| Enriquez v B & D Dev., Inc. |
| 2009 NY Slip Op 04855 [63 AD3d 780] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Juan-Carlos Enriquez, Appellant, v B & D Development,Inc., et al., Respondents. |
—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Kimberly A. Wolf 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 (Satterfield, J.), enteredJuly 29, 2008, as granted those branches of the defendants' motion which were for summaryjudgment dismissing the plaintiff's causes of action sounding in common law negligence andviolations of Labor Law §§ 200 and 241 (6).
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of thedefendants' motion which was for summary judgment dismissing his causes of action allegingcommon-law negligence and violations of Labor Law § 200. The defendants establishedtheir prima facie entitlement to judgment as a matter of law (see Alvarez v ProspectHosp., 68 NY2d 320, 325 [1986]) by annexing the pleadings and the deposition testimony ofthe plaintiff to their attorney's affirmation (see Olan v Farrell Lines, 64 NY2d 1092,1093 [1985]). This evidence demonstrated that the plaintiff's accident allegedly arose from themeans and methods of his work, that the work was directed and controlled exclusively by hisfellow employee, and that the defendants exercised no supervisory control over his work (seeComes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Lombardi vStout, 80 NY2d 290, 295 [1992]; Kwang Ho Kim v D & W Shin Realty Corp., 47AD3d 616, 620 [2008]; Ragone vSpring Scaffolding, Inc., 46 AD3d 652 [2007]). In opposition to that branch of themotion, the plaintiff failed to present evidence sufficient to raise a triable issue of fact, since amere showing that one or more of the defendants had general supervisory authority over theproject is insufficient for this purpose (see McLeod v Corporation of Presiding Bishop of Church of Jesus Christ ofLatter Day Sts., 41 AD3d 796, 798 [2007]; Haider v Davis, 35 AD3d 363, 364 [2006]; Ferrero v Best Modular Homes, Inc.,33 AD3d 847, 851 [2006]; Parisi vLoewen Dev. of Wappinger Falls, 5 AD3d 648 [2004]).
Furthermore, the defendants established their prima facie entitlement to judgment as a matterof law with respect to the plaintiff's claim that the defendants violated Labor Law § 241(6). The plaintiff's reliance upon 12 NYCRR 23-1.7 (d) in this regard is unavailing, since hisaccident occurred in an open area of a construction site, a location to which that regulation doesnot apply (see [*2]Hertel v Hueber-Breuer Constr. Co., Inc., 48 AD3d 1259,1260 [2008]; Porazzo v City of NewYork, 39 AD3d 731 [2007]; Roberts v Worth Constr., Inc., 21 AD3d 1074, 1077 [2005];Morra v White, 276 AD2d 536, 537 [2000]; Rose v A. Servidone, Inc., 268AD2d 516, 517-518 [2000]). Likewise, 12 NYCRR 23-1.7 (e) (2) is inapplicable to the accident,as described by the plaintiff. In any event, the alleged obstructions on the ground in his workarea were an integral part of the work that he and his coworkers were performing (see Furino v P & O Ports, 24 AD3d502, 504 [2005]; Salinas v BarneySkanska Constr. Co., 2 AD3d 619, 622 [2003]; Dalanna v City of New York,308 AD2d 400, 401 [2003]; Alvia v Teman Elec. Contr., 287 AD2d 421, 423 [2001];Bond v York Hunter Constr., 270 AD2d 112, 113 [2000], affd 95 NY2d 883[2000]). Mastro, J.P., Dillon, Santucci and Balkin, JJ., concur.