Recitation in accordance with CPLR 2219 (a) of the defendants/third party plaintiff/second third party/plaintiff United Talmudic Academy Torah V'Yirah Rabbinical, Inc. (hereinafter UTA) motion, filed on September 10, 2013 under motion sequence number nineteen, for an order pursuant to CPLR 3212, (1) granting summary judgment on liability in their favor on the claims asserted by the plaintiffs and all cross claims asserted by the co-defendants, and (2) in the alternative for an order of granting summary judgment in their favor on their direct claims as against second/third party defendant Mowla Painting and Decorating Inc. for conditional common law indemnification.

-Notice of Motion

-Affirmation in support

-Exhibits A—LRecitation in accordance with CPLR 2219 (a) of the plaintiff's motion, filed on December 6, 2013, under motion sequence number twenty, for an order granting partial summary judgment on liability in their favor pursuant to Labor Law §§ 240 (1) and 241(6) as against UTA.

-Notice of Motion

-Affirmation in Support

-Exhibit A

Affirmation in Opposition

Exhibits A-C

On November 9, 2009, plaintiffs Mohammed K. Mowla commenced the instant action for damages for personal injuries and Begum S. Ulla for derivative claims by filing a summons and complaint with the Kings County Clerk's office (hereinafter KCCO).

On March 28, 2007, UTA joined issue and asserted cross claims for contribution, indemnification, breach of contract for failure to procure insurance of against 60 Harrison Corp., Bnos Yakov Educational Center, Inc., Bedford Harrison Day Care Center, Yeshivah Kehilath Yakov Academy for Girls, M.H. Samet and Joel Weinberger.

The summons complaint and bill of particulars asserts that on March 28, 2007, plaintiff was working at 62 Harrison Avenue, Brooklyn, New York, (hereinafter the premises) as an employee of Mowla Painting and Decorating, Inc. Plaintiff testified that he was working on a scaffold on the date of the accident cutting wood with an electrical [*2]saw. Plaintiff put the saw down on the scaffold while the blade was still spinning. The blade of the saw bounced off the surface of the scaffold and onto the plaintiff's foot. Plaintiff alleges that the saw was defective due to a missing or broken guard.

It is undisputed that UTA was the owner of the premises and it is alleged that UTA also maintained, controlled and supervised the premises, hired contractors to perform work at the premises and maintained, controlled and supervised the construction that was being performed. It is alleged that the negligence of UTA or its agents caused the accident by failing to provide a safe work place, proper safety devices, and violated Labor Law § 200, 240 (1) and 241 (6).

Bnos Yakov Educational Center, Inc., Yeshivath Kehilath Yakov Academy for Girls and M.H. Samet joined issue by joint answer dated August 31, 2009, and asserted cross claims against all defendants for indemnity and apportionment. 60 Harrison Corp., joined issue by answer dated November 5, 2007, and asserted cross claims against Bnos Yakov Educational Center, Inc. for contribution and indemnity. Bedford Harrison Day Care Center joined issue and asserted cross claims against 60 Harrison Corp., Bnos Yakov Educational Center, Inc., UTA, Yeshivah Kehilath Yakov Academy for Girls, M.H. Samet, Joel Weinberger, Hassim Roofing Co. For apportionment and indemnification. Bedford Harrison Day Care Center demanded an answer to the cross claims.

On March 24, 2009, UTA commenced a third party action against Hassim Roofing Company. Hassim Roofing has not answered or appeared in the action.

On February 24, 2010, UTA commenced a second-third party action against Mowla Painting and Decorating, Inc. (hereinafter Mowla Painting). Mowla Painting joined issue by answer dated March 28, 2010, and asserted cross claims for contribution and indemnity against Bnos Yakov Educational Center, Inc., 60 Harrison Corp., Bedford Harrison Day Care Center, Yeshivah Kehilath Yakov, Yeshivah Kehilath Yakov Academy for Girls, M.H. Samet and Joel Weinberger and Mowla Painting and Decorating Inc. A note of issue has not been filed.LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]). The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings (Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie [*3]showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).

A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513, 577 NYS2d 219, 583 NE2d 932 [1991]). To recover, the plaintiff must have been engaged in a covered activity—"the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240 (1); see Panek v County of Albany, 99 NY2d 452, 457, 758 NYS2d 267, 788 NE2d 616 [2003])—and must have suffered an injury as "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603, 895 NYS2d 279, 922 NE2d 865 [2009]). To impose liability pursuant to Labor Law § 240 (1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries (Corchado v 5030 Broadway Properties, LLC, 103 AD3d 768, 962 NYS.2d 185, 2013 WL 616902 [2nd Dept 2013]). "Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240 (1)" ( Id.).

There is no dispute that UTA was the owner of the building in which plaintiff was employed on the date of his accident. Also undisputed is that UTA hired Mowla Painting on the subject project. Plaintiff's deposition testimony establishes that he was working on a scaffold cutting wood, when he put the saw down while the blade was running, which caused the saw to jump and due to the malfunctioning cover, the saw injured him. Essentially, the saw, which was on the same level of the plaintiff's foot, ran over his foot.

In support of the motion, UTA asserts that the mere fact that plaintiff was working on a scaffold does not automatically create a violation of Labor Law § 240 (1). In order to recover under Labor Law § 240 (1) a plaintiff's injuries must stem from an elevation differential between the worker and the agency of the injury. UTA is correct in asserting that there was no elevation differential associated with plaintiff's injury and, therefore, Labor Law § 240 (1) is inapplicable.

Accordingly, the burden switches to plaintiff to raise a triable issue of fact. In opposition, plaintiff asserts that because he was working on a scaffold at the time of the [*4]injury that Labor Law § 240 (1) applies. Furthermore, plaintiff asserts that there is a height differential as the saw hit plaintiff after it bounced. The contentions of the plaintiff fail to raise a genuine issue of material fact, as the scaffold was not the cause of the accident, and the plaintiff and the saw was on the same level. Therefore, UTA's motion pursuant to Labor Law § 240 (1) is granted.

Labor Law § 241 (6) provides as follows:

In those instances when Labor Law § 241 (6) applies, the duty to comply with the Commissioner's safety rules, which are set out in the Industrial Code (12 NYCRR), is nondelegable (Misicki v Caradonna, 12 NY3d 511, 515 [2009]). "To support a claim under Labor Law § 241 (6) ... the particular Industrial Code provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles" (Id.). A breach of a duty imposed by a rule in the Code is merely some evidence for the fact finder to consider on the question of a defendant's negligence (Id.). Labor Law § 241 (6) is, in a sense, a hybrid, since it reiterates the general common-law standard of care and then contemplates the establishment of specific detailed rules through the Labor Commissioner's rule-making authority (see Ross v Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494 [1993]).

In the instant action the plaintiff alleges violations of NYCRR 23-1.7, 1.8, 1.10 - 1.12, 1.15, 1.16, 1.17, 1.31, 1.31, 1.32, 2.1, 5.1-5.18, 23-9.1, 9.2, 9.3, 9.4. The only section that is applicable to the instant set of facts is 22 NYCRR 23-1.12 (c) (1) entitled "guarding of power-driven machinery." The remaining rules that plaintiff alleged were violated in the bill of particulars are inapplicable to the instant fact pattern.

22 NYCRR 23-1.12 (c) (1) provides:

Plaintiff testified that he was using an electric saw. He further testified that the [*5]automatic guard was broken and it did not cover the blade when he put the saw down. He also stated that the accident occurred when he put the saw down and the saw "jumped" because the teeth of the saw, which were still spinning, got stuck in the wood of the platform and bounced onto his foot.

In support of their motion the defendant asserts that there is no testimony identifying that Mowla Painting possessed such saw, identifying the model or that it lacked the required base plate such that it caused or contributed to plaintiff's accident. As it is the movants burden on a summary judgment motion to establish its prima facie burden and a movant cannot do so by pointing to gaps in its opponents proofs, defendant's line of reasoning is insufficient to establish prima facie that the saw did not violate 22 NYCRR 23-1.12 (c) (1). In light of the plaintiff's failure to meet his burden, the court need not consider the sufficiency of the defendants' opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Accordingly, that branch of defendant's motion seeking summary judgment based on the specified violation of Labor Law § 241 (6) is denied.UTA's Summary Judgment Motion Pursuant to Labor Law § 200

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 [2nd 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 [2nd 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 (see Azad v 270 5th Realty Corp., 46 AD3d 728, 730 [2nd Dept 2007]; Kerins v Vassar Coll., 15 AD3d 623, 626 [2nd Dept 2005]; Kobeszko v Lyden Realty Invs., 289 AD2d 535, 536 [2nd Dept 2001]).

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" (Dennis v City of New York, 304 AD2d 611, 612 [2nd Dept 2003]; see Comes v New York State Elec. & Gas Corp., 82 NY2d 876 at 877 [1993]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847at 851 [2nd Dept 2006]). 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 (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]; Gallello v MARJ Distribs., Inc., 50 AD3d 734, 735 [2nd Dept 2008]).

Although property owners often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200 (see Natale v City of New York, 33 AD3d 772, 773 [2nd Dept 2006]; Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681 at 683 [2nd Dept 2005]; Dos Santos v STV Engrs., Inc., 8 AD3d 223, 224 [2nd Dept 2004]). The determinative factor on the issue of control is not whether a defendant furnishes equipment but whether he has control of the work being done and the authority to insist that proper safety practices be followed (see Eldoh v Astoria Generating Co., L.P., 81 AD3d 871, 875 [2nd Dept 2011]

In support of the motion, UTA, the defendant, submits the deposition of Mr. Wertheimer. Wertheimer testified that UTA is the owner of the premises and had contracted with Mowla Painting for the work being completed. Further, Wertheimer testified that he did not supervise or control the work. Although UTA entered into a written contract with Mowla Painting for its construction services, the contract was not annexed to the moving papers. Without the contract, UTA cannot make a prima facie showing that it lacked authority to control the performance of Mowla Painting. In light of UTA's failure to meet its burden, the court need not consider the sufficiency of the defendants' opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Accordingly, that branch of UTA's motion seeking summary judgment based on the specified violation of Labor Law § 200 is denied.UTA's motion for a provisional order of indemnification

In as much as UTA's motion for summary judgment has been denied, UTA's motion for common law indemnification against Mowla Painting must be addressed as it was relief in the alternative. In support of the motion UTA asserts that it was not negligent and did not have authority to supervise control of the work. UTA further alleges that Mowla Painting was negligent and, therefore, common law indemnification is appropriate. The predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee (Rehberger v Garguilo & Orzechowski, LLP, —- NYS2d —&mdash, 2014 WL 2597700 [2nd Dept 2014] citing Konsky v Escada Hair Salon, Inc., 113 AD3d 656, 658 [2nd Dept 2014]). However, as discussed herein, UTA has failed to demonstrate that they are not negligent in causing Plaintiff's accident as a matter of law, their cross claim for common-law indemnification and contribution against Mowla Painting is premature (Martinez v City of New York, 73 AD3d 993 [2nd Dept 2010] citing Nasuro v PI Assoc., LLC, 49 AD3d 829 [2nd Dept 2008]).UTA's Summary Judgment Motion to Dismiss Cross Claims

UTA has moved pursuant to CPLR 3212 for an order dismissing the cross claims asserted by their co-defendants against them. However, contrary to the requirements of CPLR 2214, they submitted no argument or legal authority for the relief requested. [*6]Consequently, in the interests of judicial economy, this branch of their motion must be denied. The denial is without prejudice.Plaintiff's Motion for Summary Judgment pursuant to Labor Law § 240 (1)

As previously discussed plaintiff is unable to raise a triable issue of fact as to whether Labor Law § 240 (1) applies in opposition to UTA's motion. Accordingly, plaintiff's motion for summary judgment pursuant to Labor Law § 240 (1) necessarily is denied.

In support of the motion, plaintiff submits an expert affidavit of Kathleen Hopkins. Ms. Hopkins affirms that she reviewed the summons, complaint, bill of particulars and deposition transcripts of the parties in order to render her opinion. Ms. Hopkins asserts that the defendants were negligent in violating Labor Law § 241 (6), specifically 12 NYCRR 23-1.12 (c) (1). Ms. Hopkins did not inspect the saw that allegedly caused the accident. Accordingly, her affidavit is speculative and cannot establish prima facie that the defendants' violated 12 NYCRR 23-1.12 (c) (1).

Assuming arguendo that Ms. Hopkin's affidavit established a violation of 12 NYCRR 23-1.12 (c) (1) the defendants raise a triable issue of fact with the submission of an expert affidavit that differs in opinion as to whether the saw was defective. Where the "parties offer conflicting expert opinions, issues of credibility arise requiring jury resolution" (Shu Ying Lee v Fenton, 116 AD3d 945 [2nd Dept 2014] citing Martin v Siegenfeld, 70 AD3d 786, 788, 894 NYS2d 115; see Colao v St. Vincent's Med. Ctr., 65 AD3d 660, 885 NYS2d 306; Feinberg v Feit, 23 AD3d 517, 519, 806 NYS2d 661).

UTA's motion for summary judgment pursuant to Labor Law § 241 (6) is denied.

UTA's motion for summary judgment pursuant to Labor Law § 240 (1) is granted.

UTA's motion for summary judgment pursuant to Labor Law § 200 is denied.

UTA's motion for indemnity is denied.

Plaintiff's cross motion for summary judgment pursuant to Labor Law § 240 (1) is denied.

Plaintiff's cross motion for summary judgment pursuant to Labor Law 241(6) is denied.

The foregoing constitutes the decision and order of this Court.

J.S.C.