| Mitthauer v T. Moriarty & Son, Inc. |
| 2010 NY Slip Op 00116 [69 AD3d 588] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Thomas Mitthauer et al., Respondents, v T. Moriarty &Son, Inc., Appellant. |
—[*1] Siler & Ingber, LLP, Mineola, N.Y. (Robert M. Brinen of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limitedby its notice of appeal and brief, from so much of an order of the Supreme Court, Kings County(Lewis, J.), entered July 20, 2009, as denied that branch of its motion which was for summaryjudgment dismissing the common-law negligence and Labor Law § 200 causes of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was for summary judgment dismissing the common-lawnegligence and Labor Law § 200 causes of action is granted.
On June 14, 2006, the injured plaintiff, Thomas Mitthauer (hereinafter Mitthauer), wasworking as a journeyman electrician for a subcontractor on a parking garage construction projectat the John F. Kennedy International Airport. He allegedly was injured when he fell to theground upon taking his first step exiting a portable toilet located on the construction site. Thedefendant was the general contractor on the project. Mitthauer and his wife, suing derivatively,commenced this action against the defendant alleging common-law negligence, violations ofLabor Law §§ 200 and 241, and violations of rule 23 of the Industrial Code (12NYCRR 23-1.1 et seq.). The defendant moved for summary judgment dismissing thecomplaint, and the plaintiffs cross-moved for summary judgment on the complaint. In an orderentered July 20, 2009, the Supreme Court denied both the motion and the cross motion. Thedefendant appeals from so much of the order as denied that branch of its motion which was forsummary judgment dismissing the common-law negligence and Labor Law § 200 causesof action. We reverse the order insofar as appealed from.
When asked at his deposition what caused his fall as he stepped from the portable toilet,Mitthauer testified: "I couldn't honestly tell you. I was mystified myself." Mitthauer also testifiedthat, while the portable toilet was wobbly or "helter skelter" on some days, the toilet did notwobble when he exited it on the date of the accident. Mitthauer described the surface on theground within a five-foot radius of his fall as unlevel, with "hills" and "valleys" caused byvehicles.
The defendant established its prima facie entitlement to judgment as a matter of law [*2]by demonstrating, through the submission of Mitthauer's depositiontestimony, that he was unable to identify a dangerous or defective condition actually causing hisfall (see Kaplan v Great Neck Donuts,Inc., 68 AD3d 931 [2009]; Denicola v Costello, 44 AD3d 990 [2007]; Rodriguez v Cafaro, 17 AD3d 658[2005]). In response to the defendant's showing, the plaintiffs failed to raise a triable issue offact. Proof of general ground conditions within a five-foot radius of the accident is irrelevant,and, thus, insufficient to raise a triable issue of fact, in the absence of evidence that the sameconditions existed at the specific location where Mitthauer stepped (see Pinto v Metropolitan Opera, 61AD3d 949 [2009]). The reply affidavit submitted by the plaintiffs in further support of thecross-motion, in which Mitthauer claimed, inter alia, that the portable toilet was unsteady andimproperly placed, contradicted the earlier deposition testimony that it was steady at the time ofthe accident, and merely raised feigned issues of fact designed to avoid the consequences of theearlier deposition (see DeNicola v Costello, 44 AD3d at 990). The reply affidavit alsofailed to address the condition of the ground at the specific area where Mitthauer's fall occurred(see Pinto v Metropolitan Opera, 61 AD3d at 949).
The plaintiffs' remaining contentions are without merit. Dillon, J.P., Florio, Hall and Sgroi,JJ., concur.