ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the defendants third-party plaintiffs' motion which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof denying, as academic, that branch of the defendants third-party plaintiffs' motion which was for summary judgment on the third-party cause of action for contractual indemnification, and substituting therefor a provision denying that branch of the motion on the merits; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs [*2]to the third-party defendant payable by the defendants third-party plaintiffs.
In July 2020, the plaintiff was employed by the third-party defendant, Manhattan Concrete, Inc. (hereinafter Manhattan Concrete), and performing work at a construction project located in Brooklyn. On the date in question, the plaintiff and his coworkers were building walls on the seventh floor of the project, and his coworkers were passing plywood forms from the sixth floor to where the plaintiff was located on the seventh floor. The plaintiff allegedly was injured while carrying one of the pieces of plywood through an open area on the seventh floor to the location where the walls were being assembled when his left foot twisted after stepping into a hole that had been covered by a thin layer of cement.
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The hole had been left in the floor to create an opening for future plumbing and electrical installations. The plaintiff commenced this action to recover damages for personal injuries against the defendants Delshah-OTL-Start
22 Chapel Property Owner, LLC, Delshah Capital, LLC, Delshah-OTL-Start 22 Chapel JV, LLC, and Delshah/OTL 22, LLC, the owners of the property, and the defendant Titanium Construction Services, Inc., the general contractor for the project, alleging, inter alia, common-law negligence and violations of Labor Law §§ 200 and 241(6). The defendants subsequently commenced a third-party action against Manhattan Concrete, seeking, among other things, contractual indemnification.
Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability on the causes of action alleging common-law negligence and a violation of Labor Law § 200 and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23-1.7(e)(1) and (2). The defendants moved, among other things, for summary judgment dismissing those causes of action and on the third-party cause of action for contractual indemnification. In three separate motions, the plaintiff moved for leave to amend the bills of particulars so as to allege violations of 12 NYCRR 23-1.7(e)(1) and (2). In an order dated August 15, 2024, the Supreme Court, inter alia, denied the plaintiff's separate motions for leave to amend the bills of particulars, denied those branches of the plaintiff's separate motion which were for summary judgment on the issue of liability on the causes of action alleging common-law negligence and a violation of Labor Law § 200 and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23-1.7(e)(1) and (2), granted those branches of the defendants' motion which were for summary judgment dismissing those causes of action, and denied, as academic, that branch of the defendants' motion which was for summary judgment on the third-party cause of action for contractual indemnification. The plaintiff appeals, and the defendants cross-appeal.
Labor Law § 241(6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Fonck v City of New York, 198 AD3d 874, 875). To prevail on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must establish the violation of a specific provision of the Industrial Code and that such violation was a proximate cause of his or her injuries (see Bayron Chay Mo v Ultra Dimension Place, LLC, 236 AD3d 721, 723; Fonck v City of New York, 198 AD3d at 875). The Supreme Court properly concluded that 12 NYCRR 23-1.7(e)(1) was not applicable to the facts of this case, as the plaintiff's deposition testimony demonstrated that the area where he fell did not constitute a passageway as contemplated by that provision (see Fonck v City of New York, 198 AD3d at 876; Gargan v Palatella Saros Bldrs. Group, Inc., 162 AD3d 988, 989). Similarly, 12 NYCRR 23-1.7(e)(2) was inapplicable to the facts of this case, as the hole and cement over which the plaintiff tripped were not "debris" (id.), but rather had been intentionally installed and were an
"integral part of what was being constructed" (Fonck v City of New York, 198 AD3d at 876 [internal quotation marks omitted]; see Ramos v Kent & Wythe Owners, LLC, 236 AD3d 693, 696).
Accordingly, the Supreme Court properly denied the plaintiff's separate motions for [*3]leave to amend the bills of particulars so as to allege violations of 12 NYCRR 23-1.7(e)(1) and (2), properly granted that branch of the defendants' motion which was for summary judgment dismissing so much of the Labor Law § 241(6) cause of action as was predicated on violations of 12 NYCRR 23-1.7(e)(1) and (2), and properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on so much of the Labor Law § 241(6) cause of action as was predicated on violations of 12 NYCRR 23-1.7(e)(1) and (2).
"Labor Law § 200 is a codification of the common-law duty of owners, contractors, and their agents to provide workers with a safe place to work" (Doto v Astoria Energy II, LLC, 129 AD3d 660, 663; see Anjos v Tappan Zee Constructors, LLC, 243 AD3d 886, 889). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Ortega v Puccia, 57 AD3d 54, 61; see Impagliazzo v Judlau Contr., Inc., 241 AD3d 892, 893). "Where a premises condition is at issue, [f]or liability to be imposed on the [defendant], there must be evidence showing that the [defendant] either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time" (Impagliazzo v Judlau Contr., Inc., 241 AD3d at 893-894 [internal quotation marks omitted]). "By contrast, where a claim arises out of alleged dangers or defects in the means and methods of the work, a[ ] [defendant] may be held liable for common-law negligence or a violation of Labor Law § 200 only if he or she had the authority to supervise or control the performance of the work" (Walsh v Kenny, 219 AD3d 1555, 1557 [internal quotation marks omitted]; see Impagliazzo v Judlau Contr., Inc., 241 AD3d at 894). "Where, as here, the plaintiff[ ] allege[s] that an accident involves both a dangerous condition on the premises and the means and methods of the work, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards" (Impagliazzo v Judlau Contr., Inc., 241 AD3d at 894 [internal quotation marks omitted]).
Here, the Supreme Court erred in granting that branch of the defendants' motion which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200, as the defendants failed to eliminate triable issues of fact as to whether they had authority to exercise supervision and control over the work (see Ramos v Kent & Wythe Owners, LLC, 236 AD3d at 697; Caban v Plaza Constr Corp., 153 AD3d 488, 491) and whether they had constructive notice of the allegedly dangerous condition (see Impagliazzo v Judlau Contr., Inc., 241 AD3d at 894). As the defendants failed to meet their prima facie burden, we need not consider the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, the court should have denied that branch of the defendants' motion which was for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action (see Poalacin v Mall Props., Inc., 155 AD3d 900, 908). Furthermore, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability on the common-law negligence and Labor Law § 200 causes of action, since he failed to eliminate triable issues of fact as to whether the defendants had authority to exercise supervision and control over the work or had constructive notice of the allegedly dangerous condition (see Ricottone v PSEG Long Is., LLC, 221 AD3d 1032, 1036). Therefore, the
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Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the common-law negligence and Labor Law § 200 causes of action without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
In light of the foregoing, that branch of the defendants' motion which was for summary judgment on the third-party cause of action for contractual indemnification was not, as the Supreme Court concluded, academic (see Poalacin v Mall Props., Inc. 155 AD3d at 908-909). Nevertheless, we conclude that this branch of the defendants' motion should have been denied on the merits (see id. at 909).
DILLON, J.P., BRATHWAITE NELSON, LOVE and MCCORMACK, JJ., concur.
ENTER:
Darrell M. Joseph Clerk of the Court
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