Justin Nazario, Respondent,v.222 Broadway, LLC, et al., Respondents.---------------------------------222 Broadway, LLC, et al., Third-Party Respondents, v. Knight Electrical Services Corp., Third-Party Appellant. (And Other Third-Party Actions.)BriefN.Y.November 15, 2016New York County Clerk’s Index No. 105608/11 New York Supreme Court APPELLATE DIVISION FIRST DEPARTMENT JUSTIN NAZARIO, Plaintiff-Appellant-Respondent, against 222 BROADWAY, LLC and JONES LANG LASALLE AMERICAS, INC. and LIME ENERGY CO., Defendants-Respondents. 222 BROADWAY, LLC and JONES LANG LASALLE AMERICAS, INC., Third-Party Plaintiffs-Respondents, against KNIGHT ELECTRICAL SERVICES CORP., Third-Party Defendant-Respondent-Appellant. (Additional Caption on the Reverse) >> >> To Be Argued By: D. Carl Lustig, III REPLY BRIEF FOR PLAINTIFF-APPELLANT-RESPONDENT JUSTIN NAZARIO ARYE, LUSTIG & SASSOWER, P.C. Attorneys for Plaintiff-Appellant- Respondent Justin Nazario 20 Vesey Street, 10th Floor New York, New York 10007 212-732-4992 lustig@als-lawyers.comOf Counsel: D. Carl Lustig, III Printed on Recycled Paper JONES LANG LASALLE AMERICAS, INC., Second Third-Party Plaintiff, against KNIGHT ELECTRICAL SERVICES CORP., Second Third-Party Defendant. 222 BROADWAY, LLC, Third Third-Party Plaintiff, against KNIGHT ELECTRICAL SERVICES CORP., Third Third-Party Defendant. i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii POINT PERFORMING A COMPREHENSIVE LIGHTING RENOVATION AND UPGRADE PROJECT THROUGHOUT VIRTUALLY THE ENTIRE OFFICE BUILDING, WHICH INVOLVED DEMOLITION OF EXISTING LIGHT FIXTURES CLEARLY EXCEEDS “ROUTINE MAINTENANCE” AND PLAINLY CONSTITUTES A SIGNIFICANT ALTERATION WELL WITHIN THE AMBIT OF LABOR LAW §240(1) PROTECTION. ............................................................................................ 1 POINT II THE WORK THAT THE PLAINTIFF WAS ENGAGED IN QUALIFIES FOR PROTECTION UNDER LABOR LAW §241(6) ......................................................................................................... 7 POINT III THE UNCONTROVERTED AND UNREBUTTED EVIDENCE PRESENTED IN THE RECORD UNEQUIVOCALLY ESTABLISHES THAT PLAINTIFF FELL FROM THE LADDER AFTER RECEIVING AN ELECTRICAL SHOCK, THUS ELIMINATING ANY QUESTION OF FACT ON THE CORE LIABILITY ISSUES ............................................. 8 CONCLUSION ........................................................................................................ 14 PRINTING SPECIFICATIONS STATEMENT ..................................................... 16 ii TABLE OF AUTHORITIES Page Cases Aarons v. 401 Hotel, L.P., 12 A.D. 3d 293 (1st Dept., 2004) ................................... 5 Abbatiello v. Lancaster Studio Assoc., 3 N.Y. 3d 46 (2004) .................................... 2 Anderson v. Schwartz, 24 A.D. 3d 234 (1st Dept., 2005) ......................................... 7 Arce v. 1133 Bldg. Corp., 257 A.D. 2d 515 (1999) ................................................ 12 Blanco v. NBC Trust No. 1996A, 122 A.D. 3d 409 (1st Dept., 2014)...................... 2 Casabianca v. Port Auth. of N.Y. & N.J., 237 A.D. 2d 112 (1st Dept., 1997) .................................................................................................. 5 Del Rosario v. United Nations Fed. Credit Union, 104 A.D. 3d 515 (1st Dept., 2013) ................................................................................................ 13 Deoki v. Abner Props. Co., 48 A.D. 3d 510 (2nd Dept., 2008) ................................ 3 Esposito v. New York City Indust. Dev. Agency, 1 N.Y. 3d 526 (2003) .............................................................................................................. 2, 3 Fox v. H&M Hennes & Mauritz, L.P., 83 A.D. 3d 889 (2nd Dept., 2011) ............................................................................................ 6, 7 Harris v. Arnell Constr. Corp., 47 A.D. 3d 768 (2nd Dept., 2008) ......................... 13 Heer v. North Moore St. Devs., LLC, 61 A.D. 3d 617 (1st Dept., 2009) ................................................................................................ 12 Joblon v. Solow, 91 N.Y. 2d 457 (1998) ............................................................... 2, 7 Konaz v. St. John’s Preparatory School, 105 A.D. 3d 912 (2nd Dept., 2013) ............................................................................................ 5, 6 Lodato v. Greyhawk N.Am., LLC, 39 A.D.3d at 491 (1st Dept., 2007) ................. 13 iii Lopez v. New York City Dept.of Envtl. Protection,123 A.D. 3d 982 (1st Dept., 2014) ................................................................................................ 13 Medina v. City of New York, 87 A.D. 3d 907 (1st Dept., 2011) .............................. 8 Mennis v. Commet 380 Inc., 54 A.D. 3d 641 (1st Dept., 2008) ............................... 1 Monaghan v. 540 Investment Land Co. LLC, 66 A.D. 3d 605 (1st Dept., 2009) .......................................................................................... 2, 3, 6 Nagel v. D&R Realty Corp., 99 N.Y. 2d 98 (2002) .................................................. 7 Panek v. County of Albany, 99 N.Y. 2d 452 (2003) ................................................. 1 Paraguire v. 27th St. Holding, LLC, 91 A.D. 3d 594 (1st Dept., 2010) .................... 5 Parente v. 277 Park Ave. LLC, 63 A.D. 3d 613 (1st Dept., 2009) ........................ 2, 5 People v. Johnson, 1 N.Y. 3d 202 (2003) ................................................................ 12 Picaro v. New York Convention Ctr. Dev. Corp., 97 A.D. 3d 511 (1st Dept., 2012) .............................................................................................. 2, 5 Prats v. Port Auth. of N.Y. & N.J., 100 N.Y. 2d 878 (2003) ................................ 1, 6 Quackenbush v. Gar-Ben Assoc., 2 A.D. 3d 824 (2nd Dept., 2003) ....................... 11 Ritzer v. 6 East 43rd Street Corp., 57 A.D. 3d 412 (1st Dept., 2008) ..................... 12 Samuel v. Simone Dev. Co., 13 A.D. 3d 112 (1st Dept., 2004) ................................ 5 Sanatass v. Consolidated Inv. Co., Inc., 10 N.Y. 3d 333 (2008) ........................... 1, 2 Vukovich v.1345 Fee LLC, 61 A.D. 3d 533 (1st Dept., 2009) ............................... 11 Weininger v. Hagedorn & Co., 91 N.Y. 2d 958 (1998) ............................................ 2 Statutes Labor Law §240 ................................................................................................... 5, 14 iv Labor Law §240(1) ...........................................................................................passim Labor Law §241(6) ...........................................................................................passim Regulations 12 NYCRR §1.13(b)(4)............................................................................................ 14 12 NYCRR §1.13(b)(5)............................................................................................ 14 12 NYCRR §23-1.13(b)(3) ...................................................................................... 13 12 NYCRR § 23-1.3(b)(4) ................................................................................. 11, 13 12 NYCRR § 23-1.3(b)(5) ....................................................................................... 11 12 NYCRR §23-1.4(b)(16) ........................................................................................ 8 1 POINT I PERFORMING A COMPREHENSIVE LIGHTING RENOVATION AND UPGRADE PROJECT THROUGHOUT VIRTUALLY THE ENTIRE OFFICE BUILDING, WHICH INVOLVED DEMOLITION OF EXISTING LIGHT FIXTURES CLEARLY EXCEEDS “ROUTINE MAINTENANCE” AND PLAINLY CONSTITUTES A SIGNIFICANT ALTERATION WELL WITHIN THE AMBIT OF LABOR LAW §240(1) PROTECTION. The sole basis for Knight’s opposition to plaintiff’s motion for summary judgment under Labor Law§240(1) is the claim that plaintiff’s work constitutes “ordinary maintenance” and therefore does not qualify for protection under the statute [Knight brief]. That argument was not raised by Knight (or anyone else) at the court below and is, therefore, thus, unpreserved for this appeal. See, Mennis v. Commet 380 Inc., 54 A.D. 3d 641 (1st Dept., 2008). To the extent that this court may determine to address this issue on the merits, the record clearly demonstrates that plaintiff was injured while working on a building-wide lighting renovation project, which involved removal of all of the existing lighting fixtures (which constitutes “demolition” under the law) and the replacement with new, upgraded lighting fixtures (which constitutes “alteration” under the law). It is well settled that for an alteration to come within the protection of Labor Law §240(1) requires a “significant” physical change to a building or structure. Sanatass v. Consolidated Inv. Co., Inc., 10 N.Y. 3d 333 at 337 (2008); Prats v. Port Auth. of N.Y. & N.J., 100 N.Y. 2d 878 at 882 (2003); Panek v. County of Albany, 99 1 Knight’s employee in charge of this project, Romulo De Leon, recalled that Knight was retrofitting “almost the entire building, twenty or thirty floors” [R. 606 - 607]. 2 N.Y. 2d 452 at 457-458 (2003); Joblon v. Solow, 91 N.Y. 2d 457 at 465 (1998). On the other hand, work which involves routine activities, such as maintenance and decorative modifications, does not qualify for Labor Law §240(1) protection. Sanatass v. Consolidated Inv. Co., Inc., supra; Abbatiello v. Lancaster Studio Assoc., 3 N.Y. 3d 46 at 53 (2004); Weininger v. Hagedorn & Co., 91 N.Y. 2d 958 at 960 (1998). One of the essential elements that renders that work is simply routine maintenance is that it involves repair or replacement necessitated by normal wear and tear. See, Abbatiello v. Lancaster Studio Assoc., supra; Esposito v. New York City Indust. Dev. Agency, 1 N.Y. 3d 526 at 528 (2003); Picaro v. New York Convention Ctr. Dev. Corp., 97 A.D. 3d 511 at 512 (1st Dept., 2012); Monaghan v. 540 Investment Land Co. LLC, 66 A.D. 3d 605 (1st Dept., 2009); Parente v. 277 Park Ave. LLC, 63 A.D. 3d 613 at 614 (1st Dept., 2009). In sharp contrast, the work being performed in this case was a building-wide upgrade of existing fixtures to increase energy efficiency.1 The project, which according to Lime’s project manager, Joseph Potyak, started in September 2010 with a completion date of December 21, 2010 [R. 522, 530], involved removal of older generation fluorescent fixtures with replacement by new long-life, mercury lamps and ballasts [Lime proposal, R. 904]. Thus, Knight’s contention that the project was in the nature of routine maintenance is belied by the fact that it was not a repair or replacement necessitated by normal wear and tear, but rather a four-month undertaking for a comprehensive lighting upgrade. See, Blanco 3 v. NBC Trust No. 1996A, 122 A.D. 3d 409 at 410 (1st Dept., 2014) [Replacing ballasts on 25 light fixtures performed in the context of a larger renovation project and did not constitute routine maintenance]. c.f. See, Esposito v. New York City Indus. Dev. Agency, supra; Deoki v. Abner Props. Co., 48 A.D. 3d 510 (2nd Dept., 2008). Knight’s counsel erroneously conflates the totally separate roles Knight had at the building [Knight brief, p.53]. It is, indeed, correct that Knight was the house electrician for 222 Broadway responsible for replacing lights and ballasts on an as- needed basis [Jones Lang/Knight Service Contract, R. 820, 859]. However, Knight was hired by an entirely separate subcontract with the lighting general contractor, Lime, to perform the lighting upgrade project, which conspicuously does not include any repair or replacement work due to normal wear and tear [Lime/Knight contract, R. 978 - 985]. Thus, while the routine maintenance of the light fixtures was the responsibility of Knight under its house electrician service contract with Jones Lang, the lighting alteration project, which plaintiff was working on, was a completely separate, distinct and well-defined responsibility delegated to Knight by Lime. Manifestly, if the lighting project were mere routine maintenance there would be no need to enter into an entirely separate contract with Knight for that work. An additional point of distinction between the case at bar and mere routine maintenance is that routine maintenance results in a restoration of the status quo ante. See, e.g. Monaghan v. 540 Inv. Land Co. LLC, 66 A.D. 3d 605 (1st Dept., 2009) [Plaintiff fell while replacing a burned out ballast to restore operation of a fluorescent 2 While Knight counsel quotes Mr. Robert Bicocchi, Jones Lang’s Property Manager, it conveniently omitted that he described the fixture removal work done on the project as “the demo portion” [R. 447-448]. 4 lighting fixture held routine maintenance]. The work involved here effectuated a significant, affirmative change in the structure. As per the lighting upgrade proposal, this project was projected to reduce building energy consumption by approximately 552,773 kilowatts/hours per year, a dollar savings of $89,770 per year in electrical costs, avoid maintenance cost on all new lamps and ballasts and result in additional utility and tax incentives together with a potential rebate from Con Edison of $82,867 [R. 974]. The estimated cost of the project was $400,947.05 [R. 976]. Knight had twelve to fifteen workers on the job on the day of plaintiff’s fall [R. 627] and approximately 800 lights/lamps and 165 ballasts to replace [R. 923-933]. To even suggest that plaintiff’s work was “routine maintenance” is, in the context of the entire project, simply ludicrous. Turning to the actual tasks plaintiff was performing at the time of his fall, it is clear that he was performing far more than routine maintenance. Plaintiff first had to do a “demo” process which involved “gutting out” the light fixtures, removing the grill, the bulbs, the pan (the metal insulation between the bulb and the ballast and wiring), the ballast, the sockets, “pretty much everything in the fixture” except the external housing [R. 243, 244, 259-260].2 He was in the process of attempting to lengthen feed wires coming out of the BX power cable in the ceiling so there was enough wire for connection with the new ballasts [R. 265, 266-268, 295]. 5 Knight, in attempting to minimize the work plaintiff and his co-workers were performing on this project to avoid Labor Law §240 protection, ignores case law that clearly brings this case within the statute. Work of a lesser or equivalent nature has consistently been held to bring plaintiff’s work within the statutory ambit. See, Paraguire v. 27th St. Holding, LLC, 91 A.D. 3d 594 at 595 (1st Dept., 2010) [Removing six foot long dust filters from an elevated structure and transporting them to the ground was activity that encompassed an ever present elevated-related risk requiring Labor Law §240(1) protection. Denial of summary judgment to plaintiff reversed and motion granted]; Parente v. 277 Park Ave. LLC, supra, [Inspection of a malfunctioning booster fan in an office, preparatory to a repair, qualified for summary judgement under Labor Law §240(1)]; Samuel v. Simone Dev. Co., 13 A.D. 3d 112 at 113 (1st Dept., 2004) [Installation of carpeting on walls of a recording studio for sound proofing constitutes a significant alteration under Labor Law §240(1)]; Aarons v. 401 Hotel, L.P., 12 A.D. 3d 293 (1st Dept., 2004) [Light painting, plastering, skim coating and painting entitled to protection under Labor Law §§240(1) and 241(6)]; Casabianca v. Port Auth. of N.Y. & N.J., 237 A.D. 2d 112 (1st Dept., 1997) [Installation of ceiling tiles within protection of Labor Law §240(1)]. Knight’s reliance on Picaro v. New York Convention Ctr. Dev. Corp., supra, is clearly misplaced. In Picaro the plaintiff’s Labor Law §240(1) cause of action was properly dismissed when he, a house electrician, was replacing a light that needed to be replaced on a “regular basis” Id. at 512. Similarly, Knight’s reliance upon Konaz v. St. John’s Preparatory School, 105 A.D. 3d 912 (2nd Dept., 2013) is also misplaced 3 Review of the Record On Appeal in Fox revealed that the light replacement work was neither part of nor incidental to any construction or renovation work. 6 since the plaintiff was replacing a burnt out ballast and, therefore, not entitled to statutory protection. Id. at 913-914; Accord, Monaghan v. 540 Investment Land Co. LLC, supra. For a decision directly on point with the case at bar, the court’s attention is respectfully directed to Fox v. H&M Hennes & Mauritz, L.P., 83 A.D. 3d 889 (2nd Dept., 2011). In Fox plaintiff’s employer, Garrity, was hired to replace ballasts/transformers in seventy-eight overhead light fixtures in a retail store. Garrity supplied seven or eight workers to do the replacements. Plaintiff was in the process of doing that work when he fell from a ladder.3 The court, after observing that “viewed in isolation” plaintiff’s task of replacing the transformer might be considered routine maintenance, it went on to note: “However the issue of whether any particular task falls within Section 240(1) must be determined on a case-by-case basis, depending on the context of the work”. Id. at 890; citing Prats v. Port. Auth. of N.Y. & N.J., supra (emphasis in original). Thus, specifically relying on the amount Garrity was paid annually for its lighting maintenance ($30,000 - $50,000/yr.) and the overall scope of the entire job, the court held that plaintiff’s work was not routine maintenance and granted summary judgment in plaintiff’s favor under Labor Law §240(1). In view of the confluence of factors, including the nature of the work, the size and cost of the project, the manpower utilized, the fact that the work was pursuant to contract and the fact that the work required plaintiff and his co-workers to work at 7 an elevation, this case plainly satisfied the criteria set forth by the court of Appeals in Prats and as applied in Fox for plaintiff to be clearly covered by the protection of Labor Law §240(1). POINT II THE WORK THAT THE PLAINTIFF WAS ENGAGED IN QUALIFIES FOR PROTECTION UNDER LABOR LAW §241(6) As set forth in plaintiff’s main brief [Point III] it is respectfully submitted that the factual predicates for imposing liability under Labor Law §241(6) have been established. Knight, again for the first time, challenges the qualification of the work for such protection. Whether the work plaintiff was involved in is an alteration, a demolition or a combination of both, clearly, based upon the showing in Point I herein, plaintiff has demonstrated that this matter falls within the ambit of Labor Law §241(6). In order to qualify for Labor Law §241(6) protection, the work must have occurred in the context of construction, alteration, demolition or excavation. Nagel v. D&R Realty Corp., 99 N.Y. 2d 98 at 103 (2002); Joblon v. Solow, supra at 466; cf., Anderson v. Schwartz, 24 A.D. 3d 234 (1st Dept., 2005) [Removal of a sign from a building did not change a structure and, therefore, did not rise to the level of a protected alteration]. As demonstrated herein, the lighting project entailed a significant alteration to 222 Broadway in enhancing its energy efficiency, cost savings and the extensive work necessary to accomplish those objectives. 8 Additionally, the lighting project clearly qualifies for Labor Law §241(6) protection as demolition by reason of the “gutting out” the internal components of the light fixtures [R. 243, 244, 259-260]. Demolition is defined as including “work incidental to or associated with the total or partial dismantling...of a structure including the dismantling of machinery or other equipment”. 12 NYCRR §23- 1.4(b)(16). Under this definition the dismantling and removal of the light fixtures constitutes demolition for the purposes of Labor Law §241(6). See, Medina v. City of New York, 87 A.D. 3d 907 (1st Dept., 2011) [Removal of railroad rails in the general context of a subway signal system upgrade, and not because they were worn, constitutes demolition and militates against a finding that plaintiff was engaged in routine maintenance]. Accordingly, whether characterized as an alteration, a demolition, or a combination of both, it is respectfully submitted that the work in which plaintiff was engaged is entitled to protection under Labor Law §241(6). POINT III THE UNCONTROVERTED AND UNREBUTTED EVIDENCE PRESENTED IN THE RECORD UNEQUIVOCALLY ESTABLISHES THAT PLAINTIFF FELL FROM THE LADDER AFTER RECEIVING AN ELECTRICAL SHOCK, THUS ELIMINATING ANY QUESTION OF FACT ON THE CORE LIABILITY ISSUES. Defendants, 222 Broadway and Jones Lang [hereinafter collectively, “The Building”], attempt to conjure questions of fact which, as conclusively demonstrated 4 Parenthetically, it should be noted that neither the defendant, Lime, nor the third-party defendant, Knight, made any argument that there are any questions of fact regarding the occurrence in the court below or on this appeal. 9 by the record, are feigned and plainly contrary to the unrebutted evidence. Moreover, The Building improperly attempts to inject, and thereby blur, irrelevant medical/damages issues in the otherwise starkly clear liability issues. Accordingly, The Building’s arguments should be rejected out-of-hand.4 Contrary to The Building’s assertion, the uncontroverted evidence clearly demonstrates the following: • That plaintiff received an electrical shock while holding onto his ladder with one hand and he and the ladder fell over with the ladder landing on top [R. 265-266, 269-273, 276, 318-319]. • That Knight’s supervisor, Romulo De Leon, testified that he heard a scream and someone saying plaintiff fell, and that he ran over to plaintiff and found him on the floor [R.644, 667]. When he asked plaintiff what happened he was told that he was electrocuted [R.644]. • That Mr. De Leon testified that when plaintiff was electrocuted he fell off the ladder [R. 645]. • That Mr. De Leon’s testimony [R.649-650] regarding his Foreman’s 24 hour Accident Report [R.999] confirmed: 1. That plaintiff was electrocuted with 277 volts of electricity while removing fixtures and ballasts; 2. That plaintiff fell off a ladder; and 3. That plaintiff injured his right hand and back. 10 • That Mr. De Leon’s testimony [R.652-653] regarding the C-2 Accident Report [R. ] he prepared confirmed that: 1. That plaintiff was working on a ladder; 2. That the power was accidently turned on; 3. That plaintiff was hit from 277 volt line which pushed him back; and 4. That the power should not have been on while plaintiff was doing the retrofit. The Building’s counsel completely and inexplicably neglects to mention the eyewitness affidavit of Ariel Vargas [R.733-734] confirming that plaintiff was working on a ladder on a ceiling fixture; that he saw plaintiff fall; that plaintiff immediately told him he had received an electrical shock from wiring in the lighting fixture; that the electrical circuit was not locked out and tagged out as it should have been; and that someone accidently turned on the electricity that caused the shock to the plaintiff. The argument proffered by counsel for The Building to the effect that there is a question of fact on whether plaintiff injured his back in his fall is a red herring and patently contrary to the unrefuted testimonial and documentary evidence. At most, it raises a question of fact for the jury on the nature and extent of the back injury sustained in the accident and whether the fall caused his herniated disc at L4-L5 requiring his subsequent lumbar laminotomy and discectomy, issues relevant only on 11 damages, and invites speculation without any, much less credible, countervailing evidence. As noted above, the witness for the Knight, Romulo De Leon, confirmed plaintiff’s back injury upon arriving at the scene immediately after it occurred [R. 649-650, 999]. The Building’s counsel is clearly inviting this court to conflate a purely medical/damage issue of fact for the jury into a feigned liability issue that is, on the unrefuted evidence proffered, wholly inaccurate and irrelevant to the Labor Law violations at issue. It must be noted that the lower court’s Decision/Order here on Appeal [R.14- 20], specifically found that “the record established that the ladder provided to plaintiff was inadequate to the task of preventing his fall when he came into contact with the exposed wire and was a proximate cause of his injury”, citing Vukovich v.1345 Fee LLC, 61 A.D. 3d 533 (1st Dept., 2009) and Quackenbush v. Gar-Ben Assoc., 2 A.D. 3d 824 (2nd Dept., 2003). Thus, as observed by the motion court, plaintiff has clearly established the factual predicates of a patent violation of Labor Law §240(1). It is further noted that the lower court’s Decision/Order at issue herein quite clearly accepted the uncontroverted fact that plaintiff’s fall was initially precipitated by a shock from an exposed wire [R.14-18] and that the patent violations of Industrial Code Regulations 12 NYCRR § 23-1.3 (b) (4) and (b) (5), which require de- energizing all electrical circuits and securing them from inadvertently being re- energized, unquestionably establish a violation of Labor Law §241(6). 12 It is plain that The Building’s counsel is engaging in rank speculation on both the issues of plaintiff’s alleged culpable conduct and causal connection of his injuries to his fall. This court has flatly rejected such unfounded speculation where, as here, the facts are clear and undisputed. See, Heer v. North Moore St. Devs., LLC, 61 A.D. 3d 617 (1st Dept., 2009). In Herr, an unwitnessed accident, plaintiff’s co-workers rushed to plaintiff’s aid and made exclamations regarding plaintiff’s fall that were deemed admissible as excited utterances. Id. at 618; citing People v. Johnson, 1 N.Y. 3d 202 (2003). Notably, the defendant’s speculation as to how plaintiff might otherwise have been injured failed to raise a material issue of fact. Id. See also, Ritzer v. 6 East 43rd Street Corp., 57 A.D. 3d 412 (1st Dept., 2008) [Speculation without demonstrable proof is insufficient to defeat motion for summary judgment under Labor Law §240(1) and Labor Law §241(6)]; Arce v. 1133 Bldg. Corp., 257 A.D. 2d 515 (1999) [Defendant’s speculation insufficient to deny plaintiff’s motion for summary judgment]. As demonstrated herein, plaintiff was shocked while working on a ladder causing him to fall over with the ladder landing on top of him [R. 269-273]. His co- worker, Ariel Vargas, who was working in the immediate vicinity screamed out to have someone turn off the power [R. 278]. Mr. De Leon, plaintiff’s supervisor, heard the scream that plaintiff had fallen and immediately ran over to him and was told by the plaintiff he was “electrocuted” [R. 644, 699]. Mr. De Leon testified that plaintiff fell off the ladder when he was electrocuted [R. 644-645, 652]. Mr. De Leon’s 13 accident reports prepared for Knight were fully consistent with the foregoing [R. 999, 1001]. Given the failure to raise a triable issue of fact on either plaintiff’s Labor Law §240(1) claim or plaintiff’s Labor Law §241(6), it is clear that the Decision and Order below should be reversed with the complaint reinstated and summary judgment granted to plaintiff on both claims. See, Lopez v. New York City Dept.of Envtl. Protection,123 A.D. 3d 982 at 984-985 (1st Dept., 2014); Harris v. Arnell Constr. Corp., 47 A.D. 3d 768 (2nd Dept., 2008) [Failure to raise triable issue of fact mandates summary judgment in favor of plaintiff under Labor Law §241(6) for violation of 12 NYCRR 23-1.13(b)(3), (4)]; Lodato v. Greyhawk N.Am., LLC, 39 A.D.3d at 491 at 492 (1st Dept., 2007) [Summary judgement under Labor Law §§240(1) and 241(6) properly granted to plaintiff who was shocked and fell of a scaffold where no triable issue of fact raised.];. See also, Del Rosario v. United Nations Fed. Credit Union, 104 A.D. 3d 515 (1st Dept., 2013) [Plaintiff struck in face by live electrical wire causing him to fall off ladder entitled to summary judgment under both Labor Law §240(1) and Labor Law §241(6). Lower court unanimously reversed]. Accordingly, having established clear violations of Labor Law §240(1) and Labor Law §241(6), and without any countervailing proof that raises even a semblance of an issue of fact, it is respectfully submitted that the Order of the court below be reversed in its entirety and that summary judgment be granted to plaintiff. 14 CONCLUSION The defendants had more than ample authority to exercise supervision and control, which was clearly delegated through their respective agreements, and actually exercised by Line’s Project Manager, Joseph Potyak, for imposition of liability under Labor Law §240(1) and Labor Law §241(6). Moreover, 222 Broadway is clearly subject to liability under both statutes as owner of the premises. The uncontroverted failure of plaintiff’s ladder to remain stable and erect, coupled with the failure to supply plaintiff with other fall protection such as a safety belt, constitutes a clear violation of Labor Law §240, as a matter of law requiring reversal of the Decision/Order of the court below and a grant of summary judgment in plaintiff’s favor. The admitted failure to have the lighting circuit de-energized and locked out and tagged out at the time of plaintiff’s accident, as required by Industrial Code Rules 12 NYCRR §1.13(b)(4) and (b)(5), establishes a clear violation of Labor Law §241(6) and, thus, provides another basis for reversing the Decision/Order of the court below and granting summary judgment on liability to plaintiff. The work plaintiff was involved in constituted both an alteration and a demolition so as to bring this matter within the ambit of both Labor Law §240(1) and Labor Law §241(6). 15 For the reasons stated herein above, it is respectfully submitted that the Order of the court below should be reversed in its entirety and that summary judgment under Labor Law §240(1) and Labor Law §241(6) be granted in favor of plaintiff. Respectfully Submitted, ARYE LUSTIG & SASSOWER, P.C. Attorneys for Plaintiff-Respondent Justin Nazario 20 Vesey Street New York, NY 10007 (212) 732-4992 By:________________________________ D. CARL LUSTIG, III 16 PRINTING SPECIFICATIONS STATEMENT Pursuant to 22 NYCRR §600.10, the foregoing brief was prepared on a computer. Type: A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double Word Count: The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, printing specifications statement, or any authorized addendum containing statutes, rules, regulations, etc. is 3,669.