Opinion
50715-2012
06-03-2015
Richard DeFelice, Jr., Plaintiff, v. Seakco Construction Company, LLC, Seakco New York, LLC, Michael O'Halloran and Judith McHale, Defendants.
The following papers (e-filed documents 138-156, 188-189, 192-201) were read on the E-filed motion by defendants/second third-party plaintiffs, Michael O'Halloran and Judith McHale, for an order granting summary judgment dismissing all claims and cross-claims asserted against them.
Notice of Motion, Affirmation (Exhibits A-M)
Memorandum of Law
Affirmation in Opposition (Exhibit A) (Seakco)
Affirmation in Opposition (Exhibits A-G) (Plaintiff)
Reply Affirmation
Upon reading the foregoing papers it is
ORDERED the branch of the motion which seeks an order granting summary judgment dismissing the cause of action alleging a violation of Labor Law §241(6) against the defendants, Michael O'Halloran and Judith McHale, is granted, and the cause of action alleging the defendants, Michael O'Halloran and Judith McHale, violated Labor Law §241(6) is dismissed; and it is further
ORDERED the branch of the motion which seeks an order granting summary judgment dismissing the causes of action for a violation of Labor Law §200 and for common-law negligence against the defendants, Michael O'Halloran and Judith McHale, is denied; and it is further
ORDERED the parties are directed to appear on July 14, 2015, at 9:15 a.m. in the Settlement Conference Part, Courtroom 1600, Westchester County Supreme Court, 111 Martin Luther King Boulevard, White Plains, New York, prepared to conduct a settlement conference.
The third-party action and the second third-party action were dismissed by orders of the court issued this date.
Plaintiff sues for injuries allegedly suffered on February 19, 2009, when he slipped and fell on ice as he approached the front steps of the house owned by the defendants, Michael O'Halloran and Judith McHale, in Hastings-on-Hudson. At that time O'Halloran and McHale were residing in Maryland while their house in Hastings-on-Hudson was being renovated by the defendant, Seakco Construction Company, the general contractor hired by O'Halloran and McHale. When he fell plaintiff was employed by Seakco Construction's subcontractor, the third-party defendant, Augustine Electric.
Following the completion of discovery O'Halloran and McHale move for an order granting summary judgment dismissing the complaint against them claiming they have no liability under Labor Law §241(6) or Labor Law §200, and no liability for common-law negligence because they did not direct or control the work being done during the renovation.
Labor Law §241(6)No opposition was submitted to this branch of the motion. Accordingly, so much of the complaint as asserts a cause of action fo a violation of Labor Law §241(6) against the defendants, Michael O'Halloran and Judith McHale, is dismissed.
Labor Law §200 and Common-Law Negligence
"When a claim arises out of an alleged dangerous condition, a property owner or general contractor may be held liable in common-law negligence and under Labor Law §200 when the owner or general contractor has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it" (Abelleira v City of New York, 120 AD3d 1163, 1164 [2d Dept 2014]).
Here, the defendant owners failed to establish prima facie entitlement to judgment as a matter of law dismissing the complaint because they failed to demonstrate that they did not have control over the work site or that they did not have constructive notice of the dangerous condition (Astarita v Flintlock Constr. Servs., LLC, 69 AD3d 888 [2d Dept 2010]). To give rise to constructive notice, a defect must be visible and apparent, and exist for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy it (Stewart v Sherwil Holding Corp., 94 AD3d 977 [2d Dept 2012]). The deposition testimony of the plaintiff, relied upon by defendants, indicates that snow and ice were a constant concern at the work site and that the snow and ice were present on the pathway where plaintiff fell for many days prior to his fall (Medina v La Fiura Dev. Corp., 69 AD3d 686 [2d Dept 2010]). Moreover, the fact that the owners, who had a contract with the second third-party defendant, Glamorous Gardens, to remove snow at the premises, were not residing at their home at the time of plaintiff's fall does not mean that they relinquished control of the premises, or that they were relieved of their duty as owners to maintain the premises in a reasonably safe condition (Fehrenbacher v Berl, 240AD2d 466 [2d Dept 1997]; Carlson v Lyon, 289 AD2d 835 [3d Dept 2001]).
E N T E R,
Dated: White Plains, New York
June 3, 2015_________________________________
HON. JOAN B. LEFKOWITZ, J.S.C.