Opinion
2014-03-26
Townsend DOXEY, et al., appellants, v. FREEPORT UNION FREE SCHOOL DISTRICT, et al., respondents (and a third-party action).
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for respondent Freeport Union Free School District.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for respondent Freeport Union Free School District.
Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for respondent Triton Construction Services.
O'Connor Redd LLP, White Plains, N.Y. (Joseph A. Orlando of counsel), for respondent Ultimate Power, Inc.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Marber, J.), entered April 3, 2012, as granted those branches of the defendants' separate motions which were for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
Townsend Doxey (hereinafter the injured plaintiff), was working at the Columbus Avenue School, which was located within and owned by the Freeport Union School District (hereinafter the school district), as part of a project to replace a boiler. While standing in a hatchway, the injured plaintiff noticed that a tube containing a spring that was designed to facilitate the opening and closing of the hatch's doors was only partially attached to one of the hatch's doors. The injured plaintiff moved the tube and it sprung up and hit him in the face. The injured plaintiff, and his wife suing derivatively, then commenced this action against the school district, the construction manager for the project at the school, and the prime contractor to replace the boiler (hereinafter collectively the defendants). The defendants separately moved for summary judgment, inter alia, dismissing the complaint insofar as asserted against each of them, and the Supreme Court granted those branches of their respective motions.
Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to 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). Where, as here, the injured plaintiff's accident arose out of an allegedly dangerous condition at the work site, liability for a violation of Labor Law § 200 and common-law negligence will be imposed if the property owner created the condition or had actual or constructive notice of it, and failed to remedy the condition within a reasonable amount of time ( see McLean v. 405 Webster Ave. Assoc., 98 A.D.3d 1090, 1093, 951 N.Y.S.2d 185;White v. Village of Port Chester, 92 A.D.3d 872, 876, 940 N.Y.S.2d 94). A contractor may be held liable in common-law negligence and under Labor Law § 200 if it had control over the work site and actual or constructive notice of the dangerous condition ( see White v. Village of Port Chester, 92 A.D.3d at 876, 940 N.Y.S.2d 94). Here, the property owner school district established, prima facie, that it did not create the allegedly dangerous condition in the spring mechanism. Similarly, the defendants satisfied their respective prima facie burdens of establishing their entitlement to judgment as a matter of law on the issue of notice. The defendants demonstrated, as a matter of law, that they were not on actual notice of the allegedly dangerous condition in the spring mechanism. The fact that the defendants received notice that the hatch doors were rusted was insufficient to put them on notice of the allegedly dangerous condition in the spring mechanism ( see McCabe v. Town of Riverhead, 2 A.D.3d 416, 767 N.Y.S.2d 802). Further, the defendants demonstrated, as a matter of law, that constructive notice could not be imputed to them because the alleged defect in the spring, being encased within a tube, was latent and, thus, would not have been discoverable upon a reasonable inspection ( see Lee v. Bethel First Pentecostal Church of Am., 304 A.D.2d 798, 800, 762 N.Y.S.2d 80;Rapino v. City of New York, 299 A.D.2d 470, 471, 750 N.Y.S.2d 319). Moreover, Triton additionally established that, as a construction manager, which had not been delegated the authority and duties of a general contractor and which did not function as an agent of the owner, it was not a contractor responsible for the plaintiff's safety ( see Rodriguez v. JMB Architecture, LLC, 82 A.D.3d 949, 919 N.Y.S.2d 40;see also McLaren v. Turner Constr. Co., 105 A.D.3d 1016, 963 N.Y.S.2d 386). In opposition to these prima facie showings, the plaintiffs failed to raise a triable issue of fact.
“To recover under Labor Law § 241(6), a plaintiff must establish the violation in connection with construction, demolition or excavation of an Industrial Code provision which sets forth specific, applicable safety standards” ( Wein v. Amato Props., LLC, 30 A.D.3d 506, 507, 816 N.Y.S.2d 370). The defendants established, prima facie, that the Industrial Code provisions upon which the plaintiffs predicated their Labor Law § 241(6) cause of action were inapplicable, as the injured plaintiff did not trip, and the spring mechanism was neither a “sharp projectio[n],” nor a “jack” (12 NYCRR 23–1.7[e]; 23–1.27; see Zastenchik v. Knollwood Country Club, 101 A.D.3d 861, 863, 955 N.Y.S.2d 640;Saccenti v. City of New York, 45 A.D.3d 665, 667, 846 N.Y.S.2d 236;Smith v. Le Frois Dev., LLC, 28 A.D.3d 1133, 1134, 817 N.Y.S.2d 456). In opposition, the plaintiffs failed to raise a triable issue of fact.
Finally, in opposition to the defendants' prima facie showings that the doctrine of res ipsa loquitur is inapplicable, the plaintiffs failed to raise a triable issue of fact ( see Jansen v. Roosevelt Union Free School Dist., 302 A.D.2d 495, 755 N.Y.S.2d 284).
Accordingly, the Supreme Court properly granted those branches of the defendants' respective motions which were for summary judgment dismissing the complaint insofar as asserted against them. MASTRO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.