Rohan v. Turner Construction Co.

Appellate Division of the Supreme Court of New York

Rohan v. Turner Construction Co.

142 A.D.3d 887, 38 N.Y.S.3d 139

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

DecidedSeptember 27, 2016

Docket1742 154522/12

StatusPublished

This text of 142 A.D.3d 887 (Rohan v. Turner Construction 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.

Bluebook

Rohan v. Turner Construction Co., 142 A.D.3d 887, 38 N.Y.S.3d 139 (N.Y. Ct. App. 2016).

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Opinion

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered August 5, 2015, which, to the extent appealed from, denied the motion of defendants Turner Construction Company and Gladden Properties LLC (together defendants) for summary judgment dismissing the Labor Law § 241 (6) claim as against them and the common-law negligence and Labor Law § 200 claims as against Turner, unanimously affirmed, without costs.

Summary judgment dismissing the Labor Law § 241 (6) claim is not warranted, since an issue of fact exists as to whether Industrial Code (12 NYCRR) § 23-1.22 (b) (1), pertaining to runways and ramps, is applicable. Defendants maintain that the plank that allegedly struck plaintiff James Rohan did not constitute part of a ramp. However, the affidavit of plaintiffs’ expert, who opined that the unsecured wooden planks served as a “temporary construction ramp” and that the ramp violated 12 NYCRR 23-1.22 (b) (1), is entitled to consideration (see Keneally v 400 Fifth Realty LLC, 110 AD3d 624, 624 [1st Dept 2013]).

Turner, the general contractor, is not entitled to summary judgment dismissing the Labor Law § 200 and common-law negligence claims. Plaintiff’s testimony that one of Turner’s employees told him to use a pile of wood planks to address the one-foot height differential he had observed between the temporary loading dock and the trailer of delivery trucks raises a triable issue of fact as to whether Turner exercised supervisory control over the injury-producing work (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]).

We have considered defendants’ remaining contentions and find them unavailing.

Concur — Sweeny, J.P., Manzanet-Daniels, Feinman, Kapnick and Webber, JJ.

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Order, Supreme Court, New York County (Ellen M. Coin, J.), entered August 5, 2015, which, to the extent appealed from, denied the motion of defendants Turner Construction Company and Gladden Properties LLC (together defendants) for summary judgment dismissing the Labor Law § 241 (6) claim as against them and the common-law negligence and Labor Law § 200 claims as against Turner, unanimously affirmed, without costs.

Summary judgment dismissing the Labor Law § 241 (6) claim is not warranted, since an issue of fact exists as to whether Industrial Code (12 NYCRR) § 23-1.22 (b) (1), pertaining to runways and ramps, is applicable. Defendants maintain that the plank that allegedly struck plaintiff James Rohan did not constitute part of a ramp. However, the affidavit of plaintiffs’ expert, who opined that the unsecured wooden planks served as a “temporary construction ramp” and that the ramp violated 12 NYCRR 23-1.22 (b) (1), is entitled to consideration (see Keneally v 400 Fifth Realty LLC, 110 AD3d 624, 624 [1st Dept 2013]).

Turner, the general contractor, is not entitled to summary judgment dismissing the Labor Law § 200 and common-law negligence claims. Plaintiff’s testimony that one of Turner’s employees told him to use a pile of wood planks to address the one-foot height differential he had observed between the temporary loading dock and the trailer of delivery trucks raises a triable issue of fact as to whether Turner exercised supervisory control over the injury-producing work (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]).

We have considered defendants’ remaining contentions and find them unavailing.

Concur — Sweeny, J.P., Manzanet-Daniels, Feinman, Kapnick and Webber, JJ.

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Bluebook (online)

142 A.D.3d 887, 38 N.Y.S.3d 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rohan-v-turner-construction-co-nyappdiv-2016.

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