Opinion
June 29, 1961
Appeal by the State from a judgment of the Court of Claims awarding damages for decedent's personal injuries and death, found to have been caused by the State's negligence in its failure of compliance with subdivision 6 of section 241 Lab. of the Labor Law and rules 23-11.1 through 23-11.7 of the Industrial Code promulgated pursuant thereto. The facts appear in the opinion of the Court of Claims. ( 24 Misc.2d 853.) Upon this appeal, the State does not advance the jurisdictional objection urged below. It does contend that since it did not possess legal title to the land in process of excavation, section 241, referring to "contractors and owners", is inapplicable to it. The argument is without merit since the State was, nevertheless, the owner of the building (Education Law, § 5712) and the excavation for service lines was obviously "in connection therewith", within the purview of section 241, and the rules were, as provided by subdivision 6 thereof, "for the protection of workmen in connection with the excavation work for the construction of buildings". The State's additional contention is that section 241 may not be invoked against it because it was not shown to have been in control of the site. (Cf. Olson v. 480 Park Ave. Corp., 12 A.D.2d 960, in which, however, the contract for alterations to demised premises was not with the defendant owner of the building but with the restaurant lessee.) It is unnecessary to pass upon the proposition of law which might otherwise be presented because upon this record it is abundantly clear that the State had adequate control of the building and of the excavation site. Indeed, the contract required the work to be conducted in accordance with law and with the directions of the State's representatives, one of whom testified that it was his duty to see that the provisions of the Labor Law were complied with. The existence of a nondelegable duty on the part of the State and the contractor alike is clear. ( Conte v. Large Scale Development Corp., 10 N.Y.2d 20; Semanchuck v. Fifth Ave. 37th St. Corp., 290 N.Y. 412.) Appellant cites various cases decided under section 240 Lab. of the Labor Law but that section makes no reference to an owner but applies to one "employing or directing another to perform labor". Judgment affirmed, with costs to respondent. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur.