Opinion
0109232/2006.
July 31, 2008.
In this action to recover monetary damages for injuries suffered as the result of an alleged workplace accident, defendant Southbridge Towers, Inc. (Southbridge) moves for summary judgment (1) dismissing plaintiff's entire complaint, (2) dismissing co-defendant Schlesinger Building Restoration, Inc.'s (Schlesinger) cross-claims, as well as (3) on its cross-claim for contractual indemnification as against Schlesinger. Schlesinger cross-moves for summary judgment (1) dismissing plaintiff's complaint in its entirety, (2) dismissing Southbridge's cross claims, and (3) on its cross-claim for common-law indemnification as against Southbridge. Plaintiff cross-moves for summary judgment on his Labor Law § 240 (1) claim.
For the reasons stated below, defendant Southbridge's motion is granted, only to the extent of dismissing plaintiff's Labor Law § 240 (1) claim and denying contractual indemnification as against co-defendant Schlesinger, without prejudice, with leave to renew after trial, and is otherwise denied. Additionally, Schlesinger's cross motion is granted, only to the extent of dismissing plaintiff's Labor Law § 240 (1) claim, and is otherwise denied. Plaintiff's cross motion seeking summary judgment on his Labor Law § 240 (1) is denied.
Background
Plaintiff alleges that, on April 28, 2004, he injured his right hip and leg while performing construction work at 90 Gold Street, New York, New York. According to plaintiff, the owner of non-party subcontractor G G Contracting (G G), at the time of the accident, he was engaged in hauling a tar kettle to the garage roof in preparation for waterproofing. Plaintiff alleges that while he and his helper were lifting the tar kettle on a hand truck up a stairway, he tripped on a defective step. When he tripped, plaintiff maintains that he then let go of the hand cart, causing the unsecured tar kettle to fall off the handcart, strike plaintiff, and knock him partially down the flight of stairs.
Plaintiff seeks to recover monetary damages from defendant Southbridge, the owner of the property on which the stairway stands, and Schlesinger, the alleged general contractor hired by Southbridge to perform the waterproofing. Recovery is sought under a common-law negligence theory of liability, as well as based upon violations of Labor Law §§ 200, 240 (1), and 241 (6). Plaintiff seeks to predicate his Labor Law § 241 (6) claim upon violations of 12 NYCRR 23-1.7 (d), (e) (1), (e) (2), and (f).
Discussion
Plaintiff seeks summary judgment on his Labor Law § 240 (1) claim, and defendants seek dismissal of plaintiff's entire complaint for lack of material issues of fact that remain for trial.
To obtain summary judgment, a movant must establish entitlement to a court's directing judgment in its favor as a matter of law. See Alvarez v Prospect Hosp., 68 NY2d 320 (1986). "[I]t must clearly appear that no material and triable issue of fact is presented" (Glick Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441; see also Giuffrida v Citibank Corp., 100 NY2d 72), because summary judgment is a drastic remedy that should not be invoked where there is any doubt as to the existence of a triable issue or when the issue is even arguable. SeeZuckerman v City of New York, 49 NY2d 557, 562 (1980).
Common-Law Negligence and Labor Law § 200 Claims
To establish a prima facie case of common-law negligence, a plaintiff must establish that: (1) a defendant either created or had notice (actual or constructive) of the alleged dangerous or defective condition, and (2) that the alleged dangerous condition was the proximate cause of the plaintiff's injury. See, Gonzalezv City of New York, 304 AD2d 709 (2d Dept 2003).
An owner and a general contractor's duty to maintain a safe workplace under the common-law is codified in Labor Law § 200 (see Gasper v Ford Motor Co., 13 NY2d 104), and in the context of a Labor Law case, if a defective condition is alleged to be the cause of a worker's injuries, that worker must proffer evidence that the owner or contractor either caused the dangerous condition or had actual or constructive notice of it. See Higgins v 1790 Broadway Assocs., 261 AD2d 223 (1st Dept 1999); see also Balaj v Equitable Life Assur. Soc, of U.S., 211 AD2d 487 (1st Dept), lv denied 85 NY2d 811 (1995).
