Ricotta v. Praxis Biologics, Inc.

265 A.D.2d 878, 695 N.Y.S.2d 845, 1999 N.Y. App. Div. LEXIS 9982

Opinion

—Order insofar as appealed from unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying that part of defendants’ motion seeking summary judgment dismissing the Labor Law § 200 (1) claim and common-law negligence cause of action. Plaintiff, an employee of Christa Construction, Inc. (Christa), injured his back when he lifted a concrete vibrator from wet concrete by leaning over the rail of scaffolding and pulling it up with a hose. Defendants met their initial burden by establishing that plaintiff’s work with respect to the construction of foundation walls was controlled by Christa. Plaintiff established that the safety director of defendant Raymond LeChase, Inc. (LeChase) had supervisory authority over safety standards, i.e., he was authorized to stop plaintiff’s work in the event that he informed Christa of a safety concern and Christa failed to correct it. However, that authority is not sufficient to raise an issue of fact whether LeChase exercised control over plaintiffs work (see, McCune v Black Riv. Constructors, 225 AD2d 1078, 1078-1079; Enderlin v Hebert Indus. Insulation, 224 AD2d 1020, 1020-1021; cf., Rizzuto v Wenger Contr. Co., 91 NY2d 343, 353). (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J. — Summary Judgment.) Present — Den-man, P. J., Green, Hayes, Pigott, Jr., and Scudder, JJ.