This is an action to recover damages sustained by a worker when he fell from a radiator cover (convector cover) while washing interior windows in the premises located at 75 Rockefeller Plaza, New York, New York on February 8, 1999. Defendants Rockefeller Center, Inc., Rockefeller Group, Inc., Rockefeller Center Properties, RCP Associates and AOL-Time Warner Inc. (collectively, defendants) move, pursuant to CPLR 3212, for summary judgment dismissing plaintiff Thomas DeKenipp's common-law negligence and Labor Law §§ 200, 202, 240 (1) and 241 (6) claims. Plaintiff cross-moves, pursuant to CPLR 3126, for sanctions for [*2]spoliation of evidence on the part of defendants, as well as for failure to comply with other discovery requests.

On the date of plaintiff's accident, plaintiff was employed as a window washer by OneSource, a company hired to perform certain cleaning services at the subject premises owned by defendants. At the time of plaintiff's accident, plaintiff was cleaning the interior windows located in the northwest corner on the second floor on the western wall of the premises with two co-workers. Plaintiff testified that on the day before his accident, his supervisor specified that the second-and third-floor interior windows were to be cleaned. The second and third floors of the premises contained offices and reception areas.

Plaintiff described the windows that were to be cleaned as reaching from the convector covers to the ceiling. Plaintiff did not know the height of the second-floor windows, but noted that he is five feet eight inches tall, and while standing on the four-feet-high convector covers, he was able to reach the top of the windows with his wand.

Plaintiff testified that he brought his own tools to the premises, which consisted of a wand, a squeegee, a bucket and a bottle of soap. Plaintiff noted that, on the day before his accident, he asked his OneSource supervisor to provide him with an extension pole to attach to his wand in order to reach the windows, but none was available. Plaintiff noted that he requested the extension pole because the convector covers were "not safe to jump on" (Defendants' Notice of Motion, Exhibit E, DeKenipp Deposition, at 35). Plaintiff's supervisor then advised him to "[d]o the best you can" and to "[c]limb on the convector covers" to perform his duties (id.). Defendants did not provide plaintiff with any tools or equipment for washing windows.

Plaintiff explained that, in order to clean the tops of the windows, it was necessary for him to stand on the convector covers located beneath the windows and positioned flush against the wall. Plaintiff also testified that, before his accident, he stepped onto a convector cover, which contained a grill area where heat rises, and reached upwards with his wand. After standing on the convector cover with both feet for approximately 10 to 15 seconds, the convector cover moved away from the wall and toppled over, causing him to lose his balance and fall backwards onto the carpeted floor. Specifically, plaintiff noted that "[t]he convector cover was loose. It wasn't fastened to the wall securely" (Defendants' Notice of Motion, Exhibit E, DeKenipp Deposition, at 57).

In his affidavit of April 26, 2007 (page 3), plaintiff explained more specifically that, at the time of his accident, a grill, which sat in a channel on the top of the convector cover at issue, had bent downward when he stepped on it, causing his foot to fall inside the convector cover. When his foot fell into the cover, the convector tilted, causing the front panel to topple over. Plaintiff stated that there were no witnesses to his accident, but he was helped up by his co-workers after his accident.

Ed Cavanaugh (Cavanaugh), director of operations for 75 Rockefeller Plaza, testified that, at the time of subject accident, he was employed by Jones Lang LaSalle as chief engineer at 75 Rockefeller Plaza, where he supervised eight engineers at the premises. Cavanaugh stated that defendants occupied the entire second floor of the premises, which contained office space and a small data center.

Cavanaugh explained that typically two and one-half-foot-high convectors were typically located beneath each window around the perimeter of the second floor of the premises. [*3]Cavanaugh also explained that "[a] convector is a unit that gives off either heat or cool" (Plaintiff's Notice of Motion, Exhibit F, Cavanaugh Deposition, at 18). He also explained that the covers and front panels on the convectors, which were positioned flush against the window units, were removable for maintenance and cleaning. Preventative maintenance was performed on the convectors approximately every six months. Cavanaugh testified that he did not know whether any of the convector covers had been changed since the date of plaintiff's accident.

