Opinion
No. 15048/09.
2013-02-22
Ramon GONZALEZ, Plaintiff, v. The CITY OF NEW YORK, Brooklyn Navy Yard Development Corporation and B & H Photo–Video.Com a/k/a Foto & Electronics Corp., Defendants.
Ginarte O'Dwyer Gonzalez, Gallardo & Winograd, LLP, New York City, for plaintiff. Hannum Feretic, Prendergast & Merlino, LLC, New York City, for defendant.
Ginarte O'Dwyer Gonzalez, Gallardo & Winograd, LLP, New York City, for plaintiff. Hannum Feretic, Prendergast & Merlino, LLC, New York City, for defendant.
DAVID SCHMIDT, J.
The following papers numbered 1 to 9 read herein: Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 1–4, 5–6
Opposing Affidavits (Affirmations) 7, 8
Reply Affidavits (Affirmations) 9, 10
Affidavit (Affirmation)
Other Papers
Upon the foregoing papers, plaintiff Ramon Gonzalez moves, pursuant to CPLR 3212, for summary judgment on the issue of liability on his Labor Law §§ 240(1), 241(6) and 241–a causes of action. Defendants The City of New York (the City), Brooklyn Navy Yard Development Corporation (BNYDC), and B & H Photo–Video.com Corp. a/k/a B & H Foto & Electronics Corp. (B & H) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint.
Overview
On August 28, 2008, plaintiff sustained injuries in a fall from a ladder while performing work in an elevator shaft in Building Number 664 at the Brooklyn Navy Yard, located at 63 Flushing Avenue in Brooklyn, New York. At the time of the accident, plaintiff was employed by Double GG Construction Inc. (Double GG). B & H, which allegedly leased the property from the BNYDC, hired Double GG to build an elevator shaft at the construction site.
Facts and Procedural History
Plaintiff testified that he was employed by Double GG construction. At the time of his accident, he was working at Building 664 at the Brooklyn Navy Yard. The building had three floors, and B & H operated a business within the entire building, where merchandise such as televisions and DVDs was delivered and warehoused.
Plaintiff was supervised solely by his foreman, Lacey, who was on the job site on a daily basis. He never spoke to anyone from the City, the BNYDC or B & H. Plaintiff worked with other Double GG employees, including his assistant, Francisco Tejera (Bosso), his uncle, Socrates Rodriquez, and coworkers Valetin and Marcos.
Plaintiff testified that Double GG employees were installing blocks in an elevator shaft. The shaft, which went from the basement floor to the top of the elevator shaft, had been built by Double GG workers, and was to be used to transport merchandise. There was a scissors scaffold in the shaft because the elevator had not been installed yet, and the scaffold took up the entire space in the elevator shaft The scaffold had stairs on one side like a staircase or ladder which allowed access to it, and when one was climbing up the scaffold, one would be on the inside of the scaffold.
The scaffold had approximately five plywood floors, one at each level. Each level had two pieces of plywood board which were eight feet by four feet and four inches thick so that the plywood floor was square in shape. The two pieces of plywood were nailed to two two by fours which were tied to the scaffold. A space of approximately four feet by four feet was left in the middle of the scaffold. There were two bars under the plywood floors; a bar went around the four sides of the scaffold where the wood was located; and the sides of the scaffold were made of metal. Ladders were used to access the different levels of the scaffold.
On the day of the accident, plaintiff arrived at work at 7:30 A.M. and climbed up a ladder at 8:00 A.M. There was only one ladder on the scaffold which was positioned between the third and fourth levels.
It was not attached to anything; it was just laying there. Specifically, plaintiff testified that the ladder “was attached to the plywood, but I say attached but I mean it was just laying there, it wasn't tied down.” It had “hooks” on its feet which looked like “little round points” which were made of plastic covered with metal.
Plaintiff testified that the day before the accident, Socrates and Marcos had placed the ladder in the position it was in on the day of the accident. He also testified at his 50–h hearing that the ladder was metal and 20–25 feet high.
Plaintiff was wearing work clothes, work boots, a hard hat and a safety harness.
He did not have any problems with the ladder, and it did not move or shake when he was ascending it. Once he got to the top or fourth level, he stayed there and worked, and he did not move the ladder. If he looked up from that level, he would see “a hole, clear light and a rafter where the end of the elevator was.” There was also a ceiling on the shaft.
Until 12:30 P.M., plaintiff installed blocks. The blocks were sent up from the first floor by rope through the hole in the scaffold where the ladder was located.
As plaintiff removed the blocks from the rope, his helper Bosso was mixing cement at the same level but on the other side behind the elevator.
The rope was attached to the elevator rafter on the top level.
When plaintiff needed cement, Bosso would attach a bucket with cement to a rope, pull the rope, and plaintiff would pull off the bucket. At that time, plaintiff was wearing a safety harness which was attached to “the metal beam.” Specifically, plaintiff explained that there was “a little ... metal bar on the top where the last concrete block would be placed and there was a little ring that hung there.”
Plaintiff also testified that Bosso removed the blocks from the rope.
At 12:30 P.M., plaintiff climbed down the ladder and took a lunch break. He did not keep his harness tied to the little ring because “it wouldn't reach all the way down, it was only 4 feet long, it was short.” He testified that there was nothing else he could tie off to when he went up or down the ladder. The week before his accident, he complained to Lacey that there was nothing to tie off to when he went up and down the ladder in the shaft, and mentioned it to other workers. Lacey told him there was no more rope because the rope which was there was used to “haul the blocks.” Plaintiff testified that he would use the rope to tie himself. When asked “to what,” he replied, “I would tie myself with the rope when I would be going up.” No one except plaintiff used the ladder that morning nor did plaintiff have any problems with the ladder at that time.
At approximately 1:00 P.M., plaintiff returned from his lunch break. He was wearing his hard hat and harness. He checked the ladder by making sure it was “on top of the beam.” He testified that the feet of the ladder were approximately one and one-half feet from the hole in the platform, and that they were both on the plywood. He shook the ladder to make sure it was secure before he climbed it. He then began to climb the ladder; he was not carrying anything and he walked up the ladder one rung at a time. During this time, the ladder was not moving. At that point, there was only one ladder on the scaffold, which was between the third and fourth floors. No one, including plaintiff, had moved the ladder that day and no one, except plaintiff, had worked in the shaft that day.
Plaintiff also testified that he and Bosso were working in the shaft at the time of his accident, but he later testified that Bosso was mixing cement outside the shaft at the time of his accident.
Plaintiff testified that there was nothing to which he could attach his harness, but that he wore the harness because when he arrived at the site, he would attach himself to a piece of iron where the rafters were, or tie himself “up the scissors” using a “little knot.” In this regard, the following colloquy occurred:
Q: And was the harness fully on you at the time of your accident?
A: Yes.
Q: Had anyone ever in your life instructed you how to use the harness?
A: No
Q: Was there anything in the shaft for you to attach the harnessto?
A: No.
Q: Then why were you wearing it?
A: Because when I would arrive I would attach myself.
Q: To where?
A: Because it has like little, a little knot and I would tie myselfup to the scissors, you know.
Q: So you attach yourself to the scaffolding itself?
A: I was closing up and you know where the rafters are therewas a piece of iron, and that's where I would attach myself.
Q: And how did you attach yourself to the iron?
A: It had like a circle, a circular hole and I would place it there.
Q: Where there any wires for you to attach yourself to on thisscaffolding?
A: No.
Q: Where you tied off to anything with your harness of the timeof your accident?
A: No.
* * *
When plaintiff reached the fourth rung of the ladder from the top, and his head was already through the hole of the next level, he fell because the “ladder went to one side, it tilted.” Specifically, plaintiff testified that the ladder moved toward the left until it hit the wall, where it stayed. Plaintiff then fell down the shaft to one side, approximately 40 feet, to the cement bottom, hitting the scissors and the plywood platforms on the way.
The ladder did not fall down through the hole, it had not moved before it fell over, and it had not broken before or after the accident.
Plaintiff testified at his 50–h hearing that after the ladder moved to left side, he grabbed on to the scissor scaffold, and then fell down. He also testified that the ladder was positioned on top of the scaffold.
Plaintiff identified a photograph, marked as Defendant's Ex. A, taken by Marcos, on the day of the accident. He testified that photograph depicts the ladder from which he fell, two ropes, and an iron rafter or metal beam that “descends,” which was to the right of the two ropes. He also stated that the photograph showed the area between the third and fourth levels in the elevator shaft from which he fell, and that the rope extended to the roof. Bosso also took a photograph on the day of the accident, which was marked as Defendant's Ex. B. Plaintiff identified the space in the middle of the photograph as “like a hole.”
Following the accident, plaintiff commenced this action seeking damages for the injuries he sustained in the accident. The complaint alleges violations of Labor Law §§ 240(1), 241(6), 200, as well as common-law negligence. Thereafter, the defendants joined issue and served answers to the summons and complaint. In addition, B & H commenced a third-party action against Double GG seeking common-law and contractual indemnification, as well as damages for breach of the provision in the contract to procure liability insurance. Discovery is now complete and the instant motions are now before the court.
Discussion
Labor Law § 240(1)Plaintiff moves for summary judgment on his Labor Law §§ 240(1), 241(6) and 241–a causes of action.
In support of that branch of his motion for summary judgment on his Labor Law § 240(1) cause of action, plaintiff argues that BNYDC and B & H, owner and alleged general contractor at the site, respectively, failed to provide him with adequate safety equipment at his elevated work site in violation of Labor Law § 240(1), and that this violation was the proximate cause of his injuries. Specifically, plaintiff asserts that the ladder he was provided to climb up the elevator shaft was unsecured, and that although he was provided with a safety harness, there was nothing in the elevator shaft, such as a safety line, to which he could attach it as he ascended the ladder.
Plaintiff has not plead a cause of action under Labor Law § 241–a. “While the general rule is that a party may not obtain summary judgment on an unpleaded cause of action ... it is also true that summary judgment may be awarded on an unpleaded cause of action if the proof supports such cause and if the opposing party has not been misled to its prejudice” (Weinstock v. Handler, 254 A.D.2d 165 [1998] ). “As with a trial, the court may deem the pleadings amended to conform to the proof” ( id.). Here, the proof supports the cause of action under Labor Law § 241–a and defendants have not argued that they have been misled to their prejudice.
In support of that branch of their cross motion to dismiss plaintiff's Labor Law §§ 240(1) and 241(6) causes of action, defendants first assert that their cross motion is untimely since it was made more than 60 days after the note of issue was filed. However, they argue that it should be considered where, as here, plaintiff has made a timely motion for summary judgment on nearly identical grounds. On the merits, defendants contend that plaintiff's failure to tie the lanyard or rope on his safety harness onto one of the two ropes or the metal beam adjacent to his ladder was the sole proximate cause of his injuries. According to defendants, had plaintiff attached his safety harness to one of the ropes or the metal beam, “his safety harness would have prevented his fall, and he would not have been injured.”
In opposition to defendants' cross motion, plaintiff argues that since the ladder was unsecured and precipitated his fall, his actions alone could not have been the sole proximate cause of his injuries. In addition, plaintiff asserts that there is a question of fact as to whether the harness provided him with proper protection under the statute based upon his testimony that there was nothing in the elevator shaft to which he could tie his safety harness when he ascended the ladder. Lastly, plaintiff contends that there is at least a question of fact as to whether his alleged failure (or inability) to tie off his harness while ascending and descending the ladder was a proximate cause of his fall. Plaintiff does not articulate the basis for this last argument. Nevertheless, in distinguishing a case cited by defendants, he cites his own testimony, namely that he could not attach his safety harness to anything until he was on the top level of the scaffold where he was working because: (1) his lanyard was too short, and (2) the only thing available to him while ascending/descending the ladder was a rope that was already being used for hauling bricks to the top level of the scaffold. Plaintiff also notes that his expert opines that “the rope” was not a proper anchor for tying off a harness.
Plaintiff references paragraph 16 for this proposition, wherein plaintiff's expert engineer, Mr. John J. Flynn, P.E. states that “[a]ccording to [p]laintiff's testimony, [d]efendants did not provide a safety line. The belt and lanyard [d]efendants did provide were therefore useless. Additionally there were no solid planking or safety nets provided on the site. Plaintiff fell approximately 30 feet due to the lack of proper protection.”
In opposition to this branch of plaintiff's motion, defendants argue that the depositions of plaintiff and Mr. Samuel Klein (from B & H) are inadmissible because they are unsigned, and that the remainder of plaintiff's submissions fail to support plaintiff's motion for summary judgment on his Labor Law § 240(1) cause of action. On the merits, defendants assert that plaintiff has failed to establish, by admissible evidence, that the City or BNYDC owned or had any property interest “in the premises in which the plaintiff was injured,” or that the BNYDC owned or had any property interest in the elevator shaft, which serves as an additional basis to deny plaintiff's claim under Labor Law § 240(1).
In addition, based upon plaintiff's testimony that: (1) he would tie his safety harness to the rope when he “would be going up” the ladder; (2) at the time of the accident, he was wearing his safety harness but was not tied off to anything; (3) he would only tie himself off when he was at the top of the ladder; and (4) there were two ropes and a metal beam adjacent to the ladder; defendants reiterate that there is a question of fact as to whether plaintiff's failure to attach the lanyard of his safety harness to one of the available ropes or to the metal beam was the sole proximate cause of his accident.
In his reply, plaintiff annexes a signed copy of plaintiff's deposition transcript, a contract between B & H and Double GG which, among other things, refers to B & H as “owner;” asserts that all defendants have an interest in the subject premises by virtue of certain lease agreements; and reiterates that he could not have been the sole proximate cause of his injuries since defendants failed to provide an adequate ladder, as well as proper anchorage for his safety harness.
Defendants reply that inasmuch as plaintiff concedes in his affirmation in opposition that there were two ropes in the area where he was working, plaintiff's failure to tie off to the available ropes was the sole proximate cause of his injuries.
“Labor Law § 240(1) imposes absolute liability upon owners and contractors who fail, in accordance with the statute, to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards” (Bonilla v. State of New York, 40 AD3d 673, 674 [2007] ). “The statute is designed to protect workers from gravity-related hazards such as falling from a height, and must be liberally construed to accomplish its purpose” (id.).
“In order to prevail on a Labor Law § 240(1) cause of action, [a] plaintiff must establish that the statute was violated and that the violation was a proximate cause of his [or her] injuries” (Robinson v. Goldman Sachs Headquarters, LLC, 95 AD3d 1096, 1097 [2012], quoting Delahaye v. Saint Anns School, 40 AD3d 679, 682 [2007] ). “Although the mere fact that a plaintiff fell from a ladder does not, in and of itself, establish a violation of the statute, a plaintiff may establish his or her prima facie entitlement to judgment as a matter of law on a Labor Law § 240(1) cause of action by showing both that he or she fell from a defective or unsecured ladder, and that the defect or failure to secure the ladder was a proximate cause of his or her injuries” ( id. [internal quotation marks and citations omitted] ). In contrast, “[w]here a plaintiff's actions [are] the sole proximate cause of his injuries ... liability under Labor Law § 240(1) [does] not attach” (Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554 [2006] [internal quotation marks and citations omitted] ).
As an initial matter, with respect to the untimeliness of defendants' motion, it is settled that “an untimely cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds” (McCallister v. 200 Park, L.P., 92 AD3d 927, 928 [2012] ). “In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause ... to review the merits of the untimely cross motion” (Homeland Ins. Co. of N.Y. v. National Grange Mut. Ins. Co., 84 AD3d 737, 738–739 [2011] [internal citations omitted] ). Here, although defendants' cross motion was untimely (see Brill v. City of New York, 2 NY3d 648 [2004] ), the court may entertain the cross motion to the extent that is seeks dismissal of plaintiff's Labor Law §§ 240(1), 241(6), and 241–a causes of action because plaintiff's timely motion seeks summary judgment as to those causes of action. However, since plaintiff did not move for summary judgment on his Labor Law § 200 and common-law negligence claims, the court may not entertain this branch of the cross motion (Filannino v. Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281–282 [2006] ).
As a second threshold issue, defendants contend that plaintiff's unsigned transcript is inadmissible, that plaintiff cannot correct this deficiency in a reply, that the remainder of plaintiff's submissions fail to support plaintiff's motion, and that therefore plaintiff's motion must be denied. However, submission of the signature pages of a deposition transcript in reply papers cures the defect in the original motion papers (Mazzarelli v. 54 Plus Realty Corp., 54 AD3d 1008, 1008 [2008] ). Here, plaintiff annexed the properly-certified and executed signature page of the deposition transcript with his reply papers. In addition, by letter dated January 5, 2011, plaintiff's attorney also sent plaintiff a letter with a copy of the transcript with instructions to review, sign, notarize and return the transcript. Pursuant to CPLR 3116(a), plaintiff's deposition may be used as though fully signed because it was sent to plaintiff within the 60–day period set forth in the statute.
Finally, “although unsigned, as noted above, the transcript of [plaintiff's] deposition was certified, and the defendants [do] not raise any challenges to its accuracy” ( Rodriguez v. Ryder Truck, Inc., 91 AD3d 935, 936 [2012] ). “Thus, it qualifie[s] as admissible evidence for purposes of the plaintiffs' motion for summary judgment” ( id.).
.CPLR 3116(a), entitled “Signing deposition; physical preparation; copies” provides that:
(a) Signing. The deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness before any officer authorized to administer an oath. If the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed. No changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination.
As to defendants' argument that Mr. Klein's unsigned deposition is inadmissible, since it is uncertified and is being used to demonstrate that B & H acted as an owner under the Labor Law, it may be used as an admission in support of a summary judgment motion (Tower Ins. Co. of N.Y. v. Khan, 93 AD3d 618, 619 [2012];Morchik v. Trinity Sch., 257 A.D.2d 534, 536 [1999] ).
As to the third threshold issue presented, defendants argue that plaintiff has failed to submit any evidence that they owned or had a property interest in the building in which the accident occurred. “A lessee of premises will be deemed an owner[ ]' within the meaning of Labor Law § 240(1) if the lessee had an interest in the [premises] and ... fulfilled the role of owner by contracting to have work performed for [its] benefit' “ (Lopez–Dones v. 601 W. Assoc., LLC, 98 AD3d 476, 479 [2012], quoting Kwang Ho Kim v. D & W Shin Realty Corp., 47 AD3d 616, 618 [2008] [internal quotation marks omitted] ). Moreover, “Labor Law § 240(1) and § 241(6) impose liability on all owners, without regard to encumbrances, and [their] duty to provide safe working conditions is nondelegable regardless of control” (Ferreira v. Village of Kings Point, 68 AD3d 1048, 1050 [2009] [internal quotation marks and citations omitted] ). In this regard, “there must be some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest in order for liability to be imposed under these provisions of the Labor Law” ( id. [internal quotation marks and citations omitted]; see Sanatass v. Consolidated Inv. Co ., Inc., 10 NY3d 333, 341–342 [2008] ).
Defendants' argument has merit, but only as to BNYDC. As to the City, in his reply, plaintiff has annexed the lease between the City, as landlord, and BNYDC, as lessee, dated February 15, 2001, granting BNYDC a leasehold interest in the entirety of the Navy Yard. Moreover, the City has already conceded in at least one other dispute that it owns the Brooklyn Navy Yard ( Durando v. City of New York, 33 Misc.3d 1231A, *13–14 [Sup Court, Kings County [2011], 2011 N.Y. Slip Op 52181[U] ). Further, “a fee owner is an owner for purposes of Labor Law § 240(1) liability even if it has leased its property to another entity, and even if it did not contract for the work or supervise or control the work” ( id., at 13; citing Sanatass, 10 NY3d at 340–341;see also Wong v. City of New York, 65 AD3d 1000, 1001 [2009] ). Thus, plaintiff has demonstrated that the City is an owner under the statute.
As to B & H, defendants concede that B & H admits in its answer that it leased portions of the subject premises. However, defendants argue that plaintiff has not submitted any evidence that B & H owned or had any interest in the elevator shaft. Instead, defendants point to the deposition testimony of Mr. Samuel Klein, B & H's Director of Facilities, who did not know which part of the premises B & H leased. However, in his moving papers, plaintiff annexed the contract between B & H and Double GG, which references B & H as owner; states that “the following is a contract submitted by Double GG to B & H Foto for the construction at Brooklyn Navy Yard Bldg. No. 664 Brooklyn NY, 11211;” and provides that Double GG “will supervise and negotiate all contracts for sub contractors for the owners [sic] benefit and select the subs at owner's discretions [sic].” In addition, B & H signed the contract as “construction manager.” Further, Mr. Klein testified that B & H hired Double GG to perform construction work on two elevators at the site. Accordingly, plaintiff has made a prima facie showing that B & H had an interest in the premises and fulfilled the role of owner by contracting to have work performed for its benefit.
Plaintiff, however, has failed to establish that BNYDC is an owner, agent or lessee under the Labor Law. In his reply, plaintiff has annexed the July 9, 2008 lease between BNYDC, as landlord, and B & H, as tenant whereby B & H would acquire an interest in Building 664. However, there has been no showing that BNYDC contracted for the work at issue or that there is any nexus between BNYDC and plaintiff (Guclu v. 900 Eighth Ave. Condominium, LLC, 81 AD3d 592, 593 [2011];Wong, 65 AD3d at 1001). Thus, there is no basis to impose liability upon BNYDC under Labor Law §§ 240(1) or 241(6) since it was neither an agent of the owner or general contractor, nor an “owner” within the meaning of these provisions. Nor is there a basis to impose liability upon BNYDC under Labor Law § 241–a since that section applies only to owners, contractors, and their agents (Khela v. Neiger, 85 N.Y.2d 333, 336 [1995] ).
On the merits, in support of the branches of their respective motion and cross motion, neither plaintiff nor defendants have established their prima facie entitlement to summary judgment as a matter of law. In this regard, a triable issue of fact exists as to whether the ladder provided proper protection within the meaning of Labor Law § 240(1) and if not, whether this was a proximate cause of plaintiff's fall. In addition, a triable issue of fact exists as to whether plaintiff's conduct was the sole proximate cause of his accident. As noted above, plaintiff testified that the ladder was not attached to anything nor was it tied down, and that he fell because “the ladder went to one side, it tilted.” While this ordinarily constitutes a prima facie showing that Labor Law § 240(1) has been violated (Robinson, 95 AD3d at 1097;Florestal v. City of New York, 74 AD3d 875, 875–876 [2010];LaGiudice v. Sleepy's Inc., 67 AD3d 969, 971 [2009];Gilhooly v. Dormitory Auth. of State of New York, 51 AD3d 719, 720 [2008];Salon v. Millinery Syndicate, Inc., 47 AD3d 914, 915 [2008];Jicheng Liu v. Sanford Tower Condominium, Inc., 35 AD3d 378, 379 [2006] ), a triable issue of fact exists as to whether plaintiff's failure to attach the lanyard of his safety harness to the one of the two ropes or the metal beam adjacent to the ladder was the sole proximate cause of plaintiff's injuries. As detailed above, although plaintiff testified that there was nothing to which he could attach his safety harness, he also identified a photo taken on the day of the accident depicting two ropes and a metal beam adjacent to his ladder, and testified that the photograph showed the area between the third and fourth levels in the elevator shaft from which he fell. Moreover, plaintiff testified that he would tie his safety harness to the rope when he “would be going up” the ladder; that at the time of the accident, he was wearing his safety harness but was not tied off to anything; and that he would only tie himself off when he was at the top of the ladder.
In light of the foregoing, that branch of plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1) and that branch of defendants' cross motion to dismiss this cause of action are both denied ( Martinez v. Ashley Apts Co., LLC, 80 AD3d 734, 735 [2011];Schick v. 200 Blydenburgh, LLC, 88 AD3d 684, 687 [2011];Riccio v. NHT Owners, LLC, 51 AD3d 897, 899 [2008];Bonilla, 40 AD3d at 675).
In answer to whether he would attach himself to the scaffolding itself, plaintiff replied “I was closing up and you know where the rafters are there was a piece of iron, and that's where I would attach myself.”
“Labor Law § 241–a provides that persons working in elevator shaftways must be protected by planking laid not more than two floors above and not more than one floor below the level on which the individual is working” (Brownrigg v. New York City Hous. Auth ., 70 AD3d 619, 621 [2010] ). It “is meant to protect workers either from falling through the shaft for more than one story or from being hit from above by falling debris or other materials” (Sharp v. Scandic Wall Ltd. P'ship, 306 A.D.2d 39, 39 [2003] ).Labor Law § 241–a applies to owners, contractors, and their agents and the duties set forth therein are nondelegable (Khela, 85 N.Y.2d at 336). Further, comparative negligence is not a defense to a Labor Law § 241–a claim (Doucoure v. Atlantic Dev. Gp., LLC, 18 AD3d 337, 338 [2005] ). A plaintiff seeking to recover under Labor Law § 241–a must demonstrate that the statute was violated and that such violation proximately caused his or her injuries (Anspach v. Miller Bluff's Constr. Corp., 280 A.D.2d 564, 565 [2001] ). Accordingly, where a worker's own actions are the sole proximate cause of his injuries, recovery under the statute is precluded.
Here, although the record reveals that “plaintiff's work in the area of an uncovered elevator shaft subjected him to a hazard that the devices required by Labor Law ... § 241–a are designed to protect against” as noted immediately above, plaintiff's testimony raises an issue of fact as to whether his failure to attach his safety harness onto either one of the two nearby ropes or the metal beam was the sole proximate cause of his accident (Anspach, 280 A.D.2d at 565 [2001] ). Therefore, those branches of plaintiff's motion and defendants' cross motion (as to the City and B & H only) for summary judgment on plaintiff's Labor Law 241–a cause of action must be denied.
Labor Law 241(6)Labor Law § 241(6) provides, in pertinent part, that:
“All 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 persons employed therein or lawfully frequenting such places.”
Labor Law § 241(6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501–502 [1993] ). “To prevail on a cause of action based on Labor Law § 241(6), a plaintiff must establish a violation of an Industrial Code provision which sets forth a specific standard of conduct” (Gonzalez v. Pon Lin Realty Corp., 34 AD3d 638 [2006] ).
