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Riley v. John W. Stickl Const. Co., Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 30, 1997
242 A.D.2d 936 (N.Y. App. Div. 1997)

Summary

granting summary judgment to defendant landowner because "the defect or dangerous condition [wa]s created by the contractor's own methods of work"

Summary of this case from Wojcik v. 42nd Street Development Project, Inc.

Opinion


242 A.D.2d 936 662 N.Y.S.2d 660 John RILEY and Carol Riley, Respondents-Appellants, v. JOHN W. STICKL CONSTRUCTION CO., INC., Appellant-Respondent. JOHN W. STICKL CONSTRUCTION CO., INC., Third-Party Plaintiff-Appellant, v. John McNAMEE, d/b/a McNamee Construction Co., Third-Party Defendant-Respondent. 1997-07920 Supreme Court of New York, Fourth Department September 30, 1997.

        [662 N.Y.S.2d 661] Kavinokys&sCook, LLP by R. Anthony Rupp, Buffalo, for respondents-appellants.

        Hodgson, Russ, Andrews, Woodss&sGoodyear, LLP by Mark Frentzel, Buffalo, for third-party plaintiff-appellant.

        Hurwitzs&s Fine, P.C. by Vincent Saccomando, Buffalo, for third-party defendant-respondent.

        Before GREEN, J.P., and PINE, DOERR, BALIO and FALLON, JJ.

        MEMORANDUM:

        Defendant hired third-party defendant, John McNamee, d/b/a McNamee Construction Co. (McNamee), to perform rough framing work on a single-family residence under construction. McNamee employees completed the first floor deck and were in the process of constructing the exterior walls when John Riley (plaintiff), a McNamee employee, stepped into an unguarded stairwell opening in the first floor deck and fell one story to the basement floor.

        Supreme Court properly granted that part of defendant's motion for summary judgment dismissing the Labor Law § 240(1) cause of action. Plaintiff's fall from the first floor deck was not a fall from an elevated work site within the meaning of section 240(1) (see, Lewis v. Corh Assocs., 227 A.D.2d 912, 643 N.Y.S.2d 442; see also, Mazzu v. Benderson Dev. Co., 224 A.D.2d 1009, 1010-1011, 637 N.Y.S.2d 540). Further, the court properly denied that part of defendant's motion for summary judgment dismissing the Labor Law § 241(6) cause of action. Section 23-1.7(b)(1) of the Industrial Code (12 NYCRR 23-1.7[b][1] ) provides specific standards regarding the placement of a substantial cover or safety railing to guard hazardous openings, and plaintiff raised triable issues of fact whether those standards were violated.

        The court erred, however, in denying that part of the motion of defendant for summary judgment dismissing the common-law [662 N.Y.S.2d 662] negligence and Labor Law §§ 200 and 241-a causes of action and in denying that part of its motion for conditional summary judgment on its third-party complaint for common-law indemnification. Section 241-a does not apply where, as here, the worker falls only one story (see, Marcellino v. Nigro, 149 A.D.2d 775, 777, 539 N.Y.S.2d 820; Lancella v. Mario Genovesis&sSons, 162 Misc.2d 117, 118-119, 615 N.Y.S.2d 621). With respect to the common-law negligence and Labor Law § 200 causes of action, defendant is not liable for failing to provide a safe place to work where the defect or dangerous condition is created by the contractor's own methods of work and defendant did not exercise supervisory control over the contractor's work (see, Comes v. New York State Elec.s&sGas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110). Defendant met its initial burden, and plaintiff submitted no evidence that defendant exercised supervisory control over the method of McNamee's work. Defendant's general supervision and presence at the work site to check on the progress of the work and compliance with building specifications does not constitute the control or supervision necessary to establish liability under section 200 or for common-law negligence (see, McCune v. Black Riv. Constructors, 225 A.D.2d 1078, 1079, 639 N.Y.S.2d 203; Enderlin v. Hebert Indus. Insulation, 224 A.D.2d 1020, 638 N.Y.S.2d 262). In the absence of proof that it exercised supervisory control over McNamee's work, defendant was entitled to conditional summary judgment on its third-party complaint for common-law indemnification (see, Stimson v. Lapp Insulator Co., 186 A.D.2d 1052, 1053, 588 N.Y.S.2d 494). Thus, we modify the order by granting that part of defendant's motion for conditional summary judgment on the third-party complaint for common-law indemnification and for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 241-a causes of action.

        Order unanimously modified on the law and as modified affirmed without costs.


Summaries of

Riley v. John W. Stickl Const. Co., Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 30, 1997
242 A.D.2d 936 (N.Y. App. Div. 1997)

granting summary judgment to defendant landowner because "the defect or dangerous condition [wa]s created by the contractor's own methods of work"

Summary of this case from Wojcik v. 42nd Street Development Project, Inc.

In Riley the plaintiff also stepped into an unguarded stairwell opening on the floor deck and fell one story to the floor below.

Summary of this case from Martucci v. TIRRO CONSTR.
Case details for

Riley v. John W. Stickl Const. Co., Inc.

Case Details

Full title:JOHN RILEY et al., Respondents-Appellants, v. JOHN W. STICKL CONSTRUCTION…

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

Date published: Sep 30, 1997

Citations

242 A.D.2d 936 (N.Y. App. Div. 1997)
662 N.Y.S.2d 660

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