Murdock v R & P Oak Hill Dev., LLC

[*1] Murdock v R & P Oak Hill Dev., LLC 2015 NY Slip Op 52009(U) Decided on September 11, 2015 Supreme Court, Erie County NeMoyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 11, 2015
Supreme Court, Erie County

Alex Murdock and JEANNETTEA MURDOCK, Plaintiffs,

against

R & P Oak Hill Development, LLC, Defendant.



2011/4906



AMY E. BELMONT, ESQ., for Plaintiffs

RYAN J. LUCINSKI, ESQ., for Defendant
Patrick H. NeMoyer, J.

PAPERS CONSIDERED:

The NOTICE OF MOTION of Defendant; the AFFIRMATION [of Patrick J. Hines, Esq.] IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, with annexed exhibits; the AFFIDAVIT OF JOHN P. CONIGLIO, with annexed exhibit; the AFFIDAVIT OF JOHN PALER; the AFFIDAVIT OF DOREEN MEADE, with annexed exhibits; the MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; the NOTICE OF CROSS-MOTION FOR SUMMARY JUDGMENT of Plaintiff and the AFFIRMATION of Robert J. Maranto, Jr., Esq.; the AFFIDAVIT of Ernest J., Gailor, P.E., with annexed exhibit; the REPLY AFFIDAVIT OF JOHN P. CONIGLIO, with annexed exhibits; the REPLY AFFIRMATION of Robert J. Maranto, Jr., Esq.; the REPLY AFFIDAVIT of Ernest J. Gailor, P.E.; and the REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT.

Plaintiffs commenced this action to recover damages for personal injuries sustained by Alex Murdock (hereinafter plaintiff, in the singular; the claim of Jeannettea Murdock is derivative) as a result of an alleged fall on June 21, 2010 at a building demolition site in the City of Buffalo. Plaintiff's amended complaint lies only against R & P Oak Hill Development, LLC (defendant or R & P), which functioned as the general contractor or construction manager (i.e., owner's agent) on the job — in either case, as the entity that let the critical subcontract. That amended complaint states, besides the derivative claim, two causes of action, the first alleging negligence, and the second alleging violations of Labor Law §§ 200, 240 (1), and 241 (6) and regulations promulgated thereunder.[FN1]

On the day of the accident and injury, plaintiff was employed by Empire Building Diagnostics, Inc. the demolition and asbestos-and-lead-abatement subcontractor on the project, which was then generally engaged in the demolition of a large masonry building, apparently right down to and including its concrete slab and/or foundation. At the time of the accident, plaintiff was by his own account working with his co-worker, a heavy equipment operator named James Young, who was using a track hoe or "tracker" that featured a hydraulically operated arm approximately 12 foot long, equipped with a ditching bucket and a "thumb" or pincer apparatus. According to plaintiff, the accident occurred during a hiatus in the actual demolition operations, shortly after the workers' lunch break, as the men were in the process of cleaning up debris created by the earlier demolition operations. As part of that cleanup operation, the tracker was being used to pick up clumps of demolition debris, including pieces of lumber, pipes, brick or other masonry, and other building components, and to carry such clumps to an area where each clump would be sorted through by type of material — metal or wood versus masonry or other clean fill — before the masonry and other materials suitable for fill were dumped in trucks for removal from the site. Plaintiff was the worker whose basic task, besides regularly hosing down the demolition debris field to suppress asbestos and other forms of dust, was to pull out any pieces of lumber or pipe by hand from the tracker's bucket to separate those items from the masonry debris and other clean fill, which would then be placed in a dump truck. At the time of his accident, plaintiff allegedly was performing that sorting function while standing atop a concrete slab. According to plaintiff and his co-worker Young, the slab was a small one, measuring about four feet by six or eight feet horizontally, that had served as a "porch" for the building undergoing demolition. Other testimony and certain photographic evidence suggests, however, that the slab allegedly involved in plaintiff's alleged fall may have been a much larger-surfaced one, from 15 to 40 feet square, apparently or possibly a remnant or an as-yet-undemolished part of the concrete floor of the building undergoing demolition. According to plaintiff and his co-worker Young, the top of the porch from which plaintiff allegedly fell was four to five feet above the surrounding ground, whereas according to other testimony and photographic evidence, the slab involved in plaintiff's mishap was only a foot or so the ground.[FN2]

According to plaintiff, debris covered the slab on which plaintiff was carrying out his sorting operation by selectively removing some contents from the tracker's bucket. According to defendant, it was plaintiff's specifically assigned task to keep the sorting area clean and free of debris, whereas according to plaintiff, it was Young's job. According to plaintiff, after he finished picking through the debris from one particular load that had been brought to plaintiff by Young, the equipment operator, Young moved the bucket away from plaintiff in order to dump the remainder of the load in a dump truck. By plaintiff's account, when the tracker bucket started to move away, plaintiff stepped back and started to turn away from it to avoid being struck. In doing so, plaintiff recounted, he caught his foot on some of the debris that was on the slab, causing him to "twist" (and fracture and tear ligaments in) his ankle, in turn causing plaintiff to lose his balance and fall from the slab to the ground, whereupon plaintiff also injured his knee and back. Young denied observing any such fall and indeed testified in a manner that casts some doubt on plaintiff's account that the incident had any connection at all to either debris-sorting [*2]operations by plaintiff or operation of the tracker by Young. Moreover, and again, plaintiff's supervisor testified that plaintiff had recounted just after the accident that he had merely misstepped off the concrete slab. Whatever may have transpired, the record suggests that the more serious of plaintiff's injuries was the ankle injury, which necessitated surgery.

Now before the Court are a motion and cross motion. The primary motion is by defendant and seek summary judgment dismissing the amended complaint in its entirety. Defendant argues in support of that motion that the claims for common-law negligence and violation of Labor Law § 200 must be dismissed because defendant had no authority to exercise, and in fact exercised, no supervision and control over plaintiff and the means and methods of his work, out of which the injury arose. Defendant further argues that plaintiff's accident — and certainly his ankle injury — did not arise out of an elevation- or gravity-related risk that required the construction, placement, and operation of a safety device of a type enumerated in Labor Law § 240 (1), but rather stemmed from the usual and ordinary hazards of a construction site. Finally, defendant argues that plaintiff cannot recover under Labor Law § 241 (6) because the Industrial Code provisions now pressed by plaintiff are not applicable to the occurrence of plaintiff's accident and/or were not violated.

Plaintiff opposes the primary motion and cross-moves for partial summary judgment on liability under Labor Law §§ 240 (1) and 241 (6).[FN3] Plaintiff contends that he was as a matter of law subjected to an elevation-related risk and that the failure to furnish plaintiff with any safety devices was a proximate cause of his injuries. Plaintiff further contends that, as a matter of law, there were violations of three applicable regulations predicating the section 241 (6) claim. Finally, with regard the negligence and section 200 claims, plaintiff contends that there are triable questions of fact with regard defendant's notice of, and hence responsibility for, the existence of a dangerous premises condition in and around plaintiff's work area.

Upon its consideration of the parties' respective submissions, this Court renders the following determinations on the following claims of plaintiff.

LABOR LAW § 240 (1):

Labor Law § 240 (1) provides, in pertinent part, that

"[a]ll contractors and owners and their agents . . . , in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure[,] shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, 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."

The extraordinary protections of Labor Law § 240 (1) extend to the special hazards "inherent in a particular task because of the relative elevation at which the task must be performed" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]), including such "specific gravity-related [risks] as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured"[FN4] (Melber v 6333 Main Street, 91 NY2d 759, 763 [1998], quoting Ross v Curtis-Palmer Hyro-Elec. Co., 81 NY2d 494, 501 [1981]). However, although the statute is intended to protect workers from harms "directly resulting from the application of the force of gravity to an object or person" (Runner, 13 NY3d at 604), the cases make clear that satisfaction of the elevation-differential or effects-of-gravity test [*3]is a necessary but by itself an insufficient predicate for imposition of liability under § 240 (1). Thus, "[l]iability under Labor Law § 240 (1) depends on whether the injured worker's 'task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against' (Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681 [2007])" (Salazar v Novalux Contr. Corp., 18 NY3d 134, 139 [2011]). "The kind of accident triggering section 240 (1) coverage is one that will sustain the allegation that an adequate scaffold, hoist, stay, ladder or other protective device would have shield[ed] the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Salazar, 18 NY3d at 139, quoting Runner, 13 NY3d at 603, in turn quoting Ross, 81 NY2d at 501 [internal quotations marks omitted]). It thus remains the law that a plaintiff cannot prevail under section 240 (1) where the kinds of protective devices enumerated by the statute are shown to be useless or inapplicable with regard to the prevention of the injury that eventuated (see Wilinski v 334 E. 42nd Hous. Dev. Fund, 18 NY3d 1, 8-11 [2011], citing Misseritti v Mark IV Constr. Co., 86 NY2d 487, 489-491 [1995]; see also Narducci v Manhasset Bay Assocs., 96 NY2d 259, 268-269 [2001]). The defendant is entitled to prevail, in other words, where the situation is one in which a "device of the kind enumerated in the statute would [not] have been necessary or even expected" and in which the absence of such a device thus clearly "did not cause the fall[ ]" (Narducci, 96 NY2d at 268-269, cited with approval in Wilinski, 18 NY3d at 8; see Salazar, 18 NY3d at 139-140). In such instances, the accident must be deemed to be "outside the scope of section 240 (1)" (Wilinski, 18 NY3d at 8, citing Narducci, 96 NY2d at 268-269). That is because "liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, safety devise of the kind enumerated therein" (Narducci, 96 NY2d at 267, citing Ross, 81 NY2d at 501). Thus, in order to recover under that statute, an injured worker must prove both that the owner or responsible contractor or agent violated its non-delegable duty under the statute to ensure that a pertinent safety device was "so constructed, placed and operated as to give proper protection" to the worker (Labor Law § 240 [1]) and that such violation was a proximate cause of the worker's injury (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287 [2003]; Weininger v Hagedorn & Co., 91 NY2d 958, 559-560 [1998], rearg denied 92 NY2d 875 [1998]; Felker v Corning Inc., 90 NY2d 219, 224 [1997]; Zimmer v Chemung Co. Performing Arts, 65 NY2d 513, 524 [1985], rearg denied 65 NY2d 1054 [1985]). Causation is established where the violation was a "substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp, 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784 [1980]; see Gordon v Eastern Ry. Supply, 82 NY2d 555, 561-562 [1993]).

Of the various issues raised on the motion and cross motion, a couple are easily resolved. The Court concludes at the outset that defendant as a matter of law possessed the status of a responsible contractor or owner's agent potentially subject to liability under Labor Law § 240 (1) (and likewise pursuant to Labor Law § 241 [6]). Although defendant in opposition to the cross motion faults plaintiff for failing to establish such status of defendant, defendant clearly had already established such status by its submissions in support of the primary motion. Such submissions included the Master Subcontract Agreement and work order embodying the contractual relationship between defendant and plaintiff's employer, the demolition subcontractor. Inasmuch as defendant had let that subcontract, and inasmuch as the work called for by that subcontract was the work in which plaintiff was engaged at the time of the injury, defendant was a responsible contractor or responsible agent of the owner within the meaning of the statutes (see Fisher v Coghlan, 8 AD3d 974, 976 [4th Dept 2004], lv dismissed 3 NY3d 702 [2004]; see generally Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]; Blake, 1 NY3d at 293; Russin v Picciano & Son, 54 NY2d 311, 317-318 [1981]). Indeed, the Master Subcontract Agreement and associated work order explicitly labeled defendant as the "Contractor," and that agreement itself suggests that defendant had acquired its authority to enter into the subcontract by virtue of its having entered into certain contracts with the property owner for the performance of general construction and/or construction [*4]management services.

