Dickson v. Fantis Foods, Inc.

• Decision Date: 21 January 1997
• Citation: 235 A.D.2d 452,652 N.Y.S.2d 1005
• Parties: Sydney DICKSON, Appellant, v. FANTIS FOODS, INC., Defendant Third-Party Plaintiff-Respondent; Morias Construction Corp., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 1005

652 N.Y.S.2d 1005

235 A.D.2d 452

Sydney DICKSON, Appellant, v. FANTIS FOODS, INC., Defendant Third-Party Plaintiff-Respondent;

Morias Construction Corp., Third-Party Defendant-Respondent.

Supreme Court of New York, Appellate Division,

Second Department.

Jan. 21, 1997.

Isaacson, Schiowitz, Korson & Solny, New York City (Paul F. McAloon, of counsel), for appellant.

Galvano & Xanthakis, New York City (Anthony Xanthakis, of counsel), for defendant third-party plaintiff-respondent.

Ahmuty Demers & McManus, New York City (James Esposito and Joseph A. Oliva, of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of a judgment of the Supreme Court, Kings County (Golden, J.), dated February 13, 1996, as is in favor of the defendant and against him based upon an alleged violation of Labor Law § 241(6). The appeal brings up for review an order of the same court, dated May 30, 1995, and a ruling granting the defendant's motion for judgment as a matter of law made at the close of the evidence.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, the cause of action based on an alleged violation of Labor Law § 241(6) is reinstated, and the matter is remitted to the Supreme Court, Kings County, for a new trial on that cause of action only.

The plaintiff does not have a Labor Law § 240 cause of action because his accident was not the result of an elevation-related hazard as contemplated by this statute (see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318; Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 616 N.Y.S.2d 900, 640 N.E.2d 1134; Phillips v. City of New York, 228 A.D.2d 570, 644 N.Y.S.2d 764; Genco v. City of New York, 211 A.D.2d 615, 621 N.Y.S.2d 627; Schreiner v. Cremosa Cheese Corp, 202 A.D.2d 657, 609 N.Y.S.2d 322).

However, the plaintiff's Labor Law § 241(6) cause of action should have been submitted to the jury. Labor Law § 241(6) imposes a nondelegable duty upon all owners to comply with its requirements, regardless of the owner's direction and control over the work (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82; Vitaliotis v. Village of Saltaire, 229 A.D.2d 575, 646 N.Y.S.2d 356). Furthermore, two of the regulations cited by the plaintiff, 12 NYCRR 23-1.8(c)(1) and 12 NYCRR 23-1.30, contain "concrete specifications" that allow ...