                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     520041
_________________________________

PAUL BARROS,
                    Appellant,
     v
                                            MEMORANDUM AND ORDER
BETTE & CRING, LLC, et al.,
                    Respondents.

(And a Third-Party Action.)
_________________________________


Calendar Date:   April 22, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Clark, JJ.

                             __________


      Horigan, Horigan & Lombardo, PC, Amsterdam (Peter M.
Califano of counsel), for appellant.

      Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of
counsel), for respondents.

                             __________


Clark, J.

      Appeal from an order of the Supreme Court (Nolan Jr., J.),
entered February 5, 2014 in Saratoga County, which, among other
things, granted defendants' motions for summary judgment
dismissing the complaint.

      In 2007, defendant 38 High Rock, LLC entered into an
agreement with defendant Bette & Cring, LLC to serve as general
contractor for a construction project in the City of Saratoga
Springs, Saratoga County. Bette & Cring later subcontracted with
defendant Stone Bridge Iron and Steel, Inc. to fabricate and
erect steel on the project. Stone Bridge then subcontracted its
work in erecting steel to Mid State Steel Erectors, Inc.
                               -2-                520041

Plaintiff, who was employed by Mid State as an ironworker,
suffered injuries in January 2009 when he slipped and fell while
shoveling snow at the construction site after being directed to
do so by his supervisor.

      Plaintiff alleges common-law negligence and violations of
Labor Law §§ 200 and 241 (6) against 38 High Rock, Bette & Cring
and Stone Bridge.1 After discovery was complete, defendants
moved for, among other things, summary judgment dismissing
plaintiff's complaint. As relevant herein, Supreme Court granted
defendants' motions for summary judgment and dismissed
plaintiff's complaint, holding that plaintiff's Labor Law § 200
claim was barred because he was injured by a hazard inherent in
the work that he was obligated to perform and, further, that his
claim under Labor Law § 241 (6) was barred because he was injured
by the condition that he was charged with removing.2 Plaintiff
now appeals.

      We agree with Supreme Court that, because defendants did
not maintain supervisory control over plaintiff's actions and
because the condition that caused his fall was a readily
observable, inherent hazard, dismissal of plaintiff's Labor Law
§ 200 and common-law negligence claims was proper. "Labor Law
§ 200 codifies the common-law duty imposed upon owners and
general contractors to maintain a safe work site" (Card v Cornell
Univ., 117 AD3d 1225, 1226 [2014] [citations omitted]) and, with
regard to injuries resulting from unsafe work practices, "there
must be a showing of supervisory control and actual or


     1
        After issue was joined, Bette & Cring and 38 High Rock
filed a cross claim – which they incorrectly denominated a third-
party action – against Stone Bridge seeking, among other things,
indemnification. Stone Bridge subsequently impleaded Mid State,
likewise seeking indemnification and other forms of relief.
     2
        In its order, Supreme Court also dismissed Stone Bridge's
complaint against Mid State in its entirety and granted summary
judgment to Bette & Cring and 38 High Rock on their cross claim
against Stone Bridge. These determinations have not been
challenged on appeal.
                              -3-                520041

constructive knowledge of the unsafe manner of performance" (id.;
see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]).
With regard to injuries caused by a dangerous condition, "a
showing of control of the place of injury and actual or
constructive notice of the unsafe condition is required" (Card v
Cornell Univ., 117 AD3d at 1226; see Harrington v Fernet, 92 AD3d
1070, 1071 [2012]). Recovery is precluded where an injury is
caused by a dangerous condition that is readily observable and
inherent in the work (see Gasper v Ford Motor Co., 13 NY2d 104,
110 [1963]; Stephens v Tucker, 184 AD2d 828, 829-830 [1992]).

      Here, the record reflects that, on the day in question, a
Mid State supervisor directed workers, including plaintiff, to
remove snow from the work area. Such was the custom as Mid State
routinely performed snow removal, provided its own shovels to
workers and held its own safety meetings wherein snow removal was
addressed. In contrast, the record bears no evidence that
defendants exercised direct supervision or actual control over
the construction site or the work activity bringing about
plaintiff's injury. Specifically, there were no representatives
from 38 High Rock at the site on the day of the incident and
Stone Bridge was not involved in supervising the manner in which
Mid State performed its duty to erect steel at the site. In
addition, while Bette & Cring had general oversight to make sure
that subcontractors showed up and performed their tasks, the
record is devoid of any proof that it had any authority to direct
plaintiff's work or exercise control over the area where the fall
occurred. Thus, defendants met their initial burden by
demonstrating that Mid State was the only entity that exercised
supervision or control over plaintiff (see Rodriguez v Trades
Constr. Servs. Corp., 121 AD3d 962, 965 [2014]). Plaintiff's
evidence was insufficient to meet his shifted burden to raise a
question of fact with regard to supervisory authority, and
plaintiff offered no evidence to contradict a finding that he was
engaged in remedying the defect that caused his injury.
Therefore, we find no error in Supreme Court's award of summary
judgment to defendants dismissing plaintiff's claims pursuant to
Labor Law § 200 and common-law negligence (see Griffiths v FC-
Canal, LLC, 120 AD3d 1100, 1101 [2014]; Blysma v County of
Saratoga, 296 AD2d 637, 639 [2002]).
                                -4-                520041

      We also agree with Supreme Court's dismissal of plaintiff's
Labor Law § 241 (6) claims. As the basis for such claims,
plaintiff cites 12 NYCRR 23-1.7 (d), which prohibits an employer
from allowing an employee to use an "elevated working surface
which is in a slippery condition." However, when the injury is
caused by "an integral part of the work" being performed, 12
NYCRR 23.1-7 does not apply (Alvia v Teman Elec. Contr., 287 AD2d
421, 423 [2001], lv dismissed 97 NY2d 749 [2002] [internal
quotation marks and citation omitted]; see Appelbaum v 100
Church, 6 AD3d 310, 310 [2004]). In other words, liability does
not attach when the injury is caused by the "'very condition [a
plaintiff] was charged with removing'" (Smith v Nestle Purina
Petcare Co., 105 AD3d 1384, 1386 [2013], quoting Gaisor v Gregory
Madison Ave., LLC, 13 AD3d 58, 60 [2004]). Plaintiff contends
that he has raised questions of fact based upon the Fourth
Department's decision in Hecker v State of New York (92 AD3d 1261
[2012], affd on other grounds 20 NY3d 1087 [2013]). While
Hecker is not controlling,3 we nonetheless note that it is
distinguishable because it does not involve a plaintiff who was
specifically directed to remove the condition that caused his
injury. Here, plaintiff was injured due to the condition that he
was specifically charged with removing and submitted no evidence
to contradict such a finding (see Smith v Nestle Purina Petcare
Co., 105 AD3d at 1386; Gaisor v Gregory Madison Ave., LLC, 13
AD3d at 60). Thus, dismissal of plaintiff's Labor Law § 241 (6)
claims was proper.

        Lahtinen, J.P., Garry and Lynch, JJ., concur.




    3
        Since Hecker, the Fourth Department affirmed summary
judgment against a plaintiff who slipped and fell on ice that he
was directed to remove (see Griffiths v FC-Canal, LLC, 120 AD3d
at 1102), and the First Department has continued to apply Gaisor
v Gregory Madison Ave., LLC (supra) (see Smith v Nestle Purina
Petcare Co., 105 AD3d at 1386).
                        -5-                  520041

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
