Upon the foregoing papers, Sabatino Ilardo (plaintiff) moves for an order permitting amendment of his verified bill of particulars and granting summary judgment, pursuant to CPLR 3212, as to his claims under Labor Law �� 240 (1) and 241 (6). Defendants Pelican Management, Inc. (Pelican), Goldfarb Properties, Inc. (Goldfarb Properties) and Park Towers South Company, LLC (Park Towers) (collectively, the Building defendants) cross-move for an order granting summary judgment as to plaintiff's claims for common-law negligence and violation of Labor Law �� 200 and 241 (6). Defendant Formia Marble & Stone Inc. (Formia) also cross-moves for an order granting summary judgment as to plaintiff's claims and the Building defendants' cross claims against it.

Plaintiff was installing bathroom tile in Apartment 8A (the Apartment) of 330 West 58th Street in Manhattan (the Building) on August 31, 2010, when he fell from a four-foot stepladder and allegedly suffered permanent injury to his right shoulder and elbow (the Accident). Goldfarb Properties owned the Building at the time of the Accident, and Pelican acted as its managing agent. Park Towers owns the Apartment. Pelican had retained Formia to perform tile and flooring work in the Apartment's kitchen and bathrooms. Formia subcontracted the work to third-party defendant Magno Associates, which employed plaintiff as a marble and stone setter.

Plaintiff recounts that, on the day of the Accident, he performed some work on the Building's exterior, before his boss, Joseph Magno, instructed him to complete the tiling in the Apartment's bathroom. The remaining work apparently comprised a two-by-four-foot section of wall to be tiled and the installation of two pieces of decorative porcelain border flush with the ceiling. Plaintiff alleges that, when he arrived in the bathroom, a [*2]four-foot stepladder was already "precisely set up and in position for him to utilize to affix the two pieces to the wall eight feet above the ground." Plaintiff apparently completed the remaining wall tiling first and then turned his attention to the border pieces. After preparing a piece with adhesive, plaintiff began to ascend the ladder, but, upon reaching the third step, the ladder purportedly slid one foot across the floor, causing plaintiff to fall into the bathtub.

Plaintiff commenced this action on November 5, 2010 and alleged, in an April 2012 verified amended complaint, causes of action against the Building defendants, Formia and Brett Goldfarb (collectively, defendants) for common-law negligence and injury resulting from defendants' purported violations of Labor Law �� 200, 240 (1) and 241 (6), as well as Industrial Code Rule Number 23. He alleged, in a verified bill of particulars, that the Accident caused him to suffer a torn tendon, inflammation and arthritis in his right shoulder, as well as tendonitis and joint effusion in his right elbow, resulting in partial disability.

Formia, in its answer to the amended complaint, asserted a cross claim for common-law indemnification and contribution against the Building defendants and defendant Brett Goldfarb. The Building defendants, in their answer to the amended complaint, asserted cross claims for common-law indemnification and contribution, contractual indemnification and failure to procure contractually required insurance against Formia and Brett Goldfarb.^[FN1] The Honorable Leon Ruchelsman, in a May 20, 2011 order, granted plaintiff default judgment, pursuant to CPLR 3215, against Brett Goldfarb. After the service and filing of the motions decided herein, Formia commenced a third-party action against Magno Associates for contractual indemnity, common-law indemnity and apportionment and failure to procure contractually required insurance.

Plaintiff now moves for an order granting him leave to amend his verified bill of particulars and granting him summary judgment, pursuant to CPLR 3212, as to his Labor Law � 240 (1) and � 241 (6) claims. Plaintiff's proposed amendment would simply add an allegation that defendants need not have had notice of the defect that caused the Accident to bear liability, but, in any case, had both actual and constructive notice and identify, as the basis for his Labor Law � 241 (6) claim, Industrial Code (12 NYCRR) �� 23-1.7 (d) and 23-1.21 (b) (4) (ii). These amendments, plaintiff contends, are meritorious, rely on no newly asserted facts or theories and would result in no prejudice to [*3]defendants, as the complaint already alleged violations of Industrial Code Rule Number 23. Plaintiff urges that his bill of particulars stated that he would amend it to include the specific provisions of the Industrial Code underlying the � 241 (6) claim after depositions had occurred, and he blames his failure to previously supplement his bill of particulars on "law office failure of oversight." He argues that he seeks to amend the bill of particulars only two months after filing the note of issue and more than a year before trial is scheduled.

In support of the portion of his motion seeking summary judgment, plaintiff contends that both Pelican and Formia acted as statutory agents, rendering them liable for the Accident under Labor Law. He alleges that Pelican had authority to control the work that led to the Accident, that Formia was subsequently delegated similar authority and that Formia demonstrated its authority by subcontracting the work to Magno Associates. Plaintiff alleges that he "was not provided with a properly placed ladder, and as a result fell from an elevated height and suffered serious injuries." Plaintiff further contends that the four-foot stepladder constituted his only protection and that "[n]o ropes or other safety devices were provided to secure the ladder to prevent it from slipping, nor were harnesses provided to prevent plaintiff from hitting the ground if the ladder did slip."

Plaintiff also contends that case law has established 12 NYCRR 23-1.7 (d), which pertains to slipping hazards, as sufficiently concrete to support Labor Law � 241 (6) liability. He alleges that the Apartment's bathroom floor was rendered slippery by the presence of porcelain tile fragments in violation of � 23-1.7 (d). Such porcelain debris, plaintiff argues, was not integral to his work. He further urges that 12 NYCRR 23-1.21 (b) (4) (ii) requires the placement of ladders on firm footings. Plaintiff reiterates that the ladder had been placed before he commenced work in the bathroom on the day of the Accident and that he did not adjust its positioning.

The Building defendants, in opposition to plaintiff's motion, argue that plaintiff's proposed supplemental bill of particulars must be rejected as it seeks to assert new claims after plaintiff already filed a note of issue and certificate of readiness. They contend that plaintiff had prior knowledge of the Industrial Code provisions that he now seeks to assert, whereas defendants lacked such knowledge and would suffer prejudice by the amendment as they were unable to question plaintiff, at deposition, regarding these claims.

The Building defendants urge that a factual question remains whether plaintiff simply lost his balance and fell off the ladder, as a mere fall from a ladder is insufficient alone to establish a Labor Law � 240 (1) claim. They contend that plaintiff admits that he never in fact saw the ladder slide on any debris on the bathroom floor, instead merely guessing that porcelain chips were under the ladder's feet and caused it to shift as he climbed it. Plaintiff, the Building defendants urge, stated that he did not know whether the ladder had rubber feet, and they emphasize that ownership of the ladder remains [*4]unclear and the ladder's present location is unknown.

The Building defendants further argue that Pelican cannot bear liability to plaintiff under Labor Law �� 240 (1) or 241 (6), as it was neither an owner or contractor, nor a statutory agent. Plaintiff, the Building defendants contend, has failed to show that Pelican had authority to control plaintiff's work or that Pelican completely assumed the property owner's duty to maintain the premises. Instead, they assert, plaintiff testified that his boss, Joseph Magno, instructed him regarding his work and equipment and T.J. Frye (Frye), Pelican's facilities manager, simply gave instructions regarding tile layout. The Building defendants emphasize that Frye testified that he bore responsibility only for ensuring the protection of the Building's common areas.

Plaintiff must be denied summary judgment as to his � 241 (6) cause of action, the Building defendants contend, as he failed to timely identify specific Industrial Code provisions underlying that claim. Even if plaintiff's proposed amendments to his bill of particulars are accepted, the Building defendants urge that 12 NYCRR 23-1.7 (d) applies only to employers and that 12 NYCRR 23-1.21 (b) (4) (ii) is insufficiently concrete to support a � 241 (6) claim. They argue, in any case, that no evidence establishes that the ladder had been placed on a slippery or unstable footing.

Formia similarly argues, in opposition to plaintiff's motion, that it was not the owner or general contractor and that Magno Associates, not it, supervised plaintiff's work. It stresses that it provided no equipment or instruction concerning tile installation. Formia contends that it exercised, at most, only general supervisory authority, insufficient to render it an agent for Labor Law purposes. It urges that it was never granted authority to control the work and checked on the job's progress infrequently. Formia also emphasizes the testimony of its president, Filipo Berta (Berta), who recounted that he visited the bathroom where plaintiff fell on the day of the Accident and observed no porcelain fragments on the floor, only a stack of tile in one corner.

