| Romang v Welsbach Elec. Corp. |
| 2008 NY Slip Op 00477 [47 AD3d 789] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Sherry Romang, Appellant, v Welsbach ElectricCorporation, Respondent, et al., Defendant. |
—[*1] London Fischer, LLP, New York, N.Y. (James Walsh of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Weiss, J.), entered October 3, 2006, which granted themotion of the defendant Welsbach Electric Corporation for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
Labor Law § 200 codifies the common-law duty of an owner or employer to provideemployees with a safe place to work (see Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d 494, 505 [1993]; Jock v Fien, 80 NY2d 965, 967 [1992]; Smith v 499 Fashion Tower, LLC, 38AD3d 523, 524 [2007]; Brown vBrause Plaza, LLC, 19 AD3d 626, 628 [2005]; Linares v United Mgt. Corp., 16 AD3d 382, 384 [2005]). Thisprovision applies to owners, contractors, and their agents (see Paladino v Society of N.Y.Hosp., 307 AD2d 343, 344-345 [2003]; Yong Ju Kim v Herbert Constr. Co., 275AD2d 709, 712-713 [2000]). "[L]iability against a subcontractor based upon a claimed violationof Labor Law § 200 and common-law negligence requires a showing that authority wasconferred on the subcontractor to supervise and control the activity which produced the injury"(Kehoe v Segal, 272 AD2d 583, 584 [2000]; see Rizzuto v L.A. Wenger Contr.Co., 91 NY2d 343, 352 [1998]; Lopes v Interstate Concrete, 293 AD2d 579, 580[2002]).
Here, in opposition to the prima facie showing of the defendant Welsbach ElectricCorporation (hereinafter the defendant) of entitlement to judgment as a matter of law withrespect to the common-law negligence and Labor Law § 200 causes of action insofar asasserted against it, [*2]the plaintiff failed to raise a triable issue offact as to whether the defendant exercised sufficient control over the activity which broughtabout her injury (see Zervos v City ofNew York, 8 AD3d 477, 481 [2004]; Lopes v Interstate Concrete, 293 AD2d at580; Ryder v Mount Loretto Nursing Home, 290 AD2d 892, 894 [2002]). Accordingly,the Supreme Court correctly granted the defendant's motion for summary judgment dismissingthose causes of action insofar as asserted against it.
Further, contrary to the plaintiff's contention, the defendant's subcontract agreement withnonparty Modern Continental Construction Company, Inc. (hereinafter Modern), is neitherambiguous nor contradictory (see Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 46[1956]; Sumitomo Bank of N.Y. Trust Co. v Town of N. Hempstead, 278 AD2d 402, 404[2000]; Aguirre v City of New York, 214 AD2d 692, 693-694 [1995]; Matter of Meerv Bugliarello, 147 AD2d 568, 568-569 [1989]). Moreover, the exclusion provision in thesubcontract agreement, which, inter alia, specifically excludes the defendant from any obligationsrelated to excavations, such as the hole into which the plaintiff fell, is not against public policy,as it does not authorize indemnification for Modern's own negligence (cf. GeneralObligations Law § 5-322.1; Brooks v Judlau Contr., Inc., 39 AD3d 447, 449-450 [2007]).
Summary judgment dismissing the Labor Law § 240 (1) and § 241 (6) causes ofaction was also properly awarded to the defendant since the plaintiff's work at the time of theaccident was wholly unrelated to an elevation-related hazard and therefore not within thepurview of Labor Law § 240 (1) (see Aquilino v E.W. Howell Co., Inc., 7 AD3d 739, 740 [2004];Edwards v C & D Unlimited, 289 AD2d 370, 372 [2001]), and the Industrial Coderegulations upon which the plaintiff relies for her Labor Law § 241 (6) cause of action (12NYCRR 23-3.3 [j] [2]; 23-1.7 [b] [1]) are inapplicable under the circumstances (compareDavidson v E.Q.K. Green Acres, 298 AD2d 546, 547 [2002], with Payne v City of New Rochelle, 40AD3d 608, 609 [2007]). Fisher, J.P., Lifson, Covello and McCarthy, JJ., concur.[See 13 Misc 3d 1218(A), 2006 NY Slip Op 51904(U).]