| Cook v Orchard Park Estates, Inc. |
| 2010 NY Slip Op 03822 [73 AD3d 1263] |
| May 6, 2010 |
| Appellate Division, Third Department |
| Christopher Cook, Respondent, v Orchard Park Estates, Inc.,Defendant, Scott Ventures et al., Appellants, Matzen Construction Management Services, LLC,Respondent, and Matzen Company, Inc., et al., Defendants and Third-PartyPlaintiffs-Respondents. John Mauro Co., Third-Party Defendant-Appellant. (And AnotherRelated Action.) |
—[*1] Hiscock & Barclay, L.L.P., Albany (David M. Cost of counsel), for John Mauro, Co.,third-party defendant-appellant. Parker & Castillo, Albany (Stephen W. Parker of counsel), for Christopher Cook,respondent. Hanlon, Veloce & Wilkinson, Albany (Thomas J. Wilkinson of counsel), for defendants andthird-party plaintiffs-respondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Williams, J.), entered June 15,2009 in Saratoga County, which, among other things, denied third-party defendant's motion forsummary judgment dismissing the third-party complaint.
Plaintiff, an employee of third-party defendant, John Mauro, Co., commenced this action torecover for injuries sustained as a result of a slip and fall accident at the construction site of ashopping plaza. Mauro had been hired as a subcontractor by defendant Matzen Construction,Inc., the general contractor, to perform exterior masonry work on the project, which was locatedon property owned by defendant Orchard Park Estates, Inc. and leased by defendant ScottVentures and related defendant entities (hereinafter collectively referred to as Scott Ventures).Plaintiff alleged common-law negligence, as well as violations of Labor Law § 200 (1)and § 241 (6). Defendants answered and asserted cross claims, with Matzen and relateddefendant entities (hereinafter collectively referred to as Matzen) and Scott Ventures assertingclaims for contractual indemnification, among other things, against each other. In addition,Matzen initiated a third-party action alleging various claims against Mauro, including a claim forcontractual indemnification.
Following joinder of issue, Mauro moved for summary judgment dismissing the third-partycomplaint. Scott Ventures moved for dismissal of the complaint and all cross claims assertedagainst it, and for an order directing indemnification and contribution from Matzen, whichcross-moved for summary judgment on its contractual indemnification claim against Mauro.Matzen also moved separately for dismissal of the complaint and all cross claims against it.Supreme Court denied all of the motions and these appeals by Mauro and Scott Ventures ensued.We now modify by dismissing plaintiff's claims under Labor Law § 241 (6), and otherwiseaffirm.
Initially, we reject defendants' argument on appeal that plaintiff's Labor Law § 200 (1)and general negligence claims must be dismissed. When an "alleged defect or dangerouscondition arises from [a] contractor's methods and the owner exercises no supervisory controlover the operation, no liability attaches to the owner under the common law or under Labor Law§ 200" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993];see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). That is, if aninjury is caused by the manner in which a subcontractor performs its work, an owner or generalcontractor will be liable only if it "ha[d] the authority to control the activity bringing aboutthe injury to enable it to avoid or correct an unsafe condition" (Rizzuto v L.A. WengerContr. Co., 91 NY2d 343, 352 [1998] [internal quotation marks and citation omitted]; see Fassett v Wegmans Food Mkts.,Inc., 66 AD3d 1274, 1276 [2009]; Nelson v Sweet Assoc., Inc., 15 AD3d 714, 715 [2005]). Evidenceof general supervisory control or mere presence at the work site is not adequate to establishcontrol [*2]over the work activity that caused the injury (seeFassett v Wegmans Food Mkts., Inc., 66 AD3d at 1276; Blysma v County ofSaratoga, 296 AD2d 637, 639 [2002]).
In contrast, when "a worker's injuries result from an unsafe or dangerous condition existingat a work site, rather than from the manner in which the work is being performed, the liability ofa general contractor, and of an allegedly negligent subcontractor, depends upon whether they hadnotice of the dangerous condition and control of the place where the injury occurred" (Wolfe v KLR Mech., Inc., 35 AD3d916, 918 [2006] [citations omitted]; accord Weinberg v Alpine Improvements, LLC, 48 AD3d 915, 918[2008]; Gadani v Dormitory Auth. ofState of N.Y., 43 AD3d 1218, 1220 [2007]; see Blysma v County of Saratoga,296 AD2d at 639). Moreover, an owner—or, as here, a leaseholder—that retainscontrol over the premises has a general duty to maintain its premises in a safe condition (seeWeinberg v Alpine Improvements, LLC, 48 AD3d at 918; Wolfe v KLR Mech.,Inc., 35 AD3d at 919).
Here, plaintiff testified during his examination before trial that while he was attempting toretrieve a mortar pan at approximately 8:00 a.m. on the morning of the accident, he slipped onplastic covered by approximately six inches of freshly fallen snow. Plaintiff indicated that it hadstopped snowing approximately one hour prior to his accident, and no plowing or shoveling hadbeen performed at the construction site. As relevant here, Scott Ventures' contract with Matzenprovided that Scott Ventures was "responsible for all snow removal on-site" and that removalwas to be "complete[d] by [6:00 a.m.] each day—including weekends."
Plaintiff further stated in his deposition testimony that the plastic on which he slipped waslocated on frozen dirt located between the building and a recently poured sidewalk; grass orlandscaping was to be installed in the area but, at the time of the accident, it was used byplaintiff's employer, Mauro, for storing materials and as a space over which to drive its forklift.When plaintiff slipped, he was approximately five feet from the sidewalk, which had beenpoured the night before the accident by Matzen's employees. Plaintiff testified that the type ofplastic on which he slipped was used for covering concrete sidewalks that had just been poured,but indicated that he had not observed Matzen's employees using the plastic the night before theaccident, and that he did not know how long the plastic had been on the ground before theaccident or how it got there. We note that Mauro was contractually obligated to keep thepremises free from waste materials or rubbish, but was not to be held responsible for uncleanconditions caused by other contractors or subcontractors.
In our view, triable issues of fact exist regarding whether plaintiff's injuries were caused by adangerous or defective condition existing on the property or a danger created by the manner inwhich either Matzen or Mauro performed its work. Furthermore, there are questions of factregarding whether Scott Ventures created or had notice of the dangerous condition allegedlyexisting on the property, or whether either Mauro or Matzen had notice and the authority tocontrol the work activity that may have brought about plaintiff's injuries. Under thesecircumstances, Supreme Court properly declined to dismiss plaintiff's Labor Law § 200(1) and general negligence claims as against either Scott Ventures or Matzen (see Husted v Central N.Y. Oil & Gas Co.,LLC, 68 AD3d 1220, 1222-1223 [2009]; Weinberg v Alpine Improvements,LLC, 48 AD3d at 918-919; Gadani v Dormitory Auth. of State of N.Y., 43 AD3d at1221; Wolfe v KLR Mech., Inc., 35 AD3d at 919; Nelson v Sweet Assoc., Inc.,15 AD3d at 715; cf. Dalanna v City of New York, 308 AD2d 400, 400 [2003];Blysma v County of Saratoga, 296 AD2d at 639). In addition, Supreme Court properlydeclined to issue orders of conditional indemnification or to dismiss the third-party complaintgiven the existence of issues of fact regarding negligence on the [*3]part of Scott Ventures, Matzen and Mauro (see Husted vCentral N.Y. Oil & Gas Co., LLC, 68 AD3d at 1224; Niagara Frontier Transp. Auth. v City of Buffalo Sewer Auth., 1 AD3d893, 895-896 [2003]; Barnes v DeFoe/Halmar, 271 AD2d 387, 388 [2000]).
We find, however, that plaintiff's Labor Law § 241 (6) causes of action should havebeen dismissed. Plaintiff's section 241 (6) claim is predicated on allegations that defendantsviolated 12 NYCRR 23-1.7 (d) and (e). Inasmuch as the evidence establishes that plaintiff fellwhen he slipped on snow-covered plastic, 12 NYCRR 23-1.7 (e), which relates to trippinghazards, is not applicable here (see Blysma v County of Saratoga, 296 AD2d at 638;cf. White v Sperry Supply & Warehouse, 225 AD2d 130, 134 [1996]). In any event, theopen area between the sidewalk and building on which plaintiff was walking does not fall withinthe purview of either 12 NYCRR 23-1.7 (d) or (e) (see Scofield v Trustees of UnionColl., 288 AD2d 807, 808-809 [2001]; Lawyer v Hoffman, 275 AD2d 541, 542[2000]).
The parties' remaining arguments have been considered and, to the extent that they areproperly before us, have been found to be lacking in merit.
Peters, Rose, Stein and McCarthy, JJ., concur. Ordered that the order is modified, on the law,without costs, by reversing so much thereof as denied summary judgment dismissing the LaborLaw § 241 (6) causes of action against defendants; summary judgment granted to alldefendants on said causes of action and said claims dismissed; and, as so modified, affirmed.