ADDITIONAL CASES Summit Development LLC and CM&B Construction Management & Builders, Inc., Third-Party Plaintiffs v. Montesano Brothers Incorporated, Third-Party Defendant The following papers were considered on the motions: Notice of Motion/Exhibits/Memorandum of Law/Attorney Affirmation/Correspondence/Stipulation/Attorney Affirmation/Exhibits/Memorandum of Law/Statement of Material Facts/Correspondence/Notice of Motion/Attorney Affirmation/Exhibits/Memorandum of Law/Statement of Material Facts/Correspondence/Court Notices/Attorney Affirmation/Exhibits/Response/Exhibits/Court Notice/Attorney Affirmation/Exhibits/Response/Attorney Affirmation/Court Notice (NYSCEF documents numbered 58-159) Decision and Order The injured plaintiff and his wife, suing derivatively, commenced this action to recover damages for personal injuries, alleging violations of Labor Law 240(1), 241(6), and 200 and common law negligence. In motion sequence number one, the plaintiffs move for summary judgment on the issue of liability on so much of the cause of action as alleges violations of Labor Law 240(1) and 241(6). In motion sequence number two, the defendants move for summary judgment dismissing the complaint. The case was recently reassigned to this Part. For reasons explained below, the Court denies the plaintiffs’ motion and grants the defendants’ motion only to the extent of granting that branch of the defendants’ motion which is for summary judgment dismissing so much of the cause of action as alleges violation of Labor Law 200 and common-law negligence, and denying the remaining branches of the defendants’ motion. Construction Management & Builders, Inc. (CMB) served as construction manager or general contractor on a project taking place in Chappaqua. CMB hired Montesano Brothers Incorporated (Montesano) to perform excavation work at the project. Montesano employed the injured plaintiff. One day in January 2018 the injured plaintiff was standing at or near a shoring box that was being installed in an excavation trench that was being dug and shored by Montesano. Excavation of the trench was ongoing. The injured plaintiff hung his arm over a panel of the shoring box that was about chest height. According to the injured plaintiff, he had his arm over the panel so that the excavator operator could see the injured plaintiff’s hand signals. The injured plaintiff testified that he “was giving him [excavator operator] signals for every move he makes[]” because the operator could not see the bottom of the excavation trench (NYSCEF document number 62 [injured plaintiff's deposition]: 129-130). The injured plaintiff fell into the excavation trench and sustained injuries. The injured plaintiff and his wife, suing derivatively, commenced this action to recover damages for personal injuries, alleging violations of Labor Law 240(1), 241(6), and 200 and common-law negligence. In motion sequence number one, the plaintiffs move for summary judgment on the issue of liability on so much of the cause of action as alleges violations of Labor Law 240(1) and 241(6). The defendants oppose the plaintiffs’ motion. In motion sequence number two, the defendants move for summary judgment dismissing the complaint. The plaintiffs oppose the defendants’ motion, except to a limited extent1. Labor Law 240(1) The plaintiffs contend that because there were no safety devices provided to prevent the injured plaintiff’s fall, the defendants violated Labor Law 240(1) as a matter of law. They urge that the injured plaintiff was located where he was at the time he fell because he was assisting the excavator operator to ensure that the trench was not overly excavated, as that could cause a trench collapse. The defendants contend that it was neither reasonable nor necessary for the injured plaintiff to be standing next to the shoring box panel at the time the incident occurred, as he was not required to be there to perform his job, and that no safety devices were needed for the work he was performing at the time of the incident. The defendants urge that the injured plaintiff’s refusal to follow established safety practices was the sole proximate cause of his injuries. “Labor Law 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites” (Loretta v. Split Dev. Corp., 168 AD3d 823, 824 [2d Dept 2019] [internal quotation marks omitted]; see Jones v. City of New York, 166 AD3d 739, 740 [2d Dept 2018]). “To impose liability pursuant to Labor Law 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff’s injuriesWhere there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law 240(1)” (Loretta v. Split Dev. Corp., 168 AD3d at 824 [internal citation and quotation marks omitted]). Here, neither party is entitled to judgment as a matter of law on the Labor Law 240(1) claim. Record evidence reveals the existence of triable issues of fact regarding, among other things, whether the injured plaintiff’s task required him to work in proximity to the excavation trench and shoring box (see Zoto v. 259 W. 10th, LLC, 189 AD3d 1523, 1524 [2d Dept 2020] ["Given the discrepancies in the deposition testimony of the parties concerning the location and nature of the work the plaintiff was performing prior to, and at the time of, the accident, there are triable issues of fact as to whether the plaintiff's tasks required him to be in the living room area in proximity to the opening and whether he was engaged in the type of activity protected by Labor Law 240(1) at the time of the accident"]; see also Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011] ["To recover under section 240(1), Ortiz must establish that he stood on or near the ledge at the top of the dumpster because it was necessary to do so in order to carry out the task he had been given"]; Broggy v. Rockefeller Group, Inc., 8 NY3d 675, 681 [2007] ["To recover under section 240(1), however, plaintiff must establish that he stood on the desk because he was obliged to work at an elevation to wash the interior of the windows"]). Labor Law 241(6) The plaintiffs argue that they are entitled to judgment as a matter of law on their Labor Law 241(6) claim based on violations of Industrial Code 23-1.7(b), 23-4.1(a), and 23-4.2(a). In opposing the defendants’ motion, the plaintiffs also allege violations of Industrial Code 23-1.15 and 23-1.5. The defendants contend that the Industrial Code sections the plaintiffs rely on are inapplicable to the facts of this case. “Labor Law 241(6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of LaborTo prevail on a cause of action alleging a violation of Labor Law 241(6), a plaintiff must establish the violation of an Industrial Code provision that sets forth specific, applicable safety standards, and that his or her injuries were proximately caused by such Industrial Code violation” (Moscati v. Consolidated Edison Co. of N.Y., Inc., 168 AD3d 717, 718 [2d Dept 2019] [internal citations and quotation marks omitted]; see Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]). In this case, neither party is entitled to judgment as a matter of law on the Labor Law 241(6) claim. The record reveals the existence of triable issues of fact as to whether the Industrial Code sections at issue apply to the facts of this case, and whether there were violations of those provisions that were a proximate cause of the accident (see Pereira v. Hunt/Bovis Lend Lease Alliance II, 193 AD3d 1085, 1089-1090 [2d Dept 2021]). Labor Law 200/Common-Law Negligence The defendants argue that there is no evidence that they supervised, directed, or controlled the injured plaintiff or Montesano in the performance of work at the site, and no evidence that they created or had actual or constructive notice of the alleged dangerous condition that proximately caused the accident. The plaintiffs contend that CM&B, as general contractor in charge of the project, had overall responsibility for job safety for the entire site, and had an assigned superintendent at the excavation at the time when the accident occurred. They urge that liability may lie here even without proof of supervision or control since the accident resulted from a dangerous condition. As noted above, the plaintiffs indicate that they “hereby withdraw the Labor Law Section 200/common law negligence case against all defendants, except CM&B” (NYSCEF document number 153). “Labor Law 200 is a codification of the common-law duty imposed on owners, contractors, and their agents to provide workers with a safe place to work” (Marquez v. L & M Dev. Partners, Inc., 141 AD3d 694, 698 [2d Dept 2016]; see Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). “To be held liable under Labor Law 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the workA defendant has the authority to supervise or control the work for purposes of Labor Law 200 when that defendant bears the responsibility for the manner in which the work is performed[T]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law 200 or for common-law negligence” (Marquez v. L & M Dev. Partners, Inc., 141 AD3d at 698 [internal citations and quotation marks omitted]). “Where a plaintiff’s injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a contractor may be liable under Labor Law 200 only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it” (Marquez v. L & M Dev. Partners, Inc., 141 AD3d at 698 [internal quotation marks omitted]). Here, the moving defendants establish, prima facie, that they did not have the authority to supervise or control the performance of the work, and also that they did not create or have notice of the alleged dangerous condition (see Bruno v. T-Mobile, USA, Inc., 176 AD3d 1160, 1162 [2d Dept 2019]; Marquez v. L & M Dev. Partners, Inc., 141 AD3d at 699). The plaintiffs fail to raise a triable issue of fact in opposition. The parties’ remaining contentions, to the extent not discussed above, do not warrant a contrary determination. Accordingly, it is, ORDERED that the plaintiffs’ motion for summary judgment on the issue of liability on so much of the cause of action as alleges violations of Labor Law 240(1) and 241(6) is denied; and it is further, ORDERED that the defendants’ motion for summary judgment dismissing the complaint is granted only to the extent that the branch of the defendants’ motion which is for summary judgment dismissing so much of the cause of action as alleges violation of Labor Law 200 and common-law negligence is granted, and the remaining branches of the defendants’ motion are denied; and it is further, ORDERED that the plaintiffs must, within ten days of the date of entry, serve a copy of this decision and order with notice of entry upon the other parties; and it is further, ORDERED that the plaintiffs must, within ten days after service of the notice of entry, file proof of that service via NYSCEF. This constitutes the decision and order of the Court. Dated: August 18, 2021
