| Geonie v OD & P NY Ltd. |
| 2008 NY Slip Op 03316 [50 AD3d 444] |
| April 15, 2008 |
| Appellate Division, First Department |
| Carl Geonie, Appellant, v OD& P NY Limited et al.,Respondents, et al., Defendants. (And a Third-Party Action.) O.D.& P., New York, Ltd., SecondThird-Party Plaintiff-Respondent, v ARI Products, Inc., Second Third-PartyDefendant-Respondent. |
—[*1] Gartner & Bloom, P.C., New York (Susan P. Mahon of counsel), for OD & P NY Limited,New York Mercantile Exchange, I. Park Lake Success, LLC, I. Park Holdings, LLC and I. ParkInvestments, Inc., respondents. Cartafalsa, Slattery, Turpin & Lenoff, New York (Michael J. Lenoff of counsel), forCushman & Wakefield, respondent. Pillinger Miller Tarallo, LLP, Elmsford (Jenna Cirelli of counsel), for ARI Products, Inc.,respondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered August 3, 2006,which, to the extent appealed from as limited by the briefs, denied plaintiff's cross motion forsummary judgment on his Labor Law § 240 (1) claim, upon searching the record,dismissed the Labor Law § 240 (1) and § 241 (6) claims against all defendants, andgranted the cross motion of defendants I. Park Lake Success, LLC, I. Park Holdings, LLC and I.Park Investments, Inc. for [*2]summary judgment dismissing theLabor Law § 240 (1) and § 241 (6) claims as against them, unanimously affirmed,without costs. Order, same court and Justice, entered June 7, 2007, which, to the extent appealedfrom as limited by the briefs, dismissed the Labor Law § 240 (1) and § 241 (6)claims as against defendant Cushman & Wakefield, unanimously affirmed, without costs. Order,same court and Justice, entered June 7, 2007, which, to the extent appealed from as limited bythe briefs, dismissed the Labor Law § 240 (1) and § 241 (6) claims as againstdefendant New York Mercantile Exchange, unanimously affirmed, without costs. Order, samecourt and Justice, entered July 16, 2007, which, to the extent appealed from as limited by thebriefs, dismissed the remaining Labor Law § 200 and negligence causes of action asagainst defendant OD & P NY Limited, unanimously affirmed, without costs.
The Labor Law § 240 (1) claim was properly dismissed because plaintiff's steppinginto the opening left by the removal of a tile in a raised "computer floor" was not caused bydefendants' failure to provide safety devices to protect against an elevation-related hazard (seePiccuillo v Bank of N.Y. Co., 277 AD2d 93, 94 [2000]; D'Egidio v Frontier Ins. Co.,270 AD2d 763, 765 [2000], lv denied 95 NY2d 765 [2000]).
The Labor Law § 241 (6) claim based on Industrial Code (12 NYCRR) § 23-1.7(b) (1) was properly dismissed because the opening into which plaintiff stepped was not the typeof opening intended to be covered by the regulation.
The Labor Law § 200 and common-law negligence claims were properly dismissed asagainst the general contractor, OD & P, because the evidence that OD & P's projectsuperintendent coordinated the work of the trades, conducted weekly safety meetings withsubcontractors, conducted regular walk-throughs, and had the authority to stop the work if heobserved an unsafe condition is insufficient to raise a triable issue whether OD & P exercised therequisite degree of supervision and control over the work to sustain those claims (see O'Sullivan v IDI Constr. Co., Inc.,28 AD3d 225, 226 [2006], affd 7 NY3d 805 [2006]; Hughes v Tishman Constr. Corp., 40AD3d 305, 309 [2007]; Singh vBlack Diamonds LLC, 24 AD3d 138, 140 [2005]). Moreover, there is no evidence thatOD & P had actual notice of the unsafe condition, and the evidence that the topic of removed tilewas generally discussed at weekly safety meetings was insufficient to raise a triable issue as toconstructive notice (see Mitchell v NewYork Univ., 12 AD3d 200, 201 [2004]). Concur—Andrias, J.P., Friedman,Buckley, McGuire and Moskowitz, JJ.