Opinion
Index No. 514256/2019 Motion Seq. Nos. 7 8
01-16-2024
PATRICIA BIDO DE LOPEZ, Plaintiff, v. 234 DECATUR STREET LLC, and MASTERPIECE S.A. CORP., Defendants.
Unpublished Opinion
DECISION/ORDER
HON. DEBRA SILBER, J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of these motions for summary judgment.
| Papers | NYSCEF |
| Notice of Motion, Affirmation and Exhibits Annexed........ | 107-118, 131; 119-124 |
| Answering Affidavits.................. | 132-135,136-144; 126-130 |
| Reply Affidavits..................... | 147-148 |
Upon the foregoing cited papers, the Decision/Order on these motions is as follows:
This is a Labor Law action commenced by plaintiff on June 27, 2019. The accident took place on April 16, 2019, at a construction site located at 234 Decatur Street, Brooklyn, NY. The complaint asserts causes of action premised on violations of Labor Law §§ 240 (1), 241 (6), 241-a, and 200, as well as for common-law negligence. Defendants each answered the complaint and discovery ensued. The case is now on the trial calendar.
In motion sequence #7, plaintiff moves for an order granting her partial summary judgment on her claims under Labor Law §§ 240 (1) and 241 (6). In motion sequence #8, defendant 234 Decatur Street LLC (hereafter "Decatur") moves for an order granting it summary judgment and dismissing the plaintiff's complaint as well as the co-defendant's cross claims. Both defendants have opposed plaintiff's motion, but only plaintiff has opposed Decatur's motion.
While defendant Decatur opposes plaintiff's motion substantively, it also bases its motion on a jurisdictional issue, that the defendant as the property owner is exempt from liability under the homeowner's exemption applicable to Labor Law §§ 240 (1) and 241 (6). In addition, defendant also claims it cannot be liable under Labor Law § 200 or common law negligence as it did not direct or control the means and methods of the work.
The court will address the claim concerning the homeowner's exemption first. Decatur claims that the sole owner of the limited liability company is a woman named Doreen Deleon, who purchased the property in 2017 in the name of the LLC. Counsel avers in his affirmation in support that while it was a four-family when purchased, she "intends" to convert it into a two-family house. He states "She intends to convert the third and fourth floors into one unit for Nasiline or the possibility of another family member living within the Brownstone" [Doc 130 ¶14]. The only items submitted in support of this motion are three EBT transcripts, one for each of the three parties. It is not possible to make a prima facie case on this claim with EBT transcripts. Therefore, the court must find that Decatur is not entitled to the homeowner's exception. There is no evidence that Ms. Deleon resides at the premises, nor is there any evidence that she has already or actually "intends' to convert it into a two-family house. As she has failed to eliminate all triable issues of fact on the issue of whether she is entitled to the homeowner's exemption, she cannot obtain summary judgment (see Pawelic v Siegel, 220 A.D.3d 883 [2d Dept 2023]; Parrino v Rauert, 208 A.D.3d 672 [2d Dept 2022]). As the court makes clear in Parrino, "Owners of one- or two-family dwellings are exempt from liability under Labor Law § 241(6) unless they directed or controlled the work being performed (see Bartoo v Buell, 87 N.Y.2d 362, 367, 662 N.E.2d 1068, 639 N.Y.S.2d 778; Khan v Khan, 197 A.D.3d 1165, 1167, 153 N.Y.S.3d 529). The applicability of the exemption turns on whether the site and purpose of the work were connected to the owner's residential use of the property (see Khela vNeiger, 85 N.Y.2d 333, 337-338, 648 N.E.2d 1329, 624 N.Y.S.2d 566; Marquez v Mascioscia, 165 A.D.3d 912, 913, 86 N.Y.S.3d 180). "Where an owner engages in both commercial and residential uses of the property, a determination as to whether the exemption applies must be based on the owner's intentions at the time of the injury." Here, four years after the plaintiff's accident, the property is still currently registered with the City of NY as a four-family multiple dwelling [Doc 128]. Further, the permit from the NYC Department of Buildings that was issued to Masterpiece is for changing a four-family building into a three-family building.
https://hpdonline.nyc.gov/hpdonline/building/231861/overview.
https://a810bisweb.nyc.gov/bisweb/WorkPermitDataServlet?allisn=0003046665&allisn2= 0003021291 &allbin=3047409&requestid=2.
Plaintiff supports her motion with an affirmation of counsel, the pleadings, plaintiff's bill of particulars, a copy of the deed to Decatur, the three parties' EBT transcripts, a copy of the 2017 contract between the defendants, and an affidavit executed by someone with defendant Masterpiece for submission in a separate declaratory judgment action. The court notes that the insurance company won the action and Masterpiece has no insurance for this accident, neither Worker's Compensation nor liability, based on the insurance company's claim that Masterpiece had misrepresented the nature of its business in its application for insurance, thus permitting plaintiff to sue her employer. A copy of the court's decision is at Doc 114.
Plaintiff was deposed on June 21,2021. The deposition was held on Zoom. Plaintiff was provided with a Spanish interpreter. She lives in Brooklyn with her children and is divorced. She came to the U.S. in 2014 from the Dominican Republic. She has a green card. She started working in construction in the summer of 2018 for Masterpiece. A friend who worked there brought her to the job site he was working on, and she was hired. She described her duties as "cleaning; there was taking out the garbage; there was picking up debris; there was bringing over materials; there was breaking walls. Then you have to pick up the debris, then you have to get rid of it. And you have to take in wood deliveries, bring it to wherever it was needed. We would have to sand down doors. All sorts of construction type work" [Doc 122 Page 34-35], She had not taken any classes in construction or safety.
The job site was owned by defendant Decatur and Masterpiece was the general contractor. She worked for Masterpiece as a laborer. The owner, she believes, is Michael Reagan. He does not speak Spanish, and she does not speak English. Her supervisors were Vinny and Wilmo. She was always paid in cash. She had started working at the Decatur project about five months before the accident. She came to work each day wearing a company sweater, jeans, work boots and a company hard hat. She brought her own gloves in case none were available from Masterpiece. They gave her goggles. On the date of the accident, plaintiff arrived in the morning and Wilmo told her to go upstairs to the top floor with paper towels and spray cleaner and to clean the top-floor apartment they had finished work on. He said there was already a ladder in the apartment, and she should use it [id. Page 49]. She complied, and began cleaning, working alone. There was only one ladder on the top floor. There were a number of different ladders used at the building during the work, and they were all owned by Masterpiece. This one was an A-frame ladder, with maybe seven steps. It was lying on the floor in the hallway. She did not need to use the ladder earlier in the day. She had not used this ladder before. After lunch, she was working in the master bedroom and was about to clean the moldings above the closet. She opened the ladder on the bedroom floor and made sure it was locked [id. Page 58]. It appeared old and dirty. She climbed up the ladder to the fifth step and started working. When she leaned to the right, "that's when it felt unstable or started moving around, and it started to come down, and I came down with it" [id. Page 66]. She and the ladder fell to the floor. She fell onto her right side. She got up and was in pain in her back, right shoulder, and right leg. She found Wilmo and told him what happened and that she was going to the hospital [id. Page 87], She went to Jamaica Hospital. There are no photos of the ladder. There were no witnesses to the accident.
Michael Reagan was deposed on July 12, 2022, but testified that he was not at the site at the time of the plaintiff's accident. He visited the site a few times per month [Doc 139 Page 39]. He testified that at the time of plaintiff's accident he was not an owner or an officer of Masterpiece. His title was managing director. He is now a vice-president. He agreed that Masterpiece was the general contractor for the job. He said that it was 90% finished, but not completely finished. The court notes that this could be because their insurance was cancelled, but Mr. Reagan blamed the delay on the Buildings Department. He said he had signed the contract with the owner for the work and acknowledged that it was for almost $600,000. He could not say if plaintiff worked for Masterpiece. He did not know if Masterpiece provided ladders. He claimed there were subcontractors at the job site but could not name any. He also was unable to name any of Masterpiece's employees.
