Initially, defendant contends that summary judgment as to liability under Labor Law § 240 (1) is precluded by issues of fact as to how the accident occurred. The parties essentially agree that at the time of the accident, plaintiff was working at the bottom of a trench that was between four and eight feet deep, connecting lengths of pipe that were being lowered into the trench by an excavator operated by plaintiffs supervisor. They further agree that plaintiff was struck by an iron pipe measuring 18 inches in diameter and 18 feet long, and that fittings had been attached to one end of the pipe to permit it to be connected with a narrower pipe, resulting in a total weight of approximately 1,500 pounds. A device called a four way, consisting of a ring from which four chains with hooks on the ends were suspended, was used to lower the pipe into the trench. The ring was attached to the bucket of the excavator, and the chains were hooked to slings made of nylon straps wrapped around the pipe. While the parties agree that the pipe dropped as it was being moved, they disagree as to how far it dropped, why this occurred, and whether the hoisting equipment was adequate to meet the requirements of the task and Labor Law § 240 (1).
Steven Jacobs, a coworker, testified by affidavit that he was working in the trench near plaintiff when he saw the pipe being hoisted overhead. He stated that he moved away because he believed the load was improperly secured and that, when the pipe was six to eight feet above the bottom of the trench, he heard chains rattling and saw the pipe “drop free of the hooks” and strike plaintiff in the legs. Jacobs averred that the hooks lacked safety clips to prevent them from coming loose, and that Merritt had used this hoisting method only because it did not have an “OSHA-approved” clamp large enough for the 18-inch pipe. Plaintiffs’ expert, a board-certified safety professional, opined that the accident was caused by the use of improper hoisting equipment that failed to properly balance and secure the pipe, allowing it to slip unexpectedly in its bindings, drop downward at one end, and strike plaintiff. He opined that tag lines, hooks fitted with safety self-closing latches, and an 18-inch pipe clamp, among other things, should have been used. We agree with Supreme Court that the foregoing evidence was sufficient to establish on a prima facie basis that plaintiff’s injury arose from an elevation-related hazard, that defendant failed to provide adequate safety devices, and that the failure proximately caused the injury (see Labor Law § 240 [1]; Georgia v Urbanski, 84 AD3d 1569, 1569 [2011]; Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071-1072 [2009]).
Defendant contends that triable issues of fact exist based on
Initially, we agree with Supreme Court that summary judgment in plaintiffs’ favor is not precluded by the discrepancies in the witness accounts as to the distance of the pipe’s fall. Despite defendant’s contention that a one-foot drop, if proven, would be “de minimis” and thus outside the scope of protection of Labor Law § 240 (1) (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 270 [2001]), the dispositive inquiry is not merely how far the
Defendant next contends that Supreme Court should have granted its cross motion for summary judgment dismissing plaintiffs’ cause of action under Labor Law § 241 (6). “To establish a claim under Labor Law § 241 (6), plaintiffis] must allege that defendants violated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specific standard of conduct” (St. Louis v Town of N. Elba, 70 AD3d 1250, 1250
Finally, we reject defendant’s contention that its motion to vacate the note of issue should have been granted because plaintiffs failed to disclose Jacobs as a witness, thus depriving defendant of the opportunity to depose him. “While a note of is
Peters, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the amended order is modified, on the law, without costs, by reversing so much thereof as granted plaintiffs’ motion for partial summary judgment on their Labor Law § 240 (1) cause of action; motion denied to that extent and defendant’s cross motion for summary judgment partially granted by dismissing the Labor Law § 241 (6) cause of action against it except to the extent that it is based on 12 NYCRR 23-9.4; and, as so modified, affirmed.
. Defendant’s claim that the report was not properly authenticated was raised for the first time on appeal and is therefore unpreserved (see Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v Lauter Dev. Group, 77 AD3d 1219, 1221 n [2010]; Matter of Mitchell WW. [Andrew WW.], 74 AD3d 1409, 1411 [2010]).
. Defendant’s expert based his opinion that no failure of the hoisting equipment occurred on his conclusion that the pipe did not drop downward before striking plaintiff, but instead “moved laterally.” However, all of the witnesses stated that the pipe fell downward, differing only as to the extent of the drop. Accordingly, we agree with Supreme Court that the expert’s conclusion on this point is unsupported by an evidentiary foundation and without probative force (see Ann JJ. v Schenectady Assn for Retarded Citizens, 59 AD3d 772, 773 [2009]). Nonetheless, the expert’s opinion that the hoisting equipment was appropriate for the task was not based on this determination, but instead on his professional experience, and his opinion that plaintiff altered the balance of the pipe by pushing on it was based on the supervisor’s testimony that plaintiff did so; accordingly, these aspects of his opinion are sufficiently supported to warrant consideration.
