The following papers number 1 - 5 were marked fully submitted on the 9th day of January.

Papers

Numbers

Notice of Motion for Summary Judgment by Plaintiff, with

Supporting Papers and Exhibits

(dated November 14, 2011)................................................................................1

Notice of Motion for Summary Judgment by Defendant, with Supporting

Papers and Affidavits

(dated November 14, 2011)................................................................................2

Memorandum of Law by Defendants

(dated November 14, 2011)................................................................................3

Affirmation in Opposition by Defendants

(dated January 5., 2012).....................................................................................4

Affirmation in Opposition and Reply by Plaintiff

(dated January 9, 2012)......................................................................................5

____________________________________________________________________ __________ [*2]

Upon the foregoing papers, the motion (No. 4115) for summary judgment by plaintiff Oscar Garcia (hereinafter "plaintiff"), and defendants' motion (No. 4218) for summary judgment seeking dismissal of the complaint are determined as follows:

The plaintiff, a dry wall laborer, wore stilts as he applied spackle to the ceiling of a garage at the site of a new home construction in Staten Island, New York on December 12, 2003. While working on the stilts, the plaintiff claims debris on the floor caused him to fall sustaining injuries.

Defendant Mt. Airy Estates, Inc. (Mt. Airy) was the owner of the real property where plaintiff was injured and defendant New Windsor Development Co. (New Windsor) was the general contractor hired by Mt. Airy. Defendant New Windsor hired defendant Blue Line Dry Wall Inc. (Blue Line) as a subcontractor to install sheetrock and drywall. Blue Line, in turn, hired DL Drywall, the plaintiff's employer, to actually perform the drywall installation. DL Drywall is not a party to this action. The plaintiff is seeking summary judgment on causes of action based upon violations of Labor Law §§ 200, 240(1) and 241(6) and common law negligence. The defendants seek dismissal of all of the plaintiff's causes of action.

The Appellate Division, Second Department in 2011 outlined that "[L]abor Law § 240(1) imposes non-delegable liability upon owners and contractors who fail to provide or erect necessary safety devices for the protection of workers exposed to elevation-related hazards, where such failure is a proximate cause of the accident ...[To the extent relevant, the statute] was specifically designed to prevent those types of accidents in which a scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person (Henry v Eleventh Ave, L.P., 87 AD3d 523, 524 [citations and internal quotation marks omitted]).

While the New York Court of Appeals has held that the Labor Law "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 573), it nevertheless remains that in order to establish a prima facie violation of Labor Law § 240(1), requires a plaintiff [to] demonstrate that the defendants violated the statute and [that said] violation was the proximate cause of his or her injuries (Andro v City of New York, 62 AD3d 919, 919).

The Court of Appeals in 2009 held, the single decisive question in determining whether Labor Law § 240(1) is applicable is whether the worker's injuries were 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 Exch. Inc., 13 NY3d 599, 603, accord Selazar v Novalex Contr. Corp., 18 NY3d 134; La Veglia v St. Francis Hosp., 78 AD3d 1123, 1126-[*3]1127). Here, plaintiff states that the cause of his fall was "debris...pieces of sheetrock...trimmings from wood and other things..." (see Plaintiff's Exhibit "M", pp 74-75), and that the stilts themselves did not malfunction. Thus, no issue has been raised suggesting that the stilts failed to perform the function required of them by statute or that they failed to allow plaintiff to safely perform his work at the required elevation (see Plaintiff's "Exhibit "M" p 75). In fact, there is no claim that plaintiff's injury resulted from any deficiency in the stilts rather than the debris which had been left on the floor. As a result it is undisputed that the hazard which caused the accident was "wholly unrelated" to the hazards contemplated by Labor Law § 240 (1). Accordingly, defendants' motion to dismiss plaintiff's claim under Labor Law § 240(1) must be granted, and the plaintiff's motion for summary judgment on that issue is denied (see Melber v 6333 Main Street, 91 NY2d 759, Ross v Curtis-Palmer Hydro_Electric.Co., 81 NY2d 494) .

Labor Law § 200

Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to work (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Lane v Fratello Constr. Co., 52 AD3d 575, 576). Accordingly, where a plaintiff's injuries are alleged to arise not from the manner in which the work was being performed but, rather, from a dangerous condition existing on the premises themselves, an owner or contractor may be held liable in common-law negligence and under Labor Law § 200 to the extent that either had control over the work site, created the dangerous condition, or had actual or constructive notice of the purported hazard (see Martinez v City of New York, 73 AD3d 993, 998, Van Salisbury v Elliott-Lewis, 55 AD3d 725, 726).

Here, the general contractor, New Windsor, failed to establish, prima facie, that it did not have control over plaintiff's work site, or that it did not create or have actual or constructive notice of the alleged dangerous conditions posed by the presence of debris on the floor above which plaintiff was working. In fact, when asked during his deposition if there was a "particular entity that was responsible for cleaning the job site of a particular home being constructed, Constantino Calinda, a supervisor for New Windsor, responded, "New Windsor Development Co." (see Plaintiff's Exhibit "O" p 16) . Mr. Calinda also testified that as the supervisor, he would assign laborers to clean-up the work site on a daily basis (see Plaintiff's Exhibit "O"pp 35-39). Given these admissions as well as the proof that the injured plaintiff's accident arose not from the manner in which the work was being performed, but rather from the allegedly dangerous condition of the work site, New Windsor is liable as a matter of law under Labor Law § 200 as well as in common-law negligence for the injuries allegedly sustained by plaintiff.

No evidence has been brought forward establishing that either Mt. Airy, the homeowner, or Blue Line, the subcontractor, exercised any supervision or control over plaintiff's work or the site at the time of his injury (see Ross v Curtis-Palmer Hydor-Elec. Co., 81 NY2d at 505-506; Rizzuto v Wenger Contr. Co., 91 NY2d at 353). Furthermore, plaintiff presented no evidence that either Mt. Airy or Blue Line either created or possessed actual or constructive knowledge of the dangerous condition which allegedly caused plaintiff's accident. Accordingly, plaintiffs's [*4]motion for summary judgment under Labor Law § 200 and/or common-law negligence must be denied.

Labor Law §241(6)

The Court of Appeals has ruled that "[F]inally, Labor Law § 241(6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (see Rizzutto v L.A. Wenger Contr. Co. Inc., 91 NY2d 343,348, see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). Deeming this responsibility to be "absolute" in Allen v Cloutier Constr. Corp. (44 NY2d 290, 300), the Court of Appeals held that Labor Law § 241(6) imposes liability upon an owner or general contractor for the negligence of a subcontractor, even in the absence of their control or supervision of the work site (see Ross v Curtis-Palmer Hydro-Elec. Co., supra at 502). In this case, there is no dispute that the Industrial Code sections upon which the plaintiff relies, i.e, 12 NYCRR 23-1.7 (e) (2) and 12 NYCRR 23-5.22, are sufficiently specific to support a claim under Labor Law § 241(6). Moreover, neither the owner, Mt. Airy, nor the general contractor, New Windsor have demonstrated their prima facie entitlement to judgment as a matter of law dismissing these causes of action against them.

As applicable, section 12 NYCRR 23-1.7(e)(2) of the Industrial Code requires owners and contractors to maintain working areas free from tripping hazards such as, inter alia, debris and other materials "insofar as may be consistent with the work being performed" Here, defendants have failed to rebut or contradict plaintiff's testimony that the work area in question was littered with such debris and other tripping hazards (see Plaintiff's Exhibit "M" p 74). Morever, 12 NYCRR 23-5.22 (e) provides as follows:

(a) Limited use.

(1) Stilts shall be used only for the work of taping joints in wallboard used for wall and ceiling construction, commonly known as dry wall construction. The use of stilts for any other purpose is prohibited.

"(2).... Any person who uses stilts in the performance of such taping work shall be qualified for such use.

* * *

(b) Notification of the commissioner. In every case where stilts are to be used, the employer shall notify the commissioner, in writing, of such intended use at least five days prior to such use. Such notification shall give the name and address of the person agreeing to use the stilts, the location of the job site where the stilts are to be used and the date when such use is to commence (emphasis added).

( c ) Scaffolds required. Whenever stilts are used, scaffolds commonly used and appropriate for wallboard construction and which are in compliance with this Part (rule) shall be provided at [*5]all times such work is being performed. Such scaffolds shall be readily available for any person performing such work who may elect to use such scaffold (emphasis added).

* * *

(e) Stilt elevation. Stilts shall not elevate the feet of any person more than 24 inches above the floor (emphasis added).

(f) Protection from hazards. Stilts shall be used only on even floor surfaces kept free from obstructions, materials, debris, accumulations of dirt or slippery substances. Persons on stilts shall not be suffered or permitted to work near any opening which is not covered or protected in compliance with this Part (rule) or otherwise guarded (emphasis added).

Here, plaintiff's undisputed and unopposed testimony reflects that (a) the stilts which he was using were approximately three to four feet in height; (b) debris remained on portions of the floor in the area in which he was required to work; ( c ) defendants failed to give the required notice to the Labor Commissioner that jobsite employees would be utilizing stilts during the construction; and (d) no scaffolds were shown to have been "readily available" to plaintiff. Consequently, both defendants Mt. Airy and New Windsor have failed to rebut plaintiff's prima facie demonstration of a right to judgment as a matter of law or raise any triable issue of fact regarding their purported violation of Labor Law § 241. Neither have they raised a triable issue that the cited provisions are inapplicable to the facts of the this case (see Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 619-620). Therefore, plaintiff is entitled to summary judgment on the issue of liability against defendants Mt Airy, as owner, and New Windsor, as the general contractor for non-compliance with Labor Law §241(6).

Accordingly, it is hereby:

ORDERED, that the motion of Mt. Airy Estates, Inc. and New Windsor Development Co., LLC for summary judgment is granted to the extent of dismissing plaintiff's cause of action under Labor Law § 240(1); and it is further

ORDERED, that plaintiff's motion for summary judgment against the defendant owner, Mt. Airy Estates, Inc. and the general contractor, New Windsor Development Co., LLC, on the issue of liability under Labor Law § 241(6) is granted; and it is further

ORDERED, that plaintiff's motion for summary judgment against the subcontractor, Blue Line Drywall, Inc. on the issue of liability under Labor Law §241(6) is denied and it is further

ORDERED, that the plaintiff's motion for summary judgment on the issue of liability against the defendant New Windsor Development Co., LLC under Labor Law § 200 and common law negligence is granted; and it is further [*6]

ORDERED, that the plaintiff's Labor Law § 200 and common law negligence causes of action against the defendant, Mt. Airy Estates, Inc. is dismissed; and it is further

ORDERED, that the balance of the motions are denied; and it is further

ORDERED, that counsel shall appear in this court at 130 Stuyvesant Place, 3rd Floor, Staten Island, New York for a final conference to either settle the case or schedule a trial on April 30, 2012 at 9:30 a.m.

ENTER

DATED: April 10, 2012Joseph J. Maltese

Justice of the Supreme Court