Opinion
2003-02256.
Decided April 5, 2004.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated February 24, 2003, which granted the motion of the defendant Carl Kruger, s/h/a Carl Cruger for summary judgment dismissing the complaint insofar as asserted against him.
Levine Gilbert, New York, N.Y. (Richard A. Gilbert of counsel), for appellants.
Baron Associates, P.C., Brooklyn, N.Y. (Bruce Provda of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, THOMAS A. ADAMS, REINALDO E. RIVERA, JJ.,
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was for summary judgment dismissing the cause of action to recover damages for common-law negligence insofar as asserted against the defendant Carl Kruger, s/h/a Carl Cruger and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs, and the cause of action to recover damages for common-law negligence insofar as asserted against Carl Kruger, s/h/a Carl Cruger is reinstated.
"A common-law duty rests on an owner or general contractor to provide a safe place to work which protects employees of subcontractors" ( Caspersen v. LaSala Bros., 253 N.Y. 491; see Rusin v. Jackson Hgts. v. Shopping Ctr., 27 N.Y.2d 103). Liability for common-law negligence will attach where a plaintiff's injuries were sustained as the result of a defective or dangerous condition at a work site, only if the owner or general contractor exercised supervision and control over the work performed at the site or had actual or constructive notice of the defective condition causing the accident ( see Duncan v. Perry, 307 A.D.2d 249; Giambalvo v. Chemical Bank, 260 A.D.2d 432; Cuartas v. Kourkoumelis, 265 A.D.2d 293; Sprague v. Peckham Materials Corp., 240 A.D.2d 392). The defendant Carl Kruger, s/h/a Carl Cruger failed to meet his burden of establishing his prima facie entitlement to judgment as a matter of law by demonstrating that he did not supervise or control the work performed at the site, or have actual or constructive notice of the alleged defective condition that caused the injured plaintiff's accident. Thus, the Supreme Court improperly granted that branch of his motion which was for summary judgment dismissing the cause of action to recover damages for common-law negligence insofar as asserted against him. Accordingly, we reinstate that cause of action.
SANTUCCI, J.P., SCHMIDT, ADAMS and RIVERA, JJ., concur.