Fuller v. 2465 Broadway Assoc., L.L.C.

Fuller v 2465 Broadway Assoc., L.L.C. 2025 NY Slip Op 31073(U) April 2, 2025 Supreme Court, Kings County Docket Number: Index No. 508505/2019 Judge: Steven Z. Mostofsky Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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At an IAS Term, Part 9, of the Supreme Cou rt of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 2 nd day of April, 2025.

PR ESE NT : HON. STEVEN Z. MOSTOFSKY, Justice. ---------------------- --------------- --------------- ---X PA UL A. FULLER,

Plaintiff,

-against- Index No.: 508505/2019 2465 BRO ADW AY AS SOC IA TES, L.L.C., AND 212 W. 95th SALES OFF ICE LLC AND UNI TED MANAGEMENT,

Defendants. ---------------------- ------ ------ ------ --- --- ---------X 212 W. 95TH SALES OFFICE LLC and UNITED MA NAG EME NT CORP.,

Third-Party Plaintiffs,

-against-

B&O RENOVATIONS, INC., FIRE CONTRO L MANAGEMENT and THE GRE AT HUD SON MECHANICAL,

Third-Party Defendants. ---------------------- ------ ------ --------- ---------- --X The following e-filed papers read herein: NYS CEF Doc Nos.: Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed Opposing Affidavits (Affirmations)- --- 147-281 _ _ __ 248-281 Affidavits/Affirmations in Reply Exhibits ----- 271-272 ------------- Var.

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INDEX NO. 508 505 /201 9 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 04/0 2/20 25

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The statu te's application requires a commonsens e approach to the realities of the workplace at issue" (Salazar v Novalex Contr. Corp., 18 NY3 d 134, 140[2011]). Liability is contingent upon the existence of a contemplated hazard, such as the failure to use a proper safe ty device or its inadequacy of. (Harrison v State ofNew York, 88 AD3 d 951, 952 [2d Dept, 2011], quoting Narducci v Manhasset Bay Assoc., 96 NY2 d 259 ,267 [2d, Dept 2001]; see also Gutman v City ofNew York, 78 AD3 d 886, 887 [2d Dep , 201 O]). A violation requires that the plaintiff establishes both "a violation of the statute and that the violation was a proximate cause of his injuries" (Skalko v Marshall's Inc., 229 AD2 d 569, 570 [2d Dept, 1996], citing Blan d v Manocherian, 66 NY2 d 452 ,488 [1985]; Kea ne v Sin Han g Lee, 188 AD2 d 636, 591 N.Y .S.2d 521 [2d Dept, 1992]; see also Rakowicz v Fash ion Inst. of Tech., 56 AD3 d 747, 86 [2d Dep t, 2008]; Zimmer, 65 NY2 d 513 at 524).

Here, Sales Office and 2465 Broadway have established their prima facie entitlement to judgment as a matter of law concerning their Labor Law § 240(1) cause of action as there is no evidence of a defective ladder. Plaintiff testified that he had no difficulties with the ladder befo re the accident, (NYSCEF Doc. No. 179 at 55:1 1-55:14; 57:22-58:2), that it was finnly standing when he walked up to the ladder, (Id. at 52:9 -52:14; 64:19-64:23; 123:22-125:9; 145:16-1 45:21), and as plaintiff climbed the ladder, the ladd er did not move or shake. (Id. at 65:3-65:6). Whi le the plaintiff claims to have been working on a 12-foot ladd er involved in the accident mult iple times before the alleged incident, his superviso r, Mr. Edd y claims that the ladder was IO feet. No photographs of the ladd er were taken on the date of the accident, but rather, the next day, which showed a 10-foot A-frame ladd er in a different position. However, whether the plaintiff was using the I 0-foot or 12-foot ladder, the plain tiff inspected the ladder, deemed it safe and sturd y with the feet on a flat level surface, not on any debris, and undamaged. Nothing supports the

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plai ntiff 's unsu ppo rted allegation that the ladd er "twi sted ." The plai ntiff did not hire an expert to examine or inspect the ladd er follo wing the accident. (NY SCE F Doc . 234 at 76:1 1-78:12). In Costello v Hap co Realty, Inc., 305 AD2 d 445, 446 -447 [2d Dep t 2003 ] the cour t clarified that Lab or Law § 240 (1) liabi lity does not exist if "plaintiff's fall to the grou nd was the result of his havi ng mer ely slipped off of a defe ct-fr ee and prop erly secu red ladd er." Proo f of a plaintiff's fall from a ladd er, with out mor e, is not suff icien t to establish liability und er Lab or Law § 240 (1 ). (Id.). Here , the cour t find s that the plai ntiff here did not prov e that the ladd er was defe ctiv e.

Plai ntiff has faile d to mee t thei r burd en that a genu ine issue of mate rial fact exis ts. Therefore, the cour t gran ts Sales Offi ce, and 2465 Bro adw ay's mot ion for sum mar y judg men t dismissing the Lab or Law 240 (1) claim .

Labor Law § 241(6) Lab or Law § 241 (6) "imposes a [non-del egable] duty ofre ason able care upo n own ers and contractors to prov ide reasonable and adeq uate prot ectio n and safe ty to pers ons emp loye d in, or lawf ully freq uent ing, all areas in whi ch cons truc tion , excavation, or dem oliti on wor k is bein g perf orm ed." (Song v. CA Plaza, LLC , 208 AD3 d 760, 761 [2d Dep t 2022 ] [internal quo tatio n marks omitted]). "'To establish liability, a plai ntiff mus t dem onst rate that his inju ries wer e prox imat ely caus ed by a viol atio n of an applicable Indu stria l Cod e prov isio n."' (Graziano v. Source Builders & Consultants, LLC , 175 AD3 d 1253, 1258 [2d Dep t 2019 ], quo ting Ara gon a v. State ofNew York, 147 AD 3d 808, 809 [2d Dep t 2018]). Lab or Law § 241( 6) requires that a part y mus t brea ch a "spe cific , posi tive com man d" rath er than a "rei tera tion of com mon -law stan dard s." (Ross v Curtis-Palmer Hydro-E lec. Co., 81 NY 2d 494, 502 [1993]). Ros s disti ngui shed betw een Cod e provisions "ma ndat ing compliance with conc rete spec ifica tion s and thos e that establish general safe ty stan dard s." (Id. at 505).

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Sales Offi ce and 2465 Broa dwa y prov ed they did not violate any New Yor k Indu stria l Cod e Rules:

Indu stria l Cod e§ 23-1.7: References prot ectio n from general haza rds, none of which are applicable to this case.

Indu stria l Cod e§ 23-1.15: No safe ty railin gs were involved in this incident or were required for the wor k bein g perf orm ed by the plaintiff. Here, the plain tiff only work ed on the A- frame ladder.

Indu stria l Cod e§ 23-1.16: Plai ntiff 's alleged incident occurred on a ladder, and the plain tiff testified that he was not using such a devi ce in this case as he was work ing on the A- frame ladder.

Industrial Cod e § 23-1.17: "Pla intif f was not using a life net at the time he fell." (Bennion v. Goodyear Tire & Rub ber Co., 229 A.D .2d 1003, [4th Dep t, 1996); see also Buestan v. EAN Holdings, LLC , 54 Misc. 3d 1224(A), 55 N.Y .S.3 d 691 (Sup. Ct., Qns. Cnty . 2017); Dzie ran v. 1800 Bos. Rd., LLC , 25 A.D .3d 336, 337, 808 N.Y .S.2 d 36, 38 (1st Dep t., 2006 ) ("sections , which set stan dard s for safe ty railings, safe ty belts, and life nets , respectively, do not appl y because plain tiff was not prov ided with any such safe ty devices"). The plai ntiff used an A-fr ame ladder.

Indu stria l Cod e Sect ion§ 23-l .21( a-f): Refe rs to "Lad ders and Lad derw ays. " The entir e section is inapplicable to this case. Und er the subsections whic h perta in to portable ladd ers (subsection (b)(4)(i)), leaning ladd ers (subsecti ons (b)(4)(ii), (b)(4)(iii), (b)(4)(iv) and (b)(4 )(v)), woo den ladd ers (subsection (b)(5)), single ladd ers (subsection (c)), extension ladd ers (subsection (d)) and ladd erwa ys (subsection (f)), are inap plicable. The plain tiff was using an A-fr ame ladder, which he state d was proper, well-seated, and in good condition. He inspected the ladd er befo re using it and found no deficiencies. (NY SCE F Doc. 154 at 51- 52, 57-58, 145).

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Plain tiff cont ends that §23-1.21(b)(3)(iv): The plain tiff hims elf state d that the ladd er was proper, well-seated, and in good condition. He inspected the ladd er befo re using it, foun d no deficiencies, and used the ladd er multiple time s before the alleged accident. (NY SCE F Doc. 154 at 51- 52, 57-58, 145).

Indu stria l Cod e Sect ion§ 23-1.21(e): "Sta ndin g stepl adde rs shall be used only on firm, level footings. Whe n work is bein g perfo rmed from a step of a stepl adde r IO feet or more abov e the footing, such stepl adde r shall be stead ied by a person statio ned at the foot of the stepl adde r or such stepl adde r shall be secured against sway by mechanical means." Here, the plain tiff state s that as soon as he got to the third to last rung of the top of the ladd er it twis ted with him. (NY SCE F Doc. No. 137, at p.64:9-23). Thus, the plain tiff was well belo w the ten-f oot threshold , contained in this provision to trigger the need for the stepl adde r to be stead ied by a person or secured by mechanical means. (See Nalepa v. S. Hill Bus. Campus, LLC , 39 Misc. 3d 123 l(A), 972 N.Y .S.2d 144 [Sup. Ct. 2013), affd , 123 A.D .3d 1190, 998 N.Y .S.2d 245 [2014]). Indu stria l Cod e Sect ion§ 23-1.22: Refe rs to platf orms, not ladders. Indu stria l Cod e Section § 2.1: The plain tiff testif ied that the area was clean and clear of debris (NY SCE F Doc. No. 154, at p.100).

Tims, Sales Offi ce and 2465 Broa dway bear no liabil ity unde r Labo r Law § 200 and the cause of action is dismissed unde r CPL R.

Labor Law § 200 An own er is liable unde r common law negligenc e or Labo r Law § 200 where a plain tiff alleges that their injuries result from the means or meth ods by whic h their work is performed. (Torres v City ofNew York, 127 AD3 d 1163, 1165 [2d Dept 2015]). Rather, when a claim arises out of alleged defe cts or dang ers in the meth ods or materials of the work , reco very against the own er or general cont racto r cann ot be had unde r Labo r Law § 200 unless it is show n that the

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party to be charged had the authority to supe rvise or control the performance of the work . (Ortega v Puccia, 57 AD3 d 54, 61 (2d Dep t 2008 ]). '"A defe ndan t has the authority to supervise or control the work for purposes of Labo r Law § 200 when that defe ndan t bears the responsibility for the man ner in which the work is perf orm ed"' (Roblero v Bais Ruchel High School, Inc., 175 AD3 d 1446, 1448 [2d Dep t 2019 ), quoting Ortega v Puccia, 57 AD3 d 54, 62 [2d Dep t 2008]).

Here, Sales Offi ce and 2465 Broa dwa y estab lished entitlement to summary judg men t because they did not prov ide any equipment or directly control the means and methods of the plaintiff's work that caused his injury. (NY SCE F Doc. No. 179, at 4:9-14). An unnamed HVA C contractor provided the plaintiff's ladder, and plain tiff only took directions from his superviso r, Mr. Edd y. (NY SCE F Doc. No. 179, at 46:1 5-47:3; 52:7-52:8). Thus, Sales Offi ce and 2465 Broa dwa y bear no liability unde r Lab or Law § 200 and the cause of action is dismissed.

Conclusion

This constitutes the decision and orde r of the court.

EN TER :

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Footnotes

[1] of 8 [* 1] Paul Fuller (Plaintiff) commenced an action agai nst defendant 2465 Broad way Associates, LLC (2465 Broadway) and defendan t/third-p arty plaintiffs, 212 W. 95th Sales Office LLC and United Management Corp (Sales Offi ce). The plaintiff alleges that the defendants violated Labor Law § 200, 240(1) and § 241( 6). The plaintiff made a motion for summary judgment unde r the Labor Law § 240(1) and § 241(6) causes of action. The defendants cross-move and seek summary judgment dismissing the plaintiff's claims under Labor Law § 200, § 240(1), and § 241( 6). Statement of Facts 2465 Broadway owned the premises at 2465 Broadway. Sales Office leased space there to construct an office. Sales Office contracte d with Fire Control Management to provide electrical work for the project. Fire Control Man agem ent retained its "partner" MNBC Electrical to perform the work unde r the contract. MNBC is not a party to this action. The plaintiff alleges that on October 5th, 2018 , while employed by MNBC Electrical, he sustained injuries when he fell from a ladder that twisted. The ladder belonged to an on-site non- party HV AC contractor. Afte r the accident, they took the Plaintiff to Mount Sinai Medical Center Emergency Department in Manhattan. Legal Standard "'[S]ummary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue'" (Rot uba Extruders, Inc v Ceppos, 46 NY2 d 223, 231 [1978], quoting Moskowitz v Garlock, 23 AD2 d 943 [3rd Dep t 1965]). "[T]he proponent of a summary judgment motion must make a prim a facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue s of fact" (Alvarez v Prospect Hospital, 68 NY2 d

[320] ,324 [1986], citing Winegrad v New York Univ Med Center, 64 NY2 d 851 [1985]). When eval uating a motion for summary judgment, "fac ts 2 2 of 8 [* 2] must be viewed 'in the light most favorable to the nonmoving part y"' (Vega v Restani Con st Corp, 18 NY3 d 499, 503 [2012]). "It is not the func tion of a court deci ding a summary judg men t motion to make credibility determinations or findings of fact, but rather to iden tify material triable issues of fact (or point to the lack there of)" (Vega v Restani Const Corp, 18 NY3 d at 505). Lab or Law § 240{1) Labor Law § 240(1), which provides, in perti nent part, as follows: "All contractors and owners and their agents ... who contract for but do not direct or control the work, in the erection, demolition, repairing, [or] altering ... of a building or 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 othe r devices which shall be so constructed, placed and operated as to give proper protection to a person so employe d." It serves to protect construction workers "from the pronounced risks arising from construct ion work site elevation differentials" (Runner v New York Stock Exch., Inc., 13 NY3 d 599, 603 [2009]; see also Rocovich v Consol. Edison Co., 78 NY2 d 509 ,514 [1991]; Ross v Curtis- Palmer Hydro-Electric Co., 81 NY2 d 494, 501 [1993)). It applies to an injury that directly flows from the application of the force of gravity to an object or to the injured work er performing a prot ecte d task (Gasques v State of New York , 15 NY3 d 869 ,937 [2010]; Vislocky v City of New York, 62 AD3 d 785, 78 [2d Dept, 2009], Iv dismissed 13 NY3 d 857 [2009]; see also Ienc o v RFD Second Ave., LLC , 41 AD3 d 537, 840 [2d Dept, 2007]; Ortiz v Turner Constr. Co., 28 AD3 d 627, 813 [2d Dep t, 2006]; Lace y v Turn er Constr. Co., 275 AD2 d 734, 735 [2d Dep t 2000 ]; Smith v Artco Indus. Laundries, 222 AD2 d 1028 [4th Dept, 1995]). That duty is non-dele gable; therefore, owners, contractors, and their agents are liable for violations even if they have not exercised supervision and control over eithe r the subject work or the injured work er (Zim mer v Chemung County Performing Arts, Inc., 65 NY2 d 513, 521 [1985]. 3 3 of 8 [* 3]