You are here: / / QUESTIONS OF FACT WERE RAISED ABOUT DEFENDANT CON ED’S AUTHORITY...
,

QUESTIONS OF FACT WERE RAISED ABOUT DEFENDANT CON ED’S AUTHORITY AND RESPONSIBILITIES IN THIS LABOR LAW 241 (6) AND 200 ACTION, IN PART BY THE TERMS OF A CONTRACT, CON ED’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF WAS USING AN EXCAVATOR WHEN IT TIPPED OVER INTO A CREEK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Con Ed’s motion for summary judgment in this Labor Law 241 (6), Labor Law 200 and common law negligence action should not have been granted. Plaintiff was using an excavator in a narrow, sloped area when the excavator tipped over into a creek. The terms of a contract raised questions of fact about Con Ed’s supervisory authority and responsibilities:

Con Ed did not demonstrate, prima facie, that Industrial Code § 23-4.2(c), which requires supervision for certain excavation work, was inapplicable here, nor did it demonstrate, prima facie, that this regulation was not violated … . Further, Con Ed did not demonstrate, prima facie, that Industrial Code §§ 23-4.2(a) and 23-4.4(a), which require, inter alia, proper footing for certain work using excavators and similar equipment, were inapplicable here, or that these regulations were not violated in this case … . Con Ed also did not demonstrate, prima facie, that Industrial Code §§ 23-9.4(c), and 23-9.5(a), which require, inter alia, the use of shoring and/or temporary sheeting for certain excavation work, were inapplicable here, or that these regulations were not violated in this case … . Further, Con Ed did not show that any alleged violations of the aforementioned regulations did not constitute a proximate cause of the occurrence … . Any comparative negligence on the part of the plaintiff does not preclude liability founded upon a violation of Labor Law § 241(6)  … . * * *

There are “two broad categories of actions that implicate the provisions of Labor Law § 200” … . The first category involves worker injuries arising out of alleged dangerous or defective conditions on the premises where the work is performed … . In those circumstances, “[f]or liability to be imposed on the property owner, there must be evidence showing that the property owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time” … . “The second broad category of actions under Labor Law § 200 involves injuries occasioned by the use of dangerous or defective equipment at the job site” … . A property owner will be held liable under this category only if it possessed the authority to supervise or control the means and methods of the work … . The requisite supervision or control exists for Labor Law § 200 purposes when the property owner bears responsibility for the manner in which the work is performed … . “The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right'” … . Moscati v Consolidated Edison Co. of N.Y., Inc., 2019 NY Slip Op 00112, Second Dept 1-9-19

 

You might also like
Contractual-Indemnification Cross Claim by Building Owners Against the Elevator Maintenance Company Should Not Have Been Dismissed—Relevant Criteria Explained
THE JUDGMENT LIEN WAS NOT DOCKETED UNDER THE SELLER’S SURNAME; THEREFORE THE BUYER’S ACTION FOR A JUDGMENT QUIETING TITLE WAS PROPERLY GRANTED (SECOND DEPT).
Article 78 Is Proper Mechanism for Seeking Return of Property Held by the Police Department/Here Petitioner Was Not Entitled to Return of Firearm Not Licensed in New York/Firearms Owners’ Protection Act Did Not Apply
THE RELEASE WAS VALID EVEN THOUGH PLAINTIFF DID NOT UNDERSTAND ENGLISH; CPLR 2101, WHICH REQUIRES DOCUMENTS IN A FOREIGN LANGUAGE WHICH ARE FILED OR SERVED BE ACCOMPANIED BY AN ENGLISH TRANSLATION, DOES NOT APPLY BECAUSE THE RELEASE WAS IN ENGLISH (SECOND DEPT).
Forum Selection Clause Requiring All Enforcement Actions to be Brought in Surrogate’s Court Enforced 
BECAUSE THE ALLONGE ENDORSED IN BLANK WAS NOT FIRMLY AFFIXED TO THE NOTE AS REQUIRED BY THE UCC, THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING TO BRING THE ACTION (SECOND DEPT). ​
CAUSE OF ACTION ALLEGING THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION WAS UNCONSCIONABLE SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).
PLAINTIFF BANK DID NOT PRESENT SUFFICIENT EVIDENCE TO DEMONSTRATE IT TOOK ACTION TO ENTER A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION WITHIN ONE YEAR OF DEFENDANT’S DEFAULT; THE ACTION SHOULD HAVE BEEN DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (c) (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CONTRACT RAISED QUESTIONS OF FACT WHETHER CONSTRUCTION MANAGER HAD SUFFICIENT... DISCIPLINARY DETERMINATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND...