| McKee v Great Atl. & Pac. Tea Co. |
| 2010 NY Slip Op 04153 [73 AD3d 872] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Anthony McKee et al., Appellants, v Great Atlantic &Pacific Tea Company, Doing Business as Waldbaums, Respondent, and C. Raimondo & SonsConstruction Company, Inc., Defendant/Third-Party Plaintiff-Respondent. Avon Contractors,Third-Party Defendant-Respondent. |
—[*1] Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola, N.Y. (Nicole Licata-McCordof counsel), for defendant-respondent Great Atlantic & Pacific Tea company, doing business asWaldbaums. Housman & Associates, P.C., Tarrytown, N.Y. (Brian J. Divney of counsel), fordefendant/third-party plaintiff-respondent C. Raimondo & Sons Construction Company, Inc. John T. Ryan & Associates, Riverhead, N.Y. (Robert F. Horvat of counsel), for third-partydefendant-respondent Avon Contractors.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so muchof an order of the Supreme Court, Suffolk County (Cohalan, J.), dated February 24, 2009, asgranted that branch of the cross motion of the defendant Great Atlantic & Pacific Tea Company,doing business as Waldbaums, which was for summary judgment dismissing the complaintinsofar as asserted against it and, as, upon the denial of the cross motion of thedefendant/third-party plaintiff, C. Raimondo & Sons Construction Company, Inc., to dismiss thecomplaint insofar as asserted against it pursuant to CPLR 3211 (a) (1) and (7), and the denial, ineffect, of the motion of the third-party defendant, Avon Contractors, for summary judgmentdismissing the complaint, searched the record and awarded summary judgment dismissing thecomplaint insofar as asserted against the defendant C. Raimondo & Sons Construction Company,Inc.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe plaintiffs to the defendant Great Atlantic & Pacific Tea Company, doing business asWaldbaums, and the third-party defendant, Avon Contractors.
The plaintiff Anthony McKee (hereinafter McKee) was injured while working on arenovation and extension project at a Waldbaums store owned by the defendant Great Atlantic &Pacific [*2]Tea Company, doing business as Waldbaums(hereinafter Waldbaums). The defendant C. Raimondo & Sons Construction Company, Inc.(hereinafter Raimondo), was the general contractor on the project, and McKee's employer, thethird-party defendant, Avon Contractors (hereinafter Avon), was one of the subcontractors.McKee was injured while he attempted to cut a metal stud with a masonry saw. Working outsidethe store, McKee placed the metal stud on the dirt ground and secured it with his foot. When theblade of the masonry saw came in contact with the metal stud, the stud kicked out from underhim, causing him to fall, resulting in an injury to his lower back. McKee and his wife, suingderivatively, commenced this action against Waldbaums and Raimondo, alleging violations ofLabor Law §§ 200 and 241 (6) and common-law negligence. In a third-party action,Raimondo sought contribution and indemnification against Avon. Avon moved for summaryjudgment dismissing the complaint, Waldbaums cross-moved, inter alia, for summary judgmentdismissing the complaint insofar as asserted against it, and Raimondo cross-moved to dismiss thecomplaint insofar as asserted against it pursuant to CPLR 3211 (a) (1) and (7). The SupremeCourt granted Waldbaums's cross motion in its entirety, and denied Avon's motion andRaimondo's cross motion. Upon searching the record, however, the court awarded Raimondosummary judgment dismissing the complaint insofar as asserted against it, and awarded Avonsummary judgment dismissing the third-party complaint.
Labor Law § 200 is a codification of the common-law duty imposed upon an owner orgeneral contractor to maintain a safe construction site (see Rizzuto v L.A. Wenger Contr.Co., 91 NY2d 343, 352 [1998]). "Cases involving Labor Law § 200 fall into twobroad categories: namely, those where workers are injured as a result of dangerous or defectivepremises conditions at a work site, and those involving the manner in which the work isperformed" (Ortega v Puccia, 57AD3d 54, 61 [2008]). In this case, contrary to the plaintiffs' contention, McKee's injuriesarose from the manner in which the work was performed (see Gomez v City of New York, 56 AD3d 522, 523 [2008];Mas v Kohen, 283 AD2d 616 [2001]), and not from any dangerous or defectivecondition on the premises. "[W]hen a claim arises out of alleged defects or dangers in themethods or materials of the work, recovery against the owner or general contractor cannot be hadunder Labor Law § 200 unless it is shown that the party to be charged had the authority tosupervise or control the performance of the work" (Ortega v Puccia, 57 AD3d at 61; see Gomez v City of New York, 56AD3d 522 [2008]; Lazier vStrickland Ave. Corp., 50 AD3d 641 [2008]). "A defendant has the authority tosupervise or control the work for purposes of Labor Law § 200 when that defendant bearsthe responsibility for the manner in which the work is performed" (Ortega v Puccia, 57AD3d at 62).
Here, Waldbaums demonstrated, prima facie, that it only had general supervisory authority,which was insufficient to impose liability for common-law negligence and under Labor Law§ 200 (see Ortega v Puccia, 57 AD3d at 62; Perri v Gilbert Johnson Enters.,Ltd.,14 AD3d 681, 683 [2005]; DosSantos v STV Engrs., Inc., 8 AD3d 223, 224 [2004]). In opposition, the plaintiffs failedto raise a triable issue of fact. Thus, the Supreme Court properly granted that branch ofWaldbaums's motion which was for summary judgment dismissing the causes of action allegingcommon-law negligence and a violation of Labor Law § 200 insofar as asserted against it.
The specific issue of whether Raimondo had authority to supervise or control McKee's workwas raised in Avon's motion for summary judgment dismissing the complaint (see Dunham vHilco Constr. Co., 89 NY2d 425, 429-430 [1996]; cf. Salazar v United Rentals, Inc., 41 AD3d 684, 685 [2007]). Theevidence submitted by Raimondo, Avon, and Waldbaums was sufficient to demonstrate, primafacie, that the only party that had the authority to supervise or control McKee's work was Avon,and thus Raimondo had no such authority. The plaintiffs failed to raise a triable issue of fact inthis regard. Thus, the Supreme Court properly searched the record and awarded Raimondosummary judgment dismissing the causes of action alleging common-law negligence and aviolation of Labor Law § 200 insofar as asserted against it.
Waldbaums made a prima facie showing that the provisions of the Industrial Code allegedlyviolated were not applicable to the facts of this case, thus demonstrating that no violation ofLabor Law § 241 (6) occurred (see Natale v City of New York, 33 AD3d 772, 774 [2006]). Inopposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs'contention, the open, ground-level worksite where McKee fell did not constitute a passageway,walkway, or other elevated surface contemplated by 12 NYCRR 23-1.7 (d) and (e) (see Porazzo v City of New York, 39AD3d 731 [2007]). Moreover, 12 NYCRR 23-1.5 (c) (3) and 23-9.2 (a), which requireemployers to provide equipment and power tools that [*3]are ingood repair, have no application here, since there is no allegation that McKee was using a toolthat was defective or in need of repair. Accordingly, the Supreme Court properly granted thatbranch of Waldbaums's motion which was for summary judgment dismissing the cause of actionalleging a violation of Labor Law § 241 (6) insofar as asserted against it, and, with theissue of the applicability of the above-mentioned Industrial Code provisions squarely before it,properly searched the record and awarded Raimondo summary judgment dismissing the LaborLaw § 241 (6) cause of action insofar as asserted against it. Prudenti, P.J., Fisher, Romanand Sgroi, JJ., concur.