Wrobel v. Town of Pendleton

• Decision Date: 08 August 2014
• Court: New York Supreme Court — Appellate Division
• Parties: Michael WROBEL, Plaintiff–Appellant–Respondent, v. TOWN OF PENDLETON, et al., Defendants, County of Niagara, Defendant–Respondent–Appellant, and Foit–Albert Associates, Architecture, Engineering and Surveying, P.C., Defendant–Respondent.

120 A.D.3d 963
991 N.Y.S.2d 218
2014 N.Y. Slip Op. 05738

Michael WROBEL, Plaintiff–Appellant–Respondent,
v.
TOWN OF PENDLETON, et al., Defendants,
County of Niagara, Defendant–Respondent–Appellant,
and
Foit–Albert Associates, Architecture, Engineering and Surveying, P.C., Defendant–Respondent.

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

Aug. 8, 2014.

[991 N.Y.S.2d 219]

Cantor, Dolce & Panepinto, P.C., Buffalo (Anne M. Wheeler of Counsel), for Plaintiff–Appellant–Respondent.

Gibson, McAskill & Crosby, LLP, Buffalo (Robert J. Mullins, II, of Counsel), for Defendant–Respondent–Appellant.

Sugarman Law Firm, LLP, Buffalo (Brian Sutter of Counsel), for Defendant–Respondent.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY AND WHALEN, JJ.

MEMORANDUM:

Plaintiff commenced this Labor Law and common-law negligence action seeking damages for leg injuries he sustained when he stepped into a hole in the ground while working for the general contractor at a construction site owned by defendant County of Niagara (County). The construction project involved the widening of a County road and the installation of new drainage lines along the road. According to plaintiff, he stepped into the hole, which he described as three or four feet deep and filled with rainwater, while carrying a pipe that he and coworkers intended to install in a trench.

[991 N.Y.S.2d 220]

The complaint, as amplified by the bill of particulars, alleges that the County and its architect/engineer, defendant Foit–Albert Associates, Architecture, Engineering and Surveying, P.C. (Foit–Albert), violated Labor Law §§ 200, 240(1) and 241(6), and that they were negligent in failing to provide him with a safe place to work. Following discovery, the County and Foit–Albert moved separately for summary judgment dismissing the complaint against them, and plaintiff cross-moved for partial summary judgment on liability on his section 240(1) and 241(6) claims. Supreme Court granted Foit–Albert's motion and dismissed the complaint against it, and denied the County's motion and plaintiff's cross motion, finding issues of fact for trial. Plaintiff appeals from the order insofar as it granted Foit–Albert's motion, and the County cross-appeals from the order insofar as it denied its motion.

We conclude with respect to plaintiff's appeal that the court properly granted Foit–Albert's motion. Addressing first Labor Law §§ 240(1) and 241(6), it is well settled that the duties of those sections “apply only to ‘[general] contractors and owners and their agents' ” (Brownell v. Blue Seal Feeds, Inc., 89 A.D.3d 1425, 1427, 932 N.Y.S.2d 623; see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317–318, 445 N.Y.S.2d 127, 429 N.E.2d 805). Here, Foit–Albert met its burden of establishing that it was not liable as an agent of the County, i.e., it did not have sufficient supervision or control over the activity that caused plaintiff's injury, or over the safety procedures employed at the site ( see Lopez v. Dagan, 98 A.D.3d 436, 437, 949 N.Y.S.2d 671, lv. denied21 N.Y.3d 855, 2013 WL 1876504; Baker v. Town of Niskayuna, 69 A.D.3d 1016, 1018, 891 N.Y.S.2d 749; Walker v. Metro–North Commuter R.R., 11 A.D.3d 339, 341, 783 N.Y.S.2d 362). Indeed, professional engineers, architects, and landscape architects who “do not direct or control the work for activities other than planning or design” are specifically immune from liability under Labor Law §§ 240(1) and 241(6) ( see§§ 240[1]; 241[9]; Harvey v. Sear–Brown Group, 262 A.D.2d 1006, 1006, 692 N.Y.S.2d 547; Carter v. Vollmer Assoc., 196 A.D.2d 754, 754, 602 N.Y.S.2d 48). Plaintiff failed to raise a triable issue of fact in opposition to those parts of the motion ( see Fecht v. City of New York, 244 A.D.2d 315, 315–316, 663 N.Y.S.2d 891; cf. Gonnerman v. Huddleston, 48 A.D.3d 516, 517, 854 N.Y.S.2d 135).

Because Foit–Albert “exercised no control or supervision over either plaintiff's work or...