| Astarita v Flintlock Constr. Servs., LLC |
| 2010 NY Slip Op 00637 [69 AD3d 888] |
| January 26, 2010 |
| Appellate Division, Second Department |
| Paul Astarita, Respondent, v Flintlock ConstructionServices, LLC, Appellant-Respondent, and Gilbane and Construction Management Corp. et al.,Respondents-Appellants. |
—[*1] Cartafalsa, Slattery, Turpin & Lenoff, Tarrytown, N.Y. (Edward J. Barbour of counsel), forrespondents-appellants. Eaton & Torrenzano, LLP, Brooklyn, N.Y. (Christopher J. Brunetti of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Flintlock ConstructionServices, LLC, appeals from so much of an order of the Supreme Court, Westchester County(Nicolai, J.), dated December 8, 2008, as denied those branches of its motion which were forsummary judgment dismissing the causes of action based on common-law negligence and LaborLaw § 200 insofar as asserted against it, and the defendants Gilbane ConstructionManagement Corp., Gilbane Building Company, and Gilbane, Inc., cross-appeal, as limited bytheir brief, from so much of the same order as denied those branches of their motion which werefor summary judgment dismissing the causes of action based on common-law negligence andLabor Law § 200 insofar as asserted against them and dismissing the cross claims assertedby the defendant Flintlock Construction Services, LLC, against them, and for summary judgmenton their cross claim against the defendant Flintlock Construction Services, LLC, for contractualindemnification.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one billof costs payable to the plaintiff by the defendants appearing separately and filing separate briefs.
Labor Law § 200 codifies the common-law duty imposed on owners and contractors toprovide a safe construction site for workers (see Rizzuto v L.A. Wenger Contr. Co., 91NY2d 343, 352 [1998]; Aguilera vPistilli Constr. & Dev. Corp., 63 AD3d 763, 764 [2009]; Fuchs v Austin Mall Assoc., LLC, 62AD3d 746, 747 [2009]). " 'This provision applies to owners, contractors, and their agents' "(Gasques v State of New York, 59AD3d 666, 667 [2009], quotingRomang v Welsbach Elec. Corp., 47 AD3d 789, 789 [2008]). Where, as here, aplaintiff's injuries stem not from the manner in which the work [*2]was being performed but, rather, from an alleged dangerouscondition on the premises, an owner or contractor may be 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 (seeBridges v Wyandanch Community Dev. Corp., 66 AD3d 938 [2009]; Hirsch v Blake Hous., LLC, 65 AD3d570, 571 [2009]; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d at 764;Fuchs v Austin Mall Assoc., LLC, 62 AD3d at 747). The defendants failed to establishprima facie that they did not have control over the work site or actual or constructive notice ofthe alleged dangerous condition (seeColon v Bet Torah, Inc., 66 AD3d 731 [2009]). Accordingly, the defendants were notentitled to summary judgment dismissing the common-law negligence and Labor Law §200 causes of action insofar as asserted against them.
Since the defendants Gilbane Construction Management Corp., Gilbane Building Company,and Gilbane, Inc., failed to establish, prima facie, that they were free from fault in the happeningof the accident, they were not entitled to summary judgment dismissing the cross claims assertedby the defendant Flintlock Construction Services, LLC (hereinafter Flintlock), against them, orsummary judgment on their cross claim against Flintlock for contractual indemnification (see Hirsch v Blake Hous., LLC, 65AD3d 570, 571 [2009]; Giangarrav Pav-Lak Contr., Inc., 55 AD3d 869, 870-871 [2008]). Rivera, J.P., Dillon, Belen andRoman, JJ., concur.