Pilat v. Raymond LeChase, Inc. , 689 N.Y.S.2d 576 ( 1999 )

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Plaintiff, a correction officer assigned to patrol a construction site at Wende Correctional Facility, was injured when he fell into a ditch. Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint. With respect to the Labor Law § 200 and common-law negligence claims, defendant established by proof in admissible form that it did not have the requisite supervision or control over plaintiff, and plaintiff failed to raise a question of fact (see, Rizzuto v Wenger Contr. Co., 91 NY2d 343, 352; Shandraw v Tops Mkts., 224 AD2d 997, 998; see also, Ramski v Zappia Enters., 229 AD2d 990). With respect to the Labor Law § 241 (6) claim, defendant established that plaintiff did not “come within the special class for whose benefit liability is imposed upon contractors, owners and their agents” (Mordkofsky v V.C.F. Dev. Corp., 76 NY2d 573, 576). Plaintiff was not both employed by the owner, contractor or agent and employed to work on a building or structure within the meaning of Labor Law § 241 (6) and 12 NYCRR 23-1.3 and 23-1.4 (b) (39) (see, Farrell v Dick Enters., 227 AD2d 956; see also, Agli v Turner Constr. Co., 246 AD2d 16, 21, 24). (Appeal from Order of Supreme Court, Erie County, Sedita, Jr., J. — Summary Judgment.) Present — Green, J. P., Hayes, Pigott, Jr., Scudder and Callahan, JJ.