MEMORANDUM. The order of the Appellate Division should be affirmed for the reasons stated by that court in its memorandum. ( 49 A.D.2d 578.) We add, however, that section 241 of the Labor Law was amended in 1969, nearly two and one-half years after the accident involved in this case and, as a result, it may no longer be necessary to establish, as plaintiff was required and failed to do here, that the building owner and general contractor actively controlled, directed or supervised the work.

Defendant Nassau had retained defendant Perosi, a plumbing subcontractor, to install underground pipes on Nassau's grounds, and had retained Thompson to excavate the area in which the piping was to be installed. We have repeatedly held that a general contractor and an owner are responsible for the safe condition of the commonly used portions of the premises, but that the subcontractors are responsible for supplying safety devices in the areas created by, and intimately connected with, their work (see Kappel v Fisher Bros. 6th Ave. Corp., 49 A.D.2d 578, affd 39 N.Y.2d 1039; Naso v Wates Co., 21 A.D.2d 679, affd 15 N.Y.2d 667). Where a subcontractor's negligence as to a detail of the work causes injury, or the prosecution of the work itself necessitates or creates the risk, the "safe place to work" doctrine is not applicable (Senkbeil v Board of Educ., 23 A.D.2d 587, affd 18 N.Y.2d 789). In order that the owner-general contractor be cast in damages, plaintiff is required to establish that it actively controlled, directed or supervised the work.

The identical nature of the grounds of these motions provides the requisite "good cause" required by CPLR 3212(a) to allow defendants Miller and UMC Medical Consultants' untimely motion.Grande v. Peteroy, supra; compare, Bickelman v. Herrill Bowling Corp., 49 A.D.2d 578, (2nd Dept. 2008). In fact, this court in any event has the discretion in deciding the motion to search the record and award summary judgment to a non-moving party.

The statute was again changed in 1969 to omit the requirement of control, because experience proved it to have resulted in a weakening of the protection originally intended to be provided for workers, and in replacement, added "agents" of owners and contractors, but eliminated subcontractors (see discussion in Allen v Cloutier Constr. Corp., 44 N.Y.2d 290, 298-299). Case law construing the preamendments statute charged such liability upon entities which, although not actually the owner, were actually performing such function ( Kappel v Fisher Bros., 6th Ave. Corp., 49 A.D.2d 578 [subsidiary corporation of owner]; Buonassisi v Sears, Roebuck Co., 43 A.D.2d 701 [lessee]; Seigel v Prima Concrete Constr. Corp., 27 A.D.2d 946 [lessee]). Those parties would clearly be considered agents of the owner under the operative amended statute.