| Baker v Town of Niskayuna |
| 2010 NY Slip Op 00045 [69 AD3d 1016] |
| January 7, 2010 |
| Appellate Division, Third Department |
| Raymond Baker, Appellant, v Town of Niskayuna et al.,Respondents. |
—[*1] Shantz & Belkin, Latham (Todd C. Roberts of counsel), for Town of Niskayuna, respondent. Harter, Secrest & Emery, L.L.P., Rochester (William A. Santmyer of counsel), for LaBergeEngineering and Consulting Group, Ltd., respondent.
Lahtinen, J. Appeals (1) from an order of the Supreme Court (Kramer, J.), entered October17, 2008 in Schenectady County, which, among other things, granted defendants' motions forsummary judgment dismissing the complaint, and (2) from the judgment entered thereon.
Plaintiff was employed by Gallo Construction Company, which had contracted withdefendant Town of Niskayuna to construct a sewer project in the Town. Defendant LaBergeEngineering & Consulting Group, Ltd. was the Town's engineer for the project and it had arepresentative on the site. In late December 2004, plaintiff was working in a trench dug for theproject which was six to seven feet wide and 10 to 12 feet deep. A safety device known as atrench box was present. According to plaintiff, his supervisor from Gallo ordered him to do workin the trench at a place outside the trench box. The supervisor testified that plaintiff exited thetrench box suddenly and of his own volition. In any event, when plaintiff was outside the trenchbox a wall of the trench collapsed on him causing injuries.
Plaintiff served a notice of claim on the Town in March 2005 and, in January 2006, [*2]commenced this action against the Town and LaBerge allegingcommon-law negligence and violations of Labor Law §§ 200, 240 and 241.Following disclosure, defendants moved for summary judgment dismissing the complaint andplaintiff cross-moved for, among other things, partial summary judgment. Supreme Court deniedplaintiff's cross motion and granted defendants' motions. Supreme Court, in its oral decision,found, among other things, that (1) the trench collapse was not an elevation related risk so as toimplicate Labor Law § 240, (2) neither the Town nor LaBerge exercised supervision orcontrol over the construction site such that the common-law negligence and Labor Law §200 claims could survive, (3) the Labor Law § 241 claim must fail as to LaBerge sinceLaBerge was not an agent of the owner, and (4) the Labor Law § 241 claim must fail as tothe Town both because plaintiff failed to set forth sufficient underlying Industrial Codeviolations and his notice of claim failed to specifically cite to the Labor Law sections allegedlyviolated by the Town. Plaintiff appeals, challenging the dismissal of his Labor Law§§ 200 and 241 (6) causes of action as to both defendants.
Initially, we find merit in plaintiff's argument that Supreme Court erred in concluding thathis notice of claim was insufficient to apprise the Town of the ensuing causes of action premisedupon Labor Law violations. "The test of the sufficiency of a [n]otice of [c]laim is merely'whether it includes information sufficient to enable the [municipality] to investigate' "(Brown v City of New York, 95 NY2d 389, 393 [2000], quoting O'Brien v City ofSyracuse, 54 NY2d 353, 358 [1981]). Plaintiff's notice of claim set forth, among otherthings, the date, time and location of the accident, and the way the accident occurred wasdescribed. The notice of claim related that plaintiff was working for Gallo, and it referencedLaBerge's role, as well as the fact that the accident occurred during a construction project thathad been undertaken pursuant to a contract with the Town. Although it did not reference specificLabor Law sections, it asserted culpable conduct by the Town as a cause of the accident. It isclear from the notice of claim that an accident at a construction site is being alleged. Thenegligence and Labor Law causes of action asserted by plaintiff were the typical causes of actionasserted in a multitude of lawsuits arising from analogous factual scenarios. The notice of claimcontained sufficient information to alert the Town of the potential causes of action asserted and,thus, afforded it an ample opportunity for prompt investigation (see DeLeonibus vScognamillo, 183 AD2d 697, 698 [1992]; Lampman v Cairo Cent. School Dist., 47AD2d 794, 795 [1975]).
Next, we consider whether plaintiff adequately alleged a violation of safety regulations thatcontain concrete standards of conduct (and not merely regulations that reiterate common-lawstandards) so as to avoid summary dismissal of his Labor Law § 241 (6) cause of action(see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 349 [1998]; Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504-505 [1993]). The regulations cited byplaintiff (i.e., 12 NYCRR 23-4.2, 23-4.4, 23-4.5) satisfy this criterion (see e.g. Davis vManitou Constr. Co., 299 AD2d 927, 928 [2002]) and, indeed, defendants do not seriouslycontest such issue on appeal. Since the record reveals ample factual issues as to the elements of aLabor Law § 241 (6) cause of action and the Town, as the owner of the property where theaccident occurred, had a nondelegable duty under Labor Law § 241 (6) (see Copp v City of Elmira, 31 AD3d899, 899 [2006]; Sainato v City of Albany, 285 AD2d 708, 710 [2001]), it was errorto grant the Town summary judgment dismissing plaintiff's Labor Law § 241 (6) cause ofaction.
Plaintiff argues that there are factual questions as to whether LaBerge acted as the Town'sagent at the construction site and, thus, that LaBerge should not have been granted summaryjudgment on the Labor Law § 241 (6) cause of action against it. We cannot agree. "Onlyupon obtaining the authority to supervise and control does the third party fall within the [*3]class of those having nondelegable liability as an 'agent' under[Labor Law §§ 240 and 241 (6)]" (Russin v Louis N. Picciano & Son, 54NY2d 311, 318 [1981]; see Walls vTurner Constr. Co., 4 NY3d 861, 863-864 [2005]; Fisher v Hart, 27 AD3d 998, 999 [2006]). The contract betweenthe Town and LaBerge did not extend control or supervision of the construction to LaBerge and,in fact, the contract affirmatively provided that LaBerge was not responsible for constructionmethods or safety precautions at the work site (see Musillo v Marist Coll., 306 AD2d782, 784 [2003]). Nor is there sufficient proof that, notwithstanding the contractual language,LaBerge exercised the necessary level of control over the construction (see Becker vTallamy, Van Kuren, Gertis & Assoc., 221 AD2d 1014, 1014 [1995]; cf. Hall v Miller &Assoc., 167 AD2d 688, 690-691 [1990]).
In absence of control by LaBerge, the common-law negligence and Labor Law § 200causes of action were properly dismissed as to it (see Narducci v Manhasset Bay Assoc.,96 NY2d 259, 269 [2001]). Similarly, the Town did not exercise supervisory control over Gallo'swork or the construction project, and the accident resulted from Gallo's alleged methods,including the manner in which it dug and secured the trench, as well as the purported instructionby its supervisor to plaintiff immediately before the accident to work outside the available safetydevice. The Labor Law § 200 claim against the Town was thus properly dismissed (seeComes v New York State Elec. & Gas Corp., 82 NY2d 876, 877-878 [1993]).
Cardona, P.J., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the order andjudgment are modified, on the law, without costs, by reversing so much thereof as granted themotion of defendant Town of Niskayuna for summary judgment dismissing the Labor Law§ 241 (6) cause of action against it; motion denied to that extent; and, as so modified,affirmed.