Contractor Entitled to Dismissal of Labor Law Claim Premised Upon Industrial Code Rule 23-1.7(d) as Cited Rule Held Inapplicable

In a decision dated January 13, 2020, the Hon. Carol Edmead granted our client Skanska USA Building Inc. summary judgment dismissing plaintiff’s Labor Law §241(6) claim premised upon Industrial Code Rule 23-1.7(d) [slipping hazards] as a matter of law. The plaintiff was injured during the construction project for the City University of New York (“CUNY”) located at 85 Nicholas Avenue in Manhattan. The project included construction of CUNY’s Advanced Science Research Center, and Skanska was the general contractor. Plaintiff was employed by non-party Tower Installation on the day of his accident, and was performing window installation on one of the newly erected buildings on the project. As he was walking to get a box of caulk from the doorway of a nearby building, he alleges that he slipped and fell on snow and ice.  The court found Skanska made a prima facie showing of entitlement to judgment submitting plaintiff’s own description of the area where the accident occurred as an open area between two buildings that were under construction. The plaintiff did not cite case law supporting his position there was a fact question if the area in question was a walkway for Rule 23-1.7(d) purposes. The court found plaintiff’s argument that the Rule’s language required all walkways be kept free from snow and ice that may cause “slippery footing” insufficient to raise a fact issue warranting denial of summary judgment where courts previously held that open areas, such as here, were not covered by Rule 23-1.7(d). In light of the foregoing, Skanska’s motion for partial summary judgment dismissing plaintiff’s §241(6) cause of action premised upon Industrial Code Rule 23-1.7(d) was granted as a matter of law.

Anthony Meringolo v. Turner Construction Co. et al., Index No. 158572/2014 (N.Y. Co. Sup. Ct., Jan. 13, 2020)

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