        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

394
CA 11-01319
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND SCONIERS, JJ.


JUSTIN A. JOHN,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

KLEWIN BUILDING COMPANY, INC.,
DEFENDANT-APPELLANT-RESPONDENT.


DAMON MOREY LLP, BUFFALO (THOMAS J. DRURY OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Joseph R. Glownia, J.), entered March 4, 2011 in a personal
injury action. The order, among other things, denied defendant’s
cross motion for summary judgment dismissing the amended complaint and
plaintiff’s motion for partial summary judgment on the Labor Law § 240
(1) claim.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting those parts of defendant’s
cross motion for summary judgment dismissing the Labor Law § 200 and
common-law negligence claims and dismissing those claims, and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries he sustained when he
fell from a roof at a construction project for the Seneca Niagara
Casino. Defendant appeals from an order that, inter alia, denied its
cross motion for summary judgment dismissing the amended complaint,
and plaintiff cross appeals from the order insofar as it denied his
motion for partial summary judgment on the Labor Law § 240 (1) claim.

     We reject defendant’s contention on appeal “that Labor Law
vicarious liability provisions do not apply in this case because
plaintiff sustained the injury on an Indian reservation, i.e., that of
the Seneca Nation” (Karcz v Klewin Bldg. Co., Inc., 85 AD3d 1649,
1650). We agree with defendant, however, that Supreme Court erred in
denying those parts of its cross motion seeking summary judgment
dismissing the Labor Law § 200 and common-law negligence claims, and
we therefore modify the order accordingly. Defendant established as a
matter of law that it did not have the authority to supervise or
                                 -2-                           394
                                                         CA 11-01319

control the methods and manner of plaintiff’s work (see Ortega v
Puccia, 57 AD3d 54, 61-63; Wade v Atlantic Cooling Tower Servs., Inc.,
56 AD3d 547, 549-550), and plaintiff failed to raise a triable issue
of fact sufficient to defeat those parts of the cross motion (see
generally Zuckerman v City of New York, 49 NY2d 557, 562).

     Contrary to defendant’s further contention on appeal, we conclude
that the court properly denied that part of its cross motion seeking
summary judgment dismissing the Labor Law § 241 (6) claim, which was
based on alleged violations of 12 NYCRR 23-1.7 (d) and 12 NYCRR 23-
1.24. Even assuming, arguendo, that defendant met its initial burden
on that part of the cross motion, plaintiff raised triable issues of
fact whether “work [was] to be performed” on the roof surface from
which plaintiff fell (see 12 NYCRR 23-1.24 [a] [1] [i]), whether the
roof surface had “a slope steeper than one in four inches” (id.), and
whether the sloped roof surface was wet and thus failed “to provide
safe footing” (12 NYCRR 23-1.7 [d]).

     We reject defendant’s contention on appeal that the court erred
in denying that part of its cross motion seeking summary judgment
dismissing the Labor Law § 240 (1) claim on the ground that
plaintiff’s conduct was the sole proximate cause of his injuries. We
also reject plaintiff’s contention on his cross appeal that the court
erred in denying his motion seeking partial summary judgment on that
claim. Triable issues of fact exist whether, before the accident and
on the date thereof, plaintiff was specifically instructed to work
only on the flat roof and not to work on the sloped roof surface from
which he fell, and thus it cannot be determined as a matter of law
whether plaintiff’s decision to climb onto the sloped roof surface was
the sole proximate cause of his injuries (cf. Serrano v Popovic, 91
AD3d 626, 627).




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
