Preview
FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024
EXHIBIT 1
FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
----------------------------------------------------------------------x
KYLE DEGNAN, Index No.: 700546/2020
Plaintiffs,
-against-
COLUMBIA PROPERTY TRUST SERVICES, LLC,
CR 222 E 41 NEW YORK LLC, NYU LANGONE
MEDICAL CENTER, NYU LANGONE HOSPITALS,
TISHMAN INTERIORS CORPORATION,
SAL’S HAULING CORP. and LUIS R. SAGUAY,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF
THE MOTION FOR SUMMARY JUDGMENT BY
DEFENDANTS SAL’S HAULING CORP. and LUIS R. SAGUAY
GALLO VITUCCI KLAR LLP
Attorneys for Defendants
SAL’S HAULING CORP. and LUIS R.
SAGUAY
90 Broad Street, Suite 1202
New York, New York 10004
(212) 683-7100
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TABLE OF CONTENTS
STATEMENT OF FACTS………………………………………………………………………...3
POINT I
SUMMARY JUDGMENT STANDARD………………………………………………………...3
POINT II
THE SAL’S HAULING DEFENDANTS ARE NOT PROPER LABOR LAW
DEFENDANTS SINCE THEY WERE NEITHER OWNER NOR GENERAL
CONTRACTOR AND HAD NO SUPERVISORY CONTROL OR
AUTHORITY OVER PLAINTIFF…………………………...………………………………...…4
POINT III
ALTERNATIVELY, PLAINTIFF’S CLAIMS
PURSUANT TO LABOR LAW § 240 MUST BE DISMISSED….………………………………6
POINT IV
ALTERNATIVELY, PLAINTIFF’S CAUSE OF ACTION PURSUANT
TO LABOR LAW 241(6) MUST BE DISMISSED BECAUSE THE
ALLEGED VIOLATIONS ARE IRRELEVANT, INAPPLICABLE,
AND PATENTLY IMPROPER…………………………………………………………………..6
POINT V
ALTERNATIVELY, PLAINTIFF’S CAUSES OF ACTION PURSUANT TO
LABOR LAW 200 AND COMMON LAW NEGLIGENCE MUST BE DISMISSED………….15
POINT VI
PLAINTIFF’S LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION
MUST BE DISMISSED SINCE THE SAL’S HAULING DEFENDANTS
MERELY FURNISHED THE CONDITION OR OCCASION FOR THE
OCCURRENCE OF THE EVENT WHICH IS NOT SUFFICIENT
TO IMPOSE LIABILITY UPON A PARTY…………………………………………………….18
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POINT VII
PLAINTIFF'S RECOVERY UNDER LABOR LAW 200 OR COMMON-LAW
NEGLIGENCE IS BARRED BECAUSE HE WAS ALLEGEDLY INJURED
BY THE VERY CIRCUMSTANCES HE WAS ASSIGNED TO ELIMINATE
AS FLAGMAN..…………………………………………………………………………………22
POINT VIII
ALL CROSS-CLAIMS AGAINST THE
SAL’S HAULING DEFENDANTS MUST BE DISMISSED…………………………………...23
CONCLUSION………………………………………………...………………………………...26
CERTIFICATION OF WORD COUNT……..………………...………………………………...27
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JEREMY WEG, an attorney duly admitted to practice law before the Courts of the State
of New York, hereby affirms under the penalties of perjury, as follows:
I am associated with the law firm of GALLO VITUCCI KLAR LLP, attorneys for
Defendants SAL’S HAULING CORP. and LUIS R. SAGUAY (collectively, “Sal’s Hauling”),
and based upon a review of the file maintained by my office, I am fully familiar with all of the
prior pleadings and proceedings heretofore had herein.
This memorandum of law is submitted in support of the motion for summary judgment by
defendants SAL’S HAULING CORP. and LUIS R. SAGUAY.
STATEMENT OF FACTS
For the sake of judicial economy, the Court is referred to Sal’s Hauling’s accompanying
affirmation in support for a statement of facts.
POINT I
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where no genuine issue of fact for trial has been
presented. It is well settled that a court must grant summary judgment where the movant establishes
there are no triable issues of fact. See, Vermette v. Truck Company, 68 N.Y.2d 714, 506 N.Y.S.2d
31 (1986); Fender v. Prescott, 101 A.D.2d 418, 476 N.Y.S.2d 128 (1st Dep’t 1984), aff’d, 64
N.Y.2d 1077, 498 N.Y.S.2d 880 (1985).
The Court of Appeals has observed that “it is not the function of the trial court to ferret out
speculative issues.” Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974); Farkas v.
Cedarhurst Natural Food Shoppe, Inc., 51 A.D.2d 793, 380 N.Y.S.2d 287 (2nd Dep’t 1976), aff’d,
41 N.Y.2d 1041, 396 N.Y.S.2d 165 (1977). On the contrary, when there is no genuine issue to be
resolved at trial, as is the case herein, the case should be summarily decided, and an unfounded
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reluctance to employ the remedy will only serve to swell the trial calendar and thus deny to other
litigants the right to have their claims properly adjudicated. See Andre, 35 N.Y.2d 361 at 364.
Once the moving party has submitted proof illustrating that there is no genuine issue as to
a material fact, any party opposing the motion is required to “lay bare” their proof and come
forward with evidence in admissible form that would require a trial of the claimed material
questions of fact. See, Ferber v. Sterndent Corp., 51 N.Y.2d 782, 433 N.Y.S.2d 85 (1980).
It is well settled that “mere conclusions, expressions of hope, or unsubstantiated allegations
or assertions are insufficient to defeat a motion for summary judgment.” Bonghi v. First Cent
Shopping Center Inc., 116 A.D.2d 502, 497 N.Y.S.2d 373 (1st Dep’t 1986).
Further, mere speculation is similarly insufficient to create an issue of fact on which to
defeat a motion for summary judgment.
POINT II
THE SAL’S HAULING DEFENDANTS ARE NOT PROPER LABOR LAW
DEFENDANTS SINCE THEY WERE NEITHER OWNER
NOR GENERAL CONTRACTOR AND HAD NO SUPERVISORY
CONTROL OR AUTHORITY OVER PLAINTIFF
Plaintiff’s labor law causes of action should be dismissed against the Sal’s Hauling
defendants since they were neither owner nor general contractor and had no supervisory control or
authority over plaintiff.
Although the Labor Law imposes a nondelegable duty on an owner or general contractor
to conform to its requirements, it is well settled that “unless a defendant has supervisory control
and authority over the work being done when the plaintiff is injured, there is no statutory agency
conferring liability under the Labor Law.” Walls v. Turner Constr., 4 N.Y.3d 861, 864, 798
N.Y.S.2d 351 (2005), citing Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317, 445 N.Y.S.2d
127 (1981) and Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 N.Y.3d 280, 293 (2003).
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Only upon obtaining the authority to supervise and control does the third party fall within the class
of those having nondelegable liability as an agent, and “to hold otherwise and impose a
nondelegable duty upon each contractor for all injuries occurring on a job site and thereby make
each contractor an insurer for all workers regardless of the ability to direct, supervise and control
those workers would lead to improbable and unjust results.” Russin v. Louis N. Picciano & Son,
supra.
In Murphy v. Herbert Const. Co., Inc., 297 A.D.2d 503, 747 N.Y.S.2d 439 (1st Dep’t 2002),
the First Department reversed the Supreme Court and dismissed the causes of action against
defendant subcontractor under Labor Law §§ 240(1) and § 241 (6) since plaintiff failed to
demonstrate that the subcontractor had the authority to direct, supervise and control the work
giving rise to the injury. See also, Stevenson v. Alfredo, 277 A.D.2d 218, 715 N.Y.S.2d 444 (2d
Dep’t 2000)(granting subcontractor summary judgment under Labor Law §240 and 241 since
“[t]here is no evidence in the record tending to show that the defendant Scott Terpening possessed
any authority to supervise and control the plaintiff’s work or work area”); Mathews v. Bank of
America, 107 A.D.3d 495, 968 N.Y.S.2d 15 (1st Dep’t 2013)(granting summary judgment to
subcontractor who was not considered a statutory agent for purposes of imposing liability under
Labor Law §240(1) since “[t]here is no evidence that it had the authority to supervise, direct or
control the air testing and monitoring work that plaintiff . . . was performing at the time of her
injury.”)
Likewise, in Comes v. New York State Elec. and Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d
168 (1993), the Court of Appeals dismissed the cause of action against defendant under Labor Law
§200 upon the ground that defendant did not have “the authority to control the activity bringing
about the injury.”
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Notably, in Buestan v. EAN Holdings, LLC, 54 Misc. 3d 1224(a), 55 N.Y.S.3d 691
(Sup. Ct., Queens Co 2017), the Supreme Court concluded that defendant Sal’s Hauling
Corp, the same defendant herein, which was retained to haul garbage and debris from the
subject location on an as-needed basis, was not considered a statutory agent of the owner or
general contractor and therefore an improper labor law defendant.
Here, it is undisputed that defendants Sal’s Hauling Corp. and Luis R. Saguay were neither
the owner, general contractor, nor statutory agent at the subject jobsite. It is undisputed that
defendant Sal’s Hauling Corp. was retained merely to haul garbage and debris from the subject
location on an as-needed basis pursuant to a verbal agreement with Waldorf/W5/Calvin
Maintenance (Exhibit H, at 13, 19).
Additionally, it is undisputed that Sal’s Hauling did not have any authority to supervise,
direct or control plaintiff’s work at the site. Indeed, plaintiff admitted during his testimony that he
was supervised, directed and controlled only by Calvin Maintenance and Tishman at the job site
(Exhibit C, at 51-52, 61).
Accordingly, defendants Sal’s Hauling Corp. and Luis R. Saguay are not proper labor law
defendants and plaintiff’s labor law causes of action should be dismissed in their entirety.
POINT III
ALTERNATIVELY, PLAINTIFF’S CLAIMS
PURSUANT TO LABOR LAW § 240 MUST BE DISMISSED
Labor Law §240(1) sets forth, in pertinent part:
All contractors and owners and their agents…in the erection, demolition, repairing,
altering, painting, cleaning, or pointing of a building or structure shall furnish or
erect…for the performance of such labor, scaffolding, hoists, stays, ladders, slings,
hangers, blocks, pulleys, braces, irons, ropes, and other devices…as to give proper
protection to a person so employed.
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As the Court of Appeals explained in Narducci v. Manhasset Bay Associates, 96 N.Y. 2d,
259, 270 (2001), “not every worker who falls at a construction site, and not every object that falls
on a worker, gives rise to the extraordinary protections of Labor Law § 241.
Although Labor Law §240(1) provides for strict liability against those who violate the
statute, the plaintiff must nevertheless prove that the violation was the proximate cause of his
injuries. See, Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280 (1st
Dep’t 2003). It is well settled within New York law that, for a plaintiff to sustain a claim pursuant
to Labor Law § 240(1), the accident must be caused by, or arise from, a gravity-related, height-
related, or elevation-related risk.
Here, plaintiff alleges that he sustained personal injuries when Sal’s Hauling’s truck
bumped into a yodock while the truck was reversing, and that the yodock was then pushed into
plaintiff. There was undisputedly no fall from a height, and there was no falling object. As such,
there was no gravity-related, height-related, elevation-related risk in any way related to plaintiff’s
alleged accidents.
As such, plaintiff should not be afforded the protections of Labor Law § 240, and his claim
should be dismissed as a matter of law.
POINT IV
ALTERNATIVELY, PLAINTIFF’S CAUSE OF ACTION PURSUANT
TO LABOR LAW 241(6) MUST BE DISMISSED BECAUSE THE
ALLEGED VIOLATIONS ARE IRRELEVANT, INAPPLICABLE,
AND PATENTLY IMPROPER
Labor Law § 241(6) requires owners and contractors to “provide reasonable and adequate
protection and safety for workers and to comply with the specific safety rules and regulations
promulgated by the Commissioner of the Department of Labor.” See Ross v. Curtis-Palmer
Hydro-Elec. Co., 81 NY 2d 494, 502 (1993).
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It is well-settled that to sustain a claim under Labor Law § 241(6), a plaintiff must allege
that a defendant violated an applicable section of the New York Industrial Code and that such
violation was a proximate cause of the alleged accident. See, Ross v. Curtis-Palmer Hydro-Elec.
Co., supra.
Here, assuming arguendo that the labor law is somehow even applicable to the Sal’s
Hauling Defendants, which is not conceded herein, plaintiff’s alleged violations of the Industrial
Code, NYC Department of Transportation Highway Rules, Federal Manual on Uniform Traffic
Control Devices for Street and Highway Regulations 2-02(h) and Part/Section/Chapter 6, New
York State Department of Transportation Traffic Engineering and Highway Safety Division Work
Zone Traffic Control, OSHA regulations, are each irrelevant, inapplicable, and/or patently
improper, and do not support plaintiff’s Labor Law 241(6) cause of action.
A. Alleged Industrial Code Violations
As to plaintiff’s alleged industrial code violations, not only are the provisions referenced
by plaintiff irrelevant to the alleged facts at issue herein, but they also undeniably do not apply to
the Sal’s Hauling defendants, who were neither the owner nor general contractor/construction
manager at the job site.
Specifically, plaintiff alleges causes of action under the following industrial code sections:
23-1.18(c)(1-3)- barricades 23-1.29(a-b)- public vehicular traffic, 23-1.33(a)(1-3)- protection of
people passing by, 23-1.33(c)(1-8)- vehicular protection, 23-1.33(d)(1-2)- maintenance, 23-4.2(k)-
trench and area excavations, 23-6.3(d)(1-2)- material platform and bucket hoists, 23-1.7(b)- falling
hazards, 23-9.2(b)(1)- power operated machinery, 23-9.5(g)- backing, 23-9.7(d)- motor trucks.
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Industrial Code §23-1.18(c)(1-3)
Industrial Code §23-1.18(c)(1-3) – barricades- are not applicable since plaintiff’s alleged
accident did not occur as a result of demolition, and those provisions “by their express terms, apply
only to demolition.” Turgeon v. Vassar College, 172 A.D.3d 1134, 100 N.Y.S. 3d 374 (2d Dep’t
2019).
Alternatively, those provisions are not applicable to the Sal’s Hauling defendants since
they were neither the owner nor general contractor/construction manager and were not responsible
for the construction of barricades at the job site. The aforesaid provisions relate to the construction
of barricade fences not less than six feet in height along the sidewalk or pedestrian thoroughfare,
or safety railing to the extent the building to be constructed is not more than 25 feet above ground,
to prevent unauthorized persons from entering the job site. Nor are those provisions applicable to
the alleged facts.
Industrial Code §23-1.29(a-b)
Industrial Code §23-1.29(a-b)- public vehicular traffic- are not applicable to the Sal’s
Hauling defendants since they relate to the assignment of flaggers at construction site, including
providing fluorescent red or orange flags or paddles, as well as the stationing of flaggers at a proper
and reasonable distance from the work area, to control public vehicular traffic. Here, it is
undisputed that plaintiff was assigned by a different entity as the job site flagger and stationed at
the loading dock at the time of the subject alleged accident, and in any event, it is further
undisputed that the Sal’s Hauling defendants were neither the owner nor general
contractor/construction manager and they were not responsible to assign or station such job site
flaggers. Nor are these provisions applicable to the alleged facts.
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Industrial Code §23-1.33(a)(1-3)
Industrial Code §23-1.33(a)(1-3)- protection of people passing by construction operations-
are not applicable to the Sal’s Hauling defendants. First, it is well settled that 12 NYCRR 23-1.33
cannot support a claim under Labor Law 241(6) since “that regulation does not mandate
compliance with specifications” and constitutes “a general safety standard.” McMahon v. Durst,
224 A.D.2d 324, 638 N.Y.S. 2d 48 (1st Dep’t 1996).
Second, those provisions are not applicable since “12 NYCRR 23-1.33 does not apply to
workers on a construction site, such as the plaintiff here.” Leighton v. Chaber, LLC, 204 A.D.3d
903, 164 N.Y.S.3d 849 (2d Dep’t 2022).
Third, those provisions are not applicable since plaintiff was not engaged in demolition,
and these provisions “by their express terms, apply only to demolition.” Turgeon v. Vassar
College, 172 A.D.3d 1134, 100 N.Y.S. 3d 374 (2d Dep’t 2019).
Fourth, alternatively, those provisions are not applicable to the Sal’s Hauling defendants
since they relate to the construction of protection and safety devices to protect persons passing by
the areas in which construction is being performed, including railings, fences, barricades, sheeting
and shoring, sidewalk sheds, temporary walkways and temporary roadways. Here, it is undisputed
that the Sal’s Hauling defendants were neither the owner nor general contractor/construction
manager and were not responsible for the construction of protection and safety devices at the job
site. Nor are those provisions applicable to the alleged facts.
Industrial Code §23-1.33(c)(1-8)
Industrial Code §23-1.33(c)(1-8)- vehicular protection- are not applicable. First, it is well
settled that 12 NYCRR 23-1.33 cannot support a claim under Labor Law 241(6) since “that
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regulation does not mandate compliance with specifications” and constitutes only “a general safety
standard.” McMahon v. Durst, 224 A.D.2d 324, 638 N.Y.S. 2d 48 (1st Dep’t 1996).
Second, those provisions are not applicable since “12 NYCRR 23-1.33 does not apply to
workers on a construction site, such as the plaintiff here.” Leighton v. Chaber, LLC, 204 A.D.3d
903, 164 N.Y.S.3d 849 (2d Dep’t 2022).
Third, those provisions are not applicable since plaintiff’s alleged accident was not due to
demolition, and those provisions “by their express terms, apply only to demolition.” Turgeon v.
Vassar College, 172 A.D.3d 1134, 100 N.Y.S. 3d 374 (2d Dep’t 2019).
Fourth, alternatively, those provisions are not applicable to the Sal’s Hauling defendants
since they relate to the construction of protection and safety devices to protect vehicles passing by
the areas in which construction is being performed, including adequate warning signs, flashing
lights, flagmen or other means to indicate clearly the paths of vehicular traffic. Here, it is
undisputed that the Sal’s Hauling defendants were neither the owner nor general
contractor/construction manager and were not responsible for the construction of protection and
safety devices or the assignment of flagmen at the job site. Nor are those provisions applicable to
the alleged facts.
Industrial Code §23-1.33(d)(1-2)
Industrial Code §23-1.33(d)(1-2)- maintenance of temporary walkways and roadways- are
not applicable. First, it is well settled that 12 NYCRR 23-1.33 cannot support a claim under Labor
Law 241(6) since “that regulation does not mandate compliance with specifications” and
constitutes “a general safety standard.” McMahon v. Durst, 224 A.D.2d 324, 638 N.Y.S. 2d 48 (1st
Dep’t 1996).
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Second, those provisions are not applicable since “12 NYCRR 23-1.33 does not apply to
workers on a construction site, such as the plaintiff here.” Leighton v. Chaber, LLC, 204 A.D.3d
903, 164 N.Y.S.3d 849 (2d Dep’t 2022).
Third, those provisions are not applicable since plaintiff’s alleged accident was not due to
demolition, and those provisions “by their express terms, apply only to demolition.” Turgeon v.
Vassar College, 172 A.D.3d 1134, 100 N.Y.S. 3d 374 (2d Dep’t 2019).
Fourth, alternatively, those provisions are not applicable to the Sal’s Hauling defendants
since they relate to the maintenance of temporary walkways and roadways from obstructions,
tripping hazards, snow, sleet, ice and accumulations of water, dirt or dust, and of any other material
or objects. Here, it is undisputed that the Sal’s Hauling defendants were neither the owner nor
general contractor/construction manager and were not responsible for the maintenance of
temporary walkways or roadways at the job site. Nor are those provisions applicable to the alleged
facts.
Industrial Code §23-4.2(k)
Industrial Code §23-4.2(k)- trench and area excavations- is not applicable since, by its
express terms, applies only to excavations, and plaintiff’s alleged accident was not due to
excavation.
Alternatively, those provisions are not applicable to the Sal’s Hauling defendants since
they were neither the owner nor general contractor/construction manager and were not tasked with
determining whether to permit persons to work in any areas where they may be struck or
endangered by any excavation equipment or by any material being dislodged by or falling from
such equipment. In any event, this provision is not applicable to the alleged facts.
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Industrial Code §23-6.3(d)(1-2)
Industrial Code §23-6.3(d)(1-2)- material platform and bucket hoists - are not applicable
to the Sal’s Hauling defendants since they were neither the owner nor general
contractor/construction manager and it undisputed that they were not responsible for designing or
constructing the entrances to hoist ways at the job site. In any event, these provisions are not
applicable to the alleged facts.
Industrial Code §23-1.7(b)
Industrial Code §23-1.7(b)- falling hazards- is not applicable to the Sal’s Hauling
defendants. First, factually, the subject alleged accident did not involve a hazardous opening with
a falling hazard at the edge which would necessitate a safety net, safety belt, safety railing, or
similar safety device.
In any event, it is undisputed that the Sal’s Hauling defendants were neither the owner nor
general contractor/construction manager and were not responsible for the construction of safety
net, safety belt, safety railing, or similar safety device at the job site.
Industrial Code §23-9.2(b)(1)
Industrial Code §23-9.2(b)(1)- power-operated machinery- is not applicable. First, it is
well-settled that “the provision is merely a general safety standard that does not give rise to a
nondelegable duty under the statute.” Gonzalez v. Perkan Concrete Corp., 110 A.D.3d 955, 975
N.Y.S.2d 65 (2d Dep’t 2013).
Alternatively, the aforesaid provision is not applicable since, by its express terms, it applies
only to power-operated machinery.
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Further, the Sal’s Hauling defendants were neither the owner nor general
contractor/construction manager and were not responsible to designate the operators of power-
operated equipment operators at the job site.
Industrial Code §23-9.5(g)
Industrial Code §23-9.5(g)- backing- is not applicable since, by its express terms, applies
only to excavating machines, and plaintiff’s alleged accident undisputedly did not result from an
excavation machine.
In any event, this provision requires that “[e]very mobile power-operated excavating
machine except for crawler mounted equipment shall be provided with an approved warning
device so installed as to automatically sound a warning signal when such machine is backing,” and
it is undisputed that defendant Sal’s Hauling’s garbage hauler had an operational audible reverse
warning signal that plaintiff admittedly heard at the time of the alleged accident.
Industrial Code §23-9.7(d)
Industrial Code §23-9.7(d)- motor trucks- is not applicable to the Sal’s Hauling defendants
since they were neither the owner nor general contractor/construction manager and were not
responsible to designate locations at the job site where trucks would back in or where flaggers
were stationed.
In any event, this provision is also factually inapplicable. This provision provides that
“[t]rucks shall not be backed or dumped in places where persons are working nor backed into
hazardous locations unless guided by a person so stationed that he sees the truck drivers and the
spaces in back of the vehicles.” Here, it is undisputed that the Sal’s Hauling defendants were not
backing the truck into an area where persons were working, and that plaintiff was the flagger
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stationed at the subject loading dock who was admittedly aware that defendant Sal’s Hauling’s
garbage hauler was backing in at the time of the alleged accident.
B. Alleged OSHA Violations
Plaintiff alleges violations of OSHA regulations 29 CFR 923.20(b)(2), 29 CFR
1926.21(b)(2), 29 CFR1926.201(a), and 29 CFR 1926.601(b)(4)(ii).
However, it is well settled that alleged violations of OSHA standards do not provide a basis
for liability under Labor Law § 241(6) and are not applicable. See, Marl v. Liro Engineers, Inc.,
159 A.D.3d 688, 689, 73 N.Y.S.3d 202, 204 (2d Dep't 2018); Shaw v. RPA Assocs., LLC, 75
A.D.3d 634, 636–37, 906 N.Y.S.2d 574, 577 (2d Dep't 2010); Rizzuto v. L.A. Wenger Contracting
Co., 91 N.Y.2d 343, 349, 693 N.E.2d 1068, 1071 (1998).
C. Miscellaneous Generalized Violations
Lastly, plaintiff alleges entirely generalized violations of the NYC Department of
Transportation Highway Rules, Federal Manual on Uniform Traffic Control Devices for Street and
Highway Regulations 2-02(h) and Part/Section/Chapter 6, New York State Department of
Transportation Traffic Engineering and Highway Safety Division Work Zone Traffic Control.
While none of the aforesaid allegations are applicable in fact or law, they are also entirely
generalized and cannot support any cause of action under Labor Law 241(6) or otherwise.
Accordingly, plaintiff’s cause of action under Labor Law §241(6) must be dismissed in its
entirety.
POINT V
ALTERNATIVELY, PLAINTIFF’S CAUSES OF ACTION PURSUANT TO
LABOR LAW 200 AND COMMON LAW NEGLIGENCE MUST BE DISMISSED
Labor Law 200 is a codification of the common-law duty imposed upon an owner or
general contractor to maintain a safe construction site. Rizzuto v. L.A. Wenger Contr. Co., 91
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N.Y.2d 343 (N.Y. 1998); Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993); Comes v
New York State Elec. & Gas Corp., 82 NY2d 876, 877 (1993).
As to the “means and methods of work” category, a plaintiff’s recovery under the theories
of common law negligence and Labor Law 200 “for breach of the common law duty of care could
be had only if the injured employee could demonstrate that the named defendant had a direct hand,
through either control or supervision, in the injury-producing work.” Ross v. Curtis-Palmer Hydro-
Electric Co., supra; Comes v. N.Y.S. Electric & Gas Corp., supra; Mocarska v. 200 Madison
Assoc., 262 A.D.2d 163, 692 N.Y.S.2d 58 (1st Dep’t 1999) (no liability imposed pursuant to Labor
Law § 200 upon renovating subcontractor that neither directed or supervised plaintiff’s asbestos
abatement activities); Vieira v. Tishman Constr. Corp., 255 A.D.2d 235, 679 N.Y.S.2d 618 (1st
Dep’t 1998) (no liability imposed pursuant to Labor Law § 200 upon flooring contractor that did
not supervise or control plaintiff’s work at the time of the incident); Bratton v. J.L.G. Indus., Inc.,
247 A.D.2d 571, 669 N.Y.S.2d 53 (2d Dep’t 1998) (where neither general contractor nor owner
directed or controlled plaintiff’s work activity, plaintiff’s Labor Law §200 claim was dismissed);
Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55 (1992) (holding that where alleged defect or
dangerous condition arises from contractors’ methods and owner exercises no supervisory control
over operation, no liability attaches to owner under common law or under § 200 of the Labor Law).
In Monterroza v. State Univ. Const. Fund, 56 A.D.3d 629, 630–31, 869 N.Y.S.2d 113,
115–16 (2d Dep’t 2008), the Second Department explained that “[t]o be held liable
under Labor Law § 200 and for common-law negligence arising from the manner in which work
is performed at a work site, a general contractor or owner must have ‘authority to supervise or
control the performance of the work.’” Citing, Ortega v. Puccia, 57 A.D.3d 54, 866 N.Y.S.2d 323
(2d Dep’t 2008); Chowdhury v. Rodriguez, 57 A.D.3d 121, 867 N.Y.S.2d 123(2d Dep’t 2008).
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In Ortega v. Puccia, supra, the Second Department explained that “when the manner of
work is at issue, ‘no liability will attach to the owner solely because [he or she] may have had
notice of the allegedly unsafe manner in which work was performed’ . . . Rather, when a claim
arises out of alleged defects or dangers in the methods or materials of the work, recovery against
the owner or general contractor cannot be had under Labor Law §200 unless it is shown that the
party to be charged had the authority to supervise or control the performance of the work.”
(citations omitted).
If, on the other hand, the alleged accident was caused by a defect considered part of the
overall condition of the premises, then the focus should not be on supervision and control over the
manner of the work, but rather, on whether the defendants created the alleged defect or had actual
or constructive notice of the alleged dangerous or defective condition. Chowdhury v.
Rodriguez, 57 A.D.3d 121, 867 N.Y.S.2d 123(2d Dep’t 2008); see also, Nevins v. Essex Owners
Corp., 276 A.D.2d 315, 714 N.Y.S.2d 38 (1st Dep’t 2000); Haghighi v. Bailer, 240 A.D.2d 368,
657 N.Y.S.2d 774 (2d Dep’t 1997).
A "general awareness" that a dangerous condition may be present in the area is not legally
sufficient to charge a party with notice of a dangerous condition which allegedly injured the
plaintiff. See, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646
(1986); see also, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493 (1994).
Here, assuming arguendo that the labor law is somehow even applicable to the Sal’s
Hauling Defendants, which is certainly not conceded, the alleged accident did not occur because
of means and methods of work or because of any allegedly dangerous or defective condition
created by them. Nor was there any notice to Sal’s Hauling defendants.
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First, assuming arguendo that the alleged accident is deemed to have been caused by
“means and methods of work,” then the evidence undisputedly demonstrates that the Sal’s Hauling
defendants did not have any authority to supervise, direct or control plaintiff’s work at the site.
Instead, plaintiff testified that he reported only to non-party Calvin Maintenance and co-defendant
Tishman at the job site, each of whom provided him with direction and supervision (Exhibit C,
Pl’s Transcript from August 16, 2022, at 51-52, 61).
Alternatively, assuming arguendo that the alleged accident is deemed to have been caused
by “a dangerous or defective condition on the premises,” which is not conceded herein, then as set
forth in greater detail below, the evidence undisputedly demonstrates that the Sal’s Hauling
defendants cannot be liable for plaintiff’s alleged accident since (1) they merely furnished the
condition or occasion for the occurrence of the event; and/or (2) plaintiff was allegedly injured by
the very circumstances he was assigned to eliminate as flagman.
Accordingly, plaintiff’s cause of action under Labor Law §200 and common law
negligence must be dismissed in its entirety.
POINT VI
PLAINTIFF’S LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION
MUST BE DISMISSED SINCE THE SAL’S HAULING DEFENDANTS
MERELY FURNISHED THE CONDITION OR OCCASION FOR THE
OCCURRENCE OF THE EVENT WHICH IS NOT SUFFICIENT
TO IMPOSE LIABILITY UPON A PARTY
Plaintiff cannot establish the elements of a negligence claim against the Sal’s Hauling
Defendants. Plaintiff seems to base his claims upon the fact that an accident occurred rather than
any actual negligence by the Sal’s Hauling defendants. However, the mere occurrence of an
accident is insufficient to impose liability upon a party. See generally, Cooke v. Bernstein, 45
A.D.2d. 497, 359 N.Y.S.2d 793 (1st Dept. 1974).
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“Liability may not be imposed upon a party who merely furnishes the condition or occasion
for the occurrence of the event but is not one of its causes.” See, Ely v. Pierce, 302 A.D.2d 489,
755 N.Y.S.2d 250 (2d Dep’t 2003); accord: Canals v. Tilcon New York, Inc., 135 A.D.3d 683, 23
N.Y.S.3d 320 (2d Dep’t 2016); Liquori v. Brown, 172 A.D.3d 1354, 101 N.Y.S.3d 147 (2019);
Riccio v. Kid Fit, Inc., 126 A.D.3d 873 (2d Dep’t 2015).
In Canals, supra, plaintiff testified that he was riding his bicycle and noticed that the
flagperson, who was employed by Tilcon, the general contractor, was looking north and not
looking at the traffic that approached him from behind while waving the traffic to proceed
northbound. As plaintiff approached the site, a northbound car startled him by coming close and
plaintiff veered his bicycle into a trench. The Second Department affirmed summary judgment in
Tilcon’s favor and concluded that “[t]his evidence established, prima facie, that at most, Tilcon
furnished the condition for the plaintiff’s accident, and that the proximate cause or causes of the
accident were the actions of the plaintiff and/or the operator of the northbound car, and not the
alleged negligence of Tilcon’s flagperson”
Similarly, in Riccio, supra, plaintiff was burned by a lit sterno cannister, which was
attached underneath a food chafing tray, as she carried it from the table to the sink. The Second
Department explained that even if the defendants’ employees inadvertently disposed of the caps
to the sterno cannisters prior the accident, this merely furnished the occasion for the accident, and
the plaintiff’s own negligence was the “sole proximate cause” of her accident and “superseded the
defendants’ conduct and terminated the defendants’ liability for her injuries.”
Here, plaintiff’s own negligence was the sole proximate cause of the alleged accident, and
the Sal’s Hauling defendants cannot be held liable since, at most, they merely furnished the
condition or occasion for the occurrence of the event (without conceding same).
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Plaintiff admitted that the reason he was assigned with his partner to work at the subject
loading dock as a flagger was to “direct the truck into the bay” (Exhibit C, Pl’s Transcript from
August 16, 2022, at 41, 43-44, 49, 61, 70, 72-73; Exhibit D, Plaintiff’s Transcript from September
9, 2022, at 85). Likewise, English testified that the loading dock’s flagger is responsible to ensure
that trucks reversing into the loading dock are backing up in line with the ramp (Exhibit F, at 75).
This flagger role was particularly important since, as defendant Saguay testified, the yodock
barriers could not be seen through the truck mirrors due to the low-lying back end of the garbage
hauler truck (Exhibit G, at 68).
Moreover, plaintiff was admittedly aware that the subject loading dock was narrow, and he
even testified that the tires of trucks reversing into the loading dock on prior occasions “would
hang off the loading dock on the ramp, so the truck would tilt towards the street” (Exhibit D,
Plaintiff’s Transcript from September 9, 2022, at 11). Plaintiff further admitted that he had
personally seen other trucks reverse into the loading dock’s green wooden construction wall on
prior occasions (Exhibit C, Pl’s Transcript from August 16, 2022, at 67).
Despite knowing that the loading dock was narrow and that there have even been prior
incidents of trucks making contact with barriers situated there, plaintiff testified that he was
standing immediately next to the subject yodock barrier without any spacing in between – even
though he admittedly knew it was neither anchored to the street nor weighed down with sand or
water (Exhibit C, Pl’s Transcript from August 16, 2022, at 89, 95, 107-108; Plaintiff’s Transcript
from September 9, 2022, Exhibit D, at 11-12).
Further, plaintiff testified that he was admittedly aware that defendant Sal’s Hauling’s truck
was reversing into the subject loading dock with an audible beeping noise at the time of the
accident, and plaintiff even watched as the truck began reversing towards the yodocks (Exhibit C,
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Pl’s Transcript from August 16, 2022, at 93-94, 99; Exhibit D, Plaintiff’s Transcript from
September 9, 2022, at 86). Defendant Saguay was reversing the truck at a speed of “5 miles per
hour or less” (Exhibit G, at 46)
Nevertheless, rather than signaling to the Sal’s Hauling truck driver that the Sal’s Hauling
truck was slowly reversing towards the yodocks, which was his flagger responsibility at the loading
dock, or even simply moving away from the yodock, plaintiff was instead distracting himself by
talking on his cell phone in clear violation of job site safety rules and was thereafter involved in
the subject alleged accident (Exhibit C, Pl’s Transcript from August 16, 2022, at 72-73, 82, 86,
99, 101; Exhibit F, at 61, 69, 75).
In fact, Di Capua testified that workers, including flag persons, were not permitted to utilize
their cell phone while performing their role at the job site, without any exceptions, and it did not
matter to whom the worker was speaking on the cell phone, because it served as a distraction
(Exhibit I, at 47-48). Similarly, English testified that flaggers are not permitted to use their cell
phone while at the loading dock due to safety and distraction concerns, which also results in
discipline (Exhibit F, at 69, 81-8
Preview
FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 EXHIBIT 1 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ----------------------------------------------------------------------x KYLE DEGNAN, Index No.: 700546/2020 Plaintiffs, -against- COLUMBIA PROPERTY TRUST SERVICES, LLC, CR 222 E 41 NEW YORK LLC, NYU LANGONE MEDICAL CENTER, NYU LANGONE HOSPITALS, TISHMAN INTERIORS CORPORATION, SAL’S HAULING CORP. and LUIS R. SAGUAY, Defendants. -------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS SAL’S HAULING CORP. and LUIS R. SAGUAY GALLO VITUCCI KLAR LLP Attorneys for Defendants SAL’S HAULING CORP. and LUIS R. SAGUAY 90 Broad Street, Suite 1202 New York, New York 10004 (212) 683-7100 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 TABLE OF CONTENTS STATEMENT OF FACTS………………………………………………………………………...3 POINT I SUMMARY JUDGMENT STANDARD………………………………………………………...3 POINT II THE SAL’S HAULING DEFENDANTS ARE NOT PROPER LABOR LAW DEFENDANTS SINCE THEY WERE NEITHER OWNER NOR GENERAL CONTRACTOR AND HAD NO SUPERVISORY CONTROL OR AUTHORITY OVER PLAINTIFF…………………………...………………………………...…4 POINT III ALTERNATIVELY, PLAINTIFF’S CLAIMS PURSUANT TO LABOR LAW § 240 MUST BE DISMISSED….………………………………6 POINT IV ALTERNATIVELY, PLAINTIFF’S CAUSE OF ACTION PURSUANT TO LABOR LAW 241(6) MUST BE DISMISSED BECAUSE THE ALLEGED VIOLATIONS ARE IRRELEVANT, INAPPLICABLE, AND PATENTLY IMPROPER…………………………………………………………………..6 POINT V ALTERNATIVELY, PLAINTIFF’S CAUSES OF ACTION PURSUANT TO LABOR LAW 200 AND COMMON LAW NEGLIGENCE MUST BE DISMISSED………….15 POINT VI PLAINTIFF’S LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION MUST BE DISMISSED SINCE THE SAL’S HAULING DEFENDANTS MERELY FURNISHED THE CONDITION OR OCCASION FOR THE OCCURRENCE OF THE EVENT WHICH IS NOT SUFFICIENT TO IMPOSE LIABILITY UPON A PARTY…………………………………………………….18 1 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 POINT VII PLAINTIFF'S RECOVERY UNDER LABOR LAW 200 OR COMMON-LAW NEGLIGENCE IS BARRED BECAUSE HE WAS ALLEGEDLY INJURED BY THE VERY CIRCUMSTANCES HE WAS ASSIGNED TO ELIMINATE AS FLAGMAN..…………………………………………………………………………………22 POINT VIII ALL CROSS-CLAIMS AGAINST THE SAL’S HAULING DEFENDANTS MUST BE DISMISSED…………………………………...23 CONCLUSION………………………………………………...………………………………...26 CERTIFICATION OF WORD COUNT……..………………...………………………………...27 2 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 JEREMY WEG, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms under the penalties of perjury, as follows: I am associated with the law firm of GALLO VITUCCI KLAR LLP, attorneys for Defendants SAL’S HAULING CORP. and LUIS R. SAGUAY (collectively, “Sal’s Hauling”), and based upon a review of the file maintained by my office, I am fully familiar with all of the prior pleadings and proceedings heretofore had herein. This memorandum of law is submitted in support of the motion for summary judgment by defendants SAL’S HAULING CORP. and LUIS R. SAGUAY. STATEMENT OF FACTS For the sake of judicial economy, the Court is referred to Sal’s Hauling’s accompanying affirmation in support for a statement of facts. POINT I SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where no genuine issue of fact for trial has been presented. It is well settled that a court must grant summary judgment where the movant establishes there are no triable issues of fact. See, Vermette v. Truck Company, 68 N.Y.2d 714, 506 N.Y.S.2d 31 (1986); Fender v. Prescott, 101 A.D.2d 418, 476 N.Y.S.2d 128 (1st Dep’t 1984), aff’d, 64 N.Y.2d 1077, 498 N.Y.S.2d 880 (1985). The Court of Appeals has observed that “it is not the function of the trial court to ferret out speculative issues.” Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974); Farkas v. Cedarhurst Natural Food Shoppe, Inc., 51 A.D.2d 793, 380 N.Y.S.2d 287 (2nd Dep’t 1976), aff’d, 41 N.Y.2d 1041, 396 N.Y.S.2d 165 (1977). On the contrary, when there is no genuine issue to be resolved at trial, as is the case herein, the case should be summarily decided, and an unfounded 3 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 reluctance to employ the remedy will only serve to swell the trial calendar and thus deny to other litigants the right to have their claims properly adjudicated. See Andre, 35 N.Y.2d 361 at 364. Once the moving party has submitted proof illustrating that there is no genuine issue as to a material fact, any party opposing the motion is required to “lay bare” their proof and come forward with evidence in admissible form that would require a trial of the claimed material questions of fact. See, Ferber v. Sterndent Corp., 51 N.Y.2d 782, 433 N.Y.S.2d 85 (1980). It is well settled that “mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient to defeat a motion for summary judgment.” Bonghi v. First Cent Shopping Center Inc., 116 A.D.2d 502, 497 N.Y.S.2d 373 (1st Dep’t 1986). Further, mere speculation is similarly insufficient to create an issue of fact on which to defeat a motion for summary judgment. POINT II THE SAL’S HAULING DEFENDANTS ARE NOT PROPER LABOR LAW DEFENDANTS SINCE THEY WERE NEITHER OWNER NOR GENERAL CONTRACTOR AND HAD NO SUPERVISORY CONTROL OR AUTHORITY OVER PLAINTIFF Plaintiff’s labor law causes of action should be dismissed against the Sal’s Hauling defendants since they were neither owner nor general contractor and had no supervisory control or authority over plaintiff. Although the Labor Law imposes a nondelegable duty on an owner or general contractor to conform to its requirements, it is well settled that “unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law.” Walls v. Turner Constr., 4 N.Y.3d 861, 864, 798 N.Y.S.2d 351 (2005), citing Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317, 445 N.Y.S.2d 127 (1981) and Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 N.Y.3d 280, 293 (2003). 4 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 Only upon obtaining the authority to supervise and control does the third party fall within the class of those having nondelegable liability as an agent, and “to hold otherwise and impose a nondelegable duty upon each contractor for all injuries occurring on a job site and thereby make each contractor an insurer for all workers regardless of the ability to direct, supervise and control those workers would lead to improbable and unjust results.” Russin v. Louis N. Picciano & Son, supra. In Murphy v. Herbert Const. Co., Inc., 297 A.D.2d 503, 747 N.Y.S.2d 439 (1st Dep’t 2002), the First Department reversed the Supreme Court and dismissed the causes of action against defendant subcontractor under Labor Law §§ 240(1) and § 241 (6) since plaintiff failed to demonstrate that the subcontractor had the authority to direct, supervise and control the work giving rise to the injury. See also, Stevenson v. Alfredo, 277 A.D.2d 218, 715 N.Y.S.2d 444 (2d Dep’t 2000)(granting subcontractor summary judgment under Labor Law §240 and 241 since “[t]here is no evidence in the record tending to show that the defendant Scott Terpening possessed any authority to supervise and control the plaintiff’s work or work area”); Mathews v. Bank of America, 107 A.D.3d 495, 968 N.Y.S.2d 15 (1st Dep’t 2013)(granting summary judgment to subcontractor who was not considered a statutory agent for purposes of imposing liability under Labor Law §240(1) since “[t]here is no evidence that it had the authority to supervise, direct or control the air testing and monitoring work that plaintiff . . . was performing at the time of her injury.”) Likewise, in Comes v. New York State Elec. and Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168 (1993), the Court of Appeals dismissed the cause of action against defendant under Labor Law §200 upon the ground that defendant did not have “the authority to control the activity bringing about the injury.” 5 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 Notably, in Buestan v. EAN Holdings, LLC, 54 Misc. 3d 1224(a), 55 N.Y.S.3d 691 (Sup. Ct., Queens Co 2017), the Supreme Court concluded that defendant Sal’s Hauling Corp, the same defendant herein, which was retained to haul garbage and debris from the subject location on an as-needed basis, was not considered a statutory agent of the owner or general contractor and therefore an improper labor law defendant. Here, it is undisputed that defendants Sal’s Hauling Corp. and Luis R. Saguay were neither the owner, general contractor, nor statutory agent at the subject jobsite. It is undisputed that defendant Sal’s Hauling Corp. was retained merely to haul garbage and debris from the subject location on an as-needed basis pursuant to a verbal agreement with Waldorf/W5/Calvin Maintenance (Exhibit H, at 13, 19). Additionally, it is undisputed that Sal’s Hauling did not have any authority to supervise, direct or control plaintiff’s work at the site. Indeed, plaintiff admitted during his testimony that he was supervised, directed and controlled only by Calvin Maintenance and Tishman at the job site (Exhibit C, at 51-52, 61). Accordingly, defendants Sal’s Hauling Corp. and Luis R. Saguay are not proper labor law defendants and plaintiff’s labor law causes of action should be dismissed in their entirety. POINT III ALTERNATIVELY, PLAINTIFF’S CLAIMS PURSUANT TO LABOR LAW § 240 MUST BE DISMISSED Labor Law §240(1) sets forth, in pertinent part: All contractors and owners and their agents…in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure shall furnish or erect…for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices…as to give proper protection to a person so employed. 6 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 As the Court of Appeals explained in Narducci v. Manhasset Bay Associates, 96 N.Y. 2d, 259, 270 (2001), “not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 241. Although Labor Law §240(1) provides for strict liability against those who violate the statute, the plaintiff must nevertheless prove that the violation was the proximate cause of his injuries. See, Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280 (1st Dep’t 2003). It is well settled within New York law that, for a plaintiff to sustain a claim pursuant to Labor Law § 240(1), the accident must be caused by, or arise from, a gravity-related, height- related, or elevation-related risk. Here, plaintiff alleges that he sustained personal injuries when Sal’s Hauling’s truck bumped into a yodock while the truck was reversing, and that the yodock was then pushed into plaintiff. There was undisputedly no fall from a height, and there was no falling object. As such, there was no gravity-related, height-related, elevation-related risk in any way related to plaintiff’s alleged accidents. As such, plaintiff should not be afforded the protections of Labor Law § 240, and his claim should be dismissed as a matter of law. POINT IV ALTERNATIVELY, PLAINTIFF’S CAUSE OF ACTION PURSUANT TO LABOR LAW 241(6) MUST BE DISMISSED BECAUSE THE ALLEGED VIOLATIONS ARE IRRELEVANT, INAPPLICABLE, AND PATENTLY IMPROPER Labor Law § 241(6) requires owners and contractors to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor.” See Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY 2d 494, 502 (1993). 7 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 It is well-settled that to sustain a claim under Labor Law § 241(6), a plaintiff must allege that a defendant violated an applicable section of the New York Industrial Code and that such violation was a proximate cause of the alleged accident. See, Ross v. Curtis-Palmer Hydro-Elec. Co., supra. Here, assuming arguendo that the labor law is somehow even applicable to the Sal’s Hauling Defendants, which is not conceded herein, plaintiff’s alleged violations of the Industrial Code, NYC Department of Transportation Highway Rules, Federal Manual on Uniform Traffic Control Devices for Street and Highway Regulations 2-02(h) and Part/Section/Chapter 6, New York State Department of Transportation Traffic Engineering and Highway Safety Division Work Zone Traffic Control, OSHA regulations, are each irrelevant, inapplicable, and/or patently improper, and do not support plaintiff’s Labor Law 241(6) cause of action. A. Alleged Industrial Code Violations As to plaintiff’s alleged industrial code violations, not only are the provisions referenced by plaintiff irrelevant to the alleged facts at issue herein, but they also undeniably do not apply to the Sal’s Hauling defendants, who were neither the owner nor general contractor/construction manager at the job site. Specifically, plaintiff alleges causes of action under the following industrial code sections: 23-1.18(c)(1-3)- barricades 23-1.29(a-b)- public vehicular traffic, 23-1.33(a)(1-3)- protection of people passing by, 23-1.33(c)(1-8)- vehicular protection, 23-1.33(d)(1-2)- maintenance, 23-4.2(k)- trench and area excavations, 23-6.3(d)(1-2)- material platform and bucket hoists, 23-1.7(b)- falling hazards, 23-9.2(b)(1)- power operated machinery, 23-9.5(g)- backing, 23-9.7(d)- motor trucks. 8 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 Industrial Code §23-1.18(c)(1-3) Industrial Code §23-1.18(c)(1-3) – barricades- are not applicable since plaintiff’s alleged accident did not occur as a result of demolition, and those provisions “by their express terms, apply only to demolition.” Turgeon v. Vassar College, 172 A.D.3d 1134, 100 N.Y.S. 3d 374 (2d Dep’t 2019). Alternatively, those provisions are not applicable to the Sal’s Hauling defendants since they were neither the owner nor general contractor/construction manager and were not responsible for the construction of barricades at the job site. The aforesaid provisions relate to the construction of barricade fences not less than six feet in height along the sidewalk or pedestrian thoroughfare, or safety railing to the extent the building to be constructed is not more than 25 feet above ground, to prevent unauthorized persons from entering the job site. Nor are those provisions applicable to the alleged facts. Industrial Code §23-1.29(a-b) Industrial Code §23-1.29(a-b)- public vehicular traffic- are not applicable to the Sal’s Hauling defendants since they relate to the assignment of flaggers at construction site, including providing fluorescent red or orange flags or paddles, as well as the stationing of flaggers at a proper and reasonable distance from the work area, to control public vehicular traffic. Here, it is undisputed that plaintiff was assigned by a different entity as the job site flagger and stationed at the loading dock at the time of the subject alleged accident, and in any event, it is further undisputed that the Sal’s Hauling defendants were neither the owner nor general contractor/construction manager and they were not responsible to assign or station such job site flaggers. Nor are these provisions applicable to the alleged facts. 9 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 Industrial Code §23-1.33(a)(1-3) Industrial Code §23-1.33(a)(1-3)- protection of people passing by construction operations- are not applicable to the Sal’s Hauling defendants. First, it is well settled that 12 NYCRR 23-1.33 cannot support a claim under Labor Law 241(6) since “that regulation does not mandate compliance with specifications” and constitutes “a general safety standard.” McMahon v. Durst, 224 A.D.2d 324, 638 N.Y.S. 2d 48 (1st Dep’t 1996). Second, those provisions are not applicable since “12 NYCRR 23-1.33 does not apply to workers on a construction site, such as the plaintiff here.” Leighton v. Chaber, LLC, 204 A.D.3d 903, 164 N.Y.S.3d 849 (2d Dep’t 2022). Third, those provisions are not applicable since plaintiff was not engaged in demolition, and these provisions “by their express terms, apply only to demolition.” Turgeon v. Vassar College, 172 A.D.3d 1134, 100 N.Y.S. 3d 374 (2d Dep’t 2019). Fourth, alternatively, those provisions are not applicable to the Sal’s Hauling defendants since they relate to the construction of protection and safety devices to protect persons passing by the areas in which construction is being performed, including railings, fences, barricades, sheeting and shoring, sidewalk sheds, temporary walkways and temporary roadways. Here, it is undisputed that the Sal’s Hauling defendants were neither the owner nor general contractor/construction manager and were not responsible for the construction of protection and safety devices at the job site. Nor are those provisions applicable to the alleged facts. Industrial Code §23-1.33(c)(1-8) Industrial Code §23-1.33(c)(1-8)- vehicular protection- are not applicable. First, it is well settled that 12 NYCRR 23-1.33 cannot support a claim under Labor Law 241(6) since “that 10 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 regulation does not mandate compliance with specifications” and constitutes only “a general safety standard.” McMahon v. Durst, 224 A.D.2d 324, 638 N.Y.S. 2d 48 (1st Dep’t 1996). Second, those provisions are not applicable since “12 NYCRR 23-1.33 does not apply to workers on a construction site, such as the plaintiff here.” Leighton v. Chaber, LLC, 204 A.D.3d 903, 164 N.Y.S.3d 849 (2d Dep’t 2022). Third, those provisions are not applicable since plaintiff’s alleged accident was not due to demolition, and those provisions “by their express terms, apply only to demolition.” Turgeon v. Vassar College, 172 A.D.3d 1134, 100 N.Y.S. 3d 374 (2d Dep’t 2019). Fourth, alternatively, those provisions are not applicable to the Sal’s Hauling defendants since they relate to the construction of protection and safety devices to protect vehicles passing by the areas in which construction is being performed, including adequate warning signs, flashing lights, flagmen or other means to indicate clearly the paths of vehicular traffic. Here, it is undisputed that the Sal’s Hauling defendants were neither the owner nor general contractor/construction manager and were not responsible for the construction of protection and safety devices or the assignment of flagmen at the job site. Nor are those provisions applicable to the alleged facts. Industrial Code §23-1.33(d)(1-2) Industrial Code §23-1.33(d)(1-2)- maintenance of temporary walkways and roadways- are not applicable. First, it is well settled that 12 NYCRR 23-1.33 cannot support a claim under Labor Law 241(6) since “that regulation does not mandate compliance with specifications” and constitutes “a general safety standard.” McMahon v. Durst, 224 A.D.2d 324, 638 N.Y.S. 2d 48 (1st Dep’t 1996). 11 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 Second, those provisions are not applicable since “12 NYCRR 23-1.33 does not apply to workers on a construction site, such as the plaintiff here.” Leighton v. Chaber, LLC, 204 A.D.3d 903, 164 N.Y.S.3d 849 (2d Dep’t 2022). Third, those provisions are not applicable since plaintiff’s alleged accident was not due to demolition, and those provisions “by their express terms, apply only to demolition.” Turgeon v. Vassar College, 172 A.D.3d 1134, 100 N.Y.S. 3d 374 (2d Dep’t 2019). Fourth, alternatively, those provisions are not applicable to the Sal’s Hauling defendants since they relate to the maintenance of temporary walkways and roadways from obstructions, tripping hazards, snow, sleet, ice and accumulations of water, dirt or dust, and of any other material or objects. Here, it is undisputed that the Sal’s Hauling defendants were neither the owner nor general contractor/construction manager and were not responsible for the maintenance of temporary walkways or roadways at the job site. Nor are those provisions applicable to the alleged facts. Industrial Code §23-4.2(k) Industrial Code §23-4.2(k)- trench and area excavations- is not applicable since, by its express terms, applies only to excavations, and plaintiff’s alleged accident was not due to excavation. Alternatively, those provisions are not applicable to the Sal’s Hauling defendants since they were neither the owner nor general contractor/construction manager and were not tasked with determining whether to permit persons to work in any areas where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment. In any event, this provision is not applicable to the alleged facts. 12 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 Industrial Code §23-6.3(d)(1-2) Industrial Code §23-6.3(d)(1-2)- material platform and bucket hoists - are not applicable to the Sal’s Hauling defendants since they were neither the owner nor general contractor/construction manager and it undisputed that they were not responsible for designing or constructing the entrances to hoist ways at the job site. In any event, these provisions are not applicable to the alleged facts. Industrial Code §23-1.7(b) Industrial Code §23-1.7(b)- falling hazards- is not applicable to the Sal’s Hauling defendants. First, factually, the subject alleged accident did not involve a hazardous opening with a falling hazard at the edge which would necessitate a safety net, safety belt, safety railing, or similar safety device. In any event, it is undisputed that the Sal’s Hauling defendants were neither the owner nor general contractor/construction manager and were not responsible for the construction of safety net, safety belt, safety railing, or similar safety device at the job site. Industrial Code §23-9.2(b)(1) Industrial Code §23-9.2(b)(1)- power-operated machinery- is not applicable. First, it is well-settled that “the provision is merely a general safety standard that does not give rise to a nondelegable duty under the statute.” Gonzalez v. Perkan Concrete Corp., 110 A.D.3d 955, 975 N.Y.S.2d 65 (2d Dep’t 2013). Alternatively, the aforesaid provision is not applicable since, by its express terms, it applies only to power-operated machinery. 13 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 Further, the Sal’s Hauling defendants were neither the owner nor general contractor/construction manager and were not responsible to designate the operators of power- operated equipment operators at the job site. Industrial Code §23-9.5(g) Industrial Code §23-9.5(g)- backing- is not applicable since, by its express terms, applies only to excavating machines, and plaintiff’s alleged accident undisputedly did not result from an excavation machine. In any event, this provision requires that “[e]very mobile power-operated excavating machine except for crawler mounted equipment shall be provided with an approved warning device so installed as to automatically sound a warning signal when such machine is backing,” and it is undisputed that defendant Sal’s Hauling’s garbage hauler had an operational audible reverse warning signal that plaintiff admittedly heard at the time of the alleged accident. Industrial Code §23-9.7(d) Industrial Code §23-9.7(d)- motor trucks- is not applicable to the Sal’s Hauling defendants since they were neither the owner nor general contractor/construction manager and were not responsible to designate locations at the job site where trucks would back in or where flaggers were stationed. In any event, this provision is also factually inapplicable. This provision provides that “[t]rucks shall not be backed or dumped in places where persons are working nor backed into hazardous locations unless guided by a person so stationed that he sees the truck drivers and the spaces in back of the vehicles.” Here, it is undisputed that the Sal’s Hauling defendants were not backing the truck into an area where persons were working, and that plaintiff was the flagger 14 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 stationed at the subject loading dock who was admittedly aware that defendant Sal’s Hauling’s garbage hauler was backing in at the time of the alleged accident. B. Alleged OSHA Violations Plaintiff alleges violations of OSHA regulations 29 CFR 923.20(b)(2), 29 CFR 1926.21(b)(2), 29 CFR1926.201(a), and 29 CFR 1926.601(b)(4)(ii). However, it is well settled that alleged violations of OSHA standards do not provide a basis for liability under Labor Law § 241(6) and are not applicable. See, Marl v. Liro Engineers, Inc., 159 A.D.3d 688, 689, 73 N.Y.S.3d 202, 204 (2d Dep't 2018); Shaw v. RPA Assocs., LLC, 75 A.D.3d 634, 636–37, 906 N.Y.S.2d 574, 577 (2d Dep't 2010); Rizzuto v. L.A. Wenger Contracting Co., 91 N.Y.2d 343, 349, 693 N.E.2d 1068, 1071 (1998). C. Miscellaneous Generalized Violations Lastly, plaintiff alleges entirely generalized violations of the NYC Department of Transportation Highway Rules, Federal Manual on Uniform Traffic Control Devices for Street and Highway Regulations 2-02(h) and Part/Section/Chapter 6, New York State Department of Transportation Traffic Engineering and Highway Safety Division Work Zone Traffic Control. While none of the aforesaid allegations are applicable in fact or law, they are also entirely generalized and cannot support any cause of action under Labor Law 241(6) or otherwise. Accordingly, plaintiff’s cause of action under Labor Law §241(6) must be dismissed in its entirety. POINT V ALTERNATIVELY, PLAINTIFF’S CAUSES OF ACTION PURSUANT TO LABOR LAW 200 AND COMMON LAW NEGLIGENCE MUST BE DISMISSED Labor Law 200 is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site. Rizzuto v. L.A. Wenger Contr. Co., 91 15 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 N.Y.2d 343 (N.Y. 1998); Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993); Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 (1993). As to the “means and methods of work” category, a plaintiff’s recovery under the theories of common law negligence and Labor Law 200 “for breach of the common law duty of care could be had only if the injured employee could demonstrate that the named defendant had a direct hand, through either control or supervision, in the injury-producing work.” Ross v. Curtis-Palmer Hydro- Electric Co., supra; Comes v. N.Y.S. Electric & Gas Corp., supra; Mocarska v. 200 Madison Assoc., 262 A.D.2d 163, 692 N.Y.S.2d 58 (1st Dep’t 1999) (no liability imposed pursuant to Labor Law § 200 upon renovating subcontractor that neither directed or supervised plaintiff’s asbestos abatement activities); Vieira v. Tishman Constr. Corp., 255 A.D.2d 235, 679 N.Y.S.2d 618 (1st Dep’t 1998) (no liability imposed pursuant to Labor Law § 200 upon flooring contractor that did not supervise or control plaintiff’s work at the time of the incident); Bratton v. J.L.G. Indus., Inc., 247 A.D.2d 571, 669 N.Y.S.2d 53 (2d Dep’t 1998) (where neither general contractor nor owner directed or controlled plaintiff’s work activity, plaintiff’s Labor Law §200 claim was dismissed); Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55 (1992) (holding that where alleged defect or dangerous condition arises from contractors’ methods and owner exercises no supervisory control over operation, no liability attaches to owner under common law or under § 200 of the Labor Law). In Monterroza v. State Univ. Const. Fund, 56 A.D.3d 629, 630–31, 869 N.Y.S.2d 113, 115–16 (2d Dep’t 2008), the Second Department explained that “[t]o be held liable under Labor Law § 200 and for common-law negligence arising from the manner in which work is performed at a work site, a general contractor or owner must have ‘authority to supervise or control the performance of the work.’” Citing, Ortega v. Puccia, 57 A.D.3d 54, 866 N.Y.S.2d 323 (2d Dep’t 2008); Chowdhury v. Rodriguez, 57 A.D.3d 121, 867 N.Y.S.2d 123(2d Dep’t 2008). 