Prada v Murane Bldg. Contrs., Inc.

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Prada v Murane Bldg. Contrs., Inc. 2021 NY Slip Op 33092(U) November 16, 2021 Supreme Court, Queens County Docket Number: Index No. 703359/2018 Judge: Ulysses B. Leverett 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] QUEENS COUNTY CLERK 11/16/2021 02:22 PM INDEX NO. 703359/2018 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 11/16/2021 SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF QUEENS QUEENS COUNTY ----------------------------------------------------------------x ----------------------------------------------------------------)( JOSE A. PRADA, PRADA, Inde)( No.: 703359/2018 JOSE Index No.: 703359/2018 Plaintiff, Plaintiff, Motion Seq. NO.5 Motion No. 5 -against-againstMURANE BUILDING BUILDING CONTRACTORS, CONTRACTORS, INC., INC., MURANE Defendants. Defendants. ----------------------------------------------------------------x ----------------------------------------------------------------)( DECISION/ORDER DECISION/ORDER MURANE BUILDING BUILDING CONTRACTORS, CONTRACTORS, INC., INC., MURANE Defendant/Third-Party Defendant/Third-Party Plaintiff, Plaintiff, FILED 11/16/2021 COUNTY CLERK QUEENS COUNTY -against-againstTHE OAK OAK GROUP, GROUP, INC., INC., d/b/a d/b/a OAK OAK NYS GROUP THE NYS GROUP AND SUN SUN ENTERPRISE ENTERPRISE GROUP, GROUP, LLC AND Third-Party Defendant. Third-Party Defendant. --------------------------------------------------------------x ----------------------------------------------------------------)( PRESENT: HONORABLE HONORABLE ULYSSES LEVERETT PRESENT: ULYSSES B. LEVERETT Defendant's Third-Party Third-Party Notice ofMotion-Affirmation-~)(hibits Defendant's Notice ofMotion-Affirmation-~xhibits Plaintiffs Notice of Cross Cross Motion-Affirmation Motion-Affirmation in Support Support of of Plaintiffs Notice of Cross Motion-Exhibits Motion-E)(hibits Cross Plaintiffs Affirmation Affirmation in Opposition Opposition to Motion-Exhibits Motion-E)(hibits Plaintiffs Defendant's Affirmation Affirmation in Opposition Opposition to Cross Cross Motion-Exhibits Motion-E)(hibits Defendant's Defendant's Reply Reply Affirmation Affirmation in Support Support of of Motion Motion Defendant's Plaintiffs Reply Reply Affirmation Affirmation in Support Support of of Cross Cross Motion Motion Plaintiffs Papers Numbered Papers Numbered 77-87 EF 77-87 EF EF EF EF EF 92-96 92-96 98-100 98-100 101-102 101-102 105 106 Upon the foregoing foregoing papers, decision and order order on this motion motion is as follows: follows: Upon papers, the decision Defendants/Third-Party Plaintiff Plaintiff Murane Murane Building Building Contractors, Contractors, Inc., (Murane (Murane Inc.) Inc.) brings brings Defendants/Third-Party motion (sequence (sequence 5) pursuant pursuant to Civil Practice Practice and Rules Rules (CPLR) (CPLR) §3212 S3212 for an order order this motion granting summary summary judgment dismissing plaintiff plaintiff Jose Jose Prada' Prada'ss complaint complaint and and granting granting ·such 'such other other granting judgment dismissing relief the Court Court deems deems just, proper and equitable. equitable. Plaintiff Plaintiff Jose Jose Prada Prada brings brings a cross cross motion relief just, proper motion for summary judgment pursuant to Labor Labor Law Law §240(1) s240(1) against against defendant/third defendant/third party Murane Inc. summary judgment pursuant party Murane Plaintiff commenced this action on or about about March March 21, 20 2018 alleging that that on or about about Plaintiff commenced this action I 8 alleging May caused to fall from a ladder subject premises premises located located at 1220 May 26, 2017 2017 he was was caused ladder at the the subject Washing Avenue, Avenue, Building Building NO.4, Albany, NY alleged that injuries/damages were were caused caused NY and alleged that his injuries/damages Washing No. 4, Albany, by the negligence negligence of of Defendant/Third-Party Defendant/Third-Party plaintiff plaintiff Murane Murane Building Building Contractors, Contractors, Inc. (Murane (Murane Plaintiff seeks seeks-recovery injuries pursuant Labor Law Law §200, S200, §240(1), s240(1), and and §241(6). S241(6). Inc.). Plaintiff -recovery for injuries