| Cooper v State of New York |
| 2010 NY Slip Op 02914 [72 AD3d 633] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Thomas Cooper, Appellant, v State of New York,Respondent. |
—[*1] Edward Garfinkel, Brooklyn, N.Y. (Fiedelman & McGaw [Andrew Zajac] of counsel), forrespondent.
In a claim to recover damages for personal injuries, the claimant appeals, as limited by hisbrief, from so much of an order of the Court of Claims (Soto, J.), entered March 19, 2009, asgranted those branches of the defendant's motion which were for summary judgment dismissingthe causes of action alleging common-law negligence and violations of Labor Law § 200and so much of the cause of action alleging violations of Labor Law § 241 (6) as werebased on alleged violations of 12 NYCRR 23-1.7 (d) and (e).
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion which was for summary judgment dismissing so much of the cause ofaction alleging a violation of Labor Law § 241 (6) as was based on alleged violations of12 NYCRR 23-1.7 (d), and substituting therefor a provision denying that branch of the motion;as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
In September 2006 the claimant, an ironworker, allegedly slipped while standing on theplatform of an elevated "scissor lift," thereby falling and sustaining personal injuries. At the timeof the alleged incident, the claimant purportedly was "drilling holes" into an "I-beam" inconnection with a reconstruction project on the Brooklyn Queens Expressway. At his deposition,the claimant testified that the "substances" that "caused his right foot to slip" consisted of "[o]il,shavings, slugs, [and] cores" already present on the platform when he began his work, as well as"substances" that were "generated" as part of his own drilling operation.
In 2007 the claimant filed the instant claim, alleging, inter alia, a cause of action allegingviolations of Labor Law § 241 (6), based on alleged violations of, among other things, 12NYCRR 23-1.7 (d) and (e), as well as causes of action alleging violations of Labor Law §200 and common-law negligence. As relevant here, the Court of Claims granted those branchesof defendant's motion which were for summary judgment dismissing these causes of action. Wemodify.
The defendant failed to establish its prima facie entitlement to judgment as a matter [*2]of law dismissing so much of the cause of action alleging aviolation of Labor Law § 241 (6) as was based on an alleged violation of 12 NYCRR23-1.7 (d). 12 NYCRR 23-1.7 (d) prohibits owners and contractors from permitting a worker touse an elevated working surface which is "in a slippery condition." This rule further providesthat "any . . . foreign substance which may cause slippery footing shall be removed,sanded or covered to provide safe footing." Here, a triable issue of fact exists as to whether thedefendant violated this provision of the Industrial Code by failing to remove the allegedsubstances which purportedly caused the claimant to slip (see Ventura v Lancet Arch, 5 AD3d 1053, 1054 [2004]; see also Hageman v Home Depot U.S.A.,Inc., 45 AD3d 730, 732 [2007]; Hammond v International Paper Co., 161 AD2d914, 915 [1990]).
However, the Court of Claims properly granted that branch of the defendant's motion whichwas for summary judgment dismissing so much of the cause of action pursuant to Labor Law§ 241 (6) as was based on alleged violations of 12 NYCRR 23-1.7 (e) (2). 12 NYCRR23.1-7 (e) (2) requires owners and contractors to maintain working areas free from trippinghazards such as, inter alia, debris "insofar as may be consistent with the work being performed."This regulation "is designed to protect against tripping hazards and sharp projections on floorsand platforms" (Fura v Adam's RibRanch Corp., 15 AD3d 948, 949 [2005]). In support of this branch of its motion, thedefendant established that this regulation was inapplicable to the claimant's accident, as theclaimant did not allege that he tripped on any tripping hazard. Instead, at his deposition, theclaimant repeatedly stated that he "slipped." Consequently, in opposition to the defendant'sshowing in this regard, the claimant failed to raise a triable issue of fact.
Moreover, the Court of Claims properly awarded summary judgment to the defendantdismissing the causes of action alleging violations of Labor Law § 200 and common-lawnegligence. "Labor Law § 200 codifies the common-law duty of an owner or contractor toprovide employees with a safe place to work" (Lane v Fratello Constr. Co., 52 AD3d 575, 576 [2008]). To be heldliable under Labor Law § 200, "when a claim arises out of alleged defects or dangers inthe methods or materials of the work, recovery against the owner or general contractor cannot behad . . . unless it is shown that the party to be charged had the authority to superviseor control the performance of the work" (Ortega v Puccia, 57 AD3d 54, 61 [2008]). Here, the defendant metits prima facie burden of establishing that the accident, as described by the claimant, wasattributable to a defect in equipment, i.e., the scissor lift, supplied by the claimant's employer,and thus arose from the methods and materials of the work (see Ortega v Puccia, 57AD3d at 61-63; cf. Chowdhury vRodriguez, 57 AD3d 121, 129-132 [2008]). The defendant further demonstrated that itdid not have authority to supervise or control the work (see Capolino v Judlau Contr., Inc., 46 AD3d 733, 735 [2007]; McLeod v Corporation of Presiding Bishopof Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 798 [2007]). In opposition,the claimant failed to raise a triable issue of fact. Rivera, J.P., Florio, Miller and Eng, JJ., concur.