| Ferreira v Village of Kings Point |
| 2009 NY Slip Op 09611 [68 AD3d 1048] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Peter Ferreira, Appellant, v Village of Kings Point,Respondent, et al., Defendant. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Martin, J.), enteredSeptember 24, 2008, as granted those branches of the motion of the defendant Village of KingsPoint which were for summary judgment dismissing the Labor Law § 240 (1) cause ofaction and so much of the Labor Law § 241 (6) cause of action as alleged violations of 12NYCRR 23-4.2 and 23-4.4 insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendant Village of Kings Point which was for summary judgmentdismissing so much of the Labor Law § 241 (6) cause of action as alleged violations of 12NYCRR 23-4.2 and 23-4.4 insofar as asserted against it and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
The defendant Carlo Lizza & Sons Paving, Inc., performed work on a roadway drainageproject on behalf of the defendant Village of Kings Point in connection with several roadwayswithin the Village. During the course of that work, it was discovered that the water mainsbeneath one of the roadways required repair. The local water authority hired the plaintiff'semployer, a plumbing contractor, to make the repairs to the water main. In the course of makingthose repairs, the plaintiff's coworker was using a backhoe to excavate the ground to the level ofthe water main, while the plaintiff followed behind the backhoe on foot, finishing the excavationof the resulting trench by hand. While the plaintiff was so engaged, the side of the trenchcollapsed, burying him to his chest, briefly pinning his arms, and injuring him. He commencedthis action against the Village, among others, alleging violations of, inter alia, Labor Law§ 240 (1) and § 241 (6).
Labor Law § 240 (1) and § 241 (6) impose liability on " 'all owners', withoutregard to encumbrances, and [their] duty to provide safe working conditions is nondelegableregardless of control" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 560 [1993]).Although there must be "some nexus [*2]between the owner andthe worker, whether by a lease agreement or grant of an easement, or other property interest" inorder for liability to be imposed under these provisions of the Labor Law (Abbatiello vLancaster Studio Assoc., 3 NY3d 46, 51 [2004]), the burden placed upon a defendantseeking summary judgment on the ground that it is not an owner is a heavy one (see Sanatassv Consolidated Inv. Co., Inc., 10 NY3d 333, 341-342 [2008]).
Here, the Village's conclusory assertion that there was no nexus between it and the plaintiffwas insufficient to satisfy its burden on its motion for summary judgment (see S.J. CapelinAssoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]). Moreover, although the Villagepresented unrebutted evidence that it had no control over the repair project occurring on itsproperty, such a showing is not sufficient to remove it from the Labor Law § 240 (1)definition of "owner" (see e.g. Sanatass v Consolidated Inv. Co., Inc., 10 NY3d at341-342; Coleman v City of New York, 91 NY2d 821, 822-823 [1997]; Celestine vCity of New York, 59 NY2d 938 [1983], affg 86 AD2d 592, 593 [1982];DeSabato v 674 Carroll St. Corp., 55 AD3d 656, 658 [2008]; Romero v J & SSimcha, Inc., 39 AD3d 838 [2007]). Accordingly, the Village did not satisfy its prima facieburden of demonstrating that it is not liable as an owner under Labor Law § 240 (1) and§ 241 (6). Consequently, the Supreme Court erred in determining that it was entitled tosummary judgment on that basis.
As an alternative ground for the affirmance of the Supreme Court's determination regardingthe plaintiff's Labor Law § 240 (1) cause of action (see Parochial Bus Sys. v Board ofEduc. of City of N.Y., 60 NY2d 539, 545-546 [1983]), the Village argues that trenchcollapses do not fall within the ambit of that Labor Law section. Since trench collapses are notwithin the class of hazards against which Labor Law § 240 (1) was intended to guard(see Natale v City of New York, 33 AD3d 772, 774 [2006]; O'Connell vConsolidated Edison Co. of N.Y., 276 AD2d 608, 610 [2000]; Vitaliotis v Village ofSaltaire, 229 AD2d 575 [1996]), the Village established its prima facie entitlement tojudgment as a matter of law dismissing the plaintiff's Labor Law § 240 (1) cause of actioninsofar as asserted against it. In opposition, the plaintiff failed to raise a triable issue of fact.Accordingly, the Supreme Court properly granted that branch of the Village's motion which wasfor summary judgment dismissing the Labor Law § 240 (1) cause of action insofar asasserted against it.
The Village also contends that the plaintiff does not have a viable Labor Law § 241(6) cause of action since the provisions of the Industrial Code upon which he relies, namely 12NYCRR 23-4.2 and 23-4.4, are not sufficiently specific to sustain his claim. Contrary to theVillage's contention, the Industrial Code provisions relied upon by the plaintiff set forth detailedrequirements regarding the bracing and shoring of trenches and, as such, are sufficiently specificto support a claim under Labor Law § 241 (6) (see Garcia v Silver Oak USA, 298AD2d 555 [2002]). Accordingly, the Supreme Court should have denied that branch of thedefendant's motion which was for summary judgment dismissing so much of the plaintiff's causeof action under Labor Law § 241 (6) as is based upon alleged violations of sections 23-4.2and 23-4.4 of the Industrial Code.
The parties' remaining contentions are without merit. Prudenti, P.J., Covello, Lott and Sgroi,JJ., concur.