Bommaritov.Park Avenue Plaza Co.

Appellate Division of the Supreme Court of New York, Second DepartmentAug 11, 2003
307 A.D.2d 944 (N.Y. App. Div. 2003)

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2001-06793

Argued June 5, 2003.

August 11, 2003.

In an action to recover damages for personal injuries, etc., the defendant Park Avenue Plaza Company appeals from a judgment of the Supreme Court, Kings County (Held, J.), entered March 2, 2001, which, upon, inter alia, a jury verdict, and the denial of that branch of the appellant's motion pursuant to CPLR 4404(a) which was for judgment as a matter of law, is in favor of the plaintiffs and against it in the principal sum of $360,000.

Carol R. Finocchio, New York, N.Y. (Lawrence Goodman of counsel), for appellant.

Talisman, Rudin DeLorenz, P.C. (Schapiro Reich, Lindenhurst, N.Y. [Perry S. Reich and Steven M. Schapiro] of counsel), for respondents.

Before: ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.


DECISION ORDER

ORDERED that the judgment is reversed, on the law, with costs, that branch of the appellant's motion pursuant to CPLR 4404(a) which was for judgment as a matter of law is granted, and the complaint is dismissed.

A cause of action based on premises liability must establish that the alleged hazardous condition was created by the defendant or that the defendant had actual or constructive notice thereof ( see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967; Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837; Meyerson v. Waldbaum, Inc., 265 A.D.2d 535 ; Hollinger v. Chestnut Ridge Racquet Corp., 227 A.D.2d 380; Kraemer v. K-Mart Corp., 226 A.D.2d 590). Here, there was no proof that the defendant Park Avenue Plaza Company (hereinafter the defendant) the owner at the subject premises created the alleged hazardous condition, or had actual or constructive notice of the condition ( see Gordon v. American Museum of Natural History, supra; Kraemer v. K-Mart Corp., supra; Calabrese v. B.P.O. Elks Lodge No. 744, 215 A.D.2d 345; cf. Gordon v. Waldbaum, Inc., 231 A.D.2d 673). Accordingly, the cause of action to recover damages based on premises liability should have been dismissed.

The plaintiffs' cause of action pursuant to Labor Law § 200 also should have been dismissed because there was no evidence that the defendant exercised supervisory control over the contractor's operations ( see Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 877; Jacobsen v. Grossman, 206 A.D.2d 405).

The plaintiffs' cause of action pursuant to Labor Law § 241(6) also should have been dismissed because there was no basis for the finding that the plaintiff Salvatore Bommarito slipped on a piece of construction debris ( see Krohn v. Melanson, 298 A.D.2d 510; Barretta v. Trump Plaza Hotel Casino, 278 AD23d 262; Ziajka v. Pace Plumbing Corp., 254 A.D.2d 480; Garvin v. Rosenberg, 204 A.D.2d 388; Earle v. Channel Home Center, 158 A.D.2d 507), and no evidence that the defendant had notice of a hazardous condition ( see Gordon v. American Museum of Natural History, supra; McCague v. Walsh Constr., 225 A.D.2d 530).

In light of our determination, the defendant's remaining contention is academic.

FLORIO, J.P., FRIEDMANN, TOWNES and MASTRO, JJ., concur.