| Mendez v Jackson Dev. Group, Ltd. |
| 2012 NY Slip Op 06586 [99 AD3d 677] |
| October 3, 2012 |
| Appellate Division, Second Department |
| Johnny Mendez, Respondent, v Jackson DevelopmentGroup, Ltd., et al., Appellants, and NCJ Development, Inc., Respondent, et al.,Defendant. |
—[*1] Faust Goetz Schenker & Blee, LLP, New York, N.Y., for defendant-respondent (no brieffiled).
In an action to recover damages for personal injuries, the defendants Jackson DevelopmentGroup, Ltd., 102 Partners, and Bellerose Builders, Inc., appeal, as limited by their brief, from somuch of an order of the Supreme Court, Kings County (Schmidt, J.), dated June 30, 2011, asdenied their motion for summary judgment dismissing the amended complaint and all crossclaims insofar as asserted against them, and granted the plaintiff's cross motion for summaryjudgment on the issue of liability on the cause of action alleging a violation of Labor Law§ 240 (1).
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof denyingthose branches of the appellants' motion which were for summary judgment dismissing thecauses of action alleging violations of Labor Law §§ 240 (1) and 241 (6) insofar asasserted against them, and substituting therefor provisions granting those branches of theappellants' motion, and (2) deleting the provision thereof granting the plaintiff's cross motion forsummary judgment on the issue of liability on the cause of action alleging a violation of LaborLaw § 240 (1), and substituting therefor a provision denying the plaintiff's cross motion; asso modified, the order is affirmed insofar as appealed from, with costs to the appellants.
The plaintiff allegedly was injured while he and a coworker were installing plate glasswindow panes in a building under construction. According to the plaintiff, while he was standingon a ladder, and while his coworker was standing on the ground, they jointly lifted a glasswindow pane in order to install it in a window frame. The glass window pane split in half and thepieces struck the plaintiff, causing injuries. The plaintiff then commenced this action to recoverdamages for personal injuries, alleging causes of action to recover damages for common-lawnegligence and violations of Labor Law §§ 200, 240 (1) and 241 (6).
In the order appealed from, the Supreme Court, inter alia, denied the motion of thedefendants Jackson Development Group, Ltd., 102 Partners, and Bellerose Builders, Inc.(hereinafter collectively the appellants), for summary judgment dismissing the amendedcomplaint and all cross claims insofar as asserted against them, and granted the plaintiff's crossmotion for summary [*2]judgment on the issue of liability on thecause of action alleging a violation of Labor Law § 240 (1). We modify.
Labor Law § 240 (1) requires property owners and contractors to provide workers with"scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and otherdevices which shall be so constructed, placed and operated as to give proper protection" to theworkers (Labor Law § 240 [1]). The purpose of the statute is to protect against "suchspecific gravity-related accidents as falling from a height or being struck by a falling object thatwas improperly hoisted or inadequately secured" (Ross v Curtis-Palmer Hydro-Elec. Co.,81 NY2d 494, 501 [1993]; see Wilinskiv 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]; Misseritti v Mark IVConstr. Co., 86 NY2d 487, 490 [1995]). However, not every object that falls on a workergives rise to the extraordinary protections of Labor Law § 240 (1) (see Narducci vManhasset Bay Assoc., 96 NY2d 259, 267 [2001]). Thus, in order to recover damages forviolation of the statute, the "plaintiff must show more than simply that an object fell causinginjury to a worker" (id. at 268). A plaintiff must show that, at the time the object fell, itwas "being hoisted or secured" (id. at 268) or "required securing for the purposes of theundertaking" (Outar v City of NewYork, 5 NY3d 731, 732 [2005]; see Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758[2008]). The plaintiff also must show that the object fell "because of the absence orinadequacy of a safety device of the kind enumerated in the statute" (Narducci v ManhassetBay Assoc., 96 NY2d at 268).
