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DEFENDANT FAILED TO AFFIRMATIVELY ADDRESS ALL THEORIES OF RECOVERY ALLEGED IN THE COMPLAINT; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant property owner was not entitled to summary judgment in this common-law negligence and Labor Law 200, 240(1) and 241(6) action. Plaintiff was injured working on defendant’s building. Defendant, in his motion papers, did not affirmatively address all the possible theories of recovery available to the plaintiff. Therefore summary judgment should not have been granted. [Another example of the need for a defendant bringing a summary judgment motion to affirmative address every theory raised in the complaint.]:

 

Liability on common-law negligence and Labor Law § 200 causes of action “generally falls into two broad categories: instances involving the manner in which the work is performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site” … . Where, as alleged here, the plaintiff’s accident arose from an allegedly dangerous premises condition, a property owner may be held liable in common-law negligence and under Labor Law § 200 when the owner has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it …. Thus, where a plaintiff’s injury arose from a dangerous condition at a work site, a property owner moving for summary judgment dismissing a cause of action alleging common-law negligence has “the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence” … . Here, the defendant failed to establish, prima facie, that he did not create or have actual or constructive notice of the allegedly dangerous condition. … Further, the defendant failed to demonstrate the absence of any triable issues of fact as to whether he had actual or constructive notice of the dangerous condition … . …

Moreover, the Supreme Court erred in directing the dismissal of the Labor Law §§ 240(1) and 241(6) causes of action because, while the defendant generally sought dismissal of the plaintiff’s complaint insofar as asserted against him, he did not demonstrate the absence of any triable issues of fact in connection with these causes of action… . Korostynskyy v 416 Kings Highway, LLC, 2016 NY Slip Op 00939, 2nd Dept 2-10-16

 

LABOR LAW (GENERAL CONTRACTOR, SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)/NEGLIGENCE (GENERAL CONTRACTOR, SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)/GENERAL CONTRACTOR (SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)

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