| Monterroza v State Univ. Constr. Fund |
| 2008 NY Slip Op 09048 [56 AD3d 629] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Mario Monterroza, Appellant, v State UniversityConstruction Fund, Defendant and Third-Party Plaintiff-Respondent. Omni Contracting Co., Inc.,Third-Party Defendant-Respondent. |
—[*1] John P. Humphreys, Melville, N.Y. (David R. Holland of counsel), for defendant third-partyplaintiff-respondent. McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy ofcounsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated April20, 2007, as granted that branch of the defendant third-party plaintiff's motion which was forsummary judgment dismissing the complaint, granted the third-party defendant's motion forsummary judgment dismissing the third-party complaint, and denied his cross motion forsummary judgment on the issue of liability on the cause of action alleging a violation of LaborLaw § 240 (1).
Ordered that the appeal from so much of the order as granted the third-party defendant'smotion for summary judgment dismissing the third-party complaint is dismissed, as the plaintiffis not aggrieved by that portion of the order (see CPLR 5511); and it is further,[*2]
Ordered that the order is affirmed insofar as reviewed;and it is further,
Ordered that one bill of costs is awarded to the defendant third-party plaintiff and thethird-party defendant.
The plaintiff allegedly sustained personal injuries while working at a construction site whenhe fell onto a concrete platform as he attempted to get out of a ground-level dumpster that waswet with rain. As part of his duty to remove garbage, the plaintiff had been leveling out garbagein the dumpster before he fell. Contrary to the plaintiff's contention, the defendant made a primafacie showing of its entitlement to summary judgment dismissing the cause of action alleging aviolation of Labor Law § 240 (1). The plaintiff's injury is not attributable to the type ofelevation-related risk that Labor Law § 240 (1) was enacted to address (see Toefer vLong Is. R.R., 4 NY3d 399, 408-409 [2005]; Georgopulos v Gertz Plaza, Inc., 13AD3d 478 [2004]). In opposition to the defendant's motion, the plaintiff failed to raise a triableissue of fact. Moreover, in support of his cross motion for summary judgment on the issue ofliability on the cause of action alleging a violation of Labor Law § 240 (1), the plaintifffailed to establish, prima facie, that he was entitled to judgment as a matter of law. Accordingly,the Supreme Court correctly granted that branch of the defendant's motion which was forsummary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) and correctly denied the plaintiff's cross motion.
The Supreme Court properly granted that branch of the defendant's motion which was forsummary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6). The defendant met its prima facie burden by demonstrating that the dumpster at issue did notconstitute an elevated working surface within the meaning of 12 NYCRR 23-1.7 (d) and that theother Industrial Code provisions listed in the plaintiff's bill of particulars were not violated(see Hertel v Hueber-Breuer Constr. Co., Inc., 48 AD3d 1259 [2008]; Farrell v BlueCircle Cement, Inc., 13 AD3d 1178 [2004]; Lessard v Niagara Mohawk Power Corp.,277 AD2d 941 [2000]). In opposition, the plaintiff failed to raise a triable issue of fact.
The Supreme Court properly granted that branch of the defendant's motion which was forsummary judgment dismissing the causes of action alleging common-law negligence and aviolation of Labor Law § 200. The accident here stems not from "a dangerous condition onthe premises," but "from the manner in which the work was being performed" (Keating vNanuet Bd. of Educ., 40 AD3d 706, 708 [2007]). To be held liable under Labor Law §200 and for common-law negligence arising from the manner in which work is performed at awork site, a general contractor or owner must have "authority to supervise or control theperformance of the work" (Ortega v Puccia, 57 AD3d 54, 63 [2008]; see Chowdhury v Rodriguez, 57 AD3d 121 [2008]). In opposition to the defendant's prima facie showing of entitlement to summaryjudgment dismissing these causes of action, the plaintiff failed to raise a triable issue of fact as towhether the defendant had authority to supervise or control the performance of the plaintiff'swork (see Toefer v Long Is. R.R., 308 AD2d 579, 581 [2003], affd 4 NY3d 399[2005]; Charles v City of New York, 227 AD2d 429, 430 [1996]; McCague v WalshConstr., 225 AD2d 530 [1996]).
In light of the foregoing, the parties' remaining contentions have been rendered academic.Rivera, J.P., Lifson, Covello and Balkin, JJ., concur.