Supervision and control of the injured worker is not required to show that a claim that a defective condition existed. See Murphy V Columbia University, 4 AD3d 200 (1st Dept 2004).
If the accident is the result of the worker's methods, however, to be held liable, an owner or general contractor must have "the authority to control the activity bringing about the injury to enable it to avoid or correct the unsafe condition." Russin v Louis N. Picciano Son, 54 NY2d 311, 317 (1981). As such, supervision and control of the injured worker's methods by an owner or general contractor are prerequisites to any liability. See Candela v City of New York, 8 AD3d 45 (1st Dept 2004); see also Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877 (1993); Mitchell V New York University, 12 AD3d 200 (1st Dept 2004) .
In this action, both allegedly defective conditions and workers' methods are at issue. Plaintiff first alleges that it was a loose metal nosing that was partially detached from the tread of the step that caused him to trip, setting in motion the chain of events that caused him to lose his grip on the hand truck, dislodging the tar kettle, which fell on him and knocked him down the steps. The property owner, Southbridge, admits that it had the duty to maintain the stairs in question (see Hackin Khan [Khan] Examination Before Trial [EBT] at 80), however, Schlesinger, the general contractor, could only notify Southbridge if it saw a problem and could not rectify it on its own. See Andy Schlesinger EBT at 74. Schlesinger cannot, therefore, be held negligent based upon any such alleged defective condition. See Nastasi v Span, Inc., 8 AD3d 1011 (4th Dept 2004); see also Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345 (4th Dept 2003).
As can been seen below, however, questions of fact existed as to whether Schlesinger controlled plaintiff's work and was negligent in plaintiff's alleged accident.
Prior to determining whether Southbridge could be held liable for the alleged defective condition, this court must first address whether or not there was a defective condition. However, based upon the EBT testimony proffered with the motion papers, there are material questions of fact as to whether there was a loose nosing on the step just prior to plaintiff's accident. Plaintiff stated that he had been up and down those steps many times and had never seen the steps in a state of disrepair (see Plaintiff's EBT at 51, 52, 60), and that he only became aware that the alleged defect existed after being told so by his helper in a conversation after his accident (Id. at 52, 67). However, his helper testified that the loose nosing was one long metal piece, still attached to the step on one end, but sticking away from the step by two-to-three inches immediately after the accident. See Clefrin Dookie (Dookie) EBT at 28, 36.
To further bolster its claim that Southbridge caused the allegedly defective condition on the staircase and forestall summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claim as against Southbridge, plaintiff proffered the expert opinion of Stanley H. Fein, PE (Fein). Fein affirms that, based upon his years as an engineer and a safety professional, "with a reasonable degree of engineering certainty that plaintiff's accident occurred due to the improper installation and maintenance of the stairway and in particular the tread of the 11th step." See Plaintiff's Cross Motion, Exh. B, at 6.
Although Fein has not drawn his conclusions from a site visit, he explains in what manner the nosing was improperly installed and why that manner caused the nosing to become loose. Of Pena V Women's Outreach Network, Inc., 35 AD3d 104 (1st Dept 2006). Additionally, Fein properly demonstrates the connection between plaintiff's fall and the allegedly defective staircase. See Telfevan V City of New York, 40 AD3d 372 (1st Dept 2007). This court holds the proffer admissible, and sufficient to raise material questions of fact as to whether Southbridge caused the allegedly defective condition that resulted in plaintiff's injuries.
Plaintiff additionally contends that, even if Southbridge did not cause the defective step, it had constructive notice of the alleged defect. To constitute such notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it."Gordon V American Museum of Natural History, 67 NY2d 836, 837 (1986). Additionally, such notice must be of the "specific defect or hazardous condition and its specific location, sufficient for corrective action to be taken" (Mitchell v New York University, 12 AD3d 200, 201 [1st Dept 2004]), because "a general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition." Piacquadio V Recine Realty Corp., 84 NY2d 967, 969 (1994), quoting Gordon v American Museum of Natural History, 67 NY2d at 838.
Fein's affirmation also serves to raise material questions of fact as to whether Southbridge had constructive notice of the defective stairway. Therefore, that portion of Southbridge's motion that seeks to dismiss plaintiff's common-law negligence and Labor § 200 claims is denied.
When an accident is the result of the worker's methods, to be held liable, an owner or general contractor must have "the authority to control the activity bringing about the injury to enable it to avoid or correct the unsafe condition." Russin v Louis N. Picciano Son, 54 NY2d 311, 317 (1981).
Supervision and control of the injured worker's methods by an owner or general contractor are, therefore, prerequisites to such liability. SeeCandela v City of New York, 8 AD3d 45 (1st Dept 2004); see also Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877 (1993); Mitchell v New York University, 12 AD3d 200 (1st Dept 2004).
Such supervision must be more than a "general duty to supervise the work and ensure compliance with safety regulations." De La Rosa v Philip Morris Management Corp., 303 AD2d 190, 192 (1st Dept 2003); see also Vasiliades v Lehrer McGovern Bovis, Inc., 3 AD3d 400 (1st Dept 2004);Reilly v Newireen Associates, 303 AD2d 214 (1st Dept 2003), lv denied 100 NY2d 508 (2003). "[M]onitoring and oversight of the timing and quality of the work [are] not enough to impose liability under section 200[, n]or is a general duty to ensure compliance with safety regulations or the authority to stop work for safety reasons."Dalanna v City of New York, 308 AD2d 400, 400 (1st Dept 2003); see also Geonie v OD P NY Ltd., 50 AD3d 444 (1st Dept 2008); Gonzalez v United Parcel Service, 249 AD2d 210 (1st Dept 1998).
cf., Brady v City of New York, AD3d, 859 NYS2d 193 (1st Dept 2008), where the First Department held that "plaintiff's Labor Law § 200 claim should not have been dismissed as against the site owner given the testimony of the latter's resident engineer that he not only inspected the site several times a day but also had authority to stop the work if he observed an unsafe condition."
Here, although plaintiff and Schlesinger maintain that Schlesinger did not control plaintiff's manner and methods of work (see Plaintiff's EBT at 128-129; see also Andy Schlesinger EBT at 79-80), Andy Schlesinger did testify that his company had the authority to supervise G G, including what work was to be done, what materials were to be used and how it was to be performed. Id. at 79. Additionally, Dookie testified that he received his orders from Andy Schlesinger and his Schlesinger supervisor, and that Schlesinger was involved with his materials and tools. See Dookie EBT at 17-18.
These statements are sufficient to raise material questions of fact as to whether Schlesinger supervised plaintiff's work, such that Schlesinger could be held liable under the common-law and for violations of Labor Law § 200. Thus, that portion of Schlesinger's cross motion that seeks to dismiss plaintiff's common-law negligence and Labor Law § 200 claims is denied.
Labor Law § 240 (1) Claim
Under Labor Law § 240 (1), owners, general contractors, and their agents who fail to provide or erect the safety devices necessary to give proper protection to a worker involved in the erection, demolition, repair, alteration, painting, cleaning or pointing of a building or structure are absolutely liable when that worker sustains injuries proximately caused by that failure. See Rocovich v Consolidated Edison Co., 78 NY2d 509 (1991); see also Rizzo v Hellman Elec. Corp., 281 AD2d 258 (1st Dept 2001). That section of the Labor Law "applies to tasks that . . . involve a significant inherent risk `because of the relative elevation . . . at which materials or loads must be positioned or secured "(Cammon v City of New York, 21 AD3d 196, 200 (1st Dept 2005) [citingRocovich v Consolidated Edison Co., supra, 78 NY2d at 514]), and applies to "falling object" cases as well as to those where the injured party falls from a height. See Narducci v Manhasset Bay Associates, 96 NY2d 259 (2001).
