This motion by defendant 160 West 22nd Street, LLC, s/h/a 160 West 22 Street, LLC, ("owner") for summary judgment dismissing the complaint against it or, in the alternative, requiring common law indemnification from Weatherby Construction Corp. ("Weatherby") is granted to the extent that the complaint and all cross-claims against the owner are dismissed.

Georgio Favia ("plaintiff"), an employee of non-party Precise Construction, was allegedly injured when a "just completed" fire-wall made of concrete masonry units fell over on him as he ascended a staircase in a building under construction. Plaintiff brought suit against the above-named defendants claiming that the wall, erected on the ninth floor between two staircases, [*2]should have had bracing or shoring to keep it stable until the mortar securing the units dried; should have been erected in portions, allowing one portion to dry before adding other portions and should not have been built at all until exterior walls were in place to protect the drying firewall against the heavy wind conditions prevalent on the day of the accident. Plaintiff claimed that these failures constituted violations of Labor Law §§ 200, 240(1) and 241(6). He later withdrew his claim under § 240(1). Plaintiff's lawsuit named the owner of the building, the general contractor (Weatherby), the architect, another construction company and an engineer. After completion of discovery, the owner made the instant motion for summary judgment dismissing the complaint against it.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]). Conclusory statements in the affidavit of an expert do not constitute admissible proof (see Zoldas v. Louise Cab Co., 108 AD2d 378 [1st Dept 1985]).

Labor Law § 200 codifies common law and imposes a statutory non-delegable duty on general contractors and owners of property where work is performed to maintain a safe work place for all persons employed on the premises and all others lawfully frequenting the premises (Gasperino v. Larsen Ford, Inc., 426 F2d 1151 [2d Cir 1970]), certiorari denied 400 US 941. For liability to apply, an owner or general contractor must have (1) voluntarily assumed and exercised supervision and control over the methods and tools of the worker, and (2) had notice of the defective or unsafe condition (Comes v. N.Y.S. Electric, 82 NY2d 876 [1993]). "The contractual duty to oversee the performance of work, inspect the work site and ensure compliance with safety regulations does not constitute supervision and control over the subcontractor's methods of work (cites omitted)" (D'Antuono v. Goodyear Tire & Rubber Co. Chem. Div., 231 AD2d 955 [4th Dept 1996]).

Labor Law § 241(6) requires owners, contractors and their agents involved in construction, demolition or excavation to see that the work is performed in compliance with specific safety rules and regulations so as to keep safe all persons employed there or lawfully frequenting the premises. This is a non-delegable duty regardless of whether owners or contractors exercise direct supervision or control over the work performed. However, a plaintiff who claims under this statute must plead a specific section of the Industrial Code that defendant is alleged to have violated (Comes, 82 NY2d 876).

In support of the motion, the owner offered portions of the deposition testimony of plaintiff; Luigi Caiola and Alfred Caiola, managing members of the owner, and Frank Iurato, the former superintendent of Weatherby. Plaintiff testified that he arrived at 7:15 on the morning of the accident and the entire firewall was built by employees of Precise Construction before the lunch break beginning at 11:45. The wall was erected from a base of steel I-beam and contained rebar reinforcement. No external bracing or shoring was placed on the wall to keep it in place. After lunch, plaintiff was carrying two twenty-pound blocks up the staircase and had reached the third or fourth step from the top when the wall fell over on him, fracturing his ankle. Plaintiff testified that he never saw anyone he believed to be an owner on the site and that the plaintiff's [*3]foreman from Precise Construction always instructed him in what to do.

Luigi Caiola testified for the owner that he never entered the job site until after the accident and, then, only to see progress made on the job. Alfred Caiola testified that he visited the site on occasion, but he was not there on the day of the accident. Frank Iurato testified for Weatherby that Alfred Caiola visited the site approximately once a month "to see what was going on", but never gave instructions on how to perform the work. Frank Iurato testified that he coordinated the work of subcontractors and, if he saw an unsafe practice, would speak to the foreman of the particular trade (Deposition of Frank Iurato at 56). He stated that he saw the whole wall go up in one morning and saw no problem with it; "[i]t didn't go up any different than the previous ones" (Id. at 39). The wall had no external bracing; the only bracing he was aware of was the internal rebar (Id. at 41). He climbed the stairs after the wall was up and felt a gust of wind from the north. He turned around and saw that the wall had fallen toward the south. He himself was trained as a bricklayer and had seldom seen a masonry wall needing bracing unless it was "extraordinarily" high, like twenty-five feet (Id. at 42). The subject wall was somewhat less than half that height.

In opposition to the motion, plaintiff offered the affidavit of a safety expert, Kathleen V. Hopkins, who stated that half the wall should have been constructed first and allowed to dry before the second half went up, that exterior walls should have been built first and that, in the absence of exterior walls, the firewall required bracing to protect it from the windy conditions on the ninth and tenth floor of the construction on the day of the accident. Plaintiff argued that the owner is liable under Labor Law § 241(6) because of violations of specific provisions of the Industrial Code that require protective measures for overhead hazards, barricades to keep people away from areas with falling objects and a provision that requires continuous inspection of the "forms, shores and reshores including all braces and other supports during the placing of concrete" (12 NYCRR §23-2.2). Ms. Hopkins stated her opinion that the owners and general contractor did not perform a proper inspection of the wall under the section regarding the "placing of concrete" or provide barricades or an overhead protection on the staircase and were, thus, in violation of the above-mentioned Industrial Code sections.

The owner has demonstrated its entitlement to summary judgment which the plaintiff has not refuted with admissible evidence. Plaintiff offered no evidence to show that the owner supervised or controlled the methods or tools used to do his work or had notice of an unsafe condition. Neither Alfred or Luigi Caiola were present at the construction site on the day of the accident. Plaintiff himself testified that the foreman of Precise Construction instructed him in what to do and plaintiff never saw an owner on the site. Therefore, the owner could not be liable under Labor Law § 200 (see Comes, 82 NY2d 876). Plaintiff's argument that Alfred and Luigi Caiola may have been part owners of Weatherby as well as owners of the building is unavailing to show supervision and control.

Although plaintiff's expert opined that the defendants had violated sections of the Industrial Code, whether those sections are applicable is a matter of law for the court. None of the Industrial Code sections cited by plaintiff can be applied to the facts set forth herein. There is no evidence to indicate that the staircase was an area likely to have falling objects and, thus, in need of overhead protection or barricades. Furthermore, that argument is inconsistent with plaintiff's withdrawal of his gravity-related claim under Labor Law § 240(1). The requirement [*4]for continuous inspection of forms and shoring during the placing of concrete has no application to the erection of walls made of concrete blocks and mortar as a matter of law. Contrary to plaintiff's argument, the fact that the blocks were made of "concrete" does not bring a bricklayers' work under a section designed for the safe pouring of concrete. Since none of the Industrial Code sections cited by plaintiff are applicable to the facts herein, neither the owner nor the general contractor can be found liable under Labor Law § 241(6).

The complaint and all cross-claims against the owner 160 West 22 Street, LLC, are therefore dismissed. In light of that disposition, it is not necessary to reach the owner's request for indemnification against Weatherby.

Movant is directed to serve a copy of this order on the Clerk of Court who shall amend the caption to delete the name of 160 West 22 Street, LLC, as a party defendant.

This constitutes the decision and order of the court.

Dated: April 22, 2004

Bronx, New York

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BETTY OWEN STINSON, J.S.C..