KEVIN LETERSKY PLAINTIFF APPELLANT RESPONDENT v. MILITELLO FARMS INC DEFENDANT RESPONDENT AND RUSSO DEVELOPMENT INC DEFENDANT RESPONDENT APPELLANT APPEAL NO (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of the motion of defendant Russo Development, Inc. seeking summary judgment dismissing the Labor Law § 241 (6) cause of action against it insofar as it is based on the alleged violation of 12 NYCRR 23-1.7 (d), and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained while he was marking fuel lines at night in preparation for an emergency repair of a water line owned and operated by the Erie County Water Authority (ECWA). According to plaintiff, he was injured when he fell into an excavated hole that was unmarked and unguarded. The property where the accident occurred was owned by defendant Militello Farms, Inc. (Militello), and ECWA hired defendant Russo Development, Inc. (Russo) to perform the emergency water line repair work.

Plaintiff asserted causes of action for common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). Militello and Russo each moved for summary judgment dismissing the amended complaint and any cross-claims against them, and plaintiff cross-moved for partial summary judgment on the issue of Russo's liability under Labor Law §§ 240 (1) and 241 (6). In appeal No. 1, plaintiff appeals and Russo cross-appeals from an order that granted Militello's motion, denied Russo's motion in part, and denied plaintiff's cross-motion. Russo moved for leave to reargue that part of its motion for summary judgment dismissing the Labor Law § 240 (1) cause of action. In appeal No. 2, plaintiff appeals from an order that granted leave to reargue and, upon reargument, granted that part of Russo's motion with respect to the Labor Law § 240 (1) cause of action.

Contrary to plaintiff's contention on his appeal in appeal No. 1, we conclude that Supreme Court properly granted that part of Militello's motion with respect to the common-law negligence and Labor Law § 200 causes of action, which were predicated on the theory that plaintiff's injuries were the result of a dangerous condition at the worksite—i.e., the uncovered excavated hole. Where that theory is alleged, “a defendant landowner has the initial burden of establishing its entitlement to judgment as a matter of law by demonstrating that it did not create or have actual or constructive notice of [the] dangerous condition” (Menear v Kwik Fill, 174 AD3d 1354, 1357 [4th Dept 2019]; see Parsons v County of Steuben, 240 AD3d 1333, 1336 [4th Dept 2025]; Forman v Carrier Corp., 172 AD3d 1920, 1920 [4th Dept 2019]). Here, we conclude that Militello met its initial burden of establishing that it lacked both control over the worksite and either actual or constructive notice of the dangerous condition. In support of its motion, Militello submitted the deposition testimony of its owner, who stated that he had no knowledge of the water line repair work that occurred prior to the accident and allegedly resulted in the uncovered hole into which plaintiff fell. Indeed, we note that the evidence suggests that the hole was excavated, at most, a few hours before the accident and that the condition thus did not exist long enough for Militello to obtain constructive notice of it. We further conclude that plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

We reject Russo's contention on its cross-appeal that the court erred in denying that part of its motion seeking summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action against it (see generally Parsons, 240 AD3d at 1336; Menear, 174 AD3d at 1357). Even assuming, arguendo, that Russo met its initial burden of establishing that it did not create or have sufficient notice of the allegedly dangerous condition, we conclude that plaintiff raised triable issues of fact in opposition (see Zuckerman, 49 NY2d at 562). In particular, we note that, on the record before us, there are diverging accounts with respect to the timeline of the repair work that was performed on the night of the accident. Viewing the evidence in the light most favorable to plaintiff, as nonmovant, and affording him the benefit of every available inference (see Matter of Eighth Jud. Dist. Asbestos Litig., 33 NY3d 488, 496 [2019]; De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]), we conclude that there are issues of fact whether Russo arrived at the worksite before plaintiff and dug the hole plaintiff allegedly fell into and whether Russo exercised general control over the worksite to remedy any perils presented by the open excavation.

We agree with Russo on its cross-appeal that the court erred in denying that part of its motion for summary judgment dismissing the Labor Law § 241 (6) cause of action to the extent it is predicated on an alleged violation of 12 NYCRR 23-1.7 (d), and we therefore modify the order in appeal No. 1 accordingly. Russo met its initial burden of establishing that the regulation does not apply to the facts of this case. Pursuant to 12 NYCRR 23-1.7 (d), “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” Here, plaintiff alleges that the provision was violated to the extent that he slipped on mud that was present on the ground at the site of the fall. We conclude that the mud plaintiff allegedly slipped on did not constitute a “foreign substance” as contemplated by the regulation (see generally Bazdaric v Almah Partners LLC, 41 NY3d 310, 319 [2024]). Indeed, the mud in question was part of the surface on which plaintiff was working and, furthermore, was inherent in the nature of the work being performed to repair the broken water line (see Walkow v MJ Peterson/Tucker Homes, LLC, 185 AD3d 1463, 1465 [4th Dept 2020]; Smith v Nestle Purina Petcare Co., 105 AD3d 1384, 1386 [4th Dept 2013]; cf. Velasquez v 795 Columbus LLC, 103 AD3d 541, 542 [1st Dept 2013]). We further conclude that plaintiff did not raise a triable issue of fact in opposition (see Zuckerman, 49 NY2d at 562).

Contrary to Russo's further contention on its cross-appeal, we conclude that the court properly denied that part of Russo's motion with respect to the Labor Law § 241 (6) cause of action insofar as it is based on the alleged violation of 12 NYCRR 23-1.7 (b) (1) (i)-(iii). That regulation “is sufficiently specific to support a section 241 (6) violation ․, 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” (Lopez v Fahs Constr. Group, Inc., 129 AD3d 1478, 1479 [4th Dept 2015] [internal quotation marks omitted]; see Wrobel v Town of Pendleton, 120 AD3d 963, 966 [4th Dept 2014]). Here, viewing the evidence in the light most favorable to plaintiff, and affording him the benefit of every available inference (see Eighth Jud. Dist. Asbestos Litig., 33 NY3d at 496; De Lourdes Torres, 26 NY3d at 763), we conclude that Russo did not meet its initial burden of showing that 12 NYCRR 23-1.7 (b) does not apply to the facts of this case or that the regulation was not violated. Russo's own submissions raise triable issues of fact whether Russo was responsible for creating the condition that allegedly caused plaintiff's injury—i.e., the excavated hole that plaintiff fell into because it was uncovered and unmarked (see Kuligowski v One Niagara, LLC, 177 AD3d 1266, 1268 [4th Dept 2019]; see generally Marino v Manning Squires Hennig Co., Inc., 208 AD3d 1020, 1021-1022 [4th Dept 2022]).

With respect to appeal No. 2, we agree with plaintiff that the court erred in granting that part of Russo's motion for summary judgment dismissing the Labor Law § 240 (1) cause of action, but we reject plaintiff's contention that the court erred in denying his cross-motion insofar as it sought summary judgment on the issue of Russo's liability on that cause of action. The court erred in concluding that Labor Law § 240 (1) categorically excludes the type of accident that occurred here, specifically plaintiff's fall into an allegedly open and unmarked excavated hole. Labor Law § 240 (1) is centered “around a core premise: that a defendant's failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability” (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]). In determining whether section 240 (1) applies, “the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v New York Stock Exch., Inc.,13 NY3d 599, 603 [2009] [emphasis added]). Here, inasmuch as plaintiff alleged that he fell from ground level into an open and unmarked hole that had been deliberately excavated in connection with the emergency water line repair work in which plaintiff was assisting, rather than a “mere hole[ ] in the ground” located on the worksite that was unconnected to the work being performed (Wrobel, 120 AD3d at 966), we conclude that the accident here involved “the type of elevation-related risk for which Labor Law § 240 (1) provides protection” (Wild v Marrano/Marc Equity Corp., 75 AD3d 1099, 1099 [4th Dept 2010] [internal quotation marks omitted]; see Covey v Iroquois Gas Transmission Sys., 89 NY2d 952, 953-954 [1997]; Wrobel, 120 AD3d at 965-966). Given that the excavated hole on the property was the purpose of the work being performed, that plaintiff was not provided with safety devices to protect him from a fall, and that the undisputed evidence established that an excavated hole should not have been left open or unattended at night, this is not a case in which plaintiff's injuries resulted “from the usual and ordinary dangers of a construction site” (Caradori v Med Inn Ctrs. of Am., 5 AD3d 1063, 1064 [4th Dept 2004] [internal quotation marks omitted]).

Nevertheless, the court did not err in denying that part of plaintiff's cross-motion with respect to his Labor Law § 240 (1) cause of action. Plaintiff failed to meet his initial burden on the cross-motion inasmuch as his own submissions—which include many of the same submissions contained in Russo's summary judgment motion—raise questions of fact by providing divergent accounts of the manner in which the accident occurred, particularly with respect to the timeline of the events leading up to the accident and the precise mechanism of plaintiff's injury (see Malvestuto v Town of Lancaster, 201 AD3d 1339, 1340 [4th Dept 2022]; Militello v Landsman Dev. Corp., 133 AD3d 1378, 1379 [4th Dept 2015]), which are “insufficient to prove, as a matter of law, that ․ defendant[s’ alleged] failure to provide ․ plaintiff with proper protection proximately caused [his] injuries” (Sims v City of Rochester, 115 AD3d 1355, 1356 [4th Dept 2014] [internal quotation marks omitted]; see Nelson v Ciba-Geigy, 268 AD2d 570, 572 [2d Dept 2000]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court