Upon the following papers numbered 1 through 123 read on this motion by defendants 823 Park Avenue, LLC and PMG Markets Group for leave to file a motion for summary judgment and for summary judgment dismissing plaintiff's complaint; by defendant Ameribuild Construction Management Inc., for leave to file a motion for summary judgment and for summary judgment dismissing plaintiff's complaint; and the cross motions by plaintiff for leave to serve a supplemental bill of particulars and for summary judgment against the defendants 823 Park Avenue, LLC, PMG Markets Group and defendant Ameribuild Construction Management Inc.; plaintiff's motion for leave to amend his bill of particulars and for summary judgment against the defendant JG Construction of Queens, Inc.; and [*2]defendant JG Construction of Queens Inc.'s cross motion for leave to file a motion for summary judgment and for summary judgment dismissing plaintiff's complaint:

NUMBERED

The motions are determined as follows:

This is an action in which plaintiff seeks to recover for personal injuries sustained while he was working while employed by non-party Tectonic Engineering on a construction site. Plaintiff contends that he was in the process of removing cylindrical core samples of concrete, in order for the strength of the concrete to be tested. To perform this work, plaintiff testified that his supervisor went up to the 7th floor of the building under construction, with a coring machine and a generator to run the machine, while plaintiff set up an A-frame ladder on the 6th floor. The worker on the 7th floor was the person drilling the concrete. Plaintiff testified that he stood on the ladder waiting to catch the concrete core in a canvas bag. Before he was able to catch the concrete, plaintiff contends that vibrations from the drilling machine caused a pole, called a screw jack to become loose. Plaintiff testified that the screw jack fell and struck him in the left forearm which caused him to loose his balance and fall from the ladder.

Defendant JG Construction of Queens Inc., was the entity that installed the screw jacks at the time the concrete was being poured. The deposition testimony of defendant [*3]JG Construction of Queens Inc., is that the purpose of the screw jacks is to support poured concrete floors. The screw jacks at this construction project were put into place by employees of defendant JG Construction of Queens. The witness for defendant JG Construction of Queens Inc., testified that the screw jacks used at this construction site were metal poles that have a square steel cap at the top and the bottom and are adjustable via a handle that tightens it to the floor and ceiling. Its appears from the testimony that the screw jacks had been in place for a few weeks and the concrete had already cured at the time of the plaintiff's accident.

Defendant 823 Park Avenue, LLC was the owner of the premises and defendant PMG Markets Group was the owner's representative at the construction project.

Defendant Amerbuild Construction Management Inc., had a contract with the defendant owner 823 Park Avenue, LLC to act as the construction manager on the project.

Defendant Amerbuild Construction Management Inc., also had a contract with

Plaintiff cross moves for leave to amend the bill of particulars to include a violation of 12 NYCRR 23-2.2(a)(b)(c). Plaintiff's original bill of particulars did not specify any violations of the Industrial Code as is required to establish liability under Labor Law §241(6).

In the absence of prejudice, a motion to amend shall be freely granted upon such terms as may be just and reasonable, CPLR §3025(b). The court finds that the addition of an alleged Industrial Code violation to the bill of particulars merely amplifies the theories already set forth in the complaint.

Accordingly, the branch of plaintiff's cross motions for leave to amend the bill of particulars is granted. Plaintiff is given leave to amend his bill of particulars within 30 days of the date of this order. Defendants are given leave to conduct additional discovery regarding the amended bill of particulars.

Since discovery is not yet complete with regard to plaintiff's claims of violations of Labor Law §241(6), §200 and common law negligence, the branches of both defendants' motions and the plaintiff's motion and cross motions for summary judgment as to the causes of action regarding Labor Law §241(6), §200 and common law negligence are denied without as premature.

The branches of the motion by defendants 823 Park Avenue, LLC and PMG [*4]Markets Group and defendant Amerbuild Construction Management Inc., and the branches of the cross motion of defendant JG Construction of Queens Inc., for summary judgment dismissing plaintiff's cause of action under Labor Law §240(1) and plaintiff's motion and cross motions for summary judgment against defendants 823 Park Avenue, LLC, PMG Markets Group and JG Construction of Queens Inc., for a violation of Labor Law §240(1) are determined as follows:

Labor Law §240(1) imposes upon owners, contractors and their agents a non-delegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites. Defendant Amerbuild Construction Management Inc., contends that Labor Law §240(1) does not apply to it since it was the construction manager.

A construction manager may be vicariously liable as an agent of the property owner for injuries sustained under the statute in an instance where the manager had the ability to control the activity which brought about the injury, Lodato v Grey Hawk, 39 AD3d 491 (2nd Dept., 2007).

Pursuant to the contract between the defendant owner 823 Park Avenue, LLC and defendant Amerbuild Construction Management Inc., defendant Amerbuild Construction Management Inc., was responsible for closely supervising all contractors throughout the project and coordinating and continually monitoring all contractors' performance, including supervising all testing and inspection required by others and including to act as a witness on all such tests.

Accordingly, the court finds that the defendant Amerbuild Construction Managers, Inc., is considered an agent of the owner under Labor Law §240(1).

However, the mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided, Xidias v Morris Park, 35 AD3d 850, 851 (2nd Dept., 2006). There must be evidence that the ladder was defective or inadequately secured and that the defect or the failure to secure the ladder, was a substantial factor in causing plaintiff's accident, Id.

In Xidias v Morris Park, plaintiff contended he was injured when a metal framed window in the room where he was working dislodged, struck his body and cause him to fall from a ladder. The court held that Labor Law §240(1) did not apply, since the framed window that fell on the plaintiff was not material being hoisted or a load that required securing at the time it fell and there was no evidence that the ladder was actually defective, inadequately secured or otherwise failed to provide proper protection, Id.

Similarly, in Sierzputowski v The City of New York, 14 AD3d 606, 607 (2nd Dept., 2005) plaintiff contended that he was injured when a large section of a boiler, adjacent to the boiler he was dismantling, fell on him as a result of vibrations. The court held that the defendants were not liable under Labor Law 240(1) since the plaintiff could not show that the object fell while being hoisted or secured, and that he was injured because of the absence or inadequacy of a safety device, Id.

Here the defendants 823 Park Avenue, LLC, PMG Markets Group, Amerbuild Construction Management Inc., and JG Construction of Queens, Inc., have demonstrated through the testimony of the plaintiff, that the ladder from which plaintiff fell was not defective or inadequate and that the ladder did not otherwise fail to provide protection. Rather the plaintiff fell because he lost his balance when he was struck in the arm by the screw jack. Defendants 823 Park Avenue, LLC, PMG Markets Group, Amerbuild Construction Management Inc., and JG Construction of Queens, Inc., have also shown that the accident did not occur while plaintiff was hoisting or securing the screw jack. Plaintiff, in opposition, has not submitted any evidence to raise a triable issue of fact. Accordingly, it is

ORDERED, that the branches of the defendants, 823 Park Avenue, LLC, PMG Markets Group and Amerbuild Construction Management Inc.'s motions for summary judgment and the branch of defendant JG Construction of Queens, Inc.'s cross motion for summary judgment to dismiss the plaintiff's cause of action based upon Labor Law §240(1) are granted; and it is further

ORDERED, that the branch of plaintiff's cross motion for leave to serve a amended bill of particulars is granted. Plaintiff is given leave to amend his bill of particulars within 30 days of this order. Defendants are given leave to conduct additional discovery regarding the amended bill of particulars, and it is further

ORDERED that the branches of the defendants, 823 Park Avenue, LLC, PMG Markets Group and Amerbuild Construction Management Inc.'s motion and defendant JG Construction of Queens, Inc.'s cross motion for summary judgment to dismiss the [*5]plaintiff's cause of action based upon Labor Law §241(6), §200 and common law negligence are denied without prejudice as premature; and it is further

ORDERED that the branches of plaintiff's cross motions for summary judgment against defendants 823 Park Avenue, LLC, PMG Markets Group, Amerbuild Construction Management Inc., and defendant JG Construction of Queens, Inc., based upon violations of Labor Law §240(1) are denied; and it is further

ORDERED that the branches of plaintiff's motion for summary judgment against defendant JG Construction of Queens, Inc., and plaintiff's cross motions for summary judgment against defendants 823 Park Avenue, LLC, PMG Markets Group and Amerbuild Construction Management Inc., based upon violations of Labor Law §241(6), §200 and common law negligence are denied without prejudice as premature.

Robert L. Nahman, J.S.C.