16 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 In Ortega v. Puccia, supra, the Second Department explained that “when the manner of work is at issue, ‘no liability will attach to the owner solely because [he or she] may have had notice of the allegedly unsafe manner in which work was performed’ . . . Rather, when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law §200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work.” (citations omitted). If, on the other hand, the alleged accident was caused by a defect considered part of the overall condition of the premises, then the focus should not be on supervision and control over the manner of the work, but rather, on whether the defendants created the alleged defect or had actual or constructive notice of the alleged dangerous or defective condition. Chowdhury v. Rodriguez, 57 A.D.3d 121, 867 N.Y.S.2d 123(2d Dep’t 2008); see also, Nevins v. Essex Owners Corp., 276 A.D.2d 315, 714 N.Y.S.2d 38 (1st Dep’t 2000); Haghighi v. Bailer, 240 A.D.2d 368, 657 N.Y.S.2d 774 (2d Dep’t 1997). A "general awareness" that a dangerous condition may be present in the area is not legally sufficient to charge a party with notice of a dangerous condition which allegedly injured the plaintiff. See, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646 (1986); see also, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493 (1994). Here, assuming arguendo that the labor law is somehow even applicable to the Sal’s Hauling Defendants, which is certainly not conceded, the alleged accident did not occur because of means and methods of work or because of any allegedly dangerous or defective condition created by them. Nor was there any notice to Sal’s Hauling defendants. 17 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 First, assuming arguendo that the alleged accident is deemed to have been caused by “means and methods of work,” then the evidence undisputedly demonstrates that the Sal’s Hauling defendants did not have any authority to supervise, direct or control plaintiff’s work at the site. Instead, plaintiff testified that he reported only to non-party Calvin Maintenance and co-defendant Tishman at the job site, each of whom provided him with direction and supervision (Exhibit C, Pl’s Transcript from August 16, 2022, at 51-52, 61). Alternatively, assuming arguendo that the alleged accident is deemed to have been caused by “a dangerous or defective condition on the premises,” which is not conceded herein, then as set forth in greater detail below, the evidence undisputedly demonstrates that the Sal’s Hauling defendants cannot be liable for plaintiff’s alleged accident since (1) they merely furnished the condition or occasion for the occurrence of the event; and/or (2) plaintiff was allegedly injured by the very circumstances he was assigned to eliminate as flagman. Accordingly, plaintiff’s cause of action under Labor Law §200 and common law negligence must be dismissed in its entirety. POINT VI PLAINTIFF’S LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION MUST BE DISMISSED SINCE THE SAL’S HAULING DEFENDANTS MERELY FURNISHED THE CONDITION OR OCCASION FOR THE OCCURRENCE OF THE EVENT WHICH IS NOT SUFFICIENT TO IMPOSE LIABILITY UPON A PARTY Plaintiff cannot establish the elements of a negligence claim against the Sal’s Hauling Defendants. Plaintiff seems to base his claims upon the fact that an accident occurred rather than any actual negligence by the Sal’s Hauling defendants. However, the mere occurrence of an accident is insufficient to impose liability upon a party. See generally, Cooke v. Bernstein, 45 A.D.2d. 497, 359 N.Y.S.2d 793 (1st Dept. 1974). 18 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 “Liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes.” See, Ely v. Pierce, 302 A.D.2d 489, 755 N.Y.S.2d 250 (2d Dep’t 2003); accord: Canals v. Tilcon New York, Inc., 135 A.D.3d 683, 23 N.Y.S.3d 320 (2d Dep’t 2016); Liquori v. Brown, 172 A.D.3d 1354, 101 N.Y.S.3d 147 (2019); Riccio v. Kid Fit, Inc., 126 A.D.3d 873 (2d Dep’t 2015). In Canals, supra, plaintiff testified that he was riding his bicycle and noticed that the flagperson, who was employed by Tilcon, the general contractor, was looking north and not looking at the traffic that approached him from behind while waving the traffic to proceed northbound. As plaintiff approached the site, a northbound car startled him by coming close and plaintiff veered his bicycle into a trench. The Second Department affirmed summary judgment in Tilcon’s favor and concluded that “[t]his evidence established, prima facie, that at most, Tilcon furnished the condition for the plaintiff’s accident, and that the proximate cause or causes of the accident were the actions of the plaintiff and/or the operator of the northbound car, and not the alleged negligence of Tilcon’s flagperson” Similarly, in Riccio, supra, plaintiff was burned by a lit sterno cannister, which was attached underneath a food chafing tray, as she carried it from the table to the sink. The Second Department explained that even if the defendants’ employees inadvertently disposed of the caps to the sterno cannisters prior the accident, this merely furnished the occasion for the accident, and the plaintiff’s own negligence was the “sole proximate cause” of her accident and “superseded the defendants’ conduct and terminated the defendants’ liability for her injuries.” Here, plaintiff’s own negligence was the sole proximate cause of the alleged accident, and the Sal’s Hauling defendants cannot be held liable since, at most, they merely furnished the condition or occasion for the occurrence of the event (without conceding same). 19 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 Plaintiff admitted that the reason he was assigned with his partner to work at the subject loading dock as a flagger was to “direct the truck into the bay” (Exhibit C, Pl’s Transcript from August 16, 2022, at 41, 43-44, 49, 61, 70, 72-73; Exhibit D, Plaintiff’s Transcript from September 9, 2022, at 85). Likewise, English testified that the loading dock’s flagger is responsible to ensure that trucks reversing into the loading dock are backing up in line with the ramp (Exhibit F, at 75). This flagger role was particularly important since, as defendant Saguay testified, the yodock barriers could not be seen through the truck mirrors due to the low-lying back end of the garbage hauler truck (Exhibit G, at 68). Moreover, plaintiff was admittedly aware that the subject loading dock was narrow, and he even testified that the tires of trucks reversing into the loading dock on prior occasions “would hang off the loading dock on the ramp, so the truck would tilt towards the street” (Exhibit D, Plaintiff’s Transcript from September 9, 2022, at 11). Plaintiff further admitted that he had personally seen other trucks reverse into the loading dock’s green wooden construction wall on prior occasions (Exhibit C, Pl’s Transcript from August 16, 2022, at 67). Despite knowing that the loading dock was narrow and that there have even been prior incidents of trucks making contact with barriers situated there, plaintiff testified that he was standing immediately next to the subject yodock barrier without any spacing in between – even though he admittedly knew it was neither anchored to the street nor weighed down with sand or water (Exhibit C, Pl’s Transcript from August 16, 2022, at 89, 95, 107-108; Plaintiff’s Transcript from September 9, 2022, Exhibit D, at 11-12). Further, plaintiff testified that he was admittedly aware that defendant Sal’s Hauling’s truck was reversing into the subject loading dock with an audible beeping noise at the time of the accident, and plaintiff even watched as the truck began reversing towards the yodocks (Exhibit C, 20 FILED: QUEENS COUNTY CLERK 04/16/2024 03:08 PM INDEX NO. 700546/2020 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/16/2024 Pl’s Transcript from August 16, 2022, at 93-94, 99; Exhibit D, Plaintiff’s Transcript from September 9, 2022, at 86). Defendant Saguay was reversing the truck at a speed of “5 miles per hour or less” (Exhibit G, at 46) Nevertheless, rather than signaling to the Sal’s Hauling truck driver that the Sal’s Hauling truck was slowly reversing towards the yodocks, which was his flagger responsibility at the loading dock, or even simply moving away from the yodock, plaintiff was instead distracting himself by talking on his cell phone in clear violation of job site safety rules and was thereafter involved in the subject alleged accident (Exhibit C, Pl’s Transcript from August 16, 2022, at 72-73, 82, 86, 99, 101; Exhibit F, at 61, 69, 75). In fact, Di Capua testified that workers, including flag persons, were not permitted to utilize their cell phone while performing their role at the job site, without any exceptions, and it did not matter to whom the worker was speaking on the cell phone, because it served as a distraction (Exhibit I, at 47-48). Similarly, English testified that flaggers are not permitted to use their cell phone while at the loading dock due to safety and distraction concerns, which also results in discipline (Exhibit F, at 69, 81-8