DiBenedetto v. Port Authority of New York and New Jersey

• Decision Date: 25 April 2002
• Citation: 293 A.D.2d 399,742 N.Y.S.2d 207
• Court: New York Supreme Court — Appellate Division
• Parties: SALVATORE DIBENEDETTO et al., Appellants,<BR>v.<BR>PORT AUTHORITY OF NEW YORK AND NEW JERSEY et al., Respondents.

293 A.D.2d 399

742 N.Y.S.2d 207

SALVATORE DIBENEDETTO et al., Appellants,

v.PORT AUTHORITY OF NEW YORK AND NEW JERSEY et al., Respondents.

Decided April 25, 2002.

Concur — Mazzarelli, J.P., Saxe, Sullivan and Wallach, JJ.

Plaintiff's common-law negligence claim was properly dismissed since there was no evidence that defendants had actual or constructive notice of a defective or dangerous condition that caused his fall from the fender of a crane (see, Gordon v American Museum of Natural History, 67 NY2d 836, 838).

Although we agree with plaintiff that he was not merely a volunteer but an employee within the terms of the Labor Law (see, Daniello v Holy Name Church, 286 AD2d 268, 269; Smith v Torre, 247 AD2d 896; cf., Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 577), his Labor Law § 200 claim fails because the evidence is insufficient to raise a triable issue as to whether defendants exercised control or supervision over his work (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Dilena v Irving Reisman Irrevocable Trust, 263 AD2d 375; Buccini v 1568 Broadway Assoc., 250 AD2d 466, 468-469). Plaintiff's Labor Law § 240 (1) and § 241 (6) claims were properly dismissed since he was not engaged in "construction work" when he fell (see, Agli v Turner Constr. Co., 246 AD2d 16, 24; Dilena v Irving Reisman Irrevocable Trust, supra; Phillips v City of New York, 228 AD2d 570, 571). Plaintiff's work did not involve "making a significant physical change to the configuration or composition of the building or structure" (Weininger v Hagedorn & Co., 91 NY2d 958, 960), but rather, by plaintiff's own account, was a simple activity, involving the removal of two bolts and replacement of a part, and taking no longer than 30 minutes (see, Jehle v Adams Hotel, 264 AD2d 354, 355). The crane was operational before and after replacement of the part. The dismissal of plaintiff's Labor Law § 240 (1) claim is sustainable on the separate ground that plaintiff was not subject to an elevation-related risk within the meaning of that statute (Bond v York Hunter Constr., 95 NY2d 883, 885, citing Rocovich v Consolidated Edison Co., 78 NY2d 509, 514-515).