inc., 98 AD3d 882, 884 [1st Dept 2012] ["Even if other ladders were available at the job site, there was no showing that plaintiff was expected, or instructed, to use those ladders and for no good reason chose not to do so"]; Torres v. Our Townhouse, LLC, 91 AD3d 549, 549 [1st Dept 2012] [even if ladder might have been in chassis under truck at the work site, worker was not sole proximate cause of his accident where there was no evidence presented that he knew where the ladder was or that he knew that he was expected to use it and for no good reason chose not to do so]). Furthermore, Alpine has not demonstrated that there was a “practice” of workers obtaining ladders themselves because it was “easily done,” even if plaintiff knew where the ladders were located (see Auriemma, 82 AD3d at 11 ["The defendants have not asserted, nor is there any evidence in the record, that the plaintiff either knew where a ladder was located or that it was his habit to get one for himself"] [emphasis supplied]). The court must next consider whether defendants/third-party plaintiffs have raised an issue of fact sufficient to defeat plaintiff’s motion. “Where credible evidence reveals differing versions of the accident, one under which defendants would be liable and another under which they would not, questions of fact exist making summary judgment inappropriate” (Ellerbe v. Port Auth. of NY & N.J., 91 AD3d 441, 442 [1st Dept 2012]). Defendants/third-party plaintiffs rely on the accident report, which indicates that plaintiff “used compound bucket as a stepping stool to perform plaster work to window wall area, stepped down and missed step, [fell] down stairs approx. 15″ and hit leg on banister” (NYSCEF Doc No. 209). Marcellino testified that his office manager, who filled out the report, obtained this information from plaintiff’s coworker, Mateo, and that neither Marcellino nor Mateo witnessed the accident (NYSCEF Doc No. 136 at 85-87). Therefore, the portions of Alpine’s accident report stating that plaintiff “used compound bucket as a stepping stool [and] stepped down and missed step” are not in admissible form (see Matter of Leon RR, 48 NY2d 117, 122 [1979]; Acevedo v. Williams Scotsman, Inc., 116 AD3d 416, 417 [1st Dept 2014]; cf. Buckley v. J.A. Jones/GMO, 38 AD3d 461, 462-463 [1st Dept 2007]). Defendants/third-party plaintiffs also point out that the emergency room record indicates that plaintiff fell from a ladder. “Hearsay entries regarding the cause of an injury contained in a medical record come into evidence under the business records exception if they are germane to the treatment or diagnosis of plaintiff’s injuries” (Benavides v. City of New York, 115 AD3d 518, 519 [1st Dept 2014]). “Alternatively, the entry may be admissible as an admission, but only if there is evidence that connects the party to the entry” (id.). Here, the statement in the emergency room record that plaintiff tripped on a step of a ladder and fell from the ladder is not germane to diagnosis or treatment (NYSCEF Doc No. 211). Moreover, defendants/thirdparty plaintiffs have not offered any evidence connecting plaintiff to the statements in the record. While hearsay may in some instances be sufficient to defeat summary judgment, hearsay is the only evidence submitted in opposition (see O’Halloran v. City of New York, 78 AD3d 536, 537 [1st Dept 2010]), and defendants/third-party plaintiffs do not provide an acceptable excuse for failing to submit evidence in admissible form (see Stankowski v. Kim, 286 AD2d 282, 283 [1st Dept 2001], lv dismissed 97 NY2d 677 [2001]; Shapiro v. Butler, 273 AD2d 657, 660 [3d Dept 2000]). Therefore, the branch of plaintiff’s cross motion for partial summary judgment under Labor Law §240 (1) is granted as against Kew Gardens Hills, LLC and JW Development Holdings, LLC. The branch of Alpine’s motion for summary judgment dismissing this cause of action is denied. C. Labor Law §241 (6) Labor Law §241 (6) provides as follows: “All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: *** All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.” Labor Law §241 (6) “imposes a nondelegable duty of reasonable care upon owners and contractors ‘to provide reasonable and adequate protection and safety’” to construction workers (Rizzuto v. L.A. Wenger Constr. Co., 91 NY2d 343, 348 [1998]). To recover under Labor Law §241 (6), a plaintiff must plead and prove the violation of a concrete provision of the New York State Industrial Code, containing “specific, positive commands,” rather than a provision reiterating common-law safety standards (Ross, 81 NY2d at 503). In addition to establishing the violation of a specific and applicable regulation, the plaintiff must also show that the violation was a proximate cause of the accident (Cappabianca v. Skanska USA Bldg. Inc., 99 AD3d 139, 146 [1st Dept 2012]). Plaintiff’s verified bill of particulars alleges violations of the following Industrial Code provisions: 12 NYCRR 23-1.5 (c); 12 NYCRR 23-1.7 (d), (e), and (f); 12 NYCRR 23-1.32; 12 NYCRR 23-2.1 (g); 12 NYCRR 23-2.5 (a) (1); and 12 NYCRR 23-2.7 (a), (b), (c), (d), and (e) (NYSCEF Doc No. 107, verified bill of particulars,
