Hernandez v. Board of Mgrs. of the NOMA Condominium

240(1) insofar as asserted against the defendants and denied those branches of the defendants' cross-motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6). The court additionally denied those branches of the defendants' cross-motion which were for summary judgment on the third-party causes of action for common-law indemnification and contribution and alleging breach of contact for failure to procure insurance. The defendants appeal.

"Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites" (Ennis v Noble Constr. Group, LLC, 207 AD3d 703, 704 [internal quotation marks omitted]; see McCarthy v Turner Constr., Inc., 17 NY3d 369, 374).

"'To prevail on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must show, prima facie, that the defendant violated the statute and that such violation was a proximate cause of his or her injuries'" (Buzzetta v NYU Hosps. Ctr., 241 AD3d 628, 629, quoting Lochan v H & H Sons Home Improvement, Inc., 216 AD3d 630, 632). "The 'single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'" (Davila v City of New York, 232 AD3d 580, 582, quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603). Accordingly, "[a] plaintiff must show that, at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking" (Castano v Algonquin Gas Transmission, LLC, 213 AD3d 905, 907 [internal quotation marks omitted]).

Here, the plaintiff demonstrated, prima facie, that the defendants violated Labor Law § 240(1) by failing to provide the plaintiff with adequate safety devices and that this violation was a proximate cause of his injuries (see Escobar v Safi,

150 AD3d 1081, 1083; Cortes v Jing Jeng Hang, 143 AD3d 854, 855). In opposition, the defendants failed to raise a triable issue of fact as to the absence of a statutory violation and whether the plaintiff's own conduct was the sole proximate cause of his injury (see Gonzalez v Madison Sixty, LLC, 216 AD3d 1141, 1143; Barrios v 19-19 24th Ave. Co., LLC, 169 AD3d 747, 748-749). Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants. For the same reasons, the defendants were not entitled to summary judgment dismissing that cause of action.

"Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers" (Guaman v 178 Ct. St., LLC, 200 AD3d 655, 657 [internal quotation marks omitted]). "'To establish liability under Labor Law § 241(6), a plaintiff or a claimant must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case'" (id., quoting Aragona v State of New York, 147 AD3d 808, 809). Here, the Labor Law § 241(6) cause of action was predicated upon, inter alia, an alleged violation of 12 NYCRR 23-2.1(a)(2), which provides, in relevant part, that "[m]aterial and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge." Triable issues of fact exist as to whether there was a violation of 12 NYCRR 23-2.1(a)(2) and whether such a violation was a proximate cause of the accident (see Ginter v Flushing Terrace, LLC, 121 AD3d 840, 844). Accordingly, the Supreme Court properly denied that branch of the defendants' cross-motion which was for summary judgment dismissing the cause of action alleging a violation of the Labor Law §

241(6).

"'A party seeking summary judgment based on an alleged failure to procure insurance naming that party as an additional insured must demonstrate that a contract provision required that such insurance be procured and that the provision was not complied with'" (Breland-Marrow v RXR Realty, LLC, 208 AD3d 627, 629, quoting Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738, 739). Here, the defendants failed to establish, prima facie, that GMJ did not procure insurance in compliance with the terms of the subcontract (see Crutch v 421 Kent Dev., LLC, 192 AD3d 982, 984; Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d at 739). Accordingly, the defendants were not entitled to summary judgment on the third-party cause of action alleging breach of contract for failure to procure insurance, regardless of the sufficiency of GMJ's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d

851, 853).

Contrary to the defendants' contention, the Supreme Court properly denied that branch of their cross-motion which was for summary judgment on their cause of action for common-law indemnification against GMJ. The defendants failed to establish their prima facie entitlement to judgment as a matter of law, since they failed to demonstrate that GMJ exclusively supervised and controlled the plaintiff's work site (see Lojano v Soiefer Bros. Realty Corp., 187 AD3d 1160, 1163-1164; Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 685). Accordingly, the denial of that branch of the defendants' cross-motion was proper, regardless of the sufficiency of the opposition papers (see Mendelsohn v Goodman, 67 AD3d 753, 754).

The defendants' remaining contention is without merit.

BRATHWAITE NELSON, J.P., WOOTEN, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph Clerk of the Court

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