MITCHELL v. (And a Third-Party Action). (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated September 25, 2015.  The order, insofar as appealed from, granted those branches of the motion of the defendant Springline Builders, LLC, which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6) insofar as asserted against it.

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

The plaintiff, a carpenter employed by Titus Associates, Inc. (hereinafter Titus), allegedly was injured while working at a construction site when his pants leg caught on a part of a rebar that had been left sticking out of concrete, causing him to trip and fall.  The owner of the premises, the defendant Caton on the Park, LLC (hereinafter Caton), had hired the defendant Springline Builders, LLC (hereinafter Springline), to serve as the construction manager on the project.  Springline entered into a trade contract with Titus to perform the superstructure concrete work.  Springline's contract with Titus provided that Titus, as trade contractor, “shall supervise and direct Work,” and that Titus “shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of Work under this Trade Contract.”

The plaintiff commenced this action against Caton and Springline to recover damages, inter alia, for common-law negligence and violations of Labor Law §§ 200 and 241(6).  Springline moved for summary judgment dismissing the amended complaint insofar as asserted against it.  In the order appealed from, the Supreme Court granted Springline's motion.

Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation, or demolition work is being performed (see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501–502, 601 N.Y.S.2d 49, 618 N.E.2d 82).  The provision requires owners and contractors to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 502, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82).  The particular safety rule or regulation relied upon by a plaintiff must mandate compliance with particular specifications, and not simply set forth general safety standards (see id. at 504–505, 601 N.Y.S.2d 49, 618 N.E.2d 82).

We agree with the Supreme Court's determination granting that branch of Springline's motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against it.  The cause of action alleging a violation of Labor Law § 241(6) asserted by the plaintiff was predicated on Industrial Code (12 NYCRR) § 23–1.7(e).  This section of the Industrial Code, however, has no application where the object that caused the plaintiff's injury was an integral part of the work being performed (see Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.3d 982, 984, 999 N.Y.S.2d 848;  Castillo v. Starrett City, 4 A.D.3d 320, 322, 772 N.Y.S.2d 74).  Springline established its prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action by demonstrating that the rebar on which the plaintiff caught his pants leg was an integral part of the construction (see Venezia v. State of New York, 57 A.D.3d 522, 523, 868 N.Y.S.2d 710).  In opposition, the plaintiff failed to raise a triable issue of fact regarding the alleged violation of Labor Law § 241(6).

“Cases involving Labor Law § 200 fall into two broad categories:  namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed.  These two categories should be viewed in the disjunctive” (Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323).  “ ‘[W]hen the manner and method of work is at issue in a Labor Law § 200 analysis' the issue is ‘whether the defendant had the authority to supervise or control the work’ ” (Poalacin v. Mall Props., Inc., 155 A.D.3d 900, 908, 63 N.Y.S.3d 679, quoting Ortega v. Puccia, 57 A.D.3d at 62 n. 2, 866 N.Y.S.2d 323).  However, “[w]hen a claim arises out of an alleged dangerous premises condition, a property owner or general contractor may be held liable in common-law negligence and under Labor Law § 200 when the owner or general contractor has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it” (Abelleira v. City of New York, 120 A.D.3d 1163, 1164, 992 N.Y.S.2d 324;  see Shaughnessy v. Huntington Hosp. Assn., 147 A.D.3d 994, 997, 47 N.Y.S.3d 121;  Marquez v. L & M Dev. Partners, Inc., 141 A.D.3d 694, 698, 35 N.Y.S.3d 700;  Doto v. Astoria Energy II, LLC, 129 A.D.3d 660, 663, 11 N.Y.S.3d 201;  Martinez v. City of New York, 73 A.D.3d 993, 998, 901 N.Y.S.2d 339).  Where, as here, an accident is alleged to involve “defects in both the premises and the manner in which the work was performed, a defendant moving for summary judgment dismissing a cause of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards” (Marquez v. L & M Dev. Partners, Inc., 141 A.D.3d at 699, 35 N.Y.S.3d 700;  see DiMaggio v. Cataletto, 117 A.D.3d 984, 986, 986 N.Y.S.2d 536).

We agree with the Supreme Court's determination to grant those branches of Springline's motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it.  Springline submitted evidence demonstrating, prima facie, that it had no authority to supervise or control the performance of the plaintiff's work (see Venezia v. State of New York, 57 A.D.3d at 523, 868 N.Y.S.2d 710).  Springline also demonstrated, prima facie, it did not have control over the work site and that it did not create or have notice of the allegedly dangerous condition (see Marquez v. L & M Dev. Partners, Inc., 141 A.D.3d at 699, 35 N.Y.S.3d 700;  Yong Ju Kim v. Herbert Constr. Co., 275 A.D.2d 709, 712, 713 N.Y.S.2d 190).  In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contentions are either not properly before this Court or without merit.

ROMAN, J.P, SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.