" The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case'" (Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Grossman v Amalgamated Housing Corporation, 298 AD2d 224, 226 [1st Dept 2002]).

COMMON-LAW NEGLIGENCE AND LABOR LAW § 200 CLAIMS

Labor Law § 200 is a " codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work' [citation omitted]" (Cruz v Toscano, 269 AD2d 122, 122 [1st Dept 2000]; see also Russin v Louis N. Picciano & Son, 54 NY2d 311, 316-17 [1981]). Labor Law § 200 (1) states, in pertinent part, as follows:

"1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."

Although the parties in this case discuss the issue of supervision, or lack thereof, on the part of defendants, that standard applies in Labor Law § 200 cases which involve injuries resulting from the means and methods of the work (see Landa v. City of New York, 17 AD3d 180 [1st Dept. 2005]). However, in this case, plaintiff's injuries arose from an unsafe condition present at the premises. In such a case, the proponent of a Labor Law § 200 claim must demonstrate that the defendant created or had actual or constructive notice of the allegedly unsafe condition that caused the accident (Murphy v Columbia University, 4 AD3d 200, 201-02 [1st Dept 2004]).

Here, there is no evidence in the record to indicate that defendants created or had actual or constructive notice of the unsafe condition that caused plaintiff's accident. Plaintiff stated that, before stepping onto the convector cover, he observed "no signs of vandalism, misuse, or anything else that would make it unsafe to use as a step" for him to stand on while cleaning the subject window (Plaintiff's Notice of Cross Motion, Exhibit A, Plaintiff's Affidavit of April 26, [*4]2007, at 2). Although plaintiff maintained that he had complained about loose convector covers prior to his accident, his vague assertions fail to demonstrate that defendants created or had actual or constructive notice of any problems with the convector cover at issue. To this effect, plaintiff stated that he had previously complained about loose convector covers to his OneSource supervisor, and that he "may have mentioned it" to "a gentleman" who gave plaintiff and his co-workers access to the floor (Defendant's motion for summary judgement, Exhibit E, Examination Before Trial of Plaintiff, January 4, 2006, at 59-60). Plaintiff also stated that he believed that this man "Did something to do with the cleaning?" (id. at 61).

Plaintiff also stated that a window cleaners' logbook was kept in the lobby of the subject premises, in which the windows washers would note which floors had been cleaned on a particular day, as well as any comments they might have had to report. Plaintiff maintained that he had made a complaint in the logbook about loose convector covers, though he could not recall the date of his complaint. Specifically, plaintiff testified that his complaint "was about convector covers it was about maybe equipment that wasn't available for us or whatever it was. No access to certain area. We would put down whatever you had to put down and that was for the purpose of management then that book was there for that reason" (id. at 92). Plaintiff also testified that "[i]t was known that those convector covers were always lo[o]se in that building" (id. at 93).

In addition, Cavanaugh testified that a logbook was maintained by the building engineers, which included information regarding maintenance and inspections of the convectors at the premises. Cavanaugh maintained that he had never received any complaints about any of the convector covers becoming loose or pulling away from the wall.

Plaintiff also argues that defendants' motion for summary judgment dismissing plaintiff's common-law negligence claim should be denied on the ground of res ipsa loquitur, as plaintiff's accident is not the kind that would occur absent someone's negligence. In order to rely on the doctrine of res ipsa loquitur, plaintiff must show that "the event was of a kind that ordinarily does not occur in the absence of someone's negligence; that it was caused by an agency or instrumentality within the exclusive control of the defendant; and that it was not due to any voluntary action or contribution on the part of the plaintiff" (see Bonura v KWK Associates, Inc., 2 AD3d 207, 208 [1st Dept 2003]).

Here, plaintiff's reliance on the doctrine of res ipsa loquitur to sustain his common-law negligence claim is unavailing, since plaintiff has not established that the convector cover was within defendants' exclusive control (see Long v Battery Park City Authority, 295 AD2d 204, [1st Dept 2002]; Reyes v Active Fire Sprinkler Corporation, 267 AD2d 70, 71 [1st Dept 1999]). In his affidavit of April 26, 2007, plaintiff stated that convector covers were customarily used as a platform by window washers when cleaning the upper portions of an interior window. In addition, Cavanaugh testified that he had observed various people standing on the convectors for other purposes in addition to window washing, such as fixing the window or ceiling tiles. Cavanaugh had also observed people storing files and other items on top of the convectors from time to time.

Thus, defendants are entitled to summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims as plaintiff has failed to sufficiently refute defendant's prima facie showing of entitlement to dismissal.

LABOR LAW § 240 (1)

Labor Law § 240 (1), also known as the Scaffold Law (Ryan v Morse Diesel, 98 AD2d [*5]615, 615 [1st Dept 1983]), provides, in relevant part:

1."All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. "

" Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold ... or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'" (John v Baharestani, 281 AD2d 114, 118 [1st Dept 2001], quoting Ross v Curtis-Palmer Hydro-Electric Company, 81 NY2d 494, 501 [1993]). The Scaffold Law does not apply merely because work is performed at elevated heights, but applies where the work itself involves risks related to differences in elevation (Binetti v MK West Street Company, 239 AD2d 214, 214-215 [1st Dept 1997]; see Ross v Curtis-Palmer Hydro-Electric Company, 81 NY2d at 500-501]).

To prevail on a section 240 (1) claim, the plaintiff must show that the statute was violated and that this violation was a proximate cause of the plaintiff's injuries (Blake v Neighborhood Housing Services of New York City, 1 NY3d 280, 287 [2003]; Felker v Corning Inc., 90 NY2d 219, 224-225 [1997]; Torres v Monroe College, 12 AD3d 261, 262 [1st Dept 2004]).

Although Labor Law § 240 (1) "applies to window cleaners who are subjected to elevation-related risks inherent to their work, the statute does not apply to truly domestic cleaning or routine maintenance" (Swiderska v New York University, 34 AD3d 445, 446 [2d Dept 2006] [Labor Law § 240 (1) did not apply where plaintiff was injured cleaning windows from a height of three feet with a rag and glass cleaner]). The protection afforded by Labor Law § 240 (1) is limited to window cleaning that is " incidental to building construction, demolition and repair work]'" (Broggy v Rockefeller Group, Inc. (30 AD3d 204, 206 [1st Dept 2006], affd 2007 Slip Op 5775. quoting Brown v Christopher Street Owners Corporation, 211 AD2d 441, 442-443 [1st Dept 1995], affd 87 NY2d 938 [1996]).

In order for an activity not performed at a construction site to fall within the purview of Labor Law § 240 (1), the activity must involve making a significant physical change to a building or structure, so as to constitute an alteration within the meaning of the statute (Broggy v Rockefeller Group, 30 AD2d at 206 [Court denied recovery under Labor Law § 240 (1) where plaintiffs did not identify any "significant physical change to the premises to which the interior window cleaning ... was incidental; nor was such cleaning related to building construction, demolition or repair work so as to remove the activity from the category of routine maintenance and bring it within the ambit of Labor Law § 240 (1)"]).

Here, plaintiff has not identified any physical change to the premises to which the interior window cleaning was incidental, nor was plaintiff's cleaning related to building construction, demolition or repair, thus, plaintiff was not exposed to an elevation-related risk protected by Labor Law § 240 (1) and defendants are entitled to summary judgment dismissing plaintiff's Labor Law § 240 (1) claim.

LABOR LAW § 241 (6) CLAIM

Labor Law § 241 (6) provides, in pertinent part, as follows: [*6]

"All contractors and owners and their agents ... when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

* * *

(6)All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped ... as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. ..."

Labor Law § 241 (6) imposes a nondelegable duty on owners, contractors and their agents to provide reasonable and adequate protection and safety to persons employed in construction, excavation and demolition work (see Ross v Curtis-Palmer Hydro-Electric Company, 81 NY2d at 501-502). As plaintiff was not engaged in construction, excavation or demolition at the time of his accident, Labor Law § 241 (6) is inapplicable to the facts of this case (see Nagel v D & R Realty Corporation, 99 NY2d 98, 103 [2002]; Bonura v KWK Associates, Inc., 2 AD3d at 209; Retamal v Miriam Osborne Memorial Home Association, 256 AD2d 506, 507 [2d Dept 1998] [Labor Law § 241 (6) did not apply where plaintiff was not involved in the construction or demolition of the building or in any excavation associated therewith]). As such, defendants are entitled to summary judgment dismissing plaintiff's Labor Law § 241 (6) claim.

LABOR LAW § 202

Labor Law § 202 provides, in relevant part:

The owner, lessee, agent and manager of every public building and every contractor involved shall provide such safe means for the cleaning of the windows and of exterior surfaces of such building as may be required and approved by the board of standards and appeals [now the industrial board of appeals]. The owner, lessee, agent, manager or superintendent of any such public building and every contractor involved shall not require, permit, suffer or allow any window or exterior surface of such building to be cleaned unless such means are provided to enable such work to be done in a safe manner for the prevention of accidents and for the protection of the public and of persons engaged in such work in conformity with the requirements of this chapter and the rules of the board of standards and appeals. A person engaged at cleaning windows or exterior surfaces of a public building shall use the safety devices provided for his protection. Every employer and contractor involved shall comply with this section and the rules of the board and shall require his employee, while engaged in cleaning any window or exterior surface of a public building, to use the equipment and safety devices required by this chapter and the rules of the board of standards and appeals. ... The board of standards and appeals may make rules to effectuate the purposes of this section.

"Upon enactment of Labor Law § 202, those persons engaged in the occupation of window cleaning became entitled to the protections afforded therein, and a violation of the section imposed absolute liability for which contributory negligence and assumption of risk were no defense" (Bauer v Female Academy of Sacred Heart, 250 AD2d 298, 301 [3d Dept 1998]).

Although defendants argue that Labor Law § 202 is inapplicable to the instant action, as the statute applies only to the cleaning of exterior, and not interior, windows, in fact, Labor Law § 202 was amended to extend the protection afforded to window cleaners working on the [*7]building's interior (L 1942, ch 824; Bauer v Female Academy of Sacred Heart, 250 AD2d at 301 n*).

Here, the building in question was a public building and the defendants were owners in charge of and in control of said building. As there is no evidence in the record to indicate that defendants provided plaintiff with "safe means" while cleaning the subject window, as Labor Law § 202 requires, defendants are not entitled to summary judgment dismissing plaintiff's Labor Law § 202 claim (see Berrios v 1115 Fifth Avenue Corporation, 160 AD2d 655, 656 [1st Dept 1990]).

SPOLIATION OF EVIDENCE

In his cross motion, plaintiff asserts that he is entitled to sanctions against defendants based on spoliation of evidence, as defendants negligently or intentionally replaced the convector cover that caused him to fall. CPLR 3126 governs the penalties for nondisclosure. Sanctions, pursuant to CPLR 3126, will be imposed with a clear showing that "the failure to comply with discovery demands was willful, contumacious or in bad faith [internal quotations and citations omitted]" (Foncette v LA Express, 295 AD2d 471, 472 [2d Dept 2002]). "To impose a sanction for spoliation of evidence, it must be established that the individual to be sanctioned was responsible for the loss or destruction of evidence crucial to the establishment of a claim or defense, at a time when he was on notice that such evidence might be needed for future litigation" (Haviv v Bellovin, 39 AD3d 708, 709 [2d Dept 2007]; Lovell v United Skates of America, 28 AD3d 721, 721 [2d Dept 2006] [plaintiff did not establish that the defendant intentionally or negligently failed to preserve crucial evidence after being placed on notice that the evidence might be needed for future litigation]; Lawrence Insurance Group v KPMG Peat Marwick, 5 AD3d 918, 920 [3d Dept 2004]).

