| Frisbee v 156 R.R. Ave. Corp. |
| 2011 NY Slip Op 04571 [85 AD3d 1258] |
| June 2, 2011 |
| Appellate Division, Third Department |
| George H. Frisbee et al., Appellants, v 156 RailroadAvenue Corporation et al., Defendants, and J.M. Rich, LLC, et al.,Respondents. |
—[*1] Pennock, Breedlove & Noll, L.L.P., Clifton Park (John H. Pennock of counsel), forrespondents.
Lahtinen, J. Appeal from an order of the Supreme Court (O'Connor, J.), entered April 14,2010 in Albany County, which, among other things, granted a motion by defendants J.M. Rich,LLC and J.M. Rich Enterprises, Inc. for summary judgment dismissing the complaint againstthem.
Plaintiff George H. Frisbee (hereinafter plaintiff) was installing a security system at abuilding undergoing renovations when he allegedly slipped and fell on carpet glue recentlyapplied to the cement floor by a subcontractor on the project. The building was owned bydefendant 156 Railroad Avenue Corporation and the relevant portion had been leased todefendant Hanes Supply, Inc. and related defendant entities (hereinafter collectively referred to asHanes Supply). 156 Railroad contracted to have defendant Landmark Flooring Concept, Inc.renovate the premises, and Landmark subcontracted the carpeting work to defendants J.M. Rich,LLC and J.M. Rich Enterprises, Inc. (hereinafter collectively referred to as J.M. Rich). HanesSupply contracted with plaintiff's employer, Sonitrol Security, for installation of a securitysystem. Employees of J.M. Rich applied glue to the floor in preparation for installing a new [*2]carpet, but before they placed the carpet, plaintiff entered the roomand fell.
Plaintiff and his wife, derivatively, commenced this action alleging liability undercommon-law negligence, Labor Law § 200 and Labor Law § 241 (6). Followingdisclosure, the parties made various substantive and procedural motions. Prior to SupremeCourt's decision, plaintiffs discontinued their action as to 156 Railroad, Hanes Supply andLandmark. Supreme Court then granted J.M. Rich's motion for summary judgment dismissingthe complaint in its entirety. Plaintiffs appeal contending that there are factual issues as to theirLabor Law § 200 and common-law negligence causes of action.
The Labor Law § 200 cause of action was properly dismissed. That statute is directedat owners and general contractors, and the "rare case" where a subcontractor may be liable underthe statute must include a showing that the subcontractor had "authority and control overplaintiff's 'work' " (Ryder v Mount Loretto Nursing Home, 290 AD2d 892, 894 [2002];see Bell v Bengomo Realty, Inc., 36AD3d 479, 481 [2007]; Rice v City of Cortland, 262 AD2d 770, 772 [1999]; see generally Guclu v 900 Eighth Ave.Condominium, LLC, 81 AD3d 592, 593 [2011]; Walsh v Sweet Assoc., 172AD2d 111, 113-114 [1991], lv denied 79 NY2d 755 [1992]). J.M. Rich was asubcontractor of the general contractor, who had been hired by the owner. Plaintiff was on thepremises as an employee of a security firm retained by the lessee. There is no proof that J.M.Rich had any authority or control over plaintiff's work and, thus, Labor Law § 200 liabilityby J.M. Rich is not implicated on these facts.
We find merit, however, in plaintiffs' argument that they raised triable issues regardingnegligence. Where a subcontractor creates a condition on the premises that results in anunreasonable risk of harm and that condition is a proximate cause of a worker's injuries, thencommon-law negligence may be implicated (see Bell v Bengomo Realty, Inc., 36 AD3dat 481; Ryder v Mount Loretto Nursing Home, 290 AD2d at 894). Here, there wastestimony by one individual familiar with commercial carpeting who described the glue as being"like ice" when first applied. Plaintiff testified at his deposition that he did not know glue hadbeen applied, there were no barriers or caution tape in the doorway and none of the carpetinstallers otherwise warned him. According to plaintiff, when he walked into the room to attendto his work, he could not see the glue because the room had no windows and it was dimly lit.J.M. Rich contested much of plaintiff's testimony and presented contrary proof regarding keyfacts. However, the evidence must be viewed in the light most favorable to the opponent ofsummary judgment (see e.g. Bailey vCounty of Tioga, 77 AD3d 1251, 1253 [2010]). Plaintiffs' proof presented a scenario ofJ.M. Rich leaving a dimly lit room with a slippery surface and no warnings while knowing thatother workers were in the vicinity. This is sufficient to raise a triable issue as to common-lawnegligence.
Mercure, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as granted the motion ofdefendants J.M. Rich, LLC and J.M. Rich Enterprises, Inc. for summary judgment dismissing thecommon-law negligence cause of action against them; motion denied to that extent; and, as somodified, affirmed.