Root v. County of Onondaga, MURNANE-KOSOF

• Decision Date: 07 June 1991
• Docket Number: MURNANE-KOSOF,INC
• Citation: 174 A.D.2d 1014,572 N.Y.S.2d 174
• Parties: Janet ROOT, Individually and as the Conservator of Howard Root, an Incompetent, Respondent-Appellant, v. The COUNTY OF ONONDAGA, Murnane-Kosoff, Inc., Malcon Developers, Inc., and Edward Joy Company, Inc., Appellants-Respondents., Third-Party Plaintiff, v. CITY OF SYRACUSE, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 174

572 N.Y.S.2d 174

174 A.D.2d 1014

Janet ROOT, Individually and as the Conservator of Howard

Root, an Incompetent, Respondent-Appellant, v. The COUNTY OF ONONDAGA, Murnane-Kosoff, Inc., Malcon

Developers, Inc., and Edward Joy Company, Inc.,

Appellants-Respondents.

MURNANE-KOSOFF, INC., Third-Party Plaintiff, v. CITY OF SYRACUSE, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Fourth Department.

June 7, 1991.

Coulter, Fraser, Bolton, Bird & Ventre by Andrew Velonis, Syracuse, for appellant-respondent, County of Onondaga.

Sugarman, Wallace, Manheim & Schoenwald by Timothy Perry, Syracuse, for appellant-respondent, Murnane-Kosoff, Inc.

Hiscock & Barclay by Victoria Munley, Syracuse, for appellant-respondent, Malcon Developers, Inc.

MacKenzie, Smith, Lewis, Michell & Hughes by Eric Johnson, Syracuse, for appellant-respondent, Edward Joy Co.

Corporation Counsel by Marguerite Conan, Syracuse, for third-party defendant-appellant.

James G. Distefano, Syracuse, for respondent-appellant, Janet Root.

Before DOERR, J.P., and BOOMER, GREEN, PINE and DAVIS, JJ.

MEMORANDUM:

Supreme Court properly granted defendants' motions for summary judgment dismissing plaintiffs' claim based upon an alleged violation of Labor Law § 240(1). We have consistently held that absolute liability under that section may be imposed only upon a showing that the injured worker fell from an elevated work surface or was struck by an object falling from an elevated work surface (see, Staples v. Town of Amherst, 146 A.D.2d 292, 293, 540 N.Y.S.2d 926; Fox v. Jenny Eng. Corp., 122 A.D.2d 532, 505 N.Y.S.2d 270, affd 70 N.Y.2d 761, 520 N.Y.S.2d 750, 514 N.E.2d 1374; Siragusa v. State of New York, 117 A.D.2d 986, 499 N.Y.S.2d 533, lv. denied 68 N.Y.2d 602, 505 N.Y.S.2d 1026, 496 N.E.2d 239; DaBolt v. Bethlehem Steel Corp., 92 A.D.2d 70, 459 N.Y.S.2d 503, appeal dismissed 60 N.Y.2d 554, 467 N.Y.S.2d 1029, 454 N.E.2d 1318). Here, the "falling worker or objects" test was not satisfied because Howard Root's injuries were sustained when the underground concrete lined vault or structure in which he was working was suddenly inundated with water causing him to be trapped beneath the surface. Additionally, for the reasons hereinafter stated, plaintiffs may not assert a cause of action against defendants predicated upon a violation of Labor Law § 241(6). Supreme Court erred by denying defendants' motion for summary judgment seeking dismissal of plaintiffs' claims based upon alleged violations of Labor Law §§ 200 and 241(6). Labor Law § 241(6) imposes a nondelegable duty on owners and general contractors to provide reasonable and adequate protection to workers, and renders them liable for injuries proximately caused by a violation of the statutory duty, irrespective of their control or supervision of the worksite (see, Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 300-301, 405 N.Y.S.2d 630, 376 N.E.2d 1276, rearg. denied 45 N.Y.2d 776, 408 N.Y.S.2d 1027, 380 N.E.2d 350; Kelleher v. First Presbyt. Church of Lockport, 158 A.D.2d 946, 946-947, 551 N.Y.S.2d 708, appeal dismissed 75 N.Y.2d 947, 555 N.Y.S.2d 694, 554 N.E.2d 1282). Here, defendants had no ownership interest in the property where the accident occurred (see, Celestine v. City of New York, 59 N.Y.2d 938, 466 N.Y.S.2d 319, 453 N.E.2d 548; Kerr v. Rochester Gas & Elec. Corp., 113 A.D.2d 412, 414-416, 496 N.Y.S.2d 880). Moreover, with respect to Murnane-Kosoff, the general contractor, the work being performed by Howard Root at the time the accident occurred was not within the scope of the contract that it entered into with the County of Onondaga and therefore does not fall within the purview of Labor Law § 241(6) (see, Allen v. Cloutier Constr. Corp., supra; cf., Kelleher v. First Presbyt. Church of Lockport, supra ). Further, Malcon Developers, Inc., and Edward Joy Company, Inc., the subcontractors, lacked authority to supervise or control the work at the accident site and had not contracted with third-party defendant City of...