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

314
CA 10-02134
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.


DANIEL E. OZIMEK AND NANCY J. OZIMEK,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                               MEMORANDUM AND ORDER

HOLIDAY VALLEY, INC., WIN-SUM SKI CORP., AND
SODEXHO, INC., DEFENDANTS-APPELLANTS-RESPONDENTS.


DAMON MOREY LLP, BUFFALO (STEVEN M. ZWEIG OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS HOLIDAY VALLEY, INC. AND WIN-SUM SKI
CORP.

AHMUTY, DEMERS & MCMANUS, ALBERTSON (ERIN D. ROACH OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT SODEXHO, INC.

FESSENDEN, LAUMER & DEANGELO, JAMESTOWN (J. KEVIN LAUMER OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeals and cross appeal from an order of the Supreme Court,
Chautauqua County (James H. Dillon, J.), entered January 6, 2010 in a
personal injury action. The order granted in part the motions of
defendants for summary judgment by dismissing plaintiffs’ Labor Law §
241 (6) cause of action and denied the cross motion of plaintiffs for
partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion of
defendant Sodexho, Inc. seeking summary judgment dismissing the Labor
Law § 200 and common-law negligence claims against it and dismissing
those claims against it and as modified the order is affirmed without
costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries allegedly sustained by
Daniel E. Ozimek (plaintiff) when he fell from a ladder while working
on a commercial freezer at a ski resort owned and operated by Holiday
Valley, Inc. and Win-Sum Ski Corp. (collectively, Win-Sum defendants).
The freezer was operated by defendant Sodexho, Inc. (Sodexho).
Plaintiffs asserted, inter alia, claims for violations of Labor Law §§
200, 240 (1) and § 241 (6) and common-law negligence. The Win-Sum
defendants and Sodexho filed separate motions for summary judgment
dismissing the amended complaint against them and for summary judgment
on their respective cross claims for indemnification. Plaintiffs
cross-moved for partial summary judgment on liability with respect to
                                 -2-                           314
                                                         CA 10-02134

the Labor Law § 240 (1) claim. Supreme Court granted those parts of
the motions of the Win-Sum defendants and Sodexho for summary judgment
dismissing the Labor Law § 241 (6) claim against them and denied
plaintiffs’ cross motion.

     With respect to the appeals of the Win-Sum defendants and Sodexho
and plaintiffs’ cross appeal, we conclude that Supreme Court properly
denied the motions and cross motion with respect to the Labor Law §
240 (1) claim. Initially, we agree with plaintiffs that they met
their initial burden on the cross motion of establishing that
plaintiff was engaged in repair work that is covered under the
statute. As defendants correctly note, “[i]t is well settled that the
statute does not apply to routine maintenance in a non-construction,
non-renovation context” (Koch v E.C.H. Holding Corp., 248 AD2d 510,
511, lv denied 92 NY2d 811; see Jehle v Adams Hotel Assoc., 264 AD2d
354, 355; Howe v 1660 Grand Is. Blvd., 209 AD2d 934, lv denied 85 NY2d
803). “Where a person is investigating a malfunction, however,
efforts in furtherance of that investigation are protected activities
under Labor Law § 240 (1)” (Short v Durez Div.-Hooker Chems. & Plastic
Corp., 280 AD2d 972, 973; see Craft v Clark Trading Corp., 257 AD2d
886, 887). “Here, plaintiff was injured while ‘troubleshooting’ an
uncommon [freezer] malfunction, which is a protected activity under
[the statute]” (Pieri v B&B Welch Assoc., 74 AD3d 1727, 1729), and “no
viable issue has arisen challenging the characterization of
plaintiff’s work” (Craft, 257 AD2d at 887).

     We further conclude, however, that defendants raised a triable
issue of fact whether plaintiff’s actions were the sole proximate
cause of his injuries. Plaintiffs submitted, inter alia, the
deposition testimony of plaintiff, who testified that he fell to the
ground when the ladder on which he was standing slid out from under
him, thereby establishing that the ladder failed to provide “proper
protection” pursuant to Labor Law § 240 (1) (see Dowling v McCloskey
Community Services Corp., 45 AD3d 1232, 1233; Blair v Cristani, 296
AD2d 471). Defendants, however, raised a triable issue of fact by
submitting the affidavit of a witness who averred that plaintiff
admitted that “he fell because he missed [the ladder] while descending
[from the area in which he was working] and [that the witness] saw the
ladder standing erect after plaintiff fell” (Hamill v Mutual of Am.
Inv. Corp., 79 AD3d 478, 479; see Antenucci v Three Dogs, LLC, 41 AD3d
205; Arigo v Spencer, 39 AD3d 1143, 1144-1145; Anderson v Schul/Mar
Constr. Corp., 212 AD2d 493).

     We agree with Sodexho on its appeal that the court erred in
denying those parts of its motion for summary judgment dismissing the
Labor Law § 200 and common-law negligence claims against it, and we
therefore modify the order accordingly. It is well settled that,
unlike other sections of the Labor Law, “section 200 is a codification
of the common-law duty imposed upon an owner or general contractor to
maintain a safe construction site” (Rizzuto v L.A. Wenger Contr. Co.,
91 NY2d 343, 352; see Comes v New York State Elec. & Gas Corp., 82
NY2d 876, 877). Thus, where, as here, “a plaintiff’s injuries stem
not from the manner in which the work was being performed[] but,
rather, from a dangerous condition on the premises, [an owner or]
                                 -3-                           314
                                                         CA 10-02134

general contractor may be liable in common-law negligence and under
Labor Law § 200 if it has control over the work site and actual or
constructive notice of the dangerous condition” (Keating v Nanuet Bd.
of Educ., 40 AD3d 706, 708; see Lane v Fratello Constr. Co., 52 AD3d
575). Defendants, as the parties seeking summary judgment dismissing
those claims, were required to “establish as a matter of law that they
did not exercise any supervisory control over the general condition of
the premises or that they neither created nor had actual or
constructive notice of the dangerous condition on the premises” (Perry
v City of Syracuse Indus. Dev. Agency, 283 AD2d 1017, 1017; see
generally Hennard v Boyce, 6 AD3d 1132, 1133). Sodexho met its
initial burden by establishing that it did not control the premises
upon which the accident occurred, and plaintiffs failed to raise a
triable issue of fact with respect to Sodexho’s alleged control (see
generally Zuckerman v City of New York, 49 NY2d 557, 562).

     We further conclude, however, that the court properly denied
those parts of the motion of the Win-Sum defendants for summary
judgment dismissing the Labor Law § 200 and common-law negligence
claims against them. It is undisputed that the Win-Sum defendants
controlled the premises upon which the accident occurred, and they
“failed to meet their burden of establishing in support of their
motion that they had no constructive notice of the condition, i.e.,
they failed to establish as a matter of law that the condition was not
visible and apparent or that it had not existed for a sufficient
length of time before the accident to permit [the Win-Sum] defendants
or their employees to discover and remedy it” (Finger v Cortese, 28
AD3d 1089, 1091; see generally Merrill v Falleti Motors, Inc., 8 AD3d
1055; cf. Gilbert v Evangelical Lutheran Church in Am., 43 AD3d 1287,
1288, lv denied 9 NY3d 815).

     We have considered the remaining contentions of the parties and
conclude that they are without merit.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
