Court Denies Summary Judgment to Plaintiff Laborer Who Removed Plywood Covering a Vent Shaft

In a decision dated May 4, 2023, the Hon. Delores J. Thomas of Kings County Supreme Court denied the plaintiff’s motion for summary judgment against our clients, New York City Transit Authority and Metropolitan Transportation Authority, on his causes of action alleging violations of Labor Law §§240(1) and 241(6). The plaintiff, a journeyman laborer, was employed by the general contractor on a project involving the installation of subway flood mitigation products in sidewalk vent grates above vent shafts.  At the time of the incident, the opening above a vent shaft was covered with a three-foot long piece of plywood weighed down by two 80-pound grates. The incident, which was captured on surveillance video, occurred when the plaintiff entered the cordoned-off work area, bent down and lifted the plywood covering, stepped forward and fell into the vent shaft. The plaintiff, who knew that the plywood covered the vent shaft, contended that he removed the plywood covering because it appeared to be debris and a potential tripping hazard; his supervisor testified that there was no reason for the plaintiff to be working in this area. In opposition, the defendants argued that the plaintiff failed to satisfy his initial burden of establishing that Labor Law §240(1) applies, based on his testimony that fall protection equipment was available to him but he did not need to use it because no work was being performed on the sidewalk vent grates, and there are triable issues of fact whether the statute was violated because the plaintiff gave contradictory testimony as to whether tie-off points for a safety harness were available. The defendants argued that the plaintiff failed to satisfy his initial burden of establishing a violation of Labor Law §241(6) because none of the cited Industrial Code regulations [23 NYCRR §§ 23-1.7(b)(1) (“Falling hazards- Hazardous openings”), 23-1.16 (“Safety belts, harnesses, tail lines and lifelines”) and 23-5.1 (“General provisions for all scaffolds”)] applied and proximately caused his fall.  The defendants also argued that the plaintiff was not acting within the scope of his employment at the time of this incident and that he was the sole proximate cause of his fall.  The Court denied the plaintiff’s motion on the grounds that there are questions of fact whether the plaintiff needed safety equipment and whether he had access to it, as well as questions surrounding the plaintiff’s fault.

Mario Torres v. New York City Transit Authority, et al., Supreme Court, Kings County, Index No. 511099/2019 (Sup. Ct. Kings Co., May 4, 2023)

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This post was written by Sander Rothchild