Artiga v. Century Management Co.

Appellate Division of the Supreme Court of New York

Artiga v. Century Management Co.

303 A.D.2d 280, 757 N.Y.S.2d 28, 2003 N.Y. App. Div. LEXIS 2783

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 20, 2003

StatusPublished

Cited by3 cases

This text of 303 A.D.2d 280 (Artiga v. Century Management Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Artiga v. Century Management Co., 303 A.D.2d 280, 757 N.Y.S.2d 28, 2003 N.Y. App. Div. LEXIS 2783 (N.Y. Ct. App. 2003).

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Opinion

—Order, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about March 21, 2002, which granted defendant’s motion for summary judgment to the extent of dismissing plaintiffs claims pursuant to Labor Law § 240 (1) and § 241 (6), and denied plaintiffs cross motion for partial summary judgment on the issue of liability as to his Labor Law § 240 (1) and § 241 (6) claims, unanimously modified, on the law, to grant defendant’s motion to the further extent of dismissing plaintiffs ordinary negligence claim pursuant to Labor Law § 200, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

The motion court properly dismissed plaintiffs claims pursuant to Labor Law § 240 (1) and § 241 (6) on the ground that the work in which plaintiff was engaged at the time of his accident, applying joint compound to the ceiling of a common hallway, was, under the circumstances presented, merely routine maintenance, not construction work involving “significant physical change to the configuration or composition of the building or structure” (Joblon v Solow, 91 NY2d 457, 465 [1998]; Futterman v Rela Realty Corp., 283 AD2d 261, 262 [2001]).

We modify only to grant defendant’s motion to the further extent of dismissing plaintiffs negligence claim pursuant to Labor Law § 200. Recovery pursuant to Labor Law § 200 is conditioned on the defendant’s supervision and control of the [281]*281injured worker’s performance of the work causing injury (Russin v Picciano & Son, 54 NY2d 311, 316-318 [1981]). Defendant’s contract with the owner did not require that defendant assume any supervisory responsibility, and it is uncontroverted that plaintiff was employed by the owner and directly supervised by the building superintendent employed by said owner. Defendant’s mere oversight of the timing and quality of the work performed is not equivalent to direct supervision and control and is thus insufficient to support the imposition of liability under Labor Law § 200 (see Gonzalez v United Parcel Serv., 249 AD2d 210, 210-211 [1998]; Pacheco v South Bronx Mental Health Council, 179 AD2d 550, 551 [1992], lv denied 80 NY2d 754 [1992]; see also Brezinski v Olympia & York Water St. Co., 218 AD2d 633, 634-635 [1995]). Concur— Nardelli, J.P., Tom, Andrias and Williams, JJ.

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—Order, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about March 21, 2002, which granted defendant’s motion for summary judgment to the extent of dismissing plaintiffs claims pursuant to Labor Law § 240 (1) and § 241 (6), and denied plaintiffs cross motion for partial summary judgment on the issue of liability as to his Labor Law § 240 (1) and § 241 (6) claims, unanimously modified, on the law, to grant defendant’s motion to the further extent of dismissing plaintiffs ordinary negligence claim pursuant to Labor Law § 200, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

The motion court properly dismissed plaintiffs claims pursuant to Labor Law § 240 (1) and § 241 (6) on the ground that the work in which plaintiff was engaged at the time of his accident, applying joint compound to the ceiling of a common hallway, was, under the circumstances presented, merely routine maintenance, not construction work involving “significant physical change to the configuration or composition of the building or structure” (Joblon v Solow, 91 NY2d 457, 465 [1998]; Futterman v Rela Realty Corp., 283 AD2d 261, 262 [2001]).

We modify only to grant defendant’s motion to the further extent of dismissing plaintiffs negligence claim pursuant to Labor Law § 200. Recovery pursuant to Labor Law § 200 is conditioned on the defendant’s supervision and control of the [281]*281injured worker’s performance of the work causing injury (Russin v Picciano & Son, 54 NY2d 311, 316-318 [1981]). Defendant’s contract with the owner did not require that defendant assume any supervisory responsibility, and it is uncontroverted that plaintiff was employed by the owner and directly supervised by the building superintendent employed by said owner. Defendant’s mere oversight of the timing and quality of the work performed is not equivalent to direct supervision and control and is thus insufficient to support the imposition of liability under Labor Law § 200 (see Gonzalez v United Parcel Serv., 249 AD2d 210, 210-211 [1998]; Pacheco v South Bronx Mental Health Council, 179 AD2d 550, 551 [1992], lv denied 80 NY2d 754 [1992]; see also Brezinski v Olympia & York Water St. Co., 218 AD2d 633, 634-635 [1995]). Concur— Nardelli, J.P., Tom, Andrias and Williams, JJ.

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303 A.D.2d 280, 757 N.Y.S.2d 28, 2003 N.Y. App. Div. LEXIS 2783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/artiga-v-century-management-co-nyappdiv-2003.

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