Fellows v. County of Onondaga

• Decision Date: 29 April 2005
• Docket Number: CA 04-01626.
• Citation: 2005 NY Slip Op 03353,17 A.D.3d 993,794 N.Y.S.2d 165
• Parties: CHRISTOPHER FELLOWS et al., Respondents-Appellants, v. COUNTY OF ONONDAGA et al., Respondents, and SCOTT FELLOWS, Individually and Doing Business as SCOTT FELLOWS TRUCKING COMPANY, et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

17 A.D.3d 993

794 N.Y.S.2d 165

2005 NY Slip Op 03353

CHRISTOPHER FELLOWS et al., Respondents-Appellants, v. COUNTY OF ONONDAGA et al., Respondents, and SCOTT FELLOWS, Individually and Doing Business as SCOTT FELLOWS TRUCKING COMPANY, et al., Appellants-Respondents.

CA 04-01626.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

April 29, 2005.

Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Charles T. Major, J.), entered February 18, 2004. The order, insofar as appealed from, granted the motion of defendant Onondaga Soil and Water Conservation for summary judgment dismissing the complaint against it, granted that part of the motion of defendants Scott Fellows, individually and doing business as Scott Fellows Trucking Company, and Scott Fellows Trucking Company for summary judgment dismissing the Labor Law § 200 and § 241 (6) claims against them, and denied that part of the motion of Scott Fellows, individually and doing business as Scott Fellows Trucking Company, and Scott Fellows Trucking Company for summary judgment dismissing the common-law negligence claim against them.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Plaintiffs commenced this action seeking damages for injuries sustained by Christopher Fellows (plaintiff) while working for third-party defendant Robert E. Dye, doing business as Bob Dye Construction (Dye). Defendant Onondaga County Soil & Water Conservation District, incorrectly designated in the complaint as Onondaga Soil and Water Conservation, contracted with Dye to construct a manure storage facility on a farm owned and operated by Robert Cates, individually and doing business as Covale Farms; Raymond Cates, individually and doing business as Covale Farms; Bradley Cates, individually and doing business as Covale Farms; and Covale Farms (collectively, Cates defendants). Dye subcontracted with Scott Fellows, individually and doing business as Scott Fellows Trucking Company, and Scott Fellows Trucking Company (collectively, defendants), inter alia, to excavate the trenches necessary for laying pipes. Plaintiff, who was hired by Dye as a laborer, was standing in a trench laying pipe when a portion of the wall collapsed, trapping plaintiff under the soil.

We conclude that Supreme Court properly granted that part of the motion of defendants seeking summary judgment dismissing the Labor...