| Gallello v MARJ Distribs., Inc. |
| 2008 NY Slip Op 03168 [50 AD3d 734] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Donato F. Gallello, Appellant, v MARJ Distributors, Inc.,Doing Business as Sammy's New York Bagels, et al., Respondents. |
—[*1] Marshall, Conway & Wright, P.C., New York, N.Y. (Sue Soo-ha Yang of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Nastasi, J.), entered November 21, 2006, which grantedthe defendants' motion for summary judgment dismissing the complaint and denied, as academic,his cross motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action and for leave to amend his bill of particulars.
Ordered that the order is affirmed, with costs.
The plaintiff Donato F. Gallello, the owner of a company that manufactures and repairs neonsigns, allegedly was injured when he fell from a ladder while attempting to repair a two-foot byfour-foot neon sign at a store managed by the defendant MARJ Distributors, Inc., doing businessas Sammy's New York Bagels, located on property owned by the defendants Hilton Soniker and2J Management Co., Inc. The plaintiff allegedly was injured in the store while standing on hisown ladder and attempting to replace a 10- to 12-pound broken transformer located above a dropceiling. The plaintiff lost his balance when the transformer fell while he was detaching it fromthe wires affixing it to the ceiling.
The complaint alleges causes of action pursuant to Labor Law §§ 200, 240 (1),and § 241 (6). The defendants moved for summary judgment dismissing the complaint,and the plaintiff [*2]cross-moved for summary judgment on theissue of liability with respect to the Labor Law § 240 (1) cause of action and for leave toamend the bill of particulars to assert a violation of the Industrial Code in support of the LaborLaw § 241 (6) cause of action. The Supreme Court granted the defendants' motion forsummary judgment and denied, as academic, the plaintiff's cross motion. We affirm.
In this case, the evidence established that the plaintiff was performing routine maintenance ina nonconstruction context, and thus was not entitled to the protections of Labor Law § 240(1) (see Azad v 270 5th RealtyCorp., 46 AD3d 728 [2007]; Anderson v Olympia & York Tower B Co., 14 AD3d 520, 521[2005]; Jani v City of New York, 284 AD2d 304 [2001]). Accordingly, the SupremeCourt properly granted that branch of the defendants' motion which was for summary judgmentdismissing the plaintiff's Labor Law § 240 (1) cause of action and properly denied, asacademic, that branch of the plaintiff's cross motion which was for summary judgment on theissue of liability on the Labor Law § 240 (1) cause of action (id.).
To be held liable under Labor Law § 200 for injuries arising from the manner in whichwork is performed at a work site, an owner or manager of real property must have authority toexercise supervision and control over the work at the site (see Lombardi v Stout, 80NY2d 290, 295 [1992]; Guerra v PortAuth. of N.Y. & N. J., 35 AD3d 810, 811 [2006]; Parisi v Loewen Dev. of Wappinger Falls, 5 AD3d 648 [2004])."[W]here . . . a plaintiff's injuries stem not from the manner in which the work wasbeing performed, but, rather, from a dangerous condition on the premises, [an owner or managerof real property] may be liable . . . under Labor Law § 200 if it has controlover the work site and actual or constructive notice of the dangerous condition" (McLeod v Corporation of Presiding Bishopof Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 798 [2007], quoting Keating v Nanuet Bd. of Educ., 40AD3d 706, 708 [2007]). Here, regardless of the theory of liability, the defendantsestablished, as a matter of law, that they did not control or supervise the plaintiff's work (see Capolino v Judlau Contr., Inc., 46AD3d 733 [2007]). They further established that they did not have notice of the allegeddefective condition (see Payne v 100Motor Parkway Assoc., LLC, 45 AD3d 550, 553 [2007]).
The plaintiff's argument that the defendants failed to establish lack of notice of a dangerouscondition at the premises, by virtue of the absence of safety clamps on the transformer, wasraised as a new theory of liability for the first time in opposition to the defendants' motion."While modern practice permits a plaintiff to successfully oppose a motion for summaryjudgment by relying on an unpleaded cause of action which is supported by the plaintiff'ssubmissions" (Comsewogue Union FreeSchool Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524 [2005]; seeAlvord & Swift v Muller Constr. Co., 46 NY2d 276, 280 [1978]; Medina v Sears, Roebuck & Co., 41AD3d 798, 799-800 [2007]; Gold Connection Discount Jewelers v American Dist. Tel.Co., 212 AD2d 577, 578 [1995]), here, the plaintiff's protracted delay in presenting the newtheory of liability warranted the Supreme Court's rejection of the argument (see Medina vSears, Roebuck & Co., 41 AD3d at 799-800; Mainline Elec. Corp. v Pav-Lak Indus., Inc., 40 AD3d 939 [2007];Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d at524).
The Supreme Court also properly granted that branch of the defendants' motion which wasfor summary judgment dismissing the plaintiff's Labor Law § 241 (6) cause of action, asneither the statute nor the allegedly violated Industrial Code provisions are applicable outside thecontexts of construction, demolition, or excavation (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526,528 [2003]; Nagel v D & R Realty Corp., 99 NY2d 98, 103 [2002]). In light of theforegoing, the Supreme Court correctly denied, as academic, that branch of the plaintiff's crossmotion which was for leave [*3]to amend the bill of particulars toadd specific provisions of the Industrial Code alleged to have been violated. Spolzino, J.P.,Angiolillo, Balkin and Leventhal, JJ., concur.