In August 2001, defendant Robert Kellerman (Kellerman) contracted to purchase from defendant Sho Mobile Home Brokers, Inc. (SHO) a two-story modular home to be erected on property Kellerman owned in Bolton Landing, New York. Under this agreement, Kellerman was responsible for installing the foundation for the modular home, and SHO was responsible for [*2]arranging delivery of the modular home, setting its four sections by crane on the foundation, and then completing all necessary "finish" work to ready the house for occupancy. In turn, SHO ordered the modular from defendant Bill Lake Homes Construction Corp. (Lake). On May 29, 2002, the modular home was completed at Lake's manufacturing facility in Sprakers, New York and SHO paid Lake and arranged for its delivery to the building site. SHO hired Brian Smith Construction Co. (Smith) both to assist in "setting" the four sections on the foundation and to perform all "finish" work. The "finish" work included permanently installing between the first and second floors of the house the top section of an "L-shaped" stairway. Lake had built both sections of stairs and permanently installed at its factory the bottom section and the landing and, according to Lake and not disputed, the top section of stairs, six feet in length, was placed flat on the landing and screwed into the landing to immobilize that top section during transport. According to Lake and also not disputed, the stairs were to be permanently affixed onsite by the "finish" contractor.

On July 1, 2002, Smith had two employees working on the project, plaintiff Richard J. Milanese, III (Milanese) and Eugene Howe (Howe). According to Milanese, after working with Howe on the first floor during the morning of July 1, 2002 and intending to go to the second floor, Milanese climbed the first section of stairs to the landing and noted that thetopsection leading to the second floor was in place and appeared "good to walk up". During his ascent, the top section collapsed, and it and he fell approximately 18 feet to the concrete floor of the basement. Plaintiff fractured his right ankle and foot and required surgery and hospitalization. A subsequent infection of plaintiff's ankle necessitated more surgery and hospitalization.

In this action, plaintiff alleges against all defendants a common law negligence cause and statutory causes of action under Labor Law § § 200, 240 (1) and 241 (6). Each defendant moves for summary judgment dismissing the complaint and all cross claims, and plaintiff cross-moves for summary judgment against defendants SHO and Lake to establish as a matter of lawtheir liability for causing the accident. Additionally, in plaintiff's attorney's supporting affidavit, plaintiff requests leave to amend the complaint to add against defendants SHO and Lake a cause of action in strict products liability.

A motion to amend must be accompanied by a copy of the proposed amended pleading, so that the adversary and the court can determine exactly what changes or additions are proposed. see Credit Alliance Corp. v Arthur Andersen & Co., 66 NY2d 812 (1985); Loehner v Simons, 224 AD2d 591 (2nd Dept 1996); Barry v Niagara Frontier Transit Auth., 38 AD2d 878 (4th Dept 1972). More importantly, the movant must offer some evidence that the proposed cause of action has merit. Aiello v Manufacturers Life Ins. Co., 298 AD2d 662 (3rd Dept 2002), lv denied 99 NY2d 575 (2003); Krouner v Travis, 290 AD2d 917 (3rd Dept 2002). Other than one casual statement in plaintiff's counsel's affidavit proposing to add a strict products liability claim, the cross motion does not further address the claim or the underlying factual basis for such a claim and does not include a proposed amended complaint. Thus, plaintiff's motion to amend the complaint is denied, without costs.

The court's role in adjudicating motions for summary judgment is issue identification, not [*3]issue resolution. Speller v Sears, Roebuck & Co., 100 NY2d 38, 44 (2003). Provided the movant establishes by competent and admissible evidence a prima facie entitlement to judgment, Connor v Tee Bar Corp., 302 AD2d 729 (3rd Dept 2002), the opponent, to avoid dismissal, must demonstrate the existence of material triable issues of fact by "affirmative proof to demonstrate that the matters are real and capable of being established upon a trial". Nelson v Lundy, 298 AD2d 689, 690 (3rd Dept 2002). Evidence, not speculation or supposition, is needed to demonstrate a triable issue. Vogel v Dunn, 276 AD2d 977, 979 (3rd Dept 2000). The facts must be viewed in the light most favorable to the party opposing summary judgment, here the plaintiffs on the defendants' motions and the defendants on the plaintiff's cross motion. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37 (2004). Yet, in so doing, the court need not "ferret out speculative issues to get the case to the jury'". Andre v Pomeroy, 35 NY2d 361, 364 (1974).

In his papers, plaintiff expressly states he is not opposing any aspect ofKellerman's motion. In any event, it is undisputed that Kellerman, though responsible for installing the foundation, played no role whatsoever in the offsite fabrication or onsite assembly or the finish work of the modular home. There is no evidence to support any negligence claim, common law or statutory against Kellerman. Additionally, Kellerman correctly claims he is entitled to the specific exemption from liability under Labor Law § § 240 (1) and 241 (6) for owners of one family dwellings who do not direct or control the work. The one family statutory exemption applies here even though Kellerman did perform some of the construction work. see Clark v Mann, 280 AD2d 866 (3rd Dept 2001) [Fact that property owner hired contractors and scheduled work and personally performed some construction does not strip him of the single-family dwelling exemption]; accord Crowingshield v Kim, 19 AD3d 975 (3rd Dept 2005). Lastly, defendants SHO and Lake fail to offer any factualization which demonstrates that their cross claims for contribution against Kellerman have merit.

Defendant's Kellerman's motion is granted and plaintiff's complaint and defendants' cross claims against him are dismissed, all without costs.

It is undisputed that once Lake had fabricated the modular home components, its involvement in the project ended and SHO became responsible, under its agreement with Kellerman, once again, to transport the modular home to the building site and to assemble it and complete all work necessary to make it suitable for occupancy. It is undisputed that the top section of the stairway collapsed beneath plaintiff's weight, not because there was a design or construction defect in it when it left Lake's factory, but rather because it was improperly installed after it had been repositioned above the landing sometime after the home had been delivered to the site. Further, SHO through its president, Richard Polak, conceded that "setting" the staircase was part of its obligation to perform "finish" work and that SHO, as it did with all its modular home projects, hired Smith to do that work.

Labor Law § 200 "codifies the common law duty of a landowner and general contractor to furnish workers with a reasonably safe place to work". England v Vacri Constr. Co., 24 AD3d 1122 (3rd Dept 2005). Lake correctly contends that it was not the owner or general contractor for the project within the meaning of Labor Law § 2000, and thus it owed no duty to plaintiff under [*4]Labor Law § 200. Moreover, under the plaintiff's common law negligence claim, Lake posits, even if it owed a duty to plaintiff arising from its fabrication of the stairs, that plaintiff offers no evidence that Lake was negligent in its fabrication or that it had any obligation to reposition or install the top section of the stairs at the Bolton Landing site.

In opposition, and citing Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 140 (2002), plaintiff contends that inasmuch as Lake delivered to SHO the home with the top section of the stairway not permanently positioned and anchored, Lake "launched a force or instrument of harm" thereby creating a duty of care to plaintiff. Plaintiff's argument fails simply because it ignores the fact that the top section was intentionally and temporarily affixed to immobilize it during shipping of the modular home and was intended to be repositioned and then permanently installed and anchored, once again, not by Lake, but by SHO during the "finish" phase. Plaintiff offers no evidence sufficient to demonstrate an issue of fact that this construction method created or aggravated a dangerous condition which precipitated his fall. Its contention rests upon conjecture and speculation

Plaintiff's common law negligence and Labor Law § 200 claims against Lake lack merit and Lake's motion to dismiss plaintiff's first and second causes of action is granted, without costs.

Next, the Labor Law § 240 (1) and 241 (6) claims against Lake. To establish Lake's liability under either of the statutes, plaintiff must prove that Lake was a contractor or the agent of a contractor or owner in the erection of the modular home, and if plaintiff does, then Lake couldbe found liable under the two statutes regardless of whether it actively participated in the onsite "finish" process. Again, it is undisputed Lake was the offsite fabricator of the modular home and once it delivered at its factory the sections to SHO, its role in the project ended; it had no onsite responsibilities, and it was not responsible for or in control of the finish work of Smith or any aspect of SHO's performance. see Mills v Niagara Mohawk Power Corp., 262 AD2d 901 (3rd Dept 1999) [Labor law liability does not lie against contractor who installed utility poles because its work had been fully completed when worker was injured while transferring wiring from old to new poles]; Musselman v Charles A. Gaetano Constr. Corp., 285 AD2d 868 (3rd Dept 2001) [Prime contractor, as opposed to a general contractor, not responsible for work of subcontractors which it does not actually supervise or control]; Cook v Thompkins, 305 AD2d 847 (3rd Dept 2003) [No evidence presented that contractor who excavated foundation for modular home was a "general contractor" to impose liability for injuries to worker employed by another contractor owner hired to pour the foundation]. In his opposition, plaintiff fails to specifically address Lake's liability under these sections, and offers as his only proof regarding Lake's status paperwork Kellerman had filed with the Town of Bolton to obtain the municipal permits necessary to place the modular on the property describing Lake as "contractor". Although the Labor Law is to be construed liberally to protect workers like plaintiff on construction sites, Hodges v Boland's Excavating and Topsoil, Inc., 24 AD3d 1089 (3rd Dept 2005), under the facts here Lake is simply not a contractor or agent of Kellerman or SHO subject to liability under either Labor Law § § 240 (1) or § 241 (6).

Plaintiff's third, fourth and fifth causes of action against Lake lack merit and defendant's Lake's motion for summary judgment dismissing those claims is granted, together with any and all cross claims of the co-defendants, without costs. Concomitantly, plaintiff's cross motion [*5]seeking summary judgment in his favor against Lake on his three Labor Law § § 240 (1) and 241 (6) causes of action is denied, without costs.

SHO initially seeks dismissal of plaintiff's complaint contending that, as a retailer which sold the modular structure to Kellerman and which never performed as a contractor, it is not responsible under the Labor Law for plaintiff's accident. SHO's contention that it was merely the "retailer" of the modular home is not supported by any evidence except its own self serving characterization. Though the project did not involve the construction of a single-family dwelling by the traditional "stick built" process, once the sections of the proposed structure had been fabricated and the foundation installed, evidence demonstrates that SHO acted as the project's general contractor. Once again, it was responsible to Kellerman to install the modular components on the foundation and to finish the structure so that it could be occupied legally as a dwelling. It hired the finish subcontractor and was obligated both to pay for and insure that its subcontractor's work was satisfactorily completed. Because of their prior similar dealings, SHO did not give and Smith did not require specific instruction or supervision. As made clear in Polak's testimony, Smith knew what was required of his company and was trusted by SHO to perform appropriately with little, if any, direction. Even if SHO, as its president Richard Polak testified, did not supervise the subcontractor's day to day performance, SHO was nonetheless a contractor since it was required to choose subcontractors and could assert control over the finish work being performed regardless of whether it actually exercised that right. Futo v Brescia Building Co., 302 AD2d 813, 814 (3rd Dept 2003). Thus, SHO falls within the class of parties on construction sites subject to liabilities imposed by the Labor Law. The inquiry then is whether SHO, under these circumstances, is liable under Labor Law § § 240 (1) or 241 (6).

But first, SHO's motion to dismiss plaintiff's common law negligence and Labor Law § 200 claims has merit regardless of his status as a contractor within the meaning ofthe Labor Law, because SHO exercised no actual control over Smith's day-to-day work activities. Jurgens v Whiteface Resort on Lake Placid, L.P., 293 AD2d 924 (3rd Dept 2002). Retention of general supervision over the work of a subcontractor does not suffice either to impose Labor Law § 200 liability or liability under common law, Ryder v Mount Loretto Nursing Home, Inc., 290 AD2d 892 (3rd Dept 2002); Schwab v A.J. Martin, Inc., 288 AD2d 654, 657 (3rd Dept 2000), lv denied 97 NY2d 609 (2002); direct control over the methods or manner of the subcontractor's work is the critical element. Carney v Allied Craftsman General Contractors, Inc., 9 AD3d 823 (3rd Dept 2004). Here, the deposition testimony proves that SHO did not supervise or coordinate the performance of Smith. Rather, the evidence shows that Smith had complete control over the method and manner of the "finish" work his crew performed.

Defendant's SHO's motion to dismiss the plaintiff's first and second causes of action is granted, and plaintiff's cross motion to impose liability against SHO under those claims is denied, without costs.

Now, plaintiff's Labor Law § 240 (1) causes of action. Liability under Labor Law § 240 (1) will not lie when a stairway intended to be permanent collapses because it was not properly or sufficiently anchored or secured in its designated location. The point is that such a stairway is not the functional equivalent of a ladder and is not a safety device within the meaning of Labor Law § 240 (1). Gallagher v Anderson Constr. Corp., 21 AD3d 988 (2nd Dept 2005); Norton v [*6]Park Plaza Owners Corp., 263 AD2d 531 (2nd Dept 1999); Williams v City of Albany, 245 AD2d 916 (3rd Dept 1997), appeal dismissed 91 NY2d 957 (1998); Dombrowski v Schwartz, 217 AD2d 914 (4th Dept 1995); Cliquennoi v Michaels Group, 178 AD2d 839 (3rd Dept 1991); Ryan v Morse Diesel, Inc., 98 AD2d 615 (3rd Dept 1983). The two cases cited by plaintiff, Wescott v Shear, 161 AD2d 925 (3rd Dept 1990) and Magna v Tishman Constr. Corp., 306 AD2d 163 (1st Dept 2003), do not hold otherwise. Both cases involve falls from temporary staircases which are considered the functional equivalent of ladders and thus a safety deviceunder Labor Law § 240 (1).

SHO's motion is granted to the extent that plaintiff's third cause of action under Labor Law § 240 (1) against it is dismissed, and plaintiff's cross motion to impose liability against SHO under the § 240 (1) claim is denied, without costs.

Plaintiff's Labor Law § 241 (6) claim invokes a statute that "imposes a non-delegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety' to persons employed in or lawfully frequenting all areas in which construction...work is being performed". Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 (1998). The predicate for a claim under Labor Law § 241 (6), not a strict liability statute, is a proven violation of a State Industrial Code rule or regulation which imposes a specific, positive command setting a "concrete" safety specification as opposed to a general safety standard. Toffer v Long Island R.R. Co., 4 NY3d 399, 409 (2005); Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY 494, 503 (1993); England v Vacri Construction Corp.,supra ; Olson v Pyramid Crossgates Co., 291 AD2d 706 (3rd Dept 2002).

Plaintiff correctly contends that State Industrial Code 12 NYCRR § 23-1.7 imposes such a concrete safety specification. It requires that hazardous openings on construction sites either be covered or protected by safety railings. Wells v British American Development Corp., 2 AD3d 1141 (3rd Dept 2003); Carpenter v 149 Edison Street, Inc., 269 AD2d 751 (4th Dept 2000); Riley v Stickl Constr. Co., 242 AD2d 936 (4th Dept 1997). The evidence shows that once the top section of the stairway collapsed and dropped to the cellar floor, plaintiff fell through the resulting opening above the landing and most notably, on the rest of his descent to the cellar floor, through a large uncovered and unguarded opening in the first floor deck. By offering proof that this opening in the first floor decking was neither covered nor guarded, the plaintiff has demonstrated that a that a concrete safety specification of § 23.17 was violated. Such an uncovered or unguarded opening demonstrates the existence of a material issue of fact sufficient to defeat SHO's summary judgment motion for dismissal of Labor Law § 241 (6) claim. Mazzu v Benderson Development Co., 224 AD2d 1009, 1011 (4th Dept 1996). It was of sufficient size for plaintiff to fall through it. see Rice v Board of Educ., 302 AD2d 578 (2nd Dept 2003), lv denied 100 NY2d 516 (2003); Catapano v Alston Signaling, Inc., 6 Misc 3d 1020A, 800 NYS2d 343 (Sup Ct, Richmond County, 2005). Plaintiff's claim based on this uncovered opening has merit and is not subject to dismissal on motion.

Indeed, the plaintiff's cross motion for summary judgment establishing SHO's liability as a matter of law under Labor Law § 241 (6) premised on the uncovered opening is granted to the extent that it is determined that SHO violated the aforesaid code by not covering the opening in the first floor deck. However, the balance of plaintiff's claim is denied, all without costs, because a violation of that statute constitutes but "some evidence of negligence", Paoangeli v Cornell [*7]Univ., 296 AD2d 691, 693 (3rd Dept 2002), and there exist other triable issues, including whether such violation was a proximate cause of plaintiff's injury and whether plaintiff's own conduct contributed to the occurrence, which are properly left for the jury. Wells v British American Development Corp., supra .

SHO's motion seeking summary judgment dismissing plaintiff's fourth and fifth causes of action and plaintiff's crossmotion seeking summary judgment establishing SHO's liability on those claims are denied, without costs.

This memorandum shall constitute both the decision and the order of the court. All papers, including this decision and order, are being returned to defendant's SHO's counsel. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

So Ordered.

DATED: March 20, 2006

Ballston Spa, New York

HON. THOMAS D. NOLAN, JR.

Supreme Court Justice