| White v Village of Port Chester |
| 2011 NY Slip Op 04043 [84 AD3d 946] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Garry M. White et al., Appellants, v Village of PortChester et al., Respondents, et al., Defendants. (And a Third-PartyAction.) |
—[*1] The McDonough Law Firm, LLP, New Rochelle, N.Y. (Jeffrey S. Peske of counsel), forrespondents Village of Port Chester, Port Chester IDA, G&S Investors, G&S Port Chester, LLC,G&S Investors/Jersey City, L.P., G&S Investors/Jersey City II, L.P., G&S Investors/WillowPark, L.P., Willow Park Enterprises, Inc., HR Construction and Renovations, Inc., andFarmingdale Maintenance Services, Inc. LeClair Ryan, New York, N.Y. (Timothy E. Shanley of counsel), for respondents EtreAssociates, Ltd., ELQ Industries, and B.M.B. Leasing Corporation. Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Jeffrey Briem of counsel),for respondent March Associates, Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.),entered January 28, 2010, as granted those branches of the separate motions of the defendantsVillage of Port Chester, Port Chester IDA, G&S Investors, G&S Port Chester, LLC, G&SInvestors/Jersey City, L.P., G&S Investors/Jersey City II, L.P., G&S Investors/Willow Park, L.P.,Willow Park Enterprises, Inc., HR Construction and Renovations, Inc., and FarmingdaleMaintenance Services, Inc., the defendant March Associates, Inc., and the defendants EtreAssociates, Ltd., ELQ Industries, and B.M.B. Leasing Corporation which were for summaryjudgment dismissing the complaint insofar as asserted against each of them.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the motion of the defendants Village of Port Chester, Port Chester IDA, G&SInvestors, G&S Port Chester, LLC, G&S Investors/Jersey City, L.P., G&S Investors/Jersey CityII, L.P., G&S Investors/Willow Park, L.P., Willow Park Enterprises, Inc., HR Construction andRenovations, Inc., and Farmingdale Maintenance Services, Inc., which was for summaryjudgment dismissing the complaint insofar as asserted against them and substituting therefor aprovision denying that branch of the motion, and (2) by deleting the provision thereof grantingthat branch of the motion of the defendants Etre Associates, [*2]Ltd., ELQ Industries, and B.M.B. Leasing Corporation which wasfor summary judgment dismissing the complaint insofar as asserted against them and substitutingtherefor a provision denying that branch of their motion; as so modified, the order is affirmedinsofar as appealed from, with one bill of costs to the defendant March Associates, Inc., payableby the plaintiffs, and one bill of costs to the plaintiffs payable by the defendants Village of PortChester, Port Chester IDA, G&S Investors, G&S Port Chester, LLC, G&S Investors/Jersey City,L.P., G&S Investors/Jersey City II, L.P., G&S Investors/Willow Park, L.P., Willow ParkEnterprises, Inc., HR Construction and Renovations, Inc., and Farmingdale MaintenanceServices, Inc., and the defendants Etre Associates, Ltd., ELQ Industries, and B.M.B. LeasingCorporation appearing separately and filing separate briefs.
As part of an urban renewal project, the defendant Village of Port Chester leased certain realproperty to a corporate entity known as G&S Port Chester, LLC (hereinafter G&S). G&S enteredinto agreements with several construction contractors, including the defendant March Associates,Inc. (hereinafter March Associates), as general contractor in the construction of the interiorportions of a building known as "retail G," and the defendant Etre Associates, Ltd. (hereinafterEtre), as contractor of the roadway and sidewalk areas outside retail G. Etre hired the defendantA.G. Construction Corp. to assist in the installation of the sidewalk by pouring the concrete.
In the course of delivering steel to retail G, the injured plaintiff, the employee of a nonpartytrucking company, parked his truck alongside a sidewalk area where newly-poured concrete wascovered with a plastic sheet that extended into the roadway. In order to reach the chains thatsecured the steel to the truck, the injured plaintiff stepped onto the edge of the plastic thatextended into the road, tripped on a brick that was under the plastic, and allegedly sustainedinjuries. The injured plaintiff and his wife, suing derivatively (hereinafter together the plaintiffs),commenced this action against the Village of Port Chester, G&S, and related entities (hereinaftercollectively the Port Chester defendants), along with March Associates, Etre, and related entities(hereinafter collectively the Etre defendants), alleging violations of Labor Law § 241 (6)and § 200, and common-law negligence.
Where, as here, the injured plaintiff's accident arose not from the manner in which the workwas performed, but rather from an allegedly dangerous condition at the work site, liability for aviolation of Labor Law § 200 and common-law negligence will be imposed if the propertyowner created the condition or had actual or constructive notice of it, and failed to remedy thecondition within a reasonable amount of time (see Slikas v Cyclone Realty, LLC, 78 AD3d 144, 147 [2010]; Aragona v State of New York, 74AD3d 1260, 1260-1261 [2010]; Bridges v Wyandanch Community Dev. Corp., 66 AD3d 938, 940[2009]).
Here, the Port Chester defendants failed to satisfy their prima facie burden of establishingtheir entitlement to judgment as a matter of law. The Port Chester defendants failed to offersufficient proof as to the last time they inspected the sidewalk or that the brick underneath theplastic sheet could not have been discovered upon a reasonable inspection (see Colon v Bet Torah, Inc., 66 AD3d731, 732 [2009]; cf. Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798,799-800 [2003]).
A general contractor may be held liable in common-law negligence and under Labor Law§ 200 if it had control over the work site and actual or constructive notice of the dangerouscondition (see Bridges v Wyandanch Community Dev. Corp., 66 AD3d at 940; Keating v Nanuet Bd. of Educ., 40AD3d 706, 707 [2007]).
Here, the Etre defendants, as the contractor hired to install the sidewalk, failed to establish,prima facie, that they lacked control over the sidewalk and, further, failed to establish, primafacie, that they neither created nor had actual or constructive notice of the alleged dangerouscondition (see Harsch v City of NewYork, 78 AD3d 781, 783 [2010]).
However, March Associates, as the contractor for six interior spaces at the subjectconstruction site demonstrated, prima facie, that it lacked control over the sidewalk (see Mugavero v Windows By Hart,Inc., 69 AD3d 694, 695 [2010]). In opposition, the plaintiffs failed to raise a triableissue of fact.[*3]
Labor Law § 241 (6) imposes a nondelegable dutyon owners, contractors, and their agents to provide reasonable and adequate protection and safetyfor workers and to comply with the specific safety rules and regulations promulgated by theCommissioner of the Department of Labor (see Ross v Curtis-Palmer Hydro-Elec. Co.,81 NY2d 494, 501-502 [1993]; Markeyv C.F.M.M. Owners Corp., 51 AD3d 734, 737 [2008]). In order to hold a subcontractoror statutory agent of the owner or general contractor absolutely liable under Labor Law §241, there must be a showing that the subcontractor or agent had the authority to supervise andcontrol the work giving rise to these duties (see Russin v Louis N. Picciano & Son, 54NY2d 311, 318 [1981]; Soltes vBrentwood Union Free School Dist., 47 AD3d 804, 805 [2008]; Everitt vNozkowski, 285 AD2d 442, 443 [2001]). Here, the Etre defendants failed to establish, primafacie, that they lacked the authority to supervise and control the work giving rise to the injuredplaintiff's accident (see Tomyuk vJunefield Assoc., 57 AD3d 518, 520-521 [2008]; Kelly v LeMoyne Coll., 199AD2d 942, 943 [1993]). However, March Associates met its prima facie burden of establishingits entitlement to judgment as a matter of law and, in opposition, the plaintiffs failed to raise atriable issue of fact.
Since the injured plaintiff was in the course of delivering materials for use at the constructionsite, and Labor Law § 241 (6) applies to workers and all those lawfully frequenting theconstruction site, the Port Chester and Etre defendants failed to eliminate all triable issues of factas to whether the injured plaintiff was engaged in construction work and, thus, entitled to theprotection of Labor Law § 241 (6) (see Simms v Elm Ridge Assoc., 259 AD2d 538[1999]; Williams v G.H. Dev. & Constr. Co., 250 AD2d 959, 961 [1998]; cf. Vernieriv Empire Realty Co., 219 AD2d 593, 595 [1995]).
The plaintiffs' cause of action to recover damages pursuant to Labor Law § 241 (6) ispremised on a violation of 12 NYCRR 23-1.7 (e) (2), which is a sufficiently specific, positivecommand (see Lane v Fratello Constr.Co., 52 AD3d 575, 576 [2008]). This provision of the Industrial Code was adequatelypleaded in the plaintiffs' bill of particulars. Moreover, the Port Chester and Etre defendants failedto establish, prima facie, that 12 NYCRR 23-1.7 (e) (2) is inapplicable to this case (see Treu v Cappelletti, 71 AD3d994, 998 [2010]). The injured plaintiff testified at his deposition that the brick in questionwas underneath the plastic sheet, and not on top of the sheet holding it down. Thus, the PortChester and Etre defendants failed to eliminate all triable issues of fact as to whether the brickwas integral to the work being performed or was debris (see Riley v J.A. Jones Contr., Inc., 54 AD3d 744, 745 [2008]).
The parties' remaining contentions either are academic in light of our determination orwithout merit.
Accordingly, the Supreme Court properly awarded summary judgment dismissing thecomplaint insofar as asserted against March Associates, but should not have awarded summaryjudgment dismissing the complaint insofar as asserted against the Port Chester defendants andthe Etre defendants. Mastro, J.P., Florio, Belen and Chambers, JJ., concur.
[Recalled and vacated, see 92 AD3d 872.]