Opinion
2013-11-12
Chris KOERNER, Plaintiff–Respondent, v. The CITY OF NEW YORK, Defendant, The Board of Education of the City of New York, Defendant–Appellant.
Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for appellant. Law Offices of Michael S. Lamonsoff, PLLC, New York (Simon Ramone of counsel), for respondent.
Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for appellant. Law Offices of Michael S. Lamonsoff, PLLC, New York (Simon Ramone of counsel), for respondent.
, J.P., ANDRIAS, FRIEDMAN, FREEDMAN, CLARK, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered September 14, 2012, which, insofar as appealed from, denied The Board of Education of the City of New York's motion for summary judgment dismissing plaintiff's claims pursuant to Labor Law § 200 and common-law negligence, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
A general awareness that a dangerous condition may be present is legally insufficient to charge a defendant with constructive notice ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 838, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ). Thus, awareness of unsanitary conditions at the school was insufficient evidence that defendant was on notice of the presence of the fungal pathogen Candida Dubliniensis, the fungus that allegedly caused plaintiff's eye infection ( see Litwack v. Plaza Realty Invs., Inc., 40 A.D.3d 250, 835 N.Y.S.2d 151 [1st Dept.2007], affd. 11 N.Y.3d 820, 869 N.Y.S.2d 388, 898 N.E.2d 571 [2008] ).
Further, plaintiff failed to proffer any evidence that the fungus existed at the school at all, other than speculation based on plaintiff's unusual infection ( see e.g. Cleghorne v. City of New York, 99 A.D.3d 443, 952 N.Y.S.2d 114 [1st Dept.2012] ). And while defendant failed to meet its initial burden as movant on the issue of causation, this failure is rendered moot in light of our determination that insufficient evidence that a dangerous condition, and notice of it, existed in the first instance.
Lastly, no evidence was adduced that defendant exercised supervision and control over plaintiff's work, so as to impart liability pursuant to Labor Law § 200 ( see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 950 N.Y.S.2d 35 [1st Dept.2012]; Reilly v. Newireen Assoc., 303 A.D.2d 214, 756 N.Y.S.2d 192 [1st Dept.2003], lv. denied100 N.Y.2d 508, 764 N.Y.S.2d 235, 795 N.E.2d 1244 [2003] ).
We have considered plaintiff's remaining arguments and find them unavailing.