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

1391
CA 14-00871
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF MARGUERITE MITCHELL,
INDIVIDUALLY AND AS ADMINISTRATRIX OF THE
ESTATE OF JOHN K. MITCHELL, DECEASED,
PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

NRG ENERGY, INC. AND DUNKIRK POWER LLC,
DEFENDANTS-RESPONDENTS-APPELLANTS.


BROWN CHIARI LLP, LANCASTER (SAMUEL J. CAPIZZI OF COUNSEL), FOR
PLAINTIFF-APPELLANT-RESPONDENT.

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (THOMAS P. KAWALEC OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Timothy J. Drury, J.), entered December 20, 2013. The order,
among other things, denied the motion of defendants for summary
judgment and denied the cross motion of plaintiff for partial summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part, and
dismissing the Labor Law § 200 and common-law negligence causes of
action and the Labor Law § 241 (6) cause of action insofar as it is
premised on the alleged violation of 12 NYCRR 23-9.7 (c), and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action, arising from the death of John K. Mitchell
(decedent). Decedent was killed when the dump box of a dump truck
lowered suddenly while he was attempting to unload debris from a
demolition project, crushing him between the box and the frame of the
truck. Plaintiff appeals and defendants cross-appeal from an order
that, inter alia, denied plaintiff’s cross motion for partial summary
judgment on the issue of liability with respect to her cause of action
pursuant to Labor Law § 240 (1), and denied defendants’ motion for
summary judgment seeking dismissal of the complaint. Contrary to the
contentions of the parties on appeal and cross appeal, Supreme Court
properly denied the motion and cross motion with respect to the cause
of action for the violation of Labor Law § 240 (1). Although “there
is a potential ‘causal connection between the object[’s] inadequately
regulated descent and plaintiff’s injury’ . . . , neither party is
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                                                         CA 14-00871

entitled to summary judgment on plaintiff’s Labor Law § 240 (1) [cause
of action]. Whether plaintiff’s injuries were proximately caused by
the lack of a safety device of the kind required by the statute is an
issue for a trier of fact to determine” (Wilinski v 334 E. 92nd Hous.
Dev. Fund Corp., 18 NY3d 1, 11, quoting Runner v New York Stock Exch.,
Inc., 13 NY3d 599, 605).

     Contrary to defendants’ contention on their cross appeal, the
court properly denied their motion with respect to the Labor Law § 241
(6) cause of action insofar as it is premised on alleged violations of
12 NYCRR 23-2.1 (b) and the third sentence of 12 NYCRR 23-9.2 (a).
“We have previously held that 12 NYCRR 23-2.1 (b) is sufficiently
specific to support liability under section 241 (6)” (DiPalma v State
of New York, 90 AD3d 1659, 1661), and “[t]he court properly concluded
that defendant[s] [were] not prejudiced by [plaintiff’s] delay in
identifying the alleged violation of [that] section[] of the
Industrial Code” (Gizowski v State of New York, 66 AD3d 1348, 1349).
Moreover, we conclude that there are triable issues of fact whether
defendants violated that regulation and whether decedent’s injuries
were proximately caused thereby.

     With respect to the third sentence of 12 NYCRR 23-9.2 (a) we note
that it is also sufficiently specific to support recovery under Labor
Law § 241 (6) (see Misicki v Caradonna, 12 NY3d 511, 520-521), and we
further conclude that there are triable issues of fact whether
defendants violated that part of the regulation and whether decedent’s
injuries were proximately caused thereby. We reject defendants’
contention that they cannot be held liable, in any event, for an
alleged violation of 12 NYCRR 23-9.2 (a) inasmuch as they had no
notice of, and were not aware that, the condition at issue was
dangerous. Defendants’ knowledge that the condition was dangerous is
not a precursor to the imposition of liability (see Harris v Seager,
93 AD3d 1308, 1309).

     We agree with defendants, however, that the court erred in
denying their motion with respect to the Labor Law § 241 (6) cause of
action insofar as it is premised on an alleged violation of 12 NYCRR
23-9.7 (c), and we therefore modify the order accordingly. That
regulation states in pertinent part that “[t]rucks shall not be loaded
beyond their rated capacities” (id.). Defendants met their initial
burden on their motion of establishing that the truck was not
overloaded, and plaintiff failed to raise a triable issue of fact (see
generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).

     We also agree with defendants that the court erred in denying
that part of their motion seeking summary judgment on the Labor Law §
200 and common-law negligence causes of action, and we therefore
further modify the order accordingly. It is well settled that,
“[w]here the alleged defect or dangerous condition arises from the
contractor’s methods and the owner exercises no supervisory control
over the operation, no liability attaches to the owner under the
common law or under Labor Law § 200” (Comes v New York State Elec. &
Gas Corp., 82 NY2d 876, 877; see Ross v Curtis-Palmer Hydro-Elec. Co.,
81 NY2d 494, 505). Here, defendants met their burden on the motion of
                                 -3-                          1391
                                                         CA 14-00871

establishing that they did not direct or control plaintiff’s work (see
Jones v County of Erie, 121 AD3d 1562, 1563), and plaintiff failed to
raise a triable issue of fact (see Sparks v Essex Homes of WNY, Inc.,
20 AD3d 905, 906). “There is no evidence that defendant[s] gave
anything more than general instructions on what needed to be done, not
how to do it, and monitoring and oversight of the timing and quality
of the work is not enough to impose liability under section 200” or
under the common law (Dalanna v City of New York, 308 AD2d 400, 400).




Entered:   February 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
