On August 25, 2001, the plaintiff, an employee of a subcontractor hired by Time Warner Cable Inc., allegedly was injured while installing cable equipment. The plaintiff, who worked alone, secured a 26-foot ladder between two utility poles, in order to work on the elevated cable line. After ascending and descending the ladder twice, the plaintiff went up the ladder a third time. While at the top of the ladder, he reached to take a tool out of his belt, and the ladder leaned to the left. The plaintiff released the tool, grabbed on to the cable line and tried to adjust the ladder. However, he failed and the ladder went out from under him toward the left utility pole. The plaintiff was unable to hold on to the cable line and fell to the pavement.

In July, 2003, the plaintiff commenced this action alleging violations of Labor Law §§ 200, 240(1) and 241(6). After issue was joined by a service of an answer by defendants and the completion of discovery, defendants Time Warner Cable Inc./Staten Island Cable and TWC Cable Partners d/b/a Staten Island Cable [Time Warner] moved for summary judgment dismissing the complaint. The plaintiff withdrew the Labor Law § 200 claim in his papers in opposition to the motion and verified this at oral argument of the motion.

Labor Law § 240(1) imposes absolute liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards (see, Misseritti v. Mark IV Constr., Co., 86 NY2d 487, 49-91 [1995]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-01 [1993]; Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513 [1991]). However, section 240 does not give absolution to the plaintiff "when there is no violation and the worker's actions. . . are the sole proximate cause' of the accident (Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 290 [2003]).

Time Warner contends that the section 240 cause of action should be dismissed because the plaintiff was provided with appropriate safety devices -a ladder and a harness and it was the [*2]plaintiff's own conduct - improper placement of ladder, reaching for a tool and failure to use a harness that caused his injury. In opposition, the plaintiff asserts that the ladder was an insufficient safety device. He should have been provided with a bucket truck because he needed to use both hands to work on the cable line. Additionally, the plaintiff sets forth that he was never instructed as to the use of a harness. Accordingly, the plaintiff contends there are triable issues of fact as to proximate cause. The court agrees with the plaintiff that under the circumstances of this case, it cannot be held as a matter of law, that the plaintiff's own conduct was the sole proximate cause of the accident (see, Miano v. Skyline New Homes, Corp., ___AD3d___, 830 NYS2d 257 [2d Dept. Feb. 13, 2007]; Johnson v. Flatbush Presbyterian Church, 29 AD3d 862 [2d Dept. 2006]).

Additionally, that branch of Time Warner's motion to dismiss the Labor Law § 241(6) cause of action must be denied. "A plaintiff asserting a cause of action alleging a violation of Labor Law § 241(6) must allege that a specific and concrete provision of the Industrial Code was violated and that the violation proximately caused his or her injuries (Rosado v. Briarwoods Farm, 19 AD3d 396 [2d Dept. 2005][citations omitted]). In his bill of particulars, the plaintiff alleged that Time Warner violated 12 NYCRR 1.5 and 12 NYCRR 23-1.21[b][4]. Although 12 NYCRR 23-1.5 is an insufficient basis upon which to predicate Labor Law § 241(6) liability (see, Sparkes v. Berger, 11 AD3d 601 [2d Dept. 2004]; Maday v. Gabe's Contracting LLC, 20 AD3d 513 [2d Dept. 2005]), 12 NYCRR 23.1.21 is sufficiently specific to support such cause of action (see, Liu v. Sanford Tower Condominium, Inc. , 35 AD3d 378 [2d Dept. 2006]; Ferrero v. Best Modern Homes, Inc., 33 AD3d 847 [2d Dept. 2006]), and there are triable issues of fact as to whether Time Warner violated this provision of the Industrial Code (see, Johnson v. Flatbush Presbyterian Church, 29 AD3d 862 [2d Dept. 2006]; Halvorsen v. Baybrent Const. Corp., 33 AD3d 862 [2d Dept. 2006])).

Accordingly, it is,

ORDERED that the branch of the motion of defendants Time Warner Cable Inc./Staten Island Cable and TWC Cable Partners d/b/a Staten Island Cable for partial summary judgment on the issue of liability on the cause of action based on a violation of Labor Law § 200 is granted, and it is further,

ORDERED that the branches of the motion of defendants Time Warner Cable Inc./Staten Island Cable and TWC Cable Partners d/b/a Staten Island Cable for partial summary judgment on the issue of liability on the causes of action based on violations of Labor Law §§ 240(1) and 241(6) are denied.

THIS IS THE DECISION AND ORDER OF THE COURT.

EN T E R,

Dated: April 2, 2007

J.S.C.