Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of the Plaintiff, Frederick Hunt's (hereinafter Hunt), filed on July 28, 2014, under motion sequence number eight, for an order pursuant to CPLR 3212, (1) granting summary judgment on liability in his favor and against Laub Family Properties, LLC (hereinafter Laub), Barnard Hall Caterers, Inc. (hereinafter Barnard Hall), John M. Reilly (hereinafter Reilly) and E.J. Michael's [*2]Inc. (hereinafter EJM) on the Labor Law 240 (1), 241 (6) and 200 claims, and (2) pursuant to CPLR 3025 granting leave to amended the bill of particulars.

- Notice of Motion

- Affirmation in support

- Exhibits A-O

Affirmation in Opposition

On December 29, 2010, Hunt commenced the instant action for damages for personal injuries by filing a summons and complaint with the Kings County Clerk's office (hereinafter KCCO). On March 24, 2011, plaintiff served a supplemental summons and amended verified complaint upon the defendants adding EJM as a party. On or about May 25, 2011, defendants Laub, Reilly and EJM joined issue. Barnard Hall has not appeared in the action. Laub, Reilly and EJM have jointly opposed the motion.

The summons, complaint, and bill of particulars asserts that on July 11, 2010, plaintiff was working at 137 Barnard Avenue, Staten Island, New York, (hereinafter the premises). At the time of the incident plaintiff was painting the exterior of the building. He was on a twenty foot extension ladder which slid down the wall of the building causing him to fall and sustain personal injuries. Plaintiff alleges that the ladder was unsafe, as it was not secured and defective, as it was uneven and missing a footpad. The plaintiff was hired for the day by non-party Rhadames "Randy" Polanco, (hereinafter Polanco) an individual who worked with plaintiff as a painter for non-party Health and Hospital Corporations. It is alleged that Laub, Reilly and EJM or their agents caused the accident by failing to provide a safe work place, proper safety devices in violation of Labor Law § 200, 240 (1) and 241 (6).

The following facts are undisputed. At the time of plaintiff's accident Laub and Reilly co-owned the premises and EJM leased the premises to operate a catering hall. Reilly hired Polanco to paint the exterior of the premises.^[FN1] EJM had nothing to do with the hiring of Polanco and did not supervise any of Polanco's workers.

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, [*3]regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie 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]).

It has been held that the motion does not lie before joinder of issue "[a]lthough the papers present no triable issue" (Milk v Gottschalk, 29 AD2d 698 [3rd Dept 1968]). The requirement that issue be joined before a motion for summary judgment is granted "is intended to show the court precisely what the plaintiff's claims and the defendant's position as to them, and his defenses, are" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:11, p 431) and has been strictly adhered to (Perla v Real Property Holdings, LLC., 23 Misc 3d 697 [NY Sup.2009]). It has also been held that the Supreme Court is powerless to grant summary judgment prior to joinder of issue (see CPLR 3212 (a); Union Turnpike Associates, LLC v Getty Realty Corp., 27 AD3d 725, 728 [2nd Dept 2006]). Accordingly, as Barnard Hall has not joined issue plaintiff's motion must be denied as premature as to Barnard Hall only. However, the denial is without prejudice.

In the instant action it is undisputed that Laub and Reilly were both owners of the premises. It is also undisputed that Hunt was engaged in an activity covered by the statute. Hunt was painting at an elevation. The extension ladder that Hunt was using was not secured by anything or anyone and it slid down the side of the wall causing plaintiff to fall and sustain injuries. Accordingly, the plaintiff has met his prima facie burden with respect to Laub and Reilly due to their status as co-owners of the premises.

In opposition to the prima facie burden, the defendants essentially argue that Hunt was a recalcitrant worker and therefore the sole proximate cause of his accident. In order for Laub and [*4]Reilly to defeat plaintiff's motion they must raise a triable issue of fact as to whether the plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured (Auriemma v Biltmore Theatre, 82 AD3d 1,10 [1st Dept 2011] [internal quotation marks omitted]).

Laub and Reilly rely on Polanco's examination before trial where he testifies that after Hunt fell, Polanco saw that a piece of cardboard had been placed under the tarp which was on the floor. Polanco alleges that even though he did not see Hunt place the cardboard under the ladder that it must have been Hunt as he was the only one setting up the job site. Defendants further allege that it was the piece of cardboard which caused the ladder to slip and fall.

Even viewed in the light most favorable to the defendants, there is no evidence in the record that plaintiff had any safety device available, knew that he was expected to use it, and unreasonably chose not to do so (see Auriemma, 82 AD3d 1,10[1st Dept 2011]). According to Polanco he was observing plaintiff working on the ladder and no one was holding the bottom of the ladder to prevent it from sliding down the wall nor was plaintiff provided with any other safety device.

As to EJM, it is undisputed that it does not own the premises, it did not hire Polanco and it did not supervise Polanco's workers. Plaintiff's evidentiary showing did not prove the contrary. Plaintiff has failed to show entitlement to summary judgment as against EJM under Labor Law 240(1). Accordingly, that part of the motion is denied regardless of the sufficiency of defendants' opposition papers (Winegrad v NYU Medical Center, 64 NY2d 851 [1985]).

Plaintiffs have moved pursuant to CPLR 3025 (b) which provides that "a party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Furthermore, any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading."

Generally, leave to amend a pleading should be freely given when there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the proposed amendment may have merit ( Hothan v Mercy Medical Center, 105 AD3d 905 [2nd Dept 2013] quoting Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).

Plaintiff alleged in the bill of particulars that 12 NYCRR 23-1.21(b)(3)(i)-(v). However, plaintiff asserts that the citation to those sections was an error and in fact plaintiff had meant to cite violations of 12 NYCRR 23-1.21(b)(4)(i)-(v). It is the plaintiff's contention that the error was harmless as it was obvious because 12 NYCRR(b) 23-1.21(3) does not contain a fifth section but subsection four does. Furthermore, in the instant summary judgment motion the plaintiff has moved as if the bill of particulars was already amended to contain the proper Industrial Code citations.

The Court is permitted to disregard irregularities, defects, mistakes, and omissions, when a substantial right of a party is not prejudiced, pursuant to CPLR 2001, the Court chooses to [*5]disregard the plaintiff's error in moving under CPLR 3025 (b). Defendant has not opposed this portion of plaintiff motion. Further, defendant has also opposed the Labor Law 241 (6) portion of plaintiff's summary judgment motion as if the bill of particulars was already amended. Based on defendants' lack of opposition and the apparent lack of prejudice to any party, that part of plaintiffs motion to amend the complaint is granted.

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]). A plaintiff must establish lack of comparative fault in order to prevail on a motion for summary judgment under Labor Law 241 (6) (see Perri v Gilbert Johnson Enterprises, Ltd., 14 AD3d 681 [2nd Dept 2005])

Even though the plaintiff has sought to amend the bill of particulars to reflect 12 NYCRR 23-1.21(b)(4)(i)-(v) he only moves for summary judgment under 12 NYCRR 23-1.21(b)(3)(1) and 12 NYCRR 23-1.21(b)(4)(ii) and (iv). Accordingly, the Court will limit the analysis to those sections of the Industrial Code that plaintiff moves under.

12 NYCRR 23-1.21(b)(3)(1) provides that "all ladders shall be maintained in good condition. A ladder shall not be used if any of the following conditions exist (i) if it has a broken member or part."

12 NYCRR 23-1.21(b)(4)(ii) and (iv) provides: (ii) All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings. (iv) When work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means. When work is being performed from rungs higher than 10 feet above the ladder footing, mechanical means for securing the upper end of such ladder against side [*6]slip are required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used.

In the instant matter plaintiff alleges that the footing of the ladder was defective in that one of the shoes was missing. It is also uncontroverted that he was working approximately ten feet high and that nothing and noone was stationed at the bottom holding the ladder in place. The plaintiff submitted evidence sufficient to establish that 12 NYCRR 23—1.21(b)(4)(ii) and (iv) were violated by the failure to secure the ladder while plaintiff was standing more than ten feet high. However, plaintiff's own submissions include conflicting testimony regarding plaintiff's comparative fault. Specifically, the plaintiff has submitted the deposition testimony of Polanco, who testified that plaintiff had placed the cardboard under the ladder. Further, Polanco testified that the ladder had both feet and was sturdy.

Thus, the plaintiff failed to establish his entitlement to judgment as a matter of law on the issue of liability under Labor Law § 241 (6), since his submissions reveal that there are triable issues of fact which preclude the award of summary judgment" (Id.). Accordingly, that part of the motion is denied regardless of the sufficiency of defendants' opposition papers (Winegrad v NYU Medical Center, 64 NY2d 851 [1985]).

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 [*7]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] [quoting Everitt v Nozkowski, 285 AD2d 442, 443—444 [2nd Dept 2001]).

In the instant matter, plaintiff is alleging defective materials. In order to prevail on a summary judgment under Labor Law § 200, a plaintiff must establish liability of the defendants and that his own freedom from comparative fault. As discussed in the context of the Labor Law § 241 (6) claims, the plaintiff has failed to establish that he is free from comparative fault. Accordingly, the plaintiff failed to meet his prima facie burden for summary judgment under Labor Law 200 and that part of the motion is denied regardless of the sufficiency of defendants' opposition papers (Winegrad v NYU Medical Center, 64 NY2d 851 [1985]).

Plaintiff's motion for summary judgment on liability under the Labor Law § 240 (1) is granted as to Laub and Reilly only.

Plaintiff's motion for an order pursuant to CPLR 3025 granting leave to amended the bill of particulars is granted.

Plaintiff motion for summary judgment on liability under the Labor Law § 241(6) is denied as to all defendants.

Plaintiff's motion for summary judgment on liability under the Labor Law § 200 claims is denied as to all parties.

The foregoing constitutes the decision and order of this Court.

J.S.C.