McCrary v Cedar Manor Realty, LLC

[*1] McCrary v Cedar Manor Realty, LLC 2015 NY Slip Op 50054(U) Decided on January 23, 2015 Supreme Court, Westchester County Connolly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2015
Supreme Court, Westchester County

Christopher McCrary and MEHAN McCRARY [FN1], Plaintiffs,

against

Cedar Manor Realty, LLC, and CEDAR MANOR, INC., Defendants. CEDAR MANOR REALTY, LLC, and CEDAR MANOR, INC., Third-Party Plaintiffs, SOUND EQUIPMENT CORPORATION, FIRE SYSTEMS, INC. and UNITED TECHNOLOGIES CORP., Third-Party Defendants.



6017/2009



Sullivan Papain Block McGrath & Cannavo. P.C.

Attorneys for plaintiffs

1140 Franklin Avenue, Suite 200

Garden City, NY 11530

By Fax: (516) 742-7350

Pilkington & Leggett, P.C.

Attorneys for defendants/third-party plaintiffs

222 Bloomingdale Road

White Plains, NY 10605By Fax: (914) 946-6719

Burden, Gulisano & Hickey, LLC

Attorneys for third-party defendants

605 Brisbane Building

403 Main Street

Buffalo, NY 14203

By Fax: (716) 849-6806
Francesca E. Connolly, J.

The following documents were read in connection with the third-party defendants' motion for summary judgment and the defendants' motion for summary judgment:

Third-party defendants' notice of motion, attorney affirmation in support,

exhibits, affidavit of John H. Buckner, M.D., affidavit of

Saran S. Rosner, M.D., affidavit of Stephen D. Sarfaty, Psy.D.,

affidavit of Lloyd R. Saberski, M.D., affidavit of Laura Bruhn,

AFSS Paralegal, UTC Fire & Security, memorandum of law1-62

Defendants/third-party plaintiffs' affirmation in opposition, exhibit63

Defendants/third-party plaintiffs' notice of motion, affirmation in support,

exhibits64-87

Plaintiff's affirmation in opposition to defendants/third-party plaintiffs'

motion and in partial opposition to third-party defendants' motion

for summary judgment, exhibits88-92

Third-party defendants' reply affirmation in support of motion for summary

judgment and in response to defendants/third-party plaintiffs'

opposition, exhibits93-95

Third-party defendants' reply affirmation in support of motion for summary

judgment and in response to plaintiffs' opposition96

Defendants/third-party plaintiffs' reply affirmation97

This action was commenced by the plaintiff Christopher McCrary (hereinafter referred to as McCrary or the plaintiff), to recover damages for personal injuries he allegedly sustained on January [*2]16, 2007,[FN2] when he fell from a ladder while pulling wire through conduit above a drop ceiling as part of the installation of a nurse-call system during the course of his employment as an installation technician with third-party defendants Sound Equipment Corporation (hereinafter referred to as SEC), Fire Systems, Inc. (hereinafter referred to as Fire Systems), and/or United Technologies Corp. (hereinafter referred to as UTC), at premises owned and operated by the defendants/third-party plaintiffs Cedar Manor Realty, LLC, and Cedar Manor, Inc. (hereinafter referred to collectively as Cedar Manor), known as Cedar Manor Nursing & Rehabilitation Center, located at 32 Cedar Lane, Ossining, New York. The plaintiff alleges causes of action based upon common law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6).

The third-party defendants move for summary judgment dismissing the third-party complaint on the grounds that it is barred by Workers' Compensation Law §11, in that the plaintiff has not sustained a "grave injury" as defined by statute, that the third-party defendants were not negligent and, therefore, the third-party action is without merit, and that the plaintiff's causes of action predicated upon the Labor Law are without merit as a matter of law. The defendants/third-party plaintiffs oppose the motion to the extent it seeks a dismissal of the third-party complaint and separately move for summary judgment dismissing the complaint. The plaintiff opposes both motions for summary judgment to the extent they seek a dismissal of the complaint.

For the reasons set forth below, the third-party defendants' motion pursuant to CPLR 3212 for summary judgment dismissing the third-party complaint is granted, the branch of the defendants' motion which is for summary judgment dismissing the Labor Law § 241 (6) cause of action is granted, and the defendants' motion is otherwise denied based upon triable issues of fact.

FACTUAL

AND PROCEDURAL BACKGROUND

The plaintiff's deposition was held over four days on October 7, 2011, October 28, 2011, December 6, 2011, and June 18, 2013. According to the plaintiff's testimony, he was injured on January 16, 2007, while installing a new nurse-call system for SEC at Cedar Manor. As part of the installation, the plaintiff was required to use a ladder to reach wires in the ceiling. The plaintiff s work area was obstructed by a patient sitting in a wheelchair. The plaintiff asked a Cedar Manor charge nurse to move the patient to enable the plaintiff to place his ladder in a proper position to reach the wires. The employee refused to move the patient, which required the plaintiff to place the ladder sideways in an awkward position, making it difficult for him to do his job. The plaintiff also asked his co-worker to hold the ladder or to help him, but his co-workerrefused.

At the time of the accident, the plaintiff claims he was standing on the second step from the top of an eight to ten feet high unsecured A-frame ladder and was exerting his full weight to pull a [*3]wire that was stuck in a conduit. When the wire suddenly released, the ladder wobbled and tipped, causing the plaintiff to reach out with his left hand to grab the top of a door jamb to stabilize himself and avoid falling down upon the patient beneath him. Ultimately, the plaintiff fell from the ladder, with his left shoulder, jaw, and neck hitting the top of the door jamb before he landed on his feet.

According to the bills of particulars, as a result of the accident, the plaintiff alleges that he sustained various injuries to his cervical spine and left upper extremity, which resulted in complex regional pain syndrome and reflex sympathetic dystrophy of the left upper extremity. While the plaintiff's most severe and disabling alleged injuries involve his left upper extremity, he claims that the sequelae from the injury and complications from the treatment caused the complex regional pain syndrome and reflex sympathetic dystrophy to later spread to his lower extremities and right upper extremity and torso, and that he is now "wheelchair bound."

Although the plaintiff complains of pain and limitations in both his left and right sides, no party contends that the injuries to his right side qualify as a "grave injury" as defined by Workers' Compensation Law § 11. For purposes of this motion, the injuries at issue involve the plaintiff's left upper extremity and his lower extremities, primarily on his left side.

At his 2011 depositions, the plaintiff denied having any difficulties walking, but stated that he used a cane for stability and to assist him to stand up and sit down. The plaintiff was able to open and close his left hand, minimally. He testified that he was able to use his left hand to smoke a cigarette, lift a 20-ounce bottle of soda and drink from it, use a controller to play video games, wash himself in the shower, dress himself, hold objects that weighed four to five pounds, and type on a keyboard. He was able to drive his motor vehicle, and use his left hand to hold the steering wheel and engage the turn signal. He was able to hold objects in his left hand, minimally, including his cane, and to use his left hand to move the cane forward. He was also able to lift his left arm to a level at the top of his head, with his elbow extended to a level slightly above his shoulder.

According to the medical records, for pain management, the plaintiff had a cervical spinal cord stimulator implanted in 2008, which developed complications requiring multiple revisions and re-implantation, and the development of a MRSA infection at the incision sites. Ultimately, the spinal cord stimulator was removed in April 2012, which caused him to suffer intense pain in his lower back, left hip and lower extremities when bearing full weight. He began to use a wheelchair sometime between February and April 2012.

Although the plaintiff was using a wheelchair at the time of his deposition on June 18, 2013, he testified that he was able to walk 15 to 20 steps on a flat, level surface with the use of a cane and while holding on to fixed objects for stabilization. To move the wheelchair, the plaintiff used his right arm to turn the wheel, with assistance from his left arm, as tolerated, while using his feet to navigate. The plaintiff considered himself to be wheelchair dependent. He claimed that the condition of his left arm and hand had deteriorated, but he was still able to use his index, middle and ring fingers of his left hand to manipulate a controller to play video games, to smoke a cigarette, and to type on a keyboard. He claimed that he could no longer use his left hand to carry anything or walk [*4]his dog. However, he admitted that he was able to use his left hand to carry a cane for stabilization when he walked. He also testified that in June 2012, he drove his vehicle back and forth from New York to Texas. However, he claims his vehicle was equipped with a steering wheel knob to enable him to turn the wheel with one hand, wide angled rear view mirrors, and a heating pad for the seat.

As of June 20, 2013, the plaintiff's pain doctor, Dr. Grigory Kizelshteyn, reported that the plaintiff was walking with a cane in his office and that his ability to ambulate was improving in that he was able to walk 10 to 20 steps with the assistance of a cane. As of September 11, 2013, the plaintiff reported to Dr. Kizelshteyn that he was using his wheelchair the majority of the time, but that he was able to walk with the assistance of a cane. Dr. Kizelshteyn's impression was reflex sympathetic dystrophy and pain in the left upper extremity, lower back leg pain, and lumbar radiculopathy.

On September 17, 2013 (six days after his last visit with Dr. Kizelshteyn), at the request of the plaintiff's attorneys, the plaintiff was examined by neurologist Dr. Lawrence Shields who prepared a report of his findings, dated November 22, 2013. The report indicates that the plaintiff undressed himself for the examination, and would not allow any assistance, claiming marked sensitivity to any touch (see Exhibit BBB of third-party defendants' motion, page 18). The plaintiff reported to Dr. Shields that "[w]hen he walks, . . . [his] left foot feels as though he is stepping on glass and he can only walk ten feet without the left leg and foot pain becoming unbearable" (id. at page 2). The plaintiff also reported that he has "a cane which he carries in his right hand," "usually needs help with transfers," and spends his time during the day "watching television, playing games on his X-box, reading for pleasure and napping" (id. at page 3). He also reported that "[b]ecause of left upper extremity clumsiness and weakness, all skillful or forceful tasks, including writing (previously a left handed exercise) are now performed with his right hand" (id. at page 2). The plaintiff stated that "he feels his left upper extremity is nearly functionless" (id.).

Upon examination of the left upper extremity, Dr. Shields found that "[p]assive and active movement of all ten fingers produces painful paresthesiae," "[s]houlder shrug is impeded by pain and external rotation of the left upper extremity is weak," "[v]oluntary abduction, adduction, flexion and extension of the left fingers are performed weakly," the plaintiff "weakly pronates and supinates the left forearm," and "[p]roximal left arm power testing is limited by antalgia, but there is movement in all cardinal planes" (id. at page 19).

Upon examination of his left lower extremity, Dr. Shields reports that "[o]n advancing his feet, his left foot is placed gingerly, as though on a hot surface. He does not place the left foot flat on the ground. Walking backward is similarly antalgic, precarious and clumsy. Heel and toe walking, antalgically performed, are clumsy and impaired" (id.).

After examining the plaintiff and reviewing the medical records, Dr. Shields concluded that the plaintiff was "permanently severely disabled" as a result of the accident, and required, among other things, a daily 24-hour home health aide, "a residence fitted for an incontinent, functionally immobile individual and supportive appurtenances . . . including, but not limited to: hospital bed, [*5]Hoyer lift, motorized wheelchair, incontinence garment, shower chair and a wheelchair accessible family vehicle" (id. at page 22).

The defendants/third-party plaintiffs and third-party defendants sharply dispute the plaintiff's version of events and deny that he ever fell from a ladder, citing to deposition testimony, accident reports, and medical records for support. They point out that the accident was unwitnessed, the plaintiff never reported to anyone from Cedar Manor or SEC, Fire Systems, or UTC that he fell from a ladder, and for two years following the alleged accident, the plaintiff's version of events reported in the various accident reports and medical records makes no reference to a fall from a ladder.

In addition, the third-party defendants contend that the plaintiff sustained no injury from this alleged accident, and that his injuries, if any, were caused by a subsequent motor vehicle accident that occurred 20 days later, on February 5, 2007, in which his car was totaled, his air bags deployed, and he was taken from the scene by ambulance to the hospital where he reported injuries to his left shoulder and side. Through their own medical experts, the third-party defendants also sharply dispute that the plaintiff suffers from any physical disability and contend that the plaintiff suffers from a behavioral and personality disorder, "with frank malingering," and psychiatric disability that pre-dates the alleged accident and, further, that there is no objective support or credible physiologic basis for his alleged disability and complaints. They contend that any complaints the plaintiff may have are not related to the alleged accident of January 16, 2007, but are due to his numerous other accidents that occurred before and after this date and pre-existing conditions.

The third-party defendants move for summary judgment dismissing the third-party complaint on the following grounds: the third-party action, which alleges causes of action for common law contribution and indemnification, is barred by Workers' Compensation Law §11 as against SEC, in that the plaintiff has not sustained a "grave injury" as defined by statute; that the third-party defendants were not negligent and, therefore, the third-party causes of action for common law contribution and indemnification cannot be sustained; the plaintiff's claims against the defendants predicated upon the Labor Law are without merit as a matter of law and, therefore, the complaint and third-party complaint should be dismissed; and the claims against Fire Systems and UTC should be dismissed, as they never employed the plaintiff.

Cedar Manor opposes the third-party defendants' motion for summary judgment to the extent it seeks a dismissal of the third-party complaint on the basis that the plaintiff did not sustain a grave injury as defined by Workers' Compensation Law §11, and separately moves for summary judgment dismissing the plaintiff's complaint on the following grounds: the plaintiff's injury was not gravity related, nor was the activity in which the plaintiff was engaged protected by Labor Law § 240 (1); the plaintiff failed to establish a New York State Industrial Code violation to support the Labor Law § 241 (6) cause of action; and Cedar Manor had no notice of a defective or dangerous condition that caused the accident, nor did they exercise supervision or control over the work being performed by the plaintiff at the time of the accident to sustain a violation of Labor Law § 200 or a common law negligence cause of action.

The plaintiff opposes Cedar Manor's motion for summary judgment and partially opposes the third-party defendants' motion for summary judgment, contending the following: the work in which the plaintiff was engaged constituted altering, and therefore, is protected by Labor Law § 240 (1); Cedar Manor violated Labor Law § 240 (1) by failing to provide the plaintiff with a secured ladder to do his work; Cedar Manor failed to provide the plaintiff with a ladder with firm footings in violation of New York State Industrial Code § 23-1.21 (b) (4) (ii), which supports the Labor Law § 241 (6) cause of action; and Cedar Manor was negligent and violated Labor Law § 200 by failing to move a nursing home resident from the vicinity in which the plaintiff was working, thereby preventing the plaintiff from properly placing his ladder and increasing his risk of danger from falling from an unsecured ladder.

In reply, the third-party defendants contend, among other things, that Cedar Manor's opposition failed to raise a triable issue of fact as to the existence of a qualifying grave injury under Workers' Compensation Law § 11 and, therefore, the third-party complaint should be dismissed.

In reply to the plaintiff's opposition, Cedar Manor contends that the plaintiff failed to submit credible evidence to defeat Cedar Manor's prima facie showing of entitlement to judgment as a matter of law dismissing the complaint. Also, Cedar Manor contends that it is prejudiced by the plaintiff alleging a violation of New York State Industrial Code § 23-1.21 (b) (4) (ii) for the first time in opposition to the motion for summary judgment and that, in any event, this Industrial Code provision is inapplicable to the facts of this case and is insufficient to support the Labor Law § 241 (6) cause of action.

DISCUSSION/ANALYSIS

I. The third-party defendants' motion for summary judgment dismissing the third-party complaint as against Fire Systems and UTC is granted on the ground that they owed no duty to the plaintiff.

The third-party defendants have met their prima facie burden for summary judgment dismissing the third-party action as against Fire Systems and UTC by submitting proof establishing that neither of these entities employed the plaintiff at the time of the alleged accident, nor did they supervise, direct, or control his work, or create or have notice of any dangerous condition that caused the accident. The undisputed proof establishes that SEC employed the plaintiff and was the contractor solely responsible for the installation of the nurse-call system at Cedar Manor. In opposition, neither Cedar Manor nor the plaintiff oppose this branch of the third-party defendants' motion.

Since Fire Systems and UTC owed no duty to the plaintiff, the third-party action insofar as asserted against them is dismissed (see Darby v Cie. Natl. Air France, 96 NY2d 343, 347 [2001] ["A finding of negligence may be based only upon the breach of a duty, [and] [i]f, in connection with the acts complained of, the defendant owes no duty to the plaintiff, the action must fail"]).

II. The third-party defendants' motion for summary judgment dismissing the third-party complaint as against SEC is granted on the ground that the plaintiff did not sustain a "grave injury" as defined by Workers' Compensation Law § 11.

Workers' Compensation Law § 11 "permits an alleged tortfeasor in an action arising from a workplace accident to assert a claim against the plaintiff's employer sounding in common-law indemnity or contribution only where the plaintiff has suffered a grave injury" (Benedetto v Carrera Realty Corp., 32 AD3d 874, 876 [2d Dept 2006]). "By statute, grave injury' is both narrowly and completely described' . . . as death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia, quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability'" (Spiegler v Gerken Bldg. Corp., 35 AD3d 715, 716-717 [2d Dept 2006], quoting Rubeis v Aqua Club, 3 NY3d 408, 415-416 [2004] [emphasis added]; Workers' Compensation Law § 11). "The term grave injury' has been defined as a statutorily defined threshold for catastrophic injuries' . . . and includes only those injuries which are listed in the statute and determined to be permanent" (Ibarra v Equip. Control, Inc., 268 AD2d 13, 17-18 [2d Dept 2000], quoting Kerr v. Black Clawson Co., 241 AD2d 686 [3d Dept 1997]; Minkowitz, Supp. Practice Commentaries, McKinney's Cons. Laws of NY, Book 64, Workers' Compensation Law § 11, 2000 Pocket Part, at 46-47]). "The list is exhaustive, not illustrative'" (Ibarra v Equip. Control, Inc., 268 AD2d at 18, citing Governor's Mem. approving L. 1996, ch. 635, 1996 McKinney's Session Laws of NY, at 1913).

If a plaintiff has "some use," "minimal use," or a "substantial loss of use," these limitations are insufficient to qualify for a "grave injury" under the category of "permanent and total loss of use . . . of an arm, leg, hand or foot" (see Kraker v Consol. Edison Co., Inc., 23 AD3d 531, 532-533 [2d Dept 2005] [A determination that "the injured plaintiff could not effectively use' his right hand" does not satisfy the statutory definition of a "grave injury"]; Aguirre v Castle Am. Const., LLC, 307 AD2d 901, 901 [2d Dept 2003] [A plaintiff who has "some movement in his arm" does not qualify under the category of "a permanent and total loss of use of that arm as required under Workers' Compensation Law § 11"]; Trimble v Hawker Dayton Corp., 307 AD2d 452, 453 [3d Dept 2003] [A medical opinion that the "plaintiff has a total loss of use of the right hand as it is commonly understood,'. . . [which] does not dispute the findings in the medical records that plaintiff has some use of his hand" is considered "conclusory" and insufficient to establish a "grave injury"]). "Words in a statute are to be given their plain meaning without resort to forced or unnatural interpretations" (Castro v United Container Mach. Group, Inc., 96 NY2d 398, 401 [2001], citing McKinney's Cons. Laws of NY, Book 1, Statutes § 232; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). "Given the plain meaning of the words used in Workers' Compensation Law § 11, [*6]. . . some, albeit minimal, use of [an arm, leg, hand, or foot] is [not] sufficiently equivalent to a total loss of use to qualify as a grave injury" (Trimble v Hawker Dayton Corp., 307 AD2d at 453). The "proponent of a motion for summary judgment seeking to dismiss a third-party action for want of a grave injury is . . . obligated to prove, prima facie that the plaintiff did not sustain a grave injury" (Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487, 488 [2d Dept 2001] ["[A] proponent of a motion for summary judgment dismissing a third-party complaint because the plaintiff did not sustain a grave injury, is required to make a prima facie showing of entitlement to judgment as a matter of law, much the same as a defendant seeking summary judgment dismissing a claim for non-economic damages for lack of serious injury under the No-Fault Insurance Law"]).

Here, by submitting competent medical evidence, along with the plaintiff's bills of particulars and deposition transcripts showing that the plaintiff has some use of his left hand and lower extremities, the third-party defendants met their burden of proving that the plaintiff's injuries do not rise to the level of "grave." The third-party defendants established that, as of the plaintiff's most recent deposition, he could walk 15 to 20 steps with a cane, and was able to use his left hand to play video games, smoke a cigarette, and type on a keyboard. While the record contains a wide range of medical opinions regarding the plaintiff's condition, no medical opinion, viewed in the light most favorable to the nonmovants, establishes that the plaintiff suffered a "permanent and total loss of use . . . of an arm, leg, hand or foot." In fact, the only opinions in the record directly addressing the issue of "grave injury" are those from the third-party defendants' medical experts, who affirmatively opine, in a non-conclusory manner, that the plaintiff did not sustain a "grave injury" as defined by statute. Accordingly, the third-party defendants met their prima facie burden for summary judgment dismissing the third-party complaint (see Aguirre v Castle Am. Const., LLC, 307 AD2d 901 [2d Dept 2003] ["The third-party defendant met its burden of proving, through its submission of the amended verified complaint, verified bills of particulars, and the affidavit of the plaintiff . . . that the plaintiff's injuries, although serious, did not rise to the level of "grave" injuries within the meaning of Workers' Compensation Law § 11]; (Trimble v Hawker Dayton Corp., 307 AD2d at 453 ["[The third-party defendant] met its burden of proving, by competent admissible evidence, that plaintiff's injury, though severe and disabling, did not rise to the level of a grave injury because he has some use of his right hand. . . . Specifically, the records of plaintiff's treating physician, . . . and the report of a functional capacity evaluation state that plaintiff is able to extend and close his right thumb and fingers sufficiently to grasp, hold and carry objects in his right hand"]; Kraker v Consol. Edison Co., Inc., 23 AD3d at 533 ["In his deposition . . . , the injured plaintiff testified he could type with his right hand one key at a time, could brush his hair with his right hand, and could carry his shoes in his right hand. This new information established, as a matter of law, that the injured plaintiff did not sustain a total loss of the use of his right hand and accordingly, did not sustain a grave injury"]).

This evidence shifted the burden to Cedar Manor to demonstrate the existence of a triable issue of fact as to the existence of a qualifying grave injury. To meet this burden, they rely upon, among other things, the report of plaintiff's expert examining neurologist, Dr. Lawrence Shields, who examined the plaintiff on September 17, 2013. Although Dr. Shields concludes, in conclusory fashion, that the plaintiff is "permanently severely disabled" as a result of the accident, and requires, among other things, a daily 24-hour home health aide, "a residence fitted for an incontinent, [*7]functionally immobile individual and supportive appurtenances . . . including, but not limited to: hospital bed, Hoyer lift, motorized wheelchair, incontinence garment, shower chair and a wheelchair accessible family vehicle," he never opines that the plaintiff suffers from a permanent and total loss of use of his arm, leg, hand or foot. Nor does he dispute the findings in the medical records that the plaintiff has some use of his upper and lower extremities.

Moreover, after examining the plaintiff and reviewing the medical records, Dr. Shields confirms that the plaintiff has the ability to walk ten feet, has passive and active range of motion in all ten fingers, and that the left arm has "movement in all cardinal planes." Since this proof is insufficient to raise a triable issue of fact as to the existence of a qualifying grave injury under Workers' Compensation Law § 11, the third-party defendants' motion for summary judgment is granted (see Trimble v Hawker Dayton Corp., 307 AD2d at 453; Aguirre v Castle Am. Const., LLC, 307 AD2d at 901] ["The defendant third-party plaintiff's admissions in its reply papers and on appeal that the plaintiff has some movement in his arm defeat its claim that the plaintiff sustained a permanent and total loss of use of that arm as required under Workers' Compensation Law § 11] [internal quotations and citations omitted]; cf. Benedetto v Carrera Realty Corp., 32 AD3d 874, 876 [2d Dept 2006] [The plaintiff's injuries qualified as "grave" where it was undisputed that the "plaintiff could not use his feet at all, was confined to a wheelchair, and could ambulate only with the use of crutches and braces by dragging his lower body and using his upper body for support"] [emphasis added]).

III. Cedar Manor's motion for summary judgment dismissing the Labor Law § 240 (1) cause of action is denied based upon triable issues of fact.

Cedar Manor has failed to meet its prima facie burden for summary judgment on the Labor Law § 240 (1) cause of action insofar as its own submissions raise triable issues of fact as to whether the statute was violated and whether such violation was a proximate cause of the plaintiff's injuries (see Godoy v Neighborhood Partnership Housing Development Fund Co., Inc., 104 AD3d 646, 647-648 [2d Dept 2013]).

"Labor Law § 240 (1) imposes liability on contractors and owners for the existence of certain elevation-related hazards and the failure to provide an adequate safety device of the kind enumerated in the statute. . . . To establish a claim under this provision, a plaintiff must show that the statute was violated and that the violation proximately caused his injury" (Keenan v Simon Prop. Group, Inc., 106 AD3d 586, 588 [1st Dept 2013] [internal citations and quotations omitted]). "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)" (Treu v Cappelletti, 71 AD3d 994, 997 [2d Dept 2010], citing Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003]; Melchor v Singh, 90 AD3d 866, 867 [2d Dept 2011] ["Where a violation of Labor Law § 240 (1) is a proximate cause of an accident, the plaintiff's conduct, of necessity, cannot be deemed the sole proximate cause . . . . Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation" (internal citations omitted)]).

"Although [a] fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240 (1),' liability will be imposed when the evidence shows that the subject ladder was . . . inadequately secured and that . . . the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries'" (Canas v Harbour at Blue Point Home Owners Ass'n, Inc., 99 AD3d 962, 963 [2d Dept 2012] [internal citation omitted] ["Here, the plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability under that statute by showing that, although he was provided with a ladder, as required by the statute, the ladder was not secured so as to prevent it and him from falling. Further, there was no assistance provided in holding the ladder while the plaintiff painted"]).

Although Cedar Manor contends that the plaintiff's fall was not gravity related insofar as the credible proof establishes that the plaintiff's injury occurred from the horizontal motion of pulling wires rather than from a fall from a ladder, Cedar Manor's own submissions, which include the plaintiff's deposition transcript, raise a triable issue of fact as to whether there was a statutory violation of Labor Law § 240 (1). Here, the plaintiff testified that he fell from a ladder that was improperly placed and unsecured, which caused him to fall. "Viewing the evidence in the light most favorable to the plaintiff as the party opposing summary judgment . . . and giving [him] the benefit of every favorable inference" (see Sheryll v L & J Hairstylists of Plainview, Ltd., 272 AD2d 603, 604 [2d Dept 2000]), this testimony is sufficient to raise a triable issue of fact on the Labor Law § 240 (1) cause of action to defeat Cedar Manor's motion for summary judgment (see Lipari v AT Spring, LLC, 92 AD3d 502, 504 [1st Dept 2012] ["A Labor Law § 240 (1) violation is considered the proximate cause of an accident [where] plaintiff's fall was caused by an unsecured A-frame ladder that slipped"]).

Cedar Manor's contention that the plaintiff's testimony regarding the patient is "unsubstantiated" and not supported by other evidence involves matters of credibility, which may not be resolved by the Court in the context of a summary judgment motion (see Ferrante v American Lung Ass'n, 90 NY2d 623, 631 [1997] ["It is not the court's function on a motion for summary judgment to assess credibility"]).

Nor has Cedar Manor met its prima facie burden for summary judgment dismissing the plaintiff's Labor Law § 240 (1) cause of action based upon their contention that the plaintiff's activity at the time of the alleged injury did not fall within the protection of the statute. Here, the plaintiff was engaged in the activity of pulling wires through a conduit in the ceiling as part of the installation of a new nurse call system, which activity could constitute the "altering" of a building or structure within the meaning of Labor Law § 240 (1) (see Weininger v Hagedorn & Co., 91 NY2d 958, 959-960 [1998] [The activity of "running computer and telephone cable through the ceiling from an existing computer room in [defendant's] office to newly leased space that would be used as a telecommunications center," which "involved standing on a ladder to access a series of holes punched in the ceiling and pulling the wiring through canals' that had been made in chicken wire in the ceiling" constituted "altering" of a building or structure within the meaning of Labor Law § 240 [1]; see also LaGiudice v Sleepy's Inc., 67 AD3d 969, 971 [2d Dept 2009] [Where the plaintiff was engaged in the task of installing electrical exit signs, which entailed pulling electrical cable [*8]through the ceiling, drilling cinder blocks, opening up the electrical panels, and possibly cutting part of the ceiling splines, the Court determined that this was protected activity under Labor Law § 240 [1]).

Since Cedar Manor has failed to meet its prima facie burden for summary judgment dismissing the plaintiffs' Labor Law § 240 (1) cause of action, that branch of the motion is denied without regard to the sufficiency of the opposition papers (see Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]).

II. Cedar Manor's motion for summary judgment dismissing the Labor Law § 241 (6) cause of action is granted.

Cedar Manor has met its prima facie burden for summary judgment on the Labor Law § 241 (6) cause of action on the ground that the plaintiff has failed to establish a violation of the New York State Industrial Code as a predicate to liability under the statute.

"Labor Law § 241 (6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Norero v 99-105 Third Ave. Realty, LLC, 96 AD3d 727, 728 [2d Dept 2012], citing Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]). "To prevail on a cause of action alleging a violation of Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision that sets forth specific, applicable safety standards" (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-505 [1993]).

In his amended bill of particulars dated July 19, 2011, the plaintiff alleges violations of 22 NYCRR §§ 23-1.7 (d)[FN3] and (e) (2),[FN4] slipping and tripping hazards; 23-1.5, general responsibility of employers;[FN5] 23-2.1,[FN6] maintenance and housekeeping; 23-1.30,[FN7] illumination; and 23-2.2 (d),[FN8] concrete [*9]work. Cedar Manor has established, prima facie, that these sections of the New York State Industrial Code are either too broad to support a Labor Law § 241 (6) cause of action or are inapplicable to the facts of this case.

In opposition to Cedar Manor's motion for summary judgment, the plaintiff never addresses the applicability of these previously alleged New York State Industrial Code violations, but, instead, [*10]alleges for the first time a violation of 22 NYCRR § 23-1.21 (b) (4) (ii),[FN9] which relates to ladders and ladderways. The mere fact that this assertion was made at this late date "is not fatal to his claim, since no new factual allegations were involved, no new theories of liability were set forth, and no prejudice was caused to the defendants" (Ramirez v Metro. Transp. Auth., 106 AD3d 799, 800-802 [2d Dept 2013]). Nevertheless, the plaintiff has failed to establish that this alleged violation applies to the facts presented here, as there is no proof that the ladder footings were not firm or that the ladder was placed on a slippery or unstable object (see Arigo v Spencer, 39 AD3d 1143, 1145 [4th Dept 2007] ["Because the record establishes that the ladder was not placed on a slippery or unstable object, we conclude that 12 NYCRR 23-1.21(b)(4)(ii), which requires that all ladder footings shall be firm, also is not applicable to this case"]).

Cedar Manor has met its prima facie burden for summary judgment on the Labor Law § 241 (6) cause of action on the ground that the plaintiff has failed to establish a violation of the New York State Industrial Code as a predicate to liability under the statute. In opposition, the plaintiff has failed to raise an issue of fact to sustain the cause of action. Accordingly, the Labor Law § 241 (6) cause of action is dismissed.

III. Cedar Manor's motion for summary judgment dismissing the Labor Law § 200 cause of action is denied based upon triable issues of fact.

Cedar Manor failed to meet its prima facie burden for summary judgment dismissing the defendant's Labor Law § 200 cause of action.

"Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work (Ortega v Liberty Holdings, LLC, 111 AD3d 904, 906 [2d Dept 2013]; see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). There are "two broad categories under which liability may be imposed under Labor Law § 200" (Slikas v Cyclone Realty, LLC, 78 AD3d 144, 147 [2d Dept 2010]). One category of liability relates to negligence arising from the means, methods, and materials employed in the work: "[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]; see Comes v NY State Elec. & Gas Corp., 82 NY2d 876 [1993] [liability may not be imposed pursuant to Labor Law § 200 "solely because the owner had notice of the allegedly unsafe manner in which the work was performed"]; Singh v Black Diamonds LLC, 24 AD3d 138 [1st Dept 2005] ["liability can only be imposed if defendant exercised control or supervision over the work and had actual or constructive notice of the purportedly unsafe condition"]). Second, liability may also be imposed where the injury is proximately caused by a dangerous or defective condition on the premises itself: "Where a premises condition is at issue, [*11]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" (Ortega v Puccia, 57 AD3d at 61; Ramirez v Metro. Transp. Auth., 106 AD3d 799, 800-802 [2d Dept 2013]).

Here, the plaintiff's deposition testimony raises triable issues of fact as to whether Cedar Manor created a dangerous condition by refusing to remove a wheelchair-bound patient from the work area, thereby obstructing the plaintiff's work area and his ability to properly place his ladder. The plaintiff testified that he asked a Cedar Manor charge nurse to move the patient to enable him to place his ladder in a proper position to reach the wires. According to the plaintiff, the nurse refused to move the patient, which required the plaintiff to place the ladder sideways in an awkward position, making it difficult for him to do his job. Viewed in the light most favorable to the plaintiff (see Pearson v Dix McBride, 63 AD3d 895 [2d Dept 2009] ["in determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmovant"]), this evidence is sufficient to raise a triable issue of fact as to whether the failure to move the patient constituted the creation of a dangerous condition which proximately caused the plaintiff's injury. Cedar Manor's contention that the plaintiff's testimony regarding the patient is "unsubstantiated" and not supported by other evidence involves matters of credibility, which may not be resolved by the Court in the context of a summary judgment motion (see Ferrante v American Lung Ass'n, 90 NY2d at 63).

Accordingly, the branch of Cedar Manor's motion which is for summary judgment dismissing the plaintiff's Labor Law § 200 cause of action is denied without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York University Medical Center, 64 NY2d at 853).

Based upon the foregoing, it is hereby

ORDERED that the branches of the third-party defendants' motion which are for summary judgment dismissing the third-party complaint are granted; and it is further

ORDERED that the branch of the defendants' motion which is for summary judgment dismissing the Labor Law § 241 (6) cause of action is granted, and the motion is otherwise denied; and it is further

ORDERED that the parties are directed to appear on February17, 2015, at 9:15 a.m., in courtroom 1600, the Settlement Conference Part at the Westchester County Courthouse, 111 Dr. Martin Luther King, Jr., Boulevard, White Plains, New York 10601; and it is further

ORDERED that all other relief requested and not decided herein is denied.

This constitutes the decision and order of the Court.

Dated:White Plains, New York January 23, 2015

HON. FRANCESCA E. CONNOLLY, J.S.C.

Footnotes

Footnote 1: By stipulation dated October 29, 2013 and entered in the Westchester County Clerk's Office on March 20, 2014, the derivative action commenced by the plaintiff, Mehan (sic) McCrary, has been discontinued with prejudice.

Footnote 2:Although the complaint alleges that the accident occurred on January 15, 2007, the parties entered into a stipulation dated September 8, 2009 amending the pleadings to reflect January 16, 2007 as the correct date of the accident.

Footnote 3:22 NYCRR 23-1.7 (d) provides: "Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."

Footnote 4:22 NYCRR 23-1.7 (e) (2) provides: "Tripping and other hazards. (2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."

Footnote 5:22 NYCRR 23-1.5 provides: "General responsibility of employers. These general provisions shall not be construed or applied in contravention of any specific provisions of this Part (rule). (a) Health and safety protection required. All places where employees are suffered or permitted to perform work of any kind in construction, demolition or excavation operations shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection for the lives, health and safety of such persons as well as of persons lawfully frequenting the area of such activity. To this end, all employers, owners, contractors and their agents and other persons obligated by law to provide safe working conditions, personal protective equipment and safe places to work for persons employed in construction, demolition or excavation operations and to protect persons lawfully frequenting the areas of such activity shall provide or cause to be provided the working conditions, safety devices, types of construction, methods of demolition and of excavation and the materials, means, methods and procedures required by this Part (rule). No employer shall suffer or permit an employee to work under working conditions which are not in compliance with the provisions of this Part (rule), or to perform any act prohibited by any provision of this Part (rule). (b) General requirement of competency. For the performance of work required by this Part (rule) to be done by or under the supervision of a designated person, an employer shall designate as such person only such an employee as a reasonable and prudent man experienced in construction, demolition or excavation work would consider competent to perform such work. (c) Condition of equipment and safeguards. (1) No employer shall suffer or permit an employee to use any machinery or equipment which is not in good repair and in safe working condition. (2) All load-carrying equipment shall be designed, constructed and maintained throughout to safely support the loads intended to be imposed thereon." (3) All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged."

Footnote 6:22 NYCRR 23-2.1 provides: "Maintenance and housekeeping. (a) Storage of material or equipment. (1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare. (2) Material and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold. Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge. (b) Disposal of debris. Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area."

Footnote 7:22 NYCRR 23-1.30 provides: "Illumination. Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass."

Footnote 8:22 NYCRR 23-2.2 (d) provides: "Concrete work. (d) Stripping. After stripping, forms shall be promptly stockpiled or removed from areas in which persons are required to work or pass. Protruding nails, wire ties and other form accessories not necessary for subsequent work shall be pulled, cut or otherwise made safe."

Footnote 9:22 NYCRR 23-1.21 (b) (4) (ii) provides: "Ladders and ladderways. (b) General requirements for ladders. (4) Installation and use. (ii) All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings."