RADONCIC v. INDEPENDENCE GARDEN OWNERS CORP (2009)

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

Fadil RADONCIC, et al., appellants, v. INDEPENDENCE GARDEN OWNERS CORP., respondent.

Decided: November 24, 2009

MARK C. DILLON, J.P., ANITA R. FLORIO, RUTH C. BALKIN, and JOHN M. LEVENTHAL, JJ. Mark E. Seitelman Law Offices, P.C., New York, N.Y. (Donald D. Casale of counsel), for appellants. James R. Pieret, Garden City, N.Y. (Thomas P. Williams of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated July 10, 2008, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Fadil Radoncic (hereinafter Fadil) was employed by nonparty CPMT, a building management company that had a contract to manage the apartment complex owned by the defendant.   Fadil was injured when he fell from a ladder as he was cutting a tree branch that had fallen against some utility lines.   Fadil and his wife, Zejreme Radoncic (hereinafter together the plaintiffs), commenced this action against the defendant, asserting causes of action sounding in common-law negligence, alleging violations of Labor Law §§ 200, 240(1), and 241(6), and asserting a derivative cause of action to recover damages for loss of consortium and services.   The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint in its entirety.   We affirm.

The Supreme Court properly granted the defendant's motion for summary judgment dismissing the causes of action pursuant to Labor Law § 240(1) and § 241(6), as tree cutting is not one of the activities covered by those statutory provisions (see Morales v. Westchester Stone Co., Inc., 63 A.D.3d 805, 881 N.Y.S.2d 456;  Rivera v. Santos, 35 A.D.3d 700, 701-702, 827 N.Y.S.2d 222;  Burr v. Short, 285 A.D.2d 576, 728 N.Y.S.2d 741;  DeGennaro v. Long Is. R.R., 258 A.D.2d 496, 685 N.Y.S.2d 266).   Moreover, the defendant established, prima facie, that the tree cutting constituted “routine maintenance outside of a construction or renovation context” (Morales v. Westchester Stone Co., Inc., 63 A.D.3d at 805-806, 881 N.Y.S.2d 456;  see Riccio v. NHT Owners, LLC, 51 A.D.3d 897, 899, 858 N.Y.S.2d 363;  Diaz v. Applied Digital Data Sys., 300 A.D.2d 533, 535, 753 N.Y.S.2d 514), and the plaintiffs failed to raise a triable issue of fact in response (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Morales v. Westchester Stone Co. Inc., 63 A.D.3d at 806, 881 N.Y.S.2d 456).

The Supreme Court also properly granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action pursuant to Labor Law § 200 and based on common-law negligence.  Labor Law § 200 “is a codification of the common-law duty of a landowner to provide workers with a reasonably safe place to work” (Lombardi v. Stout, 80 N.Y.2d 290, 294, 590 N.Y.S.2d 55, 604 N.E.2d 117;  see Chowdhury v. Rodriguez, 57 A.D.3d 121, 127-128, 867 N.Y.S.2d 123).   Where, as here, “a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work” (Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323).   The defendant met its prima facie burden in this regard by establishing that, at most, the president of its board of directors exercised mere general supervisory authority over Fadil, which is insufficient to impose liability (id.;  Natale v. City of New York, 33 A.D.3d 772, 773, 822 N.Y.S.2d 771).   In response, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d at 560, 427 N.Y.S.2d 595, 404 N.E.2d 718).

The plaintiffs' remaining contention is without merit.