Daniel O'Shei, Plaintiff, v. SUN ENVIRONMENTAL CORP (2026)

FACTUAL SUMMARY OF THE ACTION

Plaintiff's Second Amended Complaint (Dkt. No, 27) sets forth two causes of action against the main action defendants. The causes of action are further pleaded in plaintiff's verified bill of particulars alleging and incorporating statutory and regulatory claims of liability under Labor Law sections 240 (1), 241 (6), 200 and common law negligence (Dkt. No, 82, ¶ 17) arising from an incident on May 11 2023 (sometimes referred to as the "incident" or the "incident date") when plaintiff fell from a 15-foot high ladder while performing his work as an employee of third-party defendant Sun Environmental ("Sun") as a contained space attendant during the course of Sun's contractual work to replace the internal filtering/removal of saturated media material known as FerroSorp from one of the digester tanks operated to remove hydrogen sulfide (H2S) as part of the process of converting certain natural products (in this case, cow manure) into renewable natural gas.

Prior to the incident date Sun had been contractually retained by defendant Brightmark to perform the tasks associated with "H2S removal media disposal" in accordance with a Purchase Order dated April 10, 2023 (Dkt. No. 267). It is undisputed that at the time the Purchase Order was executed the filtration media being used and the subject of the H2S removal from the tank performed by Sun was a substance known as iron sponge. The incident date was the first time the deteriorated/saturated media substance being removed and replaced was FerroSorp.

All parties agree that the subject digester tank (frequently referenced by the parties as the "Facility" and noted as such by the court from time to time) where the incident occurred (sometimes referred to herein as the "scene") was owned by defendant Brightmark, was situate on real property owned by defendant Willett and leased to defendant Brightmark, and was under the contractual daily operational oversight and control of defendant NAES under an Operating and Maintenance Agreement (the "O&M Agreement" [see Exhibit A to Aff. at Dkt. No. 266]). It is further undisputed that on the incident date, the ladder plaintiff fell from was owned by defendant Brightmark and had been placed in the location and position that was used by plaintiff (and Sun's other employees that day) by defendant NAES.

Photos of the scene including the digester tank(s) that Sun's employees were performing their work services upon and where plaintiff fell are shown without objection in plaintiff counsel's supporting affirmation (Dkt. No. 189, ¶ 26, 78 and 107 [photo taken by plaintiff on the day of the incident of a co-worker performing the work on the interior of the tank, see also Dkt. No. 216, pg. 102).

PROCEDURAL POSTURE OF ACTION

An extensive and thoroughly conducted course of discovery has been performed by all parties, including but not limited to the conducting of thirteen depositions, the exhaustive discovery and delivery of a massive amount of document disclosure, the direct observation and photography of the scene, and the multi-faceted retainer of multiple outstanding expert witnesses by the plaintiff and defendants.

Presently before the court are a compendium of summary judgment motions beginning with plaintiff's motion in the main action against all the defendants named therein for a finding of strict liability as a matter of law pursuant to Labor Law § 240 (1) and the separately filed cross-motions made by all the defendants seeking dismissal as a matter of law of the § 240 (1) cause of action, and all of plaintiff's other causes of action, in effect dismissal of the complaint in its entirety.¹ Additionally, though plaintiff did not name or include the third-party defendant for any form or substance of relief in his motion, a "cross-motion" (so denominated in the NYSCEF Docket and in the caption of the Notice) has been made by the third-party defendant against the plaintiff seeking dismissal of the main action complaint.²

The composite record of the full set of motion papers set forth above can be capsulated and identified as follows:

1. Plaintiff's notice of motion with all supporting affirmations and exhibits, including those filed in opposition to all of the cross motions are denominated as Dkt. Nos. 188-223, 279 and 281.

2. Third-party defendant's opposing papers to plaintiff's motion and notice of cross-motion with all supporting affirmations and exhibits, including those filed in reply to any opposition to the cross-motion and in partial opposition to certain relief requested in defendants' cross motions are denominated as Dkt. Nos. 224-239, [Memorandum of Law at 240], and 283-285.

3. Defendant NAES Corporation's ("NAES") opposing papers to plaintiff's motion and cross-motion with all supporting affirmations and exhibits, including those filed in reply to any opposition to the cross-motion are denominated as Dkt. Nos. 241-273, [Memorandum of Law at 274] and 287.

4. Defendant Brightmarks' opposing papers to plaintiff's motion and cross-motion with all supporting affirmations and exhibits, including those filed in reply to any opposition to the cross-motion are denominated as Dkt. Nos. 275-277, [Memorandum of Law at 278] and 286.³

Preliminarily, as a precursor to the in-court argument to be presented on the motions the plaintiff stipulated on the record to the discontinuance and dismissal of the action against defendant Overview Business Holdings, LLC and to the withdrawal of his liability claims against all defendant-parties under Labor Law § 241 (6).

With the exception of one major defense argument made by defendant NAES in its cross-motion for singular application to dismiss the complaint on lack of standing grounds under Labor Law § 240 (1),⁴ all of the arguments made in opposition to the plaintiff's motion and in support of the cross-motions made by the defendants (including the third- party defendant) are essentially overlapping and fundamentally identical. The core issues then before the Court on full submission made by all parties are the following:

1. Did the work activity being performed by the plaintiff as an employee of subcontractor Sun for the removal and replacement of saturated FerroSorp based H2S from the Facility constitute and qualify as "cleaning" under Labor Law § 240 (1), or was it merely "routine maintenance?"

2. Was the ladder plaintiff fell from properly placed for use or sufficient to serve as the "platform" for which the work expected to be performed by a contained space attendant could be safely performed?

3. Did the performance of Sun's work activities require the defendants to provide the plaintiff with safety devices or apparatus to protect against a fall from the elevated place he was required to work from at the top of the ladder?

LEGAL ANALYSIS OF EACH ISSUE RAISED

I. The Issue of NAES' Standing as a Party-Defendant Under the Labor Law

Before getting to the three intertwined core issues raised on these motions the stand-alone issue raised by defendant NAES for summary judgment to dismiss the action against it on the grounds that it does not fit within the legal status required to be included as a party defendant within the statutory application of the Labor Law to "[a]ll contractors, owners and their agents" will be addressed. Based on the terms and provisions of the O&M Agreement (including its Appendix A) and the testimony of its own supervisory personnel (as well as its on-site employee[s]) at the Facility, the motion must be DENIED for the reasons set forth below. This branch of the NAES cross-motion was only responded to with a record filing by the plaintiff (Dkt. No. 281) [but was also affirmatively opposed by counsel for the co-defendants during oral argument].

There is no dispute that the parties to the purchase order for the work being performed by Sun were defendant Brightmark and third-party defendant Sun. It is equally undisputed that under the O&M Agreement, defendant NAES was a contractor retained by defendant Brightmark "to provide the Services set forth in Appendix A at the Facility in support of the Owner's operation of the Facility (emphasis in original)," and the purchase order between defendant Brightmark and Sun came within the scope of a "Project Agreement" for work to be performed by a vendor.⁵ A couple of baseline questions of fact relative to defendant NAES' role under the terms of the O&M Agreement in adopting the Sun purchase order emanate from the record:

First, the O&M Agreement has express provisions outlining the manner in which defendant NAES could make "Requisitions" or receive a request from Brightmark for "Additional Services." Dkt. No. 266, ¶¶ 3.2.1, 3.3 and 3.9. On the present record, it is unclear as to how and under which provision of the O&M the Sun purchase order was initiated. Was it initiated by a Requisition from NAES to get an outside vendor into the fold of performing the work described in the purchase order that needed to be done on the tanks? Or by Brightmark to facilitate the performance of "Additional Services" that NAES was "unable to perform because of a lack of technical expertise, manpower, or equipment " and resulted in NAES declining to do the work?

Second, and correlatively, the deposition testimony of NAES' Operations Director, Eric Woods, clearly stated that a lack of internal NAES manpower existed at the time to perform the type and magnitude of the work leading up to the retainer of Sun (Dkt. No. 208, pg. 40). Did those ground level operational deficiencies prompt a Requisition from or a declination of Additional Services by NAES? Mr. Woods further acknowledged that while he "wasn't part of the PO issuing process, nor [ ] part of the procurement process for the projects the guys [from NAES] at the plant would tell Brightmark what work they needed to do and it's my understanding that Brightmark would initiate the POs," and "[t]here are times that we act as their agent putting party A and B together (emphasis added)." Id. at 37, l. 11-20. The overlap of the Facility's operations and the execution of general daily hands-on responsibility between Brightmark and NAES was further confirmed by one of the most probative statements made during the deposition of Tyler Dioguardi who worked as Regional Manager for both NAES and Brightmark (started with NAES in 2021 and was promoted several times up to the time of his departure to begin working for Brightmark). When asked generally to describe if his duties and responsibilities between the companies had changed his answer was, "[v]ery minimally, same job, but just working directly for ownership [Brightmark] as opposed to the third-party, NAES. Dkt. No. 211, pg. 17, l. 3-8.

Additionally, several provisions of Appendix A, if not expressly, at least implied, that NAES was a statutory agent of Brightmark to administer and oversee that "vendors perform tasks needing equipment or expertise that are not cost-effective to maintain at the Facility" (Dkt. No. 266, Appendix A, II.A.2) and "oversee performance by third parties" over "potential equipment failures" id. at II, C. 4; and even to "retain vendors on behalf of the Owner for unscheduled major repairs; manage and oversee all repairs and modifications." Id. at II, D.2.

The scope and interpretation of NAES' contractual duties, responsibilities and the ground-level performance of its authority over the day-to-day operations of the Facility described under oath by its managerial and on-site employees and representatives, at a minimum keep the issue of its role and liability as either a contractor or agent of the Facility owner or contractor out of the realm of having summary judgment granted on this issue. The extension of oversight and supervision over third-party vendors granted to NAES under the O&M Agreement comes within the boundaries described by the Court of Appeals in Russin v Picciano, 54 NY2d 311, 318 (1981):

"When the work giving rise to these duties [Brighmark's] has been delegated to a third party [NAES], that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory "agent" of the owner or the general contractor upon obtaining the authority to supervise and control [ ] the third party fall[s] within the class of those having nondelegable liability as an "agent" under sections 240 and 241."

Accord, Walls v Turner Construction Company, 4 NY3d 861 (2005); Barreto v Metropolitan Transit Authority, 25 NY3d 426 (2015); and for a thorough review of the interpretative analysis given to the manner in which all three statutory parties (owner, general contractor and statutory agent) are generally evaluated see Walkow v MJ Peterson/Tucker Homes, LLC, 185 AD3d 1463, 1466-1467 (4th Dept 2020).

The moving party on a motion for summary judgment must submit sufficient evidence in admissible form to eliminate all questions of material fact in favor of showing its prima facie entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Winegrad v New York Univ. Med. Center, 64 NY2d 851(1985); Zuckerman v City of New York, 49 NY2d 557 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957), and "[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853)."

Based on the above synopsis of the documentary materials (the O&M Agreement and Appendix A), the cited deposition testimony, and other referenced exhibits, and the above-referenced authority, this branch of defendant NAES' cross-motion for summary judgment to dismiss the plaintiff's complaint against it for lack of standing to be a party within the definitional scope of Labor Law §§ 200, 240 and 241 is DENIED.

II. DID THE WORK ACTIVITY CONSTITUTE "CLEANING" OR "ROUTINE MAINTENANCE?"

The starting point and ending point of the analysis to determine whether the work activity engaged in at the time of the plaintiff's fall qualified as "cleaning" within the definitional script of § 240 (1) or amounted to mere "routine maintenance" is the four-factor test prescribed by the Court of Appeals in Soto v J. Crew, Inc., 21 NY3d 562 (2013). Most significantly, however, is the Soto Court's existential empowerment (at least for initial determination purposes) of the lower courts to make its determination as a matter of law ("cleaning is an issue for the court to decide after reviewing all of the factors" [internal quotation marks omitted]), with the overarching caveat that "[t]he presence or absence of any one [factor] is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other." Id. at 568-569.

The opinion in Soto has yielded a progeny of appellate court decisions (including additional rulings from the Court of Appeals) to evaluate the four-factor analysis applied by the lower courts pursuant to the rather open-ended discretion granted to assess whether the "totality" of the factors (including the "presence or absence of any one") brings the subject matter activity within the ambit of statutory "cleaning" or be relegated to being merely "routine maintenance."

Under Soto "an activity cannot be characterized as "cleaning" under the statute, if the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240 (1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project." Id. at 568.

In the present case it is undisputed that factor number four is not present to support a finding of cleaning but is not determinative in light of the opinions rendered by the Court of Appeals recognizing "cleaning" to be a form of covered activity that was not "part of a construction, demolition or repair project." Dahar v. Holland Ladder & Manufacturing Company, 18 NY3d 521, 525 (2012), citing Broggy v Rockefeller Group, Inc., 8 NY3d 675, 680 (2007); and Gordon v Eastern Railway Supply, Inc., 82 NY2d 555 (1993). Similarly, there is no dispute or argument on factor number three: indisputably this incident was not one that "involve[d] insignificant elevation risks comparable to those inherent in typical domestic or household cleaning." Plaintiff's injuries in the present case stemmed from "working on a ladder and thus was subject to an elevation-related risk. The ladder did not prevent plaintiff from falling; thus the "core" objective of section 240 (1) was not met (internal quotation marks omitted)." Gordon, supra at 561; and such risks were incurred in the performance of activities well beyond any such risks associated with "typical domestic or household cleaning." Soto, supra.

Factor #1 is the most contestable on this issue. While the interpretative legal arguments offered by the defendants are well-developed with case specific authority that they argue is applicable to the factual composition of this case, the record before the court shows that the work being performed on the day plaintiff was injured was not "routine in the sense of being performed on a daily, weekly or other relatively frequent and recurring basis as part of the ordinary maintenance (italics added)" of the Facility. Indeed, if the work was "routine or preventive maintenance" then as described in Appendix A, II. C. it would have been performed by NAES (until, of course, the "maintenance" required NAES to "oversee performance by third parties" (Id. at subpart 4).

The tank(s) at issue essentially became inoperable and out of service when it was determined by NAES, by its monitoring review of the H2S readings, that the FerroSorp had deteriorated to the point of not allowing the tank(s) to function, but there was no designated or preset scheduled date for the operational cleaning of the tank. While the tank being serviced on the incident date had a prior history of requiring a roughly 4-6 week "change-out" (a term apparently used in the industry to describe this work activity not explicitly defined by anyone in the record) it is undisputed that there was no regular calendaring of a weekly/monthly or other preset "relatively frequent" interval of time for the tank to be serviced. The work was sought and scheduled when the overall functional elements of the tank to remain in operable condition reached a point of repair, and not to simply be attended to and kept functional through the exercise of routine maintenance efforts that could have otherwise been performed by on-site NAES employees. The operational conditions leading up to the point when the H2S production readings required shutting down the tank by way of a "lock-out/tag-out" by a NAES manager to prevent any further operation of the tank until it was "changed-out" were variable and didn't allow for knowing and scheduling the work to get the tank "back in service" beforehand. Notably, the record shows the exact opposite the tanks were not "routinely" maintained to avoid the onset of dysfunctional saturated media, but were purposely monitored to allow them (the tanks) to reach a point of non-operational saturation that required full-blown cleaning.

In Healy v EST Downtown, LLC, 38 NY3d 998 (2022), the Court of Appeals provided amplification of the meaning and consideration to be applied to the first factor. In Healy the plaintiff was a maintenance and repair technician employed by the building owner's property manager who fell from an eight-foot ladder while attempting to remove a bird nest lodged in one of the building's gutters above the entrance to one of the tenant's entrance. The Court defined the factor as follows: "This factor does not involve a fact-specific assessment of a plaintiff's regular tasks it instead asks whether the type of work would be expected to recur with relative frequency as part of the ordinary maintenance and care of a commercial premises (internal citation omitted)." Id. at 1000. The Court ruled that the isolated act of removing a bird nest (even if done to an unknown degree of recurrence or frequency in effect never knowing when or if another nest would ever have to be removed) still qualified to constitute the form of work consistent with the ordinary maintenance of the property, and when "viewed in totality, the Soto factors do not militate in favor of placing the task in the category of cleaning" (internal quotation marks omitted)." Id. In the present case, the durational uncertainty of the operational conditions of the tank(s) countenanced by the designed non-performance of any form of scheduled maintenance to avoid or mitigate the deterioration of the subject disposal media, created the recurring (but not routinely scheduled) frequency of work to remove and replace the FerroSorp media.

The cases on the first factor advanced by defendants to advocate that statutory "cleaning" was not being performed in this case are factually distinguishable. In Kearney v Dynergy, Inc., 151 AD3d 1037, 1040 (2nd Dept 2017), the court held that plaintiff's fall from a ladder attached to the side of a tanker- trailer that was used to dump two storage silos of fly ash on a daily basis "constituted merely routine maintenance of the storage silos (internal citations omitted)." In a pre-Soto case, the "cleaning" of hoppers to collect paper dust particles from paper that was shredded to be transformed into alternative fuel between one and five times during a 12-hour shift was found to be routine maintenance and not cleaning. Wicks v Trigen-Syracuse Energy Corporation, 64 AD3d 75 (4th Dept 2009). In Fuhlbruck v 3170 Delaware, LLC, 196 AD3d 1090, 1092 (4th Dept. 2021), the work performed by the plaintiff to clean the outside windows of a retail store with a squeegee on an extended broom handle (plaintiff fell while five feet off the ground on a ladder performing the task) was found to be routinely performed based on the averment of the store's district manager that the windows were cleaned on a schedule of "at least a bi-monthly basis in keeping with the company's cleanliness standards," thus finding the work though characterized as "cleaning" to nevertheless be routine maintenance. In Primosch v Peroxychem, LLC, 219 AD3d 1151, 1153 (4th Dept 2023) the Court found the work at issue "was performed routinely with relative frequency as part of the ordinary maintenance" based on pre-determined and fixed time intervals of exactly when the work was scheduled to be performed.⁶

The record produced on Factor #2 favorably supports the finding that the work was much more consistent with hard core cleaning rather than routine maintenance. The work being performed by Sun on the Facility tanks entailed multiple workers, who were using large tools and vacuum equipment, and wearing personal protective equipment, to scrape, shovel, pick-ax, vacuum and "clean" the tank to make it operational the physical demands, equipment and exertion of manpower and tools over multiple days to complete the required work services cannot be seen in any reasonably discernible way "as part of ordinary maintenance and care of commercial premises." The work also entailed the commitment of hiring and employing workers who were required to take and satisfactorily complete two OSHA-certified training courses (a 10-hour and another 30-hour program). Taken as a whole, the specialized training along with the equipment required to be used, and the work setting within which said workers and equipment were assigned to perform their tasks, constituted a "deployment of labor" well beyond that customarily relied upon to merely perform routine maintenance.

The precedent authority of pre-Soto and post-Soto cases on the type and scope of work found to come within the orbit of statutory "cleaning" is supportive of the determination made in this case. Gordon, supra (summary judgment granted by the Fourth Department in favor of the plaintiff who fell while cleaning the exterior of a railroad car with a hand-held sandblaster affirmed); Vasey v. Pyramid Company of Buffalo, 258 AD2d 906 (4th Dept. 1999) ("dusting and cleaning" of bulkheads and mini-ledges at shopping mall found to be an activity within the scope of 240 [1] and favorably cited in Soto as an activity within the acceptable orbit of coverage under the statute); Burns v Marcellus Lanes, Inc., 169 AD3d 1457 (4th Dept 2019) ("the removal of snow and ice from the roof of a commercial building, under these circumstances, constitutes a form of "cleaning," thereby bringing it within the ambit of Labor Law § 240 (1) (internal citations omitted)").

One of the most illuminating and impactful cases rendered by the Court of Appeals prior to Soto but pointedly focused on the "totality" of what and how the work of an injured plaintiff should be assessed in making a statutory finding under § 240 (1) is Prats v Port Authority of New and New Jersey, 100 NY2d 878 (2003). Prats did not involve the definitional interpretation of cleaning under § 240 (1). Though plaintiff's employer was hired by the defendant to perform "cleaning, repairing and rehabilitating of air handling units (Id. at 879), the plaintiff, an assistant mechanic, was injured when he fell while going up a ladder (app. 15 feet at time of fall) to hand-off a wrench to a co-worker who had gone up first to inspect an air conditioning unit.

The Court held that the elevation risks associated with performing an "inspection" came within the statutory pretextual definition of work performed "involving the building's alteration, and his [plaintiff's] work went beyond mere maintenance." Id. at 882.

Much like plaintiff O'Shei, the plaintiff in Prats,

"had done heavier alteration [here statutory cleaning] work on other days at the same job site on the same project. He was a member of a team that undertook an enumerated activity under a construction contract, and it is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts." Id.

The combination of factor number three incorporated with the overall assessment made of the first two factors factually support a "viewed in totality" finding that the activity being performed and conducted at the Facility by Sun (and plaintiff in his capacity as an employee of Sun) was "cleaning" not routine maintenance. To some extent, in exercising the full factual assessment required under the Soto four factor analysis, the court also takes some refuge in applying one of the most widely known and cited dicta of legal analytical review where something at issue is not plainly defined (in this case the legislative meaning of "cleaning") and thus becomes a matter subject to each person's viewing of what is there to see and make of it (to wit, "I know it when I see it," Associate Justice Potter Stewart, Jacobellis v Ohio [1964], concurring opinion). In this case, Justice Stewart's plain-spoken dicta cleanly and clearly supports the finding that the "totality" of the work being performed by the plaintiff was "cleaning" within the statutory framework of Labor Law § 240 (1) (as keenly observed by the Fourth Department in Fuhlbruck to not be viewed in the vacuum of a single factor ["It is the generic nature of the cleaning task which it is performed in a given case, that is determinative" 196 AD3d 1092]).

Based on the foregoing, and within the totality of factors set forth in Soto, the Court finds the work activity being performed by Sun's employees, including the plaintiff, to constitute cleaning within the definition of § 240 (1).

III. THE PLACEMENT OF THE LADDER

The opening issue raised with respect to the placement of the ladder stems from the conflicting expert interpretation and opinions given to how it was placed against the tank for the purpose of facilitating the plaintiff's fixed location of work upon reaching the top of the ladder as a confined space attendant. Conflicting expert opinions are focused on the application and interpretation of two federal and state work place regulations, respectively (1) Federal OSHA Reg. 29 C.F.R. § 1926.1053 (b) (1) and New York Industrial Code Regulation 12 NYCRR 23-1.21 (b) (4). Both regulations require a ladder's side handrails to extend at least 3 feet above the "upper landing surface" (New York Reg. 23-1.21 [b] [4] also refers to the top of the structure to which the ladder must extend beyond at least 3 feet as "above the upper floor, level or landing" italics added) to which the user will potentially seek to gain access. There is no dispute that the ladder plaintiff fell from only went up to and leaned under the edge of the top "lip" of the tank and did not extend any distance above the top. The dispute on this issue rests on the contradictory expert analysis of whether the "3-foot above the top" mandate applies to this incident.

Defendants' expert, Joshua Bostick, advances the proposition that the 3-foot extension over the top rule is inapplicable under the OSHA regulation because it relates to "access to an upper landing surface to which the ladder is used to gain access." Though Mr. Bostick includes a correlative reference to the New York regulation his primary assessment for opinion purposes is couched in his view that both regulations " only apply when the portable ladder is used to gain access to an upper landing surface, which O'Shei was not doing at the time of his incident (italics added)." Dkt. No. 270, ¶ 42. The regulation wording noted above ("upper landing surface") is from the OSHA regulation it is not so limited in the New York Industrial Code regulation which applies the 3-foot extension mandate to "upper floor, level or landing." The interpretative review made by Mr. Bostick of the ladder's placement under the regulations conflicts head-on with the contrary opinions proffered by plaintiff's experts.⁷ Id. ¶¶ 40-47, generally.

The noted paragraphs from Mr. Bostick pointedly summarize the differing opinion contentions between him and the plaintiff's experts on whether the placement of the ladder prevented the plaintiff from having any portion of the ladder to hold on to once he got to the top position that he needed to put himself in order to perform his services as the contained space attendant. The full content of the plaintiff's experts' opinions does not need to be regurgitated again here. Suffice it to say that on this issue the record presents the posturing of expert opinions that "squarely oppose" each other and formulate a "classic battle of the experts" to be considered and decided at the time of trial not on a motion for summary judgment. See Mason v. Adhikary, 159 AD3d 1438, 1439 (4th Dept 2018); accord Nowelle B. v Hamilton Medical Inc., 177AD3d 1256 (4th Dept 2019); Blendowski v Wiese, 158 AD3d 1284 (4th Dept 2018), and most recently Finnegan v Kasowitz, 239 AD3d 1337 (4th Dept decided 6/6/2025).

IV. WAS THE LADDER A SUITABLE WORKPLACE SAFETY DEVICE

In the present case, the ladder was used as a workstation posting device for the plaintiff to stand at or near the top to perform his job to look down upon his co-worker who was performing the cleaning work inside the tank. Its purpose was not merely to be used to ascend and descend from one level to another it was his fixed place of work performance for an extended period of time. Plaintiff's expert Mr. Gainor characterized the use of a ladder for that scope of time and work in a fixed location as a "fail[ure] to provide the Plaintiff with proper safety devices that he should have had the Plaintiff should have been provided with and stationed on a platform, scaffold or manlift" and "tied off with a proper harness and lanyard." Dkt. No 222, ¶ 26. That same opinion was essentially expressed by Mr. Kirk. ("Ladders are appropriate for transiting from point A to point B, but they are not intended to be used as a work platform for confined space attendants, as they lack the guardrails, cages, and engineered tie off points provided by a lift or basket." (Dkt. No. 221, ¶ 21). The Bostic affirmation conflicts with the opinions rendered by both of plaintiff's experts on the "applicable standards and regulations" on this issue. Dkt. No. 270, ¶¶ 50-51.

Though the home-grown continuing conflict of expert opinions would seem to lend itself to another classic battle of the experts, there is a striking gap in the Bostic opinion analysis on the underlying (and undisputable) factual record that needs to be applied to this issue. Missing from the Bostic affirmation is any reference to direct and uncontradicted deposition testimony coupled with uncontested documentary exhibits that set forth an extensive pre-incident examination and review made by the defendants Brightmark and NAES about the inadequacy of using ladders for plaintiff's observation duties and suggesting that a work platform was a better, safer and more proper mode of conducting this work activity. The sources of the factual record on this issue are laid out plainly in Mr. Kirk's affirmation (Dkt. No. 221, ¶¶ 24-25) and left entirely uncontested by Mr. Bostick, except for his generalized opinion that the use of the ladder was entirely in compliance with the regulations. If the defendants saw and concluded between themselves that performing this work on a ladder created elevation-related risks of injury and that other more suitable forms of workplace were readily available (e.g., a platform or the manlifts that were at the Facility on the date of the incident), there is no open-ended undetermined material question of fact arising from the opposing expert opinions.

The whole purpose of Labor Law § 240 (1) is to provide at-risk, elevation-related workers with "devices which shall be so constructed, placed and operated as to give proper protection to a person employed in the performance of such labor." Wolfanger v Once Again Nut Butter Collective Inc., 225 AD3d 1213, 1214-1215 (4th Dept 2024), citing Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 96 (2015). The legal liability threshold postulate cited in Wolfanger is as follows: "To establish a prima facie case plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he or she demonstrate that the risk of some injury from defendants conduct was foreseeable (Burns v Marcellus Lanes, Inc. 169 AD3d 1457 (4th Dept 2019), quoting Gordon, 82 NY2d at 562 (internal quotation marks omitted)." Wolfanger at 1215.

In the present case, the "accident happen[ing]" was not only foreseeable but the heightened risk factors of being posted on a ladder for this work (absent safety harness or lanyard no less) had been previously recognized and contemplated to be remedied before this incident occurred. These facts satisfy the statutory test for liability created by a violation of § 240 (1) that served as a proximate cause of the plaintiff's fall. Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280 (2003). A showing of the failure to provide adequate safety devices satisfies plaintiff's prima facie proof of a violation of 240 (1). Gallagher v New York Post, 14 NY3d 83, 88. In the absence of burden-shifting proof by the defendant(s) that the plaintiff was solely responsible for causing the accident (see Krause v Industry Matrix, LLC, 227 AD3d 1560 [4th Dept 2024], affirming denial of plaintiff's motion for summary judgment upon defendant's showing of "evidence suggesting plaintiff fell from the ladder because he missed a step while descending, not because the ladder shifted or otherwise failed), then once the violation and proximate cause are established, plaintiff is entitled to judgment regardless of any claimed contributory negligence. Blake at 287.

The issue of whatever else may have caused plaintiff to become unconscious before falling does not defeat defendants' threshold strict liability under 240 (1). Where "the absence of proper protection was at least a proximate cause of [the] accident [e]ven if plaintiff experienced some kind of medical event that caused him to fall it was not the sole proximate cause of the accident such as would absolve defendants (internal citations omitted)." Mederos for Sena v 147 Amsterdam, LLC, 237 AD3d 410 (1st Dept 2025). Accord, Lajqi v New York City Transit Authority, 23 AD3d 159 (1st Dept 2005); and Callan v Structure Tone, Inc. 52 AD3d 334 (1st Dept 2008) (dizziness caused by excessive heat known to defendant supported summary judgment in favor of the plaintiff); Vail v 1333 Broadway Associates L.L.C., 105 AD3d 636 (1st Dept 2013) (question of whether plaintiff hydrated himself adequately could not be considered the sole cause of his fall). Notably, in Wolfanger the Fourth Department expressly stated that where the plaintiff was unable to recall how the incident occurred (such as in the present case) external factors or events such as being subjected to noxious fumes at the worksite did not "constitute a superseding cause sufficient to relieve [defendant] of liability." Wolfanger at 1215-1216.

In furtherance of the foregoing, plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240 (1) is GRANTED and defendants' cross-motions (including third-party defendant Sun) on said issue are correspondingly DENIED.

V. DEFENDANTS' CROSS-MOTION TO DISMISS SECTION 200 NEGLIGENCE CAUSES OF ACTION

In the Fourth Department an owner or general contractor may be held liable for statutory negligence under Labor Law section 200 or for common law negligence if it is shown that they had some supervision or control over the subcontractors' work or if they had actual or constructive notice of the alleged dangerous condition that caused the plaintiff's accident and injuries. The starting point on the applicable case law is Nagel v Metzger, 103 AD2d 1 (4th Dept. 1984), where the court held "if the owner exercises supervisory control over the safety of the machinery or methods, or has actual or constructive notice of defects, he or she has a duty to protect the employee's health and safety. Failure to do so may result in liability under section 200 of the Labor Law (italics added)." Id. at 8-9. Plainly, on the factual record in the present case plaintiff has shown that the defendants had actual knowledge of the safety deficiency and increased risks of harm associated with using a ladder to conduct the cleaning work activity of the tank and that installing a platform was recommended.

The progeny of Nagel becomes somewhat blurred with the disagreeable treatment given to it elsewhere in the state's appellate hierarchy beginning with Rapp v Zandri Construction Corporation, 165 AD2d 639, 641-642 (3rd Dept 1991) ("We do not subscribe to the Fourth Department view, though, that an owner or contractor's mere knowledge of a subcontractor's unsafe work practices will impose liability in the absence of an actual right to control the activity."); and Lombardi v Stout, 178 AD2d 208 (1st Dept 1991). A more critical commentary was expressed by the Court of Appeals in Comes v New York State Electric and Gas Corporation, 82 NY2d 876, 877-878 (1993):

"Alternatively, plaintiffs contend defendant is liable under section 200 even if it did not exercise control over the operation because it had actual or constructive notice of the unsafe manner in which the work was performed. They rely on Nagel v Metzger (citation omitted) [b]ut more to the point, this Court has not adopted the reasoning of Nagel and imposed liability under the statute solely because the owner had notice of the allegedly unsafe manner in which the work was performed."

Approximately 18 months later in McGrath v Lake Tree Village Associates, 216 AD2d 877, 878 (4th Dept 1995), the Fourth Department made a finding of no Section 200 or common law liability against an owner based on what they "should have known about the dangerous condition on the property" citing the Court of Appeals holding in Comes as "rejecting a contrary rule stated in Nagel v Metzger." More recently, however, in Riordan v BOCES of Rochester, 4 AD3d 869 (4th Dept 2004) the Court held that a "defendant may bear responsibility under Labor Law § 200 and for common law negligence if it had actual or constructive notice of the allegedly dangerous condition on the premises which caused the plaintiff's injuries, regardless of whether [it] supervised [plaintiff's] work (internal quotation marks and citation omitted)."

Based on the foregoing, the defendants' cross-motions to dismiss the Labor Law § 200 and common law negligence causes of action must be DENIED.

Submit order accordingly within 15 days.

Dated: May 13, 2026

JOHN J. DELMONTE, J.S.C.

FOOTNOTES

1.   The complaint's other causes of action for which all the defendants (and the third-party defendant) seek dismissal are premised on Labor Law §§ 241 (6) and 200 and common law negligence.

2.   The motions have all been timely made and fully briefed in accordance with the post-note of issue filing of the same agreed upon by the parties and the scheduling outline implemented by the Court.

3.   After referencing NAES all of the other named defendants in the main action, Brightmark, LLC, Brightmark Helios RNG LLC, Overview Business Holdings, LLC, and Willett Dairy, LLC are collectively referred to as "defendant Brightmark."

4.   Defendant NAES has raised the predicate issue that it is not a proper party-defendant under the Labor Law as an "owner, contractor or statutory agent." See Dkt. No. 242, ¶ 117 and Dkt. No. 274, Point II). That segment of defendant NAES' cross-motion has been opposed by the defendants Brightmark and Sun as well as the plaintiff.

5.   See O&M Agreement at Dkt. No. 266, ¶ 1.2 and Article II (Definitions), respectively.

6.   Though the Court did not elaborate in its Memorandum and Order on the details of the recurring work factor it appears to have accepted the scheduled maintenance intervals (e,g., annually for maintenance of defendant's electrical substation and even longer stretches of fixed time for some other related items of work 3 years on switches and 5 years on transformers) recited in the lower court's Decision as being supported by the Record on Appeal. See CA 22-01904, Record on Appeal-Vol. 1, pg. 12 (screen pg. 20). The work was thus deemed to be "routine maintenance" based on the factors of a known and advanced schedule of regularly scheduled maintenance, and the Court's distinctive observation that plaintiff's injury "resulted not from gravity but from the high voltage of the VCBs and, therefore, the work did not implicate the "core purpose of Labor Law § 240 (1)." Id. at 1153-1154, citing Soto, 21 NY3d at 568). For a similar assessment of facts and outcome see Boyd v Bethlehem Steel Corporation, 244 AD2d 983 (4th Dept 1997).

7.   Plaintiff's experts and their opinion rendered affirmations are, respectively: Dana M. Kirk (Dkt. No. 221) and Ernest J, Gailor (Dkt. No, 222).

John J. DelMonte, J.