[*1]

Motion by defendants Harris Corp. (Harris) and Teltronics, Inc. (Teltronics), for an order granting them summary judgment dismissing the complaint and all cross-claims against them, is decided as follows:

Plaintiff Robert Gherardi brought this personal injury action against defendants, claiming that he was injured as a result of defendants' negligence and that defendants violated Labor Law §§200, 240(1)and 241(6).

Plaintiff was an employee of non-party Magnetic Electrical Corporation (MEC). He was allegedly injured August 3, 2000, while working at Stevenson High School (Stevenson) in the Bronx, New York. MEC had been hired by defendants Harris and Teltronics to install computer wiring in the building. Harris had contracted with the Board of Education of the City of New York (the Board) in 1999 to install telephone systems as well as peripheral equipment and cabling at a number of schools over a period of years (Plaintiff's Exhibit E). Shortly before the accident, Teltronics purchased this contract from Harris and was the successor corporation on the site. In their answer, the City of New York (the City) admitted that it owned Stevenson and the Board admitted that it operated the school in question (Plaintiff's Exhibit B).

Plaintiff claims that, on the day of the accident, he was involved in installing wiring for computers on the third floor of Stevenson. He and his fellow workers were only able to enter Stevenson through one entrance which led to the basement of the building. According to plaintiff, the entrance in question was left open while he worked in the building, from 3P.M. to 11P.M. Upon entering the building, one had to traverse a wooden ramp approximately 15 feet long, and 4-5 feet wide, which, at the entrance was, 3-4 feet above the level of the basement floor and at its end reached the level of the basement floor. The ramp did not have any side rails. The basement wall on the right hand side was approximately 18 inches from the ramp and the wall on the left hand side was a few feet away.

Plaintiff alleges that, upon entering the building with his fellow employees after a supper break, he was walking on the right hand side of the ramp when his right foot slipped off the edge [*2]of the ramp and his left leg buckled, resulting in an injury to his left knee. Plaintiff claims that, after falling, he noticed that the ramp was wet, feeling the wetness with his hand, on his clothing, and then seeing the wetness when he was helped into a chair at the end of the ramp. Plaintiff was not carrying anything at the time of his fall. Plaintiff states that, on the day in question, there had been light rain and mist.

The court will first consider movants' argument that they should be granted summary judgment on plaintiff's claims of negligence and violation of Labor Law § 200.

Labor Law § 200 is a codification of the common law duty to provide workers with a safe work environment, and it therefore can be considered along with common law negligence.

Defendants argue that all of the evidence points to the fact that movants did not supervise the work being done by plaintiff. Plaintiff himself admitted in his deposition that his work was never supervised by anyone other than MEC employees and that he was never supervised by anyone from Harris or Teltronics (Defendants' Exhibit D p.50). Dominick Catinella, Teltronics' Vice President for Technical Services, stated in his affidavit that Teltronics did not supervise the employees of the subcontractors who worked at Stevenson.

In his deposition, Catinella stated that Harris had a project manager, Raymond Chan, who went to the worksite twice a week to check on the progress of the work (Plaintiff's Exhibit D, p.11).

In the case of both common law negligence and violations of Labor Law §200, plaintiff must prove that an owner or general contractor "had authority or control over the activity causing the injury, thus enabling it to avoid or correct an unsafe condition (citation omitted)" (O'Sullivan v. ID1 Construction Company, Inc., 28 AD3d 225 [1st Dept 2006]. As in the instant case, the plaintiff in O'Sullivan admitted that he never took instructions from the general contractor. The fact that the general contractor's on-site safely manager had responsibility for the safety of the work done by the subcontractors was insufficient to raise a question of fact as to its negligence.

Plaintiff points to the fact that, in the instant case, the contract between defendant Board and defendant Harris provided that "(t)he Contractor warrants that it shall be solely responsible for its employees' work, direction, safety and compensation." However, there is nothing in this language that would create a duty on the part of the general contractor to supervise the work of its subcontractors.

Thus, movants' motion for summary judgment is granted as to the claims of common law negligence and Labor Law § 200.

