| Robinson v County of Nassau |
| 2011 NY Slip Op 04030 [84 AD3d 919] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Robert Robinson, Appellant, v County of Nassau et al.,Respondents. |
—[*1] Fiedelman & McGaw, Jericho, N.Y. (Ross P. Masler of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (McCarty, J.), dated January 25, 2010, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of thedefendants' motion which was for summary judgment dismissing his causes of action allegingcommon-law negligence and violation of Labor Law § 200. The defendants establishedtheir prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff'saccident arose from the means and methods of his work, that the plaintiff's work was directedand controlled exclusively by his employer, and that they had no authority to exercise supervisorycontrol over his work (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876,877 [1993]; Pilato v 866 U.N. PlazaAssoc., LLC, 77 AD3d 644, 646 [2010]; Enriquez v B & D Dev., Inc., 63 AD3d 780, 781 [2009]; Cambizaca v New York City Tr. Auth.,57 AD3d 701, 702 [2008]; Ortega vPuccia, 57 AD3d 54, 61-62 [2008]; Peay v New York City School Constr. Auth., 35 AD3d 566, 567[2006]). In opposition to that branch of the motion, the plaintiff failed to raise a triable issue offact (see Quilliams v Half Hollow HillsSchool Dist. [Candlewood School], 67 AD3d 763 [2009]; Enriquez v B & D Dev.,Inc., 63 AD3d at 781; Ortega v Puccia, 57 AD3d at 63). In this regard, we note that"[t]he retention of the right to generally supervise the work, to stop the contractor's work if asafety violation is noted, or to ensure compliance with safety regulations, does not amount to the[authority to] supervise and control . . . necessary to impose liability on an owner orgeneral contractor pursuant to Labor Law § 200" (Cambizaca v New York City Tr.Auth., 57 AD3d at 702 [internal quotation marks omitted]; see McLeod v Corporation of PresidingBishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 798 [2007];Carty v Port Auth. of N.Y. & N.J., 32 AD3d 732, 733 [2006]; Dennis v City of NewYork, 304 AD2d 611, 612 [2003]).
The Supreme Court also properly granted that branch of the defendants' motion which wasfor summary judgment dismissing the causes of action premised on Labor Law § 241 (6).In order to support a claim for violation of Labor Law § 241 (6), the plaintiff is required toallege a violation of a [*2]specific, applicable Industrial Codeprovision (see Misicki v Caradonna,12 NY3d 511, 515 [2009]). The plaintiff identified the specific Industrial Code provisionswhich the defendants allegedly violated when he served a second supplemental bill of particulars.However, the provisions which he identified in his second supplemental bill of particulars did notraise a triable issue of fact sufficient to defeat the defendants' motion. 12 NYCRR 23-9.4 (a) istoo general to support a Labor Law § 241 (6) cause of action (see Brechue v Town ofWheatfield, 241 AD2d 935, 936 [1997]). Furthermore, the plaintiff's claim that thedefendants violated 12 NYCRR 23-9.4 (c) and (h) (2) because the payloader which ran over hisfeet was not on firm and level ground is contradicted by his deposition testimony, and thedeposition testimony of a witness who indicated that the accident occurred in an area that had notyet been excavated. The plaintiff also failed to raise a triable issue of fact as to whether 12NYCRR 23-9.4 (h), which prohibits unauthorized persons from standing adjacent to a machine inoperation, was violated (see Carroll vCounty of Erie, 48 AD3d 1076, 1078 [2008]; Mingle v Barone Dev. Corp., 283AD2d 1028 [2001]), or whether 12 NYCRR 23-9.8 (l), which requires forklifts to be equippedwith warning devices such as horns, was violated. In addition, 12 NYCRR 23-1.7 (e) isinapplicable to the facts of this case (seeSpence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936, 938 [2010]; Pope v Safety & Quality Plus, Inc., 74AD3d 1040, 1041 [2010]), and any violations of 12 NYCRR 23-9.8 (j) and 23-9.4 (e), (h)(1) and (5) were not a proximate cause of the accident.
The plaintiff's remaining contentions are without merit. Skelos, J.P., Eng, Austin and Cohen,JJ., concur.