From Casetext: Smarter Legal Research

Tornello v. Beaver Brook Assocs

Appellate Division of the Supreme Court of New York, First Department
Jun 1, 2004
8 A.D.3d 7 (N.Y. App. Div. 2004)

Opinion

3776.

Decided June 1, 2004.

Order, Supreme Court, Bronx County (Anne E. Targum, J.), entered on or about December 2, 2003, which, inter alia, granted plaintiff's motion to amend the complaint to add a new defendant, and denied defendants-appellants' cross motion for summary judgment insofar as it sought to dismiss plaintiff's Labor Law § 200 and § 241(6) claims as well as his claim for common-law negligence, unanimously modified, on the law, to grant the cross motion to the extent of dismissing plaintiff's Labor Law § 200 and common-law negligence claims, and otherwise affirmed, without costs.

McCormick Turpin, Pearl River (Stephen J. Hubel of counsel), for appellants.

Michael F.X. Ryan, New York, for respondent.

Before: Buckley, P.J., Tom, Mazzarelli, Sullivan, Ellerin, JJ.


We reject defendants' contention that the activity in which plaintiff was engaged at the time of his accident, i.e., installing carpet as a part of the process of finishing a new house, does not fall within the protective ambit of Labor Law § 241(6). The installation of carpet in the aforementioned context is construction work ( see Industrial Code [12 NYCRR] § 23-1.4[b][13]) and, as such, is protected under Labor Law § 241(6) ( see Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 N.Y.2d 343, 348). Also without merit is defendants' contention that § 241(6) is inapplicable because plaintiff's accident did not occur in an interior construction site passageway. Plaintiff did not lose the statute's protection when, at the time of the accident, he traversed the exterior defined concrete walkway leading to his work area ( see Kane v. Coundorous, 293 A.D.2d 309, 311; and cf. Morra v. White, 276 A.D.2d 536, 537). Plaintiff's Labor Law § 200 and common-law negligence claims should, however, have been dismissed because there was no evidence that defendants-appellants supervised or controlled plaintiff's work ( see id. at 352; cf. Rizzo v. HRH Constr. Corp., 301 A.D.2d 426).

Defendants' argument that the relation back doctrine was not appropriately utilized to add Changebridge Construction Corporation as a defendant is premised upon the contention that plaintiff has no viable Labor Law § 241(6) claim; it is implicitly conceded that if there were a viable § 241(6) claim, the newly added defendant, a contractor, and defendant property owner Beaver Brook Associates would be united in interest in contesting it. We have, however, sustained plaintiff's § 241(6) claim and, accordingly, defendants' challenge to the addition of Changebridge Construction as a defendant must fail.

M-1528 M-1640 Tornello v. Beaver Brook Associates, LLC, et al.

Motions seeking leave to dismiss appeal and for other related relief, and to strike portions of brief denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Tornello v. Beaver Brook Assocs

Appellate Division of the Supreme Court of New York, First Department
Jun 1, 2004
8 A.D.3d 7 (N.Y. App. Div. 2004)
Case details for

Tornello v. Beaver Brook Assocs

Case Details

Full title:DOUGLAS TORNELLO, Plaintiff-Respondent, v. BEAVER BROOK ASSOCIATES, LLC…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 1, 2004

Citations

8 A.D.3d 7 (N.Y. App. Div. 2004)
777 N.Y.S.2d 490

Citing Cases

Trinajstic v. St. Owner, LP

The court correctly found that questions of fact as to whether workers employed by Pellegrini, a flooring…

SAFT v. 111 CHELSEA, LLC

There is no liability under the statute solely because JLS may have notice of the allegedly unsafe manner in…