Kearney v. Dynegy, Inc.Kearney v. Dynegy, Inc.
Louis Kearney, Appellant, v DYNEGY, INC., et al., Defendants/Third-Party Plaintiffs-Respondents. F.T. SILFIES, INC., Third-Party Defendant-Respondent. (Action No. 1.) LOUIS KEARNEY, Appellant, v F.T. SILFIES, INC., Respondent. (Action No. 2.) [57 NYS3d 520]—
In two related actions to recover damages for personal injuries, the plaintiff in Action Nos. 1 and 2 appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Bartlett, J.), dated July 22, 2014, as granted those branches of the separate motions of Dynegy, Inc., Dynegy Danskammer, LLC, Dynegy Roseton, LLC, and Dynegy Northeast Generation, Inc., the defendants third-party plaintiffs in Action No. 1, and F.T. Silfies, Inc., the third-party defendant in Action No. 1 and the defendant in Action No. 2, which were for summary judgment dismissing the causes of action alleging violations of
Ordered that the
The plaintiff fell while working at an electric power plant owned by Dynegy Danskammer, LLC (hereinafter Dynegy Danskammer). The plaintiff‘s employer, nonparty Pozament Corporation, had been hired as an independent contractor to remove fly ash, a waste by-product of coal combustion, from the plant. Fly ash was collected in two storage silos that were emptied daily and hauled by trucks to landfills. The plaintiff was descending a ladder affixed to the side of a tanker-trailer owned by F.T. Silfies, Inc. (hereinafter Silfies), that was being prepared to remove a load of fly ash when he slipped off the ladder. The plaintiff attributes his fall, in part, to the design of the hand railings on the ladder affixed to the tanker-trailer owned by Silfies. He also attributes his fall to the failure of Dynegy Danskammer to install a type of safety device known as a “SafeRack system,” which would have allowed workers to open the hatches on top of the tanker-trailer without using the affixed ladder.
The plaintiff commenced an action to recover damages for personal injuries (Action No. 1) against Dynegy Danskammer and other Dynegy entities (hereinafter collectively the Dynegy defendants), alleging violations of
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Here, the plaintiff alleges that his accident was caused by the defective design of the ladder affixed to the tanker-trailer owned by Silfies, and by the failure of Dynegy Danskammer to install a particular safety device. Thus, the accident “did not arise from a defective condition inherent on the . . . property,” but rather from alleged defects in the methods or materials utilized by the plaintiff to perform his work (Duarte v State of New York, 57 AD3d 715, 716 [2008]; see Messina v City of New York, 147 AD3d at 749; McKee v Great Atl. & Pac. Tea Co., 73 AD3d 872, 873-874 [2010]; Jenkins v Walter Realty, Inc., 71 AD3d 954, 954 [2010]). “When the methods or materials of the work are at issue, ‘recovery against the owner or general contractor cannot be had . . . unless it is shown that the party to be charged had the authority to supervise or control the performance of the work‘” (Messina v City of New York, 147 AD3d at 749, quoting Ortega v Puccia, 57 AD3d at 61; see Rodriguez v Trades Constr. Servs. Corp., 121 AD3d 962, 964-965 [2014]; Pilato v 866 U.N. Plaza Assoc., LLC, 77 AD3d 644, 646 [2010]). A defendant has the authority to supervise or control the work for purposes of
Here, the Dynegy defendants and Silfies each established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging a violation of
The Supreme Court also properly granted those branches of the separate motions which were for summary judgment dismissing the causes of action alleging a violation of
Balkin, J.P., Hall, Hinds-Radix and Connolly, JJ., concur.