Upon the foregoing papers it is ordered that this motion and cross motion are determined as follows: [*2]

This is an action to recover money damages for injuries allegedly suffered as a result of an accident at a work site. The accident occurred on April 6, 2010, at premises located at 311 East 85th Street, New York, New York. The subject building is owned by the defendant 309-313 East 85th. The defendant Mautner-Glick is the managing agent for the premises. The defendant Pioneer General Construction Co. LLC (Pioneer) was hired to perform exterior renovation work on the building. The plaintiff was an employee of Pioneer.

The plaintiff testified at an examination before trial that he was an employee of Pioneer. He testified that at the time the accident took place he was performing brick work. The plaintiff testified that he was working on a rope scaffold that was attached to the roof of the building with weights to secure it. The scaffold was equipped with three safety rails. At the time of the accident the plaintiff was using a grinder and was using it to cut bricks. While he was cutting the bricks the scaffold suddenly moved causing the grinder to move and cut his arm and stomach.

The superintendent of the subject building testified at an examination before trial on behalf of defendant Mautner-Glick. He testified that in April 2010 there was renovation work being done to the subject premises. He testified that he did not give the construction workers any instructions and he did not have the authority to stop the work due to any unsafe condition. He further testified that he did not observe the building of the scaffold and did not observe the work being performed from the scaffold.

The vice-president of defendant Mautner-Glick also testified at an examination before trial. He testified that Mautner-GLick was the property manager for the subject premises. He testified that he would visit the premises during the construction project to check on the progress of the work. He stated that he was not present when the scaffold was set up. He testified that no site safety company was hired for this project. He also testified that the scaffold was supplied by Pioneer.

The defendants 309-313 East 85th and Mautner-Glick have moved for summary judgment dismissing the complaint. The plaintiff has cross moved for summary judgment on the issue of liability under Labor §§ 240(1) and 241(6). The defendants 309-313 East 85th and Mautner-Glick argue that the Court should not consider the plaintiff's cross motion because it was made after June 28, 2013, the date by which this Court directed that all summary judgment motions must be made and is, thus, untimely. Though the cross motion by the plaintiff is untimely, it is made on nearly identical grounds as the timely motion and will therefore be considered (see Ellman v Village of Rhinebeck, 41 AD3d 635 [2d Dept 2007] Grande v Peteroy, 39 AD3d 590 [2d Dept 2007]).

On a motion for summary judgment, the party moving for summary judgment must show by admissible evidence that there are no material issues of fact in controversy and that it is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986] Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Owners and contractors are subject to strict liability under Labor Law § 240. To prevail under such a claim, a plaintiff must [*3]provide evidence that the statute was violated and that the violation was the proximate cause of the injury (Blake v Neighborhood Hous. Servs. of New York City, 1 NY3d 280 [2003]). Here, the evidence presented established the plaintiff's prima facie entitlement to summary judgment on his claim under Labor Law § 240(1). The plaintiff's work involved an elevation-related risk that exposed him to gravity-related hazards. In particular the plaintiff, was working on a scaffold hanging down from the roof of a building. Further, the plaintiff established that he was not provided with adequate or appropriate safety devices and this failure was the proximate cause of the accident (see Triola v City of New York, 62 AD3d 984 [2d Dept 2009]).

The opponent of a summary judgment motion must present admissible evidence that is sufficient to raise an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Here, the defendants failed to raise a triable issue of fact in opposition. The defendants' argument that because the plaintiff did not fall from the scaffold there is no liability under Labor Law § 240(1) because the accident did not flow from the force of gravity is without merit (see Striegel v Hillcrest Hgts. Dev. Corp, 100 NY2d 974, [2003]). Here, the plaintiff was working on a scaffold that was hanging from the roof precisely because gravity otherwise would have been a hindrance to his work. If the plaintiff was provided with an adequate safety device, for example a sufficient number of ties securing the scaffold, the accident could have been prevented (see Dooley v Peerless Importers, Inc., 42 AD2d 199 [2d Dept 2007]).

Under Labor Law § 241(6) liability is imposed on an owner or contractor for failing to comply with the Industrial Code, even if the owner or contractor did not supervise or control the worksite. To support his claim under Labor Law § 241(6) the plaintiff has alleged in his bill of particulars violations of 12 NYCRR 23-1.4, 23-1.5, 23-1.7, 23-1.12, 23-1.21, 23-1.51(b), 23-5.3 and 23-5.8. The plaintiff does not oppose the dismissal of the claims based upon all provisions except 12 NYCRR 23-1.12 and 23-5.8, as these provisions are either general safety provisions or not applicable to the facts of the case. Therefore the portion of the Labor Law § 241(6) claims predicated on those provisions of the Industrial Code will be dismissed. In opposition to the motion and in support of his cross motion, the plaintiff argues that the Labor Law § 241(6) claims are predicated on violations of 12 NYCRR 23-1.12 and 23-5.8. The claim predicated on 23-1.12 must be dismissed. Here, the plaintiff testified that he was using a power grinder. This section only applies to saws, and thus it is not applicable to the facts of this case (see Cabrera v Revere Condominiums, 91 AD3d 695 [2d Dept 2012]). The plaintiff, however, is entitled to summary judgment on the issue of liability for Labor Law § 241(6) supported by a violation of 23-5.8(g). This section requires that a scaffold is tied to the building at every working level. Here, the scaffold was not affixed in accordance with this section as it was only suspended from the roof of the building. This lack of tie-ins was the proximate cause of the accident as the scaffold then moved causing the accident. In opposition, the defendants submit the affidavit of an expert who stated that this section is only designed to prevent a scaffold from mis-leveling. He further stated that the movement experienced by the plaintiff was an ordinary peril of working on a scaffold. This expert affidavit was conclusory and not sufficient to raise a triable issue of fact. [*4]

For an owner or general contractor to be liable under Labor Law § 200 and common law negligence, the plaintiff must show that the owner or general contractor supervised or controlled the work, or had actual or constructive notice of the unsafe condition causing the accident. The defendants 309-313 East 85th and Mautner-Glick established their prima facie entitlement to judgment as a matter of law dismissing these claims. The evidence submitted by these defendants established as a matter of law that they had no actual or constructive knowledge of any allegedly defective condition on the premises and exercised no control or supervision over the work of the plaintiff (see Ortega v Puccia, 57 AD3d 54 [2008] Lopez v Port Auth. of New York & New Jersey, 28 AD3d 430 [2006] Parisi v Loewen Dev. of Wappingers Falls, LP, 5 AD3d 648 [2003]). In opposition, the plaintiff failed to raise a triable issue of fact.

The branch of the motion to dismiss the causes of action under Labor Law §§ 240(2) and (3) are granted without opposition.

Accordingly, the branch of the defendants motion for summary judgment dismissing the Labor Law § 240(1) cause of action is denied. The branch of the defendants' motion for summary judgment to dismiss the Labor Law § 241(6) claim is granted to the extent provided herein and the portions of the Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.4, 23-1.5, 23-1.7, 23-1.12, 23-1.21, 23-1.51(b), 23-5.3 are dismissed while the portion of the claim predicated on violations of 12 NYCRR 23-5.8 is not dismissed. The branches of the motion for summary judgment dismissing the Labor Law §§ 200, 240(2) and (3) and common law negligence causes of action are granted and those causes of action are dismissed.

The cross motion by the plaintiff is for summary judgment on the issue of liability under Labor Law §§ 240(1) and 241(6) is granted.

Dated: 2/24/14

J.S.C.