BOCKMIER v. NIAGARA RECYCLING INC (1999)

Plaintiff commenced this action to recover damages for work-related injuries he sustained at a landfill owned by defendant.   The accident occurred when plaintiff stepped or jumped 3 to 4 feet from the top of a berm to a flattened area in a 15-foot excavation, injured his knee, and tumbled to the bottom of the excavation.

 Supreme Court erred in granting that part of defendant's motion seeking summary judgment dismissing the Labor Law § 241(6) cause of action, which is based upon defendant's alleged violation of 12 NYCRR 23-4.3. Defendant failed to meet its burden of establishing that it did not violate that regulation, that the regulation is not applicable to plaintiff's accident (cf., Gielow v. Rosa Coplon Home, 251 A.D.2d 970, 972, 674 N.Y.S.2d 551, lv. dismissed in part and denied in part 92 N.Y.2d 1042, 685 N.Y.S.2d 416, 708 N.E.2d 172, rearg. denied 93 N.Y.2d 889, 689 N.Y.S.2d 431, 711 N.E.2d 645;  Ozzimo v. H.E.S., Inc., 249 A.D.2d 912, 914, 672 N.Y.S.2d 197) or that its violation of the regulation was not a proximate cause of plaintiff's injuries (cf., Allen v. Hodorowski & DeSantis Bldg. Contrs., 220 A.D.2d 959, 960-961, 632 N.Y.S.2d 707).

 The court also erred in granting that part of defendant's motion seeking summary judgment dismissing the Labor Law § 240(1) cause of action and denying plaintiff's cross motion for partial summary judgment on liability on that cause of action.   Contrary to defendant's contentions, a landfill is a “structure” within the meaning of the statute (see generally, Lewis-Moors v. Contel of N. Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 578 N.E.2d 434;  see also, Covey v. Iroquois Gas Transmission Sys., 218 A.D.2d 197, 199, 637 N.Y.S.2d 992, affd. 89 N.Y.2d 952, 655 N.Y.S.2d 854, 678 N.E.2d 466;  Tooher v. Willets Point Contr. Corp., 213 A.D.2d 856, 857, 623 N.Y.S.2d 431), and the 15-foot excavation posed “the type of elevation-related risk for which Labor Law § 240(1) provides protection” (Covey v. Iroquois Gas Transmission Sys., 89 N.Y.2d 952, 954, 655 N.Y.S.2d 854, 678 N.E.2d 466, supra;  see, Tooher v. Willets Point Contr. Corp., supra, at 857, 623 N.Y.S.2d 431;  DeLong v. State St. Assocs., 211 A.D.2d 891, 892, 621 N.Y.S.2d 172).   It is undisputed that no safety devices were provided to protect plaintiff as he attempted to gain access to the worksite by descending into the excavation (see, Nichols v. Deer Run Investors, 204 A.D.2d 929, 931, 612 N.Y.S.2d 691;  see also, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513-514, 577 N.Y.S.2d 219, 583 N.E.2d 932).   The fact that plaintiff stepped or jumped rather than fell into the excavation does not deprive him of the protection of the statute (see, Sherman v. Piotrowski Bldrs., 229 A.D.2d 959, 959-960, 645 N.Y.S.2d 244).

We therefore modify the order by denying those parts of defendant's motion seeking summary judgment dismissing the Labor Law § 241(6) and § 240(1) causes of action, reinstating those causes of action and granting plaintiff's cross motion for partial summary judgment on liability on the Labor Law § 240(1) cause of action.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: