Majority
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated November 28, 2006, as denied their cross motion for summary judgment on the issue of liability on their Labor Law § 240 (1) cause of action insofar as asserted against the defendants E.W Howell Co., Inc., and Norwegian Christian Home and Health Center, and granted those branches of the cross motion of those defendants which were for summary judgment dismissing the Labor Law § 240 (1) cause of action insofar as asserted against them, and dismissing the Labor Law § 200 cause of action insofar as asserted against the defendant E.W Howell Co., Inc.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
The plaintiff Ilia Kajo (hereinafter Kajo) allegedly was injured while he and others were using ropes to pull a large, heavy panel hanging from a crane through the open wall of the fourth floor of a building under construction. He and his wife, asserting derivative claims, commenced this action against, among others, the general contractor on the project, E.W. Howell Co., Inc. (hereinafter Howell), and the owner of the building, Norwegian Christian Home and Health Center (hereinafter Norwegian), seeking damages, inter alia, for violations of Labor Law § 240 (1) and § 200. The plaintiffs appeal from so much of an order as granted those branches of the cross motion of Howell and Norwegian which were for summary judgment dismissing the Labor Law § 240 (1) cause of action insofar as asserted against them, and dismissing the Labor Law § 200 cause of action insofar as asserted against Howell. The plaintiffs also appeal from so much of the same order as denied their cross motion for summary judgment on the issue of liability on their Labor Law § 240 (1) cause of action insofar as asserted against those defendants. We affirm.
Labor Law § 240 (1) imposes a nondelegable duty upon own
The Supreme Court also properly granted that branch of the cross motion of those defendants which was for summary judgment dismissing the Labor Law § 200 cause of action insofar as asserted against Howell. Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]; Haider v Davis, 35 AD3d 363 [2006]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847 [2006]). Where the injury allegedly arises from the means and methods of the work performed, an implicit precondition to this duty is that the party charged with that responsibility have the authority to control the activity bringing about the injury (see Ferrero v Best Modular Homes, Inc., 33 AD3d 847 [2006]). Where, as here, the challenged methods are those of a subcontractor, and the owner or general contractor exercises no supervisory control over the operation, no liability attaches to the owner or general contractor under the common law or under Labor Law § 200 (see Haider v Davis, 35 AD3d 363 [2006]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847 [2006]). Here, Howell demonstrated, prima facie, that although Kajo’s injury was sustained as a
Cases cited
- Misseritti v. Mark IV Construction Co. 86 NY2d 487 at 490-491 p. 661
- Ross v. Curtis-Palmer Hydro-Electric Co. 81 NY2d 494 at 500-501, at 501 p. 661
- Rocovich v. Consolidated Edison Co. 78 NY2d 509 at 513 p. 661
- Nieves v. Five Boro Air Conditioning & Refrigeration Corp. 93 NY2d 914 at 915-916 p. 661
- Tsatsakos v. Citicorp 295 AD2d 500 at 501 p. 661
- Toefer v. Long Islan Rail Road 4 NY3d 399 at 405, 409 p. 661
- Parker v. Ariel Associates Corp. 19 AD3d 670 at 671-672 p. 661
- Comes v. New York State Electric & Gas Corp. 82 NY2d 876 p. 661
- Haider v. Davis 35 AD3d 363 p. 661, p. 662