Wilmo Alvarez was deposed on January 26, 2023. This was almost four years after the accident. He was provided with a Spanish interpreter. He said he is a carpenter for Masterpiece and has been employed by them for about ten years. Vinny was the site safety person. On the day of plaintiff's accident, Vinny told him to have her clean the top floor apartment [Doc 138 Page 65]. After plaintiff told him about her accident, he called Vinny, who was not on site. He went to the top floor apartment the day after the accident to look at it, but he could not remember if the ladder was there [id. Page 69], Labor Law § 240 (1)
Labor Law section 240 (1) "requires certain contractors and property owners to provide adequate safety devices when workers engage in particular tasks involving elevation-related risks" (Healy v EST Downtown, LLC, 38 N.Y.3d 998, 999 [2022]), such as risks associated with workers falling from a height and/or with objects falling on workers (see e.g., Wilinski v 334 East 92nd Housing Dev. Fund Corp., 18 N.Y.3d 1, 3 [2011]). As the Court of Appeals cautioned, "[l]iability may... be imposed under the statute only where the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Nicometi v Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 97 [2015] [internal quotation marks omitted; emphasis added], rearg denied 25 N.Y.3d 1195 [2015]). "Consequently, the protections of Labor Law § 240 (1) do not encompass any and all perils that may be connected in some tangential way with the effects of gravity" (id. [internal quotations marks omitted; emphasis in the original]). "Rather, liability remains contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to provide, or the inadequacy of, a safety device of the kind enumerated therein" (id. [internal quotation marks and brackets omitted; emphasis added]). Stated otherwise, Labor Law section 240 (1) is not applicable unless the plaintiff's injuries result from both an elevation-related risk and a statutorily enumerated safety device which was either absent or inadequate.
Here, plaintiff claims the ladder was inadequate, defendants are proper Labor Law defendants, she was performing covered work, and thus she is entitled to summary judgment on her claim under Labor Law 240 (1). The court finds that she makes a prima facie case for summary judgment. In opposition, defendants fail to raise a triable issue of fact to overcome the motion. Defendant Decatur provides solely an affirmation of counsel and copies of the same EBT transcripts. Counsel avers that Wilmo testified that plaintiff did not tell him that she fell from a ladder and therefore there are factual issues. That is not accurate. Wilmo testified that he did not prepare an accident report. He said "she just told me that she had fallen from a ladder or by the ladder, I don't know" [Doc 115 Page 68], This is not a contradiction of the plaintiff's testimony, as he spoke to plaintiff in Spanish, and the word for ladder is the same as the word for stair in Spanish, "escalera."
Defendant Masterpiece also opposes the motion. It provides an attorney's affirmation, the same EBT transcripts, a copy of the application to the NYC Buildings Department showing that the permit was renewed in 2019, a copy of a medical record for plaintiff [Doc 141] which states that plaintiff reported falling on "collapsed stairs." Again, the Spanish word for stair and for ladder is "escalera." Also provided is an affidavit from someone named Brian Miniutti, who states he is an employee of Masterpiece, and that Michael Reagan was the foreman and the person who oversaw site safety [Doc 143 ¶3]. That is certainly not what Mr. Reagan said in his testimony. He says that plaintiff did not fall from a ladder because "not a single individual witnessed plaintiff's alleged fall." He does not say what his role in the project was or what his title is at Masterpiece.
