TORNELLO v. Blitman Building Corporation, Defendant. (2004)

Order, Supreme Court, Bronx County (Anne E. Targum, J.), entered on or about December 2, 2003, which, inter alia, granted plaintiff's motion to amend the complaint to add a new defendant, and denied defendants-appellants' cross motion for summary judgment insofar as it sought to dismiss plaintiff's Labor Law § 200 and § 241(6) claims as well as his claim for common-law negligence, unanimously modified, on the law, to grant the cross motion to the extent of dismissing plaintiff's Labor Law § 200 and common-law negligence claims, and otherwise affirmed, without costs.

 We reject defendants' contention that the activity in which plaintiff was engaged at the time of his accident, i.e., installing carpet as a part of the process of finishing a new house, does not fall within the protective ambit of Labor Law § 241(6).   The installation of carpet in the aforementioned context is construction work (see Industrial Code [12 NYCRR] § 23-1.4[b][13] ) and, as such, is protected under Labor Law § 241(6) (see Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 N.Y.2d 343, 348, 670 N.Y.S.2d 816, 693 N.E.2d 1068).   Also without merit is defendants' contention that § 241(6) is inapplicable because plaintiff's accident did not occur in an interior construction site passageway.   Plaintiff did not lose the statute's protection when, at the time of the accident, he traversed the exterior defined concrete walkway leading to his work area (see Kane v. Coundorous, 293 A.D.2d 309, 311, 739 N.Y.S.2d 711;  and cf. Morra v. White, 276 A.D.2d 536, 537, 714 N.Y.S.2d 510).   Plaintiff's Labor Law § 200 and common-law negligence claims should, however, have been dismissed because there was no evidence that defendants-appellants supervised or controlled plaintiff's work (see id. at 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  cf. Rizzo v. HRH Constr. Corp., 301 A.D.2d 426, 752 N.Y.S.2d 875).

Defendants' argument that the relation back doctrine was not appropriately utilized to add Changebridge Construction Corporation as a defendant is premised upon the contention that plaintiff has no viable Labor Law § 241(6) claim;  it is implicitly conceded that if there were a viable § 241(6) claim, the newly added defendant, a contractor, and defendant property owner Beaver Brook Associates would be united in interest in contesting it.   We have, however, sustained plaintiff's § 241(6) claim and, accordingly, defendants' challenge to the addition of Changebridge Construction as a defendant must fail.