SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

357 

CA 10-02255 

PRESENT: SCUDDER, P.J., SCONIERS, GORSKI, AND MARTOCHE, JJ.

 

 

TIMOTHY M. KOBEL AND LISA H. KOBEL, 

PLAINTIFFS-RESPONDENTS, 

V MEMORANDUM AND ORDER

NIAGARA MOHAWK POWER CORPORATION, 

DEFENDANT-APPELLANT, 

TELERGY, INC., INDIVIDUALLY AND AS 

SUCCESSOR BY MERGER TO A NEW YORK 

CORPORATE ENTITY OF THE SAME NAME,

ET AL., DEFENDANTS.

 

HISCOCK & BARCLAY, LLP, BUFFALO (MICHAEL E. FERDMAN OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

SMITH, MINER, O’SHEA & SMITH, LLP, BUFFALO (R. CHARLES MINER OF

COUNSEL), FOR PLAINTIFFS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (Kevin M.

Dillon, J.), entered July 1, 2010 in a personal injury action. The

order, inter alia, denied in part the motion of defendant Niagara

Mohawk Power Corporation for summary judgment dismissing plaintiffs’

complaint and all cross claims against it. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting the motion of defendant

Niagara Mohawk Power Corporation in part and dismissing the Labor Law

§ 241 (6) claim against it insofar as that claim is based upon the

alleged violation of 12 NYCRR 23-1.7 (b) (1) and as modified the order

is affirmed without costs. 

Memorandum: Plaintiffs commenced this Labor Law and common-law

negligence action seeking damages for injuries allegedly sustained by

Timothy M. Kobel (plaintiff) when he slipped and fell backwards while

working at the bottom of a manhole. We reject the contention of

Niagara Mohawk Power Corporation (defendant) that Supreme Court erred

in denying those parts of its motion for summary judgment dismissing

the Labor Law § 200 and common-law negligence causes of action against

it. “A defendant may bear responsibility under Labor Law § 200 and

for common-law negligence if it had actual or constructive notice of

the allegedly dangerous condition on the premises [that] caused the .

. . plaintiff’s injuries, regardless of whether [it] supervised

[plaintiff’s] work” (Konopczynski v ADF Constr. Corp., 60 AD3d 1313,

1314-1315 [internal quotation marks omitted]; see Riordan v BOCES of
-2- 357 

CA 10-02255 

Rochester, 4 AD3d 869, 870). “Here, defendant failed to meet its

initial burden because it failed to establish that it had no [actual

or] constructive notice of the allegedly hazardous conditions in the

floor” of the manhole (Konopczynski, 60 AD3d at 1315). The evidence

submitted by defendant in support of the motion establishes that

plaintiff’s “injuries . . . resulted from a hazardous condition

existing at the work site, rather than from the manner in which the

work [was] being performed” (McCormick v 257 W. Genesee, LLC, 78 AD3d

1581, 1582). 

We reject defendant’s further contention that the court erred in

denying that part of its motion for summary judgment dismissing the

Labor Law § 241 (6) claim against it insofar as it is based on the

alleged violation of 12 NYCRR 23-1.7 (d). That regulation protects

workers from, inter alia, being required or permitted to work in areas

where the “working surface . . . is in a slippery condition.” There

is no requirement that the work surface be elevated before an

employer’s duty under the regulation is triggered (see Cottone v

Dormitory Auth. of State of N.Y., 225 AD2d 1032, 1033), and the

regulation is sufficiently specific to support a Labor Law § 241 (6)

claim (see Tronolone v New York State Dept. of Transp., 71 AD3d 1488). 

Contrary to defendant’s contention, 12 NYCRR 23-1.7 (d) does not apply

only to unexpected and unanticipated slipping hazards. 

We agree with defendant, however, that the court erred in denying

that part of its motion for summary judgment dismissing the Labor Law

§ 241 (6) claim against it insofar as it is based on the alleged

violation of 12 NYCRR 23-1.7 (b) (1), and we therefore modify the

order accordingly. Although that regulation is sufficiently specific

to support a Labor Law § 241 (6) claim (see Barillaro v Beechwood RB

Shorehaven, LLC, 69 AD3d 543, 544), the sump hole that plaintiff

stepped into cannot be considered sufficiently large to constitute a

hazardous opening within the meaning of the regulation (see id.; see

generally Pitts v Bell Constructors, Inc., 81 AD3d 1475; Salazar v

Novalex Contr. Corp., 72 AD3d 418, 422-423).

Entered: April 1, 2011 Patricia L. Morgan

Clerk of the Court