Opinion
February 2, 1990
Appeal from the Supreme Court, Niagara County, Koshian, J.
Present — Callahan, J.P., Boomer, Green, Pine and Lawton, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Plaintiff Robert Kelleher, a journeyman plumber employed by third-party defendant J.W. Criswell, Inc., was injured in March 1984 when the wall of a ditch in which he was working caved in. Defendant Kenan Center, Inc. leased the property where the accident occurred from defendant First Presbyterian Church of Lockport. When an underground pipe became clogged, Kenan Center hired Criswell to rectify the problem. Criswell in turn hired defendant Wolcott to do the necessary excavation work. It is undisputed that the ditch, which was approximately 5 to 6 feet deep, contained no shoring or shields and that plaintiff, as the immediate supervisor on the job, ignored the excavator's advice that the ditch be shored.
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 A.D.2d 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 A.D.2d 565, 567-568). Section 241 Lab. of the Labor Law imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection to workers (Allen v Cloutier Constr. Corp., 44 N.Y.2d 290, 300-301) making them "responsible for a breach of the requirements of the statute irrespective of their control or supervision of the work site" (DaBolt v Bethlehem Steel Corp., 92 A.D.2d 70, 73, lv dismissed 60 N.Y.2d 554, lv and appeal dismissed 60 N.Y.2d 701; see also, Nagel v Metzger, 103 A.D.2d 1, 6). However, comparative negligence is a defense to an action based upon Labor Law § 241 (6) (Long v Forest-Fehlhaber, 55 N.Y.2d 154, 160-161; Siragusa v State of New York, 117 A.D.2d 986, lv denied 68 N.Y.2d 602). Plaintiffs have advanced a plausible claim for defendants' liability under section 241 (6). On the other hand, plaintiffs' comparative negligence was properly asserted by defendants in their affirmative defenses. Thus, Supreme Court's dismissal of the affirmative defenses of culpable conduct must be reversed and the defenses reinstated. In all other respects the court's determination should be affirmed.