The opinion of the court was delivered by: George B. Daniels, United States District Judge
MEMORANDUM OPINION AND ORDER
This is an action by plaintiff, Jose Ramon Palen, against defendant I.T.W. Mortgage Investments III, Inc. ("ITW"), the owners of the building where plaintiff sustained personal injuries, and co-defendant Corporate interiors, Inc. ("Interiors"), the general contractor hired by ITW, for violations of sections 240, 241, and 200 of the New York Labor Law. ITW has also filed cross-claims against co-defendant interiors for contractual indemnification and breach of contract for failure to procure insurance. Presently before this Court is plaintiffs motion for partial summary judgment on the issue of liability pursuant to Labor Law section 240 against both defendants. Defendant ITW has moved for summary judgment dismissing plaintiffs allegations that ITW violated Labor Law sections 200, 241, and 240. Defendant ITW has also moved for summary judgment on its cross-claims against co-defendant Interiors for contractual indemnification and breach of contract for failure to procure insurance.
It is undisputed that on September 2, 1997, a contract was entered into between ITW and the general contractor, Interiors. Pursuant to the terms of the contract, Interiors was hired to complete a renovation of office space in a building owned by ITW. Interiors then contracted with Albert Pearlman, Inc. ("Pearlman"), plaintiffs employer, to do the painting.
On October 2, 1997, plaintiff was assigned by his employer to paint on the 10th floor of the building described above. The painting being done on that floor was in connection with the extensive office construction and renovation then under way. Plaintiff was working alone in the room. The only equipment he had been issued was a five foot wooden "A" frame ladder. The room had a window frame which was also to be painted. Directly in front of the window and under the window sill was a radiator, three feet high. The radiator, which had a cover, extended two to three feet into the room. Plaintiff extended the feet of the ladder and placed the fully extended ladder next to the radiator. He then climbed the ladder and stepped from the ladder onto the radiator cover in order to paint the window frame. Rather than stand on the ladder and lean over the radiator to paint the window, plaintiff stood on the radiator itself, using it as a work platform. When he finished painting the frame, plaintiff stepped back onto a rung of the ladder from the radiator cover. Before he could climb down, the ladder tilted when he transferred his weight to it from the radiator. He and the ladder fell to the floor. Plaintiff landed heavily on his right shoulder, sustaining injuries.
Plaintiff contends that the ladder he used was not secured or tied to any stable structure to prevent it and him from falling. Plaintiff argues that the ladder did not come with rubber safety guards on its feet to prevent slipping. Nor was any assistance provided in holding the ladder while plaintiff stabilized himself.
Defendant ITW contends that because they did not exercise supervision, direction or control over plaintiff, they are exempt from Labor Law sections 200, 241, and 240. They also contend that they should be granted summary judgment on their cross-claim for contractual indemnification as well as breach of contract for co-defendant interiors' failure to procure insurance.
Defendant Interiors has not responded directly to plaintiff's motion. It has, however, responded to defendant ITW's motion, asserting that summary judgment should be denied on ITW's cross-claims because a genuine issue of material fact exists as to whether ITW's negligence was a cause of plaintiffs accident. interiors points to plaintiff's deposition testimony in which plaintiff describes the room's floor as "not very well level." (Headley Affirm. at 2). Interiors argues that the floor's unevenness was a structural defect in ITW's building which existed prior to the contract between ITW and interiors, and that this unevenness contributed to plaintiffs accident.
Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts, inferences, and ambiguities must be viewed in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the moving party meets his burden, the nonmoving party has the burden of presenting "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586.
Plaintiff argues that he is entitled to summary judgment on the issue of liability against both ITW and interiors. To obtain summary judgment on the issue of liability under section 240(1) of New York's Labor Law*fn1 a plaintiff must show "(1) that the statute has been violated as a matter of law; and (2) that this violation was the proximate cause of plaintiffs injuries." Gomez v. Preferred Rentals, 1997 WL 749389, at *3 (S.D.N.Y. Dec. 3, 1997). Generally, the lack of, or defect in, a safety device establishes a violation of the statute. Id. of course, the plaintiff must also show that the statute applies. See Morales v. Northwest Airlines, Inc., 1996 WL 556986, at *3 (S.D.N.Y. Oct. 1, 1996). Section 240 imposes absolute liability on owners and general contractors for any breach of this section that is the proximate cause of the plaintiffs injuries, regardless of the plaintiff's contributory negligence. Rocovich v. Consol. Edison Co., 583 N.E.2d 932, 934 (N.Y. 1991). Further, the duty of the owner or general contractor is nondelegable, and that party may be found liable even though it exercised no supervision or control over the work site. Rivera v. K & B Furniture Co., 753 N.Y.S.2d 82, 82 (App. Div. 2003).
In order for plaintiff to prevail on summary judgment on the issue of liability under section 240, he must first prove that the statute has been violated as a matter of law. In Rocovich, the leading case dealing with the nature of the occupational hazards afforded the absolute protection of section 240(1), the Court of Appeals addressed the types of hazards contemplated by section 240(1):
The contemplated hazards are those related to the
effects of gravity where protective devices are called
for either because of a difference between the
elevation level of the required work and a lower level
or a difference between the elevation level where the
worker is positioned and the higher level of the
materials or load being hoisted or secured.
583 N.E.2d at 934.
It is because of the particular hazards of working in these special circumstances that workers are given the exceptional protection provided by section 240(1). See id. In the present case, plaintiff was painting a window frame which was at a higher elevation than the floor. The work he was ...