Opinion
May 7, 1999
Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Hurlbutt, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff's decedent died from injuries he sustained when a steel extension jib to a boom crane fell from its storage location on the side of the boom crane truck and landed on his back. Defendant Ciminelli-Walbridge was the general contractor on the
Appeals from Order of Supreme Court, Erie County, Mahoney, J. — Summary Judgment.
construction project, and third-party defendant owned the boom crane. Supreme Court properly dismissed the Labor Law § 240 Lab. (1) claim against all defendants. At the time of decedent's injury, the boom crane was not in use. Thus, Labor Law § 240 Lab. (1) does not apply because there was no elevated worksite ( see, Thompson v. Ludovico, 246 A.D.2d 642, 643; Ruiz v. 8600 Roll Rd., 190 A.D.2d 1030; Carringi v. International Paper Co., 184 A.D.2d 137, 139; see generally, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514). The court also properly dismissed the Labor Law § 241 Lab.(6) claim against all defendants. The regulation relied on by plaintiff, 12 NYCRR 23-8.1 (a), is a general safety standard that does not support a Labor Law § 241 Lab.(6) claim ( see, Thompson v. Ludovico, supra, at 643-644; see generally, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505). Furthermore, plaintiff submitted no evidence that the boom crane was unstable ( see, 12 NYCRR 23-8.1 [a]).
The court properly denied that part of the motion of third-party defendant to amend its answer to assert a counterclaim for breach of contract for the failure to name third-party defendant as an additional insured. While leave to amend a pleading "should be freely given absent prejudice or surprise" ( Weller v. Marriott Mgt. Servs. Corp., 238 A.D.2d 888), a court may deny leave to amend when the proposed amendment lacks merit ( see, Ricci v. New Era Cap Co., 224 A.D.2d 963, 963-964, quoting Washburn v. Citibank, 190 A.D.2d 1057). The contractual language for the procurement of insurance was not clear and unambiguous and thus does not support the proposed counterclaim for breach of contract ( see generally, Bishop v. Port Auth., 170 A.D.2d 565, 567, lv denied 78 N.Y.2d 858).
The court erred, however, in denying that part of the motion of defendants State University Construction Fund (SUCF) and Ciminelli-Walbridge for summary judgment dismissing the Labor Law § 200 Lab. claim and common-law negligence cause of action against Ciminelli-Walbridge. Ciminelli-Walbridge established that it instructed decedent where to work but had no control over the method or manner of his operation of the boom crane. Because Ciminelli-Walbridge exercised only general supervision at the worksite, it is not liable under Labor Law § 200 Lab. or for common-law negligence ( see, Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 877; Riley v. Stickl Constr. Co., 242 A.D.2d 936, 936-937).
The court further erred in denying that part of the motion of SUCF and Ciminelli-Walbridge seeking a determination that decedent was not a "special employee" of Ciminelli-Walbridge. A special employee is one who is transferred for a limited duration to the service of another ( see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557). "General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer" ( Thompson v. Grumman Aerospace Corp., supra, at 557). Here, decedent was employed by third-party defendant, and Ciminelli-Walbridge never assumed control over decedent's work.
We modify the order, therefore, by granting those parts of the motion of SUCF and Ciminelli-Walbridge seeking a determination that decedent was not a "special employee" of Ciminelli-Walbridge and dismissal of the Labor Law § 200 Lab. claim and common-law negligence cause of action against Ciminelli-Walbridge and thus dismissing the complaint against it.