Caban v House of Pizza & Calzone (2009 NY Slip Op 51151(U))

Caban v House of Pizza & Calzone

2009 NY Slip Op 51151(U) [23 Misc 3d 1136(A)]

Decided on June 2, 2009

Supreme Court, Kings County

Rivera, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Upon the foregoing papers, defendants The House of Pizza & Calzone (the Restaurant), Gino Vitale (Vitale) and Paul Di'Agostino (Di'Agostino) move, pursuant to CPLR 3212, for an order granting summary judgment in their favor and dismissing plaintiff's complaint, and plaintiff Edwin Caban (Caban) cross-moves, pursuant to CPLR 3212, granting partial summary judgment on the issue of liability pursuant to Labor Law § § 240(1) and 241(6).

The House of Pizza and Calzone is a storefront pizzeria located at 132 Union Street. The principal owners of the building and restaurant are Vitale and Di'Agostino. There is an outdoor yard (the yard) behind the building, in which is situated a telephone pole (the pole), owned by Verizon, that provides telephone service to approximately 25 residential customers in the area.Caban and Cullymore arrived at the building at approximately 8:15 a.m. and, as the restaurant was closed, entered the yard through the adjoining building. Upon so entering, they observed the terminal unattached from the pole.

After unloading their equipment, Caban assembled a ladder by connecting four sections—three six-foot sections and one two and a half foot section. He then tested the strand wire that was placed on top of the telephone pole by throwing a rope over it and grabbing each end of the rope and tugging the rope. He never tested the bracket that secured the strand. He then placed his ladder against the strand, climbed the ladder and connected a sling, a metal object which connects to the ladder by a clamp, which permits the technician to set back while performing his work.

Caban was working for a few minutes when the bracket securing the strand came loose, allowing the strand to come out of the bracket, causing plaintiff to fall to the ground below, and resulting in injuries for which plaintiff now seeks damages.

Plaintiff commenced the instant lawsuit by the filing and service of a summons and verified complaint on or about October 6, 2006, alleging violations of Labor Law §§ 240(1), 241(6) and 200, as well as common-law negligence, on the part of defendants. On December 11, 2006, issue was joined when all defendants interposed an answer. Plaintiff subsequently served a verified bill of particulars, depositions have been held, and all discovery appears to have been completed.

Defendants and plaintiff each offer different factual predicates in support of their respective positions.

According to Di'Agostino's testimony, prior to May 5, 2006, in response to complaints from its residential customers, Verizon technicians visited the Restaurant and requested access to the yard to inspect the pole. Di'Agostino testified that he provided access, but never actually observed whether any work was performed.

Ultimately, Di'Agostino himself purportedly encountered problems with telephone service at the pizzeria. As a result, he contacted Verizon. Thereafter, a Verizon technician visited the pizzeria and after inspecting the pole, advised DiAgostino that the Verizon-owned terminal, which houses the telephone wires and is connected to the top of the pole, was disconnected from the pole and dangling close to the ground.

A few days later, a Verizon foreman viewed the pole and, according to Di'Agostino, told him that a Verizon engineer would inspect the condition of the pole and terminal. [*3]Thereafter, he returned with another employee and conducted an inspection. Di'Agostino testified that he never observed Verizon employees again, but was to later learn that in early May of 2006, the pole was moved. However, he had no further contact with any other Verizon employees.

Defendants aver that it is undisputed that neither Di'Agostino, Vitale or the Restaurant directed or controlled Caban's work, that no construction work was ever performed in the rear of the pizzeria, and that the yard was never utilized for outdoor seating. They further contend that plaintiff's claim appears to hinge on a theory that either Di'Agostino or Vitale requested that Verizon move the Verizon-owned pole to another location within the yard, but in denying that any such request was made, note that although in such cases the owner of the property is charged for the service, no such charge issued here. Further anticipating plaintiff's reliance on the deposition testimony of Alex Pereira, a plant engineer employed by Verizon, who testified that he received a telephone call from Di'Agostino in October of 2005 requesting that Verizon move the pole because he was doing construction, defendants challenge the extent of Pereira's knowledge concerning the site based upon his inability to describe its condition or identify photographs of the yard, and claim that Verizon's repair of a hanging terminal was required, regardless of Di'Agostino's alleged request. They further aver that Pereira's statement should be regarded as inadmissible hearsay.

Finally, defendants assert: that plaintiff's Labor Law §§ 240(1) and 241(6) causes of action should be dismissed because his actions, in failing to ensure that the strand and bracket—the only supportive devices for the placement of his ladder—were sufficiently secure, were the sole proximate cause of the accident; that his § 241(6) claim should be dismissed because he relies on non-specific and inapplicable provisions of the Industrial Code; and that his §200 claim should be dismissed because none of the defendants supervised, directed or controlled his work, or otherwise had notice of the defective condition of the strand or bracket.

In his verified bill of particulars, plaintiff alleges that he was not provided "a safe and proper construction site, safety lines, safety equipment and ladder that would have prevented plaintiff from falling several feet causing him to sustain serious. . .injuries."

In his cross motion, plaintiff disputes the defendants' factual setting as an unfounded attempt to cast the work plaintiff performed as routine maintenance. In support of his position that he was, in fact, involved in a construction project, he relies on his own testimony as well as on that of Pereira. In this regard, he asserts that Pereira testified at his examination before trial that the telephone pole was relocated at the request of the defendant-owners as part of the owners' construction project, and that Pereira denied that Di'Agostino ever stated anything to him about bad phone service being the reason why defendants requested that the pole be moved:

A: He said he is doing some construction, and he wants the pole to be moved. [*4]

Plaintiff further disputes defendants' attempt to portray Pereira as unknowledgeable about the yard or the activity that was taking place therein:

Q: When you went to the House of Pizza & Calzone to do your site evaluation, did you see any work that was being done in the rear at that time?

Plaintiff additionally cites Pereira's testimony regarding his conversation with Di'Agostino:

A: I told him I am the Verizon rep, and what can I do for you. He told me—he took me to the yard to look where the pole is located at, where the construction is going to be, and from there, I tell him, where do you want me to put the pole. He told me to move the pole to the left of that building. That is where he wanted the pole to be, on the corner. . . .He told me the pole is in the way of the foundation so it needs to be moved.

Plaintiff further points out that: (1) in his deposition testimony, Pereira detailed what work Verizon performed pursuant to an owner's request, outlining the process of construction that is necessary to relocate a pole;^[FN1] (2) Pereira identified plans reflecting the original request by the Owner to move the pole;^[FN2] (3) Pereira also testified that although he did not see any construction underway during the time he was in the yard, he observed bags with cement in them, as well as grey bricks piled "where the construction was going to take place;" and (4) as stated by plaintiff in his own affidavit, on the date of the accident, he had a discussion with "Paul", the owner of the property, who informed him that he had requested that Verizon relocate the pole to accommodate his construction project of expanding the seating to his restaurant.

Also contained in the aforementioned affidavit is plaintiff's statement of how the accident occurred. Plaintiff alleges that at the time of the accident, he was properly utilizing a ladder which was physically connected to a sling, which in turn was physically latched onto an overhead cable commonly referred to as a strand. He had a tail line attached to his safety [*5]harness which was in turn hooked to the overhead handing strand. The hanging strand was anchored to telephone poles by brackets. In case of a fall, the tail line, so attached, was intended to catch him before he fell to the ground. However, on that day, the bracket on the pole securing the strand came loose, allowing the strand to come out, and resulting in plaintiff's falling to the ground.

In his deposition testimony, plaintiff describes a brief conversation he had with Di'Agostino in the yard, approximately one-half hour before the accident occurred. According to his testimony, Vitale and Di'Agostino had both come outside. Di'Agostino said he had asked the company to move the pole and that it was an eyesore because he was building an eatery in back. Plaintiff testified that it appeared to him that the pole had already been moved, that the terminal was dangling from the strand, and that as splicers, his department, and not the line gang, was responsible for undertaking the repair.

