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CPLR 32122…cont

The issue in this case is whether the Owners and the general contractor, were negligent and violated Labor Law §§200, 240, 241(6).

A defendant moving for summary judgment must establish that the “cause of action has no merit” sufficient to warrant the court as a matter of law to direct judgment in its favor. Defendant must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient “evidentiary proof in admissible form” to demonstrate the absence of any material issues of fact. “The burden then shifts to the motion’s opponent to “present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact”.

At the outset, the Court notes that plaintiff does not address the dismissal of his Labor Law §240 (1) claim. As such, plaintiff’s Labor Law §240(1) claim is dismissed, as unopposed. Labor Law §200 codifies the common-law duty imposed on an owner or general contractor to provide construction site workers with a safe work site. “An implicit precondition to this duty is that the party to be charged with that obligation ‘have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition'”. “To support a finding of liability under Labor Law § 200 a plaintiff must show that the defendant supervised and controlled the plaintiff’s work, or had actual or constructive knowledge of the alleged unsafe condition in an area over which it had supervision or control, or created the unsafe condition”. Thus, “in addition to liability for a dangerous condition arising from the methods employed by a subcontractor, over which the owner or general contractor exercises supervision and/or control, liability can also arise when the accident is caused by a dangerous condition at the worksite, that was either created by the owner or general contractor or about which they had prior notice and failed to remedy it.

Here, to the extent that plaintiff’s common-law negligence and Labor Law 200 claims are based upon an allegedly dangerous condition of snow on the pitched roof, both Thames and the Owners established their entitlement to summary judgment as a matter of law. Specifically, Thames and the Owners established that they lacked actual or constructive notice of the alleged dangerous condition of the snow accumulation. And, even if arguably the roof was sloped in the area where plaintiff and his co-workers walked, the various deposition testimonies indicate that no one from the Owners or the general contractor was present at the subject work site on the day of plaintiff’s incident. And, there is no indication that anyone reported any snow or ice condition to either the Owners or the general contractor.

Plaintiff submitted no evidence indicating that defendants possessed actual knowledge of the dangerous condition of snow accumulation on the roof. Further, plaintiff failed to demonstrate a triable issue as to whether defendants had constructive notice of the condition. “To constitute constructive notice, a condition must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendants to discover and remedy it”. Plaintiff’s testimony, that when he and his co-workers entered onto the roof, there was a half or a quarter of an inch “snow accumulation” and that it was raining and snowing “throughout the day” on the day of the incident, is insufficient to raise an issue of fact as to whether Thames or the Owners had any notice that snow was accumulating on the roof where plaintiff’s personal injury occurred.

In the instant case, plaintiff submitted no evidence that the alleged condition existed for a sufficient length of time prior to the accident. While he testified that it was raining and snowing “throughout the day” of the incident, which as the record indicates, happened in the afternoon, plaintiff also indicated that it was snowing for short periods of time and then raining for half hour. This inability of plaintiff to make the required showing “creates the possibility that the condition may have emanated only moments before the accident, through no fault or with no knowledge of the defendant, any other conclusion being pure speculation”. Accordingly, since plaintiff failed to raise any issue of fact as to whether defendant had notice of the condition which allegedly caused plaintiff’s injury, the portion motion by the Owners and the general contractor for summary judgment dismissing plaintiff’s Labor Law §200 and common-law negligence claims against them is granted.

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