| McFadden v Lee |
| 2009 NY Slip Op 04209 [62 AD3d 966] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Paul McFadden, Appellant, v Boh S. Lee et al.,Respondents. |
—[*1] Huenke & Rodriguez (Anita Nissan Yehuda, P.C., Roslyn Heights, N.Y., of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Grays, J.), entered May29, 2008, as granted that branch of the defendants' motion which was for summary judgmentdismissing the causes of action alleging common-law negligence and a violation of Labor Law§ 200.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2004 the plaintiff, a self-employed painter, performed certain interior painting andwallpapering for the defendants at their one-family home in Port Washington. Thereafter, at therequest of the defendant Jennifer R. Lee (hereinafter Mrs. Lee), the plaintiff agreed to paint theexterior of the defendants' home. During the course of the exterior painting project, the plaintiffallegedly was injured when he fell from an aluminum extension ladder. According to theplaintiff, the defendants owned the ladder and Mrs. Lee gave him permission to use it, but atsome point she expressed concern that the ladder was damaging the aluminum siding of thedefendants' house immediately above a window. In response, the plaintiff decided to position thetop of the ladder underneath the aluminum base of the window. While the plaintiff was standingon the ladder in that position, the ladder allegedly slipped out from under him, causing him tofall to the ground and sustain injuries.
The plaintiff commenced this action against the defendants alleging common-law negligenceand violations of Labor Law §§ 200, 240 (1) and § 241 (6). After thecompletion of discovery, the defendants moved for summary judgment dismissing the complaint.The Supreme Court granted the motion. The plaintiff appeals from so much of the order asgranted those branches of the defendants' motion which were for summary judgment dismissingthe common-law negligence and Labor Law § 200 causes of action. We affirm.[*2]
Labor Law § 200 is a codification of thecommon-law duty of an owner or general contractor to provide workers with a safe place towork (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Lombardi vStout, 80 NY2d 290, 294 [1992]; Kretowski v Braender Condominium, 57 AD3d 950, 952 [2008];Chowdhury v Rodriguez, 57 AD3d121, 127-128 [2008]; Ortega vPuccia, 57 AD3d 54, 60-61 [2008]). "[A]n implicit precondition to this duty is that theparty to be charged with that obligation 'have the authority to control the activity bringingabout the injury to enable it to avoid or correct an unsafe condition' " (Rizzuto v L.A.Wenger Contr. Co., 91 NY2d at 352, quoting Russin v Louis N. Picciano & Son, 54NY2d 311, 317 [1981]).
The plaintiff concedes that the ladder provided to him was neither defective nor inadequate.Accordingly, under the circumstances, the ladder is not "part of the overall condition of thepremises" (Chowdhury v Rodriguez, 57 AD3d at 129), and the defendants' liability doesnot pivot on their actual or constructive notice of any dangerous or defective condition of theladder (cf. Chowdhury v Rodriguez, 57 AD3d at 130). Rather, the plaintiff was injuredas a result of the manner in which he performed his work, and not by any dangerous or defectivecondition on the premises, and thus recovery against the defendants under Labor Law §200 cannot be had "unless it is shown that the party to be charged had the authority to superviseor control the performance of the work" (Ortega v Puccia, 57 AD3d at 61). Evidence ofmere general supervisory authority to oversee the progress of the work, to inspect the workproduct, and/or to make aesthetic decisions is insufficient to impose liability under Labor Law§ 200 (id. at 62; seeOrellana v Dutcher Ave. Bldrs., Inc., 58 AD3d 612, 614 [2009]; Affri v Basch, 45 AD3d 615, 616[2007]). Here, the defendants established their prima facie entitlement to judgment as a matter oflaw by demonstrating that they did not have authority to exercise supervision or control over theperformance of the plaintiff's work (see Kretowski v Braender Condominium, 57 AD3dat 952; Ortega v Puccia, 57 AD3d at 62-63). In opposition, the plaintiff failed to raise atriable issue of fact since, contrary to his contention, Mrs. Lee's expression of concern aboutpotential damage to the aluminum siding did not constitute her exercise or assumption ofauthority to supervise the plaintiff's work.
For the same reasons, the Supreme Court properly granted that branch of the defendants'motion which was for summary judgment dismissing the common-law negligence claim (seeLombardi v Stout, 80 NY2d at 295).
The plaintiff's remaining contentions either are without merit or have been renderedacademic by our determination. Rivera, J.P., Dillon, Belen and Hall, JJ., concur.