SANTORO v. Mass Electric Construction Company, Third-Party Defendant-Respondent.

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

Steven SANTORO, et al., Appellants, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent, General Railway Signal Corporation, Defendant Third-Party Plaintiff-Respondent, Mass Electric Construction Company, Third-Party Defendant-Respondent.

Decided: February 24, 2003

MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, HOWARD MILLER and THOMAS A. ADAMS, JJ. Peters, Berger, Koshel & Goldberg, P.C., (Richard Goldberg and Pollack, Pollack, Isaac & DeCicco, New York, NY, [Brian J. Isaac] of counsel), for appellants. Jeffrey Samel, New York, NY, (David Samel of counsel), for defendant-respondent. Hawkins, Feretic, Daly & Maroney, P.C., New York, NY, for defendant third-party plaintiff-respondent (no brief filed). Jacobowitz, Garfinkel & Lesman, New York, NY, (Fiedelman & McGaw [James K. O'Sullivan] of counsel), for third-party defendant-respondent.

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated September 21, 2001, as denied their motion for summary judgment on their Labor Law § 240(1) claim, and granted those branches of the separate cross motions of the defendant New York City Transit Authority, the defendant third-party plaintiff, General Railway Signal Corporation, and the third-party defendant, Mass Electric Construction Company, which were for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to New York City Transit Authority and Mass Electric Construction Company.

The plaintiff Steven Santoro allegedly was injured when he fell or jumped from the back of a flatbed truck when the truck began to tilt as he was operating an attached boom.   The plaintiffs commenced this action against the defendants for damages arising from, inter alia, a violation of Labor Law § 240(1).   The Supreme Court denied the plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and granted those branches of the separate cross motions of the defendant New York City Transit Authority, the defendant third-party plaintiff, General Railway Signal Corporation, and the third-party defendant, Mass Electric Construction Company, which were for summary judgment dismissing the complaint.   We affirm.

 The plaintiffs failed to demonstrate that the injuries alleged arose from a special elevation-related risk for which the protective devices in the statute were prescribed (see Tillman v. Triou's Custom Homes, 253 A.D.2d 254, 687 N.Y.S.2d 506;  see also Bond v. York Hunter Constr., 95 N.Y.2d 883, 715 N.Y.S.2d 209, 738 N.E.2d 356;  Dilluvio v. City of New York, 264 A.D.2d 115, 704 N.Y.S.2d 550, affd. 95 N.Y.2d 928, 721 N.Y.S.2d 603, 744 N.E.2d 138).   The “extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do ‘not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ ” (Nieves v. Five Boro Air Conditioning & Refrig. Corp., 93 N.Y.2d 914, 915-916, 690 N.Y.S.2d 852, 712 N.E.2d 1219, quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [emphasis in original];  see Tsatsakos v. Citicorp, 295 A.D.2d 500, 744 N.Y.S.2d 475).

 In opposition to the respondents' prima facie demonstration of entitlement to judgment as a matter of law on the plaintiffs' Labor Law § 200 and common-law negligence claims, the plaintiffs failed to raise a triable issue of fact that the defendants either had actual or constructive notice of a defective or dangerous condition, or exercised supervision and control over the work being performed (see Bond v. York Hunter Constr., supra ).   The general supervisory power over the underlying project exercised by the defendants was insufficient (see Alexandre v. City of New York, 300 A.D.2d 263, 750 N.Y.S.2d 651;  Singleton v. Citnalta Constr. Corp., 291 A.D.2d 393, 737 N.Y.S.2d 630).

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