ALNUTT v. ELECTRIC

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

Leonard D. ALNUTT and Debra D. Alnutt, Plaintiffs-Respondents, v. J&E ELECTRIC, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., SCUDDER, KEHOE, GREEN, AND HAYES, JJ. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Matthew A. Lenhard of Counsel), for Defendant-Appellant. Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of Counsel), for Plaintiffs-Respondents.

Plaintiffs commenced this action to recover damages for injuries sustained by Leonard D. Alnutt (plaintiff) while working on an electrical switch box at his place of employment.   Defendant had been hired by plaintiff's employer to perform electrical work, and plaintiffs allege that plaintiff's injuries were the result of defendant's negligence.   Supreme Court erred in denying defendant's motion seeking summary judgment dismissing the complaint on the ground that defendant owed no duty to plaintiff.   Defendant established its entitlement to judgment as a matter of law “by demonstrating that it did not exercise supervisory control over the injured plaintiff's work, and that it neither created nor had actual or constructive knowledge of the allegedly dangerous condition” of the switch box (DeBlase v. Herbert Constr. Co., 5 A.D.3d 624, 624, 774 N.Y.S.2d 777), and plaintiffs failed to raise a triable issue of fact (cf. Yong Ju Kim v. Herbert Constr. Co., 275 A.D.2d 709, 713, 713 N.Y.S.2d 190).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

MEMORANDUM: