RIORDAN v. BOCES

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Supreme Court, Appellate Division, Fourth Department, New York.

Clarence F. RIORDAN and Jeanne A. Riordan, Individually and as Husband and Wife, Plaintiffs-Respondents, v. ROBERT F. HYLAND & SONS, INC., et al., Defendants, BOCES of Rochester, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, LUNN, PERADOTTO, AND GREEN, JJ. Petrone & Petrone, P.C., Buffalo, Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Gregory Cascino of Counsel), for Defendant-Appellant. Lawrence A. Schulz, Orchard Park, for Plaintiffs-Respondents.

 Plaintiffs commenced this Labor Law and common-law negligence action to recover damages for injuries sustained by Clarence F. Riordan (plaintiff) while he was working on the reconstruction of a school that was leased in part by defendant BOCES of Rochester (BOCES).   Supreme Court properly denied the cross motion of BOCES to the extent that it sought summary judgment dismissing the Labor Law § 240(1) and § 241(6) claims against it on the ground that it lacked the authority to control the work site.   BOCES failed to meet its initial burden of establishing that defense as a matter of law (see Riordan v. BOCES of Rochester, 4 A.D.3d 869, 870, 772 N.Y.S.2d 428;  see generally Copertino v. Ward, 100 A.D.2d 565, 567, 473 N.Y.S.2d 494).   The court also properly denied that part of the cross motion of BOCES seeking summary judgment dismissing the Labor Law § 240(1) claim against it on the ground that plaintiff was not engaged in an activity protected by that statute when he was injured.   The record establishes that there is a triable issue of fact whether plaintiff was engaged in an unprotected activity when he was injured, i.e., sliding down a muddy embankment (see Williams v. White Haven Mem. Park, 227 A.D.2d 923, 643 N.Y.S.2d 787), or whether he was engaged in a protected activity, i.e., falling into an excavation site (see Covey v. Iroquois Gas Transmission Sys., 89 N.Y.2d 952, 655 N.Y.S.2d 854, 678 N.E.2d 466;  Bockmier v. Niagara Recycling, 265 A.D.2d 897, 696 N.Y.S.2d 605).   The court also properly denied that part of the cross motion of BOCES seeking summary judgment dismissing the section 241(6) claim against it on the ground that the only regulation relied upon by plaintiff in opposition to the cross motion, i.e., 12 NYCRR 23-4.3, is inapplicable to the facts of this case (see Bockmier, 265 A.D.2d 897, 696 N.Y.S.2d 605).   Finally, the court properly denied that part of the cross motion of BOCES seeking summary judgment dismissing the Labor Law § 200 claim and common-law negligence cause of action against it inasmuch as the submissions of BOCES in support of its cross motion raise triable issues of fact whether it had supervisory control over the work or had actual or constructive notice of the allegedly dangerous condition that caused plaintiff's injuries (see Hennard v. Boyce, 6 A.D.3d 1132, 1133, 776 N.Y.S.2d 411;  see also Finger v. Cortese, 28 A.D.3d 1089, 815 N.Y.S.2d 801).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: