Kevin Letersky v Militello Farms, Inc. and Russo Development, Inc.
Attorneys and Parties
Brief Summary
Construction and emergency utility repair site safety. The case concerns whether an owner and contractor may be liable after a worker marking fuel lines at night allegedly slipped and fell into an open excavation during emergency water-line repair work.
Supreme Court granted Militello Farms, Inc.'s motion for summary judgment dismissing the claims against it, granted Russo Development, Inc.'s motion in part and denied it in part, denied plaintiff's cross-motion for partial summary judgment, and later on reargument dismissed the Labor Law § 240 (1) [New York's Scaffold Law protecting workers from gravity-related elevation risks] claim against Russo.
The Appellate Division modified the first order by granting Russo summary judgment dismissing the Labor Law § 241 (6) [requires owners and contractors to comply with specific Industrial Code safety rules] claim insofar as it was based on 12 NYCRR 23-1.7 (d) [requires ice, snow, water, grease, and other foreign slippery substances to be removed, sanded, or covered]. It also concluded in appeal No. 2 that the lower court erred in dismissing the Labor Law § 240 (1) claim against Russo, while still holding that plaintiff was not entitled to summary judgment on that claim.
Mud at the site was not a 'foreign substance' under 12 NYCRR 23-1.7 (d) because it was part of the work surface and inherent in repairing a broken water line. But the open excavation could still support claims under Labor Law § 240 (1) and under 12 NYCRR 23-1.7 (b) (1) (i)-(iii) [requires hazardous openings of sufficient size and depth to be guarded or covered], and factual disputes remained about who created the hole, when it was dug, and how the accident occurred.
Background
Plaintiff alleged that, while marking fuel lines at night in preparation for an emergency repair of a water line owned and operated by the Erie County Water Authority (ECWA), he slipped on muddy ground and fell into an unmarked, uncovered excavation. The property was owned by Militello Farms, Inc., and ECWA hired Russo Development, Inc. to perform the emergency repair. Plaintiff sued for common-law negligence and for violations of Labor Law § 200 [codifies the common-law duty to provide workers with a safe workplace], Labor Law § 240 (1), and Labor Law § 241 (6).
Lower Court Decision
The trial court dismissed all claims against Militello, finding it lacked control of the worksite and lacked actual or constructive notice of the alleged dangerous condition. As to Russo, the court dismissed some claims but allowed the common-law negligence, Labor Law § 200, and parts of the Labor Law § 241 (6) claim to proceed, and it denied plaintiff's request for partial summary judgment. The court later granted Russo leave to reargue and, on reargument, dismissed the Labor Law § 240 (1) claim as categorically inapplicable to plaintiff's fall into the excavation.
Appellate Division Reversal
The Appellate Division agreed that Militello was entitled to summary judgment because the record showed no control over the worksite and no actual or constructive notice of the hole. It held that Russo was entitled to dismissal of the Labor Law § 241 (6) claim only to the extent it relied on 12 NYCRR 23-1.7 (d), because the mud was not a covered foreign substance. The court otherwise allowed the common-law negligence, Labor Law § 200, and Labor Law § 241 (6) claim based on 12 NYCRR 23-1.7 (b) (1) (i)-(iii) to remain against Russo due to factual disputes about whether Russo dug the hole and controlled the site. The court also held that the lower court erred in dismissing the Labor Law § 240 (1) claim against Russo because an open excavation deliberately created as part of the work can present a physically significant elevation-related risk, although plaintiff was still not entitled to judgment as a matter of law because the record contained conflicting accounts of the accident.
Legal Significance
The decision distinguishes between ordinary muddy site conditions and hazardous openings under the Industrial Code. It confirms that mud inherent in excavation or water-line repair work does not qualify as a 'foreign substance' under 12 NYCRR 23-1.7 (d), but an open, unguarded excavation may qualify as a hazardous opening under 12 NYCRR 23-1.7 (b) and may also trigger Labor Law § 240 (1) when the excavation itself is a central part of the work and creates a significant elevation-related risk. The ruling also reinforces that a landowner defeats Labor Law § 200 and common-law negligence claims based on a dangerous condition by showing lack of control and lack of actual or constructive notice.
In New York construction-accident litigation, an excavated hole created for the work itself is not automatically treated as a mere ground condition. If it is open, unmarked, and unguarded, it may support Labor Law § 240 (1) and hazardous-opening claims, even though mud around it will not support a slippery-substance claim under 12 NYCRR 23-1.7 (d).