Raja v H.W. Wilson Co., Inc.
Annotate this CaseDecided on December 28, 2005
Supreme Court, Kings County
Zahoor Raja, Plaintiff,
against
H.W. Wilson Company, Inc. and WESTSIDE ENTERPRISES, INC. and FIVE BORO ROOFING & SHEET METAL WORKS, INC., Defendants.
13142/03
Francois A. Rivera, J.
Defendant/Third Party Plaintiff Five Boro Roofing & Sheet Metal Works, Inc., moves for an order granting summary judgment and dismissing plaintiff's claims of negligence and alleged violations of Labor Law §§ 200 and 241(6). Plaintiff opposes the motion.
This action is for personal injuries suffered by the plaintiff when construction work was being performed on the roof of a building. The action was commenced, as to defendant/third party plaintiff Five Boro Roofing & Sheet Metal Works, Inc. (hereinafter "Five Boro"), by plaintiff's service of an amended summons with a verified amended complaint dated January 7, [*2]2004. On January 22, 2003, defendant/third party plaintiff Five Boro joined issue by service of a verified answer to plaintiff's amended verified complaint.
A prior motion for summary judgment was submitted by the defendant H.W. Wilson Company, Inc. Defendant Five Boro submitted a cross motion for summary judgment. Defendant H.W. Wilson's motion was granted in its entirety. Defendant Five Boro's motion was granted to the extent that it dismissed plaintiff's Labor Law §240 (1) claim. After granting the dismissal of the Labor Law §240 (1) claim, the Court requested that defendant Five Boro return for further argument on its motion to dismiss the Labor Law §§ 200 and 241 (6) claims. Plaintiff, thereafter, submitted a post note of issue motion for leave to amend the bill of particulars. On April 15, 2005, the Court granted plaintiff's motion to amend and denied defendant Five Boro's motion for summary judgment with leave to renew upon completion of plaintiff's further deposition. Thereafter, defendant Five Boro deemed a further deposition to be unnecessary and brought an order to show cause, dated May 4, 2005. In the order to show cause, defendant Five Boro moved for an order to reargue its prior motion for summary judgment. On June 3, 2005, the court granted the defendant Five Boro's motion to reargue on default. The following is a decision on defendant Five Boro's original cross motion for summary judgment to dismiss plaintiff's Labor Law § 200 and 241 (6) claims.
On January 2, 2003, plaintiff suffered a fracture to his arm while construction work was being performed on the roof of co-defendant's building. Plaintiff claims that he was an employee of Professional Construction, a subcontractor. Plaintiff alleges that an employee of another subcontractor, mounted a forklift, started the machine, and caused plaintiff's injury when plaintiff's arm got caught in the hoist of the machine. H.W. Wilson Company is the owner of the building located at 945 Summit Avenue a/ka/a 925-950 University Avenue a/ka/ @950 Dr Martin Luther King Boulevard, Bronx, NY. Five Boro was the general contractor. Westside Enterprises, Inc. is the alleged owner of the forklift.
It is well settled that a party moving for summary judgment must make a prima facie showing that it is entitled to judgment as a matter of law ( Zarr v. Riccio, 180 AD2d 734 [2nd Dept. 1992]). Once a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Romano v. St. Vincent's Medical Center of Richmond, 178 AD2d 467 [2nd Dept. 1991]).
Labor Law §200 codified a landowner's common law duty to maintain a safe place to work (Seaman v A.B. Chance, 197 AD2d 612 [2nd Dept. 1993]). It is settled jurisprudence that liability will attach to a landowner pursuant to Labor Law §200(1) only when the injuries were sustained as the result of an actual dangerous condition at the work site, rather than as the result of the manner in which the work was performed and then only if the owner exercised supervision and control over the work performed at the site or had actual or constructive notice of the unsafe condition causing the accident (Combs v New York State Electric & Gas Corp., 82 NY2d 876 [1993]; see also, Jurgens v Whiteface Resort on Lake Placid, 293 AD2d 924 [3rd Dept. 2002]). Plaintiff has failed to make such a showing. Plaintiff's own testimony revealed that he received no direction or supervision from the general contractor Five Boro. He received all direction from his purported boss. Five Boro had no notice of any defect in the hoist prior to plaintiff's accident.
In contrast to Section 200, Section 241(6) of the Labor Law imposes a nondelegable duty [*3]upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (Combs v New York State Electric & Gas Corp., supra, 82 NY2d 876 [1993]). Labor Law §241 (6) requires owners and contractors to provide "reasonable and adequate protection and safety" for workers and to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. To establish liability pursuant to Labor Law §241 (6), plaintiff must plead and prove that a specific violation of the Industrial Code was the proximate cause of his accident (Ross v Curtis-Palmer Hydro Electric Co., 81 NY2d 494 [1993]).
Plaintiff's Bill of Particulars fails to support specific Industrial Code violations that are pertinent to this action. Plaintiff's allegations of code violations are irrelevant or too general to support a Labor Law §241 (6) claim. To come within the special class for whose benefit absolute liability is imposed, a plaintiff must demonstrate he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent (Abbatiello v. Lancaster Associates, 3 NY3d 46-51[2004]; see also Whelen v Warwick Valley Civic & Social Club, 47 NY2d 970 [1979]). Here, plaintiff failed to show that he was permitted to be at the work site or that he was properly employed by the owner, contractor or their agent. It is plaintiff's burden to establish same (see Lee v Jones, 230 AD2d 435 [3rd Dept. 1997]).
Defendant Five Boro's motion for summary judgment to dismiss the plaintiff's cause of action under Labor Law §§ 200 and 241 (6) is granted.
The foregoing constitutes the decision and order of this court.
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