WHITE v. GENERAL MOTORS CORPORATION (2007)

 Plaintiff commenced this Labor Law action seeking to recover damages for injuries he sustained when he fell through an opening for a permanently affixed ladder, referred to as a “ship's ladder,” on premises owned by defendant General Motors Corporation.   Supreme Court erred in denying plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1) and in granting those parts of defendants' cross motions for summary judgment dismissing that claim, and we therefore modify the order accordingly.   We agree with plaintiff that he was engaged in a protected activity within the meaning of Labor Law § 240(1).   At the time of the accident, plaintiff was in a building located in the complex where the construction site was located, having been directed there by the project site manager to remove a gas regulator for use at the construction site.   His work was therefore not part of a “separate phase easily distinguishable from other parts of the larger construction project” (Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 881, 768 N.Y.S.2d 178, 800 N.E.2d 351).   Further, because plaintiff fell from an elevated work site through the opening for the permanently affixed “ship's ladder,” he is entitled to partial summary judgment on liability under Labor Law § 240(1) (see Holka v. Mt. Mercy Academy, 221 A.D.2d 949, 634 N.Y.S.2d 310, lv. dismissed 87 N.Y.2d 1055, 644 N.Y.S.2d 147, 666 N.E.2d 1061;  Szopinski v. MJ Mech. Servs., 217 A.D.2d 906, 906-907, 629 N.Y.S.2d 926, appeal dismissed 87 N.Y.2d 861, 639 N.Y.S.2d 312, 662 N.E.2d 793;  see also Russell v. Baker Rd. Dev., 278 A.D.2d 790, 723 N.Y.S.2d 577, lv. dismissed 96 N.Y.2d 824, 729 N.Y.S.2d 443, 754 N.E.2d 203;  Skow v. Jones, Lang & Wooton Corp., 240 A.D.2d 194, 657 N.Y.S.2d 709, lv. denied 94 N.Y.2d 758, 704 N.Y.S.2d 532, 725 N.E.2d 1094).

 The court also erred in granting those parts of defendants' cross motions for summary judgment dismissing the Labor Law § 241(6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-1.7(b)(1), and we therefore further modify the order accordingly.   We conclude that there are triable issues of fact concerning the adequacy of the protection afforded to plaintiff with respect to the unprotected opening for the “ship's ladder” and “whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury” (Paolangeli v. Cornell Univ., 296 A.D.2d 691, 693, 745 N.Y.S.2d 593 [internal quotation marks omitted];  see generally Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 160, 448 N.Y.S.2d 132, 433 N.E.2d 115, rearg. denied 56 N.Y.2d 805, 452 N.Y.S.2d 1026, 437 N.E.2d 1161;  Russell, 278 A.D.2d 790, 723 N.Y.S.2d 577).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying those parts of the cross motions with respect to the Labor Law § 240(1) claim and the Labor Law § 241(6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-1.7(b)(1) and reinstating the Labor Law § 240(1) claim and the Labor Law § 241(6) claim to that extent and by granting the motion and as modified the order is affirmed without costs.

MEMORANDUM: