- May 2, 2019
& Dean, PLLC, Garden City, NY (Michael D. Schultz of
counsel), for appellant.
Spellman Barrett, LLP, Smithtown, NY (John M. Denby of
counsel), for respondent.
C. DILLON, J.P. CHERYL E. CHAMBERS COLLEEN D. DUFFY BETSY
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from a judgment of the Supreme Court,
Suffolk County (Joseph C. Pastoressa, J.), entered February
20, 2018. The judgment, insofar as appealed from, upon an
order of the same court entered February 6, 2018, inter alia,
granting that branch of the motion of the defendant Town of
Southampton which was for summary judgment dismissing the
complaint insofar as asserted against it, is in favor of that
defendant and against the plaintiff dismissing the complaint
insofar as asserted against that defendant.
that the judgment is affirmed insofar as appealed from, with
plaintiff, a technician employed by nonparty contractor CSC
Holdings, LLC, alleges that he was injured when he fell
approximately 15 feet from a ladder while performing work on
a utility pole located on or near property in Quogue. At the
time of the accident, the plaintiff was performing repair
work and installing a wi-fi unit on the utility pole.
According to the plaintiff, he had wrapped a metal wire
attached to the utility pole around the ladder and then
leaned the ladder against other wires attached to the pole.
The plaintiff alleged that, as he climbed down the ladder,
the metal wire broke and caused him to fall from the ladder.
Although the property on which the utility pole is located is
jointly owned by the defendants Town of Southampton and the
Village of Quogue, the Town does not own the utility pole or
wires in question.
plaintiff commenced this action to recover damages for
personal injuries against, among others, the Town, alleging
violations of Labor Law §§ 200, 240(1), and 241(6),
and common-law negligence. Before discovery was conducted,
the Town moved, among other things, for summary judgment
dismissing the complaint insofar as asserted against it. The
Supreme Court granted that branch of the Town's motion,
and judgment was entered, inter alia, dismissing the
complaint insofar as asserted against the Town. The plaintiff
appeals from so much of the judgment as dismissed his
complaint insofar as asserted against the Town.
Law § 200 is a codification of the common-law duty of an
owner or general contractor to maintain a safe construction
site'" (Olarte v Morgan, 148 A.D.3d 918,
919, quoting Bennett v Hucke, 131 A.D.3d 993, 995,
aff'd 28 N.Y.3d 964). "'To be held
liable under Labor Law § 200 for injuries arising from
the manner in which work is performed, a defendant must have
authority to supervise or control the methods or materials of
the injured plaintiff's work'" (Olarte v
Morgan, 148 A.D.3d at 919, quoting Pacheco v
Smith, 128 A.D.3d 926, 926; see Guallpa v Canarsie
Plaza, LLC, 144 A.D.3d 1088, 1092).
Law § 240(1) imposes a nondelegable duty upon owners and
contractors to provide or cause to be furnished certain
safety devices for workers at an elevated work site,
including the provision of safety equipment to protect
workers against falling from a height, and the absence of
appropriate safety devices constitutes a violation of the
statute as a matter of law (see McCarthy v Turner
Constr., Inc., 17 N.Y.3d 369, 374; Ross v
Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500;
Riccio v NHT Owners, LLC, 51 A.D.3d 897, 898).
Similarly, Labor Law § 241(6) imposes a non-delegable
duty upon "[a]ll contractors and owners and their
agents" to provide reasonable and adequate protection
and safety to persons employed in construction work (see
Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at
term owner is not limited to the titleholder of the property
where the accident occurred and encompasses a person who has
an interest in the property and who fulfilled the role of
owner by contracting to have work performed for his [or her]
benefit" (Scaparo v Village of Ilion, 13 N.Y.3d
864, 866 [internal quotation marks omitted]; see
Copertino v Ward, 100 A.D.2d 565, 566). A noncontracting
owner, one who does not hire contractors or agents to
accomplish the work, will be liable under the Labor Law only
where there exists "some nexus between the owner and the
worker, whether by a lease agreement or grant of an easement
or other property interest" (Morton v State of New
York, 15 N.Y.3d 50, 56 [internal quotation marks
omitted]; see Scaparo v Village of Ilion, 13 N.Y.3d
at 866; Abbatiello v Lancaster Studio Assoc., 3
N.Y.3d 46, 51).
the accident allegedly arose from the manner in which the
work was performed. The Town established its prima facie
entitlement to judgment as a matter of law through evidence
demonstrating that it did not contract to have the work
performed, did not have the authority to supervise or control
the work being done, and did not have a sufficient nexus to
the plaintiff since it did not have a property interest in
the utility pole and wire on which the plaintiff was working
at the time of the accident (see Scaparo v Village of
Ilion, 13 N.Y.3d at 866; Abbatiello v Lancaster
Studio Assoc., 3 N.Y.3d at 51; Guryev v
Tomchinsky, 87 A.D.3d 612, 614, affd 20 N.Y.3d
194; Lacey v Long Is. Light. Co., 293
A.D.2d 718, 719; Wendel v Pillsbury Corp., 205
A.D.2d 527, 528; Mangiameli v Galante, 171
A.D.2d 162, 164). In opposition, the plaintiff
failed to raise a triable issue of fact.
the plaintiffs contention that the motion should have been
denied as premature is without merit. "A party
contending that a motion for summary judgment is premature is
required to demonstrate that additional discovery might lead
to relevant evidence or that the facts essential to oppose
the motion are exclusively within the knowledge and control
of the movant" (Haidhaqi v Metropolitan Transp.
Auth.,153 A.D.3d 1328, 1329 [internal quotation marks
omitted]; see Burlington Ins. Co. v Casur Corp., 123
A.D.3d 965, 965-966). The mere hope or speculation that
evidence to defeat a motion for summary judgment may be
uncovered during the discovery process is insufficient to
deny a motion for summary judgment (see Burlington Ins.
Co. v Casur Corp., 123 ...