Plaintiff’s Labor Law 240 and 200 Actions Against the Town Should Have Been Dismissed—Although the Town Hired Plaintiff to Do Work on the Town’s Right of Way, the Accident Occurred on Adjacent Private Property—Labor Law 200 Action Against the Property Owners Should Not Have Been Dismissed

The Fourth Department, over a dissent, determined the Labor Law 240 and 200 actions against the town should have been dismissed because the injury occurred on private land, not town land.  The court further determined that the Labor Law 200 action against the landowners (the Hersheys) should not have been dismissed because the owners did not demonstrate as a matter of law their lack of notice of the dangerous condition.  The plaintiff had been hired by the town to do sidewalk and driveway work on the town’s right of way next to the Hersheys’ property. The plaintiff was parking a backhoe on the Hersheys’ property, with the Hersheys’ permission, when it tipped over into a ravine:

…[W]e agree with the Town that the court erred in denying the Town’s motion for summary judgment dismissing the Labor Law §§ 240 (1) and 241 (6) causes of action against it, inasmuch as the Town is not an “owner” for purposes of those statutes … . It is well settled that “the term owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit’ ” … . Here, the accident occurred well outside of the Town’s right-of-way, and the Town had no other interest in or legal authority over the landing area, which was located entirely on the Hersheys’ private property … . The Town established that it was Kenneth Hershey, not the Town, who gave plaintiff permission to park in the landing area; that the Town had no authority to grant such permission to plaintiff; and that Kenneth Hershey directed plaintiff where to park. Further, the Town established that the landing area was not part of the construction site … . No work was being performed in the landing area, and the landing area was not contiguous or in proximity to the construction site … . Moreover, the Town established that it was not necessary for plaintiff to park the backhoe in the landing area. The Town provided plaintiff with parking in a municipal garage, which was located a few miles from the work site. Plaintiff, however, testified at his deposition that he chose to use the landing area because it was closer to the work site and more “convenient” to do so … . Farruggia v Town of Penfield, 2014 NY Slip Op 4th Dept 7-3-14