Braun v. Fishbach and Moore

• Decision Date: 12 January 2001
• Parties: (A.D. 2 Dept. 2001) Richard Braun, respondent, v. Fischbach and Moore, Incorporated, appellant (and a third-party action). 1999-11946 Argued -
• Court: New York Supreme Court — Appellate Division

Page 79

721 N.Y.S.2d 79 (A.D. 2 Dept. 2001)

Richard Braun, respondent, v. Fischbach and Moore, Incorporated, appellant

(and a third-party action).

1999-11946

SUPREME COURT, APPELLATE DIVISION, SECOND JUDICIAL DEPARTMENT

Argued - January 12, 2001

February 13, 2001

Fiedelman & McGaw, Jericho, N.Y. (Dawn C. DeSimone of counsel), for appellant.

FRED T. SANTUCCI, J.P., SONDRA MILLER, ANITA R. FLORIO and ROBERT W. SCHMIDT, JJ.

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 17, 1999, as denied those branches of its motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 241(6).

ORDERED that the order is modified by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the plaintiffs Labor Law § 200 cause of action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The defendant, the general contractor, contracted with M-Track Enterprises, Inc. (hereinafter M-Track), to perform a project for the New York City Transit Authority (hereinafter the NYCTA). The plaintiff was working for M-Track and was instructed to install steel beams to the tracks of an above-ground subway line in Brooklyn. To perform the job, M-Track paid the NYCTA for the use of a work train which included flat-bed cars, a crane, a train operator, and a crane operator. While the train was heading toward the Ocean Parkway subway station, the boom of the crane appeared to be improperly raised and it collided with a support beam near the entrance of the station. This caused the crane to become dislodged from the turntable and pushed onto the flat-bed car where the plaintiff was standing. The turret of the crane pushed steel beams, grates, and railroad ties on top of the plaintiff, resulting in injuries. The defendant claims that it should have been awarded summary judgment dismissing the plaintiff's causes of action pursuant to Labor Law §§ 200 and 241(6).

To be liable under Labor Law § 200, the owner or general contractor must have the authority to control the activity which brings about the injury, to enable it to avoid or correct the unsafe condition (see, Rizzuto v Wenger Contr. Co., 91 N.Y.2d 343; Russin v Picciano & Son, 54 N.Y.2d 311). Here, in response to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff...