FINKLE v. ECKERT COMPANY INC (2004)

Cross appeals from an order of the Supreme Court (Dowd, J.), entered January 19, 2004 in Chenango County, which, inter alia, partially granted defendant's motion for summary judgment dismissing the complaint.

In May 2000, defendant was the general contractor on a university construction project.   Plaintiff's employer was a subcontractor hired to excavate a trench and install an underground heat tunnel.   Plaintiff was allegedly injured when he fell approximately nine feet to the bottom of a 12-foot deep trench.   According to plaintiff, at the time of the accident, he was entering the trench via a concrete conduit that was located three feet below ground level.   He had a piece of plywood in his hand at the time.   As he landed on the conduit, “the ground went out from under [him]” and he fell to the bottom of the trench.

According to plaintiff, it was pouring rain at the time of his accident and there were no ladders in the vicinity to access the trench.   According to defendant, on the other hand, several ladders were available to plaintiff that day, as was a boom fork lift to transport material into the trench.   Defendant also presented proof that plaintiff knew that he was not supposed to use the concrete conduit to access the trench and that the presence of a ladder would not have prevented his fall, since plaintiff himself testified at an examination before trial that he generally did not use ladders if he was carrying material into a trench or if it was muddy or slippery outside.

In this action seeking damages as a result of alleged violations of Labor Law §§ 200, 240(1) and § 241(6), Supreme Court partially granted defendant summary judgment by dismissing plaintiff's Labor Law §§ 200 and 240(1) claims.   These cross appeals ensued.   Plaintiff claims that Supreme Court not only erred in dismissing these claims, but also erred in denying his cross motion for summary judgment under Labor Law § 240(1).   Defendant claims that the court correctly dismissed the Labor Law §§ 200 and 240(1) claims, but should have also dismissed the Labor Law § 241(6) cause of action.

 We find that Supreme Court erred in partially granting defendant summary judgment.   Contrary to defendant's characterization of the subject accident, accepted by Supreme Court in dismissing the Labor Law § 240(1) claim, the record does not unequivocally establish that plaintiff slid down the slope of an excavation trench such that liability under this particular statutory provision is unwarranted as a matter of law (compare Cummings v. I. & O.A. Slutsky, 304 A.D.2d 860, 757 N.Y.S.2d 625 [2003];  Gielow v. Coplon Home, 251 A.D.2d 970, 674 N.Y.S.2d 551 [1998], appeal dismissed, lv. denied 92 N.Y.2d 1042, 685 N.Y.S.2d 416, 708 N.E.2d 172 [1999];  Doty v. Eastman Kodak Co., 229 A.D.2d 961, 646 N.Y.S.2d 474 [1996], lv. dismissed, lv. denied 89 N.Y.2d 855, 653 N.Y.S.2d 274, 675 N.E.2d 1226 [1996];  Williams v. White Haven Mem. Park, 227 A.D.2d 923, 643 N.Y.S.2d 787 [1996] ).   Rather, there is record support for the factual allegation that plaintiff fell from an elevated area (the concrete conduit) (cf. Allen v. Hodorowski & DeSantis Bldg. Contrs., 220 A.D.2d 959, 632 N.Y.S.2d 707 [1995] ) a significant distance into the trench (approximately nine feet) (cf. Gile v. General Elec. Co., 272 A.D.2d 833, 834, 708 N.Y.S.2d 188 [2000] ).   Thus, defendant was not entitled to summary judgment dismissing the Labor Law § 240(1) claim on the ground that plaintiff's accident fell outside the ambit of the statute (see Congi v. Niagara Frontier Transp. Auth., 294 A.D.2d 830, 741 N.Y.S.2d 629 [2002];  Bockmier v. Niagara Recycling, 265 A.D.2d 897, 696 N.Y.S.2d 605 [1999];  Trillo v. City of New York, 262 A.D.2d 121, 691 N.Y.S.2d 515 [1999];  Tooher v. Willets Point Contr. Corp., 213 A.D.2d 856, 623 N.Y.S.2d 431 [1995];  DeLong v. State St. Assoc., 211 A.D.2d 891, 892, 621 N.Y.S.2d 172 [1995];  see also Covey v. Iroquois Gas Transmission Sys., 89 N.Y.2d 952, 655 N.Y.S.2d 854, 678 N.E.2d 466 [1997];  Alexandre v. City of New York, 300 A.D.2d 263, 750 N.Y.S.2d 651 [2002] ).   Nor is plaintiff entitled to summary judgment on this claim since questions of fact have also been raised concerning whether defendant provided safety devices for him to gain access into the trench and/or whether any alleged absence of safety devices was a proximate cause of plaintiff's injury (see Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 524, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985];  see also Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960, 672 N.Y.S.2d 840, 695 N.E.2d 709 [1998];  Gottstine v. Dunlop Tire Corp., 272 A.D.2d 863, 864, 709 N.Y.S.2d 259 [2000] ).

 Plaintiff's Labor Law § 200 claim was also improperly dismissed.   There is at a minimum sufficient record evidence to present a triable issue of fact as to whether defendant exercised more than general supervisory control over the work site (see Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 352-353, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998] ).   In particular, there is evidence that defendant's field superintendent had the authority, exercised in the past on this very project, to shut down all work due to inclement weather (see Beyea v. Malcolm Pirnie, Inc., 298 A.D.2d 940, 940-941, 747 N.Y.S.2d 653 [2002] ).   There is evidence that the day of plaintiff's accident was marked with steady rain.

 As a final matter, Supreme Court properly refused to dismiss the Labor Law § 241(6) claim as plaintiff raised an issue of fact concerning whether there was a violation of 12 NYCRR 23-4.3, which requires that ladders, stairways or ramps be provided every 25 feet in any excavation more than three feet deep for safe access and egress (see Bockmier v. Niagara Recycling, supra at 897, 696 N.Y.S.2d 605;  Allen v. Hodorowski & DeSantis Bldg. Contr., supra at 961, 632 N.Y.S.2d 707).

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as partially granted defendant's motion for summary judgment;  motion denied in its entirety;  and, as so modified, affirmed.

CARPINELLO, J.

CARDONA, P.J., MERCURE, SPAIN and KANE, JJ., concur.