LINDEMANN v. VNO 100 WEST 33RD STREET LLC (2024)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered June 27, 2022, which, to the extent appealed from, granted defendants’ motion for summary judgment dismissing the complaint against them, unanimously affirmed, without costs.

The court properly granted defendants’ motion for summary judgment. As for plaintiff's Labor Law § 241(6) cause of action, predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(f), defendants established that no vertical passage as contemplated by that Code provision was required in this instance (see Francescon v. Gucci Am., Inc., 105 A.D.3d 503, 504, 964 N.Y.S.2d 8 [1st Dept. 2013]; cf. McGarry v. CVP 1 LLC, 55 A.D.3d 441, 441-442, 866 N.Y.S.2d 76 [1st Dept. 2008]). In opposition, plaintiff failed to raise a triable issue of fact as to whether a vertical passage was required.

Plaintiff's Labor Law § 200 and common-law negligence causes of action were properly dismissed since the raised flooring and protruding metal pedestal which allegedly caught plaintiff's foot and caused him to fall were not defects inherent in the property, but were created by the subcontractor's ongoing work and the manner in which it was performed (see Ruisech v. Structure Tone Inc., 208 A.D.3d 412, 415, 174 N.Y.S.3d 367 [1st Dept. 2022];  Villanueva v. 114 Fifth Ave. Assoc. LLC, 162 A.D.3d 404, 406, 78 N.Y.S.3d 87 [1st Dept. 2018];  Dalanna v. City of New York, 308 A.D.2d 400, 400, 764 N.Y.S.2d 429 [1st Dept. 2003]).  Defendants further established that they did not exercise supervision and control over the injury-causing work (see Williams v. River Place II, LLC, 145 A.D.3d 589, 590, 43 N.Y.S.3d 347 [1st Dept. 2016];  Dalanna at 400, 764 N.Y.S.2d 429).  In opposition, plaintiff failed to raise a triable issue of fact as to defendants’ supervision and control.

We have considered plaintiff's remaining arguments and find them unavailing.