| Hunter v R.J.L. Dev., LLC |
| 2007 NY Slip Op 07818 [44 AD3d 822] |
| October 16, 2007 |
| Appellate Division, Second Department |
| Clinton Hunter, Appellant, v R.J.L. Development, LLC, etal., Respondents. (And Other Titles.) |
—[*1] Nicoletti Hornig Campise & Sweeney, New York, N.Y. (Edward L. Doherty of counsel), forrespondent R.J.L. Development, LLC. O'Connor, Redd & Sklarin, LLP, White Plains, N.Y. (John Grill of counsel), for respondentsGardens at Rhinebeck, LLC, and Gardens at Rhinebeck Condominium 1, Inc. Penino & Moynihan, LLP, White Plains, N.Y. (Stephen J. Penino of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much an order of the Supreme Court, Orange County (Alessandro, J.), enteredAugust 2, 2006, as (a) granted those branches of the motion of the defendants Gardens atRhinebeck, LLC, and Gardens at Rhinebeck Condominium 1, Inc., which were for summaryjudgment dismissing the plaintiff's causes of action to recover damages for violations of LaborLaw §§ 200, 240, and 241 (6) insofar as asserted against them, (b) granted theseparate motion of the defendants TAT Enterprises and Tom Maerling which was for summaryjudgment dismissing the plaintiff's causes of action to recover damages for violations of LaborLaw § 240 (1) and § 241 (6) insofar as asserted against them, (c) granted theseparate motion of the defendant R.J.L. Development, LLC, which was for summary judgmentdismissing the complaint insofar as asserted against it, (d), in effect, searched the record anddismissed the plaintiff's cause of action to recover damages for common-law negligence insofaras asserted against the defendants Gardens at Rhinebeck, LLC, [*2]Gardens at Rhinebeck Condominium 1, Inc., TAT Enterprises, andTom Maerling, and (e), in effect, searched the record and dismissed the plaintiff's cause of actionto recover damages for violation of Labor Law § 200 insofar as asserted against thedefendants TAT Enterprises and Tom Maerling.
Ordered that the order is modified, on the law, by (1) deleting the provision thereof grantingthose branches of the motion of the defendants Gardens at Rhinebeck, LLC, and Gardens atRhinebeck Condominium 1, Inc., which were for summary judgment dismissing the plaintiff'scauses of action to recover damages for violations of Labor Law § 240 and so much ofLabor Law § 241 (6) as is predicated on 12 NYCRR 23-1.21 (b) (4) (iv) insofar as assertedagainst them and substituting therefor a provision denying those branches of the motion, (2) bydeleting the provision thereof granting that branch of the separate motion of the defendants TATEnterprises and Tom Maerling which was for summary judgment dismissing the plaintiff's causesof action to recover damages for violations of Labor Law § 240 (1) and § 241 (6)insofar as is predicated on 12 NYCRR 23-1.21 (b) (4) (iv) insofar as asserted against them andsubstituting therefor a provision denying that branch of the motion, (3) by deleting the provisionsthereof granting that branch of the separate motion of the defendant R.J.L. Development, LLC,which was for summary judgment dismissing the plaintiff's cause of action to recover damagesfor violation of Labor Law § 240 (1) and granting that branch of the motion which was forsummary judgment dismissing the plaintiff's cause of action to recover damages for violation ofLabor Law § 241 (6) insofar as is predicated on 12 NYCRR 23-1.21 (b) (4) (iv) andsubstituting therefor a provision denying those branches of the motions, and (4) by deleting theprovision thereof, in effect, searching the record and dismissing the plaintiff's cause of action torecover damages for common-law negligence and violation of Labor Law § 200 insofar asasserted against the defendants TAT Enterprises and Tom Maerling; as so modified, the order isaffirmed insofar as appealed from, with one bill of costs to the plaintiff payable by thedefendants.
The Supreme Court improperly granted summary judgment to each of the defendantsdismissing the plaintiff's cause of action seeking damages for violation of Labor Law § 240(1). The respective defendants failed to demonstrate prima facie entitlement to summaryjudgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]). At his deposition, the transcriptof which was annexed to the moving papers of the defendants Gardens at Rhinebeck, LLC,Gardens at Rhinebeck Condominium 1, Inc. (hereinafter collectively the Gardens defendants),TAT Enterprises (hereinafter TAT), and Tom Maerling and, in effect, incorporated into themoving papers of the defendant R.J.L. Development, LLC (hereinafter RJL), the plaintifftestified that he was forced to anchor his work ladder on a dirt path and over a cement walkbecause placing the ladder on the walk would have made it unstable. Furthermore, he testifiedthat he did the best job that he could to stabilize the ladder on the dirt and that he sought helpfrom both the owner of TAT and the work site manager of RJL, but that neither was available tohelp him.
The Supreme Court also improperly granted all the defendants summary judgmentdismissing in its entirety the cause of action to recover damages for violation of Labor Law§ 241 (6). Again, the defendants failed to establish their prima facie entitlement tosummary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 851;Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). The defendants failed to negate theapplicability of 12 NYCRR 23-1.21 (b) (4) (iv) as a predicate for the plaintiff's cause of actionfor damages for violation of Labor Law § 241 (6) (see Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, 176[2004]). At the time of his fall, the plaintiff was working on or [*3]about the sixth rung of the ladder, and the ladder was not securedfrom the top. The plaintiff concedes that the other Industrial Code sections which he pleaded as abasis of liability (12 NYCRR 23-1.5 and 23-1.7) do not apply here. Accordingly, we affirm thedismissal of this cause of action insofar as predicated on these Industrial Code sections.
The court properly granted summary judgment to the Gardens defendants on the plaintiff'sLabor Law § 200 cause of action. In opposition to the prima facie demonstration by theGardens defendants of the right to summary judgment dismissing the claim, the plaintiff failed toraise a triable issue of fact (seeBerkshire Nursing Ctr., Inc. v Novello, 13 AD3d 327, 328-329 [2004]). The plaintiff athis deposition disclaimed that the owner of the Gardens defendants told him how to do his joband he provided no evidence that the Gardens defendants exercised control over him (seeRoss v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]; Lombardi v Stout,80 NY2d 290, 295 [1992]). By contrast, RJL, TAT, and Maerling failed to establish theirprima facie entitlement to summary judgment dismissing the plaintiff's cause of action fordamages for violation of Labor Law § 200 or common-law negligence (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d at 851; Mariaca-Olmos v Mizrhy, 226 AD2d at437). Their own papers in support of their respective motions raise triable issues of fact as towhether they, or any of them, exercised control over the work the plaintiff was performing(cf. Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 506; McLeod v Corporation of Presiding Bishopof Church of Jesus Christ of Latter Day Sts., 41 AD3d 796 [2007]).
Accordingly, while the Supreme Court correctly granted that branch of the motion of theGardens defendants which was for summary judgment dismissing the cause of action to recoverdamages for violation of Labor Law § 200 insofar as asserted against them, it erred indismissing this cause of action insofar as asserted against RJL and against TAT and Maerling. Itsdismissal of this cause of action insofar as asserted against TAT and Maerling was erroneous onthe additional ground that TAT and Maerling never moved for this relief; the issues of theviability of the Labor Law § 200 cause of action insofar as asserted against TAT andMaerling were not before the court because these defendants moved to dismiss neither that causeof action nor the analytically identical cause of action based on common-law negligence (seeDunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]). By contrast, the SupremeCourt's sua sponte dismissal of the plaintiff's cause of action to recover damages for common-lawnegligence insofar as asserted against the Gardens defendants, who did move to dismiss theLabor Law § 200 cause of action insofar as asserted against them, can be justified as anunarticulated exercise of its power to search the record (see CPLR 3212 [b]). TheGardens defendants never moved to dismiss the common-law negligence cause of action. Yet,this cause of action implicates an issue that was the subject of the motion by the Gardensdefendants that was already before the court (cf. Dunham v Hilco Constr. Co., 89 NY2d425 [1996]). The Gardens defendants moved to dismiss the plaintiff's cause of action fordamages for violation of Labor Law § 200. The cause of action to recover damages forcommon-law negligence implicates the same issues because Labor Law § 200 is but acodification of the common-law duty of a landowner to provide workers with a reasonably safeplace to work (see Lombardi v Stout, 80 NY2d at 294). Therefore, a search of the recordto dismiss the common-law negligence cause of action insofar as asserted against the Gardensdefendants would not offend the rule set forth in Dunham v Hilco Constr. Co. (89 NY2dat 425).
Finally, the Gardens defendants request that, in the event we modify the order of theSupreme Court, as we are, in fact, doing, we should award summary judgment in their favor forcommon-law indemnification against RJL. This request is not properly before us in the absenceof a cross appeal by the Gardens defendants and is otherwise unavailable on a search of therecord [*4]pursuant to CPLR 3212 (b) (see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d at 505-506). Crane, J.P., Florio, Lifson and Carni,JJ., concur.