Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered December 8, 2011. The order granted defendants’ motion for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this personal injury and wrongful death action after plaintiffs decedent suffered a fatal heart attack at a building (building) allegedly owned by defend
We reject at the outset defendants’ contention that plaintiff abandoned her appeal with respect to 26 Mississippi (cf. Ciesinski v Town of Aurora, 202 AD2d 984, 984 [1994]). Turning to the merits, we agree with defendants that the court properly granted those parts of the motion for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action.
“ ‘Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work’ ” (Fisher v WNY Bus Parts, Inc., 12 AD3d 1138, 1139 [2004], quoting Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; see Brownell v Blue Seal Feeds, Inc., 89 AD3d 1425, 1427 [2011]). “[W]here, as here, a plaintiffs injuries stem not from the manner in which the work was being performed[ ] but, rather, from a dangerous condition on the premises, [an owner or] general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition” (Ozimek v Holiday Val., Inc., 83 AD3d 1414, 1416 [2011] [internal quotation marks omitted]; see Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345, 1349 [2003]).
Here, defendants submitted in support of their motion an abstract of title for the property on which the building was located (abstract), which establishes that nonparty Michigan Street Development, LLC (Michigan Street), not 26 Mississippi, owned the building at all times relevant to this matter. Defendants therefore met their initial burden on that part of the motion concerning the Labor Law § 200 and common-law negligence causes of action with respect to 26 Mississippi (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Biggs v Hess, 85 AD3d 1675, 1675 [2011]), and plaintiff failed to raise a triable issue of fact in opposition (cf. Palermo v
We further conclude that the court properly granted that part of the motion seeking summary judgment dismissing the Labor Law § 241 (6) cause of action. Here, through the submission of the abstract and the contract, defendants established that 26 Mississippi is not an “owner” within the meaning of Labor Law § 241 (6) (see generally Scaparo v Village of Ilion, 13 NY3d 864, 866 [2009]), and plaintiff failed to raise an issue of fact in opposition (see generally Zuckerman, 49 NY2d at 562). Moreover, we conclude that there is an issue of fact whether decedent was engaged in a protected activity under section 241 (6) (cf. Love v New York State Thruway Auth., 17 AD3d 1000, 1002-1003 [2005]; see generally Zuckerman, 49 NY2d at 562), but we also conclude with respect to both defendants that the court properly granted that part of their motion seeking summary judgment dismissing the section 241 (6) cause of action because plaintiff failed to support that cause of action by alleging the violation of a qualifying provision of the Industrial Code (see Piazza, 2 AD3d at 1348). In her bill of particulars, plaintiff appeared to premise her section 241 (6) cause of action on the alleged violation of 12
Finally, we agree with defendants that the court properly granted those parts of their motion seeking dismissal of the Labor Law causes of action against Savarino Construction because Savarino Construction was not a statutory agent of an owner or contractor (see Brownell, 89 AD3d at 1427-1428; Uzar v Louis P. Ciminelli Constr. Co., Inc., 53 AD3d 1078, 1079 [2008]). Present—Centra, J.E, Fahey, Sconiers, Valentino and Martoche, JJ.
