On March 30, 2017, the Court of Appeals reversed the Appellate Division, First Department’s decision which granted the plaintiff summary judgment on his Labor Law §240(1) cause of action. The plaintiff, an employee of subcontractor DCM Erectors, brought suit against our clients, the Port Authority of New York and New Jersey and Tishman Construction Corporation of New York, for injuries allegedly sustained when he slipped and fell while descending a wet temporary exterior metal staircase at the 1 World Trade Center construction site. The Port was the owner of the premises and Tishman was the general contractor. Both the plaintiff and defendant moved in the Supreme Court for summary judgment on the plaintiff’s Labor Law §240(1) claim. The plaintiff also moved for summary judgment on his Labor Law §241(6) premised on an alleged violation of Industrial Cede Rule 23-1.7(d). In support of his motion, the plaintiff submitted an expert affidavit from a professional engineer and licensed building inspector who opined that the stairs were not in compliance with good and accepted standards of construction site safety and practice or with the Occupational Safety and Health Administration provision which requires that slippery conditions on stairways be eliminated. The plaintiff’s expert also opined that the steps showed signs of wear and tear and were smaller, narrower and steeper than typical stairs. The plaintiff also submitted an affidavit from a coworker stating that “almost everyone was aware of the slippery nature of the stairs.” In opposition to the plaintiff’s motion and in support of their own motion, the defendants submitted affidavits from a construction safety expert who opined that the staircase was designed for both indoor and outdoor use and was designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather. The expert also noted that the steps had perforated holes to allow rain to pass through and raised metal nubs for traction. The expert also found the tread depth and width of the steps met good and acceptable construction industry standards and he disputed that the staircase was smaller, narrower or steeper than usual. The Supreme Court ultimately denied the motions for summary judgment on plaintiff’s Labor Law §240(1) claim, finding that there were issues of fact regarding whether the temporary staircase provided proper protection, but granted the plaintiff summary judgment on Labor Law §241(6) finding a violation of Industrial Cede Rule 23-1.7(d). On appeal, the First Department modified the lower court’s decision, granting plaintiff’s motion for summary judgment on his Labor Law §240(1) claim but reversing the granting of summary judgment on the plaintiff’s Labor Law §241(6) claim. It held that although there were conflicting expert opinions as to the adequacy and safety of the steps, it was “undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling.” With respect to the Labor Law §241(6) claim the First Department found that questions of fact existed as to whether or not the defendants had notice of the condition of the staircase. The defendants then moved and were granted leave to appeal to the Court of Appeals by the First Department. On appeal, the Court of Appeals reversed the First Department’s decision on Labor Law §240(1) holding that there were questions of fact regarding whether the staircase provided adequate protection. In reaching its decision, the Court of Appeals commented that to the extent the First Department’s decision can be “read to say that a statutory violation occurred merely because plaintiff fell down stairs, it does not provide an accurate statement of the law.” It further noted “the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law §240(1).” Significantly, the Court of Appeals also found that the competing expert opinions raised an issue of fact as to whether or not proper protection was provided. The Court stated, “[h]ere, by contrast, there are questions of fact as to whether the staircase provided adequate protection. As noted above, defendants’ expert opined that the staircase was designed to allow for outdoor use and to provide necessary traction in inclement weather. Moreover, defendants’ expert opined that additional anti-slip measures were not warranted. In addition, he disputed the assertions by plaintiff’s expert that the staircase was worn down or that it was unusually narrow or steep. In light of the above, plaintiff was not entitled to summary judgment on the issue of liability.” The Court of Appeals let the First Department’s decision stand regarding Labor Law §241(6) finding that the plaintiff’s failure to cross-appeal from the First Department’s decision rendered the issue unreviewable.

O’Brien v. The Port Auth. of N.Y. and N.J. et al., 29 N.Y.3d 27, 74 N.E.3d 307, 52 N.Y.S.3d 68 (2017)