Upon the foregoing papers, the motion (No.1734) and cross motion (No. 1823) of defendants the New York City Transit Authority, Staten Island Rapid Transit Operating Authority (hereafter, collectively, "NYCTA") and the City of New York (hereafter "City") are granted, and the complaint is dismissed.

This action was commenced to recover damages for injuries allegedly sustained on December 27, 2000, when plaintiff, a construction worker, "was caused to lose his footing when a loose ballast gave way in an excavation area causing him to fall" ( City's Exhibit "A"). At the time, plaintiff was a foreman in the employ of Granite Construction Northeast, Inc f/k/a Halmar Builders of New York (hereafter "Halmar"), a contractor retained to modernize subway signal equipment. It is undisputed that the City was the owner of the construction site at the time of the accident, and that the NYCTA was responsible for operating and maintaining the subway. At his deposition, plaintiff testified that he was initially standing in a shallow trench on a slope next to the subway tracks where an excavation was taking place. As he stepped out of the trench, plaintiff took hold of a tree stump in order to prevent himself from slipping down the incline. However, the stump "gave way" and he rolled down the incline and was injured (see Plaintiff's EBT, pp 106-108).

In moving and cross-moving for summary judgment on the issue of liability under Labor Law §240(1), defendants maintain that dismissal is warranted because plaintiff did not sustain an elevation-related injury within the scope of that statute. It is well established that not every hazard involving a height differential falls within the ambit of this statute (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501), which was designed to address only that narrow class of special hazards"where protective devices are called for... because of a difference between the elevation level of the required work and a lower level" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). Thus, other types of falling hazards are not covered, even if injury is caused by the absence of any safety device (see Nieves v. Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915-916).

In the instant matter, it is undisputed that plaintiff was injured after rolling down a slope. As such, the issue is analogous to the one decided in Cicala v. Stearns, Conrad & Schmidt Consulting Engrs (10 Misc 3d 1066A [Mega, J.]), where it was determined that a slip-and-fall down the slanted side of a drainage gully resulted from the "usual and ordinary " dangers of a [*2]construction site rather than a special elevation-related hazard of the sort contemplated by Labor Law §240(1) (see Narducci v. Manhasset Assoc., 96 NY2d 259; Santoro v. New York City Tr. Auth., 302 AD2d 581, 582; see also Cummings v. I & O.A. Slutsky, 304 AD2d 860 [Labor Law §240(1) held inapplicable to a seven-foot slide down an inclined ramp to the side of the road below]). Accordingly, those causes of action predicated upon an alleged violation of Labor Law §240(1) must be dismissed.

As for those causes of action predicated on Labor Law §200, it is well settled that this statute codifies the common-law duty to provide employees with a safe place to work (see Jock v Fien, 80 NY2d 965; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 503). Accordingly, "[a]n implicit precondition to this duty is that the party charged with that responsibility have the authority to control the activity bringing about the injury'" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [internal quotation marks omitted]). "Where the alleged defect or dangerous condition arises from the contractor's methods however, and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200" (id. at 877).

Here, in response to the City's prima facie showing of entitlement to the dismissal of these causes of action, plaintiff has failed to present sufficient evidence by affidavit or otherwise to raise a triable issue of fact with regard to the City's level of supervision or control over the construction project, or its actual or constructive notice of the alleged hazardous condition which brought about plaintiff's injury (see Braun v. Fischback & Moore, 280 AD2d 506). Consequently, no cause of action lies against the City under Labor Law §200 or common-law negligence.

Likewise, summary judgment must also be granted dismissing plaintiff's parallel claims against the NYCTA. In this regard, the deposition testimony of both plaintiff, a foreman at Halmar, and Nicholas Ikonomidis, the Project Manager for the NYCTA, are sufficient to demonstrate prima facie that the NYCTA lacked the authority to control the activity producing the injury (see Plaintiff's EBT, pp 24-37; see also EBT of Nicholas Ikonomidis, pp 87-88). In opposition, plaintiff's proof of the NYCTA's general supervisory powers, its presence at the site, and even its routine progress inspections are not sufficient to impose liability under Labor Law §200 ( see Haider v. Davis, 35 AD3d 363; Alexandre v. City of New York,300 AD2d 263, 264). Neither does plaintiff's unsubstantiated claim that the NYCTA had the right to stop the work and address safety issues. "The

construction manager's authority to stop the contractor's work, if the manager notices a safety violation, does not give the manager a duty to protect the contractor's employees" ( Peay v. New York City School Constr. Auth., 35 AD3d 566, 567; see Ferrero v. Best Modular Homes, Inc., 33 AD3d 847, 851; Singleton v. Citnalta Constr Corp., 291 AD2d 393, 394). The same is true of plaintiff's common-law negligence claims against these defendants. Finally, since both the report and affidavit of plaintiff's expert are conclusory in nature, they are insufficient to rebut defendants' showing that they did not create the narrowing of the terrain or the slope of the hill that purportedly constituted the hazard, or that either of these alleged conditions was a proximate cause of the accident (see Feldman v. Chute, 300 AD2d 280).

Labor Law § 241(6) imposes a non-delegable duty upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in areas of construction, excavation or demolition, regardless of notice and "even in the absence of control or supervision of the worksite" (Rizzuto v Wenger Contr. Co., 91 NY2d 343, 348). However, [*3]the sine qua non of a claim under Labor Law § 241 (6) is an alleged violation of a specific mandate of the New York State Industrial Code (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 505).

In a verified bill of particulars dated May 2, 2002, plaintiff alleges that each of the named defendants failed to comply with §§23-4.1, 23-4.2, 23-4.3 and 23-4.4 of Rule 23 of the Industrial Code (12 NYCRR 23-4.1, 4.2, 4.3, 4.4), and that such violations were a proximate cause of his injury. In the opinion of this Court, none of these provisions are applicable in the case at bar.

Upon no reasonable view of the evidence was plaintiffs' fall caused by any "loss of stability created by an excavation", hence §23-4.1 of the Industrial Code plainly does not apply (12 NYCRR 23-4.1; see Scarso v. M.G. Gen Constr Corp.,16 AD3d 660; Sainato v. City of Albany, 285 AD2d 708). Equally inapplicable is §23-4.2 which addresses the standards for shoring an excavation of five feet or more in depth (see Natale v. City of New York, 33 AD3d 772). Plaintiff testified at his deposition that the trench out of which he stepped was "just a foot and a half deep" (Plaintiff's EBT p104, line 7). Similarly inapplicable are §§23-4.3 and 23-4.4 (12 NYCRR 23- 4.3, 4.4) of the Industrial Code, which pertain to the protection of persons working inside an excavation (see Davis v. Manitou Constr Co., 299 AD2d 927). Again, plaintiff has testified that he was outside of the trench when the fall occurred (Plaintiff's EBT p106 line 20).

Finally, this Court will not consider the additional Industrial Code violations alleged for the first time in opposition to these motions (see e.g.,12 NYCRR 23-1.7, 1.23, -1.24). The Note of Issue in this case has been filed for nearly a year, and plaintiff has never sought leave to amend his bill of particulars to assert these purported violations (see Reilly v. Newireen Assoc,, 303 AD2d 214; cf. DelRosario v. 114 Fifth Ave Assoc., 266 AD2d 162, 163[plaintiff's request to amend bill of particulars three years after commencement and five months after filing of note of issue properly rejected as untimely and prejudicial]).

Accordingly, it is hereby

ORDERED that the motion and cross motion are granted and the complaint is dismissed; and it is further

ORDERED that the Clerk enter judgment accordingly.

The foregoing constitutes the Decision and Order of the Court.

DATED: AUG. 30, 2007/s/______________________________

HON. THOMAS P. ALIOTTA, J.S.C.