Upon the foregoing papers, the decision and order of the court is as follows:

This is an action in negligence arising from alleged violations of sections 200, 240 (1) and 241 (6) of the Labor Laws. Issue has been joined by both defendants, who now move for summary judgment dismissing plaintiff's complaint. Plaintiff cross moves for summary judgment only on his section 240 (1) and 241 (6) causes of action.

The note of issue was filed and these motions were brought timely; they will be decided on the merits. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004). The court's decision is as follows:

Arguments

At the time of his accident on October 25, 2005, Arthur Marooney ( plaintiff") was employed by non-party B & R Rebar Consultants ( B & R") as a steel laborer. Defendant 125 West 31st Street Associates, LLC is the owner of the property where the construction project took place ( owner") and Gotham Construction ( Gotham") was the general contractor.

Plaintiff has been deposed. At his deposition ( EBT") he testified that he took orders and direction from his foreman, Xavier," who also worked for B & R. Xavier instructed him on the day of the accident to see another foreman Ray" upstairs and get to work. Ray" was also [*2]employed by B & R. Plaintiff went over to a ladder that was leaning against a bridge. The ladder, which was 30 feet tall, was only partially extended to approximately 20 feet. The bottom three (3) rungs were obstructed by scaffolding. Plaintiff testified at his EBT that the ladder had been there for several days, he did not know who had placed it there (but it had not been him). He and other workers had used it prior to the date of the accident without any incident. Plaintiff also testified at his EBT that there was debris surrounding and under the ladder, although not directly under its feet.

According to plaintiff he could only access the ladder from its side. He placed his right foot on the 4th or 5th rung (because the first three (3) rungs were inaccessible) and then stepped up with his left foot. As he stepped up to the next rung, and as his left foot was in midair, the ladder shifted to the right, it came loose" and went backwards, causing plaintiff to fall off. Plaintiff testified at his EBT that he fell approximately 5 feet, assuming each rung of the ladder was one foot apart.

Plaintiff was wearing a helmet at the time of his accident, but he had no other safety device. Although he testified that other safety devices were probably" available at the work site, in B & R's gang boxes, he testified that he was not provided with anything to stop him from falling, like a belt, harness, or other similar safety equipment. The ladder itself was not tied, or braced, nor was anyone holding it steady.

Plaintiff claims that the defendants violated Labor Law section 200 because, even if the ladder was not placed there by either one of them because it was there so many days, there was constructive notice of a dangerous condition that defendants did not correct. Alternatively, if either defendant was responsible for the placement of the ladder, they created the dangerous condition.

Plaintiff contends he has a prima facie Labor Law § 240 (1) ladder case" because the ladder was defective in that it tipped or shifted, and then fell. He argues further that whomever put the ladder there did so improperly and that thereafter, it was improperly maintained. Plaintiff argues that it makes no difference how many workers used it without a problem prior to his accident, or even that he himself used on prior occasions without it falling over. He argues that he examined the ladder before using on the day of the accident and did not observe any apparent defect.

Plaintiff claims the ladder was improperly placed because he could not access it directly from in front, but had to access it from the side. Had he been provided with a belt or harness, he argues, he would not have fallen. Plaintiff denies any negligence on his part, but contends that even if he did contribute to the happening of his accident, he was not the sole cause of it, and therefore his actions are not an available defense to this action and his motion for summary judgment.

In support of his Labor Law § 241 (6) cause of action, plaintiff alleges violations of a number of Industrial Code regulations, including 23-1.21 (b) (4) (i), (ii) and (v). These regulations set forth the standards applicable to the installation and use of ladders and ladder ways. The other regulations he relies upon are as follows: 23-1.5 (general responsibilities), 23-1.7 (protection from general hazards), 23-1.8 (protective equipment), 23-1.15 (safety railings), 23-1.16 (safety belts, harnesses, etc.), 23-1.17 (life nets) 23-2 (housekeeping) and 23-5 (scaffolding). [*3]

Plaintiff has not moved with respect to his Labor Law § 200 (common law negligence) claim, but opposes defendants' motion. He contends that the deposition testimony of Gotham's Vice President, Kevin Connolly, establishes that Gotham was present at the project site every day. Connolly testified that he, Joseph Deluna the site safety manager, and others employed by Gotham, walked the site daily. Deluna was supposed to be checking for any unsafe conditions which would, in turn, report to the foreman of the various contractors. Connolly testified at his EBT, however, that he personally did not check any ladders for safety, and he did not know if Deluna had.

Defendants argue they are entitled to summary judgment on plaintiff's Labor Law § 200 (and common law negligence) claim because they did not direct, supervise or control his work, but he received all his instructions and directions from B & R's foremen. Defendants argue further that they did not place the ladder in the place or manner it was at the time of plaintiff's accident, nor did they have any notice of a dangerous condition.

As a defense to plaintiff's Labor Law § 240 (1) cause of action, and in opposition to his claims, defendants argue that plaintiff's fall was from a de minimus height, and therefore not entitled to the extraordinary protections afforded by the statute which imposes absolute liability.

Defendants claim that plaintiff's section 241 (6) claims must be dismissed as well because plaintiff relies on Industrial Code regulations that are either inapplicable, or do not form a predicate basis for this cause of action because there are generic directives, not specific regulations. Defendants contend that the ladder was not defective, and therefore section 23-1.21 is inapplicable.

In deciding whether the defendants are entitled to the grant of summary judgment in their favor, the court considers whether they have tendered sufficient evidence to eliminate any material issues of fact from this case. " E.G. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985); Zuckerman v. City of New York , 49 NY2d 557, 562 (1980). If met, the burden shifts to plaintiff who must then demonstrate the existence of a triable issue of fact in order to defeat these motions. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, supra.

When an issue of law is raised in connection with a motion for summary judgment, the court may and should resolve it without the need for a testimonial hearing. See: Hindes v. Weisz, 303 AD2d 459 (2nd Dept 2003). The question of whether the plaintiff has alleged a concrete specification of the Industrial Code, and whether the condition alleged is within the scope of the Industrial Code regulation, usually presents a legal issue for the court to decide. Messina v. City of New York, 30 AD2d 121 (1st Dept 2002).

Labor Law § 240 (1)

Labor Law § 240(1) imposes a non-delegable duty upon the owner and contractor to supply necessary security devices for workers at an elevation, to protect them from falling. Bland v. Manocherian, 66 NY2d 452, 458-459 (1985). An owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work. Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 (1993). Therefore, a violation of this duty results in absolute liability where the violation was the proximate cause of the accident. Meade v. Rock-McGraw, Inc., 307 AD2d 156 (1st Dept. [*4]2003).

Plaintiff has established through his own sworn testimony that the ladder he was in the process of stepping onto tipped, shifted, came loose, or otherwise moved backwards, causing him to loose his balance, slip and fall off of it. He has proved, and it is unrefuted, that the first three (3) rungs of the ladder were not accessible to him because they were obstructed. Plaintiff has testified, and it is unrefuted, that he was several feet off the ground when he fell, estimating each rung to be about 1 foot apart. Although defendants characterize plaintiff's fall as being from a de minimus height, this is a mischaracterization of plaintiff's accident. It is also an incorrect statement of the law.

It is well established law that not every worker who falls at a construction site is entitled to the extraordinary protections of Labor Law § 240 (1) imposing absolute liability upon an owner and contractor, Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein. See: Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 (1993); Cohen v. Memorial Sloan-Kettering Cancer Center, 50 AD3d 227 (1st Dept 2008). Thus, the court has to evaluate and decide whether the particular task that plaintiff was engaged in created an elevation-related risk of the kind that the safety devices listed in section 240 (1) are likely to protect against. Broggy v. Rockefeller Group, Inc., 8 NY3d 675 at 681 (2007).

In characterizing plaintiff's fall as de minimus," defendants urge the court to decide, as a matter of law, that his fall from three, four or five feet was not dangerous. However, it is not the height of the fall that dictates the danger entailed because falls are not subject to exacting numerical quantifications. Amos v. Little Rapids Corp., 301 AD2d 698, 701, app dism 1 NY3d 558 (2003). A fall from as low as the 2nd rung of a ladder has been found to be within the protections of Labor Law § 240 (1). See: Cohen v. Memorial Sloan-Kettering Cancer Center, supra. Examining the circumstances of plaintiff's fall, the court finds that he did not fall from a de minimus height.

The improper placement of a ladder and the failure to secure it are violations of Labor Law § 240 (1). Carlos v. W.H.P. 19 LLC,, 280 AD2d 419 (1st Dept 2001). Thus, even assuming plaintiff continued to use the ladder he knew had been only partially opened, and was not secured, is not evidence that he was the sole proximate cause of his accident, as defendants urge. Carlos v. W.H.P. 19 LLC,, supra.

Although defendants also argue the ladder was not defective, this is not a triable issue of fact that defeats plaintiff's motion either. It is sufficient for purposes of liability under section 240 (1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent. Potter v. NYC Partnership Housing Development Fund Co., Inc., 13 AD3d 83 (1st Dept 2004). Plaintiff has established that he was provided with a ladder that did not allow him to safely perform his job, and that even if the ladder was not defective, he was not provided with adequate safety devices to prevent his fall. Nor is it a defense that safety devices may have been available somewhere on the job site, or that plaintiff may have ignored the safety instructions he may have been given prior to the date of his accident. Morrison v City of New York, 306 AD2d 86 (1st Dept 2003).

Although defendants argue that plaintiff was the sole proximate cause of his accident because he used the same ladder, placed in the same location a number of time before he fell, this argument is unavailing. Even assuming defendant could prove at [*5]trial that plaintiff contributed to the happening of his accident, contributory negligence is not a defense to a prima facie showing of section 240 (1) liability. Blake v Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280, 287 (2003).

Since plaintiff has proved his prima facie case under Labor Law § 240 (1), and defendants have failed to set forth material factual disputes that require a trial before the issue of liability can be decided, plaintiff's cross motion for summary judgment on his Labor Law 240 (1) claims as to the issue of liability is granted; defendants' motion for summary judgment on that claim is denied.

Labor Law § 241 (6)

Labor Law § 241 (6) imposes a nondelegable duty upon an owner or general contractor to provide reasonable and adequate protection of persons working at the site and as part of plaintiff's prima facie case he must plead and prove that the owner or general contractor actually supervised or controlled the work. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 350 (1998). Plaintiff must also plead and prove the violation by the defendants of a concrete specification of the Industrial Code, and that the violation was a proximate cause of his injuries.

Although defendants argue that plaintiff failed to cite specific code sub-provisions under section 23-1.21 in his Bill of Particulars, and that on that basis alone his complaint should be dismissed, the court disagrees. Section 23-1.21 is a concrete specification that supports a cause of action under Labor Law § 241 (6) and plaintiff's bill of particulars clearly sets forth his claims. See Kun Yong Ke v. Oversea Chinese Mission, Inc., 49 AD3d 508 (2nd Dept 2008). Therefore, plaintiff has adequately satisfied the threshold pleading requirements of a Labor Law § 241 (6) cause of action. Padilla v. Frances Schervier, 303 AD2d 194 (1st Dept 2003).

In his cross motion for summary judgment, plaintiff addresses the individual sub-sections he claims support his Industrial Code violation claims. Section 23-1.21 (b) (4) (i) requires that a ladder be fastened securely. Kinsler v. Lu-Four Associates, 215 AD2d 631 (2nd Dept 1995). Section 23-1.21 (b) (4) (ii) requires that all ladder footings be firm. Sprague v. Peckham Materials Corp., 240 AD2d 392 (2nd Dept 1997). Section 23-1.21 (b) (4) (v) requires that the upper end of any ladder which is leaning against a slippery surface shall be mechanically secured against side slip while work is being performed from such ladder." Kwang Ho Kim v. D & W Shin Realty Corp., 47 AD3d 616 (2nd Dept 2008). The court finds that these regulations are all applicable to the facts of this case, and therefore serve as the predicate bases for plaintiff's Labor Law § 241 (6) claim.

Unlike Labor Law § 240 (1), the culpable conduct of the injured person is relevant under section 241 (6), and the comparative fault of the plaintiff should be considered. Rocovich v. Consolidated Edison Co., 78 NY2d 509, 512 (1991). Defendants argue that plaintiff was the cause of his accident because he had used the (untied) ladder a number of times without any incident. They argue further that he even examined the ladder before using it and did not see anything wrong with it. Although he noticed it was not tied down, he did not any safety measures, but proceeded to use the ladder the way it was. Thus, defendants have raised issues of fact that must be decided by the trier of fact, defeating plaintiff''s cross motion for summary judgment on this cause of action.

Plaintiff also cites violations of other Industrial Code regulations in his Bill of Particular. He does not, however, cross move for summary judgment on them, nor oppose defendants [*6]motion for summary judgment dismissing them. It would appear he has, therefore, abandoned them. In any event, for the reasons that follow, the court finds them either inapplicable, or not specific regulations.

Section 23-1.5 (a) requires "reasonable and adequate" protection and that machinery be in "good repair" and "safe." This is a general directive, and therefore an insufficient predicate for § 241 (6) liability. Hawkins v. City of New York, 275 AD2d 634 (1st Dept 2000).

Section 23-1.7 has a number of subparts. Assuming he means section 23-1.7 (d), this is a specific directive that would support a section 241 (6) cause of action, but is inapplicable to the facts of this case. Lopez v. City of New York Transit Authority, 21 AD3d 259 (1st Dept 2005). Although plaintiff testified there was debris on the ground where the ladder was standing, he also testified there was no debris under its feet. Thus, while the ladder did shift, topple, come loose, and in a manner of speaking slip," it did not slip within the meaning of this regulation. Lopez v. City of New York Transit Authority, supra.

Section 23-1.8 contains subparts, none of which are applicable (e.g. eye protection, head protection, protection from corrosive substances), and therefore do not support his section 241 (6) claim.

Section 23-1.16, 23-1.17 do not apply where the devices listed have not been provided. Dzieran v. 1800 Boston Road, LLC, 25 AD3d 336 (1st Dept 2006).

Plaintiff did not step onto debris nor was he on scaffolding at the time of his accident, therefore neither section 23-2 nor 23-5 apply.

Therefore, defendants' motion for summary judgment on plaintiff's section 241 (6) claim is granted only to the extent that plaintiff relies upon sections 23-1.5 (a), 23-1.7, 23-1.15, 23-1.16, 23-1.17, 23.2 and 23.5 of the Industrial Code, but denied as to section 23-1.21 (b) (i), (ii), and (v), for the reasons stated.

Labor Law § 200

Labor Law § 200 codifies the common law duty imposed upon an owner or general contractor to maintain a safe construction site. Rizzuto v. L.A. Wenger Contracting Co., supra. Unlike Labor Law § 241 (6), liability can be imposed only if the defendant has actually been negligent. At trial, plaintiff must prove the defendant exercised supervisory and control over the work performed or had actual or constructive notice of the dangerous condition alleged, or created the condition. Sheridan v. Beaver Tower Inc., 229 AD2d 302 (1st dept. 1996) lv den 89 NY2d 860 (1996); O'Sullivan v. IDI Construction Co., Inc., 7 NY3d 805 (2006); Rizzuto v. L.A. Wenger Contracting Co., supra at 352; Gonzalez v. United Parcel Serv., 249 AD2d 210 (1st dept. 1998). Where the alleged defect or dangerous condition arises from the [sub]contractor's methods, and the owner exercised no supervisory control over the operation, no liability will be imposed on the owner or general contractor under either the common law or Labor Law § 200. Comes v. New York State Elec. & Gas Corp., 82 NY2d 876 (1993); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 (1993).

Defendants have met their burden of showing that neither of them supervised, controlled, or directed the manner in which plaintiff performed his work, i.e. how the injury producing work was performed. Plaintiff testified that he received all his instructions from the foremen, both of whom were B & R employees.

There is, however, a factual dispute whether Gotham had notice of a dangerous condition [*7]that its staff should have observed when they conducted daily inspections. The ladder was placed on the bridge between the ground and 1st floor by some unknown person. It remained at that location for several days. This was the only way to access the 1st floor from the ground floor. Even Gotham employees used the ladder prior to plaintiff's accident. Although Deluna, Connolly and others inspected the site daily, Connolly testified he did not personally inspect this ladder for safety and he did not know if Deluna, the site safety manager had inspected it. Therefore, plaintiff has set forth unresolved factual issues about Gotham's negligence.

There is, however, no evidence of the owner's negligence and plaintiff has failed to raise triable issues as to whether the owner had actual or constructive notice of, or created, a dangerous condition. Compare: Bonura v. KWK Associates, Inc., 2 AD3d 207 (1st Dept 2003) (deposition testimony of owner's employee raised triable issues as to whether owner had actual or constructive notice of a hazardous condition). Therefore, defendants' motion is granted as to the owner only and the section 200 (common law negligence) claims against the owner are severed and dismissed .

Conclusion

Plaintiff has met his burden of proving he is entitled to summary judgment on his Labor Law § 240 (1) claims on the issue of liability against both defendants. Therefore, his cross motion for summary judgment on those claims is granted. The defendants' motion on those claims is denied. The issue of damages has to be tried.

Plaintiff's cross motion for summary judgment on his Labor Law § 241 (6) claim is denied. To the extent that his Labor Law § 241 (6) claims are based upon alleged violations of Industrial Code sections 23-1.5 (a), 23-1.7, 23-1.15, 23-1.16, 23-1.17, 23.2 and 23.5, defendants' motion for summary judgment is granted. However, to the extent that plaintiff's Labor Law § 241 (6) claim is predicated upon an alleged violation of 23-1.21, there are factual disputes that must be decided at trial, and therefore, defendants' motion is denied.

Defendant's motion for summary judgment dismissing plaintiff's Labor Law § 200 (common law negligence) claims is granted as to the owner, but denied as to Gotham. The clerk shall enter judgment severing the section 200 claims against 125 West 31st Street Associates, LLC.

This case is ready to be tried. Plaintiff shall serve a copy of this decision/order on the office of Trial Support so that the case can be scheduled.

Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.

This constitutes the decision and order of the court.

Dated:New York, New York

July 29, 2008So Ordered:

______________________

Hon. Judith J. Gische, JSC