| Costa v Sterling Equip., Inc. |
| 2014 NY Slip Op 08391 [123 AD3d 649] |
| December 3, 2014 |
| Appellate Division, Second Department |
[*1]
| Dominick J. Costa, as Administrator of the Estate ofDominick J. Costa, Deceased, Respondent, v Sterling Equipment, Inc.,Appellant. |
Mulholland Minion Duffy Davey McNiff & Beyrer (Mauro Lilling Naparty,LLP, Woodbury, N.Y. [Matthew W. Naparty and Seth M. Weinberg], of counsel), forappellant.
Sullivan Papain Block McGarth & Cannavo, P.C., New York, N.Y.(Stephen C. Glasser and Gabriel A. Arce-Yee of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, aslimited by its reply brief, from so much of an order of the Supreme Court, Nassau County(Mahon, J.), dated July 15, 2013, as denied those branches of its motion which were forsummary judgment dismissing the causes of action to recover damages for common-lawnegligence and a violation of Labor Law § 200.
Ordered that the order is affirmed insofar as appealed from, with costs.
Dominick J. Costa commenced this action to recover damages for personal injurieshe allegedly sustained while working as an oiler on a crane barge owned by thedefendant. Costa alleged that, as he stepped down from an elevated steel beam onto a"stack of wood" that was approximately three-to-four feet high, the wood "gave way"and he "lost [his] footing." Costa died, and his son was substituted as plaintiff in theaction. Thereafter, the defendant moved for summary judgment, inter alia, dismissing thecauses of action to recover damages for common-law negligence and a violation ofLabor Law § 200. The Supreme Court denied those branches of thedefendant's motion.
Labor Law § 200 codifies the common-law duty of an owner orcontractor to provide employees with a safe place to work (see Comes v New YorkState Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). Where, as here, a plaintiffcontends that an accident occurred because a dangerous condition existed on thepremises where work was being undertaken, an owner moving for summary judgmentdismissing causes of action alleging common-law negligence and a violation of LaborLaw § 200 has the initial burden of making a prima facie showing that itneither created the dangerous condition nor had actual or constructive notice of itsexistence (see Palacios v 29thSt. Apts, LLC, 110 AD3d 698, 699 [2013]; Ventimiglia v Thatch, Ripley & Co., LLC, 96 AD3d1043, 1046 [2012]; Chowdhury v Rodriguez, 57 AD3d 121, 128 [2008]). Here,the defendant failed to establish, prima facie, that it neither created the allegedlydangerous condition nor had actual or constructive notice of its existence. The failure to[*2]make a prima showing requires the denial of thosebranches of the motion which were for summary judgment dismissing the causes ofaction to recover damages for common-law negligence and a violation of Labor Law§ 200, regardless of the sufficiency of the opposition papers (seegenerally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The defendant's contention that the pile of wood did not constitute a dangerouscondition is without merit (seeAguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763, 764 [2009]; Van Salisbury v Elliott-Lewis,55 AD3d 725, 726 [2008]; Lane v Fratello Constr. Co., 52 AD3d 575, 576[2008]).
Additionally, the defendant's contention that it is entitled to summary judgment sincethe pile of wood was open and obvious and not inherently dangerous as a matter of law isnot properly before this Court, as it was raised for the first time on appeal (see VanSalisbury v Elliott-Lewis, 55 AD3d at 726-727).
Accordingly, the Supreme Court properly denied those branches of the defendant'smotion which were for summary judgment dismissing the causes of action to recoverdamages for common-law negligence and a violation of Labor Law § 200.Rivera, J.P., Hinds-Radix, Duffy and LaSalle, JJ., concur.