| Ortiz v I.B.K. Enters., Inc. |
| 2011 NY Slip Op 05682 [85 AD3d 1139] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Pedro L. Ortiz, Appellant, v I.B.K. Enterprises, Inc.,Respondent. |
—[*1] Gallo Vitucci & Klar, LLP, New York, N.Y. (Yolanda L. Ayala of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated May12, 2010, as granted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, a truck driver employed by a cement supplier, was delivering cement to aconstruction site when he slipped and fell at the site, thereby sustaining injuries. The cement wasbeing delivered to the defendant, a subcontractor performing concrete work at the site. Theplaintiff commenced this action against the defendant subcontractor, alleging violations of LaborLaw §§ 200, 240 (1) and § 241 (6), and common-law negligence. TheSupreme Court granted the defendant's motion for summary judgment dismissing the complaint,and the plaintiff appeals.
The Supreme Court properly determined that the defendant subcontractor was entitled tosummary judgment dismissing the Labor Law § 200 cause of action. The defendantestablished, prima facie, that it did not have authority to supervise or control the area of the worksite where the plaintiff was injured (seeMartinez v City of New York, 73 AD3d 993, 998 [2010]). In opposition, the plaintifffailed to raise a triable issue of fact.
The defendant also established its entitlement to judgment as a matter of law dismissing thecause of action alleging common-law negligence. A subcontractor "may be held liable fornegligence where the work it performed created the condition that caused the plaintiff's injuryeven if it did not possess any authority to supervise and control the plaintiff's work or work area"(Poracki v St. Mary's R.C. Church,82 AD3d 1192, 1195 [2011] [internal quotation marks omitted]; see Erickson v Cross Ready Mix, Inc.,75 AD3d 519, 523 [2010]). An award of summary judgment in favor of a subcontractor on anegligence claim is improper "where the 'evidence raise[s] a triable issue of fact as to whether[the subcontractor's] employee created an unreasonable risk of harm that was the proximate causeof the injured plaintiff's injuries' " (Erickson v Cross Ready Mix, Inc., 75 AD3d at [*2]523, quoting Marano v Commander Elec., Inc., 12 AD3d 571, 572-573 [2004]).Here, the defendant demonstrated, prima facie, that it did not create the dangerous condition thatcaused the plaintiff's injury, and the plaintiff failed to raise a triable issue of fact in opposition.
The defendant demonstrated its prima facie entitlement to judgment as a matter of lawdismissing the causes of action alleging violations of Labor Law § 240 (1) and § 241(6). The defendant showed that it was not acting as a statutory agent of either the owner orgeneral contractor, and, therefore, could not be held liable under those statutory provisions (see Torres v LPE Land Dev. & Constr.,Inc., 54 AD3d 668, 669 [2008]; Kehoe v Segal, 272 AD2d 583, 584 [2000];see also Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]). In opposition, theplaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. Dillon, J.P., Covello, Chambers and Roman, JJ., concur.