This is an action to recover damages for personal injuries sustained by plaintiff on August 16, 2012 when he was struck on his leg by an I-beam he was cutting with a welding torch.

Plaintiff commenced this action on December 23, 2013 by filing a summons and complaint, claiming that defendants violated New York Labor Law §§ 240, 200, 241(6) as well as various sections of Rule 23 of the Industrial Code of New York and common-law negligence. Defendants served their answer on or about May 29, 2014. Defendants joined issue by service of a verified answer on April 9, 2014. A third-party action was commenced on June 11, 2014. Defendants now move for summary judgment.

In support of the motion, defendants submit an affirmation from counsel, Wendy Jennings, Esq.; a memorandum of law; the pleadings; the Note of Issue; the Preliminary Conference Order; plaintiff's verified supplemental bill of particulars; a copy of the transcript of plaintiff's examination before trial; a copy of the transcript of Sean Nussbaum's examination before trial; an affidavit from defendants' Adam Sokol and Sara Sokol; a copy of the transcript of Adam Sokol's examination before trial; an affidavit from Bruno Rotundi; and affidavit from Alberto Rotundi with photographs annexed; and a copy of the Ambulance Report.

At his examination before trial taken on April 9, 2015, plaintiff testified that he was hired by Rotundi Construction in 2001 to work as a laborer doing construction, demolition, flooring, and cement. On the date of the accident he was picked up by Alberto Rotundi and driven to the subject construction site in Kew Gardens. The project involved the construction of a single family residence. He had worked at the subject location for three days, up to and including the date of the incident. His job was to cut the end of the beams into a point to ready them for placement in the ground. Located on the construction site were piles of eight to ten beams, one on top of the other. At the time of the incident, he was cutting a beam with a torch. He cut one side of a point on a beam in a pile and had started to cut the other side with the torch just prior to the incident. As he began to cut the beam, Alberto Rotundi hit the beam with a hammer, causing the four foot pile of beams to collapse, fall apart, and land on him.

Sean Nussbaum, a project manager for All Boro Group, LLC d/b/a All Boro Rehab Construction Corp. (All Boro), appeared for a deposition on June 18, 2015. He testified that All Boro was hired by Adam Sokol and Sara Sokol to construct a house at 72-15 [*2]136th Street in Queens, New York. All Boro was the general contractor. All Boro hired third-party defendant Base Construction Corp. (Base) to do some aspects of the work including excavation and construction of the foundation of the house. His contact for Base was Alberto Rotundi who was at the job on a daily basis. Nussbaum would be at the construction site two to three times per week. Base was responsible for installing steel beams for the house's foundation. Base provided those beams and all tools and equipment for that work. Base employees were to install and cut those beams. Upon notification of plaintiff's incident, Nussbaum responded to the site, and observed that the excavation work had not been started. Neither he nor any individual from All Boro provided Base employees with any instructions on how to do their work with the beams.

Adam Sokol and Sara Sokol provided a joint affidavit dated January 5, 2016. They affirmed that they are the owners of the subject location. They hired All Boro to handle all aspects of construction. They did not provide any materials, tools, or equipment to Base. They did not supervise or direct any of Base's work.

Bruno Rotundi, an owner of Base at the time of the incident, submits an affidavit dated January 5, 2016. He affirms that Base was plaintiff's employer on the date of the incident. Alberto Rotundi, a former owner of Base, also submits an affidavit confirming that he was working with plaintiff on the date and at the time of the incident. He and plaintiff were working on an I-beam which was laying on its side. Plaintiff started cutting one side of the beam with a welding torch. Plaintiff took a hammer and hit the section of the I-beam he had cut and knocked it to the ground. He then took the torch and started to cut the other side of the I-beam. When plaintiff was almost finished, Alberto Rotundi took a hammer and hit the I-beam to dislodge the piece that plaintiff was cutting. When Alberto Rotundi struck the beam, the I-beam shifted sideways into plaintiff's leg.

Based on the above, counsel for defendants contends that summary judgment must be granted in favor of defendants. Counsel first argues that Adam Sokol and Sara Sokol cannot be held liable for a labor law violation based upon the single family homeowner exemption and as there is no evidence that Adam Sokol and Sara Sokol had any involvement at the project site at the time of the incident. Plaintiff does not dispute such, accordingly plaintiff's complaint is dismissed as against the homeowners, Adam Sokol and Sara Sokol.

Regarding defendant All Boro, counsel contends that [*3]plaintiff's claims of negligence and violation of Labor Law § 200 fail as All Boro did not supervise or control any of Base's employees and All Boro did not provide any equipment to Base. Counsel also argues that Labor Law § 240 is inapplicable because the incident was not caused by an elevated or gravity related activity. Regarding the Industrial Code violations cited by plaintiff, counsel argues that §§ 1.5 and 2.1(b) are not sufficiently specific to support a Labor Law § 241(6) claim (citing Ross v Curtis-Palmer, 81 NY2d 494 [1993]; Fowler v CCS Queens Corp., 279 AD2d 505 [2d Dept. 2001]; Carty v Port Auth. of NY & N.J., 32 AD3d 732 [1st Dept. 2006]; Lynch v Abax, Inc., 268 AD2d 366 [1st Dept. 2000]). Additionally, counsel contends that § 2.1(a)(1) does not apply as the incident occurred outside, not in a passageway, walkway, stairway or other thoroughfare, and the beams were not being stored, but were integral to the work being performed. Similarly, § 2.1(a)(2) is inapplicable as plaintiff was not beneath the edge of a floor, platform, or scaffold at the time of the incident.

In opposition, counsel for plaintiff, Dennis Bellovin, Esq., contends that there are triable issues of fact. Specifically, counsel contends that there is a triable issue of fact as to whether the collapse of a pile of heavy steel beams, approximately four feet high, is a violation of Labor Law § 240(1) (citing Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009][finding that an elevation differential of four feet or four steps on a stairway could be physically significant, depending upon the weight of the falling object]; Willinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011]; Harris v City of New York, 83 AD3d 104 [1st Dept. 2011]). Counsel also argues that § 2.1 of the Industrial Code has been held to be sufficiently specific to support a Labor Law § 241(6)claim (citing Herman v St. John's Episcopal Hosp., 242 AD2d 316 [2d Dept. 1997]; Castillo v 3440 LLC, 46 AD3d 382 [1st Dept. 2007]). Counsel contends that defendant All Boro has failed to demonstrate that the pile of beams was secured together in any manner or secured to the ground, and as such, a triable issue of fact exists.

In reply, defendants reiterate that the beam did not fall from a height onto plaintiff, but was pushed onto him. As to plaintiff's § 241(6) claim, counsel contends that the Industrial Code provisions fail to support such a claim as the incident occurred in an open lot and the beams were not being stored. Additionally, counsel argues that plaintiff fails to oppose that portion of the motion which seeks dismissal of the Labor Law § 200 claim or common law negligence claim against All Boro.

The proponent of a summary judgment motion has the initial [*4]burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing an entitlement to judgment as a matter of law (see Ayotte v Gervasio, 81 NY2d 1062 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once the requisite showing has been made, the burden shifts to the opposing party to produce admissible evidence sufficient to establish the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Labor Law § 200 is a "codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work." (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). It follows that the party charged with responsibility must have the authority to control the activity that caused the injury, or have actual or constructive notice of the alleged unsafe condition to be liable under common-law negligence and/or Labor Law § 200 (see id.; Gallagher v Resnick, 107 AD3d 942 [2d Dept. 2013]; Acosta v Hadjigavriel, 18 AD3d 406 [2d Dept. 2005]).

The evidence in the record demonstrates that defendants did not supervise, direct, or control the method or manner in which plaintiff performed his work (see Lofaso v J.P. Murphy Assoc., 37 AD3d 769, 771 [2d Dept. 2007]). Additionally, plaintiff does not oppose defendants' branches of their motion seeking dismissal of the § 200 and common law negligence claims. As such, plaintiff's Labor Law § 200 and common law negligence claims are dismissed.

Labor Law § 240(1) provides that "[a]ll contractors and owners . . . shall furnish or erect, or cause to be furnished or erected . . . 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 [construction workers employed on the premises]" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500 [1993]; see Mingo v Lebedowicz, 57 AD3d 491 [2d Dept. 2008]). The purpose of this statute, commonly referred to as the "scaffold law," is to protect workers "by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect themselves from accident" (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985][internal quotation marks omitted]). To prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of the [*5]injuries (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280 [2003]; Melchor v Singh, 90 AD3d 866 [2d Dept. 2011]; Rudnik v Brogor Realty Corp., 45 AD3d 828 [2d Dept. 2007]). A plaintiff cannot recover under Labor Law § 240 (1) if his or her actions were the sole proximate cause of the injuries (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280 [2003]; Rudnik v Brogor Realty Corp., 45 AD3d 828 [2d Dept. 2007]).

Here, this Court finds that plaintiff's incident is outside the scope of Labor Law § 240 (1). The beam which fell was at the same level as plaintiff, and there were no materials being loaded, hoisted, or otherwise secured. Moreover, the beam struck plaintiff because Alberto Rotundi struck the beam with a hammer, not because of gravity. Thus, plaintiff was exposed to the ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240(1) and his § 240(1) claim is dismissed (see Rodriguez v Margaret Tietz Center for Nursing Care, Inc., 84 NY2d 841 [1994][finding no liability where worker was placing a 120-pound beam onto the ground from seven inches above his head]).

To support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that the injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals (Ares v State, 80 NY2d 959 [1992]; Adams v Glass Fab, 212 AD2d 972 [2d Dept. 1995]).

Here, plaintiff alleges that the pile of beams needed to be secured together or secured to the ground to comply with Industrial Code § 23-2.1. Industrial Code § 23-2.1(a) pertains to storage of material or equipment. Industrial Code § 23-2.1(b) pertains to disposal of debris. As the beams that fell on plaintiff were not being stored, but were in use, and the area where the incident occurred was not a passageway, walkway, stairway or other thoroughfare, § 2.1 is inapplicable (see Cody v State of New York, 82 AD3d 925 [2d Dept. 2011]; Castillo v Starrett City, 4 AD3d [2d Dept. 2004]).

Accordingly, and based on the above reasons, it is hereby

ORDERED, that defendants ADAM SOKOL, SARA SOKOL and ALL BORO GROUP, LLC d/b/a ALL BORO REHAB CONSTRUCTION CORP.'s motion for summary judgment is granted, plaintiff's complaint is dismissed in its entirety, and the Clerk of Court is authorized to enter judgment accordingly.