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Kearney v. Dynegy, Inc.

Supreme Court of New York, Second Department

June 28, 2017

Louis Kearney, appellant,
v.
Dynegy, Inc., et al., defendants third-party plaintiffs-respondents; F.T. Silfies, Inc., third-party defendant-respondent. (Action No. 1) Louis Kearney, appellant,
v.
F.T. Silfies, Inc., respondent. (Action No. 2) Index Nos. 11060/10, 7938/12

          Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant in Action Nos. 1 and 2.

          Bartlett, McDonough & Monaghan, LLP, White Plains, NY (David C. Zegarelli and Peter J. Morris of counsel), for defendants third-party plaintiffs-respondents in Action No. 1.

          Cozen O'Connor, New York, NY (Vincent P. Pozzuto of counsel), for third-party defendant-respondent in Action No. 1 and respondent in Action No. 2.

          RUTH C. BALKIN, J.P., L. PRISCILLA HALL, SYLVIA O. HINDS-RADIX, FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In two related actions to recover damages for personal injuries, the plaintiff in Action Nos. 1 and 2 appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Bartlett, J.), dated July 22, 2014, as granted those branches of the separate motions of Dynegy, Inc., Dynegy Danskammer, LLC, Dynegy Roseton, LLC, and Dynegy Northeast Generation, Inc., the defendants third-party plaintiffs in Action No. 1, and F.T. Silfies, Inc., the third-party defendant in Action No. 1 and the defendant in Action No. 2, which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 240(1) and common-law negligence asserted against each of them in Action Nos. 1 and 2.

         ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

         The plaintiff fell while working at an electric power plant owned by Dynegy Danskammer, LLC (hereinafter Dynegy Danskammer). The plaintiff's employer, nonparty Pozament Corporation, had been hired as an independent contractor to remove fly ash, a waste by-product of coal combustion, from the plant. Fly ash was collected in two storage silos that were emptied daily and hauled by trucks to landfills. The plaintiff was descending a ladder affixed to the side of a tanker-trailer owned by F.T. Silfies, Inc. (hereinafter Silfies), that was being prepared to remove a load of fly ash when he slipped off the ladder. The plaintiff attributes his fall, in part, to the design of the hand railings on the ladder affixed to the tanker-trailer owned by Silfies. He also attributes his fall to the failure of Dynegy Danskammer to install a type of safety device known as a "SafeRack system, " which would have allowed workers to open the hatches on top of the tanker-trailer without using the affixed ladder.

         The plaintiff commenced an action to recover damages for personal injuries (Action No. 1) against Dynegy Danskammer and other Dynegy entities (hereinafter collectively the Dynegy defendants), alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. The Dynegy defendants, in turn, commenced a third-party action against Silfies. The plaintiff subsequently commenced a direct action (Action No. 2) against Silfies. Silfies moved, inter alia, for summary judgment dismissing the complaint in Action No. 2, and the Dynegy defendants separately moved for summary judgment dismissing the complaint in Action No. 1. The Supreme Court, inter alia, granted those branches of the separate motions which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 240(1) and common-law negligence in Action Nos. 1 and 2.

         "Labor Law § 200(1) is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" (Ortega v Puccia, 57 A.D.3d 54, 60; see Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352). "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 at 61; see Messina v City of New York, 147 A.D.3d 748, 749).

         Here, the plaintiff alleges that his accident was caused by the defective design of the ladder affixed to the tanker-trailer owned by Silfies, and by the failure of Dynegy Danskammer to install a particular safety device. Thus, the accident "did not arise from a defective condition inherent on the... property, " but rather from alleged defects in the methods or materials utilized by the plaintiff to perform his work (Duarte v State of New York, 57 A.D.3d 715, 716; see Messina v City of New York, 147 A.D.3d at 749; McKee v Great Atl. & Pac. Tea Co., 73 A.D.3d 872, 873-874; Jenkins v Walter Realty, Inc., 71 A.D.3d 954, 954). "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'" (Messina v City of New York, 147 A.D.3d at 749, quoting Ortega v Puccia, 57 A.D.3d at 61; see Rodriguez v Trades Constr. Servs. Corp., 121 A.D.3d 962, 964-965; Pilato v 866 U.N. Plaza Assoc., LLC, 77 A.D.3d 644, 646). A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed (see Ortega v Puccia, 57 A.D.3d at 62).

         Here, the Dynegy defendants and Silfies each established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence asserted against each of them by demonstrating that they did not have the authority to supervise or control the performance of the plaintiff's work (see Thomas v Benton, 112 A.D.3d 812, 812-813; Martinez v City of New York, 73 A.D.3d 993, 998; Ortega v Puccia, 57 A.D.3d at 62; Natale v City of New York, 33 A.D.3d 772, 773). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). Accordingly, the Supreme Court properly granted those branches of the separate motions which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence in Action Nos. 1 and 2.

         The Supreme Court also properly granted those branches of the separate motions which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 240(1) in Action Nos. 1 and 2. The Dynegy defendants and Silfies each established, prima facie, that they were entitled to judgment as a matter of law dismissing the Labor Law § 240(1) causes of action asserted against each of them by showing that the plaintiff's work did not constitute erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure within the meaning of Labor Law § 240(1) (see Labor Law § 240[1]; Esposito v New York City Indus. Dev. Agency,1 N.Y.3d 526, 528; Tserpelis v Tamares Real Estate Holdings, Inc.,147 A.D.3d 1001, 1002). The Dynegy defendants and Silfies each established, prima facie, that the work constituted merely routine maintenance of the storage silos (see Esposito v New York City Indus. Dev. Agency, 1 N.Y.3d at 528; Sobenis v Harridge House Assoc. of 1984,111 A.D.3d 917; Wicks v Trigen-Syracuse Energy Corp.,64 A.D.3d 75, 78-79; Azad v 270 5th Realty Corp.,46 A.D.3d 728, 730). Moreover, Silfies established, prima facie, that it was not an owner, ...


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