Cappello v. Cardinal Development Corp. , 624 N.Y.S.2d 867 ( 1995 )

—In an action to recover damages for personal injuries, the defendants Cardinal Development Corp. and J. Montana Contracting Corp. separately appeal from so much of an order of the Supreme Court, Rockland County (Meehan, J.), dated February 1, 1994, as denied those branches of their respective motions which were for summary judgment dismissing the plaintiffs cause of action pursuant to Labor Law § 200, and all cross claims and counterclaims insofar as they are asserted against them.

Ordered that the order is reversed, insofar as appealed from, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, and the branches of their motions which were for summary judgment dismissing the plaintiffs cause of action pursuant to Labor Law § 200 and all cross claims and counterclaims is granted and the complaint and all cross claims and counterclaims are dismissed insofar as they are asserted against the defendants Cardinal Development Corp. and J. Montana Contracting Corp.

Upon our review of the record, we conclude that the plaintiff has failed to demonstrate that the defendants Cardinal Development Corp. and J. Montana Contracting Corp. (hereinafter the appellants) had actual or constructive notice of the alleged unsafe condition which caused the accident, or that they exercised sufficient control over the work being performed to correct the alleged unsafe condition. In addition, the alleged unsafe condition was inherent in the nature of the work being performed and could not form the basis of liability. Accordingly, the plaintiff could not recover from the appellants under either common law negligence or Labor Law § 200 (see, Lombardi v Stout, 80 NY2d 290; Russia v Picciano & Son, 54 NY2d 311; Allen v Cloutier Constr. Corp., 44 NY2d 290; Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136; Stephens v Tucker, 184 AD2d 828). Sullivan, J. P., Miller, Copertino, Joy and Friedmann, JJ., concur.