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Rogers v. County of Niagara

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 16, 1994
209 A.D.2d 1034 (N.Y. App. Div. 1994)

Opinion

November 16, 1994

Appeal from the Supreme Court, Niagara County, Mintz, J.

Present — Lawton, J.P., Fallon, Wesley, Doerr and Boehm, JJ.


Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly dismissed plaintiff's Labor Law § 240 (1) cause of action. Plaintiff was injured when the wall of an excavation trench caved in on him. Labor Law § 240 (1) does not impose liability in favor of a worker injured in the collapse of an excavation trench (see, Kelleher v. First Presbyt. Church, 158 A.D.2d 946, lv dismissed 75 N.Y.2d 947; Staples v. Town of Amherst, 146 A.D.2d 292, 301). The court erred, however, in dismissing plaintiff's Labor Law § 241 (6) cause of action, and we reinstate it. Labor Law § 241 (6) imposes a non-delegable duty upon an owner to provide protection for workers irrespective of the owner's control or supervision of the worksite (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500-502; Shoemaker v. State of New York, 186 A.D.2d 1028; Schwalm v. County of Monroe, 158 A.D.2d 994). Plaintiff has alleged violations of the Industrial Code ( 12 NYCRR 23-1.4 et seq.). Those sections set forth "concrete specifications" concerning excavation operations (Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 505). We reject the argument of defendant County of Niagara that Highway Law § 117-a, which places upon villages the duty to maintain sewers on county-owned streets located within village boundaries, absolves the County of its liability pursuant to Labor Law § 241 (6). Highway Law § 117-a does not alter the County's status as the owner of the roadway.


Summaries of

Rogers v. County of Niagara

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 16, 1994
209 A.D.2d 1034 (N.Y. App. Div. 1994)
Case details for

Rogers v. County of Niagara

Case Details

Full title:BERNARD J. ROGERS, JR., Appellant, v. COUNTY OF NIAGARA, Respondent

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 16, 1994

Citations

209 A.D.2d 1034 (N.Y. App. Div. 1994)
619 N.Y.S.2d 472

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