| Jenkins v Walter Realty, Inc. |
| 2010 NY Slip Op 02515 [71 AD3d 954] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Frederick Jenkins, Respondent, v Walter Realty, Inc., etal., Appellants. |
—[*1] John L. Buckheit, Suffern, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from so much ofan order of the Supreme Court, Westchester County (Nicolai, J.), entered April 29, 2009, asdenied that branch of their motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Walter Realty, Inc.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Walter Realty, Inc., is granted.
The plaintiff, a worker at a plastics manufacturing company, allegedly injured his fingerwhile operating a plastics shaper without using a properly placed safety guard. He commencedthis action against, among others, Walter Realty, Inc. (hereinafter Walter Realty), the owner ofthe property in which the manufacturing plant was located. The complaint alleges that WalterRealty had notice of the fact that the shaper, which was owned by a third party and leased to themanufacturing company, was being used improperly on the premises. The complaint allegescauses of action sounding in common-law negligence and violations of Labor Law§§ 200 and 470.
The Supreme Court should have granted that branch of the defendants' motion which was forsummary judgment dismissing the complaint insofar as asserted against Walter Realty. Withrespect to the common-law negligence and Labor Law § 200 causes of action, WalterRealty made a prima facie showing of its entitlement to judgment as a matter of law bydemonstrating that the plaintiff was injured, not by a dangerous condition, but by the methods ormaterials of his work, and that it did not have the authority to supervise or control theperformance of his work (see Comes v New York State Elec. & Gas Corp., 82 NY2d876, 877 [1993]; Rakowicz v FashionInst. of Tech., 56 AD3d 747, 748 [2008]; Ortega v Puccia, 57 AD3d 54, 61-62 [2008]; cf. Rizzuto vL.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). In opposition, the plaintiff failed toraise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).With respect to the Labor Law § 470 claim, inasmuch as this action does not involve a"[p]lace of public assembly," that provision is inapplicable (see Labor Law § 2[12]). Fisher, J.P., Covello, Lott and Sgroi, JJ., concur.