| Gray v City of New York |
| 2011 NY Slip Op 06339 [87 AD3d 679] |
| August 23, 2011 |
| Appellate Division, Second Department |
| John Gray, Respondent, v City of New York et al.,Appellants. |
—[*1] Frank J. Laine, P.C., Plainview, N.Y. (Frank Braunstein of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), datedJuly 7, 2010, as denied those branches of their motion which were for summary judgmentdismissing the causes of actions alleging common-law negligence and a violation of Labor Law§ 200 and so much of the cause of action alleging a violation of Labor Law § 241 (6)as was based upon an alleged violation of 12 NYCRR 23-1.22 (b) (2).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the defendants' motion which were for summary judgment dismissing the causes ofaction alleging common-law negligence and a violation of Labor Law § 200 and so muchof the cause of action alleging a violation of Labor Law § 241 (6) as was based upon analleged violation of 12 NYCRR 23-1.22 (b) (2) are granted.
The plaintiff, a union steward employed by a general contractor working at the NewtownCreek Water Pollution Control Plant, owned by the defendant City of New York, allegedly wasinjured when he stepped on a wooden ramp while alighting from his truck. According to theplaintiff, the ramp separated underneath his feet, causing him to fall to the ground. The plaintiffcommenced this action against the City and the New York City Department of EnvironmentalProtection, alleging, inter alia, common-law negligence and violations of Labor Law§§ 200 and 241 (6). After discovery, the defendants moved for summary judgmentdismissing the complaint. Insofar as relevant to this appeal, the Supreme Court denied thosebranches of the motion which were for summary judgment dismissing the Labor Law §200 and common-law negligence causes of action and so much of the Labor Law § 241 (6)cause of action as was based upon an alleged violation of 12 NYCRR 23-1.22 (b) (2).
Labor Law § 200 codifies the common-law duty to maintain a safe work site (seeJock v Fien, 80 NY2d 965, 967 [1992]). Where, as here, a plaintiff contends that an accidentoccurred because a dangerous condition existed on the premises, an owner moving for summaryjudgment dismissing Labor Law § 200 and common-law negligence causes of action hasthe initial burden of making a [*2]prima facie showing that itneither created the dangerous condition nor had actual or constructive notice of its existence (see Navarro v City of New York, 75AD3d 590, 591-592 [2010]; Chowdhury v Rodriguez, 57 AD3d 121, 131-132 [2008]). Toprovide constructive notice, the defect must be visible and apparent and exist for a sufficientlength of time prior to the accident to permit the defendant to discover and remedy it (seeGordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
Here, the defendants established their prima facie entitlement to judgment as a matter of lawbased upon evidence that they did not create the alleged dangerous condition and that they had noactual or constructive notice of the condition. The plaintiff's own deposition testimony, submittedin support of the motion, demonstrated that the defect was not visible and apparent. Inopposition, the plaintiff failed to raise a triable issue of fact (see Applegate v Long Is. Power Auth., 53 AD3d 515, 516 [2008];Curiale v Sharrotts Woods, Inc., 9AD3d 473, 475 [2004]; compareSlikas v Cyclone Realty, LLC, 78 AD3d 144, 149 [2010]; Colon v Bet Torah, Inc., 66 AD3d731 [2009]).
Even if the plaintiff's injury were considered to arise from the manner in which work wasperformed, the defendants met their prima facie burden by showing they lacked the authority tosupervise and control the plaintiff's work (see Ortega v Puccia, 57 AD3d 54, 61 [2008]). The plaintiffconcedes that the defendants did not supervise or control his work. Consequently, the SupremeCourt should have granted those branches of the defendants' motion which were for summaryjudgment dismissing the Labor Law § 200 and common-law negligence causes of action.
"To prevail on a cause of action asserted under Labor Law § 241 (6), a plaintiff mustestablish a violation of an implementing regulation that sets forth a specific standard of conductas opposed to a general reiteration of common-law principles" (O'Hare v City of NewYork, 280 AD2d 458, 458 [2001]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d 494, 502-504 [1993]). Although the regulation relied on by the plaintiff, 12 NYCRR23-1.22 (b) (2), is sufficiently specific to support the cause of action, the defendants made aprima facie showing that this provision was not applicable to the facts of the case (compareO'Hare v City of New York, 280 AD2d 458 [2001]; Reisch v Amadori Constr. Co.,273 AD2d 855, 857 [2000]). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted that branch of the defendants' motionwhich was for summary judgment dismissing so much of the cause of action alleging a violationof Labor Law § 241 (6) as was based upon an alleged violation of 12 NYCRR 23-1.22 (b)(2). Rivera, J.P., Covello, Florio and Lott, JJ., concur. [Prior Case History: 28 Misc 3d1093.]