Dismissal of Woodworks' appeal of the IAS Court's June 3, 1993 order is warranted by the appeal of the IAS Court's superseding order dated January 4, 1994, as well as plaintiff's concession, before the IAS Court and this Court, of the legal insufficiency of its cause of action pursuant to Labor Law § 241 (6).
Plaintiff's Labor Law § 200 (1) cause of action should be reinstated. Not only did the Court in Ross v Curtis-Palmer Hydro-Elec. Co. ( 81 N.Y.2d 494) hold that under section 200 (1) a claim such as plaintiff's would be viable where the owner or general contractor exercised supervisory control at the job site, but Ross also involved a construction contract, as does the instant case, in which the general contractor undertook responsibility for safety at the job site. While this contractual provision is not in itself sufficient to justify holding Morse Diesel, the general contractor, liable for the flawed procedure used to load the sheetrock studs, plaintiff argues, in accordance with the Court's finding in Ross, that a determination of the viability of his section 200 (1) claim should await the completion of further discovery as to whether the employees of Morse Diesel did in fact exercise supervision and control of safety at the job site. In accordance with Ross, we grant plaintiff this relief.
Concur — Sullivan, J.P., Ellerin, Rubin and Williams, JJ. [As amended by unpublished order entered June 20, 1995.]