Cerro v 97 Port Richmond Ave., LLC.

[*1] Cerro v 97 Port Richmond Ave., LLC. 2023 NY Slip Op 50969(U) Decided on September 4, 2023 Supreme Court, Richmond County DiDomenico, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2023
Supreme Court, Richmond County

Jose Cerro, Plaintiff,

against

97 Port Richmond Avenue, LLC., FRENCHIES PORT RICHMOND EQUITIES, LLC., AVID ARCHITECUTURE, PLLC., AARNA REALTY, INC. APPLESEED REALTY GROUP, INC., AND MASSARIA CONSTRUCTION CORP., Defendants.



97 PORT RICHMOND AVENUE, LLC. and FRENCHIES PORT RICHMOND EQUITIES, LLC., Third-Party Plaintiffs,

against

JUSTINO LANDSCAPING, INC., Third-Party Defendant.



Index No. 152277/2018


Plaintiff is represented by:
Brian James Vannella Esq.
Eleferakis, Elefterakis & Panek
80 Pine Street, New York, NY 10005

Defendant 97 Port Richmond and Frenchies Port Richmond are represented by:
David Alexander Lore Esq.
Milber, Makris, Pousadis & Seiden, LLP
1000 Woodbury Rd Ste 402, Woodbury NY 11797

Defendant Masseria Construction Corp. is represented by:
Amanda Nicole Chiarello Esq.
Gordon, Rees, Scully, Mansukhani, LLP
1 Battery Park Plz Fl 28, New York NY 10004


Catherine M. DiDomenico, J.

Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion

Sequence Numbers indicated abov
Document Numbered

Motion for Summary Judgment by 97 Port Richmond & Frenchies (006) 1
Motion for Summary Judgment by Plaintiff (007) 2
Motion for Summary Judgment by Massaria (008) 3
Opposition to 007 by Massaria 4
Opposition to 007 by 97 Port Richmond & Frenchies 5
Opposition to 008 by Plaintiff 6
Opposition to 006 by Plaintiff 7
Reply Affirmation by 97 Port Richmond & Frenchies 8
Reply Affirmation by Masseria 9
Reply Affirmation by Plaintiff 10
Memoranda of Law Supporting each Motion 11
Transcript of Oral Argument dated March 9, 2023 12

Procedural History

The present action was commenced by Plaintiff Jose Cerro by the filing of a Summons and Complaint on August 30, 2018. At commencement, the only defendants were 97 Port Richmond Avenue, LLC ("97 Port Richmond") and Frenchies Port Richmond Equities, LLC. ("Frenchies"). A Verified Answer to the Complaint was filed on April 19, 2019. On or about October 17, 2019, Defendants 97 Port Richmond and Frenchies commenced a third-party action against Third-Party Defendant Justino Landscaping Inc. ("Justino") by filing a Third-Party Summons and Complaint. Third-Party Defendant Justino failed to appear, and a Default Judgment was entered against them on September 15, 2020. As the third-party action, seeking indemnification, was reliant upon a resolution of the case in chief, an Inquest was scheduled to be conducted at the time of trial.

In addition to having commenced the present action, Plaintiff commenced a second action (Index No. 150521/2020), arising out of the same incident, by the filing of a Summons and Complaint on March 11, 2020. The defendants in that case were Avid Architecture, PLLC. ("Avid"), Aarna Realty Inc. ("Aarna"), and Appleseed Realty Group, Inc. ("Appleseed"). Plaintiff also commenced a third action (Index No. 150814/2020), arising out of the same incident, by the filing of a Summons and Complaint on June 4, 2020. The sole defendant in the third action was Masseria Construction Corp. ("Masseria"). Defendant Masseria filed a Verified Answer on December 30, 2020.

On or about August 3, 2020, Plaintiff filed a motion (Mot. Seq. No. 003) to consolidate the three actions, two of which were "pre-answer," into one case under Index Number 152277/2018. That motion was granted by Order of this Court dated September 18, 2020, resulting in the consolidated caption indicated above. Prior to consolidation, Defendant Avid had filed an unopposed motion to dismiss. That motion was granted by Order of this Court dated October 29, 2020. The claims against Defendant Aarna were voluntarily discontinued by Plaintiff on October 21, 2020. Finally, on December 10, 2020, Plaintiff filed a motion (Mot. Seq. No. 004) seeking a default judgment against Defendant Appleseed for their failure to appear. That motion was granted on the record of April 8, 2021, with a directive that Plaintiff settle an order on notice indicating that an Inquest would take place at the time of trial. A review of the Courts' e-filing system reveals that a proposed default order was never filed by counsel. To date there has been no appearance by Defendant Appleseed.

On July 15, 2022, Defendants 97 Port Richmond and Frenchies filed a motion (Seq. No. 006) pursuant to CPLR §3212 requesting an Order granting them summary judgment and dismissing Plaintiff's Complaint along with any cross claims asserted against them. On July 18, 2022, Defendant Masseria filed a similar motion (Seq. No. 008) also seeking an Order pursuant to CPLR §3212 dismissing Plaintiff's Complaint along with any cross claims. On that same date, Plaintiff filed his own motion for summary judgment (Seq. No. 007) seeking an Order resolving the issue of liability under Labor Law §240(1) in his favor against all remaining Defendants. Each motion has been extensively briefed including the submission of memorandum of law from each party. The motions were argued on March 9, 2023 and submitted for decision upon receipt of the transcript of oral argument.

Relevant Facts

The present case arises out of an incident that occurred on January 19, 2018. Most of the relevant facts relating to the incident are undisputed. The incident occurred in the abutting back yards of 94 Ann Street and 97 Port Richmond Avenue in Staten Island, New York. Both properties were owned by Defendant 97 Port Richmond. At the time of the incident Plaintiff Jose Cerro was employed by Third-Party Defendant Justino Landscaping. At his deposition, Plaintiff testified that the day before the incident Justino called him and informed him of the job, which entailed the removal of a tree which stood adjacent to a garage on the property. The tree was to be removed because its roots were damaging the foundation of the garage. While "tree removal" was a service offered by Justino, Plaintiff was not trained in proper removal procedure or safety and had never removed a tree for Justino before. Justino was hired by Defendant 97 Port Richmond and was given no instructions as to how the tree was to be removed. There was no written contract or plans addressing the work to be performed, only an oral agreement, followed by a written bill for $1,500.

On January 19th, Plaintiff and two co-workers reported to the job site and found that there were approximately six to seven inches of snow on the ground. Justino had provided their workers with chainsaws, ropes, and two 20-foot extension ladders for use on the job. No height related safety gear was provided, and the ropes were utilized to lower branches, not to tether the ladders or workers. One of Plaintiff's co-workers on the scene, identified by Plaintiff as "Pablo," oversaw the work that day and was responsible for providing instructions for the tree removal. Plaintiff testified that there were no other vehicles or people on the property other than the Justino crew and their truck at the time when the tree removal was being conducted.

The property at issue consisted of three structures, a residential house, a garage, and a commercial building. The back yard at issue was shared by the commercial building and the house. The garage was located in the shared back yard. The tree that Plaintiff was removing was located adjacent to the garage. A representative of Defendant 97 Port Richmond testified that the tree was actually located on an adjoining neighbor's property, but it is undisputed that its roots extended onto the properties at issue. The principals of 97 Port Richmond allegedly obtained permission to have the tree removed from its' owner, who is unidentified. Nothing was present in the back yard of the buildings other than the garage, Justino's truck, and a "construction dumpster." No one related to either property was on site to direct the Justino workers as to how to remove the tree. The Justino workers decided that the best way to remove branches from the tree was to climb atop the garage's roof. The workers first cleared an area of snow to place the [*2]ladders directly on the asphalt ground and then climbed up the ladders to stand atop the roof and cut branches with the chainsaws. As the branches fell, they landed in the Justino truck, which was parked under the tree, larger branches were lowered with the ropes.

The accident at issue occurred between 11 A.M and 12 P.M. Just before the accident, Plaintiff was in the bed of the truck arranging the cut branches. Plaintiff was called to the roof by one of his co-workers. Plaintiff exited the truck and climbed the same ladder that he had previously used to access the roof. However, just as Plaintiff reached the roof the bottom of the ladder "slipped backwards" causing Plaintiff to fall to the ground. Plaintiff testified that he does not know what caused the ladder to slip. At the time of the accident, the ladder at issue was extended to approximately 13 feet in height. The ladder had rubber "feet" where it met the ground.

Plaintiff's Complaint asserts a common-law claim of negligence against the named Defendants along with causes of action under sections §200, §240(1) and §241(6) of the Labor Law. Defendants 97 Port Richmond and Frenchies have asserted cross claims against Defendants Appleseed and Masseria for common-law indemnification. Defendants 97 Port Richmond and Frenchies have also commenced a third-party indemnification action against Plaintiff's employer Justino.

Applicable Law

Labor Law §240(1) imposes upon owners, contractors, and their agents, a nondelegable duty to provide workers proper protection from elevation-related hazards. See Mushkudiani v. Racanelli Constr. Group., Inc., 2023 NY Slip Op 04209 (2d Dept. 2023). The protections of the statute are implicated when a worker's task creates an elevation related risk of the kind that the safety devices listed in §240(1) are intended to protect against. See Thorpe v. One Page Park, LLC., 208 AD3d 818 (2d Dept. 2022). Liability is contingent upon the existence of a height related hazard contemplated by the statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein. See Narducci v. Manhasset Bay Assocs., 96 NY2d 259 (2001). To recover under §240(1) a plaintiff must demonstrate that a violation of the statute was the proximate cause of his or her injury. See Gordon v. Eastern Ry. Supply, 82 NY2d 555 (1993). Where applicable, the protection afforded by the statute is akin to strict liability and may only be defeated upon a showing that a plaintiff was the sole proximate cause of his or her own injuries by misusing, or choosing not to use, an available safety device. See Lojano v. Soiefer Bros. Realty Corp., 187 AD3d 1160 (2d Dept. 2020).

The burden of a party moving for summary judgment is to make a prima facie showing of entitlement to judgment as a matter of law. See Ferluckaj v. Goldman Sachs & Co., 12 NY3d 316 (2009). To satisfy this initial burden on a Labor Law §240(1) claim, a moving plaintiff must establish, among other things, that he or she was injured during the "erection, demolition, repairing, altering, painting or cleaning of a building or structure." Washington-Tatum v. City of New York, 2015 AD3d 976 (2d Dept. 2022). They must also show that the mechanism of injury was a "height related" risk implicated by the statute. See Cuevas v. Baruti Constr. Corp., 164 AD3d 447 (1st Dept. 2018). Once a prima facie entitlement to summary judgment is established, the burden shifts to the non-moving party to raise a material issue of fact regarding whether the Plaintiff could be found to be the sole proximate cause of his or her own injuries, the existence of a potential defense, or the inapplicability of the statue. See Cantre v. BLDG Oceanside LLC., 216 AD3d 451 (1st Dept. 2023).

Plaintiff's Motion for Summary Judgment

To meet his burden of establishing an entitlement to summary judgment, Plaintiff must first establish that the Defendants in this action are proper defendants under Labor Law §240(1). It is undisputed that Defendants Port Richmond and Frenchies are owners of the subject property, and thus constitute appropriate defendants for a Labor Law §240(1) claim. Plaintiff argues that Defendant Masseria Construction Corp. is also an appropriate defendant because that entity was involved as a "general contractor" of the renovation work allegedly being conducted in the buildings around the tree at issue. It is undisputed that Justino was hired by 97 Port Richmond, not Masseria Construction. However, the principal of Masseria Construction Corp., non-party Steven Masseria, is also one of two principals of Defendant 97 Port Richmond. Thus, Plaintiff argues that as 97 Port Richmond is the entity that hired Justino, and Steven Masseria is an "agent" of both 97 Port Richmond and Masseria Construction, both corporate entities become proper defendants for a Labor Law §240(1) claim.

If the defendants are proper, Plaintiff must next establish that the work being done at the time of the incident was a "height related risk" that falls under the purview of Labor Law §240(1). At the onset, Plaintiff acknowledges that trees are not structures, and thus "tree removal" is generally not protected work under Labor Law §240(1). See Lewis-Moors v. Contel of New York, Inc., 78 NY2d 942 (1991). However, the Court of Appeals has held that if tree removal services are "part" of a larger renovation of buildings that would trigger the statute, §240(1) liability can attach to ancillary workers. See Lombari v. Stout, 80 NY2d 290 (1992). The test is whether the tree removal is being performed during a larger construction project to facilitate an enumerated activity, or whether the work falls into a separate phase that is easily distinguishable from other parts of the larger project. See Prats v. Port Auth., 100 NY2d 878 (2003); see also Krencik v. Oakgrove Constr., Inc., 186 A.D3d 1006 (4th Dept. 2020). Finally, Plaintiff must establish that the mechanism of his injury was a height related risk, which is undisputed in this case, as a fall from a height of 13 feet falls under the purview of Labor Law §240.

When the accident occurred, Plaintiff was unaware whether a larger construction project was anticipated or taking place. Justino was not hired as a subcontractor by Defendant Massaria, it was hired by 97 Port Richmond as landowner. At his deposition, Steven Masseria testified on behalf of both 97 Port Richmond and Masseria Construction Corp. He testified that the tree was removed because its' roots were causing damage to the foundation of the garage. When he and his business partner decided to remove the tree, they were interested in renting the garage, but they were concerned about its structural stability. Mr. Masseria testified that he likely would have rented the garage regardless of whether the tree could be removed. Mr. Masseria further testified that when the accident occurred, renovation had not commenced on any adjacent building. Moreover, he claimed to have no personal knowledge as to if, or why, a dumpster was present in the back yard. Mr. Masseria testified that renovations of the surrounding buildings, which were conducted primarily by his company Masseria Construction Corp., commenced in June or July of 2018, at least five months after the accident.

Plaintiff argues that some degree of renovation or construction was already taking place at the time of the accident. However, the only evidence that Plaintiff offers to support this claim is his observation of a "construction dumpster" that was allegedly in the back yard on the date of the accident. Plaintiff testified that the dumpster was red, and contained "old wood, sheetrock, [*3]and black garbage bags." Plaintiff speculated that the debris and garbage may have come from the renovation of the nearby properties, but he admitted during his deposition that he did not see anyone working on a building, he could not see inside the buildings, and thus had no way of determining whether renovation work was being conducted. The record is silent as to who owned or rented the dumpster, or who filled it with garbage and debris.

Despite his admitted lack of personal knowledge, Plaintiff argues that the tree removal activity cannot be separated from the larger construction project because the very reason that the tree was being removed was to stop damage to the adjacent garage. In support of this argument Plaintiff relies upon Moreirea v. Ponzo, 131 AD3d 1025 (2d Dept. 2015). In Moreirea, a tree fell upon the roof of a house during a Hurricane. The fallen tree damaged the structural integrity of the roof requiring emergency repairs. The Plaintiff in that case was a tree removal worker that fell from the roof and was injured. In denying motions to dismiss Labor Law §240(1) claims the Appellate Division Second Department held that the tree removal work conducted was the "first step" in undertaking structural repairs to the roof of the building. That Court concluded that, as an exception to the general rule, "the protections of Labor Law §240(1) are to be afforded to tree removal when undertaken during the repair of a structure." Id. (emphasis added). To elucidate the Appellate Court's ruling, Defendants cite to the Moreirea appellate briefs which reveal that the tree removal and the roof repair in that case were conducted one after the other, on the same day.

Defendants' Motions for Summary Judgment

In opposition to Plaintiff's motion, Defendants do not attempt to raise triable issues of fact sufficient to warrant a trial. Rather, they accept many of the facts offered by Plaintiff and refer the Court to their own respective motions for summary judgment requesting dismissal of the case (Mot. Seq. Nos. 006 & 008). In sum and substance, Defendants argue that Plaintiff's Labor Law §240(1) and §241(6) causes of action are without merit as tree removal work does not fall under the ambit of either statute, and that the removal was separate and distinct from any subsequent renovation projects that occurred at least five months later. In addition, Defendant Massaria Construction raises a separate argument unique to its status as a proper defendant under the statute. Massaria argues that it is not a viable defendant under the Labor Law as it was not a "general contractor" at the time of the accident. Massaria argues that it was not performing renovation work at the time of the accident, that it did not hire Third-Party Defendant Justino as a subcontractor, and that it in no way supervised or controlled the tree removal. Finally, Defendants argue that Plaintiff's Labor Law §200 claim must fail as there is no evidence of negligence on the part of any Defendant.

Decision

a. Labor Law §240(1) & §241(6) Claims

As a general principle of law, tree removal is not an activity covered by Labor Law §240(1) or §241(6) as it does not relate to the erection, demolition, repair, or alternation of a building or structure. See Olarte v. Morgan, 148 AD3d 918 (2d Dept. 2017); see also Doran v. JP Walsh Realty Group, LLC, 189 AD3d 1363 (2d Dept. 2020). Thus, to gain the protection of these statutes Plaintiff must establish an exception to the general rule. Plaintiff argues that the [*4]tree removal he conducted was part of a larger construction project that included the renovation of a house, a commercial building, and the repair of a garage. Plaintiff argues that as those renovations involved structures, and the tree removal was related to those renovations, he should be afforded the protection of the Labor Law. See e.g. Lombardi v. Stout, 80 NY2d 290 (1992). Plaintiff further argues that he is entitled to Labor Law protection because the repairs to the garage were caused by the tree's roots and thus removal was the first necessary step to undertake structural repairs to that building. See Moreira v. Ponzo, Supra.

Despite Plaintiff's claims, the only evidence in the record indicates that construction had not yet commenced on any structure at the time when the tree was removed. Labor Law §240(1) provides "no protection to a plaintiff injured before any activity listed in the statue was under way." See Panek v. County of Albany, 99 NY2d 452 (2003); see also Martinez v. City of New York, 93 NY2d 322 (1999). This is true even where the work is incidental or necessary to a larger project that has not yet started or has been completed. See Jones v. Village of Dannemora, 27 AD3d 844 (3rd Dept. 2006); see also Adair v. Bestek Lighting & Staging Corp., 298 AD2d 153 (1st Dept. 2002). Steven Masseria testified that his company commenced renovations at least five months after the tree was removed, and that the tree removal was not related to the anticipated project. In addition, Defendant 97 Port Richmond has submitted an Affidavit from Mr. Jeffrey Geary, the president of the architectural firm involved in the planning of the renovations. According to Mr. Geary, the renovation plans were not even submitted to the Department of Buildings until August 1, 2018, at least seven months after the accident occurred. The only evidence offered by Plaintiff that construction work was ongoing when the accident occurred is his own speculative conclusion based upon the mere presence of a dumpster. Plaintiff offers no evidence as to who owned the dumpster, who used the dumpster, or what it was used for. Thus, Plaintiff's conclusory assertion that a larger construction project was underway is without probative value and is insufficient to support or defeat a motion for summary judgment. See Morales v. Westchester Stone Co. Inc., 63 AD3d 805 (2d Dept. 2009) see also Carlos v. New Rochelle Mun. Hous. Auth., 262 AD2d 515 (2d Dept. 1999); Crossett v. Wing Farm, Inc., 79 AD3d 1334 (3rd Dept. 2010).

As Defendants have established that the tree removal work conducted by Plaintiff was completed several months before any renovation work commenced it is, at best, "a separate phase easily distinguishable from other parts of the larger construction project." Rivera v. Santos, 35 A.D3d 700 (2d Dept. 2006). The subsequent renovation project was performed under a separate contract, by a different contractor, at a different time, and for a different purpose than the tree removal. See Cicchetti v. Tower Windsor Terrace, LLC., 128 AD3d 1262 (3rd Dept. 2015); see also Amendola v. Rheedlen, 125th St., LLC., 105 AD3d 426 (1st Dept. 2013). Under these circumstances, the tree removal conducted by Plaintiff did not constitute an enumerated activity under the statute, and Plaintiff is not entitled to coverage under Labor Law §240(1) or Labor Law §241(6). See Enos v. Werlatone, Inc., 68 AD3d 713 (2009); see also Radoncic v. Independence Garden Owners Corp., 67 AD3d 981 (2d Dept. 2009).

While not dispositive, it should also be noted that the repair work ultimately performed on the garage was to its foundation, which would not necessitate the type of height related risk addressed by Labor Law §240. "It is well settled that the 'special hazards' against which the legislature intended to protect workers under Labor Law §240 are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured." Torkel v. NYU Hosps. Ctr., 63 AD3d 587 (1st [*5]Dept. 2009); see also Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993). In essence, Plaintiff attempts to share the Labor Law protection that would theoretically be afforded to the workers subsequently repairing the garage, even though those workers were not engaged in work that would include a height related risk. Cf. Moreirea v. Ponzo, 131 AD3d 1025 (2d Dept. 2015) [Tree removal workers allowed to share the Labor Law protection afforded to construction workers tasked with repairing the structure's roof.]

