Summary
granting summary judgment dismissing plaintiff's § 200 claim because defendant general contractor did not exercise the requisite supervision or control over plaintiffs work, notwithstanding fact that plaintiff fell on a patch of ice as he walked beside a truck parked near a lot on which a home was being built
Summary of this case from Feigles v. Costal Lumber Co.Opinion
July 3, 1997
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Denman, P. J., Green, Doerr, Balio and Fallon, JJ.
Supreme Court properly granted the motion of Sherwood for summary judgment dismissing the complaint and all cross claims against it, but erred in denying the motion of Zelasko for summary judgment dismissing the complaint and all cross claims against it. The cause of action pursuant to Labor Law § 241 (6) should have been dismissed against both defendants. 12 NYCRR 23-1.7 (d) has no application to the facts of this case because the accident did not occur on a "floor, passageway, walkway, scaffold, platform or other elevated working surface" ( see, Ramski v. Zappia Enters., 229 A.D.2d 990; Stairs v. State St. Assocs., 206 A.D.2d 817, 818).
The cause of action pursuant to Labor Law § 200 also should have been dismissed against both defendants because neither defendant exercised the requisite degree of supervision or control over plaintiff's work ( see, Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 877). Consequently, the order is modified by granting the motion of Zelasko for summary judgment dismissing the complaint and all cross claims against it. (Appeals from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.