Mitchell v. New York University

• Decision Date: 09 November 2004
• Docket Number: 4559.
• Citation: 784 N.Y.S.2d 104,12 A.D.3d 200,2004 NY Slip Op 07976
• Parties: CHRISTOPHER MITCHELL, Respondent-Appellant, v. NEW YORK UNIVERSITY, Respondent, and PLAZA CONSTRUCTION CORP., Appellant-Respondent. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 200

784 N.Y.S.2d 104

2004 NY Slip Op 07976

CHRISTOPHER MITCHELL, Respondent-Appellant, v. NEW YORK UNIVERSITY, Respondent, and PLAZA CONSTRUCTION CORP., Appellant-Respondent. (And a Third-Party Action.)

4559.

Appellate Division of the Supreme Court of the State of New York, First Department.

November 9, 2004.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered March 24, 2004, which, to the extent appealed from as limited by the briefs, granted so much of defendants' motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) claims against both defendants and his Labor Law § 200 and common-law negligence claims against defendant New York University only, unanimously modified, on the law, to the extent of granting dismissal of the Labor Law § 200 and common-law negligence claims against defendant Plaza Construction Corp. as well, and otherwise affirmed, without costs.

Plaintiff was standing on a pallet at the bottom of a muddy excavation pit, attempting to move a heavy pipe as directed by his foreman. According to plaintiff, the muddy condition was a result of water emanating from a machine used by his employer, the excavation subcontractor. As plaintiff raised the pipe above his head to move it to higher ground, the pallet allegedly shifted in the mud, and he dropped it on his shoulder.

Since the injury arose out of the methods of the excavating subcontractor, it must be proven, for purposes of common-law negligence and Labor Law § 200, that defendant Plaza exercised actual supervision and control over plaintiff's activity, rather than possessing merely general supervisory authority (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]). The record shows that Plaza had no direct involvement in the performance of plaintiff's work or the manner in which the excavation subcontractor's machine, the pipes or the water were used in connection with the excavation operations (see Hoelle v New York Equities Co., 258 AD2d 253 [1999]). Plaza's personnel were at the site at various times to monitor the subcontractor's work to ensure that it was being performed in accordance with contract specifications, but plaintiff's actual work was admittedly overseen and directed by the subcontractor's personnel. There is no evidence that Plaza personnel were even present at the time of his accident, or supplied plaintiff with any equipment or conducted safety meetings, nor was there evidence that Plaza exercised any...