CUN EN LIN v. HOLY FAMILY MONUMENTS

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

CUN-EN LIN, et al., respondents, v. HOLY FAMILY MONUMENTS, et al., appellants.

Decided: May 31, 2005

BARRY A. COZIER, J.P., DANIEL F. LUCIANO, STEPHEN G. CRANE, and PETER B. SKELOS, JJ. Baxter & Smith, P.C., Jericho, N.Y. (Anne Marie Ladia and Robert C. Baxter of counsel), for appellants.

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated February 24, 2004, as denied their motion for summary judgment dismissing the causes of action to recover damages based on common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6), and granted that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability on the cause of action to recover damages based on a violation of Labor Law § 240(1).

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion which were for summary judgment dismissing the causes of action to recover damages based on common-law negligence and violations of Labor Law §§ 200 and 241(6), and substituting therefor a provision granting those branches of the motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The purpose of Labor Law § 240(1) is to protect workers from elevation-related risks (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 284-285, 771 N.Y.S.2d 484, 803 N.E.2d 757;  Joblon v. Solow, 91 N.Y.2d 457, 463, 672 N.Y.S.2d 286, 695 N.E.2d 237;  Munoz v. DJZ Realty, 15 A.D.3d 363, 364, 789 N.Y.S.2d 526).   To establish liability under Labor Law § 240(1), a plaintiff must set forth a violation of that statute, and that such violation was a proximate cause of his or her injuries (see Blake v. Neighborhood Hous. Servs. of N.Y. City, supra at 287-289, 771 N.Y.S.2d 484, 803 N.E.2d 757;  Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932).

 Contrary to the defendants' contention, the crane from which the injured plaintiffs fell was a “structure” within the meaning of Labor Law § 240(1), as such equipment is viewed as “any production or piece of work artificially built up or composed of parts joined together in some definite manner” (Caddy v. Interborough Rapid Tr. Co., 195 N.Y. 415, 420, 88 N.E. 747;  see Joblon v. Solow, supra at 464, 672 N.Y.S.2d 286, 695 N.E.2d 237;  Lewis-Moors v. Contel of N.Y., 78 N.Y.2d 942, 573 N.Y.S.2d 636, 578 N.E.2d 434;  Munoz v. DJZ Realty, supra ).   Further, as the injured plaintiffs fell from an elevated height while repairing the subject crane, the injured plaintiffs were engaged in a protected activity under the statute (see generally Labor Law § 240[1];  Martinez v. City of New York, 93 N.Y.2d 322, 326, 690 N.Y.S.2d 524, 712 N.E.2d 689;  Cook v. Presbyterian Homes of W.N.Y., 234 A.D.2d 906, 907, 655 N.Y.S.2d 701).

The plaintiffs established their entitlement to judgment as a matter of law on the issue of liability under Labor Law § 240(1).   In opposition, the defendants failed to raise a triable issue of fact.   Therefore, the Supreme Court properly granted the plaintiffs' cross motion for summary judgment on the issue of liability on their cause of action to recover damages based on a violation of Labor Law § 240(1).

 Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work (see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110;  Russin v. Picciano & Son, 54 N.Y.2d 311, 316-317, 445 N.Y.S.2d 127, 429 N.E.2d 805).   However, there is no liability under the common-law or Labor Law § 200 unless the owner or general contractor exercised supervision or control over the work performed (see Comes v. New York State Elec. & Gas Corp., supra at 877, 609 N.Y.S.2d 168, 631 N.E.2d 110;  Russin v. Picciano & Son, supra at 317, 445 N.Y.S.2d 127, 429 N.E.2d 805;  Schuler v. Kings Plaza Shopping Ctr. & Mar., 294 A.D.2d 556, 558, 743 N.Y.S.2d 141;  Sprague v. Peckham Materials Corp., 240 A.D.2d 392, 394, 658 N.Y.S.2d 97).   The defendants established their prima facie entitlement to summary judgment dismissing the causes of action alleging common law negligence and a violation of Labor Law § 200 by demonstrating that they did not exercise any supervision or control over the work being performed.   As the plaintiffs failed to raise a triable issue of fact, the Supreme Court erred in denying those branches of the defendants' motion which were for summary judgment dismissing the causes of action to recover damages based on common-law negligence and a violation of Labor Law § 200.

 Labor Law § 241(6) “imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers” (Comes v. New York State Elec. & Gas Corp., supra at 878, 609 N.Y.S.2d 168, 631 N.E.2d 110;  see Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 348, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502, 601 N.Y.S.2d 49, 618 N.E.2d 82;   Dickson v. Fantis Foods, 235 A.D.2d 452, 652 N.Y.S.2d 1005).   To recover on a cause of action alleging a Labor Law § 241(6) violation, a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards (see Ross v. Curtis-Palmer Hydro-Elec. Co., supra at 503-505, 601 N.Y.S.2d 49, 618 N.E.2d 82).

The defendants' alleged violation of 12 NYCRR 23-1.5 did not provide a basis for liability under Labor Law § 241(6), as such Industrial Code provision merely sets forth a general safety standard (see Ferreira v. Unico Serv. Corp., 262 A.D.2d 524, 525, 692 N.Y.S.2d 445;  Vernieri v. Empire Realty Co., 219 A.D.2d 593, 598, 631 N.Y.S.2d 378).

In addition, the alleged violations of Occupational Safety and Health Administration (OSHA) standards did not provide a basis for liability under Labor Law § 241(6) (see Vernieri v. Empire Realty Co., supra at 598, 631 N.Y.S.2d 378;  McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877, 629 N.Y.S.2d 358;  McSweeney v. Rochester Gas & Elec. Corp., 216 A.D.2d 878, 629 N.Y.S.2d 356).   Further, the alleged violations of 12 NYCRR 23-1.7, 12 NYCRR 23-1.16, and 12 NYCRR 23-1.21, are inapplicable to the facts of this case.

The defendants established their prima facie entitlement to summary judgment dismissing the cause of action alleging a Labor Law § 241(6) violation, and the plaintiffs failed to raise a triable issue of fact.   Accordingly, the Supreme Court should have granted summary judgment to the defendants on that cause of action.

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