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concluding that the fact the plaintiff slipped does not bar application of section 23-1.7 (e)
Summary of this case from Caras v. George Comfort & Sons, Inc.Opinion
5178 Index 153776/14
12-12-2017
David FITZGERALD, et al., Plaintiffs–Appellants, v. MARRIOTT INTERNATIONAL, INC., et al., Defendants–Respondents.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellants. Barry, McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for respondents.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellants.
Barry, McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for respondents.
Tom, J.P., Renwick, Gische, Oing, Singh, JJ.
Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered May 16, 2016, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing the Labor Law § 241(6) claim, and denied plaintiffs' cross motion for partial summary judgment on the issue of liability on the claim, and to amend the bill of particulars, unanimously reversed, on the law, without costs, defendants' motion denied, and plaintiffs' cross motion granted.
Plaintiff David Fitzgerald injured his knee when, during the course of his employment as a steamfitter, he slipped and fell on a piece of mud-covered insulation while walking down a wooden ramp. At the time, he was working the night shift to monitor the heating fans and pipes, and to ensure that there were no problems with the work that his company had performed earlier that day.
Plaintiff's testimony established that he was engaged in construction work for Labor Law purposes (see Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 881–882, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003] ; Campisi v. Epos Contr. Corp., 299 A.D.2d 4, 6, 747 N.Y.S.2d 218 [1st Dept. 2002] ; see also Griffin v. New York City Tr. Auth., 16 A.D.3d 202, 791 N.Y.S.2d 98 [1st Dept. 2005] ).
As the motion court determined, 12 NYCRR 23–1.7(d) does not apply, as plaintiff did not slip on a "slippery condition" or "foreign substance" within the meaning of that provision (see D'Acunti v. New York City School Constr. Auth., 300 A.D.2d 107, 751 N.Y.S.2d 459 [1st Dept. 2002] ; see also Nankervis v. Long Is. Univ., 78 A.D.3d 799, 911 N.Y.S.2d 393 [2d Dept. 2010] ; Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619, 622, 769 N.Y.S.2d 559 [2d Dept. 2003] ). However, 12 NYCRR 23–1.7(e) is applicable, as the ramp constitutes a "passageway" under 23–1.7(e)(1) (see Conklin v. Triborough Bridge & Tunnel Auth., 49 A.D.3d 320, 855 N.Y.S.2d 54 [1st Dept. 2008] ; see also Caudill v. Rochester Inst. of Tech., 125 A.D.3d 1392, 4 N.Y.S.3d 408 [4th Dept. 2015] ), and a "working area" under section 23.1.7(e)(2) (see Maza v. University Ave. Dev. Corp., 13 A.D.3d 65, 786 N.Y.S.2d 149 [1st Dept. 2004]; Canning v. Barney's N.Y., 289 A.D.2d 32, 34–35, 734 N.Y.S.2d 116 [1st Dept. 2001] ). The insulation constitutes debris under the regulation. The fact that plaintiff slipped, rather than tripped, on the piece of insulation does not render 12 NYCRR 23–1.7(e) inapplicable (see Serrano v. Consolidated Edison Co. of N.Y. Inc., 146 A.D.3d 405, 44 N.Y.S.3d 392 [1st Dept. 2017],lv dismissed 29 N.Y.3d 1118, 61 N.Y.S.3d 521, 83 N.E.3d 851 [2017] ; Lois v. Flintlock Constr. Servs., LLC, 137 A.D.3d 446, 447–448, 27 N.Y.S.3d 120 [1st Dept. 2016] ).