BUTIGIAN v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

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

Mark M. BUTIGIAN, et al., Plaintiffs-Appellants, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, et al., Defendants-Respondents.

Guy Carpenter & Co., Inc., Third-Party Plaintiff, v. Computercool Air Conditioning Corp., Third-Party Defendant. [And Another Third-Party Action].

Decided: November 30, 1999

ELLERIN, P.J., WILLIAMS, LERNER, RUBIN and SAXE, JJ. Stuart G. Glass, for Plaintiffs-Appellants. Christopher J. Gray, Martin M. McGlynn, for Defendants-Respondents. Michael M. Horowitz, for Third-Party Defendant.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered June 25, 1998, which, in an action for personal injuries sustained by a laborer when he fell from a ladder while pulling ductwork from a ceiling, insofar as appealed from, denied plaintiff's motion for partial summary judgment on the issue of defendants owner's, tenant's and construction manager's liability under Labor Law § 240(1), and granted defendants' cross motions for summary judgment dismissing plaintiff's claims under Labor Law § 200, unanimously modified, on the law, to reinstate plaintiff's claim under Labor Law § 200 as against defendant construction manager, John Gallin & Son Inc., and otherwise affirmed, without costs.

 An issue of fact exists as to whether defendants failed to furnish plaintiff with proper protection in violation of Labor Law § 240(1) (compare, Kijak v. 330 Madison Ave. Corp., 251 A.D.2d 152, 675 N.Y.S.2d 341).  Plaintiff's claims under Labor Law § 200 were properly dismissed as against defendants owner and tenant of the work site premises, there being no evidence that they exercised supervisory control over plaintiff's work (see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110).   However, they should not have been dismissed as against the construction manager, whose supervisor testified that it was responsible for removal of debris from the worksite, and there being an issue of fact as to whether, as plaintiff testified, the ladder slipped because of debris and water on the floor.

MEMORANDUM DECISION.