Opinion
Index No. 28781/2018E
02-24-2022
Arturo E. GONZALEZ, Plaintiff, v. ERY TENANT LLC et al., Defendant(s).
Counsel for plaintiff: Jonathan O. Michaels, Esq., Pena & Kahn, PLLC, 1250 Waters Place, Suite 901, Bronx, N.Y. 10461 Counsel for defendants: Thomas J. Reilly, Porzio, Bromberg & Newman, P.C., 1675 Broadway, Suite 1810, New York, N.Y. 10019
Counsel for plaintiff: Jonathan O. Michaels, Esq., Pena & Kahn, PLLC, 1250 Waters Place, Suite 901, Bronx, N.Y. 10461
Counsel for defendants: Thomas J. Reilly, Porzio, Bromberg & Newman, P.C., 1675 Broadway, Suite 1810, New York, N.Y. 10019
Mary Ann Brigantti, J.
The following papers numbered _57_ to _102_were read on these motions (Seq. No. 3) for SUMMARY JUDGMENT noticed on June 23, 2021 and duly submitted as Nos. on the Motion Calendar of August 16, 2021 Sequence No. NYSCEF Doc. Nos.
Notice of Motion — Exhibits and Affidavits Annexed 57-72
Cross Motion — Exhibits and Affidavits Annexed 76-90
Answering Affidavit and Exhibits, Memorandum of Law
Reply Affidavit 92-101; 102
This motion is decided in accordance with the accompanying memorandum decision.
Upon the foregoing papers, the plaintiff Arturo E. Gonzalez ("Plaintiff") moves for an order granting him partial summary judgment pursuant to CPLR 3212 against the defendants on the issue of liability under New York Labor Law §§ 240(1) and 241(6), and for such other and further relief as this Court deems just and proper. The defendants ERY Tenant LLC ("ERY"), Hudson Yards Construction, LLC ("HYC"), and Tishman Construction Corp. ("Tishman") (collectively, "Defendants") oppose the motion and cross-move for summary judgment, dismissing Plaintiff's complaint, pursuant to CPLR 3212. Plaintiff opposes the cross-motion.
I. Background
This matter arises out of an alleged accident that occurred at a construction site. ERY was the ground lessee and developer of property located at 553 West 30th Street in New York, New York (the "Hudson Yards Site"). Prior to the accident, ERY had entered into agreement with defendant HYC in which HYC was to act as the Executive Construction Manager of a platform overbuild project at the Hudson Yards Site. HYC then entered into an agreement with Tishman, in which Tishman was to serve as the project's general contractor. HYC also entered into an agreement with nonparty Barrett, Inc. ("Barrett"), in which Barrett would serve as a trade contractor on the project, performing waterproofing, insulation and "geofoam" work. At the time of the accident Plaintiff was working as a roofing laborer for Barrett.
Plaintiff testified that at relevant times he was installing "geofoam" at the work location. Geofoam was a Styrofoam-like material that came in large blocks and was used to give volume to concrete that was to be installed. The blocks of geofoam were about three feet high and had to be cut with a hot wire and installed in a manner that would accommodate for pipes that were on the ground around the work site. The blocks would be placed as close as possible to a pipe, and then the next block would be placed on the other side of the pipe. When working with the geofoam blocks, Plaintiff would occasionally have to stand on top of them to ensure that they were correctly installed.
On the morning of the accident, Plaintiff was standing on top of a geofoam block located against a wall that had waterproofing and protection. Plaintiff was checking to make sure the block was installed correctly, and no materials were wrinkled. At some point, Plaintiff's foreman Felipe Silva ("Silva") asked him to come down and help with other work that needed to be done. Plaintiff was attempting to get down from the block by standing near the edge of it and lowering his foot to a rounded black pipe that was near the floor next to the block. Plaintiff had intended to step onto the pipe and then step from the pipe to the floor. Plaintiff testified that as he was lowering his foot from the edge of the block, a piece of the block broke, causing Plaintiff to fall. While falling, Plaintiff's right heel hit the pipe, and Plaintiff fell to the ground. No one had ever told Plaintiff not to use the pipe to descend from the block, but he understood that it was dangerous because the pipe was rounded and slippery and had no flat surface. Plaintiff had told his foreman that ladders or ramps should be used to access the geofoam blocks. Plaintiff testified that sometimes workers would use smaller pieces of geofoam as steps to go up and down the blocks.
At his deposition, Plaintiff was shown a written statement that he signed shortly after the accident. In the statement, Plaintiff alleged that he was stepping off the geofoam and put his foot onto the piping so he could step to the ground. The pipe was about 15 inches off the ground, and when Plaintiff put his weight on the pipe, his foot slipped forward and Plaintiff fell backward, onto the ground. Plaintiff also signed a workers’ compensation form after the accident where he stated that the accident occurred when he slipped on a pipe. Plaintiff testified that his written statement was not accurate — he testified that he speaks mostly Spanish, and he signed the statement, which was in English, without reviewing it or having it translated. Plaintiff signed the statement after speaking with someone at the job site who asked him many questions.
Plaintiff's co-worker John Shortt ("Shortt") testified that he witnessed the accident. In a written statement, Shortt alleged that he was working with Plaintiff on the geofoam when Plaintiff proceeded to step off it. Plaintiff stepped from the foam to "step onto the pipe and that's when he slip on the pipe and fell over and hit his back on the pipe before he hit the ground." Shortt did not recall whether a piece of geofoam broke under Plaintiff's feet before he fell. He testified "all I know is, he was stepping off the geofoam." Shortt was about six feet away from Plaintiff when the incident occurred. He testified that there was no other way to get down from the geofoam blocks besides stepping on the pipes.
Silva, Plaintiff's supervisor and Barrett's foreman, provided a written report of the accident. The report states that the workers were installing a drainage mat and protection board on the wall behind the foam, and Plaintiff was stepping down with his left foot when he slipped and hit his back on the pipe and flipped backwards. At his deposition, Silva testified that Plaintiff was stepping down from the foam onto the pipe, and Plaintiff told him that the accident occurred because he "slipped on the pipe." Silva did not recall Plaintiff or anyone else saying anything to him regarding a piece of geofoam breaking underneath Plaintiff's feet.
Donald Brehm ("Brehm") was employed by Total Safety Consultants, a licensed safety manager, and he was working at the Hudson Yards Site as its site safety manager at the time of the accident. Brehm did not witness the accident himself but he was notified of it by Silva. When he responded to the scene Plaintiff was lying on the floor. His recollection upon speaking with Plaintiff was that the accident occurred when Plaintiff was stepping down off the block and putting his left foot on a black pipe and he slipped, causing him to land on his lower back. Brehm did not recall whether Plaintiff told him that a piece of geofoam had broken underneath his feet. He testified that workers "should have a proper step or ladder to reach the height, that height." Brehm testified that he wouldn't consider using the pipe a safe means of accessing the top of the foam because it was not a flat surface.
Brian Monteiro ("Monteiro"), assistant superintendent of Tishman, appeared for a deposition and was aware of the accident although he did not witness it. Monteiro testified that he had previously observed workers standing on top of the geofoam, which he estimated was 3-4 feet high. He stated that a ladder or step stool could be used to safely access such elevated work areas, but he acknowledged that no such devices had been used at this site. Monteiro further testified that he would not consider it safe to step onto a pipe to access the work area.
In further support of the motion, Plaintiff provides the trade contract between HYC and Barrett which required Barrett to inter alia take direction from both HYC and Tishman, acting as the general contractor, with full authority to manage and coordinate construction activities and the site and authorize changes in the work. The construction agreement between HYC and Tishman granted Tishman the authority to supervise and manage the work and implement and enforce a safety program.
Plaintiff also provides an affidavit from Nicholas Bellizzi, P.E. ("Bellizzi"), who reviewed the relevant testimony and documentation, and opined that Plaintiff was exposed to an elevation-related hazard and not provided proper protection as required by Labor Law § 240(1). He notes that all witnesses agreed that Barrett workers were not provided with any ladders, steps, ramps or railings, to assist them in safety stepping up onto or climb down from their elevated work level atop the geofoam. The workers therefore had to either jump down from the geofoam which was inherently unsafe or attempt to step down by placing their feet on a pipe located approximately 12-18 inches off the ground. The pipe was dangerous because it was rounded and slippery due to winter frost and/or water. Bellizzi states that regardless of whether Plaintiff was attempting to jump directly from the geofoam onto the ground or attempting to first step onto the pipe, the accident was the result of the total failure to provide him with necessary elevation safety devices for the work. As for the Labor Law § 241(6) violation, Bellizzi claims that Industrial Code § 23-1.7(f) was violated because no stairways, ramps or runways were provided as a means of accessing Plaintiff's above-ground working level. Industrial Code § 23-1.7(d) was violated because the pipe used to assist Plaintiff in gaining access to the geofoam was a slippery condition. Bellizzi further contends that Labor Law § 200 was violated as Plaintiff was confronted with an unsafe condition that led to his accident.
Relying on the above, Plaintiff argues that he is entitled to summary judgment on his Labor Law § 240(1) and 241(6) claims based on failure to comply with Industrial Code §§ 23-1.7(d) and 23-1.7(f).
In opposition to the motion and in support of their cross-motion, Defendants argue that Labor Law § 240(1) does not apply to the "step-down" type of fall that occurred here. Defendants allege that caselaw has held that step-down falls from negligible heights do not present the type of elevation-related risk contemplated by the statute.
Defendants support their motion with an affidavit from Joseph McHugh, P.E. ("McHugh"), who opines that the geofoam block was not an elevation-related hazard. He states that the block's relatively low elevation would have rendered the use of any safety devices impractical and improper, as step stools or ramps would have created a tripping hazard, and given the existence of moisture, a ramp would not have been safe. McHugh further alleges that a ladder would not have worked since "basic" ladders need three points of contact for stability. It would have been impossible to maintain this for a block that was only three feet off the ground. He adds that Plaintiff's account of the accident — that geofoam broke beneath his feel — differs from both his original statements and witness's testimony regarding the accident. These inconsistencies make it difficult to determine the exact cause of the accident or whether the use of any safety device would have prevented the injuries.
McHugh further states that, assuming the foam broke, safety devices would not have prevented the accident. No device would have prevented the geofoam from breaking beneath plaintiff's feet. He also opines that the Industrial Codes cited in support of Plaintiff's Labor Law § 241(6) claims are inapplicable. Plaintiff did not slip on a "foreign substance" (Industrial Code § 23-1.7[d]), and since the use of a ramp or stairway was impractical, § 23-1.7(f) was not violated. McHugh also states that, for the same reasons, Labor Law § 200 was not violated since no form of reasonable protection could have been provided to Plaintiff. Defendants further allege in their memorandum of law that the pleaded Industrial Codes §§ 23-1.7(e)(1) and (e)(2) are inapplicable to these facts.
Defendants further contend that Plaintiff's Labor Law § 200 and common law negligence claims must be dismissed because they did not have control over the work site or have actual or constructive notice of any hazardous condition, and did not supervise or control Plaintiff's work.
Finally, Defendants argue that Plaintiff's motion must be denied because there are inconsistent accounts of the accident. Written statements provided by Plaintiff state that the accident occurred when he was slipped on a pipe. However, at deposition, Plaintiff changed his story and stated that he fell when the piece of geofoam broke beneath him. Defendants argue that these inconsistent accounts of the accident mean that he cannot establish causation.
Plaintiff opposes Defendants’ cross-motion on substantive and procedural grounds. Plaintiff contends that the cross-motion is untimely as it was not made within 60 days of the March 25, 2021 filing of the note of issue and lacks any good cause for the delay. Plaintiff otherwise responds to Defendants’ substantive arguments. In reply to Plaintiff's procedural arguments, Defendants allege that their motion regarding Plaintiff's Labor Law § 240(1) and 241(6) claims is timely because it was submitted in response to Plaintiff's motion that was made on "nearly identical grounds." Defendants further allege that the court is empowered to search the record and grant summary judgment on the common-law negligence and Labor Law § 200 claims. Defendants’ reply further presses their claims that dismissal is warranted as to Plaintiff's Labor Law § 240(1), 241(6), 200, and common-law negligence claims.
II. Standard of Review
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." ( Winegrad v. New York University Medical Center , 64 NY2d 851 [1985] ; Sillman v. Twentieth Century—Fox Film Corp. , 3 NY2d 395 [1957] ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (id. , see also Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). Facts must be viewed in the light most favorable to the non-moving party ( Sosa v. 46th Street Development LLC. , 101 AD3d 490 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact ( Zuckerman v. City of New York , 49 NY2d 557 [1980] ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility ( Vega v. Restani Constr. Corp. , 18 NY3d 499 [2012] ).
III. Applicable Law and Analysis
Labor Law § 240(1) imposes a duty of protection of employees upon owners, contractors and their agents "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." The duty consists in providing "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices." The foregoing devices are to be furnished in a manner sufficient to give "proper protection" to the workers. Labor Law § 240 (1) is to be construed as liberally as possible for the accomplishment of the purpose for which it was framed ( Blake v. Neighborhood Housing Services of New York City, Inc. , 1 NY3d 280, Zimmer v. Chemung County Performing Arts, Inc. , 65 NY2d 513, Ross v. Curtis-Palmer Hydro-Electric Co. , 81 NY2d 494 [1993] ). Still, "absolute liability ‘is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein’ " ( O'Brien v. Port Auth. of NY & N.J. , 29 NY3d 27, 33 [2017], quoting Narducci v. Mahasset Bay Assoc. , 96 NY2d 259, 267 [2001] ). It is true that not every fall by a worker at a construction site establishes a violation of Labor Law § 240(1) (id. ). Rather, "liability may be imposed under the statute only where 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’ " (id. , quoting Nicometi v. Vineyards of Fredonia , 25 NY3d 90, 97 [2015], quoting Runner v. New York Stock Exch., Inc. , 13 NY3d 599, 603 [2009] ).
To prevail on a motion for partial summary judgment on a cause of action under Labor Law § 240(1), the plaintiff must show both that the statute was violated and that the violation was a proximate cause of his injuries ( Auriemma v. Biltmore Theatre, LLC , 82 AD3d 1, 9-10 [1st Dept. 2011], citing Cahill v. Triborough Bridge & Tunnel Auth. , 4 NY3d 35, 39 [2004], and Blake , 1 NY3d at 287 ]).
In this matter, Plaintiff established that his injuries were the result of exposure to an elevation-related risk, and the absence of any safety devices. Plaintiff established that he was working atop a three-foot high geofoam block, and he was descending from that block to the ground below when he fell. It is not disputed that Plaintiff had no other means of descending from the block besides stepping down onto a round, installed pipe, which was located next to it, and then stepping onto the ground.
Contrary to Defendants’ contentions, the circumstance here presented Plaintiff with an elevation-related risk that called for a protective device contemplated by the statute. "There is no bright-line minimum height differential that determines whether an elevation hazard exists" ( Auriemma , 82 AD3d at 9 ). "Rather, the relevant inquiry is whether the hazard is one ‘directly flowing from the application of the force of gravity to an object or person’ " (id ., quoting Prekulaj v. Terano Realty , 235 AD2d 201, 202 [1st Dept. 1997], citing Ross , 81 NY2d 494 ). In Hoyos v. NY-1095 Ave. of the Ams., LLC , the plaintiff was injured when he slipped or fell of an elevated loading dock, which was about four feet off the ground with no railing, chain, demarcation or other safety device to prevent someone from falling off it ( 156 AD3d 491 [1st Dept. 2017] ). The First Department majority opinion held "[w]hether the dock was elevated three or four feet off the ground, plaintiff's fall therefore cannot be described as a fall from a de minimus height" ( id. at 495 ). In so holding, the majority rejected the dissent's contention that the stable surface of the loading dock, no more than four feet high, did not create a significant gravity-related risk ( id. at 503, [Tom, J.P., dissenting], citing Toefer v. Long Is. R.R. , 4 NY3d 399, 409 [2005] ). This portion of the dissent relied on Toefer , a case that Defendants principally cite in opposition to the present motion.
In Carpentieri v. 309 Fifth Ave., LLC , plaintiff's four-foot fall from an unsecured plank on a scaffold was deemed a violation of Labor Law § 240(1) ( 180 AD3d 571 [1st Dept. 2020] ). Similarly, in Rubio v. New York Proton Mgt., LLC , plaintiff fell through an unsecured plywood sheet covering a three-foot-deep trench ( 192 AD3d 438 [1st Dept. 2021] ). The Court held: "[t]he motion court properly rejected defendants’ argument that plaintiff was not exposed to a gravity-related risk that required protection under the statute. The gravity-related risk was the three-foot deep trench, and the unsecured plywood sheet placed over it was inadequate, because it gave way, and failed to protect plaintiff from injury" (id. ). In Ferguson v. Durst Pyramid, LLC , the Appellate Division held that summary judgment should have been granted as to plaintiff's Labor Law § 240(1) claims, where the plaintiff attempted to use an inverted bucket to access an elevated crane pad, when the bucket kicked out and caused him to fall about four feet to the ground (Supreme Court, NY County, Index. No. 161274/2014, aff'd as modified , 178 AD3d 634, 635 [1st Dept. 2019] ).
In this case, Plaintiff was exposed to a gravity-related risk when he was required to work on the three-foot-high geofoam block. It is not disputed that he was not provided with any safety device to perform this work — that is, to climb atop or descend from the block. Plaintiff's sole means to step up and down from the block was a rounded pipe that so happened to be located near the block. The Court sees no meaningful distinction between the risk involved here and that involved in the above-cited cases. Instead of a provided safety device failing (Carpentieri, Rubio, and Ferguson ), no device was provided at all (Hoyos ) and Plaintiff's fall from a height of three feet was not de minimus as a matter of law ( Hoyos , 156 AD3d at 495 ).
Defendants’ contentions, including their expert testimony, stating that a ladder or other safety device was either unfeasible or unwarranted, fails to raise a triable issue of fact. Defendants’ expert contentions are refuted by the testimony of site safety manager Brehm, who confirmed that a step ladder should have been used and he wouldn't have considered using the pipe to access the geofoam blocks a safe method (Brehm EBT at 56). Tishman's assistant superintendent, Monteiro, further testified that he had seen other workers on the job site using ladders to access the geofoam blocks (Monteiro EBT at 44-45). In any event, where, as here, a prima facie case is based on the absence of a safety device, a defendant's "argument that failure to provide an appropriate safety device was either impracticable under the circumstances or would not have prevented the accident is unavailing" ( Pichardo v. Urban Renaissance Collaboration Ltd. Partnership , 51 AD3d 472, 473 [1st Dept. 2008], citing Zimmer , 65 NY2d 513 ; see also Gonzalez v. Paramount Group, Inc. , 157 AD3d 427, 428 [1st Dept. 2018] ["the testimony and expert opinion that a safety device was neither necessary nor customary ‘is insufficient to establish the absence of a Labor Law 240[1] violation’ "], quoting Bonaerge v. Leighton House Condominium , 134 AD3d 648, 649 [1st Dept. 2015] ).
Defendants contend that summary judgment must be denied because Plaintiff has presented multiple versions of the accident. At his deposition, Plaintiff testified that he was in the process of stepping down from the block, with his right foot in the air going down, when a piece of the block broke from beneath his left foot, causing him to fall. While falling, his right heel struck the pipe. In a statement that he signed after the accident, however, he testified that the accident occurred when he was stepping down from the block, onto a black pipe below, when his foot slipped on the pipe, causing him to fall. Similarly, Plaintiff's workers’ compensation forms stated that the accident occurred when he "slip [sic] on pipe." Plaintiff's co-worker Shortt and foreman Silva also believed that the accident occurred when, while descending from the block, Plaintiff's foot slipped off the pipe.
"Where the injured worker's version of the accident is inconsistent with either his own previous account or that of another witness, a triable question of fact may be presented" ( Rodriguez v. New York City Housing Authority , 194 AD2d 460, 462 [1st Dept. 1993] ). "Where credible evidence reveals differing versions of the accident, one under which defendants would be liable and another which they would be not, questions of fact exist making summary judgment inappropriate" ( Ellerbe v. Port Authority of New York and New Jersey , 91 AD3d 441 [1st Dept. 2012] [internal citations omitted]; see Jones v. West 56th Street Associates , 33 AD3d 551 [1st Dept. 2006] [plaintiff testified that he fell from a scaffold, but the day after the accident, he reported to his supervisor that he wrenched his back and made no mention of a fall from a scaffold]; see Bradley v. Ibex Construction, LLC , 54 AD3d 626, 627 [1st Dept. 2008] [issue of fact as to whether plaintiff fell from a ladder or tripped on a plastic-covered floor]). However, where a violation of Labor Law 240(1) is established under any version of the accident, summary judgment is not precluded, despite either internally inconsistent testimony from the plaintiff, or a conflicting account of the accident presented by other witnesses (see Singh v. City of New York , 191 AD3d 547 [1st Dept. 2021] ["Defendants’ argument that plaintiff's testimony was internally inconsistent is academic, as NYCHA would be liable under Labor Law § 240(1) for any version of the accident based on any purported inconsistencies"], citing Ramanczuk v. Metropolitan Ins. & Annuity Co. , 72 AD3d 592 [1st Dept. 2010] ; see also Cashbamba v. 1056 Bedford LLC , 168 AD3d 638, 639 [1st Dept. 2019] [the fact that the parties offered different versions of the accident makes no difference with respect to defendants’ liability under Labor Law § 240(1), since under either version, defendants failed to secure an area at a construction site from which a fall could occur, thereby exposing plaintiff to an elevation-related risk], quoting John v. Baharestani , 281 AD2d 114, 118 [1st Dept. 2001] ).
In this case, even if the Court were to disregard Plaintiff's contentions that his inconsistent accounts of the accident were due to his unfamiliarity with speaking or reading English, Plaintiff has established his entitlement to summary judgment because under either version of the accident, Defendants violated Labor Law § 240(1). Plaintiff was working from an elevated position and it is not disputed that he injured himself when trying to descend from the elevated position without the aid of any safety device. If the edge of the foam broke and caused Plaintiff's to slip and fall while he was stepping down from the block, the absence of safety devices caused his accident. Without a safety device, Plaintiff was required to stand near the edge of the block to step down from it, and the collapse of a work platform, leading to a fall, constitutes a violation of Labor Law § 240(1) (see, e.g., Bell v. Bengomo Realty, Inc. , 36 AD3d 479, 480 [1st Dept. 2007], citing Trillo v. City of New York , 262 AD2d 121, 122 [1st Dept. 1999] ). Again, Defendants’ expert contention that a safety device would not have prevented the accident fails to raise an issue of fact ( Pichardo , 51 AD3d at 473 ).
If Plaintiff was caused to fall while descending from the block when his foot slipped on a pipe, such was an unsafe method of ascent or descent from the elevated work platform. In other words, the pipe was not a proper safety device, and its failure to support Plaintiff caused the accident (see McGarry v. CVP 1 LLC , 55 AD3d 441, 441 [1st Dept. 2008] [Labor Law § 240(1) violation established where unsecured cinder block staircase skidded under plaintiff's foot causing him to fall down the steps to the work site three feet below]). Under either scenario, Plaintiff was working from an elevated position and injured himself when he tried to descend from this position without a proper means of doing so. "[R]egardless of the precise manner in which the accident occurred, a defendant is not absolved from liability where, as here, a plaintiff's injuries are at least partially attributable to the defendant's failure to provide protection as mandated by the statute" ( Cammon v. City of New York , 21 AD3d 196, 201 [1st Dept. 2005] ). Under these circumstances, the failure to provide a safety device exposed Plaintiff to the elevation-related risk and was a proximate cause of this accident, therefore Plaintiff is entitled to summary judgment on his Labor Law § 240(1) claim (see Lipari v. AT Spring, LLC , 92 AD3d 502, 504 [1st Dept. 2012] ). Defendants’ cross-motion for summary judgment on this claim is therefore denied.
Because Plaintiff is entitled to summary judgment on his Labor Law 240(1) claim against Defendants, Plaintiff's entitlement to summary judgment on his Labor Law § 241(6) claims are rendered academic ( Rincon v. New York City Housing Authority , ––– AD3d ––––, 2022 NY Slip Op 00639 [1st Dept. Feb. 1, 2022], citing Auriemma , 82 AD3d 1, 11-12 [1st Dept. 2011] ["plaintiff's damages are the same under any theories of liability and he can only recover once, rendering such discussion academic"]; Pados v. City of New York , 192 AD3d 596 [1st Dept. 2021] [same effect]; Jerez v. Tishman Constr. Corp. of NY , 118 AD3d 617, 617-18 [1st Dept. 2014] [same effect]). Defendants’ cross-motion for summary judgment on Plaintiff's Labor Law § 241(6) claim, while timely since Plaintiff's timely motion sought relief "nearly identical" to that sought by this branch of the cross-motion (see Filannino v. Triborough Bridge & Tunnel Auth. , 34 AD3d 280, 281 [1st Dept. 2006] ), is also academic (see McVicker v. Port Authority of New York and New Jersey, et al. , 195 AD3d 554 [1st Dept. 2021] [defendant's arguments in support of dismissing Labor Law § 241(6) claims deemed academic since plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim]; see also Cronin v. New York City Tr. Auth. , 143 AD3d 419 [1st Dept. 2016] [same effect]).
Defendants’ cross-motion for summary judgment on Plaintiff's common law negligence and Labor Law § 200 claims is also academic (see Guaman v. 1963 Ryer Realty Corp. , 127 AD3d 454, 456 [1st Dept. 2015] ["[t]he motion court properly declined to rule on the Labor Law § 200 and common-law negligence claims since they are academic in light of the grant of partial summary judgment on the Labor Law § 240(1) claim]; see also Viruet v. Purvis Holdings LLC , 198 AD3d 587, 588-89 [1st Dept. 2021] ). In any event, that branch of Defendants’ motion would be denied as untimely since it was made more than 60 days after the filing of the note of issue and did not address issues identical to those raised by the main motion (see Golubowski v. City of New York , 131 AD3d 900, 901 [1st Dept. 2015] ; Filannino , 34 AD3d at 281 ).
IV. Conclusion
Accordingly, it is hereby
ORDERED, that Plaintiff's motion for summary judgment on the issue of Defendants’ liability under Labor Law § 240(1) is granted, and it is further,
ORDERED, that the remaining branches of Plaintiff's motion are denied as academic, and it is further,
ORDERED, that Defendants’ cross-motion for summary judgment is denied as academic.
This constitutes the Decision and Order of this Court.