First Department Affirms Dismissal of Plaintiff’s Complaint against Defendant City of New York

In a decision entered March 13, 2012, the Appellate Division, First Department unanimously affirmed the lower court’s decision granting defendant, the City of New York, summary judgment dismissing the plaintiff’s complaint, including those causes of action for common law negligence and pursuant to Labor Law §§200 and 241(6).  The plaintiff, an ironworker employed by a non-party contractor, was injured while performing rivet removal work on the Williamsburg Bridge when he stepped on a loose rivet stem and fell. The First Department held that the common law negligence and Labor Law §200 causes of action were properly dismissed by the lower Court because there was no evidence that the City created the condition and it was not responsible for nor did it have any input in setting up the work site. Moreover, the plaintiff testified that he did not notice any debris on the platform where he fell before the accident and that proper procedures were in place to clear the platform of any debris during the day. Additionally, the City did not receive any prior complaints regarding any tripping hazards. The Appellate Division also held that the lower Court properly dismissed plaintiff’s Labor Law §241(6) claim, which was predicated on an alleged violation of Industrial Code Rule 23-1.7(e). According to the First Department, even if the area the plaintiff traversed could be deemed a “passageway” within the meaning of Rule 23-1.7(e), the plaintiff testified that he tripped on the rivet after he entered the common, open work area. Rule 23-1.7(e) also did not apply because the evidence showed that the subject rivet stem constituted an integral part of the plaintiff’s work. The City’s evidence that the plaintiff was engaged in rivet removal, such work was ongoing in various parts of the bridge, and all falling parts could not be caught while the plaintiff and his coworkers were actively engaged in the removal work, established that the rivet stem resulted from the work plaintiff was performing.  The plaintiff’s argument that the rivet did not originate from the work he himself was performing was found by the Appellate Division to be unavailing, as rivets left by the plaintiff’s coworkers, who were performing the same rivet removal work, could still be deemed an integral part of the work.

Zieris v. City of New York, 93 A.D.3d 479, 940 N.Y.S.2d 72 (1st Dep’t 2012)

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