From Casetext: Smarter Legal Research

McCole v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Nov 27, 1995
221 A.D.2d 605 (N.Y. App. Div. 1995)

Opinion

November 27, 1995

Appeal from the Supreme Court, Kings County (Bernstein, J.).


Ordered that the appeal from the order dated March 7, 1994, is dismissed, as that order was superseded by the order dated September 12, 1994, made upon reargument; and it is further,

Ordered that the order dated September 12, 1994, is reversed insofar as reviewed, on the law, the provision of the order dated March 7, 1994, which denied the appellant's cross motion for summary judgment is vacated, the cross motion is granted, the plaintiffs' complaint insofar as it is asserted against the appellant and all cross claims against the appellant are dismissed, and the action against the remaining defendants is severed; and it is further,

Ordered that the appellant is awarded one bill of costs, payable by the plaintiffs.

The plaintiff Thomas McCole was employed by the third-party defendant Dale Piping Corporation (hereinafter Dale), a subcontractor at a construction site on property leased by the appellant. On March 16, 1990, he changed into his street clothes in a shanty leased by Dale from the defendant Cerco Products, Inc., and wired for electricity by the defendant Forest Electric Corp. As he was leaving the shanty, he placed his foot on the door saddle and his two hands on the left and right door jambs and received an electric shock which catapulted him out of the shanty, causing personal injuries. The Occupational Safety and Health Administration later determined that an electric outlet at the accident site was defective, because its neutral and ground polarity were reversed.

The plaintiffs do not have a cause of action under Labor Law § 241 (6) against the appellant. The implementing regulations cited by the plaintiffs in support of this cause of action were either inapplicable to the facts of this case, or were based on general descriptive terms which are inadequate to support a cause of action pursuant to Labor Law § 241 (6) (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494; Biszick v Ninnie Constr. Corp., 209 A.D.2d 661; Goodineer v County of Orange, 205 A.D.2d 584). Nor do the plaintiffs have a cause of action pursuant to Labor Law § 240 (1) because the plaintiff was not injured as the result of elevation-related hazard (see, Smith v New York State Elec. Gas Corp., 82 N.Y.2d 781; D'Avila v City of New York, 205 A.D.2d 729). Further, there was no evidence that the appellant exercised any supervision or control over the work (see, Comes v New York State Elec. Gas Corp., 82 N.Y.2d 876; Lombardi v Stout, 80 N.Y.2d 290), or could have, upon a reasonable inspection, detected the alleged latent defect which purportedly caused the injured plaintiff's injuries (see, Monroe v City of New York, 67 A.D.2d 89). Therefore, the plaintiffs do not have a cause of action against the appellant pursuant to Labor Law § 200 (1).

Accordingly, the plaintiffs' complaint, insofar as it is asserted against the appellant, is dismissed, and all cross claims against the appellant are dismissed. Thompson, J.P., Altman, Krausman and Goldstein, JJ., concur.


Summaries of

McCole v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Nov 27, 1995
221 A.D.2d 605 (N.Y. App. Div. 1995)
Case details for

McCole v. City of New York

Case Details

Full title:THOMAS McCOLE et al., Respondents, v. CITY OF NEW YORK et al., Defendants…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 27, 1995

Citations

221 A.D.2d 605 (N.Y. App. Div. 1995)
634 N.Y.S.2d 183

Citing Cases

Wilke v. Communications Construction Group

Based upon the stipulated facts, the Supreme Court properly determined that the plaintiff did not possess a…

Wensley v. Argonox Construction Corporation

Here, the elevation differential distinguishes this case factually from cases such as Misseritti v. Mark IV…