| Aragona v State of New York |
| 2010 NY Slip Op 05713 [74 AD3d 1260] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Gaynor Aragona, Appellant, v State of New York,Respondent. |
—[*1] Betancourt, Van Hemmen, Greco & Kenyon, LLC, New York, N.Y. (Ronald Betancourt andVirginia A. Harper of counsel), for respondent.
In a claim to recover damages for personal injuries, the claimant appeals from an order of theCourt of Claims (Lack J.), dated September 21, 2009, which granted the defendant's motion forsummary judgment dismissing the claim.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendant's motion which were for summary judgment dismissing theLabor Law § 200 and common-law negligence claims and so much of the Labor Law§ 241 (6) claim as was based upon an alleged violation of 12 NYCRR 23-1.7 (e) (1), andsubstituting therefor provisions denying those branches of the motion; as so modified, the orderis affirmed, without costs or disbursements.
The claimant alleged that the defendant contracted with Modern Continental ConstructionCo., Inc. (hereinafter Modern), to do construction work on the Wantagh Parkway Bridge over theSloop Channel. The claimant was employed by Modern as a dock builder and allegedly wasinjured when he tripped on a padeye, which was welded to the deck of a work barge, as he wascarrying materials along a corridor created by lumber and construction material. The claimantfiled a claim against the defendant alleging violations of Labor Law §§ 200 and 241(6) and common-law negligence. The Court of Claims granted the defendant's motion forsummary judgment dismissing the claim. We modify.
The court erred in granting those branches of the defendant's motion which were forsummary judgment dismissing the Labor Law § 200 and common-law negligence claims.Labor Law § 200 codifies the common-law duty imposed upon an owner or contractor tomaintain a safe construction site (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343[1998]; Colon v Bet Torah, Inc., 66 AD3d 731 [2009]; Lane v Fratello Constr.Co., 52 AD3d 575 [2008]). Liability for a violation of Labor Law § 200 andcommon-law negligence may be imposed upon a property owner where, as here, the claimant'sinjuries arose not from the manner in which the work was performed, but rather from anallegedly dangerous condition at the work site, when the owner had actual or constructive noticeof the [*2]dangerous condition (see Hirsch v Blake Hous.,LLC, 65 AD3d 570 [2009]; Fuchs v Austin Mall Assoc., LLC, 62 AD3d 746 [2009];Lane v Fratello Constr. Co., 52 AD3d 575 [2008]; Keating v Nanuet Bd. ofEduc., 40 AD3d 706 [2007]). The defendant failed to establish, prima facie, that it did nothave actual or constructive notice of the allegedly hazardous condition which caused theclaimant's accident (see DeLiso v State of New York, 69 AD3d 786 [2010]).
The Court of Claims also erred in granting that branch of the defendant's motion which wasfor summary judgment dismissing so much of the Labor Law § 241 (6) claim as was basedupon 12 NYCRR 23-1.7 (e) (1). "Labor Law § 241 (6) imposes a nondelegable duty uponowners and contractors to provide reasonable and adequate protection and safety to constructionworkers . . . [i]n order to recover damages on a cause of action alleging a violationof Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Codeprovision which sets forth specific safety standards" (Hricus v Aurora Contrs., Inc., 63AD3d 1004, 1005 [2009] [internal quotation marks omitted]). Here, the defendant failed todemonstrate that 12 NYCRR 23-1.7 (e) (1) was inapplicable. The defendant failed to show theabsence of triable issues of fact as to whether the claimant tripped in a passageway (seeCanning v RFD 82nd St., 285 AD2d 439 [2001]; see also Bopp v A.M. Rizzo Elec.Contrs., Inc., 19 AD3d 348 [2005]; Sergio v Benjolo N.V., 168 AD2d 235 [1990]),and whether the padeye was an integral part of the construction (cf. O'Sullivan v IDI Constr.Co., Inc., 7 NY3d 805 [2006]).
However, the Court of Claims properly granted that branch of the defendant's motion whichwas for summary judgment dismissing so much of the Labor Law § 241 (6) claim as wasbased upon 12 NYCRR 23-1.7 (e) (2). The defendant satisfied its prima facie burden ofestablishing its entitlement to judgment as a matter of law by demonstrating that 12 NYCRR23-1.7 (e) (2) was inapplicable, as the padeye was not a sharp projection (see Passaro v163-15 N. Flushing Corp., 70 AD3d 795 [2010]; Saccenti v City of New York, 45AD3d 665 [2007]; Tucker v Tishman Constr. Corp. of N.Y., 36 AD3d 417 [2007];Dalanna v City of New York, 308 AD2d 400 [2003]). In opposition, the claimant failedto raise a triable issue of fact.
The Court of Claims also properly granted that branch of the defendant's motion which wasfor summary judgment dismissing so much of the Labor Law § 241 (6) claim as was basedupon 12 NYCRR 23-2.1. Although the provisions of 12 NYCRR 23-2.1 (a) containspecifications sufficiently concrete to sustain a Labor Law § 241 (6) claim, the Court ofClaims correctly concluded that the provisions were not applicable to this case (see Randazzov Consolidated Edison Co. of N.Y., 271 AD2d 667 [2000]). In opposition to the defendant'sprima facie showing on this issue, the claimant failed to raise a triable issue of fact as to whethermaterials were stored in a safe and orderly manner, or whether the piles of material were locatedso as to obstruct a passageway, walkway, or other thoroughfare. Dillon, J.P., Miller, Eng andChambers, JJ., concur.
[As amended by unreported motion dated Nov. 22, 2010 2010 NY Slip Op 88597(U).]