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p. 912John Colella et al., Appellants, v Homer F. Donaldson, Respondent. [690 NYS2d 385]
—Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint. Defendant and John Colella (plaintiff) were installing a monorail system at the factory of plaintiffs employer, which was to furnish any necessary personnel and hoisting equipment. Plaintiff injured his back while assisting defendant in lifting one end of a beam and commenced this action asserting the violation of Labor Law § 200 and common-law negligence. Because defendant controlled the manner and method of
p. 913
plaintiffs work, he owed a duty to exercise reasonable care for plaintiffs safety with respect to both Labor Law § 200 and common-law negligence (see, Russin v Picciano & Son, 54 NY2d 311 , 316-317; Zachara v Occidental Chem. Corp., 144 AD2d 926 ; cf., Kanney v Goodyear Tire & Rubber Co., 245 AD2d 1034 ; Smith v Cassadaga Val. Cent. School Dist., 178 AD2d 955 , 957). Because defendant failed to meet his burden of establishing that he was not negligent as a matter of law, the motion must be denied (see, Amann v Key Foods Supermarkets, 196 AD2d 759 ; see also, Walsh v Amherst Constr. Co., 226 AD2d 1053 ). (Appeal from Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Pigott, Jr., Hurlbutt and Callahan, JJ.
Cases cited
- Russin v. Louis N. Picciano & Son 54 NY2d 311 at 316-317 p. 913
- Kanney v. Goodyear Tire & Rubber Co. 245 AD2d 1034 p. 913
- Smith v. Cassadaga Valley Central School District 178 AD2d 955 at 957 p. 913