Albicocco v. New York City School Construction Authority

Appellate Division of the Supreme Court of New York

Albicocco v. New York City School Construction Authority

235 A.D.2d 361, 652 N.Y.S.2d 979, 1997 N.Y. App. Div. LEXIS 690

Appellate Division of the Supreme Court of the State of New York·Decided January 30, 1997·Published

Opinion

Order, Supreme Court, New York County (Louis York, J.), entered on or about December 12, 1995, which, in an action under Labor Law §§ 200 and 241 (6), granted defendant general contractor’s motion for summary judgment dismissing the complaint as against it and dismissing codefendant owner’s cross claims against it, unanimously affirmed, without costs.

Plaintiff, a payloader operator, claims he sustained injuries when he tried to dislodge metal debris from his payloader while excavating and moving fill. We agree with the motion court that plaintiff’s claim under Labor Law § 241 (6) should be [362] dismissed for lack of a showing that defendant violated any safety rule and regulations, specific or not, promulgated by the Department of Labor (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). His claim under Labor Law § 200 should be dismissed because the accident was caused by plaintiff’s voluntary act, defendants’ contract with plaintiffs employer imposed no duty on defendant to provide a fill site free of metal debris, and there is no evidence that defendant exercised any supervisory control over the manner in which the debris was to be removed (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Gokey v Castine, 163 AD2d 709). Concur—Murphy, P. J., Milonas, Nardelli and Andrias, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Louis York, J.), entered on or about December 12, 1995, which, in an action under Labor Law §§ 200 and 241 (6), granted defendant general contractor’s motion for summary judgment dismissing the complaint as against it and dismissing codefendant owner’s cross claims against it, unanimously affirmed, without costs.

Plaintiff, a payloader operator, claims he sustained injuries when he tried to dislodge metal debris from his payloader while excavating and moving fill. We agree with the motion court that plaintiff’s claim under Labor Law § 241 (6) should be [362] dismissed for lack of a showing that defendant violated any safety rule and regulations, specific or not, promulgated by the Department of Labor (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). His claim under Labor Law § 200 should be dismissed because the accident was caused by plaintiff’s voluntary act, defendants’ contract with plaintiffs employer imposed no duty on defendant to provide a fill site free of metal debris, and there is no evidence that defendant exercised any supervisory control over the manner in which the debris was to be removed (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Gokey v Castine, 163 AD2d 709). Concur—Murphy, P. J., Milonas, Nardelli and Andrias, JJ.

Albicocco v. New York City School Construction Authority, 235 A.D.2d 361, 652 N.Y.S.2d 979, 1997 N.Y. App. Div. LEXIS 690 (N.Y. Ct. App. 1997).

Pincite

235 A.D.2d 361 (Albicocco v. New York City School Construction Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related