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Foster v. David J. Joseph Company

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 9, 1995
216 A.D.2d 944 (N.Y. App. Div. 1995)

Summary

affirming dismissal of § 200 claim because "defendant did not exercise supervision or control over the manner or method of plaintiffs work"

Summary of this case from Feigles v. Costal Lumber Co.

Opinion

June 9, 1995

Appeal from the Supreme Court, Niagara County, Mintz, J.

Present — Denman, P.J., Lawton, Wesley, Balio and Boehm, JJ.


Order unanimously affirmed without costs. Memorandum: Plaintiff was injured while repairing and assembling component parts of the cyclone unit of a grinder system used in the recycling of metal scrap. The repair, refurbishing and assembly of such heavy machinery and equipment is part of the customary business of his employer. Thus, "plaintiff was engaged in his `normal occupation' of repairing machinery at a repair shop, a task not a part of any construction project or any renovation or alteration to the repair shop itself" (Warsaw v. Eastern Rock Prods., 193 A.D.2d 1115). Plaintiff was not engaged in an activity protected by Labor Law § 240 (1) or § 241 (6) (see, Jock v. Fien, 80 N.Y.2d 965, 968; Warsaw v. Eastern Rock Prods., supra). Further, there is no basis for the imposition of liability pursuant to Labor Law § 200. The record shows that defendant did not exercise supervision or control over the manner or method of plaintiff's work (see, Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 877; cf., Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505). Thus, Supreme Court properly dismissed the complaint in its entirety.


Summaries of

Foster v. David J. Joseph Company

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 9, 1995
216 A.D.2d 944 (N.Y. App. Div. 1995)

affirming dismissal of § 200 claim because "defendant did not exercise supervision or control over the manner or method of plaintiffs work"

Summary of this case from Feigles v. Costal Lumber Co.
Case details for

Foster v. David J. Joseph Company

Case Details

Full title:RONALD FOSTER, Appellant, v. DAVID J. JOSEPH COMPANY, Respondent

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jun 9, 1995

Citations

216 A.D.2d 944 (N.Y. App. Div. 1995)
629 N.Y.S.2d 149

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