ROMANG v. WELSBACH ELECTRIC CORPORATION (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), entered October 3, 2006, which granted the motion of the defendant Welsbach Electric Corporation for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

 Labor Law § 200 codifies the common-law duty of an owner or employer to provide employees with a safe place to work (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Jock v. Fien, 80 N.Y.2d 965, 967, 590 N.Y.S.2d 878, 605 N.E.2d 365;  Smith v. 499 Fashion Tower, LLC, 38 A.D.3d 523, 524, 833 N.Y.S.2d 112;  Brown v. Brause Plaza, LLC, 19 A.D.3d 626, 628, 798 N.Y.S.2d 501;  Linares v. United Mgt. Corp., 16 A.D.3d 382, 384, 791 N.Y.S.2d 165).   This provision applies to owners, contractors, and their agents (see Paladino v. Society of N.Y. Hosp., 307 A.D.2d 343, 344-345, 762 N.Y.S.2d 637;  Yong Ju Kim v. Herbert Constr. Co., 275 A.D.2d 709, 712-713, 713 N.Y.S.2d 190).   “[L]iability against a subcontractor based upon a claimed violation of Labor Law § 200 and common-law negligence requires a showing that authority was conferred on the subcontractor to supervise and control the activity which produced the injury” (Kehoe v. Segal, 272 A.D.2d 583, 584, 709 N.Y.S.2d 817;  see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  Lopes v. Interstate Concrete, 293 A.D.2d 579, 580, 741 N.Y.S.2d 73).

 Here, in opposition to the prima facie showing of the defendant Welsbach Electric Corporation (hereinafter the defendant) of entitlement to judgment as a matter of law with respect to the common-law negligence and Labor Law § 200 causes of action insofar as asserted against it, the plaintiff failed to raise a triable issue of fact as to whether the defendant exercised sufficient control over the activity which brought about her injury (see Zervos v. City of New York, 8 A.D.3d 477, 481, 779 N.Y.S.2d 106;  Lopes v. Interstate Concrete, 293 A.D.2d at 580, 741 N.Y.S.2d 73;  Ryder v. Mount Loretto Nursing Home, 290 A.D.2d 892, 894, 736 N.Y.S.2d 792).   Accordingly, the Supreme Court correctly granted the defendant's motion for summary judgment dismissing those causes of action insofar as asserted against it.

 Further, contrary to the plaintiff's contention, the defendant's subcontract agreement with nonparty Modern Continental Construction Company, Inc. (hereinafter Modern), is neither ambiguous nor contradictory (see Muzak Corp. v. Hotel Taft Corp., 1 N.Y.2d 42, 46, 150 N.Y.S.2d 171, 133 N.E.2d 688;  Sumitomo Bank of N.Y. Trust Co. v. Town of N. Hempstead, 278 A.D.2d 402, 404, 717 N.Y.S.2d 363;  Aguirre v. City of New York, 214 A.D.2d 692, 693-694, 625 N.Y.S.2d 597;  Matter of Meer v. Bugliarello, 147 A.D.2d 568, 568-569, 537 N.Y.S.2d 617).   Moreover, the exclusion provision in the subcontract agreement, which, inter alia, specifically excludes the defendant from any obligations related to excavations, such as the hole into which the plaintiff fell, is not against public policy, as it does not authorize indemnification for Modern's own negligence (cf. General Obligations Law § 5-322.1;  Brooks v. Judlau Contracting, Inc., 39 A.D.3d 447, 449-450, 833 N.Y.S.2d 223).

 Summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action was also properly awarded to the defendant since the plaintiff's work at the time of the accident was wholly unrelated to an elevation-related hazard and therefore not within the purview of Labor Law § 240(1) (see Aquilino v. E.W. Howell Co., Inc., 7 A.D.3d 739, 740, 776 N.Y.S.2d 893;  Edwards v. C & D Unlimited, 289 A.D.2d 370, 372, 735 N.Y.S.2d 141), and the Industrial Code regulations upon which the plaintiff relies for her Labor Law § 241(6) cause of action (12 NYCRR 23-3.3[j][2] and 23-1.7[b] [1] ) are inapplicable under the circumstances (compare Davidson v. E.Q.K. Green Acres, 298 A.D.2d 546, 547, 749 N.Y.S.2d 47, with Payne v. City of New Rochelle, 40 A.D.3d 608, 609, 835 N.Y.S.2d 425).