| Zender v Madison-Oneida County BOCES |
| 2007 NY Slip Op 10219 [46 AD3d 1361] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| Todd R. Zender et al., Appellants, v Madison-Oneida CountyBOCES et al., Respondents. |
—[*1] Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (David A. D'Agostino of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Oneida County (Samuel D. Hester, J.), enteredJuly 21, 2006 in a personal injury action. The order denied plaintiffs' motion for partial summaryjudgment on the issue of liability under Labor Law § 240 (1) and granted defendants' crossmotion for summary judgment dismissing the common- law negligence and Labor Law §200 causes of action.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslymodified on the law by granting the motion and by denying the cross motion in part andreinstating the common-law negligence and Labor Law § 200 causes of action againstdefendant Northland Associates, Inc. and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byTodd R. Zender (plaintiff) while he was working as a steel erector on an iron beamapproximately 10 to 12 feet above the ground. The ladder that plaintiff used to climb onto thebeam was not in place when he was ready to descend from the beam. Plaintiff thereforeattempted to slide down a vertical support column but, as he approached the column, his footslipped and he fell to the ground, injuring his knee.
Supreme Court erred in denying plaintiffs' motion for partial summary judgment on theLabor Law § 240 (1) cause of action, and we therefore modify the order accordingly.Plaintiffs met their burden by establishing that plaintiff was injured by a fall from an elevatedwork site and that the absence of a safety device was the proximate cause of his injuries (seeFelker v Corning Inc., 90 NY2d 219, 224 [1997]; Baum v Ciminelli-Cowper Co.,300 AD2d 1028, 1029 [2002]). Here, the ladder that was made available to plaintiff to ascend thebeam was removed, leaving plaintiff no choice but to attempt an alternate method of descendingfrom the beam (cf. Montgomery vFederal Express Corp., 4 NY3d 805 [2005]).[*2]
We further conclude that the court properly granted thoseparts of defendants' cross motion seeking partial summary judgment dismissing the common-lawnegligence and Labor Law § 200 causes of action against defendants Madison-OneidaCounty BOCES, Turner Construction Company, and Delhi Steel Corporation. The recordestablishes that those three defendants did not supervise, direct or control plaintiff's work, nor didthey have actual or constructive notice of the dangerous condition (see Riordan v BOCES of Rochester, 4AD3d 869, 870 [2004]; see also Lombardi v Stout, 80 NY2d 290, 295 [1992]). Weconclude, however, that the court erred in granting that part of the cross motion seeking partialsummary judgment dismissing the common-law negligence and Labor Law § 200 causesof action against defendant Northland Associates, Inc. (Northland), and we therefore furthermodify the order accordingly. The record contains evidence that Northland directed plaintiff'swork, had a representative at the work site on a daily basis, and had received specific notice fromplaintiff about the poor condition of the work area. Thus, there is an issue of fact with respect toNorthland's liability under the common-law negligence and Labor Law § 200 causes ofaction (see Riordan, 4 AD3d at 870-871). Present—Gorski, J.P., Martoche, Smith,Peradotto and Green, JJ.