| Duarte v State of New York |
| 2008 NY Slip Op 09947 [57 AD3d 715] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Baltazar Duarte et al., Appellants, v State of New York et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Andrew D. Bing and Andrew B. Ayersof counsel), for respondents.
In an action to recover damages for personal injuries, etc., the claimants appeal from a judgment ofthe Court of Claims (Soto, J.), dated August 22, 2007, which, after a nonjury trial, is in favor of thedefendants and against them on the issue of liability, dismissing the claims.
Ordered that the judgment is affirmed, with costs.
The claimant Baltazar Duarte (hereinafter the claimant) was injured while working as an employeeof a painting company which contracted to paint the Kosciusko Bridge (hereinafter the bridge) in NewYork City. The bridge is owned by the defendant State of New York and maintained by the defendantNew York State Department of Transportation (hereinafter together the State defendants). Theclaimant sustained injuries while holding a pressurized painting hose which exploded, allegedly as aresult of a crack in the hose. The claimant, and his wife, suing derivatively, commenced this lawsuitagainst the State defendants, asserting claims predicated upon violations of Labor Law §§200, 240 and § 241 (6). At the conclusion of the trial, the claimants withdrew their claimsalleging violations of Labor Law §§ 240 and 241 (6). Thereafter, the court dismissed theremaining claims in the judgment appealed from.
The claimant's injury did not arise from a defective condition inherent on the bridge property, butrather, arose as a result of the allegedly defective "means" utilized by him to perform his work. Undersuch circumstances, "no liability will attach to the owner solely because [he or she] may have had noticeof the allegedly unsafe manner in which work was performed" (Dennis v City of New York,304 AD2d 611, 612 [2003]; see Comes v New York State Elec. & Gas Corp., 82 NY2d876, [*2]877 [1993]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 851 [2006]). Asexplained in this Court's recent opinion of Ortega v Puccia (57 AD3d 54, 61 [2008]): "[W]hena claim arises out of alleged defects or dangers in the methods or materials of the work, recoveryagainst the owner or general contractor cannot be had under Labor Law § 200 unless it is shownthat the party to be charged had the authority to supervise or control the performance of the work." Weagree with the Court of Claims that the evidence adduced at trial was insufficient to "demonstrate thatthe State [defendants] controlled the method and means of the work or exercised the requisitesupervisory control over the operation for a finding of liability under Labor Law § 200."Accordingly, the court properly awarded judgment in favor of the State defendants. Rivera, J.P.,Skelos, Santucci and Belen, JJ., concur.