Castro v Merchandise Mart Props., Inc.

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Castro v Merchandise Mart Props., Inc. 2017 NY Slip Op 31322(U) June 16, 2017 Supreme Court, New York County Docket Number: 157806/2014 Judge: David B. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 1] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 I SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 58 ------~----------------------------------------------------------------------x LUIS; CASTRO, JR., Index No.: 157806/2014 Plaintiff, -againstI MERCHANDISE MART PROPERTIES, INC., WEST FORDHAM STREET RESIDENTS ASSN., INC. and GCJ CONSULTING A SERIES OF GCJ MANAGEMENT, LLC, Defendants. -------:-----------------------------------------------------------''-----------x Coheii, J.: :r i Motion sequence numbers 003 and 004 are hereby consolidated for disposition. • This is an action to recover damages for personal injuries sustained by a laborer when he 1 fell from the roof of a tent he was constructing at the Pier 94 event space located at 711 12 h 1 ' Avenue, New York, New York (the Premises) on March 5, 2014. 1. 1 I , In motion sequence number 003, plaintiff Luis Castro, Jr. moves, pursuant to CPLR 3212, '· for summary judgment in his favor as to liability on the Labor Law§§ 240 (1) and (3) and 241 iI (6) cIJims against defendants Merchandise Mart Properties, Inc. (Merchandise) and GCJ l I Consulting A Series of GCJ Management, LLC (GCJ) (together, defendants). I 1 . In motion sequence number 004, defendant GCJ moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cr~ss claims against it. Merchandise cross-moves, pursuant to CPLR 3212, for summary judgment dismissing the 1 2 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 2] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 i t ii 'l 1t ·I complaint as against it. 1 '! il '.f BACKGROUND I I ! [ On the day of the ~ccident, Merchandise, a reai'.estate agency that rents out its properties for ev~nts, owned and maAaged the Premises where th~ accident occurred. That day, I . , ·1 ' Merchandise was preparin'g for the Armory show at the Premises. GCJ served as events manager t ,} ,. ' ' < : for th~ Armory show, and nonparty Global Exhibition Services served as general 'contractor. l j Plaintiff was employed by.inonparty Arena Event Services (Arena). '• . : 11 J, Plaintiff's Deposition Testimony '! ! It Plaintiff testified ttlat, on the day of the accident, he was working at the Premises as a ~' labore~ for Arena, a comp~ny specializing in erecting t~nts for weddings, circuses, fashion shows r . ; l, i and s~orts events. Plaintiffs work was limited to tent tonstruction. Specifically, his "duties .! i 'I If were t'o erect the tents, put the final [vinyl roofs] of the'tents on, sidewalls, gables and basically 1 make -~ure everything was in place" (plaintiffs tr at 22). Prior to his work on the Project, , , ~: .:1 plaint~ff had constructed Il}Ore than 50 tents for Arena. ,. While working for Arena, plaintiff 'i · " learned how to construct tents through "on-the-job training" (id. at 56). I , . ! Plaintiff testified ttlat, on the day of the accident, Scott A very was his manager on the job. That day, A very instructed,. plaintiff and the rest of the Avery crew to construct two tents at the '] ~ r '" ; i P r Premises. The crew consisted of 15 workers split into two groups. Plaintiff testified that no safetyJmeetings were ever held at the job site, nor was there any safety equipment, like harnesses, .I , •i I ~ ~- 1ocate,p there. Plaintiff maintained that he did not need any instructions on the day of the f l Defendant West Fordham Street Residents Askn., Inc. has not made an appearance in this a~tion. · 1 2 3 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 3] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 I 'I , accid,ent, because he was "fully familiar with erecting tents" (id. at 56). : Plaintiff explained that, when fully constructed, the subject tents, which looked like houses when finished, measured approximately 25 feet high and 50 feet long. The tents were I i constructed in stages. First, the metal structures of the tents were erected. Thereafter, vinyl roofs and g~bles were installed on the metal structures and sidewalls were hung. After the exteriors of I the tents were completed, heating and cooling systemswere installed inside. Everything that was I needea to construct the tents was provided by Avery, ihcluding 10- to 12-foot tall A-frame 'I ladders. Plaintiff noted that it took approximately six hours to assemble a tent. I ' l Plaintiff testified that some complications arose during the installation of the gables on the te~t that he was constructing at the time of the accident. As a result, there were significant I delays in the completion of that tent. In fact, the tent's metal frame and vinyl roof were still not completed on the morning of the day of the accident. At the time of the accident, plaintiff was in ! ' ' I the pr~cess of installing one of the tent's gables. He explained that the gables, which comprise the triFgular parts of the outer wall, are placed in the upper segments of the tent's front and back I walls kfter the tent's roof has been installed. 'f Plaintiff testified that, in order to install the gable on the front of the tent, it was necessary I for hifu to stand on the roof of the tent. In order to gain access to the roof, plaintiff utilized a 10foot ~-frame ladder. Prior to beginning this work, he inspected the roof to make sure it was l . secured tightly by "tap[ping] the tent[to] make sure it [was] not flimsy or wavy, that it wouldn't 'l just sibk in after I would get on it" (id. at 70-71 ). One~ on the roof, plaintiff slid the gable up the tent's'metal frame, while another worker unfolded the gable and fed it to plaintiff. After pulling up the' gable, plaintiff used a keder bar to hold it in place. 3 4 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 4] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 Thereafter, in ord~r to continue his work, it was necessary for plaintiff to travel from the roof a'rea where he had juS,t installed the gable, which "o/as located at the entrance of the tent, to i1 it I the ot~er side of the tent, which was located toward th~ exit area of the tent. To do so, plaintiff I '1 •I .; i began to walk across the five vinyl bays of the roof. After he had walked across just two of the I : ii ·. •ii. ' 1 bays, ~he tent's vinyl roof gave way/collapsed, causing plaintiffto fall 25 feet to the floor and 1i become injured. I ' :1 I i When asked if he ~as ever specifically told to walk across the tent roof to get to the other ·. i side, plaintiff replied, "Wlien I built my first tent, that'~ how I was showed" (id. at 81). Plaintiff 1 . 'l I also testified that, in addition to simply walking across. the tent roof, he had noticed workers ,] ' .I .. . 0 using bther methods to get to the tent's other side, such as going down a ladder, walking around ~ I • f the tent, and then climbing back up onto the roof. However, it was up to the workers to decide ~ i .. . for thJmselves which method they wanted to use. Plaintiff chose to walk across the roof on the r •" 1 !i I 1 day of the accident in order to save much needed time.' In addition, no one ever told plaintiff not ·l: !! j to walk across the tent roof. Plaintiff also testified that he was not familiar with the entity, GCJ. f~ ~j l J DepoJition Testimony of Glenn Charles (Owner of GCJ) 1 ,, •! .1 i :j .. : + ! Glenn Charles testified that he was the owner of GCJ on the day of the accident. He ~ ' .l' ' ' explai'ned that GCJ is a c~inpany that coordinates trade shows for its clients. Charles specifically I .' .1 l set up GCJ to handle Merchandise's trade shows. On the day of the accident, GCJ was working 1 ·I , I ; ,! ; ' on the Armory show for Merchandise. Charles's duties included getting proposals from and ' monit~ring vendors, receiving deliveries and handling budget and scheduling issues. ! j However, .;l GCJ riever handled the deSign of the show itself: Charles also maintained that a company hired 'i by M~rchandise, Global E~hibition Services, acted as general contractor for the Armory show. 'I 4 5 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 5] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 Charles testified that the Armory show require~ the erection of tents. Merchandise's archi~ect hired Arena to erect the tents, pursuant to a c6ntract, against his advice. Although he 1 was present at the Premises when the Arena tents were being delivered and erected, he did not .f . . engage with Arena in anyway. In addition, he did nothave any authority to stop any work being performed by Arena in the event that he observed that ·said work being done in an unsafe fashion. Charles testified that, just prior to the accident, he instructed Avery to take down the tent j that p~aintiff was working on because he was afraid tha,t it could not be completed by the start of the shbw. He acknowledged that the Arena workers had worked non-stop throughout the night before, and that they had rushed to get the tent erected'in time for the show. As he and Avery < • were talking, the men observed plaintiff falling through the top of the tent. Charles testified that h he did not observe any scaffolding or safety harnesses at the accident location, nor could he identify any method in which a worker could construct a tent without standing on top of it. l j DepoS,ition Testimony of Thomas Pivarnik (Merchandise's Director of Operations at the Premises) i _ Thomas Pivarnik testified that he was Merchandise's director of operations for the • 'C i Premi~es on the day of the accident. He