158 A.D.2d 946 | N.Y. App. Div. | 1990
Although defendants and third-party defendant employer each may have a duty to insure that plaintiff has a safe place to work, that duty does not, under the factual circumstances of this case, arise under Labor Law § 240 (1) (see, Staples v Town of Amherst, 146 AD2d 292). Thus, Supreme Court properly denied plaintiffs’ motion for summary judgment against the owner, lessee and excavator on the issue of liability under section 240 (1) and properly granted the excavator’s motion for dismissal of plaintiffs’ section 240 (1) claim. However, the court erred in not dismissing the section 240 (1) claim against the owner and lessee.
The work being performed by plaintiff in the excavated site does fall within the purview of Labor Law § 241 (6) (see, Copertino v Ward, 100 AD2d 565, 567-568). Section 241 of the Labor Law imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection to
