| Cody v State of New York |
| 2011 NY Slip Op 01968 [82 AD3d 925] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Thomas Cody, Appellant, v State of New York,Respondent. |
—[*1] Betancourt, Van Hemmen, Greco & Kenyon LLC, New York, N.Y. (Todd P. Kenyon andJoseph P. Cardillo of counsel), for respondent.
In a claim to recover damages for personal injuries, the claimant appeals from (1) a decisionof the Court of Claims (Lack, J.), dated December 31, 2009, and (2) a judgment of the same courtdated February 18, 2010, which, upon the decision, made after a nonjury trial on the issue ofliability, is in favor of the defendant and against him dismissing the claim.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The claimant allegedly was injured while working as a carpenter at a construction project ona bridge owned by the State of New York. After assisting in the installation of wooden forms thatwere to serve as frames for concrete which was to be poured, the claimant descended a ladderand, upon alighting from the bottom rung, stepped on a two-by-four piece of lumber, causing himto twist his leg. The claimant commenced this claim against the State, alleging, inter alia,common-law negligence and violations of Labor Law §§ 200 and 241 (6).
Labor Law § 200 is a codification of the common-law duty imposed upon an owner orgeneral contractor to maintain a safe construction site (see Rizzuto v L.A. Wenger Contr.Co., 91 NY2d 343, 352 [1998]). "Cases involving Labor Law § 200 fall into two broadcategories: namely, those where workers are injured as a result of dangerous or defectivepremises conditions at a work site, and those involving the manner in which the work isperformed" (Ortega v Puccia, 57AD3d 54, 61 [2008]).
Contrary to the claimant's contention, the injuries in this case arose from the manner [*2]in which the work was performed (see La Veglia v St. Francis Hosp., 78AD3d 1123 [2010]; McKee v GreatAtl. & Pac. Tea Co., 73 AD3d 872, 873-874 [2010]), and not from a dangerous ordefective premises condition (seeKeating v Nanuet Bd. of Educ., 40 AD3d 706, 708-709 [2007]; see also Aragona v State of New York,74 AD3d 1260, 1260 [2010] [accident arose from allegedly dangerous condition on worksite where claimant "tripped on a padeye," a permanent fixture "which was welded to the deck ofa work barge"]). Although an accumulation of debris on property where construction is beingperformed may, in some cases, constitute a defective premises condition, requiring an inquiryinto whether the property owner created the condition or had notice of it (see e.g. Aguilera v Pistilli Constr. & Dev.Corp., 63 AD3d 763, 764 [2009] [plaintiff "allegedly slipped on debris while walkingdown a staircase from the work site on the fourth floor to a lower level"]), the piece of lumberthat caused the claimant's injuries was one of the materials being used by the claimant'scoworkers, and came to be situated at the foot of the ladder as a result of, and during the courseof, the ongoing work at the construction site (see Gomez v City of New York, 56 AD3d 522, 523 [2008];Mas v Kohen, 283 AD2d 616 [2001]).
This case is distinguishable from Slikas v Cyclone Realty, LLC (78 AD3d 144 [2010]), where theplaintiff allegedly was injured when she tripped over a crowbar that had been left on the floor ather workplace by employees of a painting contractor hired by the property owner. This Courtheld that the owner was not entitled to summary judgment dismissing the cause of action alleginga violation of Labor Law § 200, since the owner had presented no evidence as to how longthe mislaid crowbar had been present prior to the plaintiff's accident, and thus had failed to makea prima facie showing that it lacked constructive notice of the alleged hazardous condition. Inconcluding that the crowbar constituted a dangerous premises condition, this Court explained:"The mislaid crowbar was not, at the time of the accident, being used by the painters. . . The plaintiff's accident occurred at a time of day when the painters had alreadyceased their work and were no longer using their tools, including the crowbar at issue. Therefore,the crowbar was not part of the painters' work at the time of the accident, but was a mereconsequence of it after the day's work had been completed" (id. at 148). Thus, theSlikas case would have fallen into the "means and methods of the work" category if theobject on which the plaintiff stumbled had been a product of ongoing construction work, which isprecisely the situation presented in the instant case.
Thus, in this case, "the alleged defect or dangerous condition [arose] from the contractor'smethods" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993];see Lombardi v Stout, 80 NY2d 290, 295 [1992]), and "no liability will attach to theowner solely because it may have had notice of the allegedly unsafe manner in which work wasperformed" (Dennis v City of New York, 304 AD2d 611, 612 [2003]; see Comes vNew York State Elec. & Gas Corp., 82 NY2d at 877). Rather, in such a case, the defendantcan be held liable under Labor Law § 200 and the common law only if it had "the authorityto supervise or control the performance of the work" (Ortega v Puccia, 57 AD3d at 61;see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 352; Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 505 [1993]; Lombardi v Stout, 80 NY2d at 295). "Adefendant has the authority to supervise or control the work for purposes of Labor Law §200 when that defendant bears the responsibility for the manner in which the work is performed"(Ortega v Puccia, 57 AD3d at 62).
The record supports the trial court's determination that the defendant had no supervisoryauthority over the claimant or the work being performed at the time of his accident. Accordingly,the trial court properly dismissed the claim alleging common-law negligence and a violation ofLabor Law § 200.
There is no merit to the claimant's contention that the trial court erred in dismissing his LaborLaw § 241 (6) claims based on 12 NYCRR 23-1.7 (e) (1), (2); 23-2.1 (a) (1) and 23-2.2 (b)and (d).
12 NYCRR 23-1.7 (e) (1), which requires owners and general contractors, inter alia, to keepall passageways free of debris which could cause tripping, is inapplicable because the accidentsite was not a passageway but an open work area (see Castillo v Starrett City, 4 AD3d 320, [*3]322 [2004]). 12 NYCRR 23-1.7 (e) (2), which requires owners andgeneral contractors to keep "[t]he parts of floors, platforms and similar areas where persons work. . . free from accumulations of dirt and debris . . . insofar as may beconsistent with the work being performed," is inapplicable because the material over which theclaimant alleges he tripped was integral to the work being performed (see O'Sullivan v IDI Constr. Co., Inc.,7 NY3d 805, 806 [2006]; Smith vNew York City Hous. Auth., 71 AD3d 985, 987 [2010]). 12 NYCRR 23-2.1 (a) (1),which requires owners and general contractors to store "[a]ll building materials . . .in a safe and orderly manner" so they "do not obstruct any passageway, walkway, stairway orother thoroughfare," is inapplicable because the material that caused the claimant to fall was notbeing stored but was in use, and the area where the accident occurred was not a "passageway,walkway, stairway or other thoroughfare" (12 NYCRR 23-2.1 [a] [1]; see Castillo v StarrettCity, 4 AD3d at 321).
12 NYCRR 23-2.2 (b), which requires owners and general contractors to "continuouslyinspect the stability of all forms, shores and reshores including all braces and other supportsduring the placing of concrete" and to remedy "[a]ny unsafe condition . . .immediately," is inapplicable, as the claimant's injuries were not caused by an unstable form,shore, or brace during the placing of concrete (see Gielow v Coplon Home, 251 AD2d970, 972 [1998]). 12 NYCRR 23-2.2 (d), which requires, inter alia, that "[a]fter stripping, formsshall be promptly stockpiled or removed from areas in which persons are required to work orpass," also is inapplicable, as the claimant failed to establish that the material which caused theaccident came from stripping. Instead, he testified that he did not know how the piece of lumberwhich caused the accident came to be situated beneath the ladder from which he stepped.
The claimant's remaining contentions are without merit. Prudenti, P.J., Angiolillo, Florio andSgroi, JJ., concur.