Moura v P & I Constr. Corp.

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Moura v P & I Constr. Corp. 2020 NY Slip Op 34700(U) June 11, 2020 Supreme Court, Putnam County Docket Number: Index No. 500091/2019 Judge: Victor G. Grossman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 To commence the 30 day statutory time period for appeals as of right (CPU{ 55l3lal). you are advised to serve a copy of this order, with notice of entry, upon all parties SUPREME COCRT OF THE STATE OF NEW YORK COUNTY OF PUTNAM -------------------------------------------------------------------X AVELINO MOL RA and CATIIY TOWNSEND. DECISION & ORDER Plaintiffs, Index No. 500091/2019 Sequence No. 1 J\.·1otion Date: 5/13/2020 -against P & I CONSTRUCTION CORP., Defendant. --------------------------------------------------------------------X P & I CONSTRUCTION CORP., Third Party Plaintift - against - MTNGONF DRYWALL CO., INC., Third Party Defendant. ---------------------------------------------------------------------X GROSSMAN I J.S.C. The following papers, numbered 1 to 34, \Vere considered in connection with Plaintiffs Avelino Moura and Cathy Townsend's Amended Notice of Motion, dated April 16, 2020, seeking partial summary judgment on the issue or liahility as against Defendant P & 1 Construction Corp. 1 of 14 [*FILED: 2] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 PAPERS 1 NUMBERED Amended Notice of Motion/Affirmation in Support!rvfoura Affidavit in Support/Koester Affidavit in Support/Exhs. E, G-1, G-2, G-3, H-1, H-2, I-1, I-2, J-1, J-2/l\kmorandum of Law in Support 1-15 Affirmation in Opposition/Exhs. A-G 16-23 Tirone Reply Affirmation/Moura Supplemental Affidavit/Koester Supplemental Affidavit/Exhs. A-C/Reply Memorandum of Law 24-30 Sur-Reply to Motion/Exhs. A-C 31-34 Plaintiffs Avdino !v1oura and Cathy Tmvnsend commenced this action, which arises from an incident that occurred on June 13, 2016 on a construction site located at 3 51 Park A venue. Rye, Ne\v York. At the time, Moura was an employee of Third Party Defendant Mingone Drywall Co. Inc. ("Mingone"). While performing taping \',,'Ork to the ceiling, Moura fell from a baker's scaffold ("scaffold"), and was injured. Townsend, Moura's wife, is seeking damages for loss of consortium. On January 17, 2019, Plaintiffs commenced this action against Defendant P & I Construction Corp. ("P&r'), the general contractor of the construction job and 0\v11er of the scaffold. P& I provided the scaffold for Moura to use on the day of his accident and from which Moura fell (Affirmation in Support at i14 ). On or about March 19. 2019. P&I served its Amended Verified Answer. On April 2, 2019. P&I commenced a third-party action against J\·fingone. On or about tvfay l, 2019, Mingone served its Answer. The parties and counsel shall familiarize themselves with this Court's Part Rules, which can be found on the OCA website, as parts of this motion and the responsive papers fail to comply with those Rules, to the extent that Plaintiff shall designate exhibits by number, while Defendant shall designate exhibits by letter, and exhibit lettering or numbering shall not begin anew for subsequent papers submitted by the same party. Any future motions that do not comply Vvith this Court's Pait Rules may be rejected or dismissed. 1 2 2 of 14 [*FILED: 3] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 Upon completion of discovery, on February 18, 2020, Plaintiffs filed a Note oflssue. Plaintiffs now move for partial summary judgment on liability, stating that there are no issues of fact, and that this matter falls squarely within Labor Law§ 200, et seq., rendering P&I liable. Plaintiffs argue that P&I failed to comply with the mandated rules and regulations as stated in New York Labor Law, which would have prevented Maura's fall from the scaffold. Plaintiffs assert that the law imposes absolute liability upon P&I, as a matter of law, and as such, there are no questions of fact. Plaintiffs allege that P&I is liable under Labor Lav,'§§ 240(1), 241(6), and 200. Specifically, Plaintiffs assert that the lack of handrails on the scaffold and the general lack of safety equipment provide the basis for P&I's liability. In support of their motion, Plaintiffs proffer: (1) Avelino Moura's Affidavit; (2) James Koester, P.E.'s Affidavit; (3) Verified Bill of Particulars; (4) excerpts from Avelino Maura's deposition transcript; (5) excerpts from Salvatore lnguanti's deposition transcript; (6) excerpts from Enrico Mingone's deposition transcript; (7) Koester's report with colored photographs; and (8) an OSHA fact sheet. P&I opposes the motion, asserting that the record is replete with evidence that Maura's own conduct was the sole proximate cause of his accident and injuries. In suppori ofits opposition, P&I proffers: (I) Affidavit of Manuel Arturo Loja Pintado ("Arturo"); (2) deposition transcript of Police Officer Mauricio Gomez; (3) copy of an unsigned police report; (4) deposition transcript of EMT Melissa Cecere; (5) ambulance report; (6) excerpts from lnguanti's deposition transcript; and (7) excerpts of Moura' s deposition transcript. Plaintiffs replied to P&I's opposition, proffering Supplemental Affidavits from Moura and Koester. The Court permitted P&I to submit a sur-reply, which included, inter alia, 3 of 14 [*FILED: 4] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 additional pages ofrvfoura' s deposition transcript that \Vere not inducted in his initial moving papers. The motion was deemed fully submitted on May 13, 2020. It is axiomatic that summary judgment is a drastic remedy and should not be granted ,vhere triable issues or facts arc raised and cannot be resolved on conflicting affidavits (see lvfillerton A ~'way Coop. v Briarcl!flFarms, 17 N'Y2d 57, 61 [ 1966]; Sillman v Twentieth 0 Century-Fox Film Cm7J., 3 NY2d 395. 404 [1957]). Initially, "the proponent... must make a prima facie showing of entitlement to judgment as a matter of la\v, tendering sufficient evidence to demonstrate the absence of any material issue of fact." However, once a rnovant makes a sufficient slmwing. "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence or material issues of fact \Vhich require a trial of the action" (Alvarez v Prospect Hm.p., 68 NY2d 320,324 [ 1986]). Where the moving papers are insufficient. the comt need not consider the sufficiency of the opposing papers (id.; see also Fabbricatore v Lindenhurst Union Free School Dist., 259 AD2d 659 [2d Dept 1999 J). ''"The function of the com1 on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whdhcr such issues exist"' (Bank (?{New York Mellon v Gordon. 171 AD3d 197,201 [2d Dept 2019]. quoting Ko!ivas v Kircho,lf: 14 AD3d 493 [2d Dept 20051). "Accor<lingly. '"'[t]he court may not weigh the credibility of the afTiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feignedm (Bank ofNew York Mellon v Gordon, 171 AD3d at 201, quoting Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439,441 [1968]). •"[W]here credibility determinations are required, summary judgment must be denied"' (Bank ofNew York 4 4 of 14 [*FILED: 5] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 Mellon v Gordon, 171 ADJd at 201-202, quoting People ex rel. Cuomo v Greenberg, 95 AD3d 474,483 ll'1 Dept 2012], a.f('d21 NY3d 439 [2013]). Labor Law § 240 '"Labor L..nv § 240( 1) imposes a nondelegahle duty fand absolute liability] upon owners and general contractors and their agents to provide safety devices necessary to protect workers from risks inherent in dcvatccl \Vork sites"' ( Von Hegel v Brixmur Sunshine S'q .. LLC, 180 AD3d 727,728 l2d Dept 2020], quoting Caiazzo v lvfark.Joseph Contr., Inc., 119 AD3d 718,720 [2d Dept 20141). '·To prevail on a cause of action alleging a violation of Labor Law§ 240(1), a plain Ii ff must prove that the defrndant violated the statute and that suc:h violation was a proximate cause of his or her injuries'' ( Von Hegel v Brixmor Sunshine Square. LLC, 180 AD3d at 729; see Blake v Neighborhood H<ms. Servs. ofN. Y City, 1 NYJd 280, 290 [2003]). ''Where there is no statutory violation, or \vherc the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Lav,, § 240(1 )" ( Von Hegel v Brixmor Sunshine Square, LLC, 180 /\D3d at 729 [emphasis added],· see Blake v 1Veighhorhood Housing Services of'New York Ci(v Inc., l NY3d ut 290 ). "'[\\/lhcre an accident is caused by a violation of the statute, the plaintiffs own negligence docs not furnish a defense"' ( Von Hegel v Brixmor Sunshine Square, LLC, 180 AD3d at 729, quoting Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 l2004]). "It is still necessary, ho,vever, for the plaintiff to show that the statute was violated and that the violation proximately caused his injury" (Cahill v Trihorough Bric~ge & Tunnel Auth, 4 NY3d at 39 [emphasis addedl). As a threshold matter. it is undisputed that this case involves an elevation diftercntial, 5 5 of 14 [*FILED: 6] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 placing it squarely \Vithin a Labor La\v ~ 240 analysis (sec JVi!inski v 334 E. 92'"1 Haus. Dev. Fund Corp., 18 NY3d 1, 7 [2011 J). Turning to the issue of proximate cause, it is clear from the record that there is a question of fact as to whether ['vloura vvas the sole proximate cause of his accident. Moura disputes that the scaffold tipped over. He argues that had there been railings. he would not have fallen off the scaffold. ]\,foura insists that the scaffold \1v·obbkd, causing him to fall off. and points to his own deposition testimony and affidavit in support of that position (I\,-loura EBT at 85-86 ). Ile insists that his ''foll from the scaffold occurred because it was unstable and 'wiggled'; and it did not have safety railings on it to keep me safe and prevent me from falling from the platform" (Moura Supp. Af1Idavit at •:6 ). He denies trying to move the scaffold while standing on it (Moura Supp. Affidavit at ,r7). His boss, Mingone, testified that Moura told him that "he ,vas reaching* * * to tap a scre,v. and the next thing he knew he was on the floor'' (Mingone EBT at 44), but Mingonc admitted that Moura did not tell him ,vhat caused him to fall (Mingone EBT at 45). Moura denied that the scaffold fell over (:t-.foura EBT at 87). In response, P&l proffers evidence that tv1oura admitted he moved the scaffold while standing on it. Specifically, P&I points to Officer Gomez·s deposition testimony in which he states that ivfoura told him, at the S(.;ene, that he was trying to move the scaffold \Vithout descending from it, causing himself to fall (Gomez EBT at 27-28, 34-36, 38). In addition, EMT Cecere also te!)tified that \\hen she arrived on the scene. Mourn admitted he moved the scaffold while standing on it, lost his balance, and fell off (Cecere EBT at 23-24, 31-32) (see Scott v. Kass, 48 AD3d 785 [2d Dept 2008][statements made to police officer who prepared report was acting in scope of his duty in recording defendant's statement and statement admissible as 6 6 of 14 [*FILED: 7] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 admission of pmty]). Furtbern1ore, Arturo, one of P&I's employees who \vas working at the job site that day, attested in his affidavit that he heard a ·'loud sound come from the room where" Moura was \-Vorking, "immediately \Vent into the room'' and found T'v1oura lying on the floor next to the scaffold. v,hich was "completely tipped over and laying on its side next to" Moura (Arturo Affidavit at~[~ 4-5). Arturo also affirmed that earlier that same day, he had seen Moura "moving the Baker scaffold around the room \vhilc he \\·as standing on the scaffold platfom1 * * * several times that morning with the last time being approx. 15 minutes before the accident" (Arturo Affidavit at iJ6). lnguanti, the owner of P&L testified that when he arrived on the scene after being notified about the accident, rvioura told him that he "v,:as moving the scaffolding," but he could not recall \vhether :t\foura lold him that the scaffold moved and that was why he fell (Ingua.nti EBT at 69). Finally, Moura admitted that he did not look to see if the scaffold fell over or remained standing after he fell (l\.1oura FBT at 97-98). 