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.