pursuant to Labor 1 of 5 [*FILED: 2] QUEENS COUNTY CLERK 11/16/2021 02:22 PM NYSCEF DOC. NO. 108 INDEX NO. 703359/2018 RECEIVED NYSCEF: 11/16/2021 of New York owned owned the subject subject premises retained Murane Murane Inc. to provide The state of New York premises and retained provide Construction Construction services services there. there. Murane Murane Inc. contracted contracted with with SCE SCE Environmental Environmental Group Group (SCE), (SCE), which subcontracted with plaintiff's employer Sun Enterprise Group, LLC/The Oak Group, which subcontracted with plaintiff's employer Enterprise Group, LLC/The Oak Group, Inc. (Sun/Oak) to abate abate asbestos. asbestos. Murane Murane Inc. asserts asserts in its motion motion to dismiss dismiss the complaint, complaint, that that this this (Sun/Oak) action unwitnessed fall from a ladder action stems stems from an unwitnessed ladder that that occurred occurred as plaintiff plaintiff Prada Prada removed removed a light fixture fixture at an abatement abatement project. project. Plaintiff standing on a six to eight eight foot A-framed ladder light Plaintiff was was standing A-framed ladder while unscrewing the five to seven-pound seven-pound metal metal casing casing surrounding surrounding the light light fixture. fixture. The The casing casing while unscrewing positioned at eye level. Plaintiff Plaintiff stated stated that that fixture fixture casing casing fell as he unscrewed unscrewed it and struck struck was positioned causing it to tip over. The casing casing did not however, however, strike strike plaintiff plaintiff nor nor has plaintiff plaintiff the ladder ladder causing argued that that the A-frame A-frame ladder ladder was was defective defective but rather rather inadequate. inadequate. argued Plaintiff in opposition opposition and by cross-motion cross-motion claims claims that that defendant defendant Murane Murane Inc. is failed failed to Plaintiff supervise his work, work, or created created or had had knowledge knowledge of of a dangerous dangerous condition condition in violation violation of of Labor Labor supervise Law §200. S200. Plaintiff Plaintiff also claims claims that that defendant defendant Murane Murane Inc. is liable liable under under Labor Labor Law Law §241(6) S241(6) by Law violating sections sections of of the New York State State Industrial Industrial Code. Code. Additionally, Additionally, plaintiff claims the New York plaintiff claims violating defendant Murane Murane is liable liable under under Labor Labor Law Law §240(1) s240(1) as a contractor contractor for breach of his defendant breach of nondelegable duty duty to protect construction worker worker from from the risks risks of of elevation elevation related related nondelegable protect plaintiff plaintiff as a construction hazards by failing failing to provide adequate safety safety devices. devices. hazards provide plaintiff plaintiff adequate well established established that that the proponent of a motion motion for summary summary judgment must make make It is well proponent of judgment must prima showing of of entitlement entitlement to judgment matter of of law, by advancing advancing sufficient sufficient prima facie showing judgment as a matter evidentiary proof admissible form to demonstrate demonstrate the absence absence of of any any material material issues issues of of fact. proof in admissible evidentiary v. Prospect (1986). Once Once the the movant movant has made made such such a See Alvarez Alvarez v. Prospect Hospital, Hospital, 68 N.Y.2d N.Y.2d 320 (1986). showing, the burden shifts to the party opposing the motion motion to produce evidence in admissible admissible showing, burden shifts party opposing produce evidence form sufficient sufficient to establish establish the existence existence of of material material issues issues of of fact requiring a trial. trial. See fact requiring Zuckerman v. City o/New York, 49 N.Y.2d 557 (1980). Zuckerman City ofNew N.Y.2d (1980). Labor Law Law §200 S200 imposes common law duty duty of of an owner owner or general general contractor contractor to Labor imposes a common provide workers a safe place to work. To prevail on Labor Law S200 claim of defects and and provide workers safe place work. prevail Labor Law §200 claim of defects dangers of of materials materials and and equipment equipment provided, show that defendant Murane, Murane, provided, the plaintiff plaintiff must must show that defendant dangers authority to supervise supervise or control control the performance of the work. work. See Ortega Ortega v. v. Puccia, Puccia, Inc. had the authority performance of A.D.3d 54 (2008). (2008). 57 A.D.3d Labor Law Law §241(6) S241(6) provides that owners owners and and contractors contractors and and their their agents agents shall shall be liable liable Labor provides that for failing failing to comply comply with with enumerated enumerated rules rules promulgated by the commissioner of the Department promulgated commissioner of the Department of Labor. Labor. of Labor Law Law §240(1) S240(1) imposes imposes a nondelegable nondelegable duty duty on all contractors contractors and and owners owners and their Labor their agents in the repairing of a building structure who who do not furnish furnish or cause cause to be furnished furnished inter inter building or structure agents repairing of alia hoists, hoists, stays, stays, ladder, ladder, pulley, ropes and other other devices devices which which give give proper alia pulley, braces, braces, ropes proper protection protection to employed. a person person so employed. Here, defendant defendant Murane Murane Inc. has deposed testimony testimony of of its lack lack Here, has presented presented uncontroverted uncontroverted deposed of authority authority to control control or supervise supervise the work work of of plaintiff established its prima of plaintiff and established prima facie entitlement to a judgment matter of of law law to dismiss dismiss the statutory statutory Labor Labor Law Law §200 S200 claim. claim. entitlement judgment as a matter Plaintiff Prada Prada as the the direct direct employee employee of of defendants defendants Sun/Oak Sun/Oak has has not not presented evidentiary Plaintiff presented evidentiary proofs opposition to defendant's defendant's motion motion to raise raise a triable triable issue issue of of fact of of plaintiff's Labor Law Law plaintiff's Labor proofs in opposition 2 2 of 5 [*FILED: 3] QUEENS COUNTY CLERK 11/16/2021 02:22 PM NYSCEF DOC. NO. 108 INDEX NO. 703359/2018 RECEIVED NYSCEF: 11/16/2021 §200 S200 claim. claim. Accordingly, defendant defendant Murane Murane Inc. motion motion for summary summary judgment dismissing plaintiff Accordingly, judgment dismissing plaintiff Labor Law Law §200 S200 claim claim is granted. granted. Labor Defendant's motion motion to dismiss dismiss plaintiffs complaint and and cross cross motion motion on plaintiff plaintiff Labor Labor Defendant's plaintiff's complaint Law Law §241(6) S241(6) claims claims is granted. granted. Labor Labor Law Law §241(6) S241(6) imposes imposes a nondelegable nondelegable duty duty of of owners owners and and contractors provide reasonable contractors to provide reasonable and and adequate adequate protection protection and safety safety to construction construction worker. worker. Plaintiffs Plaintiffs are required required to plead plead and prove prove violations violations of of the the industrial industrial code code regulations regulations which which proximately caused the the injury, injury, but but are subject subject to the the valid valid defense defense of of contributory contributory and and proximately caused Ross v. Hydro Electric Electric Company, N.Y.2d 494 comparative negligence. negligence. See Ross v. Curtis-Palmer Curtis-Palmer Hydro Company, 81 N.Y.2d 494 comparative NYCRR §§ (1993). Plaintiff Plaintiff claims claims violation violation of of 12 NYCRR SS 23-3.3(c), 23-3.3(c), 23-l.7(a) 23-1.7(a) and and 23-1.33. 23-1.33. (1993). judgment that Defendant has has provided provided evidence evidence in support support of of his motion motion for summary summary judgment that Defendant plaintiff plaintiff Labor Labor Law Law §241(6) S241(6) claims claims are not factually factually applicable. applicable. Section Section 23-3.3(c) 23-3.3(c) mandates mandates continuing person resulting continuing inspections inspections to "detect "detect any any hazards hazards to any person resulting from from weakened weakened or deteriorated plaintiff argues deteriorated floors floors or walls walls or from from loosened loosened material." material." Here, Here, plaintiff argues that that the the fixture fixture that that was unscrewing/loosening unscrewing/loosening constitutes constitutes loosened loosened materials materials within§ within S 23.3-3(c) 23.3-3(c) however, however, plaintiff plaintiff he was place. also asserts asserts that that the the screw screw on the the opposite opposite side of of the the fixture fixture that that he loosened loosened were were still still in place. also Plaintiff provided citation to the record record that that there there was was any any structural structural instability instability caused caused by the the Plaintiff provided no citation progress of any any demolition. demolition. Section Section 23.3.3(c) 23.3.3(c) is not not applicable applicable where where the the hazard hazard arose arose from from progress of plaintiffs' actual performance of the the work work and and not not from from structural structural instability instability caused caused by by progress progress plaintiffs' actual performance of of East 57th Inc., 96 A.D.3d of other other demolition. demolition. See Garcia Garcia v. v. 255 255 East 57th Street Street Owners Owners Inc., A.D.3d 88 (1st (1st Dep't Dep't 2012) Badznierowski v. Pbak LLC, LLC, 2004 plaintiff does present 2012) and Badznierowski v. Pbak 2004 Slip Slip Op 51207(u). 51207(u). Here, Here, plaintiff does not not present any evidence evidence that that the the injuries injuries were were caused caused by structural structural instability. instability. Defendant Defendant motion motion to dismiss dismiss NYCRR §23-3.3(c) plaintiffs plaintiffs Labor Labor Law Law §241(6) S241(6) and and 12 NYCRR S23-3.3(c) claim claim is granted. granted. Plaintiff NYCRR §23-l.7(a) Plaintiff Labor Labor Law Law §241(6) S241(6) claims claims based based on 12 NYCRR S23-1.7(a) and and §23-1.33 S23-1.33 are NYCRR §23-1.7(a) prescribes for overhead protection in places places that also inapplicable. inapplicable. 12 NYCRR S23-1.7(a) prescribes overhead protection that are also normally exposed exposed to falling falling material material or objects. objects. The The industrial industrial code code is inapplicable inapplicable where where there there is normally Amato v. no evidence evidence of of regular regular falling falling objects objects in a plaintiff plaintiff work work area. See Amato v. State, State, 241 A.D.2d A.D.2d 400 (1st (1st Dep't Dep't 1997). 1997). Plaintiff Plaintiff has has not not presented presented evidence evidence of of regular regular falling falling objects objects in plaintiff's plaintiffs 400 work work area. Similarly, NYCRR §23-1.33 Similarly, 12 NYCRR S23-1.33 is inapplicable. inapplicable. The The code code section section requires requires reasonable reasonable and and adequate protection and provided for all persons persons passing adequate protection and safety safety shall shall be provided passing by areas, areas, buildings buildings or other other structures structures in which which construction, construction, demolition demolition or evacuation evacuation work work is being being performed. performed. Here, Here, plaintiff plaintiff was performing performing work work in a designated designated to area area and and was was not not a passerby passerby specified specified in the the code. Additionally, Additionally, the the §23-1.33 S23-1.33 has has insufficient insufficient specification specification for compliance compliance and and cannot cannot support support code. McMahon v. Durst, 224 a claim claim under under Labor Labor Law Law §241(6). S241(6). See McMahon v. Durst, 224 A.D.2d A.D.2d 324 324 (1st (1st Dep't Dep't 1996). 1996). Accordingly, Accordingly, defendant's defendant's motion motion to dismiss dismiss plaintiff plaintiff Labor Labor Law Law §241(6) S241(6) claims claims NYCRR §23-l.7(a) predicated on 12 NYCRR predicated S23-1.7(a) and §23-1.33 S23-1.33 for inapplicability inapplicability is granted. granted. Finally, judgment and Finally, defendant defendant Murane Murane Inc. argues argues in its motion motion for summary summary judgment and in opposition to plaintiffs' cross motion motion for summary summary judgment that Labor Labor Law Law §240(1) s240(1) does does not not opposition plaintiffs' cross judgment that apply apply to plaintiff's plaintiff s accident. accident. 3 3 of 5 [*FILED: 4] QUEENS COUNTY CLERK 11/16/2021 02:22 PM NYSCEF DOC. NO. 108 INDEX NO. 703359/2018 RECEIVED NYSCEF: 11/16/2021 Labor Labor Law Law §240(1) ~240(1) provides: provides: contractors and owners owners and their their agents, agents, except except owners owners of of one one All contractors two-family dwellings dwellings who who contract contract for but but do not not direct direct or and two-family control control the the work, work, in the erection, erection, demolition, demolition, repairing, repairing, altering, altering, painting, cleaning cleaning or pointing pointing of of a building building or structure structure shall shall painting, furnish furnish or erect, erect, or cause cause to be furnished furnished or erected erected for the the performance of such such labor, labor, scaffolding, scaffolding, hoists, hoists, stays, stays, ladders, ladders, performance of slings, hangers, hangers, blocks, blocks, pulleys, pulleys, braces, braces, irons, irons, ropes, ropes, and and other other slings, devices devices which which shall shall be so constructed, constructed, placed placed and and operated operated as to give person so employed. give proper proper protection protection to a person employed. Labor Labor Law Law §240(1) ~240(l) imposes imposes a non-delegable non-delegable duty duty on all contractors contractors and owners owners and and their their agents in the repairing repairing of of a building building or structure structure who who do not not furnish furnish or cause cause to be furnished furnished inter inter agents alia hoists, hoists, stays, stays, ladder, ladder, pulley, braces, ropes ropes and and other other devices devices which which give give proper alia pulley, braces, proper protection protection to employed. The The non-delegable non-delegable duty duty imposed imposed by Labor Labor Law Law §240(1) ~240(l) applies applies only only if if a person person so employed. the listed La France France v. Niagara Mohawk Mohawk Power Power listed devices devices are necessary necessary to provide provide protection. protection. See La v. Niagara Corp., provide adequate protection from Corp., 89 A.D.2d A.D.2d 757 (1982). (1982). A defendant's defendant's failure failure to provide adequate protection from East reasonable preventable gravity reasonable preventable gravity related related accidents accidents will will result result in liability. liability. See See Wilinski Wilinski v. v. 334 334 East 92nd Housing Development Development Fund Fund Corp., N.Y.3d 1 (2011). 92nd Housing Corp., 18 N.Y.3d (2011). Labor Labor Law Law §240(1) ~240(l) is a strict strict Bridge liability statute statute and comparative comparative negligence negligence is not not a defense. defense. See See Cahill Cahill v. v. Triborough Triborough Bridge liability and Authority, 4 N.Y.3d N.Y.3d 35 (2004). and Tunnel Tunnel Authority, (2004). The The plaintiff plaintiff must must prove prove [1] that that Labor Labor Law Law §240(1) ~240(1) has has been been violated violated by defendant's defendant's failure to provide provide required required protection the site site and [2] that that the the violation violation was was a proximate proximate cause cause failure protection at the of Barreto v. Metropolitan Transportation Authority, 25 N.Y.3d N.Y.3d (2015), of the the injury. injury. See Barreto v. Metropolitan Transportation Authority, (2015), Chacha Chacha v. Doynow Sutton Farm Development, Development, LLC, Blake v. v. Glickenhaus Glickenhaus Doynow Sutton Farm LLC, 69 A.D.3d A.D.3d 896 (2010), (2010), and and Blake v. Neighborhood Housing Housing Services NY City, 1 N.Y.3d N.Y.3d 280 Neighborhood Services of of NY 280 (2003). (2003). Additionally, Additionally, in falling falling object object or falling falling worker worker cases cases the the court court must must examine examine whether whether the the provide adequate protection from worker's injuries injuries were were the the direct direct consequence consequence of of a failure failure to provide adequate protection from a worker's physically significant