| Markey v C.F.M.M. Owners Corp. |
| 2008 NY Slip Op 04477 [51 AD3d 734] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Dennis Markey et al., Respondents, v C.F.M.M. OwnersCorp., Defendant and Third-Party Plaintiff-Appellant-Respondent, and Rebar Steel Corp.,Respondent-Appellant. Robert A. Montello, Third-PartyDefendant-Respondent. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), fordefendant-respondent-appellant. Siben & Siben, LLP, Bay Shore, N.Y. (Shayne, Dachs, Corker, Sauer & Dachs, LLP[Jonathan A. Dachs] of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant and third-partyplaintiff, C.F.M.M. Owners Corp., appeals, as limited by its brief, from so much of an order ofthe Supreme Court, Nassau County (Bucaria, J.), dated April 10, 2007, as denied those branchesof its motion which were for summary judgment dismissing the causes of action to recoverdamages for common-law negligence, violation of Labor Law § 200, and violation ofLabor Law § 241 (6) insofar as asserted against it and the cross claim of the defendantRebar Steel Corp. for contribution and common-law indemnification, and for conditionalsummary judgment on its cross claims for common-law indemnification and/or contributionagainst the defendant Rebar Steel Corp. and on its third-party cause of action for common-lawindemnification and/or contribution against the third-party defendant, Robert A. Montello, andthe defendant Rebar Steel Corp. cross-appeals, as limited by its brief, from so much of the sameorder as denied those branches of its motion which were for summary judgment dismissing thecauses of action to recover damages for common-law negligence, violation of Labor Law §200, and violation of Labor Law § 241 (6) insofar as asserted against it and the cross claimof the defendant and third-party plaintiff, C.F.M.M. [*2]OwnersCorp., against it for common-law indemnification and/or contribution.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the motion of the defendant and third-party plaintiff, C.F.M.M. Owners Corp.,which were for summary judgment dismissing the causes of action to recover damages forcommon-law negligence and violation of Labor Law § 200 insofar as asserted against itand the cross claim of Rebar Steel Corp. and substituting therefor provisions granting thosebranches of the motion; as so modified, the order is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
On December 20, 2003, the plaintiff Dennis Markey, while engaged in construction workrenovating a bathroom at premises owned by the defendant C.F.M.M. Owners Corp. (hereinafterOwners) and leased to the defendant Rebar Steel Corp. (hereinafter Rebar), was struck in theright eye by a piece of wood molding which was expelled from an electric miter saw operated byhis employer Robert A. Montello, causing blindness in that eye. Rebar hired Montello to performthe work and Montello brought the saw to the site on the day of the accident. Owners consentedto the performance of the work, but played no role in the supervision of the work.
Dennis Markey and his wife commenced the instant action against Owners and Rebar. Thecauses of action in issue sound in common-law negligence, violation of Labor Law § 200,and violation of Labor Law § 241 (6). Owners cross-claimed against Rebar andcommenced a third-party action against Montello for common-law indemnification and/orcontribution. Rebar cross-claimed against Owners for common-law indemnification, contractualindemnification, and/or contribution.
Owners moved for summary judgment dismissing the complaint and the cross claim insofaras asserted against it, on its cross claims against Rebar, and on its third-party cause of actionagainst Montello. Rebar cross-moved for summary judgment dismissing the complaint and thecross claim insofar as asserted against it. The Supreme Court denied the motion and crossmotion. Owners appeals and Rebar cross-appeals.
With respect to the plaintiffs' causes of action sounding in violation of Labor Law §200 and common-law negligence, Labor Law § 200 "codified the common-law dutyimposed upon an owner or general contractor to provide construction site workmen with a safeplace to work . . . An implicit precondition to this duty . . . is that theparty charged with that responsibility have the authority to control the activity bringing about theinjury to enable it to avoid or correct an unsafe condition" (Russin v Louis N. Picciano &Son, 54 NY2d 311, 316-317 [1981]; see O'Sullivan v IDI Constr. Co., Inc., 7 NY3d 805, 806 [2006]).Liability pursuant to Labor Law § 200 may be based either upon the manner in which thework is performed or actual or constructive notice of a dangerous condition inherent in thepremises (see Keating v Nanuet Bd. ofEduc., 40 AD3d 706, 708 [2007]; Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 683 [2005]).
Owners established its entitlement to judgment as a matter of law by proof that it did nothave authority to supervise or control the manner in which the work was performed; it merelyconsented to the renovation of the bathroom without learning of the details of the renovation.Further, the alleged dangerous condition consisted only of the miter saw and its placement, andwas not inherently part of the premises. In fact, the miter saw was brought to the site by Montelloon the day of the accident and Owners thus had no notice of its presence on the site in any event.In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, Owners wasentitled to summary [*3]judgment dismissing the plaintiffs'causes of action sounding in violation of Labor Law § 200 and common-law negligenceinsofar as asserted against it (see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d at 683).
Rebar, on the other hand, failed to establish its prima facie entitlement to judgment as amatter of law since it failed to demonstrate that it did not have authority to supervise or controlthe manner in which the work was performed. Accordingly, the Supreme Court properly deniedthose branches Rebar's cross motion which were for summary judgment dismissing the causes ofaction sounding in violation of Labor Law § 200 and common-law negligence insofar asasserted against it.
Labor Law § 241 (6) applies to "[a]ll contractors and owners and their agents." Thatprovision imposes a nondelegable duty on the owner and general contractor to conform to itsrequirements (see Morris v PavariniConstr., 9 NY3d 47, 50 [2007]; Coleman v City of New York, 91 NY2d 821[1997]; Russin v Louis N. Picciano & Son, 54 NY2d at 318; see also, Abbatiello v Lancaster StudioAssoc., 3 NY3d 46, 51 [2004]). The applicability of Labor Law § 241 (6)encompasses lessees who fulfill the role of owner by contracting to have work performed. Rebaris thus considered an "owner" within the meaning of Labor Law § 241 (6) since it hiredMontello to perform the work (see e.g. Kwang Ho Kim v D & W Shin Realty Corp., 47AD3d 616 [2008]). However, titleholders are held liable together with lessees and/or otherpersons with interests in the property who contract to perform the work (see Copertino vWard, 100 AD2d 565, 567 [1984]). Accordingly, Owners and Rebar are both liable for anyviolation of Labor Law § 241 (6). Further, the Supreme Court properly found that thedefendants failed to establish their entitlement to judgment as a matter of law with respect to thealleged violation of 12 NYCRR 23-1.12 (c) (1) (see Haider v Davis, 35 AD3d 363, 364 [2006]; Sainato v Cityof Albany, 285 AD2d 708, 710 [2001]), and that there were triable issues of fact as towhether 12 NYCRR 23-1.8 (a) was violated (see Rapp v Zandri Constr. Corp., 165 AD2d639, 643 [1991]). Therefore, neither defendant was entitled to summary judgment dismissing thecause of action alleging a violation of Labor Law § 241 (6).
It is clear from this record that Owners' liability, if any, is purely vicarious pursuant to LaborLaw § 241 (6). Therefore, the Supreme Court should have granted that branch of Owners'motion which was for summary judgment dismissing Rebar's cross claim. However, Owners wasnot entitled to conditional summary judgment against Rebar and Montello for common-lawindemnification and/or contribution on the ground that the relative culpability, if any, of Rebarand Montello has not been determined (see Benedetto v Carrera Realty Corp., 32 AD3d 874 [1969];Perri v Gilbert Johnson Enters., Ltd., 14 AD3d at 685).
The appellants' remaining contentions are without merit. Rivera, J.P., Santucci, Eng andChambers, JJ., concur.