Opinion
July 2, 1992
Appeal from the Supreme Court, New York County (Diane Lebedeff, J.).
While employed by the third-party defendant Alvin Petroleum Systems, Inc. ("Alvin") on December 19, 1988, the plaintiff sustained injuries when he fell into a pump basin whose manhole cover had been removed by another Alvin employee. The plaintiff had been unloading gasoline pumps that were to be installed at the defendant LR Service Station from a truck. The defendant Exxon Corporation alleged that it sublet the property to LR and hired Alvin to remove and replace old gas pumps and tanks at the station.
The plaintiff instituted this action against Exxon and LR alleging negligence and violations of the Labor Law. Exxon thereafter moved for summary judgment dismissing the complaint on the ground that it did not own, occupy, control, manage or supervise the property where the plaintiff was injured and on the ground that its conduct was not the proximate cause of the plaintiff's injuries. The Supreme Court denied Exxon's motion in its entirety.
After the Supreme Court denied Exxon's motion, further discovery was completed in this matter, and the plaintiff now consents to the dismissal of the claims brought pursuant to section 200 Lab. of the Labor Law as against Exxon only. Accordingly, we modify the order of the Supreme Court to dismiss these claims.
The order is, however, otherwise affirmed since we agree with the Supreme Court that questions of fact exist with regard to the remainder of the plaintiff's claims. Although Exxon contends, inter alia, that it is not liable under Labor Law § 241 (6) because it is not an "owner" and because the dangerous condition on the property, caused by the plaintiff's co-worker, was an intervening act which was not a foreseeable consequence of any negligence that may be attributed to Exxon, Exxon has failed to make a prima facie showing of entitlement to judgment as a matter of law (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851).
Labor Law § 241 (6) imposes a nondelegable duty on contractors and owners (Long v. Forest-Fehlhaber, 55 N.Y.2d 154) and liability may attach regardless of their control, direction or supervision of the work site (Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290; Sergio v. Benjolo N.V., 168 A.D.2d 235). Exxon never produced documentation definitively establishing its claim that it was a lessee rather than an owner of the property. It cannot escape liability by demonstrating that it delegated the responsibility for its duties under section 241 (6) to its lessee LR (see, Sergio v. Benjolo N.V., supra; Sperber v. Penn Cent. Corp., 150 A.D.2d 356; Celestine v. City of New York, 86 A.D.2d 592, affd 59 N.Y.2d 938). The record reveals that Exxon leased the property to LR, retained the right of entry and access to the premises and hired Alvin to perform the construction work. Accordingly, issues of fact exist as to whether Exxon was an "owner" pursuant to Labor Law § 241 (6) precluding the award of summary judgment (see, DeFreece v. Penny Bag, 137 A.D.2d 744; Copertino v. Ward, 100 A.D.2d 565). Any issues as to causation and foreseeability must also await determination by the trier of fact (see, Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308).
Exxon's motion for summary judgment dismissing the plaintiff's Labor Law § 240 (1) claims was also properly denied. The plaintiff alleged that he was injured while removing gasoline pumps from the mechanically operated hoist tailgate of a truck which hoist had been elevated four feet from the ground. In the course of doing so, he stepped backward into an uncovered basin and one of the pumps fell from the hoist tailgate and onto the plaintiff, causing his injuries (see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509).
We have considered Exxon's remaining contention and find it to be without merit.
Concur — Rosenberger, J.P., Ellerin, Wallach and Rubin, JJ.
While I concur with the court's opinion with respect to Labor Law §§ 200 and 241 (6), I dissent and would grant summary judgment to the defendant with respect to Labor Law § 240 (1).
The risk involved was not elevation-related (see, Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 515).