Venne v Niagara Farms LLC

Supreme Court, Erie County

Decided on April 8, 2026

Index No. 807900/2021

Peter Allen Weinmann, J.

What is an "Orchard Sprayer," and who if anybody is responsible when it falls from a height of less than 18 inches during repair, leading to crush injuries sustained by the 59 year-old farm hand working underneath it ?

Farm accidents and the resulting injuries are legendary. In the matter at bar, plaintiff, an employee of the farm "Cornerstone Orchards," sues 3 co-defendants after a 3,000 pound piece of farming equipment fell on him when he was working underneath it. The farm equipment in question is what's known as an "Orchard Sprayer," which is roughly the size of a large riding lawnmower, or even a small ATV (all-terrain vehicle). It is an enormous —sometimes metal like the one at bar -- tank on wheels, typically towed behind a tractor, and is used to spray fruit trees or fields with fungicide or pesticide. The Orchard Sprayer here had a broken axle, and plaintiff was working underneath it to repair it. It was propped up on a brick and 4 x 4 piece of wood to allow access to the undercarriage. According to plaintiff's supervisor Tom Scharlau, either he or plaintiff propped up the broken sprayer to work on it. All parties agree that the sprayer was inside the barn when plaintiff worked on it, but nobody knows how it got there.

As a result of sustaining crush injuries, plaintiff sued three parties: the owner of the farmland, Niagara Farms (which has a unity of ownership and a non-arm's length lease with the farm operator, non-party Cornerstone Orchards); Michael Nassoiy, the owner of the equipment repair company called to diagnose the broken sprayer, and who ultimately repaired the machine after the accident; and Iris Tower, the reputed owner of the Orchard Sprayer. Ms. Tower is the widow of a local farmer who either loaned or sold the sprayer and other equipment to Cornerstone Orchards to use. Tower contends the sprayer was sold to the owner of the farm and the land. Niagara Farms contends the sprayer was loaned, and is still owned by Tower. No money ever changed hands between the two parties, and there was no written contract (Presumably Cornerstone Orchards was not sued because it was plaintiff's employer and therefore involved with a Worker's Comp claim, but this information has not been disclosed).

Plaintiff claims common law negligence, and violation of Labor Law §§ 200, 240 (1) and 241 (6). Each of the three co-Defendants moves for Summary Judgment and dismissal pursuant to CPLR §3212.

The law and burden of proof are undisputed: 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 demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Zuckerman v. City of New York, 49 NY2d 557 [1980]). Once prima facie entitlement has been established, in order to defeat the motion, the opposing party must "'assemble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real and capable of being established on trial and it is insufficient to merely set forth averments of factual or legal conclusions'" (Genger v. Genger, 123 AD3d 445 [1st Dept. 2014], quoting Schiraldi v. U.S. Min. Prods., 194 AD2d 482 [1st Dept 1993]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978]).

Common Law Negligence and Labor Law § 200

Defendants seek dismissal of plaintiff's claims under common law negligence and Labor Law § 200, which requires that construction sites "shall be so constructed, equipped, arranged, operated and conducted to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places" (Labor Law §200 [1]).

Labor Law § 200 codifies the common-law duty of an owner or general contractor to maintain a safe workplace (Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343 [1998]). There are two distinct standards applicable to section 200 cases, depending on the situation involved: (1) when the accident is the result of the means and methods used by a contractor to do its work, and (2) when the accident is the result of a dangerous condition that is inherent in the premises or both (Herrero v. 2146 Nostrand Ave. Assoc., LLC, 193 AD3d 421 [1st Dept 2021]).

For the former category, where the injury was caused by the "manner and means" (or "means and methods") of the work, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work (Id., citing Foley v Consolidated Edison Co. of NY, Inc., 84 AD3d 476 [1st Dept 2011]; Cook v Orchard Park Estates, Inc., 73 AD3d 1263 [3d Dept 2010] ["If an injury is caused by the manner in which a subcontractor performs its work, an owner or general contractor will be liable only if it had the authority to control the activity bringing about the injury"].) For the latter category, liability attaches if the owner or general contractor created the dangerous condition or had actual or constructive notice (id.).

Under either liability standard, the common-law duty of the owner to provide a safe place to work, as codified by Labor Law § 200 (1), has been extended to include the tools and appliances without which the work cannot be performed and completed (Hess v Bernheimer & Schwartz Pilsener Brewing Co., 219 NY 415, 418 [1916]). To date, no party has admitted to ownership of the Orchard Sprayer. On the contrary, Niagara Farms and Iris Tower each insinuate that the other is the owner.

Where, as here, a plaintiff's injuries arise from the manner in which the work is performed, "there is no liability under the common law or Labor Law § 200 unless the owner or general contractor exercised supervision or control over the work performed" (Cun—En Lin v. Holy Family Monuments, 18 AD3d 800 [4th Dept. 2005]).

Where the injured worker's employer provides the allegedly defective equipment, the [*2]analysis "is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof" (Chowdhury v. Rodriguez, 57 AD3d 121 [2d Dept. 2008]; Ciesielski v. Buffalo Indus. Park, 299 AD2d 817 [4th Dept. 2002]). The reason, of course, is because in that situation the defendant property owner "is possessed of the authority, as owner, to remedy the condition of the defective equipment" (Chowdhury, supra at 130).

LABOR LAW §240(1)

Plaintiff asserts a cause of action against each defendant for violations of the New York State Labor Law, specifically section 240(1) which states: All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

Plaintiff's theory of liability under § 240(1) is three-fold: (a) that Niagara Farms and/or Iris Tower was an owner and had supervisory control; (b) that the Orchard Sprayer was a "structure;" (c) that the falling object/ height differential was immaterial. Accordingly, the questions are whether defendant had supervisory control; whether the Orchard Sprayer was a qualified "structure;" and whether plaintiff, overall, has demonstrated that he suffered an injury directly related to an elevation risk and whether a failure to adequately secure the equipment proximately caused that injury.

Because the objective of Labor Law § 240 (1) is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of workers --who are scarcely in a position to protect themselves from accident (see Rocovich, supra) --the statute imposes a nondelegable duty on owners, contractors, and their agents to provide "devices which shall be so constructed, placed and operated as to give proper protection to those individuals performing the work" (Comes v. NYS Elec. & Gas, 82 NY2d 876 [1993], Quiroz v Memorial Hosp. for Cancer & Allied Diseases, 202 AD3d 601 [1st Dept 2022] [citation omitted]).

In Gordon v. Eastern Railway (181 AD2d 990 [4th Dept. 1992]),the 4th Department held a railway responsible for injuries resulting from Plaintiff's work on a rail car "irrespective of their control or supervision (See Celestine v. City of New York, 86 AD2d 592 [2d Dept. 1982], aff'd. 59 NY2d 938 [1983]).

Section 240 (1) therefore imposes absolute liability, but the statute is limited to a narrow class of dangers: only those "special hazards" presenting "elevation-related risks" (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90 [2015].) Thus, "[absolute] liability may ... be imposed under the statute only where plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation risk" (O'Brien v Port Auth. of N.Y & N.J., 29 NY3d 27 [2017]; see also Blake v Neighborhood Housing Servs. of NY City, Inc., 1 NY3d 280 [2003] ["Liability is contingent on a statutory violation and proximate causation"]; Narducci v Manhasset Bay Assocs., 96 NY2d 259 [2001] [With respect to failing objects cases, "Labor Law § 240 (1) applies where the falling of an object is related to a 'significant risk inherent in ... the relative elevation ... at which materials or loads must be positioned or secured"] [internal citations omitted]).

In their respective motions for summary judgment, defendants contend that as plaintiff's injury did not involve the height-related risks contemplated by Labor Law § 240 (1) such that they were not required to provide additional safety devices. They contend that "[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assoc., 96 NY2d 259 [2001]). Moreover, "liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (id., citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]).

The Court of Appeals defined the contemplated hazards under §240 (1) as those involving risks related to gravity where there is a difference between the elevation level at which the worker is positioned and the higher level of the materials being hoisted or secured (Rocovich v. Con. Ed. Co., 78 NY2d at 509 [1991]).

In Serowik v. Leardon Boiler Works Inc. (129 AD3d 471 [1st Dept 2015]), the First Department rejected the argument that an object's relatively short fall necessarily precludes § 240 (1) liability. There, the plaintiff was injured while helping to lower a tank weighing four to five hundred pounds down a flight of stairs. In pertinent part, the First Department explained that the plaintiff's injury was "due to the application of gravity to the tank, and the elevation differential was not de minimus given the weight of the tank, which generated sufficient force to pull plaintiff into the pipe and cause injury" (Id.).

Labor Law §241 (6)

Labor Law §241 (6) provides, in pertinent part:

(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."

Labor Law §241(6) imposes a nondelegable duty of reasonable care upon owners and their agents "'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343 [1998]). The history of § 241 clearly manifests the legislative intent to place the 'ultimate responsibility for safety practices where such responsibility actually belongs" on the owner and general contractor.

The liability for injuries resulting from a violation of Labor Law § 241(6) is "absolute" (Allen v. Cloutier Constr. Corp., 44 NY2d 290, rearg. denied 45 NY2d 776 [1978]). Additionally, property owners and their agents are vicariously liable under § 241(6) for injuries sustained by construction workers due to the negligence of a subcontractor in failing to maintain the worksite in reasonably safe condition, even when the owner exercises no direct supervisory control over the subcontractor (id.; see also Rizzuto, supra).

Defendants cite a case similar to that at bar, Stoneham v. Barsuk, Inc. (41 NY3d 217 [2023]), where plaintiff was a mechanic who was lying beneath a lifted trailer while working on a faulty air brake system when the trailer fell on him.

The Court of Appeals affirmed the Fourth Department's dismissal of the complaint, noting that the plaintiff "was engaged in ordinary vehicle repair, which is not a protected activity under Labor Law §240(1)." Such work is analogous to that of a factory worker engaged in the normal manufacturing process. Plaintiff is a mechanic who was fixing the brakes on a trailer, a "[v]ehicle" as that term is defined in Vehicle and Traffic Law § 159. Expanding the statute's [*3]scope to cover a mechanic engaged in ordinary vehicle repair would "extend the statute . . . far beyond the purposes it was designed to serve" (Dahar v. Holland Ladder, 18 NY3d 526 [2012]). The matter at bar is totally distinguishable, however, because the equipment repair was not ordinary or even regular maintenance —it was a decidedly non-routine repair.

Niagara Farms LLC

Applying the above-referenced law to the defendant Niagara Farms, and when the evidence is viewed in the light most favorable to the non-moving party --the plaintiff-- it appears there are issues of fact concerning whether Niagara Farms had either the power to enforce safety standards and choose responsible contractors or the power to coordinate and supervise the overall project as required for liability under § 200 (see generally Ross v. Curtis-Palmer Hydro-Elec.81 NY2d 494 [1993], Mulcaire v Buffalo Structural Steel Constr. Corp., 45 AD3d 1426, at 1428 [4th Dept 2007]).

It is a question of fact whether Niagara Farms had the right to insist that proper safety practices be followed. It is the right to exercise supervisory control over the work that is significant, not the actual exercise or nonexercise of such control (See Chowdhury v. Rodriguez, 57 AD3d 121 [2d Dept. 2008]). Did Defendant Niagara Farms have supervisory control over plaintiff or repair of the Orchard Sprayer ?This is a question of fact.

Furthermore, did Niagara Farms create the dangerous condition or have either actual or constructive notice of it ? (see Chowdhury, supra; cf. Dougherty v. O'Connor, 85 AD3d 1090 [2d Dept. 2011]). This is another question of fact.

Accordingly, because there are legitimate questions of fact requiring a trial, Summary Judgment vis-à-vis Niagara Farms must be denied.

Michael Nassoiy

Before the accident at issue, defendant Michael Nassoiy went to the farm to diagnose, tow and prepare to repair the Orchard Sprayer after one of its wheels fell off. Depositions by all parties revealed that Nassoiy towed the sprayer out of the orchard towards but not into the barn, leaving the equipment out of the barn and on the ground. It is unclear exactly who took the sprayer into the barn, but there is unanimity that it was not Nassoiy. Furthermore, Nassoiy did not prop up the Orchard Sprayer on the block. He examined the sprayer but did not work on it that day, as he thought there was extensive work to be done, and he needed to order parts to complete the job. Nassoiy then went home. Finally, Nassoiy was not even onsite when the accident later occurred.

Defendant Nassoiy's sole involvement with regard to the subject Orchard Sprayer was to inspect it to determine what repairs needed to be performed. There is no evidence whatsoever to establish that Mr. Nassoiy was involved in the decision to hoist the Orchard Sprayer up on blocks nor did he prop up the sprayer with the brick and wood 4x4. Mr. Nassoiy was not present on the day of the accident and did not provide Mr. Venne or anyone at the farm with any instructions concerning how to perform repairs on the subject Orchard Sprayer. Nassoiy merely transported the broken sprayer from the field to an open area near, but not inside the barn.

Plaintiff's sole basis to hold defendant Nassoiy liable is based on a hearsay statement that Tom Scharlau allegedly made to him. However, Scharlau's own deposition testimony states that it "Could have been myself and Jimmy" who propped up the Orchard Sprayer. Hearsay alone, [*4]however, is insufficient to raise a triable issue of fact (Hyde v, Transcontinent Record Sales, 111 AD3d 1339 [4th Dept. 2013]; Watson v. Peschel, 188 AD3d 1693 [4th Dept. 2020]).

Accordingly, there is no question of fact whatsoever concerning Nassoiy's involvement with the accident; the decision to hoist the Orchard Sprayer; or plaintiff's injury. Nassoiy is not implicated in any way by Labor Law § 200; §240 (1); or § 241(6). His motion for summary judgment is therefore granted.

Iris Tower

Applying Labor Law §200; § 240 (1); and §241 (6) to Iris Tower, the most fundamental question of fact presented is whether she owned the Orchard Sprayer. Taking plaintiff's allegations in their most favorable light, it is presumed that she did in fact own the orchard sprayer. However, it is clear from the evidence produced that Iris Tower did not maintain or use the sprayer at the time of the accident. Nor did she exercise any supervision or control over the work to be performed, or of the unsafe repair scenario leading to the injury.

Furthermore, Labor Law 241 (6) imposes a non-delegable duty upon owners and contractors to provide necessary equipment to maintain a safe working environment, provided there is a specific statutory violation causing plaintiff's injury (See Toefer v. Long Island R.R., 4 NY3d 399 [2005]; Bland v. Manocherian, 66 NY2d 452 [1985]; Kollmer v. Slater Electric, Inc., 122 AD2d 117 [2d Dept. 1986]). The Court of Appeals has held that the standard of liability under this section requires that the regulation alleged to have been breached be a "specific positive command" rather than a "reiteration of common law standards which would merely incorporate into the state industrial code a general duty of care" (Rizzuto v. LA Wenger Contracting, 91 NY2d 343 [1998]). To support a Labor Law 241 (6) cause of action, such a regulation cannot merely establish only "general safety standards," but rather must establish "concrete specifications" (Ross, supra).

Plaintiff alleges that defendants violated 12 NYCRR 23 - 1.5 (a) and (b); 23 - 1.7 (a); 23 - 9.2, and 26 - 9.7. There is no support in the record for claims under those sections, nor does the plaintiff argue that there is. Therefore, the claims made under 241 (6) in reference to those sections of the Industrial Code are hereby dismissed.

At the end of the day, Iris Tower had no authority or control over her Orchard Sprayer when it was hoisted on a brick and board to repair, nor did she have knowledge, nor should she have had knowledge about situation. She was clueless, and therefore bears no liability under §§ 200; 240 (1); or 241 (6). Thus there are no issues of fact presented by this scenario to deny co-defendant Iris Tower Summary Judgment.

In conclusion, the denial of Summary Judgment to Niagara Farms is not to say that it bears any liability for the plaintiff's injuries. It will have its day in Court to prove otherwise.

Plaintiff is to submit an Order on notice to all opposing counsel within 30 days.

Date April 8, 2026

Hon. Peter Allen Weinmann, A.J.S.C.