GRIFFIN v. << (2005)

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered on or about June 4, 2003, insofar as it denied appellants' respective motions for summary judgment, unanimously affirmed, without costs.

 While there is no evidence that the Transit Authority, the owner of the work site where plaintiff's decedent was allegedly injured, controlled or directed the manner of the decedent's work, such control or direction is not necessary to establish liability under Labor Law § 200 where the injury arises from the condition of the workplace created by or known to the owner, rather than the method used in performing the work (see Murphy v. Columbia Univ., 4 A.D.3d 200, 202, 773 N.Y.S.2d 10 [2004];  Roppolo v. Mitsubishi Motor Sales of Am., Inc., 278 A.D.2d 149, 718 N.Y.S.2d 322 [2000] ).   Here, summary judgment was properly denied since there are issues of fact as to whether the Transit Authority had notice of the alleged dangerous condition.

 The court properly concluded that the decedent, who at the time of the accident was performing punchlist work, testing recently installed fans, was engaged in construction for purposes of Labor Law § 240(1) and § 241(6) (see Prats v. Port Auth. of New York & New Jersey, 100 N.Y.2d 878, 882, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003];  Greenfield v. Macherich Queens Ltd. Partnership, 3 A.D.3d 429, 771 N.Y.S.2d 498 [2004];  Campisi v. Epos Contr. Corp., 299 A.D.2d 4, 6, 747 N.Y.S.2d 218 [2002] ).   There are, however, issues of fact as to whether the structure from which he fell was a permanently affixed ladder which provided the sole access to his work site and therefore a “device” within the meaning of Labor Law § 240(1) (see e.g. Priestly v. Montefiore Med. Ctr., 10 A.D.3d 493, 781 N.Y.S.2d 506 [2004];  Crimi v. Neves Assoc., 306 A.D.2d 152, 153, 761 N.Y.S.2d 186 [2003] ), or whether it was a permanent staircase not designed as a safety device to afford protection from an elevation-related risk and therefore outside the coverage of the statute (see e.g. Norton v. Park Plaza Owners Corp., 263 A.D.2d 531, 694 N.Y.S.2d 411 [1999];  Williams v. City of Albany, 245 A.D.2d 916, 666 N.Y.S.2d 800 [1997], appeal dismissed 91 N.Y.2d 957, 671 N.Y.S.2d 717, 694 N.E.2d 886 [1998];  Dombrowski v. Schwartz, 217 A.D.2d 914, 629 N.Y.S.2d 924 [1995] ).

We have considered appellants' remaining arguments and find them unavailing.