elevation elevation differential. differential. The The statute statute does does not not provide coverage for every every physically significant provide for coverage worker that that falls at a worksite. worksite. Recovery Recovery is not not available available for routine routine workplace workplace risks. risks. See worker Robinson v. East Medical Medical Center, N.Y.3d 550 Robinson v. East Center, LP, 6 N.Y.3d 550 (2006). (2006). Here, defendant defendant provided provided plaintiff with a six to eight eight foot A-frame A-frame ladder ladder to use use while while Here, plaintiff with unscrewing a five to seven-pound seven-pound metal metal casing casing surrounding surrounding the the fixture. fixture. The The fixture fixture was was attached attached unscrewing approximate nine-foot nine-foot ceiling ceiling and was was at plaintiff's plaintiff s eye level. level. Plaintiff Plaintiff claimed claimed that that the the to an approximate fixture fixture fell as he unscrewed unscrewed it and struck struck the the ladder ladder causing causing it to tip tip over. over. Defendant Defendant argues argues ladder was was functional functional and adequate adequate statutory statutory device device for the purpose purpose of of the the undertaking undertaking of of the the ladder removal plaintiff removal of of the the fixture. fixture. Defendant Defendant further further argues argues that that §240(1) ~240(l) is not not applicable applicable where where plaintiff lost balance after positioned at eye lost his balance after a five to seven-pound seven-pound object object positioned eye level level struck struck a fully fully functional functional ladder since since no physically significant elevation elevation related related hazard hazard occurred. occurred. Defendant Defendant asserts asserts the the ladder physically significant object object of of minimal minimal weight weight situated situated at a de minius minius height height is an ordinary ordinary construction construction hazard. hazard. Defendant also also argues argues that that plaintiff plaintiff gave gave inconsistent inconsistent accounts accounts of of the the accident accident by stating stating he Defendant jumped from plaintiff is the proximate cause jumped from the ladder, ladder, that that plaintiff plaintiff is not not credible credible and and that that plaintiff the sole sole proximate cause of of the accident. accident. 4 4 of 5 [*FILED: 5] QUEENS COUNTY CLERK 11/16/2021 02:22 PM INDEX NO. 703359/2018 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 11/16/2021 Plaintiff in opposition opposition to defendant's defendant's motion motion and in support support of of its motion motion for summary summary Plaintiff judgment argues that that based upon the the work work he was was performing the ladder ladder was was not not the the proper judgment argues based upon performing the proper device to provide from the falling falling object object or to protect protect him him from from falling. falling. device provide plaintiff plaintiff protection protection from Plaintiff argues argues that that while while performing performing asbestos asbestos treatment treatment and and demolition demolition work work he was was required required to Plaintiff wear two two hazmat hazmat jumpsuits, respirator and and a helmet. helmet. He has has to use use both both hands hands to remove remove the the wear jumpsuits, respirator fixture which which was was five feet long long and and could could not steady steady himself himself on the the ladder. ladder. Plaintiff Plaintiff asserts asserts via via fixture engineer report report that that a scaffold scaffold was was the appropriate appropriate safety safety device device which which was was not not provided provided by an engineer defendant to protect protect him him from from falling. falling. defendant motion for summary summary judgment party is entitled entitled to summary summary judgment when it is In a motion judgment a party judgment when clear that that there there are no material material issues issues in dispute dispute requiring requiring trial. trial. The The proponent proponent of of a motion motion for clear summary judgment must make make a prima showing of of entitlement entitlement