Cantarino v. New York Zoological Society

Appeal from the order of Supreme Court, Bronx County (Jack Turret, J.), entered May 22, 1989, which granted defendant’s cross motion to dismiss the complaint for failure to state a cause of action, and denied as moot plaintiffs’ motion to strike the answer for failure to comply with court-ordered discovery, is deemed an appeal from the judgment of that court, subsequently entered August 22, 1989 in favor of defendant, and, so considered, is unanimously affirmed, without costs.

Plaintiffs have failed to demonstrate how defendant’s beneficial interest in the construction work being performed on the Elephant House at the Bronx Zoo translated into an "ownership” interest or other control over the worksite, for purposes of establishing liability under the Scaffold Act (Labor Law § 240). Defendant’s interest in the project was, in accordance with its historic charter, as owner and protector of the animals, and conservator of the environs of the zoological park for the benefit of visitors to the zoo. Defendant never had, nor exercised, any control over daily progress at the worksite, or over the maintenance of proper safety practices for the construction workers there (Sweeting v Board of Coop. Educ. Servs., 83 AD2d 103, 114, Iv denied 56 NY2d 503). Even the additional discovery sought by plaintiffs would not establish such control. Concur—Asch, J. P., Kassal, Wallach and Rubin, JJ.