Garland v. Zelasko Construction, Inc.

Order unanimously 954 modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Philip Garland (plaintiff), an employee of third-party defendant, Pine Hill Concrete Mix Corp., was injured when he fell on a patch of ice as he walked beside his cement truck, which was parked alongside the driveway of a lot on which a home was being constructed. Plaintiffs commenced this action against Sherwood Stoll Construction Corp. (Sherwood), the general contractor, and Zelasko Construction, Inc. (Zelasko), a subcontractor responsible for constructing the concrete footers and foundation. Supreme Court properly granted the motion of Sherwood for summary judgment dismissing the complaint and all cross claims against it, but erred in denying the motion of Zelasko for summary judgment dismissing the complaint and all cross claims against it. The cause of action pursuant to Labor Law § 241 (6) should have been dismissed against both defendants. 12 NYCRR 23-1.7 (d) has no application to the facts of this case because the accident did not occur on a “floor, passageway, walkway, scaffold, platform or other elevated working surface” (see, Ramski v Zappia Enters., 229 AD2d 990; Stairs v State St. Assocs., 206 AD2d 817, 818). The cause of action pursuant to Labor Law § 200 also should have been dismissed against both defendants because neither defendant exercised the requisite degree of supervision or control over plaintiffs work (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877). Consequently, the order is modified by granting the motion of Zelasko for summary judgment dismissing the complaint and all cross claims against it. (Appeals from Order of Supreme Court, Erie County, Flaherty, J.—Summary Judgment.) Present—Denman, P. J., Green, Do-err, Balio and Fallon, JJ.