| Ramos v Patchogue-Medford School Dist. |
| 2010 NY Slip Op 04355 [73 AD3d 1010] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Fernando Ramos, Respondent, v Patchogue-MedfordSchool District et al., Appellants-Respondents, and Pump It, Inc., Defendant/Third-PartyPlaintiff-Appellant. East End Concrete, Third-PartyDefendant-Appellant-Respondent. |
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In an action to recover damages for personal injuries, the defendants Patchogue-MedfordSchool District, Pav-Lak Contracting, Inc., and Park East Construction Corp., and the third-partydefendant, East End Concrete, appeal from so much of an order of the Supreme Court, SuffolkCounty (Tanenbaum, J.), dated July 21, 2009, as denied those branches of their motion whichwere for summary judgment dismissing the cause of action alleging a violation of Labor Law§ 241 (6) insofar as asserted against the defendants Patchogue-Medford School District,Pav-Lak Contracting, Inc., and Park East Construction Corp. and for summary judgment in favorof the third-party defendant, East End Concrete, dismissing that cause of action in its entirety,and the defendant/third-party plaintiff, Pump It, Inc., cross-appeals, as limited by its brief, fromso much of the same order as denied its cross motion for summary judgment dismissing thecomplaint and all cross claims and counterclaims insofar as asserted against it.
Ordered that the order is reversed insofar as appealed and cross-appealed from, on the law,those branches of the motion of the defendants Patchogue-Medford School District, Pav-LakContracting, Inc., Park East Construction Corp., and the third-party defendant, East EndConcrete, which were for summary judgment dismissing the cause of action alleging a violationof Labor Law § 241 (6) insofar as asserted against the defendants Patchogue-MedfordSchool District, Pav-Lak Contracting, Inc., and Park East Construction Corp. and in favor of thethird-party defendant, East End Concrete, dismissing that cause of action in its entirety, aregranted, and the cross motion of the defendant Pump It, Inc., for summary judgment dismissingthe complaint and all cross claims and counterclaims insofar as asserted against it is granted; andit is further,[*2]
Ordered that one bill of costs is awarded to thedefendants Patchogue-Medford School District, Pav-Lak Contracting, Inc., Park EastConstruction Corp., and the third-party defendant, East End Concrete, and thedefendant/third-party plaintiff Pump It, Inc., appearing separately and filing separate briefs,payable by the plaintiff.
"Labor Law § 200 codifies the common-law duty of an owner or employer to provideemployees with a safe place to work" (Romang v Welsbach Elec. Corp., 47 AD3d 789, 789 [2008];see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). "This provisionapplies to owners, contractors, and their agents" (Romang v Welsbach Elec. Corp., 47AD3d at 789). Where, as here, the accident occurred as a consequence of the means and methodsof the work, "liability against a subcontractor based upon a claimed violation of Labor Law§ 200 and common-law negligence requires a showing that authority was conferred on thesubcontractor to supervise and control the activity which produced the injury" (Kehoe vSegal, 272 AD2d 583, 584 [2000]).
Pump It, Inc., established its entitlement to judgment as a matter of law with respect to theplaintiff's common-law negligence and Labor Law § 200 causes of action bydemonstrating that it was a subcontractor, and that it lacked authority to supervise and controlthe activity which produced the injury (id.). In opposition to this showing, the plaintifffailed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557,562 [1980]).
Labor Law § 241 (6) requires contractors, owners, and agents "to provide reasonableand adequate protection and safety for workers and to comply with the specific safety rules andregulations promulgated by the Commissioner of the Department of Labor" (Ross vCurtis-Palmer Hydro-Electric Co., 81 NY2d at 501-502 [internal quotation marks omitted])."[T]o establish liability under Labor Law § 241 (6), a plaintiff must demonstrate that thedefendant's violation of a specific rule or regulation was a proximate cause of the accident" (Seaman v Bellmore Fire Dist., 59AD3d 515, 516 [2009]). 12 NYCRR 23-9.2 (a) provides that "[a]ll power-operatedequipment shall be maintained in good repair and in proper operating condition . . .Upon discovery, any structural defect or unsafe condition in such equipment shall be correctedby necessary repairs or replacement . . . Any servicing or repairing of suchequipment shall be performed only while such equipment is at rest."
All of the defendants established their prima facie entitlement to judgment as a matter of lawwith respect to the Labor Law § 241 (6) cause of action by demonstrating that they lackednotice of any structural defect or unsafe condition in the power-operated concrete pump trucknear which the plaintiff was working at the time of his accident (id.; see Misicki v Caradonna, 12 NY3d511, 520-521 [2009]). In opposition to this showing, the plaintiff failed to raise a triableissue of fact (see Zuckerman v City of New York, 49 NY2d at 562).
Accordingly, the Supreme Court should have awarded summary judgment dismissing theLabor Law § 241 (6) cause of action in its entirety, and should have awarded summaryjudgment to the defendant Pump It, Inc., dismissing the complaint and all cross claims andcounterclaims insofar as asserted against it. Mastro, J.P., Covello, Eng and Belen, JJ., concur.