on the § 200 claim is the equivalent of ruling on the parallel motion as to plaintiffs' negligence claim.
NY Labor Law § 200 imposes a duty on owners and general contractors to provide a safe place to work. Rusin v. Jackson Heights Shopping Center, 27 N.Y.2d 103, 313 N.Y.S.2d 715, 261 N.E.2d 635 (1970); Nagel v. Metzger, 118 Misc. 2d 441, 460 N.Y.S.2d 700 (1983), modified on other grounds 478 N.Y.S.2d 737 (1984). To breach this duty, the defendant must have supervisory control over the work premises and actual or constructive notice of the unsafe condition which proximately causes the employee's injury. Kennedy v. McKay, 86 A.D.2d 597, 446 N.Y.S.2d 124 (1982); Monroe v. City of New York, 67 A.D.2d 89, 414 N.Y.S.2d 718 (1979); Forbes v. Alvord & Swift, 44 A.D.2d 538, 353 N.Y.S.2d 749 (1974); Kelly v. Diesel Const., 70 Misc. 2d 686, 334 N.Y.S.2d 309, affirmed 35 N.Y.2d 1, 358 N.Y.S.2d 685, 315 N.E.2d 751 (1972); In re Joint Eastern and Southern Dist. Asbestos Litigation, 827 F. Supp. 1014 (SDNY 1993).
While PCM and Pyramid dispute they possessed either supervisory control or notice of the muddy condition, there is evidence which tends to prove differently. Neither PCM nor Pyramid dispute the fact that plaintiff previously asked his supervisor to lay gravel down to help remedy the muddy site. PCM and Pyramid do not dispute that they employed an inspector to ensure the work site was safe.
While neither of these facts alone establish that PCM or Pyramid had control or notice, they are sufficient to create a genuine issue of material fact which precludes summary judgment.
NY Labor Law § 241(6) requires construction areas be operated and conducted so as to provide reasonable protection and safety to employees. Consequently, owners and contractors have a non-delegable duty to provide workers engaged in construction work with certain safeguards.
As stated above, there is a genuine issue of material fact as to whether PCM or Pyramid knew of the muddy condition and failed to remedy it. If they had notice of the muddy condition, they would be liable under § 241(6) since the failure to remedy the mud would be a failure to provide reasonable protection to work site employees. As such, the claim under NY Labor Law § 241 is not a proper one for dismissal on summary judgment.
Dated: White Plains, New York
February 1, 1995
/s/ John S. Martin, U.S.D.J. for
VINCENT L. BRODERICK, U.S.D.J.
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