YOUNG v. MORAN PROPERTIES INC

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

Oscar YOUNG, Plaintiff-Respondent-Appellant, v. J.M. MORAN PROPERTIES, INC., Defendant-Appellant-Respondent.

J.M. Moran Properties, Inc., Third-Party Plaintiff, v. Darin Construction Enterprises, Inc., Third-Party Defendant-Appellant-Respondent.

Decided: March 31, 1999

Present:  LAWTON, J.P., HAYES, WISNER, PIGOTT, JR., and CALLAHAN, JJ. Brian Gerard Reddy, Collins & Collins, P.C., Buffalo (Alan Voos, of counsel), for plaintiff-respondent-appellant. Ralph Cessario, Quackenbush Cessario & Hamlin, Buffalo, for defendant-appellant-respondent. Philip M. Gulisano, Hurwitz & Fine, P.C., Buffalo, for third-party defendant-appellant-respondent.

Plaintiff was injured when he slipped on mud on the floor of the loading bay in a building owned by defendant, J.M. Moran Properties, Inc. (Moran), and leased by third-party defendant, Darin Construction Enterprises, Inc. (Darin), plaintiff's employer, for commercial purposes.   Plaintiff fell while walking toward the back of a truck to unload tools and equipment used in a recently completed construction project.

The complaint alleges causes of action for common-law negligence and violations of Labor Law §§ 200 and 241(6).   Moran commenced a third-party action against Darin for contribution and indemnification.   Darin moved for summary judgment dismissing the complaint, and Moran joined in the motion.   Supreme Court granted the motion in part and dismissed the Labor Law § 241(6) claim.

 The court properly denied the motion with respect to the common-law negligence cause of action.   Although an out-of-possession landlord generally is not liable for injuries resulting from the condition of the leased premises (see, Putnam v. Stout, 38 N.Y.2d 607, 616-618, 381 N.Y.S.2d 848, 345 N.E.2d 319), one who retains control of the premises or contracts to repair or maintain property may be liable for defects (see, Henness v. Lusins, 229 A.D.2d 873, 874, 645 N.Y.S.2d 937).   Pursuant to the lease, Moran transferred possession and control to Darin but retained responsibility for structural repairs of the premises.   Thus, there is a question of fact concerning Moran's liability in common-law negligence for defects in the condition of the loading bay (see, De Cristofaro v. Joann Enters., 243 A.D.2d 1015, 1016-1017, 663 N.Y.S.2d 689).

 The court erred, however, in failing to grant the motion with respect to the Labor Law § 200 claim.   Construction work was not being performed on the property leased by Moran to Darin, and thus Moran had no duty pursuant to Labor Law § 200 “to provide construction site workmen with a safe place to work” (Russin v. Picciano & Son, 54 N.Y.2d 311, 317, 445 N.Y.S.2d 127, 429 N.E.2d 805;  see, Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 299, 405 N.Y.S.2d 630, 376 N.E.2d 1276, rearg. denied 45 N.Y.2d 776, 408 N.Y.S.2d 1027, 380 N.E.2d 350).   In any event, there is no indication in the record that Moran supervised or controlled plaintiff's work (see, De Cristofaro v. Joann Enters., supra, at 1018, 663 N.Y.S.2d 689;  Lafleur v. Power Test Realty Co. Ltd. Partnership, 159 A.D.2d 691, 692, 553 N.Y.S.2d 50).

 We reject the contention of plaintiff on his cross appeal that the court erred in granting the motion with respect to the Labor Law § 241(6) claim.   Plaintiff was not engaged in construction work when he was injured (see, Parot v. City of Buffalo, 174 A.D.2d 1034, 572 N.Y.S.2d 198).

We modify the order, therefore, by granting that part of the motion seeking dismissal of the Labor Law § 200 claim.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: