Gallagher v Resnick

[*1] Gallagher v Resnick 2012 NY Slip Op 50540(U) Decided on January 27, 2012 Supreme Court, Kings County Jacobson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 27, 2012
Supreme Court, Kings County

Philip Gallagher and Mary Katherine Gallagher, Plaintiffs,

against

Scott N. Resnick, S. Donadic, Inc., And Coffey Contracting inc., Defendants



17438/09

Laura Lee Jacobson, J.

The following papers number 1 to 9 read on this motion:

Notice of Motion/Order to Show Cause/Papers Numbered

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-2, 3-4, 5-6

Opposing Affidavits (Affirmations)7, 8

Reply Affidavits (Affirmations)9

(Affirmations)

Other Papers

Upon the foregoing papers, the plaintiffs Philip Gallagher and Mary Katherine Gallagher move for an order, pursuant to CPLR § 3212, granting them partial summary judgment on the issue of liability as it applies to their Labor Law § 240(1) claim against defendants S. Donadic, Inc. and Coffey Contracting, Inc. Defendant S. Donadic, Inc. moves for an order pursuant to CPLR 3212, granting summary judgment dismissing all claims asserted in the plaintiffs' complaint insofar as asserted against Donadic, as well as all cross-claims. Defendant Coffey Contracting, Inc. cross-moves for summary judgment dismissing plaintiffs' complaint in its entirety and all cross-claims asserted against it.

Factual Background

This is an action for personal injury arising out of an incident that occurred on April 23, 2009, when the plaintiff Phillip Gallagher (hereinafter "plaintiff" or "injured plaintiff") was at a four-story single family home known as 293 West 4th Street in Manhattan, New [*2]York ("the premises" or "the building"). At the time of the incident, the premises was owned by defendant Scott N. Resnick (Resnick). Sometime before the accident occurred, Resnick hired defendant S. Donadic, Inc. (Donadic) to serve as the general contractor for a renovation/construction project at the premises. Donadic then hired various subcontractors, including the defendant Coffey Contracting, Inc. (Coffey), a concrete and masonry contractor. Coffey was retained to perform exterior and interior masonry work at the premises. Coffey, in turn, hired Townhouse Restorations (Townhouse), not a party herein, to fabricate stone and other materials for the masonry construction work. Plaintiff was the owner, as well as an employee of Townhouse.

During his deposition, the plaintiff described the Townhouse as a company that fabricated concrete and glass fiber for landmark and historical buildings. According to the plaintiff, Townhouse would typically be hired by a contractor to supply building materials such as glass fiber, reinforced concrete and coping stone. After being hired, a Townhouse employee would go to the jobsite to take measurements of the area in question in order to create shop drawings to fabricate the necessary materials. The actual fabrication of the materials, such as coping stone, always took place at Townhouse's facility in Williamsburg, Brooklyn. When the fabrication was complete, the materials were routinely picked up at the Williamsburg facility by the clients who placed the order for said materials. According to the plaintiff, Townhouse never fabricated the materials on a particular jobsite or took part in the installation process. When taking the measurements at a particular jobsite, the plaintiff testified that he would only use a tape measure, pencil and a clipboard.

With respect to the accident in question, the plaintiff testified that he has no recollection of the incident or any of the events that occurred on the date of the accident. Further, the plaintiff has submitted an affidavit from his treating physician indicating that as a result of his head injuries, he suffers from retrograde amnesia. Indrek Silk (Silk) was the job site superintendent for Donadic, who was responsible for coordinating all of the trades and constructing the building according to the architectural blueprints and specifications. During his deposition, Silk described the premises as a four-story residential building under construction. An exterior setback roof was located on the fourth floor outside the terrace. Located on top of the exterior setback roof was a mechanical roof. Silk testified that there were no guardrails erected on the mechanical roof level, nor were there any safety nets erected underneath the mechanical roof level. There were also no guardrails or safety nets on the perimeter of the setback roof level either. Prior to the date of the accident, Coffey had erected scaffolding on the fourth floor terrace in order to reach the upper level roofs. A couple of days before the accident occurred, Coffey removed the scaffolding in order for work to be done on the roof. Silk testified that Townhouse was hired by Coffey to supply the project with coping stone masonry materials, and that on two or three occasions, he had observed the plaintiff on site taking measurements for his work.

On the date of the incident, approximately one-half hour before the accident occurred, the plaintiff telephoned Silk to find out if the job site would be open Shortly thereafter, Silk observed the plaintiff going up the stairs. Approximately two to five minutes later, Silk, who was in an office on the first floor, claimed that he heard an "unnatural thump" coming from the roof of the premises. At that point, Silk immediately went to the second floor balcony. When he didn't see anything, he then ran up to the fourth floor where he discovered the plaintiff bleeding and lying on the concrete roof terrace floor. Silk thereafter called for an ambulance.

[*3]The injured plaintiff and his wife, derivatively, commenced this personal injury action against Resnick, Donadic and Coffey alleging common-law negligence and violations of Labor Law §§ 200, 240 (1) and § 241(6).[FN1] Issue has been joined by the parties and discovery has been completed. Plaintiffs filed their note of issue and certificate of readiness in this action on May 25, 2011. Plaintiffs now seek partial summary judgment on the Labor Law § 240(1) cause of action. Defendants Donadic and Coffey, oppose plaintiffs' motion and move for summary judgment dismissing plaintiffs' complaint and all cross claims asserted against them.

Discussion

The proponent of a summary judgment motion must make a prima facie showing of its entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once that initial burden has been satisfied, the burden shifts to the party opposing the motion to produce sufficient evidence to raise a triable issue of fact (id.). The court's only role in passing upon such a motion is to determine whether any such issue exists; it is not to determine the merits of such issues (see Sillman v Twentieth Century—Fox Film Corp., 3 NY2d 395 [1957]). If there is any doubt as to the existence of a triable issue, the motion should be denied (see Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]).

Labor Law § 240(1) Claim

The court will first address plaintiffs' Labor Law § 240(1) cause of action. Labor Law § 240(1) protects workers from elevation-related hazards while they are involved in certain enumerated work activities (see Panek v County of Albany, 99 NY2d 452 [2003]). The statute applies when an employee is engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240[1]; see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]). In order to prevail in an action brought under Labor Law § 240(1), a plaintiff must show that the statute was violated and that the violation was a proximate cause of the injury (see Sprague v Peckham Materials Corp., 240 AD2d 392, 393 [1997]). Labor Law § 240(1) provides, in relevant part:

"All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing 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 other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

Labor Law § 240(1) imposes a nondelegable duty upon owners and contractors to provide necessary and appropriate protection to workers employed on a construction site (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). The statutory protection afforded by Labor Law § 240(1) is intended to encompass only elevation-related hazards which result in injury to workers as a result of inadequate or missing safety equipment (see Bland v Manocherian, 66 NY2d 452, 457-459 [1985).

In support of their motion, the plaintiffs contend that the injured plaintiff is a protected member of the class because his task at the time of the accident was to measure lintels and other masonry details that were integral to the progress of the ongoing construction project. In this regard, the plaintiffs maintain that his work, which required him to be on site to take [*4]measurements, was for the furtherance of the construction work being performed and was therefore necessary for the completion of the project.

In opposition to the plaintiffs' motion, and in support of their respective motions to dismiss the section 240(1) claim, Donadic and Coffey (collectively, the defendants), argue that the plaintiff was not a member of the special class of workers protected by Labor Law § 240(1) because he was not engaged in any of the enumerated activities (i.e., construction or demolition) at the time of his accident. In this regard, the defendants point out that the only task that the plaintiff had at the job site was to take measurements in order to fabricate masonry materials (coping stone) for the project. Since it is undisputed that the fabrication of the stone was to take place at Townhouse's off-site facility, rather than on the job site, and that Coffey, the masonry subcontractor, was solely responsible for picking up the materials and installing same, it is defendants' contention that the plaintiff's work clearly did not involve the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. Therefore, the defendants contend that the Labor Law § 240(1) claim should be dismissed since the plaintiff was not acting within the scope of any of the enumerated protected activities.

Additionally, defendants argue that the complaint should be dismissed because the plaintiff has no knowledge of how the accident occurred, and there were no witnesses. The court finds this argument unavailing. Despite the lack of witnesses to the accident and plaintiff's inability to recall how it happened, the court finds that the plaintiffs have submitted sufficient admissible proof to establish that the injured plaintiff's injuries were the result of a fall from the fourth floor roof of the building, and that he was immediately discovered lying on the fourth floor terrace by Donadic's employee (see Felker v Corning Inc., 90 NY2d 219, 224-225 [1997]; Angamarca v New York City Partnership Hous. Dev. Fund Co., Inc., 56 AD3d 264 [2008]). That plaintiff's head injury was due to a fall from a height was further corroborated by his neurologist's (Aric Hausknecht, M.D.) affidavit, which stated that the type of severe head injury indicated by plaintiff's medical records was consistent with a fall from a height. Additionally, it is undisputed that the roof was not equipped with railing, guardrails, or safety nets, and that the plaintiff had not been provided with any safety devices at the time of the accident. Although there are no known eyewitnesses to the plaintiff's accident, there is no evidence to suggest that plaintiff's injuries may have been caused by an event other than a fall from the fourth floor roof.

As to whether the plaintiff's work constituted a protected activity under Labor Law §§ 240(1), the Court of Appeals has held that any determination whether particular work falls within the scope of construction, demolition, or excavation protected by the Labor Law must be determined on a case-by-case basis, and depends on a "confluence of factors" and the full "context of the work" (Prats v Port Auth. of NY & N.J., 100 NY2d 878, 883 [2003]; see Nagel v D & R Realty Corp., 99 NY2d 98, 102 [2002]; Fitzpatrick v State of New York, 25 AD3d 755, 757 [2006]). In Prats v Port Auth. of NY & N.J., (100 NY2d 878), the plaintiff, an assistant mechanic employed by the air conditioning contractor, was hit by a falling ladder on which his coworker was inspecting an air conditioning return fan. The Court of Appeals found that a combination of certain factors brought the plaintiff's activity within the ambit of section 240(1). For instance, the Court noted the plaintiff's position as a mechanic, who routinely undertook an enumerated activity, his employment with a company engaged under a contract to carry out an enumerated activity, and plaintiff's participation in an enumerated activity during the coarse of the project (id.). Based upon the foregoing factors, the Court held that the work being performed by plaintiff mechanic at the time of his accident, [*5]inspecting an air-conditioning return fan as part of his work on overhauling air-conditioning systems, fell within the purview of section 240(1) (id.; see also Fitzpatrick, 25 AD3d at 757; Lijo v City of New York, 31 AD3d 503 [2006]).

Here, it is undisputed that none of the factors considered by the court in Prats are present herein. Unlike the plaintiff in Prats, the plaintiff herein was not a member of a team that undertook an enumerated activity under a construction contract. The record is clear that, at the time of plaintiff's accident, neither the plaintiff, nor his company, Townhouse, was hired to perform any alteration or demolition work on the premises. Although the project itself involved constructing a four-story residential building, plaintiff's employer was not hired by the general contractor, Donadic, or the masonry subcontractor, Coffey, to assist in actual construction or alteration of the building, or inspection of the work. Instead, Townhouse was only retained by the masonry subcontractor (Coffey) to supply building materials (i.e., coping stones and lintels) for the building's exterior, and not to perform any of the actual installation work on the project. Despite plaintiffs' arguments to the contrary, the injured plaintiff's work in taking measurements in order to fabricate building supplies off-site, cannot be said to involve the enumerated categories of work under the statute (see Bosse v City of Hornell, 197 AD2d 893 [1993] [dismissing complaint because plaintiff's employer was hired solely to perform inspection work on a bridge, not construction or repair work, and thus plaintiff was not a person "employed" to carry out work within the scope of Labor Law]). As stated by the Court of Appeals in Prats, "[t]he intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts" (Prats, 100 NY2d at 882 [emphasis supplied]). Thus, the court finds that the plaintiff herein clearly was not a person "employed" to assist in the alteration/construction of the subject building and, therefore, cannot invoke the provisions of Labor Law § 240(1) as a basis for recovery (see Martinez v City of New York, 93 NY2d 322, 326 [1999]; Gibson v Worthington Div. of McGraw Edison Co.,78 NY2d 1108,1109-1110 [1991]).

Plaintiffs' contention that the injured plaintiff's activity at the time of the occurrence was "necessary for the ongoing and completion of the overall project" (Mayer Reply & Opposition Affirmation, at page 7) is unpersuasive. In this regard, the court notes that in Martinez v City of New York (93 NY2d 322, 326 [1999]), the Court of Appeals expressly rejected placing the focus on whether plaintiff's work was an "integral and necessary part" of a larger project as "improperly enlarg[ing] the reach of the statute beyond its clear terms"(id. at 326; see also Adair v Bestek Lighting & Staging Corp., 298 AD2d 153 [2002]; cf. Coombs v Izzo Gen. Contr., Inc., 49 AD3d 468, 469 [2008]).

In Martinez, a case upon which the defendants rely, an inspector was injured while he was checking for asbestos in schools. The purpose of the inspection was to determine whether conditions warranted removal work, and the actual inspection was to end before any asbestos removal would begin. The City of New York employed one contractor to carry out the inspection and another to do the actual asbestos removal. The Court of Appeals held that the "merely investigatory" inspection phase fell outside Labor Law § 240(1) (id. at 326). Noting that the separate, sequential phases involved different employees working for different contractors, the Court held that the plaintiff's inspection at the time of the accident was too remote from any covered work to fall within the ambit of Labor Law § 240(1). The Court therefore held that the plaintiff in Martinez, was not engaged in an activity enumerated in section 240(1) (id. at 326; see also Panek v County of Albany, 99 NY2d 452 [2003]; Campisi v Epos Contracting Corp. et al, 299 AD2d 4 [2002]; Adams v Pfizer, Inc., et al, 293 AD2d 291 [2002]). Here, as in Martinez, the plaintiff did not work for the [*6]company that would actually take part in the alteration/construction work at the premises (in this case, the installation of the masonry materials).

The cases upon which the plaintiffs rely are distinguishable from the facts herein. Melendez v Abanno Bldg. Maintenance, Inc. (17 AD3d 147 [2005]) and McNeill v LaSalle Partners (52 AD3d 407, 409 [2008]) both involved plaintiffs who were injured while performing an inspection of the progress of ongoing construction work at the site. The court in both cases held that the inspection work fell within the ambit of the Labor Law because the inspection and approval of the inspectors were deemed necessary for the continuation of the construction work and overall project. In the present case, however, unlike Melendez and McNeill, the plaintiff was not responsible for inspecting the overall progress of the construction work. Nor is there any showing that the plaintiff's task at the time of the accident was necessary for the continuation of the overall construction project.Plaintiffs' reliance on Lijo v City of New York (31 AD3d 503 [2006]) is also misplaced. In Lijo, the City of New York had hired the plaintiff's employer to reconstruct and repair sewer pipes which constituted construction/alteration work. Here, unlike Lijo, the plaintiff's was allegedly taking measurements in order to fabricate the materials at the time of the accident; he had not engaged in any substantial alteration of the premises.

Randall v Time Warner Cable, Inc. (81 AD3d 1149 [2011]) is also distinguishable because the plaintiff in that case was employed by a contractor who was performing "alteration" work within meaning of scaffold law at the time he was injured.

Therefore, the undisputed facts presented herein do not support the absolute liability imposed by Labor Law § 240(1), and defendants have established that plaintiff is not a member of the protected class necessary for a prima facie cause of action (see Prats, 100 NY2d at 882; Martinez, 93 NY2d at 326; Martinez v City of New York, 73 AD3d 993, 996 [2010]; Spadola v 260/261 Madison Equities Corp., 19 AD3d 321 [2005]). Accordingly, plaintiffs' motion for partial summary judgment under the Labor Law § 240(1) cause of action is denied. Those branches of the motions by Coffey and Donadic, respectively, seeking to dismiss said claim are granted.

Labor Law § 241(6) Claim

With respect to Labor Law § 241(6), as set forth above, the defendants have established that plaintiff was not engaged in an enumerated activity on the construction project and, therefore, the accident did not result from construction, excavation, or demolition work (see Nagel, 99 NY2d at 101; Martinez, 73 AD3d at 996; Enos v Werlatone, Inc., 68 AD3d 713, 715 [2009]). As such, Labor Law § 241(6) is also inapplicable. Accordingly, plaintiffs' Labor Law § 241(6) cause of action is also dismissed as against defendants Coffey and Donadic.

Coffey Not Proper Labor Law Defendant

Additionally, the court notes that the plaintiffs' Labor Law §§ 240(1) an d 241(6) claims should be dismissed as against Coffey because it cannot be deemed an "agent" of the owner or a "general contractor" within the meaning of the Labor Law. It is well settled that "[a] subcontractor will be held strictly liable under Labor Law § 240(1) . . . where it has become a statutory agent of . . . the general contractor by virtue of having been delegated the authority to supervise and control the plaintiff's work or work area" (Stevenson v Alfredo, 277 AD2d 218, 220 [2000] [internal quotation marks and citation omitted] ). In this case, however, the record evidence reveals that Coffey had no authority to direct, supervise, or control plaintiff's task at the site. In this regard, Coffey points out that it hired Townhouse as a material supplier, not a labor subcontractor. In order to fabricate the masonry materials, [*7]the plaintiff was present on the job site to take measurements. There is no testimony that Coffey supervised or directed the plaintiff's work at the job site. In fact, deposition testimony indicates that only the plaintiff or a fellow Townhouse employee were involved in the measurement and subsequent fabrication of the coping stone/materials. Therefore, as Coffey correctly argues, it is not a proper Labor Law defendant, and the plaintiffs' Labor Law §§ 240(1) and 241(6) claims cannot be maintained against Coffey (see Kelarakos v Massapequa Water Dist., 38 AD3d 717, 718 [2007] [subcontractor was not liable under the Labor Law where it neither controlled nor supervised plaintiff's work]; see also Caballero v Benjamin Beechwood, LLC, 67 AD3d 849 [2009] [subcontractor which hired plaintiff's employer was not liable under Section 240(1) where it did not exercise supervisory control over plaintiff's work or have the authority to insist that proper safety practices be followed]).

Labor Law § 200 and Common-Law Negligence Claims

Donadic and Coffey both seek to dismiss plaintiffs' Labor Law § 200 and common-law negligence claims. Section 200 (1) provides, in relevant part, that "[a]ll places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places." The protection afforded by Labor Law § 200 is not limited to workers involved in construction or renovation. It codifies the common-law duty of an owner or employer to provide employees a safe place to work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Cyclone Realty, LLC, 78 AD3d 144, 147 [2010]; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763, 764 [2009]; Chowdhury v Rodriguez, 57 AD3d 121, 127—128 [2008] ).

Cases involving Section 200 generally fall into two categories: those involving the manner in which the work giving rise to plaintiff's injuries was performed and those where workers were injured as a result of dangerous or defective conditions at a work site (see LaGiudice v Sleepy's, Inc., 67 AD3d 969, 972 [2009]; Chowdhury, 57 AD3d at 127—128; Ortega v Puccia, 57 AD3d 54, 61 [2008]). Where a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the property owner or contractor is available under Section 200 only if it is shown that it had the authority to supervise or control the work giving rise to plaintiff's injury (Ortega, 57 AD3d at 61). On the other hand, where a premises condition is at issue, a property owner or contractor is liable under Section 200 when the owner or contractor created the dangerous condition causing an injury or when the owner or contractor failed to remedy a dangerous or defective condition of which it had actual or constructive notice (id.).

Coffey

To impose liability under Labor Law § 200 against Coffey, a subcontractor, it is necessary to show authority and control over plaintiff's work (see Kelarkos v Massapequa Water Dist., 38 AD3d 717, 718 [2007]; Bell v Bengomo Realty, Inc., 36 AD3d 479, 481 [2007]). As noted above, such control was obviously lacking in this case. Therefore, plaintiffs' Labor Law§ 200 cause of action is also dismissed as against Coffey.

With respect to plaintiffs' claim for common-law negligence, Coffey has failed to sustain its burden of demonstrating entitlement to judgment as a matter of law on the ground that it was not negligent in the happening of the accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). It is well settled that "a subcontractor ... may be held liable for negligence where the work it performed created the condition that caused the plaintiff's injury even if it did not possess any authority to supervise and control the plaintiff's work or work area" (Tabickman v Batchelder St. Condominiums By Bay, LLC, 52 AD3d 593, 594 [2008]). [*8]

Here, the evidence in the record raises a triable issue of fact as to whether Coffey created an unreasonable risk of harm by removing the scaffolding from the premises, thereby preventing a means of gaining access from the fourth floor roof level to the elevated set back and mechanical level (see Mennerich v Esposito, 4 AD3d 399, 400 [2004]; see also Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]; Davis v Manitou Constr. Co., 299 AD2d 927, 929 [2002]; Ryder v Mount Loretto Nursing Home, 290 AD2d 892 [2002]). During his deposition, John Coffey testified that, days before the accident occurred, Coffey's workers took down all of the scaffolding on the fourth floor, thereby leaving no scaffolds in place for the plaintiff to use to gain access to the elevated roof levels where he needed to take measurements. According to Coffey, the scaffolding was put back up on the roof levelsafter the accident occurred. Based upon the foregoing, the court finds that a triable issue of fact exists as to whether Coffee created an unreasonable risk of harm that was the proximate cause of the injured plaintiff's injuries (see Poracki v St. Mary's Roman Catholic Church, 82 AD3d 1192 [2011]; Erickson v Cross Ready Mix, Inc., 75 AD3d 519, 523 [2010]; Marano v Commander Elec., Inc., 12 AD3d 571, 572—573 [2004]; Bell v Bengomo Realty, Inc., 36 AD3d 479, 481 [2007]). Thus, Coffey has failed to sustain its burden of demonstrating entitlement to judgment as a matter of law on the ground that it was not negligent in the occurrence of the accident. Accordingly, that branch of Coffey's cross motion seeking to dismiss plaintiffs' common-law negligence cause of action is denied.

Donadic

With respect to Donadic, although it has established that it did not control or supervise the plaintiff's work, the court finds that an issue of fact exists as to whether Donadic was aware of the dangerous condition on the level above the fourth floor terrace. During his deposition, Donadic's site superintendent, Silk, testified that on the morning of the date of the accident, he went up to the fourth floor terrace and observed that there were no ladders or scaffolding in place for a worker to gain access from the fourth floor terrace to the setback of the roof. He further stated that there were no guardrails, or any safety nets on the perimeter of the roof setback level on the date of the accident. According to Silk, the scaffolding that was in place on the fourth floor was removed by Coffey a couple of days before the accident occurred because roofing work needed to be done. Furthermore, it is undisputed that the plaintiff notified Silk that he was coming to the work site to take measurements approximately 30 minutes before the accident occurred. Based upon the foregoing, the court finds that an issue of fact exists as to whether Donadic had actual notice of the dangerous condition (lack of any safety devices on the fourth floor roof level), which was where the plaintiff was required to take measurements for his work, and failed to remedy same. Contrary to Donadic's contention, its submissions fail to eliminate all triable issues of fact as to whether it lacked notice of said dangerous condition (see Bridges v Wyandanch Community Dev. Corp., 66 AD3d 938 [2009]). Under these circumstances, that branch of Donadic's motion seeking to dismiss plaintiffs' Labor Law §200 and common-law negligence claims is denied.

Conclusion

In sum, plaintiffs' motion for partial summary on the Labor Law § 240(1) cause of action is denied. Coffey's cross motion is granted to the extent that plaintiffs' Labor Law §§ 240(1), 241(6) and 200 causes of action are dismissed as against it. That branch of Coffey's cross motion seeking to dismiss plaintiffs' common-law negligence cause of action is denied. That branch of Donadic's motion seeking to dismiss plaintiffs' Labor Law §§ 240(1) and 241(6) causes of action is granted. That branch of Donadic's motion seeking to dismiss plaintiffs' Labor Law § 200 and common-law negligence causes of action is denied. [*9]

The foregoing constitutes the decision and order of the court.

E N T E R

J. S. C Footnotes

Footnote 1: The action against Resnick was discontinued pursuant to a stipulation dated May 13, 2011.