Recitation in accordance with CPLR 2219 (a) of the papers considered on Defendants' motion for an order, pursuant to CPLR 3212, granting them summary judgment dismissal of Plaintiffs' Verified Complaint as against them:

-Amended Notice of Motion for Summary Judgment

Notice of Motion for Summary Judgment

Letter of David Persky, Esq.

Affirmation in Support

Exhibits A-D

-Affirmation in Opposition

Exhibits A-B

-Affirmation in Reply

On April 7, 2007, plaintiff Todd Galeto, a hod hoist carpenter employed by nonparty Regional Scaffolding & Hoisting, Inc., allegedly sustained personal injuries while he was working at a construction site owned by defendant 147 Flatbush Avenue Property Owner, LLC ("147 Flatbush"), and located at 147-151 Flatbush Avenue in Brooklyn. Defendant Plaza Construction Corp. ("Plaza") was the general contractor. Defendant Century-Maxim Construction, Corp. was a contractor responsible for the super-structure of the building, including the concrete and form work, and defendant Rebar Lathing Corp. was a subcontractor hired by Century-Maxim to lay rebar in the concrete floors and columns.

Plaintiff and three coworkers were installing an exterior construction hoist. The workers were divided between two cars, the "running car" and the "tool car", which were located on [*2]opposite sides of the tower. Each car had its own counterweight that weighed about 9000 lbs. As a car would ascend, its counterweight would descend, and vice versa.

On the day of the accident, Plaintiff and his three coworkers were adding sections to the hoist tower in a process called a "jump". At the time of the accident, Plaintiff and a coworker were on the running car, which was positioned at the level of about the 24th floor of the building. The tool car was located at ground-level with its counterweight located just above Plaintiff. According to Plaintiff, his coworkers in the tool car were supposed to wait at ground-level for him and his coworker to finish doing their work atop the tower in the running car. However, as Plaintiff was working, the counterweight of the tool car "came down out of [his] vision" and "caught" his left leg. The counterweight continued to move down until Plaintiff's ankle broke, at which point Plaintiff was able to get out from underneath the descending counterweight. Plaintiff testified that "I know that the car on the bottom went up causing the weight to come down because the weight didn't just fall, it was driven, you know". According to Plaintiff, the subject counterweight descended "in a normal speed", and the car and weight "were operating normally."

Labor Law § 240(1)

Defendants contend that they are entitled to summary judgment dismissal of Plaintiffs' Labor Law § 240(1) cause of action against them on the ground that "the accident did not result from the type of gravity-related hazard covered by the statute." In support, movants point to Plaintiff's testimony that the counterweight moved at normal speed, that the car and weight were operating normally, and that the counterweight was "driven".

Labor Law § 240 (1) provides:

"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, 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."

The statute "protects workers from elevation-related hazards when they are injured while involved in [the] enumerated work activities." (Panek v County of Albany, 99 NY2d 452, 455 [2003].) The statute "applies to both falling worker' and falling object' cases." (Narducci v Manhasset Bay Associates, 96 NY2d 259, 267 [2001].) Although the statute imposes "strict" or "absolute" liability of a type (see Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 286-89 [2003]), "an accident alone does not establish a Labor Law § 240(1) violation or causation" (id. at 289.)

"Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured [*3]worker from harm directly flowing from the application of the force of gravity to an object or person." (Runner v New York Stock Exchange, 13 NY3d 599, 604 [2009] [quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 (1993)].) In determining the applicability of the statute to a falling object case, the "relevant inquiry" is "whether the harm flows directly from the application of the force of gravity to the object." (See Runner v New York Stock Exchange, 13 NY3d at 604.) "The right of recovery afforded by the statute does not extend to other types of harm, even if the harm in question was caused by an inadequate, malfunctioning or defectively designed scaffold, stay or hoist." (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501.) The hazards covered by Labor Law § 240(1) "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity." (See Gasques v State of New York, 59 AD3d 666,667 [2d Dept 2009], affd 15 NY3d 869 [2010][quoting Gonzalez v Turner Constr. Co., 29 AD3d 630, 631 (2d Dept 2006)].)

In Gasques v State of New York (15 NY3d 869 [2010]), the plaintiff's hand "was crushed because the scaffold continued to move, under the impetus of one of its motors, while his hand was trapped between an external motor control on the scaffold and the steel of the bridge". (See id. at 870.) The plaintiff was injured when his partner continued holding down a switch "moving his side of the scaffold up, thus tilting the claimant down", which caused the plaintiff's hand to get crushed. (See Gasques v State of New York, 59 AD3d 666, 670 [2d Dept 2009][Belen, J., dissenting], aff'd 15 NY3d 869.) The plaintiff claimed that the scaffold was defective in that the controls were outside of the platform, that the scaffold was too wide for the work being performed, and that the motor control did not have a means of "locking it in the off position", or have a guard to prevent accidental activation." (See id. at 669-670.) Since the scaffold moved "under the impetus of one of its motors", the Court of Appeals held that the plaintiff's injury was "not the direct consequence of the application of the force of gravity to an object or person" (see Gasques v State of New York, 15 NY3d at 870), and, therefore, dismissed the Labor Law § 240(1) cause of action.

Similarly, here, the descending movement of the counterweight was not the direct consequence of the application of the force of gravity. Rather, the counterweight moved "under the impetus" of the motor of the tool car (see id.), which was controlled by Plaintiff's coworkers. Indeed, Plaintiff testified that the hoist and car functioned normally, and that the accident occurred because his co-workers activated the control button "out of sequence, they shouldn't have operated the car."

The fact that Plaintiff was struck by a descending counterweight does not establish an "elevation-related" hazard. For example, in Buckley v Columbia Grammar and Preparatory (44 AD3d 263 [1st Dept 2007]), an elevator mechanic's helper was injured when, as he was standing at the basement of a building, he was struck by one or more of the elevator's counterweights that fell as a result of striking a nail-like spike protruding from the wall of the elevator shaft as the elevator was descending. The First Department dismissed the Labor Law § 240(1) cause of action because, among other things, "it was not foreseeable that the counterweights that fell on the injured plaintiff posed an elevation-related hazard inherent in testing the functioning of the [*4]elevator platform on the day of the accident". (See id. at 270.) The court pointed out that "[t]his was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected." (See id.) Indeed, the court also held that the plaintiff failed to establish that the counterweights "constituted a load being hoisted or that required securing within the contemplation of the statute."

If the counterweights that became dislodged and fell in Buckley did not constitute a load being hoisted, or that required securing, to be within the contemplation of the statute (see id.), then certainly a counterweight that was secure and part of a normally-functioning hoist cannot be within the contemplation of the statute.

As a result, Defendants sufficiently demonstrate prima facie the accident did not result from the type of gravity-related hazard covered by the statute.

In opposition, Plaintiffs contend that the hoist was not properly constructed so as to provide him proper protection under Labor Law § 240(1) since it did not have a signal system or voice communication system to warn him of the movement of the other hoist car. The failure of the hoist to have a signal or communication system, even if considered a defect in the hoist that was a substantial factor in bringing about the accident, does not establish that the harm was in any way "gravity-related". Indeed, "[t]he right of recovery afforded by the statute does not extend to other types of harm, even if the harm in question was caused by an inadequate, malfunctioning or defectively designed scaffold, stay or hoist." (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501.)

In short, this is not a "falling object" case.

Accordingly, the branch of Defendants' motion seeking summary judgment dismissal of Plaintiffs' Labor Law § 240(1) cause of action is GRANTED.

Labor Law § 200

Defendants also contend that they are entitled to summary judgment dismissal of Plaintiffs' common law negligence and Labor Law § 200 causes of action because "the record is devoid of any evidence that the defendants supervised the means and methods of plaintiff's work or were on notice of any alleged hazardous condition."

"A party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." (See Velasquez v Gomez, 44 AD3d 669, 650-51 [2d Dept 2007] [quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 (4th Dept 1992)] [internal quotation marks and brackets omitted]); see also Fotiou v Goodman, 74 AD3d 1140, 1141 [2d Dept 2010]; Vittorio v U-Haul Co., 52 AD3d 823, 823 [2d Dept 2008].) [*5]

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 Constr. Co., 275 AD2d 709, 712 [2d Dept 2000]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed." (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008].) "These two categories should be viewed in the disjunctive." (Id.)

"Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident." (Id.; see also Reyes v Arco Wentworth Management Corp., 83 AD3d 47, 51 [2d Dept 2011].) "Where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition." (Van Salisbury v Elliot Lewis, 55 AD3d 725, 726 [2d Dept 2008]; see also Martinez v City of New York, 73 AD3d 993, 998 [2d Dept 2010].)

"By contrast, when the manner of work is at issue, no liability will attach to the owner solely because he or she may have had notice of the allegedly unsafe manner in which work was performed." (Ortega v Puccia, 57 AD3d at 61 [internal citations and quotation marks omitted].) "Rather, when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work." (Id.) If dangerous or defective equipment "was provided to the worker and the worker was injured by it, the property owner will only be liable under Labor Law § 200 if it was possessed of the authority to supervise or control the means and methods of the work." (See Reyes v Arco Wentworth Mangement Corp., 83 AD3d at 51.)

When an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner or general contractor is "obligated to address the proof applicable to both liability standards." (See Reyes v Arco Wentworth Management Corp., 83 AD3d at 52.)

Here, while Defendants recognize the appropriate legal standards for liability under common law negligence and Labor Law § 200 with respect to the owner and general contractor, they fail to apply those standards to the facts of this case. Defendants fail to point to any evidence establishing prima facie entitlement to summary judgment dismissal of Plaintiffs' common law negligence and Labor Law § 200 causes of action as against them. None make an affirmative showing demonstrating its respective role with respect to the premises, its role with respect to the work being performed on the premises, or its role with respect to the work performed by Plaintiff and his coworkers. It is not for the Court to review voluminous deposition transcripts to find [*6]portions therein that may support a summary judgment movant's position.

Accordingly, the branches of Defendants' motion seeking summary judgment dismissal of Plaintiffs' common law negligence and Labor Law § 200 causes of action are DENIED.

Labor Law § 241(6)

Defendants contend that they are entitled to summary judgment dismissal of Plaintiffs' Labor Law § 241(6) cause of action "because it is not supported by any industrial code regulations which apply to the facts."

Labor Law § 241(6) "imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers." (Lin v Holy Family Monuments, 18 AD3d 800, 801 [2d Dept 2005].) "To recover on a cause of action alleging a Labor Law § 241(6) violation, a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards" (id.), and that the Industrial Code provision is applicable to the facts of the case (see Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 851 [2d Dept 2006].)

To support their Labor Law § 241(6) cause of action, Plaintiffs' Verified Bill of Particulars alleges, among other things, violation of Industrial Code provisions 12 NYCRR §§ 23-1.7(a) and (b), 23-2.5, 23-6.1, 23-6.3, 23-7.1, 23-7.2, and 23-7.3. In opposition to Defendants' motion, Plaintiffs now contend that their Labor Law § 241(6) cause of action is premised only upon violation of Industrial Code sections 12 NYCRR §§ 23-6.1(c)(1), 23-6.1(e)(1), 23-6.1(k), 23-7.1(c), and 23-7.1(1). (See Affirmation in Opposition, ¶ 8.) As such, the branch of Defendants' motion for summary judgment dismissal of Plaintiffs' Labor Law § 241(6) cause of action premised upon 12 NYCRR §§ 23-1.7(a) and (b), 23-2.5, 23-6.3, 23-7.2, and 23-7.3 is GRANTED without opposition.

With respect to 12 NYCRR §§ 23-6.1(c)(1), 23-6.1(e)(1), 23-6.1(k), 23-7.1(c), and 23-7.1(1), Defendants fail to demonstrate prima facie that those sections are not applicable to the facts. Defendants do not cite to any legal authority or point to any evidence to support their position. Again, it is not for the Court to read voluminous deposition transcripts and to conduct legal research to find support for a summary judgment movant's position. (See e.g. Torres v Forest City Ratner Companies, LLC, 89 AD3d 98 [2d Dept 2011] [requiring the movant to affirmatively demonstrate prima facie the absence of any material issues of fact as to whether the claimed Industrial Code provision is applicable].)

Accordingly, the branch of Defendants' motion for summary judgment dismissal of Plaintiffs' Labor Law § 241(6) cause of action premised upon 12 NYCRR §§ 23-6.1(c)(1), 23-6.1(e)(1), 23-6.1(k), 23-7.1(c), and 23-7.1(1) is DENIED.

The branch of Defendants' motion seeking summary judgment dismissal of Plaintiffs' [*7]Verified Complaint as against defendants Rebar Lathing Corp.'s and Century Maxim Construction Corp. is GRANTED without opposition. It is undisputed that neither of those defendants were owners or general contractors, and neither defendant was involved in any way with the installation of the hoist or any work performed by Plaintiff such that it could be liable for Plaintiff's injuries. (See Examination Before Trial of Dennis Coughlin at 63-65.)

In sum, the branches of Defendants' motion seeking summary judgment dismissal of Plaintiffs' causes of action for common law negligence, violation of Labor Law § 200, and violation of Labor Law § 241(6) premised upon violations of Industrial Code provisions 12 NYCRR §§ 23-6.1(c)(1), 23-6.1(e)(1), 23-6.1(k), 23-7.1(c), and 23-7.1(1) are denied. The branches of Defendants' motion seeking summary judgment dismissal of Plaintiffs' causes of action for violation of Labor Law § 240(1) and violation of Labor Law § 241(6) premised upon violations of 12 NYCRR §§ 23-1.7(a) and (b), 23-2.5, 23-6.3, 23-7.2, and 23-7.3 are granted. The branch of Defendants' motion seeking summary judgment dismissal of Plaintiffs' Verified Complaint as against defendants Rebar Lathing Corp. and Century-Maxim Construction Corp. is granted.

January 5, 2012____________________

Jack M. Battaglia

Justice, Supreme Court