In a decision dated November 18, 2010, the Appellate Division, First Department, affirmed the trial court’s dismissal of the plaintiff’s complaint. The plaintiff, an ironworker, alleged that while working on a bridge owned by defendant the City of New York, he was struck by a pick-up truck owned and operated by his employer when he attempted to enter a lane of traffic on the bridge that was closed to the public by his employer. The Appellate Division held that the City could not be held liable for common law negligence or pursuant to Labor Law §200 because it did not exercise supervision and control over the plaintiff’s work. Although the City had to approve the plaintiff’s employer’s request to close lanes to public traffic and had hired engineers to ensure that the work was being performed according to the contract plans and specifications, the First Department held that such conduct did not amount to supervision and control over the plaintiff’s work. In addition, the First Department agreed that the jersey barrier over which the plaintiff had to step to enter the roadway was not an inherently dangerous condition in the workplace such that the City could be held liable to the plaintiff, even in the absence of supervisory control over his work. Furthermore, because the City was not the plaintiff’s employer, Labor Law §200 liability could not be based upon alleged violations of the Occupational Safety and Health Act which govern employer/employee relationships. The Appellate Division also determined that Industrial Code Rules 23-1.29 (public vehicular traffic) and 23-1.32 (imminent danger- notice, warning and avoidance) were inapplicable to the facts of this case.
Delaney v. The City of New York, 78 A.D.3d 540 (1st Dep’t 2010)