However, "the protections of Labor Law § 240(1) do not apply to every worker who falls and is injured at a construction site. . . . Among other prerequisites, a worker must demonstrate the existence of an elevation-related hazard contemplated by the statute and a failure to provide the worker with an adequate safety device." Berg v Albany Ladder Co., Inc., NY3d, 2008 WL 2367415 (2008) (internal citation omitted).
A permanent staircase, which is not designed as a safety device to afford protection from an elevation-related risk, is outside the coverage of Labor Law § 240 (1). See Owusu v HearstCommunications, Inc., AD3d, 2008 WL 2344634 (1st Dept 2008); see also Griffin v New York City Transit Authority, 16 AD.3d 202 (1st Dept 2005). Although plaintiff asserts that the law regarding the inclusion of accidents that occur on "permanent staircases" within the purview of Labor Law § 240 (1) is in a state of flux in the First Department, the cases are clear that injuries that occur on such staircases are not protected within the Statute.
In the instant action, plaintiff alleges that his injuries occurred after he tripped on a permanent staircase during his lifting of a tar kettle. See Plaintiff's Cross Motion, Exh. C. That staircase was not provided to plaintiff as a safety device; it was, however, a permanent access stairway to both a security office and the garage roof. See Khan EBT at 18, 85.
Therefore, plaintiff cannot recover under the scaffolding statute, and his Labor Law § 240 (1) claims are dismissed as to all defendants.
Labor Law § 241 (6) Claim
Defendants seek summary judgment dismissing plaintiff's Labor Law § 241 (6) claim. Labor Law § 241 (6) provides that "[a]ll areas in which construction, excavation or demolition work. is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."
The section requires owners and contractors at a construction site 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." Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-502 (1993).
In their complaint, plaintiffs seek to recover monetary damages for violations of Industrial Code sections 23-1.7 (d), (e) (1), (e) (2), and (f), as well as for violations of certain unnamed sections of the Occupational Safety and Health Administration (OSHA) regulations. However, alleged violations of OSHA regulations cannot serve as predicates for a Labor Law § 241 (6) claim. See Schiulaz v Arnell Const. Corp., 261 AD2d 247 (1st Dept 1999). Therefore, that portion of plaintiff's complaint that seeks to predicate his Labor Law § 241 (6) claim upon violations of OSHA regulations is dismissed.
As respects the other alleged violations, section 23-1.7 (d), slipping hazards, requires that "[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition." This provision has been held to be sufficiently specific to support a Labor Law § 241 (6) claim (see Lopez v City of New York Transit Authority, 21 AD3d 259 [1st Dept 2005]), and staircases have been held to be passageways within the meaning of the Industrial Code.See Conklin v Triborough Bridge and Tunnel Authority, 49 AD3d 320 (1st Dept 2008); see also Smith v McClier Corp., 38 AD3d 322 (1st Dept 2007). However, the section states that "[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." Because none of the elucidated foreign substances are claimed to be the cause of this plaintiff's accident, the section is not applicable to the action herein.See Lewis v Lower East Side Tenement Museum, 40 AD3d 438 (1st Dept 2007).
Plaintiff additionally seeks to predicate his Labor Law § 241 (6) claim on sections 23-1.7 (e) (1) and (2), which include the regulations regarding "tripping and other hazards."
Subsections (e) (1) and (2) state:
(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.
(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.
Although both of those subsections are sufficiently specific to support a Labor Law § 241 (6) claim (see Vieira v Tishman Const. Corp., 255 AD2d 235 [1st Dept 1998]), neither is applicable to this action. There is no allegation that dirt and debris were the cause of plaintiff's accident, thus subsection (e) (1) is not applicable. In addition, subsection (e) (2) is not applicable because staircases are not "working areas" within the meaning of the regulation. See Chuqui v Church of St. Margaret Mary, 39 AD3d 397 (1st Dept 2007).
Finally, plaintiff seeks to predicate his Labor Law § 241 (6) claim upon 12 NYCRR 23-1.7 (f). This section, entitled "vertical passage," states that "[s]tairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided."
