Pilat v. Raymond LeChase, Inc.

261 A.D.2d 854, 689 N.Y.S.2d 576, 1999 N.Y. App. Div. LEXIS 4888

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Plaintiff, a correction officer assigned to patrol a construction site at Wende Correctional Facility, was injured when he fell into a ditch. Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint. With respect to the Labor Law § 200 and common-law negligence claims, defendant established by proof in admissible form that it did not have the requisite supervision or control over plaintiff, and plaintiff failed to raise a question of fact (see, Rizzuto v Wenger Contr. Co., 91 NY2d 343, 352; Shandraw v Tops Mkts., 224 AD2d 997, 998; see also, Ramski v Zappia Enters., 229 AD2d 990). With respect to the Labor Law § 241 (6) claim, defendant established that plaintiff did not “come within the special class for whose benefit liability is imposed upon contractors, owners and their agents” (Mordkofsky v V.C.F. Dev. Corp., 76 NY2d 573, 576). Plaintiff was not both employed by the owner, contractor or agent and employed to work on a building or structure within the meaning of Labor Law § 241 (6) and 12 NYCRR 23-1.3 and 23-1.4 (b) (39) (see, Farrell v Dick Enters., 227 AD2d 956; see also, Agli v Turner Constr. Co., 246 AD2d 16, 21, 24). (Appeal from Order of Supreme Court, Erie County, Sedita, Jr., J. — Summary Judgment.) Present — Green, J. P., Hayes, Pigott, Jr., Scudder and Callahan, JJ.