Matthewson v. Matthewson

—Order reversed on the law without costs, motion denied, cross motion granted and Labor Law §§ 200 and 240 (1) and common-law negligence 956 claims dismissed. Memorandum: Plaintiffs commenced this action to recover for personal injuries allegedly sustained by Richard P. Matthewson (plaintiff) in a slip and fall at a construction site allegedly owned by defendants. Defendants appeal from an order granting plaintiffs’ motion for partial summary judgment on the claim alleging the violation of Labor Law § 240 (1); denying that part of defendants’ cross motion for summary judgment dismissing that claim; and denying that part of defendants’ cross motion for summary judgment dismissing the claims alleging common-law negligence and the violation of Labor Law § 200. We agree with defendants that Labor Law § 240 (1) is inapplicable inasmuch as plaintiff’s injuries did not result from a fall from an elevated worksite or other elevation-related risk (see, Melber v 6333 Main St., 91 NY2d 759, 763; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). The risk that plaintiff would slip, lose his balance, and slide down the natural slope of the ground was one of the “usual and ordinary dangers at a construction site”, not the “type of extraordinary peril section 240 (1) was designed to prevent” (Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 916). We also agree with defendants that they are entitled to summary judgment dismissing the common-law negligence and Labor Law § 200 claims. In support of their motion, defendants established that they had no authority to supervise or control plaintiff’s work or the allegedly defective condition of the work-site (see, Casey v Niagara Mohawk Power Corp. [appeal No. 1], 269 AD2d 775; DiVincenzo v Plaza Farms Dev., 269 AD2d 842). In opposition, plaintiff failed to raise a triable question of fact on the issue of defendants’ supervision and control (see, Casey v Niagara Mohawk Power Corp., supra; Greso v Nichter Constr. Co., 267 AD2d 1074). All concur except Hayes, J., who dissents in part and votes to modify in the following Memorandum.