Carranza v JCL Homes, Inc.

[*1] Carranza v JCL Homes, Inc. 2019 NY Slip Op 51769(U) Decided on October 24, 2019 Supreme Court, Suffolk County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 24, 2019
Supreme Court, Suffolk County

Ronal Carranza, Plaintiff,

against

JCL Homes, Inc. and SHORE MANAGEMENT CONSTRUCTION CORP., Defendants.



615179/2017



Parker & Waichman, Esqs.

6 Harbor Park Drive

Port Washington, NY 11050

For Plaintiff

James G. Misiano, Esq.

130 Third Ave

Brentwood, NY 11717

Defendant
Carmen Victoria St. George, J.

The following numbered papers were read upon this motion:

Notice of Motion/Order to Show Cause 17-24; 28-38

Answering Papers 27; 46-47

Reply 44-45; 48

Briefs: Plaintiff's/Petitioner's

Defendant's/Respondent's

Before the Court is an action for damages allegedly arising from serious injuries sustained by plaintiff Carranza as a result of an accident while working on a renovation project which was being overseen by defendant Shore Management Construction Corp. ("Shore" or "General Contractor") at a one-family home owned by defendant JCL Homes, Inc. ("JCL" or the "Owner"; and collectively with Shore the "Defendants") and known as the subject premise 33 Byway Drive, Deer Park, County of Suffolk, State of New York.

Defendants move this Court for an Order granting summary judgment pursuant to CPLR § 3212 on plaintiff's claims of common law negligence, and violations of the Labor Law, specifically, §§ 200, 240(1) and 241(6) (Motion Sequence 001).

Plaintiff cross-moves this Court for an Order pursuant to CPLR § 3212 granting plaintiff summary judgment with respect to claims pursuant to Labor Law §§ 240(1) and 241(6), and denying Defendant's motion for summary judgment (Motion sequence 002).

Plaintiff is entitled to summary judgment in his favor on the Labor Law § 240(1) claim against Defendants as the facts of this case fall squarely into the statute. As such, on the Labor Law § 241(6) branch Defendants' motion and the plaintiff's cross-motion are denied. Finally, as to the common- law negligence and Labor Law § 200 claims, Defendants' motion is granted.

BACKGROUND

On the day of the accident, JCL owned the subject premise where the accident occurred. JCL hired Shore as a general contactor for a renovation project at the subject premise. Shore hired various subcontractors for the renovation project, including Douglas Home Remodeling ("Douglas").[FN1] Plaintiff was employed by Douglas at the time of the accident.

A. Plaintiff's Deposition Testimony

Plaintiff testified that on July 15, 2016, while working for Douglas performing a renovation at the subject premise, he was seriously injured. He testified that the serious injury was a lacerated left arm which required fifty (50) sutures.

Plaintiff testified that when he was injured he was demolishing the bathroom on the second story of the subject premise. In order to perform the demolition of the bathroom wall, Mr. Carranza testified that he stood on a three-step ladder belonging to Douglas and used a hammer to demolish the wall. Plaintiff further testified that he did not use a harness or other apparatus to suspend him in the event of a fall.

Plaintiff testified that during the demolition, the wall collapsed hitting him and the ladder from which he was performing the work. The plaintiff testified that he fell from the ladder when he was struck by the cement board and ceramic tile that made up the wall he was demolishing. The plaintiff testified that the cement board that made up the wall was "ninety-six by forty-eight approximately" and that plaintiff's head and arm were struck by the falling wall.

Plaintiff testified that the fall caused him to lose consciousness. Plaintiff further testified that after regaining consciousness, he realized he was injured, and his co-worker called for help. Plaintiff was transported via ambulance from the subject premise to Good Samaritan Hospital and was treated in the emergency room.

B. Allison Boyd's Deposition Testimony (Defendant JCL's Principal)

Boyd testified that she is the president, vice-president, treasurer and secretary of JCL an S corporation formed between 2014 to 2015. She further testified that she does not hold shareholder meetings annually. Boyd is an attorney.

Boyd testified that in February of 2016 JCL purchased the subject premise from an estate as an investment. She further testified that after settling outstanding issues related to the subject premise JCL undertook a renovation project in order to resell the subject premise for a profit. Boyd stated that the subject premise is a single-family, two story home with a basement.

Boyd further testified that JCL hired Shore as a general contractor for the renovation which entailed a gut renovation, and that Shore was responsible for job site safety and hiring subcontractors. Boyd testified that she did not approve, coordinate or pay subcontractors. Boyd testified that there was no written contract between JCL and Shore. Boyd testified that an oral agreement existed between JCL and Shore, and that Shore had emailed her an estimate for the project.

Boyd went on to testify that she was never on site for any portion of the renovation. She further testified that she did not acquire the subject premise with the intent to live there or that she actually did live there. Boyd testified that she did not witness the accident and only became aware of it when she was served with a Summons and Complaint in the instant action. After discussing the accident with Shore, she discussed the accident with an insurance broker on JCL's builder's risk policy and was told such accidents were not covered.

C. Chris Garthaffner Deposition Testimony (Defendant Shore's Principal)

Mr. Garthaffner testified that Shore is a construction management company that holds a Suffolk County Home Improvement License and was hired as a general contractor by JCL to renovate the subject premise. Mr. Garthaffner testified that Shore was formed eight years ago and that he is the president, vice-president, treasurer, and secretary of the corporation. Unlike JCL, Shore holds annual shareholder meetings.

Garthaffner further testified that Shore had no ownership interest in the property and began doing work at the subject property in July of 2016. He testified that there was no written contract but rather an estimate, and that the estimate did not set out the terms of the agreement to do work.

Mr. Garthaffner testified that he had hired Douglas as a subcontractor on the job to perform "interior work and some siding and the roof." Shore did not enter into a written agreement with Douglas. There were five other subcontractors in addition to Douglas, Shore was responsible for coordinating them all.

He testified that each subcontractor was responsible for job site safety, however, he oversees everyone who "comes to the job." He further testified that meant he "hire[d] them and ma[d]e sure they do their jobs." He testified that he did not oversee employees of subcontractors, but rather the subcontractors did and in the case of Douglas that is Douglas Ardon.

Mr. Garthaffner testified that neither he nor anyone on behalf of Shore was on the job site the day of the accident. However, Garthaffner later testified that "[y]eah. I was there in the morning of" July 15, 2016.

Garthaffner testified that he did not hold any site safety meeting or toolbox talks. He further testified that he never discussed job site safety with Douglas Ardon, but, that "[e]veryone knows we're supposed to work safely and everyone's aware of safety precautions taken." Garthaffner testified that he never spoke to Douglas Ardon or the plaintiff about ladder safety.

He testified further that he had no specific prescription against using ladders in the demolition of the bathroom. That Shore did not provide safety harnesses and that the walls to be demolished were ten feet high. Finally, Garthaffner admitted that there were no scaffolds or baker's scaffolds available at the site.

D. Procedural History

Plaintiff commenced the instant action by service of a Summons and Verified Complaint on August 4, 2017. Defendants joined issue on October 27, 2017 by service of a Verified [*2]Answer.

With the instant motion and cross-motion Defendants and plaintiff submit the deposition testimony of plaintiff and Defendants' principals, Allison Boyd of JCL and Chris Garthaffner of Shore. Both parties also submit the pleadings and plaintiff additionally submitted the Bill of Particulars, pictures of the bathroom after the fall, and a "Supplemental Verified Bill of Particulars." The Defendants note that "[a] party may 'supplement' a bill of particulars only by adding on claims of continuing special damages and disabilities, which are not before the Court here. This modification and the Plaintiff's Bill of Particulars, considered together, amount to an amended bill, and not a supplemental one." Nonetheless, the Court will consider the exhibit in its determination of this Order and Decision (CPLR § 3042[b] [permitting an amended Bill of Particulars "once as of course" prior to the filing the Note of Issue]).

DISCUSSION

A. CPLR § 3212: Summary Judgment Legal Standard

This Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 NY2d 361 [l974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]).The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiff (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]).

The 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 eliminate any material issue of fact from the case (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once such proof has been offered the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form and "must show facts sufficient to require a trial of any issue of fact" (CPLR § 3212[b]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v. Barreto, 289 AD2d 557 [2d Dept 2001]; O'Neil v. Town of Fishkill, 134 AD2d 487 [2d Dept 1987]).

B. Labor Law § 240(1) Claim

Essentially Labor Law § 240 (1) is a New York State workplace safety law designed to provide safety protection to workers performing construction, demolition or repair work involving any building or structure. The Defendants herein, move for summary judgment dismissing the Labor Law § 240 (1) claim. Plaintiff cross-moves for summary judgment in his favor as to liability on said claim. Labor Law § 240 (1), also known as the Scaffold Law, which, in pertinent part provides:

"All contractors and owners and their agents . . . [involved] 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 [*3]a person so employed."

"'Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold . . . or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). 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" (Valensisi v. Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2d Dept 2006] [internal citations omitted]).

Not every worker who falls at a construction site is afforded the protections of Labor Law § 240 (1), and "a distinction must be made between those accidents caused by the failure to provide a safety device . . . and those caused by general hazards specific to a workplace" (Makarius v. Port Auth. of NY & N. J., 76 AD3d 805, 807 [1st Dept 2010]). Instead, 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]). Therefore, to prevail on a section 240 (1) claim, a plaintiff must show that the statute was violated, and that this violation was a proximate cause of the plaintiff's injuries (Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]).

1. One-Family Exception

Labor Law § 240 (1) imposes nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of worker engaged in various construction-related activities (see Ross v. Curtis-Palmer Hydro Elec. Co., 81 NY2d 494, 500 [2009]). Although the Legislature has carved out an exemption for the "owners of one and two-family dwellings who contract for but do not direct or control the work" (Labor Law § 240 [1]), this exemption does not apply to owners who use their residences "purely for commercial purposes" (Lombardi v. Stout, 80 NY2d 290, 296 [2000]). The availability of the exemption hinges upon "the site and the purpose of the work, a test which must be employed on the basis of the homeowners' intentions at the time of the injury underlying the action (see Davis v. Maloney, 49 AD3d 385, 386 [2008]).

Here, with regard to the Labor Law § 240 (1) claim, plaintiff submits an excerpt from defendant's examination before trial testimony wherein, when questioned regarding her plans for the residence, indicated she intended it as an "investment." As renovating a residence for resale or rental plainly qualifies as work being performed for a commercial purpose (see Morgan v. Rosselli, 23 AD3d at 356-357, supra), it was incumbent upon defendant, as the party that could seek shelter under the exemption, to come forward with an affidavit or other proof clarifying or qualifying his plans for the property at the time of plaintiff's accident (see Lomabrdi v. Stout, 80 NY2d at 297, supra), thereby raising a question of fact in this regard (see e.g. Lomabrdi v. Stout, 80 NY2d at 297, supra ). This she failed to do. Accordingly, and in light of the fact that the record otherwise demonstrates, any argument seeking this exemption is unavailing.

2. Defendants' Motion

Defendants establish, prima facie, their entitlement to summary judgment concerning the Labor Law § 240 (1) claim.

In order for a defendant to be successful on a motion of summary judgment in a Labor Law § 240 (1) claim they must either show the statute was not violated, and that the violation was not the proximate cause of the plaintiff's injuries. "[T]here can be no liability under section 240 (1) where there is no violation and the worker's actions . . . are the sole proximate cause of the accident" (Blake v. Neighborhood Hous. Servs. Of NY City, 1 NY3d 280, 290 [2003]; [*4]Robinson v. East Med. Ctr., LP,6 NY3d 550, 554 [2006] [where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability under Labor Law § 240 (1)]).

Defendants' arguments that Labor Law § 240 (1) does not apply to the facts of this case are unavailing. A ladder is one of the enumerated devices in the statute and demolition is one of the contemplated hazards (Labor Law § 240 [1]; Narducci, 96 NY2d 259, supra). While working on the ladder the plaintiff's testimony puts him at a height of three feet (Valensisi, 33 AD3d 693, supra), and when the wall struck the ladder it was inadequate to keep him safe (Ross, 81 NY2d 494, supra). As a result, plaintiff fell to the floor below him and he lacerated his arm (Cahill, 4 NY3d 35, supra). Despite further argument that the defendant owner JCL and defendant contractor Shore are not responsible for the work site safety, the statute holds them absolutely liable for any breach of the statute if the job was performed by an independent contractor over which they exercised control (McCarthy v. Turner Constr., Inc., 17 NY3d 367, 374 [2011]). Argument that contractual language, or lack thereof, would hold harmless the Defendants misses the mark. If that were the case, owners and general contractors, could evade Labor Law § 240 (1) liability simply by inserting such language into a contract. This, in turn would vitiate the impact of the statute. This case falls squarely into Labor Law § 240 (1) purview.

To prevail on a cause of action alleging a violation of Labor Law § 240(1) in a "'falling object' case, the injured worker must demonstrate the existence of a hazard contemplated under that statute 'and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein'" (Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662 [2014], quoting Narducci v. Manhasset Bay Assoc., 96 NY2d at 267, supra). This requires a showing that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking (see Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 NY3d at 662—663, supra; Outar v. City of New York, 5 NY3d 731 [2005]; Narducci v. Manhasset Bay Assoc., 96 NY2d at 268, supra). Labor Law § 240(1) "does not automatically apply simply because an object fell and injured a worker" (Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 NY3d at 663, supra). Here, Defendants made a prima facie showing of their entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action insofar as asserted against them by demonstrating that the cement board was not an object being hoisted or an object that required securing for the purposes of the undertaking, and that the cement board did not fall because of the absence or inadequacy of an enumerated safety device (see Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 NY3d at 663, supra; Narducci v. Manhasset Bay Assoc., 96 NY2d at 268, supra; Berman—Rey v. Gomez, 153 AD3d 653, 655 [2d Dept 2018]; Seales v. Trident Structural Corp., 142 AD3d 1153, 1156 [2d Dept 2016]; Vatavuk v. Genting NY, LLC, 142 AD3d 989, 990 [2d Dept 2016]). Quite to the contrary it was the purpose of the work to demolish the cement board. In opposition to this prima facie showing, plaintiff failed to raise a triable issue of fact.

Thus, Defendants are entitled to summary judgment dismissing the Labor Law § 240 (1) claim against them.

3. Plaintiff's Cross-Motion

Here, the plaintiff has failed to establish his entitlement to summary judgment in his favor on the Labor Law § 240 (1) claim against Defendants. Here, the plaintiffs fail to demonstrate, prima facie, that the subject ladder was an inadequate safety device for the work in which the plaintiff was engaged at the time of the alleged accident (see Estevez-Rivas v. W2001Z/15CPW Realty, LLC, 104 AD3d 802, 803 [2d Dept 2014]; Melchor v. Singh, 90 AD3d 866, 868 [2d Dept 2012]; Harris v. Eastman Kodak Co., 83 AD3d 1563, 1564 [2d Dept 2011]). The mere fact that the plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided (see Blake v. Neighborhood Hous. Servs. Of NY City, 1 NY3d at 288, supra; Singh v. City of New York, 113 AD3d 605, 606 [2d Dept 2014]; Delahaye v. Saint Anns [*5]School, 40 AD3d 679, 682 [2d Dept 2007]). No evidence provided establishes that the ladder that was provided was an inadequate safety device. Plaintiff's cross motion for summary judgment pursuant to Labor Law § 240 (1) is denied.

C. Labor Law § 241(6) Claim

The Defendants move for summary judgment dismissing the Labor Law § 241 (6) claim. Plaintiff cross-moves for summary judgment in his favor as to liability on said claim. 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 of reasonable care upon owners and contractors "'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]; see also Ross, 81 NY2d at 501—502). Importantly, to sustain a Labor Law § 241 (6) claim, it must be shown that the defendant violated a specific, "concrete" implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (Ross, 81 NY2d at 505). Such violation must be a proximate cause of the plaintiff's injuries (Annicaro v. Corporate Suites, Inc., 98 AD3d 542, 544 [2d Dept 2012]).

Plaintiff lists a single violation of the Industrial Code in the "Supplemental Verified Bill of Particulars" as NYCRR § 23-3.3(c). That section of the Industrial Code provides in pertinent part "[i]nspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means."

As Labor Law § 241(6) is not self-executing, a plaintiff must set forth a specific violation of a rule or regulation promulgated pursuant to it (see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 11-12 [2011]). A regulation that merely recites common-law safety principles is insufficient (see St. Louis v. Town of N. Elba, 16 NY3d 411, 414 [2011]). The alleged regulation here sufficiently mandates a distinct standard of conduct to support a Labor Law § 241(6) clam (see Wilinski, 18 NY3d at 12-13, supra [upholding claim based in part on 12 NYCRR § 23-3.3[c]]).

1. Defendants' Motion

In support of their motion Defendants submit the deposition testimony of the plaintiff and that of the Defendants' principals.

Under the circumstances presented, the Defendants fail to demonstrate, prima facie, their entitlement to summary judgment. The Court has already determined that this regulation is applicable to the facts of the case, and that it is undisputed the regulation would be violated for failing to inspect the project. Therefore, the sole remaining path for Defendants' summary judgment application is whether the alleged violation of these regulation was the sole proximate cause of the accident (see Simmons v. City of New York, 165 AD3d 725, 729 [2d Dept 2018]).

Defendants failed to establish, prima facie, that the hazard which allegedly caused the accident arose from the actual performance of the work and not the structural instability caused by the progress of the demolition (see Sierzputowski v. City of New York, 14 AD3d 606, 607 [2d Dept 2005]; Bald v. Westfield Academy & Cent. School, 298 AD2d 881, 882 [4th Dept 2002]). In Ortega v. Everest Realty LLC (84 AD3d 542 [1st Dept 2011]), the plaintiff was injured when the wall of an aluminum shed fell on him as he was sawing through it. The First Department found that, if the plaintiff could demonstrate at trial that the wall fell as a result of structural instability during the demolition, the plaintiff could go forward with his section 241 (6) claim based on violations of the NYCRR § 23-3.3(c) (Ortega, 84 AD3d at 545, supra). In that case, there was no dispute that the defendants had failed to make any inspections, and the First Department determined that the required inspections and shoring might have protected the plaintiff from the hazard of a wall weakened by the progress of the demolition.

Accordingly, the Labor Law § 241(6) branch of Defendants motion for summary judgment is denied.

2. Plaintiff's Cross-Motion

Similarly, in support of his motion plaintiff submits the deposition testimony of all the parties. Just as with the Defendants, the submitted deposition testimony fails to establish prima facie, that the hazard which allegedly caused the accident arose from the actual performance of the work and not the structural instability caused by the progress of the demolition (see Vega v. Renaissance 632 Broadway, 103 AD3d 883, 885 [2d Dept 2013]; Garcia v. 225 E. 57th St. Owners Inc., 96 AD3d 88, 92-93 [1st Dept 2012]; Campoverde v. Bruckner Plaza Assoc., L.P., 50 AD3d 836, 837 [2d Dept 2008]). Accordingly, plaintiff's cross-motion for summary judgment as to liability on this Labor Law § 241(6) claim is also denied.

The Second Department's determination in Smith v. New York City Hous. Auth. (71 AD3d 985 [2010]), found that NYCRR § 23-3.3(c) did not apply to plaintiff's claim because the hazard that caused the injury was the result of the performance of the demolition work, and not from structural instability caused by the progress of demolition. On the testimony submitted by the plaintiff in the instant case, whether the hazard was the result of the performance of the demolition work or the result of structural instability caused by the progress of demolition cannot be determined.

Therefore, plaintiff's motion for summary judgment as to liability on this claim is similarly denied.

D. Labor Law § 200 and Common Law Negligence Claims

The Defendants further move for summary judgment dismissing the common-law negligence and Labor Law § 200 claims. Plaintiff opposes the motion but does not cross-move for summary judgment as to liability on these claims. 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 (Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). Labor Law § 200 (1) states, in pertinent part, as follows, "[a]ll places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, 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: (1) when the accident is the result of the means and methods used by a contractor to do its work, and (2) when the accident is the result of a dangerous condition that is [*6]inherent in the premises (see McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 797-798 [2d Dept 2007]; see also Griffin v. New York City Tr. Auth., 16 AD3d 202, 202 [1st Dept 2005]). "Under either liability standard, the common-law duty of the owner to provide a safe place to work, as codified by Labor Law § 200 (1), has also been extended to include the tools and appliances without which the work cannot be performed and completed" (Chowdhury v. Rodriguez, 57 AD3d 121, 128-129 [2d Dept 2008]).

Under section 200, an owner, its agent, or the general contractor may not be liable "where the accident arises out of a defect in the subcontractor's tools, equipment, or methods of operation" (Vilardi v. Berley, 201 AD2d 641, 644 [2d Dept 1994]; see also Ortega v. Puccia, 57 AD3d 54, 62 [2d Dept 2008], citing Persichilli v. Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145 [1965] ["the duty to provide a safe place to work is not breached when the injury arises out of a defect in the subcontractor's own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work"]). "When a defendant lends allegedly dangerous or defective equipment to a worker that causes injury during its use, in moving for summary judgment that defendant must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition" (Lam v Sky Realty, Inc., 142 AD3d 1137, 1138—39 [2d Dept 2016]). However, where "a worker's injury results from his or her employer's own tools or methods, . . . a defendant . . . [would] be liable only if possessed of authority to supervise or control the work" (Chowdhury v. Rodriguez, 57 AD3d at 130).

Here, plaintiff's accident is the result of an improperly secured ladder that fell when both the plaintiff and the ladder were struck by a falling cement board during the demolition project. Accordingly, the accident was caused by the means and methods of the work at the project — i.e., the manner that the ladder was installed and maintained. There is no evidence in the record that Defendants supervised or controlled the operation or the installation or maintenance of the ladder. In opposition, plaintiff does not raise a question of fact that would preclude summary judgment on this issue.

Thus, Defendants are entitled to summary judgment dismissing the common-law negligence and Labor Law § 200 claims as against them.

CONCLUSION

Defendants are entitled to summary judgment in their favor on the Labor Law § 240(1) claim. Furthermore, on the Labor Law § 241(6) branch Defendants' motion and the plaintiff's cross-motion are denied. Finally, as to the common- law negligence and Labor Law § 200 claims, Defendants' motion is granted.

Upon the foregoing; it is

ORDERED that Defendants' motion seeking summary judgment as to plaintiff's Labor Law § 241(6) claims are denied and that Defendants' summary judgment motion as to the plaintiff's Labor Law §§ 240(1); 200 and common law negligence claims is granted insofar as detailed above; and it is further,

ORDERED that plaintiff's cross-motion is denied insofar as to the Labor Law §§ 241(6) and 240(1) claims for liability; and it is further,

ORDERED that the parties appear for a conference before this Court on November 25, 2019.

The foregoing constitutes the decision of this Court.

Dated:

October 24, 2019

Riverhead, NY

CARMEN VICTORIA ST. GEORGE, J.S.C.

FINAL DISPOSITION [ ] NON-FINAL DISPOSITION [ X ] Footnotes

Footnote 1: The plaintiff at his deposition referred to the subcontractor simply as "Douglas." The Court takes this to mean Douglas Home Remodeling.