Appeal from an order of the Supreme Court, Erie County (Sheila A. DiTullio, A.J.), entered May 15, 2012.
Steiger v LPCiminelli, Inc.
Appellate Division, Fourth Department
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.
Released on March 15, 2013
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.
The order, inter alia, denied the motion of defendants for summary judgment dismissing the second amended complaint.
It is hereby ORDERED that the order so appealed from is modified on the law by granting those parts of defendants' motion for
summary judgment dismissing the Labor Law § 200 and common-law negligence claims against defendant LPCiminelli, Inc.
insofar as they are based upon actual notice and against defendant Orchard Park CCRC in their entirety, and for summary judgment dismissing the
Labor Law § 241 (6) cause of action, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when he tripped and fell while exiting a portable toilet that was located on land owned by defendant Orchard Park CCRC (Orchard Park). Orchard Park hired defendant LPCiminelli, Inc. (Ciminelli) to act as the general contractor or construction manager for the construction of Fox Run at Orchard Park, a retirement community (Fox Run). Plaintiff was employed as a service technician by a telephone company (employer), which contracted directly with Orchard Park for the installation of fiber optic telephone, Internet, and cable television systems at Fox Run. On the date of the accident, plaintiff was working inside Fox Run's healthcare center building (hereafter, health center). After finishing his work for the morning, plaintiff and a co-worker planned to drive to the nearby office of their employer for lunch. Plaintiff and the co-worker left the health center and walked into the parking lot in front of the building, where their trucks were parked. Before leaving for lunch, plaintiff decided to use one of the portable toilets located on the sidewalk adjacent to the parking lot. The toilets were set back approximately 1½ to 2 feet from the sidewalk curb. Plaintiff stepped onto the curb from the parking lot and entered one of the toilets. When plaintiff exited the toilet, he took a step with his right foot onto the sidewalk, rolled his left ankle on the edge of the curb, and fell into the parking lot, breaking his right wrist and injuring his left ankle.
Defendants appeal from an order that, inter alia, denied their motion for summary judgment dismissing the second amended complaint. Contrary to the contention of defendants, we conclude that Supreme Court properly denied that part of their motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against Ciminelli except insofar as those claims are based upon actual notice. Where, as here, the worker's injuries result from a dangerous condition at the work site rather than from the manner in which the work is performed, the general contractor or owner "may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and [has created or has] actual or constructive notice of the dangerous condition" (Ozimek v Holiday Val., Inc., 83 AD3d 1414, 1416 [internal quotation marks omitted]; see Bannister v LPCiminelli, Inc., 93 AD3d 1294, 1295; Rodriguez v BCRE 230 Riverdale, LLC, 91 AD3d 933, 934-935; Selak v Clover Mgt., Inc., 83 AD3d 1585, 1587; McCormick v 257 W. Genesee, LLC, 78 AD3d 1581, 1582). Thus, "[d]efendants, as the parties seeking summary judgment dismissing those claims, were required to establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor had actual or constructive notice of the dangerous condition on the premises' " (Ozimek, 83 AD3d at 1416; see Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708-709; Perry v City of Syracuse Indus. Dev. Agency, 283 AD2d 1017, 1017).
We conclude that defendants failed to meet that burden with respect to Ciminelli with the exception of actual notice. Defendants failed to demonstrate that Ciminelli lacked any supervisory control over the general condition of the premises inasmuch as their own submissions established, inter alia, that Ciminelli's project superintendent and project manager had offices on the premises and were present at the construction site on a daily basis, held coordination meetings with field personnel, and required all contractors and subcontractors to sign a safety form (see Mott v Tromel Constr. Corp., 79 AD3d 829, 830-831). Defendants likewise failed to establish that Ciminelli did not create the allegedly dangerous condition, i.e., the placement of the portable toilets in proximity to the curb. It is undisputed that Ciminelli was responsible for the placement of the portable toilets, and Ciminelli failed to demonstrate as a matter of law that the placement of the portable toilets did not constitute a dangerous condition. Indeed, the record establishes the potential danger created by that placement. Photographs of the accident scene show that the toilets were located a short distance from the curb. Further, plaintiff's co-worker confirmed that, on the date of the accident, he "stumbled" on his way out of the portable toilet, having forgotten that "there was an extra step there." After plaintiff's accident, the portable toilets were relocated, and the co-worker testified that he "didn't have any more problems stepping in and out of them."
Defendants also failed to establish that Ciminelli lacked "constructive notice of the condition, i.e., they failed to establish as a matter of law that the condition was not visible and apparent or that it had not existed for a sufficient length of time before the accident to permit [Ciminelli] or [its] employees to discover and remedy it" (Finger v Cortese, 28 AD3d 1089, 1091; see generally Gordon v American Museum of Natural History, 67 NY2d 836, 837-838). The portable toilets had been located on the sidewalk for at least a week prior to the accident, and Ciminelli representatives were present at the work site on a daily basis. Moreover, the photographs in the record establish that the potential danger created by the placement of the portable toilets, i.e., their proximity to the sidewalk curb, is readily apparent.
We agree with defendants, however, that they met their burden of establishing Ciminelli's lack of actual notice as a matter of law "[b]y showing that it did not receive any complaints about the area prior to plaintiff's fall" (Quinn v Holiday Health & Fitness Ctrs. of N.Y., Inc., 15 AD3d 857, 857; see Ferrington v Dudkowski, 49 AD3d 1267, 1267) and that plaintiff failed to raise a triable issue of fact with respect thereto (see Ferrington, 49 AD3d at 1267; see generally Zuckerman v City of New York, 49 NY2d 557, 562). Ciminelli's project superintendent and project manager testified at their depositions that they did not receive any complaints about the placement of the toilets on the sidewalk and that they were not aware of any incidents involving the toilets prior to the accident, and plaintiff submitted no proof to the contrary (see Quigley v Burnette, 100 AD3d 1377, 1378; Constanzo v Woman's Christian Assn. of Jamestown, 92 AD3d 1256, 1257). We therefore modify the order by granting that part of defendants' motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against Ciminelli insofar as they are premised upon actual notice.
We further conclude that defendants met their burden with respect to the Labor Law § 200 and common-law negligence claims against Orchard Park. Specifically, defendants established that Orchard Park "lacked control over the general condition of the premises and neither created nor had actual or constructive notice of any allegedly dangerous condition thereof, and . . . plaintiff failed to raise a triable issue of fact" (Hennard v Boyce, 6 AD3d 1132, 1133). The executive director of Fox Run testified at his deposition that Orchard Park had no responsibility for directing or controlling the construction work, and had no responsibility for site safety. Orchard Park did not have a representative on the job site on a regular basis and was not involved in acquiring or placing the portable toilets at the site. We ...