Upon the foregoing papers, the motions and cross motions for summary judgment and/or dismissal of the complaint and cross claims pursuant to CPLR 3211(a)(7) and CPLR 3212 are decided as follows.

This action was commenced to recover damages for personal injuries allegedly sustained by plaintiff on January 11, 2002 while employed by defendant S. DiGiacomo & Son, Inc. At the time of the incident, plaintiff was performing renovation work at a construction site located on the second floor of the Merrill Lynch Building at 10 Teleport Drive, Staten Island, New York. According to plaintiff, he "stepped into an open floor hole" which he described as being the size of a single floor tile, i.e., some eight inches in width, one foot in length, and two feet deep. This hole was purportedly located five to ten feet away from a "tent" that plaintiff was constructing for plumbers and steamfitters who would be working on the concrete sub-floor located two feet below the level of the computer floor. According to plaintiff's deposition testimony, the renovation project required the removal [*2]of both large and small sections of the computer floor for certain periods of time in order to allow the electricians and plumbers to perform work "on the [concrete] floor underneath." After the work was completed, the removed sections of flooring were to be reinstalled. In sum and substance, plaintiff claims that each of the defendants was negligent in its ownership, maintenance, management, operation and/or control of the subject premises, and failed to provide him with a safe workplace in violation of Labor Law §§200, 240(1) and 241(6).

In its motion to dismiss the complaint in its entirety pursuant to CPLR 3211(a)(7) and CPLR 3212, defendant the City of New York (hereinafter the "City") claims that it is an out-of-possession landowner that had no notice of the alleged hazardous condition, and exercised no supervision or control over plaintiff's work. The City further maintains that plaintiff did not sustain a gravity-related injury and that the Industrial Code provisions claimed to have been violated do not apply to the facts of this case.

Defendants DiGiacomo Construction Corporation and S. DiGiacomo & Son, Inc. (hereinafter, collectively, "DiGiacomo) cross-move for dismissal of the complaint and all cross claims against them based on the principles of common-law indemnification and contribution. In support of their motion, DiGiacomo alleges that (1) Workers' Compensation Law §11 precludes plaintiff from maintaining a liability action against his employer, S. DiGiacomo & Son, Inc., the general contractor for the infrastructure work; (2) plaintiff did not sustain a "grave injury" as defined by Workers' Compensation Law §11; (3) DiGiacomo Construction Corporation was never present at the work site nor engaged by contract or otherwise to render any work, labor or services related thereto; and (4) the undisputed facts do not support any violation of the Labor Law.

Defendants Port Authority of New York and New Jersey (hereinafter "Port Authority") and Merrill Lynch, Pierce, Fenner & Smith Incorporated (hereinafter "Merrill Lynch"), the lessees of the subject property, move for summary judgment dismissing the complaint and all cross claims against them on the grounds that (1) these defendants neither supervised plaintiff nor controlled the means or methods of his work, (2) plaintiff was not performing any tasks at an elevated work-site, and (3) the Industrial Code regulations upon which plaintiff purports to rely are factually inapplicable to the instant case.

Defendant Tishman Technologies Corp., the construction manager for the technology portion of the project, cross-moves for summary judgment on the grounds that (1) it was neither the general contractor nor a statutory agent in relation to the work being performed by plaintiff, (2) it had no control, supervision or direction over the injury-producing activity, and (3) it lacked the contractual obligation or authority to supervise any aspect of the construction portion of the project on which plaintiff was working. Although Tishman concedes that it coordinated the work performed by its electrical subcontractor, co-defendant Forest Electric Corp. (hereinafter "Forest"), it neither directed nor controlled the [*3]means or methods of its work.

For its part, third-party defendant Lowy & Donnath, Inc. (hereinafter "L & D"), retained as DiGiacomo & Son's electrical subcontractor, cross-moves for summary judgment dismissing Forest's third-party claim for common-law indemnification and/or contribution, as well as any cross claims against it on the ground that the claim that it created the subject "hole" is purely speculative. While concededly, from time-to-time L & D and the other trades would "lift tiles" to work on the sub-floor, L & D argues that DiGiacomo & Son's records indicate that Forest was present and working in the subject area running fiberoptic cables along the sub-floor on the date of plaintiff's accident. In addition, L & D points to the deposition testimony of its witness, Anthony Scala, who stated that the "majority" of the sub-floor work during the relevant time period involved Forest, and that the size of the "opening" at issue here was substantially larger (i.e., two or three times the size) of any "cut" that L & D would require to perform its work. It is also claimed that the deposition testimony of both plaintiff and Forest's foreman, Joseph McByrne, suggest that any of the on-site trades "could possibly" have been responsible for the subject opening.

In the final motion, defendant Forest moves for summary judgment dismissing the complaint and any cross claims against it on the ground that plaintiff has failed to establish any violation of the Labor Law, or any basis for holding it liable for common-law negligence. According to this defendant, it was subcontracted solely to install the electrical data equipment. In addition, the deposition testimony of DiGiacomo & Son's president establishes that it was his laborers who were responsible for removing the floor tiles to facilitate sub-floor electrical and steamfitting work, as well as protecting such openings with caution cones and tape. It is also claimed that DiGiacomo's daily logs indicate that it was its electrical subcontractor, L & D, which was creating "floor tile cuts" on January 10, 2002, the day before plaintiff's accident, and that the EBT of Forest's foreman establishes that a photograph depicting the subject opening reveals the presence of an electrical junction box which Forest did not install. He identified this item as part of L & D's portion of the electrical work. Finally, Forest relies on plaintiff's deposition testimony to the effect that he did not know "who made the hole" or when it was made, and that he first saw the opening after he stepped through it.

Preliminarily, any claims asserted by plaintiff against his employer, S. DiGiacomo & Son, Inc., must be severed and dismissed. Employees are precluded by section 11 of the Workers' Compensation Law from bringing any liability action against their employer absent a "grave injury" within the meaning of that statute. Moreover, there being no grave injury, any cross claims against this defendant/employer for other than contractual indemnification are also precluded by the Workers' Compensation Law.

Turning to the claims of common-law negligence and the alleged violation of Labor Law §200, it is well established that a plaintiff may not recover thereunder from any owner, [*4]general contractor or agent for injuries sustained as a result of defects or dangers arising from a subcontractor's performance unless it can be shown that the owner, general contractor or agent exercised supervisory control or direction over the operations in question (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505; Lombardi v Stout, 80 NY2d 290). Moreover, "[g]eneral supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law §200"

(Dos Santos v STV Engrs., 8 AD3d 223, 224, lv denied 4 NY3d 702; see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 683).

Consonant with these principles, there is no evidence in this case that any defendant other than S. DiGiacomo & Son had supervisory control over plaintiff's work. In fact, it is effectively conceded that plaintiff, in performing his tasks, received materials, directions and instructions solely from his supervisor, an employee of S. DiGiacomo & Son. In addition, no evidence has been adduced that either the owner or lessee created the hazardous condition which caused plaintiff's injury, or had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Rodriguez v White Plains Pub. Schools, 35 AD3d 704, 705; Perlongo v Park City 3 & 4 Apts, Inc., 31 AD3d 409; see also Comes v New York State Elec. & Gas Corp., 82 NY2d 876). Accordingly, those branches of defendants' motions and cross motions which are for summary judgment dismissing plaintiff's common-law negligence and Labor Law §200 causes of action must be granted in their entirety.

With respect to plaintiffs claims under Labor Law §240(1), it is the opinion of this Court that plaintiff's injuries were not the immediate result of a gravity-related accident encompassed by this statute (see D'Egidio v Frontier Ins. Co., 270 AD2d 763, lv denied 95 NY2d 765). More particularly, plaintiff at bar was not working at an elevation, and "[t]he fact that levels or floors may exist below the work surface does not, by itself, compel [a contrary] conclusion...under this statute" (D'Egidio v Frontier Ins. Co., 270 AD2d at 765; see e.g. Rocovich v Consolidated Edison Co., 78 NY2d 509). Nor does an opening of the size claimed by plaintiff present an elevation-related hazard to which the protective devices enumerated in Labor Law §240(1) were designed to apply (see Rice v Board of Educ. of City of NY, 302 AD2d 578, 580, lv denied 100 NY2d 516; Alvia v Teman Elec. Contr., Inc., 287 AD2d 421, lv dismissed 97 NY2d 749; accord Miller v Weeden, 7 AD3d 684, 685-686; D'Egidio v Frontier Ins. Co., 270 AD2d at 765). To the contrary, the extraordinary protections set forth in Labor Law §240(1) were never intended to encompass any and all perils that may be connected in some tangential way with the effects of gravity (see Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915-916). In view of the foregoing, it is the opinion of this Court that the alleged hazard which resulted from the missing floor tile was "the type of peril a construction worker usually encounters on the job site" (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491, rearg. denied 87 NY2d969), and was not covered by §240(1) of the Labor Law. [*5]

Turning to plaintiff's claims under Labor Law §241(6), it is initially noted that plaintiff has failed to oppose the assertions that 12 NYCRR 23-1.5(a); 3.2(a)(1); 3.3(b)(1) and 3.3(b)(3) are inapplicable to the facts of this case. Instead, plaintiff belatedly raises two additional claimed violations which were not heretofore pleaded, i.e., 12 NYCRR 23-1.7(b)(1)(I) and (ii), and submits in support an affidavit from an engineer, Joseph Cannizzo, whose conclusory opinion is that the opening into which plaintiff stepped should have been guarded by a fastened cover or safety railing as per section 23-1.7 of the Industrial Code, or at a minimum, guarded by orange cones or safety tape.

Plaintiff's belated attempt to rely on 12 NYCRR 23-1.7(b)(1)(i),(ii) is unavailing, as the hole at issue in this case was far too small for a worker to fall through, and therefore not the type of "hazardous opening" contemplated by these regulations (see Rice v Board of Educ. of City of New York, 302 AD2d at 579; Messina v City of New York, 300 AD2d 121, 123; Alvia v Teman Elec. Contr., Inc., 287 AD2d at 423). The remaining provisions asserted by plaintiff are either insufficiently specific to support a Labor Law §241(6) cause of action (see Can-En Lin v Holy Family Monuments, 18 AD3d 800; 12 NYCRR 23-1.5) or factually inapplicable. This plaintiff clearly was not engaged in any form of demolition work (cf. 12 NYCRR 23-3.2[a][1], 3.3[b][1] and 3.3[b[3]).

Accordingly, it is

ORDERED, that defendants' motions and cross motions for summary judgment dismissing the complaint in its entirety are granted; and it is further

ORDERED, that the cross motion of third-party defendant Lowy & Donnath, Inc. for summary judgment dismissing the third-party complaint is denied as academic; and it is further

ORDERED, that the Clerk enter judgment accordingly.

The foregoing constitutes the Decision and Order of the Court.

Dated: JAN 30, 2008/s/

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