Based upon the foregoing evidence, plaintiff contends that he has demonstrated that defendants have violated the pertinent sections, namely, sections 240(1) and 241(6), of the Labor Law as set forth. Absent from his arguments is any contention regarding his Labor Law § 200 and common-law negligence claims.

Defendants argue that Caban is not entitled to summary judgment on his remaining causes of action and said claims should be dismissed because it is undisputed that Caban was performing work on a Verizon-owned pole and wires, and his work did not involve any equipment or fixtures owned by any of the moving defendants. They further discount any relevance which might attach to the claim that Di'Agositino requested that the pole be relocated because they did not act as owners of Verizon's equipment, and did not have the right to control Caban's work or to insist that proper safety practices be followed by Caban, a Verizon employee, and submit that the evidence shows that Caban performed his work without their knowledge. Alternatively, they contend that the cited sections of the Labor Law do not apply because (1) Caban was engaged in routine maintenance, since he was only involved in the preparatory stages of splicing; and (2) his failure to inspect the bracket led to his being the sole proximate cause of the accident.

With respect to plaintiff's Labor Law § 241(6) cause of action, defendants correctly assert that plaintiff does not oppose dismissal on various inapplicable Industrial Code provisions set forth in his bill of particulars, instead limiting his claim to Industrial Code 23-1.16. Defendants, however, argue that this section of the Industrial Code is inapplicable as well, asserting that the evidence shows that Caban's tail line did not come loose, and in fact was still connected to the strand when the incident occurred.

Marshaling the same arguments employed by them in their opposition, defendants reiterate their contention that they are entitled to summary judgment on their motion. In addition, they aver that defendants were not charged for the work performed by Verizon, thus rendering Caban a volunteer and thus unentitled to the protections of the Labor Law.

In reply, plaintiff, distinguishing the authority upon which defendants rely, argues that under the Labor Law, defendants are considered to be owners not only of the property, but also of the pole itself, since they contracted for and benefitted from the relocation of the pole. He further avers that the activity of splicing is a protected activity under the Labor Law, and that even if this were to be found not to be the case, plaintiff was present on the date of the accident as part of a larger construction project involving the relocation of the pole. Finally, plaintiff rejects defendants' contention that his failure to inspect the bracket was the sole proximate cause of the accident, and further argues that Industrial Code § 23-1.16 is sufficiently specific so as to qualify as a statutory predicate under Labor Law § 241(6).

The core objective of Labor Law § 240 (1) is to prevent a worker from falling from an elevated height differential by providing him with protective devices (i.e., safety lines, harnesses, rope grabs or netting) that prevent such falls (Ross v Curtis Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]). Labor Law § 240 (1) provides in pertinent part that:

"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 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 the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners and general contractors and their agents who "are best situated to bear that responsibility" (Id. at 500; see also Blake v Neighborhood Housing Services of New York [*7]City, Inc., 1 NY3d 280 [2003]; Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520 [1985]). Moreover, "the duty imposed by Labor Law § 240 (1) is nondelegable and . . . 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 at 500; see also Haimes v New York Tel. Co., 46 NY2d 132, 136-137 [1978]). Finally, the statute is to be construed as liberally as possible in order to accomplish its protective goals (see Blake, 1 NY3d at 284-285; Martinez v City of New York, 93 NY2d 322, 326 [1999]).

Based upon the admissible evidence provided in support of the parties' respective motions, the court finds that plaintiff has demonstrated the applicability of Labor Law § 240(1) to the subject gravity-related accident (see Ross, 81 NY2d at 501). As to the question of whether the pole qualifies as a structure, it has been conclusively settled that "[u]nder Labor Law § 240(1), a "structure" is "any production or piece of work artificially built up or composed of parts joined together in some definite manner". . .[a]ccordingly, a telephone pole with attached hardware, cable and support systems constitutes a structure within the meaning of that section" (Lewis-Moors v Contel of New York, Inc., 167 AD2d 732 [1990], aff'd 78 NY2d 942 [1991] [citation omitted]; see also Tauriello v New York Telephone Co., 199 AD2d 377 [1993]; Garrant v New York Telephone Co., 179 AD2d 960 [1992]). Thus, the telephone pole, by definition, is a structure. Furthermore, the relocation of the telephone pole, the fact of which is amply established by plaintiff's evidentiary showing, and supported by Vitale's own testimony, is an activity akin to alteration or demolition of a structure and, thus, covered under Labor Law § 240(1) (see Lewis-Moors, 167 AD2d at 733; see also Silva v New York Telephone Co., 267 AD2d 634 [1999]), and plaintiff's work in splicing wires as part of such construction was a protected activity thereunder (see Cunningham v Alexander's King Plaza, LLC., 22 AD3d 703, 706 [2005]; see also Joblon v Solow, 91 NY2d 457, 465 [1998]).

Defendants' denial of ownership of the pole and their contention that as non-owners of the structure they cannot be held strictly liable under Labor Law § 240(1) must be rejected. Both Vitale and Di'Agostino, at their respective depositions, testified that they jointly own the property located at 132 Union Street, as well as the restaurant. While there is no dispute that Verizon owned the telephone pole and the bracket, defendants' argument that they are not liable as owners under the provisions of Labor Law § 240(1) is unsupported by controlling authority in New York. In Gordon v Eastern Railway Supply (82 NY2d 555 [1993]), the plaintiff fell from a ladder while using a sandblaster to a clean a railroad car owned by GATX Capital Corp. Defendant Eastern Railway owned the property upon which the accident took place, but argued that (1) it leased the property to plaintiff's employer,^[FN3] and (2) it neither contracted to have the work performed nor was the work performed for its benefit. The Court of Appeals found that both Sections 240(1) and 241(6) of the Labor Law [*8]provide that the statutory duty is nondelegable, and that the specific language of Labor Law § 240(1), following its amendment in 1969, "does not require that the owner exercise supervision or control over the worksite before liability attaches. . .[l]iability rests upon the fact of ownership and whether Eastern had contracted for the work or benefitted from it are legally irrelevant" (Gordon, 82 NY2d at 560). The Gordon Court further rejected Eastern Railway's claim that since it was not the owner of the "structure" (i.e., the railroad car), it could not be held liable for plaintiff's injures, finding that "[t]he very presence of the structure on its property was the direct result of Eastern's actions and established a sufficient nexus for liability to attach to it as an owner'" (Id.).

In the present matter, for the purpose of establishing ownership under the statute, it is irrelevant whether defendants contacted Verizon based upon complaints regarding problematic phone service, or in order to have the pole relocated for the purpose of expanding the restaurant's space in the yard. Di'Agostino testified that prior to May 5, 2006, only he and employees had access to the back yard, and he further testified that (1) after experiencing service problems in his own restaurant in the fall of 2005, he contacted Verizon, and permitted their workers to enter the yard, and (2) he learned from one of Verizon's "technicians" that the pole was unsafe. Under either factual scenario, a sufficient nexus under the Gordon standard has been established, since, by granting Verizon permission to undertake the work, defendants exercised authority as "owner" (see Rhode-Evans v 111 Chelsea LLC, 44 AD3d 430, 432 [2007]), and it is thus irrelevant that defendants did not own the bracket or the device which plaintiff was repairing at the time of the accident (see Williams v LeChase, 15 AD3d 988, 989 [2005]).

Cases relied upon by defendants to support their narrow argument that they cannot be considered owners because they were not the owners of the telephone box that allegedly required repair, are readily distinguishable. In Ackley v New York State Elec. and Gas Corp. (8 AD3d 941 [2004]), the motion court's order granting summary judgment dismissing the complaint was affirmed upon a finding that moving defendant, which was sued solely as the joint owner of the utility pole from which plaintiff, an employee of the co-owner who was injured in a fall while on ladder installing an additional service line for the pole's co-owner, was unaware that the work was being done and owned none of the equipment being installed (Id. at 942). Although the court found "that the complaint was properly dismissed since defendant was not the owner of the telephone box being altered or the telephone line being added", its holding is further qualified by its finding that defendant "did not otherwise act in the capacity of an owner with respect to the equipment being utilized or the work being performed" (Id. [citations omitted]). Similarly, in Sarigul v New York Telephone Co. (4 AD3d 168 [2004]), the complaint was dismissed against moving defendant, a non-titleholder, upon an express finding that it neither was an "owner" of the subject cable wire that plaintiff was altering at the time of the incident, or otherwise acted in the capacity of an owner (Id. at 169-170 ["(i)t has been held that the key in ascertaining whether a non-titleholder party is an owner' under the statute is the 'right to insist that proper safety practices were followed [*9]and it is the right to control the work that is significant, not the actual exercise or nonexercise of control'" (citations omitted)]). Equally unavailing is defendants' reliance on Marchese v Grossnarth (232 AD2d 924 [1996] [defendant established that plaintiff was hired to install cable television by defendant's tenant without knowledge or consent of defendant]^[FN4], and Campoverde v Liberty, LLC (37 AD3d 275 [2007] [appellant not subject to liability under Labor Law § 240(1) where, in wake of 9/11-related environmental damage, New York City Department of Environmental Protection evacuated building which appellant owned and hired plaintiff's employer, and no-one except DEP's employees and contractees were allowed on premises when plaintiff's accident occurred]). Defendants thus fail to raise an issue of fact as to their liability as owners under Labor Law § 240(1).

Defendants' contention that plaintiff was a volunteer and thus not entitled to maintain a cause of action under the Labor Law, raised for the first time in their reply papers, must be rejected. Arguments advanced for the first time in reply papers are entitled to no consideration by a court entertaining a summary judgment motion (see Scott v Albord, 292 AD2d 367 [2002]).

Finally, defendants cannot prevail on their argument that plaintiff was the sole proximate cause of the accident.. Proximate cause is established where a "defendant's act or failure to act as the statute requires" was a substantial cause of the events which produced the plaintiff's injuries (Gordon, 82 NY2d at 561-562; Rodriguez v Forest City Jay Street Associates, 234 AD2d 68, 69 [1996]; Ekere v Airmont Industrial Park, 249 AD2d 104, 105 [1998]). Although any purported contributory or comparative negligence of the plaintiff is not a defense in an action brought under the statute (see Zimmer, 65 NY2d at 521), a Labor Law § 240(1) cause of action will not stand where the plaintiff's own conduct was the sole proximate cause of his or her injuries(see Tweedy v Roman Catholic Church of Our Lady of Victory, 232 AD2d 630 [1996]; see also Blake, 1 NY3d at 289).

The sole proximate cause defense generally applies where a plaintiff misused a safety device, removed a safety device, failed to use an available safety device that would have prevented the accident, or knowingly chose to use an inadequate device despite the availability of an adequate device (see e.g. Robinson v East Med. Ctr., LP, 6 NY3d 550, 555 [2006] [plaintiff's choice to use inadequate ladder, despite proper ladders readily available at site, was sole proximate cause of accident]; Blake, 1 NY3d at 291 [plaintiff's negligent use of a ladder with the extension clips unlocked was sole proximate cause of accident]; [*10]Letterese v State of New York, 33 AD3d 593, 593-594 [2006] [plaintiff's decision to use inadequate ladder despite availability of adequate ladders on site was sole proximate cause of accident]; Negron v City of New York, 22 AD3d 546, 547 [2005] [plaintiff's failure to have himself re-tied off was sole proximate cause of accident]; Plass v Solotoff, 5 AD3d 365, 367 [2004], lv denied 2 NY3d 705 [2004] [plaintiff's unilateral determination to use only one plank instead of the three available was sole proximate cause of accident]).

