MacNair v 11 Madison Ave. Owner LLC

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MacNair v 11 Madison Ave. Owner LLC 2023 NY Slip Op 33818(U) October 27, 2023 Supreme Court, New York County Docket Number: Index No. 150364/2020 Judge: Leslie A. Stroth 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. INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 SUPREME COURT OF THE STATE OF NEW YORK . NEW YORK COUNTY PRESENT: 12 PART HON. LESLIE A. STROTH Justice ------------------~--x 150364/2020 INDEX NO. RIAN MACNAIR, JANINE MACNAIR, MOTION DATE Plaintiff, 06/01/2023 06/01/2023 MOTION SEQ. NO. _ __;o:;_;o;...c1....:o:..:0=2'--_ .- V - 11 MADISON AVENUE OWNER LLC, LLC, SL GREEN REALTY CORP.., PGIM REAL ESTATE FINANCE, LLC, STRUCTURE TONE LLC, AMENDED DECISION + ORDER ON MOTION 1 Defendants. --------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 34, 35, 36, 37, 38, 39,40,41,42,43,44, 45, 46,47,48,49, 90, 91, 99,100,101,102,103,104, 105,106,107,108,109, 110,111,112,113,114, 11-5, 116,117,118,119,120,121,122, 123,124,125, 126,127,128, 129;130, 131, 132, 134, 136 . JUDGMENT - SUMMARY were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion 002)' 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 82, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75., 76, 77,78, 79, 80, 81,.82; 83,84,85,86, 87, 88, 89, 92,93,94, 95, 96; 97,98i133, 137 . JUDGEMENT-SUMMARY were read on this motion to/for This action arises out of an incident that occurred at 11 Madison Avenue;·New York 10010 (subje~t worksite) on October 18, 2019, when plain~iff Rian MacNair was allegedly injured moving a cart down a concrete slope. Rian MacNair (MacNair) and ,hIS wife, Janine MacNair (collectively, plaintiffs) now move for summary judgment !iS ·against defendants,_ 11 Madison A venue Owner, LLC; SL Green Realty· . Corp.; and PGIM Real Estate Finance, LLC (collectively, d~fendants)!, on their Labor Law § \ 240(1) and.their Labor Law§ 241(6) claims premised upon alleged violations oflndustrial Code 1 The action was discontinued against Structural Tone, LLC, a construction company, in September 2020, but the caption has not yet been amended to reflect the discontinuance. < . 2 The decision and order is amended only to the extent of omitting reference to Labor Law§ 240(6) on pages 10 and 13, which was a scrivner's error, and exchanging it with the correct provision, Labor Law§ 241(6). [* 1] 1 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 . . . §§. 23-L28(b) and 23~f5(c)(3f Defendants oppose arid-cross-move:·ror an.order gr~ting them . . summary judgment dismissing plaintiffs' complaint in its entirety. For the reasons set forth below, plaintiffs' motion is granted, and defendants' motion is granted, in part. I. Alleged Facts· · . . The subject w6rksite is.owned by 11 _Madison Avenue Owner,LLC and managed by SL Green R~ty Corp. and PGIM Real Estate Finance, LLC. Defendants contracted with non-party modernization project at .the KONE, an elevator engineering company, t6 perform an elevator . subject worksite. MacNair was employed by KONE.as a Local 1 Elevittor Mechanic's Helper. MacNair was .tasked with taking large amounts of elevator d~bris in a cart down a concrete . . . . ramp located at the subject worksite for disposal. KONE contracted with non-party Five Star Carts . . . to provide the cart at issue. While moving a cart filled _with elevato_r debris down the concrete ramp, MacNair injured _his left knee. MacNair alleges that he felt the cart go out of control and. -tried to stop _the cart from rolling .i~to city pedestrian traffic, at which point his injury occurred. There are no directwitnesses to the incident. MacNair subsequently had knee surgery . . . . ' , . .to repair a ' tom meniscus and now aHeges permanent physical restrictions preventing him from pursuing a career as a Local 1 Elevator Mechanic. . Plaintjffs Rian MacNair and Janine- MacNair commenced ·this action in January 2020, . .\ . pleading causes of action pursuant to Labor Law § 200, 240( 1),' and 241 ( 6), as well as a derivative . . . . . claim for loss of services. II. · Analysis : It is ~~11-established that the· "function of summary judgment is· issue ·finding, not issue determination." Assaf v Ropog Cab Corp., 153 AD2d 520, 544 (1st Dept 1989). As such, the · proponent of a motion for summary jud~ment must tender sufficient evidence fo show the absence · Page 2of14 150364/2020 Motion No. 001 &'002 [* 2] 2 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 -. ofany matenal issue-of fact and the iight to eniltiement to Judgment-as a ~atter of law. Alvarez V Prospect Hospital, 68 NY2d 320, 501 (1986); Wiriegrad v New York University Medical Center, 64 NY 2d 851 (1985} Courts have recognized that summary judgment is a drastic remedy that deprives a litigant of their day in court_ Therefore, "[o]n a motion for summary judgment, facts must be viewed 'in the light-most favorable to the non-moving party."' Vega v Restani Const Corp, 18 NY3d 499,503 (2012), quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335,)39 (2011). A. Plaintiff's Motion for Summary Judgment 1. Labor Law§ 240(1) Plaintiffs first move for summary judgment pursuant to Labor Law § 240( 1). Defendants oppose.2 Labor La_w §. 240(1) states, in pertinent part, as follows: 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 perfonnance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so.employed. · · Liability under Labor Law·§ 240( 1) is .imposed for ''contemplated hazards ... related to the· effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher .level of the materials or load being hoisted or secured." Melber v _6333 Main St., Inc., 91 NY2d 759, 762 (1998), quoting Rocovich v Consol. Edison Co., 78 NY2d 509,514 (1991). The statute imposes absolute liability upon owners, contractors and their agents where a breach of the statutory duty to provide proper protection to an employee proximately causes their ' . injury. Gordon v_Eastern Rajlway Supply, Inc., 82 NY2d 555, 559 (1993); Ross v Curtis-Palmer 2 The Court will address defendants' separate motion for summary judgment dismissing plaintiffs' Labor Law§§ 200,240 (I) and 241(6) claims at Section II (B), infra. ' . . 150364/2020 Motion No. 001 & 002 [* 3] Page 3 of 14 3 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 Hydro~Elec Co., 81NYid~494-: so6(1993); Rocovich v Consolidated Edison-Co, 78 NY2d 509, 513 (1991). It is well established that "an accident alone does not establish a Labor Law§ 240(1) violation or causation." Blake v Neighborhood Hous ..Servs. of NY City, Inc., 1 NY3d 280, 289 (2003). Rather, a plaintiff must demonstrate failure to provide any safety devices or that a safety · mechanism failed in order to establish liability pursuant to Section 240( 1). See id. Elevatiori. Differential . i. Plaintiffs argue that defendants violated Labor Law § 240(1 ), asserting that the subject ramp was an elevation-related hazard for which no safety devices were provided. They argue that. the plaif!-tiff' s injury flowed directly from the application of th~ force of gravity to the cart and, therefore, constituted a gravity-related risk. In support of their motion, plaintiffs submit, inter alia, I I a photograph of the subject ramp (NYSCEF Doc. No. 47), MacNair's deposition transcript ~ " , l • (NYSCEF Doc. No. 46), the deposition transcript of SL Green's Senior Property _Manager Jennifer Ciccotto (NYSCEF Doc. No. 101), and an affidavit of Dean Cribbin Jr., plaintiff's co-worker at the subject worksite (NYSCEF D<:>c. No. 49). In opposition, defendants argue that Labor Law §_ 240(1) does not apply here because MacNair's injuries did not result from an elevation-related hazard. Defendants submit, inter alia, photographs of the subject ramp and Five Star carts (NYSCEF doc. no. 63), excerpts from MacNair's deposition transcript (NYSCEF doc. no. 96), ~nd excerpts from SL Green's Senior Property Manager Jennifer Cic~otto's deposition transcript (NYSCEF doc. no. 101). To further bolster their position, defendants submit the affidavit of Licensed Professional Engineer Vincent Ettari (NYSCEF doc. no. 108), in which he attests that ~e.. ramp in question complied with all applicable codes and that the; grade of the ramp " \ is shallow, with .a gentle slope of 9% to Page 4 of 14 150364/2020 Motion No. 001 & 002 ' ! I [* 4] 12.5%. 4 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 Defendants furth~r allege that pushing- a-cart down a ramp is an ordinary task that does not fall· . . . within the specific class o,f special h~zards covered under the Labor Law. l It is clear from the evidenc~ adduced, such as the photograph of the ramp and the deposition testimony of plaintiff, that the ramp contains a significant elevation differential. Labor Law § 240(1) does not reguite t~at an injury result fro~ a particular height to be gravi~ related, and the ramp at issue presents a sufficiept elevation differential. For example, in Ali v Sloan-Kettering Inst for Cancer Rsch,. the. First-Department.held that injury resulting from an air conditioning coil . . falling off a dolly wa:s .subject to Labor Law § 240(1 ). See Ali v Sloan-Kettering Inst for Cancer Rsch, 176 AD3d 56_i (1st Dept 2019): The court stated, "even in falling a relatively short distance, plaintiff's injury resulted from a failure to provide prot~ction required by Labor Law § 240(1) .expert against a risk arising from a significant elevation differential." Id. Thus, the purported . . affidavit offered by defendants attesting to the low grate o(the ramp and compliance with relevant ·building codes is not dispositive of whether the injury is gravity related. Rather, the· ramp' at issue (and the ground over whic~ it spans) presents an elevation differential, and the moinentum of the cart in this case was the direct result of gravity. Here, the "combined weight of the device and its load, and the force it was able to.generate over its descent" allegedly caused MacNair's injury, thereby falling under the purview of Labor Law §' 240(1). · McCallister v 200 Park, LP, 92 AD3ci 927 (2d Dept 2012). ii. . Safety Device · Defendants also argue that they did not fail to provide MacNair with a safety device that_ would have prevented his injury, in contraventiop .of Labor Law§ 240(1). Defendants maintain that there is no safet)'. device that could have been provided to MacNair for the ordinary dangers of pushing a cart down a ;amp. In turri, plaintiffs p~sit that a safer means of completing the subject 160364/2020 Motion No. 001 & 002 [* 5] Pag4'! 5 of 14 5 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 / task existed, such as using a truck that could have a_voided the-use of the ramp or ensuring that the wheels on the cart were not sticky and inoperative, and that defendants thereby faile<;I to give proper protection to MacNair. The case Landi v SDS William St.', LLC, 146 AD3d 33 (1st Dept 2016) is instructive on this point. In Landi, when the plaintiff was operating a motorized pallet jack down a ramp, he unsuccessfully attempted to use the brake on the jack, which then ran over his right foot. The Court held that the jack's breaking mechanism was insufficient to provide protection against the gravityrelated risk inherent in transporting a heavy load down a ramp. See Landi v SDS William St., LLC, 146 AD3d 33. Similar~y, inAramburu v Midtown W B, LLC, 126 AD3d 498,499 (1st Dept 2015), the plaintiff was wheeling a heavy reel of wire down a ramp when he lost control of.the reel, which consequently rolled over his shoulder and neck. In that case, the Court found that the plaintiff was entitled to partial summary judgment, given the evidence that no devices, such as pulleys or ropes, were used to prevent the accident_. Here, plaintiff establishes that his injuries are a direct c~n~equence of the failure to provide a safety device, such as a break mechanism, pulley, or operable wheels, against the r{sk inherent in pushing a heavy cart down a ramp. See Runner v New York Stock Exch., Inc., 13 ·NY3d 599, 603 (2009). Accordingly, plaintiff has established his priina facie right to summary judgment as to liability on his Labor Law § 240(1) claim. Moreov~r, the activity of an employee working with a cart containing heavy materials being transported on a construction site is considered the kind of foreseeable risk within the contemplation of Labor Law§ 240(1 ). See e.g. McCallister v 200 Park, LP, 92 AD3d 927 (2d Dept 2012). Iri tum, defendants fail to raise a triable issue of fact as to plaintiffs Labor Law § 240(1). _Accordingly, plaintiffs' motion for summary judgment with respect to their Labor Law§ 240(1) claim is granted. Page 6 of 14 150364/2020 Motion No. 001 & 002 [* 6] 6 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 2. Labor Law § 241(6) · Plaintiffs also move for summary judgment under'Labor Law § 241(6), alleging that defendants violated Industrial Code§§ 23.:1.28(b) (""Hand-propelled vehicles") and 23-l.5(c)(3) ("General responsibility of employers ~ Condition of equipment and safeguards")3. Defendants oppose: Labor Law§ 241(6) places a nondelegable duty upon owners and general contractors, and .. . . their agents to comply with the specific safety rules_ set forth in the Industrial Code. Ross· v Cu~tis- Palmer Hydro-Elec Co, 81 NY2d 494 (i993) at 501-502. According}?", to support a cause of action under Labor Law § 241 ( 6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation· o_f an applicable Industrial Code provision. given the circumstances of the accident. Id at 502; Ares v, State, 80 NY2d 959, 960, 590 NYS2d 874 (1992); see also Adams_ v Glass Fab, 212 AD2d 972, -973 (4th Dept 1995) .. i. Hand-Propelled Vehicles The first provision at issue is entitled_"Hand-propelled vehicles,"12 NYCRR § 23-l .28(b), and provides, in part, "[w]heels of hand-propelled vehicles shall be ·maintained free-running and well secured io the frames ofthevehicles ... " This provision "specifically and concretely requires 'free-running' wheels th~t are 'well-secured."' Freitas v New York Tr Auth, 249 AD2d 184, 186 . (1st Dept 1998). This is "a specific, positive command" that -"can be relied upon as the source of a non-delega~le duty .by the owner or general contractor owed to all workers performing construction chores on the premises.,; Id. (citation omitted) .. 3 Plaintiffs do not move for summary judgment on their remaining Labor Law § 241(6) claims which ar~ premised upon alleged violations of 12 NYCRR § 23-l.7 (d) and (e)(l)-(2), 12 NYCRR § 23-1.22, 12 NYCRR § 23-2.1, and · Occupational Safety and Health Administration (OSHA) violations. 150364/2020 Motion No. 001 & 0.02 [* 7] .Page 7 of 14 7 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 -- -·Plairitiffs-maintain tha(MacNafr.testified at"his depositfori ·that the wheels of the cart were not free running ~d ·that they locked up while he descended the ramp, in ~ontravention of 12 NYCRR § 23-l.28Cb): See ~.g. NYSCEF doc. no. 46 at 61, line 2 ("The wheels were.br~ken"); 93, ! I ' I lines 3-9 ("I was going down the ramp and then where it happened, the dumpster started going out ! of control when th~ wheels started messing up"). MacNair also testified that the carts at the subject worksite were in poor and inoperable condition. Plaintiffs further s_ubmit the affidavit ofMacNair's . colleague, Dean Cribbin Jr, in which he attests that: "I have been working at the jobsite for a few years and have se~n the condition of the dumpsters4 has been pretty bad on some of them, the few . ~ are hard to move because the wheels loc_k up and I have seen a few fall off before.'_' See NYSCEF doc. no. 49. In opposition, defendants contend that 12 NYCRR § 23-l.28(b) does :not Jtpply to the subject incident. Defendants argue that MacNair's testimony regarding the defective wheels of the· cart in question is speculative because he was unable to i_dentify the exact cart used at the subject worksite. However, defendants do not submit any evidence in admissible fo1:11 to controvert MacNair's deposition testi_mony or Mr. Cribbin's affidavit in which they aver that the wheels on the carts are defective. Plaintiffs have estab~ished the_ir prima facie case that Industrial Code 12 NYCRR § 23l.28(b) was violated,. namely, that defendants failed to provide free-running· ~heels that were "well-secured" on a ·hand-propelled vehicle, and therefore, ·plaintiff is entitled to summary judgment on such claim. 4 Mr. Cribbin uses "cart" and '_'dumpster" interchangeably. Review of photographs of the carts demonstrate that the cart can also be viewed as a dumpster. See NYSCEF doc. no. I 06. . ) . 150364/2020 Motion No. 001 &002 Page 8 of 14 8. of 14 [* 8] 8 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 ii. RECEIVED NYSCEF: 10/27/2023 - Gene·r-ai" R~$p~iisibii"ity or'Employers.:.. Condition of Equipment and Safeguards· The second p~ovision is entitled "General responsibility of employers ....: Condition of . . \ . . . equipment and safeguards,"12 NYCRR § 23-l.5(c)(3), which provides that: "{a]ll safety devices, safeguards and equipment in ~e shall be kept_ sound and operable,- and shall be immediately repaired or restored or immediately removed from the job site if damaged.'' Plaintiffs contend that defendants' failure to remove the inoperable carts was a violation of 12.NYCRR § 23-1.5(c)(3) and J?roximately cau~ed plaintiff's injury. Defendants counter that the carts at issue do not qualify as "equipment" under 12 NYCRR § 23-L5(c)(3) and that, therefore, I ' l this section of the Indu~trial Code is inapplicable. The carts_ herein are considered "equipment" pursuant to 12 NYCRR § 23-l.5(c)(3). See Sancino v Metro Tra~~portation Auth, 184 AD3d 534,535 (1st Dept 2020) (holding that a wheeled . . dumpster falls under the purview of 12 NYCRR §-23-l.5[c][3]). Additionally, MacNair offered sworn testimony that the cart he was moving down the ramp had inoperable wheels that caused it to move out of control and seriously injure. him. Again, defendants fail to proffer admissible evidence to contest MacNair's first-hand account sufficient to raise a triable issue of fact.· Thus, defendants' failure to immediately remove the inoperable carts from service and restore or repair them. results in a violation o~ section 23-l.5(c)(3), a~d plaintiffs' motion for I !· . summary judgment is granted on that portion of his L~bor Law § 241 (6) claiin.' B. Defendants' MotiOJI for Summary Judgment Defendants separately move for summary judgment seeking disrn:issal of plaintiffs' claims pursuant_ to Labor Law §§ 200, 240 (1) and 241(6) and their claims for loss of services. For the above-stated reasons, as well as ·the ~ditiorial analysis below, defendants' motion is granted in part. 150364/2020 Motion No. 001 &.Q02 • [* 9] Page 9 of 14 9 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 .... ··- - .. "i>i-eltminariiy,:as thtd:ourt hasafre~dy·d~cfried that plaintiff has estabiish~d its· entitlerµent to judgment as a matter of law for its claims pursuant to L8:bor Law §§ 240(1) and 241(6) for violations of Industrial C~d; §§ 23-l.28(b) and 23-l.5(c)(3), defendants' motion for dismissal of these causes of action is d~nied. In support of their motion for summary j~dgment, defendants submit the same proof as in their opposition to plaintiffs' motion~ The proof adduced by defendants was insufficient to raise ~ triable issue of f~ct with respect to these causes of action, much less demonstrate_ defendants' entitlement to judgment as a matter of law. 1. La~or Law § 241(6) However, plaintiffs failed to oppose that part of defendants' motion which· seeks dismissal of plaintiff's Labor Law§ 241(6) claim premised upon alleged violations of 12 NYCRR § 23-1.7 (d) and.(e)(l)-(2), 12 NYCRR § 23-1.22, 12 NYCRR § 23-2.1, and Occupational Safety and Health Administration (OSHA) violations. 5 Accordingly,· defendants' motion for summary judgment to dismiss the remainder of plaintiffs' Lab9r Laf'_. § 24 I (6) claim based on these alleged violations is . . granted as unopposed, and the claims are deemed abandoned. See Josephson LLC v Column Fin., Inc., 94 AD3d 479, ~80 (1st Dept 2012) ("Plaintiffs abandoned their remaining claims by failing to oppose the parts of defendants' motion that sought summary judgment ·dismissing those claims"). 2. Labor Law § 200 . Defendants move f ~r summary judgment dismissing plaintiffs' cause of action pursuant to Labor Law § 200. Althoµgh plaintiffs do not mov~ for summary judgment on this claim, they contend that there exist material issue~ of fact ~at preclude dismissal. s . . . Plaintiff does not_ mo·ve for summary judgment on these grounds. 150364/2020 Motion No. 001 & 002 [* 10] Page 10 of 14 10 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 Labor Law § 200 codifies the common· law duty of an owner to pr::ovide construction workers with a safe place to work. See Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877 (1993). Iti~ well-settled law that an.o~er or general ciontractor will not be found liable under common law_ or.Labor Law§ 200 ~here it.has no notice of any dangerous condition which . may have caused the· plaintifrs injuries, nor the ability to control the activity which caused the ' ' dangerous condition.. See Russin v· Picciano & Son, 54 NY2d 311 [ 1981]; see also Rizzuto v Wenger Contr.·Co.~·91 NY2d 343, 352 [1998]; Singleton v Citna/ta Constr. Corp., 291 AD2d 393, 394 (2002]. Labor Law § 2-00 and common law .claims fall um,ier two catege.ries: "those arising from art alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed." Cappabianca v Skanska USA Bldg. Inc., 99 AD3d ' ' 139, 133-144 (1st Dept 2012). Under the first category, the owner had to create the condition or had actual or constructive notice of it.Id at 144. Under the second category, the owner or general contractor is liable if "it actually exer::cised ·supervisory control over the injury-producing work." Id Defendants argue that neither category applies. At. the outset, defendants maintain that there was no dangero1:1s or defective condition at the subject worksite. MacNair testified at his . deposition that he does. not rec_all ever complaining that a cart on the job site was ·broken or i I• I ' inoperable prior to the incident. Additionally,. SL G.reen~s Senior Property Man~ger Jennifer Ciccotto testified at her deposition that the personnel, tenants, vendors and deliverymen at the subject worksite similarly used th_e ramp without _issue for over 80 years; the building has never received any complaints regarding the use of the ramp; and that defendants had no involvement . . with the carts that KONE rented from to transport debris. 15036412020 Motion No. 001 & 002 ·· I [* 11] 11 of 14 • Page 11 of14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 Further~ defendants argue that they did not exercise supervisory contro~ over the injury producing work. Rather;_ they maintain that employer KONE was in charge of supervision of the work of their employee MacNair. At his depositi~n, he testified that he received all of his work . ' ·. instructions from his e~ployer, KONE, and that he never received any work instructions, direction or supervision from defendants. Plaintiff responds that questions of fact exist reg~ding defendants' control over the means and methods of MacN:air's work at the time he was injured sufficient to withstand summary judgment. Specifically,:plaintiff argues that a safer alternative could have beer{ provided and that defendants controlled the loading dock and bay schedule that dictated the debris removal process. Nevertheless, these arguments are irrelevant to a Labor Law § 200 claim. The undisputed testimony is that no defendants were on notice of a dangerous. or defective condition, specifically .. . . . the defective wheels on the cart, nor did defendants control the means or methods of the work that caused the cond~tion. Pl~intiff has failed to raise an issue of fact to rebut defendants' _plaintiffs primafacie showing. Accordingly, defendants/third-party plaintiffs motion to dismiss plaintiffs claims· pursuant to Labor Law § 200 is granted. Plaintiffs papers are silent as to what notice, if any, defendants had regarding the dangerous condition that caused plaintiff's accident. Further, plaintiff does not contend that defendants had the· ability to control the specific activity which caused his injury, but, rather~ that they controlled the loading dock, which could have been used as an alternative means for debris rem~)Val. Accordingly, the portion of defendants'.. motion that seeks summary judgment as to its Labor Law § 200 claims is granted. 3. Loss of Services Claim l:.,astly, defendants move to dismiss_ Janine !vfacNair' s derivative loss of services claim on the ground that MacNair's primary claims for Labor Law § 200, 240(1), and 241(6) should be 150364/2020 Motion No. 001 [* 12] & 002 Page 12 of 14 12 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 dis~iss~d. As the Cou~ lias granted ;umm~ judgment i~ MacNair.'s Labor Law§ 240'(1) and 241 (6) claims, as deta~led. above, Jariine MacNair' s loss of servic~s claim on those counts survives. . . . . . . . ' However, piaintiffs' derivative_ claims with respect to Labor Law § 200 are dismissed, as a derivative claim cann~t stand where the primary claims ru-e dismissed. See Kaisman v Hernandez, . 61 AD3d 565, 566 (1st Dept 2009). III. Conclusion Accordingly, it is . . . . ORDERED that defendants' motion for s~ary judgment to dismiss the complaint is granted, in part, to .the extent that plaintiffs' prim_ary and derivative Labor Law § 200 claim is dismissed and severed from the remaining claims; and it is furth~r ORDERED that plaintiffs' motion for summary judgment is granted as to their Labor Law . . . . . . . § 240(1) claim and their Labor Law§ 241(6) claiips premised on violations oflndustrial Code 12 NYCRR §§ 23-l.28(b) and 23-l.5(ci3); and it is further · .. . .. ORDERED that the remaind~r of plaintiffs' Labor Law § 24 J (6) claims are dismissed as abandoned, and it is further ORDERED_that, _as it appears to the court that plaintiffs are entitled tojudgment on their• . Labor Law § 240(1) claim and their Labor· Law§ 241(6) claims . premised on violations of . .· : . . Industrial Code 12 NYCRR §§ 23-l.28(b) and 23-l.5(c)q), and that the only tr.iable issues of fact arising out of plaintiff's motion for summary judgment relate-to the amount of damages to which plaintiffs are entitled, it is ORDERED th,it an im~ediate trial of the issues ~egarding-damages shall be had before the • I '. • • • court; and it is further 150364/2020 Motion No. 001 & 002 [* 13] Page 13 of 14 13 of 14 INDEX NO. 150364/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 10/27/2023 ORDERED.that plaintiff shall, within 20 days from entry of this order, serve a copy of this order with notice of entry upon counsel for· all parties hereto and upon the Clerk of the General Clerk's Office and. shall setve and file with said Clerk a note of issue and statement of readiness and shall pay the fee therefor, and said Clerk shall cause the matter to be placed upon the calendar for such trial; and it i~ further ORDERED that such service upon the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website). The foregoing constitutes the decision and order of the_ Court. 10/27/2023 DATE. CHECK ONE: 'cASE DISPOSED ·. APPLICATION: CHECK IF APPROPRIATE: _GRANTED . . . . DENIED POSITION SETTLE ORDER SUBMIT ORDER ;NCLUDES TRANSFER/R~SSIGN FIDUCIARY APPOINTMENT . 150364/2020 Motion No. 001 & 002 [* 14] NON-FIN GRANTED IN PART '· OTHER D REFERENCE. Page 14of 14 14 of 14

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