The appellants established, prima facie, their entitlement to judgment as a matter of lawdismissing the cause of action to recover damages pursuant to Labor Law § 240 (1). In thisregard the evidence submitted by the appellants showed "the absence of a causal nexus betweenthe worker's injury and a lack or failure of a device prescribed by section 240 (1)" (Wilinski v334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 9, citing Misseritti v Mark IV Constr.Co., 86 NY2d at 490-491; see Narducci v Manhasset Bay Assoc., 96 NY2d at 268;Novak v Del Savio, 64 AD3d636 [2009]; Marin vAP-Amsterdam 1661 Park LLC, 60 AD3d 824, 825 [2009]; Atkinson v State of New York, 20AD3d 739, 740 [2005]; Sierzputowski v City of New York, 14 AD3d 606, 607 [2005]; Sparkes v Berger, 11 AD3d 601,602 [2004]). In opposition to that branch of the appellants' motion, the plaintiff failed to raise atriable issue of fact. Therefore, the Supreme Court should have granted that branch of theappellants' motion which was for summary judgment dismissing the Labor Law § 240 (1)cause of action insofar as asserted against them. For the same reason, the plaintiff failed to makea prima facie showing in support of his cross motion for summary judgment on the issue ofliability on this cause of action, and, therefore, the Supreme Court should have denied theplaintiff's cross motion.
Moreover, the Supreme Court should have granted that branch of the appellants' motionwhich was for summary judgment dismissing the Labor Law § 241 (6) cause of actioninsofar as asserted against them. In support of the Labor Law § 241 (6) cause of action, theplaintiff relied upon an alleged violation of section 23-1.7 (e) (2) of the Industrial Code, whichrequires owners and contractors to maintain working areas free from tripping hazards such as,inter alia, debris and any other obstructions, "insofar as may be consistent with the work beingperformed" (12 NYCRR 23-1.7 [e] [2]). This regulation " 'is designed to protect against trippinghazards and sharp projections on floors and platforms' " (Cooper v State of New York, 72 AD3d 633, 635 [2010], quoting Fura v Adam's Rib Ranch Corp., 15AD3d 948, 949 [2005]). In support of this branch of their motion, the appellants established,prima facie, that 12 NYCRR 23-1.7 (e) (2) is inapplicable to the plaintiff's accident, as theplaintiff did not allege that he tripped on a tripping hazard. Instead, at his deposition and in hisaffidavit submitted in opposition to the motion, the plaintiff averred that the debris in the areamade it difficult for him to maneuver but he did not know what caused the glass pane to break. Inopposition to the appellants' prima facie showing, the plaintiff failed to raise a triable issue offact (see Pope v Safety & Quality Plus,Inc., 74 AD3d 1040 [2010]; Cooper v State of New York, 72 AD3d 633 [2010]).
However, the Supreme Court properly denied that branch of the appellants' motion whichwas for summary judgment dismissing the causes of action to recover damages for common-lawnegligence and a violation of Labor Law § 200 insofar as asserted against them. In supportof that branch of their motion, the appellants contended that they did not direct or control theplaintiff's work. However, where, as here, "a plaintiff's injuries stem not from the manner inwhich the work was being performed, but, rather, from a dangerous condition on the premises, a[*3]general contractor may be liable in common-law negligenceand under Labor Law § 200 if it has control over the work site and actual or constructivenotice of the dangerous condition" (Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708 [2007]; see Reyes v Arco Wentworth Mgt.Corp., 83 AD3d 47 [2011]). The appellants' submissions failed to eliminate all triableissues of fact as to whether they had control over the work site and whether they had actual orconstructive notice of a dangerous condition (see Mott v Tromel Constr. Corp., 79 AD3d 829, 830 [2010];Keating v Nanuet Bd. of Educ., 40 AD3d at 708). Since the appellants failed to make aprima facie showing of entitlement to judgment as a matter of law, that branch of their motionwhich was for summary judgment dismissing the causes of action to recover damages forcommon-law negligence and a violation of Labor Law § 200 insofar as asserted againstthem was properly denied, regardless of the sufficiency of the opposing papers (see Winegradv New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]). Skelos, J.P., Dillon, Leventhal and Sgroi, JJ., concur.