Comes v. New York State Elec. and Gas Corp.

• Decision Date: 20 December 1993
• Citation: Comes v. New York State Elec. and Gas Corp., 609 N.Y.S.2d 168, 82 N.Y.2d 876, 631 N.E.2d 110 (N.Y. 1993)
• Parties: , 631 N.E.2d 110 Lynn L. COMES et al., Appellants, v. NEW YORK STATE ELECTRIC AND GAS CORPORATION, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 168

609 N.Y.S.2d 168

82 N.Y.2d 876, 631 N.E.2d 110

Lynn L. COMES et al., Appellants, v. NEW YORK STATE ELECTRIC AND GAS CORPORATION, Respondent.

Court of Appeals of New York.

Dec. 20, 1993.

[82 N.Y.2d 877] [631 N.E.2d 111]

Paul William Beltz, P.C., Buffalo (Russell T. Quinlan, of counsel), and Cyril A. Krenzer, P.C., Honeoye Falls, for appellants.

Levene, Gouldin & Thompson, Vestal (John L. Perticone, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff Lynn Comes was employed by the general contractor hired by defendant to construct a building on defendant's land. He sustained personal injuries after his employer directed him to lift and carry a 14-foot steel I-beam unassisted. Comes and his wife, suing derivatively, commenced this action against defendant alleging violations of Labor Law §§ 200 and 241(6).

Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. An implicit precondition to this duty "is that the party charged with that responsibility have the authority to control the activity bringing about the injury" (Russin v. Picciano & Son, 54 N.Y.2d 311, 317, 445 N.Y.S.2d 127, 429 N.E.2d 805). Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200 (Lombardi v. Stout, 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117).

Comes' injury was caused by lifting the beam (plaintiffs allege no other dangerous condition on the premises), and there is no evidence that defendant exercised supervisory control or had any input into how the steel beam was to be moved. Defendant did hire a construction inspector to visit the work site; however, the inspector's duties were limited to observing the work and reporting to the contractor safety violations by the employees.

Alternatively, plaintiffs contend defendant is liable under section 200 even if it did not exercise control over the operation because it had actual or constructive notice of the unsafe manner in which the work was performed. They rely on Nagel v. Metzger, 103 A.D.2d 1, 9, 478 N.Y.S.2d 737. We note that proper equipment was present on the site here and thus defendant's inspector had no reason to believe that Comes' employer would require him to carry the steel beam unassisted. But more to the...