BLANCO v. OLIVERI (2003)

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 (Golia, J.), dated June 21, 2002, as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action based on Labor Law § 200, and, in effect, granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action based on common-law negligence.

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

 The plaintiff fell from the roof while he was painting the defendants' house.   The complaint alleges, among other things, that the defendants' negligence in the maintenance of their premises, as well as their violation of Labor Law § 200, contributed to the accident.   Contrary to the arguments advanced by the defendants in the Supreme Court, if the plaintiff was injured in whole or in part as a result of the existence of a dangerous condition on the defendants' property, of which the defendants had actual or constructive notice, the defendants may properly be held liable for the plaintiff's injuries under common-law negligence and Labor Law § 200 irrespective of whether they supervised the plaintiff's work (see Ciesielski v. Buffalo Indus. Park, 299 A.D.2d 817, 750 N.Y.S.2d 246;  Shipkoski v. Watch Case Factory Assoc., 292 A.D.2d 589, 590, 741 N.Y.S.2d 57;  Moran v. Janowski, 276 A.D.2d 605, 714 N.Y.S.2d 723;  Hajba v. Silander, 222 A.D.2d 813, 634 N.Y.S.2d 786;  Beckford v. Canessa, 205 A.D.2d 655, 613 N.Y.S.2d 659;  McKinney v. Setteducatti, 183 A.D.2d 879, 584 N.Y.S.2d 130).

In seeking summary judgment with respect to the causes of action based on common-law negligence and Labor Law § 200, the defendants “satisfied their initial burden * * * by demonstrating that the injured plaintiff was unable to identify the cause of his fall” (Hunter v. IBS Realty Mgt., 298 A.D.2d 557, 558, 748 N.Y.S.2d 677;  see Bongiorno v. Penske Auto. Ctr., 289 A.D.2d 520, 735 N.Y.S.2d 617;  La Duke v. Albany Motel Enters., 282 A.D.2d 974, 724 N.Y.S.2d 507;  Amadio v. Pathmark Stores, 253 A.D.2d 834, 678 N.Y.S.2d 500;  Skay v. Public Lib. of Rockville Centre, 238 A.D.2d 397, 657 N.Y.S.2d 553;  Barretta v. Trump Plaza Hotel & Casino, 278 A.D.2d 262, 717 N.Y.S.2d 333).   The burden then shifted to the plaintiff to submit evidence tending to show the existence of a triable issue of fact.

 The plaintiff failed to meet this burden.   In opposition to the motion, the plaintiff submitted the affidavit of a co-worker which established only that, after the plaintiff had already fallen, the co-worker observed that “pieces of the roof shingle had become dislodged along the seam where the roof meets that wall of the house about 5-6 feet from the peak,” a location that may or may not correspond to the position where the plaintiff fell.   Even assuming that the remaining contents of this affidavit were sufficient to raise an issue of fact as to whether various areas of the roof were affected by loose or detached shingles, and that the defendants had notice of the deteriorating condition of the roof, the affidavit contained no evidence connecting the occurrence of the plaintiff's fall with this allegedly dangerous condition.

Assuming that the rule of Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 has any application here (compare Walsh v. Murphy, 267 A.D.2d 172, 700 N.Y.S.2d 32;  Wright v. New York City Hous. Auth., 208 A.D.2d 327, 624 N.Y.S.2d 144;  Lynn v. Lynn, 216 A.D.2d 194, 628 N.Y.S.2d 667), the plaintiff is not excused from his burden of demonstrating the existence of a triable issue of fact to avoid summary judgment (see Coughlin v. Bartnick, 293 A.D.2d 509, 740 N.Y.S.2d 394;  Williams v. Econ, 221 A.D.2d 429, 633 N.Y.S.2d 392;  Silva v. 81st St. & Ave. A Corp., 169 A.D.2d 402, 564 N.Y.S.2d 326;  Agius v. State of New York, 50 A.D.2d 1049, 377 N.Y.S.2d 735).   Here, the plaintiff failed to identify any triable issue of fact as to the essential issue of causation, and summary judgment was properly granted to the defendants dismissing the causes of action based upon Labor Law § 200 and common law negligence.