Romero v. J & S Simcha, Inc.

• Decision Date: 24 April 2007
• Docket Number: 2006-05400.
• Citation: 2007 NY Slip Op 03677,835 N.Y.S.2d 306,39 A.D.3d 838
• Court: New York Supreme Court — Appellate Division
• Parties: ANGEL ROMERO, Appellant, et al., Plaintiff, v. J & S SIMCHA, INC., Defendant, and CITY OF NEW YORK, Respondent. (And a Third-Party Action.)

39 A.D.3d 838

835 N.Y.S.2d 306

2007 NY Slip Op 03677

ANGEL ROMERO, Appellant, et al., Plaintiff, v. J & S SIMCHA, INC., Defendant, and CITY OF NEW YORK, Respondent. (And a Third-Party Action.)

2006-05400.

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

Decided April 24, 2007.

In an action to recover damages for personal injuries, etc., the plaintiff Angel Romero appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated April 24, 2006, as granted that branch of the motion of the defendant City of New York which was for summary

judgment dismissing the cause of action based on Labor Law § 241 (6) insofar as asserted against it.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant City of New York which was for summary judgment dismissing the cause of action based on Labor Law § 241 (6) insofar as asserted against it is denied.

The plaintiff Angel Romero was employed by a private contractor that was installing a sewer line for the defendant J & S Simcha, Inc. (hereinafter J & S). Romero was injured when the unshored trench that he was working in collapsed. The plaintiff commenced this action against J & S and the City of New York, which owned the property where the trench was dug. The plaintiff alleged, inter alia, that they had violated Labor Law § 241 (6) by failing to shore up or otherwise support the walls of the trench. The City moved for summary judgment dismissing the complaint and argued, inter alia, that although it held legal title to the property where the plaintiff was injured, for purposes of Labor Law § 241 (6) it was not the "owner" of the property because the plaintiff's employer was not a City contractor or working under the City's direction or control. The Supreme Court granted the City's motion.

Labor Law § 241 (6) imposes a nondelegable duty upon owners and general contractors to provide reasonable and adequate protection and safety to persons employed in construction, excavation, or demolition work, regardless of the absence of control, supervision, or direction of the work (see Allen v Cloutier Constr. Corp., 44 NY2d 290, 300-301 [1978]; Celestine v City of New York, 86 AD2d 592, 593 [1982], affd 59 NY2d 938 [1983]).

The City admitted in its affirmation in support of its motion that it owned the property where the plaintiff was injured and submitted proof that it had issued a permit for the work. Under the facts of this case, the City's ownership of the property makes it liable for violations of Labor Law § 241 (6) which occur on its property regardless of whether it retained or controlled the...