Opinion
1043 CA 14-00281
11-21-2014
Cheryl D. MAYER, as Administratrix of the Estate of Brandon M. Acker, Deceased, Plaintiff–Respondent, v. Matthew J. CONRAD and Amy M. Conrad, Defendants–Appellants. Matthew J. Conrad and Amy M. Conrad, Third–Party Plaintiffs–Appellants–Respondents, v. Fisher Concrete, Inc., Third–Party Defendant–Respondent–Appellant.
Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of Counsel), for Defendants–Appellants and Third–Party Plaintiffs–Appellants–Respondents. Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Debra A. Adler of Counsel), for Third–Party Defendant–Respondent–Appellant. Smith, Miner, O'Shea & Smith, LLP, Buffalo (R. Charles Miner of Counsel), for Plaintiff–Respondent.
Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of Counsel), for Defendants–Appellants and Third–Party Plaintiffs–Appellants–Respondents.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Debra A. Adler of Counsel), for Third–Party Defendant–Respondent–Appellant.
Smith, Miner, O'Shea & Smith, LLP, Buffalo (R. Charles Miner of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Plaintiff commenced this wrongful death action arising out of a construction site accident, alleging violations of the Labor Law and common-law negligence, and defendants thereafter commenced a third-party action seeking common-law indemnification or contribution from third-party defendant, Fisher Concrete, Inc. (Fisher). Defendants hired Fisher to perform excavation work on their property in connection with the construction of a new home. Several weeks prior to the accident, Fisher excavated a portion of the property to prepare for the construction of a walk-out basement, which resulted in a seven-to nine-foot-high vertical embankment on the south side of the basement (hereafter, south bank or embankment). On the date of the accident, Fisher was installing footers for the basement retaining walls, which involved digging small trenches next to the north and south walls and pouring concrete into the trenches. Plaintiff's decedent, a Fisher employee, was working in the south trench smoothing concrete for the footer when the south bank collapsed onto him, inflicting fatal injuries. Supreme Court granted those parts of the motions of defendants and Fisher for summary judgment dismissing the claims pursuant to Labor Law §§ 240(1) and 241(6), and defendants contend on appeal that the court should have granted their motion for summary judgment dismissing the complaint in its entirety. Fisher contends that the court likewise should have granted its motion for summary judgment dismissing the complaint in its entirety, as well as the third-party complaint insofar as it seeks common-law indemnification. We conclude that the court properly refused to dismiss the complaint in its entirety, but should have granted that part of Fisher's motion for summary judgment dismissing the third-party complaint to that extent. We therefore modify the order accordingly.
Labor Law § 200 is a codification of the common-law duty imposed on property owners and general contractors to provide workers with a safe place to work (see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 ; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 ). “Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed” (Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323 ). “Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident” (id.; see Ozimek v. Holiday Val., Inc., 83 A.D.3d 1414, 1416, 920 N.Y.S.2d 528 ). Where, however, the worker's injuries stem from the manner in which the work was being performed, no liability attaches to the owner under the common law or under Labor Law § 200 “unless it is shown that the [owner] had the authority to supervise or control the performance of the work” (Ortega, 57 A.D.3d at 61, 866 N.Y.S.2d 323 ; see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110 ; Lombardi v. Stout, 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117 ).
Defendants and Fisher contend that this is a “manner and method of work” case and thus that defendants are entitled to summary judgment dismissing the Labor Law § 200 claim and common-law negligence cause of action because they did not have the authority to supervise or control the work. We reject that contention. Although there is no question that Fisher's excavation work created the dangerous condition at issue here, i.e., the unsecured embankment, we conclude that the embankment was “transformed ... into a premises condition” inasmuch as it remained in that condition for several weeks prior to decedent's accident and neither decedent nor any other employee of Fisher were working on the embankment at the time of the accident (Slikas v. Cyclone Realty, LLC, 78 A.D.3d 144, 148, 908 N.Y.S.2d 117 ; see Rodriguez v. BCRE 230 Riverdale, LLC, 91 A.D.3d 933, 934–935, 938 N.Y.S.2d 146 ; Soskin v. Scharff, 309 A.D.2d 1102, 1105–1106, 766 N.Y.S.2d 248 ; cf. Mohammed v. Islip Food Corp., 24 A.D.3d 634, 635–638, 808 N.Y.S.2d 389 ). We therefore conclude that the court properly denied those parts of the motions of defendants and Fisher seeking to dismiss the Labor Law § 200 claim and common-law negligence cause of action.
We further conclude that defendants and Fisher failed to establish that defendant-third-party plaintiff Matthew J. Conrad (defendant) lacked actual or constructive notice of the dangerous condition on the premises (see Baker v. City of Buffalo, 90 A.D.3d 1684, 1685, 936 N.Y.S.2d 457 ; Ozimek, 83 A.D.3d at 1416, 920 N.Y.S.2d 528 ). The record establishes that defendant visited the construction site every morning, including on the date of the accident (see Burton v. CW Equities, LLC, 97 A.D.3d 462, 462, 950 N.Y.S.2d 1 ); that he engaged in regular conversations about the project with Fisher's owner, defendant's uncle, during those site visits; that the condition had existed for two to three weeks prior to the accident (see DePaul v. N.Y. Brush LLC, 114 A.D.3d 609, 609–610, 981 N.Y.S.2d 75 ; Picaso v. 345 E. 73 Owners Corp., 101 A.D.3d 511, 512, 956 N.Y.S.2d 27 ; Crandall v. Wright Wisner Distrib. Corp., 66 A.D.3d 1515, 1516–1517, 887 N.Y.S.2d 737 ); and that it was visible as opposed to latent (see Burton, 97 A.D.3d at 462, 950 N.Y.S.2d 1 ; cf. Lopez v. Dagan, 98 A.D.3d 436, 438–439, 949 N.Y.S.2d 671, lv. denied 21 N.Y.3d 855, 2013 WL 1876504 ). Further, although defendant denied that he had any specialized training or expertise in excavation, he testified that he works “in construction,” that he cleared and graded the site in preparation for construction, and that he owned one of the excavators that Fisher used during the course of the project. We thus conclude that there is an issue of fact whether Conrad knew or should have known that the seven- to nine-foot-high unsecured embankment posed a danger to the workers at the work site, and whether he should have taken steps to remedy that condition (see Ford v. Caliendo & Sons, 305 A.D.2d 368, 369, 757 N.Y.S.2d 897 ; cf. Hockenberry v. Mehlman, 93 A.D.3d 915, 916–917, 939 N.Y.S.2d 637 ).
With respect to the third-party complaint, we agree with Fisher that defendants' claim for common-law indemnification should be dismissed inasmuch as “there are no circumstances under which [defendants] could be held vicariously liable to [plaintiff] based on the negligence of a third party such as [Fisher]” (Village of Palmyra v. Hub Langie Paving, Inc., 81 A.D.3d 1352, 1353, 917 N.Y.S.2d 454 ; see Genesee/Wyoming YMCA v. Bovis
Lend Lease LMB, Inc., 98 A.D.3d 1242, 1244–1245, 951 N.Y.S.2d 768 ; Burkoski v. Structure Tone, Inc., 40 A.D.3d 378, 381–382, 836 N.Y.S.2d 130 ).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion of third-party defendant in part and dismissing the third-party complaint insofar as it seeks common-law indemnification and as modified the order is affirmed without costs.