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 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 ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 3 STATEMENT OF FACTS ........................................................................................ 4 Plaintiff Justin Nazario ........................................................................................ 4 Defendants 222 Broadway and Jones Lang by Robert Bicocchi ........................ 9 Defendant Lime - by Joseph Potyak ................................................................ 11 Third-Party Defendant Knight by Romulo DeLeon ......................................... 13 Affidavit of Ariel Vargas .................................................................................. 19 DOCUMENTARY EXHIBITS ........................................................................ 20 POINT I THE LOWER COURT IMPERMISSIBLY, AND IN CONTRAVENTION OF ESTABLISHED CASE LAW, PERMITTED DEFENDANTS TO DELEGATE THEIR NON-DELEGABLE DUTIES UNDER LABOR LAW §240(1) AND LABOR LAW §241(6) .............................. 21 POINT II THE FAILURE OF PLAINTIFF’S LADDER TO REMAIN STABLE AND ERECT, COUPLED WITH THE FAILURE TO PROVIDE PLAINTIFF WITH OTHER SAFETY DEVICES TO PROTECT HIM FROM FALLING CONSTITUTE CLEAR VIOLATIONS OF LABOR LAW §240(1) REQUIRING A GRANT OF SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR ................................................. 31 ii A) Violation of Labor Law §240(1) predicated upon failure of ladder to prevent plaintiff from falling ........................................... 33 B) Violation of Labor Law §240(1) predicated upon failure to provide appropriate safety equipment for fall protection ............................................................................................. 36 POINT III THE PATENT VIOLATION OF INDUSTRIAL CODE RULES 12 NYCRR §§ 23-1.13(b)(4) AND (b)(5) BY FAILING TO DE-ENERGIZE THE LIGHTING CIRCUIT AND LOCKING THE CIRCUIT AND TAGGING IT OUT SO IT COULD NOT BE INADVERTENTLY TURNED ON CONSTITUTES CLEAR VIOLATION OF LABOR LAW §241(6) UPON WHICH SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THE COURT BELOW ...................................................................................................... 39 CONCLUSION ........................................................................................................ 42 PRINTING SPECIFICATIONS STATEMENT ..................................................... 44 iii TABLE OF AUTHORITIES Page Cases Allen v. Cloutier Constr. Corp., 44 N.Y. 2d 290 (1978) ......................................... 24 Arce v. 1133 Bldg. Corp., 257 A.D.2d 515 (1st Dept., 1999) ........................... 37, 38 Arnaud v. 140 Edgecomb LLC, 83 A.D. 3d 507 (1st Dept., 2011) ......................... 33 Bjelicic v. Lynned Realty Corp., 152 A.D. 2d 151 (1st Dept., 1989) ..................... 29 Blair v. Cristiani, 296 A.D.2d 471 (2nd Dept., 2002) ............................................. 39 Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY 3d 280 (2003) .................................................................................... 23, 24 Britez v. Madison Park Owner, LLC, 106 A.D. 3d 531 (1st Dept., 2013) ................................................................................................ 25 Burke v. Hilton Resorts Corp., 85 A.D. 3d 419 (1st Dep. 2011) ............................ 26 Caban v. Maria Estela Houses I Assocs. L.P., 63 A.D.3d 639 (1st Dept. 2009) ................................................................................................. 34 Callan v. Structure Tone, Inc., 52 A.D. 3d 334 (1st Dept., 2008) ..................... 37, 38 Carchipulla v. 6661 Broadway Partners, LLC, 95 A.D.3d 578 (1st Dept. 2012) ................................................................................................. 37 Celestine v. Long Island R.R., 59 N.Y. 2d 938 (1983), aff’ing 86 A.D. 2d 592 ...................................................................................... 24 Clavijo v. Atlas Terminals LLC, 104 A.D.3d 475 (1st Dept., 2013) ................ 38, 42 Cuentas v. Sephora USA, Inc., 102 A.D. 3d 504 (1st Dept., 2013) .................. 33, 37 Del Rosario v. United Nations Fed. Credit Union, 104 A.D.3d 515 (1st Dept., 2013) .......................................................................................... 41, 42 iv Fanning v. Rockefeller Univ., 106 A.D.3d 484 (1st Dept., 2013) ........................... 33 Felker v. Corning, Inc., 90 N.Y.2d 219 (1997) ................................................. 36, 38 Fernandez BBD Dev, LLC, 103 A.D.3d 554 (1st Dept. 2013) ............................... 33 Fernandez v. MHP Land Assocs., 188 A.D.2d 417 (1st Dept., 1992) .................... 35 Garcia v. 1122 E. 180th St. Corp., 250 A.D.2d 550 (1st Dept., 1998) .................... 35 Gordon v. Eastern Railway Supply Inc., 82 NY 2d 555 (1993) .......................passim Goreczny v. 16 Court St. Owner LLC, 110 A.D. 3d 465 (1st Dept. 2013) ................................................................................................. 32 Guillory v. Nautilus Real Estate, Inc., 208 A.D.2d 336 at 338 (1st Dept., 1995), mot. for lv. to app. denied, 86 N.Y.2d 881 (1995) ................................................................................................................ 34 Guillory v. Nautilus Real Estate, Inc., 208 A.D.2d 336 (1st Dept., 1995) .......................................................................................... 34, 35 Haimes v. New York Tel. Co., 46 N.Y. 2d 132 (1978) ........................................... 24 Hanna v. Gellman, 29 A.D. 3d 953 (2nd Dept., 2006) ............................................ 35 Harris v. Arnell Constr. Corp., 47 A.D. 3d 768 (2nd Dept. 2008) .......................... 39 Hernandez v. Ten Ten Co., 31 A.D. 3d 333 (1st Dept. 2006) ................................. 39 Hill v. Stahl, 49 A.D. 3d 438 (1st Dept., 2008) ....................................................... 32 Johnson v. City of New York, 120 A.D. 3d 405 (1st Dept., 2014) ......................... 30 Kane v. Courdorous, 293 A.D. 2d 301 (1st Dept., 2002) ........................................ 23 Lodato vs. Greyhawk North Amer., LLC, 39 A.D.3d 834 (2nd Dept., 2007) .............................................................................................. 40 Long v. Forest-Fehlhaber, 55 N.Y. 2d 154 (1982) .................................................. 22 v Lopez v. Melidis, 31 A.D. 3d 351 (1st Dept., 2006) ............................................... 33 Lorefice vs. Reckson Op. Part., L.P., 269 A.D. 2d 572 (2d Dept., 2000) ................................................................................................ 40 McCarthy v. Turner Constr., Inc., 17 N.Y. 3d 369 (2011) ................................ 22, 30 Nacewicz v. Roman Catholic Church of the Holy Cross, 105 A.D.3d 402 (1st Dept., 2013) ..................................................................... 33 Naughton v. City of New York, 94 A.D. 3d 1 (1st Dept., 2012) ............................. 25 Orellano v. E. 37th St. Realty Corp. [292 A.D.2d 289 (1st Dept. 2002) ........... 35, 37 Ortega v. City of New York, 95 A.D. 3d 125 (1st Dept., 2012) ............................. 38 Panek v. County of Albany, 99 N.Y. 2d 452 (2003) ............................................... 22 Rice v. City of Cortlandt, 262 A.D. 2d 770 (3rd Dept. 1999) ................................. 39 Rizzo v. Hellman Electric, 281 A.D. 2d 258 (1st Dept. 2001) ................................ 22 Rizzuto v. L.A. Wenger Constr. Co., 91 N.Y. 2d 343 (1998) ..................... 22, 38, 39 Robinson v. NAB Constr. Corp., 210 A.D.2d 86 (1st Dept., 1994) ........................ 37 Rocovich v. Consolidated Edison Co.,78 N.Y. 2d 509 (1991) .................... 22, 32, 33 Rodriguez v. Forest City Jay St. Assocs., 234 A.D.2d 68 (1st Dept., 1996) ................................................................................................ 32 Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY 2d 494 (1993) .............. 23, 32, 39 Runner v. New York Stock Exch., Inc., 13 N.Y. 3d 599 (2009) ............................. 33 Russin v. Picciano & Son, 54 N.Y. 2d 311 (1981) ............................................ 25, 30 Sanatass v. Consolidated Inv. Co.,Inc., 10 N.Y. 3d 333 (2008) ............................. 23 Sheridan v. Beaver Tower, Inc., 229 A.D.2d 302 (1st Dept., 1996) mot. for lv. to app. dsmd., 89 N.Y.2d 860 (1996) ............................................ 32 vi Snowden v. New York City Transit Auth., 248 A.D. 2d 235 (1st Dept., 1998) ................................................................................................ 40 Spaulding v. Metropolitan Life Ins. Co., 271 A.D.2d 316 (1st Dept., 2000) .................................................................................... 33, 34, 36 St. Louis v. Town of North Elba, 16 N.Y. 3d 411 (2011) ....................................... 23 Stallone v. Plaza Constr. Corp.,95 A.D.3d 633 (1st Dept. 2012) ............................ 35 Stolt v. General Foods Corp., 81 N.Y.2d 918 (1993) .............................................. 32 Torres v. Monroe College, 12 A.D. 3d 261 (1st Dept., 2004) ................................. 33 Tuccillo v. Bovis Lend Lease, Inc., 101 A.D. 3d 625 (2012)............................ 24, 25 Vanriel v. Weissman Real Estate, 262 A.D.2d 56 (1st Dept., 1999) ....................... 35 Vukovich v. 1345 Fee, LLC, 61 A.D.3d 533 (1st Dept. 2009) ............................... 34 Wasilewski v. Museum of Modern Art, 260 A.D.2d 271 (1st Dept., 1999) ................................................................................................ 36 Waters v. Patent-Scaffold Co., 75 A.D. 2d 744 (1st Dept., 1980) .......................... 29 Weber v. Baccarat, Inc., 70 A.D. 3d 487 (1st Dept., 2010) ............................... 26, 40 Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y. 3d 1 (2011) ............ 32, 34 Yurkovich v. Lvarner Woodworking, Inc. 289 A.D.2d 183 (1st Dept., 2001) ................................................................................................ 33 Zimmer v. Chemung County Perf. Arts, 65 N.Y. 2d 513, rearg. denied, 65 N.Y. 2d 1054 (1985) ....................................................... 22, 32 Statutes Labor Law §§240(1), 241(6) and 200 ...................................................................... 25 Labor Law §200 ............................................................................................. 2, 24, 25 vii Labor Law §240 ................................................................................................. 36, 42 Labor Law §240(1) ...........................................................................................passim Labor Law §241(6) ...........................................................................................passim Regulations 12 NYCRR §1.13(b)(4)................................................................................ 13, 40, 41 12 NYCRR §1.13(b)(4) and (b)(5) .................................................................... 13, 42 12 NYCRR §23-1.13 (b) .......................................................................................... 39 12 NYCRR §23-1.13 (b)(4) ................................................................. 2, 3, 39, 40, 41 12 NYCRR §23-1.13(b)(5) .................................................................. 2, 3, 39, 40, 41 29 CFR 1926.417 ..................................................................................................... 12 NYCRR §1.13(b)(4)................................................................................................. 40 Other Authorities 1969 NY Legis. Ann., at 407 ............................................................................. 22, 32 PRELIMINARY STATEMENT Plaintiff-appellant, Justin Nazario, (“plaintiff”) appeals from the Order of the Honorable Geoffrey D. Wright, J.S.C., dated April 1, 2014 and filed on April 7, 2014, which denied plaintiff’s motion for partial summary judgment on the issue of liability, pursuant to Labor Law §240(1), and Labor Law §241(6), and which granted the motion of the defendants, 222 Broadway, LLC, (“222 Broadway”) and Jones Lang Lasalle America, Inc. (“Jones Lang”) and the cross-motion of Defendant, Lime Energy Co. (“Lime”) for summary judgment against Plaintiff resulting in dismissal of plaintiff’s action in its entirety. The nature and object of the causes of action in this case are as follows: This is an action for personal injuries arising from a work-site accident that occurred on October 30, 2010. Plaintiff, an electrician employed by Knight Electrical Services Corp. (“Knight”), was working on the fourth or fifth step of a wooden, six- foot, A-frame ladder when he received an electrical shock on one hand which caused the plaintiff, who was holding onto the ladder with his other hand, to fall backwards with the ladder, to the floor. Plaintiff’s employer, Knight, was hired by the defendant, Lime, on a renovation/retrofit project to upgrade certain lighting throughout an office building at 222 Broadway, New York, New York. Defendant, Lime, had been hired by the defendant, Jones Lang, to perform the lighting renovation/retrofit project throughout the building, which included removal of existing lighting fixtures and installation of upgraded lighting fixtures. Defendant, Lime, subcontracted to Knight, the entire lighting renovation/retrofit job with Lime having no electricians of its own on this 2 project. Plaintiff was in the process of removing existing light fixtures, pursuant to Lime’s subcontract with Knight, when he receive a shock from an electrical circuit that was not de-energized and fell from the ladder. Causes of action for personal injuries were asserted against 222 Broadway, owner of the premises, Jones Lang, the property manager and Lime, the contractor retained to perform the lighting renovation/retrofit job and to manage and supervise the sub-contractor engaged in the project under Labor Law §240(1), Labor Law §241(6), and Labor Law §200/common law negligence. Plaintiff’s claims under Labor Law §200 and common law negligence were withdrawn before the Court below. It is respectfully submitted that the failure of the subject ladder to remain stable and erect and to prevent plaintiff’s fall, together with the failure to provide plaintiff with proper fall protection, e.g. a safety belt, constitute patent violations of Labor Law §240(1) as a matter of law. It is further respectfully submitted that the failure to de-energize the electrical circuit which caused the shock to the plaintiff, and to secure the circuit from being inadvertently re-energized, violated Industrial Code Regulations 12NYCRR§23- 1.3(b)(4) and (b)(5) which establish an uncontrovertible violation of Labor Law §241(6), thus providing an additional, alternative basis for a grant of summary judgment to plaintiff. 3 QUESTIONS PRESENTED Whether the Court below erred in finding that the obligations under Labor Law §240(1) and Labor Law §241(6) were delegated by defendants to the plaintiff’s employer so as to permit the defendants to escape their non-delegable duty imposed by both statutes? Whether the Court below erred in failing to grant plaintiff’s motion for summary judgment under Labor Law §240(1) where an unsecured ladder failed to remain stable and erect and which fell over causing plaintiff to fall to the floor? Whether the Court below erred in failing to grant plaintiff’s motion for summary judgment under Labor Law §240(1) where defendants failed to provide plaintiff with appropriate safety devices, such as a safety belt, to prevent his fall in the event of the failure of the ladder to remain stable and erect? Whether the Court below erred in failing to grant plaintiff’s motion for summary judgment under Labor Law §241(6) where defendants failed to de-energize the electrical circuit that caused the shock that precipitated plaintiff’s fall, and failed to secure the circuit from accidental re-energization in direct contravention of the specific requirements of Industrial Code Regulations 12NYCRR§23-1.3(b)(4) and (b)(5)? It is respectfully submitted that the above questions should be answered in the affirmative. 1All references to the Record of Appeal are denoted in brackets with the page number(s) proceeded by an “R”. 4 STATEMENT OF FACTS Plaintiff Justin Nazario On October 30, 2010, plaintiff, an apprentice electrician employed by third- party defendant, Knight, was involved in a lighting renovation project which involved dismantling and removing existing lighting fixtures on the floor where he was working [R. 233-234, 236]1. He had been assigned to that job by his supervisor, Romulo DeLeon [R. 235]. There were approximately twelve (12) to fifteen (15) other workers working on the lighting renovation/retrofit job on the floor that day [R. 237]. The lighting retrofitting involved taking out the old lighting components and replacing them with new components [R. 239]. Knight had been working on this project prior to plaintiff’s arrival [R. 240]. Plaintiff’s work involved removal of the lens or grill of the lighting fixtures, then the bulbs, then the ballasts and the sockets... “pretty much everything that was in the fixture except for the...inside housing” [R. 243-244]. The tools he needed to do his work included a rachet set, screw drivers, wire cutters, wire nuts and a ladder which plaintiff believed was provided by the building [R. 245]. He estimated about twelve (12) ladders were brought up consisting of both fiberglass and wooden A- frame ladders, six (6) feet in height [R. 247-248]. Prior to the time of his accident, plaintiff had completed removal of two lighting fixtures that were in the eight (8) to eight and one-half (8-1/2) foot high ceiling [R. 252-253]. He was standing on a wooden A-frame ladder, in the process 5 of dismantling and removing a third lighting fixture, when his accident happened [R. 253]. The feet of the ladder were wooden [R. 254, 318]. Plaintiff was standing on the ladder, approximately three (3) or four (4) steps up [R. 255]. He had already removed the lens cover, light bulbs and ballast cover, and had disconnected the ballast from the BX cable that supplied the electrical power [R. 259-260]. His next task in the removal process was to disconnect the ballast from the fixture housing, as he had done on the previous two fixtures [R. 260]. A ballast is an electrical component that steps down high voltage electricity from the main building power to the lower voltage utilized by fluorescent lighting fixtures [R. 329]. BX cable is the power supply cable that is encased in metal protection [R. 293]. There was no electricity running to the first two fixtures plaintiff removed, which he had ascertained with his power tester [R. 257]. He would use the tester to touch either the light bulb sockets or the connecting wires to determine if the electrical power was on or off [R. 257-258]. If the power in the circuits was on, the tester’s red light would go on and stay on and the tester would buzz [R. 257-258, 262]. Plaintiff tested the third fixture, the one he was working on at the time of his accident, to be sure that the power was off. [R. 261]. He brought the tester to the “hot wire” (the black power wire) of the BX cable and, since there was no steady red light lit up on his tester, he determined that there was no power running to this fixture 6 [R. 261-262, 293-294]. This was the same procedure he had followed on the previous two fixtures to be sure they were de-energized [R. 263]. At the time of the accident, plaintiff was holding the wires in the fixture that connected the BX power cable to the light ballast with his right hand [R. 264-265]. He was holding onto the second step from the top step of his step ladder with his left hand [R. 265-266]. Plaintiff was pulling the wire feed, which consisted of two separate wires that ran from the BX cable, because the feed wires were too short and he needed more length [R. 265, 267, 295]. He had pulled the feed wires down about an inch to an inch and one-half to cap off the ends of the wires with wire nuts [R. 267-268, 270- 272]. As he pulled the feed wires down he received an electrical shock to his hand from a partially exposed part of the wire [R. 269-271, 295]. Although plaintiff had put wire nuts on the exposed ends of the feed wires, a small portion of the wires remained exposed which came into contact with his hand [R. 270-272]. Upon receiving the shock, the electrical power went off and plaintiff fell back off the ladder [R. 272-273]. Until the power went off, plaintiff was “stuck” to the wires due to the live electrical current [R. 272]. Plaintiff continued to hold onto the ladder when he fell [R. 273]. The ladder fell over with him and landed on top of him [R. 276, 318-319]. The ladder remained in its open locked position after it fell over with the plaintiff [R. 319]. 7 At the time of plaintiff’s accident, a co-worker, Ariel Vargas, was working in the immediate vicinity next to plaintiff [R. 274]. Mr. Vargas had screamed out to have someone turn off the power when he saw plaintiff being shocked [R. 278]. When the ladders first got to the floor, plaintiff’s supervisor, Romulo DeLeon, told the workers when it was okay to work and, in sum or substance, that it was safe to do so [R. 286, 319-320, 389]. Although he did not hear any announcement to test if the power was on, plaintiff took it upon himself to do so “...as a protocol for himself ” [R. 286-287]. Everyone started working at the same time [R. 320]. Plaintiff had tested the fixture he was working on at the time of his accident to see if it had power about three (3) minutes prior to his being shocked [R. 289]. When he tested, it the power was off [R. 289]. During that approximately three (3) minute interval between testing and his shock, plaintiff heard no announcements that the power was going to be turned back on [R. 290]. It was plaintiff’s understanding that, on a retrofit job such as this, a Knight mechanic or supervisor would be responsible for turning the power on or off at a breaker box or circuit breaker panel [R. 290]. Plaintiff, who was a Union apprentice at the time, defined a “mechanic” as a Union designation for a worker with the experience or knowledge to allow that person to work on circuit breaker panels and to do electrical shutdowns [R. 291]. Mr. DeLeon was both a mechanic and the supervisor on the job [R. 291]. None of the apprentices had the authority to turn the power on or off [R. 292]. 8 To plaintiff’s knowledge, there was no reason for the electricity to have been turned back on since all they were doing on that floor was removing,“gutting out”, the old lighting fixtures [R. 296]. In order for the workers to safely remove the old lighting components the power needed to be off [R. 296]. If the circuit breaker was turned off, there would be no electrical power to the area plaintiff was working [R. 299-300]. In order to be shocked, as plaintiff was, both the circuit breaker and the wall light switch to the lights would have to be on [R. 301]. Reviewing the Affidavit of his co-worker, Ariel Vargas [R. 733-734], plaintiff testified that he had utilized safety belts while working for Knight [R. 316], however, he had never been issued a safety belt by Knight while working on a six (6) foot A- frame ladder [R. 316-317]. Had he been issued a safety belt he would have hooked it up to the black iron which supported the dropped ceiling [R. 317]. Plaintiff learned about the “lock-out-tag out” procedure during his Union apprenticeship program [R. 258]. That procedure is used to shut off an electrical circuit, then lock it so it cannot accidently be turned back on, and then tag it to let others know the area where the work is being done that required the electrical shutdown [R. 258, 388]. If the main circuit to the lighting plaintiff was working on had been locked out and tagged out the power would be completely locked off [R. 387]. “Lock out-tag out” was a standard industry safety procedure to assure that the power is off, especially in retrofitting jobs [R. 387]. In locking out a circuit, an actual lock is physically placed on the closed circuit switch which can only be opened by 9 the person with the key or the combination [R. 388-389]. This prevents someone from accidently turning on the electricity while work is being done on the circuit [R. 388- 389]. Performing the “lock out - tag out” procedure was not plaintiff’s responsibility [R. 324-325], and he does not know who turned the electricity back on when he was shocked [R. 330]. Defendants 222 Broadway and Jones Lang by Robert Bicocchi In October of 2010 Mr. Bicocchi was employed as the property manager for defendant 222 Broadway by defendant Jones Lang [R. 427]. His responsibilities included overseeing the facility maintenance, air conditioning and cleaning in the building [R. 427-428]. He was the head property manager for defendant 222 Broadway, owner of a commercial office building at 222 Broadway, New York, New York with a total of thirty-three (33) floors with twenty-seven (27) floors of office space [R. 428-429]. In October of 2010 there was a lighting renovation project underway at 222 Broadway [R. 431]. The contractor that was performing the lighting renovation job was the defendant, Lime [R. 431]. Initially, Lime came and walked the whole building, looked at all the fixtures and picked the ones eligible to be retrofitted [R. 433]. After that, Lime came back with an estimate of how many weeks it would take to do the job with all work to be done at night and on the weekends [R. 433]. Mr. Bicocchi identified the General Services Agreement [R. 735-819], which is the contract under which the defendant, Jones Lang, was retained by the prime 10 tenant, Bank of America, N.A., as property manager for 222 Broadway [R. 435-436]. The owner of the building at the time was the defendant, 222 Broadway [R. 435]. Mr. Bicocchi testified that 222 Broadway had a “lock out - tag out” procedure in place [R. 445]. He described the “lock out - tag out” procedure as disabling a switch to an electrical circuit by locking it with a building or contractor’s lock [R. 445-446]. One reason for locking out an electrical circuit is to protect the men working on it [R. 446]. The tag out procedure involved placing a tag on the lock to make it known why the circuit is being locked out and who locked it out [R. 447]. Mr. Bicocchi agreed that the “lock out - tag out” procedure was a safety procedure to make sure that no one can accidently turn on the electricity when people are working on the electrical circuit [R. 479]. Each floor had a locked and secured electrical closet that contained a circuit breaker or breakers that controlled electricity to the floor [R. 480-481]. Mr. Bicocchi identified a Service Contractor Agreement between his employer, the defendant Jones Lang, and the third-party defendant Knight, [R. 820-888] the contract retaining Knight as the building maintenance or house electrician [R. 456- 457]. Knight was also retained by defendant Lime under a separate subcontract [R. 889-973] for the lighting renovation work [R. 457]. Presented with a General Proposal letter for the lighting renovation project from Lime to Jones Lang, addressed to Ms. Eileen Polleta, [R. 974], Mr. Bicocchi identified Ms. Polleta as the Project Manager for the project at the beginning [R. 974- 11 977]. This letter was cc’d to Daniel Becker, Energy Conservation Specialist for Bank of America, and Randall Cole, Energy Specialist for Jones Lang [R. 475-476]. Defendant Lime - by Joseph Potyak Mr. Potyak was employed by the defendant, Lime, which is in the business of performing lighting retrofitting and energy upgrades [R. 513]. He defined “retrofitting” as upgrading older technology with newer, more efficient technology [R. 515]. His job title with Lime was Construction Manager [R. 516]. At the time of plaintiff’s accident, Mr. Potyak’s position with Lime was Senior Project Manager [R. 519]. His duties as Senor Project Manager were hiring and managing subcontractors, specifications of lighting upgrades and site audits [R. 519]. His duties involved making actual visits to sites where Lime was performing lighting retrofit upgrades [R. 520]. Mr. Potyak was the Project Manager for the lighting retrofit job at 222 Broadway [R. 521]. Although the actual retrofitting work did not start until September 2010, Mr. Potyak’s work on this project started in August, 2010 [R. 522]. He remained as the Project Manager on this job until its completion, which was scheduled to be December 31, 2010 [R. 530]. Mr. Potyak identified the subcontract between Lime and Knight [R. 978-985] for the provision of labor to perform the lighting retrofitting [R. 523-524]. He was involved in the crafting of the terms of the subcontract [R. 524]. The retrofitting work involved removal of the existing lamps, removal of the existing ballasts, installation of energy efficient ballasts, installation of energy efficient lamps and reconnection of 2OSHA guidelines for construction contain provisions requiring electrical circuits to be de- energized and locked and tagged out virtually identical to N.Y.S. Industrial Code Rules 12 NYCRR §23-1.13(b)(4) and (b)(5). See, 29 CFR 1926.417. 12 wiring [R. 527-528]. Defendant Lime had no electricians assigned to this job [R. 529]. Pursuant to the subcontract [R. 978-985] the entire retrofit project was delegated to and performed by Knight [R. 529]. Mr. Potyak was unaware if any site safety program was prepared for this job [R. 543], however, he was familiar with the concept of job site safety and he agreed that it involved assessing the work in progress to assure it is being done in a safe manner [R. 544]. Mr. Potyak testified that the responsibility for job site safety on this project was on Knight [R. 544-545]. Lime never inquired whether Knight had anyone on this job who was responsible for job site safety [R. 547-548]. Mr. Potyak testified that Lime did require Knight, via paragraph V.A. of the subcontract [R. 890], to establish and implement a safety program in compliance with OSHA guidelines for construction2 [R.548]. Mr. Potyak identified the Purchase Order between the defendants, Lime and Jones Lang [R. 986-998], under which Jones Lang hired Lime to perform the lighting retrofit job [R. 549-550]. Knight’s work was required to be done at night and on weekends to avoid interfering with the operations of 222 Broadway’s tenant, Bank of America [R. 552]. Mr. Potyak was familiar with the “lock out - tag out” procedure which disconnects the power and prevents anyone without a key from turning it back on [R. 13 555]. He agreed that “lock out - tag out” is a safety procedure, but was unaware if it was utilized during the 222 Broadway retrofit job [R. 556] and stated that “lock out - tag out” was the responsibility of Lime’s subcontractor, Knight [R. 557]. Third-Party Defendant Knight by Romulo DeLeon Mr. DeLeon was employed by third-party defendant, Knight, which is in the business of lighting, maintenance and construction [R. 583]. He was a Service Manager for Knight [R. 583-584, 586]. Mr. DeLeon’s duties as a Service Manager included dispatching workers to different job sites and supervising lighting technicians, helpers and mechanics. [R. 586]. He made sure his workers “are doing the job right” and “anything that needs to be done to get the job done” is done [R. 586-587]. He was also responsible for the safety of his workers [R. 588]. On October 30, 2010, Mr. DeLeon was a Service Manager for Knight on the lighting retrofit job at 222 Broadway in Manhattan [R. 594-595], which involved removing lighting ballasts and light bulbs and replacing them with energy efficient ballasts and lamps, in his words, replacing the “guts” of each lighting fixture [R. 595- 596]. Knight was performing the lighting retrofit job for defendant, Lime [R. 600- 601, 633]. Mr. DeLeon would be present on the job site any time work was being done [R. 602-603]. It was Mr. DeLeon’s recollection that almost the entire building, twenty or thirty floors, were to undergo lighting retrofitting by Knight [R. 606-607]. 14 According to Mr. DeLeon, Knight provided the ladders used by its workers [609, 668, 695]. Both wooden and fiberglass A-frame ladders, six (6) feet in height, were provided [R. 609-610]. The ceilings at 222 Broadway in which the fixtures were located, were eight (8) feet high [R. 611]. The fixtures being retrofitted were recessed in a dropped ceiling [R. 612]. The dropped ceiling was suspended by black iron affixed to the structural floor above, with the light fixture affixed to the dropped ceiling black iron [R. 612-613]. The power to the fixtures was supplied through a BX cable, which contained three wires housed within a flexible metal casing [R. 613-614, 617]. The BX cable contains a black (or orange or brown) wire which is the “hot” wire that supplies the power; the white or “neutral” wire that returns the current from the fixture; and a green wire which was the ground wire [R. 614-615, 617-18]. From the ballast to the light socket there were six (6) wires: two energized blue wires; two energized red wires; and two energized yellow wires, all providing power to the lamp [R. 619-620]. As part of the retrofitting, both the old ballasts and the old lamps were being replaced with new ones that were more energy efficient [R. 625]. The “lamps” being replaced are also referred to as the bulbs [R. 625-626]. Mr. DeLeon estimated it would take a worker approximately thirty (30) minutes to remove and replace a single lighting fixture [R. 627]. He had an average of twelve (12) to fifteen (15) workers per day on this job [R. 627]. Each individual floor had an electrical closet or closets with circuit breaker panels inside [R. 632, 635]. These closets were dedicated, locked electrical closets 15 [R. 635]. Mr. DeLeon had the keys to some closets and, for the ones he did not, he got the keys from Knight’s house electricians at 222 Broadway [R. 632-634]. Mr. DeLeon had to turn off the circuit breakers in the electrical closets to deenergize the lighting fixtures [R. 635-636]. He would go into a panel labeled “L.P.”, which stands for “lighting panel” and shut off everything in the panel, “every individual breaker” [R. 636]. The breakers were switches that turned off the power [R. 637]. There were either twenty-four (24) or forty-eight (48) breakers in each panel, with one breaker controlling the electricity to ten (10) to fifteen (15) lighting fixtures [R. 706, 707]. Mr. DeLeon testified that the lighting retrofit work could not be done if there was electricity running to the fixture [R. 637-638]. The electricity had to be shut off to do the job [R. 638]. He acknowledged that it was his job to go to the electrical panels, turn off all the circuit breakers and kill the electricity [R. 638]. Mr. DeLeon testified that the tag in the “lock out - tag out” procedure is used to show that an electrical circuit has been locked out and who locked it out [R. 591]. It serves as a warning that the circuit is locked out and for no one to unlock it [R. 591]. The procedure is to first turn the circuit off, then lock it in the off position and then place the tag on the locked out circuit [R. 591-597]. After he flipped the switches and killed the electricity, Mr. DeLeon would lock the electrical closet [R. 638]. He did not use the “tag out” procedure on the panel door to let others know the circuits should not be turned on [R. 639]. He testified that he knew the circuits were locked so he did not need to place a tag [R. 639]. 16 Mr. DeLeon testified that the men who were working on the job would know when he turned off the electrical power because the lights would go out [R. 665]. When he locked up and left the electrical closets that morning the lights were off [R. 665]. After turning off the power to the lighting fixtures on the floor, the only light the workers had was natural light from the windows [R. 640-641]. According to Mr. DeLeon, the natural light was sufficient for the work to be done [R. 641]. Plaintiff, who Mr. DeLeon already knew, was on his first day at the lighting retrofit job on October 30, 2010 [R. 641]. Mr. DeLeon had worked with plaintiff previously and knew him to be a responsible lighting maintenance worker [R. 643]. He had no problems whatsoever with plaintiff in the past [R. 643-644]. Plaintiff was not given any instructions how to do his job since, according to Mr. DeLeon, plaintiff knew exactly what the work involved and how to do that work [R. 642-643]. On October 30, 2010, at approximately 9:00 A.M., plaintiff was involved in an accident [R. 644]. Mr. DeLeon testified that he shut off the breakers and, when he got to the location where everyone was working, plaintiff was lying on the floor [R. 644]. Mr. DeLeon heard a scream and heard someone say that plaintiff fell, so he went running over to see what was going on and learned plaintiff had fallen from the ladder [R. 644, 699]. He asked plaintiff what happened and was told that “he said he got hit. That means he was electrocuted” [R. 644]. Mr. DeLeon testified that plaintiff fell off the ladder when he was electrocuted [R. 645]. Mr. DeLeon sent plaintiff to Beekman Downtown Hospital emergency room, a few blocks away [R. 645-646]. 17 Mr. DeLeon did no investigation into plaintiff’s accident after it occurred [R. 646-647] although there were a number of witnesses who saw the accident [R. 699]. He did not do anything further to try and determine what the cause was of plaintiff’s electrocution and fall [R. 646-647], nor did he report the occurrence to anyone at Knight or ever look up at the fixture plaintiff was working on after the accident [R. 647, 704]. Mr. DeLeon was presented with a Foreman’s 24 Hour Accident Report [R. 999] for plaintiff’s accident, the report that a foreman is required to fill out within twenty-four hours of an accident and then fax to the Union [R. 648]. The report was dated April 11, 2011 (over five months after the accident) because Mr. DeLeon had forgotten to prepare and fax one within twenty-four hours after plaintiff’s accident on October 30, 2010 [R. 649]. Mr. DeLeon confirmed the report stated the following: 1. That the location of the accident was 222 Broadway; 2. That the accident occurred at 9:00 a.m.; 3. That plaintiff was electrocuted with 277 volts of electricity while removing fixtures and ballasts; 4. That plaintiff fell off a ladder; and 5. That plaintiff injured his right hand and back [R. 649-650, 999]. Mr. DeLeon then identified the C-2 Accident Report [R. 1001], also prepared over five months later on April 11, 2011, because he had forgotten to prepare it on the day of the accident [R. 650-651]. Mr. DeLeon confirmed that the C-2 prepared 18 in his office and which he signed, states that “the power was on” and that plaintiff was working on a ladder at the time [R. 652-653]. The C-2 report further contains the statement in the description of the accident that “...power was accidently switched on from other side of floor” and that plaintiff was “...hit from 277 volt line...and was pushed back” [R. 652-653, 1001]. Mr. DeLeon confirmed that: (1) this is what happened to the plaintiff; (2) that the power was actually on; and (3) that the power should not have been on while plaintiff was doing the retrofit [R. 653]. After acknowledging it was his signature on the C-2 form, Mr. DeLeon confirmed that he had read it and signed off on it [R. 653-654]. He further confirmed that preparing, reviewing and signing off on such reports are part of his duties and responsibilities as a Service Manager on this job [R. 654]. Mr. DeLeon did not give his men any instructions when he went to the electrical closets prior to shutting down the power [R. 677]. He did not tell his men to wait until they heard from him before starting their work [R. 677]. He testified that, as he walked to turn off the electrical power, his men were walking to where they were to commence their work [R. 677]. When Mr. DeLeon and his men arrived on the floor that morning, all the lights on the floor were on [R. 682]. His men first turned off the lights by using the wall switches [R. 682]. Turning off the wall switch was something his workers did automatically before he shut down the breakers [R. 705]. The lighting could be turned off by both the wall switches and through the electrical closet and, once turned off by 19 the wall switches, there would be nothing to tell the workers if the main power circuit was actually off [R. 682-683]. Mr. DeLeon conceded that he did not give any instructions to his workers that they should not begin the work by just the wall switch [R. 694-695]. He testified that it was common practice to turn off a fixture via the wall switch and that one does not have to shut down a whole circuit breaker if replacing only ballast [R. 694-695]. Affidavit of Ariel Vargas On October 30, 2010, Ariel Vargas was working for Knight at 222 Broadway on an extensive retrofitting job replacing lighting throughout a substantial portion of the building with his co-worker, plaintiff. Plaintiff was standing on a six (6) foot A- frame wooden ladder working on a ceiling light fixture when, out of the corner of his eye, Mr. Vargas saw him fall from the ladder and land on the floor [R. 733]. As plaintiff laid on the floor, Mr. Vargas asked him what happened and was told that he (plaintiff) had received an electrical shock from wiring in the lighting fixture that caused him to fall [R. 733]. An ambulance came to take plaintiff to the hospital shortly afterwards [R. 733]. Mr. Vargas averred that the electricity to the light fixtures had been turned off so their work could be performed safely, but that the electrical circuit servicing the lighting was not locked out and tagged out, as it should have been [R. 733]. Someone accidentally turned on the electricity that caused the shock to the plaintiff [R. 733]. He also confirmed that they were not provided with safety belts [R. 734]. 20 DOCUMENTARY EXHIBITS R. 735: General Service Agreement between defendant, Jones Lang, and Bank of America, N.A. under which Jones Lang was operating as property manager for 222 Broadway New York, New York. R. 820: Service Contract Agreement between defendant, Jones Lang and third-party defendant, Knight , under which Knight was operating as the house electrician contractor at 222 Broadway, New York, New York. See, deposition of Robert Bicocchi. In this agreement the defendant, Jones Lang, delegated to Knight the responsibility for all job site safety and compliance with all applicable laws [R. 831, ¶16; R. 832, ¶17.04]. R. 978: Subcontract for Lighting Implementation between defendant, Lime and third-party defendant, Knight Electrical. This subcontract, identified by Joseph Potyak [R.523-524], provided for Knight to supply the labor to perform for lighting retrofitting at 222 Broadway. Lime expressly delegated compliance with State codes and regulations applicable to the Knight’s work [R. 956, ¶ “SAFETY”]. R. 974: Proposal of a Lighting Upgrade at 222 Broadway from defendant, Lime to Ms. Eileen Polletta of defendant, Jones Lang. This letter/proposal sets forth the nature and extent of the lighting retrofit upgrade that the plaintiff was involved with on the date of the incident. R. 889: Service contract between defendant, Jones Lang, and defendant, Lime, under which Lime was retained to perform the lighting retrofit of 222 Broadway, New York, New York. 21 R. 986: Purchase Order between defendant, Jones Lang, and defendant Lime, under which Lime was hired to perform the lighting retrofit job at 222 Broadway, New York, New York. See deposition of Joseph Potyak. This Purchase Order delegates the supervision and direction of the work to Lime and the responsibility for construction means and methods as well as responsibility for any acts or omissions of Lime’s employees, subcontractors and their agents and employees [R. 987, ¶ 5]. R. 999: Foreman’s 24-Hour Incident Report prepared by Romulo DeLeon. R. 1001: C-2 Accident Report prepared by Romulo DeLeon. POINT I THE LOWER COURT IMPERMISSIBLY, AND IN CONTRAVENTION OF ESTABLISHED CASE LAW, PERMITTED DEFENDANTS TO DELEGATE THEIR NON-DELEGABLE DUTIES UNDER LABOR LAW §240(1) AND LABOR LAW §241(6) In its Decision/Order, the lower Court stated that it was denying plaintiff’s motion for summary judgment and granting defendants’ motion for dismissal because “the baton imposed by Labor Law Section .... 240(1) and 241(6) was successfully passed” [R.17]. It is respectfully submitted that the Court below was in error. Borrowing the lower Court’s analogy, the Labor Law §240(1) and Labor Law §241(6) “baton” of non-delegable duty cannot be passed by the defendants to plaintiff’s employer in any manner that avoids or abrogates defendants’ statutory liability. 22 Contrary to the lower Court’s holding, such a shifting of the statutory duties and obligations under both Labor Law §240(1) and Labor Law §241(6), so as to permit defendants to escape or evade statutory liability, is prohibited as a matter of law. While it is possible for an owner, contractor or agent with responsibility under Labor Law §§240(1) or 241(6) to figuratively “pass the baton” to another party, giving that party co-equal responsibility under the law, the passer of the baton remains liable under the Statute; which is the essence of a non delegable duty. See, e.g., McCarthy v. Turner Constr., Inc., 17 N.Y. 3d 369 at 374 (2011); Rizzo v. Hellman Electric, 281 A.D. 2d 258, 259 (1st Dept. 2001). It is well established that the duties imposed under both Labor Law §240(1) and Labor Law §241(6) are non delegable in order to effectuate the legislative intent to place the “ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor”. 1969 NY Legis. Ann., at 407-408; Panek v. County of Albany, 99 N.Y. 2d 452 at 457 (2003); Rizzuto v. L.A. Wenger Constr. Co., 91 N.Y. 2d 343 at 348-349 (1998); Zimmer v. Chemung County Perf. Arts, 65 N.Y. 2d 513 at 520-521, rearg. denied, 65 N.Y. 2d 1054 (1985). As clearly enunciated in Rocovich v. Consolidated Edison Co.,78 N.Y. 2d 509 at 513 (1991), Labor Law §240(1) imposes a non delegable duty rendering an owner absolutely liable “....even though the job was performed by an independent contractor over which it exercised no supervision or control.” (Italics added); See also, Long v. Forest-Fehlhaber, 55 N.Y. 2d 154 at 159 (1982) [the absolute liability of an owner and general contractor is “unavoidable”]. 23 It is respectfully submitted that the Decision/Order appealed from erred in failing to recognize that under both Labor Law §240(1) and §241(6) an owner, contractor or agent remains legally bound for violations of the Statutes, whether or not such defendant(s) exercised supervision, direction or control over the plaintiff’s work. See, Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY 3d 280 at 287 (2003); Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY 2d 494, 502 (1993); Gordon v. Eastern Railway Supply Inc., 82 NY 2d 555 at 560 (1993). These statutory responsibilities cannot be avoided, escaped or otherwise delegated to relieve, release or absolve the owner, contractors or their agents from liability. Ross v. Curtis-Palmer Hydro-Electric Co., supra; Gordon v. Eastern Railway Supply Inc., supra; Kane v. Courdorous, 293 A.D. 2d 301 at 310-311, 312 (1st Dept., 2002). There is no dispute that the defendant, 222 Broadway, was the owner of the building where the accident occurred. Additionally, there is no dispute that the defendant, Jones Lang, was the property manager/agent for the building and that it contracted with the defendant, Lime, for the lighting renovation project on which plaintiff was injured. Finally, there is no dispute that the defendant, Lime, hired Knight, plaintiff’s employer, to perform the actual lighting renovation work. Thus, the defendants are the exact parties upon whom the non-delegable duties under Labor Law §240(1) and Labor Law §241(6) are imposed as a matter of law. See, St. Louis v. Town of North Elba, 16 N.Y. 3d 411 at 413-414 (2011) [Labor Law §241(6) imposes a non-delegable duty irrespective of supervision or control over worksite]; Sanatass v. Consolidated Inv. Co.,Inc., 10 N.Y. 3d 333, 338-339 (2008) [duties under 3Liability imposed despite owner having no knowledge of work contracted for by its tenant. The absolute and strict liability under Labor Law §240(1) renders the owner’s knowledge and ability to control the work irrelevant. 24 Labor Law §240(1) are non-delegable and an owner is liable for its violation even though the job was performed by a contractor over which it exercised no supervision or control]3; Celestine v. Long Island R.R., 59 N.Y. 2d 938 (1983), aff’ing 86 A.D. 2d 592 [Long Island Railroad held to be proper Labor Law defendant based solely on its ownership of property it had leased to The City of New York and NYC Transit Authority and despite having no involvement whatsoever in the work plaintiff was performing.] While plaintiff did not contest the dismissal of his claims under Labor Law §200 and common law negligence (which require proof that defendants actually supervised and controlled the means and methods of plaintiff’s work), Labor Law §240(1) and Labor Law §241(6), on the other hand, do not require active supervision or control. See, Blake v. Neighborhood Housing Service of New York, Inc., supra at 287; Haimes v. New York Tel. Co., 46 N.Y. 2d 132 at 137 (1978) [Labor Law §240(1) places “primary and inescapable responsibility on owners and general contractors.”]; Allen v. Cloutier Constr. Corp., 44 N.Y. 2d 290 at 300 (1978) [Labor Law §241(6) imposes absolute liability upon an owner or contractor irrespective of their control or supervision of the construction site.]. Directly on point with the facts at bar is this Court’s decision in Tuccillo v. Bovis Lend Lease, Inc., 101 A.D. 3d 625 (2012), where the defendant, ADT Security Systems, was hired by the United States Marshals Service to install a security system 25 at the United States Post Office in Brooklyn. ADT cross-moved against plaintiff’s motion for partial summary judgment for dismissal of plaintiff’s Labor Law §§240(1), 241(6) and 200 claims arguing that it had delegated all authority to plaintiff’s employer and, therefore, did not have authority to supervise, direct or control plaintiff’s work. This Court held that: 1) ADT’s authority to control the worksite was demonstrated by the fact that it subcontracted the work to plaintiff’s employer; 2) that the subcontract effectively gave plaintiff’s employer concomitant or overlapping authority to supervise and control installation which does not negate ADT’s authority to supervise and control the installation; and 3) that the analysis of statutory agency establishing a non-delegable duty under Labor Law §240(1) applies equally to Labor Law §241(6). Id. at 628; see also, Naughton v. City of New York, 94 A.D. 3d 1 at 10 (1st Dept., 2012) [Delegation of plenary authority over construction work, which included authority to supervise and control the work of its subcontractors, establishes statutory agency irrespective of whether actual supervision was exercised]. Clearly, the authority to hire a subcontractor to perform work establishes that the hiring entity had the authority to supervise and control and, by such subcontract, it conferrs concomitant authority to the entity it hires. See, Russin v. Picciano & Son, 54 N.Y. 2d 311 at 317-318 (1981) [General contractor who hires subcontractor conveys its concomitant authority to subcontractor rendering it a “statutory agent” whereby both share the non delegable duty under the Labor Law]; Britez v. Madison Park Owner, LLC, 106 A.D. 3d 531 (1st Dept., 2013) [Purchase order between construction manager and subcontractor to perform “all drywall” work establishes the 26 concomitant authority of both parties to the agreement thus creating a statutory agency rendering both parties bound under Labor Law §§240(1) and 241(6)]; Burke v. Hilton Resorts Corp., 85 A.D. 3d 419 at 420 (1st Dep. 2011) [Contractor’s contractual supervisory authority over subcontractor rendered contractor liable under Labor Law §240(1) even if it did not exercise that authority]; Weber v. Baccarat, Inc., 70 A.D. 3d 487 at 488 (1st Dept., 2010) [Subcontractor’s contract with general contractor imposed concomitant authority for imposition of Labor Law §240(1) liability. Actual supervision is irrelevant.]. The contract under which defendant, Jones Lang, was hired as property manager for defendant, 222 Broadway, specifically required Jones Lang and its subcontractors to assume full responsibility, without limitation, to supervise and report on all renovation and construction work at the premises [R. 745, ¶ 10.4; R. 772 , ¶ 5.1]. Defendant, Jones Lang, was also delegated the obligation to hire and fire subcontractors [R. 747, ¶ 14.3]. Thus, by the very terms of its property management contract, Jones Lang assumed full status as statutory agent rendering it contractually bound to the statutory obligations of the Labor Law. Additionally, contractual agency is conclusively established by the agreements between the defendants. The General Services Agreement under which the defendant, Jones Lang, was retained as property manager, specifically delegates to it the responsibility for ensuring that any subcontractors it retains comply with “all laws, rules, regulations and other legal requirements” [R. 745, ¶ 10.4]. 27 That General Services Agreement further requires Jones Lang to bind all subcontractors it retains to the same terms and conditions to which it is bound under the Agreement [R. 747-748, ¶ 14.4.]; to perform safety and hazard evaluations as well as project tracking [R. 772, ¶ 5.1]; and to ensure construction projects are coordinated [R. 778, Item 22]. Moreover, it was further obligated to provide “comprehensive project management” and monitor all installations and contract administration with vendors providing construction services [R. 782, ¶¶’s 10.7.7, 10.7.9; R. 783, ¶ 10.7.1]. Significantly, the Agreement specifically states that the hiring and binding of a subcontractor by Jones Lang “...shall not relieve [Jones Lang] of any of its obligations under this agreement [R. 747, ¶ 14.4]. Plainly, the foregoing contractual provisions clearly establish that Jones Lang was delegated complete authority to supervise and control the lighting retrofit job involved herein, thus unquestionably rendering it a statutory agent. With respect to the delegation of authority by Jones Lang to Lime for the lighting retrofitting project, the Service Contractor Agreement between those two entities is dispositive [R. 889-943]. Specifically, this agreement required Lime to comply with all government regulations, to have a well-trained, on-site supervisor at all times when work is being done and to insure the safety of all persons on the property [R. 891-892, Sect.2]. Jones Lang also required Lime to hold it harmless from all liabilities and to require its (Lime’s) workers to comply with and enforce all safety rules and regulations [R. 898, ¶¶ 6.1 and 6.3, R. 838, ¶ 16 and R. 899, ¶ 17.04]. In addition to a comprehensive “Scope of Work” specifically spelling out the 28 work for which Lime was hired by Jones Lang [R. 909-916], the Service Contractor Agreement sets forth the extensive retrofitting, per item, which reflects the significant amount of work necessary for the entire project [R. 920-938]. Finally, the subcontract for lighting implementation under which Lime retained Knight to do the actual installation [R. 978] confirms the concomitant delegation of authority and agency by Lime to Knight. The subject subcontract requires Knight to perform and complete all work in strict compliance with contract documents [R. 978, ¶ III, A. 1.], and to establish and implement a safety program [R. 980, ¶ V.A.]. Knight was prohibited from unauthorized assignment of work to another subcontractor [R. 982, ¶ IX., A.] and was required to be bound and comply with all Federal, State and Local Laws and Regulations applicable to the work [R. 983, ¶ IX., F.]. Significantly, the Purchase Order between Jones Lang and Lime [R. 986] delegated to Lime the obligation to supervise the retrofitting work, holding Lime responsible to Jones Lang for any omissions or problems with the Knight lighting retrofitting work [R. 987, ¶ As is clear from the foregoing, the “baton” (returning to the lower Court’s analogy) cannot be passed to absolve or relieve the owner (222 Broadway), the property manager (Jones Lang) or the general contractor (Lime) from Labor Law liability. Rather, the so-called passing of the “baton” signifies, at most, that the non- delegable responsibilities of the owner (222 Broadway), agent (Jones Lang), and general contractor (Lime) have been extended to also include Knight, resulting in shared responsibility by operation of law. 4 The owner and general contractor had already settled with decedent’s estate. Id. at 152. 29 Although actual supervision is irrelevant, it is plain from the record that Joseph Potyak, the Project Manager for defendant, Lime, made actual visits to the site consistent with his duties of hiring and managing subcontractors, assuring specifications were met on the lighting upgrades as well as performing site audits [R.519]. He was the Project Manager from the job’s inception to its conclusion and was involved with creating the terms of the subcontract with Knight [R. 522-524]. Thus, whether he exercised it or not, by his own admission he had more than ample authority to exercise supervision and control over Knight. The two cases cited in the Decision/Order purportedly justifying this Court’s sua sponte dismissal of plaintiff’s causes of action under both Labor Law §240(1) and Labor Law §241(6) are clearly inapposite. In Bjelicic v. Lynned Realty Corp., 152 A.D. 2d 151 (1st Dept., 1989), there was no contractual delegation of authority to supervise or inspect the decedent’s work to the remaining defendant/subcontractor, so as to implicate Labor Law § 240(1), who simply made a gratuitous loan of a rigger’s license and set up a scaffold. Id. at 153-1544. In Waters v. Patent-Scaffold Co., 75 A.D. 2d 744 (1st Dept., 1980), dismissal of the action against the scaffold company was appropriate since it merely leased scaffold components to plaintiff’s employer and was delegated no authority over plaintiff’s masonry work. Thus, in no way did defendant in either case qualify as a “statutory agent”. To borrow this Court’s analogy yet again, the defendants in Bjelicic and Waters escaped liability because the “baton” had never been transferred to them. Those cases do not stand for 30 the proposition that a party with statutory responsibility under Labor Law §§ 240(1) or 241(6), such as the defendants herein, can somehow escape non delegable duty by purporting to transfer that responsibility to another. Significantly, in opposition to plaintiff’s motion, none of the defendants moved, cross-moved or even argued that they were relieved of their statutory obligations under the Labor Law based upon a delegation of the actual work to plaintiff’s employer. The lower Court’s sua sponte dismissal of plaintiff’s Labor Law claims was solely limited to a perceived absolution from liability by a delegation of responsibility not urged by defendants, whose arguments bearing on ultimate responsibility were correctly limited to shifting of whatever vicarious financial liability there may be via common law and/or contractual indemnity to plaintiff’s employer, Knight. See, McCarthy v. Turner Constr., Inc., supra. Manifestly, as demonstrated above, the defendant/owner of the premises where the accident occurred, 222 Broadway, the defendant/property manager, Jones Lang, who contracted with the defendant/general contractor, Lime, who subcontracted out the actual work to Knight, are all parties who had and remained bound to the statutory duties imposed by Labor Law §§240(1) and 241(6). It is well settled that where work that required the duty to conform to the requirements of Labor Law §240(1) and/or Labor Law §241(6) has been delegated to a third party, that third party becomes the statutory agent of the owner and/or general contractor. Russin v. Picciano & Son, 54 N.Y. 2d 311 at 319 (1981); Johnson v. City of New York, 120 A.D. 3d 405 at 406 (1st Dept., 2014). 31 Under the clear and undisputed showing herein, the defendant, 222 Broadway, is liable to plaintiff under Labor Law §240(1) and Labor Law §241(6) as owner of the premises. Defendants, Jones Lang and Lime, are clearly liable under both statutes by the terms of their respective comprehensive agreements delegating full authority to supervise and control the work plaintiff was performing at the time of his injury. Moreover, defendant, Lime, is statutorily bound through the actual supervision and control by its Project Manager, Joseph Potyak. Accordingly, the lower Court’s dismissal, based upon its erroneous determination that the defendants’ statutory duties under Labor Law §240(1) and Labor Law §241(6) were fully delegated to plaintiff’s employer, should be reversed. POINT II THE FAILURE OF PLAINTIFF’S LADDER TO REMAIN STABLE AND ERECT, COUPLED WITH THE FAILURE TO PROVIDE PLAINTIFF WITH OTHER SAFETY DEVICES TO PROTECT HIM FROM FALLING CONSTITUTE CLEAR VIOLATIONS OF LABOR LAW §240(1) REQUIRING A GRANT OF SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR Summary judgment in favor of plaintiff on liability herein is sought under the authority of Labor Law §240(1) which provides, in pertinent part, as follows: All contractors and owners and their agents... in the....altering... of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding,....ladders, slings,... ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. 32 Where the effects of gravity cause an injury due to the failure of one of the devices enumerated in the statute to be properly constructed, operated or placed, liability under Labor Law §240(1) will obtain. Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509 (1991); Rodriguez v. Forest City Jay St. Assocs., 234 A.D.2d 68 (1st Dept., 1996); Sheridan v. Beaver Tower, Inc., 229 A.D.2d 302 (1st Dept., 1996) mot. for lv. to app. dsmd., 89 N.Y.2d 860 (1996). The required safety devices listed in Labor Law §240(1), all of which are used in connection with height differentials, are intended to protect workers against either falling from a height or being struck by falling objects that are not properly secured. Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555, 561 (1993); Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 502 (1993); Rocovich v. Consolidated Edison Co., supra at 513-514. The unequivocal purpose of Labor Law §240 (1) is to insure the maximum protection of workers by placing the ultimate responsibility for work site safety on owners and their agents instead of on the workers themselves. 1969 Legis. Ann., at 407; Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y. 3d 1 at 7 (2011); Rocovich v. Consolidated Edison Co., supra at 512-513; Zimmer v. Chemung County Perf. Arts Inc., 65 N.Y.2d at 520-521 (1985); Hill v. Stahl, 49 A.D. 3d 438 at 441-442 (1st Dept., 2008). Liability is absolute and contributory negligence of the injured worker is no defense. Stolt v. General Foods Corp., 81 N.Y.2d 918 at 920 (1993); Rocovich v. Consolidated Edison Co., supra at 513; Goreczny v. 16 Court St. Owner LLC, 110 A.D. 3d 465 (1st Dept. 2013). 33 Absolute liability is imposed under Labor Law §240(1), as a matter of law, once it is shown that a worker was injured due to a gravity related hazard for which proper protection was not provided. Runner v. New York Stock Exch., Inc., 13 N.Y. 3d 599 at 604 (2009);Rocovich v. Consolidated Edison Co., supra at 514; Fernandez BBD Dev, LLC, 103 A.D.3d 554 (1st Dept. 2013); Torres v. Monroe College, 12 A.D. 3d 261 at 262 (1st Dept., 2004); Spaulding v. Metropolitan Life Ins. Co., 271 A.D.2d 316 (1st Dept., 2000). The decisive question is whether the plaintiff’s injuries were a direct consequence of a failure to provide adequate protection against a risk arising from a physically significant height differential. Runner v. New York Stock Exch., Inc., supra at 603; Cuentas v. Sephora USA, Inc., 102 A.D. 3d 504 (1st Dept., 2013); Arnaud v. 140 Edgecomb LLC, 83 A.D. 3d 507 (1st Dept., 2011). A) Violation of Labor Law §240(1) predicated upon failure of ladder to prevent plaintiff from falling It is well settled that where a ladder fails to remain steady and erect, resulting in injury to a worker, prima facie liability under Labor Law §240(1) is established. Fanning v. Rockefeller Univ., 106 A.D.3d 484 at 485 (1st Dept., 2013); Nacewicz v. Roman Catholic Church of the Holy Cross, 105 A.D.3d 402 at 403(1st Dept., 2013); Cuentas vs. Sephora USA, Inc., 102 A.D.3d 504 (1st Dept. 2013); Yurkovich v. Lvarner Woodworking, Inc. 289 A.D.2d 183 (1st Dept., 2001). Indeed, the failure of a ladder to prevent a worker from falling violates the "core" objective of the statute and constitutes Labor Law §240(1) liability as a matter of law. Gordon v. Eastern Ry. Supply, Inc., supra at 561-562; Lopez v. Melidis, 31 5The Court below specifically found that the record established that the ladder provided to plaintiff “...was inadequate to the task of preventing his fall when he came in contract with the exposed wire and was a proximate cause of his injury” [R.17]. 34 A.D. 3d 351 (1st Dept., 2006); Spaulding v. Metropolitan Life Ins. Co., supra; Guillory v. Nautilus Real Estate, Inc., 208 A.D.2d 336 at 338 (1st Dept., 1995), mot. for lv. to app. denied, 86 N.Y.2d 881 (1995). Plaintiff testified that, as he was pulling a light fixture wire feed, he received an electrical shock to his hand causing him to fall back off his ladder onto the floor. [R. 269, 271-273, 296]. As he fell back, plaintiff kept a hold on the ladder which fell over with him landing on top of him [R. 276, 318-319]. The “A” frame ladder remained in its open position after it fell over with the plaintiff [R. 319]. Plaintiff’s description of the accident is undisputed5. Directly on point with the facts at bar is the decision in Vukovich v. 1345 Fee, LLC, 61 A.D.3d 533 (1st Dept. 2009). In Vukovich, the plaintiff, a pipe fitter working on a renovation site, received a shock and fell from the third or fourth rung of an unsecured A-frame ladder, a factual scenario identical to the case here. The Court, finding that the ladder was inadequate to prevent plaintiff’s fall and was a proximate cause of his injuries, reversed the lower Court and granted summary judgement on liability to plaintiff under Labor Law §240(1). Id. at 34. See also, Caban v. Maria Estela Houses I Assocs. L.P., 63 A.D.3d 639 (1st Dept. 2009) [Summary judgment on liability granted to plaintiff under Labor Law §240(1) who was shocked and fell off a ladder.] 35 Additionally on point is the decision in Orellano v. E. 37th St. Realty Corp. [292 A.D.2d 289 (1st Dept. 2002)] where the lower Court’s denial of plaintiff’s motion for summary judgment was reversed under Labor Law §240(1). Despite there being no apparent defects in the A-frame ladder from which plaintiff fell, and despite plaintiff’s various and conflicting explanations on what caused him to fall, the fact that the ladder failed to protect him from falling was sufficient to establish liability in his favor under Labor Law §240(1). Id. at 291. Plainly, there can be no question that the ladder here failed to protect plaintiff from falling, which failure, in and of itself, mandates a grant of summary judgment in favor of plaintiff as that failure plainly violates the "core" objective of the statute. See, Gordon v. Eastern Ry. Supply, Inc., supra; Vanriel v. Weissman Real Estate, 262 A.D.2d 56 (1st Dept., 1999); Garcia v. 1122 E. 180th St. Corp., 250 A.D.2d 550 at 551 (1st Dept., 1998); Guillory v. Nautilus Real Estate, Inc., supra. See also, Stallone v. Plaza Constr. Corp.,95 A.D.3d 633 (1st Dept. 2012)[Summary judgment under Labor Law §240(1) granted to plaintiff who slipped and fell from an affixed ladder which was inadequate to shield him from a gravity related elevation risk.] Manifestly, the fact that the unsecured ladder actually fell over, in and of itself, establishes beyond question that Labor Law §240(1) was violated and that plaintiff is entitled to judgment on liability. See, Hanna v. Gellman, 29 A.D. 3d 953 (2nd Dept., 2006) [Ladder tipping over established entitlement to judgment as a matter of law under Labor Law § 240(1)]; Fernandez v. MHP Land Assocs., 188 A.D.2d 417 36 at 418 (1st Dept., 1992) [Failure to secure a six foot ladder resulted in summary judgment where the ladder slipped causing worker to fall]. B) Violation of Labor Law §240(1) predicated upon failure to provide appropriate safety equipment for fall protection In addition to the statutory violation resulting from the failure of the ladder to prevent plaintiff's fall, as discussed above, an equally compelling basis for liability is presented by the failure to provide plaintiff with proper safety devices to prevent falling in the event of the ladder's failure, as occurred here. Not only does Labor Law §240(1) require that the ladder itself provide proper protection, the Statute also requires that persons working at an elevation be provided with appropriate safety equipment to secure them from falling. See, Felker v. Corning, Inc., 90 N.Y.2d 219 at 229 (1997) [Failure to provide safety device to prevent fall from ladder violates Labor Law §240 as a matter of law]; Gordon v. Eastern Ry Supply, Inc., supra at 562 [Summary judgment under Labor Law §240 granted where plaintiff was not provided with a scaffold or a safe ladder to prevent fall]; Spaulding v. Metropolitan Life Ins. Co., supra [Failure to provide adequate protection to worker engaged in elevation-related risk mandates grant of summary judgment under Labor Law §240]; Wasilewski v. Museum of Modern Art, 260 A.D.2d 271 (1st Dept., 1999) [Failure to provide other safety devices, such as a safety belt, to worker who fell from unsecured ladder resulted in a grant of summary judgment under Labor Law §240(1)]; 37 Liability under Labor Law §240(1) is established once it is demonstrated that the defendants failed to provide plaintiff with an adequate safety device to protect him from falling and that this failure was a proximate cause of his injuries. See, Cuentas v. Sephora USA, Inc., 102 A.D.3d 504 (1st Dept. 2013); Orellano v. 29 E. 37th Realty Corp., supra at 290-291. Significantly, plaintiff is not required to present evidence of a structural defect in the ladder. Carchipulla v. 6661 Broadway Partners, LLC, 95 A.D.3d 578 (1st Dept. 2012); On point is the decision in Arce v. 1133 Bldg. Corp., 257 A.D.2d 515 (1st Dept., 1999). In Arce, plaintiff fell from an unsteady ladder thus establishing a prima facie case of liability under Labor Law §240(1). Id. at 524. Defendants countered with the assertion that plaintiff fell due to fainting from extreme heat and not because of any defect in the ladder. Flatly rejecting this argument, the Court held that summary judgment should be granted because of defendants’ failure to provide proper protection to plaintiff in the event plaintiff became overcome by heat, which was foreseeable under the circumstances. Id. at 515-516; citing Gordon v. Eastern Ry. Supply, Inc., supra at 562; Callan v. Structure Tone, Inc., 52 A.D. 3d 334 at 335 (1st Dept., 2008); Robinson v. NAB Constr. Corp., 210 A.D.2d 86 (1st Dept., 1994). Clearly, a short circuit or an electrical shock when working on electrical wires, as occurred here, is manifestly foreseeable. Even if there were any question whatsoever on the undisputed fact that the ladder here failed to protect plaintiff by remaining stable and erect, the failure to provide plaintiff with additional protective devices such as a safety belt, given the 38 foreseeable hazards of working on electrical wiring, clearly provides an additional basis for imposing liability in favor of plaintiff under Labor Law §240(1). See, Clavijo v. Atlas Terminals LLC, 104 A.D.3d 475 at 476 (1st Dept., 2013); Callan v. Structure Tone Inc., supra; Arce v. 1133 Bldg. Corp., supra. Although it is patently obvious that the risk of falling from a ladder precipitated by electrical hazards, as here, is foreseeable, precise foreseeability is not required for imposition of liability under Labor Law §240 (1). Plaintiff need not demonstrate that the precise manner in which the accident occurred was foreseeable, but only that the risk of some injury was foreseeable by failure of the ladder or failure to provide proper protection to someone working at an elevation. Gordon v. Eastern Ry Supply, supra at 562; Ortega v. City of New York, 95 A.D. 3d 125 at 128 (1st Dept., 2012). Plainly, had plaintiff been provided with a safety belt -- a protective device specifically intended to prevent a fall such as occurred here -- he would not have fallen to the floor and sustained the injuries complained of. As set forth above, the failure to furnish safety equipment that would have protected plaintiff from falling while working on the ladder is a clear violation of Labor Law §240(1) warranting reversal of the Decision/Order of the Court below and a grant of summary judgment to plaintiff herein as a matter of law. See Felker v. Corning, Inc., supra; Gordon v. Eastern Ry. Supply, Inc., supra; Deng v. A.J. Contracting Co., Inc., supra. 39 POINT III THE PATENT VIOLATION OF INDUSTRIAL CODE RULES 12 NYCRR § § 23-1.13(b)(4) AND (b)(5) BY FAILING TO DE- ENERGIZE THE LIGHTING CIRCUIT AND LOCKING THE CIRCUIT AND TAGGING IT OUT SO IT COULD NOT BE INADVERTENTLY TURNED ON CONSTITUTES CLEAR VIOLATION OF LABOR LAW §241(6) UPON WHICH SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THE COURT BELOW Labor Law §241 (6) also creates a non-delegable duty on owners and contractors mandating compliance with the Industrial Code of the State of New York, 12 NYCRR §23. See, Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494 at 501-502 (1993). Liability under Labor Law §241 (6) is established by a showing that there was a violation of a provision of the Industrial Code which provides a strict, positive command. Rizzo v. L.A. Wenger Contr. Co., Inc., 91 N.Y.2d 343 at 349 (1998); Harris v. Arnell Constr. Corp., 47 A.D. 3d 768 (2nd Dept. 2008); Blair v. Cristiani, 296 A.D.2d 471 (2nd Dept., 2002). The Industrial Code regulation relied upon in the case at bar, to wit: 12 NYCRR §23-1.13 (b), has been held to provide sufficiently concrete commands upon which to predicate Labor Law §241 (6) liability. See, Hernandez v. Ten Ten Co., 31 A.D. 3d 333 (1st Dept. 2006); Rice v. City of Cortlandt, 262 A.D. 2d 770 at 773-774 (3rd Dept. 1999). The regulation provides, in pertinent part, as follows: 12 NYCRR §23-1.13 (b)(4) Protection of Employees. No employer shall suffer or permit an employee to come in such proximity. Any part of an electrical power circuit in the course of his work unless the employee is protected against electrical shock by de-energizing the circuit and grounding it 40 or by guarding such circuit by effective insulation or other means. 12 NYCRR §23-1.13(b)(5), Guarding of switches or other circuit interrupting devices. If protection for employees consists of de-energizing circuits, employees shall cause open switches or other circuit- interrupting devices to be guarded against inadvertent closing until such employees are no longer exposed. In order to establish liability under Labor Law §241(6), via 12 NYCRR 23-1.13 (b) (4) and/or (5), plaintiff must demonstrate that he was working in proximity to a live electrical circuit that was not de-energized and grounded and/or that the circuit was not turned off and guarded so it could not be re-energized while plaintiff was working on it. See, Lorefice vs. Reckson Op. Part., L.P., 269 A.D. 2d 572 (2d Dept., 2000); Snowden v. New York City Transit Auth., 248 A.D. 2d 235(1st Dept., 1998). Such is precisely the factual scenario presented here. Indeed, the witness, Ariel Vargas, confirms that the electrical circuit was not locked out and tagged out while plaintiff was working on it, a clear violation of NYCRR §1.13(b)(4) [R. 733]. On point with the facts at bar is the case of Lodato vs. Greyhawk North Amer., LLC, 39 A.D.3d 834 (2nd Dept., 2007). In Lodato, plaintiff was on a scaffold, installing a drop ceiling, when he came into contact with live electrical wiring and was shocked causing him to fall off of the scaffold. Id. at 492. On these facts, due to exposure of plaintiff to live electrical wiring, the Court affirmed a grant of summary judgment under Labor Law §241(6) as well as Labor Law §240(1) due to the failure of the ladder to prevent his fall. Id. at 493-494. 41 Additionally, on point is Del Rosario v. United Nations Fed. Credit Union, 104 A.D.3d 515 (1st Dept., 2013). In Del Rosario, plaintiff came into contact with an energized wire which caused him to pull back. As he did so, the ladder wobbled causing him to lose his balance and fall. The lower Court’s denial of summary judgment on plaintiff’s claim under Labor Law §241(6), predicated upon a violation of 12 NYCRR §23-1.13(b)(4) (relied on here), was reversed with judgment on liability granted to plaintiff. Id. at 515-516. Additionally, the lower Court’s denial of summary judgment under Labor Law §240 (1) was reversed as well with judgment on that basis also granted to plaintiff since the ladder “was inadequate to the task of preventing his fall”. Id. at 515. As is plainly evident, the electrical circuit to the lighting fixture plaintiff was demolishing became energized in violation of the Industrial Code 12 NYCRR §1.13(b)(4)]. Hence, liability is clearly established under Labor Law §241(6). Additionally, the electrical circuit was not de-energized and guarded (locked out and tagged out) against accidental re-energizing as required by the Industrial Code 12 NYCRR §23-1.13 (b)(5)], also a violation of Labor Law §241(6). Indeed, the lower Court, in the Decision/Order at issue, quite clearly accepted the uncontroverted fact that the ladder tipping over and plaintiff’s fall were initially precipitated by a shock from live, exposed wire [R. 15]. The above violations, which unquestionably allowed the electrical shock that precipitated plaintiff’s fall, individually and/or in the aggregate, more than amply support a grant of partial summary judgment under Labor Law §241(6) in plaintiff’s 42 favor. See, Del Rosario v.United Nations Fed. Credit Union, Id.; Lodato v. Greyhawk North Amer., LLC, supra. 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, thus 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. 43 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 44 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 11, 400 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ---------------------------------------------------------------------X JUSTIN NAZARIO, Plaintiff, -against- 222 BROADWAY, LLC, JONES LANG LASALLE AMERICAS, INC. , and LIME ENERGY CO. , Defendants. ---------------------------------------------------------------------X 222 BROADWAY, LLC and JONES LANG LASALLE AMERICAS, INC. , Third-Party Plaintiffs, -against- KNIGHT ELECTRICAL SERV1CES CORP., Third-Party Defendant. ---------------------------------------------------------------------X JONES LANG LASALLE AMERICAS, INC., Second Third-Party Plaintiff, -against- KNIGHT ELECTRICAL SERVICES CORP., Second Third-Party Defendant. ---------------------------------------------------------------------X 222 BROADWAY, LLC., Third Third-Party Plaintiff, -against- KNIGHT ELECTRICAL SERVICES CORP., Third Third-Party Defendant. ---------------------------------------------------------------------X Index No. : 105608/ 11 PRE-ARGUMENT STATEMENT Third-Party Index No. : 590740/11 Second Third-Party Index No.: 590163112 Third Third-Party Index No.: 590212/ 12 1. The title of this action is as set forth hereinabove. 2. The full names of the original parties are set forth hereinabove. 3. Counsel for the plaintiff-appellant : ARYE, LUSTIG & SASSOWER, P.C . 20 Vesey Street New York, New York 10007 Attention: D. CARL LUSTIG, III Telephone No.: (212) 732-4992 4. Attorneys for the defendants-respondents: LAWRENCE, WORDEN, RAINIS & BARD, P.C, Attorney for Defendantsffhird-Party Plaintiffs/ Second Third-Party Plaintiffffhird Third-Party Plaintiff 222 BROADWAY, LLC and JONES LANG LASALLE AMERICAS, INC. 225 Broadhollow Road, Suite # JOSE Melville, New York, 11747 (63I)694-0033 CERUSSI & SPRING Attorneys for Defendant LIME ENERGY CO. One North Broadway, II 111 Floor White Plains, NY I 060 I (9I4 )948-I200 WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP Attorneys for Third-Party Defendant/Second Third-Party Defendant and Third Third-Party Defendant KNIGHT ELECTRICAL SERVICES CORP. ISO East 42nd Street New York, NY I 00 I7 (212) 490-3000 5. This appeal is taken from the Decision and Order of the Supreme Court, County of New York (Hon. Geoffrey D.S. Wright, J.S.C.), dated April I, 20I4, which was tiled and entered in the Office of the County Clerk of said court on April 7, 2014 and which was served by mail with Notice of Entry on April 9, 2014. A copy of said Order with Notice of Entry is attached. 6. The nature and object of the cause of action in this case is as follows: This is an action for personal injuries arising from a work-site accident that occurred on October 30, 20I 0. Plaintiff, an electrician employed by Knight Electrical Services Corp. ("Knight"), was working on the fourth or fifth step of a wooden, six-foot, A-frame ladder when he received an electrical shock on one hand which caused the plaintiff, who was holding onto the ladder with his other hand, to fall backwards, with the ladder, to the floor. Plaintiffs employer, Knight, was hired by the defendant, Lime Energy Co. ("Lime"), on a renovation/retrofit project to upgrade certain lighting throughout an office building at 222 Broadway, New York, New York. Defendant, Lime, had been hired by the defendant, Jones Lang Lasalle Americas, Inc. ("Jones Lang"), pursuant to a purchase order, to do the lighting renovation/retrofit project throughout the building, which included removal of existing lighting fixtures and installation of upgraded lighting fixtures. Defendant, Lime, subcontracted to Knight, plaintiffs employer, the entire lighting renovation/retrofit job with Lime having no electricians of its own on this project. Plaintiff was in the process of removing existing light fixtures, pursuant to Lime's subcontract with Knight, when he receive a shock from an electrical circuit that was not de-energized and fell from the ladder. Causes of action for personal injuries were asserted against the defendant, 222 Broadway, LLC {"222 Broadway"), owner of the premises, Jones Lang, the property manager and Lime, the contractor retained to perform the lighting renovation/retrofit job and to manage sub-contractors engaged in the project under Labor Law §240(1), Labor Law §241{6), and Labor Law §200/common law negligence. 7. The result reached in the court below is as follows: The court below granted the motion of the defendants, 222 Broadway, Jones Lang and Lime, to dismiss plaintiffs claims against them and denied plaintiff's motion for summary judgment on liability under Labor Law §240(1) and Labor Law §241(6). 8{a) This appeal seeks reversal or modification under the following grounds: (i) That the court below erred, on the facts and the law, in denying plaintiff's motion for summary judgment against the defendants, 222 Broadway, Jones Lang and Lime, under Labor Law §240(1) and Labor Law §241(6) and, effectively, dismissing plaintiff s action. Although the court below correctly noted that the record establishes that the ladder provided to the plaintiff was inadequate for the task of preventing his fall when he came into contact with the live electrical wire, and was the proximate cause ofhis injury (citing Vukovich v. 1345 Fee. LLC, 61 A.D.3d 533, I •' Dept. 2009), the court below erred in failing to appreciate that the defendants, 222 Broadway, Jones Lang and Lime, had a non-delegable duty to the plaintiff to assure that the work was performed in accordance with Labor Law §240(1) as well as Labor Law §241(6). The court below erroneously held that said defendants had delegated all responsibility for the work to plaintiff's employer and, therefore, could not be held liable under Labor Law §240(1) or Labor Law §241(6). The non-delegable duty under Labor Law Labor Law §240(1) and Labor Law §241(6) persisted even after Lime subcontracted the actual lighting renovation/retrofit work to plaintiff's employer, Knight, whether or not the defendants exercised supervision, direction or control over plaintiff's work. See, e.g., Ross v. Curtis-Palmer Hydro-Electric Co. , 81 NY 2d 494, 502 (1993); Gordon v. Eastern Railway Supply Inc., 82 NY 2d 555, 560 (1993); Russin v. Picciano & Son, 54 NY 2d 31 1, 317-318 (198 1); Rizzo v. Hellman Electric Cow., 281 AD 2d 258 (1st Dept. 2001 ). (ii) Plaintiff does not challenge the dismissal of his claims under Labor Law §200/common law negligence. 8(b) No other Notices of Appeal from the subject Decision and Order have been filed. Dated: New York, New York Apri19, 2014 Respectfully submitted, ARYE, LUSTIG & SASSOWER, P.C. Attorneys for Plaintiff JUSTIN NAZARIO 20 Vesey Street, New York, Ne (212) 732-4 To: LAWRENCE, WORDEN, RAINIS & BARD, P.C, Attorney for Defendants/Third-Party Plaintiffs/ Second Third-Party Plaintiff/Third Third-Party Plaintiff 222 BROADWAY, LLC JONES LANG LASALLE AMERICAS, INC. 225 Broadhollow Road, Suite #lOSE Melville, New York, 11747 (631)694-0033 CERUSSI & SPRING Attorneys for Defendant LIME ENERGY CO. One North Broadway, 11th Floor White Plains, NY 10601 (914)948-1200 WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP Attorneys for Third-Party Defendant/ Second Third-Party Defendant and Third Third-Party Defendant KNIGHT ELECTRICAL SERVICES CORP. 150 East 42nd Street New York, NY 10017 (212) 490-3000