Doyne v. Barry, Bette & Led Duke Inc.

• Decision Date: 15 January 1998
• Citation: 246 A.D.2d 756,668 N.Y.S.2d 58
• Court: New York Supreme Court — Appellate Division
• Parties: , 1998 N.Y. Slip Op. 272 Thomas DOYNE, Respondent, v. BARRY, BETTE & LED DUKE INC., Defendant and Third-Party Plaintiff-Appellant, and Schenectady Steel Company Inc., Respondent-Appellant; Brownell Steel Inc., Third-Party Defendant-Appellant-Respondent.

Page 58

668 N.Y.S.2d 58

246 A.D.2d 756, 1998 N.Y. Slip Op. 272

Thomas DOYNE, Respondent, v. BARRY, BETTE & LED DUKE INC., Defendant and Third-Party Plaintiff-Appellant and Schenectady Steel Company Inc., Respondent-Appellant Brownell Steel Inc., Third-Party Defendant-Appellant-Respondent.

Supreme Court, Appellate Division Third Department.

Jan. 15, 1998.

Carter, Conboy, Case, Blackmore, Napierski & Maloney (Joseph T. Johnson, of counsel) Albany, for defendant and third-party plaintiff-appellant.

Horigan, Horigan, Pennock & Lombardo (Krishna K. Singh, of counsel), Amsterdam, for third-party defendant-appellant-respondent.

Ryan, Orlando & Smallacombe (Paula M. Barbaruolo, of counsel), Albany, for respondent-appellant.

Buckley, Mendleson & Criscione (John J. Criscione, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.

CREW, Justice.

Cross appeals from an order of the Supreme Court (Keegan, J.), entered January 2, 1997 in Albany County, which, inter alia, partially granted motions by defendants and third-party defendant and dismissed plaintiff's Labor Law § 240(1) cause of action.

Plaintiff, a journeyman ironworker employed by third-party defendant, Brownell Steel Inc., was injured on November 27, 1991 while performing work on a building located in the City of Albany. According to plaintiff, he sustained an injury to his left knee when, while standing on a bar joist on the roof of the structure, his foot slipped on a wet spot caused by melted frost. Defendant Barry, Bette & Led Duke Inc. (hereinafter BBL) was the general contractor for the project and, in that capacity, contracted with defendant Schenectady Steel Company Inc. (hereinafter SSC) to, inter alia, "[f]urnish material, labor, equipment and supervision necessary for the complete installation of [s]tructural [s]teel". SSC, in turn, contracted with Brownell "to supply all labor and equipment to erect the structural steel, floor and roof deck with accessories".

As a result of the accident, plaintiff commenced this action against defendants sounding in common-law negligence and asserting violations of Labor Law §§ 200, 240(1) and § 241(6). In response thereto, BBL cross-claimed against SSC for indemnification and, thereafter, commenced a third-party action against Brownell seeking similar relief. Following joinder of issue and discovery, SSC moved for summary judgment dismissing the complaint and all cross claims against it and BBL and Brownell cross-moved for similar relief. Supreme Court granted summary judgment dismissing the Labor Law § 240(1) cause of action but denied the balance of the relief requested by the parties. These appeals ensued.

As a starting point, we are of the view that Supreme Court erred in failing to dismiss plaintiff's Labor Law § 200 claim against BBL and SSC. The duty imposed under Labor Law § 200, which merely codifies the common-law duty to provide a safe place to work, does not extend to situations where "the danger at issue is readily observable, bearing in mind the age, intelligence and experience of the worker" (Bombard v. Central Hudson Gas & Elec. Co., 229 A.D.2d 837, 838, 645 N.Y.S.2d 909, lv. dismissed, lv. denied 89 N.Y.2d 854, 652 N.Y.S.2d 732, 675 N.E.2d 467). Here, plaintiff's examination before trial testimony and affidavit reveal that he observed wet spots on the bar joists on the morning of the accident and was aware of the dangers associated with frost conditions. Indeed, plaintiff testified that he had not worked two days during the week before the accident due to frost conditions which, according to plaintiff, made walking on the bar joists "like stepping on grease" and rendered them unsafe. Under such circumstances, we conclude that plaintiff was confronted with a readily observable danger and, hence, no liability under Labor Law § 200 should attach. ¹ Moreover, even accepting that the hazard in question was not readily observable, plaintiff's claims in this regard still would be subject to dismissal, as the record clearly reveals that neither BBL nor SSC actually exercised any control or supervision over the injury-producing work.

Turning to the alleged violation of Labor Law § 241(6), SSC initially contends that Supreme Court erred in concluding that it was a statutory agent of BBL. We cannot agree. "It is well settled that the existence of a statutory agency turns upon whether the third party, who is neither an owner nor a general contractor, possessed the authority to supervise and control the work that gave rise to the plaintiff's injuries" (Barker v. Menard, 237 A.D.2d 839, 841, 655 N.Y.S.2d 186, 188, lv. denied 90 N.Y.2d 804, 661 N.Y.S.2d 831, 684 N.E.2d 281; see, Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317-318, 445 N.Y.S.2d 127, 429 N.E.2d 805). Although SSC admittedly was neither the owner nor the general contractor for the project, the contract between SSC and BBL required SSC to "[f]urnish material, labor, equipment and supervision necessary for the complete installation of [s]tructural [s]teel" (emphasis supplied). Hence, the record plainly demonstrates that SSC was vested with the requisite authority to supervise and control the injury-producing work, and the mere fact that SSC may not have exercised such authority is irrelevant for purposes of determining the existence of a statutory agency (see, Currie v. Scott Contr. Corp., 203 A.D.2d 825, 826, 611 N.Y.S.2d 360, lv. dismissed 84 N.Y.2d 977, 622 N.Y.S.2d 916, 647 N.E.2d 122; Iveson v. Sweet Assocs., 203 A.D.2d 741, 742, 610 N.Y.S.2d 382).

Similarly unpersuasive is SSC and BBL's contention that the regulation relied upon by plaintiff is neither sufficiently specific to support a cause of action under Labor Law § 241(6) nor applicable to the facts of this case. 12 NYCRR 23-1.7(d) provides that:

Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing (emphasis supplied).

This court previously has held that the cited regulation is sufficiently concrete and specific to support a cause of action pursuant to Labor Law § 241(6) (see, Francis v. Aluminum Co. of Am., 240 A.D.2d 985, 987, 659 N.Y.S.2d 903, 905). ² As to the applicability of this provision, we cannot say that the bar joists upon which plaintiff was working at the time of his accident did not qualify as an "elevated working surface" within the meaning...