The following e-filed documents, listed by NYSCEF document number (Motion 003 were read on this motion to/for JUDGMENT - SUMMARY.

Plaintiff Farmov Vafoev moves pursuant to CPLR 3212 for partial summary judgment as to liability against defendant Mohammad Hameed under Labor Law §§ 240 (1) and 241 (6). Hameed opposes plaintiff's motion and cross-moves for summary judgment dismissing plaintiff's complaint, including his claims under Labor Law §§ 200, 240 (1), 241 (6), and 241-a and for common-law negligence. Plaintiff opposes the cross-motion, except as to dismissal of the Labor Law § 241-a claim.^[FN1]

According to plaintiff, Hameed hired plaintiff's non-party employer, Success Contact, to [*2]perform renovation work on Hameed's house at 2315 Seymour Avenue, Bronx, New York. Plaintiff testified that on July 14, 2016, Hameed asked him, as translated through plaintiff's boss, Dima, to bring a box of tiles from the second floor to the first floor (NYSCEF Doc. 69 at 83:19-25; NYSCEF Doc. 55 ¶¶ 6, 9). A ladder was the only way to move between the floors (id. at 50:18-22). At the job site, there was a short store-bought A-frame ladder (id. at 48:2-13, 49:7-14, 56:11-58:10), and a handmade 10-foot ladder with no railing or rubber feet (id. at 50:21-51:7, 53:2-55:17). Plaintiff used the homemade ladder to get from the first floor to the second floor, and from the second floor to the third floor (id. at 50:19-22, 52:7-9, 58:18-59:2). The ladder collapsed, or lost balance, while plaintiff was descending, causing him to fall and sustain injuries (id. at 55:18-22, 83:21-84:3).

Plaintiff provides a sworn statement that the premises was a three-story, three-family house with three separate floors and a finished basement; and that each floor had a separate entranceway, bedroom(s), kitchen, living area, bathroom(s), doorbell, and mailbox (NYSCEF Doc. 55).

Hameed testified that he purchased the house in 2014 and lived with his family at a different address while construction was ongoing (Hameed Tr. at 20:6-21:18, 37:7-10 [NYSCEF Doc. 70]). In about 2017, Hameed moved into the premises and currently resides there with his family (id. at 21:19-24, 13:13-14:7). Hameed visited the premises while the work was ongoing, but he does not remember how frequently (id. at 48:13-49:4). All of the workers spoke Russian, except "Andrew," who spoke English; Hameed does not speak Russian and communicated with Andrew in English (id. at 49:18-50:24). Hameed testified that he saw plaintiff working at the premises, but never spoke to plaintiff or directed plaintiff to bring him materials (id. at 52:4-21, 54:12-55:3, 57:14-23). In July 2016, to move between the ground floor and the second floor, there were stairs as well as a man-made wooden ladder (id. at 58:15-59:7).

A party seeking summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (id.). Summary judgment is a drastic remedy and must be denied if there is any doubt as to the existence of a triable issue of material fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).

Plaintiff seeks summary judgment as to liability on his claim under Labor Law § 240 (1), and Hameed seeks summary judgment dismissing that claim based on the "homeowner's exemption."

Labor Law § 240 (1) provides in relevant part that where there is demolition, repairing or altering of a building, contractors and owners "shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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 a person so employed." "The statute imposes upon [*3]owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). "[W]here an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense; however, where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability" (id. [internal quotation marks omitted]). "Thus, in order to recover under section 240 (1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury" (id.). Labor Law § 240 (1) is to be liberally construed so as to accomplish its legislative purpose of protecting workers (Stoneham v Joseph Barsuk, Inc., 41 NY3d 217, 221 [2023]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

"Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). "[L]iability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (id., citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

Labor Law §§ 240 (1) and 241 (6) exempt from liability owners of one- and two-family dwellings "who contract for but do not direct or control the work" (see generally Bartoo v Buell, 87 NY2d 362, 367 [1996]). The homeowners' exemption was enacted to protect homeowners of one- and two-family dwellings, who are not in a position to realize, understand and insure against the responsibilities of the nondelegable duty imposed by Labor Law §§ 240(1) and 241(6) (Cannon v Putnam, 76 NY2d 644, 649-650 [1990]). The party claiming the benefit of the exemption has the burden of showing that it applies (Lombardi v Stout, 80 NY2d 290, 297 [1992]; see Farias v Simon, 122 AD3d 466, 467 [1st Dept 2014]).

"The applicability of the homeowner exemption is determined by a 'site and purpose' test, which hinges upon the site and the purpose of the work and must be employed on the basis of the homeowners' intentions at the time of the injury" (Diaz v Bocheciamp, 140 AD3d 408, 409 [1st Dept 2016] [citations and quotation marks omitted]; see Solis v 340 W. 12 Realty LLC, 226 AD3d 449, 450 [1st Dept 2024] [sworn statement that a family moved into property after accident insufficient to support application of homeowner's exemption]). Any doubt concerning the applicability of the exemption should be resolved in favor of the general rule that responsibility for job safety lies with the owner (Van Amerogen v Donnini, 78 NY2d 880, 882 [1991]; Garcia v Martin, 285 AD2d 391, 392 [1st Dept 2001]).

Although Labor Law §§ 240 (1) and 241 (6) do not specifically define "family" for the purposes of the homeowner's exemption, courts have looked to whether the dwelling occupants are maintaining a common household (see Diaz v Bocheciamp, 140 AD3d at 409 [exemption applicable where owners, adult child, and two grandchildren lived in upper floors of home and family friend lived in basement apartment]; Patino v Drexler, 116 AD3d 534, 534-535 [1st Dept 2014] [exemption applicable where defendant's family, household staff and groundskeeper lived together on premises and maintained common household]).

Here, plaintiff has met his prima facie burden of showing that Hameed violated Labor Law § 240 (1) and that such violation was a proximate cause of his injury. Hameed has not raised an issue of fact and has not demonstrated his prima facie entitlement to the homeowner's exemption, since he has not made a showing that he intended to use the property as a one- or [*4]two-family dwelling at the time of the accident (Solis, 226 AD3d at 450). Therefore, plaintiff's motion for partial summary judgment as to liability on his claim under Labor Law § 240 (1) is granted, and defendant's cross-motion to dismiss that claim is denied.

Labor Law § 241 (6) "imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]). To establish a claim under Labor Law section 241 (6), plaintiff must show that defendant "violated an Industrial Code regulation that sets forth a specific standard of conduct and is not simply a recitation of common-law safety principles" (Toussaint, 38 NY3d at 94 [internal quotation marks and citation omitted]). Labor Law § 241 (6) requires that a plaintiff establish that a violation of a safety regulation was the proximate cause of the accident (Gonzalez v Stern's Dept. Stores, 211 AD2d 414, 415 [1st Dept 1995] [citation omitted]).

Plaintiff argues that Hameed violated Industrial Code §§ 23-1.21, "1.21(3)," "1.21(4)(i)," 1.21(b)(4)(ii), and 1.21(b)(iv) as predicates for his Labor Law § 241 (6) claim.^[FN2] Plaintiff abandons all other predicates not raised in his legal arguments (87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540, 542 [1st Dept 2024]). Moreover, plaintiff fails to allege Industrial Code § 23-1.21, or any of its subsections, in his complaint, bill of particulars, or supplemental bill of particulars (see NYSCEF Docs. 48, 51). While the failure to identify the specific Code provision, in the complaint or bill of particulars, need not be fatal (Adams v Santa Fe Const. Corp., 288 AD2d 11, 12 [1st Dept 2001]), plaintiff does not seek leave to amend his bill of particulars to allege the provisions in question (see Marte v Tishman Constr. Corp., 223 AD3d 527, 528 [1st Dept 2024]).

Therefore, plaintiff's motion for partial summary judgment as to liability on his claim under Labor Law § 241(6) is denied, and Hameed's motion for summary judgment dismissing that claim is granted.

Hameed seeks dismissal of plaintiff's common law negligence and claim under Labor Law § 240.

"In order to prevail in any action premised upon [common law] negligence, it must be established that defendant owed plaintiff a duty, that defendant, by act or omission, breached such duty, that such breach was the proximate cause of plaintiff's injuries, and that plaintiff sustained damages" (Salvador v New York Botanical Garden, 71 AD3d 422, 423 [1st Dept 2010]). "Section 200 of the Labor Law 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]). "Claims for personal injury under the statute and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-44 [1st Dept 2012]). "Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or [*5]constructive notice of it" (id. at 144). "Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised control over the injury-producing work" (id.).

"Section 200 of the Labor Law 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" (Cruz v Toscano, 269 AD2d 122 [1st Dept 2000]). "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" (id. [internal quotation marks omitted]). "Where the alleged defect or dangerous condition arises from the contractor's methods and the owners exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200" (id. at 123).

Hameed demonstrated that he did not exercise supervisory control over the injury-producing work, and plaintiff failed to submit admissible evidence to raise an issue of fact (Nava v Franklin, 220 AD3d 486, 486-87 [1st Dept 2023]; Alberto v DiSano Demolition Co., Inc., 194 AD3d 607, 608-609 [1st Dept 2021]). Therefore, Hameed's motion for summary judgment dismissing plaintiff's common law negligence and Labor Law § 200 claims is granted.

Hameed seeks dismissal of plaintiff's Labor Law § 241-a claim. By not opposing dismissal of this claim, plaintiff is deemed to have abandoned the claim (see Gamez v Sandy Clarkson LLC, 221 AD3d 453, 454-455 [1st Dept 2023]; Martin Assoc., Inc. v Illinois Natl. Ins. Co., 188 AD3d 572, 573 [1st Dept 2020]; Saidin v Negron, 136 AD3d 458, 459 [2016], lv dismissed 28 NY3d 1069 [2016], cert denied 583 US 842 [2017]).

Accordingly, it is hereby

ORDERED that that part of plaintiff's motion for partial summary judgment as to liability on his claim under Labor Law § 240 (1) is GRANTED and the cross-motion by defendant Mohammad Hameed for summary judgment dismissing that claim is DENIED; and it is further

ORDERED that that part of plaintiff's motion for partial summary judgment as to liability on his claim under Labor Law §§ 241(6) is DENIED and the cross-motion by defendant Mohammad Hameed for summary judgment dismissing that claim is GRANTED; and it is further

ORDERED that that part of the cross-motion by defendant Mohammed Hameed for summary judgment dismissing plaintiff's claims under Labor Law §§ 200 and 241-a and for common law negligence is GRANTED; and it is further

ORDERED that the remaining parties shall appear for a pre-trial conference to be calendared by the Clerk of the Court.

This constitutes the decision and order of the Court.