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Supreme Court, Appellate Term, New York.

Hector TORRES, Plaintiff-Appellant, v. BINGHAMTOM GIANT MARKETS, INC., Defendant-Respondent.

Decided: July 13, 2005

Present:  Hon. LUCINDO SUAREZ, P.J., Hon. WILLIAM P. McCOOE, Hon. MARTIN SCHOENFELD, Justices. Cappiello, Hofmann & Katz, P.C., New York City (Edward M. Katz and Paul T. Hofmann of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York City (Steven B. Prystowsky of counsel), for respondent.

Orders entered April 30, 2002 and June 26, 2003 (Howard H. Sherman, J.), to the extent appealable, affirmed, with $10 costs.

 Plaintiff, employed by nonparty beverage distributor Keystone Coco-Cola to stock store shelves, sustained injuries while removing soda from a storage area owned by defendant supermarket when he allegedly fell from stacked cases of soda.   Plaintiff commenced this action alleging common-law negligence and violations of Labor Law §§ 200 and 376.   Defendant supermarket established its entitlement to summary judgment dismissing the complaint, upon its showing that it did not have the contractual or other actual authority to control or supervise the activity bringing about plaintiff's injury (see Vaneer v. 993 Intervale Avenue Housing Development Fund Corporation, 5 A.D.3d 161, 773 N.Y.S.2d 7 [2004];  Scott v. American Museum of Natural History, 3 A.D.3d 442, 771 N.Y.S.2d 499 [2004] ).   In this regard, the record shows that plaintiff's employer solely controlled the “methods an means” of plaintiff's work, including delivery, stacking, wrapping, unpacking and retrieval of the soda for display on the shelves (see Landa v. City of New York, 17 A.D.3d 180, 795 N.Y.S.2d 187 [2005];  Anderson v. Bush Industries, Inc., 280 A.D.2d 949, 720 N.Y.S.2d 699 [2001] ).   Defendant's designation of storage space, without any further direction or supervision, is insufficient to impose liability (see Reilly v. Newireen Associates, 303 A.D.2d 214, 756 N.Y.S.2d 192 [2003] ).   The affirmation submitted in support of renewal allegedly establishing notice of the defective condition of piled or stacked cases of soda, does not warrant a different result.   The height of the stacked was not a defect inherent in the property, but rather was created by the manner in which plaintiff's employer performed its work.   Plaintiff's employer was exclusively responsible for providing a forklift or other device in the event that its employee was unable to reach the supply.   Accordingly, defendants cannot be held responsible under Labor Law § 200, even if they had constructive notice of the height of the cases of soda (see Dalanna v. City of New York, 308 A.D.2d 400, 764 N.Y.S.2d 429 [2003] ).   The allegation that an employee of defendant supermarket may have cut the plastic wrapping on the cases of soda, thereby creating a defective condition, is purely speculative and insufficient to defeat summary judgment (see Thomas v. Our Lady of Mercy Medical Center, 289 A.D.2d 37, 38, 734 N.Y.S.2d 33 [2001] ).

This constitutes the decision and order of the court.


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