2 According to this evidence, the Com1 finds that there is an issue of fact as to \11:hether iv1oura was the sole proximate cause of the accident and denies Plaintiffs' summary judgment on this cause of action. The Comi declines to follow Brite:: v .Madison Park Owner, LLC (36 Misc3d 1233[A] [Sup Ct, NY County 2012]), as it is not controlling and is distinguishable. In Britez, the plaintiff fell from the baker's scaffold under i.::ithcr scenario put fotih by the parties. In the instant case, however, there is a question of fact as to whether Plaintiff was inj urcd \Vhcn he fell off the scaffold (Plaintiffs' scenario), or \vhethcr Plaintiff caused the scaffold to tip over, propelling him to the ground thereby injuring him (P&rs scenario). 2The Court notes that these pages of Moura's EBT transcript \Vere only provided by Defendant in its sur-reply. Plaintiffs not only failed to proffer these pages in their moving papers, but they failed to mention these statements. 7 7 of 14 [*FILED: 8] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 Labor Law§ 241(6) ·" Labor Law § 241 (6) imposes on o\vncrs and contradors a nondelegable duty to provide reasonable and adequate protection and sakty to persons employed in, or lav,fully frequenting, all areas in which construction, excavation or demolition \Vork is being perfom1ed"' ( Graziano v Source Budrs. & C'onsu!tants, LLC, 175 AD3<l 1253. 1258 [2d Dept 2019]. quoting Perez v 286 Schul es St. Corp., 134 AD3d 1085, 1086 [2d Dept 20 I 5 l [internal quotation marks omitted]). "·To establish liability under Labor Law§ 241 (6), a plaintiff or a claimant must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case''' (Graziano v .','ource Builders & C'onsultants, LLC, 175 AD3d at 1258, quoting Aragona v State cf,Vnv York, 147 AD3d 808. 809 L2d Dept 2017]). ''Contributory and comparative negligence are valid defenses to a Labor Law§ 241(6) claim" (A.ragona v State (:f',Ve,v York, 14 7 AD3d at 809). To support this cause of action, Plaintiffs allege violations of 22 NYC RR§ 23-1.5 ("'General responsibility of employers"), 22 NYC RR § 23-1.15 ("Safety railing"), 22 NYC RR § 23-5.18 ("Manually-propelled mobile scaffolds"), as \VCII as Occupational Safety and Health Act ('-C)SHA ") regulations. As a threshold matter, alleged violations of OSHA standards do not provide a basis for liability under Labor Lavi§ 241(6) (Graziano v Source Builders & Consul/ants. LLC, 175 AD3d at 1258-1259, citing Marl v Lim Engrs., Inc., 159 AD3d 688 [2d Dept 2018]). Accordingly, the allegations related to OSHA violations are dismissed (see CPLR § 3212[b]; Goldstein v County ofSuffolk, 300 AD2d 441,442 [2d Dept 2002] [court has authority pursuant to CPLR § 3212[b] to search the record and grant summary judgment to a nonmoving party with respect to an issue 8 8 of 14 [*FILED: 9] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 that was the subject of the motion before the court]; see also Parker v 205-209 E. 5711' St. Assoc., LLC, 100 AD3d 607, 608-609 [2d Dept 2012]). Next, the thrust of Plaintiffs' argument focuses on the allegation that P&I violated 12 NYCRR § 23-5.18, and more specifically 12 NYCRR §23-5.1 S(b), by failing to provide safety railings on the subject scaffold. 12 NYCRR § 23-5.18 provides that "[t)he platform of every manually~propelled mobile scaffold" - like the one in this case - "shall be provided with a safety railing constructed and installed in compliance \\•1th this Part (rule)" (see 12 NYCRR § 235.18[b]). Plaintiffs also allege a failure to comply with 12 NYCRR § 23-1.15 ("'Safety railing"), which describes the specifications that are required \vhen railings are provided. It is undisputed that the subject scaffold did not have side rails. In response, P&I argues that this type of scaffold was exempt from having side rails. P&I relies on 12 NYCRR § 23-5.1, which is titled, "General Provisions for All Scaffolds." According to 12 NYCRR § 23-5.l(j): G) Safety railings. The open sides of all scaffold platforms, except those platforms (l) listed in the exception below, shall be provided with safety railings constructed and installed in compliance with this Part (rule). Exceptions: Any scaffold platform with an elevation of not more than seven feet * * *. Contrary to Defendant's contention. safety rails are required on manually-propelle d scaffolds without regard to height ( Vergara v SS 133 W 21, LLC, 21 AD3d 279 [l51 Dept 2005)), and this Court is bound by Vergara, as its own research did not find any cases addressing this issue from the ;\ ppellate Division, Second Department (},fountain View Coach Lines, Inc. v Storms. 