Fuller v. 2465 Broadway Assoc., L.L.C.

Fuller v 2465 Broadway Assoc., L.L.C.

2025 NY Slip Op 31073(U)

April 2, 2025

Supreme Court, Kings County

Docket Number: Index No. 508505/2019

Judge: Steven Z. Mostofsky

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

INDEX NO. 508 505 /201 9

NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 04/0 2/20 25

At an IAS Term, Part 9, of the Supreme Cou

rt of the State

of New York, held in and for the County of

Kings, at the

Courthouse, at 360 Adams Street, Brooklyn,

New York, on

the 2 nd day of April, 2025.

PR ESE NT :

HON. STEVEN Z. MOSTOFSKY,

Justice.

---------------------- --------------- --------------- ---X

PA UL A. FULLER,

Plaintiff,

-against-

Index No.: 508505/2019

2465 BRO ADW AY AS SOC IA TES, L.L.C.,

AND

212 W. 95th SALES OFF ICE LLC AND UNI

TED

MANAGEMENT,

Defendants.

---------------------- ------ ------ ------ --- --- ---------X

212 W. 95TH SALES OFFICE LLC and

UNITED MA NAG EME NT CORP.,

Third-Party Plaintiffs,

-against-

B&O RENOVATIONS, INC., FIRE CONTRO

L

MANAGEMENT and THE GRE AT HUD SON

MECHANICAL,

Third-Party Defendants.

---------------------- ------ ------ --------- ----------

--X

The following e-filed papers read herein:

NYS CEF Doc Nos.:

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed

Opposing Affidavits (Affirmations)- --- 147-281

_ _ __ 248-281

Affidavits/Affirmations in Reply

Exhibits ----- 271-272

------------- Var.

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Paul Fuller (Plaintiff) commenced an action agai

nst defendant 2465 Broad way

Associates, LLC (2465 Broadway) and defendan

t/third-p arty plaintiffs, 212 W. 95th Sales Office

LLC and United Management Corp (Sales Offi

ce). The plaintiff alleges that the defendants

violated Labor Law § 200, 240(1) and § 241(

6). The plaintiff made a motion for summary

judgment unde r the Labor Law § 240(1) and

§ 241(6) causes of action.

The defendants cross-move and seek summary

judgment dismissing the plaintiff's claims

under Labor Law § 200, § 240(1), and § 241(

6).

Statement of Facts

2465 Broadway owned the premises at 2465

Broadway. Sales Office leased space there

to construct an office. Sales Office contracte

d with Fire Control Management to provide

electrical work for the project. Fire Control Man

agem ent retained its "partner" MNBC Electrical

to perform the work unde r the contract. MNBC

is not a party to this action.

The plaintiff alleges that on October 5th, 2018

, while employed by MNBC Electrical, he

sustained injuries when he fell from a ladder

that twisted. The ladder belonged to an on-site non-

party HV AC contractor. Afte r the accident,

they took the Plaintiff to Mount Sinai Medical

Center Emergency Department in Manhattan.

Legal Standard

"'[S]ummary judgment is a drastic remedy and

should not be granted where there is any

doubt as to the existence of a triable issue'" (Rot

uba Extruders, Inc v Ceppos, 46 NY2 d 223,

231

[1978], quoting Moskowitz v Garlock, 23 AD2

d 943 [3rd Dep t 1965]). "[T]he proponent of a

summary judgment motion must make a prim

a facie showing of entitlement to judgment as a

matter of law, tendering sufficient evidence to

demonstrate the absence of any material issue

s of

fact" (Alvarez v Prospect Hospital, 68 NY2 d

320 ,324 [1986], citing Winegrad v New York

Univ

Med Center, 64 NY2 d 851 [1985]). When eval

uating a motion for summary judgment, "fac

ts

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must be viewed 'in the light most favorable

to the nonmoving part y"' (Vega v Restani Con

st

Corp, 18 NY3 d 499, 503 [2012]). "It is not the

func tion of a court deci ding a summary judg men

t

motion to make credibility determinations or

findings of fact, but rather to iden tify material

triable issues of fact (or point to the lack there

of)" (Vega v Restani Const Corp, 18 NY3 d

at 505).

Lab or Law § 240{1)

Labor Law § 240(1), which provides, in perti

nent part, as follows:

"All contractors and owners and their agents

... who contract for but do not direct or

control the work, in the erection, demolition,

repairing, [or] altering ... of a building or

structure shall furnish or erect, or cause to be

furnished or erected for the performance of

such labor, scaffolding, hoists, stays, ladders,

slings, hangers, blocks, pulleys, braces,

irons, ropes, and othe r devices which shall be

so constructed, placed and operated as to

give proper protection to a person so employe

d."

It serves to protect construction workers "from

the pronounced risks arising from construct

ion

work site elevation differentials" (Runner v

New York Stock Exch., Inc., 13 NY3 d 599, 603

[2009]; see also Rocovich v Consol. Edison

Co., 78 NY2 d 509 ,514 [1991]; Ross v Curtis-

Palmer Hydro-Electric Co., 81 NY2 d 494, 501

[1993)).

It applies to an injury that directly flows from

the application of the force of gravity to an

object or to the injured work er performing a

prot ecte d task (Gasques v State of New York

, 15

NY3 d 869 ,937 [2010]; Vislocky v City of New

York, 62 AD3 d 785, 78 [2d Dept, 2009], Iv

dismissed 13 NY3 d 857 [2009]; see also Ienc

o v RFD Second Ave., LLC , 41 AD3 d 537, 840

[2d

Dept, 2007]; Ortiz v Turner Constr. Co., 28

AD3 d 627, 813 [2d Dep t, 2006]; Lace y v Turn

er

Constr. Co., 275 AD2 d 734, 735 [2d Dep t 2000

]; Smith v Artco Indus. Laundries, 222 AD2 d

1028 [4th Dept, 1995]). That duty is non-dele

gable; therefore, owners, contractors, and their

agents are liable for violations even if they have

not exercised supervision and control over eithe

r

the subject work or the injured work er (Zim

mer v Chemung County Performing Arts, Inc.,

65

NY2 d 513, 521 [1985].

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The statu te's application requires a commonsens

e approach to the realities of the

workplace at issue" (Salazar v Novalex Contr.

Corp., 18 NY3 d 134, 140[2011]). Liability is

contingent upon the existence of a contemplated

hazard, such as the failure to use a proper safe

ty

device or its inadequacy of. (Harrison v State

ofNew York, 88 AD3 d 951, 952 [2d Dept, 2011],

quoting Narducci v Manhasset Bay Assoc., 96

NY2 d 259 ,267 [2d, Dept 2001]; see also Gutman

v City ofNew York, 78 AD3 d 886, 887 [2d Dep

, 201 O]). A violation requires that the plaintiff

establishes both "a violation of the statute and

that the violation was a proximate cause of his

injuries" (Skalko v Marshall's Inc., 229 AD2 d

569, 570 [2d Dept, 1996], citing Blan d v

Manocherian, 66 NY2 d 452 ,488 [1985]; Kea

ne v Sin Han g Lee, 188 AD2 d 636, 591 N.Y

.S.2d

521 [2d Dept, 1992]; see also Rakowicz v Fash

ion Inst. of Tech., 56 AD3 d 747, 86 [2d Dep

t,

2008]; Zimmer, 65 NY2 d 513 at 524).

Here, Sales Office and 2465 Broadway have

established their prima facie entitlement to

judgment as a matter of law concerning their

Labor Law § 240(1) cause of action as there

is no

evidence of a defective ladder. Plaintiff testified

that he had no difficulties with the ladder befo

re

the accident, (NYSCEF Doc. No. 179 at 55:1

1-55:14; 57:22-58:2), that it was finnly standing

when he walked up to the ladder, (Id. at 52:9

-52:14; 64:19-64:23; 123:22-125:9; 145:16-1

45:21),

and as plaintiff climbed the ladder, the ladd er

did not move or shake. (Id. at 65:3-65:6). Whi

le

the plaintiff claims to have been working on

a 12-foot ladd er involved in the accident mult

iple

times before the alleged incident, his superviso

r, Mr. Edd y claims that the ladder was IO feet.

No

photographs of the ladd er were taken on the

date of the accident, but rather, the next day,

which

showed a 10-foot A-frame ladd er in a different

position. However, whether the plaintiff was

using the I 0-foot or 12-foot ladder, the plain

tiff inspected the ladder, deemed it safe and sturd

y

with the feet on a flat level surface, not on any

debris, and undamaged. Nothing supports the

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plai ntiff 's unsu ppo rted allegation that the

ladd er "twi sted ." The plai ntiff did not hire

an expert to

examine or inspect the ladd er follo wing

the accident. (NY SCE F Doc . 234 at 76:1

1-78:12).

