Defendant 1725 Crosby Realty, LLC moves pursuant to CPLR § 3212 for summary judgment dismissing plaintiff's claims for violation of Labor Law §§ 240 (1), 241 (6), 200 (1), and for common-law negligence. Plaintiff opposes and asks the Court to search the record and grant him partial summary judgment as to liability under Labor Law § 240 (1).

Defendant owns a funeral home located at 1727 Crosby Avenue, Bronx, New York, and hired plaintiff's employer, non-party Painting by Penta Corp., to remove a drop ceiling and to plaster and paint the ceiling. According to plaintiff, on February 13, 2019, he was sanding the ceiling at the premises while standing on an approximately 7-foot scaffold, when the scaffold moved and plaintiff fell to the ground, sustaining injuries.

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]).

Defendant seeks dismissal of plaintiff's claims for violation of Labor Law § 200 and for common law negligence. By not opposing dismissal of these claims, plaintiff is deemed to have abandoned them (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]). Therefore, summary judgment dismissing the Labor Law § 200 and common law negligence claims is granted.

Defendant seeks summary judgment dismissing plaintiff's Labor Law § 240 (1) claim, arguing that plaintiff's work was not covered by the statute. Specifically, defendant maintains that plaintiff was engaged in "minor, routine maintenance work" that was performed every five years at the funeral home and does not constitute "painting" or "repairing" covered under Labor Law § 240(1).

Labor Law § 240 (1) provides in relevant part that where there is repairing, altering or painting 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 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]).

As indicated, painting is an enumerated activity under Labor Law § 240 (1), and plaintiff's work sanding the ceiling in preparation for painting was an integral part of that covered work (see Aarons v 401 Hotel, L.P., 12 AD3d 293, 294 [1st Dept 2004]; see also Campos v 68 E. 86th St. Owners Corp., 117 AD3d 593, 593 [1st Dept 2014]). Plaintiff has established that defendant violated Labor Law § 240 (1) and that such violation was a proximate cause of his injury, and defendant has failed to raise a triable issue of fact. As such, defendant's motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim is denied and, searching the record, the Court grants partial summary judgment as to liability for plaintiff.

Defendant argues that it is entitled to summary judgment dismissing plaintiff's Labor Law § 241 (6) claim, because plaintiff's work was merely routine maintenance and was not "construction," "demolition," or "excavation" covered by the statute. Defendant further argues that even if plaintiff was engaged in a covered activity, the claimed Industrial Code provisions either were not violated, do not apply, or plaintiff has abandoned them.

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]). "[T]o state a claim under [Labor Law] section 241 (6), plaintiff must allege 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 v Port Auth. of NY & N.J., 38 NY3d 89, 94 [2022] [internal quotation marks and citations omitted]). Labor Law § 241(6) requires that a plaintiff establish that a violation of a safety regulation was the proximate cause of the accident [*2](Gonzalez v Stern's Dept. Stores, 211 AD2d 414, 415 [1st Dept 1995] [citation omitted]).

Plaintiff cites Industrial Code (12 NYCRR) § 23-5.1(b) to support his Labor Law § 241(6) claim, therefore, abandoning all other predicates not raised in his legal arguments (see 87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540, 542 [1st Dept 2014]).

Defendant correctly argues that plaintiff abandoned the 23-5.1(b) predicate by failing to specify the subsection in his bill of particulars (Caminiti v Extell W. 57th St. LLC, 166 AD3d 440, 441 [1st Dept 2018]; Bill of Particulars ¶ 8 [NYSCEF Doc. 20]). Even if the Court were to consider plaintiff's claim premised on Industrial Code § 23-5.1(b), it would fail, since that provision is not sufficiently specific to serve as a predicate for a Labor Law § 241 (6) claim (Varona v Brooks Shopping Centers LLC, 151 AD3d 459, 460 [1st Dept 2017]). Thus, summary judgment dismissing plaintiff's Labor Law 241 (6) claim is granted.

Accordingly, it is hereby

ORDERED that that part of defendant's motion for summary judgment dismissing plaintiff's claims under Labor Law §§ 241 (6), 200 (1) and for common-law negligence is GRANTED, and those claims are dismissed; and it is further

ORDERED that that part of defendant's motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim is DENIED and, upon searching the record, the Court grants partial summary judgment as to liability in favor of plaintiff on that claim; and it is further

ORDERED that 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.