GRESO v. Ciminelli-Cowper Co., Inc., Defendant-Appellant.

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

Paul T. GRESO and Nancy M. Greso, Plaintiffs-Respondents, v. NICHTER CONSTRUCTION CO., INC., et al., Defendants, Ciminelli-Cowper Co., Inc., Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., HAYES, SCUDDER and BALIO, JJ. Jeffrey F. Baase, Buffalo, for defendant-appellant. Kelly C. Fitzgerald, Buffalo, for plaintiffs-respondents.

Plaintiffs commenced this action to recover damages for injuries sustained by Paul T. Greso (plaintiff) when he fell down a permanent stairway.   At the time of his fall, plaintiff was carrying a bolt of wall-covering up the stairway.   Supreme Court erred in denying that part of the motion of Ciminelli-Cowper Co., Inc. (defendant) seeking summary judgment dismissing the Labor Law § 240(1) claim.  “Labor Law § 240(1) does not apply where plaintiff falls on a permanently installed stairway” (Monroe v. New York State Elec. & Gas Corp., 186 A.D.2d 1019, 588 N.Y.S.2d 483).   Speculation that plaintiff could have safely performed his work with the aid of a material hoist does not defeat defendant's entitlement to summary judgment dismissing the Labor Law § 240(1) claim (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The fact remains that the stairway where plaintiff fell “was undisputedly a permanent passageway between two parts of the building, and was not a tool or device employed solely to provide access to an elevated worksite” (Sponholz v. Benderson Prop. Dev., 266 A.D.2d 815, 697 N.Y.S.2d 432).

The court also erred in denying that part of defendant's motion seeking summary judgment dismissing the Labor Law § 200 claim and the common-law negligence cause of action.   Defendant established that it exercised no supervisory control over the method of plaintiff's work (see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110;  McCune v. Black Riv. Constructors, 225 A.D.2d 1078, 1079, 639 N.Y.S.2d 203), and plaintiffs failed to submit proof raising a triable issue of fact.

Order insofar as appealed from unanimously reversed on the law without costs, motion granted and complaint against defendant Ciminelli-Cowper Co., Inc. dismissed.

MEMORANDUM: