State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 23, 2017 522513 

________________________________

JOHN C. HALL JR.,

Appellant,

v

MEMORANDUM AND ORDER

QUEENSBURY UNION FREE SCHOOL

DISTRICT et al.,

Respondents.

(And a Third-Party Action.)

________________________________

Calendar Date: January 10, 2017

Before: Garry, J.P., Rose, Devine, Clark and Mulvey, JJ.

__________

Brennan & White, LLP, Queensbury (Joseph R. Brennan of

counsel), for appellant.

Goldberg Segalla, LLP, Syracuse (Heather Zimmerman of

counsel), for respondents.

__________

Clark, J.

Appeal from an order of the Supreme Court (Krogmann, J.),

entered September 30, 2015 in Warren County, which granted

defendants' motion for, among other things, summary judgment

dismissing the complaint.

Plaintiff is a plumber and pipefitter who was employed by

third-party defendant, Collette Mechanical, Inc., on a heating

renovation project for defendant Queensbury Union Free School

District. Defendant Turner Construction Company served as the

construction manager for the project. In the early afternoon of

February 10, 2011, while descending a staircase into the basement
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of the building where Collette stored its tools, plaintiff fell

and sustained a fracture of his right femur, requiring surgery. 

Plaintiff thereafter commenced this personal injury action

alleging causes of action for, as relevant here, negligence and

violations of Labor Law §§ 200 and 241 (6).1 Defendants answered

and, upon completion of discovery, moved for, among other things,

summary judgment dismissing the complaint. Supreme Court granted

defendants' motion in its entirety, and plaintiff now appeals.

Summary judgment is a drastic remedy that "should not be

granted where there is any doubt as to the existence of [triable]

issues [of fact], or where the issue is arguable" (Sillman v

Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]

[internal quotation marks and citations omitted]). "It is not

the function of a court deciding a summary judgment motion to

make credibility determinations or findings of fact, but rather

to identify material triable issues of fact (or point to the lack

thereof)" (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012];

see Matter of Suffolk County Dept. of Social Servs. v James M.,

83 NY2d 178, 182 [1994]). In the summary judgment stage,

evidence is viewed in the light most favorable to the nonmoving

party, who is afforded the benefit of every reasonable inference

(see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft

LLP, 26 NY3d 40, 49 [2015]; McKenna v Reale, 137 AD3d 1533, 1534

[2016]).

"Labor Law § 200 is a 'codification of the common-law duty

imposed upon an owner or general contractor to provide

construction site workers with a safe place to work'" (Gadani v

Dormitory Auth. of State of N.Y., 43 AD3d 1218, 1220 [2007],

quoting Comes v New York State Elec. & Gas Corp., 82 NY2d 876,

877 [1993]; see Christiansen v Bonacio Constr., Inc., 129 AD3d

1156, 1159 [2015]). Liability for a violation of Labor Law § 200

and common-law negligence arises where, as here, a plaintiff

establishes that the underlying injury arose from a dangerous

1 Plaintiff also alleged a violation of Labor Law § 240,

but that claim was subsequently dismissed on consent of the

parties.
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condition on the work site and the defendant had actual or

constructive notice of the condition and failed to remedy it

within a reasonable amount of time (see White v Village of Port

Chester, 92 AD3d 872, 876 [2012]; Harrington v Fernet, 92 AD3d

1070, 1071 [2012]; Gadani v Dormitory Auth. of State of N.Y., 43

AD3d at 1220). Relatedly, Labor Law § 241 (6) "imposes a

nondelegable duty of reasonable care upon owners and contractors

'to provide reasonable and adequate protection and safety' to

persons employed in, or lawfully frequenting, all areas in which

construction, excavation or demolition work is being performed"

(Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998],

quoting Labor Law § 241 [6] [emphasis omitted]; see Copp v City

of Elmira, 31 AD3d 899, 899 [2006]). To prevail on a Labor Law §

241 (6) claim, a plaintiff must demonstrate "'the violation of a

regulation setting forth a specific standard of conduct

applicable to the working conditions which existed at the time of

the injury' and that the violation was the proximate cause of the

injury" sustained (Scribner v State of New York, 130 AD3d 1207,

1210 [2015], quoting Lawyer v Hoffman, 275 AD2d 541, 542 [2000]

[internal citation omitted]; see Copp v City of Elmira, 31 AD3d

at 899).

Here, with respect to his Labor Law § 200 and common-law

negligence claims, the hazardous condition alleged by plaintiff

was the purported lack, or inadequacy, of lighting in the

stairwell where he sustained his injury. Similarly, plaintiff

premised his Labor Law § 241 (6) claim on 22 NYCRR 23-1.30, a

regulation codifying the minimum amount of illumination required

at construction work sites.

In support of their motion for summary judgment dismissing

the complaint, defendants proffered the deposition testimony of

Turner's project manager, Collette's foreperson and one of the

school's employees in the maintenance and technology department,

all of whom responded to the scene shortly after plaintiff

sustained the injury and consistently and unequivocally testified

that the lights were on and functioning in the stairwell when

they arrived. In addition, they each testified that they did not

have any difficulty seeing in the stairwell, and two of the

individuals stated that, at the time of the accident, plaintiff

was uncertain as to the precise cause of his fall. Further, the
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combined testimony of the responding individuals established that

they had not received any prior complaints as to the adequacy of

the lighting in the stairwell, that there were no prior reported

injuries sustained in the stairwell and that there were no known

issues with the existing light fixtures at the top or bottom of

the stairs. 

Defendants also tendered the deposition testimony of

plaintiff, who testified that the light at the top of the stairs

was on and that he could see the bottom of the stairs from the

top, but that it seemed to get "darker and darker" as he

descended. Plaintiff testified that he had traversed the stairs

without incident on many prior occasions, including at least two

times on the day of the accident, and that the fall could have

been caused by "snow blindness" resulting from entering the

building from outside. The foregoing testimony of plaintiff and

the individuals present at the scene immediately after the

accident was sufficient to establish the adequacy of the lighting

in the stairwell on the day of the accident and, thus, the

absence of the alleged hazardous condition and the alleged

violation of 22 NYCRR 23-1.30. Moreover, the proof demonstrated

that, even if there were inadequate lighting and a violation of

22 NYCRR 23-1.30, defendants did not have actual or constructive

notice of any such condition. Accordingly, defendants

established their prima facie entitlement to summary judgment

dismissing the complaint (see Remes v 513 W. 26th Realty, LLC, 73

AD3d 665, 666 [2010]).

However, plaintiff raised triable issues of fact in

opposition to defendants' motion. In particular, plaintiff

submitted the sworn affidavit of a coworker, who asserted that he

had descended the stairwell on the morning of the accident and

noticed that "the light at the bottom of the stairwell was not

working" and that, as a result, he "could not tell when [he]

reached the bottom" of the stairs. He averred that "[t]he only

light in the bottom area, which was minimal, was from a room

beyond the doorway at the bottom of the stairs." In addition, he

stated that, on the day before the accident, he observed that

there was no light bulb in the light fixture at the bottom of the

stairs and that he was able to make such observation because he

was performing work on the same wall on which the disputed light
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fixture was located. He further stated that the light at the

bottom of the stairs had been out for "several months." This

evidence, viewed in the light most favorable to plaintiff,

presented triable issues of fact as to the sufficiency of the

lighting in the stairwell and whether defendants had constructive

notice of the alleged inadequate lighting. While the affidavit

of plaintiff's coworker was contradicted by other evidence in the

record, such contradictions presented credibility determinations,

which Supreme Court should have left to be resolved by the trier

of fact (see generally Ferrante v American Lung Assn., 90 NY2d

623, 631 [1997]; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d

439, 441 [1968]).

Defendants raise several alternative grounds for

affirmance, which are properly before this Court (see generally

Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539,

545-546 [1983]), including that Turner is not liable under Labor

Law § 241 (6) because it was not a general contractor, owner or

agent of the owner. However, triable issues of fact exist as to

whether Turner had supervisory control and authority over jobsite safety, given the testimony of Collette's foreperson that he

would have brought any safety concerns to the attention of

Turner's project manager, as well as an accident report detailing

Turner's investigation into the circumstances surrounding

plaintiff's fall (see Barrios v City of New York, 75 AD3d 517,

519 [2010]; Lodato v Greyhawk N. Am., LLC, 39 AD3d 491, 493

[2007]). We have examined defendants' remaining alternative

grounds for affirmance and find them to be without merit. 

Accordingly, Supreme Court should have denied defendants' motion

for summary judgment dismissing the complaint.

Garry, J.P., Rose, Devine and Mulvey, JJ., concur.
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ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as granted defendants' motion

for summary judgment dismissing the complaint; motion denied;

and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court