ROTTKAMP v. AMERICAN REF FUEL COMPANY OF HEMPSTEAD

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

Peter C. ROTTKAMP, et al., Appellants, v. AMERICAN REF-FUEL COMPANY OF HEMPSTEAD, et al., Respondents, et al., Defendant.

Decided: June 29, 1998

Before ROSENBLATT, J.P., and MILLER, RITTER and SULLIVAN, JJ. Abbate, Lawrence & Worden, P.C., Melville (Roger B. Lawrence, of counsel), for appellants. Furey and Furey, P.C., Hempstead (Thomas G. Leverage and David Rapacioli, of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (O'Brien, J.), dated April 1, 1997, which granted the motion of the defendants American Ref-Fuel Company of Hempstead and Town of Hempstead Industrial Development Agency for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified by deleting the provision thereof which granted that branch of the motion which was for summary judgment dismissing the cause of action based upon Labor Law § 241(6) insofar as asserted against the respondents and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

The plaintiff Peter C. Rottkamp, an employee of the Town of Hempstead Water Department, allegedly sustained personal injuries while performing repair work to a fire hydrant which was located on and which serviced private property leased by the respondent American Ref-Fuel Company of Hempstead (hereinafter American Ref-Fuel) from the respondent Town of Hempstead Industrial Development Agency (hereinafter Hempstead IDA).   The repair was being conducted pursuant to a letter from the operations manager of American Ref-Fuel which had requested that the required work be performed under a purchase order from American Ref-Fuel.   The plaintiffs subsequently commenced this action against, inter alia, Hempstead IDA and American Ref-Fuel to recover damages for Peter C. Rottkamp's injuries.

 The Supreme Court correctly dismissed so much of the plaintiffs' complaint as was based upon Labor Law § 200, as the plaintiffs failed to prove that the respondents exercised supervision or control over the job site (see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110;  Lombardi v. Stout, 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117).   Further, “[a]n owner's duty to provide a safe workplace does not encompass protecting workers against defects or conditions that are readily apparent” (Duclos v. Bisordi, 209 A.D.2d 376, 377, 618 N.Y.S.2d 424;  McAdam v. Sadler, 170 A.D.2d 960, 566 N.Y.S.2d 130).

 However, the Supreme Court erred when it dismissed so much of the complaint as was based upon a violation of Labor Law § 241(6).   The Hempstead IDA failed to present sufficient evidence in support of its application for summary judgment to establish as a matter of law that it was not the owner of the site at which the accident occurred as alleged in the complaint (see, GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 498 N.Y.S.2d 786, 489 N.E.2d 755;  Weber v. Sekapi, Inc., 246 A.D.2d 644, 666 N.Y.S.2d 965).   Furthermore, as to American Ref-Fuel, it is well settled that under Labor Law § 241(6), “the term ‘owner’ encompasses a party with an interest in the property ‘who fulfilled the role of owner by contracting to have work performed for his benefit’ ” (Demartino v. CBS Auto Body & Towing, 208 A.D.2d 886, 887, 618 N.Y.S.2d 92, quoting Copertino v. Ward, 100 A.D.2d 565, 566, 473 N.Y.S.2d 494;  see, Grindley v. Town of Eastchester, 213 A.D.2d 448, 625 N.Y.S.2d 229;  Wendel v. Pillsbury Corp., 205 A.D.2d 527, 612 N.Y.S.2d 678).   Accordingly, triable issues of fact exist with respect to the question of whether American Ref-Fuel may be treated as an owner for purposes of the application of Labor Law § 241(6) (see, e.g., Cannino v. Locust Valley Fire Dist., 241 A.D.2d 534, 661 N.Y.S.2d 240).

MEMORANDUM BY THE COURT.

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