Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:

Upon the foregoing cited papers and after oral argument, the Decision/Order on these motions is as follows:

In Seq. No. 7, plaintiff Hans Fahning ("plaintiff") moves for partial summary judgment on the issue of liability on his Labor Law §§ 240 (1) and 241 (6) claims as against defendants City of New York (the "City"), Sea Gate Association ("SGA"), and H&L Contracting, LLC ("H&L" and, collectively, with the City and SGA, "defendants").

In Seq. No. 8, the City moves for summary judgment dismissing plaintiff's claims under Labor Law §§ 240 (1) and 241 (6), as well as his Labor Law § 200/common-law negligence claims (together with codefendants' cross claims), as against it.Plaintiff does not object to [*2]the dismissal of his Labor Law § 200/common-law negligence claims as against the City.^[FN1]

In Seq. No. 9, SGA moves for summary judgment dismissing plaintiff's claims under Labor Law §§ 240 (1) and 241 (6), as well as his Labor Law § 200/common-law negligence claims (together with codefendants' cross claims), as against it; or, in the alternative, for summary judgment on its cross claim for common-law indemnification as against H&L. Plaintiff likewise does not object to the dismissal of his Labor Law § 200/common-law negligence claims as against SGA.^[FN2]

In Seq. No. 10, H&L moves for summary judgment dismissing plaintiff's claims under Labor Law §§ 240 (1) and 241 (6), as well as his Labor Law § 200/common-law negligence claims (together with codefendants' cross claims), as against it.

In 2014, the Coney Island "T-Groin" (or terminal-groin)^[FN4] project included the Sea Gate area at West 37th Street (the "project") (Plaintiff's SOF, ¶ 1). Nonparty US Army Corps of Engineers, New York ("Corps") owned and initiated the project, based on its monitoring of the results of its prior (or the 1993) project in the same area. After consulting with the City, the Corps determined that four T-groins needed to be constructed in the private portion of the beach owned by SGA. To that end, Corps retained H&L as the general contractor, which, in turn, subcontracted some of its work to plaintiff's employer, nonparty Village Dock, Inc. ("VDI") (NYSCEF Doc. Nos. 115-116). Plaintiff's SOF, ¶¶ 13, 23-25.

In December 2014, the work on the project began to the west of West 37th Street. There was a fence located at West 37th Street serving as a demarcation line between the publicly (or the City-) owned land and the privately (or the SGA-) owned land. Specifically, the land to the east of West 37th Street was owned by the City, whereas the land to the west of West 37th Street was [*3]owned by SGA. The staging area for the initial work in December 2014 was on the City-owned land that was located approximately 100 feet east of West 37th Street. The accident, however, occurred on the west side of West 37th Street. Plaintiff's SOF, ¶¶ 3, 5, 20; City's SOF, ¶¶ 35-41.

On December 19, 2014, plaintiff, a union-affiliated dock builder with VDI, was injured, while working on the SGA-owned part of the beach, when he was struck by a 3000-4000 pound (or two-ton) steel plate, as it was in the process of being lowered and positioned for the pile-driving into the beach sand. As a general matter, the pile-driving of a steel plate into the beach sand consisted of two phases. In the first phase, an excavator (equipped with a Movax hammer) would lower a steel plate and (once the plate was properly lowered and positioned) would pile-drive it approximately four feet deep into the beach sand. In the second phase, a crane (equipped with a vibratory hammer that was more powerful than the Movax) would pile-drive the steel plate an additional twenty feet deep into the beach sand. Both phases of pile-driving a single steel plate would be completed in thirty minutes. The accident happened in the first phase of the pile-driving. As the excavator was lowering the steel plate toward the beach sand, the plate was caught on (or was snagged by) the pre-installed H-beam which protruded approximately ten inches above the beach sand. As the excavator operator attempted to dislodge the plate off (and from) the H-beam, the plate "kicked out" and struck plaintiff, injuring (for the most part) his left leg.^[FN5]

Immediately before the accident, plaintiff had been preparing for the second phase of the pile-driving. At the time, he had been holding a tag line attached to the crane-mounted vibratory hammer to ensure its stability. In contrast, however, no tag line had been attached to the excavator-mounted Movax, as it was lowering and positioning the plate in the first phase of pile-driving.^[FN6]

H&L's foreman who was "running the whole job," Jason Bertelle ("Bertelle"), had instructed plaintiff what to do on site and had assigned him the specific task of holding tag lines on the day of the accident. At the time of the accident, Bertelle was standing within ten feet of the steel plate at issue, signaling to the excavator operator. Bertelle could not recall at his pretrial deposition whether he had signaled to the excavator operator to raise the plate after it had been caught on the H-beam. Bertelle further conceded at his pretrial deposition that if he had been looking west toward plaintiff, he would have instructed plaintiff to move out of the way and would have signaled to the excavator operator to that effect. SGA's SOF, ¶¶ 12-13, 18, 22, 27.

Plaintiff testified that he had been properly positioned on the day/time of the accident, whereas Bertelle testified that plaintiff had been in the wrong place at the wrong time, inasmuch [*4]as he (plaintiff) was non-essential to the excavator-performed first-phase of pile-driving. Nonetheless, Bertelle conceded at his pretrial deposition that it was his responsibility to ensure, before the steel plates were lowered, that all non-essential workers had stood clear. Bertelle further admitted at his pretrial deposition that there were methods to secure the steel plates as they were being lowered to prevent a "kick-out," but that such methods were too time-consuming to implement. Bertelle confirmed at his pretrial deposition that there were no barricades or other barriers placed in the areas where the plates were being lowered and positioned. The operation of the excavator and the placement/positioning of steel plates were under control of Bertelle and other H&L employees. SGA's SOF, ¶¶ 13, 23-24.

On April 15, 2015, plaintiff commenced this action asserting claims under Labor Law §§ 240 (1), 241 (6), and 200, as well as in common-law negligence. Each defendant separately joined issue. After discovery was completed and a note of issue was filed on December 7, 2022, the instant motions (all timely served) ensued. Additional facts will be stated when relevant to the discussion below. The well-established summary-judgment standard of review is omitted in this decision and order in the interest of brevity.

As noted, plaintiff moves for partial summary judgment on the issue of liability as against all defendants, whereas each defendant moves for summary judgment dismissing such claim. "Labor Law § 240 (1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards" (Zoto v 259 W. 10th, LLC, 189 AD3d 1523, 1524 [2d Dept 2020] [emphasis added]). In addition, "Labor Law § 241 (6) requires owners and contractors to provide reasonable and adequate protection and safety for workers and "to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Ramones v 425 County Rd., LLC, 217 AD3d 977, 980 [2d Dept 2023] [emphasis added]). As used in Labor Law §§ 240 (1) and 241 (6), the term "owner" is not limited to the titleholder of the property where the accident occurred and "encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for [its] benefit" (Scaparo v Village of Ilion, 13 NY3d 864, 866 [2009] [internal quotation marks omitted]). "A noncontracting owner, one who does not hire contractors or agents to accomplish the work, will be liable under the Labor Law only where there exists some nexus between the owner and the worker" (Paul v Village of Quogue, 178 AD3d 942, 943-944 [2d Dept 2019] [internal quotation marks omitted]). "[T]he critical factor in determining whether a party is an 'owner' is whether it possessed the right to insist that proper safety practices were followed" (Billman v CLF Mgt., 19 AD3d 346, 347-348 [2d Dept 2005] [internal quotation marks omitted]), "and it is the right to control the work that is significant, not the actual exercise or nonexercise of control" (Sarigul v New York Tel. Co., 4 AD3d 168, 170 [1st Dept 2004] [internal quotation marks omitted], lv denied 3 NY3d 606 [2004]).

Defendant City

Here, the City has demonstrated its prima facie entitlement to judgment as a matter of law dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims as against it by establishing that it was an abutting property owner with no property interest in the area of the beach on which plaintiff was injured, and that it neither contracted for nor controlled the construction work on SGA's portion of the beach (see Alvarez v Hudson Val. Realty Corp., 107 AD3d 748, 748 [2d Dept 2013]). Further, the City has demonstrated, prima facie, that the Corps (rather than the [*5]City) was in charge of the project, that the City performed no work at the project, and that the City's role in the project was largely confined to its regulatory responsibilities (see Coelho v City of NY, 176 AD3d 1162, 1163 [2d Dept 2019]; Duarte v City of NY, 34 AD3d 522, 523 [2d Dept 2006]).

In opposition to the City's prima facie showing, plaintiff has failed to raise a triable issue of fact. Plaintiff's contention that the City "was a fee owner" of the staging area (i.e., the area where the equipment was located) is unavailing because SGA (rather than the City) owned the portion of the beach on which the construction activities were ongoing and where plaintiff's accident happened. "Although a defendant can be deemed an owner for purposes of the [Labor Law] statute[s] without holding title to the property," the City was not an owner under the circumstances, "since there is no evidence that it contracted to have the work performed or had the authority to control the work site" (Addonisio v City of NY, 112 AD3d 554, 555 [1st Dept 2013]). The City's alleged involvement in "monitor[ing] the progress and ensur[ing] that the project stayed on schedule" cannot subject it to absolute liability under Labor Law §§ 240 (1) and 241 (6) for an injury resulting from the allegedly improper lowering (by a contractor it did not hire) of a steel plate on the adjacent, privately owned property (see Albanese v City of NY, 5 NY3d 217, 221 [2005]).^[FN7]

Accordingly, the branch of the City's motion for summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims as against it is granted; conversely, the branch of plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law §§ 240 (1) and 241 (6) claims as against the City is denied.

Defendant SGA

SGA has demonstrated its prima facie entitlement to judgment as a matter of law dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims as against it by establishing that although it was a fee owner of the portion of the beach where construction activities were ongoing and the accident happened, it "neither contracted for nor supervised the work that brought about the injury, and had no authority to exercise any control over the specific work area that gave rise to [his] injuries" (Thompson v M&M Forwarding of Buffalo, NY, Inc., 174 AD3d 1433, 1434 [4th Dept 2019] [internal quotation marks omitted]). In that regard, the record establishes that: (1) SGA was neither a party to nor involved with the negotiation of the construction contract between Corps and H&L for the project; (2) SGA did not control any of the work performed by any entity; and (3) SGA otherwise had no control over the project, the contracts that governed the work for the project, the actual work performed by any entity (including plaintiff and his employer), and had no authority to control any aspect of the work at the project (see Ritter v Fort Schuyler Mgt. Corp., 169 AD3d 1419, 1420-1421 [4th Dept 2019]).

In opposition to SGA's prima facie showing, plaintiff has failed to raise a triable issue of [*6]fact. Plaintiff's contention that "[t]he law in this State is that the fee owner of land upon which construction occurs is liable for any violation of Labor Law [§§] 240 (1) and 241 (6)"^[FN8] is only partially incorrect. "[O]wnership of the premises where the accident occurred — standing alone — is not enough to impose liability under Labor Law [§ 240 (1) or] § 241 (6) where the property owner did not contract for the work resulting in the plaintiff's injuries; that is, ownership is a necessary condition, but not a sufficient one. Rather, [the Court of Appeals has] insisted on some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest" (Morton v State, 15 NY3d 50, 56 [2010] [internal quotation marks omitted; emphasis added]; see also Guryev v Tomchinsky, 20 NY3d 194, 201 [2012]; Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 51 [2004]). Likewise unavailing is plaintiff's reliance on SGA's grant of a non-exclusive license for a temporary access and use in, on, over and across its beachfront to the City, the State of New York, the Corps (and their respective representatives, agents, and contractors) for all work associated with the project.^[FN9] Unlike a lease, easement, or other property interest (as was noted in Morton v State), "[a] license . . . is a revocable privilege given to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands" (Union Sq. Park Community Coalition, Inc. v NYC Dept. of Parks & Recreation, 22 NY3d 648, 656 [2014] [internal quotation marks omitted]). Equally important, SGA did not contract with the Corps or H&L to have the steel plates installed. Indeed, SGA had no choice but to temporarily allow the Corps (as well as its contractors and subcontractors, including H&L and VDI) to enter its portion of the beach for the performance of the project. Significantly, SGA did not grant Corps an easement or other property interest in its part of the beach (see Scaparo, 13 NY3d at 866).

Accordingly, the branch of SGA's motion for summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims as against it is granted; conversely, the branch of plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law §§ 240 (1) and 241 (6) claims as against SGA is denied. The alternative branch of SGA's motion which is for summary judgment on its cross claim for common-law indemnification as against H&L is denied as academic because SGA is not liable to plaintiff (see Locke v URS Architecture & Engg.-NY, P.C., 202 AD3d 505, 507 [1st Dept 2022]; Hernandez v Asoli, 171 AD3d 893, 896 [2d Dept 2019]).

Defendant H&L

Plaintiff has demonstrated his prima facie entitlement to partial summary judgment on [*7]the issue of liability on his Labor Law § 240 (1) claim as against H&L by submitting evidence showing that it failed to use tag lines or other safety devices to secure a 3000-to-4000-pound (or two-ton) steel plate, as it was being lowered and positioned, thereby allowing it to hit against (or become snagged by) the H-beam and then to kick out and strike plaintiff causing his injuries (see MacGregor v MRMD NY Corp., 194 AD3d 550, 551 [1st Dept 2021]; see also Hayek v Metro. Transp. Auth., 195 AD3d 568 [1st Dept 2021]; Flores v Metro. Transp. Auth., 164 AD3d 418, 419 [1st Dept 2018]; Naughton v City of NY, 94 AD3d 1, 8 [1st Dept 2012]; Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071 [3d Dept 2009]; Ray v City of NY, 62 AD3d 591, 591-592 [1st Dept 2009]; Baker v Barron's Educ. Serv. Corp., 248 AD2d 655, 655-656 [2d Dept 1998]).

In opposition to plaintiff's prima facie showing on his Labor Law § 240 (1) claim, H&L has failed to raise a triable issue of fact. H&L's initial contention that the protections of Labor Law § 240 (1) were not implicated because plaintiff was not working on a "structure" overlooks the broad definition of the term "structure" as "any production or piece of work artificially built up or composed of parts joined together in some definite manner" (Lewis-Moors v Contel of NY, Inc., 78 NY2d 942, 943 [1991] [internal quotation marks omitted]). Here, the installation of steel plates was performed as part of the construction of the structures known as "T-groins" (see Lombardi v Stout, 80 NY2d 290, 295 [1992]; Sinzieri v Expositions, Inc., 270 AD2d 332, 333 [2d Dept 2000]); Saquicaray v Consol. Edison Co. of NY, Inc., 2017 NY Slip Op 32277[U], *9 [Sup Ct, NY County 2017], adhered to on reargument 2018 NY Slip Op 31479[U] [Sup Ct, NY County 2018], affd 171 AD3d 416 [1st Dept 2019]).

H&L's next contention that plaintiff's injuries were not the direct consequence of the application of the force of gravity to an object or person, fares no better. The metal plate was approximately three feet above the ground when it struck plaintiff.^[FN10] This elevation differential cannot be viewed as de minimis, considering the weight of the steel plate and the amount of force it generated over the course of its relatively short descent (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 605 [2009]; Makkieh v Judlau Contr. Inc., 162 AD3d 468, 468-469 [1st Dept 2018]; Treile v Brooklyn Tillary, LLC, 120 AD3d 1335, 1338 [2d Dept 2014]).

H&L's further contention that plaintiff's accident was not the direct consequence of any failure to provide him with adequate safety protection is belied by the record. It is undisputed that the Movax-equipped excavator which was lowering the steel plate lacked a tag line which could have been used to stabilize the movement of the plate to prevent the accident. It is likewise undisputed that the work area in which the metal plate was being lowered lacked protective barriers to keep off the unnecessary personnel (see Linares v City of NY, 209 AD3d 468, 469 [1st Dept 2022]; Russo v Van Dale Props., LLC, 200 AD3d 1470, 1472 [3d Dept 2021]; Landi v SDS William St., LLC, 146 AD3d 33, 37 [1st Dept 2016]; McLean v Tishman Const. Corp., 144 AD3d 534, 535 [1st Dept 2016]).

Contrary to H&L's final contention, the record does not support its argument that plaintiff was the sole proximate cause of the accident. A proximate cause of his accident was the failure to properly lower and position the steel plate which, lacking a tag line, struck him (see Fraser v City of NY, 158 AD3d 428 [1st Dept 2018]). It is immaterial for purposes of Labor Law § 240 [*8](1) liability whether, at the time of the accident, plaintiff was in the "right" place (according to his pretrial testimony) or in the "wrong" place (according to his foreman's pretrial testimony). "A worker's injury in an area of the work site where the worker was not supposed to be amounts to comparative negligence, which is not a defense to a Labor Law § 240 (1) claim" (Plaku v 1622 Van Buren LLC, 198 AD3d 431, 432 [1st Dept 2021]; see also Hewitt v NY 70th St. LLC, 187 AD3d 574, 575 [1st Dept 2020] [same; collecting authorities]).

Accordingly, the branch of plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim as against H&L is granted; conversely, the branch of H&L's motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim as against it is denied.

Inasmuch as "[t]he plaintiff's damages are the same under any of the theories of liability and he can only recover once" (Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 12 [1st Dept 2011]), the remaining branch of plaintiff's motion which is for partial summary judgment on the issue of liability on his Labor Law § 241 (6) claim as against H&L is denied as academic; likewise, the branch of H&L's motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim as against it is denied as academic (see Mena v 5 Beekman Prop. Owner LLC, 212 AD3d 466, 467 [1st Dept 2023]; Pimentel v DE Freight LLC, 205 AD3d 591, 593 [1st Dept 2022]; Miller v Rerob, LLC, 197 AD3d 979, 981 [4th Dept 2021]).

Turning to the remaining branch of H&L's motion which is for summary judgment dismissing plaintiff's Labor Law § 200/common-law negligence claims as against it, the Court finds that H&L has failed to establish prima facie that it did not control the means and methods of the injury-producing work so as to impose liability on it (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352-353 [1998]; Seem v Premier Camp Co., LLC, 200 AD3d 921, 926 [2d Dept 2021]; Hammer v ACC Constr. Corp., 193 AD3d 455, 456 [1st Dept 2021]). Accordingly, the remaining branch of H&L's motion which is for summary judgment dismissing plaintiff's Labor Law § 200/common-law negligence claims as against it is denied.

Accordingly, it is

ORDERED that in Seq. No. 7, plaintiff's motion for partial summary judgment on the issue of liability under Labor Law §§ 240 (1) and 241 (6) as against defendants is granted to the extent that plaintiff is granted partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim as against H&L; and the remainder of his motion is denied; and it is further

ORDERED that in Seq. No. 8, the City's motion for summary judgment dismissing plaintiff's claims and cross claims as against it is granted, and the complaint and all cross claims against the City are dismissed without costs and disbursements; and it is further

ORDERED that in Seq. No. 9, SGA's motion for summary judgment dismissing plaintiff's claims and cross claims as against it is granted, and the complaint and all cross claims against SGA are dismissed without costs and disbursements; and it is furtherORDERED that in Seq. No. 10, H&L's motion for summary judgment dismissing plaintiff's claims and codefendants' cross claims as against it is denied; and it is further

ORDERED that, in light of the dismissal of the action as against the City and SGA, the action is severed and continued as against H&L, and the caption is amended to read in its entirety as follows:

Plaintiff,                                  Index No: 504497/2015

 Defendant.

; and it is further

ORDERED that, in light of dismissal of the action against the City and SGA, it is respectfully referred for transfer to the Non-City Trial Readiness Part; and it is further

ORDERED that any relief not expressly granted herein is denied; and it is further

ORDERED that the Corporation Counsel is directed to electronically serve a copy of this Decision and Order with notice of entry on the other parties' respective counsel and to electronically file an affidavit of said service with the Kings County Clerk.

The foregoing constitutes the Decision and Order of this Court.