The defendants filed a motion for summary judgment relative to the plaintiff's causes of action pursuant to Labor Law §§241(6) and 200. The plaintiff did not oppose summary judgment relative to the Labor Law §241(6) cause of action. However, the plaintiff opposed the motion as to the Labor Law §200 claim, and filed a cross-motion to amend the complaint to clarify the common law negligence claim and extend the defendants' 90-day demand to serve a note of issue and statement of readiness. The defendants opposed the plaintiff's cross-motion. After oral argument on September 15, 2004, this Court verbally granted the defendants' motion for [*2]summary judgment relative to the Labor Law causes of action for the reasons stated below, and reserved decision concerning the plaintiff's cross-motion to amend the complaint.



I.Background

On August 7, 1997, the plaintiff was injured, during the course of his employment as a cable television maintenance technician for Adelphia Cable ("Adelphia"), while repairing a cable line on Creek Road in Lewiston, New York. When the plaintiff arrived at the work area, he placed a series of orange reflective cones and an orange "Men Working" sign starting approximately 100 feet from the utility pole at issue, which was adjacent to and on the west side of Creek Road. The cable line had been cut by one of the defendants before the date of the accident.

The plaintiff, without assistance, carried a replacement cable line over his shoulder from a utility pole on the east side of Creek Road to a utility pole on the west side of Creek Road. The plaintiff then climbed a ladder, which he had positioned against the utility pole on the west side of Creek Road. While the plaintiff was securing his safety belt, a truck struck the cable line that extended across and well above the driving surface of Creek Road. The plaintiff was pulled from the ladder and fell to the ground. At the time of the accident, there were no signs warning motorists traveling on Creek Road that a cable was suspended across and above the road.

The defendants' motion for partial summary judgment relative to the plaintiff's Labor Law §240(1) cause of action was granted by the Hon. Norman E. Joslin, J.S.C., on March 31, 1999. The plaintiff appealed, and on November 13, 2000, the Appellate Division, Fourth Department, affirmed the March 31, 1999 Order. In doing so, the Appellate Division, Fourth Department, held that the defendants were not liable under Labor Law §240(1) because: (1) they were not owners of the cable line being repaired at the time of the accident, and (2) the defendants did not otherwise act in the capacity of an owner. Bonghi v. New York Telephone Co., 277 AD2d 893. The Court of Appeals dismissed the plaintiff's motion for leave to appeal on March 22, 2001. Bonghi v. New York Telephone Co., 96 NY2d 791.

The defendants assert that the Labor Law §§241(6) and 200 causes of action should be dismissed because at the time of the accident: (1) they did not own the cable line the plaintiff was repairing and they did not otherwise act in the capacity of owners, and (2) they lacked authority to and did not direct, supervise or control the work the plaintiff was performing. The defendants also contend that, applying the law of the case, they are not "owners" of the cable line under the Labor Law, and as a result, no additional discovery is necessary. The defendants finally assert that the allegedly dangerous condition that caused the plaintiff to fall was created by him, so that his conduct was the sole, proximate cause of the accident.

The plaintiff opposes dismissal of the Labor Law §200 claim on the ground that questions of fact exist as to whether the defendants created a dangerous condition on their property and failed to provide a safe place for the plaintiff to work. While the plaintiff concedes that the complaint does not set forth a common law negligence cause of action, he urges this Court to permit the proposed amendment because the factual and legal basis for a common law negligence claim is articulated in the Labor Law §200 cause of action. The plaintiff argues that the defendants cannot establish prejudice as a result of the proposed amendment, which serves merely to clarify the complaint. The plaintiff also argues that the defendant's 90-day demand [*3]deadline should be extended because he has not yet deposed the defendants.

The defendants disagree, arguing that the proposed amendment plainly lacks merit, that the plaintiff has not offered any reasonable explanation for the delay in seeking the amendment, and that the defendants would be prejudiced if a new cause of action was added six years after commencement of the action and four years after expiration of the statute of limitations.

II.Discussion

A. The Labor Law §241(6) Cause of Action

The determination that the defendants were not owners of the cable line the plaintiff was repairing when he was injured is the law of the case. Bonghi v New York Telephone Co, 277 AD2d 893. As such, the Labor Law §241(6) claim must be dismissed for the same reasons the Labor Law §240(1) claim was dismissed, namely that the defendants were not owners of the cable line the plaintiff was repairing at the time of the accident and the defendants did not otherwise act in the capacity of an owner. The plaintiff concedes that the Labor Law §241(6) claim is not viable and does not oppose the dismissal of the claim.

B. The Labor Law §200 Cause of Action

Labor Law §200 codifies the common-law duty imposed upon an owner and general contractor to provide workers with a safe place to work. Comes v New York State Electric and Gas Corp, 82 NY2d 876, 877. "An implicit precondition to this duty 'is that the party charged with that responsibility have the authority to control the activity bringing about the injury.'" Id. Further, "[w]here the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law §200." Id. (citation omitted).

The plaintiff's affidavit, dated October 8, 1998, and his deposition testimony, establish that he was directed by Adelphia, his employer, to replace a severed cable line at the utility pole on Creek Road. The plaintiff testified that Adelphia was required to maintain and repair the cable line. Adelphia set the procedures and guidelines for cable line repairs, and provided all of the plaintiff's training and the equipment, tools and safety devices for the assignment, including the ladder and cable. According to the plaintiff, he did use any equipment other than that provided by Adelphia to perform the repairs and he placed the safety devices on the day of the accident as an employee of Adelphia.

Additionally, the Pole Attachment Agreement (the "Agreement") in effect between Adelphia and the defendants permitted Adelphia to attach cable lines to the utility poles jointly owned by the defendants. Under the Agreement, Adelphia was required to maintain the cable lines and to provide any necessary safety equipment and devices.

The evidence demonstrates, and the plaintiff appears to concede, that the defendants had no authority to and did not direct, supervise or control the plaintiff's work at the time of the accident. Accordingly, the Labor Law §200 claim on that basis must be dismissed. See Comes, 82 NY2d at 877; Sikorski v Burroughs Drive Apartments, 306 AD2d 844, 845.

The real thrust of the Labor Law §200 claim is in the nature of a premises liability claim. The plaintiff alleges that a question of fact exists as to whether the condition of the pole, specifically the presence of trees near the pole and the failure to keep the trees properly trimmed, contributed to the happening of the accident. [*4]

In a Labor Law §200 claim, as in a common law negligence claim, the alleged defect in the premises must be a proximate cause of the accident. In this case, the record is devoid of any evidence that the condition of the pole contributed to the happening of the accident. The only evidence regarding the trees in the area was the plaintiff's testimony that there were trees north and south of the utility pole. The plaintiff could not estimate the distance between the trees and the road and admitted the road was wide open in the area of the accident.

The plaintiff does not articulate how conditions would have differed if the trees had been maintained properly and it is difficult to conceive what argument could be made. The evidence does not demonstrate that the trees played any role in the happening of the accident, regardless of how poorly maintained or close they were to the pole or to the road. Importantly, the plaintiff has not alleged how trimming the trees would have alerted the truck driver that a cable was suspended across and above the road. This Court has not been persuaded that an allegedly defective condition of the trees can be regarded as a proximate cause of the accident.

The plaintiff also claims he was at the scene to repair a condition caused by the defendants, namely the severed cable line. That the defendants created the condition requiring repair does not establish conduct on their part, or a condition of the defendants' property, that was a proximate cause of the plaintiff's accident. This argument is unavailing because at most, the cutting of the cable "merely furnished the condition or occasion for the occurrence of the event rather than one of the causes." Sheehan v. City of New York, 40 NY2d 496, 503.

The record establishes that the defendants lacked authority to, and did not in fact, supervise, direct or control the repairs the plaintiff was performing at the time of his accident. The plaintiff has not introduced any evidence to controvert the evidence submitted in support of this conclusion. Furthermore, the evidence demonstrates that the plaintiff created the dangerous condition that caused the accident. The dangerous condition resulted entirely from the manner in which the plaintiff performed his job, not because of any alleged defect in the premises. See Comes, 82 NY2d at 877; Sikorski, 306 AD2d at 845. Thus, this Court finds that the defendants have established their entitlement to judgment as a matter of law, and the plaintiff has failed to raise a triable issue of fact.

C. The Plaintiff's Cross-Motion to Amend the Complaint

A motion for leave to amend a pleading is committed to the sound discretion of the trial court. Edenwald Contr v. City of New York, 60 NY2d 957. Generally, leave to amend a pleading should be freely granted in the absence of prejudice to the non-moving party. See CPLR 3025(b). However, leave to amend properly is denied where the proposed amendment plainly lacks merit. Manufacturers & Traders Trust Co v. Reliance, 8 AD3d 1000. Where there has been an extended delay in moving to amend, the party must establish a reasonable excuse for the delay. See Jablonski v. County of Erie, 286 AD2d 927.

The plaintiff's motion for leave to amend the complaint to clarify and/or add a negligence cause of action is denied because the proposed amendment plainly lacks merit. As outlined above, the common law liability claim is not viable because the defendants did not supervise the repairs and the dangerous condition causing the accident arose from the manner in which the plaintiff performed his duties, not from a defect in the premises. Comes, 82 NY2d at 876. Additionally, there has been no showing that any negligence on the part of the defendants proximately caused the accident and resultant injuries. Finally, the plaintiff failed to demonstrate [*5]any excuse for the delay in seeking the proposed amendment. Jablonski, 286 AD2d at927. Because the proposed amendment lacks merit, there is no need to address whether the proposed amendment would prejudice the defendants.

Based on the foregoing, it is hereby

ORDERED that the defendants' motion for Summary Judgment is granted in its entirety; and it is further

ORDERED that the plaintiff's cross-motion for leave to amend the complaint is denied; and it is further

ORDERED that the plaintiff's cross-motion to extend defendants' 90-day demand to serve a note of issue and statement of readiness is denied as moot.

The foregoing Decision constitutes the Order of this Court. No further Order need be submitted.

Dated: November 10, 2004

____________________________________

Erin M. Peradotto, J.S.C.

GRANTED: