The motion by defendant for summary judgment dismissing plaintiff's causes of action pursuant to Labor Law §240(1), §241(6), §200 is granted with respect to Labor Law §§240(1) and 200 only.

The cause of action is for personal injuries sustained by plaintiff on June 14, 2005 when she was working for non-party Archicraft as an iron worker. At the time of the accident, plaintiff was working on the bed of a flatbed truck and stepped into a hole in said flatbed when she attempted to avoid being struck by a guardrail that swung towards her head.

Defendant moves for summary judgment on plaintiff's labor law causes of action. Plaintiff, in her opposition papers, withdrew her claim under Labor Law §240(1). Therefore, that claim is dismissed on consent.

Next defendant argues that plaintiff's claim pursuant to Labor Law §200 must be dismissed as plaintiff has failed to show that defendant exercised supervision, direction or control of plaintiff's work. In addition, defendant asserts that plaintiff's claim pursuant to Labor Law §241(6) should be dismissed because plaintiff has not shown an Industrial Code Violation.

Plaintiff opposes the motion as it pertains to Labor Law §200 and refers to the deposition testimony of defendant's witness, Dan Kenny, the General Superintendent of defendant construction company. Plaintiff asserts that at his deposition, Mr. Kenny testified that defendant was responsible for safety on the job site and defendant had numerous safety supervisors present at the work site who were responsible for walking the site and looking for unsafe conditions. [*2]Moreover, plaintiff argues that Mr. Kenny admitted that he had previously seen the flatbed truck plaintiff was working on and he was familiar with the hoisting process. Mr. Kenny also performed "walk throughs" at the work site to make sure the rigging was performed in a safe manner. In addition, plaintiff asserts that Mr. Kenny specifically stated at his deposition that loads were not supposed to be hoisted over a person's head. As a result, plaintiff argues that defendant did not maintain a safe work environment and defendant is liable to plaintiff under Labor Law §200.

Labor Law §200 is a codification of the common law principal that a general contractor has a duty to maintain a safe work place. Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993). Recovery under a Labor Law §200 claim against the owner or general contractor, "...cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation" (citations omitted). Id. at 505; Reilly v. Newireen Associates, 303 AD2d 214 (1st Dept. 2003). Moreover, "...liability can only be imposed if defendant exercised control or supervision over the work and had actual or constructive notice of the purportedly unsafe condition" (citations omitted). Singh v. Black Diamonds LLC, 24 AD3d 138 (1st Dept. 2005).

In the case at bar, defendant's witness, Mr. Kenny, testified at his deposition that he was familiar with the subcontractor "UAD" through which the plaintiff was hired to work. UAD had four to ten workers at the work site but Mr. Kenny did not know how many were on the site on the day of plaintiff's accident nor what work they were performing that day. When he learned of the accident and went to the site of the incident, he observed a UAD flatbed truck. He had not received any complaints about the hoists used on the project or the manner in which UAD was performing the hoisting nor did he ever receive complaints about any of the flatbed trucks. In addition, plaintiff, whose duty the day of the accident was to tie a tag line to the hoist that was carrying the guardrails, was instructed on how to attach the tag lines to the hoist by her foreman from UAD, Hector Mejia. There was no one directing the hoisting on the day of her accident.

Plaintiff herein has failed to demonstrate that defendant had any direct oversight or supervision of the hoisting of materials. Moreover, there is no evidence to show that defendant had notice of any problem with the hoisting or with the flatbed truck. In O'Sullivan v. IDI Construction Co., Inc., 28 AD3d 225 (1st Dept. 2006), the court stated, "...while the general contractor's on-site safety manager may have had overall responsibility for the safety of the work done by the subcontractors, such duty to supervise and enforce general safety standards at the work site was insufficient to raise a question of fact as to its negligence" (citations omitted). Id. at 226. Therefore, the fact that defendant had safety supervisors present at the work site performing "walk throughs" is insufficient.

Furthermore, the fact that defendant may have had the authority to stop work for safety reasons, "...is insufficient to raise a triable issue of fact with respect to whether [the general contractor] exercised the requisite degree of supervision and control over the work being performed to sustain a claim under Labor Law §200 or for common-law negligence" (citations [*3]omitted). Hughes v. Tishman Construction Corp., 40 AD3d 305, 309 (1st Dept. 2007); Reilly v. Newireen Associates (supra); Singleton v. Citnalta Construction Corp., 291 AD2d 393 (2nd Dept. 2002).

Accordingly, plaintiff's claim pursuant to Labor Law §200 is dismissed.

Plaintiff alleges that defendant is liable to her pursuant to Labor Law §241(6) in that defendant violated several regulations of the Industrial Code. Some of these violations include hoisting violations and tripping hazards in the work area, including hazardous openings. Defendants allege that the Industrial Code violations alleged by the plaintiff are inapplicable to the case at bar. This court finds pursuant to C.P.L.R. §3212, that there is an issue of fact with respect to whether or not defendant violated the regulations of the Industrial Code listed by the plaintiff in her bill of particulars. Accordingly, the motion with respect to Labor Law §241(6) is denied.

Movant is directed to serve a copy of this order with notice of entry upon the plaintiff and file proof thereof with the clerk's office.

This constitutes the decision and order of this court.

Dated:August 1, 2008

J.S.C.