In the instant motion, defendants, in conclusory fashion, argue that plaintiff, in failing to insure that the strand and bracket were sufficiently secure, was the sole proximate cause of the accident. However, this allegation is refuted by the testimony of both plaintiff and Collymore, who testified that plaintiff tested the strength of the strand before setting up the ladder, and defendants cite nothing in the record to support a finding that plaintiff's own actions were solely the cause of the accident. Accordingly, their contention in this regard is devoid of merit.

Nevertheless, plaintiff, who, as noted, (1) alleges in his verified bill of particulars that he was not provided with, among other things, safety equipment and a ladder that would have prevented him from falling, and (2) testified that the ladder was stable up until the time of the accident and that he had been equipped with various safety devices, has failed to demonstrate that he is entitled to an award of summary judgment for liability on his Labor Law § 240(1) cause of action. "A fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1). . . [t]herefore, where, as here, there is no evidence that the subject ladder was actually defective or inadequately secured, there is a question of fact as to whether it provided proper protection, and whether the injured worker should have been provided with additional safety devices (Olberding v Dixie Contracting, Inc., 302 AD2d 574, 574 [2003] [citations omitted]; see also Riccio v NHT Owners, LLC., 51 AD3d 897 [2008]).

Plaintiff's reliance on Tauriello v New York Telephone Co. (199 AD2d 377 [1993]) is misplaced. In that case, the plaintiff, while working on a utility pole, was seriously injured when the pole broke and fell across the road while the plaintiff was still attached to the pole by his belt, leading the court to grant plaintiff partial summary judgment. In the present case, however, neither plaintiff nor Collymore, his fellow worker could testify as to the exact cause of the accident ^[FN5], and the record is devoid of any evidence in admissible form establishing same.

Labor Law §241 (6) provides in pertinent 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, when constructing or demolishing [*11]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, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

Labor Law § 241(6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross, 81 NY2d at 501-502). Accordingly, in order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals (Ross at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]).

Plaintiff correctly argues that Section 23-1.16 of the Industrial Code (12 NYCRR 23-1.16)^[FN6] is sufficiently specific to serve as a predicate for liability under Labor Law § 241(6) (see Stephens v Triborough Bridge and Tunnel Authority, 55 AD3d 410 [2008]; Farmer v [*12]Central Hudson Gas and Electric, 299 AD2d 856 [2002]). Moreover, the evidence plaintiff provides in support of his cross motion in support of his allegation that the tail line, or lifeline, was not securely anchored, raises a material issue of fact in opposition to defendants' motion. Accordingly, the court denies the defendants' motion for dismissal of plaintiff's Labor Law § 241(6) cause of action.

Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). In order for an owner or contractor to be held liable under a Labor Law § 200 cause of action, there must be evidence that the owner or contractor controlled and supervised the manner in which the underlying work was performed, or that it created or had notice of the alleged dangerous condition which caused the accident (see Kim at 712; Kanarvogel v Tops Appliance City, Inc., 271 AD2d 409, 411 [2000]; see also Perri v Gilbert Johnson Enterprises, Ltd., 14 AD3d 681, 683 [2005], quoting Singleton v Citnalta Constr. Corp., 291 AD2d 393, 394 [2002] ["general supervisory authority at a work site 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"]). Where the defect or dangerous condition arises from the worker's own methods, and the owner or contractor exerted no supervisory control over the work, no liability attaches to these parties (see Ruccolo v City of New York, 278 AD2d 472, 474 [2000]).

As previously noted, plaintiff has interposed no opposition to that branch of defendants' motion seeking dismissal of his causes of action alleging violation of Section 200 of the Labor Law and for common-law negligence. Moreover, the record is devoid of any evidence that defendants controlled or supervised Caban's work, or had any notice of the allegedly defective condition. Accordingly, the court grants summary judgment dismissing said causes of action.

In view of the foregoing, the court (1) grants defendants' motion for summary judgment with respect to plaintiff's Labor Law § 200 and common-law negligence causes of action, dismissing same, and (2) denies both the defendants' motion and the plaintiff's cross motion as to plaintiff's Labor Law § 240(1) and § 241(6) causes of action.