Mascellino v. Buffalo General Hospital

Order unanimously affirmed with costs. Memorandum: Defendants, the owner and general contractor of a construction project, appeal from that part of an order of Special Term denying their motion for summary judgment in an action based on plaintiffs’ claimed violations of Labor Law §§ 200, 241 (6). We affirm. Plaintiff Joseph Mascellino was injured while moving a bundle of steel decking on what would be the twelfth or thirteenth floor of a building being constructed. Plaintiffs allege that the procedures used to move the decking were improper and unsafe and, as a result, the work area was not "arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein” (Labor Law § 241 [6]; see, 12 NYCRR 23-1.5 [a]). The evidence submitted in support of these allegations was sufficient to defeat defendants’ motion for summary judgment with respect to Labor Law § 241 (6). That subdivision is designed to protect laborers not only against unsafe equipment and the lack of safety devices, but also against unsafe procedures used during construction (see, LaFrance v Niagara Mohawk Power Corp., 89 AD2d 757, appeal dismissed 58 NY2d 747). The court also properly denied defendants’ motion for summary judgment on the cause of action based on Labor Law § 200. On the motion for summary judgment, it was incumbent on defendants to first present evidence demonstrating that plaintiffs have no cause of action before plaintiffs are called upon to present evidence raising a question of fact (see, Hayes v Riccardi, 97 AD2d 954). Although defendants demonstrated that they did not exercise any supervisory control over the work performed, they failed to submit evidence showing that they did not have actual or constructive notice of the unsafe condition (see, Nagel v Metzger, 103 AD2d 1, 8-9, DaBolt v Bethlehem Steel Corp., 92 AD2d 70, 72-73, appeal dismissed 60 NY2d 701). (Appeal from order of Supreme Court, Erie County, Kasler, J.—summary judgment.) Present —Callahan, J. P., Doerr, Boomer, Pine and Schnepp, JJ.