The Second Department's decision in Inga v EBS N. Hills, LLC, 69 A.D.3d 568, 569 [2d Dept 2010] is instructive:
"The plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability on so much of the complaint as alleged that the defendants were in violation of Labor Law § 240 (1) through the submission of his affidavit and deposition testimony, which
demonstrated that the ladder and scaffold failed to afford him proper protection for the work being performed, and that this failure was a proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 803 N.E.2d 757, 771 N.Y.S.2d 484 [2003]; Klein v City of New York, 89 N.Y.2d 833, 835, 675 N.E.2d 458, 652 N.Y.S.2d 723[1996]). The fact that the accident was unwitnessed does not preclude granting summary judgment to the plaintiff (see Klein v City of New York, 89 N.Y.2d at 834-835; Barr v 157 5 Ave., LLC, 60 A.D.3d 796, 797, 875 N.Y.S.2d 228 [2009]; Rivera v Dafna Constr. Co., Ltd., 27 A.D.3d 545, 813 N.Y.S.2d 109 [2006]). In opposition, the defendants failed to raise a triable issue of fact. The defendants did not offer any evidence, other than mere speculation, that undermined the prima facie case or presented a bona fide issue regarding the plaintiffs credibility as to a material fact."Labor Law § 241 (6)
The Court next turns to plaintiff's Labor Law § 241 (6) cause of action. Labor Law § 241 (6) requires building owners and contractors to "provide reasonable and adequate protection and safety" for workers involved in building construction, excavation, or demolition and to comply with safety rules and regulations promulgated by the State Commissioner of Labor (Ross v Curtis Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502, 601 N.Y.S.2d 49, 618 N.E.2d 82). To assert a sustainable cause of action under section 241 (6), a plaintiff "must allege a violation of a concrete specification of the [Commissioner's regulations in the] Industrial Code" (Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 A.D.2d 231, 232, 705 N.Y.S.2d 577). To prevail under this statute, a claimant must demonstrate the existence of an injury sustained in an area where "construction, excavation or demolition work is being performed" (Labor Law § 241 [6]; see Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348, 693 N.E.2d 1068, 670 N.Y.S.2d 816 [1998]), "the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the injury" (Lawyer v Hoffman, 275 A.D.2d 541, 542, 711 N.Y.S.2d 618 [2000]; see St Louis v Town of N. Elba, 70 A.D.3d 1250, 1250, 894 N.Y.S.2d 587 [2010], affd 16 N.Y.3d 411, 947 N.E.2d 1169, 923 N.Y.S.2d 391 [2011]) and that the violation was the proximate cause of the injury (see Auchampaugh v Syracuse Univ., 57 A.D.3d 1291, 1293, 870 N.Y.S.2d 564 [2008]; Shields v General Elec. Co., 3 A.D.3d 715, 718, 771 N.Y.S.2d 249 [2004]).
Plaintiff's attorney relies on one Industrial Code section in the motion, 12 NYCRR 23-1.7. Specifically, counsel states "Section 23-1.7(b)(8) requires that "[a]ll ladders with spreading bases, such as step and trestle ladders, shall be equipped with locking type spreaders to hold such bases rigid when in the open position." Industrial Code § 23-1.7(b)(8) (emphasis added). And under § 23-1.7(e) with respect to A-frame ladders, '[s]uch bracing as may be necessary for rigidity shall be provided for every stepladder. When in use every stepladder shall be opened to its full position and the spreader shall be locked." Id. § 23-1.7(e) (emphasis added). Here, it is unrebutted that Lopez set the Masterpiece ladder, engaged the spreaders, and ascended the ladder to its fifth rung when it began "swaying back and forth" before causing Lopez to fall. This testimony establishes prima facie evidence that Masterpiece's ladder did not comply with two subsections of § 23-1.7(e) because both sections require an A-frame ladder to remain stable with the spreaders engaged" [Doc 108 Page 9].
As the plaintiff makes no affirmative arguments in support of her claims regarding the remaining Industrial Code sections and subsections cited in her bill of particulars [Doc 117] in support of her motion or in opposition to the defendants' motion to dismiss this cause of action, they are deemed abandoned. Defendants are entitled to dismissal of the plaintiff's section 241 (6) cause of action to the extent that it is premised on those sections (see Debennedetto v Chetrit, 190 A.D.3d 933, 936 [2d Dept 2021]; Pita v Roosevelt Union Free Sch. Dist., 156 A.D.3d 833, 835 [2d Dept 2017]).
With regard to the sections plaintiff incorrectly cites as being in §23-1.7, the court finds that plaintiff fails to make a prima facie case for summary judgment. The language she quotes is from 23-1.21(b)(8) and 23-1.21 (e)(2). It is noted that plaintiff's bill of particulars cites "23-1.21 (a)(b)(c)(d)(e)." As there are no photographs, the ladder was not preserved, and plaintiff could not say at her deposition if it was defective, plaintiff's counsel is totally speculating in claiming that plaintiff has established that the spreaders did not lock properly. Further, Sections 23-1.21 (b)(8) and 23-1.7(e)(2) are inapplicable to this accident, as they only apply to step and trestle ladders, not A-frame ladders. The court finds that defendant Decatur makes a prima facie case for summary judgment dismissing plaintiff's cause of action under Labor Law 241 (6). Plaintiff does not overcome it and raise any issues of fact that require a trial. In fact, the opposition affirmation [Doc 126] makes no mention of any Industrial Code sections whatsoever.
Labor Law §200 and common law negligence
Labor Law § 200 states, in applicable part:
"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment and devices in such places shall be so placed, operated, guarded and lighted as to provide reasonable and adequate protections to such persons."Labor Law § 200 codifies the common-law duty of an owner, general contractor and their agents to provide workers with a safe place to work (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352 [1998]; Comes v New York State Elec. &Gas Corp., 82 N.Y.2d 876, 877 [1993]; Lombardi v Stout, 80 N.Y.2d 290, 294 [1992]; Ferrero v Best Modular Homes, Inc., 33 A.D.3d 847, 850 [2006]; Brown v Brause Plaza, LLC, 19 A.D.3d 626, 628 [2005]; Everitt v Nozkowski, 285 A.D.2d 442, 443 [2001]; Giambalvo v Chemical Bank, 260 A.D.2d 432, 433 [1999]). This duty "applies to owners, contractors, or their agents who exercise control or supervision over the work, or either created the allegedly dangerous condition or had actual or constructive notice of it" (Yong Ju Kim v Herbert Constr. Co., 275 A.D.2d 709, 712 [2000], citing Russin v Picciano &Son, 54 N.Y.2d 311 [1981]; Lombardi, 80 N.Y.2d at 294-295; Jehle v Adams Hotel Assocs., 264 A.D.2d 354 [1999]; Raposo v WAM Great Neck Assn. II, 251 A.D.2d 392 [1998]; Haghighi v Bailer, 240 A.D.2d 368 [1997]). "An implicit precondition to this duty 'is that the party charged with that responsibility have the authority to control the activity bringing about the injury'" (Giambalvo v Chemical Bank, 260 A.D.2d 432, 433 [1999], quoting Comes, 82 N.Y.2d at 877 and Russin, 54 N.Y.2d at 317). Labor Law § 200 and common-law negligence liability "will attach when the injury sustained was a result of an actual dangerous condition, and then only if the defendant exercised supervisory control over the work performed on the premises or had notice of the dangerous condition which produced the injury" (Sprague v Peckham Materials Corp., 240 A.D.2d 392, 394 [1997], citing Seaman v Chance Co., 197 A.D.2d 612 [1993]).
"Cases involving Labor Law § 200 generally fall into two categories: those where workers were injured as a result of dangerous or defective conditions at a worksite and those involving the manner in which the work was performed" (Villada v 452 Fifth Owners, LLC, 188 A.D.3d 1292, 1293 [2020], citing Chowdhury v Rodriguez, 57 A.D.3d 121, 128 [2008] and Ortega v Puccia, 57 A.D.3d 54, 61 [2008]). Under the "manner of work" analysis, "[liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those who exercise control or supervision over the work" that either was performed by plaintiff or produced the injury (Aranda v Park East Constr, 4 A.D.3d 315, 316 [2004], citing Lombardi v Stout, 80 N.Y.2d 290, 295 [1992]). The second category mirrors ordinary premises liability principles with respect to hazards (cf. Azad v 270 5th Realty Corp., 46 A.D.3d 728, 730 [2007] ["(w)here a plaintiffs injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, an owner (or its agent) may be held liable in common-law negligence and under Labor Law § 200 if it had control over the work site and either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident"]).
Here, plaintiff has no viable claim against Decatur, and thus Decatur is entitled to dismissal of plaintiff's common-law negligence and Labor Law § 200 causes of action. Plaintiff's own testimony regarding how the accident occurred demonstrates that the accident did not occur as the result of a dangerous or defective property condition, but rather, was the result of Masterpiece's means and methods of performing the work (see Przyborowski v A&M Cook, LLC, 120 A.D.3d 651,652-653 [2d Dept 2014]; Ortega v Puccia, 57 A.D.3d 54, 61-63 [2d Dept 2008]; cf. Seem v Premier Camp Co., LLC, 200 A.D.3d 921, 924-925 [2d Dept 2021]; Chowdhury v Rodriguez, 57 A.D.3d 121, 129-130 [2d Dept 2008]). Where the plaintiff's injuries arise from the manner in which the work is performed, "there is no liability under the common law or Labor Law § 200 unless the owner or general contractor exercised supervision or control over the work performed" (Carranza v JCL Homes, Inc., 210 A.D.3d 858, 860 [2d Dept 2022], quoting Cun-En Lin v Holy Family Monuments, 18 A.D.3d 800, 801 [2d Dept 2005]; see Barreto v Metropolitan Transp. Auth., 25 N.Y.3d 426, 435 [2015]; Valencia v Glinski, 219 A.D.3d 541, 545 [2d Dept 2023]). Moreover, under a methods and manner of work theory of liability, "no liability will attach to the owner solely because it may have had notice of the allegedly unsafe manner in which work was performed" (Dennis v City of New York, 304 A.D.2d 611, 612 [2d Dept 2003]; see Comes v New York State Elec. & Gas Corp., 82 N.Y.2d 876, 878 [1993]; Cody v State of New York, 82 A.D.3d 925, 927 [2d Dept 2011]; Ortega, 57 A.D.3d at 61; Ferrero v Best Modular Homes, Inc., 33 A.D.3d 847, 851 [2d Dept 2006], Iv dismissed 8 N.Y.3d 841 [2007]).
Here, the plaintiff's testimony demonstrates that Decatur did not provide the ladder at issue or provide plaintiff with instructions relating to the performance of the work. Ms. Deleon was asked if Decatur had supplied any ladders to Masterpiece, or any other tools or equipment, and she said "no" [Doc 123 Page 60], Wilmo testified that Masterpiece provided the ladders, and that they were inspected every morning by Vinny or by himself before they began work [Doc 115 Page 51-52]. He testified that there were no other employees of Masterpiece who inspected the equipment [id]. This is sufficient to demonstrate, prima facie, that Decatur did not supervise or control the work at issue (see Wilson v Bergon Constr. Corp., 219 A.D.3d 1380, 1383 [2d Dept 2023]; Kefaloukis v Mayer, 197 A.D.3d 470, 471 [2d Dept 2021]; Lopez v Edge 11211, LLC, 150 A.D.3d 1214, 1215-1216 [2d Dept 2017]; Przyborowski, 120 A.D.3d at 652-653; Ortega, 57 A.D.3d at 61-63; cf. Chowdhury, 57 A.D.3d at 129-130). Plaintiff's opposition affirmation As plaintiff has failed to demonstrate the existence of an issue of fact with respect to Decatur's supervision and control of the work, Decatur is entitled to dismissal of plaintiff's common-law negligence and Labor Law § 200 causes of action.
Conclusions of Law
Based on the foregoing, and after oral argument on the record, it is
ORDERED that the plaintiff's motion (motion sequence number 7), for summary judgment on her claim under Labor Law § 240 (1) is granted; and it is further
ORDERED that the plaintiff's motion (motion sequence number 7), for summary judgment on her claim under Labor Law § 241 (6) is denied; and it is further
ORDERED that the branch of defendant's motion for summary judgment (MS #8) dismissing plaintiff's Labor Law § 240 (1) cause of action is denied; and it is further
ORDERED that the branch of defendant's motion for summary judgment (MS #8) dismissing plaintiff's Labor Law § 241 (6) cause of action is granted; and it is further
ORDERED that the branch of defendant's motion for summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence causes of action is granted, and these claims are dismissed; and it is further
ORDERED that the branch of defendant's motion for summary judgment dismissing plaintiff's Labor Law § 241-a cause of action is granted without opposition; and it is further
ORDERED that the branch of defendant's motion for summary judgment dismissing co-defendant Masterpiece's cross claims is granted without opposition, and these claims are dismissed.
This shall constitute the decision and order of the court.