| Fuchs v Austin Mall Assoc., LLC |
| 2009 NY Slip Op 03863 [62 AD3d 746] |
| May 12, 2009 |
| Appellate Division, Second Department |
| Michele Fuchs, Appellant, v Austin Mall Associates, LLC,et al., Respondents, et al., Defendants. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harry Steinberg and Steven B.Prystowsky of counsel), for respondents.
In an action to recover damages for wrongful death and conscious pain and suffering, etc.,the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court,Queens County (Satterfield, J.), dated June 6, 2007, as granted those branches of the motion ofthe defendants Austin Mall Associates, LLC, Joel Mandel, JSM Management Corp., AronoffFamily Limited Partnership, Rosalyn Crane, Annette Mord, Herbert Aronoff, Joel Aronoff, andthe Estate of Louis Aronoff which were for summary judgment dismissing the causes of actionpursuant to Labor Law § 241 (6) and § 200 and to recover damages forcommon-law negligence insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the motion of the defendants Austin Mall Associates, LLC, Joel Mandel, JSMManagement Corp., Aronoff Family Limited Partnership, Rosalyn Crane, Annette Mord, HerbertAronoff, Joel Aronoff, and the Estate of Louis Aronoff which were for summary judgmentdismissing the causes of action pursuant to Labor Law § 241 (6) and § 200 and torecover damages for common-law negligence insofar as asserted against them are denied.
The plaintiff's decedent (hereinafter the decedent) was electrocuted while replacing the [*2]ceiling of an elevator, located on property owned and/or managedby the defendants Austin Mall Associates, LLC, Joel Mandel, JSM Management Corp., AronoffFamily Limited Partnership, Rosalyn Crane, Annette Mord, Herbert Aronoff, Joel Aronoff, andthe Estate of Louis Aronoff (hereinafter collectively Austin). The decedent's work involvedremoving or dismantling the existing elevator ceiling and disconnecting the wiring for the ceilinglighting fixtures from a junction box located on the elevator cab roof; installing a new,prefabricated ceiling, which contained new lighting fixtures; and connecting the wiring for thenew lighting fixtures to the alternating current in the junction box. This action was commencedby the decedent's representative against several defendants to recover damages for the wrongfuldeath and conscious pain and suffering sustained by the decedent, alleging causes of action,among others, pursuant to Labor Law §§ 200, 240 and § 241 (6), andcommon-law negligence. In the order appealed from, the Supreme Court granted Austin's motionfor summary judgment dismissing the complaint insofar as asserted against it. We reverse theorder insofar as appealed from.
Contrary to Austin's contention, the work the decedent was engaged in at the time of theaccident constituted "alteration" and therefore was within the scope of construction for purposesof Labor Law § 241 (6) (seeSanatass v Consolidated Inv. Co., Inc., 10 NY3d 333, 337 [2008]; Joblon v Solow,91 NY2d 457, 466 [1998]; cf.Irizarry v State of New York, 35 AD3d 665, 666 [2006]). Moreover, the plaintiff'sfailure to assert a specific, applicable provision of the Industrial Code other than in heraffirmation in opposition to the defendants' summary judgment motion was not fatal to her LaborLaw § 241 (6) cause of action (see Dowd v City of New York, 40 AD3d 908, 911 [2007];Latino v Nolan & Taylor-Howe Funeral Home, 300 AD2d 631, 633-634 [2002];Kelleir v Supreme Indus. Park, 293 AD2d 513, 513-514 [2002]; Pasquarello vCiticorp/Quotron, 251 AD2d 477 [1998]). Accordingly, the Supreme Court erred in grantingthat branch of Austin's motion which was for summary judgment dismissing the Labor Law§ 241 (6) cause of action insofar as asserted against it.
Labor Law § 200 is a codification of the common-law duty of an owner or generalcontractor to provide workers with a safe place to work (see Comes v New York State Elec.& Gas Corp., 82 NY2d 876, 877 [1993]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 850 [2006]).With respect to Austin, the plaintiff's theory of liability is that it was aware of the existence ofenergized electrical circuits in the area where the decedent was working. To establish liability forinjuries resulting from a dangerous condition on the premises, the plaintiff must demonstrate thatthe owner or manager had control over the work site and actual or constructive notice of thedangerous condition (see Payne v 100Motor Parkway Assoc., LLC, 45 AD3d 550, 553 [2007]; Keating v Nanuet Bd. of Educ., 40AD3d 706, 708 [2007]).
Here, in response to Austin's demonstration of its prima facie entitlement to judgment as amatter of law, the plaintiff raised a triable issue of fact as to whether Austin had notice of thedangerous condition that caused the accident. Accordingly, the Supreme Court erred in grantingthat branch of Austin's motion which was for summary judgment dismissing the causes of actionto recover damages pursuant to Labor Law § 200 and for common-law negligence insofaras asserted against it. Fisher, J.P., Angiolillo, Balkin and Belen, JJ., concur. [See 2007NY Slip Op 31903(U).]