| Sotomayer v Metropolitan Transp. Auth. |
| 2012 NY Slip Op 01450 [92 AD3d 862] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Jose J. Sotomayer, Appellant, v MetropolitanTransportation Authority et al., Respondents, et al., Defendants. |
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Catherine A. Rinaldi, Jamaica, N.Y. (Landman Corsi Ballaine & Ford, P.C. [William G.Ballaine and Janine Brown], of counsel), for respondents Metropolitan Transportation Authorityand Long Island Rail Road Company. Perez & Varvaro, Uniondale, N.Y. (Joseph Varvaro of counsel), for respondent HudsonMachine Works, Inc. Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (Daniel M. Braudeand Thomas W. Tobin of counsel), for respondent Bombardier Transit Corporation.
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, Queens County (Flug, J.), dated April 11,2011, as granted those branches of the motion of the defendant Bombardier Transit Corporation,and the cross motion of the defendants Metropolitan Transportation Authority and Long IslandRail Road Company which were for summary judgment dismissing the cause of action alleging aviolation of Labor Law § 241 (6) insofar as asserted against them, and those branches ofthe cross motion of the defendant Hudson Machine Works, Inc., which were for summaryjudgment dismissing the causes of action alleging common-law negligence and violations ofLabor Law §§ 200 and 241 (6) insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the cross motion of the defendant Hudson Machine Works, Inc., which werefor summary judgment dismissing the causes of action alleging common-law negligence and aviolation of Labor Law § 200 insofar as asserted against it and substituting therefor aprovision denying those branches of the cross motion; as so modified, the order is affirmedinsofar as appealed from, with one bill of costs payable by the plaintiff to the defendantBombardier Transit Corporation and the defendants Metropolitan Transportation Authority andLong Island Rail Road Company, appearing separately and filing separate briefs, and one bill ofcosts payable by the defendant Hudson Machine Works, Inc., to the plaintiff.[*2]
The plaintiff, a materials coordinator employed by acorporate affiliate of the defendant Bombardier Transit Corporation (hereinafter BTC), wasallegedly injured when he tripped over a water hose while working at a facility used to performmaintenance and repair work on passenger rail cars owned by the defendants MetropolitanTransportation Authority and Long Island Rail Road Company (hereinafter togetherMTA/LIRR). The defendant Hudson Machine Works, Inc. (hereinafter Hudson), was asubcontractor working at the facility.
The Supreme Court properly granted those branches of the motion of BTC and cross motionsof the MTA/LIRR and Hudson which were to dismiss the causes of action alleging violations ofLabor Law § 241 (6) insofar as asserted against them. MTA/LIRR, BTC, and Hudsonestablished their prima facie entitlement to judgment as a matter of law by submitting evidencethat the plaintiff, who, as a materials coordinator was engaged in the requisitioning and gatheringof parts used by others in the course of performing maintenance and modification of existingrailroad cars, was not engaged in construction, excavation, or demolition work (see Esposito v New York City Indus. Dev.Agency, 1 NY3d 526 [2003]; Nagel v D & R Realty Corp., 99 NY2d 98 [2002];Oser v Truck King Intl., 60 AD3d832 [2009]; Gallello v MARJDistribs., Inc., 50 AD3d 734 [2008]; Deoki v Abner Props. Co., 48 AD3d 510 [2008]). In opposition, theplaintiff failed to raise a triable issue of fact.
However, the Supreme Court erred in granting those branches of Hudson's cross motionwhich were for summary judgment dismissing the causes of action alleging common-lawnegligence and a violation of Labor Law § 200 insofar as asserted against it. Labor Law§ 200 codifies the common-law duty of an owner or contractor to provide employees witha safe place to work (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877[1993]; Lane v Fratello Constr. Co.,52 AD3d 575, 576 [2008]). Where a plaintiff's injuries stem not from the manner in whichthe work was being performed, but, rather, from a dangerous condition on the premises, acontractor may be liable in common-law negligence and under Labor Law § 200 only if ithad control over the work site and either created the dangerous condition or had actual orconstructive notice of it (see Martinez vCity of New York, 73 AD3d 993, 998 [2010]; Bridges v Wyandanch Community Dev. Corp., 66 AD3d 938, 940[2009]; Van Salisbury vElliott-Lewis, 55 AD3d 725, 726 [2008]; Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708 [2007]). Here,contrary to the Supreme Court's determination, Hudson failed to establish, prima facie, that it didnot have control over the work site or that it did not create or have actual or constructive noticeof the alleged dangerous condition (seeHarsch v City of New York, 78 AD3d 781, 783 [2010]; Van Salisbury vElliott-Lewis, 55 AD3d at 726). Accordingly, those branches of Hudson's cross motionwhich were for summary judgment dismissing the causes of action alleging common-lawnegligence and a violation of Labor Law § 200 insofar as against it should have beendenied, regardless of the sufficiency of the plaintiff's opposing papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
In view of our determination, we need not address the plaintiff's remaining contention.Rivera, J.P., Eng, Hall and Sgroi, JJ., concur.