The following papers having been read on this motion: Notice of Motion 1 Opposition 2 Reply 3 Defendant moves for summary judgment, pursuant to CPLR §3212, seeking dismissal of Plaintiff’s complaint in its entirety in this labor law action. Plaintiff has opposed the motion, and Defendant has submitted timely reply. Based upon the following, Defendant’s motion is granted to the following extent. On November 18, 2015, Plaintiff was employed with the Town of North Hempstead as an inspector for plumbing, heating, and air-conditioning. At the time, Defendant was the owner of a certain residential property located in Roslyn Heights, Nassau County, New York, and was having a gas line and other plumbing installed to support an outdoor kitchen, barbecue, and firepit. Plaintiff was scheduled to go upon the property and perform an inspection of the plumbing that was installed underground and arrived at the property that day at 11:30am. While he attempted to perform his inspection, he stood atop the dirt that had been excavated from the ground, creating a trench; however, shortly after he began his inspection, the ground gave way below him, causing him to fall into the trench, resulting in injuries to his left knee. Plaintiff has now brought four causes of action against Defendant, one of which is common law negligence and the remaining three under New York Labor Law, asserting claims under §200, §240(1), and §241(6). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact, Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1986). To make a prima facie showing, the motion must be supported by affidavit, but a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). When a claim is asserted under Labor Law §241(6), such a plaintiff must allege that a specific and concrete provision of the Industrial Code was violated and that the violation proximately caused his injuries. Keener v. Cinalta Construction Corp., 146 AD3d 867, 45 NYS3d 179 (2nd Dept., 2017). To the extent that plaintiff has asserted a viable claim under this section, he need not show that defendant exercised supervision or control over his worksite in order to establish his right of recovery. Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 601 NYS2d 49 (1993). Plaintiff’s bill of particulars alleges a violation by Defendants of 12 NYCRR §23-3.2(a) and §23-4.4. Under the facts surrounding this case, §23-3.2(a) does not apply herein, as the work being performed in Defendant’s backyard cannot be considered demolition in nature; as such, this section of the Industrial Code is clearly misplaced. Turning to the other section asserted by Plaintiff, which is relevant to excavation, the testimony from Plaintiff himself is dispositive on the issue. During his deposition, Plaintiff was very clear that the depth of the trench that he fell in and caused his injury was a depth of four feet, and from the top of the berm, five and a half to six feet high, only; furthermore, Plaintiff testified that from ground level, the berm he stood atop was a foot and a half to two feet. Thus, the Court is satisfied that the trench in question was not the minimum of five feet which would require the shoring described under the Industrial Code. Therefore, given that neither section asserted by Plaintiff is applicable to the case at bar, the portion of Defendant’s motion seeking to dismiss Plaintiff’s fourth cause of action under Labor Law §241(6), is hereby granted. Turning next to Plaintiff’s third cause of action, to establish a prima facie case under the scaffold law, a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable and that an absence or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged. Shipkoski v. Watch Case Factory Associates, 292 AD2d 587, 741 NYS2d 55 (2nd Dept., 2002); see also Labor Law §240(1). The extent of an elevation differential may not necessarily determine the existence of an elevation-related risk. Rocovich v. Consolidated Edison Company, 78 NY2d 509, 577 NYS2d 219 (1991). The work of the injured plaintiff must be related to an elevation-related hazard. Edwards v. C&D Unlimited, Inc., 289 AD2d 370, 735 NYS2d 141 (2nd Dept, 2001). Plaintiff testified during his deposition that, when he performs his inspection of job sites similar to the one that he was inspecting when he was injured on Defendant’s property, he typically stands on the mound of dirt on either side of the trench to look in it, as he did here. As noted above, Plaintiff stated that the depth of the hole was approximately four feet, and from the top of the berm, five and a half to six feet. Given this shallow depth at issue herein, while the scaffold law is intended to protect workers injured during excavation work being performed, said law is inapplicable to the case at bar; more importantly, Plaintiff’s work was wholly unrelated to an elevation-related hazard. Accordingly, the portion of Defendant’s motion seeking summary judgment on the Labor Law §240(1) claim is also hereby granted. See Mancini v. Pedra Construction, 293 AD2d 453, 740 NYS2d 387 (2nd Dept., 2002). Pursuant to Labor Law §200(1), in order to establish liability, it must be established that the owner or contractor defendant had the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition. Biafora v. City of New York, 27 AD3d 506, 811 NYS2d 764 (2nd Dept., 2006). Where a plaintiff’s injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable under this statute if it either created the condition that caused the accident or had actual or constructive notice of the dangerous condition. Pacheco v. Smith, 128 AD3d 926, 9 NYS3d 377 (2nd Dept., 2015). Here, Defendant asserts, both in affidavit form and during his deposition, that he himself did not perform the work of digging the trench in his backyard, that he did not control, direct, or supervise the work taking place in his back yard on the date of Plaintiff’s injury, and that he does not know who dug the trench in his backyard. However, given the other evidence submitted herein, this Court finds that Defendant has not established his entitlement to judgment as a matter of law on this claim. Plaintiff himself testified that in order to schedule the inspection, a licensed plumber would call and make an appointment for a specific date and time; moreover, the scheduling usually runs two to three weeks out. Accepting all of the aforementioned facts as true, it cannot be said as a matter of law that Defendant lacked knowledge that a trench was being dug in his backyard, either actually or constructively, in particular since he hired two non-parties to do the work in his backyard and was well aware of what the end result of the work to be performed would be. It is also noteworthy that from the time the call is made to the Town of North Hempstead to the time the inspection is performed, a significant time may have passed with which the dangerous condition surrounding the trench could have been secured by Defendant. This Court finds that such determination would be more appropriately left for a jury to determine, and as such, the application to dismiss Plaintiff’s second cause of action under Labor Law §200(1) is hereby denied. Defendant shall file and serve a copy of the within order with notice of entry upon Plaintiff within thirty (30) days from the date of this order. Thereafter, subject to the discretion of the justice there presiding, the parties shall appear in the DCM Pretrial Part of Supreme Court, Nassau County, on March 4, 2021, at 9:30am. Any relief requested in the motion not specifically addressed in the foregoing shall be deemed denied herein. This hereby constitutes the decision and order of this Court. Dated: September 16, 2020
