| Gurung v Arnav Retirement Trust |
| 2010 NY Slip Op 09471 [79 AD3d 969] |
| December 21, 2010 |
| Appellate Division, Second Department |
| Sheree Dhorje A. Gurung et al., Respondents, v ArnavRetirement Trust et al., Appellants. (And a Third-Party Action.) |
—[*1] Chhetry & Associates (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac andMichael H. Zhu], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated October26, 2009, as denied those branches of their motion which were for summary judgment dismissing thecomplaint insofar as asserted by the plaintiffs Ghirme Gurung and Hira Gurung, and dismissing thecauses of action pursuant to Labor Law § 241 (6) and § 200 and alleging common-lawnegligence insofar as asserted by the plaintiff Sheree Dhorje A. Gurung, and granted the plaintiffs' crossmotion for summary judgment on the issue of liability on the causes of action pursuant to Labor Law§ 240 (1), (2) and § 241 (6).
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying thosebranches of the defendants' motion which were for summary judgment dismissing the causes of actionpursuant to Labor Law § 200 and alleging common-law negligence, and substituting therefor aprovision granting those branches of the motion, and (2) by deleting the provision thereof granting theplaintiffs' cross motion for summary judgment on the issue of liability on their causes of action pursuantto Labor Law § 240 (1), (2) and § 241 (6), and substituting therefor a provision denyingthe cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs tothe defendants, payable by the plaintiffs.
The plaintiffs Sheree Dhorje A. Gurung and Ghirme Gurung (hereinafter together the plaintiffs)were employees of a contractor hired by the defendants to repair the parapet of a roof of a buildingowned by the defendants. At the defendants' request, the plaintiffs' supervisor directed the plaintiffs toinspect the wall of the adjoining building, also owned by the defendants, which extended several floorsabove the roof of the first building, to determine if there was water damage behind the surface of thewall. The plaintiffs were standing on a scaffold using a jackhammer to remove bricks from an area ofthe wall which was bulging and covered in uneven bricks when approximately 30 to 35 bricks came offthe wall and struck the scaffold. The scaffold moved away from the wall, and the plaintiffs, who werenot wearing safety belts, fell into the gap between the [*2]scaffold andthe wall to the roof below.
The Supreme Court should have granted those branches of the defendants' motion which were forsummary judgment dismissing the Labor Law § 200 and common-law negligence causes ofaction. The defendants established, prima facie, that they had no authority to control the methods ormaterials of the plaintiffs' work and, in any event, the plaintiffs may not recover for injuries caused bythe very condition that they had undertaken to remedy (see Kowalsky v Conreco Co., 264NY 125, 128 [1934]; Bedneau v New YorkHosp. Med. Ctr. of Queens, 43 AD3d 845 [2007]; Skinner v G & T Realty Corp. ofN.Y., 232 AD2d 627 [1996]). In opposition, the plaintiffs failed to raise a triable issue of fact.
With respect to the causes of action pursuant to Labor Law § 240 (1), (2) and § 241(6), triable issues of fact remain regarding whether the sole proximate cause of the plaintiffs' injuries wastheir refusal to obey specific instructions to use an actually available safety device (see Cahill v Triborough Bridge & TunnelAuth., 4 NY3d 35, 39-40 [2004]; cf. Santo v Scro, 43 AD3d 897, 898-899 [2007]; Walls v Turner Constr. Co., 10 AD3d261, 262 [2004], affd 4 NY3d 861 [2005]). Accordingly, the Supreme Court properlydenied those branches of the defendants' motion which were for summary judgment dismissing theLabor Law §§ 240 and 241 causes of action, and should have denied the plaintiffs' crossmotion for summary judgment on the issue of liability on those causes of action.
The parties' remaining contentions either are not properly before this Court, are without merit, orneed not be reached in light of our determination. Rivera, J.P., Dickerson, Lott and Sgroi, JJ., concur.