| Gomez v City of New York |
| 2008 NY Slip Op 08706 [56 AD3d 522] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Albert Gomez, Respondent, v City of New York et al.,Appellants, et al., Defendant. |
—[*1] Stephen R. Krawitz, LLC, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants City of New York, NewYork School Construction Authority, and United States Rebar appeal, as limited by their brief,from so much of an order of the Supreme Court, Kings County (Battaglia, J.), dated February 28,2007, as denied that branch of their motion which was for summary judgment dismissing thecomplaint insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the appellants' motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendants City of New York and New York School ConstructionAuthority, and substituting therefor a provision granting that branch of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff worked as a laborer for the construction of a new school on premises allegedlyowned by the defendants City of New York (hereinafter the City) and New York SchoolConstruction Authority (hereinafter SCA). He was employed by a nonparty contractor which wasperforming foundation and floor construction for the project. To construct the floors, concretewas poured onto wire mesh sheets which were laid out on a steel deck and tied to the deck or toother wire mesh sheets with wire ties. Allegedly, the defendant United States Rebar (hereinafterRebar) was retained to install the wire mesh sheets.
On the day of his accident, the plaintiff was moving concrete hoses to different locations onthe second floor as concrete was being poured. This task required him to walk on the wire meshsheets which had been laid out on the deck. According to the plaintiff, he sustained [*2]injuries when his foot became caught between two wire meshsheets which had been placed onto the deck but had not been tied down.
The plaintiff commenced this action against, among others, the City, SCA, and Rebar(hereinafter collectively the appellants), proceeding solely on a theory of common-lawnegligence. The appellants moved, inter alia, for summary judgment dismissing the complaintinsofar as asserted against them, and the Supreme Court denied their motion. We modify.
The Supreme Court should have granted those branches of the appellants' motion which werefor summary judgment dismissing the complaint insofar as asserted against the City and SCA. Tohold an owner liable under the common law for injuries arising from the manner in which workis performed at a work site, an owner must have had the authority to supervise or control thework performed at the site (see Ortega v Puccia, 57 AD3d 54 [2008]; Lazier v StricklandAve. Corp., 50 AD3d 641, 642 [2008]). In support of their motion, the appellants madea prima facie showing that the plaintiff's injuries arose from the manner in which work was beingperformed at the site and that the City and SCA did not have the authority to supervise or controlthe work being performed when the plaintiff was injured (see Lazier v Strickland Ave. Corp.,50 AD3d at 642; Vieira v Tishman Constr. Corp., 255 AD2d 235, 236 [1998]). Theplaintiff failed to raise a triable issue of fact in response to those showings (see generallyZuckerman v City of New York, 49 NY2d 557, 562-563 [1980]). Accordingly, the City andSCA, the alleged owners of the premises, were entitled to summary judgment dismissing thecomplaint insofar as asserted against them.
However, the Supreme Court properly denied that branch of the appellants' motion whichwas for summary judgment dismissing the complaint insofar as asserted against Rebar. Theappellants failed to demonstrate Rebar's entitlement to judgment as a matter of law byestablishing that its employees did not create an unreasonable risk of harm that was a proximatecause of the plaintiff's injuries (seeFarrington v Bovis Lend Lease LMB, Inc., 51 AD3d 624, 626 [2008]; Ragone v Spring Scaffolding, Inc., 46AD3d 652, 654-655 [2007]; Marano v Commander Elec., Inc., 12 AD3d 571, 572-573 [2004]).Thus, we need not consider the plaintiff's opposition.
The appellants' remaining contentions either are improperly raised for the first time on appealor need not be reached in light of our determination. Rivera, J.P., Miller, Angiolillo andChambers, JJ., concur.