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Greso v. Nichter Construction Co.

267 A.D.2d 1074 Court N.Y. App. Div. Decision date 1999-12-30 English

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p. 1074
Paul T. Greso et al., Respondents, v Nichter Construction Co., Inc., et al., Defendants, and Ciminelli-Cowper Co., Inc., Appellant.
[700 NYS2d 348]

—Order insofar as appealed from unanimously reversed on the law without costs, motion granted and complaint against defendant Ciminelli-Cowper Co., Inc. dismissed. Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Paul T. Greso (plaintiff) when he fell down a permanent stairway. At the time of his fall, plaintiff was carrying a bolt of wall-covering up the stairway. Supreme Court erred in denying that part of the motion of Ciminelli-Cowper Co., Inc. (defendant) seeking summary judgment dismissing the Labor Law § 240 (1) claim. “Labor Law § 240 (1) does not apply where plaintiff falls on a

p. 1075
permanently installed stairway” (Monroe v New York State Elec. & Gas Corp., 186 AD2d 1019 ). Speculation that plaintiff could have safely performed his work with the aid of a material hoist does not defeat defendant’s entitlement to summary judgment dismissing the Labor Law § 240 (1) claim (see, Zuckerman v City of New York, 49 NY2d 557 , 562). The fact remains that the stairway where plaintiff fell “was undisputedly a permanent passageway between two parts of the building, and was not a tool or device employed solely to provide access to an elevated worksite” (Sponholz v Benderson Prop. Dev., 266 AD2d 815 ).

The court also erred in denying that part of defendant’s motion seeking summary judgment dismissing the Labor Law § 200 claim and the common-law negligence cause of action. Defendant established that it exercised no supervisory control over the method of plaintiff’s work (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876 , 877; McCune v Black Riv. Constructors, 225 AD2d 1078 , 1079), and plaintiffs failed to submit proof raising a triable issue of fact. (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Summary Judgment.) Present — Green, J. P., Hayes, Scudder and Balio, JJ.

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