Nocera v. Tri-Delta Aggregates, Inc.

Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing plaintiff’s complaint alleging a violation of Labor Law §241 (6). Defendant failed to establish as a matter of law that plaintiff was not engaged in construction work at the time of his accident (see, 12 NYCRR 23-1.4 [b] [13]; Lozo v Crown Zellerbach Corp., 142 AD2d 949; DaBolt v Bethlehem Steel Corp., 92 AD2d 70, 73, lv dismissed 60 NY2d 554; cf., DeTommaso v Fitzgerald Constr. Corp., 138 AD2d 341, 343, lv denied 73 NY2d 701; Malczewski v Cannon Design, 125 AD2d 941) or that the accident did not occur in a location that was part of the work area owned or controlled by defendant *868(see, Labor Law § 241 [6]; 12 NYCRR 23-1.4 [b] [13]; La France v Niagara Mohawk Power Corp., 89 AD2d 757, 758, appeal dismissed 58 NY2d 747). (Appeal from order of Supreme Court, Erie County, Flaherty, J.—summary judgment.) Present—Dillon, P. J., Doerr, Boomer, Lawton and Davis, JJ.