| Cambizaca v New York City Tr. Auth. |
| 2008 NY Slip Op 09937 [57 AD3d 701] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Susan Cambizaca, Appellant, v New York City TransitAuthority, Respondent. |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C. (Shaub, Ahmuty, Citrin & Spratt, LLP,Lake Success, N.Y. [Christopher Simone and Deirdre E. Tracey], of counsel), forrespondent.
In an action to recover damages for wrongful death, etc., the plaintiff appeals from an order of theSupreme Court, Kings County (Hinds-Radix, J.), dated July 17, 2006, which granted the defendant'smotion for summary judgment dismissing the causes of action to recover damages based oncommon-law negligence and violation of Labor Law §§ 200 and 241 (6), and denied hercross motion for summary judgment on the issue of liability as to the cause of action to recoverdamages for violation of Labor Law § 241 (6).
Ordered that the order is affirmed, with costs.
The decedent was working for a company that had contracted with the defendant New York CityTransit Authority to perform work on a subway platform. The decedent was standing near anotherworker who was using an angle grinder on the subway platform. A portion of the angle grinder brokeoff and struck the decedent in the head. He died five days later. The plaintiff, individually and asadministratrix of the decedent's estate, brought four causes of action against the defendant to recoverdamages based on, among other things, common-law negligence, and violation of Labor Law§§ 200 and 241 (6).
Labor Law § 200 is a codification of the common-law duty of landowners and generalcontractors to provide workers with a reasonably safe place to work (see Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; Lombardi v Stout, 80 NY2d 290,294-295 [1992]). "[T]he duty [*2]to provide a safe place to work isnot breached when the injury arises out of a defect in the subcontractor's own plant, tools and methods,or through negligent acts of the subcontractor occurring as a detail of the work" (Persichilli vTriborough Bridge & Tunnel Auth., 16 NY2d 136, 145 [1965]).
Where, as here, a claim arises out of alleged defects or dangers arising from a subcontractor'smethods or materials, recovery against the owner or general contractor cannot be had unless it is shownthat the party to be charged had the authority to exercise supervisory control over the operation(see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). A defendant has theauthority to control the work for the purposes of Labor Law § 200 when that defendant bearsthe responsibility for the manner in which the work is performed (see Ortega v Puccia, 57AD3d 54 [2008]). In this regard "[t]he retention of the right to generally supervise the work, to stop thecontractor's work if a safety violation is noted, or to ensure compliance with safety regulations, does notamount to the [authority to] supervise and control . . . necessary to impose liability on anowner or general contractor pursuant to Labor Law § 200" (Dennis v City of New York,304 AD2d 611, 612 [2003]; see Warnitz v Liro Group, 254 AD2d 411, 411-412[1998]).
The Supreme Court properly granted that branch of the defendant's motion which was forsummary judgment dismissing the causes of action to recover damages for common-law negligence andviolation of Labor Law § 200. The defendant made a prima facie showing of its entitlement tosummary judgment, and the plaintiff failed to raise a triable issue of fact as to whether the defendant hadthe authority to exercise that degree of direction and control necessary to impose liability forcommon-law negligence or under Labor Law § 200 (see Dennis v City of New York,304 AD2d 611, 612 [2003]; Warnitz v Liro Group, 254 AD2d 411, 411-412 [1998]).
The Supreme Court properly granted those branches of the defendant's motion which were forsummary judgment dismissing the causes of action premised on Labor Law § 241 (6). Inresponse to the defendant's prima facie showing of its entitlement to summary judgment, the plaintifffailed to allege or demonstrate the applicability of any viable provision of the Industrial Code (see Conforti v Bovis Lend Lease LMB, Inc.,37 AD3d 235, 236 [2007]; Hassettv Celtic Holdings, 7 AD3d 364, 365 [2004]).
The plaintiff's remaining contentions are either academic or without merit. Skelos, J.P., Santucci,Dillon and Covello, JJ., concur.