ENRIQUEZ v. DEVELOPMENT INC (2009)

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, Queens County (Satterfield, J.), entered July 29, 2008, as granted those branches of the defendants' motion which were for summary judgment dismissing the plaintiff's causes of action sounding in common law negligence and violations of Labor Law §§ 200 and 241(6).

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

Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing his causes of action alleging common-law negligence and violations of Labor Law § 200.   The defendants established their prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572) by annexing the pleadings and the deposition testimony of the plaintiff to their attorney's affirmation (see Olan v. Farrell Lines, 64 N.Y.2d 1092, 1093, 489 N.Y.S.2d 884, 479 N.E.2d 229).   This evidence demonstrated that the plaintiff's accident allegedly arose from the means and methods of his work, that the work was directed and controlled exclusively by his fellow employee, and that the defendants exercised no supervisory control over his work (see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110;   Lombardi v. Stout, 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117;  Kwang Ho Kim v. D & W Shin Realty Corp., 47 A.D.3d 616, 620, 852 N.Y.S.2d 138;  Ragone v. Spring Scaffolding, Inc., 46 A.D.3d 652, 848 N.Y.S.2d 230).   In opposition to that branch of the motion, the plaintiff failed to present evidence sufficient to raise a triable issue of fact, since a mere showing that one or more of the defendants had general supervisory authority over the project is insufficient for this purpose (see McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 A.D.3d 796, 798, 839 N.Y.S.2d 164;  Haider v. Davis, 35 A.D.3d 363, 364, 827 N.Y.S.2d 179;  Ferrero v. Best Modular Homes, 33 A.D.3d 847, 851, 823 N.Y.S.2d 477;  Parisi v. Loewen Dev. of Wappinger Falls, 5 A.D.3d 648, 774 N.Y.S.2d 747).

Furthermore, the defendants established their prima facie entitlement to judgment as a matter of law with respect to the plaintiff's claim that the defendants violated Labor Law § 241(6).   The plaintiff's reliance upon 12 NYCRR 23-1.7(d) in this regard is unavailing, since his accident occurred in an open area of a construction site, a location to which that regulation does not apply (see Hertel v. Hueber-Breuer Constr., Co., Inc., 48 A.D.3d 1259, 1260, 850 N.Y.S.2d 806;  Porazzo v. City of New York, 39 A.D.3d 731, 834 N.Y.S.2d 298;  Roberts v. Worth Constr., Inc., 21 A.D.3d 1074, 1077, 802 N.Y.S.2d 177;  Morra v. White, 276 A.D.2d 536, 537, 714 N.Y.S.2d 510;  Rose v. A. Servidone, Inc., 268 A.D.2d 516, 517-518, 702 N.Y.S.2d 603).   Likewise, 12 NYCRR 23-1.7(e)(2) is inapplicable to the accident, as described by the plaintiff.   In any event, the alleged obstructions on the ground in his work area were an integral part of the work that he and his coworkers were performing (see Furino v. P & O Ports, 24 A.D.3d 502, 504, 806 N.Y.S.2d 227;  Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619, 622, 769 N.Y.S.2d 559;  Dalanna v. City of New York, 308 A.D.2d 400, 401, 764 N.Y.S.2d 429;  Alvia v. Teman Elec. Contr., 287 A.D.2d 421, 423, 731 N.Y.S.2d 462;  Bond v. York Hunter Constr., 270 A.D.2d 112, 113, 705 N.Y.S.2d 40, affd. 95 N.Y.2d 883, 715 N.Y.S.2d 209, 738 N.E.2d 356).