Plaintiffs' Labor Law § 241(6) claim is predicated on a violation of 12 NYCRR § 23-9.4(e). The regulation sets forth sufficiently specific requirements governing the movement of materials with a backhoe (in this case a concrete median barrier) to constitute a standard for the imposition of statutory liability (see, Brechue v. Town of Wheatfield, 241 A.D.2d 935, lv denied 94 N.Y.2d 759). Whether the alleged violation of the safety standard was a proximate cause of plaintiff's injuries merely presents a question of fact for resolution at trial.
As noted by this Court, "Labor Law § 200 codifies the common-law duty of an owner or employer to furnish employees with a safe place to work" (Gonzalez v. Stern's Dept. Stores, 211 A.D.2d 414). The record is insufficient to establish the absence of supervisory control by defendant City of New York over the work performed by plaintiff and, therefore, defendant has not met its burden to eliminate any material issue of fact so as to establish its entitlement to judgment as a matter of law (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.