Kanarvogel v. Tops Appliance City, Inc.

• Decision Date: 03 April 2000
• Parties: MARK KANARVOGEL et al., Respondents,<BR>v.<BR>TOPS APPLIANCE CITY, INC., Appellant-Respondent, and ALKO GENERAL CONTRACTORS, INC., Respondent-Appellant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

271 A.D.2d 409

705 N.Y.S.2d 644

MARK KANARVOGEL et al., Respondents,

v.TOPS APPLIANCE CITY, INC., Appellant-Respondent, and ALKO GENERAL CONTRACTORS, INC., Respondent-Appellant. (And a Third-Party Action.)

Decided April 3, 2000.

Ritter, J. P., S. Miller, McGinity and Feuerstein, JJ., concur.

Ordered that the appeal by the defendant Alko General Contractors, Inc., is dismissed, for failure to perfect the same in accordance with the rules of this Court (see, 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the order is modified by (1) deleting the provision thereof denying those branches of the motion of the defendant Tops Appliance City, Inc., which were for summary judgment dismissing the cause of action alleging common-law negligence and the causes of action under Labor Law §§ 200 and 240 (1) insofar as asserted against it and substituting therefor a provision granting those branches of the motion, (2) deleting the provision thereof denying that branch of the motion of the defendant Tops Appliance City, Inc., which was for summary judgment dismissing the plaintiffs' cause of action based on Labor Law § 241 (6) and substituting therefor a provision granting that branch of the motion to the extent that the plaintiffs' cause of action under Labor Law § 241 (6) is based on violations of Industrial Code 12 NYCRR 23-1.7, 23-1.30, 23-7.1, and 23-7.3, and (3) deleting the provision thereof denying that branch of the motion of the defendant Tops Appliance City, Inc., which was for conditional summary judgment on its cross claim against the defendant Alko General Contractors, Inc., for common-law and contractual indemnification and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as reviewed; and it is further,

Ordered that the appellant Tops Appliance City, Inc., is awarded one bill of costs payable by the respondents and the respondent-appellant.

The plaintiff Mark Kanarvogel (hereinafter the plaintiff) was injured when he fell down an interior staircase in a building owned by the defendant Tops Appliance City, Inc. (hereinafter Tops). His fall occurred after a sheet metal panel he was carrying up the staircase struck the stairwell's ceiling. He claimed that he was denied access to the freight elevator and therefore was required to carry his materials and tools up the stairwell. He commenced this action against, among others, Tops, to recover damages based on alleged violations of Labor Law §§ 200, 240 (1), and § 241 (6), as well as common-law negligence. The Supreme Court denied Tops' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it or, in the alternative, for summary judgment on its cross claims for common-law and contractual indemnification from the defendant Alko General Contractors, Inc.

As the plaintiff's injuries did not result from an elevation-related hazard within the meaning of Labor Law § 240 (1) (see, Melber v 6333 Main St., 91 NY2d 759; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Norton v Park Plaza Owners Corp., 263 AD2d 531; Barrett v Ellenville Natl. Bank, 255 AD2d 473; Maggi v Innovax Methods Group Co., 250 AD2d 576), his cause of action against Tops alleging a violation of Labor Law § 240 (1) should have been dismissed.

The Supreme Court also should have dismissed the causes of action alleging common-law negligence and a violation of Labor Law § 200. While Tops was the owner of the work site, it is undisputed that it exercised no supervisory control over the manner in which the work was performed and there was no evidence that it possessed actual or constructive notice that the plaintiff...