| Eversfield v Brush Hollow Realty, LLC |
| 2012 NY Slip Op 00484 [91 AD3d 814] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Robert Eversfield, Appellant, v Brush Hollow Realty, LLC,et al., Respondents. |
—[*1] Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for respondents BrushHollow Realty, LLC, Cauldwell-Wingate Company, Inc., Cauldwell-Wingate Company, LLC,Rallye Motors, LLC, and Rallye Motors, Inc. Lewis Johs Avallone Aviles, LLP, Riverhead, N.Y. (Brian J. Greenwood of counsel), forrespondents Mr. John Portable Sanitation Units, Inc., Mr. John, Inc., and Russell Reid WasteHauling and Disposal Service Co., Inc.
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, Nassau County (Marber, J.), entered July7, 2010, as (1) granted those branches of the motion of the defendants Brush Hollow Realty,LLC, Cauldwell-Wingate Company, Inc., Cauldwell-Wingate Company, LLC, Rallye Motors,LLC, and Rallye Motors, Inc., which were for summary judgment dismissing the common-lawnegligence and Labor Law § 200 causes of action and so much of the Labor Law §241 (6) cause of action as was predicated on a violation of 12 NYCRR 23-1.7 (e) insofar asasserted against them, and (2) granted those branches of the cross motion of the defendants Mr.John Portable Sanitation Units, Inc., Mr. John, Inc., and Russell Reid Waste Hauling andDisposal Service Co., Inc., which were for summary judgment dismissing the common-lawnegligence and Labor Law § 200 causes of action and so much of the Labor Law §241 (6) cause of action as was predicated on a violation of 12 NYCRR 23-1.7 (e) insofar asasserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendants Brush Hollow Realty, LLC, Cauldwell-WingateCompany, Inc., Cauldwell-Wingate Company, LLC, Rallye Motors, LLC, and Rallye Motors,Inc., which was for summary judgment dismissing the common-law negligence and Labor Law§ 200 causes of action insofar as asserted against them, and substituting therefore aprovision denying that branch of the motion; as so modified, the order is affirmed insofar asappealed from, with one bill of costs payable by the plaintiff to the defendants Mr. John PortableSanitation Units, Inc., Mr. John Inc., and Russell Reid Waste Hauling and Disposal Service Co.,Inc.
The plaintiff was injured when he fell as a result of the alleged improper placement of aportable restroom located at the site of a construction project. According to the plaintiff, as heturned to exit the restroom, the restroom tilted, and he fell out of it. The plaintiff subsequently[*2]commenced this action against Brush Hollow Realty, LLC,Cauldwell-Wingate Company, Inc., Cauldwell-Wingate Company, LLC, Ralleye Motors, LLC,and Rallye Motors Inc. (hereinafter collectively the Brush Hollow defendants), the owners,general contractors, and managers of the construction site, and Mr. John Portable SanitationUnits, Inc., Mr. John, Inc., and Russell Reid Waste Hauling and Disposal Service Co., Inc.(hereinafter collectively the Mr. John defendants), which supplied portable restrooms to theconstruction site.
The Supreme Court should have denied that branch of the motion of the Brush Hollowdefendants which was for summary judgment dismissing the common-law negligence and LaborLaw § 200 causes of action insofar as asserted them. "Where, as here, the injured plaintiff'saccident arose not from the manner in which the work was performed, but rather from anallegedly dangerous condition at the work site, liability for a violation of Labor Law § 200and common-law negligence will be imposed if the property owner created the condition or hadactual or constructive notice of it, and failed to remedy the condition within a reasonable amountof time" (White v Village of PortChester, 84 AD3d 946, 947-948 [2011]; see Rojas v Schwartz, 74 AD3d 1046, 1047 [2010]; Ortega v Puccia, 57 AD3d 54, 61[2008]). Similarly, a general contractor may be held liable in common-law negligence and underLabor Law § 200 if it created the dangerous condition or had control over the work siteand actual or constructive notice of the dangerous condition (see Dalvano v Racanelli Constr. Co., Inc., 86 AD3d 550, 551[2011]; White v Village of Port Chester, 84 AD3d at 948; Bridges v Wyandanch Community Dev.Corp., 66 AD3d 938, 940 [2009]; Keating v Nanuet Bd. of Educ., 40 AD3d 706, 707 [2007]). Here,the Brush Hollow defendants failed to make a prima facie showing that they did not create orhave actual or constructive notice of a dangerous condition regarding the placement of theportable restroom. The failure to make a prima facie showing required the denial of that branchof the motion, regardless of the sufficiency of the opposing papers (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
The Supreme Court properly granted that branch of the cross motion of the Mr. Johndefendants which was for summary judgment dismissing the common law negligence and LaborLaw § 200 causes of action insofar as asserted them. The Mr. John defendants made aprima facie showing that they did not possess any authority to supervise or control the area inquestion, and that they were not the entity that placed the portable restroom in an allegedlydefective manner (see Ortiz v I.B.K.Enters., Inc., 85 AD3d 1139, 1140 [2011]; Poracki v St. Mary's R.C. Church, 82 AD3d 1192, 1195 [2011]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d at 324).
The Supreme Court properly granted those branches of the motion of the Brush Hollowdefendants and the cross motion of the Mr. John defendants which were for summary judgmentdismissing so much of the Labor Law § 241 (6) cause of action as was predicated onsection 23-1.7 (e) of the Industrial Code (12 NYCRR) insofar as asserted against them. Themoving defendants made a prima facie showing that 12 NYCRR 23-1.7 (e) is inapplicablebecause the plaintiff did not allege that he tripped on any dirt, debris, or other obstruction orcondition which could cause tripping (see Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936, 938[2010]; Pope v Safety & Quality Plus,Inc., 74 AD3d 1040, 1041 [2010]). In opposition, the plaintiff failed to raise a triableissue of fact. Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur. [Prior Case History: 2010NY Slip Op 31734(U).]