Here, plaintiff asserts that he has a viable Labor Law § 241(6) claim to the extent that he relies upon violations of 12 NYCRR 23–1.7(b)(i) and (iii); 12 NYCRR 1.21(b)(4)(i); and 12 NYCRR 23–2.5(a)(2). These statutes are sufficiently specific to specific to support a Labor Law § 241(6) cause of action (Erickson v. Cross Ready Mix, 75 AD3d 524 [2010],lv dismissed,16 NY3d 794 [2011] [12 NYCRR 23–1.7(b)(i) ]; Reavely v. Yonkers Raceway Programs, Inc., 88 AD3d 561 [2011] [12 NYCRR 23–1.7(b)(iii) ]; Ferrero v. Best Modular Homes. Inc., 33 AD3d 847 [2006],lv dismissed8 NY3d 841[2007] [12 NYCRR 1.21(b)(4)(i) ]; Parrales v. Wonder Works Constr. Corp., 55 AD3d 579 [2008] [12 NYCRR 23–2.5(a)(2) ] ).
As to their applicability, 12 NYCRR 23–1.7(b)(i) and (iii) provide, in pertinent part, that:
(b) Falling hazards. (1) Hazardous openings.
(i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).
(iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows:
(a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or
(b) An approved life net installed not more than five feet beneath the opening; or
(c) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.
With respect to § 23–1.7(b)(1), plaintiff has established that he was working at the top level of a scaffold which contained a four foot by four foot space in its center, and that there was no “substantial cover fastened in place” nor any safety railings. However, inasmuch as there is a question of fact as to whether plaintiff's conduct was the sole proximate cause of his accident, this branch of plaintiff's motion for summary judgment on his Labor Law § 241(6) cause of action must be denied (Ferrero, 33 AD3d at 851–852).
Similarly, with respect to 23–1.7(b)(1)(iii), plaintiff has demonstrated that he was working close the edge of the opening of the scaffold. Although it is undisputed that there was no planking beneath the opening in the middle of the scaffold and although a life net was not provided, a question of fact exists as to whether plaintiff was provided with an approved safety belt with attached lifeline which was properly secured to a substantial fixed anchorage. Moreover, a material question of fact exists with respect to the issue of sole proximate cause.
As to 12 NYCRR 1.21(b)(4)(i), this section provides that:
(4) Installation and use. (i) Any portable ladder used as a regular means of access between floors or other levels in any building or other structure shall be nailed or otherwise securely fastened in place. Such a ladder shall extend at least 36 inches above the upper floor, level or landing or handholds shall be provided at such upper levels to afford safe means of access to or egress from the ladder. Such a ladder shall be inclined a maximum of three inches for each foot of rise.
Plaintiff has made a prima facie showing that the ladder, which was used as a means of access between the third and fourth levels, was not tied down. Although this section is applicable, in light of the issue of sole proximate cause, it may not serve as a basis for granting this branch of plaintiff's motion.
Finally, 12 NYCRR 23–2.5(a)(2) provides that:
(2) Protection from falling. (i) To minimize injuries from falls in shafts, a tight platform consisting of planks at least two inches thick full size, exterior grade plywood at least three-quarters inch thick or material of equivalent strength shall be installed not more than one story or 15 feet, whichever is less, in the shaft below the level where persons are working. In lieu of such platform, an approved life net installed in compliance with this Part (rule) may be provided. Such approved life net shall be installed in the shaft not more than one story or 15 feet, whichever is less, below the level where persons are working.
Plaintiff has demonstrated that he was working in an elevator shaft and that the platform or approved life net was not provided. However, summary judgment on the issue of liability on this cause of action must be denied for the same reason noted above, namely the existence of a triable issue of fact with respect to causation.
In summary, plaintiff's motion is denied. That branch of defendants' motion to dismiss plaintiff's Labor Law §§ 240(1), 241(6), and 241–a causes of action is granted only as to BNYDC, and the remainder of defendants' cross motion is denied.
This constitutes the decision and order of this court.