Walsh v. Amherst Construction Co.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying that portion of the motion of defendant University of Rochester (University) for summary judgment seeking dismissal of the Labor Law § 200 and common-law negligence causes of action. Although University personnel visited the job site to observe the work and ensure that the project was being properly completed, the record contains no proof that they actually supervised or controlled the pouring of the concrete, during which plaintiff Matthew J. Walsh was injured (see, Mamo v Rochester Gas & Elec. Corp., 209 AD2d 948, 949, lv dismissed 85 NY2d 924; see also, Comes v New York State Elec. & Gas Corp., 82 NY2d 876). The court properly denied that portion of the motion of defendant Amherst Construction Company for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action, however, based upon the existence of triable issues of fact. We modify the order, therefore, by granting in its entirety the motion of the University for summary judgment dismissing the complaint against it. (Appeals from Order of Supreme Court, Monroe County, Lunn, J.—Labor Law.) Present—Denman, P. J., Lawton, Wesley, Balio and Davis, JJ.