Bennett v. Fairchild Republic Charter, Inc.

298 A.D.2d 418, 748 N.Y.S.2d 260, 2002 N.Y. App. Div. LEXIS 9809

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 2002
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kitson, J.), dated June 11, 2001, which granted the motion of the defendants Mairoll, Inc., Fairchild Communications Company, and Fairchild Holding Company for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is affirmed, with costs.

The defendants Mairoll, Inc., Fairchild Communications Company, and Fairchild Holding Company (hereinafter the Fairchild defendants) made a prima facie showing of entitlement to judgment as a matter of law with respect to the plaintiffs causes of action pursuant to Labor Law § 200 and common-law negligence by establishing that they neither created nor had actual or constructive notice of the hole in the wall through which the plaintiff fell (see CPLR 3212 [b]). In opposition, the plaintiff failed to raise a triable issue of fact.

The Fairchild defendants were also entitled to summary judgment dismissing the plaintiffs cause of action pursuant to General Municipal Law § 205-e inasmuch as none of the predicate statutory and regulatory violations alleged by the plaintiff was applicable in the present case (see Brunelle v City of New York, 269 AD2d 347, 348).

The Supreme Court also properly dismissed the plaintiffs causes of action alleging violations of Labor Law §§ 240 (1) and 241 (6), since the plaintiff was not in the class “of persons afforded protection under those provisions of the Labor Law (see Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 577), and the accident did not arise in a construction context (see Vernieri v Empire Realty, 219 AD2d 593, 595). S. Miller, J.P., Friedmann, Crane and Rivera, JJ., concur.