Ocampo v. Bovis Lend Lease LMB, Inc.

• Decision Date: 04 December 2014
• Docket Number: 13677, 103064/10, 590319/10
• Citation: 123 A.D.3d 456,2014 N.Y. Slip Op. 08495,998 N.Y.S.2d 340
• Parties: Orlando OCAMPO, Plaintiff–Respondent, v. BOVIS LEND LEASE LMB, INC., Defendant–Appellant. [And a Third–Party Action].
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 456

998 N.Y.S.2d 340

2014 N.Y. Slip Op. 08495

Orlando OCAMPO, Plaintiff–Respondent

v. BOVIS LEND LEASE LMB, INC., Defendant–Appellant.[And a Third–Party Action].

13677, 103064/10, 590319/10

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

Dec. 4, 2014.

Newman Myers Kreines Gross Harris, P.C., New York (Patrick M. Caruana of counsel), for appellant.

Arnold E. DiJoseph, P.C., New York (Arnold DiJoseph III of counsel), for respondent.

FRIEDMAN, J.P., ACOSTA, MOSKOWITZ, RICHTER, CLARK, JJ.

Opinion

Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 7, 2013, which, inter alia, denied defendant's motion for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 241(6) claims, unanimously modified, on the law, to the extent of dismissing the Labor Law § 200 and common-law negligence claims and so much of the Labor Law § 241(6) claim as based upon an alleged violation of Industrial Code (12 NYCRR) § 23–1.7(e), and otherwise affirmed, without costs.

Plaintiff allegedly slipped and fell on ice covering most of the 27th floor of the subject building, while he was carrying metal pipes in the course of performing wall demolition work on an asbestos abatement project. The Labor Law § 200 and common-law negligence claims are dismissed because the record shows that defendant did not exercise supervisory control over the means and methods of the work, which required plaintiff's employer to use water to minimize the risks associated with asbestos (see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ; Francis v. Plaza Constr. Corp., 121 A.D.3d 427, 994 N.Y.S.2d 74 [1st Dept.2014] ; Dalanna v. City of New York, 308 A.D.2d 400, 764 N.Y.S.2d 429 [1st Dept.2003] ). The evidence indicated that the ice resulted solely from such work, inasmuch as the building was sealed off from the elements, and no companies other than plaintiff's employer and defendant were permitted to be present on the contamination site.

The court properly declined to dismiss that part of the Labor Law § 241(6) claim based on an alleged violation of 12 NYCRR 23–1.7(d), since the evidence indicates that plaintiff slipped and fell while he was working on ice on the floor, which had not been removed, sanded, or covered (see Booth v. Seven World Trade Co., L.P., 82 A.D.3d 499, 500–501, 918 N.Y.S.2d 428 [1st Dept.2011] ; Temes v. Columbus Ctr. LLC, 48 A.D.3d 281, 851 N.Y.S.2d 188 [1st Dept.2008] ). Contrary to defendant's argument, the ice was not integral to the work (cf. O'Sullivan v. IDI Constr. Co.,...