Aragona v. State

In a claim to recover damages for personal injuries, the claimant appeals from an order of the Court of Claims (Lack J.), dated September 21, 2009, which granted the defendant’s motion for summary judgment dismissing the claim.

Ordered that the order is modified, on the law, by deleting the provisions thereof granting those branches of the defendant’s motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence claims and so much of the Labor Law § 241 (6) claim as was based upon an alleged violation of 12 NYCRR 23-1.7 (e) (1), and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The claimant alleged that the defendant contracted with Modern Continental Construction Co., Inc. (hereinafter Modern), to do construction work on the Wantagh Parkway Bridge over the Sloop Channel. The claimant was employed by Modern as a dock builder and allegedly was injured when he tripped on a padeye, which was welded to the deck of a work barge, as he was carrying materials along a corridor created by lumber and construction material. The claimant filed a claim against the defendant alleging violations of Labor Law §§ 200 and 241 (6) and common-law negligence. The Court of Claims granted the defendant’s motion for summary judgment dismissing the claim. We modify.

The court erred in granting those branches of the defendant’s motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence claims. Labor Law § 200 codifies the common-law duty imposed upon an owner or contractor to maintain a safe construction site (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Colon v Bet Torah, Inc., 66 AD3d 731 [2009]; Lane v Fratello Constr. Co., 52 AD3d 575 [2008]). Liability for a violation of Labor Law § 200 and common-law negligence may be imposed upon a property owner where, as here, the claimant’s injuries arose not from the man

The Court of Claims also erred in granting that branch of the defendant’s motion which was for summary judgment dismissing so much of the Labor Law § 241 (6) claim as was based upon 12 NYCRR 23-1.7 (e) (1). “Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers . . . [i]n order to recover damages on a cause of action alleging a violation of Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards” (Hricus v Aurora Contrs., Inc., 63 AD3d 1004 , 1005 [2009] [internal quotation marks omitted]). Here, the defendant failed to demonstrate that 12 NYCRR 23-1.7 (e) (1) was inapplicable. The defendant failed to show the absence of triable issues of fact as to whether the claimant slipped in a passageway (see Canning v RFD 82nd St., 285 AD2d 439 [2001]; see also Bopp v A.M. Rizzo Elec. Contrs., Inc., 19 AD3d 348 [2005]; Sergio v Benjolo N.V., 168 AD2d 235 [1990]), and whether the padeye was an integral part of the construction (c f. O’Sullivan v IDI Constr. Co., Inc., 7 NY3d 805 [2006]).

However, the Court of Claims properly granted that branch of the defendant’s motion which was for summary judgment dismissing so much of the Labor Law § 241 (6) claim as was based upon 12 NYCRR 23-1.7 (e) (2). The defendant satisfied its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that 12 NYCRR 23-1.7 (e) (2) was inapplicable, as the padeye was not a sharp projection (see Passaro v 163-15 N. Flushing Corp., 70 AD3d 795 [2010]; Saccenti v City of New York, 45 AD3d 665 [2007]; Tucker v Tishman Constr. Corp. of N.Y., 36 AD3d 417 [2007]; Dalanna v City of New York, 308 AD2d 400 [2003]). In opposition, the claimant failed to raise a triable issue of fact.

The Court of Claims also properly granted that branch of the defendant’s motion which was for summary judgment dismissing so much of the Labor Law § 241 (6) claim as was based upon 12 NYCRR 23-2.1. Although the provisions of 12 NYCRR