Salsinha v. Malcolm Pirnie, Inc.

• Decision Date: 03 August 2010
• Citation: 76 A.D.3d 411,906 N.Y.S.2d 532
• Parties: Rui SALSINHA, et al., Plaintiffs-Appellants, v. MALCOLM PIRNIE, INC., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 532

76 A.D.3d 411

Rui SALSINHA, et al., Plaintiffs-Appellants,

v.MALCOLM PIRNIE, INC., et al., Defendants-Respondents.

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

Aug. 3, 2010.

Davidson & Cohen, P.C., Rockville Centre (Robin Mary Heaney of counsel), for appellants.

Law Offices of Charles J. Siegel, New York (Peter E. Vairo of counsel), for Malcolm Pirnie, Inc., respondent.

Fabiani Cohen & Hall, LLP, New York (Mary J. Joseph of counsel), for municipal respondents.

FRIEDMAN, J.P., NARDELLI, MOSKOWITZ, FREEDMAN, MANZANET-DANIELS, JJ.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered April 1, 2009, which, to the extent appealed from as limited by the briefs, granted defendants' motions for summary judgment dismissing plaintiff's Labor Law § 241(6) andLabor § 200 and common-law negligence claims, unanimously modified, on the law, to deny so much of the motion as sought to dismiss the Labor Law § 241(6) cause of action, and otherwise affirmed, without costs.

Defendant Malcolm Pirnie Inc. contends that, as the construction manager on the project, it cannot be held liable under Labor Law § 241(6) ( see Walls v. Turner Constr. Co., 4 N.Y.3d 861, 863-864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005] ). We find that whether Pirnie is subject to statutory liability in this case cannot be determined as a matter of law, in view of the terms of Pirnie's contract with defendant Department of Environmental Protection (DEP), which permitted Pirnie to choose subcontractors, and the testimony of the safety engineer for the injured plaintiff's employer that Pirnie was in charge of construction (while another entity hired by DEP was in charge of safety inspection) ( see Mulcaire v. Buffalo Structural Steel Constr. Corp., 45 A.D.3d 1426, 1428, 846 N.Y.S.2d 838 [2007] ).

The Labor Law § 200 and common-law negligence claims were correctly dismissed, since the record demonstrates that the injured plaintiff's injuries arose from the manner in which plaintiff performed his work, not from a defective condition of the workplace, and that none of the defendants exercised any control over plaintiff's work methods ( see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110 [1993]; Blessinger v. Estee Lauder Cos., 271 A.D.2d 343, 707 N.Y.S.2d 78 [2000] ).

While the other Industrial Code (12 NYCRR) provisions relied on by plaintiff are either inapplicable to the facts of this case or insufficiently specific to permit recovery under Labor Law § 241(6), the record presents issues of fact that preclude summary dismissal of the section 241(6) claim insofar as it is based on analleged violation of 12 NYCRR 23-9.2 (a). This provision "imposes an affirmative duty on employers to 'correct[ ] by necessary repairs or replacement' 'any structural defect or unsafe condition' in equipment or machinery '[u]pon discovery' or actual notice of the structural defect or unsafe condition" ( Misicki v. Caradonna, 12 N.Y.3d 511, 521, 882 N.Y.S.2d 375, 909 N.E.2d 1213 [2009][quoting the regulation] ). The record demonstrates that the driver's side door of the truck plaintiff used could not be opened from the inside; that, as a result, plaintiff had begun...