BACKGROUND

Defendants One York Property LLC (One York) and Bovis Lend Lease LMB, Inc. (Bovis) (together, defendants) move, pursuant to CPLR 3212, to dismiss the complaint. The third-party action against plaintiff's employer, Five Star Electric Corp. (Five Star), seeking contractual indemnification, has been discontinued.

The within litigation arises out of a slip and fall accident at a construction site known as One York Property, New York, New York. One York is the owner of the property, and Bovis was engaged by One York as the project's construction manager.

On Friday, April 20, 2007, plaintiff Arthur Worrell (Worrell) was engaged in electrical work at the site on behalf of his employer, Five Star. Worrell contends that, while he was carrying a ladder, he tripped and fell on a pipe in the open work area. [*2]

According to his examination before trial (EBT), Worrell stated that he was only responsible for reporting to his employer, and did not speak to any Bovis employee on this job. EBT, at 106-97, 123, Motion for Summary Judgment, Exh. C. Worrell stated that the accident occurred while he was carrying a ladder when he felt something slide under his feet and he fell. Id. at 18-19. Worrell further stated that he did not observe the condition that caused him to fall prior to actually falling. Id. at 20.

After he got up, Worrell noticed two pipes on the ground: a black pipe that was used for the sprinkler system, and a gray silver pipe which may have been used for water, but he wasn't sure. Id. at 98-99. Each pipe was approximately two feet in length. Id. at 99-100. Worrell believes that he slipped on the black pipe because that pipe was closest to his feet. Id. at 101. After the accident, Worrell continued working, but reported the accident to his foreman. Id. at 25.

Worrell said that at the weekly safety meeting, held the Wednesday before the accident, he complained to the safety foreman about debris at the job site. Id. at 22. He stated that, since he first came to the job site, the problem with debris had been improving, but that there were still some things left on the floor, such as pipe, wood and wire mesh. Id. at 78-79. Plaintiff said that he did not know whether these items were being used for the construction project or were meant to be thrown away. Id. Worrell further said that he did not know whether his foreman ever conveyed his complaints to Bovis. Id. at 81.

At the time of the alleged accident, Worrell was working with another Five Star employee, Andrew Goldberg (Goldberg). At Goldberg's deposition, he stated that, prior to the day of the accident in question, he did not feel that the job site was unsafe in terms of housekeeping or cleanliness, however, he also stated that "at that stage, it's always stuff to keep your eye out for, bolts falling...[i]t's controlled chaos...[s]o its always unsafe". Goldberg EBT, at 50, Motion for Summary Judgment, Exh. D. At the time of the accident, Goldberg was putting pipe on the cue deck and did not see plaintiff fall. Id. at 53-54. After Worrell fell, Goldberg looked at the place where the alleged accident occurred, and opined that Worrell fell on some debris, which could have been "wood, wood pipe, just chunks of dirt, rocks ... or could have been a piece of electrical conduit." Id. at 55-56. Goldberg stated that the area in which Worrell fell is an open area that contained all sort of materials that were going to be used in the construction project, as well as garbage. Id. at 59-60. Goldberg also said that, when he went to help Worrell stand up, he looked at the area where Worrell fell and he did not believe that the area was unsafe, anymore [*3]than any other area at the site. Id. at 67. Goldberg said that he did not complain to anyone about the conditions of the job site. Id. at 68.

In his affidavit in support of the motion for summary judgment, Stan Perelman (Perelman), president of One York, stated that he made periodic visits to the job site for the purpose of monitoring the progress of the construction, but that he did not have any input into the manner in which Five Star, or any other subcontractor, conducted its work. Perelman further averred that One York did not provide any tools or equipment used in connection with the work at the job site, and that at no time was he ever made aware of any incidents in which a worker tripped over a pipe.

Greg McCoy (McCoy), the senior superintendent employed by Bovis for the subject construction project, stated in his EBT that, by contract, the subcontractors are responsible for placing all of their garbage in a pile, at which point he, McCoy, sends someone to clean it up and then bills the subcontractor for the cost of removing the debris. McCoy EBT, at 37. McCoy also said that there were times that, when he would do his walk-through of the project, he would have to ask the subcontractors to clean up discarded pieces of pipe. Id. at 47. McCoy further said that if pipe was left around at the job site at 11 A.M. or at 2 P.M., it was considered garbage and that he would have his guys throw it out. Id. at 48-49.

In his affidavit in support of the motion for summary judgment, McCoy stated that Bovis did not supervise, direct or control the work of any subcontractor at the job site, that all workers were supervised by their own employer subcontractor, and that Bovis did not instruct any subcontractor as to the means and methods of its work. McCoy also averred that he was never made aware of any stray pipes in the work areas, and that the only recollection that he had of any worker tripping over a pipe at the job site involved a few instances in which a worker tripped over a piece of electrical conduit that had already been installed, and that he did not recall any worker suffering injuries as a result of those trips.

Worrell and his wife, Hilda Worrell, allege four causes of action against defendants: (1) common-law negligence; (2) violation of Labor Law § 200; (3) violation of Labor Law § 241 (6); and (4) loss of consortium.

In the moving and opposition papers, the parties assert that the provisions of the Industrial Code that Worrell alleges were violated are 12 NYCRR 23-1.7 (d); 12 NYCRR 23-1.7 (e) (1); and 12 NYCRR 23-1.7 (e) (2). However, these Industrial Code sections do not appear in the verified complaint, and the parties have failed to supply the court with a copy of the bill of particulars. However, since both sides, in their memoranda, discuss these [*4]provisions, the court assumes that, at some point, such Industrial Code sections were articulated by Worrell as the basis for his Labor Law § 241 (6) claim.

DISCUSSION

For the reasons articulated below, defendants' motion seeking summary judgment is denied. "The proponent of a summary judgment motion [pursuant to CPLR 3212] must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted]." Santiago v Filstein, 35 AD3d 184, 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978).

"Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work." Kajo v E.W. Howell Co., Inc., 52 AD3d 659, 661 (2d Dept 2008).

"Where a claim under Labor Law § 200 is based upon alleged

defects or dangers arising from a subcontractor's methods

or materials, liability cannot be imposed on an owner or

general contractor unless it is shown that it exercised

some supervisory control over the work. It is well

settled that an implicit precondition to th[e] duty [to

maintain a safe construction site] is that the party to

be charged with that obligation have the authority to

control the activity bringing about the injury to enable

it to avoid or correct an unsafe condition. General

supervisory authority is insufficient to constitute

supervisory control; it must be demonstrated that the

contractor controlled the manner in which the plaintiff

performed his or her work, i.e., how the injury-producing

work was performed [internal quotation marks and citations

omitted]."

Hughes v Tishman Construction Corp., 40 AD3d 305, 306 (1st Dept 2007); see also Narducci v Manhasset Bay Associates, 96 NY2d 259, 263 (2001); Masullo v 1199 Housing Corp., 63 AD3d 430 (1st Dept 2009).

However,

"[w]here a plaintiff's injuries stem from a dangerous

condition on the premises, a property owner is liable

under Labor Law § 200 when the owner created the

dangerous condition causing an injury or when the [*5]

owner failed to remedy a dangerous or defective

condition of which he or she had actual or constructive

notice [internal quotation marks and citation omitted]."

Aguilera v Pistilli Construction & Development Corp., 63 AD3d 763, 764 (2d Dept 2009). This is true regardless of whether the defendant supervised the plaintiff's work. Konopczynski v ADF Construction Corp., 60 AD3d 1313, 1314-1315 (4th Dept 2009).

In the case cited by defendants, O'Sullivan v IDI Construction Company, Inc. (28 AD3d 225, 227 [1st Dept], affd 7 NY3d 805 [2006]), that Court failed to hold the owner or general contractor liable for the injuries suffered by a worker who tripped over some pipe at the work site. In reaching its conclusion, the O'Sullivan Court noted that the general contractor's on-site safety manager was only responsible for supervising and enforcing safety measures for work performed by the subcontractors.

Similarly, in another case cited by defendants, Singh v Black Diamonds LLC (24 AD3d 138 [1st Dept 2005]), the Court did not find the general contractor responsible for the worker's injuries because, although the project superintendent conducted regular walk-throughs of the site and would halt work if he discovered an unsafe condition, the general contractor never itself undertook the obligation to rectify the unsafe condition.

These cases are distinguishable from the case at bar, in which McCoy, Bovis' superintendent, undertook the responsibility to remove debris of which the subcontractors failed to dispose. By assuming such an obligation, Bovis undertook the responsibility for providing a safe construction site.

Although sufficient evidence has been presented to support defendants' contention that neither One York nor Bovis exercised supervision or control over the means and methods of Worrell's work so as to hold them liable for Worrell's injuries, a material question of fact exists as to whether defendants had actual or constructive notice of the dangerous condition of debris being scattered around the work area so as to render them liable for Worrell's injuries.

McCoy, in his EBT, states that he was aware of pipes and garbage being left around the work area, and that he had his employees remove such debris if the subcontractors failed to do so after he alerted them to the problem. Ebt at 37, Motion for Summary Judgment, Exh. E. Worrell stated, in his EBT, that two days before the accident, at the weekly safety meeting, he complained to his supervisor about debris being left on the job site. Ebt at 22, Motion for Summary Judgment, Exh. C. Goldberg, Worrell's co-worker, also stated that, although he did not consider the work area to be unsafe, the area in which Worrell fell contained pipes, wood and garbage.Ebt at 53-54, Motion for Summary Judgment, Exh. D. This testimony is sufficient to [*6]preclude granting defendants' motion for summary judgment with respect to plaintiff's common-law negligence and Labor Law § 200 claims.

Further, defendants' conjecture that the pipe that allegedly caused Worrell to trip may have been placed there minutes before the accident is insufficient to support their motion for summary judgment, because such supposition also raises a question of fact that cannot be determined from the papers submitted.

New York Labor Law § 241 (6) imposes a non-delegable duty of reasonable care on owners and their agents to provide reasonable and adequate protection and safety to persons working in areas of construction. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-02 (1993). In order to impose this duty, a plaintiff must allege a violation of a provision of the Industrial Code. Misicki v Caradonna, 12 NY3d 511 (2009).

"[S]ection 241 (6) imposes liability upon a general

contractor for the negligence of a subcontractor, even

in the absence of control or supervision of the worksite. We also recognize[], however, the clear distinction between a violation of an administrative regulation promulgated

pursuant to statute, and a violation of an explicit

provision of a statute proper: while the latter gives

rise to absolute liability without regard to whether

the failure to observe special statutory precautions

was caused by the fault or negligence of any particular

individual, the former is simply some evidence of

negligence which the jury could take into consideration

with all the other evidence bearing on that subject

[internal quotation marks and citations omitted]."

Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 348-349 (1998).

12 NYCRR 23-1.7 (d) states:

"Slipping Hazards. Employers shall not suffer or permit

any employee to use a floor, passageway, walkway, scaffold,

platform, or other elevated working surface which is in

a slippery condition. Ice, snow, water, grease and any

other foreign substance which may cause slippery footing

shall be removed, sanded or covered to provide safe

footing."

Since Worrell's accident occurred in an open area, his reliance on this provision of the Industrial Code is unavailing, since this regulation does not apply to an open area of a construction site. See Enriquez v B & D Development, Inc., 63 AD3d 780, 782 (2d Dept 2009).

12 NYCRR 23-1.7 (e) (1) states:

"Tripping and other hazards. (1) Passageways. All [*7]

passageways shall be kept free from accumulations of

dirt and debris and from any other obstructions or

conditions which could cause tripping. Sharp projections

which could cut or puncture any person shall be removed

or covered."

Again, because the alleged accident occurred in an open work area and not a passageway, this provision of the Industrial Code is inapplicable to the case at bar. See Appelbaum v 100 Church, L.L.C., 6 AD3d 310 (1st Dept 2004).

12 NYCRR 23-1.7 (e) (2) states:

"Tripping and other hazards. (2) Working Areas. The

parts of floors, platforms and similar areas where

persons work or pass shall be kept free from

accumulations of dirt and debris and from scattered

tools and materials and from sharp projections insofar

as may be consistent with the work being performed."

Although defendants argue that the pipe on which Worrell allegedly fell does not constitute dirt, debris, tools or materials so as to bring the accident within the purview of this section of the Industrial Code, the court finds that material questions of fact exist as to the nature of the object that caused the alleged fall, be it the detritus of a pipe that had been cut to a smaller size to be installed, or the portion of the pipe waiting to be installed, rendering it an integral part of the work site. See Quinn v Whitehall Properties, II, LLC, 69 AD3d 599 (2d Dept 2010); Collins v Switzer Construction Group, Inc., 69 AD3d 407 (1st Dept 2010).

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that defendants' motion for summary judgment is denied; and it is further

ORDERED that within 30 days of entry of this order, plaintiff shall serve a copy upon defendants, with notice of entry.

Dated: March ___, 2010

____________________________

Doris Ling-Cohan, J.S.C. C:\htformat\f5084200.txt