| Austin v Consolidated Edison, Inc. |
| 2010 NY Slip Op 09096 [79 AD3d 682] |
| December 7, 2010 |
| Appellate Division, Second Department |
| Roland Austin, Respondent-Appellant, v Consolidated Edison,Inc., et al., Appellants-Respondents. |
—[*1] Duffy & Duffy, Uniondale, N.Y. (Michael A. Santo and Frank Torres of counsel), forrespondent-appellant.
In an action to recover damages for personal injuries, the defendants appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated October 13,2009, as denied that branch of their motion which was for summary judgment dismissing so much of thecause of action to recover damages pursuant to Labor Law § 241 (6) as was based on analleged violation of 12 NYCRR 23-1.7 (d), and the plaintiff cross-appeals from so much of the sameorder as granted those branches of the defendants' motion which were for summary judgmentdismissing the cause of action to recover damages pursuant to Labor Law § 200 and so much ofthe cause of action to recover damages pursuant to Labor Law § 241 (6) as was based onalleged violations of 12 NYCRR 23-1.5 and 23-4.2.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs ordisbursements.
The defendants contracted with New York Plumbing Heating & Cooling Corporation (hereinafterthe contractor) to replace underground water main pipes at their Astoria facility. The agreementrequired the contractor to excavate a trench, lay the new pipes, and refill the trench. The excavatedmaterial, consisting of rock and gravel, was to be placed in a pile next to the trench so it could beused—provided testing for contaminants was negative—to refill the trench. At the end ofeach work day, the contractor was required to cover the pile of dirt and soil with a plastic tarp, with thetarp to be anchored down by solid cement blocks along the middle and on the corners. Since theproperty had been designated a hazardous waste site, the defendants required all of the contractor'sworkers to wear protective equipment, including rubber boots. The plaintiff alleged that on theafternoon of October 20, 2006, while wearing rubber boots, he stepped onto the tarp-covered pile ofsoil and dirt with the intention of crossing over it to secure a corner of the tarp, and that he fell as hewas crossing over the tarp-covered pile. The plaintiff testified at his deposition that the weather at thetime of the accident involved 60 mile-per-hour winds and "very" heavy rain.
The plaintiff commenced this action to recover damages pursuant to, inter alia, Labor [*2]Law §§ 200 and 241 (6). Following joinder of issue anddiscovery, the defendants moved for summary judgment dismissing the complaint. The Supreme Courtgranted the defendants' motion, except for that branch which was for summary judgment dismissing somuch of the cause of action to recover damages pursuant to Labor Law § 241 (6) as was basedon an alleged violation of 12 NYCRR 23-1.7 (d).
The Supreme Court properly denied that branch of the defendants' motion which was for summaryjudgment dismissing so much of the cause of action to recover damages pursuant to Labor Law§ 241 (6) as was based on an alleged violation of 12 NYCRR 23-1.7 (d). The defendants failedto establish their prima facie entitlement to judgment as a matter of law on that portion of the cause ofaction, as they failed to demonstrate that, under the circumstances, the tarp-covered pile of soil and dirtdid not qualify as an "elevated working surface" within the meaning of 12 NYCRR 23-1.7 (d) (seeDoyne v Barry, Bette & Led Duke, 246 AD2d 756, 759 [1998]; see also Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343, 350-351 [1998]; Hammond v International PaperCo., 178 AD2d 798, 799 [1991]).
The Supreme Court properly granted that branch of the defendants' motion which was forsummary judgment dismissing the cause of action to recover damages pursuant to Labor Law §200. To be held liable where, as here, the accident in question arose from the manner in which thework was being performed, it must be shown that the "party to be charged had the authority tosupervise or control the performance of the work" (Ortega v Puccia, 57 AD3d 54, 61 [2008]; see Comes v New YorkState Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). "[T]he right to generally supervise thework, stop the contractor's work if a safety violation is noted, or to ensure compliance with safetyregulations and contract specifications is insufficient to impose liability under Labor Law § 200 orfor common-law negligence" (Gasques vState of New York, 59 AD3d 666, 668 [2009], affd 15 NY3d 869 [2010]; seeRussin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]). Here, the defendants established,prima facie, that they did not "have the authority to control the activity bringing about the injury"(Russin v Louis N. Picciano & Son, 54 NY2d at 317; see Hurtado v Interstate Materials Corp., 56 AD3d 722 [2008]; cf.Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]). The deposition testimonyof the defendants' chief construction inspector demonstrated that the defendants' authority was limitedonly to ensuring compliance with safety regulations and contract specifications, which is insufficient toimpose liability under Labor Law § 200 (see Comes v New York State Elec. & GasCorp., 82 NY2d at 877; McLeod vCorporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796,798 [2007]; Peay v New York City SchoolConstr. Auth., 35 AD3d 566, 567 [2006]; Bink v F.C. Queens Place Assoc., LLC, 27 AD3d 408 [2006]). Inopposition, the plaintiff relied on, inter alia, the deposition testimony of the defendants' chiefconstruction inspector, as well as the plaintiff's own deposition testimony and affidavit, which wasinsufficient to raise a triable issue of fact as to whether the defendants possessed authority to superviseor control the work sufficient to render them liable under Labor Law § 200 (see Peay v NewYork City School Constr. Auth., 35 AD3d at 567; Cabrera v Board of Educ. of City of N.Y., 33 AD3d 641, 643 [2006];Bink v F.C. Queens Place Assoc., LLC,27 AD3d 408 [2006]).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Dickerson, Belen and Lott, JJ.,concur.