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Venezia v. State

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 2, 2008

DAMIAN VENEZIA, APPELLANT,
v.
STATE OF NEW YORK, RESPONDENT. (CLAIM NO. 109981)

In a claim to recover damages for personal injuries, the claimant appeals, as limited by his brief, from so much of an order of the Court of Claims (Ruderman, J.), dated June 27, 2007, as granted those branches of the defendant's motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action and so much of the Labor Law § 241(6) cause of action as was predicated upon alleged violations of 12 NYCRR 23-1.7(e) and 12 NYCRR 23-2.1.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON and ARIEL E. BELEN, JJ.

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

Labor Law § 241(6) imposes a non-delegable duty of reasonable care upon an owner or general contractor to provide reasonable and adequate protection to workers on the premises (see Rizzuto v L. A.Wenger Contr. Co., 91 NY2d 343). In order to establish liability under Labor Law § 241(6), a claimant is required to establish a breach of a rule or regulation of the Industrial Code which gives a specific, positive command (see Singleton v Citnalta Constr. Corp., 291 AD2d 393, 394).

Here, the claimant alleges that the State violated two provisions of the Industrial Code: 12 NYCRR 23-1.7(e) and 12 NYCRR 23-2.1. In opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether 12 NYCRR 23-1.7(e) was violated. The rebar upon which he tripped was an integral part of the construction (see O'Sullivan v IDI Constr. Co., Inc., 7 NY3d 805; Stafford v Viacom, Inc., 32 AD3d 388, 390; Furino v P & O Ports, 24 AD3d 502, 503-504; cf. Laboda v VJV Dev. Corp., 296 AD2d 441). Moreover, the plaintiff failed to raise a triable issue of fact with respect to his reliance on 12 NYCRR 23-2.1. That section of the Industrial Code lacks the specificity required to be a predicate for liability under Labor Law § 241(6) (see Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622; Fowler v CCS Queens Corp., 279 AD2d 505).

To be held liable under Labor Law § 200, "when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had... unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" (Ortega v Puccia,AD3d, 2008 NY Slip Op 08305 *5 [2d Dept 2008]). Here, the defendant submitted deposition testimony demonstrating that it had no authority to supervise or control the performance of the claimant's work, and the claimant failed to raise a triable issue of fact in opposition. On this basis, the Court of Claims properly granted those branches of the defendant's motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action (id.; see Chowdhury v Rodriguez,AD3d, 2008 NY Slip Op 08441 [2d Dept 2008]; see generally Zuckerman v City of New York, 49 NY2d 557, 562).

In view of the foregoing, we need not address the claimant's remaining contention.

SPOLZINO, J.P., ANGIOLILLO, DICKERSON and BELEN, JJ., concur.

20081202

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