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

257
CA 15-01322
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


WILLIAM J. NICHOLAS AND JOANN NICHOLAS,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

WAL-MART STORES, INC.,
DEFENDANT-RESPONDENT-APPELLANT,
MLB CONTRACTORS, INC., DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR
DEFENDANT-APPELLANT.

O’CONNOR, O’CONNOR, BRESEE & FIRST, P.C., ALBANY (CAROL E. CRUMMEY OF
COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.

DOLCE PANEPINTO, P.C., BUFFALO (ANNE M. WHEELER OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeals from an order of the Supreme Court, Onondaga County
(James P. Murphy, J.), entered January 29, 2015. The order, inter
alia, granted in part the motion of defendant Wal-Mart Stores, Inc.
for summary judgment with respect to the Labor Law § 200 claim and
common law negligence cause of action against it and denied the motion
of defendant MLB Contractors, Inc. for summary judgment dismissing the
complaint and any cross claims against it.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: We affirm for reasons stated in the decision at
Supreme Court. We write only to note that, “[w]here, as here, the
worker’s injuries result from a dangerous condition at the work site
rather than from the manner in which the work is performed, the
general contractor or owner ‘may be liable in common-law negligence
and under Labor Law § 200 if it has control over the work site and
[has created or has] actual or constructive notice of the dangerous
condition’ ” (Steiger v LPCiminelli, Inc., 104 AD3d 1246, 1248).
Here, there is no dispute that defendant MLB Contractors, Inc. did not
create the dangerous condition, but we conclude that it failed to meet
its initial burden of establishing with respect to the common-law
negligence cause of action and the Labor Law § 200 claim against it
that it did not have control over the work site, or that it lacked
actual or constructive notice of the allegedly dangerous condition
                                 -2-                           257
                                                         CA 15-01322

(see Carrasco v Weissman, 120 AD3d 531, 533; see also Bannister v
LPCiminelli, Inc., 93 AD3d 1294, 1295).




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
