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.
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
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
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
I. Standard For Grant of ...