WILLIAM NICHOLAS AND JOANN NICHOLAS PLAINTIFFS RESPONDENTS v. ET AL DEFENDANTS (2016)

Supreme Court, Appellate Division, Fourth Department.

WILLIAM J. NICHOLAS AND JOANN NICHOLAS, PLAINTIFFS–RESPONDENTS, v. WAL–MART STORES, INC., DEFENDANT–RESPONDENT -APPELLANT, MLB CONTRACTORS, INC., DEFENDANT–APPELLANT, ET AL., DEFENDANTS.

CA 15–01322

Decided: March 25, 2016

PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ.

SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR DEFENDANT–APPELLANT. O'CONNOR, O'CONNOR, BRESEE & FIRST, P.C., ALBANY (CAROL E. CRUMMEY OF COUNSEL), FOR DEFENDANT–RESPONDENT–APPELLANT. DOLCE PANEPINTO, P.C., BUFFALO (ANNE M. WHEELER OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: We affirm for reasons stated in the decision at Supreme Court. We write only to note that, “[w]here, as here, the worker's injuries result from a dangerous condition at the work site rather than from the manner in which the work is performed, the general contractor or owner ‘may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and [has created or has] actual or constructive notice of the dangerous condition’ “ (Steiger v. LPCiminelli, Inc., 104 AD3d 1246, 1248). Here, there is no dispute that defendant MLB Contractors, Inc. did not create the dangerous condition, but we conclude that it failed to meet its initial burden of establishing with respect to the common-law negligence cause of action and the Labor Law § 200 claim against it that it did not have control over the work site, or that it lacked actual or constructive notice of the allegedly dangerous condition (see Carrasco v. Weissman, 120 AD3d 531, 533; see also Bannister v. LPCiminelli, Inc., 93 AD3d 1294, 1295).

Frances E. Cafarell

Clerk of the Court

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