| Ali v Richmond Indus. Corp. |
| 2009 NY Slip Op 01071 [59 AD3d 469] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Shalabi Ali et al., Respondents, v Richmond IndustrialCorp., Appellant, et al., Defendants. |
—[*1] Sacks and Sacks, LLP, New York, N.Y. (Scott N. Singer of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant RichmondIndustrial Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court,Richmond County (Maltese, J.), dated July 11, 2007, as denied those branches of its motionwhich were for summary judgment dismissing so much of the complaint as alleged violations ofLabor Law § 240 (1) and § 241 (6) insofar as asserted against it, and granted theplaintiffs' cross motion for summary judgment on the issue of liability on so much of thecomplaint as alleged a violation of Labor Law § 240 (1) insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the appellant's motion which was forsummary judgment dismissing so much of the complaint as alleged a violation of Labor Law§ 240 (1) insofar as asserted against it, and properly granted the plaintiffs' cross motion forsummary judgment on the issue of liability with respect to that alleged violation. The plaintiffsestablished their prima facie entitlement to judgment as a matter of law on the issue of liabilityon so much of the complaint as alleged a violation of Labor Law § 240 (1) by submittingdeposition testimony establishing that the crane the injured plaintiff was operating fell or tippedover due to improper maintenance (seeFitzsimmons v City of New York, 37 AD3d 655 [2007]; Cosban v New York CityTr. Auth., 227 AD2d 160, 161 [1996]). In opposition, the appellant failed to raise a triableissue of fact.[*2]
Contrary to the appellant's contention, its status as anout-of-possession landlord/owner does not shield it from liability under Labor Law § 240(1) or § 241 (6) since the record shows that there was a clear nexus between it and theinjured plaintiff (see Sanatass vConsolidated Inv. Co., Inc., 10 NY3d 333, 339-340 [2008]; Coleman v City of NewYork, 91 NY2d 821, 822 [1997]; Gordon v Eastern Ry. Supply, 82 NY2d 555, 560[1993]; Celestine v City of New York, 59 NY2d 938 [1983], affg 86 AD2d 592[1982]; cf. Abbatiello v LancasterStudio Assoc., 3 NY3d 46 [2004]). Further, there is no merit to the appellant'scontention that the injured plaintiff was engaged in manufacturing work at the time of theaccident or that the premises constituted a "factory" under Labor Law § 2 (9) (cf. Jockv Van Petty, 176 AD2d 6 [1992], affd 80 NY2d 965 [1992]). The appellant'sadditional contention that the injured plaintiff was merely engaged in postconstruction testing atthe time of the accident is not properly before this Court, since it was raised for the first time onappeal (see Mennis v Commet 380, Inc.,54 AD3d 641 [2008]).
The Supreme Court also properly denied that branch of the appellant's motion which was forsummary judgment dismissing so much of the complaint as alleged a violation of Labor Law§ 241 (6) predicated upon an alleged violation of Industrial Code §§ 23-8.1,23-8.2 and 23-8.5 (12 NYCRR 23-8.1, 23-8.2, 23-8.5). As with its opposition to the plaintiffs'cross motion with respect to the alleged violation of Labor Law § 240 (1), the appellantfailed to demonstrate that it was not an owner under the statute or that the injured plaintiff wasnot engaged in a protected activity. Further, the appellant failed to submit any evidenceestablishing that it did not violate the subject Industrial Code provisions. Since the appellantfailed to make a prima facie showing of entitlement to judgment as a matter of law, that branchof its motion was properly denied regardless of the sufficiency of the plaintiffs' opposition papers(see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Rivera, J.P., Angiolillo, Carni andMcCarthy, JJ., concur. [See 2007 NY Slip Op 32045(U).]