Pouso v. City of New York

In an action to recover damages for personal injuries, etc., the defendants Paul Kent and Thomas Weitzner, individually and doing business as Kent Weitzner Associates, and the defendant Supermarkets General Corporation separately appeal from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated September 6, 1989, as denied their respective motions for summary judgment dismissing the complaint insofar as it is asserted against them and any cross claims and counterclaims asserted against them, and Supermarkets General Corporation further appeals from so much of the order as granted the plaintiffs’ cross motion for leave to serve a supplemental bill of particulars. Ordered that the order is modified, on the law, by deleting [561] the provision thereof which denied the motion of the defendant Supermarkets General Corporation for summary judgment dismissing the complaint insofar as it is asserted against it and any cross claims and counterclaims against it and substituting therefor a provision granting the motion of that defendant and severing the action against the remaining defendants; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The plaintiff Jose Pouso was injured during a construction project when the sidewalk where he was jackhammering caved in, causing him to fall into an underground vault. He commenced this action against the City of New York, the party who planned, contracted for and initiated the construction, Paul Kent and Thomas Weitzner, individually and d/b/a Kent Weitzner Associates, the owners of the vault and premises in front of which the accident occurred, and Supermarkets General Corporation (hereinafter SGC), the tenant of the premises. After completion of all discovery, SGC and the owners separately moved for summary judgment, contending that, since they neither controlled, supervised, authorized nor had any connection whatsoever with the work being performed, they could not be held liable under the Labor Law. The plaintiffs opposed the motion for summary judgment brought by the owners, submitted an affirmation stating that they did not oppose the motion of SGC, and cross-moved for leave to serve a supplemental bill of particulars. The cross motion was made after the note of issue had been filed. The trial court denied the motions for summary judgment but granted the plaintiffs’ cross motion. We now modify and grant SGC’s motion for summary judgment. SGC was neither a contractor, owner, nor agent engaged in the erection, demolition, excavation, repair, alteration, cleaning, painting or pointing of a building or structure. Nor did it have the authority to control the activity which brought about the injury (see, Russin v Picciano & Son, 54 NY2d 311). Accordingly, neither Labor Law §§ 240 or 241 nor the regulations of the New York City Board of Standards and Appeals is applicable here. Additionally, article 45 of the lease between SGC and the owners specifically excluded the subject vault from the leased premises. Although SGC used the subject vault for storage, it was not a tenant with respect to the vault and had no duty to maintain it. In the absence of a duty, SGC’s conduct cannot be [562] said to have been the proximate cause of the plaintiff Jose Pouso’s injuries. Summary judgment was properly denied, however, to the owners of the premises. The Court of Appeals has expressly held that the duties imposed by Labor Law §§ 240 and 241 (6) are applicable to owners "irrespective” of their authority to control or supervise the work being performed (see, Haimes v New York Tel. Co., 46 NY2d 132; Allen v Cloutier Constr. Corp., 44 NY2d 290). Moreover, the owners of the vault had a duty to maintain it in good repair and to correct any structural defect which might have existed and caused injuries to those lawfully on the property. Under the facts and circumstances of this case, whether the owners were negligent remains a question for the trier of fact. We further note that the Supreme Court properly exercised its discretion in permitting the plaintiffs to serve a supplemental bill of particulars to correct a typographical error in their original bill of particulars, since there was no surprise or prejudice to any of the defendants. Mangano, P. J., Kunzeman and Harwood, JJ., concur.