| White v Village of Port Chester |
| 2012 NY Slip Op 01456 [92 AD3d 872] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Garry M. White et al., Appellants, v Village of PortChester, Respondent, et al., Defendants. (And a Third-Party Action.) |
—[*1] The McDonough Law Firm, LLP, New Rochelle, N.Y. (Jeffrey S. Peske of counsel), forrespondents Village of Port Chester, Port Chester IDA, G&S Investors, G&S Port Chester, LLC,G&S Investors/Jersey City, L.P., G&S Investors/Jersey City II, L.P., G&S Investors/WillowPark, L.P., Willow Park Enterprises, Inc., HR Construction and Renovations, Inc., andFarmingdale Maintenance Services, Inc. LeClair Ryan, New York, N.Y. (Timothy E. Shanley of counsel), for respondents EtreAssociates, Ltd., ELQ Industries, and B.M.B. Leasing Corporation. Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Jeffrey Briem of counsel),for respondent March Associates, Inc.
Separate motions by the defendants Etre Associates, Ltd., ELQ Industries, and B.M.B.Leasing Corporation, and the defendants Village of Port Chester, Port Chester IDA, G & SInvestors, G & S Port Chester, LLC, G & S Investors/Jersey City, L.P., G & S Investors/JerseyCity II, L.P., G & S Investors/Willow Park, L.P., Willow Park Enterprises, Inc., HR Constructionand Renovations, Inc., and Farmingdale Maintenance Services, Inc., for leave to reargue anappeal from an order of the Supreme Court, Westchester County, entered January 28, 2010,which was determined by a decision and order of this Court dated May 10, 2011.
Upon the papers filed in support of the motions and the papers filed in opposition thereto, itis
Ordered that the motions are granted and, upon reargument, the decision and order of thisCourt dated May 10, 2011 (White vVillage of Port Chester, 84 AD3d 946 [2011]) is recalled and vacated, and the followingdecision and order is substituted therefor:
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.),entered January 28, 2010, as granted those branches of the motion of the defendants Village ofPort Chester, Port Chester IDA, G & S Investors, G & S Port Chester, LLC, G & SInvestors/Jersey City, L.P., G & S Investors/Jersey City II, L.P., G & S Investors/Willow Park,L.P., Willow Park [*2]Enterprises, Inc., HR Construction andRenovations, Inc., and Farmingdale Maintenance Services, Inc., which were for summaryjudgment dismissing the Labor Law § 200 and common-law negligence causes of actionand so much of the Labor Law § 241 (6) cause of action as was predicated upon an allegedviolation of 12 NYCRR 23-1.7 (e) (2) insofar as asserted against them, granted those branches ofthe separate motion of the defendant March Associates, Inc., which were for summary judgmentdismissing the Labor Law § 200 and common-law negligence causes of action and somuch of the Labor Law § 241 (6) cause of action as was predicated upon an allegedviolation of 12 NYCRR 23-1.7 (e) (2) insofar as asserted against it, granted those branches of theseparate motion of the defendants Etre Associates, Ltd., ELQ Industries, and B.M.B LeasingCorporation which were for summary judgment dismissing the Labor Law § 200 andcommon-law negligence causes of action insofar as asserted against the defendant EtreAssociates, Ltd., and so much of the Labor Law § 241 (6) cause of action as waspredicated upon an alleged violation of 12 NYCRR 23-1.7 (e) (2) insofar as asserted againstthem, granted that branch of the separate motion of the defendant Orange County Ironworks,LLC, which was for summary judgment dismissing so much of the Labor Law § 241 (6)cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7 (e) (2) insofaras asserted against it, and granted that branch of the separate motion of the defendant A.G.Construction Corporation which was for summary judgment dismissing so much of the LaborLaw § 241 (6) cause of action as was predicated upon an alleged violation of 12 NYCRR23-1.7 (e) (2) insofar as asserted against it.
