| Barillaro v Beechwood RB Shorehaven, LLC |
| 2010 NY Slip Op 00085 [69 AD3d 543] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Joseph Barillaro et al., Appellants, v Beechwood RBShorehaven, LLC, Respondent. (And a Third-Party Action.) |
—[*1] O'Connor Redd, LLP, White Plains, N.Y. (Amy L. Fenno of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Dollard, J.), enteredDecember 5, 2008, as denied that branch of their motion which was for summary judgment onthe issue of liability on their Labor Law § 240 (1) cause of action, and granted thedefendant's cross motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the defendant's cross motion which were for summary judgment dismissing theLabor Law § 200 and common-law negligence causes of action, and substituting therefor aprovision denying those branches of the defendant's cross motion; as so modified, the order isaffirmed insofar as appealed from, with costs to the plaintiffs.
The plaintiff Joseph Barillaro, a plumber's helper, allegedly was injured while working onthe construction of a residential development owned by the defendant. On the day he wasinjured, he was shoveling fill to cover pipes running through a 1½ to 2 feet-deep trenchwhen the ground beneath his feet collapsed. As he fell, he struck his eye on an uncapped rebar (asteel bar used in reinforced concrete) protruding from the foundation next to which the trenchran. He commenced the instant action against the defendant, asserting, inter alia, causes of actionpursuant to Labor Law §§ 200, 240 (1), and § 241 (6), and to recoverdamages for common-law negligence.
" 'Labor Law § 240 (1) was designed to prevent those types of accidents in which the[safety devices enumerated in the statute] proved inadequate to shield the injured worker fromharm directly flowing from the application of the force of gravity to an object or person' "(Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501[1993] [emphasis omitted]). In this case, the defendant made a prima facie showing that theplaintiff was not exposed to any risk that the safety devices referenced in Labor Law § 240(1) would have protected against (seeWynne v B. Anthony Constr. Corp., 53 AD3d 654, 655 [2008]). In response, theplaintiffs failed to raise a triable issue of fact. [*2]Accordingly,the Supreme Court properly granted that branch of the defendant's cross motion which was forsummary judgment dismissing the cause of action under Labor Law § 240 (1), and, sincethe plaintiffs never met their burden, the Supreme Court properly denied that branch of theplaintiffs' motion which was for summary judgment on the issue of liability on that cause ofaction.
Furthermore, the defendant made a prima facie showing of entitlement to judgment as amatter of law with respect to the plaintiffs' Labor Law § 241 (6) cause of action bydemonstrating that 12 NYCRR 23-1.7 (b) (1), which is the only Industrial Code provision uponwhich the plaintiffs rely in their brief, is inapplicable to the facts of this case. That sectionprovides, inter alia, that "[e]very hazardous opening into which a person may step or fall shall beguarded by a substantial cover fastened in place or by a safety railing" (12 NYCRR 23-1.7 [b][1] [i]). Although this section is sufficiently specific to support a cause of action under LaborLaw § 241 (6) (see Scarso v M.G.Gen. Constr. Corp., 16 AD3d 660, 661), a 1½ to 2 feet-deep trench is not ahazardous opening within the meaning of 12 NYCRR 23-1.7 (b) (1) (see Rice v Board ofEduc. of City of N.Y., 302 AD2d 578, 579 [2003]; Alvia v Teman Elec. Contr., 287AD2d 421, 422-423 [2001]). In opposition, the plaintiffs failed to raise a triable issue of fact.Accordingly, the Supreme Court properly granted that branch of the defendant's cross motionwhich was for summary judgment dismissing this cause of action as well.
However, the Supreme Court erred in granting those branches of the defendant's crossmotion which were for summary judgment dismissing the plaintiffs' Labor Law § 200 andcommon-law negligence causes of action. In the Supreme Court, in support of these branches ofits cross motion, the defendant focused exclusively upon its alleged lack of supervision of, orcontrol over, the injured plaintiff's work. That argument is relevant where the claimed injuryarises from the manner in which the work is performed (see Ortega v Puccia, 57 AD3d 54, 60-63 [2008]). Where, as here,the injury arises from an allegedly defective or dangerous condition on the premises, however,such as the uncapped rebar in this case, a property owner such as the defendant will be liableunder a theory of common-law negligence, as codified by Labor Law § 200, when theowner created the complained-of condition, or when the owner failed to remedy a dangerous ordefective condition of which it had actual or constructive notice (see Bridges v Wyandanch CommunityDev. Corp., 66 AD3d 938 [2009]; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763, 764[2009]). Since the defendant failed to address this issue, it did not meet its prima facie burdenwith respect to those branches of its motion seeking to dismiss the plaintiffs' common-lawnegligence and Labor Law § 200 causes of action, and they should not have beendismissed (see Colon v Bet Torah, Inc.,66 AD3d 731 [2009]; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d at764-765). Rivera, J.P., Dillon, Miller and Roman, JJ., concur.