MANTOVI v. NICO CONSTRUCTION CO

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the third-party complaint and any cross claims asserted against P.M. Systems, Inc., are dismissed.

Contrary to the contentions of the parties opposing the appellant's motion for summary judgment, there is no evidence that the appellant created the defective condition that allegedly caused the plaintiff's injury. Moreover, there is no evidence that the appellant had actual or constructive notice of the defect. Absent notice, there can be no liability pursuant to Labor Law § 200 (1) (see, Kennedy v. McKay, 86 A.D.2d 597). Further, liability cannot be based on Labor Law § 241 (6) since there are no allegations in the record that the appellant violated the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494). Consequently, the Supreme Court erred by denying the appellant's motion for summary judgment. Miller, J.P., Altman, Goldstein and Florio, JJ., concur.