| Mugavero v Windows By Hart, Inc. |
| 2010 NY Slip Op 00236 [69 AD3d 694] |
| January 12, 2010 |
| Appellate Division, Second Department |
| Vincent Mugavero et al., Respondents, v Windows ByHart, Inc., Respondent-Appellant, Jason C. Leonard, Inc., Appellant-Respondent, and BeckerContracting, Limited, et al., Respondents. |
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In an action to recover damages for personal injuries, etc., the defendant Jason C. Leonard,Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, NassauCounty (Brandveen, J.), entered April 1, 2008, as denied those branches of its motion whichwere for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst it and on its cross claim for common-law indemnification against the defendantsWindows By Hart, Inc., Becker Contracting Limited, and Kenneth Becker, individually anddoing business as Becker Home Improvement, and the defendant Windows By Hart, Inc.,cross-appeals, as limited by its brief, from so much of the same order as denied its cross motionfor summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the motion of the defendant Jason C. Leonard, Inc., which was for summaryjudgment dismissing so much of the complaint as alleged a violation of Labor Law § 200insofar as asserted against it, and substituting therefor a provision denying that branch of themotion as academic, and (2) by deleting the provision thereof denying that branch of the motionof the defendant Jason C. Leonard, Inc., which was for summary judgment dismissing so muchof the complaint as alleged common-law negligence, and substituting therefor a provisiongranting that branch of the motion; as so modified, the order is affirmed insofar as appealed andcross-appealed from, with costs to the plaintiffs payable by the defendants Windows By Hart,Inc., and Jason C. Leonard, Inc.
The plaintiffs voluntarily withdrew so much of the complaint as alleged a violation of LaborLaw § 200 against the defendant Jason C. Leonard, Inc. (hereinafter Leonard), in theiropposition to Leonard's motion for summary judgment. Accordingly, that branch of Leonard'smotion which was for [*2]summary judgment dismissing somuch of the complaint as alleged a violation of Labor Law § 200 against it should havebeen denied as academic.
Furthermore, the court should have granted that branch of Leonard's motion which was forsummary judgment dismissing so much of the complaint as alleged common-law negligence, asLeonard established, prima facie, that it did not have control of the subject work site or haveactual or constructive notice of any allegedly dangerous condition thereon (see Bridges v Wyandanch CommunityDev. Corp., 66 AD3d 938 [2009]; Hirsch v Blake Hous., LLC, 65 AD3d 570 [2009]).
The court properly denied that branch of Leonard's motion which was for summary judgmentdismissing so much of the complaint as alleged a violation of Labor Law § 241 (6) insofaras asserted against it. Leonard failed to establish its prima facie entitlement to judgment as amatter of law. As general contractor, Leonard had a nondelegable duty to provide reasonable andadequate protection and safety to persons employed in construction work, and to comply withthe specific safety rules and regulations set forth in the Industrial Code (see Galarraga v City of New York, 54AD3d 308 [2008]; Romero v J & SSimcha, Inc., 39 AD3d 838 [2007]). Contractors and owners are liable under the statutewhether or not they supervise or control the work (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39[2004]; Forschner v Jucca Co., 63AD3d 996 [2009]).
Furthermore, Leonard's contention that the plaintiff cited no specific and applicableprovisions of the Industrial Code is without merit. In order to establish liability under Labor Law§ 241 (6), a plaintiff is required to establish a breach of a rule or regulation of theIndustrial Code which gives a specific, positive command, and is applicable to the facts of thecase (see Forschner v Jucca Co., 63 AD3d at 996; Rau v Bagels N Brunch, Inc., 57 AD3d 866 [2008]; Venezia v State of New York, 57AD3d 522 [2008]). The plaintiffs allege violations of the following specific provisions ofthe Industrial Code: 12 NYCRR 23-1.7 (e) (1), (2) and (f) and 23-5.3 (g). Industrial Code (12NYCRR) § 23-1.7 (e) (1), (2) and (f) have been found by this Court to be specific enoughto support a claimed violation of Labor Law § 241 (6) (see McDonagh v Victoria's Secret, Inc., 9 AD3d 395 [2004];O'Hare v City of New York, 280 AD2d 458 [2001]). Those provisions are applicable tothe facts of this case. Leonard failed to establish that it complied with these provisions. IndustrialCode § 23-5.3 (g) also sets forth specific, and not general, safety standards, and issufficient to maintain a claim alleging a violation of Labor Law § 241 (6). Leonard failedto establish that the footings of the scaffold were in compliance with Industrial Code §23-5.3 (g). Leonard also failed to establish that the injured plaintiff's conduct was the soleproximate cause of his accident.
The court properly denied that branch of Leonard's motion which was for summary judgmenton its cross claim for common-law indemnification (see Nasuro v PI Assoc., LLC, 49 AD3d 829 [2008]).
The court properly denied that branch of the cross motion of the defendant Windows ByHart, Inc. (hereinafter Hart), which was for summary judgment dismissing so much of thecomplaint insofar as alleged common-law negligence and a violation of Labor Law § 200against it. Hart failed to establish that it did not have control of the work site, or that it did nothave actual or constructive notice of the dangerous condition (see Gallello v MARJ Distribs., Inc., 50AD3d 734 [2008]; McLeod vCorporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d796 [2007]; Keating v Nanuet Bd.of Educ., 40 AD3d 706 [2007]).
The court also properly denied that branch of Hart's cross motion which was for summaryjudgment dismissing so much of the complaint as alleged a violation of Labor Law § 241(6). Hart failed to establish that it was not a contractor (see Williams v Dover HomeImprovement, 276 AD2d 626 [2000]), or an agent of the general contractor or thehomeowner (see Domino v ProfessionalConsulting, Inc., 57 AD3d 713 [2008]; Everitt v Nozkowski, 285 AD2d 442[2001]). Furthermore, Hart's contention that the plaintiffs failed to allege violations of specificapplicable provisions of the Industrial Code is without merit. Hart also failed to establish that theinjured plaintiff's conduct was the sole proximate cause of his accident. Santucci, J.P.,Chambers, Hall and Roman, JJ., concur.