This subsection is sufficiently specific to support a Labor Law § 241 (6) claim (see Conklin v Triborough Bridge and Tunnel Authority, 49 AD3d 320), and there are material questions of fact as to whether defendants herein provided safe means for access to the garage roof for plaintiff and his helper, given the materials they had to haul up to the garage roof. Southbridge contends that, in addition to two stairways (the one on which plaintiff allegedly had his accident and another on the other side of the complex), there was an elevator available to perform the lifting of the tar kettle to the garage roof. Southbridge avers that plaintiff could have used the elevator as he had in the past to haul the tar kettle. See Khan EBT at 63, 75, 77, 78, 83-84, 91. Plaintiff, Dookie, and Andy Schlesinger all testified, however, that the elevator in question was not available to plaintiff to haul the tar kettles. See Plaintiff EBT at 50; Dookie EBT at 23-24; Andy Schlesinger EBT at 76-77.
This court holds that given the facts at issue in this action, 12 NYCRR 23-1.7 (f) may serve as a predicate to plaintiff's Labor Law § 241 (6) claim. Therefore, those portions of defendants' motion and cross motion that seek dismissal of plaintiffs' Labor Law § 241 (6) claims are denied.
Cross-Claims
Southbridge seeks summary judgment dismissing co-defendant Schlesinger's cross-claims, as well as an order of entitlement to contractual indemnification as against Schlesinger. Schlesinger, however, seeks dismissal of Southbridge's cross-claims, as well as an order of entitlement to common-law indemnification as against Southbridge.
In Schlesinger's September 22, 2005 verified answer, it alleges entitlement to both contribution and common-law indemnification as against Southbridge. Because it is unclear whether Schlesinger or Southbridge will be held liable under Labor Law § 241 (6), dismissal of such cross-claims would not be appropriate.
Additionally, because there are material questions of fact as to whether Schlesinger was negligent under the common-law and/or Labor Law § 200 in plaintiff's alleged accident, that portion of Schlesinger's cross motion that seeks entitlement to common-law indemnification as against Southbridge is denied as premature. See Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430 (1st Dept 2007).
Southbridge's October 14, 2005 verified answer asserts five cross-claims against Schlesinger — including contribution, strict liability indemnification, common-law indemnification, contractual indemnification, and the failure to procure insurance on Southbridge's behalf. Because there are: (1) material questions of fact as to whether or not Schlesinger was negligent in plaintiff's alleged accident, (2) material questions of fact as to whether Southbridge will be held vicariously liable for any of plaintiff's injuries, and (3) material questions whether Schlesinger procured the insurance required in the parties' October 1, 2002 contract (the Contract), the four cross-claims for contribution, strict liability indemnification, common-law indemnification, and the failure to procure insurance on Southbridge's behalf will not be dismissed. As respects Southbridge's cross-claim for contractual indemnification, Paragraph 3.18 of the Contract provides:
Pursuant to Paragraph 3.1 of the Contract, "[t]he date of commencement of the Work shall be the date of this Agreement." See Notice of Motion, Exh. I.
Under Paragraph 11.1 of the Contract, Schlesinger was required to "purchase . . . such insurance as will protect [Schlesinger] from claims . . ., whether such operations be by [Schlesinger] or by a Subcontractor . . . (3) claims for damages because of bodily injury, sickness or disease, or death of any person other than [Schlesinger's] employees."
Finally, pursuant to Paragraph 11.3.3, "[t]he Owner and Architect shall each be named as an `additional insured' under [Schlesinger's] Liability Insurance Coverage under Paragraph 11.1."
To the fullest extent permitted by law[, Schlesinger] shall indemnify and hold harmless the Owner, Architect, Architect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, death or disease, . . . but only to the extent caused by negligent or wrongful acts or omissions of [Schlesinger], a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.
Additionally, the Contract provides that Schlesinger:
require a similar clause [as 3.18.1] in every contract between [Schlesinger] and every Subcontractor to the effect that every Subcontractor, as part of his subcontract shall likewise be required to indemnify and save harmless the Owner and Architect against and from all suits, claims and actions of every name and description brought against the Owner and Architect.
Because Contract paragraph 3.18.1 contains the phrase "[t]o the fullest extent permitted by law," it does not run afoul of General Obligations Law (GOL) § 5-322.1, which was enacted "to prevent a prevalent practice in the construction industry of requiring subcontractors to assume liability by contract for the negligence of others." Itri Brick Concrete Corp. v Aetna Cas. Sur. Co., 89 NY2d 786, 794 (1997); see also Padro v BertelsmanMusic Group, 278 AD2d 61 (1st Dept 2000).
However, the Contract contains a second paragraph, 10.2.2.1, which specifically attempts to shift any liability that Southbridge may incur under the New York State Labor Law to Schlesinger. That paragraph states that Schlesinger:
acknowledges that the Labor Law of the State of New York, and regulations adopted there under, place upon both the Owner [and Schlesinger] certain duties[,] and that liability for failure to comply therewith is imposed on both the Owner and [Schlesinger,] regardless of their respective fault. [Schlesinger] hereby agrees as between the Owner and [Schlesinger, Schlesinger] is solely responsible for compliance with all such laws and regulations imposed for the protection of persons performing the Contract. [Schlesinger] shall indemnify and hold harmless the Owner of and from any and all liability for violation of such laws and regulations imposed and shall defend any claims or actions which may be brought against the Owner as the result of thereof. In the event that [Schlesinger] shall refuse to defend any such action, [Schlesinger] shall be liable to the Owner for all costs of the Owner in defending such claim and all costs of the Owner, including attorneys' fees, in recovering such defense costs from [Schlesinger].
Under GOL § 5-322.1, any "indemnification provision in a contract in connection with the construction, repair, or maintenance of a building and appurtenances and appliances . . . that seeks to indemnify a party for its own negligence is void as against public policy and unenforceable." Leibel v Flynn Hill Elevator Co., 25 AD3d 768, 768 (2d Dept 2006); see alsoCavanaugh v 4518 Associates, 9 AD3d 14 (1st Dept 2004) .
Paragraph 10.2.2.1 contemplates full indemnification, whether or not the Owner is found to be negligent or just vicariously liable. Such paragraph is void and unenforceable under GOL § 5-322.1, when an "indemnitee is found to be at least partially negligent." Pardo v Bialystoker Center Bikur Cholim, Inc., 10 AD3d 298, 301 (1st Dept 2004).
If, however, Southbridge is later found to be only vicariously liable, then the indemnification clause is enforceable. See Linarello v City University of New York, 6 AD3d 192.
In the instant action, this court has already held that there are material questions of fact as to whether Southbridge was negligent in plaintiff's alleged accident. Thus, any determination regarding Southbridge's entitlement to contractual indemnification must await the outcome of trial. Therefore, that portion of Southbridge's motion that seeks an order of entitlement to contractual indemnification is denied, with leave to renew after trial.
Further, that portion of Schlesinger's cross motion to dismiss Southbridge's cross-claim for contractual indemnification is denied. Accordingly, it is hereby
ORDERED that Southbridge Towers, Inc.'s motion is granted, only to the extent of dismissing plaintiff's Labor Law § 240 (1) claim and denying conditional contractual indemnification as against co-defendant Schlesinger Building Restoration, Inc. without prejudice, with leave to renew after trial, and is otherwise denied; and it is further
ORDERED that Schlesinger Building Restoration, Inc.'s cross motion is granted, only to the extent of dismissing plaintiff's Labor Law § 240 (1) claim, and is otherwise denied; and it is further
ORDERED that plaintiff's cross motion seeking summary judgment on his Labor Law § 240 (1) is denied.
Counsel for the parties are to appear on September 12, 2008 at 11:00Am in room 335 at 60 Centre Street for a pre-trial conference.