OGDEN v. CITY OF HUDSON INDUSTRIAL DEVELOPMENT AGENCY

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

Jeffrey S. OGDEN et al., Appellants, v. CITY OF HUDSON INDUSTRIAL DEVELOPMENT AGENCY, Respondent.

Decided: November 22, 2000

Before:  CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ. De Graff, Foy, Holt-Harris & Kunz LLP (Scott C. Paton of counsel), Albany, for appellants. Rapport, Meyers, Whitbeck, Shaw & Rodenhausen (Jason L. Shaw of counsel), Hudson, for respondent.

Appeal from an order of the Supreme Court (Cobb, J.), entered March 8, 2000 in Columbia County, which partially granted defendant's motion for summary judgment and denied plaintiffs' cross motion for partial summary judgment.

In accordance with consent orders issued by the Department of Environmental Conservation, the County of Columbia was charged with the responsibility to close a landfill located in the City of Hudson, Columbia County.   In 1995, defendant conveyed certain property near the landfill to the County to facilitate closure.   Between 1995 and 1997, the County engaged in closure activities requiring, inter alia, the use of clay mined at an adjacent site owned by the City of Hudson to cap the landfill.   As part of the work, the County set up a staging area near the landfill upon which a construction trailer containing items of loose equipment and keys to heavy equipment was located.   The entrance to the trailer was four to five feet above the ground necessitating the construction of a temporary stairway by County employees to access it.

On May 14, 1997, plaintiff Jeffrey S. Ogden (hereinafter plaintiff), an equipment operator employed by the County, entered the construction trailer to obtain keys to a dump truck.   While exiting the trailer, he lost his footing on the stairway and fell to the ground.   Although the exact location of the trailer is in dispute, there is evidence that a portion of it and the stairway were located upon property retained by defendant.   Following the accident, plaintiff and his wife commenced this action against defendant alleging causes of action premised upon, inter alia, Labor Law §§ 240 and 241(6) as well as common-law negligence.   Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint and plaintiffs cross-moved for summary judgment on the issue of defendant's liability under Labor Law §§ 240 and 241(6).   Supreme Court, inter alia, granted defendant's motion and dismissed plaintiffs' claims under Labor Law §§ 240 and 241(6).   The court also dismissed plaintiffs' claim alleging common-law negligence.   This appeal by plaintiffs ensued.

 It is well settled that, in order to recover under the provisions of Labor Law §§ 240 and 241(6), “ ‘* * * a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent’ ” (Marchese v. Grossarth, 232 A.D.2d 924, 925, 648 N.Y.S.2d 810, lv. denied 89 N.Y.2d 809, 655 N.Y.S.2d 889, 678 N.E.2d 502, quoting Whelen v. Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032;  see, Brown v. Christopher St. Owners Corp., 211 A.D.2d 441, 442, 620 N.Y.S.2d 374, affd. 87 N.Y.2d 938, 641 N.Y.S.2d 221, 663 N.E.2d 1251;  D'Argenio v. Village of Homer, 202 A.D.2d 883, 884, 609 N.Y.S.2d 943).   For purposes of the above provisions, an owner is one “ ‘* * * who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit’ ” (Mangiameli v. Galante, 171 A.D.2d 162, 163, 574 N.Y.S.2d 842, quoting Copertino v. Ward, 100 A.D.2d 565, 566, 473 N.Y.S.2d 494;  see, Reisch v. Amadori Constr. Co., 273 A.D.2d 855, 856, 709 N.Y.S.2d 726, 728).   Notably, “[t]he key criterion is ‘the right to insist that proper safety practices were followed and it is the right to control the work that is significant * * *’ ” (Nowak v. Smith & Mahoney, 110 A.D.2d 288, 290, 494 N.Y.S.2d 449, quoting Copertino v. Ward, supra, at 567, 473 N.Y.S.2d 494).

 In the case at hand, there is no evidence that defendant had anything to do with contracting the work or had any right to control the manner in which it was performed.   According to affidavits submitted by defendant, defendant was an agency independent of the City and County and did not give either entity the authority to conduct activities on the subject property on its behalf.   Moreover, defendant did not give the County permission to place the trailer or stairway at any location and was unaware that they were located on its property at the time of the accident.   Furthermore, defendant did not have any involvement in the closure of the landfill.   Inasmuch as plaintiffs did not submit any proof to controvert this evidence, Supreme Court properly concluded that defendant was not an owner within the meaning of Labor Law §§ 240 and 241(6) (see, Ceballos v. Kaufman, 249 A.D.2d 40, 671 N.Y.S.2d 229;  Mangiameli v. Galante, supra ).

 Furthermore, while plaintiffs also premise liability on the fact that the stairway was slippery due to the presence of mud and moisture, there is no proof in the record that defendant had either actual or constructive notice of that condition (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 838, 501 N.Y.S.2d 646, 492 N.E.2d 774).   Consequently, dismissal of plaintiffs' common-law negligence claim based upon such condition was also proper.

ORDERED that the order is affirmed, without costs.

CARDONA, P.J.

MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ., concur.

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