DAVIS v. Kenneth W. Fennell, Doing Business As Fennell Excavating Company, Defendant-Respondent-Appellant. (2002)

Plaintiff commenced this action seeking damages for injuries that he sustained while working for Okar Equipment Company (Okar).   Okar was hired by defendant Manitou Construction Company (Manitou) to replace fuel tanks on Manitou's property, and Okar contracted with defendant Kenneth W. Fennell, doing business as Fennell Excavating Company (Fennell), to excavate the hole necessary for the fuel tanks. Plaintiff was standing in the excavated hole when a portion of the wall therein collapsed, causing a pipe to fall and strike plaintiff.

 Supreme Court erred in denying that part of the motion of Manitou for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it.   Manitou established as a matter of law that plaintiff's injury was not caused by a defective condition of the land (see Farrell v. Okeic, 266 A.D.2d 892, 893, 698 N.Y.S.2d 132) and, in addition, that plaintiff's injury “arose solely out of the manner of [plaintiff's] work and that [Manitou] exercised no supervisory control over that work” (Matter of Fischer v. State of New York, 291 A.D.2d 815, 816, 737 N.Y.S.2d 204;  see also Catherwood v. American Sterilizer Co., 132 A.D.2d 938, 518 N.Y.S.2d 485;  DaBolt v. Bethlehem Steel Corp., 92 A.D.2d 70, 72-73, 459 N.Y.S.2d 503, lv. dismissed and appeal dismissed 60 N.Y.2d 701).   We conclude, however, that the court properly denied that part of the motion of Manitou for summary judgment dismissing the Labor Law § 241(6) claim against it.   That claim is premised upon violations of 12 NYCRR 23-4.2, 23-4.4, and 23-4.5, all of which are sufficiently specific to support a Labor Law § 241(6) claim (see Adamczyk v. Hillview Estates Dev. Corp., 226 A.D.2d 1049, 641 N.Y.S.2d 925;  see also Fischer, 291 A.D.2d at 816, 737 N.Y.S.2d 204), and there is an issue of fact whether the walls of the excavated hole were properly sloped.

 We further conclude that the court erred in denying that part of the cross motion of Fennell for summary judgment dismissing the Labor Law §§ 200 and 241(6) claims against him.   Fennell established his entitlement to judgment as a matter of law with respect to those claims by establishing that he had no relationship with Manitou, the owner of the property, that he excavated the hole specifically at the direction of plaintiff's employer, and that he had no authority or control over plaintiff's work (see Russin v. Picciano & Son, 54 N.Y.2d 311, 316-318, 445 N.Y.S.2d 127, 429 N.E.2d 805;  Ryder v. Mount Loretto Nursing Home, 290 A.D.2d 892, 894, 736 N.Y.S.2d 792;  Wright v. Nichter Constr. Co., 213 A.D.2d 995, 995-996, 624 N.Y.S.2d 487).   However, the court properly denied that part of the cross motion of Fennell for summary judgment dismissing the common-law negligence claim against him.   There are issues of fact whether Fennell's excavation of the hole created an unreasonable risk of harm to plaintiff and was a proximate cause of plaintiff's injuries (see Ryder, 290 A.D.2d at 894, 736 N.Y.S.2d 792).

Finally, the court properly denied that part of Manitou's motion for summary judgment seeking conditional common-law indemnification from Fennell since Fennell did not “actually supervise[ ], direct[ ] or control[ ] the work giving rise to the injury sustained by [plaintiff]” (Nappo v. Menorah Campus, 216 A.D.2d 876, 877, 628 N.Y.S.2d 907, citing Chapel v. Mitchell, 84 N.Y.2d 345, 347, 618 N.Y.S.2d 626, 642 N.E.2d 1082;  cf.  Clark v. Town of Scriba, 280 A.D.2d 915, 916-917, 721 N.Y.S.2d 194;  DiVincenzo v. Tripart Dev., 272 A.D.2d 904, 905, 709 N.Y.S.2d 271).

We therefore modify the order by granting that part of the motion of Manitou for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it and dismissing those claims against it and by granting that part of the cross motion of Fennell for summary judgment dismissing the Labor Law §§ 200 and 241(6) claims against him and dismissing those claims against him.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the motion of defendant Manitou Construction Company for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it and dismissing those claims against it and by granting that part of the cross motion of defendant Kenneth W. Fennell, doing business as Fennell Excavating Company, for summary judgment dismissing the Labor Law §§ 200 and 241(6) claims against him and dismissing those claims against him and as modified the order is affirmed without costs.

MEMORANDUM: