Reiss v 8 Bond St. Corp.

[*1] Reiss v 8 Bond St. Corp. 2016 NY Slip Op 50355(U) Decided on March 3, 2016 Supreme Court, Kings County King, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 3, 2016
Supreme Court, Kings County

Timothy Reiss, Plaintiff,

against

8 Bond Street Corporation and Elaine's Asian Bistro Corp., Defendants.



6804/2010



Atty for plaintiff: Eric K. Schwarz, Esq.

Atty for defendant, 8 Bond Street Corporation: Thomas F. Keane, Esq.

Atty for defendant, Elaine's Asian Bistro Corp.: Norman H. Dashs, Esq.
Kathy J. King, J.

The following papers numbered 1 to 6 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1- 2

Opposing Affidavits (Affirmations) 3

Reply Affidavits (Affirmations) 4

Affidavit (Affirmation)

Other Papers (Plaintiff's Memo of Law; Prior Motion Papers) 5, 6

Upon the foregoing papers, Defendants Elaine's Asian Bistro Corp. ("Elaine's Bistro") and 8 Bond Street Corporation, ("Bond") move for an order, pursuant to CPLR §3212 granting them summary judgment and dismissal of all plaintiff's claims under Labor Law §§240(1), 241(6), 200 and common-law negligence (Motion Sequence Nos. 5 & 7). Additionally, both defendants move to dismiss their respective cross-claims asserted against each other. Plaintiff opposes [FN1] and moves for partial summary judgment on its claims under Labor Law §§240(1) and 241(6) against both Elaine's Bistro and Bond (Motion Sequence No. 6).

Background

Plaintiff commenced this action seeking to recover damages for personal injuries by filing a summons and verified complaint with this Court on March 18, 2010. The pleadings assert that on April 21, 2007, plaintiff, an employee of non-party LMF Construction, suffered a fall from a [*2]ladder and consequent injuries while hanging a sign on the premises known as 8 Bond Street in Great Neck, New York ("subject premises"). Defendant, Bond, is the owner of the subject premises.

Upon commencement of the instant action each defendant interposed an answer with a cross-claim. Motion practice and discovery ensued. On July 29, 2014, plaintiff filed a note of issue, a jury demand, and certificate of readiness certifying that all discovery is complete and that the action is ready for trial. The instant motions for summary judgment followed.

Elaine Bistro's Summary Judgment Motion to Dismiss Plaintiff's Complaint and Defendant, 8 Bond Street Corporation's Cross-Claim

In support of its motion for summary judgment, Elaine's Bistro asserts that plaintiff's complaint and the cross-claims asserted against it by defendant, Bond, lack merit as a matter of law. Elaine's Bistro submits that it is entitled to summary judgment dismissing plaintiff's Labor Law claims for multiple reasons: (1) the alleged accident occurred while plaintiff was merely hanging a temporary sign or banner on a building by tying it with nylon cord to a pre-existing pipe attached to the building which does not qualify as a significant alteration of a building; (2) plaintiff was not hired and compensated (by an owner, contractor or agent thereof) to perform construction work; (3) plaintiff did not suffer an accident that was caused by a qualifying elevation-related risk which requires that plaintiff was subject to a significant risk of either falling or being struck by a falling object; (4) the provisions of the Industrial Code that plaintiff has cited in his bill of particulars either do not contain a requisite specific directive or are not applicable to the facts of the accident; (5) plaintiff's negligence was the proximate cause of the accident; and (6) no negligence on the part of Elaine's Bistro caused or contributed to plaintiff's accident.

Elaine's Bistro asserts that, contrary to plaintiff's assertions, Labor Law §§240(1) and 241(6) applies to workers who were injured only while performing significant alterations of a building or structure, not workers performing the activity engaged in by plaintiff. Here, plaintiff's employer volunteered plaintiff's services without expecting remuneration, thus Elaine's Bistro argues that Labor Law §§200, 240(1) and 241(6) do not apply to this case. Elaine's Bistro further argues that plaintiff is not entitled to recovery under Labor Law §240(1) because plaintiff's fall was not from an elevated height, but was virtually at ground level.

Elaine's Bistro asserts that in order for a claim under Labor Law §241(6) to be sustainable, it must be supported by a provision of the Industrial Code that both applies to the facts of the accident and contains a specific and positive directive. However, Elaine's Bistro argues, the provisions of the Industrial Code that plaintiff has cited in his bill of particulars either do not contain a requisite specific directive or are not applicable to the facts of the accident. Elaine's Bistro also asserts that standards other than those contained in the Industrial Code (such as OSHA standards or violations of the New York City Building Code) are insufficient to support a Labor Law §241(6) cause of action. Additionally, Elaine's Bistro also contends that plaintiff's own conduct proximately caused the accident and his injuries and, thus, no liability can be imposed upon Elaine's Bistro.

Finally, Elaine's Bistro asserts that plaintiff's Labor Law §200 and common-law negligence claims must also be dismissed because it did not cause or create a dangerous or defective condition to exist at the premises, nor did it provide plaintiff with a defective device that proximately caused the occurrence, or have sufficient prior notice of a dangerous or defective condition that allegedly caused the accident, or directed, supervised or controlled the means or methods of the work that plaintiff was performing at the time of the accident.

In opposition to Elaine's Bistro motion for summary judgment, plaintiff contends that the work he was performing immediately before he fell qualifies as "construction work" for Labor Law purposes. Plaintiff argues that "affixing a sign to a building . . . qualifies as an alteration of a building or structure" and is thus an activity covered by Labor Law §§240(1) and 241(6).

Plaintiff opposes Elaine's Bistro's contention that plaintiff's work was volunteered, [*3]instead, plaintiff claims, the applicable test is whether plaintiff was "permitted or suffered to work on a building or structure" and hired by an owner, contractor or agent thereof. Plaintiff asserts that he is a "protected worker" under the Labor Law and that Elaine's Bistro's contention that Labor Law §§200, 240(1) and 241(6) are inapplicable to this case because plaintiff volunteered to hang the banner or sign on the subject premises, is without merit. In this action, argues plaintiff, it is undisputed that his employer hired him and that Elaine's Bistro hired his employer. Moreover, plaintiff asserts that, irrespective of whether this court considers his employer's version of the events preceding the accident, plaintiff was nevertheless performing work at a height, and, thus, was entitled to the protections of Labor Law §240(1).

Also, plaintiff asserts that any failure to properly place or secure the ladder demonstrates a violation of Industrial Code §23-1.21, which sufficiently supports his Labor Law §241(6) cause of action. Plaintiff adds that it is immaterial whether he misplaced or failed to secure the ladder; instead, he argues that it is the non-delegable duty of owners, contractors and their agents to properly place and secure all necessary safety devices. Plaintiff further reasons that since it is undisputed that the unsecured ladder moved while he was on it, a Labor Law §240(1) claim exists and since no safety devices were provided, his conduct cannot be the sole proximate cause of his injuries. Also, plaintiff points out that comparative negligence is not a defense to Labor Law §§240(1) or 241(6).

Lastly, plaintiff argues that Elaine's Bistro is an owner, contractor or agent thereof, since Elaine's Bistro had the right to hire contractors and direct work. Thus, reasons plaintiff, Elaine's Bistro is vicariously liable pursuant to Labor Law §§240(1) and 241(6) without regard to fault of either party or whether Elaine's Bistro supervised plaintiff's work.

Bond's Summary Judgment Motion to Dismiss Plaintiff's Complaint and Defendant, Elaine's Bistro's Cross-Claim

In support of its motion for summary judgment dismissing the complaint and all

cross-claims asserted against it, Bond argues that the work performed by plaintiff when the accident occurred (namely, "hanging a temporary vinyl sign") is not a material alteration of a building or structure, and thus, Labor Law §§240(1) and 241(6) are inapplicable to the facts of this case. Bond argues that the most recent appellate authority generally holds that hanging a sign or other object on a wall without making structural changes to a building (e.g., chiseling a hole in a concrete wall) does not constitute a "significant physical change" necessary to implicate the protections of Labor Law §§240(1) and 241(6). In this case, Bond states, plaintiff connected a vinyl sign to two elbow pipes that were "already affixed to each building." Further, relying on plaintiff's deposition testimony, Bond contends that "the accident did not take place at a construction site', it took place on a walkway leading to a restaurant which was about to open for business." With respect to plaintiff's negligence claims, Bond asserts that it did not have actual or constructive notice of any alleged hazard relating to the premises that caused the accident and since it was unaware that the sign was being hung and did not supervise or control plaintiff's work, plaintiff has no claim under Labor Law §200 or common-law negligence.

In opposition, plaintiff contends that the act of affixing or removing a sign — whether temporary or not — from a building or structure is a protected activity under Labor Law §240(1) and consistent with established case law which deems plaintiff's activity as "altering" a building or structure, which falls under the definition of "construction work" for purposes of the Labor Law. Additionally, plaintiff argues that the act of affixing or removing a sign — whether temporary or not — from a building or structure is a protected activity under Labor Law §241(6), since plaintiff's activity was "construction work" under the Labor Law and, as a result, defendants have a non-delegable duty under Labor Law §241(6) of providing reasonable and adequate protection and safety to persons working in construction, irrespective of defendants' control or supervision of the work site.

Plaintiff's Motion for Partial Summary Judgment on its Labor Law §§240(1) and 241(6) Claims

In support of its motion for partial summary judgment, plaintiff argues that Elaine's Bistro [*4]and Bond are subject to absolute liability under Labor Law §240(1), since Bond is a building owner and Elaine's Bistro is an agent of the owner. Under Labor Law §240(1), building owners and their agents have a non-delegable duty to provide workers with proper safety devices and adequate protection on a construction site. Plaintiff asserts that he suffered a gravity related injury based on the improper placement and positioning of the ladder in combination with the lack of safety harnesses and/or absence of another worker to hold the ladder secure while he was on it, which establishes a basis for liability under Labor Law §240(1). Further, plaintiff argues that Labor Law §241(6) not only provides owners and their agents with a non-delegable duty to provide reasonable and adequate protection and safety for workers, but requires compliance with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Specifically, plaintiff asserts that due to violations of Sections 23-1.21(b)(4)(ii),

23-1.21(e)(3), 23-1.21(4)(iv), and 23-1.16 of the Industrial Code, plaintiff suffered an elevation related hazard, which establishes a basis for liability under Labor Law §241(6).

In opposition, Bond argues that even if it accepts the facts and admissions of plaintiff as true, plaintiff has not met its burden of proving that there was a significant change to the building itself since plaintiff was merely tying the sign to the building with rope. Similarly, Elaine's Bistro argues that routine maintenance was being performed inside the restaurant at the time of the accident and not construction within the meaning of Labor Law §§240(1) and 241(6), and that, in any event, the hanging of the temporary banner was totally unrelated to any alleged construction inside the restaurant. Moreover, Elaine's Bistro argues that plaintiff's version of how the accident occurred, whether the ladder was improperly placed, and whether plaintiff's own negligence was the sole proximate cause of the accident is contradicted by his employer, Louis Feldstein. In his deposition testimony, Mr. Feldstein testified that plaintiff stepped up the ladder on an even surface and it was plaintiff's conduct that cause him to fall over the ladder.

Discussion

Standard for Summary Judgment

Summary judgment is a drastic remedy that deprives a litigant of his day in court and thus, should only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 [1974]). " [T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' " (Manicone v City of New York, 75 AD3d 535, 537 [2d Dept 2010], quoting Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The motion should be granted only when it is clear that no material and triable issue of fact is presented (see Di Menna & Sons v City of New York, 301 NY 118 [1950]). If the existence of an issue of fact is even arguable, summary judgment must be denied (Phillips v Kantor & Co., 31 NY2d 307 [1972]; Museums at Stony Brook v Vil. of Patchogue Fire Dept., 146 AD2d 572 [2d Dept 1989]). Also, parties opposing a motion for summary judgment are entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions (Nicklas v Tedlen Realty Corp., 305 AD2d 385 [2d Dept 2003]; see also Akseizer v Kramer, 265 AD2d 356 [2d Dept 1999]). Furthermore, in determining the outcome of the motion, the court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents (see Pierre-Louis v DeLonghi America, Inc., 66 AD3d 859, 862 [2d Dept 2009], citing Nicklas v Tedlen Realty Corp., 305 AD2d 385 [2d Dept 2003]; see also Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105-106 [2006]). Moreover, a party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of a claim or defense and not by simply pointing to gaps in the proof of an opponent (see Nationwide Prop. Cas. v Nestor, 6 AD3d 409, 410 [2d Dept 2004]; Katz v PRO Form Fitness, 3 AD3d 474, 475 [2d Dept 2004]; Kucera v Waldbaums Supermarkets, 304 AD2d [*5]531, 532 [2d Dept 2003]). Lastly, "[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility' " (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010], quoting Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept 2002]; see also Benetatos v Comerford, 78 AD3d 750, 751-752 [2d Dept 2010]; Lopez v Beltre, 59 AD3d 683, 685 [2d Dept 2009]; Baker v D.J. Stapleton, Inc., 43 AD3d 839 [2d Dept 2007]).

Labor Law §240(1)

Labor Law §240(1) states, in relevant part, that:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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) applies to an injury that directly flows from the application of the force of gravity to an object or to the injured worker performing a protected activity [FN2] (Gasques v State of New York, 15 NY3d 869 [2010]; Vislocky v City of New York, 62 AD3d 785, 786 [2d Dept 2009], lv dismissed 13 NY3d 857 [2009]; see also Lacey v Turner Constr. Co., 275 AD2d 734, 735 [2d Dept 2000]; Ienco v RFD Second Ave., LLC, 41 AD3d 537 [2d Dept 2007]; Ortiz v Turner Constr. Co., 28 AD3d 627 [2d Dept 2006]). For the statute to apply, "the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Vasquez v Minadis, 86 AD3d 604, 605 [2d Dept 2011] [internal quotations omitted], citing Martinez v City of New York, 93 NY2d 322, 326 [1999]; see also Schroeder v Kalenak Painting & Paperhanging, Inc., 7 NY3d 797, 798 [2006]; Martinez v City of New York, 73 AD3d 993, 996 [2d Dept 2010]). The duty to provide "proper protection" against elevation-related risks is non-delegable; therefore, owners, contractors and their agents are liable for the violations even if they have not exercised supervision and control over either the subject work or the injured worker (Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]).

However, Labor Law §240(1) does not apply to "any and all perils that may be connected in some tangential way with the effects of gravity" (Ross v Curtis-Palmer Hydro-Elec Co., 81 NY2d 494 [1993]). " Not every worker who falls at a construction site . . . gives rise to the extraordinary protections of Labor Law §240(1)'" (Harrison v State of New York, 88 AD3d 951, 952 [2d Dept 2011], quoting Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). A successful cause of action pursuant to Labor Law §240(1) requires that the plaintiff establishes both "a violation of the statute and that the violation was a proximate cause of his injuries" (Skalko v Marshall's Inc., 229 AD2d 569, 570 [2d Dept 1996]; see also Rakowicz v Fashion Inst. of Tech., 56 AD3d 747 [2d Dept 2008]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524 [1985]). The purpose of Labor Law §240(1) is "to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see also Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

Labor Law §241(6)

Labor Law §241(6) states, in applicable part, as follows:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply [*6]with the following requirements: . . .6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the 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, shall comply therewith."

Labor Law §241(6) imposes a non-delegable duty on owners and contractors to comply with the specific safety rules and regulations set forth in the Industrial Code in connection with construction, demolition or excavation work (Ascencio v Briarcrest at Macy Manor, LLC, 60 AD3d 606, 607 [2d Dept 2009], citing Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; Nagel v D & R Realty Corp., 99 NY2d 98, 102 [2002]; Valdivia v Consolidated Resistance Co. of Am., Inc., 54 AD3d 753, 754 [2d Dept 2008]). Labor Law §241(6) is "inapplicable outside the construction, demolition or excavation contexts" (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]).

Analysis

Firstly, the Court grants summary judgment dismissing plaintiff's Labor Law §200 and common-law negligence claims in favor of defendants, Elaine's Bistro and Bond since plaintiff's opposition fails to oppose defendants' requested relief on these claims.

In regards to plaintiff's Labor Law §§240(1) and 241(6) claims, the Court finds that summary judgment dismissal of plaintiff's Labor Law §§240(1) and 241(6) claims cannot be awarded to either defendant nor can summary judgment be awarded in favor of plaintiff on its Labor Law §§240(1) and 241(6) claims.

As to defendant, Elaine's Bistro, the Court finds that plaintiff's opposition papers sufficiently rebuts Elaine's Bistro's prima facie entitlement to summary judgment dismissal of plaintiff's Labor Law §§240(1) and 241(6) claims by raising issues of fact regarding how plaintiff's accident occurred.

Further, the Court finds that defendant, Bond, has not established prima facie entitlement to summary judgment dismissal of plaintiff's Labor Law §§240(1) and 241(6) claims, since its own submissions, which include the deposition testimony of plaintiff, Louis Feldstein, and Elaine Ho raise factual issues regarding whether the work performed by plaintiff is afforded protection under Labor Law §§240(1) and 241(6).

Plaintiff's deposition testimony indicates that at the time of the accident, construction was ongoing at Elaine's Bistro (Reiss Dep. 46:16 — 49:11). On the day of the accident, plaintiff was directed by his employer, Louis Feldstein, to assist with the hanging of a sign at or near the entrance to Elaine's Bistro (Reiss Dep. 46:15 — 20); which was flat, rectangular, and nylon and had "Elaine's Bistro" printed on it (Reiss Dep. 202:23 — 204:3); the sign "went with electrical piping" that went across the top, as well as two vertical pieces of piping that were attached to the top pipe using elbow fittings (Reiss Dep. 202:23 — 206:10); and the galvanized pipe frame had not yet been affixed to the building (Reiss Dep. 70: 9 — 73:11). Plaintiff and Mr. Feldstein completely opened up and positioned their ladders, with the plaintiff on the left side of the walkway and Mr. Feldstein on the right side, both facing Elaine's Bistro with their backs to the street (Reiss Dep. 77: 25 — 78:15); plaintiff was instructed to go up his ladder and hold up one side of the sign so that Mr. Feldstein could "tie" the other end (Reiss Dep. 77:16 — 19); at the time the plaintiff was told to go up his ladder, no one was holding or otherwise securing his ladder, and no safety harnesses of any kind were available for plaintiff to use (Reiss Dep. 85:3 — 5); after climbing the ladder to assist with the hanging of the sign, plaintiff felt the ladder start to shake, and the ladder gave out from beneath him (Reiss Dep. 81:5 — 8). If plaintiff's testimony that his accident occurred while he engaged in an elevation related activity is believed, [*7]defendants are liable pursuant to Labor Law §§240(1) and 241(6), since the failure to provide any protection against elevated-related risks entitles plaintiff to judgment as a matter of law (see e.g., Swiderska v New York Univ., 10 NY3d 792 [2008]).

By contrast, Mr. Feldstein's deposition testimony indicates that on the day of the accident, he was asked by Elaine's manager, Mr. Kenny (now deceased), to do him a favor and install a temporary sign or banner between the two buildings (Feldstein Dep. 9 — 10, 11 — 12, 21, 91 — 92, 103). Mr. Feldstein further states that: the sign "was temporarily hung off a tie" (Feldstein Dep. 11 — 12), and attached to pre-existing electrical EMT tubing channels (Feldstein Dep. 24, 67); the temporary sign or banner was hung by tying it to the building with a cord (Feldstein Dep. 12, 22); the temporary sign was a white tarpaulin type material printed sign similar to a woven vinyl material (Feldstein Dep. 36 — 37); [The sign] was approximately 10' long and 18'-2' wide, with grommets on all four sides, to be fastened to both buildings by nylon rope (Feldstein Dep. 64 — 65); there was no framing giving structure to this vinyl sign (Feldstein Dep. 66); and, there was no need to use nails or screws, it was just tied to the ropes (Feldstein Dep. 67).

With respect to the manner in which the accident occurred, Mr. Feldstein testified that two short A-frame ladders (four or six footers) (Feldstein Dep. 22, 56), were used (Feldstein Dep. 14 — 15), which he provided, and that plaintiff fell not while working from an elevation at or near the top of the ladder, but, rather, while attempting to mount the ladder (Feldstein Dep. 15 — 16, 25 — 26). He testified that the ladders were set up properly, one by him (Feldstein Dep. 22), and the other by plaintiff (Feldstein Dep. 32), on an even surface, and that plaintiff knocked the ladder down in his clumsy attempt to board it, and fell forward over the ladder (Feldstein Dep. 15 — 16, 28, 40, 87 — 88); that plaintiff's foot was only, at most, on the first step, and that in awkwardly rushing to get on the ladder, plaintiff pushed it, causing it to fall with plaintiff falling over and on top of it (Feldstein Dep. 26, 28 — 33, 40, 41, 42, 44, 51, 53 ,85, 86).

Similiarly, Elaine Ho's deposition testimony presents a conflicting account of how the accident occurred since she indicates that at the time the temporary banner was being hung, there was no ongoing construction being performed at the restaurant (Ho Dep. 30).

Ms. Ho's testimony taken together with Mr. Feldstein's testimony, if believed, would support a finding that plaintiff was not performing a protected activity under the Labor Law.

Similarly, plaintiff has not established its prima facie entitlement to partial summary judgment as his submissions in support of his request for partial summary judgment also relies on conflicting versions of the facts, precluding summary judgment in his favor.

The moving papers of both plaintiff and defendant, Bond, together with plaintiff's opposition to defendant, Elaine's Bistro's motion for summary judgment highlight conflicting accounts regarding, the nature and scope of the work to be performed by plaintiff, thus raising issues of fact as to whether the plaintiff's work is a covered activity under Labor Law §§240(1) and 241(6) (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 314-315 [2004] ["Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge... on a motion for summary judgment"], quoting Anderson v Liberty Lobby, Inc., 477 US 242, 255 [1986]; see also Scott v Long Is. Power Auth., 294 AD2d 348 [2002]; Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997] ["It is not the court's function on a motion for summary judgment to assess credibility"]).

Based on the foregoing, it is hereby

ORDERED, that defendant, Elaine's Bistro's motion for summary judgment is granted to the extent that plaintiff's Labor Law §200 and common-law negligence claims are dismissed. In all other respects, the motion is denied; and it is further

ORDERED, that defendant, 8 Bond Street Corporation's motion for summary judgment is granted to the extent that plaintiff's Labor Law §200 and common-law negligence claims are dismissed. In all other respects, the motion is denied; and it is further

ORDERED, that plaintiff's motion for partial summary judgment on the issue of liability is denied in its entirety.

The foregoing constitutes the Decision and Order of the Court.

ENTER,

Hon. Kathy J. King

J.S.C. Footnotes

Footnote 1: Plaintiff's complaint asserts a cause of action under Labor Law §200, however, plaintiff's motion seeks summary judgment against Bond and Elaine's Bistro solely under Labor Law §§240(1) and 241(6). Thus, the Court shall not consider any of defendants arguments, in opposition, based on Labor Law §200.

Footnote 2:Commonly referred to as "protected activities".