In this action the injury plaintiff, RM seeks damages for personal injuries allegedly sustained on July 22, 2005 while working as an employee of Forge Heating and Air Conditioning at the premises located at 611 Lazy point Road, Amagansett, New York. It is claimed that AC Const. Co. Inc. was the general contractor at the site pursuant to a contract entered into with DL, the owner of the premises under construction. Liability is premised upon negligence and the alleged violation of New York State Labor Law §§ 200, 240(1) and 241(6) and the Industrial Code of the State of New York 12 NYCRR sections 23-1.5; 23-1.70); 23-2.1; and 23-2.30; and Article 1926 of the Rules and Regulations of Occupational Safety and Health Administration.
The defendants seek an order granting summary judgment dismissing the complaint on the basis that the plaintiff cannot establish negligence and in that DL qualifies for the single family home exemption relative to New York State Labor Law §§ 200, 240(1) and 241 (6). In support of the motion the defendants have submitted an attorney’s affirmation; a copy of the pleadings, answer and bill of particulars; and copies of me deposition transcripts of RM dated August 14, 2008 and RS dated August 14, 2008
The plaintiff opposes this motion submitting an attorney’s affirmation and the affidavit of RM dated April 28, 2009.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to Judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case, to grant summary judgment it must clearly appear that no material and triable issue of fact is presented Sillman v Twentieth Century-Fox Film Corporation. The movant has the initial burden of proving entitlement to summary judgment failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing paper. Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact. The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established. Summary judgment shall only be granted when there are so issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of injury law.
RM testified to the effect that in July 2005 he was employed by Forge Heating and Air Conditioning (Forge) as an HVAC mechanic for about eight years and was also a free lance captain for boats up in seventy feet in length. On July 22, 2005 he was working at the premises located at Lazy Point Road, Amagansett for Forge where he had been working on and off for about two months. On that day he was running line sets for the air conditioning and was digging a trench approximately one hundred twenty feet long, eight inches wide and two feet deep in which the line sets were to be encased in PVC and buried. The trench started on the side of the house where there was a mechanical room and was dug by using shovels and a rotary hammer to dig through the dirt and construction debris. He described the construction debris as left over, hard packed concrete scattered all over the place through which they cleared a path.
A scaffold set up by the house was in his way when he was digging the trench, so he went inside the house to speak to the employees of the general contractor to see if the four point scaffolding could he moved, but was told there was no one to move it. He went back outside and was standing in the trench digging under the scaffold just past the cross members and a foot underneath it and was leaning over to avoid the cross member while he was digging. As he picked up a scoop of dirt and debris with the shovel, he rotated to his left to dump it and his back went out. He sat down on the edge of the trench for about ten minutes when a co-worker came by and he told him that he blew out his back. He described the premises as a single-family dwelling. Although workers from the general contractor were at the site on the date of his injury, the foreman was rot. He did not know who the owner of the premises was but stated that the owner did not direct or control the way he did his job.
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