Opinion
2014-08-8
Michael WROBEL, Plaintiff–Appellant–Respondent, v. TOWN OF PENDLETON, et al., Defendants, County of Niagara, Defendant–Respondent–Appellant, and Foit–Albert Associates, Architecture, Engineering and Surveying, P.C., Defendant–Respondent.
Cantor, Dolce & Panepinto, P.C., Buffalo (Anne M. Wheeler of Counsel), for Plaintiff–Appellant–Respondent. Gibson, McAskill & Crosby, LLP, Buffalo (Robert J. Mullins, II, of Counsel), for Defendant–Respondent–Appellant.
Cantor, Dolce & Panepinto, P.C., Buffalo (Anne M. Wheeler of Counsel), for Plaintiff–Appellant–Respondent. Gibson, McAskill & Crosby, LLP, Buffalo (Robert J. Mullins, II, of Counsel), for Defendant–Respondent–Appellant.
Sugarman Law Firm, LLP, Buffalo (Brian Sutter of Counsel), for Defendant–Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY AND WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this Labor Law and common-law negligence action seeking damages for leg injuries he sustained when he stepped into a hole in the ground while working for the general contractor at a construction site owned by defendant County of Niagara (County). The construction project involved the widening of a County road and the installation of new drainage lines along the road. According to plaintiff, he stepped into the hole, which he described as three or four feet deep and filled with rainwater, while carrying a pipe that he and coworkers intended to install in a trench.
The complaint, as amplified by the bill of particulars, alleges that the County and its architect/engineer, defendant Foit–Albert Associates, Architecture, Engineering and Surveying, P.C. (Foit–Albert), violated Labor Law §§ 200, 240(1) and 241(6), and that they were negligent in failing to provide him with a safe place to work. Following discovery, the County and Foit–Albert moved separately for summary judgment dismissing the complaint against them, and plaintiff cross-moved for partial summary judgment on liability on his section 240(1) and 241(6) claims. Supreme Court granted Foit–Albert's motion and dismissed the complaint against it, and denied the County's motion and plaintiff's cross motion, finding issues of fact for trial. Plaintiff appeals from the order insofar as it granted Foit–Albert's motion, and the County cross-appeals from the order insofar as it denied its motion.
We conclude with respect to plaintiff's appeal that the court properly granted Foit–Albert's motion. Addressing first Labor Law §§ 240(1) and 241(6), it is well settled that the duties of those sections “apply only to ‘[general] contractors and owners and their agents' ” (Brownell v. Blue Seal Feeds, Inc., 89 A.D.3d 1425, 1427, 932 N.Y.S.2d 623; see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317–318, 445 N.Y.S.2d 127, 429 N.E.2d 805). Here, Foit–Albert met its burden of establishing that it was not liable as an agent of the County, i.e., it did not have sufficient supervision or control over the activity that caused plaintiff's injury, or over the safety procedures employed at the site ( see Lopez v. Dagan, 98 A.D.3d 436, 437, 949 N.Y.S.2d 671, lv. denied21 N.Y.3d 855, 2013 WL 1876504; Baker v. Town of Niskayuna, 69 A.D.3d 1016, 1018, 891 N.Y.S.2d 749; Walker v. Metro–North Commuter R.R., 11 A.D.3d 339, 341, 783 N.Y.S.2d 362). Indeed, professional engineers, architects, and landscape architects who “do not direct or control the work for activities other than planning or design” are specifically immune from liability under Labor Law §§ 240(1) and 241(6) ( see§§ 240[1]; 241[9]; Harvey v. Sear–Brown Group, 262 A.D.2d 1006, 1006, 692 N.Y.S.2d 547; Carter v. Vollmer Assoc., 196 A.D.2d 754, 754, 602 N.Y.S.2d 48). Plaintiff failed to raise a triable issue of fact in opposition to those parts of the motion ( see Fecht v. City of New York, 244 A.D.2d 315, 315–316, 663 N.Y.S.2d 891; cf. Gonnerman v. Huddleston, 48 A.D.3d 516, 517, 854 N.Y.S.2d 135).
Because Foit–Albert “exercised no control or supervision over either plaintiff's work or plaintiff's work site, and thus was not ‘responsible for providing plaintiff with a safe workplace’ ” (Severino v. Hohl Indus. Servs., 300 A.D.2d 1049, 1050, 752 N.Y.S.2d 776; see Poracki v. St. Mary's R.C. Church, 82 A.D.3d 1192, 1195, 920 N.Y.S.2d 233), Foit–Albert was also entitled to dismissal of the Labor Law § 200 claim against it. Further, the court properly granted that part of Foit–Albert's motion with respect to the common-law negligence cause of action inasmuch as there was no showing that it “failed to use due care in the exercise of its professional services” (Lopez v. Dagan, 98 A.D.3d 436, 439, 949 N.Y.S.2d 671, lv. denied21 N.Y.3d 855, 2013 WL 1876504; see Torres v. CTE Engrs., Inc., 13 A.D.3d 359, 359–360, 786 N.Y.S.2d 101; Hernandez v. Yonkers Contr. Co., 306 A.D.2d 379, 380, 760 N.Y.S.2d 865).
We further conclude, however, that the court erred in denying that part of the County's motion seeking summary judgment dismissing the Labor Law § 240(1) claim against it, and we therefore modify the order accordingly. Where, as here, a plaintiff falls into a hole while walking at ground level, the plaintiff's injury “[is] not caused by [defendants'] failure to provide or erect necessary safety devices in response to ‘elevation-related hazards,’ and, accordingly, the protections of Labor Law § 240(1) do not apply” (Piccuillo v. Bank of N.Y. Co., 277 A.D.2d 93, 94, 716 N.Y.S.2d 20; see Alvia v. Teman Elec. Contr., 287 A.D.2d 421, 422, 731 N.Y.S.2d 462, lv. dismissed97 N.Y.2d 749, 742 N.Y.S.2d 607, 769 N.E.2d 354; see also Rice v. Board of Educ. of City of N.Y., 302 A.D.2d 578, 580, 755 N.Y.S.2d 419, lv. denied100 N.Y.2d 516, 769 N.Y.S.2d 202, 801 N.E.2d 423; D'Egidio v. Frontier Ins. Co., 270 A.D.2d 763, 766, 704 N.Y.S.2d 750, lv. denied95 N.Y.2d 765, 716 N.Y.S.2d 640, 739 N.E.2d 1145). The cases relied upon by plaintiff are factually distinguishable because they involve falls into excavated areas, as opposed to mere holes in the ground such as the one here ( see Covey v. Iroquois Gas Transmission Sys., 89 N.Y.2d 952, 953–954, 655 N.Y.S.2d 854, 678 N.E.2d 466; Wild v. Marrano/Marc Equity Corp., 75 A.D.3d 1099, 1099, 903 N.Y.S.2d 288; Congi v. Niagara Frontier Transp. Auth., 294 A.D.2d 830, 830, 741 N.Y.S.2d 629; Jiminez v. Nidus Corp., 288 A.D.2d 123, 123, 733 N.Y.S.2d 43). Unlike the excavation cases, this is not a case where protective devices enumerated in Labor Law § 240(1), e.g., “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, [and] ropes” were designed to apply ( see Alvia, 287 A.D.2d at 422, 731 N.Y.S.2d 462).
The court also erred in denying that part of the County's motion with respect to the Labor Law § 241(6) claim insofar as it is based on the County's alleged violation of 12 NYCRR 23–4.2(h). We therefore further modify the order accordingly. Pursuant to that regulation, “[a]ny open excavation adjacent to a sidewalk, street, highway or other area lawfully frequented by any person shall be effectively guarded [or covered].” Although that regulation is sufficiently specific to support his claim ( see Scarso v. M.G. Gen. Constr. Corp., 16 A.D.3d 660, 661, 792 N.Y.S.2d 546, lv. dismissed5 N.Y.3d 849, 806 N.Y.S.2d 168, 840 N.E.2d 137), we agree with the County that plaintiff, as an employee at the work site, did not fall within the class of people intended to be protected by 12 NYCRR 23–4.2(h) ( see Ruland v. Long Is. Power Auth., 5 A.D.3d 580, 581, 774 N.Y.S.2d 84; Lamela v. City of New York, 560 F.Supp.2d 214, 226–227, affd. 332 Fed.Appx. 682 [2d Cir.]; cf. Scarso, 16 A.D.3d at 661, 792 N.Y.S.2d 546). As the District Court stated in Lamela, the State Commissioner of Labor, by applying 12 NYCRR 23–4.2(h) to areas “lawfully frequented by any person,” specifically “chose not to include the disjunctive class of ‘persons employed therein’ ” (id. at 227).
The court properly denied that part of the County's motion with respect to the Labor Law § 241(6) claim insofar as it is based on the alleged violation of 12 NYCRR 23–1.7(b)(1)(i), which provides that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing.” That regulation is sufficiently specific to support a section 241(6) violation ( see Scarso, 16 A.D.3d at 661, 792 N.Y.S.2d 546), and we have held that it applies to any “ ‘hazardous opening into which a person may step or fall ... provided that [it is] one of significant depth and size’ ” (Ellis v. J.M.G., Inc., 31 A.D.3d 1220, 1221, 818 N.Y.S.2d 724; see Pilato v. Nigel Enters., Inc., 48 A.D.3d 1133, 1134–1135, 850 N.Y.S.2d 799; cf. Farrell v. Dick Enters., 227 A.D.2d 956, 956, 643 N.Y.S.2d 852). We agree with the court that there is a triable issue of fact whether the County violated that regulation.
Finally, we conclude that the court properly found issues of fact that preclude an award of summary judgment to the County on plaintiff's Labor Law § 200 claim and common-law negligence cause of action.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting in part the motion of defendant County of Niagara and dismissing the Labor Law § 240(1) claim and the Labor Law § 241(6) claim insofar as it is based on the alleged violation of 12 NYCRR 23–4.2(h) and as modified the order is affirmed without costs.