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Fisher v. Brown Group, Inc.

256 A.D.2d 1069 Court N.Y. App. Div. Decision date 1998-12-31 English

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p. 1069
James Fisher, Appellant, v Brown Group, Inc., Respondent and Third-Party Plaintiff. Asbestos Removal Services, Inc., Third-Party Defendant-Respondent.
[683 NYS2d 773]

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of plaintiff for partial summary judgment on defendant’s liability under Labor Law § 241 (6). Contrary to plaintiff’s contention, the violation of a specific provision of the Industrial Code, even if admitted by defendant, “does not establish negligence as a matter of law but is ‘merely some evidence to be considered on the question of a defendant’s negligence’ ” (Schmeer v County of Monroe, 175 AD2d 633 , 633-634, quoting Zimmer v Chemung County Performing Arts, 65 NY2d 513 , 522, rearg denied 65 NY2d 1054 ; see, Sacchetti v Vasile Constr. Corp., 254 AD2d 777 ; Ir-

p. 1070
win v St. Joseph’s Intercommunity Hosp., 236 AD2d 123 , 131). We reject plaintiffs contention that defendant and third-party defendant should be precluded from introducing evidence of plaintiffs comparative negligence at trial. Comparative negligence is a valid defense to a Labor Law § 241 (6) cause of action (see, Long v Forest-Fehlhaber, 55 NY2d 154 , 161, rearg denied 56 NY2d 805 ). Defendant raised comparative negligence as a defense, and the factual issues with respect to that defense should be resolved at trial (see, Sacchetti v Vasile Constr. Corp., supra; Irwin v St. Joseph’s Intercommunity Hosp., supra, at 132 ; see also, Giraldez v City of New York, 214 AD2d 461 , 462).

The court properly granted the cross motion of defendant for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action. Defendant established that the dangerous condition arose from the methods of plaintiffs employer and that defendant exercised no supervisory control over the work being performed (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876 , 877; Lombardi v Stout, 80 NY2d 290 , 295). Defendant’s mere presence at the worksite is insufficient to impose liability under Labor Law § 200 (see, Lysiak v Murray Realty Co., 227 AD2d 746 , 749; Pazmino v Woodside Dev. Co., 212 AD2d 520 , 521).

The court also properly denied plaintiffs motion in limine to preclude defendant and third-party defendant from introducing evidence related to plaintiffs injuries and damages (cf., Kish v Board of Educ., 76 NY2d 379 , 385-386). (Appeal from Order of Supreme Court, Erie County, Howe, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Callahan, Balio and Boehm, JJ.

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