The following papers numbered 1 to 25 read on this motion by Dan's Hauling & Demo, Inc. (Dan's) for summary judgment in its favor dismissing the complaint and all cross claims against it; motion by State Street Hospitality, LLC, NYTEX Development, Inc., and Martin Environmental Services, Inc., (collectively referred to herein as the "State Street defendants") for summary judgment in their favor dismissing the complaint and all cross claims; and cross motion by plaintiff for summary judgment in his favor on his claims pursuant to Labor Law §§ 240(1) and 241(6).

Papers

Numbered

Notices of Motions - Affidavits - Exhibits......................................1-8

Notice of Cross Motion- Affidavits - Exhibits ...............................9-13

Answering Affidavits - Exhibits......................................................14-18

Reply Affidavits...............................................................................19-25 [*2]

Upon the foregoing papers it is ordered that the motions and cross motion are decided as follows:

Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained on September 20, 2005, when he fell off a ladder. At the time, plaintiff was employed by K-Star Corporation (K-Star). State Street Hospitality, LLC (State Street) owned the building, and NYTEX was the construction manager. NYTEX retained Martin Environmental Services, Inc. (Martin), to perform asbestos removal and interior demolition work. Martin, with the agreement of NYTEX, in turn, subcontracted the interior demolition work in the building to Dan's; and subcontracted the asbestos removal work to K-Star. Dan's also retained K-Star to perform interior demolition at the subject premises in furtherance of its contract with Martin.

In the verified bill of particulars, plaintiff alleges that he was on a ladder demolishing a wall and while performing demolition work on the said wall, debris fell striking the ladder and causing it to fall. Upon his examination before trial, plaintiff explained that "the block falling down was bigger that I expected and then that hit the ladder so the ladder fell down." Plaintiff was standing on the fourth step of an A-frame ladder holding a 20-pound sledgehammer when the accident occurred. At the time of the incident, plaintiff was working under the supervision of Mr. Yoon., another K-Star employee. Plaintiff believed that the ladder that he was using at the time of the incident belonged to K-Star. He also believed, according to his testimony, that the 20-pound sledgehammer that he was using belong to K-Star.

George Shannon, President of NYTEX and manager of State Street, averred and testified that neither of the companies supervised, controlled or directed the work that plaintiff was performing at the time of the accident. He further attested and testified that neither State Street nor NYTEX provided any equipment to the job site, and was not made aware of any unsafe conditions or practices on the date of the accident or prior thereto.

Motion by Dan's

The motion by Dan for summary judgment in its favor dismissing the complaint insofar as asserted against it is granted as unopposed.

Motion by the State Street defendants

Labor Law § 200

Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees a safe work place (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]; Molyneaux v City of New York, 28 AD3d 438 [2006]; Paladino v Society of NY Hosp., 307 AD2d 343 [2003]). If the allegedly dangerous condition arises from the contractor's methods and the owner or general contractor exercises no supervisory control over the operation, liability does not attach under the common law or under Labor Law § 200 (see Comes v New York State Elec. & Gas Corp., [*3]supra; Lombardi v Stout, 80 NY2d 290 [1992]; Mas v Kohen, 283 AD2d 616 [2001]; Cuartas v Kourkoumelis, 265 AD2d 293 [1999]).

Here, the State Street defendants established their prima facie entitlement to summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence by demonstrating that they neither had the authority to supervise or control the activity bringing about the plaintiff's injury, nor had actual or constructive notice of the allegedly dangerous condition (see Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]; Rizzuto v L.A. Wenger Contr. Co., supra; Comes v New York State Elec. & Gas Corp., supra; Paladino v Society of NY Hosp., supra). In opposition, plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, " [t]he construction manager's authority to stop the contractor's work, if the manager notices a safety violation, does not give the manager a duty to protect the contractor's employees' " (Warnitz v Liro Group, 254 AD2d 411, 411-412 [1998], quoting Buccini v 1568 Broadway Assoc., 250 AD2d 466 [1998]).

Labor Law §240 (1)

Plaintiff established a prima facie case of liability on his Labor Law § 240(1) cause of action (see Klein v City of New York, 89 NY2d 833 [1996]; Cordova v 360 Park Avenue South Associates, 33 AD3d 750 [2006]; Rivera v Dafna Construction Co., Ltd., 27 AD3d 545 [2006]; Schuler v Kings Plaza Shopping Ctr. & Mar., 294 AD2d 556 [2002]; Sniadecki v Westfield Cent. School Dist., 272 AD2d 955 [2000]; Sinzieri v Expositions, Inc., 270 AD2d 332 [2000]; Dasilva v. A.J. Contr. Co., 262 AD2d 214 [1999]; cf. Alava v City of New York, 246 AD2d 614 [1998]). Plaintiff was injured while standing on an eight-foot tall A-frame ladder attempting to demolish a wall. When plaintiff struck a large portion of the wall, it fell striking the ladder causing the ladder to fall. It is undisputed that no safety devices were provided which might have prevented the accident. The fact of the unsecured ladder (see Joblon v Solow, 91 NY2d 457 [1998]) and the nature of the work (see Panek v County of Albany, 99 NY2d 452 [2003]) bring plaintiff within the statutory protections afforded by Labor Law § 240(1).

Labor Law § 241(6)

Defendants contend that the plaintiff's cause of action pursuant to Labor Law § 241(6) should be dismissed as the Industrial Code provisions cited by the plaintiff in support of that cause of action are either too general to support a section 241(6) cause of action, or not applicable to the facts of this case.

Labor Law § 241(6) provides in pertinent part that:

"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 persons employed therein or lawfully frequenting such places." Labor Law § 241(6), which was enacted to provide workers engaged in construction, demolition, [*4]and excavation work with reasonable and adequate safety protections, places a non-delegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993] ). 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 (Id.; Ares v State, 80 NY2d 959 [1992]; see also Adams v Glass Fab, 212 AD2d 972 [1995]).

In support of his verified bill of particulars, plaintiff alleges that defendants have violated various Industrial Code sections including 12 NYCRR 23-1.21, 23-1.16, 23-1.7(a), 23-2.2 (b)(1)(2), 23-3.3(c) and 23-3.3(1). Defendants now seek to dismiss plaintiff's Labor Law § 241(6) claim on the grounds that the Industrial Code sections relied upon do not support the cause of action because they are either too general or not applicable to the facts herein. However, in opposition papers, plaintiff relies solely upon 12 NYCRR 23-3.3(c), and thus has apparently abandoned his claims with respect to the remaining alleged violations.

12 NYCRR 23-3.3(c) provides that "[d]uring hand demolition operations, continuing inspections shall be made by designated persons ... to detect any hazards ... resulting from weakened or deteriorated floors or walls or from loosened material," and mandates protection against such hazards "by shoring, bracing or other effective means." Defendants contend that this provision is inapplicable because plaintiff's accident was the result not of any "weakened or deteriorated floors or walls or from loosened material," but of the performance of the demolition work itself. However, defendants, as summary judgment movants, failed to meet their burden of demonstrating the absence of questions of fact as to whether they complied with the standard of care required under the section, including the designation of persons to conduct the mandated inspections, and, as well, as to whether the wall did not constitute "loosened material" (see Cardenas v One State St., LLC, 68 AD3d 436 [2009]). Accordingly, the branch of the motion which seeks to dismiss plaintiff's claim pursuant to Labor Law § 241(6), is denied.

Cross Motion

The branch of the cross motion which seeks summary judgment in plaintiff's favor on his claims pursuant to Labor Law §§ 240(1) [and 241(6)], is granted as provided above. The pending motion of the co-defendants for similar relief is a sufficient basis to consider the untimely cross motion as the motion and cross motion are nearly identical (see Boehme v A.P.P.L.E., A Program Planned for Life Enrichment, 298 AD2d 540 [2002]; Miranda v Devlin, 260 AD2d 451 [1999]).

Conclusion

The motion by Dan's for summary judgment in its favor dismissing the complaint and all cross claims insofar as asserted against Dan's, is granted. The motion by the State Street [*5]defendants is granted in part and denied in part, as provided above. The cross motion for summary judgment in his favor on his claim pursuant to Labor Law § 240(1), is granted.

Dated: Sept. 20, 2010

J.S.C.