Upon the foregoing papers, defendants City of New York, New York City Transit Authority ("NYCTA"), Metropolitan Transportation Authority, and Columbus Construction Corporation (collectively, "movants") move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint as against them.

Plaintiff commenced the instant action on or about July 8, 2005. The complaint alleges that plaintiff, an ironworker, was injured on August 19, 2004, while performing construction work above the uncovered, open-air NYCTA subway tracks at 64th Street and 15th Avenue in Brooklyn. Plaintiff alleges that defendants are either owners of the subject premises, construction contractors, or agents thereof. Plaintiff further alleges that the acts or omissions of defendants and their agents constitute negligence and violations of the Labor Law, and that such negligence and Labor Law violations proximately caused his injuries.

The verified bill of particulars states that the accident occurred when he "was performing construction work at an elevated height, lifting a hydraulic jack, where he was required to work at a dangerous, awkward and impractical angle without the assistance of any safety devices, when he wrenched his back, stomach and legs and sustained severe personal injuries". Movants now seek summary judgment, dismissing the complaint as against them.

Movants first argue that plaintiff's asserted Labor Law § 240 (1) cause of action should be dismissed because plaintiff was not injured as the result of either a fall from an elevated worksite or a falling object. Movants then claim that plaintiff's asserted Labor Law § 241 (6) cause of action should be dismissed because the only Industrial Code (12 NYCRR ch. 1, subch. A) section cited by plaintiff in support of this cause of action is either inapplicable or did not proximately cause his injuries. Lastly, movants argue that none of their agents supervised or controlled the manner in which plaintiff [*2]performed his work, and therefore, plaintiffs causes of action alleging either negligence or a Labor Law § 200 violation should be dismissed against them.

In opposition, plaintiff states that on the date of the accident, he was performing work while on concrete pedestals approximately 25 feet above the tracks. Plaintiff stated that, in order to complete his task, he had to lift an 80-pound hydraulic jack approximately five feet in the air and then slide it on to a rebar. The accident occurred when plaintiff attempted to perform the maneuver, but wrenched his back and tore his stomach.

Plaintiff argues that his Labor Law § 240 (1) cause of action should not be dismissed merely because he did not fall. Plaintiff notes appellate authority that supports the proposition that a worker need not fall from an elevated worksite to implicate Labor Law § 240 (1). Plaintiff then argues that his Labor Law § 241 (6) claim should not be dismissed because the pedestal on which plaintiff stood is a platform and passageway for the purposes of Industrial Code § 23-1.22 © (2). Plaintiff asserts that this Industrial Code section requires safety railings to have been placed on the pedestal. Lastly, plaintiff asserts that he was working under dangerous condition, and that NYCTA had notice of said conditions. For this reason, argues plaintiff, his Labor Law § 200 and common-law negligence claims should stand.

Labor Law � 240 (1)

Labor Law § 240 (1) states, in relevant part, that:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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 enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Thus, Labor Law § 240 (1) is implicated only in "situations in which a worker is exposed to the risk of falling from an elevated worksite or being hit by an object falling from an elevated worksite" (Thompson v Ludovico, 246 AD2d 642, 642-643 [1998], quoting Rocovich v Consolidated Edison Co., 167 AD2d 524, 526 [1990], affd 78 NY2d 509 [1991]). Furthermore, the duties delineated in § 240 (1) are nondelegable and owners and contractors are liable for the violations of their agents even if they have not exercised supervision and control (Rocovich, 78 NY2d at 513).

From the parties' submissions, it is undisputed that plaintiff did not fall from a height and was not struck by an object that fell. Thus, plaintiff has no viable Labor Law § 240 (1) cause of action (see e.g. Tillman v Triou's Custom Homes, Inc., 253 AD2d 254 [1999]; cf. Kollbeck v 417 FS Realty LLC, 4 AD3d 314 [2004] [plaintiff injured while trying to prevent object from falling arguably entitled to Labor Law § 240 (1) protection]; Mills v Tumbleweed Mgt. Co., 270 AD2d 121 [2000] [Labor Law § 240 (1) applies when hoisted materials became stuck on the way up]; Ienco v RFD Second Ave., [*3]LLC, 41 AD3d 537 [2007] [Labor Law § 240 (1) applies when plaintiff sustained injuries preventing himself from falling]). Accordingly, the court dismisses plaintiff's Labor Law � 240 (1) causes of action.

Labor Law � 241 (6)

Labor Law § 241 states, in applicable part, as follows:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

In order to defeat a motion for summary judgment that seeks dismissal of a Labor Law § 241 (6) claim, a plaintiff is required to show that the defendants violated an applicable provision of the Industrial Code that contains concrete specifications with which the defendants must comply under Labor Law § 241 (6) (Donovan v S & L Concrete Constr. Corp., Inc., 234 AD2d 336, 337 [1996]; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). A violation of a provision of the Industrial Code that "mandates a distinct standard of conduct" serves to establish vicarious liability of an owner under Labor Law § 241 (6) (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351 [1998]). The Industrial Code provision relied on to support a Labor Law § 241 (6) must contain a specific command and not general regulatory criteria such as "adequate," "effective" and "proper" (Ross, 81 NY2d at 501-504).

Here, plaintiff has failed to identify an applicable Industrial Code provision. Initially, the court notes that nothing from the parties' submissions suggests that the pedestal on which plaintiff stood was a ramp, runway and/or platform used in the transport of vehicular and/or pedestrian traffic pursuant to Industrial Code § 23-1.22 (see e.g. Dzieran v 1800 Boston Road, LLC, 25 AD3d 336 [2006]; Curley v Gateway Communications, 250 AD2d 888, 892 [1998]). Indeed, since plaintiff does not contend that the pedestal on which he stood was designed and intended to support plaintiff and his materials, the cause of action must fail (Olson v Pyramid Crossgates Co., 291 AD2d 706 [2002]). Lastly, assuming that the court accepts plaintiff's argument that Industrial Code § 23-1.22 © (2) requires that safety rails had been placed on the subject "pedestal", the Labor Law � 241 (6) claim remains without merit, given that the lack of a safety railing did not cause plaintiff to fall from the pedestal and plaintiff thus cannot establish the requisite proximate causation (Ross, 81 NY2d at 502). For these reasons, plaintiff does not have a viable Labor Law § 241 (6) cause of action. Accordingly, plaintiff's Labor Law � 241 (6) cause of action is dismissed.

[*4]Labor Law � 200 and Common-Law Negligence

Labor Law § 200 states, in relevant part:

"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 protections to such persons."

Labor Law § 200 merely codifies the common-law duty of an owner or general contractor to provide a safe place to work (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). Owners and general contractors are liable under a common-law theory of negligence only if their agents directed and controlled the subject work (Aranda v Park East Constr., 4 AD3d 315, 316 [2004]; see also Lombardi v Stout, 80 NY2d 290, 295 [1992]).

Despite plaintiff's contentions, movants demonstrated entitlement to summary judgment with respect to Labor Law § 200 and common-law negligence causes of action by submitting uncontroverted evidence that it did not exercise actual control over plaintiff's work (Bright v Orange & Rockland Utils., Inc., 284 AD2d 359, 360 [2001]). Plaintiff does not even assert that defendants exercised actual control over the work that caused the accident. Defendants have thus demonstrated prima facie entitlement to judgment as a matter of law with respect to Labor Law § 200 and common-law negligence (id.).

Plaintiff's contentions in opposition are without merit. The mere fact that Ellis was present at the worksite is insufficient to demonstrate the requisite supervision and control (see e.g. Putnam v Karaco Indus. Corp., 253 AD2d 457, 459 [1998]; but see Freitas v New York City Tr. Auth., 249 AD2d 184, 186 [1998] [general contractor found to have controlled plaintiff's work where it had "safety manager" present daily, held safety meetings and had contractual right to dictate when and how subcontractor performed work including right to stop subcontractor work at any time]). Likewise, the fact that defendants' agents inspected the work regularly is only indicative of general supervisory power and is insufficient to establish common-law negligence or a violation of Labor Law § 200 (see e.g. Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Alexandre v City of New York, 300 AD2d 263 [2002]; Loiacono v Lehrer, Mcgovern, Bovis, Inc., 270 AD2d 464 [2000]; Richichi v Constr. Mgt. Tech., 244 AD2d 540, 542 [1997]). For the foregoing reasons, plaintiff's causes of action under Labor Law § 200 and a common-law theory of negligence are dismissed as asserted against movants.

In sum, the motion by defendants City of New York, New York City Transit Authority ("NYCTA"), Metropolitan Transportation Authority, and Columbus

Construction Corporation is granted solely to the extent that plaintiff's causes of action under Labor Law §§ 200, 240 (1) and 241 (6), as well as those alleging common-law negligence, are dismissed as against the moving defendants.

The foregoing constitutes the decision, order and judgment of the court. [*5]

E N T E R,

J. S. C.