Opinion
No. 13512/12.
01-14-2015
Brian J. Isaac, Esq., Pollack, Pollack, Isaac & DeCicco, New York. Steven R. Montgomery, Esq., Rawle & Henderson, LLP, New York, Jon Goldstein d/b/a Vinegar Hill Studios, Brooklyn, attorney for defendant.
Brian J. Isaac, Esq., Pollack, Pollack, Isaac & DeCicco, New York.
Steven R. Montgomery, Esq., Rawle & Henderson, LLP, New York, Jon Goldstein d/b/a Vinegar Hill Studios, Brooklyn, attorney for defendant.
Opinion
FRANCOIS A. RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of plaintiffs Scott Canfield and Caren Keller (hereafter, plaintiffs), served on April 3, 2014, under motion sequence number three, for an order granting them partial summary judgment on liability on the Labor Law §§ 240(1) and 241(6) claims of plaintiff Scott Canfield (hereafter, plaintiff):
Notice of Motion
Plaintiffs' counsel's supporting affirmation
Exhibits A–R to the supporting affirmation
Opposing affirmation of counsel to Forman Jay LLC
Plaintiffs' counsel's reply affirmation
Exhibit A to the reply affirmation.
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of Forman Jay LLC, served on April 28, 2014, under motion sequence number four, for summary judgment, pursuant to CPLR 3212, dismissing all of plaintiffs' claims:
Notice of Motion
Defense counsel's supporting affirmation
Exhibits A–M to the supporting affirmation
Plaintiffs' counsel's affirmation in opposition
Defense counsel's reply affirmation.
The background summary is taken from the parties' submissions, including pleadings and the pretrial depositions. It is set forth only to provide context for the instant motions and does not constitute judicial fact-findings.
New Year's Eve, was a motion picture released in December, 2011. It portrayed a panoply of characters hoping that this one night would change their lives forever—a workaholic secretary has a list of new year's resolutions to meet (Michelle Pfeiffer), a journalist dying of cancer wants to see the “ball” drop in Times Square one more time (Robert De Niro), and so forth. Four scenes of that motion picture were filmed on a set inside a warehouse at 51 Jay Street in the DUMBO section of Brooklyn, New York (hereafter, the building). Intended to reproduce the island of Bali, the movie set consisted of a tiki hut—a cabana-style structure with thatched roof—built on a raised platform (hereafter, the tiki hut). A mock stone retaining wall flanked the sides of the tiki hut as it was facing the camera. A water bridge in front of the tiki hut crossed a lagoon that was fed by small waterfalls. Plants and rocks finished the scenery of this interior movie set (hereafter, the tiki-spa set).
In the movie industry, a “set” means “a construction representing an interior or exterior locale in which the action of a motion picture takes place” (Ephraim Katz & Ronald Dean Nolen, The Film Encyclopedia: The Complete Guide to Film and the Film Industry, at 1323 [7th ed 2012] ).
The tiki-spa set, once fully assembled, occupied some 7,000 square feet of the building's 22,000–square–foot ground floor. The framing of the tiki-spa set was performed by a team of carpenters who had built the deck before the roof of the tiki hut could be covered with thatch tiles. The tiki hut's roof rose about 18 to 20 feet up from the ground-floor level. The roof frame was three-sided, with slats that were spaced about every 14 to 16 inches. The placement of roof tiles, together with the finishing and painting of the movie set, was to be performed by teams of set dressers and scenic artists.
Plaintiff was one of the set dressers for the tiki-spa set. He was injured on February 8, 2011, his second day on the set, at the time when it was about 60–70% complete. On that day, as well as on the day before it, he was attaching 1' x 3' x 1½? thatch tiles to the tiki hut's roof. To be able to reach the roof, he and his coworker had built an unenclosed work platform by screwing a piece of plywood to a 4' x 6' pallet and by using two ratchet straps to secure the platform to the forks of a hi-lo forklift to be operated by his coworker. The platform with plaintiff and several boxes of thatch tiles on it was held and raised up to the tiki hut's roof by the forks of the forklift. As plaintiff was lying on the platform, he was attaching the tiles to the roof frame, while his coworker was positioning the forklift. To attach the tiles, plaintiff approached the roof frame from the outside, rather than by reaching in through the slats. In the course of his work in the afternoon of February 8, 2011, he fell off the platform, landing about ten feet on the concrete ground below. In his own words, he “lost [his] whole life” on a movie set of New Year's Eve.
See Scott Canfield tr page 58, line 20. Plaintiff claims in the bill of particulars that, as a result of his accident, he sustained, among other things, a traumatic brain injury, bilateral temporal bone fractures, numerous rib fractures on both sides, and a punctured lung.
To work on this set, plaintiff, a member of Local 52 of the International Alliance of Theatrical Stage Employees, had been hired and supervised by his brother Philip Canfield (hereafter, the supervisor), who acted as the “leadman” or lead set dresser. New Line Productions, Inc. (hereafter, New Line) licensed the space for the tiki-spa set from the building owner, defendant Foreman Jay LLC (hereafter, the owner), pursuant to a Location Agreement, dated January 7, 2011, for a stated period of about two months, encompassing the date of the accident. New Line rented the forklift from the building tenant, the defendant Jon Goldstein, d/b/a Vinegar Hill Studios (hereafter, the tenant). New Line also entered into an Access Location Agreement, dated January 11, 2011, with the tenant designating the latter as the “doorman” who would open and close the building while the tiki-spa set was being constructed.
Plaintiff, and his wife suing derivatively, brought this action against the owner and the tenant asserting as to each of them claims under (1) Labor Law § 240(1), (2)Labor Law § 241(6) to the extent premised on the alleged violation of 23 NYCRR (hereafter, the Industrial Code) § 23–1.16 (safety belts, harnesses, tail lines and lifelines), (3) Labor Law § 200/common-law negligence, and (4) a derivative claim for loss of consortium (see summons and verified complaint filed with the Kings County Clerk on June 29, 2012). The owner and the tenant joined issue (see owner's verified answer, dated Aug. 1, 2012, and tenant's verified answer, dated Nov. 26, 2012). After discovery was completed and a note of issue was filed on February 27, 2014, the instant motions were timely served.
Plaintiffs seek partial summary judgment on liability on (1) plaintiff's Labor Law § 240(1) claim and (2) on his Labor Law § 241(6) to the extent premised on the alleged violations of Industrial Code § 23–5.1(j)(1) (general provisions for all scaffolds—safety railings) and § 23–1.15 (safety railing). The owner seeks summary judgment dismissing all of plaintiffs' claims against it.
In the course of the motion practice, plaintiffs conceded that the facts of this case do not support plaintiff's claim against the owner based on an alleged violation of Labor Law § 200 or under common-law negligence (see plaintiffs' affirmation in opposition, dated June 17, 2014, n 1). Plaintiffs further conceded that Industrial Code § 23–1.16 (safety belts, harnesses, tail lines and lifelines) is not relevant (id. at 29).
The Court construes plaintiffs' motion as seeking relief solely against the owner. Although plaintiffs' motion does not specify whether they seek relief against the owner only or against both the owner and the tenant, their papers focus exclusively on the issues that are relevant to the owner and avoid any discussion of the issues that are specific to the tenant.
LAW AND APPLICATION
The only issues before the Court are the merits of plaintiff's claims against the owner under (1) Labor Law § 240(1), and (2)Labor Law § 241(6) claim to the extent premised on the alleged violations of Industrial Code § 23–5.1(j)(1) (general provisions for all scaffolds—safety railings) and § 23–1.15 (safety railing).
Plaintiff's Labor Law § 240(1) Claim
Labor Law § 240(1) provides, in relevant part, that:
“All ... owners and their agents ... in the erection ..., repairing, altering, [or] painting ... of a ... 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.”
Statutory liability arises when a property owner's breach of its statutory duty to provide safety measures proximately causes the worker's injury (see Albanese v. City of New York, 5 N.Y.3d 217, 219 [2005] ). If established, a property owner's failure to provide a safety device is a per se violation of the statute for which the owner is strictly liable (see Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 523–524 [1985], rearg. denied 65 N.Y.2d 1054 [1985] ).
Here, plaintiffs have made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability on so much of their complaint as alleged that the owner violated Labor Law § 240(1). Plaintiffs have submitted admissible deposition transcripts demonstrating that (1) plaintiff was working at an elevation; (2) the makeshift platform constituted a scaffold contemplated by § 240(1) ; and (3) he fell off the platform sustaining injuries. It is self-evident that plaintiff was not provided with (1) an adequate work platform (i.e., scaffolding), which is one of the protective devices enumerated in § 240(1) ; and/or (2) a safety harness and a lanyard, secured and tied off to an anchor point, which is another type of the protective device within the ambit of § 240(1) (see Tabickman v. Batchelder St. Condominiums By Bay, LLC, 52 A.D.3d 593, 595, 859 N.Y.S.2d 721 [2d Dept 2008] ; Dzieran v. 1800 Boston Rd., LLC, 25 A.D.3d 336, 337, 808 N.Y.S.2d 36 [1st Dept 2006] ).
Contrary to the owner's contention, the deposition transcript of plaintiff and that of the other deponents, as annexed to plaintiffs' motion, are certified by the applicable court reporter. In addition, plaintiffs have demonstrated, either in their motion or in their reply to the owner's opposition, that they had provided a copy of the deposition transcript to plaintiff, the supervisor, and other deponents for their review and signature, and that such individuals failed to sign their applicable transcript under oath within 60 days. As a result, the deposition transcripts, as annexed to plaintiffs' motion, may be used as if fully signed (see CPLR 3116[a] ; see also Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 A.D.3d 45, 51, 984 N.Y.S.2d 401 [2d Dept 2014] ). Moreover, the owner has not challenged the accuracy of any of the deposition transcripts submitted by plaintiffs, and by including the very same transcripts with its motion, the owner has adopted them as accurate (see Carey v. Five Bros., Inc., 106 A.D.3d 938, 939–940, 966 N.Y.S.2d 153 [2d Dept 2013] ).
The burden now shifts to the owner to come forward with sufficient evidence to raise a triable issue of fact (see Ernest v. Pleasantville Union Free School Dist., 28 A.D.3d 419, 811 N.Y.S.2d 573 [2d Dept 2006] ). Answering the question of whether the owner has met this burden is dependent on the resolution of the three issues listed here.
The first issue is whether the tiki hut was a “structure” within the meaning of § 240(1). The owner argues that it was not, noting that it was unsecured to the building floor and that it existed only for the duration of the movie shoot. A structure is “any production or piece of work artificially built up or composed of parts joined together in some definite manner” (Joblon v. Solow, 91 N.Y.2d 457, 464 [1998] [internal quotation marks omitted] ). The Second Department instructed that whether an item is a “structure” requires an examination of “the item's size, purpose, design, composition, and degree of complexity; the ease or difficulty of its assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnecting parts; and the amount of time the item is to exist” (McCoy v. Abigail Kirsch at Tappan Hill, Inc., 99 A.D.3d 13, 17 [2012] ).
The summary judgment record, including the authenticated photographs of the tiki-spa set, conclusively establishes that the tiki hut, which was the central piece of the tiki-spa set, was a structure, as evidenced by the set's size, purpose, design, composition, and complexity. The Amassembly of the tiki hut itself and of the tiki-spa set required the use of numerous tools and separate teams of carpenters, set dressers, and scenic painters. Although the tiki-spa set remained in the building for no more than two months, this factor, in and of itself, is insufficient to outweigh the other factors which strongly support an inference that the tiki hut, either alone or as the central element of the tiki-spa set, was a structure within the meaning of § 240(1) (see Kharie v. South Shore Record Mgt., Inc., 118 A.D.3d 955, 956, 988 N.Y.S.2d 654 [2d Dept 2014] [a set of shelves which were connected in a tongue-and-groove fashion, some of which required the use of a hammer to separate the pieces, constituted a structure]; McCoy, 99 A.D.3d at 17, 951 N.Y.S.2d 32 [a ritual canopy at a Jewish wedding ceremony was a structure]; Sinzieri v. Expositions, Inc., 270 A.D.2d 332, 333, 704 N.Y.S.2d 293 [2d Dept 2000] [an exhibit of windows at a trade show constituted a structure] ). The decisions on which the owner relies to support its argument to the contrary are factually inapposite, as set forth more fully in the margin. The owner's position that it had nothing to do with the construction of the set inside the building does not absolve it from liability under § 240(1), given that such construction was a permitted use under the Location Agreement between the building owner and New Line. While the owner's argument might have been relevant to plaintiff's claims against it under Labor Law § 200 and in common law negligence, such argument is no longer relevant because these claims against the owner have been withdrawn.
As plaintiff's coworker summarized the process, “the carpenters build (the set), the scenics paint it, the dressers install it” (Ken Ferdman tr at page 15, lines 5–7).
Compare Kretzschmar v. New York State Urban Dev. Corp., 13 A.D.3d 270, 271, 785 N.Y.S.2d 923 (1st Dept 2004) (a sign from a temporary exhibit suspended from the ceiling at a convention center was not a structure), lv denied 5 N.Y.3d 703, 800 N.Y.S.2d 373, 833 N.E.2d 708 (2005) ; Engels v. City of New York, 7 A.D.3d 661, 662, 776 N.Y.S.2d 837 (2d Dept 2004) (removal of artificial limbs from the living trees was outside the scope of § 240[1] ; note that the factual background of this decision is taken from plaintiff's appellate brief available at 2003 WL 23713476 ); Stanislawczyk v. 2 E. 61st St. Corp., 1 A.D.3d 155, 767 N.Y.S.2d 30 (1st Dept 2003) (a decorative wooden disc suspended from a ceiling for use as a ceremonial wedding canopy was not a structure), lv denied 3 N.Y.3d 604, 784 N.Y.S.2d 7, 817 N.E.2d 825 (2004) ; Tanzer v. A. Terzi Prods., 244 A.D.2d 224, 664 N.Y.S.2d 44 (1st Dept 1997) (temporary decorations to an outside of the building to be used as a set for a television film was not a structure).
The second issue is whether, at the time of the accident, plaintiff was engaged in the “erection ..., repairing, altering, [or] painting” work within the ambit of § 240(1). The owner argues that plaintiff was not engaged in this activity because he was merely placing roof tiles on the tiki hut, which had been framed before him by a team of carpenters. This argument sounds disingenuous because tiling the tiki hut's roof was obviously an integral part of its construction. Thus, plaintiff was engaged in a protected activity at the time of his accident.
The third and final issue is whether plaintiff was a recalcitrant worker and, hence, the sole proximate cause of his accident. “[T]o defeat the plaintiff's motion for partial summary judgment, the defendants must raise an issue of fact as to whether the plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured” (Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 10, 917 N.Y.S.2d 130 [1st Dept 2011] [internal quotation marks omitted] ).
Even viewed in the light most favorable to the owner, there is no evidence in the record that plaintiff had any safety device available, knew that he was expected to use it, and unreasonably chose not to do so. What clinches the case is that the supervisor, while observing plaintiff working on the makeshift platform on the morning of the day of the accident, took no steps to provide him with any safety equipment. Instead, all that the supervisor did for plaintiff in terms of safety at that time was to warn him “to just be careful.” The supervisor's warning to use caution does not render plaintiff a recalcitrant worker, since it has not been shown that he (plaintiff) was provided with an adequate safety device that he refused to use (see Guaman v. New Sprout Presbyterian Church of NY, 33 A.D.3d 758, 759, 822 N.Y.S.2d 635 [2d Dept 2006] ).
See Philip Canfield tr at page 20, lines 14–18; page 21, lines 3–8; page 21, line 24—page 22, line 5; page 22, lines 9–14; page 60, line 24—page 61, line 2; see also Philip Canfield tr at page 28, lines 9–11 (“I reiterated again when I walked out the door [on the morning of the day of the accident], be careful doing it that way [i.e., using the forklift] if that is the way that you are going to do it.”); at page 61, lines 5–6 (“I was a little concerned with how he [plaintiff] was doing it [installing the tiles using a forklift]”).
The owner tries to extrapolate from the snippets of the supervisor's deposition testimony to show that an A-frame ladder that was available on the set was adequate for plaintiff's work, while ignoring the overall context and the supervisor's clarifying statements to the contrary. It is true that the supervisor generally indicated that plaintiff could use an A-frame ladder to install the roof tiles, characterizing such work as “hard” but “not impossible” (see Philip Canfield tr at page 25, lines 20–21). But the force of the supervisor's general statement is qualified by his other deposition testimony and by his post-accident affidavit. He indicated at his pretrial deposition that there were “certain rows [of the roof tiles] where wood slats were narrower,” and that “there [were] some spots that you couldn't get to [ ] with a ladder ” (see Philip Canfield tr at page 68, lines 12:13 [emphasis added] ). Further, he authenticated and reaffirmed at his pretrial deposition the correctness of his post-accident affidavit, dated July 8, 2013, in which he averred that:
“There were ladders and a Baker's scaffold on site, but the roof was in a spot that utilizing these were not options .... The ladders that were on set were not an option because of the angle at which they would have been placed .... Prior to the incident, a scaffold was discussed but later discounted because of the lack of space around a portion of the Tiki Hut” (Philip Canfield tr at page 66, line 6–page 67, line 2 [emphasis added] ).
The supervisor was specifically asked at his pretrial deposition to explain what he meant by the aforementioned italicized sentence in his affidavit that “[t]here were ladders and a Baker's scaffold on site, but the roof was in a spot that utilizing these were not options.” The supervisor's response and the ensuing colloquy confirm that an A-frame ladder was inadequate to permit the placement of the tiles for the entire roof of the tiki hut:
“Q. On the bottom of page 1 [of the supervisor's affidavit] it says ... there were ladders and a Baker Scaffold onsite.
A. Right.
Q. But the roof was in a spot that utilizing these were not options?
A. That wasn't the entire roof so.
Q. Would it have been impossible to complete the entire roof with either the ladder, or Baker Scaffold, or would you need another piece of equipment?
A. You would need another piece of equipment there. The place where the accident occurred, or where I believe the accident occurred, was a spot where at some point you would have needed some other piece of equipment from the ground level as opposed to the deck level. The deck level is probably four or six inches off the ground. But the roof was over that. So then to get to this, you would have to work off the ground. So at that point, in that corner, is where you would need a higher—a different piece of equipment in my opinion ”
(Philip Canfield tr at page 70, line 16—page 71, line 14 [emphasis added] ).
The supervisor's pretrial deposition testimony, as corroborated by his post-accident affidavit, establishes that an A-frame ladder that was made available to plaintiff to install the tiles on the tiki hut's roof was inadequate. In the circumstances of this case where no adequate safety devices were made available to plaintiff, there was nothing extraordinary or unanticipated in his using a makeshift platform to install the roof tiles. Plaintiff's use of such a platform amounted, at most, to negligence, which is “of no consequence” in the context of § 240(1) (see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513 [1991] ).
The “recalcitrant worker/sole proximate cause” decisions on which the owner relies are inapposite to the facts of this case. These decisions either (1) involve the use of an improper piece of equipment or other objects despite the availability of adequate equipment on the construction site (see Robinson v. East Med. Ctr., 6 N.Y.3d 550 [2006] ; Montgomery v. Federal Express Corp., 4 N.Y.3d 805 [2005] ; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35 [2004] ; Palacios v. Lake Carmel Fire Dept., Inc., 15 A.D.3d 461, 463, 790 N.Y.S.2d 185 [2d Dept 2005] ); (2) present a failure to properly use safety equipment that was otherwise adequate (see Blake v. Neighborhood Hous. Servs. of New York City, Inc., 1 N.Y.3d 280 [2003] ); or (3) concern an improper assembly of a piece of safety equipment by the injured plaintiff (see Kuntz v. WNYG Hous. Dev. Fund Co., 104 A.D.3d 1337, 1338–1339, 961 N.Y.S.2d 704 [4th Dept 2013] ).
