| Kretowski v Braender Condominium |
| 2008 NY Slip Op 10591 [57 AD3d 950] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Stanislaw Kretowski, Respondent-Appellant, v BraenderCondominium et al., Respondents, and Brend Renovation Corporation, Appellant-Respondent.(And a Third-Party Action.) |
—[*1] Samuel J. Lurie, New York, N.Y. (Dennis A. Breen of counsel), for respondent-appellant. Thomas D. Hughes, Richard C. Rubinstein, and David D. Hess, New York, N.Y., forrespondents.
In an action to recover damages for personal injuries, the defendant Brend RenovationCorporation appeals, as limited by its brief, from so much of an order of the Supreme Court,Kings County (Saitta, J.), dated October 4, 2007, as denied its cross motion for summaryjudgment dismissing the causes of action pursuant to Labor Law §§ 200, 240 (1) and§ 241 (6), and alleging common-law negligence insofar as asserted against it, and grantedthe motion of the defendants Braender Condominium and Rudd Realty Management Corp. forsummary judgment on their cross claim for contractual indemnification, and the plaintiffcross-appeals from so much of the same order as denied his cross motion for summary judgmenton the issue of liability on his cause of action pursuant to Labor Law § 240 (1).
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthe plaintiff's cross motion for summary judgment on the issue of liability on his cause of actionpursuant to Labor Law § 240 (1) and substituting therefor a provision granting the cross[*2]motion, and (2) by deleting the provision thereof denying thatbranch of the cross motion of the defendant Brend Renovation Corporation which was forsummary judgment dismissing the Labor Law § 241 (6) cause of action insofar as assertedagainst it to the extent it is based on a violation of 12 NYCRR 23-6.3 (a) and substitutingtherefor a provision granting that branch of the cross motion; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
The plaintiff Stanislaw Kretowski was working as a construction helper at a building ownedby Braender Condominium (hereinafter Braender) and managed by Rudd Realty ManagementCorp. (hereinafter Rudd). He allegedly was injured when a brick fell from a pallet being hoistedto the roof of the building. He commenced this action against, among others, Braender and BrendRenovation Corporation (hereinafter Brend), a contractor performing construction on thepremises, alleging violations of Labor Law §§ 240, 241 and 200, as well ascommon-law negligence.
To prevail on a claim under Labor Law § 240 (1), a plaintiff must prove that the statutewas violated and that such violation was a proximate cause of the resulting injuries (see Blakev Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]). Here, the plaintiffestablished, prima facie, that the defendants were subject to liability under Labor Law §240 (1) based on his deposition testimony that a brick fell on him while it was being hoisted tothe roof (see Zervos v City of New York, 8 AD3d 477 [2004]). In opposition, thedefendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d320 [1986]; Hamilton v Kushnir Realty Co., 51 AD3d 864 [2008]).
In order to establish a violation of Labor Law § 241 (6), a plaintiff must establish theviolation of an Industrial Code provision which sets forth specific safety standards and isapplicable to the circumstances of the accident (see Ross v Curtis-Palmer Hydro-Elec. Co.,81 NY2d 494, 502-505 [1993]; Meng Sing Chang v Homewell Owner's Corp., 38AD3d 625, 627 [2007]). Here, the plaintiff's cause of action pursuant to Labor Law § 241(6) is premised on violations of 12 NYCRR 23-6.1 (d), which provides that all loads suspendedon hoisting equipment "shall be securely slung and properly balanced before they are set inmotion" and 12 NYCRR 23-6.3 (a), which provides that material platform or bucket hoists "shallbe designed by a professional engineer licensed to practice in the State of New York."
Brend established its prima facie entitlement to judgment as a matter of law with respect tothe Labor Law § 241 (6) cause of action. In opposition, the affidavit of the plaintiff's expertwas speculative and conclusory and thus was insufficient to defeat a motion for summaryjudgment (see Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]; Sabessar vPresto Sales & Serv., Inc., 45 AD3d 829, 831 [2007]; Ioffe v Hampshire House Apt.Corp., 21 AD3d 930 [2005]; Rochford v City of Yonkers, 12 AD3d 433 [2004]).Nonetheless, despite the insufficiency of the expert's affidavit, the plaintiff also testified at hisdeposition that he was injured when a brick fell off the pallet which was being hoisted to the roofof the building. This raises "an issue of fact whether a violation of [12 NYCRR 23-6.1 (d)] was aproximate cause of plaintiff's injury" (see Rissel v Nornew Energy Supply, 281 AD2d880 [2001]; Cruci v General Elec. Co., 33 AD3d 838, 839 [2006]). However, the plaintifffailed to raise a triable issue of fact with respect to the alleged violation of 12 NYCRR 23-6.3 (a)since he failed to set forth any evidence that the hoisting equipment was not designed by aprofessional engineer.
Labor Law § 200 is a codification of the common-law duty imposed upon an owner orgeneral contractor to provide construction site workers with a safe place to work (see Ortegav Puccia, 57 AD3d 54 [2008]; Reinoso v Ornstein Layton Mgt., Inc., 19 AD3d 678,679 [2005]). For liability to attach, the defendant must have authority to [*3]exercise supervision and control over the work at the site (seeLombardi v Stout, 80 NY2d 290 [1992]; Gallello v MARJ Distribs., Inc., 50 AD3d734 [2008]). Here, Braender and Rudd established their prima facie entitlement to judgment as amatter of law in connection with the Labor Law § 200 cause of action by showing that theydid not have authority to exercise supervision and control over the work (id.; seeCapolino v Judlau Contr., Inc., 46 AD3d 733 [2007]). In opposition, the plaintiff failed toraise a triable issue of fact.
The Supreme Court properly granted the motion of Braender and Rudd for summaryjudgment on their cross claim for contractual indemnification against Brend (cf. Bahrman vHoltsville Fire Dist., 270 AD2d 438, 439 [2000]). Rivera, J.P., Angiolillo, Dickerson andChambers, JJ., concur.