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October 30, 2000


The opinion of the court was delivered by: Wexler, District Judge.


In this diversity case Plaintiffs seek damages arising from an on the job accident suffered by Plaintiff Richard Shannon. Richard Shannon ("Plaintiff" or "Shannon") seeks damages for shoulder and knee injuries. His wife, Joan Shannon, seeks damages for loss of consortium. Plaintiffs set forth claims in common law negligence as well as claims pursuant to the New York Labor Law. Presently before the court is the motion of defendants Lake Grove Centers, Inc. and AMF, Inc. (collectively "Defendant") for summary judgment. For the reasons that follow, the motion is granted in part and denied in part.


I. Factual Background

The deposition testimony and other documents submitted in support of and in opposition to the motion reveal the following facts. At all relevant times, Shannon was employed as a Heating Ventilation and Air Conditioning ("HVAC") mechanic by Dynaire Service Corp. ("Dynaire"). Prior to June 15, 1998, Dynaire was called to inspect a failing air conditioning unit located at the AMF Syosset Bowling Lanes, located in Syosset, New York ("Syosset Lanes").*fn1

Responding to the call from Syosset Lanes was Plaintiff, Malvia Persaud (a co-worker) and John Conner (Plaintiff's supervisor). Plaintiff was the first to arrive at Syosset Lanes on June 15, 1998, at approximately 8:00 A.M. He was shortly thereafter joined by Persaud. Last to arrive was Conner. The three workers described their contact with employees of Syosset Lanes as limited to being directed to the entrance to the roof. Prior to arriving at the job site, the workers were aware that the job involved removing a section of the blower unit from an air conditioner located on the roof of Syosset Lanes and transporting the unit to Dynaire for repair.

Shannon's accident occurred after the workers had been on the roof for approximately two hours. At that time, Shannon and Conner were carrying the blower unit to a lower roof so that it could be lowered from the building. The unit being handled by the two men was between six and seven feet long and weighed over 200 pounds. Conner and Shannon were walking, side by side, moving the unit nearer to the lower roof. Persaud, who was continuing work on the air conditioner, was watching the two men and witnessed Shannon's accident.

The testimony of Shannon, Persaud and Conner is in agreement that Shannon was injured when he slipped on the roof while carrying the unit. Shannon did not fall from the roof; his left foot slipped and he fell on the roof. He was taken, by Persaud, to the emergency room at Winthrop University Hospital. Shannon's subsequent treatment and medical condition is not relevant to the present motion and will not be discussed herein. Suffice it to say that Shannon suffered injuries to his shoulder and knee, both of which required surgery.

There is conflicting testimony regarding the precise weather at the time of the accident as well as the condition of the roof. Shannon testified that the roof was dry and the weather was overcast upon his arrival at the job site. He stated that the weather remained overcast, with no precipitation until five to ten minutes before the accident, when it began to drizzle. Both Conner and Persaud testified that it was raining the entire morning. According to Conner, Shannon slipped on the wet roof. Shannon and Persaud described a repaired portion of the roof as the spot on which Shannon slipped. Both described that portion of the roof as having been repaired with material different from the surrounding roofing material. Persaud described the patched roof area as covered with a rubber type of material that was smooth and without grip. He stated that the patched area of the roof was rectangular in shape, approximately twenty feet long and four feet wide.

II. The Complaint and Motion

As noted above, Shannon alleges statutory claims as well as a claim in common law negligence against Defendant, the owner of the premises where the accident occurred. Plaintiff's claim pursuant to Section 200 of the New York State Labor Law (the "Labor Law") is for all intents and purposes, identical to a common law claim for negligence. see Labor Law § 200(1); Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 821, 693 N.E.2d 1068 (1998). Plaintiff's other statutory claims are stated pursuant to Sections 240 and 241 of the Labor Law. These statutes impose liability on owners for workers' injuries. They differ from typical common law claims in that they do not require a showing of the owner's control or supervision over a job site.

Defendant moves for summary judgment on all claims. Judgment is sought on the claim pursuant to Section 240 of the Labor Law ("Section 240") on the ground that the work that Shannon was performing on the date of the accident does not fall within the class of activities protected by this statute. Judgment is sought with respect to the claim pursuant to Section 241 of the Labor Law ("Section 241") on the ground that Plaintiff has not alleged, as he must, the violation of a relevant specific regulation of the Department of Labor. Finally, judgment is sought on the claim pursuant to Section 200 of the Labor Law ("Section 200") and the negligence claim on the ground that Plaintiff can show neither Defendant's control over the work site nor notice of any dangerous condition.


I. Standard For Grant of ...

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