| Scaparo v Village of Ilion |
| 2009 NY Slip Op 05808 [64 AD3d 1209] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| Charles Scaparo et al., Appellants-Respondents, v Village of Ilionet al., Defendants, Herkimer County Industrial Development Agency, Respondent, and Our LadyQueen of Apostles Church of St. Mary of Mount Carmel/S.S. Peter and Paul,Respondent-Appellant. (Action No. 1.) Anthony Yero et al.,Appellants-Respondents, v Village of Ilion et al., Defendants, Herkimer CountyIndustrial Development Agency, Respondent, and Our Lady Queen of Apostles Church of St.Mary of Mount Carmel/S.S. Peter and Paul, Respondent-Appellant. (Action No.2.) |
—[*1] Law Office of John A. Panzone, P.C., Barneveld (John A. Panzone of counsel), fordefendant-respondent-appellant. Roche, Corrigan, McCoy & Bush, PLLC, Albany (Robert P. Roche of counsel), fordefendant-respondent.
Appeal and cross appeal from an amended order of the Supreme Court, Herkimer County(Michael E. Daley, J.), entered February 15, 2008 in personal injury actions. The amended ordergranted the motion of defendant Herkimer County Industrial Development Agency seekingsummary judgment, denied the motion of defendant Our Lady Queen of Apostles Church of St.Mary of Mount Carmel/S.S. Peter and Paul seeking summary judgment, and denied the crossmotion of plaintiffs seeking partial summary judgment.
It is hereby ordered that the amended order so appealed from is modified on the law [*2]by granting the motion of defendant Our Lady Queen of ApostlesChurch of St. Mary of Mount Carmel/S.S. Peter and Paul and dismissing the amendedcomplaints in action Nos. 1 and 2 against that defendant and as modified the amended order isaffirmed without costs.
Memorandum: The plaintiffs in action Nos. 1 and 2 commenced these Labor Law andcommon-law negligence actions seeking damages for injuries sustained by Charles Scaparo, aplaintiff in action No. 1, and Anthony Yero, a plaintiff in action No. 2 (collectively, plaintiffworkers), when the trench in which they were installing a sewer lateral collapsed. At the time ofthe accident, plaintiff workers were employees of the Village of Frankfort (Village) and wereinstalling the sewer lateral from the newly constructed cemetery chapel owned by Our LadyQueen of Apostles Church of St. Mary of Mount Carmel/S.S. Peter and Paul (Church), adefendant in both actions, to the sewer main at a street intersection in the Village. The sewerlateral was installed on property that was owned by Herkimer County Industrial DevelopmentAgency (HCIDA), another defendant in both actions. The property owned by HCIDA wasadjacent to the Church property and was within the 60-foot utility right-of-way that the Villagehad over the HCIDA property. In these consolidated appeals, the plaintiffs in both actionscontend that Supreme Court erred in granting the motion of HCIDA seeking summary judgmentdismissing the amended complaints against it, and the Church contends on its cross appeal thatthe court erred in denying its motion seeking summary judgment dismissing the amendedcomplaints against it. Although we conclude that the court properly granted the motion ofHCIDA, we further conclude that the court erred in denying the motion of the Church, and wetherefore modify the amended order accordingly.
Addressing first the motion of HCIDA, we note at the outset that plaintiffs' contention thatHCIDA failed to follow the best evidence rule to establish that the Village had a right-of-wayover its property is raised for the first time on appeal and is therefore not properly before us(see Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). We reject plaintiffs'further contention that HCIDA is an owner within the meaning of Labor Law § 241 (6). Incases imposing liability on an owner that does not contract for the work, there is "some nexusbetween the owner and the worker, whether by[, inter alia,] a . . . grant of aneasement, or other property interest" (Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 51 [2004]).Here, HCIDA established that it did not grant the Village an easement or other property interestand that plaintiff workers were on HCIDA's premises by reason of the arrangement between theChurch and the Village to install the sewer lateral (cf. Kerr v Rochester Gas & Elec.Corp., 113 AD2d 412, 416 [1985]). Plaintiffs failed to raise an issue of fact sufficient todefeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]).
Addressing next the motion of the Church, we note that the Church established that it wasrequired to pay for the cost of the materials and that the Village supplied the labor and retainedownership of the sewer lateral. The court determined that the Church was an owner for purposesof Labor Law § 241 (6) because it contracted for and benefitted from the installation of thesewer lateral and that there was a triable issue of fact whether the Church was in a position tocontrol the work and to insist that proper safety practices were followed for the purposes ofLabor Law § 200. That was error.
It is well established that, for purposes of the Labor Law, the term "owner" is not limited tothe titleholder (see generally Walp vACTS Testing Labs, Inc./Div. of Bur. Veritas, 28 AD3d 1104 [2006]; Reisch vAmadori Constr. Co., 273 AD2d 855, 856 [2000]). "The term [owner] has been held toencompass a person who has an interest in the property and who fulfilled the role of owner bycontracting to have the work performed for his benefit" (Copertino v Ward, 100 AD2d565, 566 [1984]). Here, the work was performed for the benefit of the Church, but the Churchdid not have an interest in the HCIDA property. As we explained in Sweeting v Board ofCoop. Educ. Servs. (83 AD2d 103, 114 [1981], lv denied 56 NY2d 503 [1982]),"[t]he 'owners' contemplated by the Legislature are [*3]thoseparties with a property interest who hire the general contractor to undertake the constructionwork on their behalf." The dissent relies on Copertino, in which the homeownercontracted to replace the sewer line that ran from his home to the main pipe in the street, and theplaintiff worker was injured in a portion of the trench located in the street. The SecondDepartment concluded in Copertino that the homeowner was liable pursuant to the LaborLaw not only because he had contracted for the sewer line to be installed on his property but alsobecause as "the abutting property owner [he] has an easement running through and under thestreet for his sewer connection" (100 AD2d at 567). "An easement is an interest in landcreated by grant or agreement, express or implied, which confers a right upon the holder thereofto some . . . lawful use out of or over the estate of another" (id.). Here,however, the Church had no property interest in the HCIDA property over which the sewer linewas placed, and thus it cannot be considered an owner for purposes of Labor Law § 240(1) or § 241 (6) (see generallyFisher v Coghlan, 8 AD3d 974, 975-976 [2004], lv dismissed 3 NY3d 702[2004]).
All concur except Green and Gorski, JJ., who dissent in part and vote to affirm in thefollowing memorandum.
Green and Gorski, JJ. (dissenting in part). We respectfully dissent in part, and would affirm.We agree with the majority that Supreme Court properly granted the motion of Herkimer CountyIndustrial Development Agency, a defendant in both actions, seeking summary judgmentdismissing the amended complaints against it. Contrary to the majority, however, we concludethat the court also properly denied the motion of Our Lady Queen of Apostles Church of St.Mary of Mount Carmel/S.S. Peter and Paul, another defendant in both actions (Church), seekingsummary judgment dismissing the amended complaints against it. Although it is undisputed thatthe Church did not hold title to the property where the accident occurred, "the meaning of'owners' under section 241 (6) of the Labor Law . . . has not been limited to thetitleholder[, and t]he term has been held to encompass a [party] who has an interest in theproperty and who fulfilled the role of owner by contracting to have work performed for [its]benefit" (Copertino v Ward, 100 AD2d 565, 566 [1984]; see Reisch v AmadoriConstr. Co., 273 AD2d 855, 856 [2000]). The Church's own submissions raise triable issuesof fact whether the Church may be considered an owner for purposes of Labor Law § 241(6) liability. The Church contracted for and benefitted from the installation of the sewer lateral inquestion. In addition, the Church's architect designed the sewer lateral and directed the Villageof Frankfort (Village) to install it within a specific time frame. Further, although the sewerlateral was installed within the utility right-of-way of the Village, the Church could have had thework performed by any licensed contractor; it was not necessary that the Village perform thework. Under those circumstances, we conclude at a minimum that there is a triable issue of factwhether the Church had an interest in the property where the accident occurred and fulfilled therole of owner (see Copertino, 100 AD2d at 566-567). We further conclude that theChurch failed to meet its initial burden of establishing, for purposes of Labor Law § 200liability, that it neither exercised supervisory control over the work nor had actual or constructivenotice of the unsafe shoring that allegedly caused the accident (see Higgins v 1790 BroadwayAssoc., 261 AD2d 223, 225 [1999]). Finally, although in view of its decision the majoritywas not required to reach the issue whether the court properly denied plaintiffs' cross motionseeking partial summary judgment on liability under Labor Law §§ 200 and 241 (6),we conclude that the court properly denied plaintiffs' cross motion. Present—Scudder,P.J., Peradotto, Carni, Green and Gorski, JJ.