| N.Y. App. Div. | Mar 9, 2004
Lead Opinion
Order, Supreme Court, Bronx County (Howard Silver, J.), entered June 17, 2002, which granted defendant’s motion for summary judgment dismissing the complaint only to the extent
On the date of the accident, plaintiff, an employee of Colgate Scaffolding Company, was on a flatbed truck unloading sheets of tin to be used to make a deck on the frame of a sidewalk bridge (scaffolding) at defendant’s premises, located at 993 Intervale Avenue in the Bronx, in preparation for roof renovation. Plaintiff had been employed by the scaffolding company for nine months, working five or six days a week, and during that time had unloaded sheets of tin from “at least one truck a day . . . [a]lmost every day.” In unloading the tin sheets, plaintiff, directed only by the foreman, another Colgate employee, who also participated in the unloading operation, followed the same procedure he “always” used: he would pick up one sheet from a stack on the truck and pass it to the foreman or another worker, who would then pass it to another worker. Plaintiff was injured when “the wind picked [him] up with the tin sheet and threw [him] off the truck onto the . . . road.”
While defendant’s president, who was also the CEO of defendant’s managing agent, testified at her deposition that she and other representatives of defendant met to discuss safety issues, no one from Colgate attended that meeting and no one from defendant “g[a]ve any written guidelines or procedures to Colgate with respect to the manner in which they were to conduct their work.” Moreover, while defendant would designate a person to inspect the work to insure that it was done according to specifications, there is nothing to suggest that defendant had any involvement in the manner in which the work was to be performed.
Defendant’s motion for summary judgment dismissing plaintiffs Labor Law § 200 as well as negligence claim should have been granted. In accordance with a landowner’s common-law duty to provide workers with a reasonably safe place to work, which has been codified by Labor Law § 200, “ ‘liability will attach to a landowner . . . only when the injuries were sustained as the result of a dangerous condition at the work site . . . and then only if the owner exercised supervision and control over the work performed at the site or had actual or constructive notice of the unsafe condition causing the accident’
Summary judgment should also have been granted as to plaintiffs Labor Law § 241 (6) cause of action since plaintiff failed to articulate an Industrial Code violation by defendant (see D’Antonio v 1251 Ams. Assoc., 284 AD2d 204 [2001]). The Labor Law § 240 (1) cause of action was properly dismissed since plaintiff’s injuries, which were caused by a fall from a flatbed truck, did not result from an elevation-related risk (see Dilluvio v City of New York, 264 AD2d 115 [2000], affd 95 NY2d 928 [2000]). Concur—Nardelli, J.P., Andrias, Sullivan and Lerner, JJ.
Dissenting Opinion
dissents in part in a memorandum as follows: I agree with the majority’s determinations to dismiss plaintiffs Labor Law § 240 (1) and § 241 (6) claims. However, I would affirm the IAS court’s determination to deny defendant’s motion to dismiss plaintiff’s common-law negligence and Labor Law § 200 claims.
Defendant contends that it is entitled to summary judgment dismissing plaintiff’s statutory and common-law negligence claims because it did not supervise or control the injury-producing work. I would find that defendant has not met its burden of establishing, as a matter of law, that it was without the authority to control the method by which plaintiff unloaded the tin sheets at this job site (see Ross v Curtis-Palmer Hydro