Dell
& Dean, PLLC (Mischel & Horn, P.C., New York, NY
[Scott T. Horn and Naomi M. Taub], of counsel), for
appellants.
Carroll McNulty & Kull LLC, New York, NY (Frank J. Wenick
and Rita S. Menchel of counsel), for respondent.
LEONARD B. AUSTIN, J.P. SHERI S. ROMAN ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an
action to recover damages for personal injuries, etc., the
plaintiffs appeal from an order of the Supreme Court, Nassau
County (Arthur M. Diamond, J.), entered September 8, 2015.
The order granted the defendant's motion for summary
judgment dismissing the amended complaint.
ORDERED
that the order is affirmed, with costs.
In July
2010, the defendant entered into a contract to build a
two-story home in Cold Spring Harbor. Peter Saros, the vice
president of the defendant, testified at a deposition that
nonparty Kleet Lumber (hereinafter Kleet) provided the
defendant with construction materials, including lumber, trim
material, and roofing material. The defendant did not always
have someone on hand to accept a delivery of materials from
Kleet, and Kleet would simply drop off the materials at the
construction site. Saros testified that Kleet would deliver
materials on pallets, and would usually pick up the empty
pallets from the same location to which they had been
delivered. He testified that, to his knowledge, no one other
than Kleet employees ever moved the empty pallets.
On
November 30, 2010, the plaintiff John Gargan (hereinafter the
injured plaintiff), a Kleet employee, was delivering three or
four bundles of molding and trim material to the construction
site. He testified at a deposition that he intended to
deliver the materials to the garage, but the path was blocked
by a half-full dumpster and a stack of empty pallets. He
testified that each empty pallet was 18 feet long, 4 feet
wide, and 6 inches high, and he decided to move the pallets
by flipping them. According to the injured plaintiff, he
successfully flipped the first pallet. As he was flipping the
second pallet, he lost his footing and the pallet started to
fall back toward him. He extended his left arm to stop the
falling pallet and felt a "pop" in his arm when the
pallet made contact with his hand. Following the accident, he
completed the delivery by carrying the bundles in his right
arm and placing them on the floor in the garage, without
moving the remaining empty pallets.
The
injured plaintiff, and his wife suing derivatively, commenced
this action to recover damages for personal injuries and loss
of services. The amended complaint asserted causes of action
alleging violations of Labor Law §§ 200 and 241(6),
and common-law negligence. The defendant moved for summary
judgment dismissing the amended complaint, submitting in
support the deposition testimony of the injured plaintiff and
Saros. The Supreme Court granted the defendant's motion,
and the plaintiffs appeal.
We
agree with the Supreme Court's determination to grant
those branches of the defendant's motion which were for
summary judgment dismissing the causes of action alleging
common-law negligence and a violation of Labor Law §
200. "Labor Law § 200 is a codification of the
common-law duty to exercise due care in providing a safe
place to work" (Torres v City of New York, 127
A.D.3d 1163, 1165). "Where a claim is based on an
alleged dangerous condition on the premises, an owner or
contractor is liable where it created the dangerous condition
or had actual or constructive notice of its existence"
(Niewojt v Nikko Constr. Corp., 139 A.D.3d 1024,
1025). Here, contrary to the plaintiffs' contention, the
defendant established its prima facie entitlement to judgment
as a matter of law by submitting evidence that the injured
plaintiff's alleged injury did not result from a physical
defect at the construction site, and that the injury resulted
solely from the manner in which the injured plaintiff chose
to deliver the bundles of molding and trim material (see
Stamatatos v Stamatatos, 95 A.D.3d 1297; McKee v
Great Atl. & Pac. Tea Co., 73 A.D.3d 872, 873). The
plaintiffs failed to raise a triable issue of fact in
opposition. Moreover, the plaintiffs do not argue that the
defendant had the authority to supervise or control the
injured plaintiff's work (see generally Ortega v
Puccia, 57 A.D.3d 54, 61).
We also
agree with the Supreme Court's determination to grant
that branch of the defendant's motion which was for
summary judgment dismissing the cause of action alleging a
violation of Labor Law § 241(6). "Labor Law §
241(6) imposes a nondelegable duty on owners, contractors,
and their agents to provide a safe workplace to workers, and
applies to all areas in which construction, excavation or
demolition work is being performed. Pursuant to that duty,
owners, contractors, and their agents must comply with those
provisions of the Industrial Code that set forth specific
requirements or standards" (Torres v City of New
York, 127 A.D.3d at 1166 [internal quotation marks
omitted]). Here, the evidence submitted by the defendant
established, prima facie, that the area where the injured
plaintiff allegedly was injured did not constitute a
"passageway" within the meaning of 12 NYCRR
23-1.7(e)(1), and that there was no evidence of any tripping
or slipping hazards within the meaning of 12 NYCRR 23-1.7(d)
and (e) (see Crousett v Chen, 102 A.D.3d 448;
McKee v Great Atl. & Pac. Tea Co., 73 A.D.3d at
873; cf. Aragona v State of New York, 147 A.D.3d
808, 809; Lois v Flintock Constr. Servs., LLC, 137
A.D.3d 446, 446-447). The evidence submitted by the defendant
also established that 12 NYCRR 23-2.1(a)(1) is not applicable
under the circumstances of this case (see Guallpa v Leon
D. Dematteis Constr. Corp., 121 A.D.3d 416, 417). The
plaintiffs failed to raise a triable issue of fact in
opposition.
Accordingly,
we agree with the Supreme Court's determination to grant
the defendant's motion for summary ...