| Shaw v RPA Assoc., LLC |
| 2010 NY Slip Op 06238 [75 AD3d 634] |
| July 27, 2010 |
| Appellate Division, Second Department |
| Frederic P. Shaw et al., Appellants-Respondents, v RPAAssociates, LLC, et al., Respondents-Appellants, and Patriot Ridge Development, LLC,Defendant/Third-Party Plaintiff-Respondent. Rockbusters, Doing Business as Brad Holland,Inc., Third-Party Defendant-Respondent. |
—[*1] Havkins Rosenfeld Ritzert & Varriale, LLP, White Plains, N.Y. (Carmen A. Nicolaou andStephen H. Rosenfeld of counsel), for respondents-appellants and defendant/third-partyplaintiff-respondent. Goldberg Segalla, LLP, White Plains, N.Y. (William T. O'Connell of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from ajudgment of the Supreme Court, Westchester County (Lefkowitz, J.), dated April 22, 2009,which, upon an order of the same court entered August 12, 2008, as amended November 18,2008, inter alia, granting the motion of the defendants RPA Associates, LLC, and AVR Realty,and the defendant/third-party plaintiff, Patriot Ridge Development, LLC, for summary judgmentdismissing the amended complaint and granting the third-party defendant's cross motion forsummary judgment dismissing the third-party complaint, dismissed the complaint and, in effect,dismissed the third-party complaint; and the defendants RPA Associates, LLC, and AVR Realtycross-appeal from so much of the same judgment as, in effect, dismissed the third-partycomplaint.
Ordered that the appeal and cross-appeal from so much of the judgment as, in effect,dismissed the third-party complaint are dismissed, as the plaintiffs and the defendants RPAAssociates, LLC, and AVR Realty are not aggrieved by that portion of the judgment (seeCPLR 5511); and it is further,
Ordered that the judgment is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendants and third-party defendant, payableby the plaintiffs.
The plaintiff Frederic P. Shaw (hereinafter Shaw), allegedly sustained injuries at aconstruction site when the dump truck that he was operating capsized and loose items in the cabof [*2]the truck pinned him down. Shaw, an employee of thethird-party defendant, Rockbusters, doing business as Brad Holland, Inc. (hereinafterRockbusters), claims to have been directed at the time of the accident by a fellow Rockbustersemployee. Shaw commenced the instant action alleging common-law negligence and violationsof Labor Law §§ 200, 240 (1) and § 241 (6). His wife asserted a derivativeclaim for loss of services. Patriot Ridge Development, LLC (hereinafter Patriot Ridge), AVRRealty (hereinafter AVR), and RPA Associates, LLC (hereinafter RPA), are affiliate companies.However, Patriot Ridge was the exclusive owner and developer of the land in connection withthe construction project, which entered into a subcontractor agreement with Rockbusters. Assuch, Patriot Ridge brought a third-party action against Rockbusters seeking, inter alia,indemnification. The plaintiffs challenge the Supreme Court's grant of the motion of RPA, AVR,and Patriot Ridge (hereinafter collectively the defendants) for summary judgment dismissing thecomplaint, as well as the grant of Rockbusters' cross motion for summary judgment dismissingthe third-party complaint, and RPA and AVR challenge the grant of Rockbusters' cross motionfor summary judgment dismissing the third-party complaint.
The plaintiffs' contention that the Supreme Court erred in granting relief which thedefendants did not request in their notice of motion is unavailing. Contrary to the plaintiff'scontention, the "wherefore" clause of the attorney's affirmation contains a request that the entirecomplaint be dismissed. The court may grant relief that is warranted pursuant to a general prayercontained in the notice of motion, "if the relief granted is not too dramatically unlike the reliefsought, the proof offered supports it, and there is no prejudice to any party" (Frankel v Stavsky, 40 AD3d 918,918-919 [2007]; see also Matter ofBlauman-Spindler v Blauman, 68 AD3d 1105, 1106 [2009]; HCE Assoc. v 3000Watermill Lane Realty Corp., 173 AD2d 774, 774-775 [1991]). The cause of action seekingdamages for common-law negligence implicates the same issues as the cause of action seekingdamages for violation of Labor Law § 200, which is but a codification of the common-lawduty of a landowner to provide workers with a reasonably safe place to work (see Ashjian v Orion Power Holdings,Inc., 70 AD3d 738, 740 [2010]; Piedra v Matos, 40 AD3d 610, 611 [2007]; Hunter v R.J.L. Dev., LLC, 44 AD3d822, 825 [2007]).
Where an alleged defect or dangerous condition arises from the methods or means of thework and the owner exercised no supervisory control over the operation, no liability fornegligence attaches to the owner under the common law or under Labor Law § 200(see Lombardi v Stout, 80 NY2d 290 [1992]). Here, the defendants established, primafacie, that neither RPA nor AVR owned the property or directed, supervised, or controlled thework performed by Shaw. In addition, they established, prima facie, that Patriot Ridge did notdirect, control, or supervise Shaw's work at the site.
The defendants further established, prima facie, that no liability attaches pursuant to LaborLaw § 240 (1) because Shaw's accident did not result from the type of accident "in whichthe scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injuredworker from harm directly flowing from the application of the force of gravity to an object orperson" (Runner v New York StockExch., Inc., 13 NY3d 599, 604 [2009], quoting Ross v Curtis-Palmer Hydro-Elec.Co., 81 NY2d 494, 501 [1993] [internal quotation marks omitted]; see also Williamson v16 W. 57th St. Co., 256 AD2d 507, 510 [1998]). In driving the truck, Shaw was not subjectto the "pronounced risks arising from construction work site elevation differentials" (Runnerv New York Stock Exch., Inc., 13 NY3d at 603). In addition, Shaw was not exposed to anyrisk that the safety devices referenced in Labor Law § 240 (1) would have protectedagainst (see Barillaro v Beechwood RBShorehaven, LLC, 69 AD3d 543 [2010]; Wynne v B. Anthony Constr. Corp., 53 AD3d 654, 655 [2008]).
The defendants further established, prima facie, that no liability attaches pursuant to LaborLaw § 241 (6) because the plaintiffs failed to allege a breach of a specific regulation of theIndustrial Code (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]). Althoughthe plaintiffs allege violations of regulations promulgated by the Occupational Safety and HealthAdministration, such alleged violations do not provide a basis for liability under Labor Law§ 241 (6) (see Cun-En Lin v HolyFamily Monuments, 18 AD3d 800, 802 [2005]; Ferreira v Unico Serv. Corp.,262 AD2d 524, 525 [1999]; Vernieri v Empire Realty Co., 219 AD2d 593, 598 [1995]).[*3]
In opposition, the plaintiffs failed to raise a triable issueof fact to defeat the grant of summary judgment on the above claims (see Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343 [1998]; Comes v New York State Elec. & GasCorp., 82 NY2d 876 [1993]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494[1993]).
Since the derivative cause of action is dependent upon Shaw's claims, this cause of actionwas also properly dismissed (see Baumblatt v Battalia, 134 AD2d 226, 229 [1987]).Mastro, J.P., Santucci, Chambers and Roman, JJ., concur.