Plaintiff Paul Mueller (hereinafter plaintiff), an employee of J. Fletcher Cramer & Son, Inc., was performing construction services for defendant at its facility in the Town of Bethlehem, Albany County, when he was injured by a concrete form. Thereafter, in March 2006, plaintiff and his spouse, derivatively, commenced this action alleging that defendant is liable for common law negligence and violations of Labor Law § 240 and § 241 (6). Issue has been joined and plaintiffs have now moved for summary judgment on their common law negligence and Labor Law § 240 and § 241 (6) causes of action. Defendant opposes the motion and has cross-moved for summary judgment dismissing the complaint in its entirety.

Plaintiff was involved in disassembling and relocating "Doka" concrete forms that were used to create walls for defendant's building and notified the crane operator that one of the joined [*2]forms had to be turned around before it could be stored. The crane operator lifted the two joined Doka forms, turned them 180 degrees and placed them back on the ground. Plaintiff had asked a co-worker to place wooden spacers, or donnage, between the forms in order to protect them while stored, but before the forms could be securely stored, plaintiff was directed to release the cable clamps from the forms so that the crane could be used at another location on the work site. As plaintiff and his co-workers held the forms with their hands, awaiting the placement of the donnage, the crane's clamp swung out from the forms and then snagged the top of the forms, lifting them approximately 6-8" off of the ground. The clamp then came loose, causing the forms to fall back to the ground, onto plaintiff's right leg. After the forms were lifted off of plaintiff, he was taken from the work site to receive medical treatment. Subsequently, plaintiff was found to have sustained injuries to his ankle and knee, which required several surgeries. This action ensued thereafter.

As a procedural matter, defendant contends that plaintiffs' motion must be dismissed outright as plaintiffs failed to include a copy of their pleadings and deposition transcripts with their motion papers. In their reply, plaintiffs concede that they failed to do so, however, inasmuch as defendant has provided the necessary pleadings and the record before the Court is now complete, the Court will refrain from dismissing the motion and will decide it on the merits in the interest of judicial economy.^[FN1]

Turning, first, to plaintiffs' common law negligence claim, they "must establish that the owner or contractor both exercised supervisory control over the operation and had actual or constructive knowledge of the unsafe manner in which the work was being performed."^[FN2] The duty imposed on owners and contractors to provide employees with a safe workplace and the liability that attaches thereto is conditioned on whether the property owner or general contractor actually has "the authority to control the activity bringing about the injury."^[FN3]

Plaintiffs insist that the contract between defendant and plaintiff's employer provided defendant with the authority to supervise and control the work at defendant's facility at the time of the accident and, furthermore, that defendant had constructive and actual notice of the unsafe manner in which work was being done at the site. Plaintiffs illustrate defendant's supervisory authority by producing provisions of the contract between defendant and plaintiff's employer which states that defendant's "Construction Manager will make recurrent safety inspections during construction operations" and is empowered to cease any unsafe operations.^[FN4] Defendant's Project Manager, Kevin Reimer, confirmed the existence of such supervisory authority during his examination before trial when he averred that he and other members of defendant's staff were vested with the authority to stop work that was being done in an unsafe manner. Additionally, [*3]defendant's Safety Manual indicates that defendant was aware of its "obligation to provide a safe work environment for its employees and to oversee the operations of contractors to ensure that they similarly provide a safe work environment for their workers."^[FN5] Such contractual obligations assumed by defendant are sufficient to "establish prima facie that defendant may have exercised the requisite control or supervision of the work" done by plaintiff.^[FN6]

In support of their contention that defendant had actual or constructive notice of the dangerous work site conditions, plaintiff's employer's Project Safety Coordinator, Edward J. Breeyear, avers that he was present at the time of the accident and that it could have been avoided had defendant taken the necessary safety precautions. Aside from working at an overly rushed pace, Breeyear states, among other things, that the crane operation was unsafe as there was no staff employed to oversee its operation, and he further avers that he "had regular conversations with the [defendant's] safety coordinators and they were well aware of the situation."^[FN7]

As plaintiffs have demonstrated entitlement to judgment on their common law negligence claim, the burden shifted to defendant to raise issues of triable fact.^[FN8] Defendant points to Reimer's testimony that plaintiff's employer was responsible for its own equipment and conducted its own weekly progress meetings as evidence that defendant was without any supervisory authority. Reimer's testimony is replete with statements indicating that defendant had hired several safety coordinators that had a daily presence at the work site and, further, that defendant's staff would "work with the contractors to coordinate daily activities, check to see if jobsite briefs were held, walk the jobsite . . . to make sure that the people were wearing their personal protective equipment, general safety observations in the field, monitoring progress with their counterparts that were safety associates from any and all the controlling employers. . ."^[FN9] Notwithstanding defendant's ability to stop work that was being conducted in a dangerous manner, Reimer averred that the usage of equipment on the work site, including the operation of the crane, was "the responsibility . . . [of] the controlling employer" and not defendant. Defendant also states that, although it performed certain supervisory functions, it did not control or oversee the manner in which plaintiff conducted his work. Additionally, the record reveals that defendant did not exercise any supervisory control over the crane operation and, in fact, plaintiff's deposition testimony reveals that his employer was directly involved in the crane's unsafe usage at the time of plaintiff's accident. As to the notice element, Reimer could not recall having been notified of any dangerous condition at the work site in relation to this incident. Finding that triable issues of fact relating to plaintiffs' common law negligence claim are in existence, the Court determines that summary judgment to either party would be inappropriate. [*4]

Turning, next, to plaintiffs' claim that defendant violated Labor Law § 240, it is well settled that "owners or their agents whose failure to provide appropriate safety equipment proximately-causes an elevation-related injury" will be held strictly liable.^[FN10] Nonetheless, not all cases involving injuries caused by falling objects invoke liability under the Labor Law. In falling object cases, "an essential component of an injured worker's ability to recover is that he or she must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute.'"^[FN11] Not every object that falls from an elevated position, causing injury to a worker, "gives rise to the extraordinary protections of Labor Law 240 (1)."^[FN12]

Here, the concrete forms that fell on plaintiff were not being hoisted nor did they constitute a "a load that required securing for the purposes of the undertaking at the time it fell."^[FN13] Under Labor Law 240 (1), the "contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured."^[FN14] Here, the context in which plaintiff was injured does not fit into the scheme of Labor Law 240 (1). The evidence reveals that the forms were placed on the ground where plaintiff was standing when they were accidentally snagged by a crane clamp and lifted into the air. There is nothing to suggest that a protective device would have been called for in this instance as there was no intention for plaintiff to work at a different elevation than the forms.^[FN15] At the time that plaintiffs insist that the forms should have been secured by the crane clamps, both plaintiff and the forms were positioned on the same level. The need to steady the 1,000-pound forms with crane clamps until they could be placed up against a cement block that was on the ground where plaintiff was working is not a risk "related to elevation differentials" that would be covered under Labor Law section 240 (1) inasmuch as the forms were not being hoisted or secured at a different elevation than plaintiff.^[FN16] That plaintiff suffered an injury that was proximately "related to the effects of gravity" is not enough to support a falling object claim.^[FN17] While plaintiff appears to [*5]have sustained an injury that is associated with the inherent dangers of working on a construction

site of this nature, it does not fall within the prescribed confines of Labor Law 240 (1).^[FN18]

Finally, plaintiffs' cause of action under Labor Law � 241 (6) is premised on alleged violations of the Industrial Code, namely 12 NYCRR 23-1.5 and 12 NYCRR 23-2.2 (a). As defendant correctly states, because 12 NYCRR 23-1.5 "merely sets forth a general standard of care," it does not serve as a proper basis for a Labor Law § 241 (6) cause of action.^[FN19] As for the claim pursuant to 12 NYCRR 23-2.2 (a), it contains a specific requirement that concrete forms be "braced or tied together so as to maintain position and shape" and is, therefore, a proper regulatory predicate for plaintiffs' Labor Law § 241 (6) claim. Defendant asserts that the claim should be barred from consideration as plaintiffs' failed to include it in any of their previous pleadings. However, as defendant does not cite to any resulting unfair surprise or prejudice, the Court will allow the supplemented response to defendant's demand for interrogatories. Nonetheless, the Court does not find that any regulatory violation occurred here. At the time of the accident, plaintiff was ordered to move Doka forms from a flatbed truck and store them against a block in order to clear the work area for the next phase of construction. After removing the Doka forms on the ground, proximate to the concrete block against which they were to be placed, plaintiff averred that he and his coworkers were forced to hold the forms in an "upright position" with their hands until donnage could be placed between the forms and the cement block. It is undisputed that the accident occurred after the forms had been used and not while concrete was being poured. In fact, plaintiffs largely assert that the genesis of the incident was the hazardous and unsupervised operation of the crane and not due to any defective or unstable condition of the forms themselves. Because plaintiff's injury was ultimately caused by the crane's disruption of the resting forms and not due to any mishap with the forms while actual concrete work was being done, this Court's construction of 12 NYCRR 23-2.2 leads it to conclude that the regulation is inapplicable to the instant facts and circumstances.^[FN20] Therefore, defendant is entitled to summary judgment dismissing plaintiffs' claim pursuant to Labor Law

§ 241 (6).

Accordingly, it is now

ORDERED that plaintiffs' motion for summary judgment is denied in its entirety; it is further

ORDERED that defendant's cross-motion for summary judgment dismissing the complaint is partially denied as it pertains to plaintiffs' common law negligence claim due to the existence of triable issues of fact; it is further

ORDERED that defendant's cross-motion for summary judgment dismissing the [*6]complaint is partially granted as it pertains to the claimed violations of Labor Law § 240 and

§ 241 (6).

Those arguments not specifically addressed herein are found to be unpersuasive or were otherwise rendered academic.

This memorandum shall constitute both the Decision and Order of the Court. This Original DECISION/ORDER is being sent to Defendant. The signing of this DECISION/ORDER shall not constitute entry or filing under CPLR 2220. Counsel for defendant is not relieved from the applicable provisions of that section with respect to filing, entry, and notice of entry.

SO ORDERED

ENTER

Dated:June 24, 2010

Albany, New York____________________________________

EUGENE P. DEVINE, J.S.C.

cc:Murray N. Caplan, Esq.

PAPERS CONSIDERED:

1.Amended Notice of Motion for Summary Judgment, Affirmation of Attorney Caplan, Affidavits of Paul Mueller, Edward J. Breeyear, Jeffrey Aesch, John Newell, Jr., with Exhibits, dated March 10, 2010.

2.Notice of Cross-Motion, Affirmation of Attorney Lonano, with Exhibits, and Memorandum of Law in Support, dated March 25, 2010.

3.Affidavit in Opposition to Cross-Motion and in Reply by Attorney Caplan, Reply Affidavit of Paul Mueller, and Affidavit of Conrad P. Hoffman, with Exhibit, Memorandum of Law, Supplemental Response to Defendant's Demand for Responses to Interrogatories and deposition of Kevin Reimer, under cover letter dated April 17, 2010.

4.Reply Affidavit of Attorney Lonano, with Exhibits, dated April 22, 2010. [*7]