CLARKE v. CONSOLIDATED EDISON COMPANY OF NEW YORK INC (2024)

Order, Supreme Court, New York County (Sabrina Kraus, J.), entered May 17, 2023, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff sustained personal injuries when he fell into an open manhole while he was performing work for his employer, which contracted with defendant to perform underground inspections and repairs of network distribution equipment.  The language of the contract between defendant and plaintiff's employer, as well as the testimony of plaintiff and defendant's representative, raised an issue of fact as to whether plaintiff was engaged in protected work activity under the Labor Law at the time of his accident (see Dos Santos v Consolidated Edison of N.Y., Inc., 104 AD3d 606, 607 [1st Dept 2013];  Piccione v. 1165 Park Ave., 258 A.D.2d 357, 358 [1st Dept 1999], lv dismissed 93 N.Y.2d 957 [1999]).

Contrary to the court's determination, an open manhole is an elevation-related risk that Labor Law § 240(1) is intended to protect against (see Piccone v. Metropolitan Tr. Auth., 205 AD3d 628, 628–629 [1st Dept 2022];  Dos Santos, 104 AD3d at 608).