BURGALASSI v. MANDELL MECHANICAL CORPORATION

Reset A A Font size: Print

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

Alexander BURGALASSI, Plaintiff-Respondent, v. MANDELL MECHANICAL CORPORATION, Defendant-Appellant,

Bovis Lend Lease LMB Inc., et al., Defendants/Third-Party Plaintiffs-Respondents, v. Pinnacle Industries II, LLC, Third-Party Defendant-Respondent, Prince Carpentry, Inc., Third-Party Defendant. [And Another Third-Party Action].

Decided: March 20, 2007

MAZZARELLI, J.P., FRIEDMAN, BUCKLEY, CATTERSON, MALONE, JJ. London Fischer LLP, New York (Brian A. Kalman of counsel), for appellant. Arthur G. Nevins, Jr., New York, for Alexander Burgalassi, respondent. Newman Fitch Altheim Myers, P.C., New York (Stephen N. Shapiro of counsel), for Bovis Lend Lease LMB Inc. and 455 Central Park West, LLC., respondents. Morris Duffy Alonso & Faley, LLP, New York (Pauline E. Glaser of counsel), for Pinnacle Industries II, LLC, respondent.

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered October 24, 2006, which, to the extent appealed from as limited by the briefs, denied defendant Mandell Mechanical's motion for summary judgment on plaintiff's claims against it under Labor Law § 200 and for common law negligence, and denied the motion by defendants Bovis Lend Lease and 455 Central Park West for summary judgment dismissing all claims and cross claims against them, unanimously modified, on the law, and upon a search of the record, the motion by Bovis and 455 granted the § 200 and common law claims and cross claims as against them dismissed, and otherwise affirmed, without costs.

 The motion court properly determined that issues of fact exist as to whether Mandell was negligent in the performance of its work and whether such negligence, if any, was a proximate cause of plaintiff's accident.   Summary judgment was thus properly denied to Mandell with respect to plaintiff's claims pursuant to Labor Law § 200 and common law negligence.

 Although the Bovis and 455 defendants did not file a notice of appeal from the denial of their motion for summary judgment, upon a search of the record, we grant summary judgment dismissing the § 200 and common law claims and cross claims against them (Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 472 N.Y.S.2d 592, 460 N.E.2d 1077 [1984] ).   The evidence indicated only that Bovis had general supervisory and coordinating authority at the worksite, which is insufficient to trigger liability, and there was no evidence that 455 supervised or controlled any work performed at the site (O'Sullivan v. IDI Const. Co., Inc., 7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 [2006];  Singh v. Black Diamonds LLC, 24 A.D.3d 138, 805 N.Y.S.2d 58 [2005] ).