| Pilato v 866 U.N. Plaza Assoc., LLC |
| 2010 NY Slip Op 07157 [77 AD3d 644] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Jason Pilato, Respondent, v 866 U.N. Plaza Associates, LLC,et al., Appellants, et al., Defendant. |
—[*1] Perez & Varvaro, Uniondale, N.Y. (Denise A. Cariello of counsel), for appellant Fross ZelnickLehrman & Zissu, P.C. Everett J. Peterson, P.C., Brooklyn, N.Y. (Michael A. Serpico of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants 866 U.N. Plaza Associates,LLC, and Vornado Office Management, LLC, appeal, as limited by their brief, from so much of anorder of the Supreme Court, Queens County (Satterfield, J.), dated July 27, 2009, as denied thosebranches of their cross motion which were for summary judgment dismissing the Labor Law §200 and common-law negligence causes of action insofar as asserted against them or, in the alternative,for summary judgment on their cross claim against the defendant Fross Zelnick Lehrman & Zissu, P.C.,and the defendant Fross Zelnick Lehrman & Zissu, P.C., separately appeals from so much of the sameorder as denied those branches of its separate cross motion which were for summary judgmentdismissing the Labor Law § 200 and common-law negligence causes of action insofar asasserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs tothe defendants 866 U.N. Plaza Associates, LLC, and Vornado Office Management, LLC, and thedefendant Fross Zelnick Lehrman & Zissu, P.C., appearing separately and filing separate briefs,payable by the plaintiff, those branches of the cross motion of the defendants 866 U.N. PlazaAssociates, LLC, and Vornado Office Management, LLC, and the separate cross motion of thedefendant Fross Zelnick Lehrman & Zissu, P.C., which were for summary judgment dismissing theLabor Law § 200 and common-law negligence causes of action insofar as asserted against themare granted, and that branch of the cross motion of the defendants 866 U.N. Plaza Associates, LLC,and Vornado Office Management, LLC, which was for summary judgment on their cross claim againstthe defendant Fross Zelnick Lehrman & Zissu, P.C., is denied as academic.
The plaintiff was employed as a lighting maintenance worker by BMSC Maintenance, [*2]which is not a party to this action. As part of his duties, he serviced lightsin a building owned by the defendant 866 U.N. Plaza Associates, LLC (hereinafter the owner), andmanaged by the defendant Vornado Office Management, LLC (hereinafter the managing agent). OnOctober 7, 2004, one of the building's tenants, the defendant Fross Zelnick Lehrman & Zissu, P.C.(hereinafter the tenant), contacted the managing agent and requested the plaintiff's services because anoverhead light had ceased functioning.
When the plaintiff arrived on the tenant's floor, one of the tenant's employees showed him thelocation of the light that had gone out. The plaintiff proceeded to change the light bulb, and when thatdid not remedy the problem, he decided to replace the ballast. Although the plaintiff later stated that heknew that he was working with "live" wires and that it would be safer to turn off the power, he did notask to have the power shut off. During the course of changing the ballast, he received an electricalshock.
The Supreme Court concluded that the owner, the managing agent, and the tenant established, as amatter of law, that they did not exercise supervision and control over the plaintiff's work, and that theirevidence was uncontroverted. Nevertheless, the Supreme Court denied summary judgment dismissingthe Labor Law § 200 and common-law negligence causes of action, on the ground that they had"notice of the condition which caused the plaintiff's injuries, to wit, the flow of electrical current to thelight bulb and ballast that the plaintiff was in the process of changing when he was injured."
A cause of action sounding in violation of Labor Law § 200 or common-law negligence mayarise from either dangerous or defective premises conditions at a work site or the manner in which thework is performed (see Ortega v Puccia,57 AD3d 54, 61 [2008]). Contrary to the conclusion of the Supreme Court, the plaintiff's injury"did not arise from a defective condition inherent on the . . . property, but rather, arose asa result of the allegedly defective 'means' utilized by him to perform his work" (Duarte v State of New York, 57 AD3d715, 716 [2008]; see McKee v GreatAtl. & Pac. Tea Co., 73 AD3d 872 [2010]; Jenkins v Walter Realty, Inc., 71 AD3d 954, 954 [2010]; Radoncic v Independence Garden OwnersCorp., 67 AD3d 981, 982 [2009]; Gomez v City of New York, 56 AD3d 522, 523-524 [2008]). The factthat electricity was flowing into the light fixture was not a defective condition, nor was it dangerous untilthe plaintiff decided to change the ballast without turning off the current.
Where, as here, "a claim arises out of alleged defects or dangers in the methods or materials of thework, recovery . . . cannot be had under Labor Law § 200 unless it is shown thatthe party to be charged had the authority to supervise or control the performance of the work"(Ortega v Puccia, 57 AD3d at 61; see Radoncic v Independence Garden OwnersCorp., 67 AD3d 981, 982 [2009]). "A defendant has the authority to supervise or control thework for purposes of Labor Law § 200 when that defendant bears the responsibility for themanner in which the work is performed" (Ortega v Puccia, 57 AD3d at 62).
However, "no liability will attach to the owner solely because it may have had notice of theallegedly unsafe manner in which work was performed" (Dennis v City of New York, 304AD2d 611, 612 [2003]; see Ortega v Puccia, 57 AD3d at 61). Moreover, "[a]lthoughproperty owners often have a general authority to oversee the progress of the work, mere generalsupervisory authority at a work site for the purpose of overseeing the progress of the work andinspecting the work product is insufficient to impose liability under Labor Law § 200"(Ortega v Puccia, 57 AD3d at 62; see Natale v City of New York, 33 AD3d 772, 773 [2006]).
Here, the owner, the managing agent, and the tenant satisfied their prima facie burden ofestablishing their entitlement to judgment as a matter of law by demonstrating that they did not have theauthority to supervise or control the performance of the plaintiff's work (see Jenkins v Walter Realty, Inc., 71 AD3d954, 954 [2010]; Fiallos v Vin's CrownRealty Assoc., 70 AD3d 630 [2010]; Kwang Ho Kim v D & W Shin Realty Corp.,47 AD3d 616, 620 [2008]). In opposition, the plaintiff failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Accordingly, the Supreme Court should have granted those branches of the cross motion of theowner and the managing agent, and the separate cross motion of the tenant, which were for summaryjudgment dismissing the Labor Law § 200 and common-law negligence causes of action insofaras asserted [*3]against them (see Lombardi v Stout, 80 NY2d290, 294 [1992]), and should have denied as academic that branch of the cross motion of the ownerand the managing agent which was for summary judgment on their cross claim against the tenant.Mastro, J.P., Chambers, Roman and Sgroi, JJ., concur.