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 DEFENDANT RESPONDENT (2014)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered April 12, 2013.   The order, among other things, denied the motion of defendant County of Niagara for summary judgment and granted the motion of defendant Foit–Albert Associates, Architecture, Engineering and Surveying, P.C. for summary judgment.

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.

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.

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 AD3d 1425, 1427;  see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317–318).   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 AD3d 436, 437, lv denied 21 NY3d 855;  Baker v. Town of Niskayuna, 69 AD3d 1016, 1018;  Walker v. Metro–North Commuter R.R., 11 AD3d 339, 341).   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;  Carter v. Vollmer Assoc., 196 A.D.2d 754, 754).   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;  cf.  Gonnerman v. Huddleston, 48 AD3d 516, 517).

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;  see Poracki v. St. Mary's R.C. Church, 82 AD3d 1192, 1195), 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 AD3d 436, 439, lv denied 21 NY3d 855;  see Torres v. CTE Engrs., Inc., 13 AD3d 359, 359–360;  Hernandez v. Yonkers Contr.   Co., 306 A.D.2d 379, 380).

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;  see Alvia v. Teman Elec. Contr., 287 A.D.2d 421, 422, lv dismissed 97 N.Y.2d 749;  see also Rice v Board of Educ. of City of N.Y., 302 A.D.2d 578, 580, lv denied 100 N.Y.2d 516;  D'Egidio v. Frontier Ins. Co., 270 A.D.2d 763, 766, lv denied 95 N.Y.2d 765).   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;  Wild v. Marrano/Marc Equity Corp., 75 AD3d 1099, 1099;  Congi v Niagara Frontier Transp.   Auth., 294 A.D.2d 830, 830;  Jiminez v. Nidus Corp., 288 A.D.2d 123, 123).   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).

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 AD3d 660, 661, lv dismissed 5 NY3d 849), 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 AD3d 580, 581;  Lamela v. City of New York, 560 F Supp 2d 214, 226–227, affd 332 Fed Appx 682 [2d Cir];  cf.  Scarso, 16 AD3d at 661).   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 AD3d at 661), 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 AD3d 1220, 1221;  see Pilato v. Nigel Enters., Inc., 48 AD3d 1133, 1134–1135;  cf.  Farrell v. Dick Enters., 227 A.D.2d 956, 956).   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.

Frances E. Cafarell

Clerk of the Court