TEIXEIRA v. Bi-County Construction Corp., third-party defendant-appellant. (1999)

In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated March 5, 1998, which denied its motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the third-party complaint is dismissed.

The third-party defendant Bi-County Construction Corp. (hereinafter Bi-County) demonstrated its entitlement to judgment as a matter of law (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Contrary to the determination of the Supreme Court, Bi-County conclusively demonstrated that the plaintiff, its employee, was not injured in the work area.   Rather, the plaintiff left the properly-protected work area, i.e., the right eastbound lane of Sunrise Highway, and crossed onto the well-traveled, left eastbound lane of traffic, where he was struck by a car owned and operated by the respondents.   Under these circumstances, Bi-County did not fail to provide the plaintiff a safe place to work, or fail to properly supervise and train the plaintiff (see, Olsen v. State of New York, 25 N.Y.2d 665, 306 N.Y.S.2d 474, 254 N.E.2d 774;  Smith v. Stark, 67 N.Y.2d 693, 499 N.Y.S.2d 922, 490 N.E.2d 841;  Richichi v. Construction Mgt. Technologies, 244 A.D.2d 540, 664 N.Y.S.2d 615;  Camarda v. Summit Homes, 233 A.D.2d 285, 649 N.Y.S.2d 463).   The respondents' opposition to the motion failed to raise an issue of fact.   Accordingly, the motion for summary judgment is granted, and the third-party complaint is dismissed.

MEMORANDUM BY THE COURT.