Opinion
15649/08.
Decided March 30, 2011.
The following papers having been read on the motion (numbered 1-4):
Notice of Motion for Summary Judgment.................... 1 Affirmation in Opposition................................ 2 Memorandum of Law........................................ 3 Affirmation in Reply..................................... 4
Defendants, Plaza Construction Corp., Related Retail Corporation and BTM Development Partners, LLC, move, pursuant to CPLR 3212, for an Order of this Court granting them summary judgment dismissal of the plaintiff's complaint in its entirety. The motion for defendants summary judgment is decided as follows.
This is an action for personal injuries sustained by the plaintiff, Walter Gatto, as a result of claimed Labor Law violations emanating out of a work site accident in Bronx, New York on February 8, 2008. Plaintiff, Walter Gatto, alleges that on February 8, 2008, while in the employ of non-party, Donaldson Acoustics ("Donaldson"), he "was struck or caused to be struck by a load of Glass Gold Sheeting Material which was laden upon the . . . Man Lifter construction equipment. The Glass Gold Sheeting fell off when the Man Lifter was operated over uneven terrain" ( Verified Bill of Particulars, ¶ 13). The incident occurred at a construction site at the Bronx Terminal Market located at 150th Street and River Avenue, Bronx, New York (hereinafter referred to as the "Construction Site").
The following facts are not in dispute. Defendant BTM Development Partners, LLC ("BTM"), as the owner of the Construction Site, contracted with defendant Plaza Construction Corp. ("Plaza") to perform certain construction-related work at the Construction Site. Plaza, in turn, retained the services of Donaldson Acoustics, plaintiff's employer. Defendant Related Retail Corporation ("Related") was the project manager that developed said construction project.
At the time of his accident, plaintiff was employed as a "journeyman contractor" by Donaldson. He claims that at the time of his accident, he was standing in the aerial basket on a man lift being operated by a fellow Acoustics employee. While in the aerial basket, plaintiff claims that he was struck by Dens Glass Gold sheets (hereinafter referred to as "sheet rock") that shattered his leg and caused other injuries. He claims that the man lift upon which he was standing struck unlevel ground causing him and the load of sheet rock to shift abruptly downward which in turn caused the sheet rock to strike his leg. Specifically, he claims that he was struck by the sheet rock when one of the wheels of the man lift, upon which he was standing, was placed on an improperly backfilled trench adjacent to a building under construction. The man lift, at the time of his accident, was traveling over the trench at which point one of the wheels fell into the depression, causing the lift to shift and the sheet rock, in turn, to injure the plaintiff.
At his oral examination before trial, Gatto testified that on the day of his accident, he arrived at the Construction Site at 6:45 a.m. and began work at 7:00 a.m. He stated that until 8:30 a.m., he and his supervisor, Steve Gordon, installed 4' x 8' pieces of the sheet rock. They had performed this work for approximately 3 days prior to this incident. They were attaching exterior sheet rock, with fiberglass insulation, to metal studs. To install the sheet rock, together they would lift a board, place it against the studs and while it was held by one of them, the other would screw it into place using a powered screwdriver.
Plaintiff testified that the sheet rock was stored inside the building, and they used a manual "A frame" handcart to transport the material to the man lift, which was positioned adjacent to the building. With the lift bed in the down position, plaintiff passed the sheet rock, one at a time, to Steve Gordon, who while standing on the lift bed, leaned each piece against the bed's railing. Nothing was used to secure the sheet rock to the lift's bed rails. Plaintiff testified that when they loaded the sheet rock onto the man lift that morning, they stacked it on the lift's platform without using rope to secure it, and the sheet rock did not shift. Plaintiff testified that throughout the time he worked at the site, he did not use nor saw anything used to secure the sheet rock on the lifts. He stated that his supervisor, Steve Gordon told him that they were going to lean the sheet rock up against the rail of the lift bed, and the plaintiff did not think it unsafe.
Plaintiff testified that once the sheet rock was loaded, they boarded the lift bed to complete the work from the day before. When the last pieces were installed, there remained 8-10 boards of sheet rock on the lift bed, leaning against the side rail. At that time, Gordon lowered the lift's platform to the down position, and told plaintiff to lift 2 electrical extension cords running from the building's interior through the door, so that they would not run over them when Gordon repositioned the lift to the other side of the door opening. While standing in the lift bed, plaintiff held an electrical cord in each hand over the lift platform's railing while looking in the direction of travel. Gordon was operating the lift. He was facing away from the direction of travel, but turned his head to look over his shoulder as the lift backed away from the wall at approximately 5-6 mph. Plaintiff's back was to his co-worker when the lift pitched down to the right in a trench at the Construction Site approximately 18 inches before it returned to an upright position. Plaintiff testified that the lift had traveled approximately 10-12 feet before the incident occurred and that the lift's platform was in a down position when the incident occurred. He also explained that the man lift had a safety mechanism which prevented it from being driven while the platform was in an up position.
Plaintiff testified that he did not see what had caused the lift to dip either prior to or immediately following the incident. He also did not ask Gordon what happened. Plaintiff stated that the movement caused the sheet rock to shift and pin him against the rail, with his left leg and ankle pinned to the lift's platform floor. He stated that, following the incident, he was able to push the sheet rock up without assistance and extract his leg.
In bringing this action, plaintiff alleges violations of Labor Law §§ 200, 240(1) and 241(6), as well as, inter alia, violations of Industrial Code Rule § 23-9.2(b)(1) and § 23-9.2[c].
Upon the instant motion, defendants, Plaza, Related Retail Corporation and BTM, collectively seek summary judgment dismissing plaintiffs' complaint. Defendants assert three bases for summary judgment. First, that they did not supervise, direct or control plaintiff's work in any way, nor did they have notice of the existence of the allegedly hazardous condition and therefore, liability cannot be imposed under Labor Law § 200 or for common law negligence. Second, since the exterior sheet rock panels that plaintiff placed on the platform of the man lift did not fall while they were being hoisted or secured, or because of the inadequacy of a specific safety device in the statute, Labor Law § 240(1) does not apply. Lastly, defendants maintain that as the plaintiff has failed to establish a violation of a specific section of the Industrial Code that applies to the facts of this case and that such a violation was a proximate cause of the incident and the injuries sustained, Labor Law § 241(6) cause of action must be dismissed.
Labor Law § 200 and Common Law Negligence
It is well settled that the protection of Labor Law § 200 is not confined to construction work, but codifies the common law duty of an owner or employer to provide employees with a safe place to work ( Jock v. Fien, 80 NY2d 965; Rizzutto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 352; Yong Ju Kim v. Herbert Construction Co., Inc., 275 AD2d 709 [2nd Dept. 2000]). As such, liability can be imposed under Labor Law § 200 only if the party charged with violating it was negligent. This requirement generally means that the defendant cannot be held liable unless it knew or should have known of the condition or work practice in issue and had the ability and/or authority to correct it ( Seahorn v. Lyndon Corp., 301 AD2d 513 [2nd Dept. 2003]; Paladino v. Society of the New York Hospital, 307 AD2d 343 [2nd Dept. 2003]). "It applies to owners, contractors, or their agents (citation omitted) who exercise control or supervision over the work, created the allegedly dangerous condition or had actual or constructive notice of it (citation omitted)" ( Jock v. Fien, supra; Yong Ju Kim v. Herbert Construction Co., Inc., supra). However, the owner and general contractor cannot be held responsible for a contractor's unsafe work practices if the defendant did not actually supervise or control the contractor's work ( Gittleson v. Cool Wind Ventilation Corp. , 46 AD3d 855 [2nd Dept. 2007]; Murray v. City of New York , 43 AD3d 429 , 431-431 [2nd Dept. 2007]). That is, owners, general contractors and even subcontractors, can be deemed at fault if the defendants knew or should have known of the unsafe work practice and it had "supervisory control over the activity" ( Latino v. Nolan and Taylor-Howe Funeral Home, Inc., 300 AD2d 631, 633 [2nd Dept. 2002]). However, an owner or general contractor which exercises general control over the project as a whole does not of itself constitute the kind of close supervision that will render such a defendant responsible for the contractor's work methods ( Santoro v. New York City Transit Authority, 302 AD2d 581 [2nd Dept. 2003]). Having noted that, general contractors can also be held liable, essentially for their own negligence — i.e., for their negligent failure to properly coordinate the trades ( Maggi v. Innovax Methods Group Co., Inc., 250 AD2d 576 [2nd Dept. 1998]). However, where the accident is caused by a premises defect, as opposed to a contractor's unsafe work practice, and as opposed to a defect in the contractor's tools, liability can be imposed upon the owner and/or general contractor ( Shipkoski v. Watch Case Factory Associates, 292 AD2d 589 [2nd Dept. 2002]; Abayev v. Jaypson Jewelry Manufacturing Corp. , 2 AD3d 548 [2nd Dept. 2003]). Liability is necessarily premised on negligence, plaintiff must establish that the defendant had actual or constructive notice of the allegedly dangerous condition ( Payne v. 100 Motor Parkway Associates, LLC. , 45 AD3d 550 [2nd Dept. 2007]; Ragone v. Spring Scaffolding Inc. , 46 AD3d 652 [2nd Dept. 2007]) and the area was within the defendant's control. Thus, in the Second Department, where liability is premised upon negligent allowance of a dangerous site condition rather than allowance of a dangerous work practice, liability can be imposed if the defendant owner had notice of the condition, irrespective of whether defendant controlled the manner in which the work was performed ( Dowd v. City of New York , 40 AD3d 908 [2nd Dept. 2007]; Tifford v. Sweet Home Real Property Trust , 40 AD3d 966 [2nd Dept. 2007]). Recovery under the Labor Law § 200 is not barred because the condition was "readily observable" or "open and obvious" ( Barberio v. Agramunt , 45 AD3d 514 [2nd Dept. 2007]). Consideration doesn't end there. It can be viable defense when the condition is "not inherently dangerous" ( Dinallo v. DAL Electric , 43 AD3d 981 , 982 [2nd Dept. 2007]).
On this motion for summary judgment, it is the defendants' burden to make a prima facie showing that it did not control the work and/or that it lacked notice of the defect or hazard before summary judgment can be granted ( Farduchi v. United Artists Theatre Circuit, Inc. , 23 AD3d 610 [2nd Dept. 2005]; Bornschein v. Shuman , 7 AD3d 476 [2nd Dept. 2004]; Godoy v. Baisley Lumber Corporation, 40 AD3d 920 [2nd Dept. 2007]). Once that is established prima facie, the defendant will be granted summary judgment unless the plaintiff, in opposition, demonstrates a triable issue of fact ( Kim v. D W Shin Realty Corp., 47 AD3d 616 [2nd Dept. 2008]).
It is uncontroverted in this case that neither BTM, Plaza nor Related were actively involved in any aspect of the construction. Thus, there was no direct supervision or control of the plaintiff's work. They did not provide the plaintiff with his tools, materials and equipment, nor did these named defendants determine the means and methods used by the plaintiff to do his job. Nonetheless, the Court finds that the defendants have failed to establish that they did not supervise, direct or control the area where the accident occurred.
Plaintiff has consistently identified the dangerous condition in this case to be the improperly backfilled trench. Based upon the papers presented for this Court's consideration, this Court finds that the defendants have failed to establish that they did not have notice, actual or constructive, of this alleged dangerous condition. Defendants submit that plaintiff cannot establish proximate cause because he did not see what caused the lift to dip either prior to or immediately following this incident. The facts are undisputed, however, that the lift dipped into the trench. That the incident may have been caused by the lift operator's error is not only speculation on the defendants' part, but it is also insufficient to negate proximate cause. Thus, even if the lift operator's error caused the lift to dip into the trench, such error would not have been the sole proximate cause of the accident, inasmuch as the existence of the allegedly hazardous trench would still be a contributing factor.
Accordingly, with respect to the dismissal of plaintiff's Labor Law § 200 claims, defendants have failed to establish their prima facie entitlement to judgment as a matter of law. Therefore, this Court need not review the sufficiency of the plaintiff's opposition papers ( Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851).
Labor Law § 240Labor Law § 240(1) provides, in pertinent part, as follows:
All contractors and owners and their agents, except owners of one and two family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure, shall furnish or erect, or caused to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, swings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.***
Violation of Labor Law § 240(1) mandates the imposition of "absolute liability" and is deemed to create a statutory cause of action unrelated to questions of negligence ( Striegel v. Hillcrest Heights Development Corporation, 100 NY2d 974, 977; Gordon v. Eastern Ry Supply, 82 NY2d 555, 559; Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, 522).
The aim of this statute is to protect workers by imposing liability for the failure to supply required safety devices at construction sites upon those best situated to mandate and implement their use ( Zimmer v. Chemung County Performing Arts, supra at 520). This duty is non-delegable, and may subject contractors, owners or their agents (except for owners of one and two family dwellings who do not direct the work) to liability for its breach, whether or not any of them actually control or supervise the work in which the employee was engaged at the time of the accident ( Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500; Gordon v. Eastern Ry. Supply, supra at 560). While the statute itself is to be liberally construed so as to accomplish the purpose for which it was enacted (i.e., provide special protection from elevation related hazards), injuries from other hazards not falling within the intent of the statute are not compensable thereunder, even if proximately caused by the lack of required safety devices ( Rocovich v. Consolidated Edison Co., 78 NY2d 509; Quigley v. Thatcher, 207 NY 66, 68 [1912]). That is, the statute applies only to a narrow class of cases. Although Labor Law § 240(1) itself contains no such express limitation, the Court of Appeals ruled in Rocovich v. Consolidated Edison Company, supra, that the statute was limited to those accidents and injuries that arose from elevation-related hazards. Thus, in the wake of Rocovich, there are two kinds of Labor Law § 240 cases: (1) cases where the plaintiff-worker is alleged to have fallen in consequence of improper construction, placement or operation of an elevation-safety device (or, alternatively, in consequence of the failure to provide such a device); and (2) cases where the plaintiff-worker is alleged to have been struck by a falling object in consequence of improper construction, placement, or operation of an elevation-safety device (or as a result of the failure to provide same). In either event, plaintiff must establish that he or she was injured by virtue of an elevation related hazard ( Romang v. Welsbach Electric Corporation, 47 AD3d 789 [2nd Dept. 2008]; Mentesana v. Bernard Janowitz Construction Corp. , 44 AD3d 721 , 723 [2nd Dept. 2007]). Even more specifically, in order to recover under Labor Law § 240(1), plaintiff must show that he or she suffered an elevation related accident as a result of: a) the failure to provide a ladder, scaffold, hoist or other related appliance, or b) the provision of a listed device that was not "constructed, placed and operated" as to provide "proper protection."
The facts presented in this case require the "falling object" line of cases under Labor Law § 240(1). It is noted at the outset that the fact that the man lift dipped into the trench does not (and cannot) form a predicate for plaintiff's Labor Law § 240(1) claim. The plaintiff himself did not fall. He was standing on the man lift. His claim in this suit is that the sheet rock fell upon him. Therefore, as noted above, this is a "falling object" case.
In that regard Labor Law § 240(1) will be applied if: (1) a Labor Law §§ 240, 241 worker was injured by reasons of an object that falls, where (2) the accident was sufficiently "elevation-related," (3) the object fell during the course of hoisting, or because it was inadequately secured, (4) by reason of a failure to provide a listed safety device or by reason of the provision of one that was not properly constructed or placed ( Rocovich v. Consolidated Edison Co., supra at 514; see also Quattrocchi v. F.J. Sciame Construction Corp. , 44 AD3d 377 , 380 [1st Dept. 2007]).
In seeking dismissal of plaintiff's Labor Law § 240(1) claims, defendants maintain that since the sheet rock panels that plaintiff placed on the platform of the man lift did not strike the plaintiff who was standing on the man lift at that time while they were being hoisted or secured or because of the inadequacy of a specific safety device enumerated in the statute, Labor Law § 240(1) does not apply herein.
Initially, it is noted that inasmuch as there is no question that defendants BTM and Plaza were the owner and contractor, respectively, at the Construction Site, they fall within the ambit of Labor Law § 240 liability ( Ross v. Curtis-Palmer Hydro-Electric Co., supra at 498). Further, based upon the facts of this case, including the testimony of Richard Locicero, the construction superintendent employed by Related, who stated that his duties included monitoring the progress schedules on multiple projects to ensure sufficient manpower to complete the work, and that he did not know whether Related had the authority to stop the work at the site, this Court finds that defendant Related, as the project manager herein, is also subject to the application of Labor Law § 240(1) ( Walls v. Turner Construction Company, 4 NY3d 861).
The Court of Appeals in Narducci v. Manhasset Bay Associates, 96 NY2d 259 unanimously held, in pertinent part, as follows.
Labor Law § 240 (1) applies to both "falling worker" and "falling object" cases. With respect to falling objects, Labor Law § 240 (1) applies where the falling of an object is related to "a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured" * * * Thus, for section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute * * *.
In addition, the fact that an injured plaintiff may have been working at an elevation when the object fell is of no moment in a "falling object" case, because a different type of hazard is involved. Working at an elevation does not increase the risk of being hit by an improperly hoisted load of materials from above. The hazard posed by working at an elevation is that, in the absence of adequate safety devices (e.g., scaffolds, ladders), a worker might be injured in a fall. By contrast, falling objects are associated with the failure to use a different type of safety device (e.g., ropes, pulleys, irons) also enumerated in the statute * * * Because the different risks arise from different construction practices, the hazard from one type of activity cannot be "transferred" to create liability for a different type of accident.
( Narducci v. Manhasset Bay Associates, supra at 267-268 [citations omitted] [emphasis added]).
Thus, the defendants have established that the sheet rock panels did not strike the plaintiff while they were being hoisted or secured because of the inadequacy of a safety device enumerated in the statute. That is, based upon the papers presented for this Court's consideration, this Court finds that although the sheet rock panels were not secured by a safety device enumerated in the statute, the fact that the plaintiff was not injured while he was hoisting them precludes defendants' liability under the statute.
In opposition, plaintiff attempts to raise an issue of fact by presenting his own affidavit wherein he states that the "top edge of the [sheet rock] fell four to five feet" because it "fell from its upright standing position (vertical) in the man lift." Plaintiff maintains that this establishes Labor Law § 240(1) liability upon the defendants. This Court disagrees.
While the force of gravity may have caused the sheet rock to fall, the sheet rock itself was not elevated above the work site. Labor Law § 240(1) will apply where either there is a difference between the elevation level of the required work and a lower level, or there is a difference between the elevation level where the worker is positioned and the materials or load being hoisted or secured is on a higher level ( Melo v. Consolidated Edison Company, 92 NY2d 909). Neither of these scenarios exists in this case. The undisputed fact is that the falling object, i.e., the sheet rock, is positioned at the same level where the plaintiff was performing his work. Therefore the statute does not apply ( Mikcova v. Alps Mechanical, Inc. , 34 AD3d 769 [2nd Dept. 2006]; Peay v. New York City School Construction Authority, 35 AD3d 566 [2nd Dept. 2006]).
Accordingly, defendants' motion for summary judgment dismissal of plaintiff's Labor Law § 240(1) claims is warranted.
Labor Law § 241(6)Section 241(6) of the Labor Law requires a code or regulation violation:
It is incumbent upon the plaintiff proceeding under § 241(6) to show that some "concrete specification" in the regulations was violated and also that this was a substantial factor in causing the subject accident ( Ross v. Curtis-Palmer Hyrdo-Electric Company, supra; Morrison v. City of New York , 5 AD3d 642 [2nd Dept. 2004]; Singleton v. Citnalta Construction Corporation, 291 AD2d 393 [2nd Dept. 2002]). Once this threshold is met, a Labor Law defendant can be held vicariously liable for the regulatory violation even in the absence of notice ( Rizzuto v. L.A. Wenger Contracting Co., Inc., supra at 349-350). That is, while the statute does not impose "absolute liability" it does impose a "nondelegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party's negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein" ( Id. at 350).
Accordingly, A Labor Law § 241(6) claim considers: (a) whether the cited regulation(s) really are applicable; (b) whether the regulations are sufficiently "concrete" or "specific" to serve as predicates for § 241(6) liability; (c) whether there is evidence that, if believed, would establish a violation; and (d) whether there is evidence that would fairly allow the jury to conclude that the violation was a substantial factor in causing the subject occurrence.
Plaintiff's claim under § 241(6) is based on a violation of the Industrial Code 12 NYCRR §§ 23-1.22 and 23-1.23 as well as §§ 23-9.6[c][1], [e][8], 23-9.2(b)(1), 23-1.5 and 23-1.33(a)(1).
Upon the instant motion, the defendants are required to make a prima facie showing that Industrial Code regulations are inapplicable to the circumstances of this action, or that their alleged violation of these provisions was not a proximate cause of the accident ( Ortiz v. 164 Atl. Ave., LLC , 77 AD3d 807 [2nd Dept. 2010]; Treu v. Cappelletti , 71 AD3d 994 , 998 [2nd Dept. 2010]).
12 NYCRR § 23-1.22 entitled "Protection in Construction, Demolition and Excavation Operations; Structural runways, ramps and platforms" does not apply to the instant claim because plaintiff alleges that his accident involved the collapse of a ramp, runway or platform "constructed of earth, gravel, stone or similar embankment material" which is plainly excluded from coverage under this regulation ( 12 NYCRR § 23-1.22[a]).
With respect to 12 NYCRR § 23-1.23 entitled "Protection in Construction, Demolition and Excavation Operations; Earth ramps and runways," the Court notes that this provision is sufficiently specific to form a basis for a Labor Law § 241(6) violation. ( Demartino v. CBS Auto Body Towing, 208 AD2d 886, 888 [2nd Dept. 1994]). The facts are clear that the man lift upon which plaintiff was standing at the time of his accident dipped into a depression in the earth that was made for a trench. Section (a) of 12 NYCRR 23-1.23 describes the construction of earth ramps and runways. They must be constructed of suitable embankment material, be placed in layers not exceeding three feet in depth, and be maintained free of potholes, soft spots or excessive unevenness ( 12 NYCRR 23-1.23[a]). The Court finds that there are triable issues of fact as to whether this provision is applicable to the facts of this case. (See Smith v. Monroe, 229 AD2d 984 [4th Dept. 1996]).
12 NYCRR § 23-1.33(a)(1) dealing with "Protection of Persons Passing by Construction, Demolition or Excavation Operations" does not apply to workers on a construction site ( Mancini v. Pedra Construction, 293 AD2d 453, 454 [2nd Dept. 2002]), and thus cannot form the basis of plaintiff's Labor Law § 241(6) claim. " 12 NYCRR 23-1.33(a)(1) (2) apply to persons passing by construction operations and not to workers, such as plaintiff, on a construction site" ( Lawyer v. Hoffman, 275 AD2d 541, 542 [3rd Dept. 2000]).
12 NYCRR § 23-1.5 "sets forth only a general safety standard and is thus incapable of supporting a Labor Law § 241(6) claim" or cause of action ( Spence v. Island Estates at Mt. Sinai II, LLC. , 79 AD3d 936 [2nd Dept. 2010]). This provision is not a regulation sufficiently specific to support a cause of action under the statute, but merely establishes a general safety standard ( Maday v. Gabe's Contr., LLC , 20 AD3d 513 [2nd Dept. 2005]; Sparkes v. Berger , 11 AD3d 601 [2nd Dept. 2004]). 12 NYCRR § 23-9.2(b)(1), which requires that power-operated equipment be operated only by trained, designated personnel and in a "safe manner," represents a restatement of common-law rule and is not sufficiently specific to support a Labor Law § 241(6) cause of action ( Berg v. Albany Ladder Co., Inc. , 40 AD3d 1282 [3rd Dept. 2007] aff'd, 10 NY3d 902).
12 NYCRR § 23-9.6[c][1] entitled "Power Operated Equipment; Aerial baskets; Driving or moving of aerial basket truck" sets forth only non-specific standards of "general regulatory criteria" and cannot serve as a predicate for violation of Labor Law § 241(6) ( Wilke v Communications Const. Group, Inc., 274 AD2d 473 [2nd Dept. 2000]).
Finally, 12 NYCRR § 23-9.6 (e)(8) states "[p]ersons shall enter or leave an aerial basket only when such basket is resting on the ground or grade level or cradled in the traveling position. Persons shall stand clear of the path of the basket and boom when such basket is being lowered. Any movement of the vehicle while persons are elevated in the basket is prohibited." While it appears that this provision arguably applies to plaintiff's work, there is no evidence in the record before this Court that any violation of this provision was a proximate cause of plaintiff's injury ( Piazza v. Frank L. Ciminelli Constr. Co., Inc. , 2 AD3d 1345 , 1349 [4th Dept. 2003]).
Accordingly, insofar as there remain issues of fact as to the applicability of 12 NYCRR § 23-1.23(a), defendants are not entitled to summary judgment on the Labor Law § 241(6) claim, to the extent that it is based upon a violation of this section.
Based upon the foregoing, it is
ORDERED, that defendants' motion for summary judgment pursuant to CPLR 3212 dismissing the action against them is granted in part, insofar as the Court hereby dismisses plaintiff's claims under Labor Law § 240(1), and Labor Law § 241(6), except as predicated upon a violation of 12 NYCRR §§ 23-1.23(a); and it is further
ORDERED, that defendants' motion for summary judgment pursuant to CPLR 3212 dismissing the action against them is denied in part, insofar as the Court finds issues of fact warranting a trial with respect to plaintiff's claims under Labor Law § 200, common law negligence, and Labor Law § 241(6), to the extent that such claim is based upon a violation of 12 NYCRR § 23-1.23(a).
This constitutes the Order of the Court.