I disagree with the majority’s assessment of the “threshold procedural issue,” namely, whether the preclusion order prevented defendant from submitting evidence in support of its summary judgment motion. Instead, I agree with plaintiff that defendant, by its own failure to comply with the conditional preclusion order, should be barred from offering affirmative evidence as to liability, either at trial or on the motion, regardless of the order’s reference to “at trial.” Indeed, the majority acknowledges that allowing defendant to submit its own affirmative evidence on liability in support of its summary judgment motion would “undermine the point of the order by allowing defendant to benefit from the shortcut of summary judgment by use of the same evidence that otherwise would have been barred at trial.” Apparently categorizing evidence as for either plaintiff or the defense, the majority condones defendant’s use of plaintiff’s deposition testimony to support its motion because it was given by plaintiff and it is therefore not defendant’s affirmative evidence. I disagree. The fact that defendant used plaintiffs deposition testimony makes it defendant’s evidence.
The majority grounds its holding on various legal precepts, none of which are dispositive of the issue. Initially, it posits that “a preclusion order does not relieve the plaintiff of the burden of proving its case.” While this precept is true, the majority simply ignores the different burdens of defendant at trial, where it can simply wait for evidence to be introduced by plaintiff, and *14on summary judgment, where it has the burden, as movant, to come forward with evidence in admissible form (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In the context of a summary judgment motion, assuming a defendant establishes its prima facie entitlement to relief, the burden shifts to the plaintiff, not to prove its case, but merely to raise triable issues of fact (.Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Significantly, the burden shifts only if the defendant first establishes its prima facie entitlement. To do so, it must submit papers, including supporting evidence (id.). Here, inasmuch as defendant was precluded from submitting any evidence on liability, in essence, defendant merely submitted a notice of motion and counsel’s affirmation, which are insufficient for summary judgment (see Zuckerman at 563; Di Sabato v Soffes, 9 AD2d 297, 300-301 [1959]). That the preclusion order did not preclude defendant from raising affirmative defenses, such as comparative negligence as the majority notes, is of no moment.
The majority also posits that if the case had gone to trial, the order would not have prevented defendant from moving for a directed verdict based on the evidence presented by plaintiff. However, that is not the posture of this case. In a trial, a preclusion order would not prevent defendant from using any evidence properly introduced by plaintiff. Thus, a trial judge can rule on a directed verdict motion based on the body of evidence before it. Here, however, as noted above, there was no evidence properly put forth in defendant’s moving papers. And, unlike a trial where the plaintiff has the ultimate burden, in the context of a summary judgment motion, plaintiff can simply stay quiet unless defendant has established its prima facie right to summary judgment.
For this reason, the cases relied on by the majority are not on point. In Murphy v Herbert Constr. Co. (297 AD2d 503 [2002]), it was the plaintiff who initially moved for summary judgment. Thus, although the defendant was precluded from presenting any evidence, the court properly ruled on the defendant’s cross motion for dismissal based on the body of evidence that had been properly presented by the plaintiff. Other cases cited by the majority are equally inapposite. In DeSantis v Lessing’s, Inc. (46 AD3d 742 [2007]), the defendant, unlike in the present case, was not precluded from submitting evidence, which it did in the form of the plaintiffs deposition testimony. In Frank v Time Equities (292 AD2d 186 [2002]), a slip and fall case, not only was the defendant permitted to submit evidence, but the plaintiff failed to claim notice of condition (see also Acheson v *15Shepard, 27 AD3d 596 [2006]; Wellington v Manmall, LLC, 70 AD3d 401 [2010]).
Accordingly, in my opinion, the motion court properly declined to entertain defendant’s motion.1
Assuming for the sake of argument that the majority is correct on the “threshold procedural issue,” I agree with its analysis with respect to the Labor Law §§ 200 and 241 (6) claims. With respect to the section 240 (1) claim, however, I concur with the result only inasmuch as there is no statutory requirement that a plaintiff establish that an injury was foreseeable .to prevail on a section 240 (1) claim. Rather, as I stated recently in Vasquez v Urbahn Assoc. Inc. (79 AD3d 493, 498 [2010, dissenting mem]), the plain language of Labor Law § 240 (1) mandates that in covered activity,
“contractors and owners ‘shall furnish’ safety devices to workers (emphasis added). Nowhere is there a requirement that owners and contractors have to supply safety devices only when they divine there is a foreseeable risk of injury in a particular task because of the employee’s relative elevation. Nor ... is there a distinction in the statute between a permanent structure and a temporary structure” or, as the majority seems to be implying in the present case, between a structure and the “surface” of the structure.
The concept of foreseeability in the context of a section 240 (1) case was addressed by the Court of Appeals in Gordon v Eastern Ry. Supply (82 NY2d 555 [1993]), where it explicitly held that a “plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendants’ conduct was foreseeable” (id. at 562 [emphasis added]). In other words, “[i]t is enough that given the inherently dangerous conditions of work sites, it is foreseeable that an owner or contractor’s failure to provide safety devices to workers, as here, may create an injury” (Vasquez at 497 [dissenting mem]).2 The majority, without any statutory support, turns this concept on its head and places the *16burden on plaintiff instead. For this reason, cases such as Jones v 414 Equities LLC (57 AD3d 65 [2008]) and Espinosa v Azure Holdings II, LP (58 AD3d 287 [2008]), relied on heavily by the majority, are legally unsound.
Otherwise, I agree with the majority. Contrary to the defendant’s assertion, the facts indicate that plaintiffs activity was not routine maintenance. Specifically, his testimony set forth that defendant and/or its managing agent Keystone was aware there was a chronic leaking problem which had to be repaired, that it was going to be repaired and that plaintiff was directed to go to the roof for the purpose of commencing the repair operation, where he and his workers would perform the work.
Thus, I agree with the majority that a fair reading of plaintiffs testimony indicates that plaintiffs inspection of the rooftop was a covered activity under Labor Law § 240 (1), rather than routine maintenance, since it was done in furtherance of the repair (Caraciolo v 800 Second Ave. Condominium, 294 AD2d 200, 201-202 [2002] [building engineer’s inspection of a rooftop water tank was a covered activity under Labor Law § 240 (1) rather than routine maintenance, since it was done in furtherance of the repair of an apparent malfunction]). Moreover, as the majority correctly found, plaintiffs injury resulted from an elevation-related hazard even though the roof did not completely cave in (see Dominguez v Lafayette-Boynton Hous. Corp., 240 AD2d 310 [1997]; Gramigna v Morse Diesel, 210 AD2d 115 [1994]), and he was not provided with adequate protection devices. Indeed, under the circumstances, it is not improbable that had plaintiff been provided with roof brackets, toe boards, safety lines, belts or other safety devices, his body would not have collapsed in the manner in which it did, after the roof buckled underneath him. Since it appears that plaintiff was placed at an elevation-related risk (dilapidated roof) and that he was not adequately protected against the dangers of the job, defendant has not established that plaintiff cannot maintain a Labor Law § 240 (1) claim at trial. Accordingly, defendant was not entitled to summary dismissal of the Labor Law § 240 (1) claim.
. Although plaintiff cross-moved for summary judgment, the court declined to entertain that motion as well, finding that it was untimely filed. That portion of the order has not been appealed.
. Accordingly, the plaintiff’s section 240 (1) claim in Gordon was not dismissed by the Court notwithstanding that the injury was the result of an *16unforeseeable accident, that is, the malfunctioning sandblaster trigger (82 NY2d at 562).