BUSH III v. GREGORY MADISON AVENUE LLC

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

Ernest BUSH, III, et al., Plaintiffs-Respondents, v. GREGORY/MADISON AVENUE, LLC, et al., Defendants-Appellants.

Decided: September 16, 2003

ELLERIN, J.P., WILLIAMS, LERNER, FRIEDMAN, and GONZALEZ, JJ. Scott N. Singer, for Plaintiffs-Respondents. Robert I. Lapidow, for Defendants-Appellants.

Order, Supreme Court, New York County (Richard Braun, J.), entered March 18, 2003, which denied defendants' motion and plaintiffs' cross motion for summary judgment and awarded plaintiffs $50 in costs against defendants, unanimously modified, on the law, to grant defendants' motion to the extent of dismissing the Labor Law § 200 claim against defendant Gregory/Madison Avenue, LLC, on the facts and in the exercise of discretion, to strike the award of costs, and otherwise affirmed, without costs.

 Summary judgment dismissing plaintiffs' Labor Law § 240(1) cause of action was properly denied inasmuch as the record discloses the existence of triable issues of fact respecting whether a statutorily enumerated protective device would have been “necessary or expected” to shield plaintiff, an ironworker, from the improperly secured angle iron that struck him as it fell from the floor above his work site (see Roberts v. Gen. Elec. Co., 97 N.Y.2d 737, 738, 742 N.Y.S.2d 188, 768 N.E.2d 1127, quoting Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259, 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085).   Also properly sustained as against defendants' summary judgment motion was plaintiffs' Labor Law § 241(6) cause of action since triable questions exist as to whether defendants complied with concrete code specifications promulgated to protect workers from overhead hazards (see 12 NYCRR § 23-1.7;  and see Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 N.Y.2d 343, 348-350, 670 N.Y.S.2d 816, 693 N.E.2d 1068).   Defendants' motion was properly denied as well insofar as it sought dismissal of plaintiffs' Labor Law § 200 claim as against defendant contractor Turner Construction Co. Although defendants maintain that Turner had insufficient supervisory control over the construction site to support imposition of liability under Labor Law § 200, evidence indicating the presence of a Turner safety coordinator at the site with authority to stop work if a dangerous condition arose warrants a contrary inference and thus raises a triable issue of fact (see Freitas v. New York City Tr. Auth., 249 A.D.2d 184, 186, 672 N.Y.S.2d 101;  Gawel v. Consolidated Edison Co., 237 A.D.2d 138, 138-139, 655 N.Y.S.2d 351).   Defendants' motion should, however, have been granted insofar as it sought dismissal of plaintiffs' Labor Law § 200 claim as against defendant ground lessee Gregory/Madison Avenue, LLC, since the record discloses that defendant retained no supervisory control over the work in the course of which plaintiff was injured.

Finally, inasmuch as neither plaintiffs nor defendants prevailed in the motion court and defendants' motion was not frivolous (see 22 NYCRR § 130-1.1[a] and [c] ), we perceive no basis for the motion court's award of costs to plaintiffs.