Opinion
December 31, 1998
Appeal from the Supreme Court, Erie County, Howe, J.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of plaintiff for partial summary judgment on defendant's liability under Labor Law § 241 Lab. (6). Contrary to plaintiffs contention, the violation of a specific provision of the Industrial Code, even if admitted by defendant, "does not establish negligence as a matter of law but is `merely some evidence to be considered on the question of a defendant's negligence'" ( Schmeer v. County of Monroe, 175 A.D.2d 633, 633-634, quoting Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 522, rearg denied 65 N.Y.2d 1054; see, Sacchetti v. Vasile Constr. Corp., 254 A.D.2d 777; Irwin v. St. Joseph's Intercommunity Hosp., 236 A.D.2d 123, 131). We reject plaintiff's contention that defendant and third-party defendant should be precluded from introducing evidence of plaintiffs comparative negligence at trial. Comparative negligence is a valid defense to a Labor Law § 241 Lab. (6) cause of action ( see, Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 161, rearg denied 56 N.Y.2d 805). Defendant raised comparative negligence as a defense, and the factual issues with respect to that defense should be resolved at trial ( see, Sacchetti v. Vasile Constr. Corp., supra; Irwin v. St. Joseph's Intercommunity Hosp., supra, at 132; see also, Giraldez v. City of New York, 214 A.D.2d 461, 462).
The court properly granted the cross motion of defendant for summary judgment dismissing the common-law negligence and Labor Law § 200 Lab. causes of action. Defendant established that the dangerous condition arose from the methods of plaintiffs employer and that defendant exercised no supervisory control over the work being performed ( see, Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 877; Lombardi v. Stout, 80 N.Y.2d 290, 295). Defendant's mere presence at the worksite is insufficient to impose liability under Labor Law § 200 Lab. ( see, Lysiak v. Murray Realty Co., 227 A.D.2d 746, 749; Pazmino v. Woodside Dev. Co., 212 A.D.2d 520, 521).
The court also properly denied plaintiffs motion in limine to preclude defendant and third-party defendant from introducing evidence related to plaintiffs injuries and damages ( cf., Kish v. Board of Educ., 76 N.Y.2d 379, 385-386).
Present — Pine, J. P., Hayes, Callahan, Balio and Boehm, JJ.