Robinson v. County of Nassau

• Decision Date: 10 May 2011
• Citation: Robinson v. County of Nassau, 84 A.D.3d 919, 923 N.Y.S.2d 135, 2011 N.Y. Slip Op. 4030 (N.Y. App. Div. 2011)
• Parties: Robert ROBINSON, appellant,v.COUNTY OF NASSAU, et al., respondents.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 919

923 N.Y.S.2d 135

2011 N.Y. Slip Op. 04030

Robert ROBINSON, appellant,

v.COUNTY OF NASSAU, et al., respondents.

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

May 10, 2011.

The Cochran Firm, New York, N.Y. (Paul A. Marber, Gerard A. Lucciola, and Joseph S. Rosato of counsel), for appellant.Fiedelman & McGaw, Jericho, N.Y. (Ross P. Masler of counsel), for respondents.PETER B. SKELOS, J.P., RANDALL T. ENG, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated January 25, 2010, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing his causes of action alleging common-law negligence and violation of Labor Law § 200. The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff's accident arose from the means and methods of his work, that the plaintiff's work was directed and controlled exclusively by his employer, and that they had no authority to exercise supervisory control over his work ( 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; Pilato v. 866 U.N. Plaza Assoc., LLC, 77 A.D.3d 644, 646, 909 N.Y.S.2d 80; Enriquez v. B & D Dev., Inc., 63 A.D.3d 780, 781, 880 N.Y.S.2d 701; Cambizaca v. New York City Tr. Auth., 57 A.D.3d 701, 702, 871 N.Y.S.2d 220; Ortega v. Puccia, 57 A.D.3d 54, 61–62, 866 N.Y.S.2d 323; Peay v. New York City School Constr. Auth., 35 A.D.3d 566, 567, 827 N.Y.S.2d 189). In opposition to that branch of the motion, the plaintiff failed to raise a triable issue of fact ( see Quilliams v. Half Hollow Hills School Dist. [ Candlewood School], 67 A.D.3d 763, 892 N.Y.S.2d 397; Enriquez v. B & D Dev., Inc., 63 A.D.3d at 781, 880 N.Y.S.2d 701; Ortega v. Puccia, 57 A.D.3d at 63, 866 N.Y.S.2d 323). In this regard, we note that “[t]he retention of the right to generally supervise the work, to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations, does not amount to the [authority to] supervise and control ... necessary to impose liability on an owner or general contractor pursuant to Labor Law § 200” ( Cambizaca v. New York City Tr. Auth., 57 A.D.3d at 702, 871 N.Y.S.2d 220 [internal quotation marks omitted]; see McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 A.D.3d 796, 798, 839 N.Y.S.2d 164; Carty v. Port Auth. of N.Y. & N.J., 32 A.D.3d 732, 733, 821 N.Y.S.2d 178; Dennis v. City of New York, 304 A.D.2d 611, 612, 758 N.Y.S.2d 661).

The Supreme Court also properly granted that branch of the defendants' motion which was for summary judgment dismissing the causes of action premised on Labor Law § 241(6). In order to support a claim for violation of Labor Law § 241(6), the plaintiff is required to allege a violation of a specific, applicable Industrial Code provision ( see Misicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213). The plaintiff identified the specific Industrial Code provisions which the defendants allegedly violated when he served a second supplemental bill of particulars. However, the provisions which he identified in his second supplemental bill of particulars did not raise a triable issue of fact sufficient to defeat the defendants' motion. 12 NYCRR 23–9.4(a) is too general to support a Labor Law § 241(6) cause of action ( see Brechue v. Town of Wheatfield, 241 A.D.2d 935, 936, 661 N.Y.S.2d 334). Furthermore, the plaintiff's claim that the defendants violated 12 NYCRR 23–9.4(c) and (h)(2) because the payloader which ran over his feet was not on firm and level ground is contradicted by his deposition testimony, and the deposition testimony of a witness who indicated that the accident occurred in an area that had not yet been excavated. The plaintiff also failed to raise a triable issue of fact as to whether 12...