First Department Affirms Supreme Court’s Dismissal of Plaintiff’s Causes of Action for Common Law Negligence and Violations of Labor Law §§200 and 241(6)
In a decision dated January 28, 2014, the Appellate Division, First Department unanimously affirmed the decision of Hon. Louis B. York, entered on October 4, 2012, which granted defendants One Bryant Park LLC, One Bryant Park Development Partners LLC, The Durst Manager LLC and Tishman Construction Corporation of New York summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violations of Labor Law §§200 and 241(6). The plaintiff, an employee of non-party Almar Plumbing and Heating Corporation, claims that he sustained injuries on September 2, 2008, when his foot slipped on an unsecured piece of masonite while exiting an elevator at a construction site located at 1111 Avenue of the Americas, New York, New York. The masonite had been placed over the newly installed vinyl laminate flooring to protect it from foot and wheel traffic during the remainder of the construction process. The project at the premises, known as “One Bryant Park”, entailed the new construction of a commercial building with interior corporate offices, amenities and retail space. On appeal, the First Department held that the defendants established their entitlement to summary judgment on the common law negligence and Labor Law §200 claims because the defendants established that they neither created the allegedly dangerous condition nor had notice of it. The defendants also did not have the authority to control the activity bringing about the plaintiff’s injury to enable them to avoid or correct an unsafe condition. Moreover, they did not have responsibility for maintenance of the masonite on the floor where the plaintiff’s accident occurred because that level of the building had been turned over to a nonparty entity, which continued construction on that floor level. Regarding the Labor Law §241(6) cause of action, the First Department held there was no evidence that the plaintiff’s accident was the result of a failure to remove or cover a foreign substance, and masonite is not a slipping hazard contemplated by 12 N.Y.C.R.R. 23-1.7(d). Additionally, 12 N.Y.C.R.R. 23-1.7(e), which requires work areas to be kept free of tripping hazards, was held to be inapplicable because the plaintiff did not allege that he tripped on an accumulation of dirt or debris. Rather, the plaintiff testified that he slipped on an unsecured piece of masonite, which was not a tripping hazard.
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