Giovanniello v. E.W. Howell, Co.

• Decision Date: 20 March 2013
• Citation: 961 N.Y.S.2d 513,104 A.D.3d 812,2013 N.Y. Slip Op. 01805
• Parties: Giuseppe GIOVANNIELLO, et al., appellants, v. E.W. HOWELL, CO., LLC, defendant, Fratello Construction Corp., et al., respondents.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 812

961 N.Y.S.2d 513

2013 N.Y. Slip Op. 01805

Giuseppe GIOVANNIELLO, et al., appellants,

v. E.W. HOWELL, CO., LLC, defendant,Fratello Construction Corp., et al., respondents.

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

March 20, 2013.

Michael A. Cervini, Elmhurst, N.Y. (Robin Mary Heaney of counsel), for appellants.

Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (Michael P. Benenati of counsel), for respondent Fratello Construction Corp.

Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Sarah M. Ziolkowski and Lorin A. Donnelly of counsel), for respondent Recine Materials Corp.

Shein & Associates, P.C., Syosset, N.Y. (Steven Morgenlender of counsel), for respondent PMC Rebar, Inc.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.

In a consolidated action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered November 15, 2011, as granted that branch of the motion of the defendant Fratello Construction Corp. which was for summary judgment dismissing the complaint insofar as asserted against it, and granted those branches of the respective cross motions of the defendants Recine Materials Corp. and PMC Rebar, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

“As a general rule, a separate prime contractor is not liable under Labor Law §§ 240 or 241 for injuries caused to the employees of other contractors with whom they are not in privity of contract, so long as the contractor has not been delegated the authority to oversee and control the activities of the injured worker” ( Barrios v. City of New York, 75 A.D.3d 517, 518, 905 N.Y.S.2d 255;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;Aversano v. JWH Contr., LLC, 37 A.D.3d 745, 831 N.Y.S.2d 222;see also Nasuro v. PI Assoc., LLC, 49 A.D.3d 829, 830, 858 N.Y.S.2d 175;Coque v. Wildflower Estates Developers, Inc., 31 A.D.3d 484, 488, 818 N.Y.S.2d 546). The defendant Fratello Construction Corp. (hereinafter Fratello), one of several prime contractors on the subject project, established its prima facie entitlement to judgment as a matter of law dismissing the plaintiffs' Labor Law §§ 240 and 241 causes of action insofar as asserted against it by demonstrating that it was not in privity of contract with the injured plaintiff's employer, and that it had not been delegated the authority to oversee and control the injured plaintiff's activities. In opposition to this prima facie showing, the plaintiffs failed to raise a triable issue of fact. Therefore, the Supreme Court properly granted those branches of Fratello's motion which were for summary judgment dismissing the causes of action based on alleged violations of Labor Law §§ 240 and 241 insofar as asserted against it.

Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work ( see 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;Ross v. Curtis–Palmer Hydro–Elec., 81 N.Y.2d 494, 501–502, 601 N.Y.S.2d 49, 618 N.E.2d 82). “To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have ‘authority to exercise supervision and control over the work’ ” ( Rojas v. Schwartz, 74 A.D.3d 1046, 1046, 903 N.Y.S.2d 484, quoting Gallello v. MARJ Distribs., Inc., 50 A.D.3d 734, 735, 855 N.Y.S.2d 602;see Chowdhury v. Rodriguez, 57 A.D.3d 121, 127–128, 867 N.Y.S.2d 123). Where a plaintiff's injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 if it “ ‘either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition’ ” ( Rojas v. Schwartz, 74 A.D.3d at 1047, 903 N.Y.S.2d 484, quoting Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323). When an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards ( see Reyes v. Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 52, 919 N.Y.S.2d 44). A defendant moving for summary judgment in such a case may prevail “only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard” ( id.). Here, Fratello established, prima facie, both that it did not create or have actual or constructive notice of the alleged condition which caused the injured plaintiff's injury, and that it lacked the authority to supervise or control the means and methods of the injured plaintiff's work ( see generally id.;Chowdhury v. Rodriguez, 57 A.D.3d 121, 867 N.Y.S.2d 123). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of Fratello's motion which was for summary judgment dismissing the causes of action based on an alleged...