| Harsch v City of New York |
| 2010 NY Slip Op 08070 [78 AD3d 781] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Darrin Harsch et al., Respondents, v City of New York etal., Respondents, and Brooklyn Union Gas Company, Appellant, et al., Defendant (AndThird-Party Actions.) |
—[*1] Hecht, Kleeger, Pintel & Damashek, New York, N.Y. (Ephrem J. Wertentiel of counsel), forplaintiffs-respondents. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and ScottShorr of counsel), for defendant-respondent City of New York. London Fischer LLP, New York, N.Y. (John E. Sparling, Michael J. Carro, and Alan J.Plumer of counsel), for defendant-respondent Felix Equities, Inc.
In an action to recover damages for personal injuries, etc., the defendant Brooklyn Union GasCompany appeals from so much of an order of the Supreme Court, Kings County (Velasquez, J.),dated May 11, 2009, as denied its cross motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the cross motion of the defendant Brooklyn Union Gas Company which was forsummary judgment dismissing the Labor Law § 240 (1) cause of action insofar as assertedagainst it, and substituting therefor a provision granting that branch of the cross motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements, and,upon searching the record, those branches of the respective cross motions of the defendants Cityof New York and Felix Equities, Inc., which were for summary judgment dismissing the LaborLaw § 240 (1) cause of action insofar as asserted as against each of them are granted, andthe determination in the order denying those branches of the respective cross motions is vacated.
The plaintiff Darrin Harsch (hereinafter the plaintiff) was a construction worker employed bya subcontractor performing gas service line repairs for the defendant Brooklyn Union GasCompany (hereinafter BUG). In the course of his work, the plaintiff employed an air [*2]compressor to operate the jackhammers and other tools he used toexcavate the street where the gas service lines were located. The plaintiff was injured when hefell on what he alleges was soft, loose, and uneven pavement, as he moved the air compressorfrom the location where he was excavating the street and repairing gas service lines, to thelocation on the street where he intended to hitch the air compressor to a truck. The plaintiff andhis wife, suing derivatively, commenced this action against, among others, BUG, the defendantFelix Equities, Inc. (hereinafter Felix), and the defendant City of New York, alleging violationsof Labor Law §§ 200, 240 (1) and § 241 (6), as well as common-lawnegligence. The Supreme Court, inter alia, denied BUG's cross motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, and also denied theCity's and Felix's respective cross motions for the same relief. BUG was the only party to file anotice of appeal.
Where, as here, a plaintiff's injuries stem not from the manner in which the work was beingperformed, but, rather, from an alleged dangerous or defective condition on or at the subjectpremises, a general contractor may be liable in common-law negligence and under Labor Law§ 200 if it has control over the work site, and either created, or had actual or constructivenotice of, the dangerous condition (seeMartinez v City of New York, 73 AD3d 993 [2010]; Ortega v Puccia, 57 AD3d 54, 61 [2008]; Van Salisbury v Elliott-Lewis, 55AD3d 725 [2008]). BUG failed to establish, prima facie, that it lacked control over thepremises containing the condition which caused the plaintiff's injury and, further, failed toestablish, prima facie, that it neither created nor had actual or constructive notice of the allegeddangerous condition (see Van Salisburyv Elliott-Lewis, 55 AD3d 725 [2008]; Lane v Fratello Constr. Co., 52 AD3d 575 [2008]; Foster vSpevack, 198 AD2d 892 [1993]). Therefore, the Supreme Court properly denied that branchof BUG's cross motion which was for summary judgment dismissing the Labor Law § 200and common-law negligence causes of action insofar as against it.
The Supreme Court also properly denied that branch of BUG's cross motion which was forsummary judgment dismissing the Labor Law § 241 (6) cause of action insofar as assertedagainst it. BUG failed to establish its prima facie entitlement to judgment as a matter of law withrespect to that cause of action since the plaintiff alleged a violation of 12 NYCRR § 23-1.7(e) (2) and it, in effect, conceded that the plaintiff alleged a violation of that Industrial Codeprovision. Accordingly, the plaintiff predicated his claim on a violation of a sufficiently specificand concrete Industrial Code provision (see McKee v Great Atl. & Pac. Tea Co., 73 AD3d 872 [2010];Boss v Integral Constr. Corp., 249 AD2d 214 [1998]; Baker v International PaperCo., 226 AD2d 1007 [1996]). Moreover, BUG failed to establish, prima facie, that theprovision identified was not applicable to the facts of the case (see Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494 [1993]; Boss v Integral Constr. Corp., 249 AD2d 214[1998]). The plaintiff, however, has abandoned, as against BUG, his reliance on provisions of theIndustrial Code other than 12 NYCRR 23-1.7 (e) (2), since he failed to address them in his brief(see Musillo v Marist Coll., 306 AD2d 782 [2003]; Fairchild v Servidone Constr.Corp., 288 AD2d 665, 667 n 3 [2001]).
Labor Law § 240 (1) was designed to prevent those types of accidents in which thesafety devices enumerated in the statute proved inadequate to shield the worker from harmdirectly flowing from the application of the force of gravity to an object or person (see Barillaro v Beechwood RB Shorehaven,LLC, 69 AD3d 543 [2010]). Here, BUG made a prima facie showing that the plaintiff'sinjuries were not the result of any height- or gravity-related risk within the ambit of Labor Law§ 240 (1), and that the plaintiff was not exposed to any risk the safety devices referenced inLabor Law § 240 (1) were designed to prevent or protect against (see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]; Madero v Pizzagalli Constr. Co., 62AD3d 670 [2009]). In opposition, the plaintiff failed to raise a triable issue of fact.Accordingly, the Supreme Court should have granted that branch of BUG's cross motion whichwas for summary judgment dismissing the Labor Law § 240 (1) cause of action insofar asasserted against it.
Moreover, this Court has the authority to search the record and award summary judgment toa nonappealing party with respect to an issue that was the subject of the motion before [*3]the Supreme Court (see CPLR 3212 [b]; Garcia v Lopez, 59 AD3d 593[2009]; Michel v Blake, 52 AD3d486 [2008]; Colon v Vargas, 27AD3d 512, 514 [2006]). Here, a search of the record demonstrates that, for the same reasonthat the Labor Law § 240 (1) cause of action is not viable insofar as asserted against BUG,it is not viable insofar as asserted against the City and Felix. Accordingly, the Supreme Courtshould have awarded summary judgment to the City and Felix dismissing the cause of actionalleging a violation of Labor Law § 240 (1) insofar as asserted against them. We decline,however, the requests of the City and Felix to search the record and award them summaryjudgment dismissing the Labor Law § 241 (6) cause of action insofar as asserted againstthem (see CPLR 5515; Sentino vValerio, 72 AD3d 1063 [2010]; Ferrara v Village of Chester, 57 AD3d 719, 720 [2008]; Castro v Maple Run CondominiumAssn., 41 AD3d 412, 414 [2007]).
The parties' remaining contentions are without merit or not properly before this Court.Mastro, J.P., Leventhal, Hall and Lott, JJ., concur.