DORATO v. FOREST CITY ENTERPRISES INC (2004)

 Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Michael Dorato (plaintiff) when he sank into soil up to his chest at the “Summit Clay Pit,” where he remained for six hours until he was rescued therefrom.   Supreme Court properly granted that part of the motion of third-party defendant for summary judgment dismissing the complaint and properly granted the cross motion of defendants for summary judgment dismissing the complaint.   With respect to the Labor Law § 241(6) cause of action, we conclude that defendants and third-party defendant established that plaintiff was not engaged in any of the activities enumerated in that section and plaintiffs failed to raise a triable issue of fact (see Reger v. Harry's Harbour Place Grille [Appeal No. 2], 5 A.D.3d 1065, 773 N.Y.S.2d 689).  Section 241(6) “covers industrial accidents that occur in the context of construction, demolition and excavation” (Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 103, 752 N.Y.S.2d 581, 782 N.E.2d 558) and does not cover the mining operations in which plaintiff was engaged at the time of the accident (see Whitaker v. Norman, 146 A.D.2d 938, 938-939, 536 N.Y.S.2d 916, affd. 75 N.Y.2d 779, 552 N.Y.S.2d 86, 551 N.E.2d 579;  Houde v. Barton, 202 A.D.2d 890, 894-895, 609 N.Y.S.2d 411, lv. dismissed 84 N.Y.2d 977, 622 N.Y.S.2d 916, 647 N.E.2d 122).   We further conclude that the court properly granted those parts of the motion and cross motion seeking summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action.   Defendants and third-party defendant established that defendants “lacked actual or constructive notice of the alleged defect or dangerous condition ․, and plaintiff[s] failed to raise a triable issue of fact” (Bald v. Westfield Academy & Cent. School, 298 A.D.2d 881, 882, 747 N.Y.S.2d 623;  see generally Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352-353, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  Lombardi v. Stout, 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: