CHERYL MAYER AS ADMINISTRATRIX OF THE ESTATE OF BRANDON ACKER DECEASED PLAINTIFF RESPONDENT v. MATTHEW CONRAD AND AMY CONRAD DEFENDANTS APPELLANTS

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

CHERYL D. MAYER, AS ADMINISTRATRIX OF THE ESTATE OF BRANDON M. ACKER, DECEASED, PLAINTIFF–RESPONDENT, v. MATTHEW J. CONRAD AND AMY M. CONRAD, DEFENDANTS–APPELLANTS.

MATTHEW J. CONRAD AND AMY M. CONRAD, THIRD–PARTY PLAINTIFFS–APPELLANTS - RESPONDENTS, v. FISHER CONCRETE, INC., THIRD–PARTY DEFENDANT–RESPONDENT -APPELLANT.

CA 14–00281

Decided: November 21, 2014

PRESENT:  SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ. BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANTS–APPELLANTS AND THIRD–PARTY PLAINTIFFS–APPELLANTS–RESPONDENTS. WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, WHITE PLAINS (DEBRA A. ADLER OF COUNSEL), FOR THIRD–PARTY DEFENDANT–RESPONDENT–APPELLANT. SMITH, MINER, O'SHEA & SMITH, LLP, BUFFALO (R. CHARLES MINER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Erie County (Shirley Troutman, J.), entered May 23, 2013.   The order, among other things, denied in part the motions of third-party defendant and defendants-third-party plaintiffs for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion of third-party defendant in part and dismissing the third-party complaint insofar as it seeks common-law indemnification and as modified the order is affirmed without costs.

Memorandum:  Plaintiff commenced this wrongful death action arising out of a construction site accident, alleging violations of the Labor Law and common-law negligence, and defendants thereafter commenced a third-party action seeking common-law indemnification or contribution from third-party defendant, Fisher Concrete, Inc. (Fisher).  Defendants hired Fisher to perform excavation work on their property in connection with the construction of a new home.   Several weeks prior to the accident, Fisher excavated a portion of the property to prepare for the construction of a walk-out basement, which resulted in a seven-to nine-foot-high vertical embankment on the south side of the basement (hereafter, south bank or embankment).   On the date of the accident, Fisher was installing footers for the basement retaining walls, which involved digging small trenches next to the north and south walls and pouring concrete into the trenches.   Plaintiff's decedent, a Fisher employee, was working in the south trench smoothing concrete for the footer when the south bank collapsed onto him, inflicting fatal injuries.   Supreme Court granted those parts of the motions of defendants and Fisher for summary judgment dismissing the claims pursuant to Labor Law §§ 240(1) and 241(6), and defendants contend on appeal that the court should have granted their motion for summary judgment dismissing the complaint in its entirety.   Fisher contends that the court likewise should have granted its motion for summary judgment dismissing the complaint in its entirety, as well as the third-party complaint insofar as it seeks common-law indemnification.   We conclude that the court properly refused to dismiss the complaint in its entirety, but should have granted that part of Fisher's motion for summary judgment dismissing the third-party complaint to that extent.   We therefore modify the order accordingly.

Labor Law § 200 is a codification of the common-law duty imposed on property owners and general contractors to provide workers with a safe place to work (see Rizzuto v. L.A. Wenger Contr.   Co., 91 N.Y.2d 343, 352;  Ross v Curtis–Palmer Hydro–Elec.   Co., 81 N.Y.2d 494, 505).  “Cases involving Labor Law § 200 fall into two broad categories:  namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed” (Ortega v. Puccia, 57 AD3d 54, 61).  “Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident” (id.;   see Ozimek v. Holiday Val., Inc., 83 AD3d 1414, 1416).   Where, however, the worker's injuries stem from the manner in which the work was being performed, no liability attaches to the owner under the common law or under Labor Law § 200 “unless it is shown that the [owner] had the authority to supervise or control the performance of the work” (Ortega, 57 AD3d at 61;  see Comes v New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877;  Lombardi v. Stout, 80 N.Y.2d 290, 295).

Defendants and Fisher contend that this is a “manner and method of work” case and thus that defendants are entitled to summary judgment dismissing the Labor Law § 200 claim and common-law negligence cause of action because they did not have the authority to supervise or control the work.   We reject that contention.   Although there is no question that Fisher's excavation work created the dangerous condition at issue here, i.e., the unsecured embankment, we conclude that the embankment was “transformed ․ into a premises condition” inasmuch as it remained in that condition for several weeks prior to decedent's accident and neither decedent nor any other employee of Fisher were working on the embankment at the time of the accident (Slikas v. Cyclone Realty, LLC, 78 AD3d 144, 148;  see Rodriguez v. BCRE 230 Riverdale, LLC, 91 AD3d 933, 934–935;  Soskin v. Scharff, 309 A.D.2d 1102, 1105–1106;  cf.  Mohammed v. Islip Food Corp., 24 AD3d 634, 635–638).   We therefore conclude that the court properly denied those parts of the motions of defendants and Fisher seeking to dismiss the Labor Law § 200 claim and common-law negligence cause of action.

With respect to the third-party complaint, we agree with Fisher that defendants' claim for common-law indemnification should be dismissed inasmuch as “there are no circumstances under which [defendants] could be held vicariously liable to [plaintiff] based on the negligence of a third party such as [Fisher]” (Village of Palmyra v. Hub Langie Paving, Inc., 81 AD3d 1352, 1353;  see Genesee/Wyoming YMCA v. Bovis Lend Lease LMB, Inc., 98 AD3d 1242, 1244–1245;  Burkoski v. Structure Tone, Inc., 40 AD3d 378, 381–382).

Frances E. Cafarell

Clerk of the Court