BANNISTER, THOMAS v. LPCIMINELLI, INC. ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
240
CA 11-02046
PRESENT: SCUDDER, P.J., SMITH, CARNI, AND SCONIERS, JJ.
THOMAS BANNISTER AND LAURA BANNISTER,
PLAINTIFFS-RESPONDENTS,
V MEMORANDUM AND ORDER
LPCIMINELLI, INC., CITY OF BUFFALO, BUFFALO
PUBLIC SCHOOLS AND BOARD OF EDUCATION OF CITY
OF BUFFALO, DEFENDANTS-APPELLANTS.
HODGSON RUSS LLP, BUFFALO (RYAN J. LUCINSKI OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.
MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.
Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered January 6, 2011 in a personal injury action. The
order denied defendants’ motion for summary judgment.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting those parts of defendants’
motion for summary judgment dismissing the Labor Law § 200 and common-
law negligence causes of action insofar as they are based on
defendants’ alleged supervision and control of plaintiff’s work and
the Labor Law § 241 (6) cause of action, and dismissing those causes
of action to that extent, and as modified the order is affirmed
without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries sustained by Thomas
Bannister (plaintiff) when he slipped on ice and fell while working in
an open courtyard at a school renovation project. We agree with
defendants that Supreme Court erred in denying those parts of their
motion seeking summary judgment dismissing the Labor Law § 200 and
common-law negligence causes of action insofar as they are based on
defendants’ alleged supervision and control over plaintiff’s work, and
we therefore modify the order accordingly. Defendants established as
a matter of law that they did not have the authority to supervise or
control the methods and manner of plaintiff’s work (see Ortega v
Puccia, 57 AD3d 54, 61-63; Wade v Atlantic Cooling Tower Servs., Inc.,
56 AD3d 547, 549-550), and plaintiffs failed to raise a triable issue
of fact sufficient to defeat those parts of the motion (see generally
Zuckerman v City of New York, 49 NY2d 557, 562). We further conclude,
however, that the court properly denied defendants’ motion with
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CA 11-02046
respect to those causes of action insofar as they are based on the
defective condition of the property where the project was located.
Plaintiffs “need not establish that defendants had supervisory control
over the work being performed in the event that the accident was
caused by a defective condition on the premises and defendants had
actual [or] constructive notice of such defect” (McCormick v 257 W.
Genesee, LLC, 78 AD3d 1581, 1582; see also Ozimek v Holiday Val.,
Inc., 83 AD3d 1414, 1416). Where, as here, the plaintiff slipped and
fell on ice, the defendants “were required to establish ‘that the ice
formed so close in time to the accident that [they] could not
reasonably have been expected to notice and remedy the condition’ ”
(Sullivan v RGS Energy Group, Inc., 78 AD3d 1503, 1503). Although
defendants submitted plaintiff’s deposition testimony that he did not
inform defendants of the icy condition, we conclude that such evidence
alone is insufficient to establish that they did not have actual or
constructive notice of the icy condition.
We agree with defendants that the court erred in denying that
part of their motion seeking summary judgment dismissing the Labor Law
§ 241 (6) cause of action, and we therefore further modify the order
accordingly. To recover pursuant to Labor Law § 241 (6), plaintiffs
“must allege a violation of an applicable regulation ‘mandating
compliance with concrete specifications,’ as opposed to ‘those that
establish general safety standards’ ” (Motyka v Ogden Martin Sys. of
Onondaga Ltd. Partnership, 272 AD2d 980, 981, quoting Ross v Curtis-
Palmer Hydro-Elec. Co., 81 NY2d 494, 505). Although the complaint, as
amplified by the bill of particulars, alleges multiple violations of
the Industrial Code, plaintiffs conceded at oral argument on
defendants’ motion that the section 241 (6) cause of action was
premised solely upon a violation of 12 NYCRR 23-1.7 (d). Thus, the
court erred in denying those parts of defendants’ motion seeking
summary judgment dismissing the Labor Law § 241 (6) cause of action
insofar as it was based on the alleged violation of the remaining
regulations.
Pursuant to 12 NYCRR 23-1.7 (d), “[e]mployers shall not . . .
permit any employee to use a floor, passageway, walkway, scaffold,
platform or other elevated working surface which is in a slippery
condition. Ice, snow, water, grease and any other foreign substance
which may cause slippery footing shall be removed, sanded or covered
to provide safe footing.” We conclude, however, that the regulation
is inapplicable here based on the circumstances of plaintiff’s fall.
Although that regulation “proscribes slipping hazards” (Farrell v Blue
Circle Cement, Inc., 13 AD3d 1178, 1179, lv denied 4 NY3d 708), it
does not apply where “the accident occurred in an open area and not on
a defined walkway, passageway or path” (Bale v Pyron Corp., 256 AD2d
1128, 1128). In support of their motion, defendants established that
the open courtyard in which plaintiff slipped does not constitute a
walkway, passageway or path sufficient to support a cause of action
based on an alleged violation of 12 NYCRR 23-1.7 (d) (see Hertel v
Hueber-Breuer Constr. Co., Inc., 48 AD3d 1259, 1260; Ramski v Zappia
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CA 11-02046
Enters., 229 AD2d 990).
Entered: March 23, 2012 Frances E. Cafarell
Clerk of the Court