Summary
finding that a Section 200 claim was not viable where the plaintiff failed to show that the managing agent of the property exercised control or supervision over the work and had actual or constructive notice of the unsafe condition
Summary of this case from Gigantino v. Turner Constr. Co.Opinion
2012-01-26
Joseph RUSSO, Plaintiff–Respondent, v. HUDSON VIEW GARDENS, INC., et al., Defendants–Appellants.
Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for Appellants. Alexander J. Wulwick, New York, for Respondent.
Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for Appellants. Alexander J. Wulwick, New York, for Respondent.
MAZZARELLI, J.P., SAXE, CATTERSON, ACOSTA, ROMÁN, JJ.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered June 14, 2011, which, insofar as appealed from, denied defendant Midboro Management Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, the motion granted to the extent of dismissing the Labor Law § 200 and common-law negligence claims against it, and otherwise affirmed, without costs.
In this action for personal injuries arising from plaintiff's use of an A-frame ladder, the Labor Law § 200 and common-law negligence claims against Midboro are not viable. The record shows that Midboro, the managing agent of the subject premises, did not directly control the method or means of plaintiff's work, or have actual or constructive notice of an unsafe condition ( see e.g. Buckley v. Columbia Grammar & Preparatory, 44 A.D.3d 263, 272, 841 N.Y.S.2d 249 [2007], lv. denied 10 N.Y.3d 710, 859 N.Y.S.2d 395, 889 N.E.2d 82 [2008] ). Although plaintiff attributed the injury-causing accident to the instability of the ladder he was using, he admitted that he selected the ladder himself; that the ladder was owned by defendant property owner Hudson View Gardens, Inc. (Hudson); that he had used the ladder previously; and that while he knew the ladder did not have rubber bottoms on the legs to help secure it, he did not tell anyone about it. Plaintiff further failed to offer evidence that would lead to a conclusion that Midboro should have known of the condition.
The motion court properly declined to dismiss the Labor Law § 240(1) and § 241(6) claims. Triable issues of fact exist as to whether Midboro had the authority, pursuant to its agreement with Hudson, to supervise and control plaintiff's work for the purposes of liability under Labor Law § 240(1) and § 241(6) ( see Voultepsis v. Gumley–Haft–Klierer, Inc., 60 A.D.3d 524, 525, 875 N.Y.S.2d 74 [2009]; see also Fox v. Brozman–Archer Realty Servs., 266 A.D.2d 97, 98–99, 698 N.Y.S.2d 654 [1999] ).
Under the circumstances presented, we decline to search the record and reach a determination on the merits of the Labor Law § 240(1) and § 241(6) causes of action.