VIANA v. Bellco Enterprises, Inc., respondent. (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Linda J. Kevins, J.), dated March 28, 2024.  The order, insofar as appealed from, granted that branch of the motion of the defendant Bellco Enterprises, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2016, the plaintiff's decedent was killed in an accident while working on premises owned by the defendant Bellco Enterprises, Inc. (hereinafter Bellco), when he allegedly was struck by a payloader.  The plaintiff commenced this action against, among others, Bellco, alleging that Bellco was negligent and seeking, inter alia, to recover damages for wrongful death.

Bellco moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it.  In an order dated March 28, 2024, the Supreme Court, inter alia, granted that branch of Bellco's motion.  The plaintiff appeals.

“Liability on common-law negligence ․ causes of action generally falls into two broad categories:  instances involving the manner in which the work is performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site” (Nusio v. Legend Autorama, Ltd., 219 A.D.3d 842, 843, 196 N.Y.S.3d 87 [internal quotation marks omitted]).  Where “a claim arises out of the means and methods of the work, a defendant may be held liable for common-law negligence ․ only if he or she had the authority to supervise or control the performance of the work” (Roblero v. Bais Ruchel High Sch., Inc., 175 A.D.3d 1446, 1448, 109 N.Y.S.3d 329 [internal quotation marks omitted];  see Walsh v. Kenny, 219 A.D.3d 1555, 1557, 198 N.Y.S.3d 90).  “A defendant has the authority to supervise or control the work ․ when that defendant bears the responsibility for the manner in which the work is performed” (Abelleira v. City of New York, 201 A.D.3d 679, 680, 156 N.Y.S.3d 872 [internal quotation marks omitted]).

Here, to the extent that the plaintiff's claims are based on the manner in which the work was performed, Bellco established, prima facie, that it did not have the authority to supervise or control the means and method of that work (see Hamm v. Review Assoc., LLC, 202 A.D.3d 934, 939, 163 N.Y.S.3d 223).  Bellco's submissions established that the decedent was an independent contractor who was working with one of Bellco's tenants on Bellco's premises and that Bellco had no oversight or control over the work.

Further, to the extent that the plaintiff's claims are based on an alleged dangerous condition on the premises, Bellco established, prima facie, that there was no dangerous condition on the premises and that, in any event, “it did not create the allegedly dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it” (Verderosa v. County of Suffolk, 226 A.D.3d 845, 847, 209 N.Y.S.3d 138 [internal quotation marks omitted];  see Hamm v. Review Assoc., LLC, 202 A.D.3d at 939, 163 N.Y.S.3d 223).  In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Seizeme v. Levy, 208 A.D.3d 809, 811, 174 N.Y.S.3d 421).

Accordingly, the Supreme Court properly granted that branch of Bellco's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

BRATHWAITE NELSON, J.P., TAYLOR, VENTURA and MCCORMACK, JJ., concur.