Laudisio v. Diamond "D" Construction Corp. , 765 N.Y.S.2d 720 ( 2003 )

Appeal from an order of Supreme Court, Erie County (Mahoney, J.), entered July 23, 2002, which granted defendant’s motion for summary judgment dismissing the common-law negligence cause of action and the Labor Law § 200 claim and denied plaintiffs’ cross motion to strike the Workers’ Compensation Law affirmative defense.

It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs, the motion is denied, the common-law negligence cause of action and Labor Law § 200 claim are reinstated, the cross motion is granted and the Workers’ Compensation Law affirmative defense is stricken.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Dominic Laudisio (plaintiff) when he attempted to lift a drainage intake frame and cover onto a truck. Plaintiffs assert, inter alia, causes of action for common-law negligence and various Labor Law violations against defendant, the owner of the property where the accident occurred and also the general contractor on the project. Plaintiff was employed by Four Angels Construction Corp. (Four Angels) at the time of the accident. Both defendant and Four Angels are owned by Joseph DiPizio. In their complaint, plaintiffs allege, inter alia, that defendant was negligent in failing to provide a safe place to work, failing to provide adequate and proper lifting and hoisting equipment, and instructing plaintiff to accomplish a task that was unsafe and dangerous. Defendant moved for summary judgment dismissing the common-law negligence cause of action and Labor Law § 200 claim based on the exclusivity provisions of the Workers’ Compensation Law. Plaintiffs cross-moved to strike the Workers’ Compensation Law affirmative defense.

Supreme Court erred in granting defendant’s motion and denying plaintiffs’ cross motion. Workers’ Compensation Law § 29 (6) provides that workers’ compensation is the exclusive remedy for an employee injured “by the negligence or wrong of another in the same employ * * Defendant, however, concedes that it is a separate and distinct corporation from Four Angels. Where, as here, “an employer and the owner of the premises where a plaintiff is injured are distinct legal entities, there is no basis to dismiss an action against the landowner based on the exclusivity provisions of the Workers’ Compensation Law” (Richardson v Benoit’s Elec., 254 AD2d 798, 799 [1998]).

Defendant contends that, because plaintiffs cannot maintain an action against DiPizio individually for his negligently spoken words inasmuch as he is a coemployee of plaintiff, plaintiffs cannot maintain this action against defendant because the liability of defendant is based solely on its vicarious liability for DiPizio’s conduct. We disagree. Labor Law § 200 “is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. An implicit precondition to this duty ‘is that the party charged with that responsibility have the authority to control the activity bringing about the injury ” (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; see Miller v Wilmorite, Inc., 231 AD2d 843 [1996]). In this case, plaintiffs submitted evidence that defendant, as both the owner and general contractor, exercised supervisory control over the operation (cf. Comes, 82 NY2d at 877). Regardless of whether the negligence of defendant is characterized as vicarious or direct, the fact remains that it is not plaintiff’s coemployee, and thus defendant’s reliance on Heritage v Van Patten (59 NY2d 1017, 1019 [1983]) is misplaced. DiPizio, as ‘“[t]he individual principal[ ] in this business enterprise, for [his] own business and legal advantage, elected to operate that enterprise through separate corporate entities. The structure [he] created should not lightly be ignored at [his] behest, in order to shield one of the entities [he] created from * * * common-law tort liability ” (Richardson, 254 AD2d at 799; see Rodriguez v Margaret Tietz Ctr. for Nursing Care, 197 AD2d 565, 566-567 [1993]). The proof submitted by defendant in support of its motion fails to establish its entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

All concur except Hurlbutt, J., who dissents in part and votes to modify in accordance with the following memorandum.