Ozimek v. Holiday Valley Inc.

• Decision Date: 01 April 2011
• Citation: 920 N.Y.S.2d 528,83 A.D.3d 1414,2011 N.Y. Slip Op. 02568
• Parties: Daniel E. OZIMEK and Nancy J. Ozimek, Plaintiffs–Respondents–Appellants,v.HOLIDAY VALLEY, INC., Win–Sum Ski Corp., and Sodexho, Inc., Defendants–Appellants–Respondents.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1414

920 N.Y.S.2d 528

2011 N.Y. Slip Op. 02568

Daniel E. OZIMEK and Nancy J. Ozimek, Plaintiffs–Respondents–Appellants,

v.HOLIDAY VALLEY, INC., Win–Sum Ski Corp., and Sodexho, Inc., Defendants–Appellants–Respondents.

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

April 1, 2011.

Damon Morey LLP, Buffalo (Steven M. Zweig of Counsel), for Defendants–Appellants–Respondents Holiday Valley, Inc. and Win–Sum Ski Corp.Ahmuty, Demers & McManus, Albertson (Erin D. Roach of Counsel), for Defendant–Appellant–Respondent Sodexho, Inc.Fessenden, Laumer & Deangelo, Jamestown (J. Kevin Laumer of Counsel), for Plaintiffs–Respondents–Appellants.PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.MEMORANDUM:

Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries allegedly sustained by Daniel E. Ozimek (plaintiff) when he fell from a ladder while working on a commercial freezer at a ski resort owned and operated by Holiday Valley, Inc. and Win–Sum Ski Corp. (collectively, Win–Sum defendants). The freezer was operated by defendant Sodexho, Inc. (Sodexho). Plaintiffs asserted, inter alia, claims for violations of Labor Law §§ 200, 240(1) and § 241(6) and common-law negligence. The Win–Sum defendants and Sodexho filed separate motions for summary judgment dismissing the amended complaint against them and for summary judgment on their respective cross claims for indemnification. Plaintiffs cross-moved for partial summary judgment on liability with respect to the Labor Law § 240(1) claim. Supreme Court granted those parts of the motions of the Win–Sum defendants and Sodexho for summary judgment dismissing the Labor Law § 241(6) claim against them and denied plaintiffs' cross motion.

With respect to the appeals of the Win–Sum defendants and Sodexho and plaintiffs' cross appeal, we conclude that Supreme Court properly denied the motions and cross motion with respect to the Labor Law § 240(1) claim. Initially, we agree with plaintiffs that they met their initial burden on the cross motion of establishing that plaintiff was engaged in repair work that is covered under the statute. As defendants correctly note, “[i]t is well settled that the statute does not apply to routine maintenance in a non-construction, non-renovation context” ( Koch v. E.C.H. Holding Corp., 248 A.D.2d 510, 511, 669 N.Y.S.2d 896, lv. denied 92 N.Y.2d 811, 680 N.Y.S.2d 457, 703 N.E.2d 269; see Jehle v. Adams Hotel Assoc., 264 A.D.2d 354, 355, 695 N.Y.S.2d 22; Howe v. 1660 Grand Is. Blvd., 209 A.D.2d 934, 619 N.Y.S.2d 227, lv. denied 85 N.Y.2d 803, 624 N.Y.S.2d 373, 648 N.E.2d 793). “Where a person is investigating a malfunction, however, efforts in furtherance of that investigation are protected activities under Labor Law § 240(1)” ( Short v. Durez Div.-Hooker Chems. & Plastic Corp., 280 A.D.2d 972, 973, 721 N.Y.S.2d 218; see Craft v. Clark Trading Corp., 257 A.D.2d 886, 887, 684 N.Y.S.2d 48). “Here, plaintiff was injured while ‘troubleshooting’ an uncommon [freezer] malfunction, which is a protected activity under [the statute]” ( Pieri v. B & B Welch Assoc., 74 A.D.3d 1727, 1729, 904 N.Y.S.2d 595), and “no viable issue has arisen challenging the characterization of plaintiff's work” ( Craft, 257 A.D.2d at 887, 684 N.Y.S.2d 48).

We further conclude, however, that defendants raised a triable issue of fact whether plaintiff's actions were the sole proximate cause of his injuries. Plaintiffs submitted, inter alia, the deposition testimony of plaintiff, who testified that he fell to the ground when the ladder on which he was standing slid out from under him, thereby establishing that the ladder failed to provide “proper protection” pursuant to Labor Law § 240(1) ( see Dowling v. McCloskey Community Services Corp., 45 A.D.3d 1232, 1233, 847 N.Y.S.2d 249; Blair v. Cristani, 296 A.D.2d 471, 745 N.Y.S.2d 468). Defendants, however, raised a triable issue of fact by submitting the affidavit of a witness who averred that plaintiff admitted that “he fell because he missed [the ladder] while descending [from the area in which he was working] and [that the witness] saw the ladder standing erect after plaintiff fell” ( Hamill v. Mutual of Am. Inv. Corp., 79 A.D.3d 478, 479, 913 N.Y.S.2d 62; see Antenucci v. Three Dogs, LLC, 41 A.D.3d 205, 838 N.Y.S.2d 513; Arigo v. Spencer, 39 A.D.3d 1143, 1144–1145, 834 N.Y.S.2d 805; Anderson v. Schul/Mar Constr. Corp., 212 A.D.2d 493, 622 N.Y.S.2d 310).

We agree with Sodexho on its appeal that the court erred in denying those parts of its motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it, and we therefore modify the order accordingly. It is well settled that, 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; 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). Thus, where, as here, “a plaintiff's injuries stem not from the manner in which the work was being performed[ ] but, rather, from a dangerous condition on the premises, [an owner or] general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition” ( Keating v. Nanuet Bd. of Educ., 40 A.D.3d 706, 708, 835 N.Y.S.2d 705; see Lane v. Fratello Constr. Co., 52 A.D.3d 575, 860 N.Y.S.2d 177). Defendants, as the parties seeking summary judgment dismissing those claims, were required to “establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor had actual or constructive notice of the dangerous condition on the...