to judgment matter of of judgment as a matter summary judgment must prima facie showing advancing sufficient sufficient "evidentiary "evidentiary proof proof in admissible admissible form" form" to demonstrate demonstrate the the absence absence law, by advancing of any material material issues issues of of fact. If If the movant movant makes makes a prima facie showing showing of of entitlement entitlement to of prima facie summary judgment the burden shifts to the opposing opposing party demonstrate by admissible admissible summary judgment the burden shifts party to demonstrate evidence that that there there is a factual factual issue issue requiring requiring trial. trial. See Zuckerman Zuckerman v. v. City City of of New evidence New York, 49 N.Y.2d (1980). N.Y.2d 557 (1980). Manhasset Bay Bay Associates, Associates, 96 N.Y.2d 259 (2001) (2001) the the Court Court differentiated differentiated N.Y.2d 259 In Narducci Narducci v. Manhasset that the hazard hazard posed falling worker worker from from an elevated elevated height, height, without without scaffold scaffold or or ladder, ladder, is that that that posed to falling worker might might be injured injured in a fall. Falling Falling objects objects are associated associated with with failure failure to use use different different the worker devices such such as ropes, ropes, pulleys pulleys or irons irons to prevent prevent objects objects from from falling. falling. The The Narducci Court held held Narducci Court devices must show show that that the the object object fell, while while being hoisted or or secured, secured, because because of of the the "[a] plaintiff plaintiff must being hoisted absence or inadequacy inadequacy of of a safety safety device device of of the the kind kind enumerated enumerated in the the statute. statute. absence The Court Court finds finds that that defendant defendant established established its prima prima facie facie case case that that plaintiff's plaintiff s work work did The not entail entail a physically physically significant significant elevation elevation differential differential for the the falling falling light light fixture fixture and and plaintiff plaintiff not has not not provided provided evidentiary evidentiary proofs proofs to demonstrate demonstrate that that an issue issue of of fact fact as to the the existence existence of of a has physically significant significant elevation elevation difference difference as a Labor Labor Law Law §240(1) 9240(1) falling falling object object case. case. However, However, physically plaintiff has has set forth forth sufficient sufficient testimonial testimonial evidence evidence to raise raise a triable triable question question of of fact fact as to plaintiff whether the the A-frame A-frame ladder ladder was was an adequate adequate safety safety device device for the the hazard hazard posed posed by the the elevated elevated whether asbestos work asbestos removal/demolition removal/demolition work as falling falling worker worker case case under under Labor Labor Law Law §240(1 9240(1).). Additionally, the credibility credibility of of plaintiff plaintiff evidence evidence is the the province of the the jury. Plaintiff cross cross province of jury. Plaintiff Additionally, motion for summary summary judgment liability pursuant Labor Law Law §240(1) 9240(1) likewise likewise denied. denied. motion judgment for liability pursuant to Labor Accordingly, defendants defendants Murane Murane Building Building Contractor's Contractor's Inc. motion motion for summary summary Accordingly, judgment dismissing plaintiffs Labor Law Law §240(1) 9240(1) claim claim as fallen fallen worker worker is denied. denied. Defendant Defendant judgment dismissing plaintiff's Labor motion plaintiff Labor motion to dismiss dismiss plaintiff Labor Law Law §200 9200 and §241(6) 9241(6) claim claim is granted. granted. Plaintiff Plaintiff Prada's Prada's cross cross motion of of summary summary judgment pursuant to Labor Labor Law Law §240(1) 9240(1) is denied. denied. motion judgment pursuant Datoo: T~:S/i~ :;e ::n ~d orderofiliis Court.~ Ulysses FILED ~ . Leverett, l.S.C. 11/16/2021 COUNTY CLERK QUEENS COUNTY 5 5 of 5

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