Preview
FILED: KINGS COUNTY CLERK 11/21/2023 11:42 AM INDEX NO. 514458/2021
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 11/21/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
___________-___---__---____-______------------ x
JOSEPH LAMPASONA,
Plaintiff(s), Index No.: 514458/2021
. MEMORANDEM OF LAW
-against-
YEHUDA MILLER and KAYLA MILLER,
Defendant(s).
___________________________________________Ç
STATE OF NEW YORK }
COUNTY OF SUFFOLK } ss.:
BRIAN T. MURTHA, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, affirms the following under the penalties of perjury:
1. I am the attorney of record for the Plaintiff, JOSEPH LAMPASONA, in the
captioned matter. I am fully familiar with the facts and circumstances set forth herein, the source
of my knowledge being the records and other discovery materials maintained by my office in the
course of handling this action, and from personal knowledge of the progress and of the handling
of this matter. I make this affirmation in opposition to the Defendants, YEHUDA MILLER and
KAYLA MILLER motion for summary judgment.
2. Defendants, YEHUDA MILLER and KAYLA MILLER placed their construction
responsibilities upon the Plaintiff, JOSEPH LAMPASONA, through direction and control
while concurrently providing him with an inadequate, insufficient, and unsafe work area to
perform such responsibilities. The conditions, most notably a wet and slippery work area caused
the Plaintiff to have the accident by which he sustained serious personal injuries.
3. Based upon the material facts and circumstances of the accident of August
20, 2018 as set forth and described herein, summary judgment should be denied in favor of the
Plaintiff and against Defendants, YEHUDA MILLER and KAYLA MILLER pursuant
to Labor Law § 200 and § 241 (6) and granted for the Plaintiff and against Defendants,
YEHUDA MILLER and KAYLA MILLER pursuant to Labor Law § 200 and § 241 (6).
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THE DEFENDANTS HAVE FAILED TO MEET THE STANDARD FOR ENTITLEMENT
TO SUMMARY JUDGMENT
remedy"
4. The granting of summary judgment is "a drastic and the test is one of issue
fmding as opposed to issue determination Sillman v. Twentieth Century Fox Film Corp., 3
N.Y.2d 165 N.Y.S.2d 498 (1957). All inferenceailiist be decided in favor of the non-
395,
moving party Negri v. Stop and Shop, 65 N.Y.2d 625, 491 N.Y.S.2d151(1985); Martinez v.
(2nd
Khaimov, 74 A.D.3d 1031, 906 N.Y.S.2d 274 Dept. 2010); Gray v. New York City Transit
(2nd
Authority, 12 A.D.3d 638, 785 N.Y.S.2d 125 Dept. 2004) and drawn against the proponent
(2nd
Cerny v. Williams, 32 A.D.3d 881, 822 N.Y.S.2d 548 Dept. 2006).
5. The Court of Appeals as well as the First and Second Departments have had occasion
to repeat the holding in Winegrad and stress that the motion court has absolutely no discretion to
question credibility Ferrante v. American Lung Association, 90 N.Y.2d 623, 665 N.Y.S.2d 25
(1997); Conciatori v. Port Authority of New York and New Jersey, 46 A.D.3d 501, 846 N.Y.S.2d
(2nd
659 Dept. 2007)
Defendants'
6. In the case at bar, the inadequacy of motion for summary judgment
mandates a denial regardless of the papers submitted in opposition (Picart v. Brookhaven
[2nd
Country, 37 A.D.3d 798, 832 N.Y.S.2d 51 Dept. 2007]; Doe v. Orange-Ulster Bd. Of
[2nd
Cooperative Educational Services, 4 A.D.3d 387, 771 N.Y.S.2d 389 Dept. 2004]).
7. In the context of this pretrial motion for summary judgment, the individual
defendants, as the moving parties, had the initial burden of proof (see CPLR 3212[b]; Hecker v.
