ROSE v. McCarty Construction, Incorporated, Appellant.

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

L. Charles ROSE and Diane Rose, Respondents, v. WIDEWATERS LAKEWOOD VILLAGE CO., et al., Defendants, McCarty Construction, Incorporated, Appellant.

Decided: December 31, 1998

Present:  GREEN, J.P., WISNER, HAYES, BALIO and FALLON, JJ. O'Shea, Reynolds & Cumming by Nelson Schule, Jr., Buffalo, for Defendant-Appellant-McCarty Construction, Inc. Ballow, Braisted, O'Brien & Rustin, P.C. by Michael Braisted, Williamsville, for Plaintiffs-Respondents-Rose.

 Supreme Court erred in denying in its entirety the cross motion of defendant McCarty Construction, Incorporated (McCarty) for summary judgment dismissing the complaint against it.   L. Charles Rose (plaintiff) slipped while standing on an icy floor.   Because there was no elevation related hazard of the type contemplated by Labor Law § 240 (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932), that claim should have been dismissed against McCarty.   The Labor Law § 200 claim also should have been dismissed because McCarty did not direct, control or supervise the work that plaintiff was performing at the time of the accident (see, Russin v. Picciano & Son, 54 N.Y.2d 311, 316-317, 445 N.Y.S.2d 127, 429 N.E.2d 805;  see also, Mamo v. Rochester Gas & Elec. Corp., 209 A.D.2d 948, 949, 619 N.Y.S.2d 426, lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 325, 650 N.E.2d 1327), nor did McCarty have a duty to protect plaintiff against a dangerous condition that was readily observable (see, Hill v. Corning Inc., 237 A.D.2d 881, 654 N.Y.S.2d 524, lv. dismissed in part and denied in part 90 N.Y.2d 884, 661 N.Y.S.2d 826, 684 N.E.2d 275).

 The court properly denied that part of McCarty's cross motion with respect to Labor Law § 241(6).   Contrary to McCarty's contention, McCarty was an agent of the owner for purposes of providing a safe worksite (see, Russin v. Picciano & Son, supra, at 317-318, 445 N.Y.S.2d 127, 429 N.E.2d 805).   Thus, we modify the order by granting in part the cross motion of McCarty and dismissing the Labor Law §§ 200 and 240 claims.

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

MEMORANDUM: