GREAVES v. [And a Third-Party Action]. (2008)

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered December 19, 2007, which, to the extent appealed from, denied the motions by the respective parties to this appeal for summary judgment as to Labor Law § 240(1) liability, and granted summary judgment to defendants on plaintiff's Labor Law §§ 200 and 241(6) claims, unanimously modified, on the law, plaintiff granted summary judgment as to liability on his § 240(1) claim, and otherwise affirmed, without costs.

Plaintiff was standing on a scaffold, while working on a portion of a concrete wall, when the wall collapsed.   Concrete blocks fell against the scaffold, knocking it over and causing plaintiff to fall to the ground, where blocks fell on top of him, causing injury.   The portion of the wall where plaintiff was working was neither braced nor secured.

 The accident clearly fell within the scope of Labor Law § 240(1), as the evidence shows plaintiff was struck by falling objects that could have been, but were not, adequately secured by one of the devices enumerated in the statute (see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513-514, 577 N.Y.S.2d 219, 583 N.E.2d 932 [1991] ).   His prima facie showing was not rebutted by defendant property owners and general contractor, thus entitling him to summary judgment against them (Williams v. 520 Madison Partnership, 38 A.D.3d 464, 834 N.Y.S.2d 32 [2007];  Boyle v. 42nd St. Development Project Inc., 38 A.D.3d 404, 835 N.Y.S.2d 7 [2007];  LaFleur v. Consolidated Edison Co. of N.Y., 221 A.D.2d 250, 633 N.Y.S.2d 496 [1995] ).

 Plaintiff's claim under § 241(6) may not be premised upon alleged violations of Industrial Code (12 NYCRR) §§ 23-5.1(c) and 23-5.4(a).   The first of these Code sections is insufficiently specific to support a § 241(6) claim (see Moutray v. Baron, 244 A.D.2d 618, 619, 663 N.Y.S.2d 926 [1997], lv. denied 91 N.Y.2d 808, 669 N.Y.S.2d 261, 692 N.E.2d 130 [1998] ), and the second addresses standards for a tubular welded frame scaffold, which plaintiff failed to demonstrate was in use at the time of his injury. None of plaintiff's remaining arguments regarding § 241(6), nor his claim against the general contractor under Labor Law § 200, were raised in Supreme Court, and are thus unpreserved for appellate review (see Laboda v. VJV Dev. Corp., 296 A.D.2d 441, 745 N.Y.S.2d 67 [2002];  Charles v. City of New York, 227 A.D.2d 429, 430, 642 N.Y.S.2d 690 [1996], lv. denied 88 N.Y.2d 815, 651 N.Y.S.2d 16, 673 N.E.2d 1243 [1996] ).   Were we to review them at this time, we would find them unavailing.