SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

394 

CA 11-01319 

PRESENT: SMITH, J.P., CARNI, LINDLEY, AND SCONIERS, JJ. 

 

 

JUSTIN A. JOHN, 

PLAINTIFF-RESPONDENT-APPELLANT, 

V MEMORANDUM AND ORDER

KLEWIN BUILDING COMPANY, INC., 

DEFENDANT-APPELLANT-RESPONDENT. 

 

DAMON MOREY LLP, BUFFALO (THOMAS J. DRURY OF COUNSEL), FOR

DEFENDANT-APPELLANT-RESPONDENT. 

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR

PLAINTIFF-RESPONDENT-APPELLANT. 

 

Appeal and cross appeal from an order of the Supreme Court, Erie

County (Joseph R. Glownia, J.), entered March 4, 2011 in a personal

injury action. The order, among other things, denied defendant’s

cross motion for summary judgment dismissing the amended complaint and

plaintiff’s motion for partial summary judgment on the Labor Law § 240

(1) claim. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting those parts of defendant’s

cross motion for summary judgment dismissing the Labor Law § 200 and

common-law negligence claims and dismissing those claims, and as

modified the order is affirmed without costs. 

Memorandum: Plaintiff commenced this Labor Law and common-law

negligence action seeking damages for injuries he sustained when he

fell from a roof at a construction project for the Seneca Niagara

Casino. Defendant appeals from an order that, inter alia, denied its

cross motion for summary judgment dismissing the amended complaint,

and plaintiff cross appeals from the order insofar as it denied his

motion for partial summary judgment on the Labor Law § 240 (1) claim.

We reject defendant’s contention on appeal “that Labor Law

vicarious liability provisions do not apply in this case because

plaintiff sustained the injury on an Indian reservation, i.e., that of

the Seneca Nation” (Karcz v Klewin Bldg. Co., Inc., 85 AD3d 1649,

1650). We agree with defendant, however, that Supreme Court erred in

denying those parts of its cross motion seeking summary judgment

dismissing the Labor Law § 200 and common-law negligence claims, and

we therefore modify the order accordingly. Defendant established as a

matter of law that it did not have the authority to supervise or
-2- 394 

CA 11-01319 

control the methods and manner of plaintiff’s work (see Ortega v

Puccia, 57 AD3d 54, 61-63; Wade v Atlantic Cooling Tower Servs., Inc.,

56 AD3d 547, 549-550), and plaintiff failed to raise a triable issue

of fact sufficient to defeat those parts of the cross motion (see

generally Zuckerman v City of New York, 49 NY2d 557, 562).

Contrary to defendant’s further contention on appeal, we conclude

that the court properly denied that part of its cross motion seeking

summary judgment dismissing the Labor Law § 241 (6) claim, which was

based on alleged violations of 12 NYCRR 23-1.7 (d) and 12 NYCRR 23-

1.24. Even assuming, arguendo, that defendant met its initial burden

on that part of the cross motion, plaintiff raised triable issues of

fact whether “work [was] to be performed” on the roof surface from

which plaintiff fell (see 12 NYCRR 23-1.24 [a] [1] [i]), whether the

roof surface had “a slope steeper than one in four inches” (id.), and

whether the sloped roof surface was wet and thus failed “to provide

safe footing” (12 NYCRR 23-1.7 [d]).

We reject defendant’s contention on appeal that the court erred

in denying that part of its cross motion seeking summary judgment

dismissing the Labor Law § 240 (1) claim on the ground that

plaintiff’s conduct was the sole proximate cause of his injuries. We

also reject plaintiff’s contention on his cross appeal that the court

erred in denying his motion seeking partial summary judgment on that

claim. Triable issues of fact exist whether, before the accident and

on the date thereof, plaintiff was specifically instructed to work

only on the flat roof and not to work on the sloped roof surface from

which he fell, and thus it cannot be determined as a matter of law

whether plaintiff’s decision to climb onto the sloped roof surface was

the sole proximate cause of his injuries (cf. Serrano v Popovic, 91

AD3d 626, 627). 

Entered: April 27, 2012 Frances E. Cafarell

Clerk of the Court