explained that Merchandise is a real estate company that •f • ,; rents ~ut the Premises for 'shows. As director of operations, Pivarnik was responsible for the maintenance of the venue. Pivarnik had no duties in regard to the Armory show. He was only t respoJsible for making sure that the lights, heat and pl~mbing were working at the Premises, and that the parking lot was open. DISCUSSION "'The proponent of a summary judgment motio'n must make a prima facie showing of s 6 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 6] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 entitlTment to judgment as a matter of law, tendering sufficient evidence to eliminate any I material issues of fact from the case'" (Santiago v Filstein, 3 5 AD3d 184, 185-186 [1st Dept I i 2006], quoting Wine grad v New York Univ. Med Ctr., 64 NY2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidetltiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum ofArt, 27 AD3d 227, 228 [1st Dept 2006], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also i DeRosa v City ofNew York, 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as to the !' I existehce of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v I Ceppos, 46 NY2d 223, 231 [1978]; Grossman vAmalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]). The Labor Law§ 240 (1) Claim ,I Plaintiff moves for summary judgment in his favor as to liability on the Labor Law § 240 (1) claim against defendants. In their separate motions, GCJ and Merchandise move for I I dismissal of said claim. Labor Law§ 240 (1), also known as the Scaffold Law (Ryan v Morse Diesel, 98 AD2d 615, 615 [1st Dept 1983]), provides, in relevant part: "All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting; cleaning or pointing of a building or structure shall furnish or ereCt, or cause to be furnished or erected for the performance of such l~bor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, phlleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to.a person so employed." I I : "'Labor Law§ 240 (1) was designed to preventthose types of accidents in which the scaffold ... or other protective device proved inadequ~te to shield the injured worker from harm I directly flowing from the application of the force of gr~vity to an object or person'" (John v i 6 7 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 7] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 Bahm:estani, 281AD2d114, 118 [I5t Dept 2001], quoting Ross v Curtis-Palmer Hydro-Elec. I Co., 81NY2d494, 501 [1993]). "Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law§ 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 '[2001]; Hill v Stahl, 49 AD3d 438, 442 [1st , i Dept 2008]; Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 267 [1st Dept 2007]). 1To prevail on a section 240 (1) claim, the plaintiff must show that the statute was violated, and that this violation was a proximate cause of the plaintiff's injuries (Blake v Neighborhood Hous. $ervs. of NY. City, 1 NY3d 280, 287 [2003]; Felker v Corning Inc., 90 NY2d 219, 224-225 [1997]; Torres v Monroe Coll., 12 AD3d 261, 262 [l5t Dept 2004]). !Initially, as the owner of the Premises where the accident occurred, Merchandise may be ' liable for plaintiff's injuries under Labor Law§ 240 (1). However, it must be determined as to whether GCJ, as the event manager for the Armory show, may also be liable pursuant to the statute (see Walls v Turner Constr. Co., 4 NY3d 861 [2005]; Russin v Louis N Picciano & Son, t 54 NY2d 311 [1981]). As to GCJ, ["'[w]hen the work giving rise to [the duty to conform to the requirements of Labor Law§ 240 (l)] has been delegated to a third pa11y, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory ;"agent" of the owner or general contractor"' (Walls v Turner Constr. Co., 4 NY3d at 864, quoting Russin v Louis N Picciano & Son, 54 NY2d at 318). 8 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 8] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 \Here, GCJ may notbe held liable under Labor Law§§ 240 (1), or 240 (3) and/or 241 (6) for that matter, because it did not supervise or control the injury-producing work, i.e., the installation of the tent roof and/or plaintiffs method for traversing it. In addition, as noted by : GCJ, the contract between GCJ and Merchandise did not delegate to GCJ any authority to superv~se and control said work. Moreover, plaintiff testified that he was trained in tent instanJtion by his employer, Arena, and that he did not need any instruction regarding how to perfo~ his work on the day of the accident. 1 Thus, as GCJ is not a proper Labor Law defendant, it is entitled to dismissal of the Labor Law§§ 240 (1) and (3) and 241 (6) claims asserted against it. Therefore, in the remainder of this i decisiop, the Labor Law claims will only be addressed i~ regard to Merchandise. Here, plaintiff established a prima facie entitlement to summary judgment on the issue of liability on his Labor Law § 240 (1) claim, by showing that the vinyl tent roof that he was working on at the time of the accident was "the functional equivalent of a scaffold," and, as such, a safety device for the purposes of the statute, and that it "failed to provide adequate protection for the 1 elevation-related work he was performing" (Gomez v City ofNew York, 63 AD3d 511, 512 [!5 I Dept 2009]; see also Beharry v Public Star., Inc., 36 AD3d 574, 574 [2d Dept 2007] ['"metal decking' was a 'safety device' within the meaning of Labor Law§ 240 (1)," because it "served as 1 a functional equivalent of a ladder"]; Keefe v E & D Specialty Stands, 259 AD2d 994, 994 [4 h Dept 1999] [Labor Law § 240 (1) liability where bleachers, which were being used as "the functional equivalent of a ladder," failed to protect plaintiff from falling from his elevated workplace]). '"Whether the device provided proper protection is a question of fact, except when the 9 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 9] NYSCEF DOC. NO. 96 ,, INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 ~ if .! device'. collapses, moves, falls, or otherwise fails to support the plaintiff and his materials" (Nelson f v Ciba-;-Geigy, 268 AD2d 570, 572 [2d Dept 2000]; Agresti v Silverstein Props., Inc., 104 AD3d 1 . 409, 4~9 [1st Dept 2013] [eabor Law§ 240 (1) liability where the makeshift scaffold failed to protec~ the plaintiff from f~lling]; Saldivar v Lawrence 'Dev. Realty, LLC, 95 AD3d 1101, 1102 i . . [2d De~t 2012] [Labor Law§ 240 (1) liability where "(t)he collapse of the makeshift scaffold ... i ! failed t,o afford the injured plaintiff proper protection for the work being performed, and ... this failure;was a proximate cause of his injuries"]; Tapia v Mario Genovesi & Sons, Inc., 72 AD3d f ,.. ' ,I . 800, 801 [2d Dept 201 O] ["Since the scaffold collapsed; the plaintiff established, prima facie, that , he was: not provided with ah adequate safety device to do his work, as required by Labor Law§ ' 240 (t)'"]). Important to this case, "Labor Law§ 240 (1) applies even in those situations when the I ' scaffol~ which is alleged to have failed was in the process of being dismantled or constructed" '! (Kyle v.·City ofNew York, 268AD2d192, 198 [151 Dept2000]; Beardv State ofNew York, 25 AD3d 989, 991 [1st Dept 2006]). ~j :rn addition, as the tent roof proved insufficient to support plaintiff's weight, and, thus, inadequate to protect plaintiff from falling, additional s~fety devices, such as a scaffold or manlift, ~ 'I were necessary to prevent him from falling (see Ortegav City ofNew York, 95 AD3d 125, 131 [1st Dept 2912] [where the plaintiff was working on an elevated work platform that "was taller than it ,. :] was wide and rested upon wooden planks atop an uneven, gravel surface," the Court considered f J . that "[i]t was foreseeable both that the plaintiff could fall off the elevated work platform and that the .. .'track could topple over"]; Nimirovski v Vornado :Realty Trust Co., 29 AD3d 762, 762-763 [2d Dept 2006] [as it was f~reseeable that pieces of metal being dropped to the floor could strike . 1 •• , 1 the scaffold and cause it to shake, additional safety devi,ces were required to satisfy Labor Law § ' 9 10 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 10] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 240 (1)]). 'l '" [T]he 1 contra~tor availability,, of a particular safety device !Will not shield an owner or general from absolute liability if the device alone is not sufficient to provide safety without the use of~dditional precautionary devices or measures'" (Nimirovski v Vornado Realty Trust Co., 29 AD3d at 762, quoting Conway v New York State Teachers' Retirement Sys., 141 AD2d 957, 958959 [3d Dept 1988]). In opposition to plaintiffs motion, defendants argue that plaintiff is not entitled to summary judgment in his favor on the Labor Law § 240 (1) claim, because at least a question of fact exists as to whether plaintiff was the sole proximate cause of his accident due to his alleged improper installation of the tent's vinyl roof, as well as taking it upon himself to walk across the ' I. vinyl tent roof to save time, rather than using the ladder to get to the ground and then walk around to the other side of the tent. "[T]he duty to see that safety devices are furnished and employed rests on the employer in the first,instance" (Aragon v 233 W 2J81 St., 201AD2d353, 354 [l51 Dept 1994]). "When the defendant presents some evidence that the device furnished was adequate and properly placed and that the 'conduct of the plaintiff may be the sole proximate cause of his or her injuries, partial summafy judgment on the issue of liability will be denied because factual issues