Fairchild v. Servidone Constr. Equipment Co.

25 Citing cases

  1. Misicki v. Caradonna

    2009 N.Y. Slip Op. 3764 (N.Y. 2009)   Cited 625 times
    Holding that 12 N.Y.C.R.R. § 23-9.2 imposes a nondelegable duty to make "necessary repairs or replacement" upon discovery of any unsafe condition

    Plaintiff sought to appeal to us. Because the First, Second and Third Departments ( see e.g. Fairchild v Servidone Constr. Corp., 288 AD2d 665, 667-668 [3d Dept 2001]) have ruled that section 23-9.2 (a) does not support a claim under Labor Law § 241 (6) and the Fourth Department has ruled otherwise, we granted plaintiff permission to appeal to resolve the apparent conflict ( 11 NY3d 706). We now reverse for the reasons that follow.

  2. Beehner v. Eckerd Corp.

    307 A.D.2d 699 (N.Y. App. Div. 2003)   Cited 9 times

    Although the repair of the malfunctioning air conditioning unit did not constitute mere routine maintenance ( see Craft v. Clark Trading Corp., 257 A.D.2d 886, 887; see also Short v. Durez Div.-Hooker Chems. Plastic Corp., 280 A.D.2d 972, 972-973), plaintiff was not engaged in that repair work at the time of his injury. Plaintiff had two distinct jobs to perform on the day that he was injured, i.e., repairing the air conditioning unit and obtaining the serial and model numbers of the unit ( see Fairchild v. Servidone Constr. Corp., 288 A.D.2d 665, 666-667), and it is undisputed that he was obtaining the serial and model numbers of the unit at the time of his injury. Because obtaining that information was not part of the repair work, plaintiff was not engaged in a protected activity under Labor Law 240(1) when he fell from the ladder ( see id. at 667; see generally Martinez v. City of New York, 93 N.Y.2d 322, 326).

  3. CIRA BAUTISTA VASQUEZ INDIVIDUALLY v. FCE INDUSTRIES

    Case No. 07-CV-1121 (FB) (JO) (E.D.N.Y. Sep. 10, 2008)   Cited 6 times

    lysma v. County of Saratoga, 744 N.Y.S.2d 564, 564 (3d Dep't 2002) ("[T]he retention of general supervisory control . . . or authority to enforce general safety standards is insufficient to establish the necessary control" for general-contractor negligence liability (internal quotation marks and citation omitted)). Indeed, it is uncontroverted that no GMD employee was present in the tank on the day of Medina's accident; even if this alone is not dispositive of the question, it is nonetheless persuasive evidence that GMD did not directly supervise the manner of Medina's performance. See, e.g., Kazmierczak v. Town of Clarence, 737 N.Y.S.2d 177, 177 (4th Dep't 2001) (finding no liability under § 200 where, "although . . . [defendants] exercised general supervisory control over the project and had authority to direct the correction of safety violations, [there was] no evidence that defendants were actually supervising plaintiff's actions on the day of the accident") (citations omitted); Fairchild v. Servidone Constr. Corp., 733 N.Y.S.2d 735, 735 (3d Dep't 2001) (finding no liability under § 200 or common-law negligence where, inter alia, "none of the . . . defendants had representatives at the site [on the day of the accident] to exercise any supervisory control over the manner or method that plaintiff performed his work"); Gonzalez v. Turner Constr. Co., 801 N.Y.S.2d 310, 310 (1st Dep't 2005) (no liability under § 200 or common law negligence where, inter alia, "no one from [general contractor] was present at the time of the accident"); Martucci v. Tirro Constr. Corp., 743 N.Y.S.2d 668, 672 (Sup.Ct. Richmond County 2002) (finding no liability under § 200 where, inter alia, "[the general contractor's] employees were [not] present at the time of the accident"). Consequently, the Court holds that GMD lacked the supervision and control necessary to be found liable under Labor Law § 200 or common-law negligence principles.

  4. Prevete v. Costco Wholesale Corp.

    No. 98-CV-2330 (FB)(JMA) (E.D.N.Y. Dec. 3, 2002)

    The same is true of § 23-9.2(e). See Fairchild v. Servidone Const. Corp., 733 N.Y.S.2d 735, 738 (3d Dep't 2001); Moffett, 698 N.Y.S.2d at 112. Section 23-1.7 is inapplicable because it is intended to prevent impact injuries from falling objects or material.

  5. Larry Randall v. Time Warner Cable, Inc.

    81 A.D.3d 1149 (N.Y. App. Div. 2011)   Cited 13 times   1 Legal Analyses

    The upgrade was not functional and the work was not complete until the final step — replacing the cable filter — was accomplished ( see Smith v Innovative Dynamics, Inc., 24 AD3d 1000, 1001). Replacement of the filter, though performed outside the house, was part of and not separate from the work that constituted alteration within the statutory purview ( see Fitzpatrick v State of New York, 25 AD3d 755, 756-757; compare Fairchild v Servidone Constr. Corp., 288 AD2d 665, 666-667). Further, the filter replacement was not a separate phase of the undertaking readily distinguishable from the alteration ( compare Martinez v City of New York, 93 NY2d 322, 326), but was instead an integral part of the project.

  6. Haksch v. City of New York

    78 A.D.3d 781 (N.Y. App. Div. 2010)   Cited 55 times

    Moreover, BUG failed to establish, prima facie, that the provision identified was not applicable to the facts of the case ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Boss v Integral Constr. Corp., 249 AD2d 214). The plaintiff, however, has abandoned, as against BUG, his reliance on provisions of the Industrial Code other than 12 NYCRR 23-1.7 (e) (2), since he failed to address them in his brief ( see Musillo v Marist Coll., 306 AD2d 782; Fairchild v Servidone Constr. Corp., 288 AD2d 665, 667 n 3 [2001]).

  7. Fassett v. Wegmans Food Markets

    66 A.D.3d 1274 (N.Y. App. Div. 2009)   Cited 39 times

    Plaintiff confirmed that neither Lehrer nor any other Wegmans' employee was ever present at the construction site and that no one from Wegmans ever directed his work. Thus, with no record evidence that Wegmans exerted any actual control or supervision over plaintiff or the manner in which the work was performed, Supreme Court properly dismissed the negligence and Labor Law § 200 claims against Wegmans ( see Lombardi v Stout, 80 NY2d 290, 295; Blysma v County of Saratoga, 296 AD2d 637, 639; Fairchild v Servidone Constr. Corp., 288 AD2d 665, 668). As to Hunt, we agree with Supreme Court that plaintiff raised a triable issue of fact sufficient to withstand summary judgment.

  8. Torres v. Mazzone

    46 A.D.3d 1040 (N.Y. App. Div. 2007)   Cited 8 times

    , 4 AD3d 668, 670). As a final matter, we note that the Labor Law § 241 (6) claim was properly dismissed because plaintiffs failed to allege defendant's violation of a specific regulatory standard ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505; Fairchild v Servidone Constr. Corp., 288 AD2d 665, 667; Gavigan v Bunkoff Gen. Contrs., 247 AD2d 750, 751, lv denied 92 NY2d 804) and the Labor Law § 200 claim was likewise properly dismissed because defendant did not have control over the manner and methods of plaintiffs work ( seeComes v New York State Elec. Gas Corp., 82 NY2d 876, 877). Ordered that the order is affirmed, with costs.

  9. Edwards v. Mega Contr

    40 A.D.3d 255 (N.Y. App. Div. 2007)   Cited 17 times   1 Legal Analyses
    In Modeste v Mega Contr. (40 AD3d 255, 835 NYS2d 156), a case similar to plaintiff's, the worker was thrown from the roof of a Bobcat he was riding on when the machine lurched.

    Similarly, the subdivisions of section 23-9.7 asserted by plaintiff are not applicable because that regulation does not apply to forklifts ( see Fitzgerald v New York City School Constr. Auth., 18 AD3d 807, lv denied 8 NY3d 801; Scott v American Museum of Natural History, 3 AD3d 442). Section 23-9.2 (c) is legally insufficient to support a Labor Law § 241 (6) because it merely sets forth a general safety standard ( Armer v General Elec. Co., 241 AD2d 581, 583, lv denied 90 NY2d 812; see also Fairchild v Servidone Constr. Corp., 288 AD2d 665). However, since none of the moving defendants' papers specifically addressed the alleged violations of 12 NYCRR 23-9.8 (a) and (b), relating to permissible load expectations of lift and fork trucks, defendants failed to make a prima facie showing of entitlement to judgment as a matter of law dismissing the section 241 (6) cause of action insofar as it is based on those regulations ( see Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345, 1349), and we modify accordingly.

  10. Petrocelli v. Tishman Construction Co.

    19 A.D.3d 145 (N.Y. App. Div. 2005)   Cited 17 times

    The report was prepared by the foreman on the renovation project in the regular course of business and was based on the account provided to him by the injured plaintiff ( see Clarke v. New York City Tr. Auth., 174 AD2d 268, 272-273). The trial court properly refused to charge the jury on plaintiff's Labor Law § 241 (6) cause of action, since the Industrial Code regulation pleaded was not sufficiently specific to impose liability ( see Fairchild v. Servidone Constr. Corp., 288 AD2d 665, 667-668).