Reyes v. Arco Wentworth Mgmt. Corp..

• Decision Date: 15 March 2011
• Citation: 83 A.D.3d 47,2011 N.Y. Slip Op. 01988,919 N.Y.S.2d 44
• Parties: German REYES, respondent,v.ARCO WENTWORTH MANAGEMENT CORPORATION, etc., et al., appellants(and a third-party action).
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 47

919 N.Y.S.2d 44

2011 N.Y. Slip Op. 01988

German REYES, respondent,

v.ARCO WENTWORTH MANAGEMENT CORPORATION, etc., et al., appellants(and a third-party action).

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

March 15, 2011.

Goldberg Segalla, LLP, White Plains, N.Y. (William T. O'Connell and Yadira Ramos–Herbert of counsel), for appellants.Davidson & Cohen, P.C., Rockville Centre, N.Y. (Robin Mary Heaney of counsel), for respondent.REINALDO E. RIVERA, J.P., MARK C. DILLON, DANIEL D. ANGIOLILLO, and LEONARD B. AUSTIN, JJ.DILLON, J.

In Chowdhury v. Rodriguez, 57 A.D.3d 121, 867 N.Y.S.2d 123, we held that when a worker at a job site is injured as a result of a dangerous or defective premises condition, a property owner's liability under Labor Law § 200 and for common-law negligence rests upon whether there is evidence that the property owner created the condition, or had actual or constructive notice of it and a reasonable amount of time within which to correct the condition ( id. at 130, 867 N.Y.S.2d 123). In contrast, we held in Ortega v. Puccia, 57 A.D.3d 54, 866 N.Y.S.2d 323 that when a worker at a job site is injured as a result of dangerous or defective equipment used in the performance of work duties, the property owner's liability under Labor Law § 200 and for common-law negligence rests upon whether the property owner had the authority to supervise or control the means and methods of the work ( id. at 61, 866 N.Y.S.2d 323). Here, we complete a trilogy of opinions by addressing the liability standard that is to apply to property owners when a worker's injury may be concurrently caused by both an alleged dangerous or defective premises condition and by dangerous or defective equipment.

I. Relevant Facts

The plaintiff, German Reyes, was injured on June 22, 2007, while employed by the third-party defendant, Grasskeepers Landscaping, Inc. (hereinafter Grasskeepers). The plaintiff alleges that at the time of his accident, he was mowing grass on property owned by the defendant third-party plaintiff, Ramapo Cirque Homeowners Association, Inc. (hereinafter Ramapo), and managed by the defendant Arco Wentworth Management Corporation, now known as Wentworth New York Management, Inc. (hereinafter Arco). Allegedly, a wheel of the plaintiff's lawnmower went into a hole that was 1 foot wide, 2 feet long, and 6 to 8 inches deep, causing the mower to “go over.” The hole was located on sloped ground in close proximity to a retaining wall. After tipping over, the lawn mower continued to run, and the blade spun into the plaintiff's leg, causing a severe injury. Grasskeepers was cited for three OSHA violations, one of which was the absence on the lawn mower of an emergency safety switch that would have shut off the engine. The plaintiff claims that his lawn mowing was part of a broader project involving the removal and replacement of rotted railroad ties that formed a terraced retaining wall in the immediate vicinity of the accident.

The plaintiff asserted causes of action to recover damages for common-law negligence and violations of Labor Law §§ 200 and 241(6). In a bill of particulars dated February 14, 2008, the plaintiff claimed that the Labor Law violations included both “failing to provide the plaintiff with a safe place to work” and “failing to provide safe and proper equipment.”

After certain discovery, Ramapo moved for summary judgment dismissing the complaint insofar as asserted against it. Ramapo argued, by reference to, inter alia, an affidavit of its President, that it was not liable under Labor Law § 200, as Ramapo did not direct or supervise the plaintiff's work. As to the cause of action under Labor Law § 241(6), Ramapo argued that Grasskeepers was contractually hired to perform only routine maintenance at the property and that no construction, renovation, or excavation was being performed at the premises on the date of the accident. Ramapo also provided a copy of the contract between Grasskeepers and Arco. The plaintiff and Ramapo disputed the nature of the plaintiff's work, whether the plaintiff's deposition testimony and opposing affidavit were consistent regarding the precise location of the hole in the ground, and whether certain photographs depicting the hole could properly be considered as evidence.

The Supreme Court denied Ramapo's motion for summary judgment, and for reasons set forth below, we affirm.

II. Labor Law § 200 Analysis

As often stated by appellate courts, a party seeking summary judgment bears the initial burden of demonstrating its prima facie entitlement to the requested relief ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 559, 427 N.Y.S.2d 595, 404 N.E.2d 718; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298). Only if that burden is met does the burden then shift to the party opposing summary judgment to tender evidence, in a form admissible at trial, sufficient to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d at 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298).

This Court has recently explained the distinction between two broad categories of actions that implicate the provisions of Labor Law § 200. One category involves worker injuries occasioned as a result of alleged dangerous or defective conditions of the premises where the work is performed. In such instances, a property owner may be liable under the common law for failing to provide a safe place to work, and under Labor Law § 200, which is merely a codification of the common-law rule ( see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068; 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; Lombardi v. Stout, 80 N.Y.2d 290, 294, 590 N.Y.S.2d 55, 604 N.E.2d 117; Slikas v. Cyclone Realty, LLC, 78 A.D.3d 144, 147, 908 N.Y.S.2d 117; Shaw v. RPA Assoc., LLC, 75 A.D.3d 634, 906 N.Y.S.2d 574). For liability to be imposed on the property owner, there must be evidence showing that the property owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time ( see Chowdhury v. Rodriguez, 57 A.D.3d at 130, 867 N.Y.S.2d 123; see also Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d at 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 504, 601 N.Y.S.2d 49, 618 N.E.2d 82; Lombardi v. Stout, 80 N.Y.2d at 295, 590 N.Y.S.2d 55, 604 N.E.2d 117; Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317, 445 N.Y.S.2d 127, 429 N.E.2d 805; Nankervis v. Long Is. Univ., 78 A.D.3d 799, 800, 911 N.Y.S.2d 393; Slikas v. Cyclone Realty LLC, 78 A.D.3d at 147, 908 N.Y.S.2d 117).

The second broad category of actions under Labor Law § 200 involves injuries occasioned by the use of dangerous or defective equipment at the job site. If such equipment was provided to the worker and the worker was injured by it, the property owner will only be liable under Labor Law § 200 if it was possessed of the authority to supervise or control the means and methods of the work ( see Ortega v. Puccia, 57 A.D.3d at 61, 866 N.Y.S.2d 323; see also Persichilli v. Triborough Bridge & Tunnel Auth., 16 N.Y.2d 136, 145, 262 N.Y.S.2d 476, 209 N.E.2d 802; Wright v. Belt Assoc., 14 N.Y.2d 129, 134, 249 N.Y.S.2d 416, 198 N.E.2d 590; Gasper v. Ford Motor Co., 13 N.Y.2d 104, 110–111, 242 N.Y.S.2d 205, 192 N.E.2d 163; Zucchelli v. City Constr. Co., 4 N.Y.2d 52, 56, 172 N.Y.S.2d 139, 149 N.E.2d 72).

Here, if the proximate cause of the plaintiff's accident was the presence of the hole in the ground that resulted in the tipping over of the lawn mower, then the standard of “creation or notice” applicable to premises conditions applies as enunciated in Chowdhury. If, on the other hand, the proximate cause of the plaintiff's accident was the failure of his mower to be equipped with an OSHA-compliant emergency shut-off switch, then the “supervision and control” standard set forth in Ortega controls.

In determining how to resolve cases that contain overlapping allegations of both dangerous premises conditions and defective equipment, we note that as a general principle of tort law, there may be more than one cause of an occurrence, with injury attributable to two or more tortfeasors ( see e.g. Rodriguez v. Budget Rent–A–Car Sys., Inc., 44 A.D.3d 216, 220–221, 841 N.Y.S.2d 486; PJI 2:71). Indeed, the plaintiff's bill of particulars specifically describes Ramapo's alleged negligence as including both the condition of the work site and the absence of safe and proper equipment. This action may represent a rare hybrid case where, arguably the plaintiff's accident and injury were proximately caused in whole or in part by a significant hole in the ground where a person might reasonably be expected to traverse, and/or by the use of lawn-mowing equipment that was rendered dangerous and defective by the absence of an emergency shut-off mechanism in violation of OSHA regulations.

We find that when an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards. Defendants moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 and common-law negligence must examine the plaintiff's complaint and bill of particulars to identify the theory or theories of liability, in order to properly direct proof to premises issues, or means and methods issues,...