Opinion
2004-177 KC.
Decided October 25, 2004.
Appeal by defendant Teachers Insurance Annuity Associates from so much of an order of the Civil Court, Kings County (M. Solomon, J.), entered November 5, 2003, as denied its motion for summary judgment dismissing plaintiffs' action.
Order insofar as appealed from unanimously modified by providing that the branch of the motion by Teachers Insurance Annuity Associates seeking dismissal of plaintiff Anthony Sellito's cause of action pursuant to Labor Law § 241 (6) is granted; as so modified, affirmed without costs.
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
In this personal injury action, plaintiff Anthony Sellito (plaintiff) alleged that his injuries were the result of a defective condition of the work site, not the manner in which the work was being done, and as such, liability pursuant to Labor Law § 200 or common-law negligence may be found if the landowner, here, Teachers Insurance Annuity Associates (TIAA), had actual or constructive notice of the condition, regardless of whether it supervised or controlled the work being performed ( see Abayev v. Jaypson Jewelry Mfg. Corp., 2 AD3d 548; Blanco v. Oliveri, 304 AD2d 599; Shipkoski v. Watch Case Factory Assoc., 292 AD2d 589). In light of the testimony of TIAA's representative and plaintiff as to the representative's duties in directing work activities at the site, a question of fact exists as to the extent of TIAA's supervision and control of plaintiff's work ( see Everitt v. Nozkowski, 285 AD2d 442).
However, the Labor Law § 241 (6) cause of action should have been dismissed. The Industrial Code provisions cited by plaintiff are intended to prevent workers from accidentally encountering live electrical circuits in the course of their work on or around sources of electricity, including requiring such circuits to be shielded or de-energized, and requiring that measures be taken to prevent power from being accidentally restored to them ( see 12 NYCRR 23-1.3 [b] [3] et seq.). They clearly were not intended to regulate the process of plugging in and unplugging power tools. As plaintiff has thus failed to allege a violation of a pertinent Industrial Code provision, the Labor Law § 246 (1) cause of action must fall ( see generally Comes v. New York State Elec. Gas Corp., 82 NY2d 876).