After oral arguments, the following papers were read on this motion pursuant to CPLR 2219(a): Papers Numbered Plaintiff’s Notice of Motion for Summary Judgment on the issue of liability against Defendant Bermuda Realty, No. 2 LLC, dated 2/14/2022 (NYSCEF #55), Attorney Affirmation of Martin J. Moskowitz, affirmed on 2/14/2022 (NYSCEF #56), Exhibits (NYSCEF #57-69), Memorandum of Law in Support (NYSCEF #70), Statement of Material Facts (NYSCEF # 71) 55-71 Defendant Bermuda Realty No. 2 LLC’s Attorney Affirmation of Kenneth R. Lange in Opposition, affirmed on 5/15/2022 (NYSCEF #73), Statement of Material Facts (NYSCEF #74) 73-74 Plaintiff’s Attorney Reply Affirmation of Martin J. Moskowitz, affirmed on 5/17/2022 (NYSCEF #75), Exhibit (NYSCEF #76) 75-76 ADDITIONAL CASES Bermuda Realty, No. 2 LLC, Third-Party Plaintiff v. Bloc Builders Group Inc., Third-Party Defendant DECISION/ORDER I. Background Plaintiff commenced this action by filing a summons and complaint on September 12, 2019 alleging a work site injury that occurred on August 22, 2019 as a result of the defendants’ alleged negligence and violations of the Labor Law. Issue was joined by defendant Bermuda Realty, No. 2 LLC (“defendant Bermuda Realty”), owner of the premises, by filing its answer on November 12, 2019. On June 2, 2020, defendant Bermuda Realty filed a third-party summons and complaint against Bloc Builders Group Inc., the general contractor working on site at the time of the accident. The action was discontinued without prejudice against defendant Associated Supermarket Group, LLC s/h/a Associated Supermarket Group, on November 5, 2020. Defendant ADK Food Corp., the tenant of the premises, failed to answer or appear, and plaintiff was granted a default judgment against defendant ADK Food Corp. on December 11, 2020. Plaintiff now moves for partial summary judgment against defendant Bermuda Realty on the issue of liability under Labor Law §240(1) and Labor Law §241(6) based on violations of 12 NY Comp. Codes Rules and Regs (“NYCRR”) 23-1.7(a)(1), 23-1.7(b), 23-3.3(b), and 23-3.3(c). Defendant Bermuda Realty owned the premises located at 455 Sutter Avenue, Brooklyn, NY (“the premises”). Defendant Bermuda Realty hired Bloc Builders as a general contractor to demolish the interior of the supermarket on the premises. On August 29, 2019, the date of plaintiff’s accident, plaintiff was in the employ of Bloc Builders. Plaintiff was tasked with demolishing a small cubicle/room located inside the supermarket, which plaintiff described as a freezer type-room at his examination before trial. The cubicle/room had its own walls and its own ceiling. Plaintiff testified that he was provided with a helmet, safety glasses, gloves, and a hammer to perform demolition work but that he was not trained on how to perform said demolition work or given instructions from anyone other than a Bloc Builders’ employee named “Mike.” On the date of the accident, plaintiff was demolishing the cubicle/room’s walls. He stepped out of said room to search for tools when a piece of the supermarket ceiling collapsed on him. At his deposition, plaintiff stated that when he exited the cubicle/room he observed another worker on a scaffold cutting with an electrical saw immediately before the ceiling collapsed. The piece of ceiling was made of wood, was 20 feet long by 10 feet wide, and fell on plaintiff’s head and neck, knocking him to the floor. Plaintiff testified that he was wearing his hard hat and safety glasses when the accident occurred. While the statement of facts in support of plaintiff’s motion for summary judgment states that there was no “overhead protection, demolition plan or inspection, [and] no shoring before a 20′ by 10′ area of ceiling collapsed,” plaintiff’s cited testimony (NYSCEF #65 at pages 28, 30-31, 40-41) does not support these contentions. Jack Bawabeh, a member of defendant Bermuda Realty, testified on behalf of defendant at an examination before trial. Bawabeh testified that he had not been to the work site in 25 years and that he was unsure what type of work was being performed on the premises. He further stated that no one from Bermuda Realty was at the premises on a day-to-day basis when the subject work was being performed, that he was unsure if anyone from Bermuda Realty would visit the premises during the time the subject work was being performed, and that no one from Bermuda Realty was supervising the work being performed at the site. II. Standard of Review A motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967, 520 N.E.2d 512 (Ct. of Ap. 1988); Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718 (Ct. of Ap. 1980). On such a motion, the evidence will be construed in a light most favorable to the party against whom summary judgment is sought. Spinelli v. Procassini, 258 A.D.2d 577, 686 N.Y.S.2d 446 (2d Dep’t 1999). III. Liability under Labor Law §241(6) Labor Law §241(6) requires owners and contractors 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 Labor. Oss v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 501-02, 601 N.Y.S.3d 49 (Ct. of Ap. 1993). “It is well settled that Labor Law §241(6) imposes a nondelegable duty on owners and contractors regardless of their control or supervision of the work site.” Whalen v. City of New York, 270 A.D.2d 340, 342, 704 N.Y.S.2d 305 (2d Dep’t 2000) (citing Allen v. Cloutier Const. Corp., 44 N.Y.2d 290, 291, 376 N.E.2d 1276 [Ct. of Ap. 1978]). To establish a cause of action under Labor Law §241(6), a plaintiff must show that the defendant violated a specific provision of the Industrial Code. Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 497-98, 618 N.E.2d 82 (Ct. of Ap. 1993). Here, plaintiff moves for summary judgment under Labor Law §241(6) based on defendant Bermuda Realty’s violations of Industrial Code provisions 12 NYCRR 23-1.7(a)(1), 23-1.7(b), 23-3.3(b), and 23-3.3(c). Defendant Bermuda Realty opposes plaintiff’s motion, asserting that plaintiff has not established entitlement to summary judgment under Labor Law §241(6) based on a violation of 12 NYCRR 23-1.7(a)(1). a. 12 NYCRR 23-1.7(a)(1) Industrial Code provision 12 NYCRR 23-1.7(a)(1) states: Overhead hazards. Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot. Defendant argues that the area where plaintiff’s accident allegedly took place was not “normally subject to falling material or objects” as required by 12 NYCRR 23-1.7(a)(1). Plaintiff relies heavily on a Bronx County Supreme Court case, Velasquez v. Grand Concourse Associates Ltd. Partnership, No. 303967/2014E, 2021 WL 6619723, at *3 (N.Y. Sup. Ct. Sep. 14, 2021), to argue that 12 NYCRR 23-1.7(a)(1) is applicable here. That case stands for the proposition that it is foreseeable that if one strikes a metal frame meant to hold up ceiling materials, that could proximately cause injury due to falling objects, creating liability under Labor Law §240(1). Id. The court does not state this creates liability under Labor Law §241(6) for a violation of 12 NYCRR 23-1.7(a)(1). 12 NYCRR 23-1.7(a)(1) is applicable where the area where plaintiff was working was normally exposed to falling material or objects, not where it is merely foreseeable that an object could fall. See Amerson v. Melito Const. Corp., 45 A.D.3d 708, 709, 845 N.Y.S.2d 457 (2d Dep’t 2007) (finding 12 NYCRR 23-1.7[a][1] applicable where the plaintiff’s “regular duties included…scraping and removing the mortar which fell to the loading dock floor of the new supermarket as a result of the construction of the concrete block wall some 12 to 20 feet above him.”); see also Parrales v. Wonder Works Const. Corp., 55 A.D.3d 579, 580-81, 866 N.Y.S.2d 227 (2d Dep’t 2008) (granting plaintiff summary judgment on its Labor Law §241(6) claim for a violation of 12 NYCRR 23-1.7[a][1] where plaintiff was tasked with removing debris from the bottom of an elevator shaft which was used as a chute for workers on upper floors to depose of debris). Moreover, the Second Department is clear that an area is not one “normally exposed to falling objects” just because construction is being performed and an object falls as a result. See Marin v. AP-Amsterdam 1661 Park LLC, 60 A.D.3d 824, 826, 875 N.Y.S.2d 242 (2d Dep’t 2009). Particularly applicable are the facts in Mercado v. TPT Brooklyn Assocs., LLC, 38 A.D.3d 732, 733, 832 N.Y.S.2d 93, 94 (2d Dep’t 2007). In Mercado, plaintiff was performing interior demolition work and sustained injuries when a piece of ceiling collapsed and struck him. The Second Department held that 12 NYCRR 23-1.7(a)(1) was “inapplicable because the area where the plaintiff was working was not one where workers were ‘normally exposed to falling objects.’” Id. Here, plaintiff failed to meet his burden as he did not provide any evidence or testimony that the area where he was injured was “normally exposed to falling objects.” b. 12 NYCRR 23-1.7(b) While defendants do not oppose summary judgment under Labor Law §241(6) based on a violation of 12 NYCRR 23-1.7(b), that industrial code provision is inapplicable here. 12 NYCRR 23-1.7(b) addresses falling hazards as they pertain to (1) hazardous openings and (2) bridge or highway overpass construction. The latter subsection is clearly inapplicable here. With respect to the first subsection, “[t]hat regulation is applicable to a plaintiff who falls through a hazardous opening.” Godoy v. Baisley Lumber Corp., 40 A.D.3d 920, 923, 837 N.Y.S.2d 682, 685 (2d Dep’t 2007); see also Messina v. City of New York, 300 A.D.2d 121, 123, 752 N.Y.S.2d 608, 610 (1st Dep’t 2002) (“The safety measures required [in 12 NYCRR 23-1.7(b)] — planking installed below the opening, safety nets, harnesses and guard rails — all bespeak of protections against falls from an elevated area to a lower area through openings large enough for a person to fit.”). Looking at the regulation as a whole and relevant case law, 12 NYCRR 23-1.7(b) was not intended to apply to the facts involved in this case. c. 12 NYCRR 23-3.3(b) and (c) Plaintiff’s final Labor Law §241(6) claim is predicated on Industrial Code provisions 12 NYCRR 23-3.3(b) and (c). Industrial Code provision 12 NYCRR 23-3.3(b)(2) is inapplicable here as it applies to masonry. Plaintiff described the piece of ceiling that fell on him as wood and failed to submit any testimony or evidence that masonry fell in this case. Industrial Code provision 12 NYCRR 23-3.3(b)(3) states: Demolition of walls and partitions. Walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration. Industrial Code provision 12 NYCRR 23-3.3(c) states: Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means. While the statement of facts in support of plaintiff’s motion for summary judgment states that there was no “overhead protection, demolition plan or inspection, [and] no shoring before a 20′ by 10′ area of ceiling collapsed,” plaintiff’s cited testimony (NYSCEF #65 at pages 28, 30-31, 40-41) does not support these contentions. Plaintiff’s testimony makes no mention of the lack of overhead protection, shoring, bracing, unguarded conditions, a demolition plan, or inspections. While plaintiff’s attorney Martin J. Moskowitz’s reply affirmation correctly states that defendant Bermuda Reality has proffered no evidence of a demotion plan, any inspections performed, or shoring/bracing to prevent the ceiling from collapsing, “a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent’s proof, but must affirmatively demonstrate the merit of its claim or defense.” Mennerich v. Esposito, 4 A.D.3d 399, 400, 772 N.Y.S.2d 91, 93 (2d Dep’t 2004). Accordingly, triable issues of fact exist as to whether Industrial Code provisions 23-3.3(b)(3) and (c) apply to the facts of this action. IV. Liability under Labor Law §240(1) Finally, plaintiff moves for summary judgment pursuant to Labor Law §240(1), which states: 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 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. “In order to establish liability under Labor Law §240(1), there must be a violation of the statute, and the violation must be a proximate cause of the plaintiff’s injury.” Cioffi v. Target Corp., 188 A.D.3d 788, 790, 134 N.Y.S.3d 408, 412 (2d Dep’t 2020) (internal citations omitted). “[A]n accident alone does not establish a Labor Law §240(1) violation or causation.” Blake v. Neighborhood Hous. Servs. of New York City, Inc., 1 N.Y.3d 280, 289, 803 N.E.2d 757, 762 (Ct. of Ap. 2003). “Proximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident; however, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action.” Grieve v. MCRT Ne. Constr., LLC, 197 A.D.3d 623, 624, 153 N.Y.S.3d 80, 82 (2d Dep’t 2021) (internal citations omitted). Here, plaintiff is not entitled to summary judgment under Labor Law §240(1) for the same reasons that he is not entitled to summary judgment pursuant to Industrial Code provisions 12 NYCRR 23-3.3(b)(3) and (c). Plaintiff does not testify, and there is no affidavit from an expert or any other evidence, addressing the presence, or lack thereof, of any devices, overhead protection, or shoring that would have protected him or prevented the ceiling from collapsing. The statement of facts alleging such without any evidence or testimony from the plaintiff, and the reply affirmation pointing to gaps in its opponent’s proof are insufficient to eliminate all issues of material fact with respect to plaintiff’s Labor Law §240(1) claim. Based on the foregoing it is, ORDERED, that plaintiff’s motion for summary judgment is DENIED in its entirety. All other requests for relief are denied. This constitutes the decision and order of the Court.
