| Norero v 99-105 Third Ave. Realty, LLC |
| 2012 NY Slip Op 04325 [96 AD3d 727] |
| June 6, 2012 |
| Appellate Division, Second Department |
| Robert Norero, Appellant, v 99-105 Third Avenue Realty,LLC, et al., Respondents, et al., Defendant. (And a Third-PartyAction.) |
—[*1] Tompkins, McGuire, Wachenfeld & Barry, LLP, New York, N.Y. (William C. Kelly ofcounsel), for respondents.
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 (Lane, J.), dated April 18,2011, as denied, as premature, his motion, in effect, for summary judgment on the issue ofliability on the causes of action alleging violations of Labor Law § 240 (1) and § 241(6) insofar as asserted against the defendants 99-105 Third Avenue Realty, LLC, and BellaBuilders Associates, LLC.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theplaintiff's motion, in effect, for summary judgment on the issue of liability on the causes ofaction alleging violations of Labor Law § 240 (1) and § 241 (6) insofar as assertedagainst the defendants 99-105 Third Avenue Realty, LLC, and Bella Builders Associates, LLC, isgranted.
The defendant 99-105 Third Avenue Realty, LLC (hereinafter 99-105), which owned amulti-story building, engaged the defendant Bella Builders Associates, LLC (hereinafter Bella),as general contractor on a construction project at the building. Pursuant to subcontracts withBella, the defendant Casur Corp. performed the "interior core and shell work," and the third-partydefendant, JLC Corp. (hereinafter JLC), performed asbestos removal work.
On July 26, 2008, the plaintiff, an employee of JLC, allegedly was injured when, whileworking on the fifth floor of the building, he partially fell into an unprotected opening in thefloor that was large enough for his body to have passed through. He commenced this action,alleging, inter alia, violations of Labor Law § 240 (1) and § 241 (6).
The plaintiff moved, in effect, for summary judgment on the issue of liability on his causesof action alleging violations of Labor Law § 240 (1) and § 241 (6) insofar asasserted against 99-105 and Bella. However, the Supreme Court, observing that certain discoveryremained [*2]outstanding, denied that motion as premature.
"Labor Law § 240 (1) imposes upon owners and general contractors, and their agents,a nondelegable duty to provide safety devices necessary to protect workers from risks inherent inelevated work sites" (McCarthy vTurner Constr., Inc., 17 NY3d 369, 374 [2011]; see Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695[2006]). To prevail on a cause of action alleging a violation of Labor Law § 240 (1), aplaintiff must establish that the statute was violated and that the violation was a proximate causeof his or her injuries (see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287-289 [2003]).
Labor Law § 241 (6) imposes upon owners and general contractors, and their agents, anondelegable duty to provide reasonable and adequate protection and safety for workers, and tocomply with the specific safety rules and regulations promulgated by the Commissioner of theDepartment of Labor (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876,878 [1993]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993];Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]). To prevail on a causeof action alleging a violation of Labor Law § 241 (6), a plaintiff must establish theviolation of an Industrial Code provision that sets forth specific, applicable safety standards(see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 503-505).
Here, the plaintiff established, prima facie, that he was not provided with proper protectionunder Labor Law § 240 (1), that the failure to provide such protection also violated aspecific and applicable provision of the Industrial Code (see 12 NYCRR 23-1.7 [b] [1][i]), and that this failure was the proximate cause of his alleged injuries (see Ortiz v 164 Atl. Ave., LLC, 77AD3d 807, 808-810 [2010]). In opposition, 99-105 and Bella failed to raise a triable issue offact. Furthermore, contrary to their contention, the plaintiff's motion was not premature, as theyfailed to demonstrate how discovery may reveal or lead to relevant evidence or that "factsessential to opposing the motion were exclusively within" another party's "knowledge andcontrol" (Espada v City of NewYork, 74 AD3d 1276, 1277 [2010]; see CPLR 3212 [f]; Naranjo v Star Corrugated Box Co.,Inc., 22 AD3d 545, 545-546 [2005]).
Accordingly, the Supreme Court should have granted the plaintiff's motion, in effect, forsummary judgment on the issue of liability on the causes of action alleging violations of LaborLaw § 240 (1) and § 241 (6) insofar as asserted against 99-105 and Bella. Skelos,J.P., Florio, Roman and Miller, JJ., concur.