DECISION AND ORDER
O. PETER SHERWOOD, J.
In an action to recover damages for personal injuries upon, inter alia, an alleged violation of New York Labor Law § 240 (1), plaintiff moves, pursuant to CPLR § 3212, for partial summary judgment against defendants The Port Authority of New York and New Jersey (the "Port Authority") and Bovis Lend Lease, LMB ("Bovis") on the issue of liability under Labor Law § 240 (1).
On December 8, 2008, the date of the accident at issue, plaintiff, a journeyman ironworker employed by non-party Cornell Steel ("Cornell"), was working as a member of a decking crew on the erection of what was then called the World Trade Center Memorial, and which is now called the National September 11th Memorial and Museum, still under construction, in Manhattan. The unfinished memorial is to consist of an eight-acre plaza containing a museum, as well as two massive pools where the twin towers once stood, with 30-foot waterfalls and the names of victims inscribed on parapets surrounding the pools. Bovis is the general contractor on the project, and the Port Authority owns the property.
Plaintiffs accident took place at approximately 7:30 A.M., as he was ascending an extension ladder in order to reach a top-derrick floor level, where he was going to "spread deck, " or lay floor beams (Plaintiffs Deposition, at 29-30, annexed as Exhibit "3" to Affirmation of David H. Mayer, Esq. in Support of Motion [Mayer Affirm.]). As he was trying to transfer from the ladder to the derrick floor, plaintiff slipped and fell 21 feet, sustaining injuries to various parts of his body, including his feet, which he initially landed on, before falling onto his side (id. at 65-69). As he shifted his weight to transfer to the floor, plaintiff testified that the left side of the ladder swung back, or reared, causing him to lose his balance and fall to the floor below (id).
Both plaintiff and Bovis's site safety manager, Omar Jackson ("Jackson"), testified that the ladder was tied or secured to the derrick floor on the upper-right side of the ladder, but that the upper-left and bottom portions of the ladder were not tied to anything (Plaintiffs Deposition, at 72; Jackson Deposition, at 61, annexed as Exhibit "2" to Mayer Affirm.). Jackson testified that while the ladder was not tied to anything on the bottom, its feet were "shoved between the corrugated decking" (Jackson Deposition, at 61).
Jackson testified further that it was Bovis's policy to use stair towers on the project, instead of extension ladders, as access points between floors, in order "to promote fall prevention, " as "[i]t's safer to access a stair tower from one elevation to the other as opposed to a ladder" (id. at 66). However, Jackson testified that it was Cornell's responsibility to build the stairs, and "Cornell didn't supply the stair towers as expeditiously as they were supposed to" (id. at 64). At the time of his fall, plaintiff was wearing a harness and lanyard, but no testimony has been submitted as to whether plaintiff had hooked the lanyard to anything (Plaintiffs Deposition, at 146-147).
Plaintiff testified that his foreman, Brendan McShane ("McShane"), witnessed his accident (id. at 71), but no deposition testimony or affidavit from McShane is submitted with the motion. Plaintiff does submit an incident report created by Bovis, which lists McShane as a witness, and briefly describes the accident without reference to any ladder movement, indicating that plaintiff fell after he "lost his footing" (Incident Report, at 1 annexed to Mayer Affirm, as Exhibit "4").
Plaintiffs complaint alleges that the Port Authority, Bovis, and defendant Phoenix Constructors, Joint Venture ("Phoenix") are liable to him pursuant to common-law negligence, as well as Labor Law §§ 200, 240 (1) and 241 (6).
Plaintiff, in an affirmation from counsel, withdraws all claims against Phoenix, as it was brought into the action mistakenly (see Mayer Affirm.¶ 4). In support of his motion for partial summary judgment against the Port Authority and Bovis on the issue of their liability under Labor Law § 240 (1), plaintiff contends that he has made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the ladder was insufficient to protect him from his fall.
In joint opposition, the Port Authority and Bovis submit an affidavit from Jackson, Bovis's site safety officer. Jackson, who did not witness the accident, but heard it from the floor below and came to the scene while plaintiff was still lying on the floor, states in his affidavit that, while he was still with plaintiff, he "observed that the feet of the ladder remained wedged into the corrugated decking where they were placed to secure it" (Jackson Affidavit, ¶¶ 8-9). Based on this observation, Jackson concludes that "[t]he ladder could not have moved or swung as [plaintiff] now claims" and that "[i]f the ladder did move or swing, the bottom feet of the ladder would have had to come out of the cells and would have been noticeable upon my inspection" (id., ¶¶ 15-16). In addition, Jackson states that "the use of ladders as access was safe as long as the ladders were properly secured, " and that "it is normal practice to tie only one side of a ladder to a post" (id., ¶¶ 3, 12).
The Port Authority and Bovis also submit an affidavit from John Coniglio ("Coniglio"), a construction safety consultant, who reviewed the depositions of plaintiff and Jackson and concluded that "the ladder was in fact properly secured" and that "[w]hile [plaintiff] indicated that the ladder 'reared back on me' there is no explanation for the ladder movement other than his own personal use and method of exiting the ladder." Coniglio does not expound on what plaintiff did or failed to do which caused his accident.
Relying on the affidavits of Jackson and Coniglio, the Port Authority and Bovis argue that there are issues of fact precluding summary judgment with respect to whether the ladder provided proper protection to plaintiff and ...