Quituizaca v. Tucchiarone

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS
• Citation: Quituizaca v. Tucchiarone, 2014 NY Slip Op 2024, 115 A.D.3d 924, 982 N.Y.S.2d 524 (N.Y. App. Div. 2014)
• Decision Date: 26 March 2014
• Parties: Joel QUITUIZACA, respondent, v. Mario TUCCHIARONE, et al., defendants third-party plaintiffs-appellants; N.J. Pappas Construction Co., third-party defendant.

115 A.D.3d 924

982 N.Y.S.2d 524

2014 N.Y. Slip Op. 02024

Joel QUITUIZACA, respondent,

v. Mario TUCCHIARONE, et al., defendants third-party plaintiffs-appellants;N.J. Pappas Construction Co., third-party defendant.

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

March 26, 2014.

Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for defendants third-party plaintiffs-appellants.

Gorayeb & Associates, P.C., New York, N.Y. (Mark H. Edwards of counsel), for respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.

In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Butler, J.), entered October 23, 2012, as denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendants third-party plaintiffs' motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6), and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with costs payable by the plaintiff.

On January 3, 2008, the plaintiff allegedly fell from a ladder while performing work for his employer, the third-party defendant, N.J. Pappas Construction Co. (hereinafter N.J. Pappas), at premises owned by the defendants third-party plaintiffs (hereinafter collectively the defendants) and leased to N.J. Pappas. The plaintiff commenced this action to recover damages for personal injuries, asserting causes of action premised on common-law negligence and Labor Law §§ 200, 240(1), and 241(6). The defendants moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the issue of liability. The Supreme Court denied the motion and the cross motion, and the defendants appeal from the denial of their motion.

“Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work” ( Hartshorne v. Pengat Tech. Inspections, Inc., 112 A.D.3d 888, 889, 977 N.Y.S.2d 399;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). To the extent that the plaintiff's claims are based on the manner in which the work was performed, the defendants established, prima facie, that they had no authority to supervise or control the means and method of the work ( see Tomecek v. Westchester Additions & Renovations, Inc., 97 A.D.3d 737, 739, 948 N.Y.S.2d 671;Reyes v. Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 51, 919 N.Y.S.2d 44;Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323). However, to the extent that the plaintiff's claims were based on a dangerous condition on the premises, specifically the structural design, construction, and condition of a portion of the floor, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. “An out-of-possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord has a duty imposed by statute or assumed by contract or a course of conduct” ( Madry v. Heritage Holding Corp., 96 A.D.3d 1022, 1023, 947 N.Y.S.2d 588 [internal quotation marks omitted]; see Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 18, 929 N.Y.S.2d 620;see also Castillo v. Wil–Cor Realty Co., Inc., 109 A.D.3d 863, 864, 972 N.Y.S.2d 578;Lugo v. Austin–Forest Assoc., 99 A.D.3d 865, 866, 952 N.Y.S.2d 603). Here, the lease submitted by the defendants in support of their motion provided, among other things, that the defendants were required to “repair the damaged structural parts of the Premises,” that they were “not required to repair or replace any equipment, fixtures, furnishings or decorations unless originally installed by Landlord,” and that they retained the “right to enter into and upon said premises, or any part thereof ... for the purpose of ... making such repairs or alterations therein as may be necessary for the safety and preservation thereof.” Based on these provisions, under the circumstances of this case, the defendants failed to establish as a matter of law that they did not have a duty imposed by contract to remedy the specific dangerous or defective condition alleged here. Thus, to prevail on their motion, the defendants were required to establish that they neither created the alleged dangerous or defective condition nor had actual or constructive notice thereof ( see Gonzalez v. Perkan Concrete Corp., 110 A.D.3d 955, 959, 975 N.Y.S.2d 65;Palacios v. 29th St. Apts, LLC, 110 A.D.3d 698, 699, 972 N.Y.S.2d 615;Carey v. Five Bros., Inc., 106 A.D.3d 938, 941, 966 N.Y.S.2d 153;Chowdhury v. Rodriguez, 57 A.D.3d 121, 131–132, 867 N.Y.S.2d 123;Ortega v. Puccia, 57 A.D.3d at 61, 866 N.Y.S.2d 323;see also Bush v. Mechanicville Warehouse Corp., 69 A.D.3d 1207, 1207, 895 N.Y.S.2d 212). Here, the defendants failed to establish, prima facie, that they did not create the dangerous or defective condition alleged by the plaintiff to have contributed to his fall. Accordingly, the Supreme Court properly denied those branches of...