It is well settled that when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned "by striking a party's pleading or instructing the jury that it may draw negative inferences from the missing evidence" (Lawrence Insurance Group, Inc. v KPMG Peat Marwick LLP, 5 AD3d at 920; Baglio v St. John's Queens Hospital, 303 AD2d 341, 342 [2d Dept 2003]; Foncette v LA Express, 295 AD2d at 472; New York Central Mutual Fire Insurance Company v Turnerson's Electric, 280 AD2d 652, 652-653 [2d Dept 2001]).

Initially, plaintiff maintains that the questions contained in his notice to admit, regarding whether the convector covers had been replaced or destroyed by defendants, were appropriate ones, and that defendants' objections to plaintiff's questions were made in bad faith. Thus, plaintiff contends that defendants' meritless responses should be deemed as silence, and thus, an admission (see CPLR 3123 [a]; D'Angelo v D'Angelo, 14 AD3d 476, 477 [2d Dept 2005]).

Plaintiff served his notice to admit, dated December 21, 2006, seeking certain admissions regarding "the radiator that is the subject of this action" and "the radiator cover that is the subject of this action" (Notice to Admit of December 21, 2006, Plaintiff's Notice of Cross Motion, Exhibit D). Defendants objected to plaintiff's notice to admit on the ground that plaintiff's demands were vague and ambiguous, as plaintiff was unable to identify the exact location and convector cover that caused his accident. In support of this contention, defendants maintain that during plaintiff's scheduled inspection of the accident site, which was performed on December 18, 2006, plaintiff advised his expert consultant that the accident occurred on the third floor of [*8]the premises, rather than the second floor, as previously asserted in his bill of particulars and deposition testimony. As such, plaintiff's expert consultant photographed and examined only one convector cover, that one which was located on the third floor of the premises.

In response to defendants' contention that plaintiff asserted that his accident occurred on the third floor during the December 18, 2006 inspection, plaintiff stated, "I merely wondered aloud, at seeing how changed the conditions were, if it were possible that the accident had occurred at another floor. I have no doubt that the accident occurred on the second floor" (id. at 3).

" The purpose of a notice to admit is only to eliminate from the issues in litigation matter which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial'" (Sagiv v Gamache, 26 AD3d 368, 369 [2d Dept 2006], quoting DeSilva v Rosenberg, 236 AD2d 508, 508 [2d Dept 1997]; Eddyville Corporation v Relyea, 35 AD3d 1063, 1066 [3d Dept 2006]; Hawthorne Group v RRE Ventures, 7 AD3d 320, 324 [1st Dept 2004]; Villa v New York City Housing Authority, 107 AD2d 619, 619-620 [1st Dept 1985]).

CPLR 3123 (a) specifically provides that "[e]ach of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters" (see Rosenfeld v Vorsanger, 5 AD3d 462, 463 [2d Dept 2004]; Great American Insurance Company v Matzen Construction, 114 AD2d 625, 626 [3d Dept 1985]; Constantino v Newman, 47 AD2d 626, 626 [2d Dept 1975]). The remedy for an inadequate response to a notice to admit is recovery of the expense of proving the fact at trial, not a striking order (see CPLR 3123 (c); Rojas v City of New York, 27 AD3d 323, 324 [1st Dept 2006]; Villa v New York City Housing Authority, 107 AD2d at 620 [unreasonable failure to admit such uncontestable facts may result in an order directing the intransigent party to bear the cost of such proofs]).

As testimony in the record indicates that plaintiff could not identify with certainty the exact location of his accident or the convector cover that caused him to fall, his inquiries regarding the convector and convector cover, which are the subject of this action, were, in fact, vague and ambiguous. As defendants properly set forth their reasons for their inability to admit or deny plaintiff's inquiries in a sworn statement, defendants' responses should not be deemed as silence, and thus, "an admission" that the convector cover that caused plaintiff's injuries was replaced, destroyed or disposed of.

In addition, it should also be noted that, although his accident took place in February of 1999, as stated by the defendant, the plaintiff did not identify the location of his accident until service of his bill of particulars on May 31, 2005, and he did not provide any specific information regarding how his accident occurred until his deposition in January of 2006. Further, plaintiff has never made any request that the subject convector cover be preserved.

Thus, not only has plaintiff failed to establish that the convector cover that caused him to fall was, in fact, replaced or destroyed by defendants, he has not established that the cover was replaced or destroyed at a time when defendants were on notice that it might be needed for future litigation. [*9]

Plaintiff also contends that sanctions for spoliation of evidence should be imposed because defendants have not produced the window washers' logbook, which may impute constructive notice of the defect that caused plaintiff's injury. However, as the defendants contends, since the plaintiff's was unable to specify the dates on which he made the complaints or the floors that the alleged encountered defective conductors were located, the plaintiff cannot claim that Time Warner had notice of any problem. Therefore, the fact that the window washers' logbook was no longer in defendants' possession in the year 2006, seven years after the accident, fails to establish that the logbook was lost or destroyed by defendants at a time when defendants were on notice that it might be needed for future litigation.

Moreover, plaintiff has not established that the logbook is key evidence. Spoliation is the loss, destruction, or alteration of key evidence to a lawsuit. See Squitieri v. City of New York, 248 AD2d 201, 202 (1st Dept 1998). Sanctions may be imposed for the spoliation of evidence where the evidence has not been examined by the adversary. Id. at 202; Amaris v. Sharp Electronics Corp., 304 AD2d 457 (1st Dept 2003); Kirkland v. New York City Housing Authority, 236 AD2d 170 (1st Dept 1997). Thus, as a threshold issue, the court must analyze whether the item lost, altered or destroyed is a "key" piece of evidence. It is only "[w]hen a party alters, loses or destroys key evidence before it can be examined by the other party's expert, [that] the court should dismiss the pleadings..."). Squitieri, supra at 202 (emphasis supplied). Key evidence has been described as the "crown jewels". M.Hoenig, Spoliation of Evidence Update, NYLJ, January 15, 2002, at 3, col.1. Generally, courts characterize "key" evidence as the actual product, parts or components involved in the accident; that is, the physical item which allegedly caused the accident. See Squitieri, supra at 202 (wherein third-party plaintiff failed to preserve a sweeper which allegedly caused the injury); Kirkland v. NYC Housing Authority, 236 AD2d 170 (1st Dept 1997) (negligent failure to preserve key evidence, the stove which allegedly caused the injury, warranted summary judgment); Amaris v. Sharp Electronics Corp., 304 AD2d 457 (1st Dept 2003)(summary judgment proper where plaintiff failed to preserve key evidence, a television, which allegedly caused injury); Mudge, Rose Guthrie, Alexander & Ferdon v. Penguin Air Conditioning Corp, 221 AD2d 243 (1st Dept 1995)(plaintiff lost key evidence, an allegedly defective air-conditioning system). The court notes that, in the within case, the logbook is not "key" evidence. In addition, it is only when the key evidence is lost, altered or destroyed before it can be examined by the other side's expert, should the court consider sanctions for spoliation. See Squitieri, supra. Therefore, plaintiff is not entitled to summary judgment on his cross motion for sanctions for spoliation as against defendants, or for failure to comply with other discovery requests.

For the foregoing reasons, it is hereby

ORDERED that defendants' motion, pursuant to CPLR 3212, for summary judgment dismissing plaintiff Thomas DeKenipp's common-law negligence and Labor Law §§ 200, 240 (1) and 241 (6) claims is granted; and these portions of the complaint are dismissed; and it is further

ORDERED that defendants' motion, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's Labor Law § 202 claim is denied; and it is further

ORDERED that plaintiff's cross motion, pursuant to CPLR 3126, for sanctions for [*10]spoilation of evidence on the part of defendants, as well as failure to comply with other discovery requests is denied; and it is further

ORDERED that the remainder of the action shall continue.

Dated: November 14, 2007

ENTER:

____________________

Doris Ling-Cohan,J.S.C.