| Fried v Always Green, LLC |
| 2010 NY Slip Op 07510 [77 AD3d 788] |
| October 19, 2010 |
| Appellate Division, Second Department |
| Joel Fried, Appellant-Respondent, v Always Green, LLC,Defendant/Third-Party Plaintiff-Respondent-Appellant. Castle House Development Inc.,Third-Party Defendant-Respondent. |
—[*1] Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Beth A. Kennelly ofcounsel), for defendant/third-party plaintiff-respondent-appellant. Cullen and Dykman, LLP, Brooklyn, N.Y. (Margaret Mazlin of counsel), for third-partydefendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisnotice of appeal and brief, from so much of an order of the Supreme Court, Kings County(Kramer, J.), dated July 22, 2009, as denied his motion for summary judgment on the issue ofliability and granted those branches of the cross motion of the defendant/third-party plaintiffwhich were for summary judgment dismissing his common-law negligence and LaborLaw§§ 200 and 240 (1) causes of action and so much of his Labor Law § 241(6) cause of action as was based on alleged violations of 12 NYCRR 23-1.7, 23-1.19, 23-1.20and 23-6.3, and the defendant/third-party plaintiff cross-appeals from so much of the same orderas denied that branch of its cross motion which was for summary judgment dismissing so muchthe plaintiff's Labor Law § 241 (6) cause of action as was based on an alleged violation of12 NYCRR 23-2.6 and granted the motion of the third-party defendant for summary judgmentdismissing the third-party complaint.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one billof costs payable by the defendant/third-party plaintiff to the third-party defendant, and one bill ofcosts payable by the plaintiff to the defendant/third-party plaintiff.
The plaintiff, an employee of the third-party defendant, Castle House Development, Inc.(hereinafter Castle House), allegedly was injured while standing outside a construction project inBrooklyn. The plaintiff alleged that while he was standing 10 to 18 feet away from a "dumpster,"a laborer also employed by Castle House tossed a bag of construction debris from the roof of thebuilding onto the plaintiff's head. The plaintiff subsequently commenced this action to recoverdamages for personal injuries against Always Green, LLC (hereinafter Always Green), the ownerof the subject premises, asserting causes of action sounding in common-law negligence and [*2]violations of Labor Law §§ 200, 240 (1) and §241 (6). Always Green then commenced a third-party action for common-law indemnificationagainst Castle House.
The Supreme Court properly denied that branch of the plaintiff's motion which was forsummary judgment on his Labor Law § 240 (1) cause of action and properly granted thatbranch of Always Green's cross motion which was for summary judgment dismissing that causeof action. The evidence submitted with the motion and the cross motion established that the bagof construction debris which struck the plaintiff was not material being hoisted or a load whichrequired securing for the purposes of the undertaking at the time it fell (see Roberts v GeneralElec. Co., 97 NY2d 737, 738 [2002]; Narducci v Manhasset Bay Assoc., 96 NY2d259, 268 [2001]; Harinarain vWalker, 73 AD3d 701, 702 [2010]; Donnelly v City of Niagara Falls, 5 AD3d 1103, 1104 [2004]).
The Supreme Court also properly denied that branch of the plaintiff's motion which was forsummary judgment on his common-law negligence and Labor Law § 200 causes of actionand properly granted that branch of Always Green's cross motion which was for summaryjudgment dismissing those causes of action. The evidence established that the injury arose out ofan alleged defect in the methods or materials of the work, and that Always Green did not havethe authority to supervise or control the performance of the work (see Persichilli v TriboroughBridge & Tunnel Auth., 16 NY2d 136, 146-147 [1965]; Ortega v Puccia, 57 AD3d 54, 61 [2008]).
Contrary to the contention of Always Green, the Supreme Court properly denied that branchof its motion which was for summary judgment dismissing so much of the plaintiff's Labor Law§ 241 (6) cause of action as was predicated on an alleged violation of 12 NYCRR 23-2.6,as there is a triable issue of fact regarding whether the absence of a required "catch platform" wasa proximate cause of the injury. Contrary to the contention of the plaintiff, however, the SupremeCourt properly granted those branches of Always Green's motion which were for summaryjudgment dismissing so much of the plaintiff's Labor Law § 241 (6) cause of action as waspredicated on alleged violations of 12 NYCRR 23-1.7, 23-1.19, 23-1.20 and 23-6.3, as AlwaysGreen established that those provisions are inapplicable to the case at bar (see Marin v AP-Amsterdam 1661 ParkLLC, 60 AD3d 824, 826 [2009]; Aloi v Structure-Tone, Inc., 2 AD3d 375, 376 [2003]), and inopposition, the plaintiff failed to raise a triable issue of fact.
Contrary to Always Green's contention, the Supreme Court properly granted Castle House'smotion for summary judgment dismissing the third-party complaint. Castle House made a primafacie showing of entitlement to judgment as a matter of law by establishing that the plaintiff didnot suffer a "grave injury" as defined by Workers' Compensation Law § 11 (see Rubeis v Aqua Club, Inc., 3 NY3d408 [2004]; Goodleaf v TzivosHashem, Inc., 68 AD3d 817 [2009]; Dechnik v Fortunato Sons, Inc., 58 AD3d 793, 794 [2009]). Inopposition, Always Green failed to raise a triable issue of fact.
The plaintiff's remaining contentions are without merit. Mastro, J.P., Dickerson, Eng andLott, JJ., concur.