| Keener v Cinalta Constr. Corp. |
| 2017 NY Slip Op 00293 [146 AD3d 867] |
| January 18, 2017 |
| Appellate Division, Second Department |
[*1]
| Kevin Keener, Appellants, v CinaltaConstruction Corp., Respondent. |
Sacks and Sacks, LLP, New York, NY (Scott N. Singer of counsel), forappellants.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, NY(Marcia K. Raicus of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County(Santorelli, J.), dated July 30, 2014, as granted those branches of the defendant's motionwhich were for summary judgment dismissing the cause of action alleging a violation ofLabor Law § 200 and so much of the cause of action alleging a violation ofLabor Law § 241 (6) as was predicated upon 12 NYCRR 23-1.7 (d) and(e).
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendant's motion which was for summary judgmentdismissing the cause of action alleging a violation of Labor Law § 200, andsubstituting therefor a provision denying that branch of the defendant's motion; as somodified, the order is affirmed insofar as appealed from, with costs payable to theplaintiffs.
The New York City Transit Authority retained the defendant to act as its generalcontractor on a renovation project. The defendant hired nonparty Triumph Construction(hereinafter Triumph) to perform work on the project. The plaintiff Kevin Keener(hereinafter the plaintiff) was employed by Triumph.
While working on the project, the plaintiff allegedly slipped when he stepped on apiece of asphalt that gave way and started to break off. The plaintiff, and his wife suingderivatively, commenced this action against the defendant alleging, inter alia, violationsof Labor Law §§ 200 and 241 (6). Upon the defendant's motion, theSupreme Court, among other things, granted those branches of the motion which werefor summary judgment dismissing the cause of action alleging a violation of Labor Law§ 200 and so much of the cause of action alleging a violation of Labor Law§ 241 (6) as was predicated upon 12 NYCRR 23-1.7 (d) and (e). Theplaintiffs appeal.
The Supreme Court erred in granting that branch of the defendant's motion whichwas [*2]for summary judgment dismissing the cause ofaction alleging a violation of Labor Law § 200. Labor Law§ 200 codifies the common-law duty of an owner or contractor to provideemployees with a safe place to work (see Comes v New York State Elec. & GasCorp., 82 NY2d 876, 877 [1993]; Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d 494, 505 [1993]; Seales vTrident Structural Corp., 142 AD3d 1153, 1158 [2016]). Where, as here, theplaintiff's accident arose not from the manner in which the work was performed, butrather from an allegedly dangerous condition at the work site, liability for a violation ofLabor Law § 200 will be imposed if the general contractor had control overthe work site and either created the dangerous condition or had actual or constructivenotice of it (see Doto v AstoriaEnergy II, LLC, 129 AD3d 660, 663-664 [2015]; Martinez v City of New York,73 AD3d 993, 998 [2010]). The defendant failed to establish its prima facieentitlement to judgment as a matter of law dismissing the cause of action alleging aviolation of Labor Law § 200 (see Harsch v City of New York, 78 AD3d 781, 783[2010]). Thus, the court should have denied that branch of the defendant's motion whichwas for summary judgment dismissing that cause of action, regardless of the sufficiencyof the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]).
However, the Supreme Court properly granted that branch of the defendant's motionwhich was for summary judgment dismissing so much of the cause of action alleging aviolation of Labor Law § 241 (6) as was predicated upon 12 NYCRR23-1.7 (d). Labor Law § 241 (6) imposes a nondelegable duty upon ownersand contractors to provide reasonable and adequate protection and safety to constructionworkers (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502). Aplaintiff asserting a violation of Labor Law § 241 (6) must allege that aspecific and concrete provision of the Industrial Code was violated (see Rosado v Briarwoods Farm,Inc., 19 AD3d 396, 399 [2005]). Here, the defendant established, prima facie,that 12 NYCRR 23-1.7 (d) was inapplicable to the facts of this case (see Nankervis v Long Is.Univ., 78 AD3d 799, 801 [2010]; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d763, 765 [2009]; Miranda v City of New York, 281 AD2d 403, 404 [2001]).In opposition, the plaintiffs failed to raise a triable issue of fact.
Moreover, the Supreme Court properly granted that branch of the defendant's motionwhich was for summary judgment dismissing so much of the cause of action alleging aviolation of Labor Law § 241 (6) as was predicated upon 12 NYCRR23-1.7 (e). In support of this branch of its motion, the defendant established, prima facie,that this regulation, which relates to tripping hazards, was inapplicable to the facts of thiscase, as the plaintiff testified at his deposition that he did not trip (see Velasquez v 795 ColumbusLLC, 103 AD3d 541 [2013]; Cooper v State of New York, 72 AD3d 633, 635 [2010]).In opposition, the plaintiffs failed to raise a triable issue of fact. Rivera, J.P., Chambers,Roman and LaSalle, JJ., concur. [Prior Case History: 2014 NY Slip Op32069(U).]