ADDITIONAL CASES346 West 17th Street LLC, Northquay Properties, LLC and McGowan Builders Inc., Third-Party Plaintiffs v. Sigma Electric, Inc., Third-Party DefendantSigma Electric, Inc., Second Third-Party Plaintiff v. Technetek Ltd., Second Third-Party DefendantMotion sequence numbers 005, 006, 007 and 008 are hereby consolidated for disposition.This is an action to recover damages for personal injuries allegedly sustained by an mechanic on March 16, 2011, when he fell through an unprotected stairwell opening while working at a construction site located at 346 West 17th Street, New York, New York (the Premises).In motion sequence number 005, plaintiff Abel Sotarriba moves, pursuant to CPLR 3212, for partial summary judgment in his favor as to liability on the Labor Law §240 (1) claim against defendants/third-party plaintiffs 346 West 17th Street LLC (346 West), Northquay Properties LLC (Northquay) and McGowan Builders Inc. (McGowan) (collectively, defendants).In motion sequence number 006, third-party defendant/second third-party plaintiff Sigma Electric, Inc. (Sigma) moves, pursuant to CPLR 3212, for summary judgment dismissing all claims of contribution and common-law indemnity against it.In motion sequence number 007, second-third party defendant Technetek LTD. (Technetek) moves, pursuant to CPLR 3212, for summary judgment dismissing the second third-party complaint and all cross claims against it.In motion sequence number 008, defendants move, pursuant to CPLR 3212, for summary judgment dismissing the complaint against them.BACKGROUNDOn the day of the accident, 346 West owned the Premises where the accident occurred. Northquay leased the Premises from 346 West for use as a hotel. 346 West hired McGowan to serve as a general contractor/construction manager for a construction project at the Premises (the Project). McGowan hired various subcontractors for the Project, including Sigma, the electrical subcontractor, and Technetek, the carpentry subcontractor. Plaintiff was employed by Sigma at the time of the accident.Plaintiff’s Deposition TestimonyDuring his depositions, plaintiff testified that he was employed as a mechanic by Sigma, the electrical subcontractor for the Project. Plaintiff’s work was supervised by his foreman, Maurico Guaman. On the day of the accident, Guaman instructed plaintiff to check on a fire alarm system on the third floor of the Premises. The fire alarm system was located along a wall near the third floor stairwell. The fire alarm system was comprised of various boxes, panels and cables.Plaintiff testified that in order to perform his work, it was necessary for him to use an A-frame ladder on the third floor. Before he climbed the ladder, he made sure that its spreaders/braces were in the locked position. Plaintiff could not recall exactly where he set up the ladder. He first testified that he set it up inside the doorway leading to the third floor stairwell. Later on, during his various depositions, he testified that he set it up in the third floor hallway.Plaintiff maintained that the doorway, which led to the third floor stairwell, was not yet installed on the day of the accident. In addition, no one ever told him not to enter the stairwell. Plaintiff could not remember whether the entrance to the doorway was protected by plywood. Plaintiff also testified that just prior to the accident, he was on the ladder checking cables. The next thing that he recalled was waking up in the hospital.Plaintiff’s AffidavitIn his affidavit, plaintiff stated that he was checking cables while on an A-frame ladder when the accident occurred. Plaintiff explained that he was “suddenly caused to fall off this ladder,” when it shifted (plaintiff’s aff). Plaintiff asserted that he “[did] not know what caused the ladder to move, [and that] the ladder suddenly moved and wobbled immediately before [he] fell off the ladder” (id.). Plaintiff “remember[ed] falling off the ladder immediately after the ladder moved,” which caused him to fall to “the concrete floor below” (id.).Plaintiff further stated that he was “knocked out unconscious once [he] struck the floor below…[and] [t]he next thing [he] recalled was being in Bellevue Hospital where [he] was admitted for two months” (id.). As a result of his fall, plaintiff did not have any recollection of the particular events of the accident for “some period of time” (id.).Plaintiff also maintained that “[n]o one ever told [him] or warned [him] not to work in the location where [his] accident occurred” (id.). Plaintiff “simply followed the direct order” of his foreman “to check the wiring/cables to the fire alarm system where [he] had [his] accident” (id.). Although he could not remember the exact location of his accident, he did remember that “there were no barricades, caution tape or warnings [not to work] where [the] accident occurred” (id.). In addition, he was not provided with any fall protection, such as “a harness, tail line, or any safety netting, safety belt nor safety line to secure and prevent [him] from falling from the ladder and striking the floor below from where [he] set up the ladder” (id.).Deposition Testimony of Maurico Guaman (Plaintiff’s Sigma Foreman)Guaman testified that he served as Sigma’s foreman on the day of the accident. He explained that Sigma was in the business of performing electrical installations for both new construction and renovation projects. He testified that Sigma’s employees provided their own hand tools, and that Sigma provided scaffolds, ladders and power tools. He noted that in the days leading up to the accident, the doorways leading to the various stairwells in the building were covered with plywood, in order to keep people out of those areas until proper handrails could be installed in the stairways.Guaman testified that on the day of the accident, he instructed plaintiff and another Sigma employee, Antonio Vega, a junior mechanic, to check on the fire alarm system’s wiring and cabling, which were located in the rooms, public areas and stairwells. He first learned of plaintiff’s accident when he received a phone call from one of the Sigma employees. When he arrived at the scene of the accident, he observed plaintiff lying on the floor of the second floor stairwell. Vega told him that plaintiff was injured when he tried to jump over a four-foot high wooden barricade, which caused it to break loose from whatever was holding it in place. At that time, plaintiff was attempting to reach some cables in the stairwell in order to perform his work.Guaman explained that the subject barricade was intended to keep people out of the area, and that, prior to the day of the accident, he had discussed the importance of staying out of such blocked off areas with Sigma’s employees. When he inspected the third floor stairwell after the accident, he did not observe any ladders there.Deposition Testimony of Emmet Friel (McGowan’s Project Manager)Emmet Friel testified that he was McGowan’s project manager on the day of the accident. He explained that McGowan hired various subcontractors for the Project, including Sigma. Sigma’s scope of work included furnishing and installing a fire alarm system. In addition, nonparty Total Safety served as the outside safety company on the job, preparing the only accident report that he was aware of.Friel explained that the Premises had only one staircase, and that safety log entries indicated that the barricades placed at that staircase sometimes needed be replaced because they were broken or “busted through” (Friel tr at 131). He maintained that Technetek performed the carpentry work for the Project, which included providing the materials necessary to construct and install said barricades. When the barricades needed repair, Technetek would “do it themselves” (id. at 150). Friel maintained that the purpose of the barricade was to give notice to workers that it was unsafe to cross through it or over it.Deposition Testimony of Gareth Daly (McGowan’s Labor Foreman)Gareth Daly testified that he was McGowan’s labor foreman on the day of the accident. He testified that during the month prior to the accident, the barricade in front of the doorway to the third floor stairway was “more or less kicked off” between five and ten times (Daly tr at 22).Daly further testified that he observed a barricade across the third floor doorway on the morning of the accident. He described the barricade as being comprised of “three quarter inch, fire-rated plywood” that was “screwed into the door buck” with “multiple screws” (id. at 26).Daly also testified that Technetek, the carpentry subcontractor on the Project, was the entity charged with installing and maintaining the barricades for the Project.Deposition Testimony of Silvio Dos Santos (Sigma Worker)Silvio Dos Santos testified that he was employed by Sigma on the day of the accident. His duties included, among other things, helping Sigma’s electricians. Shortly after the accident, he went to the second floor of the Premises, where he saw plaintiff lying on the floor. He did not see a ladder on the second floor at that time. However, he later observed an open and upright A-frame ladder in hallway on the third floor of the Premises.Dos Santos also testified that, as he was ascending the stairs from the second floor to the third floor, he observed a piece of masonite on the stairs. In addition, he saw another piece of masonite on the third floor landing. Notably, Dos Santos observed these same pieces of masonite placed across the third floor stairwell doorway approximately a week prior to the accident. At this time, he noticed that the subject masonite was affixed to the doorway “[w]ith screws. Not to the door frame; to the Sheetrock” (Dos Santos tr at 47). In addition, the subject masonite was affixed to the sheetrock “[i]nside the stairway” (id.).Accident Report by Total Safety Manager James W. Owens IIIA March 17, 2011 accident report (the Accident Report), which was prepared by James W. Owens III of Total Safety, states, in pertinent part, as follows:“Antonio [Vega] claims that he and [plaintiff] were in the hallway in front of the staircase on the 3rd floor. The staircase was blocked by 4′ of plywood protection. Antonio claims that [plaintiff] tried to climb over the plywood to test the fire alarm pull boxes.***“When [plaintiff] allegedly climbed over the protection, the plywood allegedly gave away [sic] causing him to fall 12′-4″ off the 3rd floor landing onto the 2nd floor staircase. He struck his head on the concrete staircase”(Technetek’s notice of motion, exhibit W, the Accident Report).DISCUSSION“‘The proponent of a summary judgment motion 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’” (Santiago v. Filstein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden then shifts to the motion’s opponent to “present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact” (Mazurek v. Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; DeRosa v. City of New York, 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 [1978]; Grossman v. Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]).The Labor Law §240 (1) Claim Against Defendants (motion sequence numbers 005 and 008)Plaintiff moves for summary judgment in his favor as to liability on the Labor Law §240 (1) claim against defendants. Defendants move for dismissal of said claim against them.In this case, plaintiff asserts that the shifting of the ladder that he was standing on at the time of the accident caused him to fall into the unprotected third floor stairwell. In contrast, defendants assert that plaintiff was caused to fall into the unprotected stairwell because a barricade that he was climbing over collapsed.Initially, that plaintiff and defendants offer conflicting reasons as to what caused him to fall into the third floor stairwell is of no consequence, because “[t]he dispute here does not relate to a material issue, as the plaintiff would be entitled to summary judgment under either set of facts” (id.; see also Lockwood v. National Valve Mfg. Co., 143 AD2d 509, 510 [4th Dept 1988] [Labor Law 240 (1) applied where the "[p]laintiff either fell or jumped out of the way in order to avoid being struck by the falling pipe and landed on a catwalk approximately 25 feet from the place he was originally standing”]).Labor Law §240 (1) applies under plaintiff’s version of the facts, i.e., that he was caused to fall because the ladder that he was standing on shifted and/or moved, because “‘[w]here a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that [the] failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law §240 (1)’” (Montalvo v. J. Petrocelli Constr., Inc., 8 AD3d 173, 174 [1st Dept 2004] [where the plaintiff was injured as a result of an unsteady ladder, the plaintiff did not need to show that ladder was defective for the purposes of liability under Labor Law §240 (1), only that adequate safety devices to prevent the ladder from slipping or to protect the plaintiff from falling were absent], quoting Kijak v. 330 Madison Ave. Corp., 251 AD2d 152, 153 [1st Dept 1998]; Hart v. Turner Constr. Co., 30 AD3d 213, 214 [1st Dept 2006] [the plaintiff "met his prima facie burden through testimony that while he performed his assigned work, the eight-foot ladder on which he was standing shifted, causing him to fall to the ground"]; Rodriguez v. New York City Hous. Auth., 194 AD2d 460, 461 [1st Dept 1993] [Labor Law §240 (1) violated where the ladder the plaintiff fell from "contained no safety devices, was not secured in any way and was not supported by a co-worker"]).“[A] presumption in favor of plaintiff arises when a scaffold or ladder collapses or malfunctions ‘for no apparent reason’” (Quattrocchi v. F.J. Sciame Constr. Corp., 44 AD3d 377, 381 [1st Dept 2007] [citation omitted], affd 11 NY3d 757 [2008]). “Whether the device provided proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his materials” (Nelson v. Ciba-Geigy, 268 AD2d 570, 572 [2d Dept 2000]; Cuentas v. Sephora USA, Inc., 102 AD3d 504, 504 [1st Dept 2013]; Melchor v. Singh, 90 AD3d 866, 869 [2d Dept 2011] [where the plaintiff was injured when the top of the ladder that he was working on slid away from the house, Court held that "[t]he defect in the ladder, and the fact that it was not secured, were substantial factors in causing plaintiff to fall”]).It should be noted that, contrary to defendants’ contention, it is not necessary for plaintiff to show that the ladder was defective in order to recover under Labor Law §240 (1), as “[i]t is sufficient for purposes of liability under section 240 (1) that adequate safety devices to…protect plaintiff from falling were absent” (Orellano v. 29 E. 37th St. Realty Corp., 292 AD2d 289, 291 [1st Dept 2002]; Serra v. Goldman Sachs Group, Inc., 116 AD3d 639, 640 [1st Dept 2014] [Court properly granted partial summary judgment as to liability on the plaintiff's Labor Law §240 (1) claim "since plaintiffs submitted uncontradicted deposition testimony that the unsecured extended ladder upon which plaintiff was working slipped and fell out from underneath him"]; McCarthy v. Turner Constr., Inc., 52 AD3d 333, 333-334 [1st Dept 2008] [where plaintiff sustained injuries "when the unsecured ladder he was standing on to drill holes in a ceiling tipped over," the plaintiff was not required to demonstrate, as part of his prima facie showing, that the ladder he was working on at the time of the accident was defective]).It should also be noted that contrary to defendants’ argument, it would be improper to deny plaintiff summary judgment merely because plaintiff has not provided the testimony of other witnesses who observed the accident (Orellano v. 29 E. 37th St. Realty Corp., 292 AD2d 289, 290 [1st Dept 2002] [Court granted plaintiff, who was alone at time of accident and fell from an A-frame ladder which had no protective devices while installing a light fixture, summary judgment on his section 240 (1) claim "[r]egardless of the precise reason for his fall”]; Campbell v. 111 Chelsea Commerce, L.P., 80 AD3d 721, 722 [2nd Dept 2011] ["The fact that the plaintiff may have been the sole witness to the accident does not preclude the award of summary judgment in her favor"]).Also contrary to defendants’ argument, the minor inconsistencies in plaintiff’s deposition testimony and affidavit “[do] not relate to a material issue,” and, thus, they do not preclude an award of partial summary judgment as to liability in plaintiff’s favor (Laconte v. 80 East End Owners Corp., 80 AD3d 669, 671 [2d Dept 2011]; Anderson v. International House, 222 AD2d 237, 237 [1st Dept 1995]).Labor Law §240 (1) also applies under defendants’ version of the facts, i.e., that plaintiff was caused to fall from the third floor stairwell to the second floor stairwell because the barricade collapsed when plaintiff attempted to climb over it. To that effect, the barricade was a safety devices intended to protect workers, like plaintiff, from falling into the stairwell, and it failed to do so.In addition, as it was necessary for plaintiff to enter the stairwell in order to perform his work, i.e., checking on the fire alarm system wiring and cabling, it was foreseeable that he might have to climb over the barricade in order to get there (see Ortega v. City of New York, 95 AD3d 125, 131 [1st Dept 2012] [where the plaintiff was working on an elevated work platform that "was taller than it was wide and rested upon wooden planks atop an uneven, gravel surface," the Court considered that "[i]t was foreseeable both that the plaintiff could fall off the elevated work platform and that the…rack could topple over”]). Therefore, in light of the fact that the barricade could not support plaintiff’s weight, an additional and/or different safety device, such as a rope to tie off to, was required to prevent plaintiff from falling (Nimirovski v. Vornado Realty Trust Co., 29 AD3d 762, 762 [2d Dept 2006] [as it was foreseeable that pieces of metal being dropped to the floor could strike the scaffold and cause it to shake, additional safety devices were required to satisfy Labor Law §240 (1)]).“‘[T]he availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures’” (Nimirovski, 29 AD3d at 762, quoting Conway v. New York State Teachers’ Retirement Sys., 141 AD2d 957, 958-959 [3d Dept 1988]).In support of their motion, defendants also argue that they are entitled to dismissal of the Labor Law §240 (1) claim against them because plaintiff’s decision to climb over the barricade made him the sole proximate cause of his accident. Where a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability under Labor Law §240 (1) (see Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554 [2006]). “[T]he duty to see that safety devices are furnished and employed rests on the employer in the first instance” (Aragon v. 233 W. 21st St., 201 AD2d 353, 354 [1st Dept 1994]). “When the defendant presents some evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of his or her injuries, partial summary judgment on the issue of liability will be denied because factual issues exist” (Ball v. Cascade Tissue Group-N.Y., Inc., 36 AD3d 1187, 1188 [3d Dept 2007]).However, any alleged negligence on plaintiff’s part in this regard goes to the issue of comparative fault, and comparative fault is not a defense to a Labor Law §240 (1) cause of action, because the statute imposes absolute liability once a violation is shown (Bland v. Manocherian, 66 NY2d 452, 460 [1985]; Vail v. 1333 Broadway Assoc., L.L.C., 105 AD3d 636, 637 [1st Dept 2013] ["Given that the scaffold was inadequate in the first instance, any failure by plaintiff to hydrate himself could not be the sole proximate cause of his injuries"]; Berrios v. 735 Ave. of the Ams., LLC, 82 AD3d 552, 553 [1st Dept 2011] [Court held that "even if plaintiff could be found recalcitrant for failing to use a harness, defendants' 'failure to provide proper safety [equipment] was a more proximate cause of the accident’”]; Milewski v. Caiola, 236 AD2d 320, 320 [1st Dept 1997] [Court held that "even if plaintiff could be deemed recalcitrant for not having used the harness, no issue exists that the failure to provide proper safety planking was a more proximate cause of the accident"]).“[T]he Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence. It is absolutely clear that ‘if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it’” (Hernandez v. Bethel United Methodist Church of N.Y., 49 AD3d 251, 253 [1st Dept 2008], quoting Blake, 1 NY3d at 290). Where “the owner or contractor fails to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff’s injury, the negligence, if any, of the injured worker is of no consequence” (Tavarez v. Weissman, 297 AD2d 245, 247 [1st Dept 2002] [internal quotation marks and citations omitted]).In any event, regardless of which scenario ultimately led plaintiff to fall into the third floor stairwell, by demonstrating that entrance to said stairwell was not properly protected against falls in the first place, plaintiff “established his prima facie entitlement to judgment as a matter of law by showing that he was not provided with a proper safety device with which he could perform his job, and that the defendants’ failure to provide such protection was a proximate cause of his injuries” (Laconte v. 80 East End Owners Corp., 80 AD3d 669, 671 [2d Dept 2011]).Importantly, Labor Law _ 240 (1) “is designed to protect workers from gravity-related hazards…and must be liberally construed to accomplish the purpose for which it was framed” (Valensisi v. Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2d Dept 2006] [internal citations omitted]).Thus, plaintiff is entitled to summary judgment in his favor as to liability on the Labor Law §240 (1) claim against defendants, and defendants are not entitled to dismissal of said claim against them.The Labor Law §241 (6) Claim Against Defendants (motion sequence number 008)Defendants move for dismissal of the Labor Law §241 (6) claim against them. Labor Law §241 (6) provides, in pertinent part, as follows:“All contractors and owners and their agents…when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:***(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped…as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”Labor Law §241 (6) imposes a nondelegable duty on “owners and contractors to ‘provide reasonable and adequate protection and safety’ for workers” (Ross, 81 NY2d at 501). However, Labor Law §241 (6) is not self-executing, and in order to show a violation of this statute, and withstand a defendant’s motion for summary judgment, it must be shown that the defendant violated a specific, applicable, implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (id. at 503-505).Initially, while plaintiffs assert multiple alleged Industrial Code violations in their bill of particulars, with the exception of sections 23-1.7 (b) (1) (i), (ii) and (iii), 23-1.7 (f), plaintiff does not oppose their dismissal. Therefore, said unopposed Industrial Code provisions are deemed abandoned (see Genovese v. Gambino, 309 AD2d 832, 833 [2d Dept 2003] [where plaintiff did not oppose that branch of defendant's summary judgment motion dismissing the wrongful termination cause of action, his claim that he was wrongfully terminated was deemed abandoned]).Thus, defendants are entitled to dismissal of those parts of the Labor Law §241 (6) claim predicated on the abandoned provisions.Industrial Code 12 NYCRR 23-1.7 (b) (1) (i), (ii) and (iii)Industrial Code sections 23-1.7 (b) (1) (i), (ii) and (iii) which deal with hazardous openings at a construction site, are sufficiently concrete in their specifications to support plaintiff’s Labor Law §241 (6) claim (see Lopez v. Fahs Constr. Group, Inc., 129 AD3d 1478, 1479 [4th Dept 2018]; Scarso v. M.G. Gen. Constr. Corp., 16 AD3d 660, 661 [2d Dept 2005]; Olsen v. James Miller Mar. Serv., Inc., 16 AD3d 169, 171 [1st Dept 2005]).Specifically, sections 23-1.7 (b) (1) (i), (ii) and (iii) provide, in pertinent part, as follows:“(b) Falling hazards(1) Hazardous openings.(i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).”(ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit.”(iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows:(a) Two-inch planking…***(b) An approved life net.. .***(c) An approved safety net….”As is relevant to this case, the subject stairwell that plaintiff fell through is not the type of “hazardous opening” referred to in section 23-1.7 (b) (1). To that effect, section 23-1.7 (b) (1) does not apply to the facts of this case “because even though there was a height differential, there was no [defined] hole” (Garlow v. Chappaqua Cent. School Dist., 38 AD3d 712, 713-714 [2d Dept 2007] [section 23-1.7 (b) (1) did not apply where the plaintiff fell "from the top of a concrete wall"]; see also Parker v. 205-209 E. 57th St. Assoc., LLC, 100 AD3d 607, 608 [2d Dept 2012] [no liability under section 23-1.7 (b) (1) where the plaintiff stepped off "the edge of a doorway" and fell several feet onto a lower roof ]; Pope v. Safety & Quality Plus, Inc., 74 AD3d 1040, 1041 [2d Dept 2010] [section 23-1.7 (b) (1) inapplicable because the "concrete landing" that the plaintiff stepped off of was not a hazardous opening]; Barillaro v. Beechwood RB Shorehaven, LLC, 69 AD3d 543, 544 [2d Dept 2010] ["a 11/2 to 2-feet-deep trench [was] not a hazardous opening within the meaning of 12 NYCRR 23-1.7 (b) (1)”]).Thus, defendants are entitled to dismissal of that part of the Labor Law §241 (6) claim predicated on alleged violations of sections 23-1.7 (b) (1) (i), (ii) and (iii).Industrial Code 12 NYCRR 23-1.7 (f)Section 23-1.7 (f) is sufficiently specific to support a Labor Law §241 (6) claim (see Miano v. Skyline New Homes Corp., 37 AD3d 563, 565 [2d Dept 2007]; Atkins v. Baker, 247 AD2d 562, 562 [2d Dept 1998]).Section 23-1.7 (f), which refers to vertical passages, states, in pertinent part:“Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or progress of the work prevents their installation in which case ladders or other safe means of access shall be provided.”Here, section 23-1.7 (f) does not apply to the facts of this case because the lack of a safe staircase was not the proximate cause of the accident. In fact, plaintiff was not even using a staircase at the time that the accident occurred.Thus, defendants are entitled to dismissal of that part of the Labor Law §241 (6) claim predicated on an alleged violation of section 23-1.7 (f).The Common-law Negligence and Labor Law §200 Claim Against Defendants (motion sequence number 008)Defendants move for dismissal of the common-law negligence and Labor Law §200 claims against them. It should be noted that plaintiff does not oppose the dismissal of the common-law negligence and Labor Law §200 claims as against 346 West and Northquay. Thus, these defendants are entitled to dismissal of said claims against them. Accordingly, in the remainder of this decision, these claims will be addressed in regard to McGowan only.Labor Law §200 is a “codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work” (Cruz v. Toscano, 269 AD2d 122, 122 [1st Dept 2000] [internal quotation marks and citation omitted]; see also Russin v. Louis N. Picciano & Son, 54 NY2d 311, 316-317 [1981]).Labor Law §200 (1) states, in pertinent part, as follows:“All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.”There are two distinct standards applicable to section 200 cases, depending on the kind of situation involved: when the accident is the result of the means and methods used by the contractor to do its work, and when the accident is the result of a dangerous condition (see McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 797-798 [2d Dept 2007]).“Where an existing defect or dangerous condition caused the injury, liability [under Labor Law _ 200] attaches if the owner or general contractor created the condition or had actual or constructive notice of it” (Cappabianca v. Skanska USA Bldg. Inc., 99 AD3d 139, 144 (1st Dept 2012); Murphy v. Columbia Univ., 4 AD3d 200, 202 [1st Dept 2004] [to support a finding of a Labor Law §200 violation, it was not necessary to prove general contractor's supervision and control over plaintiff's work, "because the injury arose from the condition of the work place created by or known to the contractor, rather than the method of [the] work”]).It is well settled that, in order to find an owner or its agent liable under Labor Law §200 for defects or dangers arising from a subcontractor’s methods or materials, it must be shown that the owner or agent exercised some supervisory control over the injury-producing work (Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993] [no Labor Law §200 liability where the plaintiff's injury was caused by lifting a beam, and there was no evidence that the defendant exercised supervisory control or had any input into how the beam was to be moved]).As discussed previously, the accident was due to the lack of proper fall protection at the doorway leading to the third floor stairwell. Therefore, the accident was caused due to the means and methods of the work, rather than from a defect inherent in the Premises.A review of the record reveals that Sigma, and not McGowan, was responsible for providing its employees with their ladders and other safety devices. In addition, Technetek, and not McGowan, was charged with installing and maintaining the barricades at the Project.Moreover, contrary to plaintiff’s assertion, it is not enough to impute liability for these claims by showing that McGowan was generally responsible for site safety at the Premises, as “general supervisory control is insufficient to impute liability pursuant to Labor Law §200, which liability requires actual supervisory control or input into how the work is performed” (Hughes v. Tishman Constr. Corp., 40 AD3d 305, 311 [1st Dept 2007]; see also Bednarczyk v. Vornado Realty Trust, 63 AD3d 427, 428 [1st Dept 2009] [Court dismissed common-law negligence and Labor Law §200 claims where the deposition testimony established that, while the defendant's "employees inspected the work and had the authority to stop it in the event they observed dangerous conditions or procedures," they "did not otherwise exercise supervisory control over the work"]; Burkoski v. Structure Tone, Inc., 40 AD3d 378, 381 [1st Dept 2007] [no Labor Law §200 liability where the defendant construction manager did not tell subcontractor or its employees how to perform subcontractor's work]; Smith v. 499 Fashion Tower, LLC, 38 AD3d 523, 524-525 [2d Dept 2007]).Thus, McGowan is entitled to dismissal of the common-law negligence and Labor Law §200 claims against it.Sigma’s Motion To Dismiss All Claims for Contribution and Common-law Indemnification Against It (motion sequence number 006)Sigma moves for dismissal of all claims for contribution and common-law indemnification against it.1 “Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person [internal quotation marks and citations omitted]” (Godoy v. Abamaster of Miami, 302 AD2d 57, 61 [2d Dept 2003]).“To establish a claim for common-law indemnification, ‘the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident’” (Perri v. Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685 [2d Dept 2005], quoting Correia v. Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]; Priestly v. Montefiore Med. Ctr./Einstein Med. Ctr., 10 AD3d 493, 495 [1st Dept 2004]). “It is well settled that an owner who is only vicariously liable under the Labor Law may obtain full indemnification from the party wholly at fault” (Chapel v. Mitchell, 84 NY2d 345, 347 [1994]).Here, as plaintiff was an employee of Sigma, relevant to this issue is Workers’ Compensation Law §11, which prescribes, in pertinent part, as follows:“An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a ‘grave injury’ which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot…or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.”Therefore, “[a]n employer’s liability for an on-the-job injury is generally limited to workers’ compensation benefits, but when an employee suffers a ‘grave injury’ the employer also may be liable to third parties for indemnification or contribution” (Rubeis v. Aqua Club, Inc., 3 NY3d 408, 412-413 [2004]).Additional Facts Relevant To This Motion:The Bill of ParticularsIn the verified bill of particulars, plaintiff alleges that he sustained the following injuries, in pertinent part:“Traumatic Brain Injury, Major Trauma Score-3; closed skull fracture/head injuries; right temporal bone fracture; right parietal and bilateral sphenoid bone fractures; right epidural hematoma; left subdural hematoma; subarachnoid hemorrhage; intraparenchymal hemorrhage…multiple rib fractures…nasal fractures…intracranial pressure monitor placed in head…severe mobility and adl impairments; cognitive defects; paresis; speech, swallowing impairments; joint contractions…significant pain to all areas of trauma, surgery and treatment…ventricular and sulcal enlargement of the brain; left toe pain/numbness…decreased hearing…mild-mod severe CHL (40-50dB); lumbar spine trauma involving L4 and l5 with radiculopathy confirmed by EMG…traumatic stress syndrome; nervousness; dizziness”(defendants’ notice of motion, exhibit H, bill of particulars).The Medical Findings of Plaintiff’s Treating Physicians and ExpertsPlaintiff was treated by anesthesiologists Gary P. Thomas and Chaim Y. Mandelbaum from Comprehensive Pain Management (CPM). In their disclosure report (CPM Disclosure Report), they concluded that plaintiff is “permanently and totally disabled from his profession as an electrician,” but that he is only “permanently and partially disabled overall” (Sigma’s notice of motion, exhibit L, CPM Disclosure Report, at 129).In addition, plaintiff’s orthopedic surgeon, Dr. Jeffrey Kaplan, examined him on October 3, 2017. In his report, Kaplan noted that plaintiff had not had surgery to his right shoulder, knees, left foot or left toe, and that, while plaintiff had complaints of low back pain, right shoulder pain, knee pain and tingling in his elbows, he did not find that plaintiff had sustained a permanent and total loss of use of an arm, leg, hand or foot.Dr. Daniel Kuhn, plaintiff’s neuro-psychiatrist, treated plaintiff and affirmed his findings in a report. In that report, he noted that plaintiff was able to manage his daily basic needs. However, he also noted that plaintiff does have a moderate degree of psychiatric disability, which limits his ability to adjust to most jobs, and that this disability is permanent.Plaintiff was treated for hearing loss and recurring ear infections by Dr. Alvin Katz, an otorhinolaryngology doctor. Upon examining plaintiff, Dr. Katz found that plaintiff suffers from hearing impairment in his right ear, which is not total.In his report, plaintiff’s neurologist, Dr. R.C. Krishna, sets forth that plaintiff has some limitations with respect to his range of motion in regard to his cervical and thorac-lumbar spine regions, which are related to disc herniations and spasm. The strength of plaintiff’s head, neck and jaw are all within normal limits.Jodi Gelfand, P.A., plaintiff’s life planner, interviewed plaintiff regarding his injuries and their impact on his life. She found plaintiff to be totally disabled from his profession as an electrician, as well as permanently and partially disabled overall. That said, she did not find plaintiff to be unemployable in any capacity.Sigma’s Medical ExpertsIn his report, orthopedist Dr. William Kulak found that “clinical findings in regard to [plaintiff's] cervical and lower spine and right shoulder are minimal,” and that plaintiff had no complaints “in regard to any neurological deficits or symptom” (Sigma’s notice of motion, exhibit R, Kulak’s report). In addition, in his report, neurologist Dr. Roger Bonomo noted that plaintiff had a “good recovery from head trauma and skull fractures and cerebal contusions” (Sigma’s notice of motion, exhibit S, Bonomo’s report).Otolaryngologist Dr. Andrew Cheung also examined plaintiff. In his October 17, 2016 report, he noted that although plaintiff sustained mild hearing loss in his right ear, he does not need a hearing aid. Neuropsychologist Dr. David M. Masur also performed an examination of plaintiff. He maintained that plaintiff is capable of gainful employment on a full-time basis, also noting that he is not vocationally disabled.In plaintiff’s April 22, 2015 deposition, he testified that, with respect to his daily activities, he spends his days “studying [for the] G.E.D…[and] tak[ing] classes at the library, English classes” (plaintiff’s April 22, 2015 tr at 75). Plaintiff typically begins his day by making himself breakfast, usually eggs. When he is at home, plaintiff “read[s] books on-line” and “check[s] [his] [e]mail” (id. at 88). In addition, plaintiff “watch[es] the math exercises on YouTube” (id.).Notably, plaintiff also walks to the library, which is a 30 minute walk from his home. While plaintiff has trouble hearing out of his left ear, he is still about to hear out of his right ear. Surgery for his neck, back and/or left elbow has not been recommended by any doctor. Plaintiff can do all of the daily activities that a person normally does around the house, and he visits with friends on the weekends.Further, in his affidavit, plaintiff stated that:“Because of the accident I sustained massive injuries throughout my body. I sustained a skull injury with multiple fractures, traumatic brain injury with internal bleeding, temporal bone fractures; a perforated lung, a perforated eardrum that required ear surgery, nasal fractures, a fractured scapula, rib fractures, and many more injuries. I was in a coma and unconscious for a period of time.. .. I also had to have a craniotomy due to the severity of my skull fracture; I had a hernia repair as well as a further surgery after my craniotomy”(plaintiff’s aff).Although the Court acknowledges that plaintiff’s injuries are quite serious and unfortunate, plaintiff’s injuries do not rise to the level of “grave injury” as contemplated by Workers’ Compensation §11. Thus, Sigma is entitled to dismissal of all claims asserted against it for contribution and common-law indemnification.Technetek’s Motion To Dismiss Sigma’s Second Third-Party Claims Against ItTechnetek moves to dismiss Sigma’s second-third party claims against it, which sound in contribution and common-law indemnification. Technetek argues that it is entitled to dismissal of said claims because it did not owe any duty to provide fall protection to plaintiff in the first place. In any event, Technetek asserts that the barricade’s purpose was limited to giving notice to workers that it was not safe to go beyond it, and not to make it physically impossible for anyone to pass through or over it.Unlike defendants, Technetek was not an owner or a general contractor, and, as such, it did not have a statutory duty to plaintiff. Therefore, a dispositive question in this case is whether Technetek owed a duty of care to plaintiff, a noncontracting party to the contractual arrangement between McGowan and Technetek (Church v. Callanan Indus., 99 NY2d 104, 111 [2002]; Espinal v. Melville Snow Contrs., 98 NY2d 136, 138 [2002]; Timmins v. Tishman Constr. Corp., 9 AD3d 62, 65 [1st Dept 2004]).To explain, “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal, 98 NY2d at 138). In Espinal, the Court identified three sets of circumstances as exceptions to this general rule, in which a duty of care to noncontracting third parties may arise out of a contractual obligation or the performance thereof (id. at 140; see Church, 99 NY2d at 111-112; Timmins, 9 AD3d at 66).The first set of circumstances arises where the promisor, while engaged affirmatively in discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk (Espinal, 98 NY2d at 139). This conduct has also been described as “‘launch[ing] a force or instrument of harm’” (Church, 99 NY2d at 111, quoting Moch Co. v. Rensselaer Water Co., 247 NY 160, 168 [1928]). Here, whether the accident occurred when plaintiff fell off the ladder and into the stairwell, or whether the accident occurred when the barricade gave way as plaintiff attempted to climb over it, ultimately, plaintiff was injured due to the faulty installation and/or maintenance of the barricade guarding the entrance to the third floor stairwell. A review of the record reveals that Technetek was the subcontractor responsible for the installation and maintenance of said barricade. Therefore, at least a question of fact exists as to whether any negligence on the part of Technetek in performing this work created an unreasonable risk of harm to plaintiff.The second set of circumstances giving rise to a promisor’s tort liability arises where the plaintiff has suffered injury as a result of a reasonable reliance upon the defendant’s continuing performance of a contractual obligation (Espinal, 98 NY2d at 140; see also Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]). Here, it cannot be said that plaintiff detrimentally relied on Technetek’s continued performance of its duties in regard to the barricades at the Premises.The third set of circumstances wherein tort liability will be imposed upon a promisor is “‘where the contracting party has entirely displaced the other party’s duty to maintain the premises safely’” (Church, 99 NY2d at 112, quoting Espinal, 98 NY2d at 140; Palka v. Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 [1994]). As noted previously, McGowan had general responsibilities for site safety at the Project, which may or may not have included making sure that there was proper fall protection in place. Therefore, at least a question of fact exists as to whether Technetek’s responsibilities at the Premises were of the type of “comprehensive and exclusive” property maintenance obligation that would entirely displace the landowner’s duty to maintain the premises safely (Timmins, 9 AD3d at 66, quoting Espinal, 98 NY2d at 141).Thus, Technetek is not entitled to dismissal of the second third-party claims for contribution and common-law negligence claim against it. Further, as Technetek has not identified the cross claims asserted against it, nor has it made any argument in support of their dismissal, Technetek is not entitled summary judgment dismissing said alleged cross claims.CONCLUSION AND ORDERFor the foregoing reasons, it is herebyORDERED that plaintiff Abel Sotarriba’s motion (motion sequence number 005), pursuant to CPLR 3212, for partial summary judgment in his favor as to liability on the Labor Law §240 (1) claim against defendants/third-party plaintiffs 346 West 17th Street LLC, Northquay Properties LLC and McGowan Builders Inc. (collectively, defendants) is granted, and it is further;ORDERED that third-party defendant/second third-party plaintiff Sigma Electric, Inc. (Sigma) motion (motion sequence number 006), pursuant to CPLR 3212, for summary judgment dismissing all claims of contribution and common-law indemnity against it is granted, and these claims are dismissed as to Sigma; and it is furtherORDERED that second-third party defendant Technetek LTD.’s motion (motion sequence number 007), pursuant to CPLR 3212, for summary judgment dismissing the second third-party complaint and all cross claims against it is denied, and it is further;ORDERED that the parts of defendants’ motion (motion sequence number 008), pursuant to CPLR 3212, for summary judgment dismissing the common-law negligence and Labor Law §§200 and 241 (6) claims against them is granted, and these alleged claims are dismissed as against defendants, and the motion is otherwise denied; and it is furtherORDERED that the remainder of the action shall continue; and it is furtherORDERED that, within five days of their receipt of this decision, the parties are directed to call the Part 34 Clerk, 646-386-4613, with all parties on the line, to schedule a status conference.Dated:
