| Fusca v A & S Constr., LLC |
| 2011 NY Slip Op 04414 [84 AD3d 1155] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Frank Fusca, Appellant, v A& S Construction, LLC,Respondent. (And a Third-Party Action.) |
—[*1] Craig P. Curcio, Middletown, N.Y. (Kevin P. Ahrenholz of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Putnam County (O'Rourke, J.), dated November 9, 2009, which, inter alia,denied that branch of his motion which was for summary judgment on the issue of liability on somuch of the complaint as alleged a violation of Labor Law § 241 (6) based on a violationof 12 NYCRR 23-1.7 (b) (1), and denied his cross motion for leave to amend the complaint andbill of particulars to assert a cause of action alleging a violation of Labor Law § 240 (1)and to allege a violation of 12 NYCRR 23-1.15, and (2) from an order of the same court datedNovember 10, 2009, which granted the defendant's motion for summary judgment dismissing thecomplaint.
Ordered that the order dated November 9, 2009, is modified, on the law, by deleting theprovision thereof denying that branch of the plaintiff's cross motion which was for leave toamend the complaint to assert a cause of action alleging a violation of Labor Law § 240(1), and substituting therefor a provision granting that branch of the cross motion; as so modified,the order dated November 9, 2009, is affirmed; and it is further,
Ordered that the order dated November 10, 2009, is reversed, on the law, and the defendant'smotion for summary judgment dismissing the complaint is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff allegedly sustained injuries when he fell from the ground floor to the basementthrough an unguarded, unfinished stairwell while working in a house under construction.Thereafter, the plaintiff commenced this action alleging violations of Labor Law §§200 and 241 (6). The plaintiff later alleged a violation of Labor Law § 240 (1) in hisamended bill of particulars.
The plaintiff moved for summary judgment on the issue of liability on so much of thecomplaint as alleged a violation of Labor Law § 241 (6), and also sought summaryjudgment on the issue of liability pursuant to Labor Law § 240 (1). The defendant thenmoved for summary judgment dismissing [*2]the complaint.Thereafter, the plaintiff cross-moved for leave to amend the complaint and bill of particulars toassert a cause of action alleging a violation of Labor Law § 240 (1) and to allege aviolation of 12 NYCRR 23-1.15. By separate orders dated November 9, 2009, and November 10,2009, the Supreme Court denied the plaintiff's motion and cross motion, and granted thedefendant's motion for summary judgment dismissing the complaint. This appeal ensued.
"Labor Law § 241 (6) imposes a nondelegable duty of reasonable care upon an owneror general contractor to provide reasonable and adequate protection to workers, and a violation ofan explicit and concrete provision of the Industrial Code by a participant in the constructionproject constitutes some evidence of negligence for which the owner or general contractor maybe held vicariously liable" (Edwards v C&D Unlimited, 295 AD2d 310, 311 [2002];see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350 [1998]). "An owner or generalcontractor may, of course, raise any valid defense to the imposition of vicarious liability undersection 241 (6), including contributory and comparative negligence" (Rizzuto v L.A. WengerContr. Co., 91 NY2d at 350). Here, in support of the branches of their respective motionswhich were for summary judgment with respect to so much of the complaint as alleged aviolation of Labor Law § 241 (6), neither the plaintiff nor the defendant established theirprima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]). Thus, while the Supreme Court properly denied that branch of theplaintiff's motion which was for summary judgment on the issue of liability on so much of thecomplaint as alleged a violation of Labor Law § 241 (6), the Supreme Court erred ingranting that branch of the defendant's motion which was to dismiss that portion of thecomplaint.
The plaintiff alleged a violation of Labor Law § 240 (1) only in the amended bill ofparticulars and not in the complaint. Therefore, the Supreme Court properly denied that branch ofthe plaintiff's motion which was for summary judgment on the issue of liability pursuant to LaborLaw § 240 (1), since he did not assert a cause of action in the complaint based on aviolation of that statute (see Castleton v Broadway Mall Props., Inc., 41 AD3d 410, 411[2007]; Webster v Supermarkets Gen. Corp., 209 AD2d 405 [1994]).
With respect to so much of the complaint as alleged a violation of Labor Law § 200,the accident arose from an alleged dangerous condition existing on the premises. "When apremises condition is at issue, a property owner is liable under Labor Law § 200 when theowner created the dangerous condition causing an injury or when the owner failed to remedy adangerous or defective condition of which he or she had actual or constructive notice"(Chowdhury v Rodriguez, 57 AD3d 121, 128 [2008]; see Ortega v Puccia, 57AD3d 54, 61 [2008]). Here, the defendant failed to establish, prima facie, that it neither createdthe allegedly dangerous or defective condition nor had actual or constructive notice of thatcondition. Accordingly, the Supreme Court should have denied that branch of the defendant'smotion which was to dismiss so much of the complaint as alleged a violation of Labor Law§ 200, regardless of the sufficiency of the opposing papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]).
Turning to the plaintiff's cross motion, "[l]eave to amend a pleading should be freely given(see CPLR 3025 [b]), provided that the amendment is not palpably insufficient, does notprejudice or surprise the opposing party, and is not patently devoid of merit" (Sheila Props.,Inc. v A Real Good Plumber, Inc., 59 AD3d 424, 426 [2009]; see Gitlin v Chirinkin,60 AD3d 901, 901-902 [2009]). Here, the Supreme Court should have granted that branch of theplaintiff's cross motion which was for leave to amend the complaint to assert a cause of actionalleging a violation of Labor Law § 240 (1), since the proposed amendment was neitherpalpably insufficient nor patently devoid of merit, and there was no evidence that the amendmentwould prejudice or surprise the defendant (see Lariviere v New York City Tr. Auth., 82AD3d 1165, 1167 [2011]; Perkins v Loewentheil & Daughters, 282 AD2d 510, 511[2001]). However, the Supreme Court properly denied that branch of the plaintiff's cross motionwhich was for leave to amend the pleadings to allege a violation of 12 NYCRR 23-1.15, whichsets standards for safety railings. 12 NYCRR 23-1.15 is inapplicable here because the plaintiffwas not provided with safety railings (see Forschner v Jucca Co., 63 AD3d 996, 998-999[2009]; Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 619 [2008]).Angiolillo, J.P., Belen, Chambers and Roman, JJ., concur.