Burgalassi v Mandell Mech. Corp.

Burgalassi v Mandell Mech. Corp. 2007 NY Slip Op 02432 [38 AD3d 363] March 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Alexander Burgalassi, Respondent,
v
Mandell Mechanical Corporation, Appellant, and Bovis Lend Lease LMB Inc. et al., Defendants and Third-Party Plaintiffs-Respondents. Pinnacle Industries II, LLC, Third-Party Defendant-Respondent, et al., Third-Party Defendant. (And Another Third-Party Action.)

—[*1] London Fischer LLP, New York (Brian A. Kalman of counsel), for appellant.

Arthur G. Nevins, Jr., New York, for Alexander Burgalassi, respondent.

Newman Fitch Altheim Myers, P.C., New York (Stephen N. Shapiro of counsel), for Bovis Lend Lease LMB Inc. and 455 Central Park West, LLC., respondents.

Morris Duffy Alonso & Faley, LLP, New York (Pauline E. Glaser of counsel), for Pinnacle Industries II, LLC, respondent.

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered October 24, 2006, which, to the extent appealed from as limited by the briefs, denied defendant Mandell Mechanical's motion for summary judgment on plaintiff's claims against it under Labor Law § 200 and for common-law negligence, and denied the motion by defendants Bovis Lend Lease and 455 Central Park West for summary judgment dismissing all claims and cross claims against them, unanimously modified, on the law, and upon a search of the record, the motion by Bovis and 455 granted the section 200 and common-law claims and cross claims as against them dismissed, and otherwise affirmed, without costs.

The motion court properly determined that issues of fact exist as to whether Mandell was negligent in the performance of its work and whether such negligence, if any, was a proximate [*2]cause of plaintiff's accident. Summary judgment was thus properly denied to Mandell with respect to plaintiff's claims pursuant to Labor Law § 200 and common-law negligence.

Although the Bovis and 455 defendants did not file a notice of appeal from the denial of their motion for summary judgment, upon a search of the record, we grant summary judgment dismissing the section 200 and common-law claims and cross claims against them (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]). The evidence indicated only that Bovis had general supervisory and coordinating authority at the work site, which is insufficient to trigger liability, and there was no evidence that 455 supervised or controlled any work performed at the site (O'Sullivan v IDI Constr. Co., Inc., 7 NY3d 805 [2006]; Singh v Black Diamonds LLC, 24 AD3d 138 [2005]). Concur—Mazzarelli, J.P., Friedman, Buckley, Catterson and Malone, JJ.