Rich v. Town of Henderson

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly granted summary judgment to defendant Town of Henderson. Plaintiff was not engaged in any work for the benefit of the Town and was not supervised by the Town. The proof shows that no dangerous condition existed on the boat launch area owned by the Town. We conclude, however, that the court improperly granted summary judgment dismissing the complaint against defendant East Coast Seawall Corporation (East Coast). In dismissing plaintiff’s complaint against East Coast, the court determined that the complaint alleged a cause of action based solely upon violations of the Labor Law and that the cause of action was fatally defective because plaintiff was not an employee of East Coast. We conclude that the complaint, read together with the bill of particulars, states a cause of action in common-law negligence (see, Ferro v Sinsheimer Estate, 256 NY 398; cf., Bernhardt v American Ry. Express Co., 218 App Div 195). The complaint alleges that, while plaintiff was assisting agents of defendant East Coast in lifting a section of a dock, it fell upon him due to the negligence of defendant East Coast. In the bill of particulars, plaintiff alleges, among other specifications of 1082 negligence, that East Coast’s agents "suddenly and without warning, released] the partially raised dock, allowing it to fall on plaintiffs legs”. We modify the order appealed from, therefore, by denying the motion of East Coast insofar as it sought dismissal of the complaint. We affirm those parts of the order granting the motion of East Coast to dismiss any causes of action based upon alleged violations of the Labor Law and granting summary judgment to the Town. (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J.—Summary Judgment.) Present—Denman, P. J., Pine, Balio, Boomer and Davis, JJ.