Plaintiff Who Allegedly Fell 50 Feet From Marine Parkway Bridge Through an Opening in Containment Tarp Was Denied Summary Judgment on Labor Law §§240(1) and 241(6) Claims

In a decision dated August 3, 2021, the Honorable Timothy J. Dufficy of Queens County Supreme Court held that plaintiff Artur Cesar was not entitled to summary judgment pursuant to Labor Law §§240(1) and 241(6) despite having fallen 50 feet from a bridge into the water below. In his complaint, plaintiff alleged that on August 3, 2017, he was lawfully working for Kiska Construction, Inc. on the Marine Parkway Bridge in Rockaway performing various painting duties when he fell through an opening in the tarp and into the water below, a height of approximately 50 feet. Following the close of discovery, plaintiff moved for summary judgment pursuant to CPLR 3212 on his Labor Law §§240(1) and 241(6) claims against our client, the Triborough Bridge and Tunnel Authority (“TBTA”). Judge Dufficy initially found that plaintiff had established a prima facie case in support of his Labor Law §240(1) claim. As per the plaintiff’s deposition testimony, he demonstrated that the defendant failed to provide him with an adequate safety device while he was working at an elevation and that this failure was a proximate cause of his injuries. Specifically, plaintiff established that, while he was performing various bridge painting duties, he lost his balance and fell through an opening in the tarp and into the water below, causing him to become injured. Plaintiff further established that he was not provided with proper protection because there was no safety cable for him to tie off to in the area where he was working at the time of the accident.

Ultimately, Judge Dufficy held that in opposition to the plaintiff’s motion on his Labor Law §240(1) claim, the defendant raised a triable issue of fact “whether it provided the plaintiff with proper protection.” Specifically, the defendant obtained an affidavit from Safety Director Brian Van Westervelt who averred that the tarp in the area was completely closed and there were no openings through which the plaintiff could have fallen. He further stated there was a safety cable spanning the area that was in easy reach of the plaintiff and onto which he could have easily clipped his lanyard. The Court also found credible and persuasive the affidavit of site safety expert, Martin Bruno, who responded to the accident site and conducted an inspection mere days after the accident occurred. Mr. Bruno was able to state from personal knowledge and clear photographs that there was indeed a proper safety cable in the area where plaintiff was working at the time of his accident. Thus, the Court denied plaintiff’s motion for summary judgment on his Labor Law §240(1) cause of action.

Turning to plaintiff’s claim pursuant to Labor law §241(6), summary judgment was also denied. In support of his §241(6) claim, plaintiff alleged a violation of Industrial Code Rule 12 NYCRR 23-1.7(b)(1) which provides: “Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place by a safety railing constructed and installed in compliance with this Part (rule).” Although the Courts have held this provision to be specific enough to support liability and plaintiff established a prima facie case that it was violated, we again raised an issue fact. In support of the defendant’s opposition papers, Mr. Westervelt averred in a sworn affidavit that the tarp in the area where plaintiff was working at the time of his accident was completely closed and there were no openings through which he could have fallen. In sum, as there were issues of fact on both Labor Law §§240(1) and 241(6) claims, summary judgment in plaintiff’s favor was not warranted and his motion was denied.

Artur Cesar v. Triborough Bridge and Tunnel Authority, Index No. 700217/18 (Sup. Ct. Queens Co., Aug. 3, 2021)

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