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof grantingthose branches of the motion of the defendants Village of Port Chester, Port Chester IDA, G&SInvestors, G&S Port Chester, LLC, G&S Investors/Jersey City, L.P., G&S Investors/Jersey CityII, L.P., G&S Investors/Willow Park, L.P., Willow Park Enterprises, Inc., HR Construction andRenovations, Inc., and Farmingdale Maintenance Services, Inc., which were for summaryjudgment dismissing the Labor Law § 200 and common-law negligence causes of actionand so much of the Labor Law § 241 (6) cause of action as was predicated upon an allegedviolation of 12 NYCRR 23-1.7 (e) (2) insofar as asserted against them and substituting thereforprovisions denying those branches of the motion, (2) by deleting the provisions thereof grantingthose branches of the motion of the defendants Etre Associates, Ltd., ELQ Industries, and B.M.BLeasing Corporation which were for summary judgment dismissing the Labor Law § 200and common-law negligence causes of action insofar as asserted against the defendant EtreAssociates, Ltd., and so much of the Labor Law § 241 (6) cause of action as waspredicated upon an alleged violation of 12 NYCRR 23-1.7 (e) (2) insofar as asserted againstthem and substituting therefor provisions denying those branches of the motion, (3) by deletingthe provision thereof granting that branch of the motion of the defendant Orange CountyIronworks, LLC, which was for summary judgment dismissing so much of the Labor Law§ 241 (6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e) (2) insofar as asserted against it and substituting therefor a provision denying that branch ofthe motion, and (4) by deleting the provision thereof granting that branch of the motion of thedefendant A.G. Construction Corporation which was for summary judgment dismissing so muchof the Labor Law § 241 (6) cause of action as was predicated upon an alleged violation of12 NYCRR 23-1.7 (e) (2) insofar as asserted against it and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed insofar as appealed from,with one bill of costs to the defendant March Associates, Inc., payable by the plaintiffs, and onebill of costs to the plaintiffs payable by the defendants Village of Port Chester, Port Chester IDA,G & S Investors, G & S Port Chester, LLC, G & S Investors/Jersey City, L.P., G & SInvestors/Jersey City II, L.P., G & S Investors/Willow Park, L.P., Willow Park Enterprises, Inc.,HR Construction and Renovations, Inc., and Farmingdale Maintenance Services, Inc., and thedefendants Etre Associates, Ltd., ELQ Industries, and B.M.B. Leasing Corporation appearingseparately and filing separate briefs, and the defendant Orange County Ironworks, LLC, and thedefendant A.G. Construction Corporation.
As part of an urban renewal project, the defendant Village of Port Chester, through PortChester IDA, acquired certain real property, which it leased to a corporate entity known as G & SPort Chester, LLC (hereinafter G & S). G & S entered into agreements with several constructioncontractors, including the defendant March Associates, Inc. (hereinafter March Associates), asgeneral contractor in the construction of the interior portions of a building known as "retail G,"and the defendant Etre Associates, Ltd. (hereinafter Etre), as contractor of the roadway [*3]and sidewalk areas outside retail G. Etre hired the defendant A.G.Construction Corporation (hereinafter A.G. Construction) to assist in the installation of thesidewalk by pouring the concrete.
The injured plaintiff, an employee of a nonparty trucking company, picked up steel from thedefendant Orange County Ironworks, LLC (hereinafter Orange County), and delivered it to thearea outside retail G, parking his truck alongside a sidewalk area where freshly poured concretewas covered with a plastic sheet that extended into the roadway. In order to reach the chains thatsecured the steel to the truck, the injured plaintiff stepped onto the edge of the plastic thatextended into the road, tripped and fell. After he fell, the injured plaintiff pulled back the plasticsheet and saw a brick laying there, and another brick about four feet away. The injured plaintifftestified at his deposition that the bricks "were folded up inside the plastic." The injured plaintiffand his wife, suing derivatively (hereinafter together the plaintiffs), commenced this actionagainst the Village of Port Chester, Port Chester IDA, G & S, and related entities (hereinaftercollectively the Port Chester defendants), along with March Associates, Etre and its relatedentities ELQ Industries (hereinafter ELQ) and B.M.B. Leasing Corporation (hereinafter B.M.B.),Orange County, and A.G. Construction, alleging violations of Labor Law §§ 200,241 (6), and common-law negligence.
Where, as here, the injured plaintiff's accident arose not from the manner in which the workwas performed, but rather from an allegedly dangerous condition at the work site, liability for aviolation of Labor Law § 200 and common-law negligence will be imposed if the propertyowner created the condition or had actual or constructive notice of it, and failed to remedy thecondition within a reasonable amount of time (see Slikas v Cyclone Realty, LLC, 78 AD3d 144, 147 [2010]; Aragona v State of New York, 74AD3d 1260, 1260-1261 [2010]; Bridges v Wyandanch Community Dev. Corp., 66 AD3d 938, 940[2009]).
Here, the Port Chester defendants failed to satisfy their prima facie burden of establishingtheir entitlement to judgment as a matter of law. The Port Chester defendants failed to offersufficient proof as to the last time they inspected the sidewalk or that the brick folded up insidethe plastic sheet could not have been discovered upon a reasonable inspection (see Colon v Bet Torah, Inc., 66 AD3d731, 732 [2009]; cf. Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798,799-800 [2003]).
A general contractor may be held liable in common-law negligence and under Labor Law§ 200 if it had control over the work site and actual or constructive notice of the dangerouscondition (see Bridges v Wyandanch Community Dev. Corp., 66 AD3d at 940; Keating v Nanuet Bd. of Educ., 40AD3d 706, 707 [2007]).
Here, Etre, as the contractor hired to install the sidewalk, failed to establish, prima facie, thatit lacked control over the sidewalk and, further, failed to establish, prima facie, that it neithercreated nor had actual or constructive notice of the alleged dangerous condition (see Harsch v City of New York, 78AD3d 781, 783 [2010]).
However, March Associates, as the contractor for six interior spaces at the subjectconstruction site demonstrated, prima facie, that it lacked control over the sidewalk (see Mugavero v Windows By Hart,Inc., 69 AD3d 694, 695 [2010]). In opposition, the plaintiffs failed to raise a triableissue of fact.
Labor Law § 241 (6) imposes a nondelegable duty on owners, contractors, and theiragents to provide reasonable and adequate protection and safety for workers and to comply withthe specific safety rules and regulations promulgated by the Commissioner of the Department ofLabor (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; Markey v C.F.M.M. Owners Corp., 51AD3d 734, 737 [2008]). In order to hold a subcontractor or statutory agent of the owner orgeneral contractor absolutely liable under Labor Law § 241, there must be a showing thatthe subcontractor or agent had the authority to supervise and control the work giving rise to theseduties (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]; Soltes v Brentwood Union Free SchoolDist., 47 AD3d 804, 805 [2008]; Everitt v Nozkowski, 285 AD2d 442, 443[2001]). Here, Etre, ELQ, and B.M.B. failed to establish, prima facie, that they lacked theauthority to supervise and control the work [*4]giving rise to theinjured plaintiff's accident (see Tomyukv Junefield Assoc., 57 AD3d 518, 520-521 [2008]; Kelly v LeMoyne Coll., 199AD2d 942, 943 [1993]). However, March Associates met its prima facie burden of establishingits entitlement to judgment as a matter of law and, in opposition, the plaintiffs failed to raise atriable issue of fact.
Since the injured plaintiff was in the course of delivering materials for use at the constructionsite, and Labor Law § 241 (6) applies to workers and all those lawfully frequenting theconstruction site, the Port Chester defendants, along with Etre, ELQ, and B.M.B., failed toeliminate all triable issues of fact as to whether the injured plaintiff was engaged in constructionwork and, thus, entitled to the protection of Labor Law § 241 (6) (see Simms v ElmRidge Assoc., 259 AD2d 538, 539 [1999]; Williams v G.H. Dev. & Constr. Co., 250AD2d 959, 961 [1998]; cf. Vernieri v Empire Realty Co., 219 AD2d 593, 595 [1995]).
The plaintiffs' cause of action to recover damages pursuant to Labor Law § 241 (6) ispremised on a violation of 12 NYCRR 23-1.7 (e) (2), which is a sufficiently specific, positivecommand (see Lane v Fratello Constr.Co., 52 AD3d 575, 576 [2008]). This provision of the Industrial Code was adequatelypleaded in the plaintiffs' bill of particulars. Moreover, contrary to the Supreme Court'sdetermination, the Port Chester defendants, Etre, ELQ, B.M.B., Orange County, and A.G.Construction, failed to establish, prima facie, that 12 NYCRR 23-1.7 (e) (2) is inapplicable to thefacts of this case (see Treu vCappelletti, 71 AD3d 994, 998 [2010]). In this regard, the speculative depositiontestimony of the injured plaintiff regarding the brick's purpose was insufficient to establish, as amatter of law, that the brick was not debris but, rather, was integral to and "consistent with thework being performed" (Mott v TromelConstr. Corp., 79 AD3d 829, 831 [2010]; see Jeter v Seagull Assoc., Inc., 43 AD3d 871, 872 [2007]).Moreover, the deposition testimony of certain defense witnesses familiar with the work wasthat it was not appropriate to use bricks to hold down a plastic sheet over freshly poured concreteand that, as was used in other areas over the sheet, two-by-four or two-by-six pieces of woodwere appropriate. Thus, under these circumstances, triable issues of fact exist as to whether thebrick was debris or integral to and "consistent with the work being performed" (see Aragona v State of New York, 74AD3d 1260 [2010]; Riley v J.A.Jones Contr., Inc., 54 AD3d 744, 745 [2008]; Lenard v 1251 Ams. Assoc., 241AD2d 391, 393 [1997]).
The parties' remaining contentions either are academic in light of our determination orwithout merit.
Accordingly, the Supreme Court properly awarded summary judgment dismissing the LaborLaw § 200 and common-law negligence causes of action and so much of the Labor Law§ 241 (6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e) (2) insofar as asserted against March Associates. However, the Supreme Court should nothave awarded summary judgment dismissing so much of the Labor Law § 241 (6) cause ofaction as was predicated upon an alleged violation of 12 NYCRR 23-1.7 (e) (2) insofar asasserted against the Port Chester defendants, Etre, ELQ, B.M.B., Orange County, and A.G.Construction. Nor should the Supreme Court have awarded summary judgment dismissing theLabor Law § 200 and common-law negligence causes of action insofar as asserted againstthe Port Chester defendants and Etre. Mastro, A.P.J., Florio, Belen and Chambers, JJ., concur.