In Costello v Hap co Realty, Inc., 305 AD2

d 445, 446 -447 [2d Dep t 2003 ] the cour

t

clarified that Lab or Law § 240 (1) liabi

lity does not exist if "plaintiff's fall to the

grou nd was the

result of his havi ng mer ely slipped off of

a defe ct-fr ee and prop erly secu red ladd

er." Proo f of a

plaintiff's fall from a ladd er, with out mor

e, is not suff icien t to establish liability und

er Lab or Law

§ 240 (1 ). (Id.). Here , the cour t find s that

the plai ntiff here did not prov e that the

ladd er was

defe ctiv e.

Plai ntiff has faile d to mee t thei r burd en

that a genu ine issue of mate rial fact exis

ts.

Therefore, the cour t gran ts Sales Offi ce,

and 2465 Bro adw ay's mot ion for sum mar

y judg men t

dismissing the Lab or Law 240 (1) claim

.

Labor Law § 241(6)

Lab or Law § 241 (6) "imposes a [non-del

egable] duty ofre ason able care upo n own

ers and

contractors to prov ide reasonable and adeq

uate prot ectio n and safe ty to pers ons emp

loye d in, or

lawf ully freq uent ing, all areas in whi ch

cons truc tion , excavation, or dem oliti on

wor k is bein g

perf orm ed." (Song v. CA Plaza, LLC , 208

AD3 d 760, 761 [2d Dep t 2022 ] [internal

quo tatio n

marks omitted]). "'To establish liability,

a plai ntiff mus t dem onst rate that his inju

ries wer e

prox imat ely caus ed by a viol atio n of an

applicable Indu stria l Cod e prov isio n."'

(Graziano v.

Source Builders & Consultants, LLC , 175

AD3 d 1253, 1258 [2d Dep t 2019 ], quo

ting Ara gon a v.

State ofNew York, 147 AD 3d 808, 809 [2d

Dep t 2018]).

Lab or Law § 241( 6) requires that a part

y mus t brea ch a "spe cific , posi tive com

man d"

rath er than a "rei tera tion of com mon -law

stan dard s." (Ross v Curtis-Palmer Hydro-E

lec. Co., 81

NY 2d 494, 502 [1993]). Ros s disti ngui

shed betw een Cod e provisions "ma ndat

ing compliance

with conc rete spec ifica tion s and thos e that

establish general safe ty stan dard s." (Id.

at 505).

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Sales Offi ce and 2465 Broa dwa y prov ed they

did not violate any New Yor k Indu stria l

Cod e Rules:

Indu stria l Cod e§ 23-1.7: References prot ectio

n from general haza rds, none of which are

applicable to this case.

Indu stria l Cod e§ 23-1.15: No safe ty railin

gs were involved in this incident or were

required for the wor k bein g perf orm ed by the

plaintiff. Here, the plain tiff only work ed on

the A-

frame ladder.

Indu stria l Cod e§ 23-1.16: Plai ntiff 's alleged

incident occurred on a ladder, and the

plain tiff testified that he was not using such

a devi ce in this case as he was work ing on the

A-

frame ladder.

Industrial Cod e § 23-1.17: "Pla intif f was not

using a life net at the time he fell." (Bennion

v. Goodyear Tire & Rub ber Co., 229 A.D .2d

1003, [4th Dep t, 1996); see also Buestan v.

EAN

Holdings, LLC , 54 Misc. 3d 1224(A), 55 N.Y

.S.3 d 691 (Sup. Ct., Qns. Cnty . 2017); Dzie

ran v.

1800 Bos. Rd., LLC , 25 A.D .3d 336, 337, 808

N.Y .S.2 d 36, 38 (1st Dep t., 2006 ) ("sections

,

which set stan dard s for safe ty railings, safe

ty belts, and life nets , respectively, do not appl

y

because plain tiff was not prov ided with any

such safe ty devices"). The plai ntiff used an

A-fr ame

ladder.

Indu stria l Cod e Sect ion§ 23-l .21( a-f): Refe

rs to "Lad ders and Lad derw ays. " The entir

e

section is inapplicable to this case. Und er the

subsections whic h perta in to portable ladd ers

(subsection (b)(4)(i)), leaning ladd ers (subsecti

ons (b)(4)(ii), (b)(4)(iii), (b)(4)(iv) and (b)(4

)(v)),

woo den ladd ers (subsection (b)(5)), single

ladd ers (subsection (c)), extension ladd ers

(subsection

(d)) and ladd erwa ys (subsection (f)), are inap

plicable. The plain tiff was using an A-fr ame

ladder,

which he state d was proper, well-seated, and

in good condition. He inspected the ladd er

befo re

using it and found no deficiencies. (NY SCE

F Doc. 154 at 51- 52, 57-58, 145).

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Plain tiff cont ends that §23-1.21(b)(3)(iv): The

plain tiff hims elf state d that the ladd er was

proper, well-seated, and in good condition. He

inspected the ladd er befo re using it, foun d no

deficiencies, and used the ladd er multiple time

s before the alleged accident. (NY SCE F Doc.

154

at 51- 52, 57-58, 145).

Indu stria l Cod e Sect ion§ 23-1.21(e): "Sta ndin

g stepl adde rs shall be used only on firm,

level footings. Whe n work is bein g perfo rmed

from a step of a stepl adde r IO feet or more abov

e

the footing, such stepl adde r shall be stead ied by

a person statio ned at the foot of the stepl adde r

or

such stepl adde r shall be secured against sway

by mechanical means." Here, the plain tiff state

s

that as soon as he got to the third to last rung of

the top of the ladd er it twis ted with him.

(NY SCE F Doc. No. 137, at p.64:9-23). Thus,

the plain tiff was well belo w the ten-f oot threshold

,

contained in this provision to trigger the need

for the stepl adde r to be stead ied by a person or

secured by mechanical means. (See Nalepa v.

S. Hill Bus. Campus, LLC , 39 Misc. 3d 123 l(A),

972 N.Y .S.2d 144 [Sup. Ct. 2013), affd , 123

A.D .3d 1190, 998 N.Y .S.2d 245 [2014]).

Indu stria l Cod e Sect ion§ 23-1.22: Refe rs to platf

orms, not ladders.

Indu stria l Cod e Section § 2.1: The plain tiff testif

ied that the area was clean and clear of

debris (NY SCE F Doc. No. 154, at p.100).

Tims, Sales Offi ce and 2465 Broa dway bear no

liabil ity unde r Labo r Law § 200 and the

cause of action is dismissed unde r CPL R.

Labor Law § 200

An own er is liable unde r common law negligenc

e or Labo r Law § 200 where a plain tiff

alleges that their injuries result from the means

or meth ods by whic h their work is performed.

(Torres v City ofNew York, 127 AD3 d 1163, 1165

[2d Dept 2015]). Rather, when a claim arises

out of alleged defe cts or dang ers in the meth ods

or materials of the work , reco very against the

own er or general cont racto r cann ot be had unde

r Labo r Law § 200 unless it is show n that the

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party to be charged had the authority to supe

rvise or control the performance of the work

.

(Ortega v Puccia, 57 AD3 d 54, 61 (2d Dep t

2008 ]). '"A defe ndan t has the authority to supervise

or control the work for purposes of Labo r Law

§ 200 when that defe ndan t bears the

responsibility for the man ner in which the work

is perf orm ed"' (Roblero v Bais Ruchel High

School, Inc., 175 AD3 d 1446, 1448 [2d Dep

t 2019 ), quoting Ortega v Puccia, 57 AD3 d 54, 62

[2d Dep t 2008]).

Here, Sales Offi ce and 2465 Broa dwa y estab

lished entitlement to summary judg men t

because they did not prov ide any equipment

or directly control the means and methods of

the

plaintiff's work that caused his injury. (NY SCE

F Doc. No. 179, at 4:9-14). An unnamed HVA

C

contractor provided the plaintiff's ladder, and

plain tiff only took directions from his superviso

r,

Mr. Edd y. (NY SCE F Doc. No. 179, at 46:1

5-47:3; 52:7-52:8).

Thus, Sales Offi ce and 2465 Broa dwa y bear

no liability unde r Lab or Law § 200 and the

cause of action is dismissed.

Conclusion

This constitutes the decision and orde r of the

court.

EN TER :

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