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Messina v. City of New York

Supreme Court of New York, Second Department

February 1, 2017

Alexander Messina III, appellant,
v.
City of New York, et al., respondents. Index No. 700997/12

          Silberstein, Awad & Miklos, P.C., Garden City, NY (Joseph P. Awad of counsel), for appellant.

          Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, NY (Mathew Ross, Judy C. Selmeci, and I. Elie Herman of counsel), for respondents.

          CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, ROBERT J. MILLER, BETSY BARROS, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), entered September 17, 2014, as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law § 200.

         ORDERED that the appeal from so much of the order as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law § 200 insofar as asserted against the defendants City of New York, New York City Department of Education, and New York City School Construction Authority is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 A.D.3d 144); and it is further, ORDERED that the order is affirmed insofar as reviewed, with one bill of costs.

         The plaintiff, a mason tender, allegedly sustained personal injuries while cutting cinder blocks when the wet saw he was using, which was supplied by his employer, jammed and cut his hand. The plaintiff was employed by nonparty D'Aprile, Inc., a subcontractor hired by the defendant Citnalta Construction Corp. (hereinafter Citnalta), to perform masonry work on a construction project at premises allegedly owned and operated by the defendants City of New York, New York City Department of Education, and New York City School Construction Authority. The plaintiff commenced this action alleging, inter alia, violations of Labor Law § 200.

         As a threshold matter, the appeal from so much of the order as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law § 200 insofar as asserted against the defendants City of New York, New York City Department of Education, and New York City School Construction Authority must be dismissed. The plaintiff did not oppose that branch of the motion and, therefore, is not aggrieved by that portion of the order (see CPLR 5511; Ponce-Francisco v Plainview-Old Bethpage Cent. School Dist., 83 A.D.3d 683, 684).

         "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Ortega v Puccia, 57 A.D.3d 54, 61; see Cody v State of New York, 82 A.D.3d 925, 926; McKee v Great Atl. & Pac. Tea Co., 73 A.D.3d 872, 873; Chowdhury v Rodriguez, 57 A.D.3d 121, 128; Markey v C.F.M.M. Owners Corp., 51 A.D.3d 734, 736). Underlying both standards is the authority of the defendant to rectify any dangerous or defective condition existing on the premises or to remedy any unsafe method or manner of work (see Comes v New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877; Chowdhury v Rodriguez, 57 A.D.3d at 129-130; Markey v C.F.M.M. Owners Corp., 51 A.D.3d at 736).

         When the methods or materials of the work are at issue, "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, 57 A.D.3d at 61; see Comes v New York State Elec. & Gas Corp., 82 N.Y.2d at 877; Ross v Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 505; Pilato v 866 U.N. Plaza Assoc., LLC, 77 A.D.3d 644, 646; McKee v Great Atl. & Pac. Tea Co., 73 A.D.3d at 874; Haider v Davis, 35 A.D.3d 363, 364). General supervisory authority at a work site, the right to stop a contractor's work if a safety violation is observed, or the authority to ensure compliance with safety regulations or the terms of a contract is insufficient to impose liability under Labor Law § 200 (see Opalinski v City of New York, 110 A.D.3d 694, 695-696; Torres v Perry St. Dev. Corp., 104 A.D.3d 672, 676; Ortega v Puccia, 57 A.D.3d at 62). Rather, the defendant must have had the "responsibility for the manner in which the [plaintiff's] work is performed" (Ortega v Puccia, 57 A.D.3d at 62; see Pilato v 866 U.N. Plaza Assoc., LLC, 77 A.D.3d at 646; McKee v Great Atl. & Pac. Tea Co., 73 A.D.3d at 874).

         Here, Citnalta established its prima facie entitlement to judgment as a matter of law by demonstrating that the subject accident was caused by the means and methods of the plaintiff's work, that the plaintiff's work was directed and controlled by his employer, and that it had no authority to exercise supervisory control over his work (see Opalinski v City of New York, 110 A.D.3d at 695; Koat v Consolidated Edison of N.Y., Inc.,98 A.D.3d 474, 475-476; McKee v Great Atl. & Pac. Tea Co., 73 A.D.3d at 873; Ortega v Puccia, 57 A.D.3d at 62; Markey v C.F.M.M. Owners Corp., 51 A.D.3d at 737; Haider v Davis, 35 A.D.3d at 364). The plaintiff's evidence of Citnalta's general supervision of the project and overall compliance with safety standards was insufficient to raise a triable issue of fact in opposition (see Opalinski v City of New York, 110 A.D.3d at 695; Koat v Consolidated Edison of N.Y., Inc., 98 A.D.3d at 475-476; Pilato v 866 U.N. Plaza Assoc., LLC, 77 A.D.3d at 646; McKee v Great Atl. & Pac. Tea Co., 73 A.D.3d at 874; Ortega v Puccia, 57 A.D.3d at 63; Markey v C.F.M.M. Owners Corp., 51 A.D.3d at 736-737). Further, contrary to the ...


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