STEPHENS v. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY (2008)

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 22, 2007, which denied defendant's motion for summary judgment dismissing plaintiffs' Labor Law §§ 240(1) and 241(6) causes of action, unanimously modified, on the law, to reflect the court's denial in its decision of defendant's motion for summary judgment on the § 241(6) claim only with respect to Industrial Code (12 NYCRR) §§ 23-1.7(b)(1)(iii) (c), 23-1.16(b), and 23-5.1(j)(1), and otherwise affirmed, without costs.

 Plaintiff Bryan Stephens, while working at the Triborough Bridge, allegedly fell from a prefabricated temporary stairway as he and his foreman were attempting to attach the stairwell to the bridge's anchorage.   Plaintiff maintains that the stairway moved away from the anchorage, causing him to fall partially into the gap created between the anchorage and the stairway.   An injured plaintiff is not required to show that the he fell completely off an elevation device to the floor (see Montalvo v. J. Petrocelli Constr., Inc., 8 A.D.3d 173, 780 N.Y.S.2d 558 [2004];  Pesca v. City of New York, 298 A.D.2d 292, 293, 749 N.Y.S.2d 26 [2002] );  however, plaintiff's inconsistent statements regarding how this incident occurred present issues of fact that cannot be resolved on a motion for summary judgment (see Jones v. West 56th St. Assoc., 33 A.D.3d 551, 825 N.Y.S.2d 182 [2006] ).

The court properly found issues of fact precluding summary judgment on plaintiffs' § 241(6) claim to the extent it was based on still contested violations of Industrial Code (12 NYCRR) §§ 23-1.7(b)(1)(iii)(c), 23-1.16(b), and 23-5.1(j).  We note, however, that the court's decretal paragraph included these sections among those on which defendant's motion to dismiss was granted.