Opinion
11323 Index 161207/14
04-02-2020
Naji NASSAR, Plaintiff–Respondent, v. MACY'S INC., et al., Defendants–Appellants.
Mauro Lilling Naparty LLP, Woodbury (Eric Z. Leiter of counsel), for appellants. Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.
Mauro Lilling Naparty LLP, Woodbury (Eric Z. Leiter of counsel), for appellants.
Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.
Gische, J.P., Gesmer, Oing, Moulton, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered March 4, 2019, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on Industrial Code ( 12 NYCRR) § 23–1.22(b)(3) and the common-law negligence and Labor Law § 200 claims as against defendant Structure Tone, Inc., unanimously modified, on the law, to grant the motion as to the Labor Law § 241(6) claim predicated on Industrial Code ( 12 NYCRR) § 23–1.22(b)(3), and otherwise affirmed, without costs.
Because the record is devoid of evidence that defendants' violation of 12 NYCRR 23–1.22(b)(3), if any, was a proximate cause of plaintiff's injuries, the Labor Law § 241(6) claim must be dismissed to the extent it is predicated on that provision (see Guaman v. City of New York , 158 A.D.3d 492, 493, 71 N.Y.S.3d 29 [1st Dept. 2018], lv denied 32 N.Y.3d 903, 2018 WL 4354816 [2018] ; McCullum v. Barrington Co. & 309 56th St. Co. , 192 A.D.2d 489, 597 N.Y.S.2d 295 [1st Dept. 1993] ).
Defendants contend that Structure Tone cannot be held liable for plaintiff's injuries under Labor Law § 200 or in common-law negligence because it lacked the requisite supervisory control over the means and methods of his work (see Ross v. Curtis–Palmer Hydro–Elec. Co. , 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ). However, an issue of fact exists whether Structure Tone lent plaintiff the A-frame cart involved in his accidents; if it did, then defendants must demonstrate that Structure Tone neither created nor had actual or constructive notice of the dangerous or defective condition of the cart ( Chowdhury v. Rodriguez , 57 A.D.3d 121, 123, 867 N.Y.S.2d 123 [2d Dept. 2008] ; accord Jaycoxe v. VNO Bruckner Plaza, LLC , 146 A.D.3d 411, 412, 44 N.Y.S.3d 395 [1st Dept. 2017] ; Lam v. Sky Realty, Inc. , 142 A.D.3d 1137, 1138–1139, 37 N.Y.S.3d 627 [2d Dept. 2016] ). Defendants failed to do so; rather, they "merely pointed to gaps in plaintiff's proof" ( Torres v. Merrill Lynch Purch. , 95 A.D.3d 741, 742, 945 N.Y.S.2d 78 [1st Dept. 2012] ).
Defendants' argument that plaintiff was the sole proximate cause of his injuries is unpreserved (see Ervin v. Consolidated Edison of N.Y. , 93 A.D.3d 485, 940 N.Y.S.2d 223 [1st Dept. 2012] ) and in any event unavailing.
We have considered defendants' remaining contentions and find them unavailing.