6 A.D.3d 390, *; 773 N.Y.S.

2d 898, **;
2004 N.Y. App. Div. LEXIS 3855, ***

James Gatto et al., Appellants, v. Gerald Turano et al., Defendants,

and Carl Kruger, Sued Herein as Carl Cruger, Respondent. (Index
No. 12010/00)

2003-02256

SUPREME COURT OF NEW YORK, APPELLATE DIVISION,

SECOND DEPARTMENT

6 A.D.3d 390; 773 N.Y.S.2d 898; 2004 N.Y. App. Div. LEXIS 3855

March 12, 2004, Submitted

April 5, 2004, Decided

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiffs, injured parties,

sought review of a decision of the Supreme Court,
Kings County, (New York), which granted summary
judgment in favor of defendant in an action filed
by plaintiffs to recover damages for common-law
negligence.

OVERVIEW: The court held that defendant had not

shown that he was entitled to summary judgment in
plaintiffs' action. Defendant failed to meet his
burden of establishing his prima facie entitlement
to judgment as a matter of law by demonstrating
that he did not supervise or control the work
performed at the site, or have actual or
constructive notice of the alleged defective
condition that caused the injured plaintiff's
accident. The lower court improperly granted that
branch of defendant's motion for summary judgment
that dismissed the cause of action against
defendant for common-law negligence insofar as
asserted against defendant.

OUTCOME: The court reversed the judgment of the

lower court and reinstated the cause of action
against defendant.

CORE TERMS: common-law, action to recover damages, summary

judgment, site, general contractor, defective condition, constructive
notice, safe, modified

LexisNexis® Headnotes Hide Headnotes

Torts > Premises Liability & Property > General Premises Liability >
General Overview
Torts > Vicarious Liability > Independent Contractors
HN1 A common-law duty rests on an owner or general

contractor to provide a safe place to work

which protects employees of subcontractors.
Liability for common-law negligence will attach
where a plaintiff's injuries were sustained as
the result of a defective or dangerous
condition at a work site, only if the owner or
general contractor exercised supervision and
control over the work performed at the site or
had actual or constructive notice of the
defective condition causing the accident
insofar as asserted against him.

HEADNOTES

[***1] Labor--Safe Place to Work

COUNSEL: Levine & Gilbert, New York, N.Y. (Richard A. Gilbert of

counsel), for appellants.

Baron Associates, P.C., Brooklyn, N.Y. (Bruce Provda of counsel), for

respondent.

JUDGES: FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT,

THOMAS A. ADAMS, REINALDO E. RIVERA, JJ. SANTUCCI, J.P.,
SCHMIDT, ADAMS and RIVERA, JJ., concur.

OPINION

[*390] [**898] In an action to recover damages for personal injuries,

etc., the plaintiffs appeal from an order of the Supreme Court, Kings
County (Jackson, J.), dated February 24, 2003, which granted the
motion of the defendant Carl Kruger, sued herein as Carl Cruger for
summary judgment dismissing the complaint insofar as asserted
against him.

[**899] Ordered that the order is modified, on the law, by deleting

the provision thereof granting that branch of the motion which was for
summary judgment dismissing the cause of action to recover
damages for common-law negligence insofar as asserted against the
defendant Carl Kruger, sued herein as Carl Cruger and substituting
therefor a provision denying that branch of the motion; as so
modified, the order is affirmed, with costs, and the [***2] cause of
action to recover damages for common-law negligence insofar as
asserted against Carl Kruger, sued herein as Carl Cruger is
reinstated.
HN1
"A common-law duty rests on an owner or general contractor to
provide a safe place to work which protects employees of
subcontractors(Caspersen v LaSala Bros., 253 N.Y. 491, 171 N.E.
754 [1930])" see Rusin v Jackson Hgts. v Shopping Ctr., 27 N.Y.2d
103, 106, 261 N.E.2d 635, 313 N.Y.S.2d 715 [1970]). Liability for
common-law negligence will attach where a plaintiff's injuries were
sustained as the result of a defective or dangerous condition at a
work site, only if the owner or general contractor exercised
supervision and control over the work performed at the site or had
actual or constructive notice of the defective condition causing the
accident (see Duncan v Perry, 307 A.D.2d 249, 762 N.Y.S.2d 275
[2003]; Giambalvo v Chemical Bank, 260 A.D.2d 432, 687 N.Y.S.2d
728 [1999]; Cuartas v Kourkoumelis, 265 A.D.2d 293, 696 N.Y.S.2d
475 [1999]; Sprague v Peckham Materials Corp., 240 A.D.2d 392,
658 N.Y.S.2d 97 [1997]). The [*391] defendant Carl Kruger, sued
herein as Carl Cruger failed to meet his burden of establishing his
prima facie entitlement to judgment as a matter of law by
demonstrating that he did not supervise or control the [***3] work
performed at the site, or have actual or constructive notice of the
alleged defective condition that caused the injured plaintiff's accident.
Thus, the Supreme Court improperly granted that branch of his
motion which was for summary judgment dismissing the cause of
action to recover damages for common-law negligence insofar as
asserted against him. Accordingly, we reinstate that cause of action.

Santucci, J.P., Schmidt, Adams and Rivera, JJ., concur.