Willis v. Plaza Construction Corp.

Appellate Division of the Supreme Court of New York

Willis v. Plaza Construction Corp.

2017 NY Slip Op 4903, 151 A.D.3d 568, 54 N.Y.S.3d 281

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

DecidedJune 15, 2017

Docket4273 8549/07 83920/08

StatusPublished

Cited by5 cases

This text of 2017 NY Slip Op 4903 (Willis v. Plaza Construction Corp.) 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

Willis v. Plaza Construction Corp., 2017 NY Slip Op 4903, 151 A.D.3d 568, 54 N.Y.S.3d 281 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, Bronx County (Donna M. Mills, J.), entered May 6, 2016, which, to the extent appealed from as limited by the briefs, denied defendants’ motion for summary judgment dismissing the Labor Law §§ 200 and 241 (6) and common-law negligence claims, unanimously modified, on the law, to grant the motion for summary judgment dismissing plaintiff’s Labor Law § 200 claim, common-law negligence claim, and Labor Law § 241 (6) claim predicated on Industrial Code (12 NYCRR) §§ 23-1.10 (b) (2) and 23-4.2 (k), and otherwise affirmed, without costs.

The motion court erred in denying defendants’ motion as to the Labor Law § 200 and common-law negligence claims, because the construction accident — that is, the bursting of a hose pouring liquid cement — arose out of the means and methods of plaintiff’s work, and there was no evidence that defendants actually controlled or exercised supervisory authority over how plaintiff performed that work (see Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 AD3d 446, 449 [1st Dept 2013]). At most, defendants had general authority over work site safety, which is insufficient to hold them liable for plaintiff’s injuries (see id.; see also Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept 2007]).

12 NYCRR 23-4.2 (k) is insufficiently specific to support a Labor Law § 241 (6) claim (Sparendam v Lehr Constr. Corp., 24 AD3d 388, 389 [1st Dept 2005], lv denied 7 NY3d 703 [2006]), and 12 NYCRR 23-1.10 (b) (2), involving the use of hand tools, is inapplicable to the facts of this case.

Nevertheless, the motion court correctly sustained the Labor Law § 241 (6) claim predicated on 12 NYCRR 23-1.8 (a) and (c) (4), because plaintiff’s evidence, including his deposition testimony, raises a question of fact as to whether plaintiff was provided with and used proper eye protection (cf. Beshay v Eberhart L.P. #1, 69 AD3d 779, 781 [2d Dept 2010] [the plaintiffs’ counsel’s admission that the plaintiff worker removed the protective eye gear before being struck by flying debris absolved the defendant of liability]).

Concur — Tom, J.P., Renwick, Manzanet-Daniels and Kapnick, JJ.

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Order, Supreme Court, Bronx County (Donna M. Mills, J.), entered May 6, 2016, which, to the extent appealed from as limited by the briefs, denied defendants’ motion for summary judgment dismissing the Labor Law §§ 200 and 241 (6) and common-law negligence claims, unanimously modified, on the law, to grant the motion for summary judgment dismissing plaintiff’s Labor Law § 200 claim, common-law negligence claim, and Labor Law § 241 (6) claim predicated on Industrial Code (12 NYCRR) §§ 23-1.10 (b) (2) and 23-4.2 (k), and otherwise affirmed, without costs.

The motion court erred in denying defendants’ motion as to the Labor Law § 200 and common-law negligence claims, because the construction accident — that is, the bursting of a hose pouring liquid cement — arose out of the means and methods of plaintiff’s work, and there was no evidence that defendants actually controlled or exercised supervisory authority over how plaintiff performed that work (see Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 AD3d 446, 449 [1st Dept 2013]). At most, defendants had general authority over work site safety, which is insufficient to hold them liable for plaintiff’s injuries (see id.; see also Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept 2007]).

12 NYCRR 23-4.2 (k) is insufficiently specific to support a Labor Law § 241 (6) claim (Sparendam v Lehr Constr. Corp., 24 AD3d 388, 389 [1st Dept 2005], lv denied 7 NY3d 703 [2006]), and 12 NYCRR 23-1.10 (b) (2), involving the use of hand tools, is inapplicable to the facts of this case.

Nevertheless, the motion court correctly sustained the Labor Law § 241 (6) claim predicated on 12 NYCRR 23-1.8 (a) and (c) (4), because plaintiff’s evidence, including his deposition testimony, raises a question of fact as to whether plaintiff was provided with and used proper eye protection (cf. Beshay v Eberhart L.P. #1, 69 AD3d 779, 781 [2d Dept 2010] [the plaintiffs’ counsel’s admission that the plaintiff worker removed the protective eye gear before being struck by flying debris absolved the defendant of liability]).

Concur — Tom, J.P., Renwick, Manzanet-Daniels and Kapnick, JJ.

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Bluebook (online)

2017 NY Slip Op 4903, 151 A.D.3d 568, 54 N.Y.S.3d 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willis-v-plaza-construction-corp-nyappdiv-2017.

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