GRAY v. BALLING CONSTRUCTION COMPANY INC (1997)

 Supreme Court erred in denying that part of the cross motions of defendants that sought summary judgment dismissing the common-law negligence and Labor Law § 200(1) claims.   Defendants established that the alleged defect or dangerous condition arose from the methods and procedures of plaintiff's employer and that they exercised no supervisory control over the method of plaintiff's work (see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110;  McSweeney v. Rochester Gas & Elec. Corp., 216 A.D.2d 878, 879, 629 N.Y.S.2d 356, lv. denied 86 N.Y.2d 710, 634 N.Y.S.2d 443, 658 N.E.2d 221;  Durfee v. Eastman Kodak Co., 212 A.D.2d 971, 624 N.Y.S.2d 704, lv. dismissed 85 N.Y.2d 968, 629 N.Y.S.2d 726, 653 N.E.2d 622).   Neither the mere presence of defendants' employees at the work site nor the general supervisory authority of defendants Balling Construction Company, Inc., and Balling Construction Management, Inc., contained in their contract with defendant Marine Midland Bank is sufficient to create liability under Labor Law § 200 (see, Enderlin v. Hebert Indus. Insulation, 224 A.D.2d 1020, 638 N.Y.S.2d 262;  Pazmino v. Woodside Dev. Co., 212 A.D.2d 520, 521, 622 N.Y.S.2d 299;  see also, Mamo v. Rochester Gas & Elec. Corp., 209 A.D.2d 948, 949, 619 N.Y.S.2d 426, lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 325, 650 N.E.2d 1327).

 The court, however, properly denied those parts of the motion of third-party defendant and the cross motions of defendants seeking dismissal of the Labor Law § 241(6) claim.   To establish a prima facie cause of action under that section, a plaintiff must allege that a defendant violated a provision of the Industrial Code “mandating compliance with concrete specifications” as opposed to “those that establish general safety standards by invoking the ‘[g]eneral descriptive terms' set forth and defined in 12 NYCRR 23-1.4(a)” (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Plaintiff alleges that defendants violated 12 NYCRR 23-1.28(a), which provides in part that “[h]and-propelled vehicles having damaged handles or any loose parts shall not be used.”   Because that provision mandates compliance with a concrete specification rather than establishes a general safety standard using the general descriptive terms in 12 NYCRR 23-1.4(a), it is specific enough to support a section 241(6) claim (see, Cafarella v. Harrison Radiator Div. of General Motors, 237 A.D.2d 936, 654 N.Y.S.2d 910;  Basile v. ICF Kaiser Engrs. Corp., 227 A.D.2d 959, 643 N.Y.S.2d 854).  Furthermore, plaintiff's submissions are sufficient to raise a triable issue of fact whether there was a violation of that regulation and, if so, whether it was a proximate cause of the accident (see, Gaul v. Motorola, Inc., 216 A.D.2d 879, 880, 628 N.Y.S.2d 992).

We therefore modify the order by granting in part defendants' cross motions for summary judgment and dismissing the common-law negligence and Labor Law § 200 claims and otherwise affirm.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: