TERC v. 535 COSTER REALTY INC (2019)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about May 7, 2018, which denied plaintiff's motion for partial summary judgment on his causes of action under Labor Law §§ 240(1) and 241(6), denied defendant's motion for summary judgment dismissing the complaint, and granted plaintiff summary judgment to the extent of dismissing defendant's tenth affirmative defense, unanimously affirmed, without costs.

Plaintiff's deposition testimony, that he was hired to dismantle portions of a 25–foot tall dust collecting tank on defendant's rooftop, which necessitated use of a ladder to access an opening in the tank that was approximately 14 feet above the roof's surface, established prima facie that he was engaged in an activity protected under Labor Law § 240(1) at the time he fell off the ladder (see Montalvo v. J. Petrocelli Constr., Inc., 8 A.D.3d 173, 175, 780 N.Y.S.2d 558 [1st Dept. 2004];  Wasilewski v. Museum of Modern Art, 260 A.D.2d 271, 688 N.Y.S.2d 547 [1st Dept. 1999]).  However, summary resolution of the Labor Law § 240(1) claim is precluded by the testimony of defendant's coworker, who raised factual issues as to whether plaintiff's assigned work entailed only nonstatutorily-protected cleaning or maintenance of a dust collecting tank (see Soto v. J. Crew, Inc., 21 N.Y.3d 562, 568–569, 976 N.Y.S.2d 421, 998 N.E.2d 1045 [2013];  see Luebke v. MBI Group, 122 A.D.3d 514, 515, 997 N.Y.S.2d 379 [1st Dept. 2014]).

Plaintiff's request for partial summary judgment on his Labor Law § 241(6) claims, which are founded on an alleged non-compliance with Industrial Code sections 23–1.21(b)(4)(i) and (iv), is unavailing.  Plaintiff's evidence does not support a finding that the ladder at issue warranted being nailed or otherwise securely fastened or affixed due to use as a “regular means” of access between two levels of either a building or structure (12 NYCRR 23–1.21[b][4][i] ).  Further, it is unclear whether plaintiff was standing on a rung of the ladder that was at least 10 feet off the ground at the time of his fall, precluding a finding, as a matter of law, that 12 NYCRR 23–1.21(b)(4)(iv) was violated.

Defendant's affirmative defense that plaintiff was either its general employee or special employee, entitling it to dismissal of the complaint based on application of the exclusivity provisions in Workers' Compensation Law §§ 11 and 29(6), was properly dismissed.  Plaintiff established that he was hired and paid by a nonparty building supply company, and injured while working under the direction and supervision of that building supply company.  There is no evidence that defendant had a working relationship with plaintiff sufficient in kind and degree to support its contention that plaintiff had been transferred to serve as its special employee for this task (see Gonzalez v. Lovett Assoc., 228 A.D.2d 342, 644 N.Y.S.2d 249 [1st Dept. 1996];  see Cardona v. Ho–Ro Trucking Co., Inc., 83 A.D.3d 428, 429, 920 N.Y.S.2d 334 [1st Dept. 2011];  Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 358–360, 850 N.Y.S.2d 359, 880 N.E.2d 845 [2007]).

We have considered the parties' remaining arguments and find them unavailing.