| Kobel v Niagara Mohawk Power Corp. |
| 2011 NY Slip Op 02581 [83 AD3d 1435] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| Timothy M. Kobel et al., Respondents, v Niagara Mohawk PowerCorporation, Appellant, et al., Defendants. |
—[*1] Smith, Miner, O'Shea & Smith, LLP, Buffalo (R. Charles Miner of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered July1, 2010 in a personal injury action. The order, inter alia, denied in part the motion of defendantNiagara Mohawk Power Corporation for summary judgment dismissing plaintiffs' complaint andall cross claims against it.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion of defendant Niagara Mohawk Power Corporation in part and dismissing theLabor Law § 241 (6) claim against it insofar as that claim is based upon the allegedviolation of 12 NYCRR 23-1.7 (b) (1) and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence actionseeking damages for injuries allegedly sustained by Timothy M. Kobel (plaintiff) when heslipped and fell backwards while working at the bottom of a manhole. We reject the contentionof Niagara Mohawk Power Corporation (defendant) that Supreme Court erred in denying thoseparts of its motion for summary judgment dismissing the Labor Law § 200 andcommon-law negligence causes of action against it. "A defendant may bear responsibility underLabor Law § 200 and for common-law negligence if it had actual or constructive notice ofthe allegedly dangerous condition on the premises [that] caused the . . . plaintiff'sinjuries, regardless of whether [it] supervised [plaintiff's] work" (Konopczynski v ADF Constr. Corp.,60 AD3d 1313, 1314-1315 [2009] [internal quotation marks omitted]; see Riordan v BOCES of Rochester, 4AD3d 869, 870 [2004]). "Here, defendant failed to meet its initial burden because it failed toestablish that it had no [actual or] constructive notice of the allegedly hazardous conditions in thefloor" of the manhole (Konopczynski, 60 AD3d at 1315). The evidence submitted bydefendant in support of the motion establishes that plaintiff's "injuries . . . resultedfrom a hazardous condition existing at [*2]the work site, ratherthan from the manner in which the work [was] being performed" (McCormick v 257 W. Genesee, LLC,78 AD3d 1581, 1582 [2010]).
We reject defendant's further contention that the court erred in denying that part of its motionfor summary judgment dismissing the Labor Law § 241 (6) claim against it insofar as it isbased on the alleged violation of 12 NYCRR 23-1.7 (d). That regulation protects workers from,inter alia, being required or permitted to work in areas where the "working surface. . . is in a slippery condition." There is no requirement that the work surface beelevated before an employer's duty under the regulation is triggered (see Cottone v DormitoryAuth. of State of N.Y., 225 AD2d 1032, 1033 [1996]), and the regulation is sufficientlyspecific to support a Labor Law § 241 (6) claim (see Tronolone v New York State Dept. of Transp., 71 AD3d 1488[2010]). Contrary to defendant's contention, 12 NYCRR 23-1.7 (d) does not apply only tounexpected and unanticipated slipping hazards.
We agree with defendant, however, that the court erred in denying that part of its motion forsummary judgment dismissing the Labor Law § 241 (6) claim against it insofar as it isbased on the alleged violation of 12 NYCRR 23-1.7 (b) (1), and we therefore modify the orderaccordingly. Although that regulation is sufficiently specific to support a Labor Law § 241(6) claim (see Barillaro v BeechwoodRB Shorehaven, LLC, 69 AD3d 543, 544 [2010]), the sump hole that plaintiff steppedinto cannot be considered sufficiently large to constitute a hazardous opening within the meaningof the regulation (see id.; seegenerally Pitts v Bell Constructors, Inc., 81 AD3d 1475 [2011]; Salazar v Novalex Contr. Corp., 72AD3d 418, 422-423 [2010]). Present—Scudder, P.J., Sconiers, Gorski and Martoche,JJ.