Plaintiff also alleges that movants have violated Labor Law §240 (1) which applies to "tasks that entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials must be positioned or secured" (Rocovich v. Consolidated Edison Co., 78 NY2d 509).

However, the ramp that plaintiff was using to enter the building was not being used in the performance of his work in the building. It was not being used by plaintiff as a ladder, scaffold, hoist or other safety device at the worksite for his benefit. It was only being used as a passageway to gain entry to the worksite and as a result does not come within the ambit of Labor Law § 240(1) (see Donahue v. CJAM Associates, LLC, 22 AD3d 710 [2nd Dept 2005]).

Therefore, movants' motion, as it regards Labor Law §240 (1), is granted.

Finally, plaintiff alleges that movants violated Labor Law § 241(6), specifically Industrial Code Sections 23-1.7 (d), 23-1.22 and 23-1.30. As to § 23-1.30, which governs proper [*3]illumination, there is no evidence that the accident in question was in any way related to insufficient lighting. In addition, there is no showing that movants violated §23-1.22 which governs the construction of runways and ramps. The ramp involved herein had been constructed years prior to movants' involvement.

Section 23-1. 7(d), regarding slipping hazards, reads as follows:

Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

Plaintiff alleges that the ramp in question was wet and that he slipped and was injured as a result.

Initially, movants argue that Labor Law §241(6) is not applicable, because the work plaintiff was doing, (wiring the building in question) is not considered "construction" under §241.

However, Labor Law §241(6) applies to situations involving "construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures" (12NYCRR 23-1.4[(b)] [13]). The Court of Appeals in Joblon v. Solow, 91 NY2d 457, found that putting a hole through a wall in order to run wires encased in a conduit through the wall to connect to an electric clock constituted alteration for purposes of Labor Law §241(6). The court finds that the activities of plaintiff in the instant case, which involved wiring the building through holes in the walls and ceiling, also constituted alteration, and was within the ambit of §241(6).

Movants argue that the accident in question took place on a ramp which was not located in the area where plaintiff was working, that the ramp was a permanent fixture, having been built 25-30 years prior to the accident (Defendants' Exhibit F-p.25) and movants had no notice of the alleged condition which caused plaintiff to slip and fall.

As to the issue of notice, the Courts of Appeals held in Rizzuto v. L.A. Wenger Contracting Co., 91 NY2d 343, 350, that "section 241(6) imposes a non-delegable duty upon an owner or general contractor to respond in damages due to another party's negligence in failing to conduct their construction, demolition or excavation operation so as to provide for the reasonable and adequate protection of the persons employed therein... If [negligence is] proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault (citations omitted)."

In addition, responsibility under Labor Law § 241(6) has been held to extend "not only to the point where...the work was actually being conducted but to the entire site... (citation omitted)" (Smith v. McClier Corp., 22 AD3d 369, 371).

Finally, movants argue that they are not responsible, pursuant to Labor Law § 241 (6), for an accident that takes place on a permanent fixture, such as the ramp in the instant case, citing the cases of Carrion v. Lewmara Realty Corporation, 222 AD2d 205 (1st Dept 1995) and Cliquennoi v. Michaels Group, 178 AD2d 839 (3rd Dept 1991). However, neither case stands for this proposition. The only reference to § 241 (6) in Carrion states that there was "no showing that a violation of a safety regulation promulgated thereunder was the proximate cause of the accident (at 206)." As to Cliquennoi, the court only deals with the lower court's decision [*4]granting plaintiff's cross-motion for partial summary judgment under Labor Law § 240 (1) but does not address the defendant's alleged violation of Labor Law § 241 (6). Thus, there is no basis for movants' argument that a general contractor is not responsible for a § 241 (6) violation that takes place on a permanent fixture.

Accordingly, movants' motion for an order granting them summary judgment dismissing the complaint and all cross-claims is granted only to the extent of dismissing plaintiff's claims pursuant to Labor Law § 200 and § 240 (1); cross-claims against movants are dismissed on default.

This constitutes the decision and order of the Court.

Dated: January 4, 2007_____________/s/_______________

MARK FRIEDLANDER, J.S.C.