Bokiev v. 13th Ave. Retail Holdings 35

2022 NY Slip Op 30642(U)

ALISHKR BOKIEV, Plaintiff. v. 13TH AVENUE RETAIL HOLDINGS 35, LLC and KINGS COUNTY DEMOLITION, INC., Defendants.

13TH AVENUE RETAIL HOLDINGS 35, LLC and KINGS COUNTY DEMOLITION, INC., Third Party Plaintiff's. v. BEST BUILD NYC. INC., and MUIIAMMAD.ION CONSTRUCTION, INC., Third Party Defendants

Index No. 515721/19

Supreme Court, Kings County

February 22, 2022

Unpublished Opinion

HON INGRID JOSEPH, JSC

The following e-filed papers read herein:

NYSCEF Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed _________________

70-79, 82-96

Opposing Affidavits (Affirmations) ________________

110-113, 114-115

Affidavits/ Affirmations in Reply________________

119, 120

Other Papers: ________________

________________

Upon the foregoing papers, plaintiff Alisher Bokiev ("plaintiff") moves (Motion Seq. 5), for an order pursuant to CPLR § 3212, granting summary judgment on the issue of liability on his claims arising under Labor Law §§ 240 (I), 241 (6), and 200 as asserted against defendants/third-party plaintiffs 13^th Avenue Retail Holdings 35, LLC (“13th Avenue Retail) and Kings County Demolition, Inc., ("Kings County") (collectively, "defendants'").

Defendants move (Motion Seq. 6) for an order, pursuant to CPLR § 3212, granting summary judgment dismissing plaintiffs common-law negligence and Labor Law §§ 200 and 241 (6) claims as asserted against them.

13th Avenue Retail was the owner of a building, located at 4502 13th Avenue, in Brooklyn. Kings County was hired by 13th Avenue Retail to be the general contractor of a renovation and construction project at the building. 13th Avenue Retail hired the subcontractors that worked on the project including third-party defendant Muhammad Jon Construction, Inc. ("MCI"). Plaintiff, an undocumented worker, was employed by MCI as a helper. On September 27, 2017, plaintiff was helping to install large masonry stones to the exterior of the building. He was working between the second and third floors when he was informed by his supervisor, Misha, that someone had fallen on the fifth door, and that everyone needed to evacuate the building as inspectors were coming to investigate. Plaintiff testified that as he was exiting down exterior stairs on the 13th Avenue side of the building, he was stopped by a man who informed him that he could not continue using the stairs because a City inspector was arriving. Plaintiff further testified that this man informed him that he would have to exit the premises by using an A-frame ladder located at the end of a sidewalk bridge on the 13th Avenue side of the building. The A-frame ladder was in the closed position resting upon the sidewalk bridge. Plaintiff proceeded to climb approximately four or five steps down the ladder when it shook and collapsed, causing him and the ladder to fall to the ground. Plaintiff testified that no one was holding the bottom of the ladder as he descended.

Plaintiff commenced the instant action by filing a summons and verified complaint on July 18. 2019. Defendants joined issue by filing a verified answer on October 16. 2019. On or about November 18. 2019, plaintiff served his verified bill of particulars. On July 20, 2020, defendants commenced a third-party action against third-party defendants Best Build NYC, Inc., and MCI neither of which have answered or appeared in this action. Plaintiff was deposed on January 7, 2021, and January 15. 2021, and defendants appeared for their examinations before trial on February 18, 2021. On April 20, 2021, plaintiff tiled his note of issue and the following timely motions ensued.

Plaintiff moves for summary judgment on the issue of liability on his claims arising under Labor Law §§ 240 (1), 241 (6) and 200 and common-law negligence as asserted against defendants. Defendants move for summary judgment dismissing plaintiffs Labor Law §§ 241 (6) and 200 claims.

Plaintiff argues that he is entitled to summary judgment in his favor on his Labor Law § 240 {1) claim asserted against 13^th Avenue Retail as the owner of the premises and Kings County as the general contractor. Plaintiff maintains he was engaged in an enumerated activity protected under Labor Law § 240 (1). In this regard, he notes that he was performing masonry work at the site when he was forced to use an unsecured, closed A-frame ladder to get between the second and first floors of the project to exit the building lie argues that the ladder should have been placed in its open position from below and a worker should have been provided to hold the ladder steady. Plaintiff contends that the failure to do so was a violation of Labor Law § 240 (1) which proximately caused his accident. In addition, plaintiff asserts that his actions in using a closed A-frame ladder were not the sole proximate cause of his injuries. In this regard, he notes that he was specifically instructed to use the ladder and that it was impossible for him to open the closed A-frame ladder from atop the sidewalk bridge.

In opposition, defendants contend that this branch of plaintiffs motion should be denied as this is not a case involving a worker who was injured while performing actual work at the premises but, rather, plaintiff was injured as he tried to flee a jobsite that he had been working at illegally. Moreover, defendants argue that plaintiff was not engaged in an enumerated activity at the time of his accident and, thus Labor Law § 240 (1) is inapplicable. Further, they contend that plaintiff was not required to use a ladder to perform his work and was finished working for the day and leaving the site as he was directed to do by his supervisor prior to the occurrence of his accident. Defendants maintain that even if the court determined that Labor Law § 240 (1) applies, an issue of fact exists as to whether the ladder was in proper working order and/or whether plaintiff was the sole proximate cause of the accident. They assert that plaintiff has foiled to provide the following: any photographs of the ladder allegedly involved in his accident, the identity of the owner of the ladder, the identity of the individual that placed the ladder, the make and model of the ladder or any other identifying information for the subject ladder which would demonstrate a Labor Law violation. Moreover, defendants contend that they lack any knowledge of this ladder and maintain that plaintiff has failed to demonstrate that his misuse of the ladder in the closed position was not the proximate cause of his accident.

In reply, plaintiff argues that a person employed as a construction worker is afforded the protections of the Labor Law even when the accident occurs when they are not specifically performing their work activity at that moment, pointing out that the statute's protections have been extended to workers entering or exiting a work site, and while on a coffee or lunch break. Thus, plaintiff maintains that defendants' failure to provide him with a safe, secured ladder that would reasonably protect him from falling to the sidewalk below constitutes a violation of Labor Law § 240 (1). He maintains that his actions in using the ladder in the closed position was not the sole proximate cause of his accident as he had the tacit approval of his superiors to use the closed A-frame ladder, and was specifically directed to use it to exit the premises.

Labor Law § 240 (1), states, in relevant part, that:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing 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 other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed . . .

The purpose of Labor Law § 240 (1) is to protect workers "from the pronounced risks arising from construction work site elevation differentials" (Runner v New York Stock Exch, Inc., 13 N.Y.3d 599, 603 [2009]; see also Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514 [1991]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [ 1993]).

Consequently. Labor Law § 240 (1) applies to accidents and injuries that directly flow from the application of the force of gravity to an object or to the injured worker performing a protected task (see Casques v Stale of New York, 15 N.Y.3d 869 [2010J; Vislocky v City of New York, 62 A.D.3d 785, 786 [2d Dept 20091, lv dismissed 13 N.Y.3d 857 [2009]). The statute is designed to protect against '"such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured"" (Ross v DD 11th Ave., LLC, 109 A.D.3d 604. 604-605 [2d Dept 2013], quoting Ross, 81 N.Y.2d at 501.

The duty to provide the required "proper protection'' against elevation-related risks is nondelegable; therefore, owners, contractors and their agents arc liable for the violations even if they have not exercised supervision and control over either the subject work or the injured worker (see Zimmer v Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 521 [1985] [owner or contractor is liable for Labor Law § 240 (1) violation "without regard to . . . care or lack of it"]; see Rohlero v Rais Ruchel High Sch., Inc., 175 A.D.3d 1446, 1447 [2d Dept 201 9]). "To succeed on a cause of action under Labor Law § 240 (1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiffs injuries" (id.). "A worker's...