Seemueller v. County of Erie

—Order unanimously modified on the law and as modified affirmed with costs to plaintiff in accordance with the following Memorandum: Plaintiff contends that Supreme Court erred in denying his motion for partial summary judgment because defendant owners and general contractors violated their duty under Labor Law § 240 (1). We agree with plaintiff that Supreme Court erred in denying his motion with respect to defendants County of Erie (County) and Mountain Productions, Inc. (Mountain). Plaintiff was employed as a laborer to dismantle a stage, 64 feet wide by 60 feet deep and 8 to 10 feet high, that had been constructed at Rich Stadium for a rock concert. While so employed, plaintiff fell from the stage to the floor of the stadium and sustained injuries. Plaintiff was not wearing any safety device at the time of his fall. The County and Mountain, as owners of the premises (Rich Stadium) and structure (the stage), respectively, violated their duty under Labor Law § 240 (1) to provide adequate safety devices to protect plaintiff (see, Gordon v Eastern Ry. Supply, 181 AD2d 990, 991, affd 82 NY2d 555; see also, Ampolini v Long Is. Light. Co., 186 AD2d 772; Walsh v Baker, 172 AD2d 1038; Tiernan v County of Monroe, 172 AD2d 1068). Although the County had leased Rich Stadium to others at the time of the accident, that fact does not alter its non-delegable duty under the Labor Law (see, Gordon v Eastern Ry. Supply, 82 NY2d 555, supra; Celestine v City of New York, 86 AD2d 592, 593, affd 59 NY2d 938). Consequently, plaintiff’s motion for partial summary judgment against the County and Mountain is granted. Because the record fails to contain sufficient evidence to establish, as a matter of law, the remaining defendants’ liability pursuant to Labor Law § 240 (1), Supreme Court properly denied plaintiff’s motion with respect to those defendants. (Appeal from Order of Supreme Court, Erie County, 1053 Sedita, J. — Summary Judgment.) Present — Balio, J. P., Law-ton, Doerr, Davis and Boehm, JJ.