| Rodriguez v D & S Bldrs., LLC |
| 2012 NY Slip Op 06132 [98 AD3d 957] |
| September 12, 2012 |
| Appellate Division, Second Department |
| Ofelia Rodriguez et al., Appellants-Respondents, v D & SBuilders, LLC, et al., Defendants/Third-Party Plaintiffs-Respondents-Appellants. D-BestEquipment Corp., Third-Party Defendant-Respondent. |
—[*1] Marshall, Conway, Wright & Bradley, P.C., New York, N.Y. (Amy S. Weissman ofcounsel), for defendants third-party plaintiffs-respondents-appellants. Dillon Horowitz & Goldstein, LLP, New York, N.Y. (Thomas Dillon of counsel), forthird-party defendant-respondent.
In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Queens County (Markey,J.), entered November 19, 2010, as denied their cross motion for summary judgment on the issueof liability on the Labor Law § 240 (1) cause of action and so much of the Labor Law§ 241 (6) cause of action as was predicated upon violations of 12 NYCRR 23-2.1 (a) (1)and (2), and granted those branches of the motion of the defendants third-party plaintiffs andthose branches of the cross motion of the third-party defendant which were for summaryjudgment dismissing the Labor Law § 240 (1) cause of action and so much of the LaborLaw § 241 (6) cause of action as was predicated upon violations of 12 NYCRR 23-2.1 (a)(1) and (2), and the defendants third-party plaintiffs cross-appeal, as limited by their brief, fromso much of the same order as denied, as academic, that branch of their motion which was forsummary judgment on their third-party cause of action for common-law indemnification, andgranted that branch of the cross motion of the third-party defendant which was for summaryjudgment dismissing that third-party cause of action.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one billof costs to the defendants third-party plaintiffs and the third-party defendant, payable by theplaintiffs.
The Supreme Court properly granted those branches of the motion of the defendantsthird-party plaintiffs, D & S Builders, LLC (hereinafter D & S), and Di Fiore & Sons CustomWoodworking, Inc. (hereinafter Di Fiore), and that branch of the cross motion of the third-partydefendant, D-Best Equipment Corp. (hereinafter D-Best), which were for summary judgmentdismissing the Labor Law § 240 (1) cause of action, and properly denied that branch of theplaintiffs' cross motion which was for summary judgment on the issue of liability on that cause ofaction. D & S, Di Fiore, and D-Best established their prima facie entitlement to judgment as amatter of law [*2]by demonstrating that the plaintiffs' decedentwas not exposed to an elevation-related hazard inasmuch as, at the time the decedent was struckby a bundle of forms, the forms were not being hoisted or secured, and the decedent was workingon a flatbed truck at the same level as the bundle of forms (see Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005]; Narducciv Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]; Whitehead v City of New York, 79 AD3d 858, 859-860 [2010]; Novak v Del Savio, 64 AD3d 636,638 [2009]; Marin v AP-Amsterdam1661 Park LLC, 60 AD3d 824, 825 [2009]; Berg v Albany Ladder Co., Inc., 40 AD3d 1282, 1284-1285 [2007],affd 10 NY3d 902 [2008]; Rice v Board of Educ. of City of N.Y., 302 AD2d 578,579-580 [2003]; Tillman v Triou's Custom Homes, 253 AD2d 254, 257 [1999]). Inopposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs'contention, the affidavit of their expert was speculative, conclusory, and unsupported by the facts(see Delgado v County of Suffolk,40 AD3d 575, 576 [2007]; DeLeonv State of New York, 22 AD3d 786, 788 [2005]).
The Supreme Court also properly determined that D & S, Di Fiore, and D-Best were entitledto summary judgment dismissing so much of the Labor Law § 241 (6) cause of action aswas predicated upon violations of 12 NYCRR 23-2.1 (a) (1) and (2), and properly denied thatbranch of the plaintiffs' cross motion which was for summary judgment on the issue of liabilityon that portion of that cause of action. A plaintiff asserting a cause of action under Labor Law§ 241 (6) must demonstrate a violation of a rule or regulation of the Industrial Code whichgives a specific, positive command, and is applicable to the facts of the case (see Rizzuto vL.A. Wenger Contr. Co., 91 NY2d 343, 349 [1998]; Ross v Curtis-Palmer Hydro-Elec.Co., 81 NY2d 494, 503-505 [1993]; Forschner v Jucca Co., 63 AD3d 996, 998 [2009]; Rau v Bagels N Brunch, Inc., 57 AD3d866, 868 [2008]). Here, D & S, Di Fiore, and D-Best demonstrated, prima facie, that 12NYCRR 23-2.1 (a) (1) does not apply to the facts of this case since the decedent's accidentoccurred on a flatbed truck, not a "passageway, walkway, stairway or other thoroughfare" (see Cody v State of New York, 82AD3d 925, 928 [2011]; Barrios vBoston Props. LLC, 55 AD3d 339, 340 [2008]; Waitkus v Metropolitan Hous. Partners, 50 AD3d 260, 260 [2008];Castillo v Starrett City, 4 AD3d320, 321 [2004]). Additionally, they demonstrated, prima facie, that 12 NYCRR 23-2.1 (a)(2) does not apply to the facts of this case since the decedent was not "beneath" the "edge" of a"floor, platform or scaffold" at the time of the accident. In opposition, the plaintiffs failed to raisea triable issue of fact.
In light of our determination, we need not reach the defendant third-party plaintiffs'alternative argument in support of affirmance, that Di Fiore cannot be held liable for the allegedstatutory violations of D & S, the owner of the construction site.
In light of the dismissal of the complaint in the main action, the Supreme Court properlydenied, as academic, that branch of the defendant third-party plaintiffs' motion which was forsummary judgment on the third-party cause of action for common-law indemnification, andproperly granted that branch of D-Best's cross motion which was for summary judgmentdismissing that third-party cause of action (see Hoover v International Bus. Machs. Corp., 35 AD3d 371, 372[2006]). Rivera, J.P., Chambers, Austin and Roman, JJ., concur. [Prior Case History: 29Misc 3d 1217(A), 2010 NY Slip Op 51855(U).]