exist" (Ball v Cascade Tissue Group-NY, Inc., 36 AD3d 1187, 1188 [3d Dept 2007]; Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006] [where a plaintiffs own actions are the sole proximate cause of the accident, there can be no liability under Labor Law §:240 (1)]). Here, plaintiff testified that his gable installation work not only required him to work from the tent's roof, it was up to the tent constructors to decide which method was best for them to 10 11 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 11] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 i I traverse from one side of the tent to the other. In any event, both of these actions on the part of plaintiff go to the issue of comparative fault, and comparative fault is not a defense to a Labor Law § 240 ( 1) cause of action, because the statute imposes absolute liability once a violation is shown (Blandv Manocherian, 66 NY2d 452, 460 [1985]; Dwyer v Central Park Studios, Inc., 98 AD3d ' 882, 884 [1st Dept 2012]). "[T]he Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence. It is absolutely clear that 'if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it"' (Hernandez v Bethel United Methodist Church of NY, 49 AD3d 251, 253 [1st Dept 2008], quoting Blake v Neighborhood Hous. Servs. ofN Y, 1 NY3d at 290). :Where "the owner or contractor fails to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause, of plaintiffs injury, the negligence, if any, of the injured worker is of no consequence [internal quotation marks and citations omitted]" (Tavare'z v Weissman, 297 AD2d 245, 247 [1st Dept 2002]; see Ranieri v Holt Constr. Corp., 33 AD3d 425, 425 [1st Dept 2006] [Court found that the failure to supply plaintiff with a properly i secured)adder or any safety devices was a proximate cause of his fall, and there was "no reasonable view of the evidence to support defendants' contention that plaintiff was the sole proximate cause of his injur(ies)"]). 1 · In addition, defendant has not demonstrated that this is a case of a recalcitrant worker by demonstrating that plaintiff was specifically instructed to use any safety device and refused to do so I (see Kosavick v Tishman Cons tr. Corp. of NY, 50 AD3d 287, 288 [1st Dept 2008]; Olszewski v Park Terrace Gardens, 306 AD2d 128, 128-129 [1st Dept 2003]; Morrison v City ofNew York, 306 '· ' AD2d 86, 86-87 [1st Dept 2003]; Crespo v Triad, Inc., 294 AD2d 145, 147 [!5 Dept2002]). In 1 11 12 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 12] NYSCEF DOC. NO. 96 additio~,''[t]here INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 is no evidence in the record that [plaintiff] knew where to find the safety devices . ' .. or th~t he was expected to use them" (Gallagher v New York Post, 14 NY3d 83, 88 [2010]). Thus, plaintiff is entitled to partial summary judgment in his favor as to liability on the Labor Law§ 240 (1) claim against Merchandise, and Merchandise is not entitled to dismissal of said claim against it. Importantly, Labor Law§ 240 (1) "is designed to protect workers from gravity-related hazards ... and must be liberally construed to accomplish the purpose for which it was framed [internal citations omitted]" (Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2diDept 2006]). The court has considered Merchandise's contentions in regarding this issue, and finds them to be without merit. ' The Labor Law§ 240 (3) Claim Plaintiff also moves for partial summary judgment in his favor as to liability on the Labor Law § 240 (3) claim against Merchandise, and Merchandise moves for dismissal of the same. "Labor ~aw§ 240 [1] states when and by whom devices must be provided and then details in subdivisions (2) and (3) more specific requirements when working at an elevated height" (Bryant v General Elec. Co., 221 AD2d 687, 689 [3rd Dept 1995]). Labor Law§ 240 (3) provides that "[a]ll scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon when in use." Here, as Merchandise did not oppose that part of plaintiffs motion seeking summary judgment in his favor on the Labor Law§ 240 (3) claim, this part of plaintiffs motion is granted. In addition, as Merchandise made no arguments in its cross motion in support of dismissal of the Labor Law§ 240 (3) claim as against it, this branch of Merchandise's cross motion is denied. 12 13 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 13] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 The La~or Law§ 241 (6) Claim .r1aintiff moves for partial summary judgment in his favor as to liability on the Labor Law § 241 (6) Claim against defendant, and Merchandise moves for dismissal of the same. Labor Law§ 241 (6)provides, in pertinent part, as follows: "All contractors and owners and their agents ... when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: (6) *** All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped ... as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places." Labor Law§ 241 (6) imposes a nondelegable duty on "owners and contractors to 'provide reasonable and adequate protection and safety' for workers" (see Ross v Curtis-Palmer HydroElec. Co., 81 NY2d at 501-502). However, Labor Law§ 241 (6) is not self-executing, and in order to show a violation of this statute, and withstand a defendant's motion for summary judgment, it 1 must be shown that the defendant violated a specific, applicable, implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (id.). Although plaintiff lists multiple violations of the Industrial Code in the bill of particulars, with the exception of Industrial Code sections 23-1.5 (c) {1) and (2) and 23-5.1 (c), plaintiff does not address those alleged Industrial Code violations in his motion or in opposition to Merchandise's cross motion, and, thus, they are deemed abandoned (see Genovese v Gambino, 309 i AD2d 832, 833 [2d Dept 2003] [where plaintiff did not oppose that branch of defendant's 13 14 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 14] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 summahr judgment motion dismissing the wrongful termination cause of action, his claim that he was wrongfully terminated was deemed abandoned]; Musillo v Marist Coll., 306 AD2d 782, 783 n [3d Dept 2003]). As such, Merchandise is entitled to summary judgment dismissing those parts of .f plaintifP s Labor Law § 241 (6) claim predicated on those abandoned provisions. Industrial Code 12 NYCRR 23-1.5 (c) (1) and (2) Industrial Code section 23-1.5 (c) (1) and (2) state: "(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 safety support the loads intended to be imposed thereon." Industrial Code sections 23-1.5 (c) (1) and (2) have been found to be not sufficiently specific to support a Labor Law§ 241 (6) claim (see Gasques v State of New York, 15 NY3d 869, 870 [2010]; Sajid v Tribeca N Assoc. L.P., 20 AD3d 301, 302 [1st Dept 2005]; Sihly v New York City Tr. Auth., 282 AD2d 337, 337 [1st Dept 2001]; Williams v White Haven Mem. Park, 227 AD2d 923, 923 [4th Dept 1996]; Vernieri v Empire Realty Co., 219 AD2d 593, 598 [2d Dept 1995]). Thus, plaintiff is not entitled to summary judgment in his favor on that part of the Labor Law§ 241 (6) claim predicated on these alleged provisions, and Merchandise is entitled to dismis~al of the same. Industrial Code 12 NYCRR 23-5.1 (c) Industrial Code 12 NYCRR 23-5.1 (c) states that "all scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon when in use." As section 23-5.1 (c) is not sufficiently specific to support a Labor Law§ 241 (6) claim 14 15 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 15] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 (see Macedo v JD. Posillico, Inc., 68 AD3d 508, 510 [1st Dept 2009]; Greaves v Obayashi Corp., 55 AD3d 409, 410 [1st Dept 2008]), plaintiff is not entitled to summary judgment in his favor on I that part of the Labor Law§ 241 (6) claim predicated on this alleged provision. In addition, Merchandise is entitled to dismissal of the same. The Common-Law Negligence and Labor Law § 200 Claims In their separate motions, Merchandise and GCJ move for dismissal of the common-law negligence and Labor Law§ 200 claims against them. Labor Law§ 200 is a '"codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work' [citation omitted]" (Cruz v Toscano, 269 AD2d 122, 122 [1st Dept 2000]; see also Russin v Louis N Picciano & Son, 54 NY2d at 316-317). Labor Law § 200 (1) states, in pertinent part, as follows: "1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipnient, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons." There are two distinct standards applicable to section 200 cases, depending on the kind of situation involved: when the accident is the result of the means and methods used by the contractor to do its work, and when the accident is the result of a dangerous condition (see McLeod v Corporation of Presiding Bishop of Church ofJesus Christ of Latter Day Sts., 41 AD3d 796, 797798 [2d Dept 2007]). "Where an existing defect or dangerous condition caused the injury, liability [under Labor Law § 200] attaches if the owner or general contractor created the condition or had actual or 15 16 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 16] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 constructive notice of it" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 144 (Pt Dept 2012); Murphy v Columbia Univ., 4 AD3d 200, 202 [1st Dept 2004] [to support a finding of a Labor Law § 200 violation, it was not necessary to prove general contractor's supervision and controf over plaintiffs work, because the injury arose from the condition of the work place created by or known to contractor, rather than the method of the work]). It is well settled that, in order to find an owner or his agent liable under Labor Law § 200 for defects or dangers arising from a subcontractor's methods or materials, it must be shown that the owner or agent exercised some supervisory control over the injury-producing work (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993] [no Labor Law§ 200 liability where the plaintiffs injury was caused by lifting a beam and there was no evidence that the defendant exercis~d supervisory control or had any input into how the beam was to be moved]). Moreover, "general supervisory control is insufficient to impute liability pursuant to Labor Law § 200, which liability requires actual supervisory control or input into how the work is performed" (Hughes v Tishman Constr. Corp., 40 AD3d 305, 311 [1st Dept 2007]; see also Bedna;czyk v Vornado Realty Trust, 63 AD3d 427, 428 [1st Dept 2009] [Court dismissed commonlaw negligence and Labor Law § 200 claims where the deposition testimony established that, while the defendant's "employees inspected the work and had the authority to stop it in the event they observed dangerous conditions or procedures,'' they "did not otherwise exercise supervisory control over the work"]; Burkoski v Structure Tone, Inc., 40 AD3d 378, 381 [1st Dept 2007] [no Labor Law § 200 liability where the defendant construction manager did not tell subcontractor or its employees how to perform subcontractor's work]; Smith v 499 Fashion Tower, LLC, 38 AD3d 523, 524-525 [2d Dept 2007]). 16 17 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 17] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 !Here, it is alleged that the accident was caused due to both the faulty installation of the ! tent's ~inyl roof, as well as''plaintiff s decision to walk across the roof to get to the other side, ·~ - rather then use a ladder and walk around to the other side. Therefore, plaintiff was injured, not ¥ . becaus~ of any inherently dangerous condition of the property itself, but rather, because of "'a defect in the subcontractor's own plant, tools and methods, or through negligent acts of the i subcontractor occurring as a detail ofthe work"' (Lombardi v Stout, 178 AD2d 208, 210 [l st Dept 1991], pffd as mod 80 NY2d 290 [1992], quoting Persichilli v Triborough Bridge & Tunnel Auth., 16NY2d136, 145 [l965];Dalanna v City of New York, 308 AD2d 400, 400 [l51 Dept2003] [Court determined that the protruding bolt in the concrete slab that the plaintiff tripped on was not a defect inherent in the property, but instead, it was the result of the manner in which the plaintiffs employer performed its work]). 'Therefore, in order to find Merchandise and GCJ liable under common-law negligence and Labor Law § 200 theories, it must be shown that they exercised some supervisory control over the manner in which plaintiff performed the subject work. That said, "[t]he evidence fails to raise a triable issue of fact that [these defendants J supervised or controlled plaintiffs work at the construction site, caused or created the dangerous condition, or had actual or constructive notice of the unsafe condition of which plaintiff complains" (Arrasti v HRH Constr. LLC, 60 AD3d 582, 583 [1~1 Dept 2009] [citation omitted]). Thus, GCJ and Merchandise are entitled to dismissal of the common-law negligence and Labor Law § 200 claims against them. CONCLUSION AND ORDER For the foregoing reasons, it is hereby 17 18 of 19 [*FILED: NEW YORK COUNTY CLERK 06/19/2017 03:21 PM 18] NYSCEF DOC. NO. 96 INDEX NO. 157806/2014 RECEIVED NYSCEF: 06/19/2017 .ORDERED that plaintiff Luis Castro, Jr.'s motion (motion sequence number 003), pursuant to CPLR 3212, for summ·ary judgment in his favor as to liability on the Labor Law§§ 240 ( 1) and (3) claims against defendant Merchandise Mart Properties, Inc. (Merchandise) is granted, and the motion is otherwise denied; and it is further ORDERED that defendant GCJ Consulting A Series ofGCJ Management, LLC (GCJ)'s motion (motion sequence number 004), pursuant to CPLR 3212, for summary judgment 4ismissing the complaint and all cross claims against it is granted, and the complaint and cross claims are dismissed as against GCJ with costs and disbursements to GCJ as taxed by the Clerk of Court, and the Clerk is directed to enter judgment iri favor of GCJ; and it is further ·ORDERED that the action is severed and continued as against the remaining defendants; and it i's further ·ORDERED that the part of Merchandise's cross motion, pursu~nt to CPLR 3212, for summchy judgment dismissing the com'mon-law negligence and Labor Law§§ 200 and 241 (6) claims against it is granted, and these claims are dismissed as against this defendant, and the motion is otherwise denied; and it is further ORDERED that the action shall continue. Dated: ENTER: J.S.C. 18 19 of 19

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