Chuqui v Church of St. Margaret Mary

Chuqui v Church of St. Margaret Mary 2007 NY Slip Op 03573 [39 AD3d 397] April 24, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

Luis Chuqui, Appellant,
v
Church of Saint Margaret Mary, Respondent and Third-Party Plaintiff. Promo Pro Ltd., Third-Party Defendant-Respondent.

—[*1] The Pagan Law Firm, P.C., New York (Tania M. Pagan of counsel), for appellant.

Eustace & Marquez, White Plains (Kenneth L. Gresham of counsel), for Church of Saint Margaret Mary, respondent.

Dougherty, Ryan, Giuffra, Zambito & Hession, New York (Robert J. Giuffra of counsel), for Promo Pro Ltd., respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered December 23, 2005, which, in an action for personal injuries under the Labor Law, upon converting defendant premises owner's motion to dismiss for failure to state a cause of action into a motion for summary judgment, dismissed the complaint, unanimously affirmed, without costs.

Defendant's post-note of issue motion to dismiss for failure to state a cause of action was timely since such a motion can be made at any time (CPLR 3211 [e]), and the CPLR 3212 (a) requirement of demonstrating good cause for the delay is not implicated. Since it was plaintiff himself who requested that the motion be converted into one for summary judgment (CPLR 3211 [c]), he will not be heard to complain that summary judgment treatment was improper. No cause of action exists under Labor Law § 240 (1). Although the heating unit that plaintiff was manually realigning had been placed on the roof by a crane, the injury plaintiff suffered when his hand got stuck between the unit and the platform on which it was resting was a general hazard of the workplace and not the result of a significant risk inherent in the elevation differential between the unit and the platform (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268-269 [2001]). Nor is there a cause of action under Labor Law § 200, since the construction contract provided that the contractor would supervise and direct all of the work (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]), and defendant's retention of access to check the progress and quality of the work was merely a right to exercise general supervision (see O'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225, 226-227 [2006], affd 7 NY3d 805 [2006]). The section relied [*2]on by plaintiff for his Labor Law § 241 (6) claim, 12 NYCRR 23-1.7 (e) (2), entitled "Working areas" under the heading "Tripping and other hazards," is inapplicable to the facts of this case. The reference therein to "platforms" (along with "floors" and "similar areas where persons work or pass") is clearly to the type of platform upon which one walks. By contrast, the platform here was something on which the heating unit rested. Moreover, plaintiff, in his deposition testimony, could offer only speculation as to whether his hand was injured by a "sharp projection."

We have considered plaintiff's other contentions and find them unavailing. Concur—Tom, J.P., Mazzarelli, Sullivan, Gonzalez and McGuire, JJ.