The following papers numbered 1 to 38 have been read on this motion by defendant Sal's Hauling Corp i/s/h/a Sal's Holding Corp. ("Sal's") for an award of summary judgment dismissing the complaint and all cross-claims against it; a separate motion by defendants in Action No. 1 PGREF I 1633 Broadway Land, L.P., PGREF I Paramount Plaza GP, LLC, PGREF I 1633 Broadway Tower L.P., Paramount Group, Inc., (Paramount and 1633 Broadway entities), Waldorf Exteriors LLC and W5 Group requests an award of summary judgment dismissing the complaint and cross-claims against them, for conditional indemnification from third-party defendant Calvin Maintenance Inc. and for costs, and expenses incurred in connection with this action; a cross-motion by the plaintiffs for an award of partial summary judgment in their favor on their Labor Law sections 200 and 241(6) claims; and a cross-motion by defendant Calvin Maintenance Inc. [*2]to dismiss the third party action against it.

This Court's prior two orders dated February 24, 2017, and March 8, 2017, concerning the summary judgment motions are recalled, and the following order is substituted in its place to correct certain matters in those decisions.

Upon the foregoing papers, it is ordered that the motions and cross motions are determined as follows:

As an initial matter, this Court, sua sponte, changes the caption to reflect the correct spelling of defendant “SAL’S HOLDING CORP.”—sued incorrectly in the summons and complaint as “SALS HOLDING CORP.” The Clerk is directed to make all necessary changes to the Court’s records reflecting the aforementioned amendment. This Court, furthermore, dismisses defendant SAL’S HOLDING CORP. from the action. All parties, except one—Calvin Maintenance, Inc.—have signed a stipulation withdrawing its claims against Sal’s Holding Corp., and that defendant, namely, Calvin Maintenance, has no opposition to Sal’s Holding Corp.’s motion to dismiss the complaint and all cross claims.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff Manuel Buestan, on February 18, 2012, when he was struck by a motor vehicle owned by defendant EAN Holdings Inc.^[FN1] and operated by defendant Lataya Nichole Carter.

The accident happened just after Buestan had loaded demolition debris onto a garbage truck owned by defendant Sal's. At the time of the incident, Buestan was working for third-party defendant Calvin Maintenance, performing demolition in the basement of the building located at 1663 Broadway, near West 51st Street in New York, New York, and transporting debris in containers from the basement demolition area and up to a garbage truck parked in a non-travel lane on West 51st Street where the accident occurred. The premises was owned and managed by defendants Paramount and 1633 Broadway entities, respectively. Defendants Waldorf Exteriors, LLC and W5 Group were the general contractors for the demolition project. Defendant Sal's was the owner of the garbage truck in which the demolition trash was placed. In his complaint, Buestan seeks damages for common law negligence and violations of Labor Law §200 and 241(6)and [*3]Industrial Code sections 23-1.5;23-1.15; 23-1.16; 23-1.16(a)(b); 23-1.17; 23-1.29(a)(b); and 23-1.30. The claims of Maria Lliviganay are derivative in nature.

Defendant Sal's seeks summary judgment dismissing the claims against it on the ground that it was not an owner, general contractor or agent within the meaning of the Labor Law and further did not supervise the injured plaintiff's work. Defendants Paramount and 1633 Broadway entities, Waldorf Exteriors LLC and W5 Group seek summary judgment dismissing the claims against them on the grounds that the intentional criminal act of defendant driver Carter was the cause of the collision and an unforeseeable intervening event to their alleged negligence. Alternatively, they claim they are entitled to summary judgment because the claims against them are not covered by the Labor Law as the collision was not part of the demolition zone. The plaintiff cross moves for partial summary judgment in his favor on his Labor Law sections 200 and 241(6) causes of action.

The defendants, in addition, move for a conditional award of contractual indemnification against third-party defendant Calvin Maintenance, Inc., which prompts it to cross move for summary judgment dismissing the third party action against it, on the grounds that the accident was solely and proximately caused by the alleged criminal conduct of defendant driver Carter and its conduct did not cause or contribute to the subject accident.

In support of summary judgment the movants submit, among other things, copies of the transcripts of the parties' examination before trial testimony. Upon examination before trial of defendant Sal's Holding Corp. ("Sal's"), Jack Dellorusso testified on its behalf and admitted that Sal's owned the garbage truck that was present at the site of the accident. According to Mr. Dellorusso, defendant W5 Group hired Sal's to pick up debris and the contractor present at the job site told Sal's drivers where to park the several garbage trucks that Sal's delivered to the site. Mr. Dellorusso also stated that Sal's was not responsible for setting up cones or anything in the street while the laborers were loading it. The garbage trucks had flashing tail lights as well as two work lights at the rear of the truck that are engaged when the hydraulic lift mechanism is in operation.

Mr. Joseph Marrone, a member of defendant W5 Group, also known as Waldorf Demolition, testified on its behalf. Mr. Marrone stated that W5 is in the business of interior demolition. Although W5 Group employed 25 people, none of them were demolition workers. W5 Group had an oral contract with defendant Calvin Maintenance, the injured plaintiff's employer, wherein Calvin Maintenance was retained to provide demolition workers to W5 Group for work at the subject location. Mr. Marrone and his [*4]brother were the principals of Calvin Maintenance, which was in the business of providing demolition workers to W5 Group.

At the time of the accident, W5 Group had a contract in place for interior demolition work at 1633 Broadway, which was to be completed by Calvin Maintenance employees. Mr. Marrone served as the project manager for the project and was a liaison between the building personnel and Jose Pangola, Calvin Maintenance's site supervisor and supervisor of the injured plaintiff. According to Mr. Marrone, Sal's provided the containers and Calvin Maintenance's laborers used them as they saw fit. A so-called backup truck was usually parked behind the truck that was being filled with debris.

Mr. Pangola testified upon examination before trial that he was the demolition supervisor and the only foreman on the project. He indicated that he was responsible for the safety of all Calvin Maintenance Workers. At the time of the incident, an empty debris container was placed behind the truck in which the plaintiff had loaded demolition debris to alert drivers that they were working there.

The testimony of Joseph Ganci was given on behalf of defendant Paramount Group. He stated that he is the director of security for Paramount Group, Inc, the entity responsible for managing the building. According to Mr Ganci, the trucks used to dispose of the demolition debris from the work site were always parked in the street. He indicated that the dump truck was not allowed to go into the building because the truck needs to be running in order to do the job of lifting the containers.

Defendant Carter's examination before trial testimony established that she admitted that she was operating her motor vehicle while intoxicated and struck the plaintiff with the vehicle she was driving; she was subsequently charged with driving while intoxicated and then convicted for that offense. She indicated that she did not see any lights on the garbage truck or any container situated behind it because there was steam coming out of the street which obstructed her view of the truck and its area.

In his pre-trial deposition, Plaintiff Buestan that at the time of the accident, he was an employee of third party defendant Calvin Maintenance, Inc., a demolition company. On the date of the incident, he was performing demolition work at 1663 Broadway. He and his coworker were supervised only by Jose Pangolo, who was his immediate supervisor. Pangola exclusively directed and controlled his work and the work of his coworker Patricio Palaguachi, the plaintiff in Action No 2. The plaintiffs did not make any complaints to the supervisor about the lighting at the worksite. They were working at night, and the street lights were on at that time.

Liability for negligence at a work site will attach pursuant to common law or under Labor Law section 200 if the plaintiff's injuries were sustained as a result of a dangerous condition at the work site and only if the owner, contractor or agent exercised supervision and control over the work performed at the site or had actual or constructive notice of the dangerous condition. (Pirotta v EklecCo, 292 AD2d 362 [2002]; Kobeszko v Lyden Realty Investors, 289AD2d 535 [2001]; Giambalvo v Chemical Bank, 260 AD2d 432 [1999]).

Based upon this standard and the evidence presented by the moving defendants, which includes the plaintiff's testimony upon examination before trial that the moving defendants did not exercise supervisory control over the method of his and his coworker's work and were not responsible for his or his coworker's actions, the defendants have established that summary judgment dismissing the plaintiff's common law negligence and Labor Law § 200 claims against them is appropriate. In opposition, the plaintiff fails to raise a triable issue of fact (see generally Alvarez v Prospect Hospital, 65 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557[1980].

Therefore, those branches of the moving defendants' motions which seek summary judgment dismissing the plaintiffs' common law negligence and Labor Law section 200 claims against them are granted and the plaintiffs' cross motion for an award of summary judgment in their favor on their common law negligence and Labor Law section 200 claims are denied as academic,

Accordingly, the plaintiffs' common law negligence and Labor Law section 200 claims are hereby severed and dismissed.

Regarding the plaintiffs' Labor Law section 241(6) claim, the moving defendants seek dismissal of the plaintiffs' claims made pursuant to Labor Law section 241(6) while the plaintiffs cross-move for an award of summary judgment in their favor on this claim.

Labor Law section 241(6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers without regard to direction and control (see Romero v J & S Simcha, Inc., 39 AD3d 838 [2007]). In order to prevail under this section of the Labor Law, a plaintiff must establish that specific safety rules and regulations of the Industrial Code promulgated by the Commissioner of the Department of Labor were violated (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]); Ares v State of New York, 80 NY2d 959 [1992]). The rule or regulation alleged to have been breached must be a specific, positive command and be applicable to the facts of the case (see Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 619 [2008]; Jicheng Liu v Sanford Tower Condominium, Inc., 35 AD3d 378, [*5]379 [2006]). The plaintiffs' claim violations of several provisions of the Industrial Code, including sections 23-1.5; 23-1.15; 23-1.16; 23-1.17; 23-1.29(a)(b); and 23-1.30.

First, Industrial Code section 23-1.5 cannot serve as a predicate for liability under Labor Law section 241(6) (see, Ulrich v Motor Parkway Props., LLC 84 AD3d 1221 [2011]). With respect to Industrial Code section 23-1.15, it applies to how safety rails are to be constructed when the code requires one, which is not the case herein; therefore, the provision is inapplicable to this case. Next, the defendants have established that Industrial Code section 23-1.16 is likewise inapplicable to this case because it only applies where a safety belt had been provided to the injured plaintiff and there is no evidence that one was provided or required to be used here (see, Smith v Cari, 50 AD3d 879 [2008]; Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616 [2008]; Dzieran v 1800 Boston Rd., LLC, 25 AD3d 336 [2006]; Avendano v Sazerac, Inc., 248 AD2d 340[1998]).

The defendants have also demonstrated the inapplicability of other Industrial Code violations alleged herein by the plaintiff, to wit- Industrial Code section 23-1.17,which applies to life nets, does not apply when a plaintiff, as in this case, was not provided with such device (see, Dzieran v 1900 Boston Road, LLC, 25 AD3d 336 [2006]) and Industrial Code section 23-1.29(b), which applies to the requirements of a flag person designated to direct traffic, does not apply in this case since there was no designated flag person at the site, .

Industrial Code sections 23-1.29(a) and 23-1.30 are applicable, however, to the facts of this case since the accident occurred in injured plaintiff Buestan's work zone. Industrial Code section 23-1.29(a) provides:

Whenever any construction, demolition or excavation work is being performed over, or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area or such traffic shall be controlled by designated persons.

Industrial Code section 23-1.30, furthermore, states:

Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work . . . .

The testimonial evidence submitted herein indicates that an empty demolition trash bin was placed behind the truck where the accident occurred in order to alert oncoming drivers that work was being performed there. In addition, the examination before trial testimony of driver defendant Carter indicates that she did not see the area where the garbage truck and bin were parked before she struck the injured plaintiff because her view was obstructed by steam that was coming out of the roadway.

Thus, notwithstanding the conflicting affidavits of the parties' experts regarding whether the requirements of Industrial Code sections 23-1.29(a) and 23-1.30 were met, the witness testimony given upon examination before trial highlights the existence of triable issues of fact, inter alia, as to whether the measures taken to direct traffic away from and illuminate the work area where the accident occurred were adequate to satisfy the Industrial Code (see, Alvarez v Prospect Hospital, 68 NY2d 230 [1986]).

In light of the foregoing, that branch of the defendants' motion which seeks summary judgment dismissing the plaintiff's Labor Law section 241(6) claim against them is granted, in part, only to the extent that the claimed violations of Industrial Code, sections 23-1.5, 23-1.15, 23-1.16, 23-1.17 and 23-1.29(b) are hereby severed and dismissed, and the remaining branches of their request is denied in light of the aforementioned triable issues of fact regarding the defendants' compliance with Industrial Code sections 23-1.29(a) and 23-1.30.

Accordingly, the plaintiffs' cross-motion for summary judgment on their Labor Law section 241(6) claim is also denied.

Turning to the third-party action for indemnification, it is noted that a third-party action may be brought against plaintiff Buestan's employer under the circumstances presented herein as the loss of plaintiff Buestan's leg constitutes a "grave injury" within the meaning of Worker's Compensation Law section 11 (See, Storms v. Dominican Coll. of Blauvelt, 308 AD2d 575, 577 [2003]).

Notwithstanding the foregoing, summary judgment on a claim for common-law indemnification is not appropriate at this juncture since there are triable issues of fact concerning the degree of fault attributable to the parties (see Aragundi v. Tishman Realty & Construction Co., Inc., 68 AD3d 1027 [2009]; Coque v. Wildflower Estates Developers, Inc., 31 AD3d 484 [2006]).

Accordingly, the defendants' cross motion for a conditional award of indemnification against third-party defendant Calvin Maintenance, Inc. , and Calvin Maintenance, Inc.'s cross motion for summary judgment dismissing the third-party [*6]action against it are denied as premature.

As stated above, the motion by Sal’s Holding Corp. for dismissal is granted, in its entirety.

The motions and cross-motions are, in all other respects, denied.

Counsel for the parties have been informed that they must appear in the Trial Scheduling Part on March 21, 2017, at 9:30 A.M., for the trial of the action.

The foregoing constitutes the decision, opinion, and order of this Court.