Montero v Myrtle Ave. Bldrs., LLC

[*1] Montero v Myrtle Ave. Bldrs., LLC 2014 NY Slip Op 50094(U) Decided on January 29, 2014 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2014
Supreme Court, Kings County

Mario Montero, Plaintiff,

against

Myrtle Avenue Builders, LLC, MYRTLE OWNER LLC, TOREN CONDOMINIUMS, INC., PRO-SAFETY SERVICES LLC, ALL-SAFE LLC, ALL SAFE HEIGHT CONTRACTING CORP., ALL SAFE HEIGHT CONTRACTORS, BFC CONSTRUCTION CORP., and BFC PARTNERS, L.P., Defendants.



7479/10



Attorney for Plaintiff

Fabiani, Cohen & Hall, LLP

Sue Wagner, Esq.

570 Lexington Avenue, 4th Floor

New York, New York 10022

(212) 644-4420

Attorney for Defendants

Silberstein, Awad & Miklos, P.C.

Daniel P. Miklos, Esq.

600 Old Country Road

Garden City, New York 11530

(516) 832-7777

Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on plaintiff's motion filed on June 25, 2013, under motion sequence number five, for [*2]summary judgment against the defendants Myrtle Avenue Builders, LLC, Myrtle Owner LLC, and All-Safe, LLC pursuant to CPLR 3212 based on violations of Labor Law §§ 240 (1), 241 (6) and 200.

- Notice of Motion

- Attorney Affirmation

- Exhibits A - W

- Affirmation in Opposition [FN1]

- Exhibits A- P

- Reply Affirmation [FN2]

- Exhibits 1-4

Recitation in accordance with CPLR 2219 (a) of the papers considered on the defendants Myrtle Avenue Builders, LLC, Myrtle Avenue Owners, LLC, Toren Condominiums, Inc, All-Safe, LLC, All-Safe Height Contracting Corp., BFC Construction Corp., BFC Partners, L.P. cross-motion filed on September 4, 2013, under motion sequence six, granting summary judgment in favor of the defendants and dismissing the complaint and all cross claims [FN3] in their entirety pursuant to CPLR 3212.[FN4]

- Notice of Cross-Motion

- Affirmation in Support

- Affirmation in Support and In Opposition to Plaintiff's Motion

- Exhibits A- P

- Affirmation in Opposition

- Reply Affirmation

- Exhibits A- C

[*3]BACKGROUND

On March 25, 2010, plaintiff, Mario Montero (hereinafter Montero), commenced the instant action for personal injuries by filing a summons and complaint with the Kings County Clerk's office. Myrtle Avenue Builders, LLC and Myrtle Avenue Owners, LLC and Toren Condominiums, Inc., joined issue by interposing a joint answer dated May 6, 2010. A subsequent action was commenced on August 15, 2011, against All-Safe, LLC, All-Safe Height Contracting Corp., BFC Construction Corp., and BFC Partners, L.P. under Index Number 500653/11. Issue was joined in that action by the joint verified answer of All Safe, LLC, All Safe Height Contracting Corp., All Safe Height Contractors, BFC Construction Corp and BFC Partners, L.P on October 12, 2011. Upon a stipulation by the parties the two actions were consolidated under Index Number 7479/10. The note of issue and certificate of readiness was filed on April 26, 2013.

Montero's complaint, bill of particulars and deposition testimony alleges, among other things, that on August 27, 2008, at around 7:00 a.m., he was working for New York Steel Fabricators on the 225 Flatbush Avenue construction project (hereinafter the construction project) in Brooklyn, New York. At that date and time, he entered the material/personnel hoist that was supposed to bring him up to the thirty-ninth floor where he was assigned to work. Ten to fifteen other people entered the hoist with him, it then stopped on the second floor where more people got on and then stopped on the fifth floor where some people got off. As the operator of the hoist closed the hoist doors the hoist began to fall. He further testified that he believed the hoist free-fell to the second floor and paused, at which point the hoist operator, Larry Harkless and another employee of the general contractor attempted to open the doors. The hoist continued to fall to the basement where it felt as if it jumped. The impact caused the plaintiff to fall back and to his right, falling on another passenger and hit the hoist's wall. Montero claims he sustained serious injuries due to a hazardous condition caused by the negligent acts and omissions of the defendants in violation of Labor Law §§ 240 (1), 241 (6) and 200.

Plaintiff has also alleged that Myrtle Avenue Owners, LLC (hereinafter Myrtle Avenue Owners) was the owner of the premises and it hired Myrtle Avenue Builders, LLC (hereinafter Myrtle Avenue Builders) as the general contractor of the project. All-Safe, LLC (hereinafter All-Safe) is alleged to be a subcontractor hired to erect and maintain the material/personnel hoists. Toren Condominiums, Inc, is alleged to be the owner, general contractor, supervisor, and an entity related to Myrtle Avenue Builders. All-Safe Height Contracting Corp. is alleged to be an entity related to several of the other defendants and the owner, lessee, and/or construction manager, and supervisor. BFC Construction Corp. (hereinafter BFC Construction) and BFC Partners, L.P. (hereinafter BFC Partners) are also alleged to have been the construction managers, general contractors, and supervisors.

LAW AND APPLICATION

It is well establish that summary judgment may be granted only when it is clear [*4]that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72, 790 NE2d 772 [2003]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d at 324).

A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated For Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

Summary Judgment Pursuant to Labor Law § 240 (1)

Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513, 577 NYS2d 219, 583 NE2d 932 [1991]). To recover, the plaintiff must have been engaged in a covered activity—"the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240 [1]; see Panek v County of Albany, 99 NY2d 452, 457, 758 NYS2d 267, 788 NE2d 616 [2003] )—and must have suffered an injury as "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603, 895 NYS2d 279, 922 NE2d 865 [2009]). To impose liability pursuant to Labor Law § 240 (1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries (Corchado v 5030 Broadway Properties, LLC, 103 AD3d 768, 962 NYS2d 185, 2013 WL 616902 [2nd Dept 2013]). "Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240 (1)" ( id.)

There is no dispute that Myrtle Avenue Builders was the owner of the building in which plaintiff was employed on the date of his accident. Also undisputed is that Myrtle Avenue Builders hired Myrtle Avenue Owner as the general contractor on the subject project. Plaintiff's deposition testimony establishes that while he was riding in a temporary material/personnel hoist to his work location it malfunctioned and fell to the basement injuring him. The hoist mechanism proved inadequate to shield the plaintiff from the harm directly flowing from the application of the force of gravity. Therefore, the plaintiff made a prima facie showing of his entitlement to summary judgment on his [*5]claim that Myrtle Avenue Builders and Myrtle Avenue Owners had violated Labor Law § 240 (1) (see Rich v West 31st St. Assoc., LLC, 92 AD3d 433 [1st Dept 2012]).

The burden then shifted to the defendants to raise a triable issue of fact. In opposition, they asserted that the material/personnel hoist was akin to an internal permanent elevator or permanent stairway and not subject to Labor Law § 240 (1). They did not contend that the plaintiff was the sole proximate cause of the accident. However, the material/personnel hoist in the instant matter was a temporary hoist that was utilized to raise workers and materials to elevated work sites and, therefore, it was clearly covered under Labor Law § 240 (1) (Id.). Accordingly, defendants Myrtle Avenue Builders and Myrtle Avenue Owners opposition papers did not raise a triable issue of fact.

Labor Law § 240 (1) applies to owners, general contractors and their agents. "To hold a party liable, as an agent of general contractor, for violations of the scaffold law and statute requiring owners and contractors to provide reasonable and adequate protection and safety for workers engaged in construction, demolition, and excavation work, there must be a showing that it had the authority to supervise and control the work; the determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right" (Bakhtadze v Riddle,56 AD3d 589 [2nd Dept 2008]). The plaintiff has failed to make a prima facie showing that All-Safe was an agent of either Myrtle Avenue Builders or Myrtle Avenue Owners. Consequently, the court need not consider the sufficiency of All-Safe's opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]).

Therefore, the plaintiff is granted summary judgement on the Labor Law § 240 (1) claims only as against Myrtle Avenue Owners and Myrtle Avenue Builders and is denied summary judgment as against All-Safe.

Defendants cross move for summary judgment under Labor Law § 240 (1) however, as determined above, there is no genuine issue of material fact as to liability of Myrtle Avenue Owners and Myrtle Avenue Builders under Labor Law § 240 (1). As previously discussed for the defendant All-Safe, there is a triable issue of fact as to whether they are an agent of Myrtle Avenue Owners or Myrtle Avenue Builders and therefore summary jdyugment must be denied as to All-Safe under Labor Law § 240 (1) is denied.

Summary Judgment Pursuant to Labor Law § 241 (6)

Labor Law § 241 (6) generally requires "owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work," "provide reasonable and adequate protection and safety" for workers and to comply with specific safety rules promulgated by the Commissioner of the Department of Labor. The duty to comply with the Commissioner's safety rules, which are set out in the Industrial Code (12 NYCRR), is nondelegable. "To support a claim under Labor Law § 241 (6). . . the particular Industrial Code provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply [*6]declare general safety standards or reiterate common-law principles" (Misicki v Caradonna, 12 NY3d 511 [2009]). A breach of a duty imposed by a rule in the Code is merely some evidence for the fact finder to consider on the question of a defendant's negligence (Misicki v Caradonna, 12 NY3d 511 [2009][internal citations omitted]).

Labor Law § 241 (6) is, in a sense, a hybrid, since it reiterates the general common-law standard of care and then contemplates the establishment of specific detailed rules through the Labor Commissioner's rule-making authority (see Ross v Curtis-Palmer Hydro-Elec. Co. 81 NY2d 494 [1993]).

In the instant matter the plaintiff seeks summary judgment based on a violation of 12 NYCRR 23-7.2(m). The regulation entitled "temporary personnel or workmen's hoists" provides for inspection and testing of elevators,

Prior to use, initially and after any extension, every temporary personnel hoist shall be tested. Such testing shall be performed only by a designated person and shall consist of the following: (1) A running test with rated load and at rated speed with stops at each landing. (2) A test of the normal and final terminal stopping devices with no load carried in the upward direction and with full load carried in the downward direction. (3) A test of the car safety device at rated load and at rated speed. (4) A test of the car speed governor. (5) A complete written report of every such test shall be made and signed by the designated person making such tests. Such reports shall include the dates of the tests, the test loads and speeds involved and the results of such test. Such reports shall be kept in a log book on the job site available for examination by the commissioner.

The language of NYCRR 23-7.2(m) "mandates a distinct standard of conduct, rather than a general reiteration of common-law principles, and is precisely the type of concrete specification' that is required to find specificity" (see Misicki v Caradonna, 12 NY3d 511 [2009]; Ross v Curtis-Palmer Hydro-Elec. Co. 81 NY2d 494 [1993]; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351, 670 NYS2d 816, 693 NE2d 1068 [1998]). Further, plaintiff submits that NYCRR 23-7.2 (m) was not complied with as the elevator inspection test report created by All-Safe is devoid of any notation evidencing compliance with NYCRR 23-7.2 (m). Plaintiff contends that the failure to properly inspect, test, and document such inspections and testing of the material/personnel hoist was allegedly the proximate cause of the accident. However, the cause of the apparent malfunction of the hoist is unknown. Without knowing the cause of the malfunction, the plaintiff cannot directly or circumstantially connect the failure to keep records of the inspection of the hoist with the malfunction of the hoist. At best, plaintiff may argue that an inspection might have revealed the existence of a dangerous condition or defect which may have caused or contributed to the alleged malfunction. However, the argument relies on pure speculation and cannot serve as evidence of proximate causation, notwithstanding, that it is buttressed by an expert's affidavit. It is noted that the experts affidavit proffered by the plaintiff conflicted with the defendants' expert on whether non-compliance with NYCRR [*7]23-7.2(m) was the proximate cause of the accident. Therefore, although the plaintiff has established the specificity, the applicability and the violation of NYCRR 23-7.2 (m), he did not make a prima facie showing that the violation was a proximate cause of his accident.

In light of the plaintiff's failure to meet his burden, the court need not consider the sufficiency of the defendants' opposition papers (Winegrad v New York Univ. Med. Ctr.

64 NY2d 851 [1985]). Accordingly, that branch of plaintiff's motion seeking summary judgment based on the specified violation of Labor Law § 241 (6) is denied.

The defendants have cross moved for summary judgment dismissing plaintiff's complaint premised on alleged violations of Labor Law § 241 (6). In particular, with the exception of Industrial Code Rule § 23-7.2 (m), the defendants assert that the Industrial Code sections alleged in the plaintiffs bills of particulars either do not contain specific and concrete standards to create a duty or are inapplicable to the instant matter. Plaintiff has also cited violations of ANSI A17.1 and ANSI A17.2 in connection with his Labor Law § 241 (6) claim. However, purported violations of ANSI standards will not support a Labor Law § 241 (6) claim. The statue makes reference only to the provisions of the Industrial Code (see also Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 349 (1998); Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 [1993]).

The Court has reviewed each of the specific Industrial Code sections alleged in plaintiff's bill of particulars and completely agrees with the contention of the defendants. Therefore, the burden shifted to the plaintiff to raise a genuine issue of material fact. With the exception of the alleged violation of Industrial Code Rule § 23-7.2 (m), the plaintiff did not oppose this branch of the defendants' motion and, therefore, did not raise a material issue of fact. Accordingly, defendants' motion seeking summary judgment in its favor on liability and dismissal of plaintiff's claims premised on a violation of Labor Law § 241 (6) is granted on all claims except for the alleged violation of Industrial Code Rule § 23-7.2 (m).

Summary Judgement Pursuant to Labor Law § 200

Labor Law § 200 is merely a codification of the common law duty placed upon owners and contractors to provide employees with a safe place to work (see Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2nd Dept 2000]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed." (Ortega v Puccia, 57 AD3d 54, 61 [2nd Dept 2008]). "These two categories should be viewed in the disjunctive" (Id.).

"Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident." (Id.; see also Reyes v Arco Wentworth Management Corp., 83 AD3d 47, 51 [2nd Dept 2011]). [*8]

"A contractor on a construction site will be liable for an injury caused by a dangerous condition on the site where it created the condition, or where, with sufficient control over the conditions on the site, the contractor failed to remedy the dangerous condition, or to prevent the injured worker's exposure to it, within a reasonable time after the contractor had actual or constructive notice of the condition" (see Nankervis v Long Is. Univ., 78 AD3d 799 [2nd Dept 2010]).

"To establish constructive notice, the plaintiff must show that the dangerous condition was visible and apparent and had existed for a sufficient time before the accident to permit the defendants' employees to discover and remedy it. The general awareness that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused the plaintiff's injury (Welles v New York City Housing Authority, 284 AD2d 327 [2nd Dept 2001]).

"[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or ... [a] contractor[ ] cannot be had ... unless it is shown that the party to be charged had the authority to supervise or control the performance of the work." (see Ortega v Puccia, 57 AD3d 54, 61 [2nd Dept 2010]). The determinative factor on the issue of control is not whether a [defendant] furnishes equipment but whether he has control of the work being done and the authority to insist that proper safety practices be followed" (Eldoh v Astoria Generating Co., L.P., 81 AD3d 871, 875 [2nd Dept 2011] [quoting Everitt v Nozkowski, 285 AD2d 442, 443—444 [2nd Dept 2001]).

When an accident is alleged to involve defects in both the premises and methods and materials used at the work site, the property owner or contractor is "obligated to address the proof applicable to both liability standards" (see Reyes v Arco Wentworth Management Corp., 83 AD3d at 52 [2nd Dept 2011]).

Plaintiff's motion pursuant to Labor Law 200:

Here, as framed in the complaint and verified bill of particulars, Montero alleges that at the time of the accident, the work site was not safe because, the elevator/hoist was improperly maintained. Thus, his claim arises from a dangerous condition rather than defects in the methods or materials used at the work site.

