Impagliazzo v Judlau Contr., Inc.

[*1] Impagliazzo v Judlau Contr., Inc. 2023 NY Slip Op 50952(U) Decided on September 8, 2023 Supreme Court, Kings County Maslow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 2023
Supreme Court, Kings County

Ciro Impagliazzo, Plaintiff,

against

Judlau Contracting, Inc., Port Authority of New York and New Jersey, and Metropolitan Transportation Authority, Defendants



Index No. 524584/2019



Pellegrini & Associates, LLC, New York City (Juan C. Restrepo-Rodriguez of counsel), for Plaintiff.

Cullen and Dykman LLP, New York City (Tushar Ahuja of counsel), for Defendants Judlau Contracting, Inc. and Metropolitan Transportation Authority.
Aaron D. Maslow, J.

The following numbered papers were read on this motion:

NYSCEF Doc No. 32: Notice of Motion for Partial Summary Judgment

NYSCEF Doc No. 33: Affirmation of Julianne Friedman, Esq. in Support of Motion

NYSCEF Doc No. 34: Statement of Material Facts of Julianne Friedman, Esq.

NYSCEF Doc No. 35: Summons and Complaint, Answer and Verified Bill of Particulars

NYSCEF Doc No. 36: Affidavit of Andrew Yarmus, P.E.

NYSCEF Doc No. 37: Affidavit of Merit of Plaintiff

NYSCEF Doc No. 38: Plaintiff EBT Transcript with Marked Exhibits

NYSCEF Doc No. 39: Plaintiff's 50-h Transcript

NYSCEF Doc No. 40: Defendant Judlau Contracting, Inc.'s Deposition Transcript

NYSCEF Doc No. 41: WCB C-3 Employer's Report of Work-Related Injury & MTA Report

NYSCEF Doc No. 42: Subcontract Agreement Between Judlau and IMP Plumbing

NYSCEF Doc No. 43: Contract Between Port Authority of NY & NJ, MTA & Judlau

NYSCEF Doc No. 44: MTA Daily Survey Reports, MTA Safety Reports

NYSCEF Doc No. 45: Certification of Signature by Julianne Friedman, Esq.

NYSCEF Doc No. 46: Notice of Change of Firm Name or Address

NYSCEF Doc No. 47: Notice of Cross-Motion for Summary Judgment

NYSCEF Doc No. 48: Affirmation in Opposition to Summary Judgment

NYSCEF Doc No. 49: Notice of Claim and 50-h Notice

NYSCEF Doc No. 50: Plaintiff's 50-h Transcript

NYSCEF Doc No. 51: Summons and Complaint

NYSCEF Doc No. 52: Defendants' Answer and BP Demand

NYSCEF Doc No. 53: Order Dismissing Port Authority of NY & NJ with Notice of Entry

NYSCEF Doc No. 54: Verified Bill of Particulars of Plaintiff

NYSCEF Doc No. 55: Plaintiff's Deposition Transcript

NYSCEF Doc No. 56: Judlau Contracting, Inc.'s Deposition Transcript

NYSCEF Doc No. 57: Photograph of Rebar Mat

NYSCEF Doc No. 58: Affidavit of David B. Peraza, P.E.

NYSCEF Doc No. 59: Defendants' Memorandum of Law in Opposition to Plaintiff's Motion

NYSCEF Doc No. 60: Affidavit of Service

NYSCEF Doc No. 61: Defendants' Counter-Statement of Material Facts

NYSCEF Doc No. 62: Notice of Cross-Motion for Summary Judgment

NYSCEF Doc No. 80: Affirmation of Julianne Friedman, Esq. in Reply and in Opposition

NYSCEF Doc No. 81: Certification of Signature by Julianne Friedman, Esq.

NYSCEF Doc No. 82: Response to Defendants' Statement of Material Facts

NYSCEF Doc No. 83: Certification of Signature by Julianne Friedman, Esq.

NYSCEF Doc No. 84: Affirmation in Reply and Opposition by Julianne Friedman, Esq.

NYSCEF Doc No. 85: Certification of Signature by Julianne Friedman, Esq.

NYSCEF Doc No. 86: Response to Defendants' Statement of Material Facts

NYSCEF Doc No. 87: Certification of Signature by Julianne Friedman, Esq.

Additionally, the transcript of oral argument on the subject motions was consulted; it will be uploaded to NYSCEF.

Upon the foregoing papers and having heard oral argument on the record from appearing counsel, the within motion is determined as follows.

I. Preamble

This Labor Law action emerges from an ever-recurring fact pattern. A worker trips and falls on a rebar mat at a worksite, causing injuries, prompting the institution of a discovery-laden Labor Law action, culminating in the parties interposing mirror-image motion and cross-motion summary judgment practice, endeavoring to wrest the liability phase of the case from the trier of fact.

Divagate from this well-worn paradigm the present case does not.

II. The Occurrence

This Labor Law action arises from Plaintiff Ciro Impagliazzo's alleged trip and fall on a foreboding rebar mat latticed with twelve-inch protruding Nelson studs set eight inches apart in a grid pattern at a construction project on October 19, 2018, causing him to sustain injuries (see NYSCEF Doc No. 57, photograph of rebar; NYSCEF Doc No. 37, Plaintiff Aff ¶¶ 5-6, 8-10).

The occurrence unfolded amidst a construction project in the New York City subway system's storied World Trade Center Cortlandt Street Station (see NYSCEF Doc No. 35, Complaint ¶¶ 14, 16).

III. The Parties' Interrelationships

At the time of the October 19, 2018 occurrence ("Occurrence"), Plaintiff Ciro Impagliazzo ("Plaintiff"), a veteran plumbing foreman supervisor, was employed by IMP Plumbing & Heating Corp. ("IMP Plumbing") (see NYSCEF Doc No. 35, Plaintiff Bill of Particulars ¶ 6).

Defendant Judlau Contracting, Inc. ("Judlau Contracting") retained Plaintiff's employer, IMP Plumbing, as the plumbing subcontractor for the construction project ("Construction Project"), which entailed a rehabilitation of the then rough-hewn Cortlandt Street Station, damaged when the majestic Twin Towers succumbed during the September 11, 2001 ordeal that befell our City (see NYSCEF Doc No. 40, Wendel Thomas EBT transcript at 9-11).

Judlau Contracting was the contractor/construction manager on the Construction Project, which entity was hired by Defendants Port Authority of New York and New Jersey ("Port Authority") and Metropolitan Transportation Authority ("MTA") to furnish work, labor and services necessary for the Construction Project (see NYSCEF Doc No. 37, Plaintiff Aff ¶¶ 2-3). At the time of the Occurrence, the Port Authority was the owner of the area where Plaintiff allegedly tripped and fell, namely, the rebar mat, and the MTA was granted an easement from the Port Authority with respect to the rebar mat in question (see transcript of July 13, 2023 oral argument at 8).

Wendel Thomas was employed by Judlau Contracting as a superintendent on the Construction Project (see NYSCEF Doc No. 37, Plaintiff Aff ¶3).

IV. The Grant of the Port Authority's Motion to Dismiss

Kings County Supreme Court Justice Wavny Toussaint issued an order dated February 26, 2020, granting the motion to dismiss interposed by the Port Authority (see NYSCEF Doc No. 53, Order). Accordingly, two defendants remain in this action, to wit, Judlau Contracting and the MTA ("Defendants").

V. The Parties' Motions

At the close of discovery, the parties interposed dueling motions for summary judgment.

Plaintiff has moved for partial summary judgment as to liability on his Labor Law § 200 claim, as well as on his Labor Law § 241 (6) claim (Motion No.3) (see NYSCEF Doc No. 32, Notice of Motion).

In turn, Judlau Contracting and the MTA have interposed a cross-motion for summary judgment dismissing Plaintiff's Complaint on the ground that there is no issue of fact that Defendants were not negligent and did not violate Labor Law §§ 240 (1), 200 or 241 (6) (Motion #4) (see NYSCEF Doc No. 62, Notice of Cross-Motion).

VI. The Standard on Summary Judgment

The Court of Appeals has encapsulated the courts' approach to the drastic summary judgment remedy under CPLR 3212 as follows in a seminal case:

Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law. Since it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Coop. v. Briarcliff Farms, 17 NY2d 57). But when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.(Andre v Pomeroy, 35 NY2d 361, 364 [1974].)

As the Court of Appeals cautioned in Pomeroy with respect to the application of the summary judgment remedy in the context of negligence actions:

Normally, if the facts are uncontested summary judgment is appropriate. However, this is not always so in negligence suits, because even when the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law.Thus as a practical matter summary judgment continues to be a rare event in negligence cases. But this does not mean that the court is obliged, on policy grounds, to ferret out speculative issues "to get the case to the jury," where the trial may disclose something the pretrial proceedings have not.(Id.)

The Court of Appeals' guidance as to the application of the summary judgment standard in the negligence arena presages the ultimate outcome of the parties' present motion practice.

VII. The Scope of Plaintiff's Duties at the Time of the Occurrence

Plaintiff has been employed by IMP Plumbing as a plumber for over three decades, namely, since 1988, and has steadily ascended the rungs of his plumbing avocation from plumbing helper to journeyman plumber to plumbing foreman supervisor, which latter position he has held for approximately a decade (see NYSCEF Doc No. 38, Plaintiff EBT transcript at 26-27).

On the date of the October 19, 2018 Occurrence, Plaintiff was on the site of the Construction Project to assess plumbing-related punch list work at the behest of IMP Plumbing after the Construction Project had already been substantially completed (see NYSCEF Doc No. 39, Plaintiff 50-h transcript at 23-24). In short, on the date of the Occurrence, Plaintiff was not on site to perform work, but, instead, to assess which materials would be needed to perform plumbing work upon his return to the site on the following day (see id. at 37).

On the date of the Occurrence, Plaintiff met Judlau Contracting superintendent Wendel Thomas at the Construction Project to conduct a walkthrough site inspection to ascertain the plumbing-related work that remained to be performed (see id. at 27).

VIII. The Autonomous Nature of Plaintiff's Duties

Based on Plaintiff's testimony during his examination before trial, coupled with his 50-h hearing, in his capacity as a veteran plumbing foreman supervisor, he performed his work duties in an all but autonomous fashion. As Plaintiff underscored during his 50-h hearing, no one told him how to perform his work (see id. at 73).

Likewise, Plaintiff testified during his examination before trial that no one from the MTA, the Port Authority or Judlau Contracting, including Judlau Contracting superintendent Wendel Thomas, ever told him how to perform his plumbing work (see id. at 151-152; NYSCEF Doc No. 39, Plaintiff 50-h transcript at 134-135).

To the contrary, as Plaintiff made clear during his examination before trial, he wielded substantial authority as a plumbing foreman supervisor, as he bore responsibility to direct the labors of a contingent of approximately six or seven workers whom he supervised in connection with the Construction Project (see NYSCEF Doc No. 38, Plaintiff EBT transcript at 40). As Plaintiff explained during his 50-h hearing, he was responsible for instructing the workers in his crew how to perform their work duties (see NYSCEF Doc No. 39, Plaintiff 50-h transcript at 73).

IX. The Locus of the Occurrence

The Occurrence arose in a large open area, which was under construction in the subway station known as the World Trade Center Cortlandt Street Station ("Cortlandt Street Station") (see NYSCEF Doc No. 38, Plaintiff EBT transcript at 66-67, 89; NYSCEF Doc No. 39, Plaintiff 50-h transcript at 131).

On the day of the Occurrence, other workers were in the area, installing rebar in preparation for the concrete pouring process, as a prelude to the building of a wall (see NYSCEF Doc No. 38, Plaintiff EBT transcript at 156-157). As Plaintiff testified during his deposition:

Q. So you think they were putting — you said they were putting rebar up for a concrete pour?A. Yes. Yes. Yes.Q. And you're saying they're putting rebar up for a concrete pour to create a wall?A. Yes.(NYSCEF Doc No. 38, Plaintiff EBT transcript at 156-157).

During his examination before trial, Plaintiff identified, by means of a photograph marked for identification as Exhibit C, the area where the October 19, 2018 accident arose, in which area had been placed a rebar mat latticed with protruding Nelson studs (see NYSCEF Doc No. 57, photograph of rebar). As Plaintiff testified during his examination before trial:

Q. Okay. So just going back quickly here, just showing you Exhibit C again. So the entire length of, I guess, the rebar area, the rebar flooring, would be approximately 20 feet or so until the underside?A. Approximately, yes.Q. All right.A. Yes.Q. Based upon this photograph that you're looking at right now, would you be able to identify the actual area or location where your incident took place?A. It was somewhere in the — it was somewhere in the middle right there. I don't know. Somewhere in the middle.Q. Somewhere closer to the middle area?A. About halfway, yes.Q. Okay. Were you closer to one edge or one side or the other or were you walking more or less in the middle?A. I was in the middle. I don't recall exactly.(NYSCEF Doc No. 38, Plaintiff EBT transcript at 89-90; see NYSCEF Doc No. 57, photograph of rebar).
X. The Occurrence and the Moments Leading to the Occurrence

On the date of the October 19, 2018 Occurrence, at approximately 11:30 a.m., Plaintiff, an employee of IMP Plumbing, alleges that he met with Wendel Thomas, a superintendent with Judlau Contracting, at the Construction Project (see NYSCEF Doc No. 37, Plaintiff Aff ¶ 6). Plaintiff and Wendel Thomas met in the yard on the ground level to discuss the scope of the work that IMP Plumbing was to complete on behalf of Judlau Contracting, as well as the completion deadline (see id.).

Thereafter, Plaintiff asserts that Wendel Thomas took him downstairs to examine the work to be performed (see id.). Wendel Thomas needed piping to be integrated into the underside of staircase H (see id.). To accomplish this task, Plaintiff explains that he was [*2]required to go to the underside of staircase H to ascertain which materials and supplies would be needed to complete the requested task, which task was to be performed on the following workday (see id.).

As Plaintiff recounts in his affidavit, "Wendell [sic] Thomas personally ushered me and my helper to the work site. He led, we followed" (id. ¶ 7).

To get to the worksite location, Plaintiff asserts that he and his helper followed Wendel Thomas down a thirty-foot ladder onto a platform deck of plywood, which plywood covered part of a rebar mat flooring and extended out for approximately twenty feet (see id. ¶ 8). Plaintiff and Wendel Thomas then stepped down a distance of approximately twelve to eighteen inches from the platform in question onto a latticed rebar mat laced with twelve-inch Nelson studs, set eight inches apart in a grid pattern (see id. ¶ 8).

To reach the underside of staircase H, Plaintiff alleges that he would need to walk across approximately twenty feet of the rebar mat flooring in question, then step up onto a concrete landing (see id. ¶ 9). Plaintiff asserts that he attempted to follow Wendel Thomas across the subject rebar mat flooring to reach his worksite. As Plaintiff testified during his 50-h hearing:

Q. Now who walked across the rebar area first; do you recall?A. I think the - Wendell [sic] Thomas was in front of me.Q: Okay. So Wendell [sic] Thomas was in front.A: He's showing me where to go. He's walking the area. He's taking us there.(NYSCEF Doc No. 39, Plaintiff 50-h transcript at 32).

Plaintiff alleges that when he was approximately halfway across the rebar mat flooring in question, he fell (see NYSCEF Doc No. 37, Plaintiff Aff ¶ 9).

XI. The Genesis of the Fall

Plaintiff asserts that he fell due to the unique configuration of the latticed rebar and protruding Nelson studs, a configuration he purports to have never before encountered (see id. ¶ 10).

Plaintiff alleges that, while in the past he had experienced no issue walking across normal rebar, in contrast, the rebar at issue in this action, featuring protruding Nelson studs every eight inches, rendered one's attempt to navigate across exceedingly onerous (see id. ¶ 11). Plaintiff recounts that on the day of the Occurrence he endeavored to walk on the top edge of the rebar all the while navigating between the studs, attempting to keep his balance (see id.).

Plaintiff describes the moment of his fall in his affidavit as follows:

12. As I attempted to walk across the unique rebar matting, my foot went down into the area between the rebar and studs, my foot/ankle got twisted in between the rebar. I lost my balance and control, my foot got caught up in the rebar, I twisted my ankles, and I fell onto my outstretched arms. I extended my arms to prevent myself from being impaled on the nelson studs. My right knee smashed into one of the studs. As a result of my fall I injured by [sic] ankles, shoulders, neck and back.(Id. ¶ 12.)

Plaintiff explains that as he was walking across the studded latticed rebar, he is not certain whether his foot slipped off the rebar, or whether it first got caught up on the rebar and Nelson studs, or some combination of both (see id. ¶ 13). Plaintiff accounts for this uncertainty based on the ephemeral nature of the Occurrence (see id.). The foregoing notwithstanding, Plaintiff alleges that he is confident of the following: In his attempt to navigate the latticed rebar mat with its field of Nelson studs, his foot/ankle got twisted in between the rebar and he fell "in [*3]a split second" (id.).

Plaintiff claims that he was in no rush as he crossed the rebar mat and that he proceeded cautiously (see id. ¶ 14).

XII. The Absence of an Alternate Route

Plaintiff asserts that there was no alternate route other than to traverse the rebar mat latticed with twelve-inch protruding Nelson studs to get to the worksite location on the day of the Occurrence, namely, the underside of staircase H, in which area Wendel Thomas, from Judlau Contracting, requested Plaintiff install piping (see id. ¶ 6, 15).

As Plaintiff testified during his examination before trial:

Q. Now, Mr. Impagliazzo, apart from going across the actual rebar with the studs, was there any other way to access the underside of staircase H?A. No.Q. There were no little walkways or anything on the sides or anything like that?A. Nothing. Nothing.Q. And it wouldn't be accessible from another point from above ground to get to the — to the other side of staircase H?A. No.(NYSCEF Doc No. 38, Plaintiff EBT transcript at 114-115).

In short, Plaintiff followed Wendel Thomas in traversing the rebar mat on the day of the Occurrence since this was the only available route to access the work area.

Plaintiff explains that, on the date of the Occurrence, no walkway was positioned atop the rebar mat in question (see NYSCEF Doc No. 37, Plaintiff Aff ¶ 15).

Instead, Plaintiff underscores in his affidavit that "[a]s instructed by Wendell [sic] Thomas we proceeded to the worksite across the subject rebar mat" (id.).

XIII. Plaintiff Posits that Defendants Negligently Subjected Him to an Unsafe Tripping Condition — the Uncovered Rebar Mat Latticed with Twelve-Inch Nelson Studs

Plaintiff opines that Defendants negligently, and in violation of Labor Law provisions, directed or permitted Plaintiff to perform his work in such a manner that he was exposed to an unsafe tripping condition in the form of the uncovered rebar mat latticed with twelve-inch protruding Nelson studs set eight inches apart (see NYSCEF Doc No. 33, Friedman Aff ¶¶ 3-5).

Plaintiff alleges that Defendants negligently, and in contravention of the Labor Law, led him to walk across the rebar mat to reach his worksite, which uncovered rebar mat constituted a tripping hazard to the workers who were working on the Construction Project as well as to those workers using the area in question as a pathway to reach their worksite (see id. ¶ 4).

Specifically, Plaintiff argues that Defendants proximately caused his accident, and that he is entitled to partial summary judgment on the issue of liability pursuant to Labor Law § 200 (1), as well as Labor Law § 241 (6), predicated on a violation of the oft-invoked Industrial Code (12 NYCRR) § 23-1.7 (e) (1) and (2) (see id. ¶ 4).

XIV. Plaintiff's Position as to the Applicability of Industrial Code § 23-1.7 (e) (1) and (2)

The Industrial Code provision relied upon by Plaintiff as a vehicle to assert a Labor Law § 241 (6) claim — Industrial Code § 23-1.7 (e) (1) and (2) — reads as follows:

(e) Tripping and other hazards.(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.(Industrial Code § 23-1.7 [e] [1], [2].)

Plaintiff contends that Industrial Code § 23-1.7 (e) (1) and (2) is applicable to the October 19, 2018 Occurrence, warranting the grant of partial summary judgment in his favor under Labor Law § 241 (6)[FN1] (see NYSCEF Doc No. 33, Friedman Aff ¶¶ 32-33).

Specifically, Plaintiff alleges that the unique configuration of the rebar mat latticed with twelve-inch protruding Nelson studs (so-called "sharp projections" under the nomenclature adopted under Industrial Code § 23-1.7 [e] [1] and [2]) gave rise to a tripping hazard, which proximately caused Plaintiff's injuries as he tripped and fell while traversing the rebar mat in question (see id. ¶ 33).

Further, Plaintiff argues that the uncovered rebar mat in question was located in a work area that he was required to pass through to reach his worksite, and/or was in both a so-called "passageway" and a "work area," thereby triggering the application of Industrial Code § 23-1.7 (e) (1) and (2) (see id.).

XV. Plaintiff's Reliance on Industrial Code § 23-1.7 (e) (1) and (2) as a Vehicle to Assert a Labor Law § 241 (6) Claim Is Unavailing Since the Rebar Mat Was Integral to the Work

Plaintiff relies upon Industrial Code § 23-1.7 (e) (1) and (2) as a vehicle to assert a Labor Law § 241 (6) cause of action (see NYSCEF Doc No. 33, Friedman Aff ¶ 4).[FN2] A potent argument can be made that Plaintiff's claims arising under Industrial Code § 23-1.7 (e) (1) and (2) are unavailing given that the purported hazards associated with the rebar mat were an integral part of construction work.

Plaintiff's following admission during his 50-h hearing underscores the notion that walking across a rebar mat was integral to the work he performed:

Q. Had you walked across rebar before?A. Absolutely.Q: How many times have you walked across rebar before?A: I'm in construction. Sometimes every day.(NYSCEF Doc No. 39, Plaintiff 50-h transcript at 32-33 [emphasis added]).

Notably absent from Plaintiff's moving papers is any mention of the case law precedents [*4]set forth below involving the "integral-to-the-work" defense. As such, Plaintiff did not endeavor to distinguish such cases in his moving papers.

Significantly, the "integral-to-the-work" defense is applicable in the context of claims arising under Industrial Code § 23-1.7 (e) (1) and (2). As an appellate court has held:

At the outset, these arguments require us to address whether the "integral-to-the work" defense raised by defendants, but rejected by Supreme Court, equally applies to Industrial Code § 23-1.7 (e) (1), as well as section 23-1.7 (e) (2). We hold that it does. To the extent that our decision in Singh v 1221 Ave. Holdings, LLC (127 AD3d 607 [1st Dept 2015]), states otherwise, it directly conflicts with the Court of Appeals' holding in O'Sullivan v IDI Constr. Co., Inc. (7 NY3d 805, 806 [2006], affg 28 AD3d 225 [1st Dept 2006]), and we decline to follow Singh. As more recently stated by this Court, "the 'integral part of work' defense applies to 12 NYCRR 23-1.7 (e) (1)" (Conlon v Carnegie Hall Socy., Inc., 159 AD3d 655, 655 [1st Dept 2018]). Thus Conlon, not Singh, is in line with the Court of Appeals' view of how and when this defense may be applied. Accordingly, as a general rule, where Masonite is "an integral part of the construction," a Labor Law § 241 (6) claim whether predicated on an alleged violation of Industrial Code 12 NYCRR 23-1.7 (e) (1), or (e) (2), should be dismissed (Conlon, 159 AD3d at 655).(Krzyzanowski v City of New York, 179 AD3d 479, 480-481 [1st Dept 2020].)

Notably, New York courts have held that rebar, which, as in the present case, was installed as part of a construction project, is integral to the work, and, as such, does not constitute an actionable tripping hazard under Labor Law § 241 (6). In a case involving, as here, a plaintiff who allegedly sustained injuries while traversing rebar on a construction site, then-Justice Anil C. Singh [FN3] dismissed plaintiff's Labor Law § 241 (6) cause of action on the basis that rebar was integral to the work even though, as here, (1) plaintiff carpenter's work did not involve rebar and (2) there was no alternative route available to plaintiff on the construction site other than the rebar:

In short, there is no liability under Labor Law § 241 (6) where a plaintiff trips and falls on rebar steel that is an integral part of the ongoing work being performed. For example, in Tucker v Tishman Constr. Corp. of NY (36 AD3d 417, 417 [1st Dept 2007]), the First Department affirmed the dismissal of a cause of action under Labor Law § 241 (6), holding that since rebar steel over which plaintiff tripped was an integral part of the work being performed, not debris, scattered tools and materials, or a sharp projection, there was no liability under the Industrial Code. Likewise, the First Department dismissed a Labor Law § 241 (6) claim in Flynn v 835 6th Ave. Master L.P. (107 AD3d 614, 614-615 [1st Dept 2013]), based on plaintiff's testimony showing that the rebar that allegedly caused him to fall was in the process of being installed and, thus, integral to the ongoing work, defeating his claim of a violation of the Industrial Code. There is no dispute here that the rebar plaintiff slipped from was integral to the work. Therefore, the Labor Law § 241 (6) claim is dismissed.(Brown v 44th St. Dev., LLC, 48 Misc 3d 234, 246 [Sup Ct, NY County, 2015], affd 137 AD3d [*5]703 [1st Dept 2016].)

In a decision echoing its holding in Brown, the First Department held as follows in applying the "integral-to-the-work" defense in dismissing on summary judgment plaintiff's Labor Law § 241 (6) cause of action predicated on Industrial Code § 23-1.7 (e) (1) and (2) on, inter alia, the ground that the rebar over which plaintiff tripped was integral to the construction work being performed:

The record establishes that the area where plaintiff fell was not a passageway subject to Industrial Code (12 NYCRR) § 23-1.7 (e) (1) but a work area subject to section 23-1.7 (e) (2) (see Canning v Barneys NY, 289 AD2d 32, 34 [2001]), and that there is no liability under the latter section because the rebar steel over which plaintiff tripped was an integral part of the work being performed, not debris, scattered tools and materials, or a sharp projection (cf. id. at 34-35; see Lenard v 1251 Ams. Assoc., 241 AD2d 391, 393 [1997]).(Tucker v Tishman Constr. Corp. of NY, 36 AD3d 417 [1st Dept 2007].)

In a relatively recent decision involving, as here, a plaintiff's fall on rebar on a construction site, an appellate court once again granted defendant's motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action on the basis that the Industrial Code alleged to have been violated, Industrial Code § 23-1.7 (e) (2), was found to be inapplicable since the rebar on which plaintiff fell was an integral part of the construction work being performed:

Plaintiff's Labor Law § 241 (6) was properly dismissed, since Industrial Code (12 NYCRR) § 23-1.7 (e) (2) does not apply to the facts of this case. The affixed rebar dowel over which plaintiff fell was an integral part of the work being performed (see Thomas v Goldman Sachs Headquarters, LLC, 109 AD3d 421, 422 [1st Dept 2013]; Tucker v Tishman Constr. Corp. of NY, 36 AD3d 417 [1st Dept 2007]).(Letterese v A&F Commercial Bldrs., L.L.C., 180 AD3d 495 [1st Dept 2020].)

In a fairly recent case, the Appellate Division, Second Department, held as follows in a case where the fact pattern is quite similar to the one at bar:

We agree with the Supreme Court's determination granting that branch of Springline's motion which was for summary judgment dismissing the Labor Law § 241 (6) cause of action insofar as asserted against it. The cause of action alleging a violation of Labor Law § 241 (6) asserted by the plaintiff was predicated on Industrial Code (12 NYCRR) § 23-1.7 (e). This section of the Industrial Code, however, has no application where the object that caused the plaintiff's injury was an integral part of the work being performed (see Lopez v New York City Dept. of Envtl. Protection, 123 AD3d 982, 984 [2014]; Castillo v Starrett City, 4 AD3d 320, 322 [2004]).Springline established its prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241 (6) cause of action by demonstrating that the rebar on which the plaintiff caught his pants leg was an integral part of the construction (see Venezia v State of New York, 57 AD3d 522, 523 [2008]). In opposition, the plaintiff failed to raise a triable issue of fact regarding the alleged violation of Labor Law § 241 (6).(Mitchell v Caton on the Park, LLC, 167 AD3d 865, 866 [2d Dept 2018]; accord Johnson v Lend Lease Construction LMB, Inc., 164 AD3d 1222, 1223 [2d Dept 2018].)

Last, that Plaintiff was a plumbing foreman supervisor, and, as such, was not involved in working specifically with the rebar mat at the time of the Occurrence is of no moment with respect to the applicability of the "integral-to-the-work" defense. For instance, in a case involving a plaintiff painter's trip and fall on a construction project, which plaintiff's Labor Law § 241 (6) cause of action was predicated, as here, on Industrial Code § 23-1.7 (e) (1) and (2), the appellate court held that the integral-to-the-work defense "applies to things and conditions that are an integral part of the construction, not just to the specific task a plaintiff may be performing at the time of the accident" (Krzyzanowski v City of New York, 179 AD3d 479, 481).

Moreover, this Court rejects Plaintiff's reliance on the following other sections of the Industrial Code: §§ 23-9.8, 23-1.5; 23-1.7, and 23-2.1 (see Canty v 133 E. 79th St., LLC, 167 AD3d 548 [1st Dept 2018] [§ 23-1.5]; Longo v Long Island R.R., 116 AD3d 676 [2d Dept 2014] [§ 23-2.1]; Zamajtys v Colewa, 84 AD3d 1360 [2d Dept 2011] [§ 23-2.1]. Section 23-9.8 pertains to lift and fork trucks, clearly not applicable here. The following subdivisions within § 23-1.7 are plainly inapplicable on their fact and should be dismissed summarily: (a) (overhead hazards), (b) (falling hazards related to hazardous openings and falls during bridge or highway overpass construction), (c) (drowning hazards), (f) (vertical passage hazards), (g) (air-contaminated or oxygen deficient work areas), and (h) (corrosive substances).

Based on the foregoing, the Court grants Defendants' cross-motion for summary judgment dismissing Plaintiff's Labor Law § 241 (6) claim (Motion #4). Likewise, based on the above, the Court denies Plaintiff's motion for partial summary judgment as to liability on his Labor Law § 241 (6) claim (Motion #3).

XVI. Issues of Material Fact Bar Summary Judgment as to Plaintiff's Labor Law § 200 and Common Law Negligence Causes of Action
(a) The Parties' Sharply Contrasting Positions as to the Viability of Plaintiff's Labor Law § 200 and Common Law Negligence Causes of Action

The parties espouse diametrically opposed stances as to the viability of Plaintiff's Labor Law § 200 cause of action. Plaintiff has moved for partial summary judgment as to liability on his Labor Law § 200 cause of action (Motion #3) (see NYSCEF Doc No. 32, Notice of Motion at 1; NYSCEF Doc No. 35, Complaint ¶¶ 22-26). For their part, Judlau Contracting and the MTA have interposed a cross-motion for summary judgment dismissing Plaintiff's Complaint on the ground that there is no issue of fact that Defendants did not violate Labor Law § 200 and were not negligent (Motion #4) (see NYSCEF Doc No. 47, Notice of Motion at 1; NYSCEF Doc No. 32, Complaint ¶¶ 16-26).

Insofar as this case is rife with issues of material fact as to Plaintiff's Labor Law § 200 and common law causes of action, the grant of summary judgment sought by Defendants with respect to Plaintiff's Labor Law § 200 and common law negligence claims, and by Plaintiff as to his Labor Law § 200 claim, would be ill-advised.

The admonition by the Court of Appeals close to half a century ago that "as a practical matter summary judgment continues to be a rare event in negligence cases" since "there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances" has not fallen into desuetude (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]).

Labor Law § 200 (1) provides, in pertinent part, as follows:

1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All [*6]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.

Labor Law § 200 is a "codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" (Biafora v City of New York, 27 AD3d 506, 507 [2d Dept 2006]; see also Rizzuto v L.A. Wenger Constr. Co., 91 NY2d 343, 352 [1998]; Russin v Louis N. Picciano & Son, 54 NY2d 311, 316-317 [1981]; Wynne v State of New York, 53 AD3d 656, 657 [2d Dept 2008].)

(b) Issues of Material Fact Bar the Grant of Defendants' Summary Judgment Motion as to Plaintiff's Plaintiff's Labor Law § 200 and Common Law Negligence Causes of Action

Defendants' endeavor to convince this Court to deprive Plaintiff of the opportunity to present his Labor Law § 200 and common law causes of action to a trier of fact is in tension with the record and applicable case law.

Indeed, it is well-established that, with respect to injuries arising in the construction context, a plaintiff injured on a worksite may properly seek to establish liability on the part of the property owner or general contractor under Labor Law § 200 and common law negligence causes of action in circumstances in which the plaintiff can establish the existence of defects or dangers associated with the methods or materials of the work performed so long as the plaintiff can show that the defendant had the authority to supervise or control the performance of the work. This route to recovery available to plaintiffs having sustained injuries in the construction context is commonly referred to as the so-called "manner in which the work is performed" theory of liability.[FN4] The Second Department has described this viable theory of liability in the construction context as follows in a case involving a plaintiff construction foreman who allegedly sustained injuries on a construction site:

When a claim involves the manner in which the work is performed, meaning it arises out of alleged defects or dangers in the methods or materials of the work (see Ortega v Puccia, 57 AD3d at 61), recovery against the owner or general contractor for common-law negligence or a violation of Labor Law § 200 is unavailable unless it is shown that the defendant had the authority to supervise or control the performance of the work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]; Klimowicz v Powell Cove Assoc., LLC, 111 AD3d 605, 607 [2013]; Gallello v MARJ Distribs., Inc., 50 AD3d 734, 735 [2008]; Dooley v Peerless Importers, Inc., 42 AD3d 199, 204-205 [2007]).(Abelleira v City of New York, 120 AD3d 1163, 1164 [2d Dept 2014].)

It cannot credibly be gainsaid that Plaintiff has, at a minimum, raised an issue of material fact as to whether the evidence adduced in this case buttresses the assertion of plaintiff's Labor Law § 200 and common law causes of action under the so-called "manner in which the work is [*7]performed" theory of liability.

Indeed, at a minimum, the evidence adduced by Plaintiff raises an issue of material fact as to whether Defendants had the authority to supervise or control the performance of Plaintiff's work at the time of the Occurrence. Specifically, Plaintiff, through his testimony during his 50-h hearing as well as by means of his affidavit, has raised an issue of material fact as to whether Wendel Thomas, a superintendent with Judlau Contracting, led Plaintiff and his helper in, inter alia, traversing the rebar mat to reach Plaintiff's work area during the pivotal moments preceding the Occurrence.

As set forth at greater length above, Plaintiff explained in his affidavit that "Wendell [sic] Thomas personally ushered me and my helper to the work site. He led, we followed" (NYSCEF Doc No. 37, Plaintiff Aff ¶ 7).

To reach the worksite location, Plaintiff asserts that he and his helper followed Wendel Thomas down a thirty-foot ladder onto a platform deck of plywood, which plywood covered part of a rebar mat flooring and extended out for approximately twenty feet (see id. ¶ 8). Plaintiff and Wendel Thomas then stepped down a distance of approximately twelve to eighteen inches from the platform in question onto the latticed rebar mat laced with twelve-inch Nelson studs, set eight inches apart in a grid pattern (see id.).

To reach the underside of staircase H, Plaintiff alleges that he would need to walk across approximately twenty feet of the rebar mat flooring in question, then step up onto a concrete landing (see id. ¶ 9). Plaintiff asserts that he attempted to follow Wendel Thomas across the subject rebar mat flooring to reach his worksite. As Plaintiff testified during his 50-h hearing:

Q. Now who walked across the rebar area first; do you recall?A. I think the — Wendell [sic] Thomas was in front of me.Q: Okay. So Wendell [sic] Thomas was in front.A: He's showing me where to go. He's walking the area. He's taking us there.(NYSCEF Doc No. 39, Plaintiff 50-h transcript at 32.)

As detailed above, Plaintiff alleges that when he was approximately halfway across the rebar mat flooring in question, he fell (see NYSCEF Doc No. 37, Plaintiff Aff ¶ 9).

Last, Plaintiff underscores in his affidavit that "[a]s instructed by Wendell [sic] Thomas we proceeded to the worksite across the subject rebar mat" (id.).

In light of the above testimony and affidavit submitted by Plaintiff, an issue of material fact has been raised by Plaintiff as to whether Defendants had the authority to supervise or control the performance of Plaintiff's work at the time of the Occurrence. Naturally, the trier of fact shall be free to reject such proposition based upon, among other factors, the credibility determination process ingrained in its function.

Further, Plaintiff has, at a minimum, raised an issue of material fact as to whether he satisfies the second prong of the so-called "manner in which the work is performed" theory of liability, namely, establishing the existence of defects or dangers in the methods or materials of the work. It would be arduous to credibly contend that Plaintiff has not, at a minimum, raised an issue of fact with respect to this issue.

First, Plaintiff has submitted the affidavit of Andrew R. Yarmus, a licensed Professional Engineer. Albeit overstepping his function an as expert witness through his conclusion that "Defendants in this matter violated the requirements of New York State Labor Law § 200 (1) and 241 (6)" (NYSCEF Doc No. 36, Yarmus Aff ¶ 5), as well as through his speculation regarding Wendel Thomas's internal thought process (see id. ¶ 8), this expert nonetheless [*8]buttresses Plaintiff's contention that the rebar mat on which Plaintiff allegedly tripped and fell gave rise to an unreasonable risk of injury to Plaintiff due to Defendants' purported failure to cover the rebar mat with a temporary plywood sub-floor overlay or other like safety device (see id.).

As Andrew R. Yarmus, P.E. explains in his affidavit regarding the alleged unreasonable risk of injury posed by the rebar mat on which Plaintiff purportedly fell:

From that platform, the group of men stepped down approximately 12-18 inches onto a lattice rebar mat laced with 12 inch nelson studs/pins which were set 8 inches apart in a grid-like pattern. . . . They then attempted to walk across the 20 feet of said rebar mat flooring in order to reach, and step up onto a concrete landing. After Mr. Impagliazzo had traversed approximately halfway across the rebar mat, he fell; his foot/ankle got twisted in between rebar due to the unusual configuration of protruding nelson studs, which made the area difficult for him to navigate.7. Wendel Thomas, the supervisor in charge of the job for Judlau, was specifically aware of the unsafe access conditions at the work area, and yet still directed Ciro Impagliazzo and his co-worker to travel through the area on October 19, 2018, directly causing and resulting in the occurrence of the subject incident and injuries. Had a temporary plywood sub-floor overlay or similar safety measure been taken, Mr. Impagliazzo's incident and resulting injuries would have been easily prevented.(Id. ¶¶ 6-7 [emphasis added].)

Second, Plaintiff's affidavit provides the requisite factual armature for his engineering expert's affidavit in that the information set forth in the affidavit of Andrew Yarmus, P.E. is congruent with the facts delineated in Plaintiff's affidavit, which reads, in pertinent part, as follows:

8. . . . Then we stepped down (approx.. twelve to eighteen inches) from said platform onto a latticed rebar mat laced with 12" nelson studs/pins, set eight inches apart (in a grid pattern) . . . 9. To get to the underside of staircase H, I would need to walk across approximately 20 feet of said rebar mat flooring, then step up onto a concrete landing. I attempted to follow Wendel Thomas across said rebar mat flooring to reach my work site. However, when I was approximately halfway across said matt, I fell.10. I fell because of the unique configuration of the latticed rebar and protruding nelson studs; I never saw a configuration like this before.11. In the past I have had no problem walking across normal rebar, but the nelson studs, sticking up eight inches, made it extremely difficult to navigate across. I tried to walk on the top edge of the rebar while navigating between the studs, trying to keep my balance.12. As I attempted to walk across the unique rebar mating, my foot went down into the area between the rebar and studs, my foot/ankle got twisted in between the rebar. I lost my balance and control, my foot got caught up in the rebar, I twisted my ankles, and I fell onto my outstretched arms. I extended my arms to prevent myself from being impaled on the nelson studs.(NYSCEF Doc No. 37, Plaintiff Aff ¶¶ 8-12 [emphasis added].)

It is also worthy to note that while discussion of the "manner of the work" issue would suffice, it bears repeating that "Where a claimant's injuries stem . . . from a dangerous condition on its property, an owner may be liable for common-law negligence and violation of Labor Law [*9]§ 200 if it has actual or constructive notice of the dangerous condition, irrespective of whether it supervised the claimant's work (see Payne v 100 Motor Parkway Assoc., LLC, 45 AD3d 550, 553 [2007]; Kerins v Vassar Coll., 15 AD3d 623, 626 [2005]; Blanco v Oliveri, 304 AD2d 599 [2003]; see also Smith v Cari, LLC, 50 AD3d 879 [2008])" (Wynne v State of New York, 53 AD3d 656 [2d Dept 2008].

Based on the foregoing, Plaintiff has, at a minimum, raised an issue of material fact as to whether Defendants can be held liable under Plaintiff's Labor Law § 200 and common law negligence causes of action under the so-called "manner in which the work is performed" theory of liability, thereby warranting the denial of Defendants' cross-motion for summary judgment to dismiss Plaintiff's Labor Law §200 and common law negligence causes of action (Motion #4).

(c) Issues of Material Fact Bar the Grant of Plaintiff's Motion for Summary Judgment Motion on his Labor Law § 200 Cause of Action

Plaintiff's attempt to lead this Court to grant him the extraordinary relief of summary judgment against Defendants on his Labor Law § 200 cause of action is at odds with, among other evidence, Plaintiff's sworn admissions and Defendants' Professional Engineer's sworn report.

As detailed more fully in the preceding section, in the context of injuries arising in the construction arena, a plaintiff injured on a construction site may properly seek to establish liability on the part of the property owner or general contractor under Labor Law § 200 in circumstances in which the plaintiff can show the existence of defects or dangers associated with the methods or materials of the work performed if the plaintiff can also establish that the defendant had the authority to supervise or control the performance of the work. The Second Department has articulated the contours of this theory of liability in the construction context as follows:

When a claim involves the manner in which the work is performed, meaning it arises out of alleged defects or dangers in the methods or materials of the work (see Ortega v Puccia, 57 AD3d at 61), recovery against the owner or general contractor for common-law negligence or a violation of Labor Law § 200 is unavailable unless it is shown that the defendant had the authority to supervise or control the performance of the work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]; Klimowicz v Powell Cove Assoc., LLC, 111 AD3d 605, 607 [2013]; Gallello v MARJ Distribs., Inc., 50 AD3d 734, 735 [2008]; Dooley v Peerless Importers, Inc., 42 AD3d 199, 204-205 [2007]).(Abelleira v City of New York, 120 AD3d 1163, 1164.)

Based on five independent grounds, Plaintiff would be hard-pressed credibly to posit that the Defendants have not, at a minimum, raised issues of material fact as to whether the evidence proffered in this case buttresses the assertion of Plaintiff's Labor Law § 200 cause of action.

First, at the core of Plaintiff's Labor Law § 200 cause of action is the notion that the rebar mat on which he allegedly tripped and fell on the date of the Occurrence gave rise to an unreasonable risk of injury to Plaintiff due to Defendants' purported failure to cover the rebar mat with a temporary plywood sub-floor overlay or other similar safety device, as asserted in an affidavit by Andrew Yarmus, the licensed Professional Engineer retained by Plaintiff (see NYSCEF Doc No. 36, Yarmus Aff ¶ 8).

Plaintiff's position that no issue of material fact exists on this issue strains credulity. A quintessential "battle of the experts" has emerged on the temporary plywood cover issue, raising, [*10]at a minimum, an issue of fact barring the summary judgment sought by Plaintiff on his Labor Law § 200 cause of action. Indeed, David Peraza, the Professional Engineer retained by Defendants, adopts the following position on this issue, which is diametrically opposed to that of Andrew Yarmus, raising in the process an issue of material fact that can only be determined by the trier of fact:

In paragraph 8 of his Affidavit, Mr. Yarmus states, "Had a temporary plywood sub-floor overlay or similar safety measure been taken, Mr. Impagliazzo's incident and resulting injuries would have been easily prevented." It is not the industry practice to install plywood or similar material over a rebar mat, nor over Nelson studs. It is the industry practice for construction workers that need to traverse these areas to walk on the rebar mat itself. Nelson studs are not designed or intended to support flooring. Furthermore, installing a plywood sub-floor overlay would have been contrary to the work, as plywood would have prevented the concrete from being poured.NYSCEF Doc No. 58, Peraza Aff ¶ 26.)

Second, central to Plaintiff's Labor Law § 200 cause of action is the notion that the rebar mat on which he allegedly tripped and fell gave rise to an unreasonable risk of injury to Plaintiff by virtue of it being latticed with twelve-inch protruding Nelson studs set eight inches apart in a grid pattern (see NYSCEF Doc No. 37, Plaintiff Aff ¶¶ 5-10). Plaintiff's position that no issue of material fact exists on this issue is discordant with the following deposition testimony of a veteran of the construction industry, namely Plaintiff:

Q. And you've walked across rebar flooring similar to the one that you were walking on at the time of the incident on earlier occasions?A. Yes.Q. Okay. Have you ever had trouble walking across rebar flooring before?A. No.NYSCEF Doc No. 38, Plaintiff deposition transcript at 107.)

At a minimum, Plaintiff's above-quoted admission during his deposition raises a material issue of fact as to whether the rebar mat on which he allegedly tripped and fell gave rise to an unreasonable risk of injury to Plaintiff.

Third, Plaintiff's position that he is entitled to summary judgment on his Labor Law § 200 suffers from an inherent logical flaw. Plaintiff's position is necessarily predicated on establishing a causal nexus between his trip and fall and the purported unreasonable risk of injury posed by the rebar mat by virtue of its being latticed with twelve-inch protruding Nelson studs set eight inches apart in a grid pattern. Plaintiff's deposition testimony undermines the causal nexus in question in that he repeatedly denied as follows knowing what caused his incident, as well as whether his foot became caught on the rebar or on the Nelson studs:

Q. Can you describe what you felt at the moment your incident was starting to take place?A. What do you mean by what I felt?Q. Did you feel something on your foot, on either foot?A. I was walking across the rebar. I don't — somehow my ankle got twisted, and I went down. I don't know how it happened.Q. Did either of your feet either slip or trip on something prior to your fall?A. I don't know. I don't know. I wasn't trying to trip.NYSCEF Doc No. 38, Plaintiff deposition transcript at 108-109.)

Likewise, Plaintiff's further admitted the following during his deposition:

Q. Okay. Would you be able to identify anything that caused your incident to occur?A. No.(Id. at 110.)

Similarly, Plaintiff's conceded as follows during his deposition:

Q. Did you notice anything while you were walking and observing where you were stepping in terms of anything that could possibly cause you to trip or slip?A. No, I didn't.(Id. at 161.)

Fourth, Plaintiff's sworn admissions, at a minimum, raise an issue of fact as to whether Defendants had the authority to supervise or control the performance of his work at the time of the Occurrence, thereby all but vitiating Plaintiff's motion for summary judgment, which rests, in part, on Plaintiff's contention that he traversed the rebar mat on the date of the Occurrence at the instance of Wendel Thomas, Judlau Contracting's superintendent. As Plaintiff unequivocally conceded during his 50-h hearing:

Q. Does anyone tell you how to do your work and what to do?A. No. Absolutely not.(NYSCEF Doc No. 39, Plaintiff 50-h transcript at 73 [emphasis added].)

Plaintiff's 50-h testimony on this issue was not the fruit of any misapprehension on his part. Plaintiff echoed this testimony as follows during his 50-h hearing as follows, further underscoring that Wendel Thomas did not control the performance of his work:

Q. Did Mr. Thomas or anybody else from Judlau ever tell you what do [sic] or how to do your work?A. No.(NYSCEF Doc No. 39, Plaintiff 50-h transcript at 135.)

Fifth, Plaintiff's position that he is entitled to summary judgment on his Labor Law § 200 is undermined by his very affidavit, in which he concedes as follows that the rebar mat on which he allegedly tripped and fell was of a "unique configuration" that he had never before seen, thereby giving rise, at a minimum, to an issue of fact as to whether he was comparatively negligent in deciding to traverse an ominous rebar mat featuring protruding Nelson studs, which rebar mat he all but concedes was atypical in appearance:

10. I fell because of the unique configuration of the latticed rebar and protruding nelson studs; I never saw a configuration like this before.11. In the past I have had no problem walking across normal rebar, but the nelson studs, sticking up every eight inches, made it extremely difficult to navigate across. I tried to walk on the top edge of the rebar while navigating between the studs, trying to keep my balance.(NYSCEF Doc No. 37, Plaintiff Aff ¶¶ 10-11.)

Based on the foregoing, Defendants have, at a minimum, raised issues of material fact as to whether they can be held liable under Plaintiff's Labor Law § 200 cause of action, thereby warranting the denial of Plaintiff's motion for summary judgment on his Labor Law §200 cause of action (Motion #3).

XVII. Plaintiff's Labor Law §240 (1) Claim Should Be Dismissed Because His Accident Did Not Involve an Elevation-Related Hazard

Defendants have interposed a cross-motion for summary judgment to dismiss Plaintiff's [*11]Labor Law § 240 (1) cause of action (Motion #4).

Labor Law § 240 (1) provides, in pertinent part, as follows:

1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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 a person so employed.

A cogent argument can be made that Plaintiff's Labor Law § 240 (1) claim should be dismissed on the ground that the Occurrence did not involve an elevation-related hazard within the meaning of the statute.

Labor Law § 240 (1) imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks. As the Court of Appeals articulated this concept:

We recently had occasion to consider the nature of the occupational hazards to which Labor Law § 240 (1) was addressed. Noting that the statute " 'is to be construed as liberally as may be for the accomplishment of the purpose for which it was . . . framed' " (Koenig v Patrick Constr. Corp., 298 NY 313, 319, quoting Quigley v Thatcher, 207 NY 66, 68), we held in Rocovich v Consolidated Edison Co. (supra) that Labor Law § 240 (1) was aimed only at elevation-related hazards and that, accordingly, injuries resulting from other types of hazards are not compensable under that statute even if proximately caused by the absence of an adequate scaffold or other required safety device.(Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993].)

As a prerequisite to recovering under Labor Law § 240(1), Plaintiff must establish that the occurrence that led to his injuries constitutes the type of elevation-related hazard to which the statute applies. As the Court of Appeals has held:

Consistent with this statutory purpose we have applied section 240 (1) in circumstances where there are risks related to elevation differentials (see, e.g., Bland v Manocherian, 66 NY2d 452, supra; Zimmer v Chemung County Performing Arts, 65 NY2d 513, supra; Izrailev v Ficarra Furniture, 70 NY2d 813; Koenig v Patrick Constr. Corp., supra; Haimes v New York Tel. Co., supra).(Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991].)

As the Court of Appeals explained in a Labor Law case, to constitute a gravity-related hazard, a plaintiff's injuries must be "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." (Runner v New York Stock Exchange, Inc., 13 NY3d 599 [2009]).

For instance, in a case involving a plaintiff having slipped on ice on the roof of a building as he was installing a firewall in the context of a commercial building project, an appellate court dismissed plaintiff's Labor Law § 240 (1) claim on the following basis:

Here, plaintiff's alleged injury did not flow from the application of the force of gravity. He was not injured as the result of falling off or sliding down the slope of the roof, or attempting to prevent himself from doing so (see Milligan v Allied Bldrs., Inc., 34 AD3d 1268 [2006]; Grant v Reconstruction Home, 267 AD2d 555 [1999], appeal dismissed 95 NY2d 831 [2000], lv dismissed 95 NY2d 825 [2000]; Dorr v General Elec. Co., 235 [*12]AD2d 883 [1997]; compare Striegel v Hillcrest Hgts. Dev. Corp., supra; D'Acunti v New York City School Constr. Auth., 300 AD2d 107 [2002]). Rather, he was injured because he slipped and fell on ice, an accident that was in no way attributable to an elevation differential and could have happened at ground level (see Grant v Reconstruction Home, supra; Dorr v General Elec. Co., supra; White v Sperry Supply & Warehouse, 225 AD2d 130 [1996]). In other words, the hazard of slipping and falling on ice, even on top of a roof, does not entail a "risk[ ] due in some way to relative differences in elevation" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 515 [1991]; see e.g. Cundy v New York State Elec. & Gas Corp., 273 AD2d 743 [2000], lv denied 95 NY2d 766 [2000]; Francis v Aluminum Co. of Am., 240 AD2d 985 [1997]; Dorr v General Elec. Co., supra). Under these circumstances, we find no basis for imposing liability pursuant to Labor Law § 240 (1) and, therefore, this claim should have been dismissed (see Milligan v Allied Bldrs., Inc., supra; Cundy v New York State Elec. & Gas Corp., supra; Grant v Reconstruction Home, supra; Francis v Aluminum Co. of Am., supra; White v Sperry Supply & Warehouse, supra).(Favreau v Barnett and Barnett, LLC, 47 AD3d 996, 997-998 [3d Dept 2008].)

In the case at hand, as reflected in Plaintiff's affidavit, (1) Plaintiff did not fall from a height, (2) he does not allege that his accident was caused by virtue of the absence of a safety device to protect from a gravity-related risk and (3) he does not allege that his injuries were caused by a falling object (see NYSCEF Doc No. 37, Plaintiff Aff ¶¶ 1-17). Accordingly, a convincing argument can be advanced that Plaintiff was not faced with the type of gravity-related hazard contemplated by the statute.

As Defendants' expert, David B. Peraza, a Professional Engineer, cogently asserts in his affidavit:

11. Since Plaintiff was walking at the floor level, his work did not expose him to an elevation-related hazard or falling. As such Plaintiff's work did not require that he be provided with or use any fall protection equipment, including, for example, safety belts, harnesses, tail lines, lifelines, or safety nets. The use of such equipment while walking at the floor level would not be physically feasible or required to protect against a gravity-related fall hazard.12. In addition, Plaintiff's alleged accident was not caused by the absence, or inadequacy of a safety device needed to protect against an elevation or gravity-related hazard, as Plaintiff's task did not require that he be provided with any fall protection at all, such as a safety line. Plaintiff was not exposed to an elevation or gravity-related fall hazard, as he was walking at the floor level and not at any height.(NYSCEF Doc No. 58, Peraza Aff ¶¶ 12-13.)

Significantly, when pressed on the issue of Plaintiff's Labor Law § 240 (1) cause of action at oral argument and Defendants' cross-motion to dismiss this cause of action on summary judgment, Plaintiff's counsel responded "we concede" (see transcript of July 13, 2023 oral argument at 8-9).

Based on the foregoing, the Court grants Defendants' cross-motion for summary judgment to dismiss Plaintiff's Labor Law § 240 (1) cause of action (Motion #4).

XVIII. Conclusion

Accordingly, it is hereby ORDERED as follows:

(c) Plaintiff's motion for partial summary judgment as to liability on his Labor Law § 241 [*13](6) claim (Motion #3) is DENIED.(d) Plaintiff's motion for summary judgment as to liability on his Labor Law § 200 claim (Motion #3) is DENIED.(e) Defendants' cross-motion for summary judgment to dismiss Plaintiff's Labor Law § 241 (6) claim (Motion #4) is GRANTED.(f) Defendants' cross-motion for summary judgment to dismiss Plaintiff's Labor Law § 200 and common law negligence claims (Motion #4) is DENIED.(g) Defendants' cross-motion for summary judgment to dismiss Plaintiff's Labor Law § 240 (1) claim (Motion #4) is GRANTED.

Dated: September 8, 2023
AARON D. MASLOW
Justice of the Supreme Court of the State of New York Footnotes

Footnote 1:Labor Law § 241 (6) provides, in pertinent part, as follows: "6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."

Footnote 2:Lest there be any misapprehension, Plaintiff's counsel inaccurately refers to the Industrial Code section in question in a section of her Affirmation in Support as "Industrial Code §§ 23-1.17 (e) (1) and (2)," in lieu of "Industrial Code § 23-1.7 (e) (1) and (2)" (see NYSCEF Doc No. 33, Friedman Aff ¶ 4).

Footnote 3:Justice Anil C. Singh was subsequently elevated to the Appellate Division, First Department in May of 2017.

Footnote 4:An alternate route to recovery for a plaintiff injured in the construction context under Labor Law § 200 and common law causes of action is commonly referred to as the "dangerous condition" theory of liability (see Abelleira v City of New York, 120 AD3d 1163 [2d Dept 2014]; see also Wynne v State of New York, 53 AD3d 656, 657 [2d Dept 2008]). In light of this Court's determination that the first route to recovery (the so-called "manner in which the work is performed" theory of liability) gives rise to material issues of fact barring summary judgment, exploring the aforesaid alternate route to recovery would constitute surplusage.