The motion by defendants Nissan Cohen and WL Assets Corp., (hereinafter "WLA"), for summary judgment dismissing all claims and cross-claims against defendant Cohen and for partial summary judgment in favor of WLA with respect to plaintiff's Labor Law §200 and/or negligence claims, granted without opposition.

The cause of action is for personal injuries sustained by plaintiff Angel Quintana on December 10, 2009, when he spilled a bucket of hot tar on himself while preparing to pave a temporary sidewalk for a construction project located at 926 Cross Bronx Expressway in Bronx County.

Defendant Cohen moves for summary judgment and alleges that he was vice-president and fifty percent owner of WLA, the other fifty per cent was owned by Morris Mehraban. Defendant Cohen contends that he retained Habitat Developers Corp. and VDM Construction in his corporate capacity as an officer of WLA. WLA intended to turn the subject property where the accident occurred from an abandoned property to a mixed use development. In support of the motion, defendant Cohen submits a copy of the shareholders agreement for WLA. Under the terms of said agreement, defendant Cohen was authorized to run the day-to-day affairs of the corporation and hire entitles at the expense of the corporation to advance and expedite the construction of the project at the subject location.

Defendant Cohen refers to that portion of his deposition wherein he testified that other than requesting that VDM Construction put tar on the temporary sidewalk and receiving an invoice after the work was completed, he did not have any other interaction with VDM [*2]Construction. Defendant Cohen contends that he is not the owner of the subject property and any conduct he engaged in with respect to the retention of plaintiff's employer was in furtherance of the goals detailed in the shareholder agreement. There is no allegation or evidence of fraud or other conduct by defendant Cohen to warrant piercing the corporate veil nor did he abuse the corporate form or use the corporation as an alter ego for his own personal benefit. Defendant Cohen cites to case law which holds corporations are legal entities distinct from their managers and shareholders and have an independent legal existence. Port Chester Electrical Construction Corp. v. Atlas, 40 NY2d 652 (1976).

Thus, since WLA is the sole owner of the subject property and defendant Cohen was expressly authorized to retain contractors on behalf of WLA to perform work at the subject property, all claims against him in his individual capacity should be dismissed as a matter of law.

WLA further seeks to dismiss Labor Law §200 and negligence claims against it. WLA refers to the deposition testimony of the plaintiff wherein he testified that he was attempting to lift the lid covering a bucket of boiling tar heated on a trailer behind his employer's truck . The bucket became stuck to the lid before separating and splashing him with boiling tar. Plaintiff testified that the bucket stuck to the lid because the cold weather caused the top of the bucket to harden with dry tar. Plaintiff further testified that he was distracted at the moment the accident occurred because his boss was yelling at him to hurry up.

WLA further asserts that plaintiff testified that he was heating up the tar in the method taught by his employer, using materials and equipment provided to him by his employer. WLA contends that there is no evidence that any dangerous or defective condition on WLA's property constituted a proximate cause of plaintiff's accident and the accident occurred on the public street. Moreover, WLA asserts that it is undisputed that all direction and control over plaintiff's work was exercised solely by his employer. Pursuant to case law, liability under Labor Law §200 cannot be imposed on an owner or general contractor unless it is shown that it exercised some supervisory control over the work. Accordingly, plaintiff's claims based upon negligence and Labor Law §200 as well as all cross-claims, should be dismissed as a matter of law.

This court did not receive any papers in opposition to the instant motion.

Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). To obtain summary judgment the proponent must tender proof in admissible form to demonstrate the absence of any material issues of fact. Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). The court's function on a motion for summary judgment is issue finding rather than issue determination. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957). [*3]

With respect to defendant Cohen, in Worthy v. New York City Housing Authority, 21 AD3d 284 (1st Dept. 2005), the court ruled that, "A corporate officer is not subject to personal liability for actions taken in furtherance of the corporation's business under the well-settled rule that an agent for a disclosed principal will not be personally bound unless there is clear and explicit evidence of the agent's intention to substitute or superadd his personal liability for, or to, that of his principal'...'" (citations omitted). Id. at 286. Defendant Cohen has demonstrated that WLA was the sole owner of the subject property and he was an officer and fifty percent owner of that corporation. He retained VDM Construction in his corporate capacity and there is no evidence that he intended to substitute his personal liability for that of WLA. Absent any evidence with respect to defendant Cohen's personal liability, the motion to dismiss all claims against him in his individual capacity are hereby dismissed.

With respect to WLA, Labor Law §200 involves the general duty to protect the health and safety of employees and, "...a landowner will not be liable under section 200 or under common law negligence principles for injuries sustained by workers on the property in the absence of evidence that the landowner exercised supervision or control over the work or had notice of the existence of a dangerous condition..." Sheehan v. Gong, 2 AD3d 166 (1st Dept. 2003).

In the case at bar, there is no evidence that WLA supervised, directed or controlled the work that was being performed by plaintiff. There is no evidence that any dangerous or defective condition was present on WLA's property. Moreover, the accident arose from the manner and method in which the work was being performed. See, Monterroza v. State University Construction Fund, 56 AD3d 629 (2nd Dept. 2008); Castellon v. Reinsberg, 82 AD3d 635 (1st Dept. 2011). Therefore, the negligence and Labor Law §200 claims asserted by plaintiff as well as all cross-claims, are hereby dismissed.

Movants are directed to serve a copy of this order with notice of entry upon all parties and file proof thereof with the clerk's office.

This constitutes the decision and order of the court.

Dated: July 13, 2012J.S.C.