Opinion
832 CA 20-01339
11-19-2021
Agapito ABREU, Plaintiff-Appellant, v. FROCIONE PROPERTIES, LLC, Deli-Boy, Inc., Big Apple Deli Products, Inc., Insley-McEntee Equipment Co. Inc., K-D Steel Fabricating, Doing Business as Insley-McEntee Equipment Co. Inc., Ridg-U-Rak, Inc., Food Tech, Inc., Emcor Group, Inc., Ogden Center Development Corp., Defendants-Respondents.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-APPELLANT. LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (RICHARD S. POVEROMO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS FROCIONE PROPERTIES, LLC, DELI-BOY, INC., AND BIG APPLE DELI PRODUCTS, INC. GOLDBERG SEGALLA LLP, BUFFALO (RAUL MARTINEZ OF COUNSEL), FOR DEFENDANTS-RESPONDENTS INSLEY-MCENTEE EQUIPMENT CO. INC. AND K-D STEEL FABRICATING, DOING BUSINESS AS INSLEY-MCENTEE EQUIPMENT CO. INC. LAW OFFICES OF JOHN WALLACE, HARTFORD, CONNECTICUT (NANCY A. LONG OF COUNSEL), FOR DEFENDANT-RESPONDENT RIDG-U-RAK, INC. WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (THOMAS E. REIDY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS FOOD TECH, INC. AND EMCOR GROUP, INC. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, ROCHESTER (MATTHEW C. LENAHAN OF COUNSEL), FOR DEFENDANT-RESPONDENT OGDEN CENTER DEVELOPMENT CORP.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (RICHARD S. POVEROMO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS FROCIONE PROPERTIES, LLC, DELI-BOY, INC., AND BIG APPLE DELI PRODUCTS, INC.
GOLDBERG SEGALLA LLP, BUFFALO (RAUL MARTINEZ OF COUNSEL), FOR DEFENDANTS-RESPONDENTS INSLEY-MCENTEE EQUIPMENT CO. INC. AND K-D STEEL FABRICATING, DOING BUSINESS AS INSLEY-MCENTEE EQUIPMENT CO. INC.
LAW OFFICES OF JOHN WALLACE, HARTFORD, CONNECTICUT (NANCY A. LONG OF COUNSEL), FOR DEFENDANT-RESPONDENT RIDG-U-RAK, INC.
WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (THOMAS E. REIDY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS FOOD TECH, INC. AND EMCOR GROUP, INC.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, ROCHESTER (MATTHEW C. LENAHAN OF COUNSEL), FOR DEFENDANT-RESPONDENT OGDEN CENTER DEVELOPMENT CORP.
PRESENT: SMITH, J.P., NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries that he sustained while working on the construction of a food distribution warehouse. Plaintiff and a coworker were installing a pallet rack shelving system when unassembled segments of the rack tipped over onto his legs. Supreme Court, inter alia, granted those parts of the motions of defendants seeking summary judgment dismissing the second amended complaint against them. We affirm.
We note at the outset that plaintiff does not challenge those parts of the order and judgment granting defendants’ motions with respect to the Labor Law § 240 (1) claim and granting the motions of defendants Frocione Properties, LLC, Deli-Boy, Inc., Big Apple Deli Products, Inc., Insley-McEntee Equipment Co. Inc., K-D Steel Fabricating, doing business as Insley-McEntee Equipment Co. Inc., and Ridg-U-Rak, Inc. with respect to the Labor Law § 200 and common-law negligence claims. Thus, plaintiff has abandoned any issues with respect thereto (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
We reject plaintiff's contention that the court erred in granting defendants’ motions with respect to the Labor Law § 241 (6) claim. "A plaintiff asserting a cause of action under Labor Law § 241 (6) must demonstrate a violation of a rule or regulation of the Industrial Code which gives a specific, positive command, and is applicable to the facts of the case" ( Shaw v. Scepter, Inc. , 187 A.D.3d 1662, 1665, 133 N.Y.S.3d 709 [4th Dept. 2020] [internal quotation marks omitted]). On appeal, plaintiff challenges the court's determination with respect to only one section of the Industrial Code, i.e., 12 NYCRR 23-2.1 (a) (1), which relates to "[s]torage of material and equipment," and requires, inter alia, that "[m]aterial piles shall be stable under all conditions" (see Slowe v. Lecesse Constr. Servs., LLC , 192 A.D.3d 1645, 1646, 141 N.Y.S.3d 386 [4th Dept. 2021] ). Here, defendants established as a matter of law that 12 NYCRR 23-2.1 (a) (1) is inapplicable because, at the time of the accident, the rack segments that caused plaintiff's injuries were in use and were not in storage (see Miles v. Buffalo State Alumni Assn., Inc. , 121 A.D.3d 1573, 1574-1575, 993 N.Y.S.2d 852 [4th Dept. 2014] ; Zamajtys v. Cholewa , 84 A.D.3d 1360, 1362, 924 N.Y.S.2d 163 [2d Dept. 2011] ).
Contrary to plaintiff's further contention, the court properly granted those parts of the motions of defendants Food Tech, Inc. (Food Tech), EMCOR Group, Inc., and Ogden Center Development Corp. (Ogden) seeking dismissal of the Labor Law § 200 and common-law negligence claims against them. Those defendants established as a matter of law that the accident resulted from the manner in which the work was performed, not from any dangerous condition on the premises (see Gillis v. Brown , 133 A.D.3d 1374, 1376, 20 N.Y.S.3d 818 [4th Dept. 2015] ; Zimmer v. Town of Lancaster Indus. Dev. Agency , 125 A.D.3d 1315, 1316-1317, 3 N.Y.S.3d 815 [4th Dept. 2015] ) and that "they did not actually direct or control" the work of installing the racks ( Bausenwein v. Allison , 126 A.D.3d 1466, 1468, 6 N.Y.S.3d 837 [4th Dept. 2015] ; see Anderson v. National Grid USA Serv. Co. , 166 A.D.3d 1513, 1514, 87 N.Y.S.3d 768 [4th Dept. 2018] ; see generally Hargrave v. LeChase Constr. Servs., LLC , 115 A.D.3d 1270, 1271-1272, 982 N.Y.S.2d 650 [4th Dept. 2014] ). Although there was deposition testimony that representatives of Food Tech and Ogden may have exercised general supervision of the work site as a whole, it is well settled that the "right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence" ( Guallpa v. Canarsie Plaza, LLC , 144 A.D.3d 1088, 1092, 42 N.Y.S.3d 293 [2d Dept. 2016] [internal quotation marks omitted]; see Timmons v. Barrett Paving Materials, Inc. , 83 A.D.3d 1473, 1476, 920 N.Y.S.2d 545 [4th Dept. 2011], lv dismissed in part and denied in part 17 N.Y.3d 843, 930 N.Y.S.2d 538, 954 N.E.2d 1163 [2011] ; McCormick v. 257 W. Genesee, LLC , 78 A.D.3d 1581, 1581-1582, 913 N.Y.S.2d 435 [4th Dept. 2010] ).