Fourth Department – Labor Law: Ross v. Northeast Diversification, Inc.

New York State Supreme Court, Appellate Division, Fourth Judicial Department

Labor Law

Hazardous opening – Demolition and restoration work

Ross v. Northeast Diversification, Inc.

CA 22-00884

Appealed from Supreme Court, Erie County

Background: The plaintiff commenced a Labor Law and negligence action seeking damages for injuries he sustained while working as a concrete finisher on a project to install concrete sidewalks and pavement. He alleged that he slipped and tripped on a stone and fell into a trench that had been cut into the blacktop to allow the installation of a curb. The defendants appealed from an order that granted partial summary judgment to the plaintiff on his Labor Law claims.

Ruling: The Appellate Division held that Section 240(1) applies to the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure and the plaintiffs work involved the demolition and restoration of a sidewalk. The court further held that Section 241(6) does not apply as the trench to which the plaintiff fell was of insufficient depth to constitute a hazardous opening.

Sarah E. Hansen, of Burden, Hafner & Hansen, Robert P. Goodwin, of Walsh Roberts & Grace, for the defendant-appellant and third-party plaintiff-respondent-appellant; Michael M. Chelus, of Chleus, Herdzik, Speyer & Monte, for the third-party defendant-appellant-respondent; Marc C. Panepinto, of Dolce Panepinto, for the plaintiff-respondent.

Oral argument video