Therefore, the branch of plaintiffs' motion for partial summary judgment on liability on plaintiff's Labor Law § 240(1) claim against the owner is granted. Conversely, the branch of the owner's motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim against it is denied.
Plaintiff's Claim under Labor Law § 241(6)
Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners to provide reasonable and adequate protection and safety to persons employed in all areas in which construction work is being performed (see Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.3d 982, 2014 N.Y. Slip Op 08963 [2d Dept 2014] ). The statute requires owners to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Misicki v. Caradonna, 12 N.Y.3d 511, 515 [2009] ). The duty to comply with the Commissioner's safety rules, which are set out in the Industrial Code is nondelegable (id. ). To support a § 241(6) claim, however, the injured worker must establish that the accident was proximately caused by a violation of a Code provision stating a specific positive command that is applicable to the facts of the case (see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 350 [1998] ). Comparative negligence is a valid defense to a § 241(6) claim; “moreover, breach of a duty imposed by a rule in the Code is merely some evidence for the factfinder to consider on the question of a defendant's negligence” (Misicki, 12 N.Y.3d at 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213 ).
Here, plaintiffs and the owner both move for summary judgment on plaintiff's § 241(6) claim. In support of their motion, plaintiffs cite to Industrial Code § 23–5.1(j)(1) (general provisions for all scaffolds—safety railings) and § 23–1.15 (safety railing). These provisions require that the open sides of all scaffold platforms must be equipped with a safety railing in the form of a hand rail, mid-rail, and toeboard. Read in conjunction, these provisions are specific enough to support a § 241(6) claim (see Macedo v. J.D. Posillico, Inc., 68 A.D.3d 508, 510, 891 N.Y.S.2d 46 [1st Dept 2009] ; Donohue v. CJAM Assoc., LLC, 22 A.D.3d 710, 712, 803 N.Y.S.2d 132 [2d Dept 2005] ). These provisions also appear relevant to the facts of this case, considering that the platform that plaintiff was using at the time of his accident was unenclosed. This does not end the inquiry, however.
As the owner points out in its opposition to this branch of plaintiffs' motion, plaintiffs have cited these provisions for the first time in their motion and have not sought leave to amend their bill of particulars. The Court need not reach the merits of the owner's opposition, however, because plaintiffs have failed to eliminate all material issues of fact regarding plaintiff's alleged negligence in constructing and using a makeshift platform on top of the forklift (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ). Thus, this branch of plaintiffs' motion is denied. For the same reason, the branch of the owner's motion for dismissal of this claim is denied (see Sanders v. St. Vincent Hosp. ., 95 A.D.3d 1195, 1196, 945 N.Y.S.2d 343 [2d Dept 2012] ).
CONCLUSION
Accordingly, it is
ORDERED that the branch of plaintiffs' motion for partial summary judgment on liability on plaintiff's Labor Law § 240(1) claim against the owner is granted; and it is further
ORDERED that the remaining branch of plaintiffs' motion for partial summary judgment on liability against the owner on plaintiff's Labor Law § 241(6) claim to the extent premised on an alleged violation of Industrial Code § 23–5.1(j)(1) and § 23–1.15 is denied; and it is further
ORDERED that the branch of the owner's motion for summary judgment dismissing, insofar as asserted against it, plaintiff's Labor Law § 240(1) claim is denied; and it is further
ORDERED that the branch of the owner's motion for summary judgment dismissing, insofar as asserted against it, plaintiff's Labor Law § 241(6) claim is granted without opposition to the extent that such claim is premised on an alleged violation of Industrial Code § 23–1.16, and is denied to the extent that such claim is premised on an alleged violation of Industrial Code § 23–5.1(j)(1) and § 23–1.15; and it is further
ORDERED that the branch of the owner's motion for summary judgment dismissing, insofar as asserted against it, plaintiff's Labor Law § 200/common-law negligence claim is granted without opposition; and it is further
ORDERED that the remaining branch of the owner's motion for summary judgment dismissing plaintiffs' derivative claim against it is denied.
The parties are reminded of their scheduled appearance in JCP–1 on February 3, 2015.
The foregoing constitutes the decision and order of the Court.