The following papers numbered 1 to 4 were fully submitted on the 16th day of December, 2015:

Papers/Numbered

(Affirmation, Affidavit in Support)

(Dated: October 21, 2015) 1

(Affirmation, Expert Affidavit in Opposition

and in Support of Cross Motion for Summary Judgment

(Dated: November 24, 2015) 2

to Plaintiff's Cross Motion

(Dated: December 10, 2015) 3

Plaintiff's Cross Motion

Dated: December 14, 2015).4

Upon the foregoing papers, the motion for summary judgment by defendants, the City of New York and the New York City Department of Transportation (hereinafter, collectively, the "City") (No. 3860-002), and the cross motion by plaintiff, Pompeu Catelo-Branco, for partial summary judgment (No. 4315-003), are decided as follows.This matter arises out of a construction site accident which occurred on March 12, 2013, on Egbert Avenue, between Jewett Avenue and Llewellyn Place on Staten Island. Plaintiff, a laborer performing emergency sewer repairs for his non-party employer, Perfetto Contracting Co., Inc. (hereinafter "Perfetto") claims to have sustained [*2]extensive injuries to his wrist when an excavation bucket struck his left hand while serving as the crew's "timber man".^[FN1] Specifically, plaintiff claims that at the time of the accident, he was standing at grade level and holding a wood upright with his left hand - also described as "holding the trench" - to indicate to the excavator operator that the area behind the wood upright could be backfilled. Insofar as it appears, the bucket of the excavator struck plaintiff's left arm during the backfilling process.

Plaintiff instituted this action against the municipal defendants alleging, inter alia, common-law negligence and violations of Labor Law §§ 200 and 241(6).

It appears undisputed that plaintiff's customary work was that of a "pitman", the duties of which he described as standing "next to the [excavating] machine" and signaling to the operator, while acting in conjunction with the other pitman as a "second set of eyes" (see Plaintiff's November 19, 2014 EBT; Defendants' Exhibit G, p 19, ll 14-16; p 63, ll 14-20). According to plaintiff, on the date of the accident it had been raining continuously, and a number of his co-workers did not return to the construction site after lunch. As a result, when the original "timber man" failed to return, plaintiff, who had been working as the second "pitman", assumed the timber man[ s] place... so that the [excavator] operator could [continue] work[ing]" (id., p 56, ll 15-19). Shortly after the lunch break, while plaintiff's fellow-employee, Santos, was acting as the sole pitman, the bucket of the excavator "crashed against the wood...in [plaintiff's] left hand" (id., p 75, ll 8-20), resulting in the extensive injuries alleged ^[FN2] .

The City's "Assistant Civil Engineer", Godwin Kwami, who was purportedly present at the job site on a daily basis, apparently did not witness the accident because he had left the site in order to "run an errand" (see April 14, 2015 EBT of Godwin Kwami; Defendants' Exhibit H, p 11, ll 14-17).

In moving for summary judgment dismissing plaintiff's causes of action for (1) common-law negligence and the alleged violation of Labor Law §200, the City maintains that it did not direct, supervise, instruct or control plaintiff's work, nor did it have the authority to do so, and (2) the alleged violation of the provisions of the New York State Industrial Code upon which plaintiff relies to sustain his action under Labor Law §241(6) (i.e., 12 NYCRR §23-4.2 [a] and [k], 9.5[a] and [c], and 9.2[b][1]), are either inapplicable, insufficiently specific, and/or not causally related to plaintiff's accident.

In support of its motion, the City attaches, inter alia, the October 19, 2015 affidavit of its engineering expert, Jeffrey J. Schwalje, P.E., (see Defendants' Exhibit J), who opines that (1) the subject job site and trench were safe for the work of an excavation crew, (2) a three member excavation crew was a reasonable and safe number of people for the completion of this undertaking, (3) plaintiff, as a member of the excavating crew, was authorized pursuant to New York State [*3]Industrial Code §12 NYCRR 23-9.5(c)to be within range of the excavator's bucket, and (4) plaintiff received instructions only from his foreman, and was not in any way subject to the direction of the City's Engineer.

Plaintiff opposes the motion on the ground that factual questions preclude an award of summary judgment ^[FN3] , and cross-moves for partial judgment on the question of liability under Labor Law §241(6) due to the City's failure to comply with that provision of the Industrial Code set forth in 12 NYCRR §23-4.2(k). As is relevant, that section provides that: "[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment." In support of plaintiff's argument for imposing strict liability against the City, plaintiff submits, inter alia, the November 25, 2015 affidavit of his expert, Robert J. O'Connor, P.E., (see Plaintiff's Exhibit A), who opines, in effect, that plaintiff's injury resulted from his being forced to multitask. In this regard, Mr. O'Connor concludes that "in consideration of the authority possessed by the [City's Resident Engineer], the lack of an adequate crew to perform the excavation work ^[FN4] , and the lack of a competent person to monitor the conditions of the trench more frequently as a result of the rain on the day in question [,resulted in] improper and unsafe means and methods [being] utilized in the excavation," which caused the accident. Accordingly, plaintiff's expert further opined that "the City failed in its duty to properly exercise its authority to supervise the manner in which the work was being performed" (id., para 30).

In opposition to the cross motion, the City argues, inter alia, that the cross motion is untimely.

"[Inasmuch as] a summary judgment motion may resolve the entire case, obviously the timing of the motion is significant" (Brill v. City of New York, 2 NY3d 648, 651). Accordingly, "CPLR 3212(a)[as amended to take effect on January 1, 1997] provides that the court may set a date after which no [dispositive] motion may be made', and [i]f no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown'" (Fofana v. 41 W. 34th St., LLC, 71 AD3d 445; 447-448; see Perini Corp. v. City of New York [Department of Envtl Protection], 16 AD3d 37, 39). The need for strict adherence to this rule of procedure has been consistently reiterated by the Court of Appeals, which stated in Miceli v. State Farm Mut. Auto. Ins. Co., (3 NY3d 725, 726), "statutory time frames - like court-ordered time frames - are not options, they are requirements to be taken seriously by the parties." Nevertheless, an exception has been recognized in those cases where an untimely summary judgment motion or cross motion seeks relief "on the same issues as were raised in [a] timely motion" (Conkin v. Triborough Bridge & Tunnel Auth., 49 AD3d 320, 321). In that event, the untimely motion will be considered on the merits (id.). As is applicable herein, the Rules [*4]of the Thirteenth Judicial District require that all dispositive motions be made within 60 days of the filing of the Note of Issue.

In this case, plaintiff filed his Note of Issue on August 24, 2015. The City moved for summary judgment 59 days later, on or about October 22, 2015, but plaintiff's "cross motion" was not served until 90 days later, on November 22, 2015. However, since the City's timely motion for summary judgment was still pending on the date the cross motion was served, and because both motions were made upon substantially similar grounds, i.e., the extent, if any, of the City's liability at common law and under Labor Law §§ 200, 241(6), both the motion and cross motion are properly before the Court for a determination on the merits (see e.g., Giambona v. Hines, 104 AD3d 807, 870; Grando v. Petroy, 39 AD3d 590, 592).

Turning to those merits, it is the determination of this Court that the City's motion for summary judgment be granted to the extent of dismissing the complaint with respect to plaintiff's causes of action for common-law negligence and/or the alleged violation of Labor Law §200, as well as so much of his cause of action under Labor Law §241(6) as is predicated upon the alleged violation of Industrial Code §§23-9.2(b)(1), 9.5(a), 9.5 (c) and 4.2(a). The balance of the City's summary judgment motion should be denied.

As the Court of Appeals has often stated, "[s]ection 200 of the Labor Law is a codification of the common-law duty imposed upon owners and general contractors to provide construction site workers with a safe place to work. An implicit precondition to this duty is that the party charged with that responsibility have the authority to control the activity bringing about the injury. [Thus, w]here the alleged defect or dangerous condition arises from the contractor's methods and the owner [or contractor] exercises no supervisory control over the operation, no liability [will] attach[]...under the common law or...Labor Law §200" (Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 877 [internal quotation marks omitted]; see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-505). In addition, it may now be considered well settled that an owner or contractor's "general supervisory control is insufficient to impute liability pursuant to Labor Law §200, which requires actual supervisory control or input into how the work is performed" (see Hughes v. Tishman Constr. Corp., 40 AD3d 305, 311; Burkowski v. Structure Tone, Inc., 40 AD3d 378, 381). "Where, for example, a plaintiff's claim arises out of alleged defects or dangers in the methods [, means] or materials of the work, to prevail on a Labor Law §200 cause of action, the plaintiff must show that the [owner or contractor] had the authority to supervise or control the performance of the work...[, i.e., bore the] ...responsibility for the manner in which the work [was] performed" (Klimowicz v. Powell Cove Assoc, LLC, 111 AD3d 605, 606-608 [internal quotation marks omitted]). In this regard, it has repeatedly been held that "[t]he [owner's] right to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law §200 or ...common-law negligence" (id. at 608, quoting Austin v. Consolidated Edison, Inc., 79 AD3d 682, 684; see Hughes v. Tischman Constr. Corp., 40 AD3d at 311; Burkowski v. Structure Tone, Inc., 40 AD3d at 381 [internal quotation marks omitted]).

Here, the uncontroverted EBT testimony of the City's Resident Engineer regarding the nature of his duties was described as ensuring that the correct sheeting and piping was being installed, and that the workers were utilizing available safety devices where necessary (see Defendants' Exhibit H, pp 22-23). In addition, the deposition testimony of both plaintiff (see Defendants' Exhibit G, p 62) [*5]and his co-worker, Santos (see Defendants' Exhibit I, p 62) are unanimous on the issue of whether they received any instructions from the City's inspector. Both maintained that they received their instructions solely from Perfetto's foreman. In combination, this testimony is sufficient to demonstrate that the City was neither authorized nor required to oversee the means and methods of plaintiff's work. Further support for this conclusion may be found in Perfetto's contract with the City, wherein it is provided that the City's Resident Engineer "continually monitor the safety and environmental performance of the contractor's employees and work methods", but fails to authorize the level of supervision and control contemplated by Labor Law §200 or required at common law to impose liability (see Klimowicz v. Powell Cove Assoc, LLC, 111 AD3d at 607-608).

Based on the foregoing, the City has clearly demonstrated its prima facie right to judgment as a matter of law on the causes of action pleaded under Labor Law §200 and/or common-law negligence. In opposition, plaintiff has failed to raise a triable issue of fact, notwithstanding the expert affidavit of Robert O'Connor, P.E., wherein he purports to rely on the City's contractual obligation to "continually monitor the safety...of the contractor's employees and work methods" to raise a triable issue. As previously discussed, this level of supervision, even if accurately stated, is insufficient to satisfy the legal standard of supervision and control necessary to impose liability at common law and under Labor Law §200.

Labor Law §241(6) "requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502 [internal quotation marks omitted]). Accordingly, since the duty imposed by section 241(6) is nondelegable insofar as it applies to the liability of owners and contractors, a plaintiff is not required to demonstrate the exercise of supervision and control by these defendants in order to establish a right of recovery (see St. Louis v. Town of N. Elba, 70 AD3d 1250, affd 16 NY3d 411). Nevertheless, in order to establish a viable claim under Labor Law §241(6), a plaintiff must allege the violation of a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct (id.).

Here, again, the City has successfully demonstrated its prima facie right to judgment by demonstrating that all but one of the Industrial Code provisions relied upon by plaintiff are either inapplicable to the facts of this case or are insufficiently specific to support a claim under Labor Law §241(6) (cf. Karanikolas v. Elias Taverna, LLC, 120 AD3d 552, 555). Accordingly, defendants are entitled to the dismissal of so much of plaintiff's cause of action as is predicated on the alleged violation of 12 NYCRR 23-9.5(a) (no allegation or proof that the ground was uneven or that the excavator tipped or leaned over improperly); 12 NYCRR 9.5 (c)(plaintiff was, in fact, authorized to be present as part of the excavation crew); 12 NYCRR 9.2(b)(1)(a general safety standard requiring that all power equipment be operated by, e.g., "trained, designated persons" held insufficiently specific to support a cause of action under Labor Law §241(6) [see Gonzalez v. Perkan Concrete Corp., 110 AD3d 955, 958]); and 12 NYCRR 23-4.2(a)(no allegation or proof that the trench caved in or was improperly secured). Moreover, since plaintiff opposes this branch of the City's motion only with respect to the alleged violation of 12 NYCRR 23-4.2(k), the remainder of [*6]his claims under Labor Law §241(6) may be deemed abandoned.^[FN5]

Turning to plaintiff's cross motion for partial summary judgment on the issue of liability under Labor Law §241(6), the Second Department has recently held that "a person [such as plaintiff] authorized pursuant to 12 NYCRR 23-9.5( c ) to operate or be within the range of an excavator's bucket [i.e., a member of the "excavating crew"] may...still claim the protections provided by 12 NYCRR 23-4.2(k)," which it specifically held set forth a sufficiently specific standard of conduct on which to predicate a violation of Labor Law §241(6) (Torres v. City of New York, 127 AD3d 1163, 1166). Nevertheless, plaintiff's failure to make a prima facie showing of his freedom from comparative fault relative to his injury precludes the entry of partial summary judgment in his favor on the issue of liability (id. at 1166-1167). This failure requires the denial of plaintiff's cross motion regardless of the sufficiency of the City's opposing papers (Winegrad v. New York Univ. Med. Ctr, 64 NY2d 851, 867).

Accordingly, it is

ORDERED, that the motion for summary judgment of defendants The City of New York and the New York City Department of Transportation is granted to the extent that the cause(s) of action against them predicated upon the alleged violation of Labor Law §200 and/or common-law negligence are hereby severed and dismissed; and it is further

ORDERED, that the balance of defendants' motion is denied; and it is further

ORDERED, that so much of plaintiff's cause of action pursuant to Labor Law §241(6) as is predicated upon the alleged violation of the following sections of the New York Industrial Code, i.e., sections 23-4.2(a), 9.2(b)(1), 9.5(a) and 9.5(c) (12 NYCRR §§23-4.2[a], 9.2[b][1], 9.5[a] and 9.5[ c ]) is dismissed as abandoned; and it is further

ORDERED, that plaintiff's cross motion for partial summary judgment on so much of his Labor Law §241(6) cause of action as is predicated on the alleged violation of Section 23-4.2(k) of the Industrial Code is denied; and it is further

ORDERED, that the Clerk enter judgment and mark his records accordingly; and it is further

ORDERED, that the balance of the matter proceed to trial.