Further, the Court must agree with defendant's contention that plaintiff may not recover for the injury to his ankle pursuant to Labor Law § 240 (1), even accepting his version of events. By plaintiff's own account, that ankle injury was the cause rather than the effect of plaintiff's alleged fall from the allegedly four- to five-foot-high slab, and thus that injury was not incurred as a result of the effects of gravity, a height differential, or some other elevation-related risk, as required in order to make it a compensable injury pursuant to the statute. In allegedly twisting his ankle as a result of allegedly stepping on the construction debris that allegedly littered the slab, plaintiff encountered one of the "usual and ordinary dangers at construction site" (Nieves v Five-Boro A.C. & Refrig. Corp., 93 NY2d 914, 916), not one of the special or extraordinary perils that call for the deployment of a safety device of the type enumerated in the statute (see Nicometi v Vinyards of Fredonia, LLC, 25 NY3d 90, 98-100; see also Melber, 91 NY2d at 561; Ross, 81 NY2d at 501; Rocovich, 78 NY2d at 514 [1991]). In short, "liability arises under Labor Law § 240 (1) only where the plaintiff's injuries are the 'direct consequence' of an elevation-related risk (Runner, 13 NY3d at 603; see Fabrizi[ v 1095 Ave. of Americas, L.L.C.,] 22 NY3d [658,] 662-663 [2014]), not a separate and ordinary tripping or slipping hazard" (Nicometi, 25 NY3d at 98-99).

It remains for the Court to determine the viability, under Labor Law § 240 (1) of plaintiff's attempt to recover for his knee and back injuries, which allegedly were sustained as a direct result of plaintiff's fall from the slab, albeit as an indirect result of plaintiff's claimed misstep on the slab, a risk that the statute is not intended to alleviate. The Court concludes that the record evinces basic triable issues of fact that preclude summary judgment for either party. The most basic issue of all is what actually transpired here — specifically, whether, as alleged, plaintiff fell in such a way as to bring his claim at all within the ambit of section 240 (1). According to plaintiff, he free-fell off a four- or five-foot-high porch to the ground. According to plaintiff's supervisor, however, plaintiff admittedly merely misstepped off an approximately one-foot-high concrete slab onto the ground. For the reasons noted in the preceding paragraph, only if plaintiff's account is true is there even arguably a basis for the imposition of section 240 (1) liability against defendant.

Another persisting basic and crucial issue of fact involves the height and other dimensions of the slab on which plaintiff was working and from which he allegedly fell or misstepped down from, a dispute that implicates matters of duty, breach, and causation vis-à-vis the statute. According to plaintiff, the slab was four to five feet high and only about four feet by eight feet in width and length. According to defendant, the slab was only about one foot off the ground and was much larger-surfaced. The Court must conclude that, if the slab from which plaintiff allegedly fell was as described by defendant, the situation certainly would not have been one that called for the provision of safety devices, certainly not the railings and safety lines that plaintiff's expert opines should have been provided but were not. On the other hand, the Court determines that, even if the situation was as described by plaintiff, then the statute arguably may or may not have been violated by the absence of safety devices of the type enumerated by the statute. In other words, even if plaintiff can convince the trier of fact with regard to the fall and slab height and dimension issues, it will remain for defendant at trial to seek to counter plaintiff's argument and proffered expert proof concerning what safety devices were necessary by establishing what seems to the Court to be equally arguable and provable, i.e., that the erection of railings would have been completely impractical and were uncalled for in the situation because railings would have prevented plaintiff and his co-worker from carrying out their alleged work of sorting through the demolition debris prior to its disposal (cf. Salazar, 18 NY3d at 140). Similarly, with regard to the allegation that plaintiff should have been provided with a safety line, it remains for defendant to persuade the trier of fact that even very closely tethering plaintiff to the allegedly table-sized slab from which he allegedly fell would have only served to prevent him from carrying out his work in any practical manner while not actually [*5]preventing him from falling off the edge of the slab (which, by plaintiff's own account, was never more than two feet from plaintiff's feet at any given time), especially once plaintiff, as alleged, and independent of any statutory violation, turned his ankle and stumbled.

LABOR LAW § 241 (6):

Labor Law § 241 provides, in pertinent part:

"All contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: . . . 6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."

As indicated, the record establishes defendant's status as a general or responsible contractor or a responsible agent of the owner potentially bearing liability under the statute (see generally Russin, 54 NY2d at 318; Losurdo v Skyline Assocs., L.P., 24 AD2d 1235, 1237 [4th Dept 2005]). The issue on the motion and cross motion thus becomes whether, as a matter of law, the Industrial Code provisions now being invoked by plaintiff, all of which are sufficiently specific or concrete to ground liability on the part of defendants (the Court sees no contention otherwise), are applicable to the facts at bar and were violated in such away as to be causally related to plaintiff's injury (see generally Morris v Pavarini Constr., 9 NY3d 47, 50-51 [2007]; Ross, 81 NY2d at 502-504; Losurdo, 24 AD3d at 1237; Piazza v Ciminelli Constr. Co., 2 AD3d 1345, 1348-1349 [4th Dept 2003]).

Section 23-1.7 (e) (2), entitled "Tripping and other hazards," and subtitled "Working areas," provides,

"The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed".

Defendant sustained its burden on the motion of demonstrating that the provision is inapplicable to the occurrence of plaintiff's injury (as recounted by him) and was not violated in any event, and plaintiff failed to raise a triable issue of fact, let alone demonstrate his own entitlement to judgment as a matter of law.[FN5] The Court agrees with defendant that the regulation was not violated by accumulations of demolition debris at the very place where plaintiff, as one of his assigned tasks, was required to sort through loads of such debris by type of material and take some such materials out of the tracker's bucket. Far from this being a case in which plaintiff was injured by the accumulation of debris that someone else was suppose to, but did not, pick up, this is a case in which plaintiff's work itself was, by his own account, a part of the demolition clean-up operation. The cases teach that the regulation is inapplicable or was not violated where the materials over which the worker allegedly tripped were those that were "involved 'in the actual task he was performing' (Alvia v Teman Elec. Contr., 287 AD2d 421, 423 [2001], lv dismissed 97 NY2d 749 [2002]; see Lech v Castle Vil. Owners Corp., 79 AD3d 819, 820-821 [2010]; Solis v 32 Sixth Ave. Co. LLC, 38 AD3d 389, 390 [2007]; Castillo v Starrett City, 4 AD3d 320, 322 [*6][2004])" (Scribner v State of New York, 130 AD3d 1207, ___ [3d Dept July 9, 2015]). That principle of course extends to demolition debris created by plaintif and his coworkers as an integral part of their work (see Cooper v Sonwil Distrib. Ctr., Inc., 15 AD3d 878, 879 [4th Dept 2005]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [2d Dept 2003]).

The second Industrial Code provision relied upon by plaintiff, § 23-3.4 (c) (2), entitled "Mechanical methods of demolition" and subtitled "Zone of Demolition," states:

"Where a clamshell bucket is being used in demolition operations, a zone of demolition shall be maintained within 25 feet of both sides of the line of travel of the bucket."

Clearly, the purpose of that provision is to prevent persons other than the equipment operator from being in range of collapsing or falling debris during demolition operations. Because no active demolition operations, but only sorting and clean-up tasks, were ongoing at the time and place of plaintiff's injury, the regulation has no application to the case at bar. More elementally, as pointed out by defendant, this case has nothing to do with the use of a clamshell bucket, but rather has to do with the use of a ditching bucket and thumb or pincer apparatus. For that reason also, the regulation clearly has no applicability to the case at bar.

Finally, plaintiff relies on § 23-9.4 (h) (5), entitled "Power shovels and backhoes used for material handling," and subtitled "General operation." That section provides:

"Carrying or swinging suspended loads over areas where persons are working or passing is prohibited."

Again, the Court must conclude that defendant demonstrated its entitlement to judgment as a matter of law determining that the regulation is inapplicable to, and was not violated in, this case. Again, the Court concludes that plaintiff failed to raise a triable issue of fact, let alone demonstrate his entitlement to judgment as a matter of law concerning the applicability and the alleged violation of the regulation. The regulation is inapplicable and was not violated here inasmuch as plaintiff was not someone who was passing or working "under" a "suspended load[ ]" being "carr[ied]" or "sw[ung]" "over" plaintiff's work "area" (see Mohamed v City of Watervliet, 106 AD3d 1244, 1247 [3d Dept 2013] [held: regulation inapplicable where the load "was not being carried or swung over plaintiff's head at the time of the accident"]). Rather, plaintiff was a person engaged in clean-up operations, one whose task required him to be at the receiving end of each bucket-full of debris brought to him for the specific purpose of sorting through the load by hand (cf. Mingle v Barone Dev. Corp., 283 AD2d 1028, 1029 [4th Dept 2001] [analogous requirement of section 23-9.5 (c), governing operation of excavation machinery, held inapplicable to worker who, as member of excavating crew engaged specifically in a task (cleaning a pipe) integral to the excavation operation, necessarily had to position himself "within range of the swing of the dipper bucket while the shovel [was] in operation"]). Further, even assuming that the debris being carried by the tracker's bucket constituted an overhead "suspended load[ ]" within the meaning of the regulation, plaintiff was not struck by such load of materials, or even by the bucket itself, as required in order to invoke the regulation (cf. Kropp v Town of Shandaken, 91 AD3d 1087, 1091 [4th Dept 2012] [held: regulation arguably violated when worker was struck by pipe suspended from excavator bucket]; Vicari v Triangle Plaza II, LLC, 16 AD3d 672, 673 [2nd Dept 2005] [held: worker struck by backhoe, but not while backhoe was lifting or hoisting anything, not covered by regulation]). Rather, as plaintiff himself now describes the incident, he was attempting to move away from the bucket, and indeed had succeeded in doing so, when he stepped on some debris and turned his ankle, thereby causing him to fall off the slab.

LABOR LAW § 200 AND COMMON-LAW NEGLIGENCE:

This discussion point concerns only defendant's motion for summary judgment dismissing these claims, on which plaintiff did not cross-move for partial summary judgment on liability. Labor Law § 200, entitled "General duty to protect the health and safety of employees; enforcement," provides in [*7]subdivision (1) that

"[a]ll places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all person employed therein who are lawfully frequenting such places."

Section 200 merely codifies the common-law duty imposed upon a landowner or general contractor to provide construction workers with a safe place to work (see Russin, 54 NY2d at 316-317; see also Lombardi v Stout, 80 NY2d 290, 294 [1992]; Allen v Cloutier Constr. Corp., 44 NY2d 290, 299 [1978], rearg denied 45 NY2d 776 [1978]; Adamczyk v Hillview Estates Dev. Co., 226 AD2d 1049, 1050 [4th Dept 1996]). A cause of action alleging a violation of Labor Law § 200 is thus equivalent to one sounding in negligence (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429 [1996]). In order for liability to be imposed upon a defendant as the general contractor or construction manager on the project, it must be shown that there was a defect in the premises themselves that the defendant created or that it failed to rectify despite actual or constructive notice of the defect's existence or, alternatively, that the defendant possessed and negligently exercised or failed to exercise some degree of authority or control over either plaintiff's work in general or the specific activity or instrumentality that brought about the injury (see generally Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 353 [1998]; Ross, 81 NY2d at 506; Ozimek v Holiday Valley, Inc., 83 AD3d 1414, 1415 [4th Dept 2011]; Waszak v State of New York, 275 AD2d 916, 917 [4th Dept 2000]). Here, plaintiff does not seem to argue that defendant had the authority to direct and control plaintiff's work. Any such argument would have to be rejected, in any event, based upon the explicit language of the Master Subcontract Agreement, which provided that plaintiff's employer, the subcontractor, was to be "solely responsible for the safety of its Work and for the safety of its" employees, and which further specified that defendant, as the "Contractor", "had no control, responsibility or authority over the Subcontractor or the Subcontractor's employees . . . with regard to the safety and health conditions relating to or arising out of the Subcontractor's work or the performance of any work covered by this Subcontract." It was further specified in that agreement that the "Subcontractor has the sole responsibility and authority for insuring that any and all hazardous conditions relating to or arising out of the Subcontractor's work are correct." Besides the contractual provisions, the record contains much subjective evidence, including the testimony of plaintiff himself, to the effect that defendant had only a limited daily presence on the construction site and that plaintiff and his co-workers did not interact, let alone take direction from, defendant's personnel, but rather only from higher-ups at Empire, plaintiff's employer.

Plaintiff does contend, however, that defendant may bear liability under section 200 for failing to provide plaintiff with a safe place to work inasmuch as there existed a defect in the premises that defendant created or failed to rectify despite notice of its existence. Again, the Court must disagree. To the Court's way of thinking, the continued existence, in the midst of ongoing demolition operations by plaintiff's employer, of an as yet non-demolished concrete porch or slab from which a demolition or clean-up worker might conceivably fall or misstep did not, as a matter of law, constitute a premises defect that defendant can be deemed to have created or to have been bound to take notice of and rectify between the time of its creation and the time of plaintiff's injury (see McCormick v 257 W. Genesee, LLC, 78 AD3d 1581, 1582 [4th Dept 2010]). Likewise, the inevitable existence of a debris field during plaintiff's employer's ongoing demolition operations cannot as a matter of law be regarded as a defect, one inhering in the premises themselves, that defendant can be held responsible for creating, or that defendant might have been bound to take notice of and rectify. In other words, and as a matter of law, defendant could not conceivably have been duty-bound to interject itself into its subcontractor's ongoing demolition and clean-up operations in order to clean up the very demolition debris that plaintiff and/or his co-workers were specifically hired to create and clean up. Under the circumstances, if there existed a defect or undue danger in connection with plaintiff's working conditions, it necessarily was one created [*8]or at least not alleviated by plaintiff and his co-workers and their supervisors, meaning that it arose out of the subcontractor's own tools, materials, and methods, matters in which defendant played no part (see Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877-878 [1993]). It is well settled that the duty to provide a safe place to work "is not breached when the injury arises out of a defect in the subcontractor's own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work" (Persichilli v Tri Borough Bridge & Tunnel Auth., 16 NY2d 136, 145 [1965], rearg denied 16 NY2d 883 [1965]; see Comes, 82 NY2d at 876-877; see generally Lombardi, 80 NY2d at 295).

Accordingly, the motion of defendant for summary judgment dismissing the amended complaint is GRANTED in part, to the extent that the claims for violation of Labor Law §§ 241 (6) and 200 and for common-law negligence are DISMISSED, and to the further extent that it is DETERMINED that plaintiff cannot recover for his ankle injury pursuant to Labor Law § 240 (1). The motion of defendant is otherwise DENIED.

The cross motion of plaintiff for partial summary judgment on liability under Labor Law § 240 (1) and 241 (6) is DENIED.

All counsel are to report for a status conference to be held on September 21, 2015, at 1:45 p.m., in Part 34 at 50 Delaware Avenue, Buffalo, New York.

SO ORDERED:

HON. PATRICK H. NeMOYER, J.S.C.

Footnotes

Footnote 1:As winnowed by his papers on the instant motion and cross motion, plaintiff's claim pursuant to Labor Law § 241 (6) is premised on alleged violations of 12 NYCRR § 23-1.7 (e) (2), 23-3.4 (c) (2), and 9.4 (h) (5) only.

Footnote 2:Concerning the height of the slab involved in plaintiff's accident and more particularly the distance of the alleged fall, the defense emphasizes that plaintiff admittedly told an examining physician that he had fallen one foot to the ground, an admission recorded in a written medical report. The defense also cites plaintiff's supervisor's testimony that plaintiff himself related, shortly post-accident, that while "walking," he "stepped down from something," i.e., "the concrete slab" that "was like maybe a foot" off the ground, whereupon he twisted his ankle.

Footnote 3:See footnote 5, infra.

Footnote 4:The decision of the Court of Appeals in Runner v New York Stock Exchange Inc. (13 NY3d 599, 603-605 [2009]) nevertheless makes clear that those are not the only risks encompassed by the protections of the statute.

Footnote 5:The Court here notes its scepticism of plaintiff's claim of entitlement to partial summary judgment on liability under section 241 (6). The cause of action entails proof of negligence on the part of some actor, an issue reserved for the trier of fact (see Seaman v Bellmore Fire Dist., 59 AD3d 515, 516 [2d Dept 2009]; see also Misicki v Caradonna, 12 NY3d 511, 521 [2009]).