Young v. J.M. Moran Properties, Inc.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff was injured when he slipped on mud on the floor of the loading bay in a building owned by defendant, J.M. Moran Properties, Inc. (Moran), and leased by third-party defendant, Darin Construction Enterprises, Inc. (Darin), plaintiff’s employer, for commercial purposes. Plaintiff fell while walking toward the back of a truck to unload tools and equipment used in a recently completed construction project.

The complaint alleges causes of action for common-law negligence and violations of Labor Law §§ 200 and 241 (6). Moran commenced a third-party action against Darin for contribution and indemnification. Darin moved for summary judg

The court properly denied the motion with respect to the common-law negligence cause of action. Although an out-of-possession landlord generally is not liable for injuries resulting from the condition of the leased premises (see, Putnam v Stout, 38 NY2d 607 , 616-618), one who retains control of the premises or contracts to repair or maintain property may be liable for defects (see, Henness v Lusins, 229 AD2d 873 , 874). Pursuant to the lease, Moran transferred possession and control to Darin but retained responsibility for structural repairs of the premises. Thus, there is a question of fact concerning Moran’s liability in common-law negligence for defects in the condition of the loading bay (see, De Cristofaro v Joann Enters., 243 AD2d 1015 , 1016-1017).

The court erred, however, in failing to grant the motion with respect to the Labor Law § 200 claim. Construction work was not being performed on the property leased by Moran to Darin, and thus Moran had no duty pursuant to Labor Law § 200 “to provide construction site workmen with a safe place to work” (Russin v Picciano & Son, 54 NY2d 311 , 317; see, Allen v Cloutier Constr. Corp., 44 NY2d 290 , 299, rearg denied 45 NY2d 776 ). In any event, there is no indication in the record that Moran supervised or controlled plaintiff’s work (see, De Cristofaro v Joann Enters., supra, at 1018 ; Lafleur v Power Test Realty Co. Ltd. Partnership, 159 AD2d 691 , 692).

We reject the contention of plaintiff on his cross appeal that the court erred in granting the motion with respect to the Labor Law § 241 (6) claim. Plaintiff was not engaged in construction work when he was injured (see, Parot v City of Buffalo, 174 AD2d 1034 ).

We modify the order, therefore, by granting that part of the motion seeking dismissal of the Labor Law § 200 claim. (Appeals from Order of Supreme Court, Erie County, Notaro, J. — Summary Judgment.) Present — Lawton, J. P., Hayes, Wisner, Pigott, Jr., and Callahan, JJ.