The Fourth Department determined the Labor Law 240(1), 241(6) and 200 causes of action were properly dismissed, but the common law negligence cause of action should not have been dismissed. Plaintiff, a funeral director, was inspecting a grave which had been covered with plywood when he stepped on the plywood and fell into the grave. The Labor Law causes of action did not apply because plaintiff was not engaged in any relevant work at the time of the fall. However there were questions of fact whether defendants created or had notice of a dangerous condition:
With respect to Labor Law § 240 (1), defendants met their burden of establishing as a matter of law that plaintiff “was neither among the class of workers . . . nor performing the type of work . . . that Labor Law § 240 (1) is intended to protect” … , and plaintiffs failed to raise a triable issue of fact… . Defendants further established that plaintiff was not entitled to the protection of Labor Law § 241 (6) inasmuch as his inspection of the grave site in his capacity as a funeral director had no direct connection with the alteration or excavation work … , and plaintiffs failed to raise a triable issue of fact … . Finally, the court properly granted summary judgment dismissing the Labor Law § 200 claim because, while that statute is not limited to construction work … , it does not apply where, as here, the plaintiff was “not permitted or suffered to work on a building or structure at the accident site” … .
… [D]efendants “were required to establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor had actual or constructive notice of the dangerous condition on the premises”… . Defendants’ own submissions establish that each had some level of supervisory control over the premises. Moreover, it is undisputed that [defendant] Wolcott dug the grave and placed plywood over it, thus creating and having actual notice of the condition that plaintiffs allege was dangerous. Further, while [defendant] Oakwood established that it did not create the dangerous condition, it “failed to establish as a matter of law that the condition was not visible and apparent or that it had not existed for a sufficient length of time before the accident to permit [Oakwood] or [its] employees to discover and remedy it,” and it thereby failed to establish that it lacked constructive notice of it … . Solecki v Oakwood Cemetery Assn., 2018 NY Slip Op 00692, Fourth Dept 2-2-18
LABOR LAW-CONSTRUCTION LAW (THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND/OR NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT))/NEGLIGENCE (THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND/OR NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT))/SLIP AND FALL (THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND/OR NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT))