While plaintiff has stated a prima facie case for relief under Labor Law § 240(1)(see, John v. Baharestani, 281 A.D.2d 114), we agree with the motion court that the contradictory evidence regarding how plaintiff's accident occurred raises a question of fact as to proximate cause. Accordingly, plaintiff's motion for partial summary judgment on liability was properly denied (see, Eitner v. 119 West 71st Street Owners Corp., 253 A.D.2d 641). While the statement submitted by Townsend in opposition to the summary judgment motion was unsworn, it is nonetheless admissible to defeat summary judgment (see, Stankowski v. Kim, 286 A.D.2d 282, 283). An acceptable excuse for the failure to meet the requirement of tender in admissible form was proffered. The declarant, a part-owner of third-party defendant Superman Construction, was shown to be unavailable to Townsend and in the control of Superman (see, Shapiro v. Butler, 273 A.D.2d 657, 659-660). The declarant is presumably available to testify in accordance with his prior statement (see, Levbarg v. City of New York, 282 A.D.2d 239, 241). In addition to the unsworn statement, the papers include a Workers' Compensation C-2 Form that also arguably contradicts plaintiff's version of the facts (Guzman v. L.M.P. Realty Corp., 262 A.D.2d 99; Koren v. Weihs, 201 A.D.2d 268, 269).
However, plaintiff's cited violations of the Industrial Code are either insufficiently specific or inapplicable to the instant accident and, upon a search of the record, we dismiss his section 241(6) claims as a matter of law (Sherba v. Midstate Precast Sys., 230 A.D.2d 944, 946; see also,Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 111). 12 NYCRR 23-1.5, which require "reasonable and adequate" protection and that machinery be in "good repair" and "safe" are generic directives that are insufficient as predicates for section 241(6) liability (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-505; Hawkins v. City of New York, 275 A.D.2d 634). Furthermore, 12 NYCRR 23-1.21, which governs ladders, and 12 NYCRR 23-5.2, 5.6, 5.7, 5.13, 5.16, 5.17, which govern scaffolds, are inapplicable since the instant matter did not involve the use of ladders or scaffolds (see generally, Smith v. Homart Development Co., 237 A.D.2d 77). Similarly, 12 NYCRR 23-1.11, which pertain to "lumber and nail fastenings," is likewise inapplicable as is 12 NYCRR 23-1.15, which sets standards for the construction of safety railings (see, Luckern v. Lyonsdale, 281 A.D.2d 884, 887; Avendano v. Sazerac, Inc., 248 A.D.2d 340, 341), as well as 12 NYCRR 23-2.6, which pertains to the construction of exterior masonry walls.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.