| Salsinha v Malcolm Pirnie, Inc. |
| 2010 NY Slip Op 06287 [76 AD3d 411] |
| August 3, 2010 |
| Appellate Division, First Department |
| Rui Salsinha et al., Appellants, v Malcolm Pirnie, Inc., etal., Respondents. |
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Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered April 1, 2009,which, to the extent appealed from as limited by the briefs, granted defendants' motions forsummary judgment dismissing plaintiff's Labor Law § 241 (6) and§ 200 and common-law negligence claims, unanimously modified, on the law, to deny somuch of the motion as sought to dismiss the Labor Law § 241 (6) cause of action, andotherwise affirmed, without costs.
Defendant Malcolm Pirnie, Inc. contends that, as the construction manager on the project, itcannot be held liable under Labor Law § 241 (6) (see Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]). Wefind that whether Pirnie is subject to statutory liability in this case cannot be determined as amatter of law, in view of the terms of Pirnie's contract with defendant Department ofEnvironmental Protection (DEP), which permitted Pirnie to choose subcontractors, and thetestimony of the safety engineer for the injured plaintiff's employer that Pirnie was in charge ofconstruction (while another entity hired by DEP was in charge of safety inspection) (see Mulcaire v Buffalo Structural SteelConstr. Corp., 45 AD3d 1426, 1428 [2007]).
The Labor Law § 200 and common-law negligence claims were correctly dismissed,since the record demonstrates that the injured plaintiff's injuries arose from the manner in whichplaintiff performed his work, not from a defective condition of the workplace, and that none ofthe defendants exercised any control over plaintiff's work methods (see Comes v New YorkState Elec. & Gas Corp., 82 NY2d 876 [1993]; Blessinger v Estee Lauder Cos., 271AD2d 343 [2000]).
While the other Industrial Code provisions relied on by plaintiff are either inapplicable to thefacts of this case or insufficiently specific to permit recovery under Labor Law § 241 (6),the record presents issues of fact that preclude summary dismissal of the section 241 (6) claiminsofar as it is based on an alleged violation of Industrial Code (12 NYCRR) § 23-9.2 (a).This provision "imposes an affirmative duty on employers to 'correct[ ] by necessary repairs orreplacement' 'any structural defect or unsafe condition' in equipment or machinery '[u]pondiscovery' or [*2]actual notice of the structural defect or unsafecondition" (Misicki v Caradonna,12 NY3d 511, 521 [2009] [quoting the regulation]). The record demonstrates that thedriver's side door of the truck plaintiff used could not be opened from the inside; that, as a result,plaintiff had begun starting the truck while sitting in the driver's seat with one leg outside to keepthe door from closing; and that on the day of the accident the truck moved while plaintiff was inthat position, plaintiff fell onto the ground, and one wheel of the truck rolled over him. Whetherthe inability to open the truck door constitutes a "structural defect or unsafe condition" within themeaning of 12 NYCRR 23-9.2 (a) and, if so, whether this structural defect or unsafe conditionwas the proximate cause of plaintiff's injuries must be determined by a factfinder (seeMisicki, 12 NY3d at 521). Contrary to defendants' contention, their own lack of notice of thecondition of the truck door is of no moment, since the record demonstrates that plaintiff'semployer had been alerted to the problem before the day of the accident (see id.;Leon v Peppe Realty Corp., 190 AD2d 400, 408-409 [1993]). We note that defendantshave not challenged the application of subpart 23-9 of the Industrial Code (which includessection 23-9.2) to a truck of the kind involved in the subject incident. Concur—Friedman,J.P., Nardelli, Moskowitz, Freedman and Manzanet-Daniels, JJ.