The plaintiff will prevail if the opposing party fails to raise a triable issue of fact (id.). For a defendant to prevail on a motion to dismiss a Labor Law 241 (6) claim, it must demonstrate, prima facie, that those provisions of the Industrial Code asserted by the plaintiff are inapplicable to the facts of this case or, as a matter of law, were not violated (Cruz v 1142 Bedford Ave., LLC, 192 A.D.3d 859, 863 [2021]). "It is a defendant's burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense, which cannot be sustained by pointing out gaps in the plaintiffs proof' (id.).
Stated conversely, there is no evidence or allegation that Central Hudson was the actual "owner" of the road itself. However, the term "owner" as used in the statute is not limited to the titleholder of the property where the accident occurred, but encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his or her benefit. Scaparo v. Village of Ilion, 13N.Y.3d 864; Cruz v. 1142 Bedford Avenue, LLC, 192 A.D.3d 859 [2 Dept. 2021]. The critical factor in determining whether a party is an 'owner' is whether it possessed the right to insist that proper safety practices were followed; that is, the right to control the work.
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the cause of action alleging common-law negligence and, in effect, the cause of action alleging a violation of Labor Law ยง 200. "Labor Law ยง 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers" (Walsh v Kenny, 219 A.D.3d at 1556 [internal quotation marks omitted]; see Misicki v Caradonna, 12 N.Y.3d 511, 515; Cruz v 1142 Bedford Ave., LLC, 192 A.D.3d 859, 862). "[A]n owner or general contractor is vicariously liable without regard to their fault, and even in the absence of control or supervision of the worksite, where a plaintiff establishes a violation of a specific and applicable Industrial Code regulation" (Bazdaric v Almah Partners LLC, 41 N.Y.3d 310, 317 [alteration and internal quotation marks omitted]). Industrial Code (12 NYCRR) ยง 23-1.5(c)(3), which provides that "[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged," is sufficiently specific to support a cause of action alleging a violation of Labor Law ยง 241(6)
Accordingly, the Supreme Court properly denied that branch of the Gusmar defendantsโ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law ยง 240(1) insofar as asserted against them and properly denied the plaintiffsโ cross motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law ยง 240(1) insofar as asserted against Gusmar Enterprises. " Labor Law ยง 241(6) imposes a nondelegable duty upon an owner and general contractor 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" ( Cruz v. 1142 Bedford Ave., LLC, 192 A.D.3d 859, 862, 145 N.Y.S.3d 77 ; seeMisicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213 ). " โTo establish liability under Labor Law ยง 241(6), a plaintiff or a claimant must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the caseโ " ( Guaman v. 178 Ct. St., LLC, 200 A.D.3d at 657, 159 N.Y.S.3d 454, quoting Aragona v. State of New York, 147 A.D.3d 808, 809, 47 N.Y.S.3d 115 ).
"All safety devices, safeguards and equipment in use shall be kept sound and operable and shall be immediately repaired or restored or immediately removed from the job site if damaged". A party asserting a Labor Law ยง 241 (6) claim premised on Code section 23-1.5(c)(3) must demonstrate that the safety device or equipment used in connection with the work performed was not kept sound and operable or immediately repaired or restored or immediately removed from the job site (DesprezvUnited Prime Broadway, LLC, 225 A.D.3d 518, 518-519 [1st Dept 2024]; PalaguachivIdlewild 228th Street, LLC, 197 A.D.3d 1321, 1323 [2d Dept 2021]; Cruz v 1142 Bedford Avenue, LLC, 192 A.D.3d 859, 862-863 [2d Dept 2021]).
Moreover, Cafiso, in his deposition testimony, noted that there were several trades that used two-by-fours in their work, and his testimony did not exclude such entities as a possible source of the two-by-four that allegedly struck plaintiff or demonstrate that any such two-by-four was not part of a load that required securing or was not improperly secured. In finding that the Owner Defendants have failed to meet their prima facie burden in this respect, the court emphasizes that defendants cannot satisfy their initial burden by merely showing gaps in a plaintiffs case (see Incorporated Vil. of Freeport v Albrecht, Viggiano, Zurich &Co., P.C., 226 A.D.3d 658. 660 [2d Dept 2024]; Bourne v. Martin Dev. &Mgt., LLC, 219 A.D.3d 684, 685 [2d Dept 2023]; Cruz v. 1142 Bedford Ave., LLC, 192 A.D.3d 859, 863 [2d Dept 2021]).
That rule requires "All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged." The absence of components, including safeguards, is a violation of the rule (see Cruz v 1142 Bedford Aye., LLC, 192 A.D.3d 859, 862 [2d Dept 2021]), The record is hot clear what caused the hook to swing freely. Since the court is obliged to "view the evidence in the light most favorable to the nonmoving party," and the record does not demonstrate as a matter of law whether adequate safeguards were provided to prevent the hook from swinging freely, both parties' motions are denied as to this Industrial Code provision.
Moreover, GSPP did have a viable contract with AMS at the time of plaintiff s alleged accident. A party is an "owner," as contemplated by the Labor Law, when that party "has an interest in the property and ... fulfilled the role of owner by contracting to have work performed for his benefit" (Cruzv 1142 Bedford Avenue, LLC, 192 A.D.3d 859, 865 [2d Dept 2021 ], quoting Copertinov Ward, 100 A.D.2d 565, 566 [2d Dept 1984]). As an initial matter, GSPP identifies itself as the "owner" of the premises in its Phase II contract with AMS, which makes it aprima facie statutory defendant.
Here, as there was no visible defect in the step before plaintiffs accident, and there was testimony of regular inspections of the ladders, and notations of the inspections on the tags on the ladders, this section would only apply to what needed to be done after the step broke, not before or during. While this section has been found to be sufficiently specific to be enforceable, it is not appliable here (Cruz v 1142 Bedford Ave., LLC, 192 A.D.3d 859 [2d Dept 2021]).
Also, there is no indication that plaintiff engaged in a foolish or culpable act when he descended the same staircase he had used to ascend to the third floor only a little while earlier that day. Defendants have failed to raise a triable issue of fact to the contrary (Cruzv1142 Bedford Ave., LLC, 192 A.D.3d 859, 862-863 [2021]; cf. Fonck v City of New York, 198 A.D.3d 874, 875 [2021]). Accordingly, plaintiffs motion, insofar as it seeks partial summary judgment against defendants with respect to liability pursuant to Labor Law ยง 241 (6), is granted.