Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the plaintiff Donato Crichigno (hereinafter Crichigno or the injured plaintiff) filed on April 27, 2017, under motion sequence number five, for an order (1) pursuant to CPLR 3212 granting [*2]summary judgment in his favor on liability and against the defendants ^[FN1] on the causes of actions for violations of the New York Labor Law section 200, 241(6) and 240(1).

Notice of motion

Affirmation in support

Exhibits A-J

Affirmation in opposition

Exhibits A-C

Affirmation in reply

On November 25, 2015, Crichigno commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's Office (the main action). On January 27, 2016, the defendant Pacific Park 550 Vanderbilt, LLC (hereinafter Pacific Park) joined issue by filing a verified answer. The injured plaintiff commenced three additional separate actions against individual defendants. By order dated January 20, 2017, the Court consolidated those actions with the main action. A note of issue has not been filed.

The verified complaint, bill of particulars and Crichigno's deposition transcripts allege the following salient facts. On August 25, 2015, the date of the accident, injured plaintiff was employed by non-party DiFama Concrete (DiFama) as a laborer. The injured plaintiff was working at a job site located at 550 Vanderbilt Avenue in Brooklyn, New York (hereinafter the premises). The premises was owned by the New York State Urban Development Corporation (hereinafter NYSUDC) and leased by Pacific Park 550 Vanderbilt LLC (hereinafter Pacific Park). The general contractor on the site was Plaza Construction LLC ^[FN2] (hereinafter Plaza)^[FN3] .

On the date of the accident the injured plaintiff was employed by DiFama. DiFama was the subcontractor present on the site to remove concrete molds. The molds were made up of pieces of wood termed "ribs" and sheets of plywood. The molds are used to create the floors of the structure. Concrete is poured into the molds and once it is dry the molds are taken apart. The injured plaintiff was directed to collect the ribs which had been removed from the underside of the plywood forms and were laying on the basement floor. While collecting the discarded ribs a co-worker that was stripping the plywood forms on an upper floor dropped one which struck [*3]Crichingo causing injury. There were no warning tapes, cones or barricades of any kind to indicate that work was being performed above the injured plaintiff or that there was a danger of debris falling.

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, 508 N.Y.S.2d 923 [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]).

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 1062, 601 N.Y.S.2d 463[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, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).

A party opposing a motion for summary judgment is obligated "to lay bare his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v. Associated Fur 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]).

"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion" (People ex rel. Spitzer v. Grasso, 50 AD3d 535, 544, 858 N.Y.S.2d 23 [1st Dept.2008]; citing Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 563 N.Y.S.2d 449 [2nd Dept.1990]).

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 [1991]). To recover, the injured 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 [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 [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 injured plaintiff's injuries (Corchado v. 5030 Broadway Properties, LLC, 103 AD3d 768 [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.). Falling object liability under Labor Law § 240 (1) is not limited to cases in which the falling object is in the process of being hoisted or secured but may be imposed where an object or material that fell, [*4]causing injury, was a load that required securing for the purposes of the undertaking at the time it fell (Podobedov v. E. Coast Const. Grp., Inc., 133 AD3d 733, 735 [2d Dept 2015][internal citations omitted]).

To hold a party liable, as an agent of general contractor, for violations of the scaffold law and statute requiring owners and contractors to provide reasonable and adequate protection and safety for workers engaged in construction, demolition, and excavation work, there must be a showing that it had the authority to supervise and control the work. The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right (Bakhtadze v. Riddle, 56 AD3d 589 [2nd Dept 2008]).

To prevail on a motion for summary judgment in a Labor Law § 240 (1) falling object case, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking (Romero v. 2200 N. Steel, LLC, 148 AD3d 1066, 1067 (2d Dept 2017)[internal citations omitted]). Labor Law § 240 (1) does not automatically apply simply because an object fell and injured a worker; [a] plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute (Id.) Where the hoisting or securing of a device of the kind enumerated in the statute would not have been necessary or even expected Labor Law 240(1) does not apply see Romero v. 2200 N. Steel, LLC, 148 AD3d 1066, 1067 (2d Dept 2017 citing Narducci v Manhasset Bay Assoc., 96 NY2d 259[2001]; Roberts v General Elec. Co., 97 NY2d 737, 738 [3d Dept 2002]).

In the instant action the injured plaintiff alleges that the plywood should have been secured and the failure to do so was a violation of Labor Law 240(1). In support of this contention the injured plaintiff submits the affidavit of Herbert Heller, a professional engineer (hereinafter Heller). Heller asserts that the plywood falling alone established a violation of Labor Law 240(1). He further states that the plywood planks could have been secured by planks laid near the basement ceiling, level across the scaffolds which would have provided the necessary protection. Heller does not offer an opinion as to whether this type of work normally requires securing for the purposes of the work being performed.The way that Crichigno was injured is akin to the fact pattern of Roberts v General Elec. Co. where the plaintiff was injured by asbestos that was purposefully dropped by a worker from above while the removing it from the site (97 NY2d 737, 738 [3d Dept 2002]). Similarly to Roberts, the plaintiff has failed to establish that the debris that fell was necessary or even expected to be secured. Accordingly, the injured plaintiff has not met his burden establishing that Labor Law 240(1) was violated (see Romero v 2200 Northern Steel, LLC, 148 AD3d 1066 [2d Dept 2017]). The summary judgment motion is denied, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Section 241 (6) of the Labor Law imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (Combs v. New York State Electric & Gas Corp., 82 NY2d 876 [1993] ). Labor Law § 241(6) requires owners and contractors to provide "reasonable and adequate protection and safety" for workers and to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. To establish liability pursuant to Labor Law § 241(6), [*5]plaintiff must plead and prove that a specific violation of the Industrial Code was the proximate cause of his accident (Ross v. Curtis—Palmer Hydro Electric Co., 81 NY2d 494 [1993] ).

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 matter the injured plaintiff asserts that the following Industrial Code sections were violated: 12 NYCRR 23-1.7(a)(1)-(a)(2); 23-3.3(g); and 12 NYCRR 23-3.3(g).

Section 23-1.7(a)(1) provides in pertinent part:

Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.

Section 23-1.7(a)(1) provides in pertinent part:

(2) Where persons are lawfully frequenting areas exposed to falling material or objects but wherein employees are not required to work or pass, such exposed areas shall be provided with barricades, fencing or the equivalent in compliance with this Part (rule) to prevent inadvertent entry into such areas.

12 NYCRR 23-1.7(a)(1)-(a)(2) and 23-3.3(g) are specific enough to create a duty as they mandate compliance with concrete specifications (see Vatavuk v Genting New York, LLC, 142 AD3d 989 [2d Dept 2016]). However, in order for the instant provisions to apply, the area where the accident occurred must have been one "normally exposed to falling objects." In the instant matter, the injured plaintiff is alleging the opposite. Crichigno claims that his work area was not an area where there was usually a risk of falling objects. Nor has he submitted any other evidence to establish that the area was one which was normally exposed to falling hazards. Accordingly, the provisions are inapplicable to the instant action (see Id.).

Crichigno also alleges that 12 NYCRR 23-3.3(g) was violated. The section provides:

Every floor or equivalent area within the building or other structure that is subject to the hazard of falling debris or materials from above shall be boarded up to prevent the passage of any person through such area, or shall be fenced off by a substantial safety railing constructed and installed in compliance with this Part (rule) and placed not less than 20 feet from the perimeter of such floor opening or such area shall be provided with overhead protection in the form of tight planking at least two inches thick full size, [*6]exterior grade plywood at least three-quarters inch thick or material of equivalent strength.

This section of the Industrial Code also contains specific, positive commands sufficient to satisfy § 241(6) (see Murtha v. Integral Const. Corp., 253 AD2d 637, 639 [1st Dept 1998]). Furthermore, the injured plaintiff has alleged that the area where he was to work was subject temporarily to falling debris from workers above. The injured plaintiff's submissions establish that 12 NYCRR 23-3.3(g) was violated and that the violation proximately caused his injuries (see Ross v. Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494 [1993]).

The injured plaintiff must also establish that he is free from comparative fault (Id.). Crichingo testified that DiFama was present on the site specifically to engage in the removal of the plywood forms. He had experience with the process of removing the forms as he had done the same work on other job sites. He also testified that he did not check above him to ensure that workers were not removing debris on a higher floor. Accordingly, Crichingo has not established that the defendants were the sole proximate cause of his injuries. Accordingly, the injured plaintiff has failed to meet his prima facie burden of entitlement to summary judgment on the Labor Law 241(6) cause of action. The summary judgment motion is denied, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [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" (Id.; see also Reyes v. Arco Wentworth Management Corp., 83 AD3d 47, 51 [2nd Dept 2011]).

"A contractor on a construction site will be liable for an injury caused by a dangerous condition on the site where it created the condition, or where, with sufficient control over the conditions on the site, the contractor failed to remedy the dangerous condition, or to prevent the injured worker's exposure to it, within a reasonable time after the contractor had actual or constructive notice of the condition" (see Nankervis v. Long Is. Univ., 78 AD3d 799 [2nd Dept 2010] ).

"[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or ... [a] contractor [ ] cannot be had ... unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" (see Ortega v. Puccia, 57 AD3d 54, 61 [2nd Dept 2010] ). 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" (Eldoh v. [*7]Astoria Generating Co., L.P., 81 AD3d 871, 875 [2nd Dept 2011] [quoting Everitt v. Nozkowski, 285 AD2d 442, 443—444 [2nd Dept 2001] ).

When an accident is alleged to involve defects in both the premises and methods and materials used at the work site, the property owner or contractor is "obligated to address the proof applicable to both liability standards" (see Reyes v. Arco Wentworth Management Corp., 83 AD3d 47, 52 [2nd Dept 2011] ). A construction manager of the work on the subject premise, may be held liable for a violation of Labor Law § 200 if it created the condition, or where, with sufficient control over the conditions on the site, it failed to remedy the dangerous condition, or to prevent the injured worker's exposure to it, within a reasonable time after it had actual or constructive notice of the condition (see Nankervis v. Long Is. Univ., 78 AD3d 799 [2nd Dept 2010]).

In the instant action the injured plaintiff alleges that the owners and the general contractor are liable do to a violations of Labor Law 200. It is clear that the appropriate analysis is of the methods and means of the injured plaintiff's work rather than a dangerous or defective condition on the work site.^[FN4] Accordingly, in order to be held liable for an injury resulting the defendant must have had the authority to supervise or control the performance of the work.

In the instant matter the injured plaintiff has alleged that the owner and general contractor had the right and obligation to oversee work and stop the project due to safety issues.^[FN5] Crichingo submits, among other things, the contract between Pacific Park and Plaza and the deposition transcript of Charles Krammer (hereinafter Krammer) which describes the responsibilities of Plaza. The submissions of the injured plaintiff establish that Plaza was responsible for site safety and in fact oversaw the method and means of the work. In fact, Krammer testified that his job was to oversee the trades which included checking on the materials they were using. He was able to stop work on the project if he saw something unsafe. Crichingo has met his burden establishing that Plaza is liable under Labor Law 200. The burden now switches to the defendant to raise a triable issue of fact.

In opposition to the motion Plaza asserts that the injured plaintiff was supervised at all times by an employee of the non-party DiFama Concrete. Further, Plaza asserts that the injured plaintiff had not heard of Plaza nor known any person from Plaza. The knowledge of a laborer alone as to the chain of command at a work site is insufficient proof that an entity lacked supervision or control over that injured plaintiff (see i.e. Seferovic v. Atl. Real Estate Holdings, LLC, 127 AD3d 1058, 1060 (2d Dept 2015) . It is the opposing party's burden to raise a triable issue of fact through its witnesses with personal knowledge that it did not have authority to control the work or the right to insist that proper safety practices were followed (Seferovic, 127 AD3d 1058, 1060 (2d Dept 2015) citing Alfonso v. Pacific Classon Realty, LLC, 101 AD3d at [*8]770; Grilikhes v. International Tile & Stone Show Expos, 90 AD3d 480, 483)

In the instant matter Crichingo established that Plaza had authority to control the methods and means of the injured plaintiffs work. Plaza has failed to raise a triable issue of fact as to its liability under Labor Law 200. However, as discussed above, Plaza has raised a triable issue of fact as to injured plaintiff's comparative fault through Crichingo's deposition transcript. The injured plaintiff's deposition transcript establishes that he was aware of the work being performed above him but did nothing to ensure that the area that he was to work in was safe to do so. Accordingly, the motion for summary judgment against Plaza for violating Labor law 200 is denied.

Donato Crichigno's motion for an order pursuant to CPLR 3212 granting summary judgment in his favor on liability and against the defendants on the causes of actions for violations of the New York Labor Law section 240(1) is denied.

Donato Crichigno's motion for an order pursuant to CPLR 3212 granting summary judgment in his favor on liability and against the defendants on the cause of action as premised upon Labor Law § 241(6) violations of 12 NYCRR 23-1.7(a)(1)-(a)(2); 23-3.3(g) and 12 NYCRR 23-3.3(g) is denied.

Donato Crichigno's motion for an order pursuant to CPLR 3212 granting summary judgment in his favor on liability and against the defendants on the causes of actions for violations of the New York Labor Law section 200 is denied.

The foregoing constitutes the decision and order of this Court.