Nicholas v. Wal-Mart Stores, Inc.

Full title: William J. NICHOLAS and Joann Nicholas, Plaintiffs–Respondents, v…

Court: Supreme Court, Appellate Division, Fourth Department, New York.

Date published: Mar 25, 2016

137 A.D.3d 1733 (N.Y. App. Div. 2016)

137 A.D.3d 1733

2016 N.Y. Slip Op. 2253

Opinion

03-25-2016

William J. NICHOLAS and Joann Nicholas, Plaintiffs–Respondents, v. WAL–MART STORES, INC., Defendant–Respondent–Appellant, MLB Contractors, Inc., Defendant–Appellant, et al., Defendants.

Sugarman Law Firm, LLP, Syracuse (Jenna W. Klucsik of Counsel), for Defendant–Appellant. O'Connor, O'Connor, Bresee & First, P.C., Albany (Carol E. Crummey of Counsel), for Defendant–Respondent–Appellant. Dolce Panepinto, P.C., Buffalo (Anne M. Wheeler of Counsel), for Plaintiffs–Respondents.

MEMORANDUM

Sugarman Law Firm, LLP, Syracuse (Jenna W. Klucsik of Counsel), for Defendant–Appellant.

O'Connor, O'Connor, Bresee & First, P.C., Albany (Carol E. Crummey of Counsel), for Defendant–Respondent–Appellant.

Dolce Panepinto, P.C., Buffalo (Anne M. Wheeler of Counsel), for Plaintiffs–Respondents.

Opinion

MEMORANDUM:

We affirm for reasons stated in the decision at Supreme Court. We write only to note that, “[w]here, as here, the worker's injuries result from a dangerous condition at the work site rather than from the manner in which the work is performed, the general contractor or owner ‘may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and [has created or has] actual or constructive notice of the dangerous condition’ ” (Steiger v. LPCiminelli, Inc., 104 A.D.3d 1246, 1248, 961 N.Y.S.2d 634). Here, there is no dispute that defendant MLB Contractors, Inc. did not create the dangerous condition, but we conclude that it failed to meet its initial burden of establishing with respect to the common-law negligence cause of action and the Labor Law § 200 claim against it that it did not have control over the work site, or that it lacked actual or constructive notice of the allegedly dangerous condition (see Carrasco v. Weissman, 120 A.D.3d 531, 533, 992 N.Y.S.2d 36; see also Bannister v. LPCiminelli, Inc., 93 A.D.3d 1294, 1295, 940 N.Y.S.2d 749).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

PERADOTTO, J.P., LINDLEY, DeJOSEPH, CURRAN, and SCUDDER, JJ., concur.