The court finds that the plaintiff has made a prima facie showing for summary judgment in his favor on his Labor Law § 240 (1) claim. He has established that he was exposed to an elevation-related risk for which no safety devices were provided to prevent him from falling, and that such failure was a proximate cause of his injuries (see Estrella v ZRHLE Holdings, LLC, 218 A.D.3d 640, 643-644 [2d Dept 2023]; Rodriguez v Waterfront Plaza, LLC, 207 A.D.3d 489, 490 [2d Dept 2022]; Rubioy New York Proton Mgt., LLC, 192 A.D.3d 438, 439 [1st Dept 2021]; Lojano v Soiefer Bros. Realty Corp., 187 A.D.3d 1160, 1163 [2d Dept 2020]).

Plaintiff established prima facie entitlement to summary judgment by submitting his deposition testimony describing the accident, along with photographic evidence of the accident site (see e.g. Pinzon v Royal Charter Props., Inc., 211 A.D.3d 442, 443 [1st Dept 2022]; Ortiz v Burke Ave. Realty, Inc., 126 A.D.3d 577, 577 [1st Dept 2015]) . However, in opposition, defendants raised triable issues of fact sufficient to defeat the motion by identifying various inconsistencies in plaintiffs account of the accident, thus calling into question his overall credibility and the circumstances underlying his claimed injuries (see Klein v City of New York, 89 N.Y.2d 833 [1996]; Rubio v New York Proton Mgt., LLC, 192 A.D.3d 438, 440 [1st Dept 2021]). For example, plaintiff testified inconsistently about the day that he was allegedly injured, whether he continued working after his alleged accident, and whether he promptly reported his accident.

Exotic failed to rebut this showing or otherwise raise an issue of fact. Exotic's claim that a fall from three feet rendered the statute inapplicable is unavailing (seeRubio v. New York Proton Mgt., LLC, 192 A.D.3d 438, 439, 143 N.Y.S.3d 350 [1st Dept. 2021] ; see alsoAuriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 9, 917 N.Y.S.2d 130 [1st Dept. 2011] ).

Here, contrary to the Supreme Court's determination, the plaintiff established, prima facie, that he was at the subject premises, which was a construction site, in order to perform duties ancillary to the construction work, which was covered by Labor Law § 240(1) (see Prats v Port Auth. of N.Y. & N. J., 100 N.Y.2d 878; Hagins v State of New York, 81 N.Y.2d 921, 923; Lijo v City of New York, 31 A.D.3d 503; see also Bonilla-Reyes v Ribellino, 169 A.D.3d at 860). Further, the plaintiff established that he was exposed to an elevation-related risk for which no safety devices were provided, and that such failure was a proximate cause of his injuries (see Rubio v New York Proton Mgt., LLC, 192 A.D.3d 438, 439; Valensisi v Greens at Half Hollow, LLC, 33 A.D.3d 693, 695; Brandl v Ram Bldrs., Inc., 7 A.D.3d 655, 656; Campisi v Epos Contr. Corp., 299 A.D.2d 4, 8; Richardson v Matarese, 206 A.D.2d 353; Birbilis v Rapp, 205 A.D.2d 569, 570). In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiff was engaged in an enumerated activity, whether the plaintiff was recalcitrant in deliberately failing to use available safety devices, or whether his actions were the sole proximate cause of his injuries (see Hagins v State of New York, 81 N.Y.2d at 923; Tabickman v Batchelder St. Condominiums By Bay, LLC, 52 A.D.3d 593; Przyborowski v A & M Cook, LLC, 120 A.D.3d 651, 653; Birbilis v Rapp, 205 A.D.2d at 570).

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against Madison. In support of their motion, the plaintiffs submitted evidence sufficient to establish, prima facie, that the injured plaintiff's accident was proximately caused by Madison's failure to provide appropriate safety devices to protect against gravity-related hazards posed by maneuvering the compressor over the trench (see Rodriguez v Waterfront Plaza, LLC, 207 A.D.3d 489, 490; Rubio v New York Proton Mgt., LLC, 192 A.D.3d 438, 439; McCallister v 200 Park, L.P., 92 A.D.3d 927, 928-929). The plaintiffs also demonstrated that the injured plaintiff's accident was the result of an elevation differential within the scope of Labor Law § 240(1). Although the compressor only fell a short distance, given the weight of the compressor and the amount of force it was capable of generating, the height differential was not de minimis (see Runner v New York Stock Exch., Inc., 13 N.Y.3d at 605; Marrero v 2075 Holding Co. LLC, 106 A.D.3d 408, 409; McCallister v 200 Park, L.P., 92 A.D.3d at 928-929; Pritchard v Tully Const. Co., 82 A.D.3d 730, 731).

The general contractor's representative testified that the wood cover had been placed for the purpose of safety. Given these facts, plaintiff has raised an issue of fact as to whether application of Labor Law § 240 governs this claim sufficient to defeat defendants’ various motions for summary judgment (seeRubio v. New York Proton Mgt., LLC, 192 A.D.3d 438, 439, 143 N.Y.S.3d 350 [1st Dept. 2021] ; Carpentieri v. 309 Fifth Ave., LLC, 180 A.D.3d 571, 571–572, 119 N.Y.S.3d 463 [1st Dept. 2020] ; Ervin v. Consolidated Edison of New York, 93 A.D.3d 485, 485, 940 N.Y.S.2d 223 [1st Dept. 2012] ). Further, plaintiff raised issues of fact barring dismissal of the Labor Law § 241(6) cause of action, as Industrial Code §§ 23–1.7(e) and 23–1.30 may apply to circumstances of plaintiff's accident.

Plaintiffs established their prima facie entitlement to summary judgment on their Labor Law § 240(1) claim by submitting evidence showing that defendant failed to provide any safety device or equipment to afford plaintiff proper protection from such an elevation-related hazard (seeAngamarca v. New York City Partnership Hous. Dev. Fund Co., Inc., 56 A.D.3d 264, 265, 866 N.Y.S.2d 659 [1st Dept. 2008] ; Kielar v. Metropolitan Museum of Art, 55 A.D.3d 456, 458, 866 N.Y.S.2d 629 [1st Dept. 2008] ). Plaintiffs were not required to submit any expert testimony concerning the required safety device (seeRubio v. New York Proton Mgt., LLC, 192 A.D.3d 438, 439, 143 N.Y.S.3d 350 [1st Dept. 2021] ; Ortega v. City of New York, 95 A.D.3d 125, 128, 940 N.Y.S.2d 636 [1st Dept. 2012] ). Defendant failed to submit evidence sufficient to raise an issue of fact as to whether Cazho's actions were the sole proximate cause of the accident.

Plaintiffs established their prima facie entitlement to summary judgment on their Labor Law § 240(1) claim by submitting evidence showing that defendant failed to provide any safety device or equipment to afford plaintiff proper protection from such an elevation-related hazard (see Angamarca v New York City Partnership Hous. Dev. Fund Co., Inc., 56 A.D.3d 264, 265 [1st Dept 2008]; Kielar v Metropolitan Museum of Art, 55 A.D.3d 456, 458 [1st Dept 2008]). Plaintiffs were not required to submit any expert testimony concerning the required safety device (see Rubio v New York Proton Mgt., LLC, 192 A.D.3d 438, 439 [1st Dept 2021]; Ortega v City of New York, 95 A.D.3d 125, 128 [1st Dept 2012]). Defendant failed to submit evidence sufficient to raise an issue of fact as to whether Cazho's actions were the sole proximate cause of the accident.

The defendants’ submissions tended to show that the electrical box was open and obvious, and not inherently dangerous (see generallyBellini v. Gypsy Magic Enters., Inc., 112 A.D.3d 867, 868, 978 N.Y.S.2d 73 ). The defendants’ opposition also raised triable issues of fact relating to "[the] plaintiff's credibility" ( Klein v. City of New York, 89 N.Y.2d 833, 835, 652 N.Y.S.2d 723, 675 N.E.2d 458 ; cf. Rubio v. New York Proton Mgt., LLC, 192 A.D.3d 438, 440, 143 N.Y.S.3d 350 ; Millligan v. Tutor Perini Corp., 191 A.D.3d 437, 438, 137 N.Y.S.3d 702 ), and the credibility of her other witnesses, including her expert witness (see generallyFelt v. Olson, 51 N.Y.2d 977, 979, 435 N.Y.S.2d 708, 416 N.E.2d 1043 ; Lelekakis v. Kamamis, 41 A.D.3d 662, 665, 839 N.Y.S.2d 773 ). Since the record failed to establish that judgment as a matter of law was warranted, the Supreme Court erred in granting those branches of the plaintiff's cross motion which were for summary judgment on the issue of liability and dismissing the fourth affirmative defense.

In opposition, Toll failed to raise an issue of fact. Even if, as Toll contends, plaintiff fell less than six feet, that does not render the statute inapplicable (seeRubio v. New York Proton Mgt., LLC, 192 A.D.3d 438, 143 N.Y.S.3d 350 [1st Dept. 2021] ; Carpentieri, 180 A.D.3d at 571–572, 119 N.Y.S.3d 463 ; Hoyos v. NY–1095 Ave. of the Ams., LLC, 156 A.D.3d 491, 495, 67 N.Y.S.3d 597 [1st Dept. 2017] ; Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 9, 917 N.Y.S.2d 130 [1st Dept. 2011] ). Toll's claimed compliance with OSHA regulations requiring fall protection only for falls of six feet or more is irrelevant (seeCruz v. Cablevision Sys. Corp., 120 A.D.3d 744, 746–747, 992 N.Y.S.2d 281 [2d Dept. 2014] ; Hoyos, 156 A.D.3d at 495–496, 67 N.Y.S.3d 597 ).