The court further notes that plaintiff did not place this issue before the court since plaintiff only seeks summary judgment against AMC Installation based on his common-law negligence cause of action. Turning to the Labor Law ยง 241 (6) cause of action, plaintiff relies on Industrial Code (12 NYCRR) ยง 23-2.1 (a)(1), which governs the storage of material and equipment at a jobsite. While there is case law holding that section 23-2.1 (a)(1) can only be violated if the material is stored in a "passageway, walkway, stairway or other thoroughfare" (see Bianchi v New York City Tr. Auth., 192 A.D.3d 745, 748-749 [2d Dept 2021]; Ginter v Flushing Terrace, LLC, 121 A.D.3d 840, 844 [2d Dept 2014]), the Appellate Division, Fourth Department, in Slowe v Lecesse Constr. Servs., LLC (192 A.D.3d 1645, 1646 [4th Dept 2021]) found that section 23-2.1 (a)(1) is not limited exclusively to obstructed thoroughfares.
Contrary to Rauert's further contention, the Supreme Court properly rejected his alternative argument that he was entitled to summary judgment dismissing so much of the Labor Law ยง 241(6) cause of action as was predicated upon a violation of 12 NYCRR 23โ2.1(a)(1) insofar as asserted against him. Rauert failed to make a prima facie showing eliminating all triable issues of fact as to whether that provision of the Industrial Code, which requires, inter alia, that "[a]ll building materials" be "stored in a safe and orderly manner," was applicable under the circumstances of this case ( 12 NYCRR 23โ2.1 [a][1]; seeSlowe v. Lecesse Constr. Servs., LLC, 192 A.D.3d 1645, 1646, 141 N.Y.S.3d 386 ; Costa v. State of New York, 123 A.D.3d 648, 649, 997 N.Y.S.2d 690 ; Rodriguez v. DRLD Dev., Corp., 109 A.D.3d 409, 410, 970 N.Y.S.2d 213 ; Castillo v. 3440 LLC, 46 A.D.3d 382, 383, 847 N.Y.S.2d 575 ). BRATHWAITE NELSON, J.P., MILLER, ZAYAS and FORD, JJ., concur.
"A plaintiff asserting a cause of action under Labor Law ยง 241 (6) must demonstrate a violation of a rule or regulation of the Industrial Code which gives a specific, positive command, and is applicable to the facts of the case" (Shaw v Scepter, Inc., 187 A.D.3d 1662, 1665 [4th Dept 2020] [internal quotation marks omitted]). On appeal, plaintiff challenges the court's determination with respect to only one section of the Industrial Code, i.e., 12 NYCRR 23-2.1 (a) (1), which relates to "[s]torage of material and equipment," and requires, inter alia, that "[m]aterial piles shall be stable under all conditions" (see Slowe v Lecesse Constr. Servs., LLC, 192 A.D.3d 1645, 1646 [4th Dept 2021]). Here, defendants established as a matter of law that 12 NYCRR 23-2.1 (a) (1) is inapplicable because, at the time of the accident, the rack segments that caused plaintiff's injuries were in use and were not in storage (see Miles v Buffalo State Alumni Assn., Inc., 121 A.D.3d 1573, 1574-1575 [4th Dept 2014]; Zamajtys v Cholewa, 84 A.D.3d 1360, 1362 [2d Dept 2011]).
"A plaintiff asserting a cause of action under Labor Law ยง 241 (6) must demonstrate a violation of a rule or regulation of the Industrial Code which gives a specific, positive command, and is applicable to the facts of the case" ( Shaw v. Scepter, Inc. , 187 A.D.3d 1662, 1665, 133 N.Y.S.3d 709 [4th Dept. 2020] [internal quotation marks omitted]). On appeal, plaintiff challenges the court's determination with respect to only one section of the Industrial Code, i.e., 12 NYCRR 23-2.1 (a) (1), which relates to "[s]torage of material and equipment," and requires, inter alia, that "[m]aterial piles shall be stable under all conditions" (seeSlowe v. Lecesse Constr. Servs., LLC , 192 A.D.3d 1645, 1646, 141 N.Y.S.3d 386 [4th Dept. 2021] ). Here, defendants established as a matter of law that 12 NYCRR 23-2.1 (a) (1) is inapplicable because, at the time of the accident, the rack segments that caused plaintiff's injuries were in use and were not in storage (seeMiles v. Buffalo State Alumni Assn., Inc. , 121 A.D.3d 1573, 1574-1575, 993 N.Y.S.2d 852 [4th Dept. 2014] ; Zamajtys v. Cholewa , 84 A.D.3d 1360, 1362, 924 N.Y.S.2d 163 [2d Dept. 2011] ).
Turning to 12 NYCRR 23-2.1 (a) (1) (all building materials required to be stored in safe manner), and 12 NYCRR 23-2.1 (a) (2) (material should not be placed so close to any edge of a platform so as to endanger any person beneath such edge), plaintiff's testimony that the rod was left lying on the elevator platform awaiting installation later in the week is sufficient to demonstrate factual issues as to whether the rod was properly stored within the meaning of those sections, requiring denial of defendant's motion (see Parrino v Rauert, 208 A.D.3d 672, 675 [2d Dept 2022] [addressing section 23-2.1 (a) (1)]; Slowe v Lecesse Constr. Servs., LLC, 192 A.D.3d 1645, 1646 [4th Dept 2021] [addressing section 23-2.1 (a) (1)]; Rodriguez v DRLD Dev., Corp., 109 A.D.3d 409, 410 [1st Dept 2013]; see also Ginter, 121 A.D.3d at 843 [addressing section 23-2.1 (a) (2)]; Fountaine v Juniper Assoc., 67 A.D.3d 608, 609 [1st Dept 2009]). However, given the lack of detail in plaintiff's testimony in this regard, and given that it is unclear exactly how the rod was caused to fall, plaintiff's cross motion must also be denied (see Ortiz, 18 N.Y.3d at 339-340).
"A plaintiff asserting a cause of action under Labor Law ยง 241 (6) must demonstrate a violation of a rule or regulation of the Industrial Code which gives a specific, positive command, and is applicable to the facts of the case" (Shaw v Scepter, Inc., 187 A.D.3d 1662, 1665 [4th Dept 2020] [internal quotation marks omitted]). On appeal, plaintiff challenges the court's determination with respect to only one section of the Industrial Code, i.e., 12 NYCRR 23-2.1 (a) (1), which relates to "[s]torage of material and equipment," and requires, inter alia, that "[m]aterial piles shall be stable under all conditions" (see Slowe v Lecesse Constr. Servs., LLC, 192 A.D.3d 1645, 1646 [4th Dept 2021]). Here, defendants established as a matter of law that 12 NYCRR 23-2.1 (a) (1) is inapplicable because, at the time of the accident, the rack segments that caused plaintiff's injuries were in use and were not in storage (see Miles v Buffalo State Alumni Assn., Inc., 121 A.D.3d 1573, 1574-1575 [4th Dept 2014]; Zamajtys v Cholewa, 84 A.D.3d 1360, 1362 [2d Dept 2011]).
The Appellate Division, Second Department has held that 12 NYCRR 23-2.1 (a) (1) only applies if the accident occurs in a "passageway, walkway, stairway, or other thoroughfare" (see Ginter v Flushing Terrace, LLC, 121 A.D.3d 840, 844 [2d Dept 2014]; DesenavNorth Shore Hebrew Academy, 119 A.D.3d 631, 634-635 [2d Dept 2014]; Rodriguez v D&S Builders, LLC, 98 A.D.3d 957, 959 [2d Dept 2012]; Grygo 1116 Kings Highway Realty, LLC, 96 A.D.3d 1002, 1003 [2d Dept 2012], Iv denied 20 N.Y.3d 859 [2013]; Cody v State of New York, 82 A.D.3d 925, 928 [2d Dept 2011]; see also Wiley, 166 A.D.3d at 1109; but see SlowevLecesse Constr. Servs., LLC, 192 A.D.3d 1645, 1646 [4th Dept 2021]; RodriguezvDRLD Dev., Corp., 109 A.D.3d 409, 410 [1st Dept 2013]). In view of the Second Department's reading of section 23-2.1 (a) (1) and caselaw holding that a construction site's loading dock and freight elevator area do not constitute a "passageway, walkway, stairway, or other thoroughfare" for purposes of section 23-2.1 (a) (1) (see Barriosv Boston Props. LLC, 55 A.D.3d 339, 340 [1st Dept 2008]), section 23-2.1 (a) (1) is inapplicable to the facts here.