Cook v. Orchard Park Estates, Inc.

• Decision Date: 06 May 2010
• Citation: 902 N.Y.S.2d 674,73 A.D.3d 1263
• Parties: Christopher COOK, Respondent, v. ORCHARD PARK ESTATES, INC., Defendant, and Scott Ventures et al., Appellants, and Matzen Construction Management Services, LLC, Respondent, and Matzen Company, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents; John Mauro, Co., Third-Party Defendant-Appellant. (And Another Related Action.)
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 674

73 A.D.3d 1263

Christopher COOK, Respondent,

v.ORCHARD PARK ESTATES, INC., Defendant,andScott Ventures et al., Appellants,

and

Matzen Construction Management Services, LLC, Respondent,

and

Matzen Company, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents;

John Mauro, Co., Third-Party Defendant-Appellant.

(And Another Related Action.)

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

May 6, 2010.

Sugarman Law Firm, Syracuse (Stephen A. Davoli of counsel), for appellants.

Hiscock & Barclay, L.L.P., Albany (David M. Cost of counsel), for John Mauro, Co., third-party defendant-appellant.

Parker & Castillo, Albany (Stephen W. Parker of counsel), for Christopher Cook, respondent.

Hanlon, Veloce & Wilkinson, Albany (Thomas J. Wilkinson of counsel), for defendants and third-party plaintiffs-respondents.

Before: MERCURE, J.P., PETERS, ROSE, STEIN and McCARTHY, JJ.

MERCURE, J.P.

Appeal from an order of the Supreme Court (Williams, J.), entered June 15, 2009 in Saratoga County, which, among other things, denied third-party defendant's motion for summary judgment dismissing the third-party complaint.

Plaintiff, an employee of third-party defendant, John Mauro, Co., commenced this action to recover for injuries sustained as a result of a slip and fall accident at the construction site of a shopping plaza. Mauro had been hired as a subcontractor by defendant Matzen Construction, Inc., the general contractor, to perform exterior masonry work on the project, which was located on property owned by defendant Orchard Park Estates, Inc. and leased by defendant Scott Ventures and related defendant entities (hereinafter collectively referred to as Scott Ventures). Plaintiff alleged common-law negligence, as well as violations of Labor Law § 200(1) and § 241(6). Defendants answered and asserted cross claims, with Matzen and related defendant entities (hereinafter collectively referred to as Matzen) and Scott Ventures asserting claims for contractual indemnification, among other things, against each other. In addition, Matzen initiated a third-party action alleging various claims against Mauro, including a claim for contractual indemnification.

Following joinder of issue, Mauro moved for summary judgment dismissing the third-party complaint. Scott Venturesmoved for dismissal of the complaint and all cross claims asserted against it, and for an order directing indemnification and contribution from Matzen, which cross-moved for summary judgment on its contractual indemnification claim against Mauro. Matzen also moved separately for dismissal of the complaint and all cross claims against it. Supreme Court denied all of the motions and these appeals by Mauro and Scott Ventures ensued. We now modify by dismissing plaintiff's claims under Labor Law § 241(6), and otherwise affirm.

Initially, we reject defendants' argument on appeal that plaintiff's Labor Law § 200(1) and general negligence claims must be dismissed. When an "alleged defect or dangerous condition arises from [a] 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" ( Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110 [1993]; see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ). That is, if an injury is caused by the manner in which a subcontractor performs its work, an owner or general contractor will be liable only if it "ha[d] the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" ( Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998] [internal quotation marks and citation omitted]; see Fassett v. Wegmans Food Mkts., Inc., 66 A.D.3d 1274, 1276, 888 N.Y.S.2d 635 [2009]; Nelson v. Sweet Assoc., Inc., 15 A.D.3d 714, 715, 788 N.Y.S.2d 705 [2005] ). Evidence of general supervisory control or mere presence at the work site is not adequate to establish control over the work activity that caused the injury ( see Fassett v. Wegmans Food Mkts., Inc., 66 A.D.3d at 1276, 888 N.Y.S.2d 635; Blysma v. County of Saratoga, 296 A.D.2d 637, 639, 744 N.Y.S.2d 564 [2002] ).

In contrast, when "a worker's injuries result from an unsafe or dangerous condition existing at a work site, rather than from the manner in which the work is being performed, the liability of a general contractor, and of an allegedly negligent subcontractor, depends upon whether they had notice of the dangerous condition and control of the place where the injury occurred" ( Wolfe v. KLR Mech., Inc., 35 A.D.3d 916, 918, 826 N.Y.S.2d 458 [2006] [citations omitted]; accord Weinberg v. Alpine Improvements, LLC, 48 A.D.3d 915, 918, 851 N.Y.S.2d 692 [2008]; Gadani v. Dormitory Auth. of State of N.Y., 43 A.D.3d 1218, 1220, 841 N.Y.S.2d 709 [2007]; see Blysma v. County of Saratoga, 296 A.D.2d at 639, 744 N.Y.S.2d 564). Moreover, an owner-or, as here, a leaseholder-that retains control over the premises has a general duty to maintain its premises in a safe condition ( see Weinberg v. Alpine Improvements, LLC, 48 A.D.3d at 918, 851 N.Y.S.2d 692; Wolfe v. KLR Mech., Inc., 35 A.D.3d at 919, 826 N.Y.S.2d 458).

Here, plaintiff testified during his examination before trial that while he was attempting to retrieve a mortar pan at approximately 8:00 A.M. on the morning of the accident, he slipped on plastic covered by approximately six inches of freshly fallen snow. Plaintiff indicated that it had stopped snowing approximately one hour prior to his accident, and no plowing or shoveling had been performed at the construction site. As relevant here, Scott Ventures' contract with Matzen provided that Scott Ventures was "responsible for all snow removal on-site" and that removal was to be "complete[d] by [6:00 A.M.] each day-including weekends."

Plaintiff further stated in his deposition testimony that the plastic on which he slipped was located on frozen dirt located between the building and a recently poured sidewalk; grass or landscaping was to be installed in the area but, at the time of the accident, it was used by plaintiff's employer, Mauro, for storing materials and as a space over which to drive its forklift. When plaintiff slipped, he was approximately five feet from the sidewalk, which had been poured the night before the accident by Matzen's employees. Plaintiff testified that the type of plastic on which he slipped was used for covering concrete sidewalks that had just been poured, but indicated that he had not observed Matzen's employees using the plastic the night before the accident, and that he did not know how long the plastic had been on the ground before the accident or how it got there. We note that Mauro was contractually obligated to keep the premises free from waste materials or rubbish, but was not to be held responsible for unclean conditions caused by other contractors or subcontractors.

In our view, triable issues of fact exist regarding whether plaintiff's injuries were caused by a dangerous or defective...