McCormick v. 257 W. Genesee, LLC

• Decision Date: 12 November 2010
• Citation: 78 A.D.3d 1581,913 N.Y.S.2d 435
• Parties: Timothy P. McCORMICK and Cathleen McCormick, Plaintiffs-Respondents, v. 257 W. GENESEE, LLC and Duke Construction Limited Partnership, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 435

78 A.D.3d 1581

Timothy P. McCORMICK and Cathleen McCormick, Plaintiffs-Respondents,

v.257 W. GENESEE, LLC and Duke Construction Limited Partnership, Defendants-Appellants.

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

Nov. 12, 2010.

Hodgson Russ LLP, Buffalo (Julia M. Hilliker of Counsel), for Defendants-Appellants.

Maxwell Murphy, LLC, Buffalo (Alan D. Voos of Counsel), for Plaintiffs-Respondents.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GORSKI, JJ.

MEMORANDUM:

In this Labor Law and common-law negligence action commenced by plaintiffs to recover damages for injuries allegedly sustained by Timothy P. McCormick (plaintiff) when he fell at a construction site, defendants contend that Supreme Court erred in denying their motion for summary judgment dismissing the complaint. We agree. Unlike other sections of the Labor Law, "section 200 is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" ( Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068). "Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisorycontrol over the operation, no liability attaches to the owner under the common law or under Labor Law § 200" ( 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). Contrary to the contention of plaintiffs, monitoring and oversight of the timing and quality of the work is insufficient to raise a triable issue of fact with respect to supervision or control for the purposes of the Labor Law § 200claim or common-law negligence cause of action to defeat those parts of defendants' motion ( see Kagan v. BFP One Liberty Plaza, 62 A.D.3d 531, 532, 879 N.Y.S.2d 119, lv. denied 13 N.Y.3d 713, 2009 WL 4797045; Kvandal v. Westminster Presbyt. Socy. of Buffalo, 254 A.D.2d 818, 678 N.Y.S.2d 185; Gielow v. Coplon Home, 251 A.D.2d 970, 972-973, 674 N.Y.S.2d 551, lv. dismissed in part and denied in part 92 N.Y.2d 1042, 685 N.Y.S.2d 416, 708 N.E.2d 172, rearg. denied 93 N.Y.2d 889, 689 N.Y.S.2d 431, 711 N.E.2d 645). In addition, a general duty to ensure compliance with safety regulations or the authority to stop work for safety reasons is insufficient to raise a triable issue of fact with respect to that claim and cause of action to defeat those parts of defendants' motion ( see Verel v. Ferguson Elec. Constr. Co., Inc., 41 A.D.3d 1154, 1157, 838 N.Y.S.2d 280).

Plaintiffs are correct in further contending that, in order to impose liability under section 200 and common-law negligence, they need not establish that defendants had supervisory control over the work being performed in the event that the accident was caused by a defective condition on the premises and defendants had actual and constructive notice of such defect ( see Konopczynski v. ADF Constr. Corp., 60 A.D.3d 1313, 1314-1315, 875 N.Y.S.2d 697). Nevertheless, the worker's injuries must have resulted from a hazardous condition existing at the work site, rather than from the manner in which the work is being performed ( see Martinez v. Tambe Elec., Inc., 70 A.D.3d 1376, 1377, 894 N.Y.S.2d 666), and here plaintiff's injuries did not result from a hazardous condition at the work site. Plaintiffs themselves established that plaintiff tripped on a protruding pin that had been stored on a wooden form, and that the pin was to be inserted into the form to hold it together while concrete was poured into it. "Thus, the protruding [pin] was not a defect inherent in the property, but rather was created by the manner in which plaintiff's employer performed its work. Accordingly, defendants cannot be held liable under section 200 [or for common-law negligence] even if they had constructive notice of the protruding [pin]" ( Dalanna v. City of New York, 308 A.D.2d 400, 400, 764 N.Y.S.2d 429).

We also agree with defendants that the court further erred in denying that part of their motion for summary judgment dismissing the Labor Law § 241(6) claim. Defendants met their burden of establishing that none of the Industrial Code provisions upon which plaintiffs rely on appeal will permit recovery in this case, and plaintiffs failed to raise a triable issue of fact. Plaintiffs may not recover pursuant to 12 NYCRR 23-1.7(e)(1) or (2) inasmuch as the object over which plaintiff tripped was ...