| Bridges v Wyandanch Community Dev. Corp. |
| 2009 NY Slip Op 07782 [66 AD3d 938] |
| October 27, 2009 |
| Appellate Division, Second Department |
| Barbara Bridges, Respondent, v Wyandanch CommunityDevelopment Corporation et al., Appellants. (Action No. 1.) Lula Johnson, Respondent, vWyandanch Community Development Corporation et al., Appellants. (Action No.2.) |
—[*1] Litchfield Cavo LLP, New York, N.Y. (Christopher A. McLaughlin of counsel), forappellant PDL, Inc. Kressel, Rothlein, Walsh & Roth, LLC, Massapequa, N.Y. (Stephen Kressel of counsel), forrespondent in action No. 1. P.M. Bernstein, P.C., Garden City, N.Y., for respondent in action No. 2.
In two related actions to recover damages for wrongful death and personal injuries, etc., thedefendants Wyandanch Community Development Corporation and Janice W. Mosley, asadministrator of the estate of James Wallace, appeal, as limited by their brief, from so much ofan order of the Supreme Court, Suffolk County (Farneti, J.), dated June 6, 2008, as denied thosebranches of their motions which were for summary judgment dismissing the complaints insofaras asserted against them in both actions, and the defendant PDL, Inc., separately appeals, aslimited by its brief, from so much of the same order as denied those branches of its cross motionswhich were for summary judgment dismissing the complaints insofar as asserted against it inboth actions.
Ordered that the order is affirmed, with one bill of costs to the plaintiffs payable by theappellants appearing separately and filing separate briefs.
As the owner of real property located at 88 Nicholls Street in Wyandanch (hereinafter thepremises), the defendant Wyandanch Community Development Corporation (hereinafterWCDC) contracted with the defendant PDL, Inc. (hereinafter PDL), to have PDL performcertain renovations to a house located on the premises (hereinafter the house). Prior to beginningthe renovations, James Wallace, the director of WCDC, turned off the supply of electrical powerto the house and instructed [*2]PDL to secure plywood boardsover the basement and first floor windows in order to deter theft. Thereafter, PDL subcontractedwith Oliver Bridges (hereinafter Bridges), the decedent of the plaintiff Barbara Bridges, to paintthe interior of the house. Bridges, in turn, hired Latonya Johnson (hereinafter Johnson), thedecedent of the plaintiff Lula Johnson, as an assistant. In order to illuminate the first floor of thehouse so that painting could be completed, PDL installed a gasoline-powered generator in thebasement of the house and connected it to the electrical circuit breaker in the house. Wallace wasaware that the generator was being used to supply electricity to the house. On August 7, 2003,several days after Bridges and Johnson began painting, they were discovered dead in the house,with the doors locked and the windows covered with plywood. The cause of death wasdetermined to be asphyxiation caused by carbon monoxide poisoning.
In two separate actions, the plaintiff Barbara Bridges and the plaintiff Lula Johnson assertedcauses of action to recover damages for wrongful death and the conscious pain and suffering oftheir respective decedents. After the Supreme Court directed the actions to be jointly tried,WCDC and Wallace moved, inter alia, for summary judgment dismissing both complaintsinsofar as asserted against them, and PDL cross-moved, among other things, for summaryjudgment dismissing both complaints insofar as asserted against it. In the order appealed from,the Supreme Court denied the motion and cross motion for summary judgment. We affirm theorder insofar as appealed from.
Where, as here, the plaintiffs' injuries arose not from the manner in which the work wasbeing performed but, rather, from an allegedly dangerous condition on the property, a propertyowner will be liable under a theory of common-law negligence, as codified by Labor Law§ 200, "when the owner created the dangerous condition causing an injury or when theowner failed to remedy a dangerous or defective condition of which he or she had actual orconstructive notice" (Chowdhury vRodriguez, 57 AD3d 121, 128 [2008]; see Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345,1349 [2003]). As the owner of the premises, WCDC failed to demonstrate that, as a matter oflaw, it did not have actual or constructive notice of the dangerous condition on the premises and,thus, it failed to establish its prima facie entitlement to judgment as a matter of law (see Algood v 2160-2164 Caton, 4AD3d 442 [2004]; cf. Markey vC.F.M.M. Owners Corp., 51 AD3d 734, 736-737 [2008]; Clarke v Brooklyn UnionGas Co., 297 AD2d 779 [2002]; Perez v City of New York, 168 AD2d 227 [1990]).Additionally, Wallace's administratrix failed to demonstrate that, as a matter of law, Wallace, asa director of WCDC, did not personally participate in the allegedly negligent act which createdthe dangerous condition and caused the death of the decedents (see Aguirre v Paul, 54 AD3d 302,304 [2008]; Greenway Plaza Off.Park-1 v Metro Constr. Servs., 4 AD3d 328, 329 [2004]; Bellinzoni v Seland,128 AD2d 580 [1987]; Clark v Pine Hill Homes, 112 AD2d 755 [1985]).
Similarly, PDL, as the general contractor, may be held liable in common-law negligence andunder Labor Law § 200 if it had control over the work site and actual or constructivenotice of the dangerous condition (seeVan Salisbury v Elliott-Lewis, 55 AD3d 725, 726 [2008]; Keating v Nanuet Bd. of Educ., 40AD3d 706 [2007]). Here, PDL, which installed the generator in the basement of theboarded-up house, failed to demonstrate that, as a matter of law, it did not have control over thework site or notice of the dangerous condition on the premises.
Accordingly, the Supreme Court properly denied the motions and cross motions forsummary judgment. Dillon, J.P., Florio, Belen and Roman, JJ., concur.