Opinion
8902 Index 305769/14
04-04-2019
Jason ANTONIO, Plaintiff–Respondent, v. WEST 70 OWNERS CORP., Defendant–Appellant–Respondent, Titan Capital Group II LLC, Defendant, SEPI Realty, LLC, Defendant–Respondent–Appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Jeremy M. Buchalski of counsel), for appellant-respondent. Downing & Peck, P.C., New York (Marguerite D. Peck of counsel), for respondent-appellant. Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Jeremy M. Buchalski of counsel), for appellant-respondent.
Downing & Peck, P.C., New York (Marguerite D. Peck of counsel), for respondent-appellant.
Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for respondent.
Sweeny, J.P., Manzanet–Daniels, Kern, Oing, Singh, JJ.
Plaintiff claims that he was injured after slipping and falling on slippery stairs because he was directed to remove his boots while working. Defendants established prima facie that they did not exercise supervisory control over the means and methods of plaintiff's work (see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012] ). Their principals, the homeowners, testified that they were not home on the day of the accident and that they never asked any workers to remove their boots. In opposition, plaintiff failed to raise an issue of fact as to whether the man from whom he received the instruction to remove his boots had apparent authority to direct his work (see Hallock v. State of New York, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ). Plaintiff was unable to identify the man, the man's employer, or the man's relationship to the homeowners. Moreover, plaintiff testified that at first he refused to take his boots off. Plaintiff called his supervisor who warned him that if he did not remove his boots he would be fired. As such, plaintiff's supervisor gave the ultimate direction to remove his boots, which establishes that the employer exercised supervisory control over the injury-producing work.
The record also shows that the stairs were not in a dangerous condition (see Cappabianca, 99 A.D.3d at 144, 950 N.Y.S.2d 35 ). Plaintiff himself testified that there were no observable defects on the stairs, that they were not wet, and that they were free of chips and cracks. He admitted that he slipped solely because he was wearing socks with no boots (see Eichelbaum v. Douglas Elliman, LLC, 52 A.D.3d 210, 859 N.Y.S.2d 145 [1st Dept. 2008] ).