Sean O'Sullivan v IDI Construction Company, Inc.

O'Sullivan v IDI Constr. Co., Inc. 2006 NY Slip Op 06344 [7 NY3d 805] August 31, 2006 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 01, 2006

[*1] Sean O'Sullivan, Appellant,
v
IDI Construction Company, Inc., Respondent, et al., Defendant. IDI Construction Company, Inc., Third-Party Plaintiff-Respondent, v Teman Electrical Construction, Inc., et al., Third-Party Defendants-Respondents.

Decided August 31, 2006

O'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225, affirmed.

APPEARANCES OF COUNSEL

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, Buffalo (John A. Collins of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Mathew P. Ross of counsel), for respondent and third-party plaintiff-respondent.

Newman Fitch Altheim Myers, P.C., New York City (Michael H. Zhu of counsel), for Cosner Construction, third-party defendant-respondent.

Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for Teman Electric Construction, Inc., third-party defendant-respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The courts below properly concluded that plaintiff's Labor Law § 241 (6) cause of action, based on 12 NYCRR 23-1.7 (e) (1) and (2), failed because the electrical pipe or conduit that plaintiff tripped over was an integral part of the construction. Further, plaintiff cannot recover in negligence or pursuant to Labor Law § 200 because no triable issue of fact exists that defendant IDI Construction Company, Inc.'s on-site safety manager "control [led] the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]) or that IDI maintained an unreasonably dangerous work environment.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.