In order to establish that there was a dangerous or defective condition on the premises, the plaintiff submits the affidavit of John F. Mundt, Sr.[FN5] (hereinafter Mundt) who opines that "the malfunction of the elevator leveling system could only have [*9]occurred due to improper maintenance on the part of the defendants which is a proximate cause of Mr. Montero's injuries" and that to a reasonable degree of elevator safety certainty, the mechanic improperly repaired, serviced and adjusted the brakes on August 25, 2008, because the brakes failed two days later. However, as discussed above, the cause of the malfunction is unknown. The plaintiff does not submit, and Mundt does not rule out human error on the part of the operator and the proximate causation argument is based on speculation. Therefore, as the plaintiff has failed to establish that there was even a dangerous condition on the premises the Court need not analyze the notice aspect of Labor Law 200. Furthermore, the Court need not address the sufficiency of defendants' opposition papers (Winegrad, 64 NY2d 851 [1985]). Accordingly, summary judgment is denied as to the Labor Law § 200 claims.

Defendants' motion for summary Judgment Under Labor Law 200

While all of the defendants cross move for summary judgment under Labor Law 200, the defendants Myrtle Avenue Owners, Myrtle Avenue Builders and All Safe will be analyzed separately from Toren Condominiums, All-Safe Hight Contracting, BFC Construction Corp and BFC Partners, as there are distinct theories applicable to the two groups. In order for a defendant to prevail on a summary judgment motion pursuant to Labor Law § 200 it must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition" (Navarro v. City of New York, 75 AD3d 590 [2nd Dept 2010][internal citations omitted]). This the defendants Myrtle Avenue Owners, Myrtle Avenue Builders and All Safe have not done, similar to the plaintiff, the defendants have failed to establish that there was no dangerous or defective condition. The expert opinion offered fails to eliminate mechanical failure or human error. Therefore, issues of fact exist as to the causation of the accident, hence, defendants are not entitled to summary judgment under Labor Law § 200.

Plaintiff's Motion for Summary Judgment Under the Doctrine of Res Ipsa Loquitor as against All-Safe Only

The plaintiff also asserts that summary judgement under Labor Law 200 may be established via the doctrine of res ipsa loquitor. To invoke that doctrine, a plaintiff is required to show: (1) that the event was "of a kind which ordinarily does not occur in the absence of someone's negligence"; (2) that it was "caused by an agency or instrumentality within the exclusive control of the defendant"; and (3) that it was not "due to any voluntary action or contribution on the part of the plaintiff" (Montalvo v Mumpus Restorations, Inc., 76 AD3d 516, 905 NYS2d 659 [2nd Dept 2010][internal citations omitted]). A plaintiff may only win summary judgment in a case when no facts are left for determination (Morejon v Rais Const. Co., 7 NY3d 203 [2006]).

Plaintiff has established the first prong required for res ipsa loquitor. Is it clear through the submissions of plaintiff that the personnel hoist slipping between floors was an event that ordinarily does not occur in the absence of someone's negligence. Plaintiff [*10]established the first prong through Mundt's expert report and the testimony of Capoccia and O'Brian, all of which agreed personnel hoists do not ordinarily fall in such a manner. However, the second prong, that the accident was "caused by an agency or instrumentality within the exclusive control of the defendant" has not been established. While All-Safe is alleged to have been the entity directed to maintain the hoists, it was Harkless, an employee of the general contractor, who was operating the hoist at the time of the accident. There has been no evidence submitted that excludes Harkless as a cause of the accident. Therefore, the plaintiff fails to meet his prima facie burden under the doctrine of res ipsa loquitor.

Defendants cross motion for summary judgment in favor of Toren Condominiums, Inc., All-Safe Height Contracting Corp., BFC Constructing Corp., and BFC Partners, L.P

Defendants cross move for summary judgment pursuant to Labor Law 200 under the theory that each entity could not have created the condition, have control over the conditions on the site, nor have had actual or constructive notice of the condition as the entities were not present at all on the worksite and in the case of Toren Condominums, had not even been formed at the time of the accident (see Nankervis v Long Is. Univ., 78 AD3d 799 [2nd Dept 2010]).

In support of the defendants' motion seeking summary judgment in favor of Toren Condominiums, Inc., All-Safe Height Contracting Corp., BFC Construction, and BFC Partners the defendants submit affidavits of Martin O'Donovan (hereinafter O'Donovan) and Joseph Ferrarra (hereinafter Ferrarra).

O'Donovan attests that he was a principal of All-Safe Height Contracting Corp., that the entity was dissolved on July 9, 2008, prior to the accident, and that it had no connection whatsoever with the project, but was in the business of installing and removing scaffolds. The affidavit of O'Donovan establishes that he has personal knowledge of All-Safe Height Contracting Corp., and that the entity was not involved in construction on the premises. Therefore, the burden shifts to plaintiff to raise an issue of fact. The plaintiff has failed to raise a genuine issue of material fact in his papers, as he did not address this portion of defendant's motion. Accordingly, summary judgment is granted as to All-Safe Height Contracting Corp.

Ferrara attests that he is a member of Myrtle Avenue Builders, Myrtle Avenue Owners, a limited partner in BFC Partners and a member of BFC Construction. He further attests that BFC Construction and BFC Partners did not have any connection whatsoever with the subject construction project.

Ferrara does not state any relationship to Toren Condominiums, however, he avers that on August 27, 2008, the date of plaintiff's accident, Toren Condominiums Inc. was not yet formed. In essence, he contends that because Toren Condominium did not yet exist at the time of the subject accident it had no duty owing to the plaintiff. Ferrara does [*11]not set forth the basis for his knowledge or admit any documents supporting this claim. Whether or not the statement is accurate, the burden is on the movant to establish the facts supporting its motion by tendering evidence in admissible form. Ferrara's affidavit is insufficient to meet this burden. Accordingly it is unnecessary to review the plaintiff's opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]).

Although Ferrarra asserts that he is a member of BFC Construction Corp, that title is not one recognized for a corporation. Therefore, his assertion is insufficient to establish personal knowledge as to BFC Construction Corp's involvement in the construction project.

However, as to BFC Partners, Ferrara's affidavit is sufficient to meet the prima facie burden that those entities were not involved in the project. In opposition, plaintiff failed to raise a triable issue of fact, as the opposition papers did not address this portion of defendants' motion. Accordingly, summary judgment is granted as to defendant BFC Partners.

CONCLUSION

Plaintiff's motion pursuant to CPLR 3212 under Labor Law § 240 (1) is granted as to Myrtle Avenue Owners and Myrtle Avenue Builders, only and is denied as to All-Safe Contracting Corp.

Plaintiff's motion pursuant to CPLR 3212 under Labor Law § 241 (6) is denied.

Plaintiff's motion pursuant to CPLR 3212 for summary judgment on Labor Law § 200 is denied.

Defendants' motion pursuant to CPLR 3212 under Labor Law § 240 (1) is denied.

Defendants' motion pursuant to CPLR 3212 under Labor Law § 241 (6) is granted with the exception as to claims premised on violations of Industrial Code 23-7.2(m).

Defendants' motion pursuant to CPLR 3212 under Labor Law § 200 is granted as to All-Safe Height Contracting Corp and BFC Partners and is denied as to Toren Condominium, Inc, and BFC Contracting Corp.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C. Footnotes

Footnote 1:The affirmation in opposition also serves as the defendants' affirmation in support of the cross motion.

Footnote 2:The affirmation in reply also serves as the plaintiff's affirmation in opposition to the defendants' cross motion.

Footnote 3: There are no cross claims asserted in the defendants' answers nor any discussion of same in the moving papers, therefore, this requested relief is disregarded.

Footnote 4:Plaintiff objected to defendants' cross motion as untimely, however, upon oral argument the cross motion was deemed timely, as plaintiff's timely motion for summary judgment was made on nearly identical grounds (Grande v Peteroy, 39 AD3d 590, 591—592 [2nd Dept 2007]).

Footnote 5: Defendants contend that Mundt's affidavit is not in admissible form as it is notarized out of state without an accompanying certificate of conformity. However, "the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect" (Fredette v Town of Southampton, 95 AD3d 940[2nd Dept 2012]) and therefore Mundt's affidavit will be considered on the motion.