Summary
In Scaparo, the Court of Appeals determined that a church was not liable as an owner within the meaning of the Labor Law because the church had no ownership interest in adjoining land where a sewer lateral line was being built and where a worker was injured, although the line was being installed to benefit the church (Scaparo v Village of Ilion, 13 NY3d at 866-867; compare Copertino v Ward, 100 AD2d at 566-567).
Summary of this case from Michael Larosae v. American Pumping, Inc.Opinion
No. 212 SSM 42.
Decided December 1, 2009.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered July 10, 2009. The Appellate Division modified, on the law, an amended order of the Supreme Court, Herkimer County (Michael E. Daley, J.), which had granted the motion of defendant Herkimer County Industrial Development Agency (HCIDA) seeking summary 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 cross motion of plaintiff's seeking partial summary judgment. The modification consisted of granting the motion of defendant Our Lady Queen and dismissing the amended complaints in action Nos. 1 and 2 against that defendant. The Appellate Division affirmed the amended order as modified. The following question was certified by the Appellate Division: "Was the order of this Court entered July 10, 2009 properly made?"
Plaintiff village employees commenced these Labor Law and common-law negligence actions seeking damages for injuries sustained when the trench in which they were installing a sewer lateral collapsed. At the time of the accident, plaintiff's were installing the sewer lateral on defendant HCIDA's property from defendant church's chapel to the sewer main at a village street intersection.
Scaparo v Village of Ilion, 64 AD3d 1209, affirmed.
Brindisi, Murad, Brindisi, Pearlman, Julian Perz, LLP, Utica ( Anthony J. Brindisi of counsel), for appellants. Roche, Corrigan, McCoy Bush, PLLC, Albany ( Robert P. Roche of counsel), for Herkimer County Industrial Development Agency, respondent.
Law Office of John A. Panzone, P.C., Barneveld ( John A. Panzone of counsel), for Our Lady Queen of Apostles Church of St. Mary of Mount Carmel/S.S. Peter and Paul, respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
The Appellate Division majority properly concluded that no triable issue of fact exists whether defendant Herkimer County Industrial Development Agency (HCIDA) was an owner within the contemplation of Labor Law § 241 (6). In cases imposing liability on a property owner who did not contract for the work performed on the property, this Court has required "some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest" ( Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 51). Here, although the accident occurred on HCIDA's property, HCIDA did not contract with the Village of Frankfort to have the sewer lateral installed, it had no choice but to allow the Village to enter its property pursuant to a right-of-way, and it did not grant the Village an easement or other property interest creating the right-of-way.
Likewise, the Appellate Division correctly concluded that no triable issue of fact exists whether defendant Our Lady Queen of Apostles Church of St. Mary of Mount Carmel/S.S. Peter and Paul (the Church) was an owner under Labor Law § 241 (6). Courts have held that the term "owner" is not limited to the titleholder of the property where the accident occurred and encompasses a person "who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit" ( Copertino v Ward, 100 AD2d 565, 566 [2d Dept 1984]; see also Reisch v Amadori Constr. Co., 273 AD2d 855, 856 [4th Dept 2000]). Here, although the Church agreed to pay for the cost of materials, the Church had no interest in the property over which the sewer lateral was placed. Notably, municipal employees working at the site testified that no representative from the Church was present at, or gave directions during, the excavation work. Moreover, the testimony adduced indicated that the Village assumed full responsibility for installing the lateral sewer line and acknowledged that the lateral would be available for use by future property owners in the area who wished to connect to the village sewer system.
Finally, the Appellate Division majority properly concluded that no triable issue of fact exists whether the Church was in a position to control the sewer lateral installation process or to insist that proper safety practices were followed under Labor Law § 200 ( see generally Comes v New York State Elec. Gas Corp., 82 NY2d 876, 877-878).
In memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.