As the scope of Plaintiff's work does not fall within Labor Law §240(1) or §241(6) the Court need not address the additional arguments made by Defendants. However, with respect to Defendant Massaria Construction Corp, the Court finds that it is not a proper party for Plaintiff's Labor Law causes of action. While "contractors" are permissible defendants under the statutes, Defendant Massaria has established that it had no connection whatsoever to Justino or Plaintiff. The only evidence in the record regarding how Justino was hired is the testimony of Steven Massaria who indicated that he and his partner jointly retained Justino's services as representatives of 97 Port Richmond Ave., LLC. There is no testimony, or documentary evidence in the motion record to suggest otherwise.

b. Labor Law §200 and Common Law Negligence Claims

Defendants have also established a prima facie entitlement to judgment as a matter of law dismissing Plaintiff's Labor Law §200 and common law negligence causes of action. "Labor Law 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work." Agosto v. Museum of Modern Art, 2023 NY Slip Op 04292 (2d Dept. 2023). "Liability on common-law negligence and Labor Law §200 causes of action generally fall into two broad categories: instances involving the manner in which the work was performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site." Nusio v. Legend Autorama, Ltd., 2023 NY Slip Op 04385 (2d Dept. 2023).

Here, Plaintiff fails to make any allegations sufficient to create a triable issue of fact regarding the negligent manner in which the work was performed. To do so he would have to establish that the Defendants possessed the authority to supervise or control the means and methods of the work. See Moscati v. Consolidated Edison Co. of NY, Inc., 168 AD3d 717 (2d Dept. 2019). Although every property owner technically has a general right to oversee the progress of work conducted on their property, mere general supervisory authority is not enough for liability to attach. See Jarnutowski v. City of Long Beach, 210 AD3d 881 (2d Dept. 2022). Under Labor Law §200, a defendant is deemed to have authority to supervise or control the work performed when that defendant "bears the responsibility for the manner in which the work is performed." See Kauffman v. Turner Constr. Co., 195 AD3d 1003 (2d Dept. 2021); see also Ortega v. Puccia, 57 AD3d 54 (2d Dept. 2008). Such is not the case here. The motion record establishes that Justino provided the equipment necessary for the job, provided instructions for how the job was going to be completed, and Justino workers were the only people present at the work site. Defendant 97 Port Richmond simply contracted with Justino to remove the tree and left the manner in which it was to be removed up to their professional judgment. Accordingly, any negligence claim involving the manner in which the work was performed must fail as a matter of law. See Marney v. Cornell Kent II Holdings, 194 AD3d 917 (2d Dept. 2021); see also Valencia v. Glinski, 2023 NY Slip Op 04152 (2d Dept. 2023).

As for the condition of the work site, an owner of real property is only liable if they either create a dangerous or defective condition or had actual or constructive notice of such a condition without remedying it. See Estrella v. ZRHLE Holdings, LLC., 2023 NY Slip Op 03848 (2d Dept. 2023). The duty addressed by Labor Law §200 does not extend to hazards that are part of, or inherent in, the work being performed or defects that the plaintiff was hired to repair. See Serpas v. Port Auth. Of NY & N.J., 192 N.Y.S.3d 617 (2d Dept. 2023). Plaintiff testified that the conjoined back yards contained nothing but a dumpster, the garage, and Justino's work truck. Plaintiff further testified that after clearing snow out of the way, the Justino workers placed the ladder on the asphalt ground. There are no allegations sufficient to raise a triable issue of fact regarding a dangerous or defective condition at the work site that could give rise to liability on the part of Defendants. The mere presence of snow on the ground is insufficient as Plaintiff indicated that they cleared the snow before they began working. Moreover, Plaintiff testified that he does not know why the ladder fell, so any suggestion that the snow was the cause is purely speculative. Accordingly, any negligence claim based upon a defective condition must also fail as a matter of law. See Calle v. City of New York, 212 AD3d 763 (2d Dept. 2023).

Conclusion

For the detailed reasons set forth above Plaintiff's motion for summary judgment (Seq. No. 007) against Defendants is hereby denied in its entirety. Defendants' motions for summary judgment (Seq. Nos. 006 & 008) are hereby granted in their entirety and Plaintiff's case is dismissed with prejudice as a matter of law. This constitutes the Decision and Order of this Court in relation to Motion Seq. Nos. 006, 007 and 008. Any issue raised in the motions addressed that is not specifically discussed herein is hereby denied.

Dated: September 4, 2023