The following papers numbered 1 to 7 were read on this motion for summary judgment: Notice of Motion, Affirmation in Support and annexed exhibits 1 Answering Affirmations, Memorandum of Law and annexed exhibits 2, 3, 4, 5, 6 Reply Affirmation 7 ADDITIONAL CASES 450 Partners, LLC, Third-Party Plaintiff, v. Coach, Inc., Third-Party Defendant ACC Construction Corporation, Second Third-Party Plaintiff, v. Bond Painting Company, Inc. and Commercial Electrical Contractors, Second Third-Party Defendants. 450 Partners LLC, ACC Construction Corporation and Coach, Inc., Third Third-Party Plaintiffs, v. JRM Construction Management, LLC Third Third-Party Defendant JRM Construction Management, LLC Fourth Third-Party Plaintiff, v. Broadway Electric, LLC, Fourth Third-Party Defendant. DECISION AND ORDER The plaintiff seeks summary judgment against 450 Partners LLC (hereinafter 450 Partners), the owner of the subject premises, and ACC Construction Corporation (hereinafter ACC), the general contractor, based on a violation of Labor Law §§240(1) and 241(6). The plaintiff has asserted Labor Law §200 and common law negligence claims, but is not seeking summary judgment on those causes of action. For the reasons set forth below, the plaintiff’s motion is denied. On November 17, 2011, the plaintiff, a painter employed by Bond Painting Company, Inc. (hereinafter Bond), was skim coating and/or spackling the tops of columns 10 to 12 feet high at the subject construction project, and fell from the scaffolding, allegedly sustaining personal injuries. The plaintiff claims that he fell after receiving an electric shock from a live electrical box which he had grabbed onto while performing his work. Just prior to his fall, the plaintiff was attempting to reach around the column and held onto the electrical box for support. Bond was hired by ACC to paint walls, ceilings and doors, and to perform wall preparation on the seventh floor of the premises, which was undergoing a complete renovation. According to the plaintiff’s testimony, the scaffolding had four wheels which were locked in place by him that day, and a platform of wooden boards suspended approximately four to five feet from the floor. He testified that the scaffolding did not have metal rails on the sides. Angelo Rago, the plaintiff’s supervisor from Bond, testified that he did not witness the accident, and that when he arrived on the scene after the plaintiff’s fall he observed that the scaffold had remained standing in place and that it had safety rails, however he could not recall the height of the rails. Mr. Rago further testified that the type of scaffold used by the plaintiff, i.e. a Baker’s scaffold, was appropriate for the work being performed, and that it had safety rails that were adjustable to the height of the platform. The plaintiff testified that he could not recall what occurred from the time he grabbed onto the electrical box to the time he woke up on the floor, and confirmed that the scaffold was in the same position it had been prior to the accident. The plaintiff asserts that he has a viable claim under Labor Law §240(1) because he was not provided with an adequate safety device, causing him to fall from an elevated scaffold approximately six feet, in the course of his work. The plaintiff contends that he was not provided with any ropes or other devices to tie off of the scaffolding, and that the scaffold did not have any safety rails. He argues that even if the scaffolding did have safety rails they were not adequate in preventing the fall. The plaintiff’s claim under Labor Law §241(6) stems from the presence of live wires in the work space, and the failure to warn the workers in the area that there were live wires. In support of the motion the plaintiff submits the pleadings, deposition transcripts of the plaintiff, Angelo Rago for Bond, Kenneth Martin for ACC, Michele Sabatiele for 450 Partners, Peter Blau for Commercial, Mitchell Feinberg for Coach Inc. and Mirsad Koljenovic, a non-party witness and former employee of ACC. The plaintiff also submits the unsworn EC-2 accident report dated November 22, 2011 generated by the plaintiff’s employer, Bond, a three-page handwritten unsworn incident report dated November 17, 2011, a work proposal dated February 25, 2011 between JRM and Coach, a subcontract agreement dated August 8, 2011 between ACC and Coach, and a lease between 450 and Coach of December, 2004. Defendants 450 and ACC argue, inter alia, that the issue of whether a safety device provided proper protection is a triable issue of fact for determination by a jury. The defendants further maintain that the plaintiff has not submitted any evidence or expert report concerning whether the scaffolding was an adequate safety device for the work being performed. The defendants assert that the scaffold did not fail, and that issues of fact exist concerning whether the scaffolding had safety rails, and if so, whether the plaintiff used them or failed to adjust them properly. The defendants also maintain that there is an issue of fact concerning whether the plaintiff was the sole proximate cause of the accident, based on his testimony that he chose not to use a ladder that was accessible to him, so he could more easily reach the area he was painting/spackling. The defendants assert that it would not have been necessary for the plaintiff to hold onto the electrical box and reach around the column while standing on the scaffold if he had used the ladder to access the area. The proponent of a summary judgment motion must make a prima facie showing of entitlement as a matter of law, and submit sufficient admissible evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr. 64 NY2d 851 (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.” Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). In order to impose absolute liability under Labor Law §240(1) the plaintiff must show that the owner or general contractor’s failure to provide proper protection to workers employed on a construction site proximately caused injury to a worker. See Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 (2011). An accident alone does not establish a Labor Law §240(1) violation, rather the plaintiff is required to show that the violation was a contributing cause of his/her fall. See Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 NY3d 280 (2003). Generally, the issue whether a particular safety device provided proper protection is a question of fact for the jury. In Nazario v. 222 Broadway, LLC, 28 NY3d 1054 (2016), the Court of Appeals reversed the Appellate Division, First Department’s holding that plaintiff was entitled to summary judgment because the plaintiff established that the ladder from which he fell did not provide adequate protection for the work that was being performed. The Appellate Division held that the plaintiff’s burden was only to show that the absence of adequate safety devices, or the inadequacy of the safety devices provided to the plaintiff was a proximate cause of his injuries. See Nazario v. 222 Broadway, LLC, 135 AD3d 506 (1st Dept 2016). In reversing the Appellate Division’s determination, the Court of Appeals held that “[q]uestions of fact exist as to whether the ladder failed to provide proper protection, and whether plaintiff should have been provided with additional safety devices.” Nazario v. 222 Broadway, LLC, 28 NY3d at 1055. The holding in Nazario is in accord with Alava v. City of New York, 246 AD2d 614, 615 (2d Dept 1998), where the Appellate Division Second Department held that “a fall from a scaffold does not establish, in and of itself, that proper protection was not provided…and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury.”; see also Delahaye v. Saint Anns School, 40 AD3d 679, 682-683 (2d Dept 2007) (“generally, the issue of whether a particular safety device provided proper protection is a question of fact for the jury”); Garbacki v. Hovnani at 80 N. Westchester, 248 AD2d 434 (2d Dept 1998) (holding that whether the scaffold provided proper protection within the meaning of Labor Law §240(1) was a question of fact for the jury). Based on the foregoing, the plaintiff has demonstrated his prima facie entitlement to summary judgment as a matter of law based on the pleadings, his deposition testimony, and the testimony of the defendants’ witnesses, that the plaintiff was a covered worker under Labor Law §240(1), and was injured when he fell from a scaffold after receiving an electric shock while performing his work. In opposition, the defendants have raised triable issues of fact as to the adequacy of the safety device provided to the plaintiff in light of the work he was performing, and whether additional safety devices were required. The cases cited by the plaintiff in support of his motion are distinguishable from the facts presented here. The plaintiff cites to Smith v. County of Nassau, 242 AD2d 380 (2d Dept 1997), in which the Appellate Division, Second Department concluded that Labor Law §240(1) was inapplicable because there was no elevation differential when the plaintiff fell against the railing of the scaffolding but did not fall off of it after being electrocuted. The plaintiff argues that unlike the plaintiff in Smith, he did fall from the scaffolding after receiving the electric shock, and therefore Labor Law §240(1) is applicable. The plaintiff’s reliance on Smith is misplaced, since the issue here is not whether the plaintiff fell from an elevation differential, but rather whether the scaffolding provided adequate protection for the work being performed. Moreover, the plaintiff’s reliance on Quackenbush v. Gar-Ben Assoc., 2 AD3d 824 (2d Dept 2003) is unavailing because it involved a jury determination, not a summary judgment motion. The standard utilized by the Appellate Division, Second Department was not whether a triable issue of fact existed, but whether there was any “rational process” by which the jury could find in favor of the defendants. Id. at 825. In Quackenbush, the plaintiff was electrocuted while using a ladder and he fell 14 feet below. Based on the unrebutted evidence adduced at trial by the plaintiff, the Court held that the defendant did not provide him with proper protection from height-related dangers connected with his work, and the ladder was inadequate to prevent him from falling. Id. The plaintiff also relies on Nimirovski v. Vornado Realty Trust Co., 29 AD3d 762 (2d Dept 2006), a case in which the Appellate Division, Second Department found that the plaintiff was not provided with the proper safety device, which proximately caused the plaintiff’s injuries. In Nimirovski, the plaintiff fell from the scaffold when part of the storefront on which the plaintiff was performing work, fell and struck the base of the scaffolding causing it to shake. The Court found that it was foreseeable that a piece of metal would strike the scaffold and cause it to move. The Court explained that scaffolding alone was not sufficient protection in light of the work being performed, i.e. removal of part of the metal storefront. The facts of Nimirovski are distinguishable from the instant case. Here, the plaintiff’s work involved painting and applying skim coating, and had nothing to do with the electrical box which contained live wires. Moreover, the plaintiff’s supervisor, Mr. Rago, testified that the scaffold was appropriate for the work the plaintiff was performing. Further, there are issues of fact concerning whether there were safety rails on the scaffolding, and whether safety rails would have prevented the plaintiff’s fall. The plaintiff also alleges summary judgment should be granted under Labor Law §241(6) based on the defendants’ violation of 12 NYCRR §§23-1.13(b)(3) and 1.13(b)(4) of the Industrial Code. Section 1.13(b)(3) requires that: [b]efore work is begun the employer shall ascertain…whether any part of an electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool or machine into physical or electrical contact therewith. The statute goes on to state that the employer: shall post and maintain proper warning signs where such a circuit exists. He shall advise his employees of the locations of such lines, the hazards involved and the protective measures to be taken. Section 1.13(b)(4) of the Industrial Code provides that: [n]o employer shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of this work unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means. Labor Law §241(6) imposes a nondelegable duty on 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.” See Lopez v. New York City Dept. of Envtl. Protection, 123 AD3d 982, 983 (2d Dept 2014); see also Perez v. 286 Scholes St. Corp., 134 AD3d 1085, 1086 (2d Dept 2015). To prevail on a Labor Law §241(6) cause of action, a plaintiff must allege and prove a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code. See Misicki v. Caradonna, 12 NY3d 511 (2009); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993). However, even if a plaintiff establishes, as a matter of law, that the defendant violated a concrete specification of the Industrial Code, granting summary judgment on that claim is not appropriate. As the Appellate Division, Second Department explained in Seaman v. Bellmore Fire District: [W]here such a violation is established, it does not conclusively establish a defendant’s liability as a matter of law, but constitutes some evidence of negligence and “thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.” Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 351 (1998); see also Long v. Forest-Fehlhaber, 55 NY2d 154, 160 (1982). Seaman v. Bellmore Fire Dist., 59 AD3d 515 (2d Dept 2009). Accordingly, the plaintiff has failed to establish his prima facie entitlement to summary judgment as a matter of law against defendants 450 Partners and ACC on the issue of liability under Labor Law §§240(1) and 241(6), and therefore the plaintiff’s motion for summary judgment must be denied. The remaining contentions are without merit. IT IS HEREBY ORDERED, that the plaintiff’s motion for summary judgment pursuant to Labor Law §§240(1) and 241(6) is denied. This constitutes the decision and order of the Court. Dated: May 20, 2021 Note: This signature was generated electronically pursuant to Administrative Order 86/20 dated April 20, 2020.
