| Riordan v Robert F. Hyland & Sons, Inc. |
| 2007 NY Slip Op 07132 [43 AD3d 1329] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| Clarence F. Riordan et al., Respondents, v Robert F. Hyland &Sons, Inc., et al., Defendants, and BOCES of Rochester, Appellant. |
—[*1] Lawrence A. Schulz, Orchard Park, for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Cattaraugus County (Larry M. Himelein, A.J.),entered September 15, 2006 in a personal injury action. The order, insofar as appealed from,denied the cross motion of defendant BOCES of Rochester for summary judgment dismissing thecomplaint against it.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed with costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence action torecover damages for injuries sustained by Clarence F. Riordan (plaintiff) while he was workingon the reconstruction of a school that was leased in part by defendant BOCES of Rochester(BOCES). Supreme Court properly denied the cross motion of BOCES to the extent that itsought summary judgment dismissing the Labor Law § 240 (1) and § 241 (6) claimsagainst it on the ground that it lacked the authority to control the work site. BOCES failed tomeet its initial burden of establishing that defense as a matter of law (see Riordan v BOCES of Rochester, 4AD3d 869, 870 [2004]; see generally Copertino v Ward, 100 AD2d 565, 567[1984]). The court also properly denied that part of the cross motion of BOCES seeking summaryjudgment dismissing the Labor Law § 240 (1) claim against it on the ground that plaintiffwas not engaged in an activity protected by that statute when he was injured. The recordestablishes that there is a triable issue of fact whether plaintiff was engaged in an unprotectedactivity when he was injured, i.e., sliding down a muddy embankment (see Williams v WhiteHaven Mem. Park, 227 AD2d 923 [1996]), or whether he was engaged in a protectedactivity, i.e., falling into an excavation site (see Covey v Iroquois Gas Transmission Sys.,89 NY2d 952 [1997]; Bockmier v Niagara Recycling, 265 AD2d 897 [1999]). The courtalso properly denied that part of the cross motion of BOCES seeking summary judgmentdismissing the Labor Law § 241 (6) claim against it on the ground that the only regulationrelied upon by plaintiff in opposition to the cross motion, i.e., 12 NYCRR 23-4.3, is inapplicableto the facts of this case (see Bockmier, 265 AD2d 897 [1999]). Finally, the court properly[*2]denied that part of the cross motion of BOCES seekingsummary judgment dismissing the Labor Law § 200 claim and common-law negligencecause of action against it inasmuch as the submissions of BOCES in support of its cross motionraise triable issues of fact whether it had supervisory control over the work or had actual orconstructive notice of the allegedly dangerous condition that caused plaintiff's injuries (see Hennard v Boyce, 6 AD3d1132, 1133 [2004]; see also Fingerv Cortese, 28 AD3d 1089 [2006]). Present—Scudder, P.J., Martoche, Lunn,Peradotto and Green, JJ.