102 AD2d 663. 664 [2d Dept 1984 J [doctrine of stare decisis requires trial courts in Second Department to follow precedents set by Appellate Divisions of another department until 9 9 of 14 [*FILED: 10] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 the Court of Appeals or the Supreme Court, Appellate Division, Second Department pronounces a contrary rule J). However. as discussed above, there remains a qllestion of fact as to proximate cause. Thus, the Court denies Plaintiffs' motion fr)f summary judgment based on these two regulations. To the extent Plaintiffs cite 12 NYCRR their Labor Law 241 ( 6) cause ~ 23-5. l 8(a) as the predicate violation to support or action, the Court finds that Plaintiffs have failed to make out a primafacie case. 12 NYCRR § 23-5.18(a) provides that the scaffold platforms on this type of scaffold "shall be tightly planked for the full vvidtb of the scaffolds except f'or necessary access openings.'' In supp01i of this position, Plaintiffs' proffer their engineer's repo11 and aflidavit based on his inspection of the scaffold over three ye<1rs after the accident. While this in and of itself may not he disqualifying, Koestner failed to state that the scaffold's condition at the time of the inspection was the same as at the time of the accident (see general~r C'ruz v Deno 's /Yonder iVhee! Park, 297 AD2d 653 [2d Dept 2002]). huthermore, Koester' s statement in his report that the scaffold's condition \Vas in violation of this regulation \V<IS conclusory. And, although Moura stated that "the scaffold was not very tight as I noticed the two ends were not tied together," in response, lnguanti testified that he inspected the scaffold after the accident and did not find any defects in it, thereby raising a question of fact. Tn any event, there remains a question of fact regarding proximate cause (Graziano v Source Builders & Consultants, LLC. 175 ADJd at 1258. quoting Aragona v .\'tale o/New York, 147 AD3d at 809). With respect to the remaining Industrial Code alleged, Plaintiffs cite 12 NYCRR § 23-1.5 to support their position that insufficient safety protections were provided to Moura. "To support a claim under Labor Law § 241 (6), the Industrial Code Section that a plaintiff is relying upon 10 10 of 14 [*FILED: 11] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 'must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles''' (Ruwuld v Dormitory Auth. of the State of New York, 67 Misc3d 1210[A] [Sup Ct. NY County 2020]. quoting Afisicki v Caradonna, 12 NY3d 51 L 515 [2009]. citing Ross v Curlis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504-505 ll993]). ''Section 23-1.5 or the Industrial Code is entitled. ·General responsibility of employers' and has been held lo be insufficient to support a basis for a Labor Law § 24 l (6) claim" (Rav.·ald v Dormitory Auth. oft he State lJ/Nr::w York, 67 l\·fo,c3d at *8; see Guallpa v Canarsie Plaza, LLC. 144 AD3d 1088, ]091 [2d Dept 2016] [12 KYCRR § 23-1.S(b) serves to amplify other Industrial Code provisions that require a designated individual to perform or supervise work; it does not provide an implementing regulation upon w-hich to predii:ate a Labor Lav.. § 241(6) claim]). Accordingly, the Court dismisses 12 NYCRR § 23-1.5 as a basis l{)f liability. Labor Law §200 "Labor L.1\V ~ 200 is a 'codification of the common-lmv duty of an owner or general contractor to provide \vorkcrs with a safe place to \Vork'" (Graziano v Source Builders & Consultants, LLC, 175 ADJd at 1259, quoting Ortega v Puccia, 57 AD3d 54, 60 [2d Dept 20081). '"Cases involving Labor Law 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is perfrm11ed'" (Graziano v 5i'ource Builders & Consultants, LLC, 175 ADJd at 1259, quoting Orrega v Puccia, 57 AD3d at 61 ). "When, as here, a plaintiff has alleged that his injuries arose from a dangerous condition on the premises, a defendant may be liable under common law and Labor Lmv 200 if the defendant either created 11 11 of 14 [*FILED: 12] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition (Graziano r Source Builders & Consultants, LLC l 75 AD3d at 1259). Here, Plaintiffs allege that Moura sustained his injury based on the dangerous condition of the scaffold. As such, Plaintiffs must establish that P&I had actual or constructive notice of the dangerous and defective scaffold. "To provide constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy if' (,'-,'chick v B!_vdenburgh. LLC, 88 AD3d 684, 686 [2d Dept 2011 ]). Plaintiffs demonstrated that P&l had constructive notice of the decaying and/or detective scaffold. Defendant owned the scaffold. It is undisputed that it had no safety railings or toeboards. Moura also testified that he observed the tv,o ends to not be tied together and the scaffold \viggled. The scaff<)l<l was regularly used on P&Ts job sites and remained on this job site during the entire time 01· the construction. P&I's ov,n employees used it when Moura was not. Inguanti even admitted he was responsible for the scaffold and inspected it when he was on the job site (Inguanti EBT at 56). Thus. Plaintiffs established a primafacie case that P&I arc liable under Labor La,\· § 200. In response, P&l docs not specifically address the Labor Law § 200 claim. Instead, it broadly argues proximate cause throughout its opposition papers as a reason to deny PlaintilTs motion. P&I proffers evidence that the purported dangerous condition did not cause ivfoura's injury, but rather Moura· s actions in moving the scaffold \Vithout descending from it, caused it to tip over and propel him to the ground, injuring him. Simply put, regardless of whether P&I had actual or constructive notice of the purported dangerous condition, there remains a question of fact as to whether that condition caused Moura's injury (see Capellan v King Wire, Co., 19 AD3d 12 12 of 14 [*FILED: 13] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 530, 532 [2d Dept 2005] ["To impose liability for violations of the Labor Lav,; and common-law negligence, the violations must be a proximate cause of the accident.'']). As such, the Court denies Plaintiffs' motion for summary judgment as it relates to Labor Law § 200. Accordingly, it is hereby ORDERED that Plaintiffs' motion for summary judgment is denied; and it is further ORDERED that the allegations related to OSHA violations are dismissed for the reasons stated herein: and it is further ORDERED that 12 N'{CRR ~ 23-1.5 is dismissed as a basis frJr liability for the reasons stated herein; and it is further ORDERED that the pmtics and counsel arc to appear before the undersigned on Monday, June 22, 2020 at 10:00 a.m. for a pre-trial Skype conference; counsel are advised to confi1111 the scheduling with the Court due to interruptions that may persist due to the COVID-19 pandemic. The foregoing constitutes the Decision and Order of the Court. Dated: Carmel, New York June 11, 2020 13 13 of 14 [*FILED: 14] PUTNAM COUNTY CLERK 06/12/2020 10:21 AM NYSCEF DOC. NO. 83 To: INDEX NO. 500091/2019 RECEIVED NYSCEF: 06/12/2020 Anthony R. Tirone, Esq. Law Office of Anthony R. Tirone. Esq., P.C. Attorneys for Plaintiff'> 170 Hamilton A venue, Suite 300 \Vhite Plains, New York 10601 Joseph A. Orlando, Esq. O'Connor Redd LLP Attorneys for Defendant/Third Party Plaintiff P &I Construction Corp. P.O. Box 1000 242 King Street Port Chester, New York 10573 Pascual R. Semidey La\V Offices of Craig P. Curcio Attorneys for Third Party Defendant Mingonc Drywall Co., inc. 384 Crystal Run Road. Suite 202 Middletown, Nnv York I 0941 14 14 of 14

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