In a decision dated August 25, 2023, the Hon. Paul A. Goetz denied plaintiff’s motion seeking summary judgment on his Labor Law §240(1) claims and granted our clients, Tishman Construction Corporation and the Port Authority of New York and New Jersey summary judgment dismissing the plaintiff’s complaint in its entirety. Briefly, the plaintiff, a union carpenter, claimed that he was injured when he stepped or slipped into an opening in the incomplete core slab plywood decking, causing him to fall part way through the opening. In his decision, Judge Goetz found that the plaintiff’s alleged accident fell within the scope of Labor Law §240(1), but determined that there was no violation since we proved that the nature of the work taking place at the accident location precluded the use of a cover over the hole or barricades around it. Judge Goetz agreed with our argument that, in opposition to our motion the plaintiff failed to raise a question of fact regarding the failure or inadequacy of any other safety device that would give rise to a violation. Essentially, Judge Goetz concluded that the defendants established that “the accident was caused by an ordinary peril of the worksite,” which did not fall within the scope of Labor Law §240(1).
With respect to the plaintiff’s Labor Law §241(6) claim, predicated on an alleged violation of Industrial Code Rule 23-1.7(b)(1) (protection from hazardous openings), Judge Goetz determined that the Rule was inapplicable since the hole that the plaintiff stepped or slipped into was too small for the plaintiff to fall through. Therefore, he determined that the Rule was inapplicable and could not have been violated. Judge Goetz also found that our clients were entitled to dismissal of the plaintiff’s Labor Law §200 and common law negligence claims against them since the accident was caused by the means and methods of the plaintiff’s work, which the defendants did not supervise, direct or control.
Javier Munoz v. Tishman Construction Corporation, etc. al, Index No. 160836/2016 (Sup. Ct. N.Y. Co., Aug. 25, 2023)