Liebgold, 130 A.D.3d 572, 573, 13 N.Y.S3d 179). Accordingly, "[w]hile the ultimate burden of
proof at trial will fall upon the plaintiff [s], a defendant seeking summary judgment bears the
initial burden of demonstrating its entitlement to judgment as a matter of law by submitting
form"
evidentiary proof in admissible (Collado v. Jiacona, 126 A.D.3d 927, 928, 6 N.Y.S3d 116 ;
see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
"On a summary judgment motion, a moving defendant does not meet its burden of affirmatively
establishing its entitlement to summary judgment by merely pointing to gaps in tlie plaintiffs
defense"
case; rather, it must affirmatively demonstrate the merit of its ( Vanderhurst v. Nobile,
130 A.D.3d 716, 717, 13 N.Y.S.3d 231; see Spota v. Love, 140 AD3d 730, 730-731; Setter v.
Fire Is. Ferries, Inc., 139 A.DJd 840, 32 N.Y.S.3d 259 ; Vaughn v. Veolia Transp., Inc., 138
A.D.3d 979, 981, 30 N.Y.S.3d 230). "It is equally well established that the motion should not be
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granted where the facts are in dispute, where conflicting inferences may be drawn from the
credibility"
evidence, or where there are issues of (Scott v. Long Is. Power Auth., 294 A.D.2d
348, 348, 741 N.Y.S.2d 708; see Ruiz v. Griffin, 71 A.D.3d 1112, 1115, 898 N.Y.S.2d 590).
8. Assuming the proponent of summary judgment makes the appropriate showing, the
overall legal burden never sinfts, Plaintiff need not prove her case but, instead, merely raise a .. . .
question for jury review (Ferrante v. American Lung Assoc., 90 N.Y.2d 623, 665 N.Y.S.2d 25
balanced"
[1997]). Where the evidence is "evenly (Director of Office of Workers Compensation
"arguable"
Programs v. Greenwich Colliers, 512 U.S. 267 [1994]), an issue is (Barrett v. Jacobs,
doubt"
255 N.Y. 520 [1931]) or there exists "any (Rotuba Extruders, Inc. v. Cetpos, 46 N.Y.2d
223, 413 N.Y.S.2d 141 [1978], quoting Moskowitz v. Garlock, 23 A.D.2d 943, 944, 259
[3d
N.Y.S.2d 1003 Dept. 1965]) the motion must be denied.
DEFENDANTS VIOIATIONS OF LABOR LAW § 200 REQUIRE DENIAL OF
DEFENDANT'S MOTION AND A GRANTING OF SUMMARY JUDGMENT FOR THE
PLAINTIFF.
9. In addition to the proof establishing a clear violation of Labor Law § 241(6), there
was also evidence that the defendants violated Labor Law § 200, a statute codifying the duties of
a site owner to provide workers with a safe place to work. See Comes v New York State Elec. and
Gas Corp., 82 NY2d 876 (1993); Lombardi v Stout, 80 NY2d 290 (1992). That statute, in
pertinent part, provides:
All places to which this chapter applies shall be so constructed, equipped, arranged,
operated and conducted as to provide reasonable and adequate protection to the lives,
health and safety of all persons employed therein or lawfully frequenting such places. All
machinery, equipment, and devices in such places shall be so placed, operated, guarded,
and lighted as to provide reasonable and adequate protection to all such person.
10. An owner or general contractor may be subject to liability under the statute for a
methods"
subcontractor's "means and if it possessed "the authority to control the activity
condition."
bringing about the [worker's] injury to enable it to avoid or correct an unsafe Rizzuto
v L.A. Wenger Contr. Co., 91 N.Y.2d 343 (1998), quoting Russin v. Louis N. Picciano & Son, 54
N.Y.2d 311 (1981). Liability may also lie - even without proof of supervision or control if
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condition,"
the accident results from a "dangerous i.e., an "unreasonably dangerous work
environment"
at the site. O'Sullivan v IDI Const. Co., 7 N.Y.3d 805 (2006); Makarius v. Port
Auth. of New York and New Jersey, 76 A.D.3d 805 (1st Dept. 2010). The pertinent law was
summarized by the Second Department in Ortega v. Puccia, 57 A.D.3d 54 (2nd Dept. 2008), in
a which that Court stated;
Cases involving Labor Law S 200 fall into two road categories: namely, those where
workers are injured as a result of dangerous or defective premises conditions at a
worksite, and those involving the manner in which the work is performed. These two
categories should be viewed in the disjunctive.
11. Where a premises condition is at issue, property owners may be held liable for a
violation of Labor Law § 200 if the owner either created the dangerous condition that caused the
accident or had actual or constructive notice of the dangerous condition that caused the accident.
In Espinosa, 58 A.D.3d at 290, 869 N.Y.S.2d at 398, decided December 4, 2008, the Appellate
Division, First Department held as follows:
"It should be noted that, since the accident was caused by a dangerous condition of the
premises, rather than by the work methods used, plaintiff need not establish that the
defendant owners exercised supervision and control over his work in order to prevail
against those defendants on his claim under Labor Law 6 200 (see Griffin v. New York
City Tr. Auth., 16 A.D.3d 202, 202-203, 791 N.Y.S.2d 98 [2005]; Murphy v. Columbia
Univ., 4 A.D.3d 200, 202, 773 N.Y.S.2d 10 [2004] ; Roppolo v. Mitsubishi Motor Sales of
[2000])."
Am., 278 A.D.2d 149, 150, 718 N.Y.S.2d 322
12. A Labor Law S 200 violation, arises out of a breach of the duty to maintain a safe
workplace. See Gasper v. Ford Motor Co., 13 N.Y.2d 104, 242 N.Y.S.2d 205,192 N.E.2d 163
(1963). Labor.Law 4 200 is a "codification of the common-law duty imposed upon an owner or
work."
general contractor to provide construction site workers with a safe place to Comes v. New
York State Electric and Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168,169 (1993). See also
Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55 (1992). Where, as here, it can be claimed
that the plaintiff s injuries arise from an allegedly dangerous condition at the work site (a slipping
hazard), a defendant may be liable under Labor Law 200 and for common-law negligence if it
had control over the work site and had actual or constructive notice of the dangerous condition
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(Nasuro v. PI Assoc., A.D.3d , 2008 NY Slip Op 280.4. 2008 NY App Div LEXIS 2725 [20081;
Payne v. 100 Motor Parkway Assoc., 45 A.D.3d 550. 846 N.Y.S.2d 211 |2007).
13. Ortega is consistent with a plethora of case law which holds that where, as in the
present case, an accident arises from a dangerous condition at a construction site, proof of
supervision and control is not a prerequisite to Labor.Law_§_200 liability. See Cappabianca v
Skanska USA Bldg. Inc., 99 A.D.3d 139 (1st Dept. 2012); Makarius v Port Auth. of New York
and New Jersey, 76 AD3d 805 (1st Dept 2010); Murphy v Columbia Univ., 4 A.D.3d 200 (1st
Dept. 2004); Shipkoski v Watch Case Factory Associates, 292 AD2d 589, 590 (2d Dept 2002);
Perry v City of Syracuse Ind. Dev. Agency, 283 A.D.2d 1017 (4th Dept. 2001); Roppolo v
Mitsubishi Motor Sales of America, Inc., 278 A.D.2d 149 (1st Dept. 2000); Johnson Packaging
Corp. of America, 274 A.D.2d 627 (3rd Dept. 2000).
14. In Roppolo v. Mitsubishi Motors Sales of America, Inc., 278 A.D.2d 149, 718
N.Y.S.2d 322 (1st Dept. 2000), the plaintiff raised an issue of fact as to notice by claiming that
the defendant was utilizing a portion of the roof to park their vehicles during the renovation. Id
The Defendant owner contended that it did not have notice of the ice accumulation in the parking
area and that they did not supervise and control plaintiffs work. Id The First Department denied
defendant's motion for summary judgment stating: Supervisory control is a necessary element of
a Labor Law § 200 claim against an owner only 'where the alleged defect or dangerous condition
arises from the contractor's methods. (Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d
876, 877) Here, it does not appear that the water on the rubber roof was caused by the
contractor's or Plaintiffs methods of performing renovations.
15. In Russin v. Picciano & Son, 54 N.Y.2d 311, 429 N.E.2d 805, 445 N.Y.S.2d 127
(1981), the Court of Appeals held: An implicit precondition to this duty to provide a safe place to
work is that the party charged with that responsibility, have the authority to control the activity
bringing about the injury to enable it to avoid or correct an unsafe condition.
PLAINTIFF IS ENITLED TO A GRANTING OF SUMMARY JUDGMENT AS AGAINST
THE DEFENDANTS FOR VIOLATIONS OF LABOR LAW § 200.
16. The parties seeking summary judgment bear the initial burden of establishing their
prima facie entitlement to judgment as a matter of law. Giuffi-ida v. Citibank Corp., 100 N.Y.2d
72, 81 (2003); Friends of Animals v. Associated Fur Mfi-s., 46 N.Y.2d 1065, 1067 (1979). On
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control"
claims under Labor Law § 200, the statutory phrase "direct or is construed strictly and
refers to situations where the owner supervises the method and manner of the work. See Boccio
v. Bozik, 41 A.D.3d 754, 755 (2d Dep't 2007); Arama v Fruchter, 39 A.D.3d 678, 679 (2d Dep't
2007); Ferrero v Best Modular Homes, Inc., 33 A.D.3d 847, 849 (2d Dep't 2006); Siconolfi v.
n Crisci, 1 L A.D.3d 600,401 (2d Dep't 2004); Miller v Shah, 3 A.D.3d 521, 522 (2d Dep12004); .
Ortega v Puccia, 57 A.D.3d 54, 58-59 (2d Dep't 2008).
17. Summary judgment should be granted where no material facts are in dispute. Section
3212(b) of the CPLR states that: "the motion shall be granted if, upon all the papers and proof
submitted, the...defense shall be established sufficiently to warrant the court as a matter of law in
party."
directing judgment in favor of any
18. Once the proponent of the summary judgment motion has submitted such proof, the
burden shifts to the opposing party to show facts sufficient to require a trial of any issue of fact.
Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Friends of Animals v. Associated Fur
Mfrs., Inc., 46 N.Y.2d 1065 (1979).
19. Under Zuckerman and the myriad cases that have applied its principles, when faced
with the situation where sufficient proof for a directed verdict is submitted on a summary
judgment motion, the opponent of the motion must: "show facts sufficient to require a trial of
any issue of fact"... if the opponent is to succeed in defeating a summary judgment motion he,
too, must make his showing by producing evidentiary proof in admissible form. Zuckerman, 49
N.Y.2d at 562; Alvord & Swift v. Stewart M Muller Constr. Co., 46 N.Y.2d 276 (1978).
20. Where, as here, the movants has demonstrated his prima facie entitlement to
judgment in his favor, the motion must be granted if the opponent fails to demonstrate a material
fact question exists for resolution at trial. Here, the defendants cannot do so in light of their
unequivocal testimony on the core issues of control and ownership, and this Court should
accordingly grant the motion for partial summary judgment in plaintiff s favor.
21. In Maza v. University Avenue Development Corp., 13 A.D.3d 65, 786 N.Y.S.2d 149
(1#
Dept. 2004), the plaintiff tripped and fell on ice and debris in a courtyard at a construction
site. Id In upholding plaintiff s Labor Law § 200 claim, that Court held: The general contractor
was correctly found liable under Labor Law 6 200 based on its employee's deposition testimony
that it had authority to direct the various trades to clean up and had also directed its own
employees to always keep a clean site.
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22. The cause of the accident in question was due to a slippery, water accumulated,
rubber roof in which the Plaintiff was directed to work on under the direction and control of the
Defendants, YEHUDA MILLER and KAYLA MILLER. Said direction and control involved
the vocal and written direction, that any cutting work should be performed on the roof outside of
t . . a window, in which the Defendants, YEHUDA MILLER and KAYLA MILLER provided
their own step ladder to access. The safety and security of this roof, in not being a slipping
hazard for the Plaintiff, JOSEPH LAMPASONA was the duty and responsibility of the
homeowners/Defendants, YEHUDA MILLER and KAYLA MILLER to whom were also
overseeing the work being conducted and the manner in which it was performed. Defendants,
YEHUDA MILLER and KAYLA MILLER's negligence is evident with respect to their
responsibility for noticing and removing/alleviating the slipping hazards.
23. The First Department in Perrino v. Entergy Nuclear Indian Point 3, LLC,_ 48 AD3d
229, 230, 850 NYS2d 428,429 (1st Dept. 2008), affirmed a lower court's ruling with respect to a
plaintiff s Labor Law Section 200 cause of action. The case is significant because it mirrors the
supervision and control that the Defendants, YEHUDA MILLER and KAYLA MILLER
utilized in the aforementioned matter. The Perrino Court held: "An implicit precondition to this
duty... is that the party charged with that responsibility have the authority to control the activity
condition"
bringing about the injury to enable it to avoid or correct an unsafe (Russin v. Picciano
& Son, 54 N.Y.2d 311, 317, 445 N.Y.S.2d 127, 429 N.E.2d 805 [1981]).
24. The record here was replete with evidence indicating that Defendants, YEHUDA
MILLER and KAYLA MILLER
Preview
FILED: KINGS COUNTY CLERK 11/21/2023 11:42 AM INDEX NO. 514458/2021 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 11/21/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ___________-___---__---____-______------------ x JOSEPH LAMPASONA, Plaintiff(s), Index No.: 514458/2021 . MEMORANDEM OF LAW -against- YEHUDA MILLER and KAYLA MILLER, Defendant(s). ___________________________________________Ç STATE OF NEW YORK } COUNTY OF SUFFOLK } ss.: BRIAN T. MURTHA, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury: 1. I am the attorney of record for the Plaintiff, JOSEPH LAMPASONA, in the captioned matter. I am fully familiar with the facts and circumstances set forth herein, the source of my knowledge being the records and other discovery materials maintained by my office in the course of handling this action, and from personal knowledge of the progress and of the handling of this matter. I make this affirmation in opposition to the Defendants, YEHUDA MILLER and KAYLA MILLER motion for summary judgment. 2. Defendants, YEHUDA MILLER and KAYLA MILLER placed their construction responsibilities upon the Plaintiff, JOSEPH LAMPASONA, through direction and control while concurrently providing him with an inadequate, insufficient, and unsafe work area to perform such responsibilities. The conditions, most notably a wet and slippery work area caused the Plaintiff to have the accident by which he sustained serious personal injuries. 3. Based upon the material facts and circumstances of the accident of August 20, 2018 as set forth and described herein, summary judgment should be denied in favor of the Plaintiff and against Defendants, YEHUDA MILLER and KAYLA MILLER pursuant to Labor Law § 200 and § 241 (6) and granted for the Plaintiff and against Defendants, YEHUDA MILLER and KAYLA MILLER pursuant to Labor Law § 200 and § 241 (6). 1 of 18 FILED: KINGS COUNTY CLERK 11/21/2023 11:42 AM INDEX NO. 514458/2021 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 11/21/2023 THE DEFENDANTS HAVE FAILED TO MEET THE STANDARD FOR ENTITLEMENT TO SUMMARY JUDGMENT remedy" 4. The granting of summary judgment is "a drastic and the test is one of issue fmding as opposed to issue determination Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 165 N.Y.S.2d 498 (1957). All inferenceailiist be decided in favor of the non- 395, moving party Negri v. Stop and Shop, 65 N.Y.2d 625, 491 N.Y.S.2d151(1985); Martinez v. (2nd Khaimov, 74 A.D.3d 1031, 906 N.Y.S.2d 274 Dept. 2010); Gray v. New York City Transit (2nd Authority, 12 A.D.3d 638, 785 N.Y.S.2d 125 Dept. 2004) and drawn against the proponent (2nd Cerny v. Williams, 32 A.D.3d 881, 822 N.Y.S.2d 548 Dept. 2006). 5. The Court of Appeals as well as the First and Second Departments have had occasion to repeat the holding in Winegrad and stress that the motion court has absolutely no discretion to question credibility Ferrante v. American Lung Association, 90 N.Y.2d 623, 665 N.Y.S.2d 25 (1997); Conciatori v. Port Authority of New York and New Jersey, 46 A.D.3d 501, 846 N.Y.S.2d (2nd 659 Dept. 2007) Defendants' 6. In the case at bar, the inadequacy of motion for summary judgment mandates a denial regardless of the papers submitted in opposition (Picart v. Brookhaven [2nd Country, 37 A.D.3d 798, 832 N.Y.S.2d 51 Dept. 2007]; Doe v. Orange-Ulster Bd. Of [2nd Cooperative Educational Services, 4 A.D.3d 387, 771 N.Y.S.2d 389 Dept. 2004]). 7. In the context of this pretrial motion for summary judgment, the individual defendants, as the moving parties, had the initial burden of proof (see CPLR 3212[b]; Hecker v. Liebgold, 130 A.D.3d 572, 573, 13 N.Y.S3d 179). Accordingly, "[w]hile the ultimate burden of proof at trial will fall upon the plaintiff [s], a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting form" evidentiary proof in admissible (Collado v. Jiacona, 126 A.D.3d 927, 928, 6 N.Y.S3d 116 ; see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). "On a summary judgment motion, a moving defendant does not meet its burden of affirmatively establishing its entitlement to summary judgment by merely pointing to gaps in tlie plaintiffs defense" case; rather, it must affirmatively demonstrate the merit of its ( Vanderhurst v. Nobile, 130 A.D.3d 716, 717, 13 N.Y.S.3d 231; see Spota v. Love, 140 AD3d 730, 730-731; Setter v. Fire Is. Ferries, Inc., 139 A.DJd 840, 32 N.Y.S.3d 259 ; Vaughn v. Veolia Transp., Inc., 138 A.D.3d 979, 981, 30 N.Y.S.3d 230). "It is equally well established that the motion should not be 2 of 18 FILED: KINGS COUNTY CLERK 11/21/2023 11:42 AM INDEX NO. 514458/2021 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 11/21/2023 granted where the facts are in dispute, where conflicting inferences may be drawn from the credibility" evidence, or where there are issues of (Scott v. Long Is. Power Auth., 294 A.D.2d 348, 348, 741 N.Y.S.2d 708; see Ruiz v. Griffin, 71 A.D.3d 1112, 1115, 898 N.Y.S.2d 590). 8. Assuming the proponent of summary judgment makes the appropriate showing, the overall legal burden never sinfts, Plaintiff need not prove her case but, instead, merely raise a .. . . question for jury review (Ferrante v. American Lung Assoc., 90 N.Y.2d 623, 665 N.Y.S.2d 25 balanced" [1997]). Where the evidence is "evenly (Director of Office of Workers Compensation "arguable" Programs v. Greenwich Colliers, 512 U.S. 267 [1994]), an issue is (Barrett v. Jacobs, doubt" 255 N.Y. 520 [1931]) or there exists "any (Rotuba Extruders, Inc. v. Cetpos, 46 N.Y.2d 223, 413 N.Y.S.2d 141 [1978], quoting Moskowitz v. Garlock, 23 A.D.2d 943, 944, 259 [3d N.Y.S.2d 1003 Dept. 1965]) the motion must be denied. DEFENDANTS VIOIATIONS OF LABOR LAW § 200 REQUIRE DENIAL OF DEFENDANT'S MOTION AND A GRANTING OF SUMMARY JUDGMENT FOR THE PLAINTIFF. 9. In addition to the proof establishing a clear violation of Labor Law § 241(6), there was also evidence that the defendants violated Labor Law § 200, a statute codifying the duties of a site owner to provide workers with a safe place to work. See Comes v New York State Elec. and Gas Corp., 82 NY2d 876 (1993); Lombardi v Stout, 80 NY2d 290 (1992). That statute, in pertinent part, provides: All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such person. 10. An owner or general contractor may be subject to liability under the statute for a methods" subcontractor's "means and if it possessed "the authority to control the activity condition." bringing about the [worker's] injury to enable it to avoid or correct an unsafe Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343 (1998), quoting Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311 (1981). Liability may also lie - even without proof of supervision or control if 3 of 18 FILED: KINGS COUNTY CLERK 11/21/2023 11:42 AM INDEX NO. 514458/2021 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 11/21/2023 condition," the accident results from a "dangerous i.e., an "unreasonably dangerous work environment" at the site. O'Sullivan v IDI Const. Co., 7 N.Y.3d 805 (2006); Makarius v. Port Auth. of New York and New Jersey, 76 A.D.3d 805 (1st Dept. 2010). The pertinent law was summarized by the Second Department in Ortega v. Puccia, 57 A.D.3d 54 (2nd Dept. 2008), in a which that Court stated; Cases involving Labor Law S 200 fall into two road categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a worksite, and those involving the manner in which the work is performed. These two categories should be viewed in the disjunctive. 11. Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident. In Espinosa, 58 A.D.3d at 290, 869 N.Y.S.2d at 398, decided December 4, 2008, the Appellate Division, First Department held as follows: "It should be noted that, since the accident was caused by a dangerous condition of the premises, rather than by the work methods used, plaintiff need not establish that the defendant owners exercised supervision and control over his work in order to prevail against those defendants on his claim under Labor Law 6 200 (see Griffin v. New York City Tr. Auth., 16 A.D.3d 202, 202-203, 791 N.Y.S.2d 98 [2005]; Murphy v. Columbia Univ., 4 A.D.3d 200, 202, 773 N.Y.S.2d 10 [2004] ; Roppolo v. Mitsubishi Motor Sales of [2000])." Am., 278 A.D.2d 149, 150, 718 N.Y.S.2d 322 12. A Labor Law S 200 violation, arises out of a breach of the duty to maintain a safe workplace. See Gasper v. Ford Motor Co., 13 N.Y.2d 104, 242 N.Y.S.2d 205,192 N.E.2d 163 (1963). Labor.Law 4 200 is a "codification of the common-law duty imposed upon an owner or work." general contractor to provide construction site workers with a safe place to Comes v. New York State Electric and Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168,169 (1993). See also Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55 (1992). Where, as here, it can be claimed that the plaintiff s injuries arise from an allegedly dangerous condition at the work site (a slipping hazard), a defendant may be liable under Labor Law 200 and for common-law negligence if it had control over the work site and had actual or constructive notice of the dangerous condition 4 of 18 FILED: KINGS COUNTY CLERK 11/21/2023 11:42 AM INDEX NO. 514458/2021 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 11/21/2023 (Nasuro v. PI Assoc., A.D.3d , 2008 NY Slip Op 280.4. 2008 NY App Div LEXIS 2725 [20081; Payne v. 100 Motor Parkway Assoc., 45 A.D.3d 550. 846 N.Y.S.2d 211 |2007). 13. Ortega is consistent with a plethora of case law which holds that where, as in the present case, an accident arises from a dangerous condition at a construction site, proof of supervision and control is not a prerequisite to Labor.Law_§_200 liability. See Cappabianca v Skanska USA Bldg. Inc., 99 A.D.3d 139 (1st Dept. 2012); Makarius v Port Auth. of New York and New Jersey, 76 AD3d 805 (1st Dept 2010); Murphy v Columbia Univ., 4 A.D.3d 200 (1st Dept. 2004); Shipkoski v Watch Case Factory Associates, 292 AD2d 589, 590 (2d Dept 2002); Perry v City of Syracuse Ind. Dev. Agency, 283 A.D.2d 1017 (4th Dept. 2001); Roppolo v Mitsubishi Motor Sales of America, Inc., 278 A.D.2d 149 (1st Dept. 2000); Johnson Packaging Corp. of America, 274 A.D.2d 627 (3rd Dept. 2000). 14. In Roppolo v. Mitsubishi Motors Sales of America, Inc., 278 A.D.2d 149, 718 N.Y.S.2d 322 (1st Dept. 2000), the plaintiff raised an issue of fact as to notice by claiming that the defendant was utilizing a portion of the roof to park their vehicles during the renovation. Id The Defendant owner contended that it did not have notice of the ice accumulation in the parking area and that they did not supervise and control plaintiffs work. Id The First Department denied defendant's motion for summary judgment stating: Supervisory control is a necessary element of a Labor Law § 200 claim against an owner only 'where the alleged defect or dangerous condition arises from the contractor's methods. (Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877) Here, it does not appear that the water on the rubber roof was caused by the contractor's or Plaintiffs methods of performing renovations. 15. In Russin v. Picciano & Son, 54 N.Y.2d 311, 429 N.E.2d 805, 445 N.Y.S.2d 127 (1981), the Court of Appeals held: An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility, have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition. PLAINTIFF IS ENITLED TO A GRANTING OF SUMMARY JUDGMENT AS AGAINST THE DEFENDANTS FOR VIOLATIONS OF LABOR LAW § 200. 16. The parties seeking summary judgment bear the initial burden of establishing their prima facie entitlement to judgment as a matter of law. Giuffi-ida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003); Friends of Animals v. Associated Fur Mfi-s., 46 N.Y.2d 1065, 1067 (1979). On 5 of 18 FILED: KINGS COUNTY CLERK 11/21/2023 11:42 AM INDEX NO. 514458/2021 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 11/21/2023 control" claims under Labor Law § 200, the statutory phrase "direct or is construed strictly and refers to situations where the owner supervises the method and manner of the work. See Boccio v. Bozik, 41 A.D.3d 754, 755 (2d Dep't 2007); Arama v Fruchter, 39 A.D.3d 678, 679 (2d Dep't 2007); Ferrero v Best Modular Homes, Inc., 33 A.D.3d 847, 849 (2d Dep't 2006); Siconolfi v. n Crisci, 1 L A.D.3d 600,401 (2d Dep't 2004); Miller v Shah, 3 A.D.3d 521, 522 (2d Dep12004); . Ortega v Puccia, 57 A.D.3d 54, 58-59 (2d Dep't 2008). 17. Summary judgment should be granted where no material facts are in dispute. Section 3212(b) of the CPLR states that: "the motion shall be granted if, upon all the papers and proof submitted, the...defense shall be established sufficiently to warrant the court as a matter of law in party." directing judgment in favor of any 18. Once the proponent of the summary judgment motion has submitted such proof, the burden shifts to the opposing party to show facts sufficient to require a trial of any issue of fact. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Friends of Animals v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 (1979). 19. Under Zuckerman and the myriad cases that have applied its principles, when faced with the situation where sufficient proof for a directed verdict is submitted on a summary judgment motion, the opponent of the motion must: "show facts sufficient to require a trial of any issue of fact"... if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof in admissible form. Zuckerman, 49 N.Y.2d at 562; Alvord & Swift v. Stewart M Muller Constr. Co., 46 N.Y.2d 276 (1978). 20. Where, as here, the movants has demonstrated his prima facie entitlement to judgment in his favor, the motion must be granted if the opponent fails to demonstrate a material fact question exists for resolution at trial. Here, the defendants cannot do so in light of their unequivocal testimony on the core issues of control and ownership, and this Court should accordingly grant the motion for partial summary judgment in plaintiff s favor. 21. In Maza v. University Avenue Development Corp., 13 A.D.3d 65, 786 N.Y.S.2d 149 (1# Dept. 2004), the plaintiff tripped and fell on ice and debris in a courtyard at a construction site. Id In upholding plaintiff s Labor Law § 200 claim, that Court held: The general contractor was correctly found liable under Labor Law 6 200 based on its employee's deposition testimony that it had authority to direct the various trades to clean up and had also directed its own employees to always keep a clean site. 6 of 18 FILED: KINGS COUNTY CLERK 11/21/2023 11:42 AM INDEX NO. 514458/2021 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 11/21/2023 22. The cause of the accident in question was due to a slippery, water accumulated, rubber roof in which the Plaintiff was directed to work on under the direction and control of the Defendants, YEHUDA MILLER and KAYLA MILLER. Said direction and control involved the vocal and written direction, that any cutting work should be performed on the roof outside of t . . a window, in which the Defendants, YEHUDA MILLER and KAYLA MILLER provided their own step ladder to access. The safety and security of this roof, in not being a slipping hazard for the Plaintiff, JOSEPH LAMPASONA was the duty and responsibility of the homeowners/Defendants, YEHUDA MILLER and KAYLA MILLER to whom were also overseeing the work being conducted and the manner in which it was performed. Defendants, YEHUDA MILLER and KAYLA MILLER's negligence is evident with respect to their responsibility for noticing and removing/alleviating the slipping hazards. 23. The First Department in Perrino v. Entergy Nuclear Indian Point 3, LLC,_ 48 AD3d 229, 230, 850 NYS2d 428,429 (1st Dept. 2008), affirmed a lower court's ruling with respect to a plaintiff s Labor Law Section 200 cause of action. The case is significant because it mirrors the supervision and control that the Defendants, YEHUDA MILLER and KAYLA MILLER utilized in the aforementioned matter. The Perrino Court held: "An implicit precondition to this duty... is that the party charged with that responsibility have the authority to control the activity condition" bringing about the injury to enable it to avoid or correct an unsafe (Russin v. Picciano & Son, 54 N.Y.2d 311, 317, 445 N.Y.S.2d 127, 429 N.E.2d 805 [1981]). 24. The record here was replete with evidence indicating that Defendants, YEHUDA MILLER and KAYLA MILLER