In Fernandez v. Stockbridge Homes, LLC, 402886/08, NYLJ 1202542556067, at *1 (Sup., NY, January 25, 2012), Stockbridge Homes hired Sanita Construction Company to constructing four single-family homes.  Plaintiff was an employee of Sanita Construction in the process of moving wooden forms that he used to construct a retaining wall.  Plaintiff alleged that he was standing on top of the retaining wall where there were no scaffolds or safety equipment, and that he fell backward to the ground.  Two non-party witnesses testified that there was scaffolding in place on either side of the wall and that plaintiff jumped off the retaining wall.  Stockbridge moved for summary judgment seeking to dismiss the Labor Law 200, 241(6) and 240(1) causes of action asserted against it arguing that it had no control over the plaintiff, that plaintiff did not cite to an applicable industrial code provision, and that plaintiff was the sole proximate cause of his own accident.  The court granted Stockbridge’s motion with respect to the Labor Law 200 and 241(6) causes of action, finding that Stockbridge did not control plaintiff’s work and that the industrial code provision cited applied to the approval and maintenance of certain safety devices that were not actually utilized at the site.  The court denied the motion with respect to Labor Law 240(1) since there was a question of fact as to whether there were scaffolds in place and whether plaintiff fell backward or jumped off the retaining wall.

http://www.newyorklawjournal.com/CaseDecisionNY.jsp?id=1202542556067