DeROSA v. (and a second third-party action). (2000)

Supreme Court, Appellate Division, Second Department, New York.

Domenick DeROSA, appellant, v. UNION SQUARE 14TH STREET ASSOCIATES, et al., defendants third-party plaintiffs-respondents, Integrated Resources, Inc., et al., defendants-respondents; Fujitec America, Inc., third-party defendant fourth-party plaintiff-respondent; Certified Industrial Services, Inc., fourth-party defendant-respondent (and a second third-party action).

Decided: February 22, 2000

GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, DANIEL W. JOY and HOWARD MILLER, JJ.

DiJoseph, Portegello & Schuster, P.C., New York, N.Y. (Arnold E. DiJoseph III of counsel), for appellant. Turner & Owen, New York, N.Y. (Sherman B. Kerner of counsel), for defendants third-party plaintiffs-respondents. Galvano & Xanthakis, P.C., New York, N.Y. (Steven F. Granville and Anthony Xanthakis of counsel), for defendant-respondent Integrated Resources, Inc. Harrington, Ocko & Monk, LLP, White Plains, N.Y. (Jeremy M. Klausner of counsel), for defendants-respondents Nico Construction Co., Inc., Gotham Construction Corporation, and Gotham Interiors, Inc. Quirk and Bakalor, P.C., New York, N.Y. (Pablo A. Sosa and Timothy J. Keane of counsel), for defendant-respondent Tishman Construction Corporation of New York. Morrison, Mahoney & Miller, LLP, New York, N.Y. (Brian P. Heermance of counsel), for third-party defendant fourth-party plaintiff-respondent Fujitec America, Inc. Chesney & Murphy, LLP, Baldwin, N.Y. (Gregory E. Brower of counsel), for fourth-party defendant-respondent Certified Industrial Services, Inc.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated May 15, 1998, as granted those branches of the respective motions of the defendants and the fourth-party defendant which were for summary judgment dismissing so much of the complaint as sought to recover damages for violation of Labor Law § 200 or for common-law negligence.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The Supreme Court properly determined that the proponents of the respective motions for summary judgment demonstrated that they did not have actual or constructive notice of the allegedly defective condition which caused the plaintiff's injuries. The court also properly determined that with the exception of the fourth-party defendant, the movants did not exercise supervision or control over the plaintiff's work. Although the fourth-party defendant supervised the plaintiff's work, it had no control over the allegedly dangerous condition (see, Cuartas v. Kourkoumelis, 265 A.D.2d 293, 696 N.Y.S.2d 475; Giambalvo v. Chemical Bank, 260 A.D.2d 432, 687 N.Y.S.2d 728; Rosemin v. Oved, 254 A.D.2d 343, 679 N.Y.S.2d 70; Akins v. Baker, 247 A.D.2d 562, 669 N.Y.S.2d 63). The plaintiff failed to present sufficient evidence to raise a triable issue regarding these issues. Accordingly, those branches of the respective motions of the defendants and the fourth-party defendant which were for summary judgment dismissing so much of the complaint as sought to recover damages for violation of Labor Law § 200 or for common-law negligence were properly granted.

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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