Rogers v. County of Niagara

—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 AD2d 946, lv dismissed 75 NY2d 947; Staples v Town of Amherst, 146 AD2d 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 NY2d 494, 500-502; Shoemaker v State of New York, 186 AD2d 1028; Schwalm v County of Monroe, 158 AD2d 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. (Appeal from Order of Supreme Court, Niagara County, Mintz, J.—Labor [1035] Law §§ 240, 241.) Present—Lawton, J. P., Fallon, Wesley, Doerr and Boehm, JJ.