| Edick v General Elec. Co. |
| 2012 NY Slip Op 06353 [98 AD3d 1217] |
| September 27, 2012 |
| Appellate Division, Third Department |
| James Edick, Respondent, v General Electric Company etal., Appellants. |
—[*1] Finklestein & Partners, LLP, Newburgh (Marie M. DuSault of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Supreme Court (McNamara, J.), entered March 7,2012 in Albany County, which partially denied defendants' motion for summary judgmentdismissing the complaint.
In December 2008, plaintiff was injured when he slipped on a patch of ice and fell whileworking on a construction project in Schenectady County. The property where plaintiff's injuryoccurred was owned by defendant General Electric Company (hereinafter GE); defendantLeChase Construction Services, LLC was the general contractor for the underlying project andplaintiff's employer, Peter Luizzi and Brothers, was the paving subcontractor.
On the morning in question,[FN1] plaintiff arrived at the GE site and met up with one of his coworkers, Deric Van Wie. Bothplaintiff and Van Wie performed asphalt finish work using large paving rollers. Part of thisprocess entailed periodically filling the roller drums with water, which was obtained from firehydrants located on the site.[*2]
In preparation for paving operations that day, plaintiff andVan Wie set out to fill a 10-ton roller with water from a fire hydrant located beyond the edge of apaved parking lot.[FN2]Due to concerns that the roller might become stuck in the soil surrounding the hydrant, Van Wiedrove the roller while plaintiff walked ahead of him, testing the ground as he went. As is evidentfrom both the pictures in the record and the examination before trial testimony, the area inquestion was rutted and covered with a light dusting of snow. Although plaintiff previously hadobtained water from this hydrant without incident, as he approached the hydrant on this particularmorning, he slipped on a patch of ice and fell, fracturing his right ankle.
Plaintiff thereafter commenced this action against defendants alleging violations of LaborLaw §§ 200, 240 (1) and 241 (6), as well as common-law negligence. Followingjoinder of issue and discovery, defendants moved for summary judgment dismissing thecomplaint. Supreme Court dismissed plaintiff's Labor Law §§ 240 (1) and 241 (6)claims, but otherwise denied the motion. This appeal by defendants ensued.
We affirm. "Labor Law § 200 [represents] a codification of the common-law dutyimposed upon an owner or general contractor to provide construction site workers with a safeplace to work" (Weinberg v AlpineImprovements, LLC, 48 AD3d 915, 918 [2008] [internal quotation marks and citationomitted]; see Gadani v Dormitory Auth.of State of N.Y., 43 AD3d 1218, 1220 [2007]). To meets its initial burden on the motionfor summary judgment, GE was required to establish, as a matter of law, that it did not create theallegedly dangerous condition or have actual or constructive notice thereof (see Harrington v Fernet, 92 AD3d1070, 1071 [2012]; Weinberg v Alpine Improvements, LLC, 48 AD3d at 918-919;Beadleston v American TissueCorp., 41 AD3d 1074, 1076-1077 [2007]). GE made no such showing here, contendinginstead that its general duty to provide a safe work site did not extend to removing snow or icefrom the area where plaintiff fell because that location was not frequented by pedestrian traffic.
Regardless of whether GE was obligated to remove snow and ice from the area in question,the photographs in the record depict heavy equipment in the general vicinity of plaintiff'saccident, as well as numerous ruts and tire tracks, all of which suggest the presence ofconstruction activity in that area. Further, plaintiff testified that he used this particular hydrant,which the record suggests was owned by GE, on many occasions during the course of theongoing paving operations. Such proof, coupled with the proximity of the fire hydrant to a pavedparking lot, raises factual issues with respect to the frequency with which workers such asplaintiff utilized the area in question, as well as GE's awareness of such practices and thereasonableness of its response thereto. Accordingly, Supreme Court properly denied defendants'motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-lawnegligence claims as to GE.[FN3][*3]
We reach a similar conclusion with respect to plaintiff'sclaims against LeChase. Where, as here, a plaintiff's injuries result from an allegedly unsafe ordangerous condition at the work site, " 'the liability of [the] general contractor . . .depends upon whether [it] had notice of the dangerous condition and control of the place wherethe injury occurred' " (Allen v TelergyNetwork Servs., Inc., 52 AD3d 1094, 1096 [2008], quoting Wolfe v KLR Mech., Inc., 35 AD3d916, 918 [2006]; see Cook vOrchard Park Estates, Inc., 73 AD3d 1263, 1264 [2010]). Even assuming that LeChaseplayed no role in deciding where plaintiff would obtain the water for the rollers or which hydrantto use for that purpose, questions of fact nonetheless remain as to whether LeChase had notice ofthe dangerous condition alleged and/or the authority to control the area where plaintiff's accidentoccurred.
As a final matter, we reject defendants' assertion that they are entitled to summary judgmentbased upon the application of the storm in progress rule, which affords "[a] party in possession orcontrol of real property . . . a reasonable period of time after the cessation of a stormin which to take protective measures to correct storm-created hazardous ice and snow conditions"(Parker v Rust Plant Servs., Inc., 9AD3d 671, 672 [2004] [internal quotation marks and citation omitted]; see Grinnell v Phil Rose Apts., LLC,60 AD3d 1256, 1256 [2009]; Mosquera v Orin, 48 AD3d 935, 936 [2008]). Even assuming thatthis rule applies to the particular facts of this case, defendants' own proof fails toestablish—as a matter of law—that there was an ongoing or recently concludedstorm at the time of plaintiff's accident. Notably, and as Supreme Court aptly observed, theopinion offered by defendants' meteorologist as to the time period during which the offending icenecessarily must have formed is conclusory and completely unsupported by the record (see Sullivan v RGS Energy Group,Inc., 78 AD3d 1503, 1503-1504 [2010]). Accordingly, that part of defendants' motionfor summary judgment seeking dismissal of the Labor Law § 200 and common-lawnegligence causes of action was properly denied.
Peters, P.J., Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: Although not dispositive of thisappeal, there appears to be some dispute as to whether plaintiff's accident occurred on themorning of December 8, 2008 or December 9, 2008.
Footnote 2: Although the record containsphotographs depicting the accident site, neither the photographs nor the underlying examinationbefore trial testimony makes clear where this hydrant was located.
Footnote 3: Our conclusion in this regard isnot altered by the fact that both plaintiff and Van Wie testified that no one from GE personallytold them which hydrant to use, the manner in which they should fill the roller or how tootherwise go about their work. Although such testimony arguably establishes that GE did notcontrol the manner in which plaintiff performed his work, this is not a "means and methods"case; rather, this is a "dangerous premises" case and, as such, GE's ability to supervise or controlplaintiff's work is irrelevant (seeSullivan v RGS Energy Group, Inc., 78 AD3d 1503, 1503 [2010]; Beadleston vAmerican Tissue Corp., 41 AD3d at 1077; compare Gray v City of New York, 87 AD3d 679 [2011], lvdenied 18 NY3d 803 [2012], withGasques v State of New York, 59 AD3d 666 [2009], affd 15 NY3d 869 [2010]).