Before the court is plaintiff's motion, pursuant to CPLR § 3212, for an order granting partial summary judgment upon his cause of action pursuant to Labor Law § 240(1), and defendant's cross motion, also pursuant CPLR § 3212, seeking summary judgment dismissing plaintiff's complaint pursuant to § 11 of the Workers' Compensation Law, or in the alternative, dismissing all of plaintiff's Labor Law claims.

FACTS AND PROCEDURAL BACKGROUND

On February 5, 2007, plaintiff Wu Qun Liu was employed as a laborer by Abra Construction Corp. (hereinafter "Abra"), the general contractor hired to perform construction work at 98 Fourth Street, Brooklyn, New York, a commercial property. Defendant 98 Fourth Street Development Group, LLC is the owner of the premises. Non-party Bernard Dillenberger is the president of Abra, as well president of Walker MM Corp., which is characterized as the "managing member" of 81 Walker LLC. 81 Walker is, in turn said to be, the "managing member" of defendant 98 Fourth Street Development.

On the aforementioned date, plaintiff was instructed to utilize an electric drill to install sheet-rock at the premises. In order to accomplish this task, plaintiff was provided with an A-frame ladder six feet high which was placed on top of a metal platform approximately six feet off the floor. Although plaintiff was working with another laborer at some point during the task, no one was holding the ladder at the time of plaintiff's fall. According to plaintiff, he climbed to the third step of the ladder (approximately nine feet above the floor) using his right hand to hold the drill, then switched hands to properly position the drill. Plaintiff states that at that point, he either lost his balance or the ladder shifted, or both, and plaintiff, along with the ladder and the platform, fell to the cement floor below. According to plaintiff, there were no witnesses to this accident.

Plaintiff commenced the instant action by filing and serving a Summons and Verified Complaint dated January 17, 2008, alleging violation of Labor Law §§ 200, 240(1) and 241(6).^[FN1] Issue was joined by defendant's service of its Verified Answer dated February 26, 2008, and discovery has since concluded.

LAW AND APPLICATION

Plaintiff asserts that the work he was performing at the time of his accident was

In opposition, defendant correctly notes that plaintiff failed to annex a copy of the pleadings thereto, and seeks summary denial on that basis. In this regard, CPLR § 3212 (b) provides that a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings, and by other available proof such as depositions and written admissions. In light of the plain language of the statute, plaintiff is not entitled to summary judgment. See Hamilton v. City of New York, 262 AD2d 283, 691 NYS2d 108 (2nd Dept. 1999). The motion is therefore denied. See CPLR §3212 (b); Zellner v. Tarnell, 54 AD3d 329, 861 NYS2d 598 (2nd Dept. 1996); Lawlor v. County of Nassau, 166 AD2d 692, 561 NYS2d 644 (2nd Dept. 1990).

Summary judgment is a drastic remedy as it deprives a party of his or her day in court and should be granted when it is clear that no triable issues of fact exists. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (1986). The burden is upon the moving party to make a prima facie showing that the movant is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts. Giuffrida v. Citibank Corp., 100 NY2d 72, 760 NYS2d 397, 790 NE2d 772 (2003). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. Ayotte v. Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez v. Prospect Hospital, supra at 324.

Relying on Heritage v. Van Pattern, 59 NY2d 1017, 466 NYS2d 958 (1983), defendant urges that plaintiff and Mr. Dillenberger (by virtue of his presidency of Abra) were

co-employees of plaintiff's employer and that Mr. Dillenberger was also the "owner" of 98 Fourth Street by virtue of his status as President of Walker MM Corp., an entity said to be the "managing member" of 81 Walker LLC which, in turn, is said to be the "managing member" of defendant. The Van Pattern case did indeed hold that Workers Compensation Law §29(6) restricted plaintiff Heritage to compensation and prevented the plaintiff from suing a co- employee in his capacity as the owner of the premises, but there Mr. Van Pattern owned the premises in his individual capacity. Here, to be awarded the title "owner", Mr. Dillenberger asks the piercing of a corporate veil and a trek through two limited liability companies — a bridge or two too far.

It is true that, an employer cannot be held liable in its "dual capacity" as landowner for injuries an employee sustains on its property. See Heritage v. Van Pattern, supra ; Billy v. Consolidated Mach. Tool Corp., 51 NY2d 152, 158-59 (1980). But when an employer and the owner of the premises are distinct legal entities, there is no basis to dismiss an action against the landowner based on the exclusivity provisions of the Workers' Compensation Law. See Masley v. Herlew, 45 AD3d 653, 654 (2nd Dept. 2007); Canete v. Judlau Contr., 56 AD3d 407, 867 NYS2d 134 (2nd Dept. 2008); Richardson v Benoit's Electric, Inc., 254 AD2d 798, 677 NYS2d (4th Dept. 1998). Thus, where individual principals in a business enterprise for their own business and legal advantage, elected to operate that enterprise through separate corporate entities, the structure they created would not be lightly ignored at their behest, nor shield one of the entities they created from common-law tort liability. See Buchner v. Pines Hotel, Inc., 87 AD2d 691, 448 NYS2d 870 (3rd Dept. 1982), aff'd, 58 NY2d 1019, 462 NYS2d 436 (1983). Defendant's failure [*3]to make a prima facie showing requires a denial of this branch of the motion, regardless of the sufficiency of the opposing papers. See Smalls v. AJI Indus., 10 NY3d 733, 735, 853 NYS2d 536 (2008).

Defendant's cross motion to dismiss plaintiff's Labor Law § 240(1) cause of action

In seeking dismissal of plaintiff's Labor Law § 240(1) cause of action, defendant contends that plaintiff was the sole proximate cause of his accident, or at the very least, there is an issue of fact as to whether he caused his own accident or whether the ladder was defective. Insofar as liability pursuant to Labor Law § 241(6) is concerned, defendant contends that dismissal is mandated because the relied upon provisions of the New York Industrial Code said to have been violated are either inapplicable or lack the concrete specificity required for a finding of liability. Finally, defendant argues that there is no proof that it was on notice of any defective condition concerning either the ladder or platform and that therefore it is entitled to summary judgment dismissing plaintiff's Labor Law § 200 cause of action.

In opposition, plaintiff asserts that defendant has failed to show that plaintiff was employed by it, that defendant and Abra were distinct legal entities, and that defendant's failure to provide adequate safety devices was the sole proximate cause of plaintiff's accident and resulting injuries. In reply, defendant avers that there need only be some commonality of officers or members in the employing entity and owning entity and that such commonality need not be completely identical.

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."

This provision was enacted to prevent specific 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. See Ross v Curtis-Palmer, 81 NY2d 494, 501, 601 NYS2d 49 (1993). In order to accomplish this goal, the statute places responsibility for proper safety practices and safety devices on owners, general contractors and their agents. Id. at 500. Moreover, this responsibility or duty is non-delegable and an owner or contractor who breaches the duty will be held liable regardless of whether it has actually exercised supervision or control over the work. Id. at 500. Further yet, the statute is to be construed as liberally as possible in order to accomplish its protective goals. See Martinez v City of New York, 93 NY2d 322, 326, 690 NYS2d 524 (1999). But a plaintiff must show that the violation was a proximate cause of his injuries in order for liability to attach. See Kingston v Hunter Highlands, 222 AD2d 952, 953, 636 NYS2d 418 (3rd Dept. 1995).

Defendant's assertion without any evidentiary support that plaintiff's own conduct was the sole proximate cause of the accident is conclusory and insufficient to establish prima facie entitlement to judgment on its Fourth Affirmative Defense. See Kingston v Hunter Highlands, 222 AD2d at 953-54. See also, Mirabilio v. Inc. Village of Valley Stream, 16 AD2d 957, 229 NYS2d 839 (2nd Dept. 1962). Moreover, plaintiff's deposition testimony and his affidavit both [*4]state that his injuries were caused when the unsecured ladder, which he was ascending, shifted position. Although a fall from a ladder is not, by itself, sufficient to impose liability under Labor Law Section 240(1), the failure to secure a ladder to ensure that the ladder remains "steady and erect" while a plaintiff is working on it has been held to constitute a violation of Labor Law Section 240(1). See Williams v Dover Home Improvement, Inc., 276 AD2d 626, 714 NYS2d 318 (2nd Dept. 2000). See also, Hernandez v Bethel United Methodist, 49 AD3d 251, 853 NYS2d 305 (1st Dept. 2008). Since there is ample evidence to support plaintiff's contention that there are issues of fact as to causation, and that the failure to secure the ladder was the proximate cause of his injuries, that branch of defendant's cross motion seeking summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action is denied.

Defendant's cross motion to dismiss plaintiff's Labor Law § 241(6) cause of action

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 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) places a non-delegable duty upon owners and general contractors and their agents to comply with specific safety rules set forth in the Industrial Code. See Ross v Curtis-Palmer, supra at 501-502. Accordingly, in order to support a cause of action under Labor Law § 241(6), plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision specifically applicable given the circumstances of the accident and which sets forth a concrete standard of conduct, rather than a mere reiteration of common-law principals. Id. at 502. See also, Adams v. Glass Fab, Inc., 212 AD2d 972, 973, 624 NYS2d 705 (1995).

Defendant's unopposed contention that 12 N.Y.C.R.R. § 23-1.5 (entitled General Responsibility of Employers) only establishes a general standard requiring protection of health and safety of employees working on construction sites is correct and the provision is therefore inapplicable to this matter. See Rau v. Brunch, 57 AD3d 866, 870 NYS2d 111 (2nd Dept. 2008). See also, Hunter v. R.J.L. Dept., 44 AD3d 822, 845 NYS2d 352 (2nd Dept. 2007); Maday v Gabe's Contracting, LLC, 20 AD3d 513, 797 NYS2d 914 (2nd Dept. 2005). Defendant also contends that plaintiff has failed to specifically allege any applicable subsection within 12 N.Y.C.R.R.§ 23-1.7 (entitled Protection from General Hazards) and as a result, this rule is also inapplicable. While 12 N.Y.C.R.R.§ 23-1.7 is sufficiently specific to support a Labor Law § 241(6) claim, it only contemplates injuries occurring in passageways, walkways and/or working areas involving slipping, tripping or overhead hazards, none of which is applicable to this matter. [*5]See Jennings v Lefcon Partnership, 250 AD2d 388, 673 NYS2d 85 (1st Dept. 1998). Thus, that section of the Industrial Code is also inapplicable to the facts herein.

Defendant further correctly argues that 12 N.Y.C.R.R. § 23-1.16 — entitled Safety Belts, Harnesses, Tail Lines and Lifelines — is inapplicable because that regulation does not specify when such safety devices are required, but rather only sets forth some specifications and how they must be used when they are required. See Partridge v Waterloo Central School District, 12 AD3d 1054, 1056, 784 NYS2d 767 (4th Dept. 2004). That section of the code is therefore also inapplicable.

Defendant's contention that Industrial Code § 23-1.21 is inapplicable to the within action because plaintiff failed to allege any defect in the ladder, lacks merit. Indeed, plaintiff has raised a material issue of fact with respect to Industrial Code § 23-1.21(b)(4)(ii), which states, "All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings." There is competent evidence in the record showing that the ladder/scaffold combination, which allegedly shifted from under plaintiff, could be the proximate cause of the accident. Thus, § 23-1.21 is applicable to plaintiff's action and an issue of fact as to whether it was violated has been raised. Accordingly, though the court rejects the applicability of the previously-discussed provisions of the Industrial Code, defendant's motion must be denied with respect to alleged violations of the provisions of Industrial Code § 23-1.21(b)(4)(ii).

Defendant's motion to dismiss Plaintiff's Labor Law § 200 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. See Kim v Herbert Construction Company, Inc., 275 AD2d 709, 712, 713 NYS2d 190 (2nd Dept. 2000). In order for an owner or contractor to be held liable pursuant to Labor Law § 200, there must be evidence that the owner or contractor had controlled and supervised the manner in which the underlying work was performed, or that it had created or had notice of the alleged dangerous condition which caused the accident. Id. at 712. See also, Kanarvogel v Tops Appliance City, Inc., 271 AD2d 409, 411, 705 NYS2d 644 (2nd Dept. 2000). Where the defect or dangerous condition arises from the subcontractor's own methods and the owner or contractor exerted no supervisory control over the work, no liability attaches to the owner or general contractor. See Ruccolo v. City of New York, 278 AD2d 472, 474, 718 NYS2d 649 (2nd Dept. 2000).

Contrary to defendant's contention, a finding that an employer and the owner of the premises are distinct legal entities does not automatically bar plaintiff's ability to maintain a Labor Law § 200 cause of action. See Laudisio v. Diamond D Const. Corp., 309 AD2d 1178, 1179, 765 NYS2d 720 (4th Dept. 2003). But, plaintiff's argument that Mr. Dillenberger's role in the various business entities raises an issue of fact supporting plaintiff's Labor Law § 200 cause of action against defendant is unpersuasive. To prevail, a plaintiff must submit evidence that defendant exercised supervisory control over the operation, and the record is devoid of any such evidence. Mr. Dillenberger's testimony that he visited the work site and provided plaintiff with his work schedule, is insufficient to involve defendant 98 Fourth Street Development Group and even if it were, it fails to establish anything more than general supervisory responsibilities. See Enriquez v. B & D Dev., Inc., 2009 NY Slip. Op. 04855 (2nd Dept. 6-9-2009). Accordingly, the court grants defendant's motion for summary judgment as to plaintiff's Labor Law § 200 cause of action and it is dismissed.

[*6]CONCLUSION

In light of the above, plaintiff's motion is denied. Defendant's cross motion is granted to the extent that plaintiff's Labor Law § 241(6) claim is dismissed insofar as it relies upon 12 N.Y.C.R.R. § § 23-1.5, 23-1.7 and 23-1.16. Defendant's cross motion is also granted to the extent that plaintiff's Labor Law § 200 claim is dismissed, and it is otherwise denied. The foregoing constitutes the decision and order of the court.

ENTER:

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J.S.C.