Summary
noting that Regulation 23-1.21(b) is sufficiently specific to support a claim under Section 241
Summary of this case from Starkey v. Capstone Enterprises of PortchesterOpinion
Filed May 2, 2001.
Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Summary Judgment.
PRESENT: PINE, J.P., HAYES, WISNER, KEHOE AND BURNS, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following
Memorandum:
Plaintiffs commenced this action seeking damages for injuries sustained by John C. Perry (plaintiff) when he tripped and fell on debris at a construction site. Supreme Court properly denied that part of defendants' motion seeking summary judgment dismissing the common-law negligence cause of action and Labor Law § 200 claim. Defendants contend that they exercised no supervision or control over plaintiff's work. Plaintiffs allege, however, that the accident occurred as a result of a dangerous condition on the premises, and thus whether defendants supervised or controlled plaintiff's work is irrelevant ( see, Reisch v. Amadori Constr. Co., 273 A.D.2d 855, 857). Defendants failed to establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor had actual or constructive notice of the dangerous condition on the premises ( see, Skinner v. Oneida-Herkimer Solid Waste Mgt. Auth., 275 A.D.2d 890, 891; see also, Sponholz v. Benderson Prop. Dev., 273 A.D.2d 791, 792-793).
The court also properly denied that part of defendants' motion seeking summary judgment dismissing the Labor Law § 241 (6) claim. Contrary to defendants' contention, 12 NYCRR 23-1.7 and 23-2.1 ( see, Ozzimo v. H.E.S., Inc., 249 A.D.2d 912, 914; White v. Farash Corp., 224 A.D.2d 978, 979) are sufficiently specific to support the Labor Law § 241 (6) claim. In addition, defendants failed to establish that their liability under that claim is solely vicarious, and thus the court properly denied that part of their motion seeking common-law indemnification from third-party defendant ( cf., Chapel v. Mitchell, 84 N.Y.2d 345, 347-348).
Plaintiffs concede that Labor Law § 240 (1) does not apply to this action, and we therefore modify the order by granting that part of defendants' motion seeking summary judgment dismissing that claim and dismissing the Labor Law § 240 (1) claim. We have considered defendants' remaining contention and conclude that it is without merit.