Like the Building defendants, Formia contends that plaintiff's proposed amendments to his bill of particulars must be rejected as untimely and that his � 241 (6) claim must then fail due to his failure to properly identify specific underlying Industrial Code provisions. Formia also argues that 12 NYCRR 23-1.7 (d) applies only to employers and that, as plaintiff cannot conclusively identify what caused the ladder to slip, he has failed to show a violation of 12 NYCRR 23-1.21 (b) (4) (ii). It also stresses the possibility that plaintiff simply lost his balance, as plaintiff fails to demonstrate any defect of the ladder or its positioning. Finally, Formia alleges that inconsistencies between plaintiff's account of his work on the day of the Accident and the testimony of Joseph Magno create credibility questions that may not be resolved on a summary judgment motion.

The Building defendants separately cross-move for an order, pursuant to CPLR [*5]3212, granting them summary judgment dismissing plaintiff's common-law negligence, Labor Law � 200 and Labor Law � 241 (6) claims. They concede making their cross motion more than 60 days after plaintiff filed the note of issue and certificate of readiness, but urge that the representation by plaintiff's counsel, four days before the summary judgment deadline, that plaintiff would withdraw his note of issue establishes good cause for the motion's lateness.

The Building defendants argue that plaintiff's common-law negligence and Labor Law � 200 claims must be dismissed because the Building defendants did not create or have notice of any dangerous premises condition and exercised no supervision or control over plaintiff's methods of work. Their general supervision of the Apartment's renovations, the Building defendants contend, is insufficient to support � 200 liability. They posit that "Joseph Magno . . . was the only person that directed, supervised, or controlled the plaintiff's work."

The Building defendants further argue that plaintiff's � 241 (6) claim must be dismissed as plaintiff failed to timely identify a sufficiently specific Industrial Code provision as its basis. They again assert that, if plaintiff's bill of particulars amendments are accepted, his � 241 (6) claim must still fail, as � 23-1.7 (d) applies only to employers and � 23-1.21 (b) (4) (ii) "is not specific enough to trigger Labor Law �241(6) liability." They also urge that plaintiff fails to demonstrate that the ladder rested on a slippery or unstable footing. Accordingly, the Building defendants argue that plaintiff did not plead any violation of a specific, applicable Industrial Code section.

Formia also separately cross-moves for an order, pursuant to CPLR 3212, granting it summary judgment as to all of plaintiff's claims, as well as the Building defendants' cross claims against it. Formia, like the Building defendants, argues that it can bear no � 200 liability because it had no authority to control plaintiff's work. It urges that plaintiff confirmed that Formia exercised no supervision over the work and that, while Pelican may have given instructions regarding tile layout, Joseph Magno gave plaintiff daily assignments, provided the necessary tools and equipment and supervised the job. Formia contends that it did not create the alleged condition of porcelain fragments on the tile floor and that such debris must have resulted from either plaintiff's or Joseph Magno's own work in that bathroom. It further argues that it could not have had notice of such a condition as it was not present on the work site.

Formia also contends that plaintiff's � 240 (1) and � 241 (6) claims warrant dismissal as Formia did not act as a general contractor and had no authority to supervise or control plaintiff's work. It asserts that no written contract existed between it and the owner, and thus no assignment of such authority. Formia also reiterates the arguments it made in opposition to plaintiff's motion, that plaintiff failed to timely identify specific Industrial Code sections underlying his � 241 (6) claim, that � 23-1.7 (d) applies only to employers and that the evidence does not establish that the ladder was upon a poor [*6]footing for a � 23-1.21 (b) (4) (ii) claim. It again suggests that plaintiff may have simply lost his balance.

Finally, Formia urges that Pelican's cross claims against it must fail, as Formia should bear no negligent liability for the Accident and as no written contract created a duty to indemnify or required insurance covering Pelican.

The Building defendants, in partial opposition to Formia's motion, argue that, if plaintiff succeeds on his negligence claim, any negligence must have resulted from Formia's failure to properly supervise and control his work. They stress that plaintiff testified that Frye did not instruct him on how to perform his work or on using any equipment and that Joseph Magno similarly testified that Frye gave instructions regarding layout only. The Building defendants argue that Formia effectively acted as the general contractor for the bathroom tile work and consequently should bear a common-law duty to indemnify the Building defendants should plaintiff recover against them.

Plaintiff, in opposition to the Building defendants' and Formia's cross motions and in reply to their oppositions to his motion, rejects any suggestion that he was the sole proximate cause of the Accident as speculative and asserts that "[d]efendants cannot dispute the adequacy of a ladder, provided by another, that did not provide proper protection as it is uncontroverted that the ladder on which plaintiff was standing slid causing him to lose his balance and fall." He contends that a slipping ladder constitutes a prima facie violation of � 240 (1) and that defendants had a duty to furnish him adequate safety devices and ensure proper placement of such devices. Plaintiff characterizes the inconsistencies between his own and Joseph Magno's testimony as feigned issues of fact, since a post-Accident photograph and report confirm plaintiff's account.

Plaintiff contends that Pelican acted as the owner's agent in charge of the premises, as defined in Labor Law � 315 (1), as it had authority to supervise and control plaintiff's work. He urges that Frye, as Pelican's employee, was the main point of contact for Building renovation issues and, as the facilities manager, supervised all Building construction projects. Plaintiff emphasizes that Berta testified that Frye or another Pelican employee provided all direction concerning tiling the Apartment's bathrooms and that Joseph Magno testified that Frye instructed him as to "how they wanted the stone set." Accordingly, plaintiff argues that Pelican, via Frye, exercised more than general supervision over the work. Plaintiff similarly contends that Formia should be considered either a general contractor or a statutory agent, as it periodically checked on the progress of the tiling work and provided materials.

In support of the portion of his motion seeking to amend his bill of particulars, plaintiff argues that the Building defendants and Formia fail to show that they would suffer any prejudice from the amendment. Plaintiff urges that he has always alleged that the bathroom floor was slippery because of porcelain fragments or plastic spacers and [*7]posits that an additional limited deposition could occur if needed. Plaintiff then argues that courts commonly permit � 23-1.7 (d) as the basis for � 241 (6) claims against parties other than the plaintiff's employer and that his testimony provides sufficient evidence that the ladder was placed on a slippery footing.

Plaintiff argues that the Building defendants and Formia fail to make prima facie showings that they had no notice of or did not create the condition that caused the Accident, instead asserting that only that plaintiff fails to introduce sufficient evidence.

The Building defendants, in reply, first stress that plaintiff makes no opposition to their assertion of good cause for making a late summary judgment cross motion. They urge that where, as here, the cause of an accident is alleged to arise from the manner or method of work, that a negligence or � 200 defendant need show only that it exercised no control over the plaintiff's work in order to be relieved of any potential liability. No evidence, the Building defendants assert, shows that they exercised control over plaintiff's performance of his work. They argue that � 23-1.7 (d) does not apply to the Accident because they were not plaintiff's employer and that neither of plaintiff's proposed Industrial Code bases applies because the only evidence of a slippery condition is plaintiff's guess that porcelain fragments were beneath the ladder and because he could not describe the ladder's feet.

Formia argues, in reply, that plaintiff's counsel cannot simply write off Joseph Magno's testimony as "feigned," and it urges that credibility questions prevent granting plaintiff summary judgment. It then reiterates its argument that it cannot bear Labor Law liability for the Accident because it was neither an owner nor a general contractor. It emphasizes that Berta testified that he only checked on Magno Associates' progress once and that Formia provided no equipment or instruction on performing the work, instead simply arranging the delivery of materials. Formia again stresses that no written contract or grant of authority existed between it and Pelican and that it did not actually exercise any authority over the work.

Formia, like the Building defendants, argues that � 23-1.7 (d) applies only to employers and that plaintiff fails to conclusively demonstrate that the ladder shifted because it was on a slippery or unfirm footing. Formia also argues that porcelain fragments on the bathroom floor would not have constituted a defective premises condition and that any such debris must have been created by Magno Associates, as Formia did not work in the Apartment.

Formia argues, in reply to the Building defendants' partial opposition, that its subcontracting of work to Magno Associates does not create a question of whether they supervised or controlled the work.

Although "[t]he effect of a statement of readiness is to ordinarily foreclose further discovery" (see Tirado v Miller, 75 AD3d 153, 156 [2010]), the Appellate Division, Second Department, has held that, in a Labor Law � 241 (6) action,

"leave to amend the pleadings to identify a specific, applicable Industrial Code provision may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant" (D'Elia v City of New York, 81 AD3d 682, 684 [2011], quoting Galarraga v City of New York, 54 AD3d 308, 310 [2008] see also Ventimiglia v Thatch, Ripley & Co., LLC, 96 AD3d 1043, 1047 [2012] Jara v New York Racing Assn., Inc., 85 AD3d 1121, 1123 [2011]).

Here, plaintiff's proposed amendment seeks primarily to identify 12 NYCRR 23-1.7 (d) and 23-1.21 (b) (4) (ii) as the Industrial Code provisions underlying his � 241 (6) cause of action. These sections, concerning slipping hazards and ladder footings, respectively, are consistent with plaintiff's allegations since he commenced the action that the Accident resulted when the ladder slipped on debris covering the Apartment's bathroom floor. His assertion of these Industrial Code provisions presents, neither explicitly nor implicitly, any new facts or liability theories. The Building defendants and Formia fail to show that any prejudice would result from permitting the proposed amendment, particularly given case law indicating that a � 241 (6) plaintiff may first identify underlying Industrial Code provisions at even later points in litigation, so long as they align with the facts and theories previously alleged (see Klimowicz v Powell Cove Assoc., LLC, 111 AD3d 605, 606-607 [2013] Ross v DD 11th Ave., LLC, 109 AD3d 604, 605-606 [2013] Kowalik v Lipschutz, 81 AD3d 782, 783 [2011] D'Elia, 81 AD3d at 684-685). Consequently, the portion of plaintiff's motion seeking leave to amend his bill of particulars shall be granted.

Nevertheless, "an untimely motion or cross motion for summary judgment may be considered on its merits if there is a timely, pending motion for summary judgment made by another party on nearly identical grounds'" (Giambona v Hines, 104 AD3d 811, 812 [2013], quoting Grande v Peteroy, 39 AD3d 590, 592 [2007] see also Das v Sun Wah Rest., 99 AD3d 752, 754-755 [2012] Lennard v Khan, 69 AD3d 812, 814 [2010] [explaining that "the nearly identical nature of the grounds supporting both motions serves as good cause sufficient to permit review on the merits of the untimely motion" (internal quotation marks omitted)]). Additionally, CPLR 3212 (b) permits a court to award summary judgment to a nonmoving party based on issues raised in another party's motion (Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996] Whitehead v City of New York, 79 AD3d 858, 860 [2010]), and a court may thus also consider the portions of an untimely summary judgment motion made on "nearly identical grounds" as a timely motion (Whitehead, 79 AD3d at 860-861).

On this basis, the portion of the Building defendants' cross motion seeking summary judgment as to plaintiff's � 241 (6) claim may be considered, but the remainder must be denied as untimely, since it concerns issues not already before the court. For the same reason, consideration of Formia's cross motion, which it served a week after the Building defendants served theirs, must also be limited to the � 240 (1) and � 241 (6) claims, as the issues that plaintiff's timely motion raised.

"Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law" (Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 54 [2011], citing Andre v Pomeroy, 35 NY2d 361, 364 [1974] see also Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). A summary judgment movant must show prima facie entitlement to judgment as a matter of law by producing sufficient admissible evidence demonstrating [*10]the absence of any material factual issues (CPLR 3212 [b] Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such a showing requires denying the motion, regardless of the sufficiency of any opposition (Vega, 18 NY3d at 503). The opposing party overcomes the movant's showing only by introducing "evidentiary proof in admissible form sufficient to require a trial of material questions" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Considering a summary judgment motion requires viewing the evidence in the light most favorable to the motion opponent (Vega, 18 NY3d at 503). Nevertheless, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a summary judgment motion (Zuckerman, 49 NY2d at 562). "The court's function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2010] [internal quotation marks omitted]).

Labor Law § 240 (1) states, in relevant part,

"All contractors and owners and their agents . . . 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."

This statute "imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites" (McCarthy v Turner Constr., Inc., 17 NY3d 369, 374 [2011] see also Hugo v Sarantakos, 108 AD3d 744, 744-745 [2013] Probst v 11 W. 42 Realty Invs., LLC, 106 AD3d 711, 711 [2013]).

A § 240 (1) plaintiff makes a prima facie showing of defendant's liability by demonstrating that the absence of proper safety equipment resulted in an elevation-related injury (see Probst, 106 AD3d at 711-712; Durando v City of New York, 105 AD3d 692, 695 [2013] Godoy v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 104 AD3d 646, 647 [2013] Lopez-Dones v 601 W. Assoc., LLC, 98 AD3d 476, 478-479 [2012] see also Ortega v City of New York, 95 AD3d 125, 128 [2012]). Establishing that a plaintiff, while engaged in protected work, fell from a ladder when the ladder shifted or slid constitutes a prima facie showing warranting recovery under � 240 (1) (Gonzalez v AMCC Corp., 88 AD3d 945, 946 [2011] Ordonez v C.G. Plumbing Supply Corp., 83 AD3d 1021, 1022 [2011] LaGiudice v Sleepy's Inc., 67 AD3d 969, 971 [2009] [plaintiff made prima facie showing where "the ladder on which he was working moved for no apparent reason"] Ricciardi v Bernard Janowitz Constr. Corp., 49 AD3d 624, 625 [2008] Lesisz v Salvation Army, 40 AD3d 1050, 1051 [2007] cf. Esteves-Rivas v W2001Z/15CPW Realty, LLC, 104 AD3d 802, 803-804 [2013] [affirming denial of summary judgment to a plaintiff because fall alone does not [*11]establish � 240 (1) violation, "in contrast to the cases . . . in which there was evidence, in addition to the fall itself, that the ladder had failed—by slipping, tipping over, or collapsing—and thereby caused the plaintiff to fall"]).

In determining who may be liable as an agent under the Labor Law, the party's nominal role is not determinative, and "the core inquiry is whether the defendant had the authority to supervise or control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition" (Myles v Claxton, 115 AD3d 654, 655 [2014] [internal quotation marks omitted] see also Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005] Medina v R.M. Resources, 107 AD3d 859, 860 [2013] Samaroo v Patmos Fifth Real Estate, Inc., 102 AD3d 944, 946 [2013] ["a defendant's potential liability is based on whether it had the right to exercise control over the work, not whether it actually exercised that right"]). " When the work giving rise to [the duty to conform to the requirements of section 240 (1)] has been delegated to a third party, that party then obtains the concomitant authority to supervise and control that work and becomes a statutory agent' of the owner or general contractor'" (Walls, 4 NY3d at 864 [alteration in original], quoting Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]).

Here, plaintiff makes a prima facie showing by demonstrating that the ladder that he was working from slipped or shifted, causing him to fall and sustain injury. Pelican and Formia primarily argue, in opposition, that they did not control or supervise plaintiff's work.^[FN2] A party is considered a statutory agent, however, so long as it had authority to control an injured plaintiff's work. As Pelican retained Formia to perform the bathroom tiling and Formia subcontracted that work to Magno, it seems clear that both parties possessed the authority to direct plaintiff's work, regardless of whether they in fact exercised it (see Walls, 4 NY3d at 864). This conclusion is strengthened by Berta's testimony that he checked on the work's progress and would have instructed Magno Associates to make changes if it had performed the work incorrectly.

Formia's reliance on the decision of the Appellate Division, First Department, in Nascimento v Bridgehampton Construction Corp. (86 AD3d 189 [2011]) is misplaced, as, in rejecting the contention that all subcontractors may be liable under Labor Law as statutory agents, it states simply that "[i]f the subcontractor's area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory" (id. at 192-193). Indeed, the Nascimento Court noted that "evidence that a subcontractor delegated the requisite supervision and control to another subcontractor has been cited as forming part of the proof that the first subcontractor formerly possessed that authority, and may justify imposing Labor Law liability on the first subcontractor as a statutory agent of the general contractor" (id. at 193, citing Weber v [*12]Baccarat, Inc., 70 AD3d 487, 488 [2010] & Everitt v Nozkowski, 285 AD2d 442, 444 [2001]).

Labor Law § 241 (6) provides,

"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 the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work . . . shall comply therewith."The Court of Appeals, in Ross v Curtis-Palmer Hydro-Electric Company (81 NY2d 494 [1993]), explained that § 241 (6) "requires owners and contractors . . . to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (id. at 501-502). Accordingly, a § 241 (6) plaintiff must "establish a breach of a rule or regulation of the Industrial Code which gives a specific, positive command" (Venezia v State of New York, 57 AD3d 522, 522 [2008] see also Ulrich v Motor Parkway Props., LLC, 84 AD3d 1221, 1223 [2011]).

Plaintiff herein identifies 12 NYCRR 23-1.7 (d) and 23-1.21 (b) (4) (ii) as the Industrial Code provisions underlying his � 241 (6) claim. Section 23-1.7 (d) states,

"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."

A � 241 (6) plaintiff cannot recover under � 23-1.7 (d), however, where the purportedly slippery substance was integral to the work the plaintiff was performing (see Kowalik, 81 AD3d at 784; Galazka v WFP One Liberty Plaza Co., LLC, 55 AD3d 789, 789-790 [2008], lv denied 12 NY3d 709 [2009] Stafford v Viacom, Inc., 32 AD3d 388, 390 [2006] but cf. Hageman v Home Depot U.S.A., Inc., 45 AD3d 730, 732 [2007] ["liability based on a violation of 12 NYCRR 23-1.7 (d) is not precluded merely because the foreign substance which caused an accident was part of the work being performed"]). 12 NYCRR 23-1.21 (b) (4) (ii) states, "All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings."

Here, plaintiff fails to conclusively demonstrate that an alleged violation by defendants of 12 NYCRR 23-1.7 (d) proximately caused the Accident, as a question remains as to whether the porcelain debris that purportedly caused the ladder to slide was integral to plaintiff's work and thus not a foreign substance. Similarly, plaintiff fails to demonstrate that a � 23-1.21 (b) (4) (ii) violation caused the Accident, as there is inadequate evidence to demonstrate that the ladder's footing was insufficiently firm (cf. Melchor v Singh, 90 AD3d 866, 870 [2011] [finding a violation of � 23-1.21 (b) (4) (ii) with the aggregate evidence of "the (ladder's) old and worn feet, the use of blocks, and the concrete surface upon which the [*13]ladder was placed"]). Additionally, questions remain concerning whether any comparative negligence on plaintiff's part contributed to the Accident (see Fusca v A & S Constr., LLC, 84 AD3d 1155, 1156-1157 [2011], lv dismissed 18 NY3d 837 [2011] Riffo-Velozo v Village of Scarsdale, 68 AD3d 839, 842 [2009]). Consequently, the portion of plaintiff's motion seeking summary judgment as to his � 241 (6) claim must be denied.

The Building defendants' and Formia's cross motions for summary judgment as to this claim must also be denied. Their argument that a violation of � 23-1.7 (d) may render only an employer liable has no merit: the Appellate Division, Fourth Department, has explicitly rejected this contention (Rothschild v Faber Homes, 247 AD2d 889, 891 [1998]), and relevant Second Department case law appears consistent with this interpretation (see Riley v J.A. Jones Contr., Inc., 54 AD3d 744, 745 [2008] [granting defendants summary judgment as to � 23-1.7 (d) claim because surface was not slippery, but explaining that the section "prohibits owners and contractors from permitting a worker to use a scaffold when the working surface of the scaffold is in a slippery condition"] Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 617-620 [2008] [reversing grant of summary judgment dismissing � 23-1.7 (d) claim as to defendant lessee that hired plaintiff's employer] Hageman, 45 AD3d at 732 [finding potential � 23-1.7 (d) liability for property owner]). The Building defendants' contention that the Court of Appeals' decision in Nostrom v A.W. Chesterton Company (15 NY3d 502 [2010] [rejecting contention that � 241 (6) claim may be premised on violation of Industrial Code Rule No. 12]) supports limiting the application of � 23-1.7 (d) to employers is without merit, particularly as the Court, in that opinion, noted that "it is clear . . . that owners and contractors may be vicariously liable based on violations of part 23 regulations" and accompanied this statement with a footnote that included citations to two cases applying � 23-1.7 (d) (id. at 507-508 & n 4).

As explained above, in the section discussing the parties' motions concerning Labor Law � 240 (1), questions regarding Formia's authority to exercise supervision and control over plaintiff's work preclude granting it summary judgment as to the Labor Law � 240 (1) and � 241 (6) causes of action. Similar questions preclude granting summary judgment to Pelican as to the � 241 (6) claim, as the Building defendants fail to make a prima facie showing that Pelican, as the owner's managing agent and the party that retained Formia, lacked authority to supervise or control plaintiff's work. Accordingly, it is

ORDERED that plaintiff's motion is granted as to leave to amend his bill of particulars as proposed and as to summary judgment on his Labor Law � 240 (1) cause of action, and it is otherwise denied; and it is further

ORDERED that the Building defendants' cross motion is denied in its entirety; and it is further

ORDERED that Formia's cross motion is denied in its entirety.

This constitutes the decision, order and judgment of the court.

E N T E R, [*14]

J. S. C.