| Ozimek v Holiday Val., Inc. |
| 2011 NY Slip Op 02568 [83 AD3d 1414] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| Daniel E. Ozimek et al., Respondents-Appellants, v Holiday Valley,Inc., et al., Appellants-Respondents. |
—[*1] Ahmuty, Demers & McManus, Albertson (Erin D. Roach of counsel), fordefendant-appellant-respondent Sodexho, Inc. Fessenden, Laumer & Deangelo, Jamestown (J. Kevin Laumer of counsel), forplaintiffs-respondents-appellants.
Appeals and cross appeal from an order of the Supreme Court, Chautauqua County (JamesH. Dillon, J.), entered January 6, 2010 in a personal injury action. The order granted in part themotions of defendants for summary judgment by dismissing plaintiffs' Labor Law § 241(6) cause of action and denied the cross motion of plaintiffs for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of the motion of defendant Sodexho, Inc. seeking summary judgmentdismissing the Labor Law § 200 and common-law negligence claims against it anddismissing those claims against it and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence actionseeking damages for injuries allegedly sustained by Daniel E. Ozimek (plaintiff) when he fellfrom a ladder while working on a commercial freezer at a ski resort owned and operated byHoliday Valley, Inc. and Win-Sum Ski Corp. (collectively, Win-Sum defendants). The freezerwas operated by defendant Sodexho, Inc. (Sodexho). Plaintiffs asserted, inter alia, claims forviolations of Labor Law §§ 200, 240 (1) and § 241 (6) and common-lawnegligence. The Win-Sum defendants and Sodexho filed separate motions for summary judgmentdismissing the amended complaint against them and for summary judgment on their respectivecross claims for indemnification. Plaintiffs cross-moved for partial summary judgment onliability with respect to the Labor Law § 240 (1) claim. Supreme Court granted those partsof the motions of the Win-Sum defendants and Sodexho for summary judgment dismissing theLabor Law § 241 (6) claim against them and denied plaintiffs' cross motion.
With respect to the appeals of the Win-Sum defendants and Sodexho and plaintiffs' crossappeal, we conclude that Supreme Court properly denied the motions and cross motion with[*2]respect to the Labor Law § 240 (1) claim. Initially, weagree with plaintiffs that they met their initial burden on the cross motion of establishing thatplaintiff was engaged in repair work that is covered under the statute. As defendants correctlynote, "[i]t is well settled that the statute does not apply to routine maintenance in anon-construction, non-renovation context" (Koch v E.C.H. Holding Corp., 248 AD2d510, 511 [1998], lv denied 92 NY2d 811 [1998]; see Jehle v Adams HotelAssoc., 264 AD2d 354, 355 [1999]; Howe v 1660 Grand Is. Blvd., 209 AD2d 934[1994], lv denied 85 NY2d 803 [1995]). "Where a person is investigating a malfunction,however, efforts in furtherance of that investigation are protected activities under Labor Law§ 240 (1)" (Short v Durez Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972,973 [2001]; see Craft v Clark Trading Corp., 257 AD2d 886, 887 [1999]). "Here,plaintiff was injured while 'troubleshooting' an uncommon [freezer] malfunction, which is aprotected activity under [the statute]" (Pieri v B&B Welch Assoc., 74 AD3d 1727, 1729 [2010]), and "noviable issue has arisen challenging the characterization of plaintiff's work" (Craft, 257AD2d at 887).
We further conclude, however, that defendants raised a triable issue of fact whether plaintiff'sactions were the sole proximate cause of his injuries. Plaintiffs submitted, inter alia, thedeposition testimony of plaintiff, who testified that he fell to the ground when the ladder onwhich he was standing slid out from under him, thereby establishing that the ladder failed toprovide "proper protection" pursuant to Labor Law § 240 (1) (see Dowling v McCloskey CommunityServs. Corp., 45 AD3d 1232, 1233 [2007]; Blair v Cristani, 296 AD2d 471[2002]). Defendants, however, raised a triable issue of fact by submitting the affidavit of awitness who averred that plaintiff admitted that "he fell because he missed [the ladder] whiledescending [from the area in which he was working] and [that the witness] saw the ladderstanding erect after plaintiff fell" (Hamill v Mutual of Am. Inv. Corp., 79 AD3d 478, 479 [2010]; see Antenucci v Three Dogs, LLC, 41AD3d 205 [2007]; Arigo vSpencer, 39 AD3d 1143, 1144-1145 [2007]; Anderson v Schul/Mar Constr.Corp., 212 AD2d 493 [1995]).
We agree with Sodexho on its appeal that the court erred in denying those parts of its motionfor summary judgment dismissing the Labor Law § 200 and common-law negligenceclaims against it, and we therefore modify the order accordingly. It is well settled that, unlikeother sections of the Labor Law, "section 200 is a codification of the common-law duty imposedupon an owner or general contractor to maintain a safe construction site" (Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343, 352 [1998]; see Comes v New York State Elec. & GasCorp., 82 NY2d 876, 877 [1993]). Thus, where, as here, "a plaintiff's injuries stem not fromthe manner in which the work was being performed[ ] but, rather, from a dangerous condition onthe premises, [an owner or] general contractor may be liable in common-law negligence andunder Labor Law § 200 if it has control over the work site and actual or constructive noticeof the dangerous condition" (Keating vNanuet Bd. of Educ., 40 AD3d 706, 708 [2007]; see Lane v Fratello Constr. Co., 52 AD3d 575 [2008]). Defendants,as the parties seeking summary judgment dismissing those claims, were required to "establish asa matter of law that they did not exercise any supervisory control over the general condition ofthe premises or that they neither created nor had actual or constructive notice of the dangerouscondition on the premises" (Perry v City of Syracuse Indus. Dev. Agency, 283 AD2d1017, 1017 [2001]; see generallyHennard v Boyce, 6 AD3d 1132, 1133 [2004]). Sodexho met its initial burden byestablishing that it did not control the premises upon which the accident occurred, and plaintiffsfailed to raise a triable issue of fact with respect to Sodexho's alleged control (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]).
We further conclude, however, that the court properly denied those parts of the motion of theWin-Sum defendants for summary judgment dismissing the Labor Law § 200 andcommon-law negligence claims against them. It is undisputed that the Win-Sum defendantscontrolled the premises upon which the accident occurred, and they "failed to meet their burdenof establishing in support of their motion that they had no constructive notice of the condition,i.e., they failed to [*3]establish as a matter of law that thecondition was not visible and apparent or that it had not existed for a sufficient length of timebefore the accident to permit [the Win-Sum] defendants or their employees to discover andremedy it" (Finger v Cortese, 28AD3d 1089, 1091 [2006]; seegenerally Merrill v Falleti Motors, Inc., 8 AD3d 1055 [2004]; cf. Gilbert v Evangelical Lutheran Churchin Am., 43 AD3d 1287, 1288 [2007], lv denied 9 NY3d 815 [2007]).
We have considered the remaining contentions of the parties and conclude that they arewithout merit. Present—Smith, J.P., Fahey, Carni, Lindley and Gorski, JJ.