| Settimo v City of New York |
| 2009 NY Slip Op 03152 [61 AD3d 840] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Pietro Settimo, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andSusan Choi-Hausman of counsel), for respondent City of New York. Mound Cotton Wollan & Greengrass, New York, N.Y. (Antoinette L. Banks, Todd A. Bakal,and David W. Kenna of counsel), for respondents New York City Transit Authority and StatenIsland Rapid Transit Operating Authority.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Richmond County (Aliotta, J.), dated August 30, 2007, which granted themotion of the defendant City of New York for summary judgment dismissing the complaintinsofar as asserted against it, and granted the separate motion of the defendants New York CityTransit Authority and Staten Island Rapid Transit Operating Authority for summary judgmentdismissing the complaint insofar as asserted against them, and (2) a judgment of the same courtentered November 16, 2007, which, upon the order, is in favor of the defendants and against himdismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.[*2]
The appeal from the intermediate order must bedismissed because the right of direct appeal therefrom terminated with the entry of judgment inthe action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on theappeal from the order are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
The plaintiff allegedly was injured when, in the course of his employment at a constructionsite, he slipped and fell down a slope abutting certain railroad tracks, when a tree stump that heused to balance himself gave way. The Supreme Court correctly granted the defendants' separatemotions for summary judgment dismissing the complaint. The defendants demonstrated theirprima facie entitlement to judgment as a matter of law dismissing the cause of action pursuant toLabor Law § 240 (1) by establishing that the accident did not involve an elevation-relatedrisk (see Georgopulos v Gertz Plaza,Inc., 13 AD3d 478 [2004]; Bond v York Hunter Constr., 270 AD2d 112 [2000],affd 95 NY2d 883 [2000]; Cataudella v Kings Bay Hous. Section II, 259 AD2d652 [1999]; Heizman v Long Is. Light. Co., 251 AD2d 289 [1998]). The defendants alsomade a prima facie showing of entitlement to judgment as a matter of law dismissing the causeof action pursuant to Labor Law § 241 (6) by demonstrating that the provisions of theIndustrial Code upon which the plaintiff relies do not apply to the facts on which his claim isbased (see Scarso v M.G. Gen. Constr.Corp., 16 AD3d 660, 661 [2005]; Magnuson v Syosset Community Hosp., 283AD2d 404 [2001]). In opposition, the plaintiff failed to raise a triable issue of fact with respect tothe defendants' liability pursuant to either of these provisions of the Labor Law.
Further, summary judgment was properly awarded to the defendants New York City TransitAuthority (hereinafter NYCTA) and Staten Island Rapid Transit Operating Authority(hereinafter SIRTOA), dismissing the causes of action to recover damages based uponcommon-law negligence and alleging a violation of Labor Law § 200 insofar as assertedagainst them. The plaintiff's allegations against NYCTA and SIRTOA were premised on adangerous condition at the work site, namely, an unsecured tree stump. There was no evidencethat NYCTA and SIRTOA had both control over the work site and actual or constructive noticeof the dangerous condition, as they must in order for liability to attach under these circumstances(see Ortega v Puccia, 57 AD3d54 [2008]; Nasuro v PI Assoc.,LLC, 49 AD3d 829 [2008]; Keating v Nanuet Bd. of Educ., 40 AD3d 706 [2007]). Therefore,NYCTA and SIRTOA met their burden of demonstrating their entitlement to judgment as amatter of law. In opposition, the plaintiff again failed to raise a triable issue of fact. Thespeculative and conclusory assertions proffered by the plaintiff's experts were insufficient todefeat NYCTA's and SIRTOA's entitlement to summary judgment (see Amatulli v DelhiConstr. Corp., 77 NY2d 525 [1991]; Hartman v Mountain Val. Brew Pub, 301 AD2d570 [2003]; Leggio v Gearhart, 294 AD2d 543 [2002]).
The plaintiff's remaining contention is without merit. Mastro, J.P., Dillon, Leventhal andChambers, JJ., concur. [See 16 Misc 3d 1133(A), 2007 NY Slip Op 51681(U).]