PEGLOW v. Town of Paris, Saquoit Consolidated Water District, Third-Party Defendants-Respondents, et al., Third-Party Defendant. (1998)

 Supreme Court erred in granting the motion of defendant, the general contractor, for summary judgment dismissing the complaint and the motion of Town of Paris and Saquoit Consolidated Water District (third-party defendants) for summary judgment dismissing the third-party complaint against them.   Defendant and third-party defendants did not meet their burden of establishing as a matter of law that Ricky D. Peglow (plaintiff) was not “employed” at defendant's construction project within the meaning of Labor Law § 240(1) and § 241(6).   That term is broadly defined to “include [ ] permitted or suffered to work” (Labor Law § 2[7] ), and encompasses “all workers on the job” (Kirkpatrick v. Diversified Sports, 216 A.D.2d 891, 892, 629 N.Y.S.2d 151;  see, Haimes v. New York Tel. Co., 46 N.Y.2d 132, 137, 412 N.Y.S.2d 863, 385 N.E.2d 601;  see also, Brown v. Muthig, 220 A.D.2d 898, 632 N.Y.S.2d 688).   Triable issues of fact remain whether plaintiff's work was part of defendant's construction project (see, Mosher v. St. Joseph's Villa, 184 A.D.2d 1000, 1002, 584 N.Y.S.2d 678;  Cox v. LaBarge Bros. Co., 154 A.D.2d 947, 547 N.Y.S.2d 167, lv. dismissed 75 N.Y.2d 808, 552 N.Y.S.2d 110, 551 N.E.2d 603) or outside the scope of that project (see, Brennan v. 3785 South Park, 242 A.D.2d 929, 662 N.Y.S.2d 664, lv. denied 91 N.Y.2d 812, 672 N.Y.S.2d 848, 695 N.E.2d 717;  Root v. County of Onondaga, 174 A.D.2d 1014, 572 N.Y.S.2d 174, lv. denied 78 N.Y.2d 858, 575 N.Y.S.2d 454, 580 N.E.2d 1057).

We do not address the issue whether defendant's liability under Labor Law § 240(1) may be predicated upon the collapse of an excavation trench.   That issue was not raised at Supreme Court or on appeal (see, Collucci v. Collucci, 58 N.Y.2d 834, 837, 460 N.Y.S.2d 14, 446 N.E.2d 770).

Order insofar as appealed from unanimously reversed on the law with costs, motions denied, complaint reinstated and third-party complaint against Town of Paris and Saquoit Consolidated Water District reinstated.

MEMORANDUM: