| Honeyman v Curiosity Works, Inc. |
| 2017 NY Slip Op 07241 [154 AD3d 820] |
| October 18, 2017 |
| Appellate Division, Second Department |
[*1]
| Francis R. Honeyman et al., Appellants, v CuriosityWorks, Inc., et al., Defendants, and Metropolitan Exposition Services, Inc.,Respondent. |
Silberstein, Awad & Miklos, P.C., Garden City, NY (James E. Baker of counsel), forappellants.
Tromello, McDonnell & Kehoe, Melville, NY (James Kehoe of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Greco, Jr., J.), datedMay 26, 2015, as, upon renewal, granted those branches of the motion of the defendantMetropolitan Exposition Services, Inc., which were for summary judgment dismissing theplaintiff's causes of action alleging violations of Labor Law §§ 200, 240 (1),and 241 (6) insofar as asserted against it, which had been denied in an order of the same courtdated September 29, 2014.
Ordered that the order is modified, on the law, by deleting the provision thereof, uponrenewal, granting that branch of the motion of the defendant Metropolitan Exposition Services,Inc., which was for summary judgment dismissing the cause of action alleging a violation ofLabor Law § 200 insofar as asserted against it, and substituting therefor a provision,upon renewal, adhering to the determination in the order dated September 29, 2014, denying thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
The plaintiff Francis R. Honeyman (hereinafter the injured plaintiff) was performingelectrical work on the installation of an art show at the Jacob K. Javits Convention Center whentwo panels comprising the walls of an exhibition booth fell on him. The defendant MetropolitanExposition Services, Inc. (hereinafter the defendant), allegedly had been hired to effectuate andsupervise the installation of the art show.
The plaintiffs commenced this action to recover damages for personal injuries, etc., alleging,inter alia, violations of Labor Law §§ 200, 240 (1), and 241 (6). Thedefendant, inter alia, moved for summary judgment dismissing the causes of action predicatedupon those statutory violations insofar as asserted against it. In an order dated September 29,2014, the Supreme Court denied the defendant's motion without prejudice to renewal. In theorder appealed from, upon renewal, the Supreme Court granted those branches of the defendant'smotion. The plaintiffs appeal.
[*2] Upon renewal, thedefendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing thecause of action alleging a violation of Labor Law § 240 (1) insofar as assertedagainst it. The defendant's evidence established the absence of a causal nexus between the injuredplaintiff's injury and a lack or failure of a device prescribed by Labor Law § 240 (1)(see Fabrizi v 1095 Ave. of the Ams.,L.L.C., 22 NY3d 658, 663 [2014]; Carrasco v Weissman, 120 AD3d 531, 533 [2014]; Mendez v Jackson Dev. Group, Ltd.,99 AD3d 677, 678 [2012]). In opposition, the plaintiffs failed to raise a triable issue of fact.The device identified by the plaintiffs—a pin and bracket system—was not meant tofunction as a safety device in the same manner as those devices enumerated in Labor Law§ 240 (1), but, rather, served to support the exhibition booths once fully constructed(see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d at 663).
The defendant also demonstrated, upon renewal, its entitlement to judgment as a matter oflaw dismissing the Labor Law § 241 (6) cause of action. A plaintiff asserting aviolation of Labor Law § 241 (6) must demonstrate that a specific and concreteprovision of the Industrial Code was violated (see Misicki v Caradonna, 12 NY3d 511, 515 [2009]; Keener v Cinalta Constr. Corp., 146AD3d 867 [2017]). Here, the defendant established, prima facie, that none of the specificand concrete provisions of the Industrial Code alleged to have been violated were applicable tothe facts of this case (see 12 NYCRR 23-1.5, 23-1.7, 23-1.8, 23-1.11, 23-1.30, 23-2.1,23-6.1, 23-6.2; see also Spence v IslandEstates at Mt. Sinai II, LLC, 79 AD3d 936, 937-938 [2010]; cf. Perez v 286 Scholes St. Corp., 134AD3d 1085, 1086 [2015]). In opposition, the plaintiffs failed to raise a triable issue offact.
However, the Supreme Court erred in granting, upon renewal, that branch of the defendant'smotion which was for summary judgment dismissing the cause of action alleging a violation ofLabor Law § 200. Labor Law § 200 codifies the common-law duty ofan owner or contractor to provide employees with a safe place to work (see Comes v NewYork State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Keener v Cinalta Constr. Corp., 146AD3d 867 [2017]). Where, as here, the injured plaintiff's accident arose not from the mannerin which the work was performed, but rather from an allegedly dangerous condition at the worksite, liability for a violation of Labor Law § 200 will be imposed if the generalcontractor had control over the work site and either created the dangerous condition or had actualor constructive notice of it (see Keener vCinalta Constr. Corp., 146 AD3d 867 [2017]; Doto v Astoria Energy II, LLC, 129 AD3d 660, 663 [2015]).
Contrary to the defendant's contention and the Supreme Court's conclusion, the defendantfailed to establish, prima facie, that it did not serve as a general contractor or agent with controlover the work site. Further, the defendant failed to demonstrate, prima facie, that it did not createthe dangerous condition or have constructive notice of it. Since the defendant failed to meet itsprima facie burden with regard to that branch of its motion which was to dismiss the Labor Law§ 200 cause of action insofar as asserted against it, that branch of the motion shouldhave been denied, regardless of the sufficiency of the opposition papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The defendant's remaining contentions are not properly before this Court. Balkin, J.P.,Austin, Sgroi and LaSalle, JJ., concur.