Second Department Affirms Dismissal of Plaintiff’s Remaining Cause of Action Pursuant to Labor Law §241(6) Based on Violation of Industrial Code Rule 23-1.7(e)(2)

In a decision dated February 9, 2010, the Appellate Division, Second Department affirmed the Supreme Court’s decision dismissing the plaintiff’s remaining claim pursuant to Labor Law §241(6), which was premised on a violation of Industrial Code Rule 23-1.7(e)(2). The plaintiff claimed that he sustained serious personal injuries when he fell while retrieving materials from a box truck, when his right foot came into contact with one of the permanent L-shaped brackets that were welded to the floor of the box truck he was in at the time of his accident. In affirming the lower court’s decision, the Appellate Division found that the defendants satisfied their prima facie burden of establishing entitlement to summary judgment by demonstrating that the alleged violation of Industrial Code Rule 23-1.7(e)(2) was inapplicable because the L-shaped brackets did not constitute a “sharp projection” within the meaning of that rule and the plaintiff failed to raise a triable issue of fact in opposition.

Passaro v. 163-15 N. Flushing Corp. et al., 70 A.D.3d 795 (2d Dep’t 2010)

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