Bayo v. 626 Sutter Ave. Assocs., LLC

• Decision Date: 28 May 2013
• Citation: 106 A.D.3d 648,2013 N.Y. Slip Op. 03801,966 N.Y.S.2d 390
• Parties: Momodou J. BAYO, Administrator of the Estate for Yusupha Tunkara, etc., et al., Plaintiffs–Appellants, v. 626 SUTTER AVENUE ASSOCIATES, LLC, et al., Defendants, Sutter Avenue Associates, LLC, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 648
966 N.Y.S.2d 390
2013 N.Y. Slip Op. 03801

Momodou J. BAYO, Administrator of the Estate for Yusupha Tunkara, etc., et al., Plaintiffs–Appellants,
v.
626 SUTTER AVENUE ASSOCIATES, LLC, et al., Defendants,
Sutter Avenue Associates, LLC, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

May 28, 2013.

Pollack, Pollack, Isaac & DeCicco, New York (Brain J. Isaac of counsel), for appellants.

[966 N.Y.S.2d 391]

Milber, Makris, Plaousadis & Seiden, LLP, White Plains (David C. Zegarelli of counsel), for respondent.

MAZZARELLI, J.P., SAXE, DeGRASSE, MANZANET–DANIELS, CLARK, JJ.

[106 A.D.3d 648]Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about June 1, 2012, granting plaintiffs' motion to reargue to the extent an order, same court and Justice, entered on or about September 26, 2011, granted defendant-respondent's motion for summary judgment and dismissed plaintiffs' wrongful death claim as against it and, upon reargument, vacating the prior order, reconsidering defendant-respondent's motion, and dismissing the complaint in its entirety as against defendant-respondent, unanimously affirmed, without costs. Appeal from the prior order, unanimously dismissed, without costs, as superseded by the appeal from the order granting reargument.

On the morning of November 22, 2006, decedent Yusupha Tunkara was found dead at a construction site in a make-shift tool shed built by his employer, Joy Construction (Joy). Defendant-respondent Sutter Avenue Associates, LLC was the developer of the building under construction, and had retained Joy as the general contractor. An investigation and autopsy revealed that decedent had died from carbon monoxide poisoning caused by a gasoline-powered generator in the shed. Decedent was a night watchman for Joy and was apparently trying to use the generator to power a portable heater to stay warm in the shed during his graveyard shift. The administrator of decedent's estate commenced this action seeking to recover damages for common law negligence, violation of Labor Law §§ 200 and 241(6), conscious pain and suffering, and wrongful death. Decedent's wife filed a derivative claim for loss of consortium.

The court properly dismissed the common-law negligence and Labor Law § 200 claims. Where, as here, the injury is caused not by the methods of decedent's work, but by a defective condition on the premises, liability depends on whether the owner or general contractor created or had actual or constructive notice of the hazardous condition ( see Espinosa v. Azure Holdings II, LP, 58 A.D.3d 287, 291 n. 1, 869 N.Y.S.2d 395 [1st Dept. 2008];Hernandez v. Columbus Ctr., LLC, 50 A.D.3d 597, 598, 857...