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PLAINTIFF ALLEGEDLY FELL SIX FEET FROM A SCAFFOLD WITHOUT GUARD RAILS; PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED; DEFENDANT’S SUMMARY JUDGMENT MOTION ON PLAINTIFF’S LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN GRANTED; AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 241 (6) CAUSE OF ACTION WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s summary judgment motion on his Labor Law 240 (1) cause of action should not have been granted, defendant’s (Henry Street’s) motion for summary judgment on plaintiff’s Labor Law 200 cause of action should have been granted, and defendant’s motion for summary judgment on plaintiff’s Labor Law 241 (6) cause of action was properly denied. Plaintiff fell approximate six feet for a scaffold which did not have guard rails:

The plaintiff failed to eliminate triable issues of fact as to whether the scaffolding at issue provided proper protection under Labor Law § 240(1) … . …

Here, the plaintiff’s accident did not involve any dangerous or defective condition on Henry Street’s premises. Rather, the accident involved the manner in which the plaintiff performed his work … . Henry Street established, prima facie, that it did not have the authority to exercise supervision and control over the subject work … . In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Henry Street’s cross motion which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against it. …

… [W]we agree with the Supreme Court’s determination to deny that branch of Henry Street’s cross motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon an alleged violation of Industrial Code provision 12 NYCRR 23-5.1(b) insofar as asserted against it. That section provides that “[t]he footing or anchorage for every scaffold erected on or supported by the ground, grade or equivalent surface shall be sound, rigid, capable of supporting the maximum load intended to be imposed thereon without settling or deformation and shall be secure against movement in any direction.” Henry Street failed to sustain its prima facie burden of demonstrating that Industrial Code provision 12 NYCRR 23-5.1(b) was either factually inapplicable to this case or was satisfied … . Medina-Arana v Henry St. Prop. Holdings, LLC, 2020 NY Slip Op 05199, Second Dept 9-30-20

 

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